<DOC>
[DOCID: f:lk9880.wais]
TOW BROTHERS CONSTRUCTION, INCORPORATED
March 30, 2000
LAKE 98-80-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 30, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 98-80-M
Petitioner : A. C. No. 21-02975-05510
v. :
: Docket No. LAKE 98-99-M
TOW BROTHERS CONSTRUCTION, : A. C. No. 21-02975-05511
INCORPORATED, :
Respondent : Cedar Rapids Crusher #F25918
DECISION
Appearances: Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
the Petitioner;
Arvid Wendland, Esq., Wendland and Timmerman, Blue
Earth, Minnesota, for the Respondent.
Before: Judge Feldman
Before me are petitions for assessment seeking to impose a
total civil penalty of $52,500 filed pursuant to section 110(a)
of the Federal Mine Safety and Health Act of 1977 (the Act),
30 U.S.C. � 820(a), by the Secretary of Labor (the Secretary)
against the respondent, Tow Brothers Construction, Inc. (Tow
Brothers). This matter concerns a serious accident that occurred
on November 11, 1996, involving Tow Brothers foreman Wayne
Walter. The accident occurred when Walter's right hand and
forearm were caught in an unguarded trap feed conveyor head
pulley as Walter was performing maintenance activities. Tow
Brothers is a closely held family corporation with brothers James
and Robert Tow each holding 50 per cent of the outstanding shares
of the corporation.
These matters were called for hearing on February 9, 2000,
in Fairmont, Minnesota. After several conferences with the
parties' counsel, during which time I explained the application
of the penalty criterion in section 110(i) of the Mine Act with
respect to the effect on the operator's ability to continue in
business, the parties reached settlement.[1] Specifically, I
noted the capitalization structure of closely held corporations
is intended to limit liability. Consequently, although the
corporations small size, and the financial information and
documentation submitted by Tow Brothers, were appropriate
considerations, the corporation's purported inability to pay,
alone, did not relieve Tow Brothers of its liability under the
Mine Act.
The parties' settlement terms were set forth and approved on
the record. The settlement terms included Tow Brothers'
agreement to pay a reduced civil penalty from $52,500 to $22,500.
Pursuant to my direction at trial, the Secretary has filed a
written summary of the parties' settlement agreement. As part
of their settlement, the parties have stipulated:
(a) The Federal Mine Safety and Health Review
Commission has jurisdiction over these proceedings.
(b) Tow Brothers is a corporation.
(c) Tow Brothers' operations affect interstate commerce.
(d) At all times relevant to the instant proceedings, Tow
Brothers operated the Cedar Rapids Crusher #F25918.
(e) The Cedar Rapids Crusher #F25918 extracted sand and
gravel.
(f) The Cedar Rapids Crusher #F25918 worked less than 10,000
hours in the period November 12, 1995, through November 11,
1996.
(h) Tow Brothers committed one (1) violation of a health and
safety regulation in the 24 month period ending on December
31, 1996.
(i) Tow Brothers has agreed to pay the reduced civil penalty
according to the payment plan detailed below.
The settlement terms as they apply to Docket Number LAKE
98-80-M are:
Citation Date Issued 30 C.F.R. Assessment Settlement
4421526 11/13/96 56.14107(a) $18,000 $7,700
4421527 11/13/96 56.14203 $20,000 $8,500
4421528 11/13/96 56.11001 $10,000 $4,500
TOTAL $48,000 $20,700
(1) The serious gravity associated with these citations
remains unchanged.
(2) The degree of negligence specified in the citations
is unchanged.
(3) Tow Brothers demonstrated its good faith by abating
the citations within the time allowed by the MSHA
inspector.
(4) The reduced penalty assessment is appropriate based
on Tow Brothers' small size and financial limitations.
The settlement terms as they apply to Docket Number LAKE
98-99-M are:
Citation Date Issued 30 C.F.R. Assessment Settlement
4421529 11/13/96 56.14107(a) $1,500 $600
4421530 11/13/96 56.14107(a) $1,500 $600
4421531 11/13/96 56.14107(a) $1,500 $600
TOTAL $4,500 $1,800
(1) The gravity of the cited violations is unchanged.
(2) The degree of negligence specified in the citations
is unchanged.
(3) Tow Brothers demonstrated its good faith by abating
the citations within the time allowed by the MSHA
inspector.
(4) The reduced penalty assessment is appropriate based
on Tow Brothers' small size and financial limitations.
The parties have agreed to the following schedule of
payments: Tow Brothers will pay $6,500 on March 15, 2000. [2]
The remainder of the installments will be paid in eight (8)
quarterly payments of $2,000 each, payable on or before the
following dates: June 15, 2000, September 15, 2000, December 15,
2000, March 15, 2001, June 15, 2001, September 15, 2001, December
15, 2001, with the last payment made on or before March 15, 2002.
If payments are not made in accordance with this payment
schedule, the remaining balance of the $22,500 civil penalty
shall due and payable immediately.
Payments shall be made to the Mine Safety and Health
Administration, ATTN: Dorothy Johnson, 4015 Wilson Blvd., Room
926, Arlington, VA 22203.
ORDER
As noted on the record at trial, I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act. WHEREFORE, the parties' motion for
approval of settlement IS GRANTED, and, IT IS ORDERED that Tow
Brothers Construction, Inc., pay a $22,500 civil penalty in
accordance with the above payment schedule and, upon receipt of
timely payment of the entire $22,500 penalty, these cases ARE
DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor, U.S.
Department of Labor,
230 S. Dearborn Street, Chicago, IL 60604 (Certified Mail)
Arvid Wendland, Esq., Wendland and Timmerman, 825 East Second
Street, P.O. Box 247,
Blue Earth, MN 56013 (Certified Mail)
Mr. James R. Tow, President, Robin C. Peterson, Acct. Manager,
Tow Brothers Construction, Inc., R.R. 3, Box 118A, Truman, MN
56088 (Certified Mail)
/mh
**FOOTNOTES**
[1]: The statutory civil penalty criteria in section 110(i)
of the Act, 30 U.S.C. � 820(i), provides, in pertinent part, in
assessing civil penalties:
the Commission 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.
[2] As of March 24, 2000, the first installment of $6,500 had
not yet been received by MSHA's Office of Assessments. I assume
payment has been delayed pending the issuance of this decision
formalizing the parties' agreement. If payment of the first
$6,500 installment is not received within 21 days of the date of
this decision, the Secretary may file a motion for a default
judgment that seeks to impose the $52,500 civil penalty initially
proposed in these matters.