Fort Scott Fertilizer-Cullor, Inc.

Plain-English summary

MSHA cited Fort Scott Fertilizer-Cullor and James Cullor over defective brakes and a broken leaf spring on four quarry trucks. The ALJ found that employees had tampered with the slack adjusters on the two Euclid trucks, vacated the related citation and order, and dismissed the individual-liability case. He modified and affirmed the order involving a disconnected brake on the red Kline truck, assessing $150, and modified and affirmed the order involving the broken leaf spring, assessing $400. The company was ordered to pay $550 total, after which the corporate docket would be dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.14100(c); 30 C.F.R. § 56.14101; 30 C.F.R. § 56.14101(a)(3)
• Outcome: Two citations or orders were vacated, two orders were affirmed as modified, the individual case was dismissed, and the company penalty was $550.
• Key point: The ALJ treated proven employee tampering as a defense to two citations, while still holding the operator responsible for other known or obvious equipment defects.

Full text (FMSHRC public release)

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         FEDERAL MINE SAFETY AND HEALTH REVIEW

COMMISSION

              OFFICE OF ADMINISTRATIVE LAW JUDGES
                     2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                 FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-334-M
Petitioner : A. C. No. 23-01924-05520
v. :
: Fort Scott Fertilizer-
FORT SCOTT FERTILIZER-CULLOR : Cullor, Inc.
INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 93-117-M
Petitioner : A. C. No. 23-01924-05523 A
v. :
: Fort Scott Fertilizer-
JAMES CULLOR, Employed by : Cullor, Inc.
FORT SCOTT FERTILIZER- :
CULLOR, INC., :
Respondent :

                             DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Gary W. Cullor, President, Fort Scott Fertilizer-
Cullor, Inc., and James Cullor, pro se, for
Respondents

Before: Judge Feldman

 These consolidated cases are before me as a result of

petitions for civil penalties filed by the Secretary of Labor
pursuant to sections 110(a) and (c) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. 820(a) and (c).
The petitions charge the corporate respondent, Fort Scott
Fertilizer-Cullor, Inc. (Fort Scott), with violations of four
mandatory safety standards and James Cullor, as an agent of the
corporate respondent, with knowingly authorizing, ordering, or
carrying out two of these alleged violations.(Footnote 1)

1 Section 110(c) of the Act provides, in pertinent part, that
agents of corporate operators who knowingly authorize, order or
carry out violations of mandatory safety standards are subject to
the same civil penalties that may be imposed on the corporate
operator.

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These matters were heard on September 21, 1993, in Fort
Scott, Kansas at which time the parties stipulated that the
respondents were subject to the provisions of the Mine Act. The
Secretary called former Fort Scott employees Raymond Jenkins, a
truck mechanic, and truck drivers William Burris and Timothy
Ragland. Michael Marler, the issuing inspector, also testified
on behalf of the Secretary. Gary Cullor and his uncle, James
Cullor, testified for the respondents. The parties filed
posthearing briefs.

                  STATEMENT OF THE CASE

 These matters concern the following citation and orders

issued to Fort Scott by Inspector Marler as a result of his
May 27, 1992, inspection: 104(d)(1) Citation No. 4110164 for
inoperable brakes on a 30 ton Euclid truck (big Euclid);
104(d)(1) Order No. 4110166 for a disconnected left front brake
on a red Kline haulage truck; 104(d)(1) Order No. 4110167 for
inoperable brakes on a 15 ton Euclid truck (small Euclid); and
104(d)(1) Order No. 4110171 for a broken leaf spring on a little
Kline haulage truck.

 James Cullor was cited for knowingly authorizing or carrying

out the violations in Citation No. 4110164 and Order No. 4110167
by purportedly ignoring repeated complaints about malfunctioning
brakes on the big and small Euclids by truck drivers Burris and
Ragland. Marler determined that brakes on the big Euclid driven
by Burris and the small Euclid driven by Ragland could not hold
the trucks on level ground.

 The respondents have stipulated to the fact of the defective

brake conditions on the three trucks in issue and to the fact
that there was a reasonable likelihood that the hazards
contributed to by these conditions could result in injuries of a
reasonably serious nature. (Tr. 12-18, 195, 212). However, the
respondents attribute the faulty brake systems to improper slack-
adjuster settings on three of the four wheels on each of the
three cited trucks. The respondents maintain that these
adjustments were tampered with by Burris and Ragland who then
reported the defective brake conditions to the Mine Safety and
Health Administration (MSHA) on May 22, 1992, shortly before
Marler's May 27, 1992, inspection. Burris and Ragland were
terminated on June 1, 1992, because they did not have steel-toed
boots. (Tr. 164). Both subsequently filed discrimination
complaints pursuant to section 105(c) of the Mine Act. On
July 14, 1992, MSHA advised Fort Scott that it had determined
that Burris and Ragland had not been discriminated
against.(Footnote 2)

2 The record was left open for Gary Cullor to submit copies of
MSHA's discrimination determinations. Pursuant to my request,
Cullor submitted this information on September 27, 1993. These

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As noted herein, the testimony in this proceeding supports
the respondents' contention that the brakes were tampered with.
Moreover, the Secretary's decision not to pursue related
discrimination complaints on behalf of Burris and Ragland further
support the respondents' position that the subject brake
complaints were lacking in merit. The remaining issue is whether
employee misconduct for the sole purpose of imposing withdrawal
and civil penalty sanctions on an operator is an affirmative
defense given the strict liability nature of the Mine Act.

                 PRELIMINARY FINDINGS OF FACT

 Gary Cullor is President of Fort Scott Fertilizer-Cullor,

Inc. (Fort Scott), a close corporation. Cullor's wife, Sally
Cullor, is Secretary and Treasurer of the corporation and is a
100 per cent shareholder. The violations are alleged to have
occurred on March 27, 1992, at Fort Scott's limestone quarry in
El Dorado Springs, Missouri. Fort Scott sold this facility to
Ash Grove Cement Company in May 1993.

 William Burris and Timothy Ragland were employed by Fort

Scott as quarry truck drivers at its El Dorado Springs limestone
facility. Burris was hired on September 16, 1991. Ragland was
hired on March 26, 1992. Both Burris and Ragland are qualified
interstate truck drivers. Each holds a certified commercial
driver's license (CDL) in the State of Missouri. As CDL
licensees, they are required to be familiar with the operation
and maintenance of trucks, including truck braking systems.
(Tr. 90-92, 152-153).

 Burris and Ragland became upset over the subsequent hiring

of Jerry Carpenter who, in addition to other duties, was a
welder. Carpenter's salary was higher than the wages of Burris
and Ragland. (Tr. 166). Burris "thought it was wrong" and that
he "deserved more [money]" (Tr. 118). Ragland also did not
"think [Carpenter's higher salary] was right." (Tr. 166).
Burris and Ragland knew that Fort Scott had to timely complete
its performance on a state job that it had bid for. (Tr. 117,
166). Threats were made concerning some type of action if they
did not receive a raise. (Tr. 168). Specifically, Ragland
testified:

    Q.   You know Jerry Carpenter? Do you remember Jerry
          Carpenter that was hired at the quarry?

 A. I think so.

fn. 2 (Continued)
documents have been identified and admitted into evidence as
Respondents' Ex. 1. (Tr. 129, 141).

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Q. Do you remember an incident where he was hired and
apparently somebody found out about what the pay rates
was (sic) he got and several of you were upset about
what he was getting paid?

    A.   I don't see what that's got to do with this?

    Q.   Do you remember that?

    A.   Yes, I do.

    Q.   Do you remember you and Bill and a couple of others
         wanting more money because he was getting paid more?

    A.   Well, we really didn't go to that extreme on it, no,
         but, yeah, I didn't think it was right, because he
         came to work there after we did.

    Q.   But you did ask for more money?

    A.   Yeah, we did.

    Q.   Do you remember at the same time referring that
         things could get awful slow around there as far as
         getting anything done or on our state project and
         equipment could break down?

    A.   I never said nothing like that, no.

    Q.   You don't remember anybody else saying anything like
         that?

    A.   I can't speak for other people.

    Q.   Do you remember anybody saying that?

    A.   I can't tell you that.   I don't know.

            THE COURT: Mr. Ragland, that's not the question
            he asked you. He asked you did you ever hear anybody
            say that?

            THE WITNESS: Oh, they was always shooting crap
            about something, you know. It was just kind of like
            doing carpenter work, you know, it's just one of
            them deals where everybody goes hem-hawing around,
            talking about what they'd do, but, no, I can't say
            that I just heard a bunch of people going on about
            it, no.

            THE COURT: Would you please restate the question?     I
            don't know if I got an answer.

Page 6

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Q. (By Mr. Gary Cullor) Did you hear any comments from
anybody, without naming names, referring to the fact
that if we didn't receive more wages, there could be
a work slowdown or that equipment could break down?

    A.   Not --

    Q.   Equipment could break down a lot?

    A.   Not in them words, no.

    Q.   But something similar to that?

    A.   It was more like there just wasn't nobody going to
         come back out there is what it was more than anything.
         I don't remember them saying anything about that, no.
         They were talking more kind of like strike features than
         they were demolishing anything.

    Q.   There would be some implications that there would be
         some type of action taken if they didn't get a raise?

    A.   I guess you could probably put it that way.
         (Tr. 166-168).

 Burris and Ragland requested a pay raise. (Tr. 118, 166).

They received a small pay raise on May 18, 1992.

 On Friday, May 22, 1992, Ragland telephoned the MSHA office

and spoke to Inspector Marler's supervisor. At that time,
Ragland requested an MSHA inspection because the quarry trucks
reportedly had no brakes. (Tr. 96, 165, 259, 278-279). Burris
knew an inspector would soon inspect the El Dorado Springs
facility. (Tr. 96). However, Burris testified that he did not
experience brake problems on the days immediately preceeding
Marler's May 27, 1992, inspection. (Tr. 106).

 Burris and Ragland started hauling mud and water out of the

quarry pit at approximately 8:00 a.m. on Wednesday, May 27, 1992.
Burris was driving the big Euclid, Ragland was operating the
small Euclid and Derek Edmiston was driving the red Kline haulage
truck. (Tr. 88). Burris, Ragland and Edmiston made several
trips into the pit to haul mud between 8:00 a.m. and 9:00 a.m.
During this period, the red Kline and the small Euclid became
stuck in the mud. (Tr. 96, 287-288). Normal quarry operations
were then suspended at approximately 9:00 a.m. because the high
loader was experiencing steering problems. (Tr. 31, 184).
Contemporaneous with the high loader breakdown, Burris and
Ragland complained to James Cullor that their truck brakes were
not working. James Cullor stated that he did not observe any
brake problems prior to Marler's inspection. (Tr. 289-290).
However, Cullor told Burris and Ragland to park their trucks by

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the work shed so that the trucks could be checked out. (Tr.
287).

 Marler testified that he arrived at the quarry at

approximately 10:00 a.m., shortly after the trucks were taken out
of service because of the high loader malfunction (Tr. 184,
258). Marler asked to talk to the drivers of the haulage trucks
(Tr. 186). Marler spoke to Burris who told him that the big
Euclid's brakes would not hold going down into the quarry.
Burris stated that he had told Jim Cullor who reportedly told
Burris to keep driving and not to complain so much about the
equipment. (Tr.186). Marler tested the big Euclid and
determined that the brakes would not hold the truck in gear on
level ground. Therefore, Marler issued 104(d)(1) Citation No.
4110164 citing a violation of the mandatory standard in section
56.14101, 30 C.F.R. 56.14101 for defective brakes on the big
Euclid.

 Marler also spoke to Ragland who complained about the brakes

on the small Euclid. (Tr. 215). Consistent with Burris'
complaint, Ragland informed Marler that he had reported the brake
problems to James Cullor who did nothing about it. (Tr. 216).
Marler determined that the brakes would not stop the small Euclid
on a 6 per cent grade, even when unloaded. Consequently, Marler
issued 104(d)(1) Order No. 4110167 citing a violation of section
56.14101 for ineffective brakes.

 Marler also sought to inspect the red Kline haulage truck.

Marler asked to speak to Burris about the condition of the truck
as he was advised that Burris was the usual operator of this
vehicle. Burris advised Marler that he had disconnected the
front left brake after he told James Cullor that the brake was
locking up and causing the truck to pull. (Tr. 235-236). Based
on the information provided by Burris, Marler issued 104(d)(1)
Order NO. 4110166 citing the mandatory safety standard in section
56.14101(a)(3) for failing to maintain the left front brake in a
functional condition.

 Finally, Marler observed a broken left front leaf spring on

the little Kline haulage truck. The spring had eight to nine
leaves, of which four or five were broken. The broken spring
allowed the front to sag to the point where the tire was almost
touching the fender on the left side. Consequently, Marler
issued 104(d)(1) Order No. 4110171 citing a violation of the
mandatory safety standard in section 56.14100(c) for the
continued use of defective and hazardous equipment.

            FURTHER FINDINGS AND CONCLUSIONS

 The Secretary seeks to impose civil penalties on the

corporate respondent as well as James Cullor, as an individual,
based on the ineffective breaking systems on the big and small

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Euclid trucks. Although there were several maintenance problems
on these trucks that required attention, items requiring
preventative maintenance, eg., brake shoe replacement, must be
distinguished from the primary cause of the brake system
failure.(Footnote 3)

 In the case at bar, Raymond Jenkins testified on behalf of

the Secretary that there were loose slack adjusters on three of
the four wheels on the big and small Euclid trucks and on the red
Kline truck. Slack adjusters are located on the inside of each
wheel. They consist of a bolt that can be tightened with an
ordinary wrench. In view of the large diameter of the truck
tires, slack adjusters can be easily tightened from a squatting
position without removing the wheels. (Tr. 50) Properly
adjusted, they are fully tightened and then turned back one-half
turn. (Tr. 51).

 If slack adjusters are not properly tightened, they prevent

the brake shoe from contacting the brake drums. (Tr. 206). The
slack adjustment procedure was described by Jenkins as being
"real easy" (tr. 49); "a minute" to adjust (tr.50-51); and "there
ain't nothing to it, really." (Tr. 36). Marler testified that
anyone could walk up to [a slack adjuster] with a wrench and
change [it] if they want." (Tr. 221). Jenkins found loose slack
adjusters on the big and small Euclid trucks (tr. 32-36, 37-38,
48-49). Marler testified that the slack adjusters were loose,
but not loose enough to prevent the shoes from contacting the
drums (Tr. 206). Marler also stated that it was not determined
whether the slack adjusters were out of adjustment. (Tr. 229).

 Jenkins, however, opined that the major reason why the

brakes could not hold the Euclid trucks on grade was the loosened
slack adjusters. (Tr. 38-39, 48). Jenkins' opinion is
consistent with Marler's testimony that slack adjusters can be
loosened to the point where they would render the brakes
ineffective. (Tr. 221-222). Significantly, Jenkins testified
that neither Burris nor Ragland ever complained to him about
brake problems. (Tr. 70). Therefore, I credit the testimony of
truck mechanic Jenkins that the primary brake defects on the
Euclid trucks driven by Burris and Ragland were the loosened
slack adjusters.

 3 For example, an inspection of the small Euclid with the

wheels removed revealed a sticking left s-cam shaft and a broken
ear on a right front cam support. Similar inspection of the big
Euclid revealed a right rear leaking axle seal and a brake shoe
lining pulled from the left rear brake shoe. (P Ex.2; Joint Ex.
2). However, I credit the testimony of Jenkins that these
conditions were not the primary cause of the inoperable brakes on
the Euclid trucks. (Tr. 38-39, 225-226).

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Having concluded that the slack adjusters were the primary
cause of the Euclid brake malfunctions, I now address the
respondents' allegations of tampering. Although Burris initially
denied familiarity with slack adjusters, both Burris and Ragland
conceded that they knew how to make such adjustments.
(Tr. 87, 92, 152-154, 168, 200). Jenkins and Marler testified
that it is not uncommon for truck drivers to adjust slack
adjusters. (Tr. 26-27, 36-37, 221). Although Marler did not
observe any recent wrench marks on the slack adjuster bolts, he
conceded that mud would cover any recent evidence of tampering.
(Tr. 262-263). Significantly, Marler stated that slack adjusters
are one of the first things checked by qualified, experienced
truck drivers in the event of brake problems. (Tr. 199-200, 228-
229). Yet, Burris and Ragland continued to operate trucks
without brakes without checking these adjusters. Marler
testified that a competent driver could conceal an inoperable
brake condition by operating a truck with defective brakes in the
quarry by downshifting. (Tr. 256, 264).

 Thus, the evidence reflects that Burris and Ragland were

disgruntled employees; threats had been made about disrupting
quarry operations; Ragland complained to MSHA; Burris and Ragland
were anticipating Marler's inspection; there was a pattern of
loosened slack adjusters on three of four wheels on three quarry
trucks that is indicative of tampering; Burris and Ragland had
access to these slack adjusters; although slack adjusters loosen
over time, there is no evidence of inoperable breaks on the days
preceding Marler's May 27, 1992 inspection; and Burris and
Ragland operated their trucks without brakes without checking the
condition of the slack adjusters. Under these circumstances, I
conclude that there is sufficient circumstantial evidence that
supports the respondents' contention that brake tampering
occurred.

 Moreover, the Secretary's decision not to pursue the

discrimination complaints of Burris and Ragland because the
Secretary's investigation revealed that they "were not
discriminated against" further supports the conclusion that the
brake complaints in this matter were not legitimate. Under these
circumstances, even counsel for the Secretary conceded that
the Secretary's case is apparently inconsistent with his own
investigation. (Tr. 130-131). The record was left open for
submission of the pertinent discrimination investigation
findings. (Tr. 129, 141). However, the Secretary has declined
to submit this information. Consequently, the refusal of the
Secretary to submit this relevant investigatory report creates
the inference that this report would be adverse to the

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Secretary's case.(Footnote 4) See NLRB v. Dorn's Transportation
Co., 405 F.2d 706, 713 (2d Cir. 1969). While the adverse
inference to be drawn is not dispositive, it is consistent with
other evidence of record and it is of significant evidentiary
value.(Footnote 5)

 Having concluded that the brakes were tampered with, I turn

to the novel question of whether such employee misconduct is an
affirmative defense to the pertinent citations in issue. While
employee misconduct is relevant as a mitigating factor in
reducing a civil penalty, it is ordinarily not a defense to a
citation given the strict liability imposed under the Mine Act.
Southern Ohio Coal Company, 4 FMSHRC 1459 (August 1982). It is
fundamental that strict liability is imposed on operators to
encourage mine safety even if the hazard contributed to by the
violation resulted from the employee's misconduct.

 Thus, the Commission has consistently rejected arguments by

operators that they are not liable for the unauthorized or
careless actions of miners. See A.H. Smith Stone Company, 5
FMSHRC 13 (January 1983); Southern Ohio Coal Company, 4 FMSHRC at
1462-64; Sewell Coal Co. v. FMSHRC, 686 F.2D 1066, 1071 (4th Cir.
1982); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th
Cir. 1982). These cases recognize and are consistent with the
ultimate goal of the Mine Act which is to encourage safety and
avoid risk. In this case, however, employees attempted to use
the Mine Act to create risk by disabling brakes. Such acts of
sabotage can not be equated with the unauthorized or careless
acts in the above cited cases. Acts of sabotage subvert the
purpose of the Mine Act and must not be given effect.

4 Obviously, it is not appropriate to draw an adverse inference
against a miner prosecuting a dicrimination complaint on his own
behalf under section 105(c)(3) of the Mine Act when the
Secretary, an entirely different party, elects not to bring a
discrimination action under section 105(c)(2) of the Act. In
this case, however, the Secretary is the party prosecuting this
civil penalty proceeding. The Secretary's failure to bring
discrimination actions on behalf of Burris and Ragland after they
were terminated only days after filing the pertinent brake
complaints with MSHA, in the absence of any explanation by the
Secretary, permits the inference that the Secretary's
investigation failed to support the validity of these brake
complaints.

5 I am sensitive to the Secretary's desire to protect
confidentiality. However, it is no secret in this case that
complaints were filed with MSHA. The Secretary has made no
effort to explain its investigation results and subsequent
decision not to pursue discrimination cases. Such an explanation
could be provided without violating confidential sources, if any.

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In reaching this conclusion, I am aware that the Secretary
argues that, if tampering occurred, a de minimus civil penalty
must be imposed for a technical violation of safety standards.
I decline to elevate form over substance which, in this case,
would contravene legislative intent. Rather, I conclude that
tampering has occurred and that such tampering is a defense to
Citation No. 4110164 (the big Euclid) and Order No. 4110167 (the
small Euclid). Consequently, Citation No. 4110164 and Order No.
4110167, issued to Fort Scott and James Cullor, as agent, shall
be vacated. Therefore, Docket No. CENT 93-117-M concerning James
Cullor's personal liability under section 110(c) of the Mine Act
must be dismissed.

 With respect to Order No. 4110166 issued for the

disconnected left front brake on the red Kline truck, I note that
Burris has admitted disconnecting the brake. James Cullor denies
any knowledge of Burris' action. Given my findings in this
proceeding, I credit the testimony of James Cullor on this issue.
Jenkins testified that a truck with a disconnected brake could
not "stop as good." (Tr. 39-40) The evidence reflects that this
brake was disconnected for a considerable period of time and
that this action was not taken for the sole purpose of reporting
it to Marler. Therefore, there is no defense to this citation.
Fort Scott has stipulated to the significant and substantial
nature of poor brakes on a quarry truck. However, I am unable to
find any unwarrantable failure as I have found no knowledge of
this condition on the part of the respondent. Therefore, I am
modifying Order No. 4110166 to a significant and substantial
104(a) citation and I am removing the unwarrantable failure
charge. Given the circumstances of this case and considering the
criteria in section 110(i) of the Mine Act, I am assessing a
civil penalty of $150.00.

 Finally, Order No. 4110171 was issued for a broken left

front leaf spring on the little Kline truck. Marler's testimony
that the tire was almost touching the left front is consistent
with the photograph of the little Kline truck placed in evidence.
(P. Ex. 10). I reject Gary Cullor's assertion the spring's
primary purpose is for driver comfort. Rather, I accept Marler's
analysis that this condition posed a serious risk in that the
driver could lose control of the truck and sustain serious
injury. Therefore, I conclude that this violation was properly
characterized as significant and substantial as there is a
reasonable likelihood the hazard contributed to, i.e., loss of
control, will result in an injury of a reasonably serious nature
given continued use of the truck in frequently muddy conditions.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). With respect
to the issue of unwarrantable failure, I note that the photograph
illustrates that the defective spring was obvious in that the
truck was listing to the left side. Fort Scott's continued use
of this vehicle in its readily apparent defective state
constitutes an unwarrantable failure. Given the serious gravity

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of this violation, I am modifying this Order to a 104(d)(1)
citation and assessing a civil penalty of $400.00.

                         ORDER

 1. Accordingly, Citation No. 4110164 and Order No. 4110167

ARE VACATED.

 2. Order No. 4110166 is modified to a significant and

substantial 104(a) citation thus removing the unwarrantable
failure charge and IS AFFIRMED as modified.

 3. Order No. 4110171 is modified to a 104(d)(1) citation

and IS AFFIRMED as modified.

 4. The case against James Cullor, as an agent of Fort Scott

Fertilizer-Cullor, Inc., in Docket No. CENT 93-117-M IS
DISMISSED.

 5. Fort Scott Fertilizer-Cullor, Inc., IS ORDERED to pay a

total civil penalty of $550.00 within 30 days of the date of this
decision, and, upon receipt of payment, Docket No. CENT 92-334-M
IS DISMISSED.

                            Jerold Feldman
                            Administrative Law Judge

Distribution:

Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, 1961 Stout Street, Room 1585, Denver,
CO 80294 (Certified Mail)

Gary W. Cullor, President, Fort Scott Fertilizer-Cullor, Inc.,
20th & Sydney, Fort Scott, KS 66701 (Certified Mail)

Mr. James Cullor, Fort Scott Fertilizer-Cullor, Inc.,
20th & Sidney, Fort Scott, KS 66701 (Certified Mail)

/ll