REB Enterprises Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

REB Enterprises operated a limestone quarry in Arkansas. Judge Avram Weisberger considered citations and orders involving electrical testing, seat belts, equipment windows, machine guarding, and individual liability under the Mine Act. He found some violations, dismissed or withdrew other matters, rejected the Secretary's unwarrantable-failure and individual-liability allegations in several instances, and amended some orders to citations. The order required REB to pay a total civil penalty of $2,400.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.12028, 57.14131(a), 56.14130(g), 56.14103(a), 56.14130(a)(3), and 56.14107(a)
• Outcome: Some citations and orders were sustained, some matters were dismissed or withdrawn, several orders were amended to citations, and a $2,400 total penalty was ordered.
• Key point: The judge separated proven safety violations from unsupported unwarrantable-failure and individual-liability allegations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                        September 5, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-29-M
Petitioner : A.C. No. 03-01640-05511
v. :
: Docket No. CENT 95-30-M
REB ENTERPRISES INCORPORATED, : A.C. No. 03-01640-05512
Respondent :
: REB Enterprises Inc.
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-239-M
Petitioner : A.C. No. 03-01640-05517 A
v. :
: REB Enterprises Inc.
HAROLD MILLER, :
Employed by REB ENTERPRISES :
INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. CENT 95-240-M
Petitioner : A.C. No. 03-01640-05518 A
v. :
: REB Enterprises Inc.
RICHARD E. BERRY, :
Employed by REB ENTERPRISES :
INC., :
Respondent :
DECISION

Appearances: Daniel J. Haupt, Mine Safety and Health
Administration, U.S. Department of Labor, Dallas,
Texas, and Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department of Labor,
Dallas, Texas, for the Petitioner;
James E. Crouch, Esq., Cypert, Crouch, Clark &
Harwell, Springdale, Arkansas, for the Respondent.

Before: Judge Weisberger

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                   Statement of the Case

 At issue in these consolidated cases are citations

and orders issued by the Secretary (“Petitioner”) to REB
Enterprises Inc., (“REB”), alleging violations of various
mandatory safety standards set forth in Title 30 of the Code
of Federal Regulations. Also at issue are citations issued to
Harold Miller, and Richard E. Berry, alleging violations of
Section 110(c) of the Federal Mine Safety and Health Act of 1977
(“the Act”). Pursuant to notice, a hearing was held in
Fayetteville, Arkansas in June 11, 1996. REB filed a post-trial
brief on July 17, 1996. Petitioner’s post-hearing brief was
filed on August 5, 1996. On August 14, 1996, REB’s response to
petitioner’s post-hearing brief was filed.

I. Jurisdiction

 REB operates a limestone quarry. As a part of the mining

operation, overburden is first removed exposing limestone rock
which is then blasted. The rock is then further crushed,
stockpiled, and subsequently sold to customers. There is no
evidence that any REB product is sold or used outside the state
of Arkansas.

 It is the position of REB and the individual Respondents,

Miller, and Berry, that REB’s operation is not subject to the
Act’s jurisdiction.

 Section 4 of the Act provides that each mine “. . . the

operations or products of which affect commerce,” shall be
subject to the Act.

 In Jerry Ike Harless Towing, Inc., and Harless, Inc.,

(16 FMSHRC 683 (April 11, 1984)), the Commission analyzed the
scope of the Commerce Clause of the Constitution as follows:

  The Commerce Clause of the Constitution has been
  broadly construed for over 50 years. Commercial
  activity that is purely intrastate in character may be
  regulated by Congress under the Commerce Clause, where
  the activity, combined with like conduct by others
  similarly situated, affects commerce among the states.
  Fry v. United States, 421 U.S. 542, 547 (1975); Wickard
  v. Filburn 317 U.S. 111 (1942) (growing wheat solely
  for consumption on the farm on which it is grown
  affects interstate commerce). Congress intended to
  exercise its authority to regulate interstate commerce

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  to the “maximum extent feasible” when it enacted
  Section 4 of the Mine Act. Marshall v. Kraynak, 604
  F.2d 231, 232 (3d Cir. 1979), cert. denied 444 U.S.
  1014 (1980); United States v. Lake, 985 F.2d 265, 267-
  69 (6th Cir. 1993). In Lake, the mine operator sold
  all its coal locally and purchased mining supplies from
  a local dealer. 985 F.2d at 269. Nevertheless, the
  court held that the operator was engaged in interstate
  commerce because “such small scale efforts, when
  combined with others, could influence interstate coal
  pricing and demand.” Id. Harless,supra at 686.

 It is significant to note that a product mine at the quarry

at issue, SP-2, which is used as a highway road base, was sold to
a contractor who used the product in construction work performed
on Arkansas state highway No. 412, which runs West from Arkansas,
and crosses over and continues into the state of Oklahoma. Also,
a Case bulldozer which was in operation at the mine on August 16,
1994, was manufactured in Racine, Wisconsin i.e., outside the
state of Arkansas. Given these uncontested facts, and
considering the broad principles enunciated by the Commission in
Harless Towing, supra, and based on the authority of the sixth
circuit in Lake, supra, I am constrained to find that REB’s
operation affected interstate commerce, and hence was subject to
the Act’s jurisdiction.

II. Citation No. 4327635.

 At the hearing, Petitioner moved to withdraw this citation

due to the lack of evidence to support it. Based upon
Petitioner’s representations, the motion was granted.

III. Citation No. 4327775.

 James Clifton Enochs, an MSHA inspector, testified that on

August 16, 1994, he reviewed REB’s records. According to Enochs,
the records indicated that the most recent test for continuity
and resistance of the grounding system, was on April 8, 1993.
According to Enochs there was no record of any test subsequent to
that date and prior to his inspection on August 16, 1994. Enochs
issued a Citation alleging a violation of 30 C.F.R. § 57.12028
which provides as follows: “Continuity and resistance of
grounding systems shall be tested immediately after installation,
repair, and modification; and annually thereafter. A record of
the resistance measured during the most recent test shall be made
available on a request by the Secretary or his duly authorized
representative.” (Emphasis added.)

  Based upon the uncontradicted testimony of Enochs, I find

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that the most recent test of the continuity and resistance of the
grounding system recorded by REB was April 8, 1993. I reject
REB’s argument that, in essence, there was no violation of
Section 57.12028, supra, since it had until the end of the
calendar year 1994 to perform and record the relevant testing.

 Section 57.12028, supra, requires continuity testing

“annually”’ after installation. Websters Third New
International Dictionary, (1986 Edition) (“Webster’s”) defines
the word “annually” when used as an adjective as follows “***2:
. . . done, or acted upon every year or once a year ... .” “Year”
is defined in Webster’s, as relevant, as follows: “c: a period of
time equal to one year on the Gregorian calendar but beginning at
a different time.” In contrast, Webster’s defines a “calendar
year” as follows: “a period of a year beginning and ending with
the dates which are conventionally accepted as marking the
beginning and end of a numbered year.” Hence, applying the
common meaning of the adjective “annually”, I find that Section
57.12028 supra, by its terms, is not satisfied by performing and
recording the relevant test anytime within a calender year. I
conclude that Section 57.12028, supra, is not complied with if
the relevant test was not performed and recorded within a year
subsequent to the last such test. Since the last recorded test
had been recorded more than twelve months prior to the date of
the inspection, August 16,1994, I find that Section 57.12028
supra, has been violated. I find that a penalty of $50 is
appropriate.

IV. Citation No. 4327776.

  A.   Violation of 30 C.F.R. § 57.14131(a)

 Enochs testified that on August 16, 1994, as part of his

inspection, he went to the pit along with Ray King, who was the
foreman at the time. Enochs walked over to a R-20 Euclid haul
truck to introduce himself to the driver. He climbed up to the
running board and noticed that the driver, Ron Alexander, did not
have his seat belt on. Enochs issued a Citation alleging a
violation of 30 C.F.R. § 57.14131(a) which provides as follows:
“Seat belts shall be provided and worn in haulage trucks”.

 Respondent did not impeach or contradict the testimony of

Enochs regarding his observations. Accordingly his testimony in
this regard is accepted. Based on his testimony, I find that on
August 16, 1994, the driver of the R-20 Euclid haul truck was not
wearing his seat belt. I thus conclude that REB violated
Section 57.14131(a), supra,

  B.   Significant and Substantial

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 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a
 mandatory safety standard is significant and
 substantial under National Gypsum the Secretary of
 Labor must prove: (1) the underlying violation of a
 mandatory safety standard; (2) a discrete safety
 hazard--that is, a measure of danger to safety-
 contributed to by the violation; (3) a reasonable
 likelihood that the hazard contributed to will result
 in an injury; and (4) a reasonable likelihood that the
 injury in question will be of a reasonably serious
 nature.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have explained further that the third element
 of the Mathies formula "requires that the Secretary
 establish a reasonable likelihood that the hazard
 contributed to will result in an event in which there
 is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
 1836 (August 1984). We have emphasized that, in
 accordance with the language of section 104(d)(1), it
 is the contribution of a violation to the cause and
 effect of a hazard that must be significant and
 substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
 1866, 1868 (August 1984); U.S. Steel Mining Company,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The truck at issue hauls material from the pit to the

crusher over the roadway which Enochs described as being
“somewhat rough” (Tr. 32). According to Enochs the roadway is
mostly level but goes down an incline at the area of the crusher.
Enochs indicated that there are other haul trucks and equipment
operating in the area.

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 Enochs opined that should the truck overrun a berm, the

operator would be thrown from the vehicle and severely injured
because he was not wearing a seat belt. Also, Enochs opined that
should the truck run into another piece of equipment, the
operator would be thrown into the windshield, and could be
injured thereby. According to Enochs, there is constant spillage
on the road, and if the truck should run over a large boulder,
“it could throw the steering wheel, it could throw the unit
itself” (Tr. 57). He opined that, based upon his experience, the
occurrence of an accident resulting in the truck being wrecked is
quite possible. According to Enochs, thirty percent of
fatalities in the mining industry involve haulage units. He
opined that should the truck roll over, the driver would most
likely suffer a fatality, as he did not have a seat belt on.
Enochs indicated that he investigated five or six situations in
which haul trucks had rolled over.

 Richard E. Berry, the owner, principal stockholder, and

President of REB, indicated that REB has been operating a
limestone quarry at the location in issue since 1988. According
to Berry the distance from the pit to the crusher is
approximately a quarter of a mile. He testified that at the
crusher the roadway goes down a grade for about 100 feet, where
it flattens out for 700 to 800 feet, and then goes up a grade
that rises about thirty feet, and then becomes flat again. The
roadway is between sixty to seventy feet wide, but narrows down
to twenty feet for approximately 100 feet where the road goes up
a grade. Berry said that the trucks that are driven over the
roadway are about eight to nine feet wide, and generally pass one
another.

 I find, that REB did violate a regulatory standard, i.e.,

Section 56.14131(a) supra. I also find that this violation
contributed to the hazard of the operator of the haul truck being
injured should the truck collide with another vehicle or object,
or overtravel a berm. However, the record does not establish the
speed at which the haul truck regularly operates. There is no
evidence that there was any problem with the truck’s brakes, or
that the truck had any other mechanical malfunction. Further,
based upon the uncontradicted testimony of Berry, the roadway was
wide enough to safely accommodate two trucks traveling in
different directions. Although Enochs testified that the roadway
was “somewhat rough” and that spillages were common, he did not
proffer any evidentiary facts based upon his observations to
support these conclusions.

 Based upon the above record, I find that it has not been

established that an injury producing event, i.e., the haul truck
in question colliding with another object with such force and

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speed as to cause the driver to lose control of the truck, or to
dislodge the driver, was reasonably likely to have occurred. I
thus find that the third element in Mathies supra, has not been
established. I find that it has not been established that the
violation was significant and substantial.

 C.   Unwarrantable Failure

 It is the Secretary's position that the violation herein

constituted an "unwarrantable failure". As such, it is incumbent
upon the Secretary to establish that REB’s actions herein were
more than ordinary negligence, and reached the level of
aggravated conduct (Emery Mining Corp., 9 FMSHRC 1997 (1987)).

 According to Enochs, a Mr. Hermstein, an MSHA inspector

informed him that an industrial assistance program handouts
concerning haulage were passed out to REB’s supervisors, Ray
King, and a Mr. Goody. Enochs stated, in essence, that Hermstein
told him that he had spent three hours with King and Goody “...
for the employees to make sure they preshift each unit, wear
their seat belts brakes, steering, the major concerns” (sic)
(Tr. 18). He also indicated that “ . . . King had been warned
by MSHA during the industrial assistance session on the seat belt
usage and how important it was. There was--seemed to be no
effort to enforce the seat belt law” (sic) (Tr. 33). According
to Enochs, when he asked the cited driver of the haul truck why
he had not been wearing a seat belt, he said that “nobody made a
big deal about it” (Tr. 34). Enochs indicated that King did not
say anything when the driver was cited, did not correct the
condition or tell the driver that he had to wear the belt.
Enochs said that King “... seemed somewhat indifferent to the
whole situation” (Tr. 34). Enochs indicated that on the date of
the inspection, he went inside REB’s office and did not see any
notices posted informing employees of the need and necessity to
wear seat belts.

 According to Berry, a sign is posted outside the building

where employees check in, advising them of the need to wear seat
belts. He also testified that a notice was posted in the office
advising employees of the need to wear seat belts.1 I observed

 1
  This notice was admitted in evidence as Defendant’s Exhibit

30, is dated April 1995. However, Harold Miller, a REB employee
who testified, and was found to be a credible witness on this
point, testified that he could not recall any differences between
the notice that was posted in the office on August 16, 1994, and
Defendent’s Exhibit 30.

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Berry’s demeanor, and found that his testimony on these points
was credible.

 It is incumbent upon Petitioner to establish, by a

preponderance of the evidence, that the violation at issue
resulted from REB’s aggravated conduct. Petitioner relies upon
the heresay testimony of Enochs that King had been warned by MSHA
personnel in an industrial assistance session regarding the use
of seat belts at REB’s facility. Neither King nor the MSHA
personnel who allegedly imparted this information to King
testified on behalf of Petitioner. I find the testimony of
Enochs in this regard is inherently unreliable due to its heresay
nature, and cannot be relied upon to establish that King received
such a warning. Petitioner also relies upon an out of court
statement by the driver of the cited truck to Enochs that “nobody
made a big deal” out of the wearing of seat belts. This person
was not called upon by Petitioner to testify to establish this
point. I do not assign any probative value to Enochs’ heresay
testimony as such testimony is inherently unreliable. I find
Enochs’ testimony that, when cited, King did not provide much of
a response and “seemed indifferent”, to be too subjective, and
thus not to be accorded any probative value. Further, I accept
the testimony of REB’s witnesses regarding the information that
was posted on REB’s premises concerning the use of seat belts.
For these reasons, I find that it has not been established that
the violation herein resulted from REB’s unwarrantable failure.

 D.   Penalty

 I find that Petitioner has not established that REB’s

negligence herein was more than moderate. I find that the driver
of the truck, who was not wearing a seat belt, could have been
seriously injured should the truck have been significantly jolted
upon hitting another object, or should it have overturned. I
thus find that the violation herein was more than a moderate
level of gravity. Taking into account the balance of the factors
set forth in Section 110(i) of the Act, I find that a penalty of
$700 is appropriate for this violation.

V. Order No. 4327622, and Docket Nos. CENT 95-239-M and
CENT 95-240-M.

 A.   Violation of 30 C.F.R. § 56.14131(g)

 On August 16, 1994, Enochs, in the presence of King,

observed a Case bulldozer in operation at the top of the
highwall. According to Enochs, the bulldozer was approaching him
at an angle of approximately 45 degrees. Enochs estimated that
when he was about thirty or forty feet away from the bulldozer,

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he noticed that the driver, Bill Jacobs, was not wearing a seat
belt. He said that it was “obvious” that the operator did not
have a seat belt on (Tr. 130). Enochs issued an Order alleging a
violation of 30 C.F.R. § 56.14130(g) which, in essence, requires
the wearing of seat belts.

 Harold Miller, the lead man at the time, testified that he

was in the area when Enochs told Jacobs to put his seatbelt on.
Miller indicated that he could not tell if Jacobs was wearing a
seat belt. On cross examination Enochs indicated that a
photograph of the bulldozer in question taken subsequent to the
date of his inspection, (Defendant’s Ex. 8) depicts a bulldozer
at the approximate angle that the bulldozer was at when cited by
him. He was unable to tell by looking at this photograph if the
driver was wearing a seat belt. Enochs was shown two other
pictures of a driver sitting in the bulldozer at issue
(Defendant’s Exs. 7, and 28) and he was not able to tell if the
driver was wearing a seat belt.

 REB has not offered any eyewitness testimony to directly

impeach or contradict Enochs’ observation that Jacobs was not
wearing a seat belt. Specifically, Miller’s testimony that he
could not tell if Jacobs was wearing a belt when Enochs told the
latter to put his belt on, is insufficient to contradict Enochs’
testimony. The record does not establish that Miller observed
Jacobs from the same distance and direction as observed by
Enochs. Also, although Enochs could not tell whether the driver
depicted in REB’s photographs was wearing a seat belt, there is
no evidence that these photographs accurately depict the view
that Enochs would have seen from the specific vantage point that
he had on August 16, 1994, when he saw the bulldozer at issue and
cited it. Accordingly, I accept Enochs’ testimony, and find that
Jacobs was not wearing a seat belt when cited. Hence, I find
that REB did violate Section 56.14130(g), supra.

 B.   Significant and Substantial

 According to Enochs, the violation should be characterized

as significant and substantial. He pointed out that he observed
tracks within five feet of the edge of the highwall. According
to Enochs, the highwall was eighty feet above the next level.
Enochs indicated that in normal operations, at times the blade of
the bulldozer “will catch on a hard rock area, seam or something
like that, and it shakes, shake the machine and the operator
pretty bad, substantially, and it could throw him off the
machine. You know, cause him to lose control” (sic) (Tr. 131).
Enochs also opined that the bulldozer could accidentally run over
the highwall, as the berm in the area varied between knee to
waist level, and consisted only of overburden material.

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 On the other hand, on cross examination, it was elicited

from Enochs that the bulldozer as seen by him was not operating
“at a high rate of speed” (Tr. 146). Further, on cross
examination Enochs was unable to state how often bulldozers have
been driven off a highball each year.

 Miller explained that in stripping the overburden “. . . we

stay at least ten foot away from it [the highwall] with any
dozer” (sic.) (Tr. 185). Berry explained that in normal
operations the overburden is cleared in stages working from top
down. He indicated that in normal operations, the closest the
bulldozer would get at the edge of a highwall was thirty to forty
feet (Defendant’s Ex. 33). He opined that the tracks observed by
Enochs might have been placed by the bulldozer during the
clearing of the overburden, when those tracks would have been
located thirty to forty feet from the edge of the highwall.
Enochs did not explain how, in normal operations, the bulldozer
would go within five feet of the edge of the top of an existing
highwall.2 I thus find that it has not been established that in
normal operations the bulldozer would go within five feet of the
edge of the top of an existing highwall.

 Based upon all of the above, I conclude that it has not been

established that there was a reasonable likelihood of an injury
producing event, and thus it has not been established that the
violation was significant and substantial.

 C.   Unwarrantable Failure

      1.   Summary of the Testimony

  Enochs testified that Jacobs had told him on the date the

Citation was issued that he sometimes wears a seat belt, and
sometimes does not. In contemporaneous notes taken by Enochs, he
indicated that Jacobs stated that “no one makes a big deal about
it”. (Defendant’s Ex. 32). I do not assign much probative
weight to this testimony, as it is heresay and thus inherently
unreliable. The declarant did not testify, and accordingly was
not present in court to be cross examined.

 Dale St. Laurent, an MSHA investigator, interviewed Jacobs

who told him that REB did not have any seat belt policy, and that

 2
  On rebuttal, Enochs indicated that when he arrived at the

top of the highwall, bulldozers were backing out onto a thirty
foot area that had been stripped. However, he did not testify
specifically how close these vehicles were to the edge of the
highwall.

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no one have ever made him wear a seat belt. St. Laurent
testified that he also interviewed a Mr. Yates, a serviceman, who
told him that in the year prior to the inspection “he had never
seen either of those two dozer operators wear a seat belt ... .
He doesn’t remember anyone ever yelling at Mr. Berry or
Mr. Miller or anyone ever yelling at anybody to put seat belts
on” (Tr. 245). St. Laurent indicated that Yates told him that
there wasn’t any policy regarding seat belts and that one told
him to wear seat belts (Tr. 162). According to St. Laurent,
Yates told him that Jacobs had told him (Yates) that Miller and
Berry never told him to wear a seat belt.

 According to Enochs, Miller who was the supervisor on the

site, was present when the bulldozer was cited, but did not take
any corrective action. Enochs indicated that the fact that
Jacobs was not wearing a seat belt was obvious as the cab was
open.

 Miller indicated that he arrived at work on August 16, at

6:00 a.m. and left the site at 7:00 a.m. to get some parts,
returning about 9:00 a.m. He testified that he had been on the
site for about ten minutes when he saw Enochs talking to Jacobs.
He indicated that when Enochs came up to Jacobs and told him to
put a seat belt on, he (Miller) could not tell whether Jacobs
was wearing a seat belt. I observed Miller’s testimony and found
him credible in these regards. Enochs indicated on cross
examination, that he was thirty to forty feet away from Jacobs
when he observed that Jacobs did not have a seat belt on, and
that Miller was approximately ten yards further back. Within his
context I find that there is no evidence that Miller knew that
Jacobs had not been wearing a seat belt when cited.

 Miller indicated that subsequent to September 1995, he has

been the supervisor at the quarry but that in August of 1994, he
was only the “lead man” (Tr. 175). He stated that in this
capacity it was his responsibility to operate equipment, and get
the dirt stripped. He said that in general, his supervisor, Ray
King, told him what to do on the site, and he in turn passed this
information on to the other equipment operators. He said that he
did not have any authority to punish the men, and did not have
any authority to hire or fire. He stated that he was never told
what to do regarding the punishment to be given the men. He
indicated that he did not tell the men what equipment to use.

      2.   Discussion

 There is no evidence that King, the quarry supervisor, or

Miller, had notice or acknowledge that Jacobs was not wearing a
seat belt. There is no evidence that King, prior to Enochs’

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issuance of the Order at issue, was in any position to have
observed that Jacobs was not wearing a belt. Having observed
Miller’s demeanor, I find his testimony credible, that on
August 16, he had only been at the site for approximately ten
minutes prior to Enochs’ issuance of the Order, and had not
observed Jacobs being without a belt. When Enochs observed
Jacobs being without a belt he was 10 yards closer to Jacobs than
Miller. There is no evidence that, Miller was in any position to
have observed that Jacobs was not wearing a seat belt. I note
Enochs’ testimony that King had received a special warning, and
training from MSHA regarding the need to ensure the compliance at
the site with the seat belt standard. However, this testimony
was not based upon Enochs personal knowledge, but rather was
based upon statements of another inspector made to him. Because
of the inherently unreliable nature of heresay testimony I do not
assign any probative weight to Enochs’ heresay testimony, in
evaluating the critical issue of REB’s unwarrantable failure.
For the same reason, I do not assign any probative weight to
Enochs’ and St. Laurent’s testimony about out of court statements
made by Jacobs and Yates concerning the attitude of their
supervisors regarding the use of seat belts, and the policy of
REB in this area. On the other hand, I find, as discussed above,
(IV(c) infra), that the credible evidence establishes that REB
had indeed posted in its office information regarding the
requirement for its employees to wear seat belts while on the
job. Miller indicated that prior to the date of the Order at
issue, in his capacity as lead-man, he had not enforced seat belt
rules as he did not want to be hard on the men. However, the
record does not establish that Miller, on the date the Order at
issue was issued, had any official duties or responsibilies
toward enforcing compliance with the mandatory seat belt
standard. Within this context, I find that it has not been
established that the violation was the result of REB’s
unwarrantable failure.

 D.   Penalty

 I find that REBs negligence was no more than moderate.

I find that a penalty of $500 is appropriate.

 E.   Section 110(c) violations.   Docket Nos. CENT 95-239-M,
      and CENT 95-240-M)

      1.   The Legal Standard to be Applied

 Section 110(c) of the Act subjects certain individuals to

civil penalties if the Secretary can sustain his burden of
proving that: (1) a corporate operator committed a violation of a
mandatory health or safety standard (or an order issued under the

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Act); (2) the individual was an officer, director, or agent of
the corporate operator; and (3) the individual “knowingly
authorized, ordered, or carried out” the violation.

 A violation by the corporate operator must be established

and such violation must be proved in the proceeding against the
individuals. Kenny Richardson, 3 FMSHRC 8, 10 (January, 1981),
aff’d sub nom. Richardson v. Secretary of Labor, 689 F.2d 632
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). The
Secretary also has the burden of proving that the person charged
is an agent of the corporate operator. Under Section 3(e) of the
Act “agent” is defined as “any person charged with responsibility
for the operation of all or part of a coal or other mine, or the
supervision of miners in a coal or other mine.”

 Finally, the Secretary must prove that the agent “knowingly

authorized, ordered or carried out” the violation. The
appropriate legal inquiry in this regard is whether the corporate
agent “knew or had reason to know” of the violative condition.
Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), citing Kenny
Richardson, 3 FMSHRC 8, 16 (January 1981). In Kenny Richardson,
the Commission stated:

 If a person in a position to protect employee safety
 and health fails to act on the basis of information
 that gives him knowledge or reason to know of the
 existence of a violative condition, he has acted
 knowingly and in a manner contrary to the remedial
 nature of the statute. 3 FMSHRC supra, at 16.

 In order to establish section 110(c) liability, the

Secretary must prove only that the individuals knowingly acted,
not that the individuals knowingly violated the law. Beth Energy
Mines, Inc., 14 FMSHRC 1232, 1245 (August, 1992). In Roy Glenn,
6 FMSHRC 1583 (July, 1984), the Commission held, however, that
something more than the possibility of an underlying violation
must be shown to establish “reason to know”. 6 FMSHRC at 1587-8.
Moreover, a “knowing” violation requires proof of aggravated
conduct and not merely ordinary negligence. Wyoming Fuel Co.,
16 FMSHRC 1618, 1630 (August, 1994).

           a.   Miller

 Miller testified that on the date in issue, he was only a

“lead man” (Tr. 175), and did not become the quarry supervisor
until September 1995. He was asked whether he was Jacob’s
supervisor and he answered as follows. “I guess you can call me
that, yes, sir” (Tr. 176). Miller indicated that he did verbally
discipline the men working on the top of the highwall. Also, he

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indicated that it was his responsibility, in addition to
operating the equipment on the top of the highwall, to transmit
to the men the directions he had received from his supervisor,
(King), regarding the tasks to be performed on the site. He
indicated that he did not have the authority to hire and fire,
was not told what to do regarding disciplining the men at the
site, and did not assign equipment to the men. Petitioner has
not rebutted or impeached this testimony.

 I find that Petitioner has failed to adduce sufficient

evidence to establish that Miller had any significant
responsibility for the operation at the highwall, or that he
supervised the other miners working at that site. There is no
evidence whether he was paid as an hourly employee, or as part of
management. There is no evidence regarding any description of
his official duties and responsibilities. There is no evidence
that he had any direct responsibility for controlling the acts of
the miners on the highwall, that he had the authority to initiate
the assignment to them of their tasks, that he was responsible
for their performance and duties, that he had the responsibility
to discipline them if they did not perform their duties properly,
that he was responsible for the safety of the miners and their
operation, or that he was responsible to ensure that the
mandatory safety standards were complied with by the men at the
highwall. Within this context, I conclude that the Secretary has
not met his burden in establishing that Miller was an “agent”.
Accordingly, I find that Petitioner has not established that
Miller violated Section 110(c) of the Act.

           b.   Berry

 Berry was the owner, principal stockholder, and President of

REB on the date in issue. He thus was an officer and came within
the purview of Section 110(c), supra. It is incumbent upon the
Secretary to establish that Berry knew or had reason to know of
the violative condition (Roy Glenn, supra.) There is no evidence
that he had any information that gave him any knowledge or reason
to know that Jacob was not wearing a seat belt. (See, Kenny
Richardson, supra at 16). For the reasons discussed above,
(IV (C) infra,) I find that as President, Berry’s policy toward
the wearing of seat belts was manifested by the posting of
material informing employees of their responsibility to wear
seat belts.3 I observed Berry’s demeanor. I find his testimony

 3
  Berry’s testimony that REB has employees sign its safety

policy (Defendant’s Ex. 28) when they start to work for REB, was
not impeached or contradicted. I therefore accept this
testimony. I note that this policy requires that seat belts “be

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credible that although he personally feels that a person has the
right not to wear a seat belt, he does not condone not wearing a
seat belt. I also accept his testimony that on five or six
different occasions when he saw employees not wearing a seat
belt, he told them to put on a seat belt and warned them that
they would be sent home the next time they were found to be
without a seat belt.4

 Within the context of the above evidence I find that it has

not been established that Berry knew or reasonably should have
known that Jacob was not wearing a seatbelt when cited. Nor is
there sufficient evidence of aggravated conduct on his part. For
these reasons, the 110(c) action against him shall be dismissed.

VI. Order No. 4327625.

  A.   Violation of Section 56.14130(g), supra.

 Approximately one hour after Enochs had cited the bulldozer

operator for not wearing a seat belt, he observed Jim Farrish
operating a John Deere bulldozer, but not wearing a seat belt.
According to Enochs he was at a forty five degree angle facing
the bulldozer. Enochs indicated that when he was sixty to
seventy feet away from Farrish, and approximately six to eight
feet above the ground that Farrish’s bulldozer was being operated
on, he saw that Farrish was not wearing a seat belt. Enochs
issued an Order alleging a violation of Section 56.14130(g)
supra, which requires the wearing of seat belts.

 Miller indicated that he spoke with Farrish later on that

afternoon, and Farrish informed him that he had the seat belt
on, but that he undid it when he saw Enochs approach him. I find
this heresay testimony inherently unreliable, and insufficient to
rebut or contradict Enochs’ testimony regarding his observations.

worn at all times of vehicle operation” (Defendant’s Ex. 28).
4
REB’s official policy provides that the first offence of a
failure to comply with the policy to wear a seat belt, will
result in “remainder of day of violation off without pay”
(Defendant’s Ex. 28). Berry’s action in warning, but not
discipline the employees he had caught not wearing a seat belt
might lead to an inference that REB has been unduly lax in not
discipline employees for not wearing a seat belt. However, since
Berry did issue a warning, I cannot conclude that Berry’s conduct
is to be equated with aggravated conduct, nor can it be the basis
of a Section 110(c) action.

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There is no other evidence of record to contradict Enochs’
testimony regarding his observations. I thus find that REB did
violate Section 56.14130(g) supra, as alleged.

 B.   Significant and Substantial

 According to Enochs, the bulldozer in question was being

used to cut a ramp, and was being operated down an incline. He
said that, when cited, Farrish was “very close to a steep
incline” (Tr. 229). He described the area as consisting of
“unconsolidated material, very steep drop off” (sic) (Tr. 230).
Enochs opined that in the event the bulldozer would travel over
the “hill” the operator would definitely be severely injured
(Tr. 231).

 Respondent did not offer any evidence to impeach Enochs’

testimony with regard to his observation of the terrain, and his
opinions regarding the likelihood of an injury producing event,
and the seriousness of any resulting injury. I thus find,
based on the testimony of Enochs, that an injury producing event
was likely to have occurred, and that there was a reasonable
likelihood that the driver would have been injured as he was not
wearing a seat belt. There was also no contradiction or
impeachment of Enochs’ testimony that the resulting injury would
reasonably likely have been permanently disabling. I thus find
that it has been established that the violation was significant
and substantial (See Mathies, supra).

 C.   Unwarrantable Failure

 Enochs indicated that the instant Order was the fourth

Citation/Order that he had issued that morning involving not
wearing a seat belt. He indicated that the violative condition
was obvious, and that no corrective action was being taken by
management. Petitioner did not adduce any evidence that,
subsequent the issuance of the other seat belt violations by
Enochs, King had any opportunity to check whether other employees
were wearing their seat belts. There is no evidence regarding
King’s actions subsequent to the first set of seat belt citations
and orders issued. There is no evidence regarding his activities
between the time the first Citations/Orders were issued, and the
issuance of the instant order.

 According to St. Laurent, Yates, had told him that in the

year prior to the instant inspection he never saw the two
bulldozer operators wearing their seat belts. St. Laurent
testified that he asked Yates if efforts were made to make
employees wear seat belts, and Yates told him that when he was
hired, no one told him to wear a seat belt. St. Laurent

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Page 17

testified that Yates also told him that he did not recall anyone
yelling at anyone else to put a seat belt on. St. Laurent
testified that he asked a Mr. Cunningham, a plant operator who
also operated equipment, about seat belts and the latter told him
that “what the normal posture was there is that if a guy wanted
to wear them, fine, and if he didn’t then that was okay, too”
(Tr. 246).

 For the reasons stated above, (V(c) infra), I find the

heresay testimony of St. Laurent regarding what Yates and
Cunningham told him to be inherently unreliable. I thus do not
assign it any probative value in evaluating the critical issue of
REB’s unwarrantable failure, if any. I note that neither Yates
nor Cunningham was called by Petitioner to testify. Within the
above context, I find that it has not been established that this
violation was as the result of REB’s unwarrantable failure. I
find that a penalty of $500 is appropriate.

   D. 110(c) violations

      1.        Miller

 For essentially the reasons set forth above, (V(E)(a)

infra), I find that it has not been established that Miller was
liable under Section 110(c) of the Act, and hence that action
against him shall be dismissed.

           2.      Berry

 I find that the heresay testimony of St. Laurent with

regard to out of court statements by Yates and Cunningham is
insufficient to establish Berry’s liability under Section 110(c)
of the Act. Further, for the reasons set forth above, (V(E)(b)
infra), I find that Petitioner has failed to establish any
liability on Berry’s part under Section 110(c) of the Act.
Therefore that action against him shall be dismissed.

VII. Citation No. 4327624

 On August 6, Enochs observed a track mounted trackhoe

operating in the stripping area. He said that this equipment is
used for excavating dirt, is track mounted, and rotates and
revolves. He said that the front and side window on the right
side was “cracked in several places” (Tr. 217), and that the
driver’s vision would be obscured. He described the breakage as
being “pretty extensive throughout the whole panel” (Tr. 221).

 Enochs issued a Citation alleging a violation of 30 C.F.R.

§ 56.14103(a) supra, which provides, as pertinent, that if

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windows are provided on self-propelled mobile equipment, “[t]he
windows shall be maintained to provide visibility for safe
operation.”

 REB did not offer any evidence to contradict Enochs’

testimony regarding his observations. I therefore accept Enochs’
testimony, and find that REB did violate Section 56.14103(a)
supra. I find that a penalty of $50 is appropriate.

VIII. Order No. 4327626.

 On August 16, Enochs observed a Case backhoe being operated.

According to Enochs it was being used as a loader, as it had a
bucket on the front. He said that King had told him that it was
being used to clean spilled material. Enochs said the backhoe
was equipped with wheels, had a loader bucket in front, and a
backhoe bucket in the back. He opined that it was a combination
loader/backhoe. According to Enochs, the vehicle was not
provided with a seat belt.

 On cross examination Enochs indicated that a wheel loader is

different than a backhoe, and that the vehicle in question was in
use when he inspected it.

 Enochs issued an Order alleging a violation of 30 C.F.R

§ 56.14130(a)(3) which provides, in essence, that seat belts
shall be installed on “wheel loaders and wheel tractors”.

 It is incumbent upon Petitioner to establish that, as

commonly understood in the mining industry, a reasonably
prudent person familiar with the industry, the terms “wheel
loaders” or “wheel tractors” encompass the vehicle in question.
Enochs’ opinion that the vehicle was a combination loader/backhoe
is not accorded much weight, as he did not set forth in detail
the basis for his opinion. Further, aside from this opinion
Petitioner has not proffered any evidence as to how the terms
“wheel loader” or wheel tractor” are commonly understood in the
mining industry. For these reasons, I conclude that Petitioner
has failed to meet his burden, and that this Order shall be
dismissed.

IX. Order No. 4327628.

  Enochs indicated that on August 16, at about 12:00 p.m., he

was on a walkway which was approximately ten feet above where a
loader was being operated. Enochs noted that his point of
observation was approximately twenty feet removed from the
loader. Enochs testified that he saw the driver, Ron Alexander,
drive under him. Enochs said that he saw Alexander’s hands on

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the loader’s controls. According to Enochs, Alexander then
turned off the loader, did not unbuckle his seat belt, and
climbed out of the loader. According to Enochs, the loader was
being used to load material from a stock pile. Enochs issued an
Order alleging a violation of Section 56.14130(a)(3) supra.

 Based upon Enochs’ testimony that I find credible, and that

was not contradicted by any other eyewitness, I conclude that
Alexander was not wearing a seat belt when cited by Enochs.
However, there is no evidence in the record that a seat belt had
not been installed on this vehicle. Accordingly, I find that it
has not been established that REB was in violation of Section
56.14130(a)(3), which provides that seat belts shall be installed
on loaders. Hence, Order No. 4327628 is to be dismissed.

X. Order No. 4327631.

  A.   Violation of 30 C.F.R. § 56.14107(a)

 According to Enochs, on August 16, 1994, he observed that

there was no guard at the tail pulley of the radial stacker
conveyor belt. According to Enochs, the belt was in operation,
and the pinch point of the tail pulley which was not guarded, was
approximately two feet above the ground. Enochs issued an Order
alleging a violation of 30 C.F.R. § 56.14107(a) which, as
pertinent, provides that “[m]oving machine parts shall be guarded
to protect persons from contacting gears, . . . chains, drive,
head, tail, and takeup pulleys, . . . and similar moving parts
that can cause injury.”

 REB did not proffer the testimony of eyewitnesses to

contradict or impeach the observations of Enochs. REB’s defense
appears to be based upon 30 C.F.R. § 56.14107(b) which provides
that guards are not required where the exposed moving parts “are
at least seven feet away from walking or working surfaces”. In
this connection, REB elicited from Enochs, on cross-examination,
that the unguarded tail pulley was not located in the normal path
of travel. Berry indicated that there was no reason to go to the
cited area, except to perform maintenance on the belt. In that
event, the belt would not be in operation.

 I note Enochs’ testimony that there was nothing to restrict

access to the unguarded tail pulley which was located only two
feet above the ground. The ground was the surface upon which men
can walk or work. Accordingly, the terms of the exception set
forth in Section 56.14107(b) supra, has not been met. I thus
find that REB did violate Section 56.14107(a) supra.

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  B.   Significant and Substantial

 In essence, Enochs concluded that the violation was

significant and substantial, inasmuch as the pinch point was
exposed, and there were no barriers or signs warning persons of
this condition. Enochs opined that a person could easily get
caught up in the self-cleaning pulley which was not smooth.
According to Enochs, the pulley was located behind an exit door,
and was in a “natural traffic walkway area” (Tr. 277). However,
he did not elaborate with sufficient specificity the basis for
this opinion. Enochs opined that should an injury occur as a
result of the violative condition, it would be at least
permanently disabling.

 On the other hand, Berry opined that there was no reason to

walk in the cited area. Berry indicated that, in exiting the
shop, the path taken to other parts of the plant would not place
a person within twenty five, or thirty feet of the pulley. He
also was not aware of any injuries at this site.

 Within the context of this evidence, I conclude that it has

not been established that an injury producing event was likely to
have occurred. Accordingly, I find that it has not been
established that the violation was significant and substantial.

  C.   Unwarrantable Failure

 Enochs testified, in essence, that his conclusion that the

violation was as a result of REB’s unwarrantable failure, was
based upon the fact that King was given a handbook by MSHA
setting forth the need for guarding. For the reasons set forth
above, (IV(c) infra), I do not assign any probative value to this
heresay testimony. I thus conclude that it has not been
established that the violation herein was as a result of REB’s
unwarrantable failure.

  D.   Penalty.

 The tail pulley in question was self-cleaning, and was

located only two feet above the ground. REB did not contradict
Enochs’ testimony that the unguarded self-cleaning pulley can
grab a person’s clothing, and wrap a person up in the tail
pulley. I thus conclude that the gravity of the violation was
relatively high. I find that a penalty of $500 is appropriate
for this violation.

XI. Citation No. 4327632

  On August 16, Enochs observed that there was an unguarded

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V-belt drive on the simplicity belt vibratory screen. He
indicated that the V-belt drive was approximately three feet
above the walkway. The pulley itself was located about twenty
feet off the ground. Enochs issued a Citation alleging a
violation of Section 56.14107(a) supra.

 REB did not offer the testimony of any witness to impeach or

contradict Enochs’ observations. Accordingly, I find that it has
been established that the drive belt was not guarded, and that
someone could be caught in the belt drive. I find that the
unguarded pinch point was located three feet above the walkway.
Although the pulley was twenty feet above the ground, I find that
the exception set forth in Section 56.14107(b) supra, does not
apply, as the unguarded pinch point was three feet above a
surface where persons can walk. I thus find that it has been
established that REB did violate Section 56.14107(a) supra. I
find that a penalty of $50 is appropriate.

XII. Citation No. 4327633.

  Enochs observed that the V-belt drive of a thirty horse

power vibratory shaker drive belt, was not guarded. He indicated
that the belt machine and pulley were located along the walkway,
but probably fifteen feet off the ground. REB did not impeach or
contradict his testimony. I find, consistent with the discussion
above (XI infra,) regarding Citation No. 4327632, that REB did
violate Section 56.14107(a) supra, and that the exception set
forth in Section 56.14107(b) supra, does not apply. I find that
a penalty of $50 is appropriate for this violation.

                           ORDER

 It is ORDERED as follows: (1) Order Nos. 4327626, and

4327628, and Citation No. 4327635, and Docket Nos. CENT 95-239
and 95-240 shall be DISMISSED; (2) Citation No. 4327776 and
Order Nos. 4327622 and 4327631 shall be amended to Section 104(a)
citations, and Order No. 4327625 shall be amended to a Section
104(a) Citation that is significant and substantial; and (3) that
Respondent shall, within 30 days of this decision pay a total
civil penalty of $2,400.

                            Avram Weisberger
                            Administrative Law Judge


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Distribution:

Daniel J. Haupt, Conference & Litigation Representative,
Mine Safety & Health Administration, U.S. Department of Labor,
1100 Commerce Street R4C50, Dallas, TX 75242-04299 (Certified
Mail)

Jack Ostrander, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 S. Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)

James E. Crouch, Esq., Cypert, Crouch, Clark & Harwell,
P.O. Box 1400, Springdale, AR 72765 (Certified Mail)

/ml

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