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[DOCID: f:c95-112m.wais]
ROBERT CODNER, employed by TARRANT AGGREGATES CORPORATION
August 17, 1995
CENT 95-112-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 17, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-112-M
Petitioner : A.C. No. 41-03698-05515-A
v. :
: Tarrant Aggregates Corp.
ROBERT CODNER, Employed by :
TARRANT AGGREGATES :
CORPORATION, :
Respondent :
DECISION
Appearances: Mary K. Schopmeyer, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for Petitioner;
Jim Minter, Esq., Fort Worth, Texas, for
Respondent.
Before: Judge Koutras
Statement of the Case
This is a civil penalty proceeding filed by the
petitioner against the respondent pursuant to section
110(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 820(c), charging the respondent with two
alleged "knowing" violations of certain mandatory safety
standards found in Part 56, Title 30, Code of Federal
Regulations. The respondent is charged as an agent of the
mine operator while employed as a plant operator. The
respondent contested the alleged violations, and a hearing
was convened in Fort Worth, Texas.
Issues
The principal issue presented in this case is
whether or not the respondent knowingly authorized,
ordered, or carried out the alleged violations. If he
did, the next question pre-sented is the appropriate
civil penalties to be assessed against the respondent
taking into account the civil penalty criteria found in
Section 110(a) of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
P.L. 95-164.
2. Section 110(c) of the 1977 Act, 30 U.S.C.
� 820(c).
3. Commission Rules, 29 C.F.R. � 2700.1, et seq.
Discussion
Section 104(d)(1) "S&S" Citation No. 4321326, issued
at 9:25 a.m., on January 4, 1994, cites an alleged
violation of 30 C.F.R. 14107(a), and the cited condition
or practice is described as follows:
The V-belt drive for the horizontal masonry conveyor
belt was not provided with a guard. The V-belt drive
is located approx. five feet from ground level and
there was an employee shoveling in that area at the
time of inspection. The plant foreman stated that he
knew the guard was off and had records dated on
September 25, 1993, that the guard was off.
Section 104(d)(1) "S&S" Order No. 4321327, issued at
10:40 a.m., on January 4, 1994, cites an alleged violation
of 30 C.F.R. 56.14107(a), and the cited condition or
practice is described as follows:
The guard provided for the tail pulley on the over-
size conveyor belt had a hole cut in the east side
fourteen inches by 8 inches exposing the self
cleaning tail pulley. The tail pulley is located
approx. three feet from ground level and employees
walk directly beside the pulley two to ten times
daily. The plant foreman stated that he knew the
hole was in the guard and records showed the guard
had been wrote up on 9-25-93. This is an
unwarrantable failure.
Upon entering their respective appearances in this
matter, and in the course of a pre-hearing bench
conference prior to the presentation of testimony from
witnesses who were present in the courtroom, including one
subpoenaed witness, counsel for the parties informed me
that they proposed to finalize a settlement in this matter
and they filed a joint motion and a settlement agreement
for my consideration (Tr. 9-10).
The parties were afforded an opportunity to present
arguments in support of the proposed settlement. The
parties agreed that the respondent's employer is a small
sand and gravel pit operator with a total of 38 employees
at two plants. The No. 1 plant where the respondent
worked had two employees and the respondent supervised one
employee. Respondent's counsel stated that the respondent
was an hourly employee earning $10 an hour, and that he is
married with several children and is their sole support.
Counsel asserted that the payment of the full amount of
the proposed civil penalty assessments will adversely
impact financially on the respondent (Tr. 18-28).
With respect to section 104(d)(1) Order No. 4321327,
the petitioner's counsel stated that upon further
investigation it has been concluded that the evidence does
not support a "knowing" violation of the cited mandatory
safety standard found at 30 C.F.R. 56.14107(a). Under the
circumstances, counsel asserted that the section 110(c)
action predicated on that order has been vacated by MSHA.
The petitioner asserted that after further review and
consideration of the respondent's financial status and the
six statutory civil penalty criteria found in section
110(i) of the Act, it has determined that the initial
proposed civil penalty assessment of $1,200 for section
104(d)(1) Citation No. 4321326 is unduly burdensome to the
respondent. Under the circumstances, the petitioner
agreed to modify the assessment and reduce the proposed
penalty to $500 for the alleged violation.
MSHA Inspector Ricky J. Horn, who was present in the
courtroom, and who issued the citation and order,
expressed his approval of the proposed settlement
disposition of this matter (Tr. 30).
The respondent has agreed to pay a civil penalty
assessment of $500, in settlement of Citation No. 4321326.
He agreed to pay an initial payment of $100, with four (4)
additional monthly installments of $100, due each 30 days
thereafter, until the total amount of $500 is fully paid
(Tr. 37-38).
Conclusion
After careful review and consideration of the
pleadings and arguments in support of the proposed
settlement disposition of this case, I rendered a bench
decision granting the joint motion and approving the
settlement (Tr. 37). My decision in this regard is herein
re-affirmed. I conclude and find that the settlement
disposition is reasonable and in the public interest. I
take note of the fact that the respondent is employed by
a small sand and gravel pit operator, is the sole support
of his family through hourly wages, timely abated the
conditions and presented some mitigating circumstances
associated with the cited conditions as part of his answer
in this proceeding. Under all of these circumstances, and
pursuant to Commission Rule 31, 29 C.F.R. 2700.31, the
joint settlement motion IS GRANTED, and the settlement IS
APPROVED.
ORDER
In view of the foregoing, IT IS ORDERED as follows:
1. The proposed civil penalty assessment associated
with Section 104(d)(1) "S&S" Order No. 4321327,
January 4, 1994, 30 C.F.R. 56.14107(a), IS DENIED
and IS DISMISSED.
2. The respondent Robert Codner shall pay a civil
penalty assessment in the amount of $500 in
satisfaction of section 104(d)(1) "S&S" Citation
No. 4321326, January 4, 1994, 30 C.F.R. 56.14107(a).
3. The respondent Robert Codner shall make an
initial payment of $100 within thirty (30) days of
the date of this decision and order. Payment shall
be by check or money order made payable to the Mine
Safety and Health Administration.
4. After payment of the first installment, the
respondent Robert Codner shall make additional
payments to MSHA in four (4) equal installments of
$100, each due within thirty (30) days of the
previous payment, until the full amount of $500 is
paid.
The payments shall include a reference to the date of
this decision and order approving settlement and requiring
payment, and Docket No. CENT 95-112-M, and A.C.
No. 41-03698-05515-A.
This decision will not become final until such time
as full payment of the $500 is made by the respondent to
MSHA, and I retain jurisdiction in this case until payment
of all installments are remitted and received by MSHA. In
the event the respondent fails to comply with the terms of
the settlement, the petitioner may file a motion seeking
appropriate sanctions or further action against the
respondent, including a reopening of the case.
George A. Koutras
Administrative Law Judge
Distribution:
Mary K. Schopmeyer Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
Jim Minter, Esq., 1110 East Weatherford Street, Forth
Worth, TX 76102 (Certified Mail)
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