FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1710

July 16, 2013

DECISION

Appearances:  Ryan L. Pardue, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor; Charles M. Sellards, Lawrenceburg, Kentucky, on behalf of Hanson Aggregates Midwest, LLC.

Before:            Judge Zielinski

            This case is before me upon a Petition for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that Hanson Aggregates Midwest, LLC (“Hanson”), is liable for four violations of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal Mines, and proposes the imposition of penalties in the amount of $2,480.00. A hearing was held in Louisville, Kentucky. Respondent withdrew its contest of Citation No. 8640966, leaving three alleged violations at issue. Tr. 8-9. The parties elected to make closing arguments in lieu of filing post-hearing briefs. For the reasons that follow, I find that Hanson committed the violations and impose civil penalties in the amount of $925.00 for the litigated violations.

Findings of Fact - Conclusions of Law

Citation No. 8640965

            Citation No. 8640965 was issued by Donald Gabbard at 9:40 a.m. on May 8, 2012, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.13011 which requires that “[a]ir receiver tanks . . . shall be equipped with indicating pressure gauges which accurately measure the pressure within the air receiver tanks.” The violation was described in the “Condition and Practice” section of the citation as follows:  

The portable air receiver tank in the back of company pickup #30994 did not have a functioning indicating pressure gauge. This exposed persons using this equipment to the hazard of working with unknown pressures. The tank may be used about once every two months. Injury can occur from over-pressurizing vessels or hoses.

Ex. G-1.

            Gabbard determined that the violation was unlikely to cause a permanently disabling injury, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $392.00 was assessed for the violation.

The Violation

            On May 8, 2012, Gabbard inspected Respondent’s Upton Quarry, a surface limestone mine. Tr. 18. He traveled with Eugene “Sam” Coats, the supervisor of the mine, in Coats’ truck. Tr. 19. When they reached the top of the highwall, Gabbard exited the truck. Tr. 19, 20-21. As he walked around the truck, he noticed a faulty gauge on an air tank, located in the back. Tr. 19. Commonly called an air baum, the tank was used to provide supplemental compressed air to perform tasks such as filling tires or “blowing out a radiator.” Tr. 18. The tank was filled using an air hose attached to a compressor. Tr. 28. A pop-off valve on the tank, if working properly, would open and release air if the pressure reached a certain level of pounds per square inch (psi). Tr. 38, 40.

            Gabbard determined that the air gauge on the tank was broken because its lens was missing and the face piece behind the needle, marked with graduations and used to read the air pressure, was sitting abnormally. Tr. 19, 24-25; Ex. G-3. As a result, the needle, located on the face piece, “was all the way past the highest pressure point lodged down close towards zero . . . .” Tr. 19. Gabbard did not test the other components of the tank, such as the pop-off valve, but Coats stated that the valve was working a few weeks before. Tr. 21, 52-53; Ex. G-18 at 3.

            Respondent argued that the gauge on the air tank was in fact working properly, and introduced a photograph that depicted the face piece correctly situated and the needle at the 40 psi mark. Tr. 14, 34, 35, 161; Ex. R-1. However, the photograph was taken by Coats after taking the tank off of the property and it did not depict the condition of the gauge at the time that the citation was issued. Tr. 48; Ex. R-1, G-3. Gabbard asserted that because the lens cover was missing, a miner would be able to manipulate the face of the gauge and the needle, making it non-functional and unreliable. Tr. 36-37, 38. In addition, Gabbard stated that Coats admitted the gauge was not working in the close-out conference. Tr. 32, Ex. G-18 at 3.

            The standard clearly states that air tanks must be equipped with gauges that accurately measure the pressure within the tanks. The gauge’s lens was missing and the face piece was disoriented and open to manipulation which prevented it from accurately measuring the pressure in the tank. I find that Respondent violated section 56.13011.

Gravity and Negligence

            Gabbard marked the likelihood of injury as unlikely because he believed the tank was used infrequently, “about once every two months.” Tr. 26; Ex. G-1. Coats told Gabbard that he would lend it to others for personal use and that he was not aware the air tank was on his truck. Tr. 20. In addition, Gabbard did not know the air pressure in the tank. Tr. 38. One person, who would have been filling the tank with air, was found to be affected. Tr. 23. Based on this information, I find that Gabbard properly determined the likelihood of injury and number of persons affected.

            Gabbard conducted research into accidents involving pressurized vessels and found that lack of maintenance led to injuries from flying metal debris, though, it is unknown how many of the accidents occurred from over-pressurizing the vessel. Tr. 21, 22, 41-42. Gabbard asserted that if the tank over-pressurized, it could have ruptured and spread shrapnel. Tr. 22. He determined that the injury expected to occur was permanently disabling because the shrapnel could have caused alterations to a miner’s tissue, muscle, or skin, resulting in a scar. Tr. 23;

Ex. G-1. Gabbard stated, “[MSHA] dictate[s] if you have, like I say, burns and it alters your tissue, your muscle or your skin and it leaves a scar, that it is permanently disabling. A scar counts as permanently disabling.” Tr. 23.

            A direction by MSHA to find a scar from a cut or burn permanently disabling would be inconsistent with the Secretary’s regulations, which define a permanently disabling injury as “[a]ny injury or illness which would be likely to result in the total or partial loss of the use of any member or function of the body.” 30 C.F.R. § 100.3, Table XII-Gravity: Severity. It is highly improbable that a scar on a miner’s skin, caused by shrapnel, would result in total or partial loss of a member or function of his body. However, shrapnel could sever a finger or nerve, or strike a miner’s eye, causing a permanently disabling injury. I find that the violation was unlikely to result in a permanently disabling injury.

            Gabbard determined the level of negligence to be moderate because, while Coats was not aware that the air tank was on his truck or how long it may have been there, it was his truck and he should have known about the tank and its condition. Tr. 20, 27, 28. I find that Coats should have known that the tank was in the back of his truck and that the gauge was not accurately measuring pressure. Therefore, a determination of moderate negligence was appropriate.

Citation No. 8640967

            Citation No. 8640967 was issued by Gabbard at 11:41 a.m. on May 8, 2012, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.4101 which requires that “[r]eadily visible signs prohibiting smoking and open flames shall be posted where a fire or explosion hazard exists.” The violation was described in the “Condition and Practice” section of the citation as follows: 

A readily visible warning sign prohibiting smoking or open flames was not posted at the oil retrieval system. Approximately 50 gallons of oil was stored in a tank behind the fuel storage building where filters are drained to collect the used oil. In the event this oil became ignited, it would expose workers in the area to the hazard of oil fires. This area is used only for infrequent maintenance work. Burn injury can occur when encountering oil fires. 

Ex. G-9. 

            Gabbard determined that the violation was unlikely to cause a permanently disabling injury, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $392.00 was assessed for the violation.

The Violation

            Hanson has a “fuel lube” building on-site where different types of oil and lubricants, including diesel, motor oil, and hydraulic oil are stored. Tr. 55, 65. In the back of the building, there was an oil storage tank, used for the disposal of oil, a canister, and a catch drum used when performing preventative maintenance. Tr. 57, 64, 65. Gabbard observed that the catch drum was open and contained approximately 8 gallons of used motor oil. Tr. 57; Ex. G-7. A pile of leaves measuring about 10-12 inches tall was located at the base of the building and surrounded the canister, creating what Gabbard believed to be a fire hazard. Tr. 56, 57, 66; Ex. G-7. Gabbard stated that there was “no readily visible sign at all indicating a fire hazard, no smoking or open flames.” Tr. 55; Ex. R-3.

            The building was marked with three obvious fire hazard signs: one on the front of the building and one on either side. Tr. 57, 62-63, 78; Ex. R-2A-C. Gabbard posited that most access to the building would be from the front, where the sign measured approximately 8.5-10 inches x 11-12 inches. Tr. 57, 60; Ex. R-3. There were also signs inside the building. Tr. 100. Gabbard did not remember seeing any sign located on the back of the building or any evidence that there had once been a sign present. Tr. 58. The back of the building was approachable from either side. Tr. 59. While a miner would pass a sign on his way from the front of the building to the rear, a sign would not be in view once he reached the back. Tr. 61, 74, 80-81, 84, 86, 97, 100; Ex. R-2B. In addition, Gabbard stated that at the closeout conference, Coats “agreed with the citation, the condition did exist.” Tr. 72.

            The pile of dry leaves around the open catch drum of oil did pose a fire hazard in the back of the building as Gabbard concluded. While a miner would have passed one or more signs on his way to the back of the building, there was no “readily visible” sign where the fire hazard existed. I find that Respondent violated section 56.4101.

Gravity and Negligence

            Gabbard designated the likelihood of injury as unlikely because there were other signs posted in and around the building, and there were no ignition sources present in the area. Tr. 64, 70. In addition, the one miner affected experienced minimal exposure because preventative maintenance was not conducted every day. Tr. 70. I find that Gabbard correctly determined an injury was unlikely to occur and one person was affected.

            Gabbard marked the injury expected to occur as permanently disabling because a fire could have caused burns, resulting in flesh and tissue alterations, i.e., scars. Tr. 68. However, Gabbard stated that it was very unlikely that the motor oil would explode if a fire started. Tr. 87. The oil tank lid was closed, there were fire extinguishers on-site, and miners were trained on the hazards of oil and fuel and to “[m]ostly retreat from fires” unless they were very small. Tr. 74, 96, 97, 99; Ex. G-12.

            As stated above, it is highly improbable that a scar would result in total or partial loss of a member or function of a miner’s body. Given that an explosion was highly unlikely, fire extinguishers were nearby, and miners were trained to retreat from fires, I find that, at most, a miner would have suffered minor burns resulting in lost workdays or restricted duty.

            Gabbard assessed the level of negligence as moderate because the back of the building was somewhat secluded and not frequently accessed by employees. Tr. 70-71. While pre-shift and on-shift examinations were required for the building, Gabbard did not look at those records. Tr. 66. However, based on the testimony given, the open oil container and leaves at the rear of the building posed a fire hazard and there was no sign at that location. Respondent should have known about the violative condition. Therefore, I find that the level of negligence was properly marked as moderate. 

Citation No. 8640968

            Citation No. 8640968 was issued by Gabbard at 9:00 a.m. on May 9, 2012, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14100(c) which requires that “[w]hen defects make continued operation hazardous to persons, the defective items including self-propelled mobile equipment shall be taken out of service and placed in a designated area posted for that purpose . . . to prohibit further use until the defects are corrected.” The violation was described in the “Condition and Practice” section of the citation as follows:

The ladder steps accessing the operator’s station of the #98107 haul truck were broken at the contact anchor points in two places. This defective condition exposed persons using the ladder steps to hazards of falling in event the ladder broke free of the truck. The truck had been used today and the operator had just exited the truck via this route. Falls can result in injury when faulty ladders are used. The truck was removed from service and repairs were immediately conducted. 

Ex. G-13. 

            Gabbard determined that the violation was reasonably likely to cause lost workdays or restricted duty, that one person was affected, and that the operator’s negligence was moderate.

A civil penalty in the amount of $1,304.00 was assessed for the violation.

The Violation

            During Gabbard’s inspection of Hanson’s #98107 A25 Volvo Haul Truck, he climbed a set of steps used to access the cab. Tr. 107, 108, 132. When he reached a height of about 3 feet, he felt the steps unnaturally sag several inches. Tr. 107, 108, 110, 153. Gabbard immediately withdrew from the steps and examined them. Tr. 153.

            The steps consisted of one floating, i.e., freely swinging, step on the bottom and three rigid steps above. Tr. 105. The rigid steps were one unit, welded to a rectangular metal frame. Tr. 133; Ex. G-15, R-6. The frame was bolted to the fender of the truck. Tr. 109, 110, 136, 152; Ex. G-15. There was also a bolt through the side of the top step, that connected the step assembly to the upper frame of the truck. Tr. 122, 133, 134; Ex. G-15B. Gabbard was unsure if all of the bolts provided structural support. Tr. 122. The weld in the upper right corner of the framework where the top step was attached was fractured. Tr. 137-38; Ex. G-15A. There was also a fractured weld where the second step from the top had been connected to a piece of angle iron that was attached to the truck’s lower frame. Tr. 106, 140-41; Ex. G-15. Based on his observations, Gabbard concluded that the steps had previously been loose and had been repaired with low-quality welds. Tr. 106, 113; Ex. G-15A.

             The steps were the only means of access to the cab of the truck and the truck was in use at the time of the inspection. Tr. 108, 109, 142. While Gabbard agreed that the framework being attached to the fender could have accounted “for some true give[,]” there was excessive movement of the steps because of the fractures in the welds. Tr. 135, 147, 152. He maintained that the framework could have broken loose because it was not mounted to the truck in a way that would safely support his or the operator’s weight, creating a hazardous condition for the operator climbing the steps. Tr. 107, 117, 129, 147, 149. Gabbard stated that he discussed the citation during the close-out conference and Coats agreed with it. Tr. 117.

            Respondent argued in its prehearing report that the broken weld between the second step and the angle iron attached to the truck’s lower frame was not a defect. Coats asserted that the angle iron attachment was not per the manufacturers standards, citing to the depiction from the parts catalogue discussed above as well as a photograph of an allegedly identical haul truck Respondent had on-site that did not have an angle iron bracket. Tr. 124-25, 132-33, 135; Ex. R-5, 6. He stated that the bracket would have been added because “[t]he steps were a little loose. It would have been a lot better if you added a bracket onto it . . . to keep it from breaking off.” Tr. 135. Gabbard did not look at the specifications for the haul truck and could not confirm that Respondent’s picture of the “identical” truck was in fact the same model. Tr. 127, 128.

            Based on the above testimony by Coats, I find that the angle iron bracket was previously connected to the second rigid step for the safety purpose of preventing excessive movement of the steps, or to keep them from breaking off the truck. It is the operator’s responsibility to maintain the truck in a safe manner while it is in use. Tr. 142-43. The angle iron bracket’s detachment from the step and the fracture in the weld of the main step framework constituted a defect, excessive movement and instability of the steps, creating a hazardous condition for the operator. I find that Respondent violated section 56.14100(c).

Significant and Substantial

            The Commission reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 (Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on 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. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

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 contribu ted to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission has emphasized that 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 Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

                        . . . .

                        . . . .

            The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

            The fact of the violation has been established. It contributed to a discrete hazard, a detached angle iron bracket and fractures on the truck steps that allowed for excessive movement, potentially resulting in a miner falling. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury causing event and whether it was reasonably likely that an injury would be of a reasonably serious nature.

            Gabbard determined that an injury was reasonably likely because of the operator’s repetitive exposure to the hazard. Tr. 117, 121. The haul truck was used on a daily basis and the operator would exit and enter the cab, walking up and down the steps, multiple times a day. Tr. 104-05, 108-09, 117. Gabbard concluded that the injury would have been serious and could have reasonably been expected to result in lost workdays or restricted duty from a broken or sprained ankle, torn ligament, or injury to the back caused by falling off the steps. Tr. 117; Ex. G-13. He also took into consideration the weight of operator, i.e., the person who would have been affected, when assessing the type of injuries. Tr. 117, 118, 119.

            Given the high exposure of the operator to the hazardous steps and the amount of movement, I find that Gabbard correctly determined that injury was reasonably likely to occur. The injuries that Gabbard described were reasonable considering the height of the fall and the size of the operator. Any of those injuries could have caused the operator to be out of work for several days and would have been reasonably serious in nature. Therefore, I find that the violative condition was significant and substantial. 

Negligence

            Gabbard marked the level of negligence as moderate. Ex. G-13. He stated that the truck operator noticed the steps sagging but did not report it for maintenance. Tr. 115. Gabbard did not verify the operator’s statement by checking the pre-shift examination books, but the vehicle did require a pre-shift and on-shift examination. Tr. 116. He also based his decision on the fact that the broken weld on the angle iron bracket was polished from the vibration of the truck, indicating that the condition had existed “multiple shifts.” Id. Further, Gabbard believed that the weld fractures were obvious when the area was examined closely. Tr. 111.

            While it is uncertain whether the truck operator reported the condition, pre-shift and on-shift examinations of the truck were required and the condition had likely existed for multiple shifts. I find that Respondent should have been aware of the violative condition and that a finding of moderate negligence is appropriate. 

The Appropriate Civil Penalties

            As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763 (Aug. 2012):

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and 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).

            Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

            The parties did not stipulate that Hanson demonstrated good faith in abating the violations, but based on the facts above, I find that it did. It was stipulated that paying the proposed penalties would not affect Hanson’s ability to remain in business. Stipulations. The parties did not stipulate to the size of Hanson as an operator. However, the form reflecting calculations of penalty assessments, filed with the petition, indicates that Hanson is a small operator, and I so find. Overall, these factors are slightly mitigating.

History of Violations

            Hanson’s history of violations is reflected in a report generated from MSHA’s database, the “R-17.” Ex. G-19. The report lists violations issued at the Upton Quarry mine and reflects that 13 violations became final between February 8, 2011 and May 7, 2012. I accept the figures reflected in the report as accurate. However, the overall violation history set forth in the exhibit is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

            Some qualitative violations’ history information can be found on the forms reflecting calculations of the proposed assessments. The Secretary’s Part 100 regulations for regular penalty assessments take into account two aspects of an operator’s violation history, the “total number of violations and the number of repeat violations of the same citable provision of a standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have become final are used in the calculations. For total violation history, points used in the penalty calculation are assigned on the basis of the number of violations per inspection day, ranging from 0 points for 0 to 0.3 violations per day to 25 points for in excess of 2.1 violations per day. The assessment forms for the three litigated violations reflect an assessment of 25 points for overall violation history and 0 points for repeat violations. However, the penalty point calculation for overall violation history, in this case, is skewed. First, because the mine is small, the number of inspection days is low, allowing even a small number of violations to total in excess of 2.1 violations per day. Second, the regulations provide that “[p]enalty points are not assigned for mines with fewer than 10 violations in the specified history period.” 30 C.F.R. § 100.3(c)(1). In this case, three section 104(a) citations caused the number of penalty points assigned for violation history to drastically increase from 0 to 25 points. Accordingly, I reject the implication that Hanson has a high violations history and find that Hanson’s overall history of violations, as relevant to these violations, was moderate, and should be considered a neutral factor in the penalty assessment process.

            Citation No. 8640965 is affirmed. A civil penalty in the amount of $392.00 was proposed for this violation. Considering the factors itemized in section 110(i) of the Act, I impose a penalty of $200.00 for this violation.

            Citation No. 8640967 is affirmed as a violation. However, the injury that would have been reasonably expected to occur was lost workdays or restricted duty. A civil penalty in the amount of $392.00 was proposed for this violation. Considering the factors itemized in section 110(i) of the Act, I impose a penalty of $125.00 for this violation.

             Citation No. 8640968 is affirmed as a violation. A civil penalty in the amount of $1,304.00 was proposed for this violation. Considering the factors itemized in section 110(i) of the Act, I impose a penalty of $600.00 for this violation.

            The penalties imposed above, totaling $925.00, are lower than the $2,088.00 in penalties assessed for the violations for which Hanson was found liable. The reductions are the result of findings of lesser gravity and a determination that the penalty point numbers for overall violation history were excessive.

SETTLEMENT

            The Respondent withdrew its contest of Citation No. 8640966. Accordingly, it will be ordered to pay the assessed penalty of $392.00 for the violation.

ORDER

Based on the foregoing, it is ORDERED that Citation Nos. 8640965 and 8640968 are AFFIRMED, and that Citation No. 8640967 is AFFIRMED, as amended.

It is FURTHER ORDERED that the operator pay total penalties of $1,317.00 within 45 days of this decision.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

                                                                         Senior Administrative Law Judge 

Distribution (Certified Mail):

Ryan L. Pardue, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

Charles M. Sellards, Area Safety Manager, Hanson Aggregates Midwest, LLC, 1645 Tyrone Road, Lawrenceburg, KY 40342