Brian Lackey Concrete

Plain-English summary

Brian Lackey Concrete conceded that 17 violations occurred at its small placer sand and gravel mine, leaving the amount of the penalties as the only issue. The parties stipulated that three violations were non-serious, 14 were serious, negligence was moderate, and the operator promptly abated the conditions. Judge Michael A. Lasher, Jr. also considered the operator's very small size, financial condition, closure, and the owner's medical circumstances, and assessed $5 for each violation. All 17 citations were affirmed, for a total penalty of $85.

Decision snapshot

• Governing provision: 30 U.S.C. § 820(a)
• Outcome: All 17 citations were affirmed, with total penalties of $85.
• Key point: The judge reduced the individual penalties to $5 after considering the small operator's prompt abatement, moderate negligence, and severe economic circumstances.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. BRIAN LACKEY
DDATE:
19870512
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 85-175-M
PETITIONER A.C. No. 04-04118-05501

      v.                           Docket No. WEST 86-39-M
                                   A.C. No. 04-04118-05502

BRIAN LACKEY CONCRETE,
RESPONDENT Lackey Concrete Mine

Appearances: Leroy Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles,
California, for Petitioner;
Mr. Brian Lackey, Brian Lackey Concrete, Needles,
California, pro se.

                               DECISION

Before: Judge Lasher

 These proceedings were initiated by the filing of proposals

for assessment of civil penalties by the Secretary of Labor
pursuant to Section 110(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. Section 820(a) (1977) (herein the "Act").
A hearing on the merits was held in Needles, California, on April
13, 1987.

 Respondent concedes that the 17 violations (issued on June

26, 1985, by MSHA Inspector Ronald Barri) charged in the two
dockets (16 in Docket 85Ä175-M and 1 in Docket 86-39-M) occurred.
The sole issue was the amount of appropriate penalties. The
parties waived filing of post-hearing briefs.

 The amount of a penalty should relate to the degree of a

mine operator's culpability in terms of willfulness or
negligence, the seriousness of a violation, the business size of
the operator, and the number and nature of violations previously
discovered at the mine involved. Mitigating factors include the
operator's good faith in abating violative conditions and the
fact that a significantly adverse effect on the operator's
ability to continue in business would result by assessment of
penalties at a particular monetary level. Factors other than the
above-mentioned six criteria which are expressly provided in the
Act are not precluded from consideration either to increase or
reduce the amount of penalty otherwise warranted.

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Based on stipulations reached by the parties at the outset of the
hearing, it is found that this is a small mine operator with no
history of violations during the 24Ämonth period prior to the
issuance of those involved in these two dockets. The Secretary
agreed that Respondent proceeded in good faith to promptly abate
the 17 violations upon notification thereof. The parties agreed
that all violations were committed as a result of but a moderate
degree of negligence on Respondent's part. As to the gravity of
the violations, three (Citations numbered 2344842, 2344843, and
2344876) were stipulated as being "non-serious" in nature; the
remaining 14 violations were agreed to be serious which agreement
includes the violation charged in Citation No. 2344874 which is
the only citation involved in Docket No. WEST 86Ä39-M.

 With respect to the remaining mandatory penalty assessment

criterion provided in the Act, the Respondent established the
ultimate economic consideration, that is, Respondent, a sole
proprietorship owned and operated by Brian Lackey, showed that he
had gone out of business for economic reasons. Mr. Lackey, age
46, had operated this very small (two employees) placer (sand and
gravel) mine located near Needles, California, for approximately
20 years. Approximately two months prior to the hearing Mr.
Lackey assigned his interest in the business to one Quinto
Polidori in payment of his indebtedness (approximately
$28,000.00) for such items as powder and cement. Mr. Lackey also
testified that he owns no other businesses and has no other
source of income at the present time. Respondent testified under
oath that all his remaining assets have a total value of
approximately $5,000.00 while his debts somewhat exceed that sum.
In early March 1987, Mr. Lackey underwent surgery for removal of
a lung and has been advised not to work for one year for medical
reasons. Part of his indebtedness is for medical expenses. Mr.
Lackey stated his intention to leave California to return to
Illinois to live with family for the immediate future. In view of
this information revealed in sworn, unrebutted testimony, it is
determined that only very modest penalties ($5.00 for each
violation) are warranted.

                             ORDER

 The 17 citations hereinabove discussed in the above two

dockets are affirmed in all respects.

 Respondent shall pay the Secretary of Labor within 30 days

from the date hereof the 17 penalties hereinabove assessed in the
total sum of $85.00.

                                Michael A. Lasher, Jr.
                                Administrative Law Judge