<DOC>
[DOCID: f:ct200035.wais]

 
ALLIED CUSTOM CYPSUM, INC.
May 5, 2000
CENT 2000-35-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                           May 5, 2000

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. CENT 2000-35-M
             Petitioner        :  A. C. No. 34-01781-05509
          v.                   :
                               :  Allied Custom Gypsum Fairview
ALLIED CUSTOM GYPSUM INC.,     :  Mine
             Respondent        :

                            DECISION

Appearances:  Ernest A. Burford, Esq., Office of the Solicitor,
              U.S. Department of Labor, Dallas, Texas, for
              Petitioner;
              Peter T. VanDyke, Esq., McAfee & Taft, Oklahoma City,
              Oklahoma, for Respondent.

Before:  Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil
Penalty brought by the Secretary of Labor, acting through her
Mine Safety and Health Administration (MSHA), against Allied
Custom Gypsum, Inc., pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  815.  The petition
alleges three violations of the Secretary's mandatory health and
safety standards and seeks a penalty of $165.00.  A hearing was
held in Oklahoma City, Oklahoma.  For the reasons set forth
below, I vacate the three citations and dismiss the proceeding.

                           Background

     The Fairview Mine is a small gypsum mine, owned and operated
by Allied Custom Gypsum, near Fairview, Oklahoma.  Eight
employees usually work at the mine, which consists of a mine and
crusher plant.  The crusher is portable and can be moved on mine
property.

     The mine and crusher were inspected on July 29, 1999, by
MSHA Inspector W. DeWayne Thompson and the supervisor of the
local MSHA Field Office, Art Ellis.  During the inspection,
Thompson issued several citations.  The company contested three
of them, which are discussed below.

             Findings of Fact and Conclusions of Law

Citation No. 7878361

     Inspector Thompson observed a portable diesel fuel tank on a
trailer.  The tank had a sign on it which stated:  "Danger
Flammable."  (Govt. Ex. 4, Resp. Ex. G-2.)  Part of the sign was
partially obscured by dust which had adhered to diesel fuel
apparently spilled during the loading of the tank.  It was
extremely windy and dusty on the day of the inspection.

     The inspector issued Citation No. 7878361, alleging a
violation of section 56.1401 of the Secretary's regulations, 30
C.F.R.  56.1401, because:  "The portable diesel fueling trailer
was not provided with the proper warning to alert others to `no
smoking or using open flames.'  At present, only flammable
liquids signs are provided."  (Govt. Ex. 2.)  Section 56.1401
provides that:  "Readily visible signs prohibiting smoking and
open flames shall be posted where a fire or explosion hazard
exists."

     There is no dispute that the Respondent's sign did not
specifically state that smoking and open flames were prohibited.
Thus, it would appear that the company violated the regulation.
However, the inspectors permitted the company to abate the
violation by posting a sign that stated:  "Danger Diesel No
Smoking."  (Tr. 186.)  On its face, this sign does not prohibit
open flames.

     The regulation is clearly designed to prevent fires or
explosions.  I find that a sign that says "Danger Flammable" is
just as likely to serve that purpose as is a sign that states
"Danger Diesel No Smoking."  A reasonable person seeing a "Danger
Flammable" sign would know that smoking and open flames should be
kept away from the area.  Moreover, it is inconsistent on MSHA's
part to cite the company for not having a sign specifically
prohibiting smoking and open flames, and then to find that they
have satisfied the regulation with a sign that specifically
prohibits smoking, but not open flames.

     I conclude that Allied Gypsum's sign complied with the
intent and purpose of section 56.4101.  Accordingly, I will
vacate the citation.[1]

Citation No. 7878359

     During the inspection, Inspectors Thompson and Ellis asked
Alan Robinett, the plant manager, who was accompanying them on
the inspection, how the diesel fuel tank for the crusher's
primary drive motor was filled.  After he showed them, Thompson
issued Citation No. 7878359 alleging a violation of section
56.11001, 30 C.F.R.  56.11001, because:

          The company has not provided a safe means of access
     to the top of the fueling hatch for the diesel holding
     tank for the primary drive motor.  At present, to gain
     access they must stand on the mid-rail of the set of
     hand railing that surrounds the drive engine for the
     primary and reach over to remove the cover.  The hatch
     cover is approximately ten feet above the ground level
     and from the platform of the drive motor, about three
     feet from the hand railing that they use to stand on.

(Govt. Ex. 5.)

     Section 56.11001 requires that:  "Safe means of access
shall be provided and maintained to all working places."  The
Commission has held, with regard to an identically worded
regulation, that "the standard requires that each `means of
access' to a working place be safe."  Hanna Mining Co., 3 FMSHRC
2045, 2046 (September 1981); accord Homestake Mining Co.,
4 FMSHRC 146, 151 (February 1982).  In this case, the evidence is
that there were two means of access to the filler neck on the
fuel tank.  One was the one described in the citation and the
other was by reaching through an opening in the hand railing
instead of standing on it.[2]

     Inspector Thompson testified that reaching through the
opening was a safe means of access.  (Tr. 124-26.)  He also
testified that standing on the mid-rail, holding on to the top
rail, and using the free hand to unscrew the top off of the
filler neck and stick the nozzle of the hose used to fill the
tank into the filler neck was a safe means of access.  (Tr. 129-
30.)  Thus, if it was unsafe at all, the method demonstrated to
the inspector was unsafe only if the top rail was not held on to.

     The obvious conclusion to be drawn from this is that the
company provided safe means of access to the filler neck, but
that shorter employees may not always have availed themselves of
that means.  Consequently, I conclude that the company did not
violate the regulation and will vacate the citation.

Citation No. 7878362

     Inspector Thompson issued Citation No. 7878362, charging a
violation of section 56.14107(a), 30 C.F.R.  56.14107(a),
because:

               The head pulley to the Main Reversible
          Conveyor Belt for the primary was not guarded
          to prevent a persons [sic] from contacting
          the moving machine parts.  The ten inch
          smooth pulley was approximately 6.5 feet (2
          meters) above the spillage.  This condition
          expose [sic] employees to an entanglement
          hazard.  The moving machine parts could be
          accessed, but not easily, because of height
          of the head pulley, making the chance of an
          accident in [sic] unlikely.

(Govt. Ex. 8.)  The regulation states:

           56.14107  Moving machine parts.

               (a) Moving machine parts shall be
          guarded to protect persons from contacting
          gears, sprockets, chains, drive, head, tail,
          and takeup pulleys, flywheels, couplings,
          shafts, fan blades, and similar moving parts
          that can cause injury.

               (b) Guards shall not be required where
          the exposed moving parts are at least seven
          feet away from walking or working surfaces.

     The head pulley in question moves a conveyor belt which
carries material from the crusher and deposits it on a belt below
it.[3]  The material is conveyed on the lower belt to a pile
where it is removed by front-end loader.  Inspector Thompson
testified that he measured six feet eight inches from the top of
the head pulley to the top of the spillage under it.  He admitted
that the "6.5 feet" measurement in the citation was a mistake.
(Tr. 136.)  The company terminated the violation by removing the
spillage so that the distance from the ground to the pulley was
"about 7.5 feet."  (Govt. Ex. 8.)

     According to the inspector's notes, the head pulley is
"located in [a] remote section away from [a] common travelway"
and "no one is assigned to work on the ground" in the area.
(Govt. Ex. 10.)  It is apparent from the evidence that any work
performed in the immediate area of the head pulley would be to
adjust the lower belt.  The higher belt would not be operating
while that work is being discharged.  (Tr. 267-68.)  Moreover, it
was the company's policy to clean up the spillage at least once a
day.  (Tr. 270-71.)

     Although there is nothing to prevent miners from walking in
the vicinity of the head pulley, it is clearly not a common walk
way.  Someone would have to go out of his way to walk under the
head pulley and there is no reason why someone would just walk in
that area.  Consequently, the head pulley is not within seven
feet of a walking surface.  In addition, when work is being
performed on the lower belt, the upper belt is shut down and
would not be a hazard.  Accordingly, while operating, the head
pulley is not within seven feet of a working surface.  Finally,
most of the time, even if the area below it were a working
surface, the head pulley comes within the seven foot exception to
the regulation.  Therefore, I conclude that the Respondent did
not violate section 56.14107(a) and will vacate the citation.

                              Order

     It is ORDERED that Citation Nos. 7878359, 7878361 and
7878362 are VACATED and this proceeding is DISMISSED.

                              T. Todd Hodgdon
                              Administrative Law Judge

Distribution:

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)

Peter T. Van Dyke, Esq., McAfee & Taft, Two Leadership Tower,
10th Floor, 211 N. Robinson, Oklahoma City, OK 73102-7103
(Certified Mail)

**FOOTNOTES**

     [1]:  Although  mentioned  neither  in  the citation nor the
inspector's notes about the violation, the inspector  gave as one
of  the  reasons  for  issuing  the  citation  that  the sign was
partially  obscured  by  dust  and fuel.  However, it is apparent
from the picture of the tank, (Resp.  Ex.  G-2),  that  the  sign
could  still  be  read through the dust.  In addition, it is also
apparent that the windy,  dusty  conditions on the morning of the
inspection contributed to the obscurity.   Consequently, I do not
find that this condition was a violation.

     [2]: The evidence also indicated that only shorter employees
had to stand on the hand railing; the taller ones could reach the
filler neck standing on the platform.  (Tr. 258-59.)

     [3]: Contrary to the inspector's belief,  the  belt  was not
reversible.