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ROHLOFF
SAND & GRAVEL COMPANY
August
19, 1998
LAKE
98-14-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 19, 1998
SECRETARY
OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No.
LAKE 98-14-M
Petitioner : A.
C. No. 20-02980-05501
v. :
: Rohloff Sand & Gravel Company
ROHLOFF
SAND & GRAVEL COMPANY,:
Respondent :
DECISION
Appearances: Ruben R. Chapa, Esq., Office of the
Solicitor, U.S.
Department of Labor, Chicago,
Illinois, for the
Secretary; Luke Rohloff,
President, Ms. Jody
McPeak, Rohloff Sand & Gravel
Company, Midland,
Michigan, for Respondent.
Before: Judge Barbour
In this civil penalty proceeding, brought
under section
105(d)
of the Federal Mine Safety and Health Act of 1977 (30
U.S.C.
§ 815(d) (the Act)), the Secretary of Labor (Secretary) on
behalf
of her Mine Safety and Health Administration (MSHA) seeks
the
assessment of civil penalties against Rohloff Sand & Gravel
Company
(the company) for five alleged violations of
mandatory
safety
and health standards for surface metal and nonmetal mines.
The
Secretary charges the violations occurred at the company's
sand
and gravel pit, located in Tuscola County, Michigan. The
company
raises various defenses and argues the amount of the
penalties
will affect adversely its ability to continue in
business. The case was heard in Midland, Michigan. At the close
of
the hearing, the parties waived the filing of briefs and
submitted
the case for decision.
STIPULATIONS
The parties stipulated the Commission has
jurisdiction over
the
proceeding; the mine is subject to the provisions of the Act;
the
company owns and operates the mine; the mine affects
interstate
commerce; the company's employees worked a total of
1,998
man hours during 1996, and the company was not cited for
any
violations at its facility from September 1994 to July 1997
(Tr.
10-11; Joint Exh. 1). They also agreed
that in order to
abate
the alleged violation of a noise standard, the company
expended
$237.80 for sound deadening materials and $300 for labor
(Tr.
11; Joint Exh. 1).
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY
4563927 9/4/96 56.5050 $50
The citation states:
On September 4, 1996, the operator of
the Northwest 95
dragline was exposed to a mixed noise
level of 222.60% as
measured with a noise dosimeter for a full
shift. This
amount exceeded the permissible exposure
limit of 100%
times the instrument sampling factor
(1.32) for dosimeter
noise sampling. This is equivalent to an 8-hour exposure
at 95.7 dBA. There was no barrier between the cab
and the motor nor was there an[y] sound
dampening material
in the cab. The [dragline] operator was wearing hearing
protection
(Gov. Exh. 1).
At the mine, sand and gravel is extracted
by a dragline from
a
pond and a bank and is processed through a wash plant (Tr. 23).
On
September 4, 1996, MSHA Inspector James Hautamaki went to the
mine
to conduct a noise survey. The purpose
of the survey was to
determine
the level of noise to which the dragline operator was
exposed
(Tr. 24). Terry Timmons was operating
the dragline (Tr.
25,
27). (In addition to operating the dragline,
Timmons served
as
the mine foreman.) Timmons was seated in
the dragline's cab,
approximately
6 feet from the its engine (Tr. 29). He
was
digging
sand from the pond, and he was wearing hearing
protection.
The night before the inspection Hautamaki
calibrated his
dosimeter
and sound meter (Tr. 29). Hautamaki
attached the
dosimeter
to Timmons' clothing, as near as possible to Timmons'
ear. Timmons wore the dosimeter for the full shift
(Tr. 28-29).
Throughout
the shift, Hautamaki spot-checked the sound level with
the
sound meter (Tr. 28).
The dosimeter, which measured the average
ambient noise to
which
Timmons was exposed during the course of the shift,
recorded
an exposure level of 222.60 percent.
This meant that
Timmons
was exposed to an average of approximately 95.7 dBA (Tr.
32,
see also Tr. 76, 77). Under section
56.5050, the sound level
limit
for an 8 hour shift is 90 dBA.
Therefore, Hautamaki cited
the
company (Gov. Exh. 1).
In Hautamaki's opinion most of the noise
came from the
dragline's
engine compartment. Because Timmons was
wearing
hearing
protection, Hautamaki did not think the sound was likely
to
injure Timmons (Tr. 32). However, if
Timmons had not been
wearing
protection, or if he had improperly worn it, he would
have
been in danger of suffering a hearing loss (Tr. 32-33).
Hautamaki maintained the company's failure
to comply with
the
standard was the result of its "low" negligence (Tr. 33). He
did
not think the company knew Timmons was over- exposed, and he
noted
the company had taken the precaution of providing Timmons
with
hearing protection (Tr. 38).
MSHA Inspector Clyde Brown testified
concerning the steps
taken
by the company to abate the condition.
Brown, who had
conducted
approximately 100 noise surveys, went to the mine on
July
1, 1997. He inspected the dragline and
found the company
had
added a barrier between the operator's compartment and the
engine. The company also had installed acoustical
insulation
(Tr.
48).
Brown conducted a noise survey. He found the dragline
operator
was exposed to noise at 90.8 percent of the permissible
limit,
an exposure level equivalent to approximately 89 or 88 dBA
(Tr.
49, 82). Therefore, Brown terminated the
citation.
The company expended $537.80 on materials
and labor to meet
the
noise level requirements (Joint Exh. 1, 9; Tr. 11). In
Brown's
view, the barrier and insulation totally eliminated the
possibility
the dragline operator would suffer a hearing loss
(Tr.
53).
MSHA's Industrial hygienist George Schorr
testified
concerning
the dangers of high noise levels and the ways in which
the
levels can be controlled. He explained
that while he does
not
conduct noise inspections, he reviews the results of the
inspections
and offers suggestions on how to reduce noise levels
(Tr.
59). In Schorr's opinion, noise above
the standard can
cause
both temporary and permanent hearing loss.
For a permanent
loss
to occur the excessive notice must continue over a period of
time
(Tr. 66). The loss is usually at
specific frequencies,
which
means the victim loses the ability to hear certain vowel
sounds
and can no longer perceive some speech patterns (Tr. 85).
On a dragline, compliance can be obtained
by either
reducing
the time the dragline operator is exposed to the noise
(Tr.
69), or by installing a barrier between the operator and the
engine
compartment and acoustically insulating the dragline
operator's
cab, or by a combinating of both approaches (Tr.
67-69,
see also Tr. 70-71). The latter measures
block the noise
that
goes directly to the operator as well as the noise that
reverberates
off the interior of the cab (Tr. 67-69).
Schorr testified that all Northwest 95
draglines in MSHA's
North
Central District (the Duluth district) have been brought
into
compliance with the noise standard (Tr. 78).
He stated, "In
all
cases when it comes to draglines we know . . . there are
achievable
controls that can reduce the noise below the
permissible
exposure limit" (Id.). Schorr
estimated the cost of
materials
necessary to achieve compliance is "under $1,000" (Tr.
81). He did not believe the
cost to be out of proportion to the
benefit
achieved because compliance protects a miner from
lifelong
hearing loss (Tr. 81, 83). He described
installation of
a
barrier and insulation as "a fairly simple fix and fairly easy
to
do," and the reduction in the noise level that the
installation
achieves as "fairly significant" (Tr. 82).
Rohloff testified that it was obvious to
the company the
dragline
was too noisy, but the company did not know its exact
noise
level until Hautakai conducted the survey.
Nevertheless,
because
the company was concerned about the noise, the company
purchased
hearing protection, and Rohloff instructed those
operating
the machine to wear the protection at all times (Tr.
92-93).
THE VIOLATION, GRAVITY AND
NEGLIGENCE
Section 5050(a) establishes permissible
noise exposure
levels
based on a time-weighted average.
Section 56.5050(b)
requires
feasible administrative or engineering controls to be
used
when noise exposure exceeds the permissible levels. If
these
measures fail to reduce noise exposure levels sufficiently,
personal
protection equipment must be used.
In Callanan Industries, Inc., 5 FMSHRC
1900 (November 1983),
the
Commission held the Secretary establishes a violation of
section
56.5050 by proving:
(1) a miner's exposure to noise
levels in excess of
the limits specified in the standard; (2)
a technologically
achievable engineering control that could
be applied to
the noise source; (3) the reduction in the
noise level
that would be obtained through
implementation of the
engineering control; (4) a reasoned
estimate of the
expected economic costs of the
implementation of the
control; and (5) a demonstration that the
costs of the
control are not wholly out of proportion
to the expected
benefits (5 FMSHRC 1909).
The Secretary proved all of these
elements. Rohloff did not
dispute
the results of the noise survey conducted by Hautamaki,
and
the results established Timmons was exposed to an ambient
noise
level above that permitted by the standard (Tr. 32, 76,
77). As both the testimony and the abatement of
the violation
show,
engineering controls to reduce the noise level were
available
to the company (Tr. 48). There is no
suggestion the
company
had difficulty finding the barrier material or the
acoustical
insulation, and given Schorr's testimony that no
similar
draglines in the district were out of compliance (Tr.
78),
I conclude the materials readily were available. Further,
it
is clear that the barrier and the acoustical insulation
produced
a decrease in sound sufficient to bring the ambient
noise
level into compliance (Tr. 74, 78-79).
Schorr testified
the
cost of obtaining such compliance would be under $1,000
(Tr.81),
as indeed it was (Joint Exh. 1 9). The actual cost --
$537.80
-- resulted in a reduction of approximately 6.7 dBA (Tr.
81),
well within costs the Commission has found previously to be
not
unreasonable (Explosives Technologies International, Inc., 14
FMSHRC
59, 63-64 (January 1992); A.H. Smith, 6 FMSHRC 199, 203
(February
1984); Callanan Industries, Inc., 5 FMSHRC 1900,
1911-12
(November 1983)).
The fact Timmons was wearing hearing
protection, does not
excuse
the violation, but does mitigate its gravity.
Hautamaki
noted
that without the properly worn protection Timmons would
have
been in danger of suffering a loss of hearing (Tr. 32). I
infer
from this the converse is true and that Timmons was not in
danger
of suffering a loss of hearing.
Therefore, I conclude the
violation
was not serious.
I also conclude the company was negligent
in allowing the
violation
to exist. Rohloff was candid in stating
it was obvious
the
dragline was too noisy (Tr. 9). While
purchase of the
hearing
protection was commendable, it was the company's duty to
have
the ambient noise tested so the company could ensure
compliance
with section 56.5050. Instead, it waited
for MSHA to
test
and thus failed to meet the standard of care required.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY
4564290 7/1/97 56.11027 $81
The citation states:
The work platform around the plant
water pump was not
provided with handrails. An employee working on the
platform could slip and fall into the
water. An employee
goes
on the work platform once a day (Gov. Exh. 5).
Hautamaki testified that in June or July
1996, before the
mine
began operating, he went to the facility to assign it an
MSHA
I.D. number. While there, Timmons
requested he "just kind
of
give . . . [the mine] a quick look over" (Tr. 96). During the
"look
over" Hautamaki saw a floating pump platform on the pond.
He
also saw a gangplank on the bank.
Hautamaki told Timmons if
the
platform and gang plank were going to be used by miners on a
regular
basis, the company needed to have handrails installed on
them
in order to prevent the miners from falling into the water
and
possibly drowning (Tr. 34, 96-97, 98-99).
When Brown inspected the mine on July 1,
1997, he observed
the
same platform and gangplank. Neither had
handrails (Tr.
100). Irving Gilley, who was then the foreman, told
Brown that
due
to a problem with a valve on the pump, he had to go on the
platform
once a shift to prime the pump (Tr.
101-102). The
platform
was made of steel, and measured approximately 10 feet by
12
feet. Brown estimated the water under it
was 15 to 20 feet
deep
(Tr. 102).
Brown feared when the deck of the platform
became wet from
dew,
rain, ice, or snow a person was likely to slip and fall into
the
water. Brown also believed such a slip
or fall was likely to
result
in permanently disabling injuries (Tr. 103).
Therefore,
he
found the lack of handrails constituted a significant and
substantial
contribution to a mine safety hazard (S&S) (Id.). He
testified
"quite a few deaths and serious accidents [occur] on
dredges
and work platforms, and pump stations" and he identified
a
MSHA news release, dated November 5, 1997, that noted there had
been
13 drowning deaths at surface metal and nonmetal facilities
since
April 1996 (Id.; Gov. Exh. 6).
He regarded the company as moderately
negligent in failing
to
install the handrails (Tr. 105). He
testified Gilley told him
the
company had started to construct the handrails but had not
finished
(Tr. 107).
THE VIOLATION, S&S, GRAVITY AND
NEGLIGENCE
Section 56.11027 requires "working
platforms" to be
"provided
with handrails."
The floating platform was a working
platform. I credit
Brown's
testimony that Gilley told him the pump needed to be
primed
once a shift (Tr. 101-102). I therefore
conclude that,
at
least at the time of the inspection, daily work was done
on
the platform. I realize Rohloff argued
it was not typical
for
someone to go on the platform every day, that "[i]t would
be
more monthly" (Tr. 171), but there is no reason why Gilley
would
have misstated the facts to Brown, and even if the
visits
were monthly, rather than daily, I still would
conclude
the platform was a working platform within the
meaning
of the standard. In my view, the visits
must be
much
more infrequent to make the standard inapplicable
(see
e.g. Empire Iron Mining Partnership 19 FMSRHC 1912,
1920-21
(ALJ Hodgdon)).
A violation is properly designated S&S
if "based upon the
particular
facts surrounding the violation there exists a
reasonable
likelihood the hazard contributed to will result in an
injury
or illness of a reasonably serious nature" (Cement
Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981)). To
establish
the S&S nature of a violation, the Secretary 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 contributed
to will result in an injury; and (4) a
reasonable
likelihood that the injury in question
will be of
a reasonably serious nature (Mathies Coal
Co., 6 FMSRHC
1, 3-4 (January 1984)).
Evaluation
of the reasonable likelihood of injury, is made in the
context
of "continued mining operations" (U.S. Steel Mining Co.,
6
FMSHRC 1573, 1574 (July 1984)).
I have concluded there was a
violation. I also conclude
there
was a discrete safety hazard contributed to by the
violation,
in that without a handrail around the platform, the
likelihood
was increased that a miner who slipped or fell would
tumble
from the platform into the pond. The
miner, who would
be
wearing work shoes and work clothing, would be weighed
down. The water around the platform was too deep to
stand. The miner could drown -- a reasonably serious
result,
to say the least. I further conclude the
Secretary
proved
there was a reasonably likelihood a miner would fall
and
drown. As mining operations continued
through inclement
and
increasingly cold weather, it became more and more likely
a
miner would slip and fall into the pond and there were
few
other miners present who could help the victim.
In addition to being of an S&S nature,
the violation was
serious. The gravity of a violation is judged by the
injury
that
can result from it and the possibility of the injury
occurring. Here, the injury -- death by drowning -- was
of
the
upmost gravity and was more than a possibility.
I accept Hautamaki's testimony that
approximately one year
before
the citation issued, he told Timmons
handrails would be
needed
(Tr. 34, 96-97, 98-99). Timmons was the
agent of the
company. Thus, the company knew what was required well
in
advance
of Brown's inspection. The fact the
handrails were not
installed
on July 1, 1997, can only be attributed to the
company's
negligence.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY
4564287 6/30/97 56.18010 $50
The citation states:
There was no one on the property
currently trained in
first aid.
If an injury were to occur, the severity
could be compounded by an untrained person
(Gov. Exh. 7).
Brown testified he asked Gilley whether
anyone at the mine
was
trained to provide first aid. Gilley
responded Timmons had
been
trained, but after Timmons left, no one with current
training
worked at the mine (Tr. 109). Brown
believed failing to
have
an employee at the mine who was currently trained in first
aid
was a violation of section 56.18010 (Tr. 109-110; Gov. Exh.
7). Brown considered it unlikely the lack of
training would lead
to
an injury. He also believed the company,
through Rohloff or
Gilley,
should have known no person was trained and should have
corrected
the problem (Tr. 110-111, 113).
Rohloff testified he was unaware of the
requirement to have
a
trained person present at the mine during all working shifts
(Tr.
116). Rohloff speculated the
requirements of section
56.18010
"probably were discussed with . . . Timmons" (Tr. 116),
but
that Timmons left the company in December 1996, more than 6
months
before the citation was issued (Id.).
Upon becoming aware of the requirement, Rohloff
made it
company
policy to train all employees at the mine (Tr. 116).
Rohloff
stated the closest ambulance service was 10 miles from
the
mine, and the closest major city, Saginaw, had a helicopter
"medivac"
service (Tr. 118).
THE VIOLATION. GRAVITY AND
NEGLIGENCE
The standard requires an individual
capable of providing
first
aid to be present at the facility on all working shifts.
In
addition, the individual's training must be current.
There
is no doubt the violation existed. Brown
was told by
Gilley
that no person at the mine had up-to-date training
(Tr.
109), and Rohloff stated he was unaware of the
requirement.
(Tr. 116).
Brown did not think the violation was
serious, and
neither
do I. There is no indication the mine
had a history
of
accidents requiring the administration of first aid to
miners. Nor is there any indication the mine
contained
hazards
more dangerous than those faced by miners at
similar
facilities. According to Rohloff, Gilley
once
had
been certified as trained in first aid, but his
certification
had lapsed (Tr. 151). I take Rohloff at
his
word, and I believe Gilley's prior training diminished
whatever
hazard resulted from the violation. Moreover, any
gravity
was mitigated further by the facility being within 10
miles
of ambulance service and within range of a "medivac"
service.
The company obviously was negligent. Rohloff admitted
he
was unaware of the requirement (Tr. 116).
Rohloff was
responsible
for knowing what was needed to comply.
In failing
to
make certain a miner with current training was present at
the
mine when it was in operation, he exhibited a lack of
the
care required of him.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY
4564289 6/30/97 12028 $50
The citation states:
The continuity and resistance of the
grounding system
was not tested annually. Testing the grounding system
would ensure a low resistance path for
fault current (Gov.
Exh. 8).
In 1996, before the plant went into
production, Hautamaki
discussed
the need for continuity and resistance testing with
Timmons. Huatamaki told Timmons testing needed to be
done before
the
plant began operating and yearly thereafter (Tr. 134-135)).
On June 30, 1997, the plant was operating
(Tr. 130-131).
During
an inspection on that date, Brown discussed continuity and
resistance
testing with Gilley. Gilley told Brown
he did not
know
how to test the continuity and resistance of the ground
system,
and therefore it had not been done (Tr. 123, 125-126).
Were this all of the testimony regarding
the alleged
violation,
I would find the Secretary met her burden of proof.
However,
there is more. The record is clear that
at some point
after
installation of the grounding system and prior to June 30,
1997,
continuity and resistance testing was performed.
Judge: Do you know if continuity and resistance
testing had been conducted previously at
this facility?
Inspector Brown: [B]efore we go to a property we go
over the previous inspection. And that box [on the form
an inspector reviews prior to conducting
an inspection]. . .
said continuity and resistance yes or no,
it said yes, . . .
It was prior to my inspection. Somebody had done a
continuity and resistance test (Tr. 131).
THE VIOLATION
The standard requires testing of the
continuity and
resistance
of grounding systems immediately after installation
"and
annually thereafter" (30 C.F.R. §56.12028). The Secretary
established
through Brown's testimony that Gilley did not know of
any
tests that had been conducted and that Gilley did not know
how
to conduct the required tests (Tr. 123, 125-126). However,
the
Secretary's allegation is, "The continuity and resistance of
the
grounding system was not tested annually" (Gov. Exh. 8). To
meet
her burden of proof, the Secretary had to establish no tests
were
conducted within a year of the previous tests.
She did not
establish
when the prior tests were conducted.
Therefore, I
cannot
find the tests were not conducted annually.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY
4564291 7/1/97 15001 $50
The citation states:
A stretcher and blanket [were] not
provided as part of
the first aid supply (Gov. Exh. 9)
Section 56.15001 specifies the first aid
materials an
operator
must provide. The materials include stretchers and
blankets. Brown testified on July 1, 1997, Gilley
looked for,
and
could not find, a stretcher or a blanket at the mine (Tr.
138). Brown too did not see the items (Tr.
139). Brown thought
the
missing equipment was not likely to cause an injury. Brown
found
the company negligently failed to provide them (Tr. 139).
Rohloff maintained the company had
designated two sheets of
plywood
as stretchers (Tr. 143-147). They were
located in the
tool
trailer (Tr. 148). In addition, there
was a piece of cloth,
"a
curtain of some sort," that was intended to serve as a blanket
(Tr.
143). However, Rohloff also testified
Gilley may not have
known
the location of the plywood pieces and may not have known
the
cloth could be used a blanket because Gilley was not "up to
speed"
at the time of the inspection (Tr. 147).
THE VIOLATION, GRAVITY AND
NEGLIGENCE
Section 56.15001 states in pertinent part,
"Adequate
first-aid
materials, including stretchers and blankets, shall
be
provided at places convenient to all working areas."
Brown
did not see a stretcher and blanket, and his testimony
that
Gilley looked for and could not find them was not
disputed
(Tr. 138-139). I need not reach the
question of
whether
the plywood boards and the cloth actually were on-site
and
if so were "adequate," because the fact Gilley could
not
locate them establishes the violation.
To "provide"
something,
is to make it available ("Provide" WWWebster
Dictionary,
http://www.m-w.com/cgi-bindictionary).
Gilley
represented
the company at the work site. He could
not
make
available items he could not find.
The violation was not serious. There is no indication in
the
record the company had a history of accidents.
Moreover, as
Rohloff
pointed out, much of the time there were only two people
at
the site. If one were injured, the
utility of a stretcher
would
have been negligible. Nevertheless,
reasonable care, which
the
company failed to exercise, required the first aid items be
provided.
OTHER CIVIL PENALTY CRITERIA
HISTORY OF PREVIOUS VIOLATIONS
The company has no applicable history of
previous violations
(Joint
Exh. 1 7).
SIZE OF BUSINESS
Counsel for the Secretary agreed the company
is small in
size
(Joint Exh. 1 5; Tr. 15).
ABILITY TO CONTINUE IN
BUSINESS
The burden is on the operator to come
forward with proof the
size
of any penalty assessed will affect its ability to continue
in
business. The company offered a
financial statement prepared
by
the company's CPA (Resp. Exh. 2). The
statement, which is
dated
February 9, 1998, is the latest
available (Tr. 158). The
statement
was complied from information presented by the company.
Accordingly,
the CPA does not express assurance as to fiscal
conclusions
drawn from the information (Resp. Exh. 2 at 1).
Nevertheless,
Rohloff, a generally reliable witness, was asked
under
oath if he attested to the veracity of the report, and he
stated
he did (Tr. 159). Further, Jody McPeak,
who acts as
bookkeeper
for the company, also stated the report was accurate
to
the best of her knowledge (Tr. 168-169).
There is no reason
why
the company would falsify the report which was not prepared
for
the hearing, and I credit its accuracy.
The report indicates that as of December
31, 1997, the
company
had a gross profit on sales of $37,816, and general and
administrative
expenses of $42,798 (Resp. Exh. 2 at 3).
Thus,
the
company lost $4,982 for the 9 months ending December 31(Id.;
Tr.
159). More to the point, the report
shows the company is
carrying
a long term debt of $321,594 (Id. at 2), $212,691 of
which
is owed to Michigan National Bank.
Rohloff testified that
instead
of calling the note and sending the company into
bankruptcy,
the bank agreed to a one year extension on the note
(Tr.
164). Rohloff also testified the company
has a current
contract
from which it expects a small profit of $2,500 (Tr.
165-166). Rohloff, who does not take a salary from the
company
(Tr.
164, 166), described the company as "financially strapped"
(Tr.
163). McPeak characterized it as
"running on empty" (Tr.
167).
I conclude from the report and the
testimony of Rohloff and
McPeak
that the company is indeed struggling to survive, and I
find
the amount of the penalties assessed will adversely affect
the
company's ability to continue in business.
Accordingly, I
will
reduce by half what I would assess otherwise.
GOOD FAITH IN ATTEMPTING TO ACHIEVE RAPID
COMPLIANCE
All of the violations were abated within a
time that was
acceptable
to MSHA, and I find the company exhibited good faith
in
attempting to achieve rapid compliance.
CIVIL PENALTY ASSESSMENTS
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT
4563927 9/4/96
56.5050
$50 $25
The violation was not serious and the
company was negligent.
These
criteria and the company's history of previous violations,
its
size, and its good faith abatement normally would warrant a
penalty
of $50. However, because an assessment
of such size
would
adversely affect the company's ability to continue in
business,
I find a $25 penalty is appropriate.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT
4564290 7/1/97
56.11027
$81 $62
The violation was serious and the company
was negligent.
These
criteria and those referenced above normally would warrant
a
penalty of $125. However, I find a $62
penalty is appropriate.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT
4564287 6/30/97 56.18010 $50 $25
The violation was not serious and the
company was negligent.
These
criteria and those referenced above normally would warrant
a
penalty of $50. However, I find a
penalty of $25 is
appropriate.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT
4564289 6/30/97 12028 $50 $0
The Secretary did not prove the violation.
CITATION
NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT
4564291 7/1/97 15001 $50 $25
The violation was not serious and the
company was negligent.
These
criteria and those referenced above normally would warrant
a
penalty of $50. However, I find a
penalty of $25 is
appropriate.
ORDER
Citation No. 4564289 is VACATED. Within 30 days, the
company
WILL PAY civil penalties of $136. Upon
payment of the
assessed
penalties, this proceed is DISMISSED.
David Barbour
Administrative
Law Judge
Distribution:
Ruben
R. Chapa, Esq., Office of the Solicitor, U. S. Department
of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Luke
F. Rohloff, President, Rohloff Sand & Gravel Company, P. O.
Box
2715, Midland, MI 48641-2715 (Certified Mail)
dcp
