<DOC>
[DOCID: f:c95-214.wais]
HAROLD G. MOODY, employed by GRAND RIVER QUARRY, INC.
January 26, 1996
CENT 95-214-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 26, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. CENT 95-214-M
Petitioner, : A.C. No. 23-02072-05512-A
v. :
: Gallatin Quarry Mine
HAROLD G. MOODY, Employed by :
GRAND RIVER QUARRY, INC. :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-215-M
Petitioner : A.C. No. 23-02072-05511-A
v. :
: Gallatin Quarry Mine
ROBERT G. FLINT, :
formerly Employed by :
GRAND RIVER QUARRY, INC., :
Respondent :
DECISION
Appearances: Keith E. Bell, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner; Harold L. Moody, Kearney, Missouri,
Pro Se; Robert G. Flint, Sedalia, Missouri, Pro Se.
Before: Judge Amchan
Summary
Before me are two cases alleging that two supervisory
employees of Grand River Quarry, Inc. (Grand River Quarry),
Harold L. Moody and Robert G. Flint knowingly violated 30 C.F.R.
�56.9300(b) in failing to provide a berm of adequate height on
the side of an elevated roadway. Pursuant to section 110(c)
of the Act, Petitioner has proposed a $1,000 penalty for Mr. Moody,
a general manager of Grand River Quarry and $750 for Mr. Flint,
a foreman. For the reasons stated below, I conclude that the
Secretary has failed to establish that Respondent Moody knowingly
violated the standard. I therefore assess no civil penalty in
his case. On the other hand, I find that Mr. Flint knowingly
violated the standard and assess a civil penalty of $300.
Findings of Fact
On July 21, 1994, MSHA Inspector Michael Marler was conducting
a multi-day inspection of Grand River's Gallatin Quarry in Davies
County, Missouri (Tr. 18, 25-26). At about 2:55 that afternoon, a
large vehicle slid off an elevated roadway into a drainage ditch,
apparently without injury to the driver (Tr. 27, 56, Exh. A). The
vehicle, originally a Caterpillar Model 631 scrapper had been
modified to serve as a haul truck (Tr. 102).
This "631 haul truck" was normally used to move shot rock
from the blasting area to a crusher (Tr. 103). When it did so,
it used a different roadway from the one involved in the July 21
accident (Tr. 108-09).
To transport finished product to the stockpiles, Grand River
Quarry normally used a stockpile truck. However, approximately
once or twice a month the stockpile truck would break down and
Grand River Quarry would use the 631 haul truck to carry the
finished product to its stockpile. On these occasions only, the
631 would travel the "accident roadway" (Tr. 108-09).
On the morning of July 21, 1994, the stockpile truck broke
down. At about 9:00 or 9:30 a.m., Grand River Quarry started
using the 631 to move the finished product (Tr. 108). The front
tires of the 631 are 84" high. The rear tires are 76" tall (Tr.
31-32). The berm on the side of the roadway from the plant to
the stockpile, the "accident roadway," was about 24" in height
(Tr. 31).
After determining the size of the tires and height of the
berm, Inspector Marler issued Citation No. 4322450 to Grand
River Quarry. It was handed to Robert G. Flint, the foreman
in charge of the Gallatin Quarry on a daily basis. The citation
alleged a violation of 30 C.F.R. �56.9300(b) in that the berm was
not at least half the height of the 631 haul truck's front tires.
Afterwards, Dale St. Laurent conducted an MSHA special
investigation of the circumstances surrounding the citation.
Based on his report, penalties were proposed for Harold Moody,
the General Manager of Grand River Quarry, and Mr. Flint, the
on-site foreman, in the amounts of $1,000 and $750, respectively.
Petitioner has established that Respondent Flint knowingly
violated the Act, but has not established a knowing violation on
the part of Mr. Moody.
Section 110(c) of the Federal Mine Safety and Health Act
provides:
Whenever a corporate operator violates a mandatory health
or safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act or any order
incorporated in a decision issued under subsection (a) or section
105(c), 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,
fines, and imprisonment that may be imposed upon a person under
subsections (a) and (d).
Section 110(a) referred to above provides that civil
penalties of up to $50,000 may be imposed for violations of the
Act. Section 110(d) provides for criminal penalties in certain
situations. Penalties, if contested, are assessed by the
Commission after considering a mine operator's history of
previous violations, the size of the operator's business, the
negligence of the operator, the effect of the penalty on the
operator's ability to stay in business, the gravity of the
violation and the good faith of the operator in abating the
violation.
The Commission has held that a corporate officer or agent
knowingly violates an MSHA standard if he or she knew or had
reason to know of the violative condition, Prabhu Deshetty,
16 FMSHRC 1046 (May 1994). To establish a knowing violation,
the Secretary need not prove that the agent knew he or she was
violating the law, Warren Steen, 14 FMSHRC 1125 (July 1992).
Applying these principles to Mr. Moody's case, I find that
the Secretary has not established that he knew or had reason to
know that a violative condition existed on July 21, 1994, prior
to the issuance of the citation. Section 56.9300(b) provides
that:
Berms or guardrails shall be at least mid-axle height
of the largest self-propelled mobile equipment which
usually travels the roadway (emphasis added).
The Secretary failed to show that Moody knew or had reason
to know that the 631 haul truck would be driven on the accident
roadway at times when the berms were less than 42 inches high.
Moody was not on-site on July 21. Normally, the 631 haul truck
was not used on this roadway. The evidence does not establish
that Moody knew, or had reason to know, that it would be used on
July 21. The record indicates that the berm was sufficient for
at least some other vehicles (Tr. 53).
Although Moody had reason to know that the 631 would be used
on this roadway periodically, there is no basis on which I could
conclude that he knew it would be used at times when the berm was
not mid-axle height. The berm on this roadway had been higher
than 24 inches on occasions prior to July 21, but had been eroded
by rainfall (Tr. 67, 73, 76, 104). The record does not show that
Moody knew its height on July 21. Indeed, on July 19 the road
was not used due to bad weather, and it is quite possible that
the berm was substantially smaller on July 21 than it had been
the last time Moody had observed it (Tr. 52).
Mr. Flint's situation is distinguishable by the fact that he
was on-site on July 21, 1994, and was aware that his miners had
started using the 631 haul truck on the accident roadway. Since
this vehicle used the roadway repeatedly on July 21, I find that
it was the largest piece of self-propelled mobile equipment which
usually traveled the roadway.
Foreman Flint knew the 631 was being used on the roadway
and knew, or had reason to know, that the berm on the side of the
roadway did not approach mid-axle height of either its front or
rear tires. Therefore, I find he knowingly violated �56.9300(b)
in failing to increase the height of the berm.
A $300 civil penalty is assessed against Foreman Robert Flint
Applying the criteria set forth in section 110(i), I conclude
that $300 is an appropriate civil penalty for Robert Flint's
"knowing" violation of �56.9300(b). My assessment of the criteria
is as follows:
Gravity of the Violation: I conclude that the gravity of
the violation is high. If a heavy vehicle leaves an elevated
roadway, there is a reasonable likelihood that it will flip over
killing or injuring the driver. It could also conceivably kill
or injure others on the mine site. On the other hand, the slope
from the roadway to the drainage ditch was apparently gradual and
the 631 appears from photographs to be a very heavy vehicle with
a low center of gravity. These factors substantially decrease the
likelihood of death or serious injury.
Negligence: Mr. Flint was negligent in not complying with
the standard. He not only knew, or had reason to know, of
the violative condition, he was familiar with the requirements
of the standard (Tr. 114). On the other hand, I have given
consideration to the fact that the violation was of fairly short
duration and that, so far as this record shows, the berm was
sufficient for the vehicles that usually traveled the roadway
on other days.
Prior History of Violations: Mr. Flint received a citation
on behalf of Grand River Quarry for failure to have a berm on
another elevated roadway only two days prior to the instant
citation (Exhibit G). Although that citation had nothing to do
with the height requirement for berms, it should have made him
more attentive to all MSHA requirements in this regard.
Good Faith in Abating the Violation: Blocks 17 and 18
of the citation indicate that the violation was abated within
95 minutes by the construction of a six-foot berm.
Size of the Operator and Effect of the Penalty on its Ability
to Stay in Business
These factors are difficult to apply in assessing a penalty
against an individual. By analogy, I have considered the fact
that Mr. Flint was a foreman earning approximately $23,000 a
year when he worked for Grand River Quarry (Tr. 20, 116). A
substantially lower penalty is generally appropriate for a low
level supervisor than for a higher and better paid agent of an
operator.
ORDER
The petition for assessment of a civil penalty against
Harold L. Moody is DISMISSED.
A $300 civil penalty is assessed against Robert G. Flint.
This penalty shall be paid within 30 days of this decision.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Keith E. Bell, Esq., Office of
the Solicitor,
U.S. Department of Labor, 4015
Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified
Mail)
Robert G. Flint, 235 E. Howard
St., Sedalia, MO 65301
(Certified Mail)
Harold L. Moody, 702 Feldpar,
Kearney, MO 64060
(Certified Mail)
/lh