FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE
OF ADMINISTRATIVE LAW JUDGES
Washington,
D.C. 20004-1720
Telephone:
(202) 577-6809
Fax:
(202) 434-9949
February 1, 2013
|
SECRETARY OF LABOR, |
: : : : : : : : : : : : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS SE 2009-402-M A.C. No. 09-01036-179032 Docket No. SE 2009-553- M A.C. No. 09-01036-184807 Docket No. SE 2009-554-M A.C. No. 09-01013-184807 Docket No. SE 2010-849-M AC No. 09-01036-219258 Docket No. SE 2010-850-M A.C. No. 09-01036-219259 Mine: Mize Granite Quarries |
| Appearances: | Charna C. Hollingsworth-Malone, Esq., Sophia E. Haynes, Esq., and Angela R. Donaldson, Esq.,Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, on behalf of the Secretary of Labor; Robert W. Mize, III, President, pro se, for the Respondents |
| Before: | Judge Rae |
DECISION
ON REMAND
This case came before me on
consolidated civil penalty proceedings on petitions for penalties filed by the
Secretary of Labor (“Secretary”) against Mize Granite Quarries (“MGQ”), Robert
W. Mize, III (“Mize”) and Clayborn Lewis (“Lewis”) pursuant
to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et se . (2006) (“Mine Act” or “Act”) and 30
U.S.C. §820(c) of the Act, respectively.
Of the eleven proposed penalties against MGQ, I reduced five, affirmed
four as proposed and vacated two. Of the
four penalties proposed against Mize and Lewis individually, I reduced three
and dismissed one. 33 FMSHRC 886, 914-18 (Apr.
I.
Statement
of the Case
On a petition for discretionary
review, the Commission granted review only as to the issue of whether the basis
for substantially reducing the penalties proposed against MGQ and for
substantially reducing or dismissing the penalties proposed against Mize and
Lewis individually were adequately explained.
In a decision issued by the Commission dated August 7, 2012, my determination
regarding the eleven violations against MGQ was upheld. The Commission remanded for further analysis
the penalties I assessed against Mize and Lewis under §110(c) of the Act.[1] 34 FMSHRC 1760 (Aug.
2012). Specifically, the Commission determined that with respect to Mize, I
took into consideration a double payment situation as if Mize were the owner of
a partnership or an individual proprietorship rather than a corporation when
determining the amount of the penalties imposed upon him. I am directed to reevaluate these penalties
solely on his personal financial status.
The Commission also directed that I provide Lewis
with the opportunity to submit financial information for my consideration. I issued an Order dated March 4, 2011,
to reopen the proceedings for the submission of financial information from the
parties. The reason for doing so was
that neither Mize nor Lewis presented this information at the hearing. At the time my decision was issued, Mize had
responded on his own behalf but, despite representing Lewis as well in this
matter, submitted nothing on Lewis’ behalf.
The Commission noted in its remand that my Order was sent to Lewis at
his work address at Mize Granite Quarries.
The Commission directed that I obtain Lewis’ home address and issue a
second order to him stated in plain and easily understood language, requesting
his financial information and an affidavit or declaration of his financial
position. Should he fail to respond, I
may assume that the imposition of the proposed penalties will not adversely
affect his financial obligations. 34
FMSHRC 1760, 1766. (Aug. 2012).
On December 4, 2012, I issued an
Order to Clayborn Lewis addressed to him at personal
address, his work address and to Robert W. Mize, III, as his
representative. My order informed Lewis
of the proposed penalties assessed against him, that I must determine what he
can afford to pay, that I needed his income information and any other
information he wished to submit for me to consider in assessing the appropriate
amount of penalties against him. He was also informed that if he failed to
respond, I could assume the fine proposed by the Secretary is appropriate and
that he can afford to pay it. He was
ordered to respond within 20 days of receipt of my Order. Mr. Lewis, to date, has not responded to my
Order after more than 50 days since its issuance.
I address herein only those issues
which I have been ordered by the Commission to reevaluate with respect to the
penalties imposed. pursuant to Section
110(c).
II.
Findings
of Fact and Conclusions of Law
A.
Penalties under Section 110(c) of the Act
An individual may be personally
liable for penalties when a corporate agent in a
position
to protect employee safety and health has acted ‘knowingly,’ in violation of
section 110(c) when, based upon facts available to him, he either knew or had
reason to know that a violative condition or conduct
would occur, but he failed to take appropriate preventative steps.” “A person
has reason to know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact in question or to
infer its existence.” 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 68 F. 2d 632 (6 Cir. 1982), Kenny Richardson , cert denied, 461 U.S. 928 (1983). Secretary of Labor v. Roy Glenn Agent of
Climax Molybdenum Co., 6 FMRSHR 1583, 1586 (July 1984). The level of proof
required of the Secretary to sustain personal liability is more than the
assertion that, at the time of assignment of a specific task, the task could
have been performed in either a safe or unsafe manner and the agent failed to
prevent the miner from employing the unsafe one. The agent has the obligation
to prevent those hazards which he or she has reason to know will occur. Roy Glenn at 1588.
Section 110(c) of the Act, which
provides in relevant part, that whenever a corporate operator violates a
mandatory health or safety standard or knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be subject to the same
civil penalties, fines, and imprisonment that may be imposed upon a person
under subsections (a) and (d). Section 110(i) requires the Commission to
consider six criteria in assessing appropriate civil penalties: [1] the
operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after notification
of a violation. 30 U.S.C. §820(i).
Findings of fact on each of these
statutory criteria must be made. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000.) Such findings not only provide the required
notice as to the basis upon which a particular penalty is assessed, but also
provide the Commission and the courts, in their review capacities, with the
necessary foundation upon which to base a determination as to whether the
penalties assessed by the judge are appropriate, excessive, or insufficient. Sellersburg at 292-93. With respect to individual
respondents under section 110(i), Commission judges must make findings on each
of the criteria as they apply to individuals. Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (February 1997). The
“relevant inquiry with respect to the criterion regarding the effect on the
operator’s ability to continue in business, as applied to an individual, is
whether the penalty will affect the individual’s ability to meet his financial
obligations . . . [w]ith respect to the ‘size’ criterion,
. . . as applied to an individual, the relevant inquiry is whether the penalty
is appropriate in light of the individual’s income and net worth.” Ambrosia Coal and Construction Co., 18
FMSHRC 819, 824 (May 1997) (Ambrosia I).The
Commission further held that, if an individual is married, the judge should
consider the individual’s share of the household net worth, income, and
expenses. Ambrosia Coal &
Construction Co., 19 FMSHRC 381, 385 (April1998) (Ambrosia II).
The Commission has also stated with
respect to the individual liability that an individual should not bear the
brunt of a corporate violation nor should “inordinately high penalties” be
assessed against an individual. Sunny
Ridge at 272.
B.
Robert
W. Mize
The Secretary proposed penalties in the amount of
$17,600 for four violations against Mize. Taking into consideration the 110(i)
factors, I make the following findings with regard to the individual penalties
assessed against Robert Mize: 1) Mize has no history of previous violations
being assessed against him. The Secretary stipulated that the mine has not had
any injuries or lost workdays and was the recipient of two safety awards; 2)
Mize derives his income from MGQ which is a small operation. I have reviewed the
tax returns for the business for years 2007 and 2009 and found the assessed
penalties against the corporation to be disproportionate to its size and
income. Likewise, having reviewed Mize’s individual income tax returns and his
personal financial responsibilities from the information provided, I find he
does not have sizeable personal net worth and the amount of the penalties
proposed is disproportionate to his income; 3) Mize’s negligence with respect
to Citation No. 6507102 and Order No. 6505709 was high. However, I reduced the
penalties against MGQ for these same violations because based upon the 110(i)
criteria; the proposed penalties were disproportionately high. I find the same
with respect to the individual penalties proposed. His negligence with respect
to Order No. 6505715 was moderate; 4) Mize has provided financial information regarding
him and his wife as stated in my previous decision which I have taken into
account in assessing a penalty which will allow him to meet his financial
obligations. The proposed penalties
would not have done so; 5) I have found the gravity involved in Citation No.
6507102 and Order No. 6505709 to be serious and the gravity of Order No.
6505715 to be moderate; and 6) The Secretary has stipulated that Mize
demonstrated good faith in attempting to achieve rapid compliance after
notification of a violation.
Accordingly, I
assess the following penalties against Robert W. Mize, III: 1) Citation No.
65057102, $500.00; 2) Order No. 6505709, $500.00 and, 3) Order No. 6505715,
$500.00.
C. Clayborn Lewis
The Secretary proposed penalties in
the amount of $17,600 against Lewis. As discussed above, despite my attempts to
obtain Lewis’ financial information to determine his ability to pay the
proposed penalties, none has been received.
Pursuant to the Commission’s remand Order, I am at liberty to find that
the proposed penalties will not affect his ability to meet his financial
obligations. However, I find while Lewis
was a foreman with the ability to exercise managerial direction over the few
unskilled laborers, I find it safe to assume his income would be no greater
than Mize’s and most likely sizably less and he is of modest means and should
not be the one to bear the brunt of the corporation’s liabilities. With respect to the six statutory criteria, I
make the same findings as set forth above for Mize.
Accordingly, I assess the following
penalties: 1) Citation No. 6507102, $300.00; 2) Order No. 6505709, $300.00; 3)
Order No. 6505715, $300.00.
III. ORDER
Robert W. Mize, III, is ORDERED to
pay a sum of $1500.00 within 30 days of this decision.
Clayborn
Lewis is ORDERED to pay the sum of $900.00 within 30 days of this decision.
/s/
Priscilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution:
Robert
W. Mize, III, President, Mize Granite Quarries, Inc., P.O. Box 299, Elberton,
GA 30635
Clayborn Lewis, P.O. Box 881, Elberton, GA 30635
Clayborn Lewis, Mize Granite Quarries, Inc.,
P.O. Box 299, Elberton, GA 30635
Charna C. Hollinsworth-Malone,
Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street SW,
Room 7T10, Atlanta, GA 30303
Edward
Waldman, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Blvd., Room 2220, Arlington, VA
22209-2296