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[DOCID: f:c95-16m.wais]
FRICK SAND & GRAVEL, INC.
August 16, 1995
CENT 95-16-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 16, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-16-M
Petitioner : A. C. No. 25-01065-05519
v. :
: Pit No. 2
FRICK SAND & GRAVEL, INC., :
Respondent :
DECISION
Appearances: Kristi L. Floyd, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, and
Dennis J. Tobin, Conference and Litigation
Representative; Mine Safety and Health
Administration, Grand Junction, Colorado, for the
Secretary;
Thomas E. Frick, President, Frick Sand & Gravel,
Inc., McCook, Nebraska, for Respondent.
Before: Judge Maurer
STATEMENT OF THE CASE
This case is before me upon the petition for civil 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. � 801
et seq., the "Act," charging Frick Sand & Gravel, Inc., with
two violations of the regulatory standards found in Part 56,
Title 30, Code of Federal Regulations. The general issues before
me are whether the respondent violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section 110(i) of the Act.
Pursuant to notice, the case was heard at Colby, Kansas,
on June 1, 1995. At the hearing, Inspector Steve Ryan testified
for the Secretary of Labor. Mr. Thomas Frick, the President
of Frick Sand & Gravel, Inc., testified for respondent.
STIPULATIONS
At the hearing the parties entered the following
stipulations into the record (Joint Ex. No. 1):
1. Frick Sand & Gravel, Inc. is engaged in mining and
selling of sand and gravel in the United States, and
its mining operations affect interstate commerce.
2. Frick Sand & Gravel, Inc. is the owner and operator of
Pit No. 2 Mine, MSHA I.D. No. 25-01065.
3. Frick Sand & Gravel, Inc. is subject to the
jurisdiction of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. �� 801 et seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citations/orders were properly served by a
duly authorized representative of the Secretary upon an
agent of respondent on the dates and places stated
therein, and may be admitted into evidence for the
purpose of establishing their issuance, and not for the
truthfulness or relevancy of any statements asserted
therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no
stipulation is made as to their relevance or the truth
of the matters asserted therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violation relating to Citation No. 4332411.
9. The operator did not abate the violation in Citation
No. 4332414 in a timely manner and a 104(b) order was
issued. The violation was subsequently abated.
10. Frick Sand & Gravel, Inc. is a small mine operator with
15,746 hours of production in 1993.
11. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine
for the two years prior to the date of the citations.
DISCUSSION, FINDINGS AND CONCLUSIONS
Citation No. 4332411
Citation No. 4332411, issued on March 21, 1994, alleges a
violation of the standard found at 30 C.F.R. � 56.14100(b)[1]
and charges as follows:
The brake lights on the Cat 966C F.E.L. were not
operational. The wiring had been broken and seemed to
have been that way for some time. Defects on machinery
that affect safety shall be corrected in a timely
manner to prevent the creation of a hazard to a person.
Mr. Frick admits the brakes lights were inoperative and also
admits that that is a violation of 30 C.F.R. � 56.14100(b).
Accordingly, I find a violation of the mandatory standard as
cited and assess the proposed civil penalty amount of $50.
Citation No. 4332414
Citation No. 4332414, issued on March 22, 1994, alleges a
violation of the standard found at 30 C.F.R. � 56.18010[2] and
charges as follows:
Neither the pit foreman or any of the employees
have been trained in first aid. Selected supervisors
and all interested employees shall be trained in first
aid to help minimize as much as possible the severity
of possible injuries at the pit.
Mr. Frick admits his pit foreman did not have the required
first aid training. He also admits that that is a violation of
30 C.F.R. � 56.18010.
His only problem with this citation is that the inspector
did not give him enough time to get his foreman trained, given
the paucity of evening training classes in their area of the
country.
A woman teaches the first aid course on an irregular basis
in the evenings, based on demand for it. That is, if she
schedules a course, but only two or three persons enroll, she
cancels and reschedules the course at a later date. This
happened many times in this situation according to Mr. Frick.
I am going to affirm the citation, but reduce the proposed
civil penalty in this instance from $195 to $50, based on the
fact that I find credible Mr. Frick's claim that he did the best
he could to get the first available evening first aid class set
up for his pit foreman.
ORDER
1. Citation Nos. 4332411 and 4332414 ARE AFFIRMED.
2. Frick Sand & Gravel, Inc. IS ORDERED TO PAY the
Secretary of Labor a civil penalty of $100 within 30 days of
the date of this decision.
Roy J. Maurer
Administrative Law Judge
**FOOTNOTES**
[1]:/ 30 C.F.R. � 56.14100 (b) provides:
Defects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.
[2]:/ 30 C.F.R. � 56.18010 provides:
Selected supervisors shall be trained in first aid.
First aid training shall be made available to all
interested employees.
Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Dennis J. Tobin, Conference and Litigation Representative,
U. S. Department of Labor, Mine Safety and Health Administration,
764 East Horizon Drive, Room 226, Grand Junction, CO 81506
(Certified Mail)
Thomas E. Frick, President, Frick Sand & Gravel, Inc.,
P. O. Box 589, McCook, NE 69001
(Certified Mail)
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