FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                                                           

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, N.W., Suite 520N

            Washington, D.C. 20004

 

          March 21, 2013

SECRETARY OF LABOR,   
MINE SAFETY AND HEALTH    
ADMINISTRATION (MSHA),  
Petitioner 

v.

E. TETZ & SONS, INC.,
Respondent 

SECRETARY OF LABOR, 
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), 
Petitioner 

v.

GARY TETZ, JR., 
Employed by E. TETZ & SONS, INC., 
Respondent 

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 CIVIL PENALTY PROCEEDINGS

Docket No. YORK 2009-237-M
A.C. No. 30-00930-195466






Docket No. YORK 2010-342-M
A.C. No. 30-000930-230641





Mine: Slate Hill Sand and Gravel

DECISION APPROVING SETTLEMENT AFTER HEARING

 

Appearances: Terrence Duncan, Esq., Office of the Solicitor, U.S. Department of Labor,

                        New York, New York, on behalf of the Petitioner;

                        Tina M. Stanczewski, Esq., Law Office of Adele Abrams, P.C.,

                        Beltsville, Maryland, on behalf of the Respondent.

 

Before:            Judge Feldman

 

            This proceeding is before me upon a petition for assessment of civil penalty filed pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Act”) against E. Tetz & Sons, Inc. (“Tetz & Sons”).  30 U.S.C. §815(d).  Also before me in this proceeding is a related petition for assessment of civil penalty, filed pursuant to section 110(c) of the Act, which seeks to impose personal liability against Gary Tetz, Jr.  30 U.S.C. § 820(c). 

 

A hearing on these matters was held on February 5 and February 6, 2013, in Middletown, New York. The parties subsequently informed me that a resolution has been reached through negotiation.  The Secretary has filed a settlement motion for Docket No. YORK 2009-237M that concerns the mine operator.  The parties have also filed a joint settlement motion for Docket No. YORK 2010-342M concerning the civil liability of Gary Tetz, Jr.

 

Docket No. YORK 2009-237M

 

            Docket No. YORK 2009-237M involves one 104(d)(1) citation and one 104(d)(1) order issued against E. Tetz & Sons Inc. (“Tetz & Sons”) on July 1, 2009.  Both allege that the cited violative conditions were attributable to an unwarrantable failure.  Citation No. 6534197 alleges that the rear service brakes on a loader were not maintained in functional condition in violation of 30 C.F.R. § 56.14101(a)(3).  Specifically, Citation No. 6534197 states:

 

A brake line was damaged rendering the rear brakes inoperable. 

The condition has existed and been reported for at least two shifts.  The loader is used throughout the mine site and travels grades and loads trucks.  Foreman, Gary Tetz [Jr.], had stated to [the] MSHA inspector that he had taken the loader out of service for the braking problem.  Later the loader was observed [by the issuing mine inspector to be] back in service and loading trucks.  Foreman, Tetz, engaged in aggravated conduct constituting more than ordinary negligence by placing the loader back into service knowing the brake system defect existed.  This violation is an unwarrantable failure to comply with a mandatory standard. 

 

Order No. 6534198 alleges that the parking brakes on the same loader did not hold when tested on a grade in violation of 30 C.F.R. § 56.14101(a)(2).  Although the order alleged an unwarrantable failure, the cited condition was designated as non-significant and substantial (non-S&S), because, as noted at hearing, the loader is routinely parked on level ground.

 

As the parking brake violation cited in Order No. 6534198 was not likely to result in serious injury, the evidence does not support a finding that the negligence attributable to Tetz & Sons rises to the level of an unwarrantable failure.  Consequently, the Secretary has agreed to modify 104(d) Order No. 6534198 to a 104(a) citation.  The unwarrantable failure designation for Citation No. 6534197 remains unchanged.  The Respondent has agreed to pay the proposed $5,100.00 civil penalty in satisfaction of the two citations at issue. 


Docket No. YORK 2010-342M

 

            Docket No. YORK 2010-342M involves a petition for assessment of civil penalty filed pursuant to section 110(c) of the Mine Act.  The petition seeks to impose personal liability for the alleged violative condition in Citation No. 6534197 against Gary Tetz, Jr., mine foreman for Tetz & Sons’ Slate Hill Sand and Gravel operation.  Section 110(c) states:

 

Whenever a corporate operator violates a mandatory health or safety standard . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties . . .

 

30 U.S.C. § 820(c).  An individual is subject to personal liability under section 110(c) if he is “in a position to protect employee safety and health [and] fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.”  Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).

 

            The Secretary asserts that Gary Tetz, Jr. is personally liable for the condition alleged in Citation No. 6534197 because he placed the loader back in service despite having led the MSHA inspector to believe that it had been taken out of service due to defective brakes.  Tetz has agreed to accept the citation as issued, and pay the proposed $2,300.00 civil penalty.

I have considered the representations and documentation submitted in this matter, and I conclude that the proffered settlements are appropriate under the criteria set forth in sections 110(i) and 110(c) of the Act.  WHEREFORE, the motions to approve settlement

ARE GRANTED. 

 

Pursuant to the parties’ agreements, E. Tetz & Sons, Inc. IS ORDERED to pay the $5,100.00 civil penalty in satisfaction of the two citations at issue in Docket No. YORK 2009-237M. 

 

IT IS FURTHER ORDERED that Gary Tetz, Jr. shall pay a $2,300.00 civil penalty, based upon his personal liability under section 110(c) of the Act, in satisfaction of Citation No. 6534197. 

 

IT IS FURTHER ORDERED that payment shall be made within 30 days of the date of this Order. 1  Upon receipt of timely payment, the captioned civil penalty proceedings ARE DISMISSED.

 

 

 

                                                                        /s/ Jerold Feldman     

                                                                        Jerold Feldman

                                                                        Administrative Law Judge                            

 

Distribution:

 

Terrence Duncan, Esq., U.S. Department of Labor, Office of the Solicitor, 201 Varick Street, Room 938, New York, NY 10014

 

Tina M. Stanczewski, Esq., Law Office of Adele Abrams, P.C., 4740 Corridor Road, Suite D, Beltsville, MD 20705

                                                                       

/tmw

 

 


     1   Payment should be sent to the Mine Safety and Health Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO  63179-0390.  Please include the Docket No. and A.C. No. noted in the above caption on the check.