.
NORTHWEST AGGREGATES
May 20, 1998
WEST 97-242-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                          May 20, 1998

SECRETARY OF LABOR,         :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :  Docket No. WEST 97-242-M
               Petitioner   :  A.C. No. 45-00020-05524
                            :
           v.               :  Docket No. WEST 97-257-M
                            :  A.C. No. 45-00020-05525
NORTHWEST AGGREGATES,       :
               Respondent   :  Mats Mats Quarry

                            DECISION

Appearances:  Cathy L. Barnes, Esq., Office of the Solicitor,
              U.S.  Department of Labor, Seattle, Washington,
              for Petitioner; Charles R. Bush, Esq., Vandeberg,
              Johnson, and Gandara, Seattle, Washington, for
              Respondent.

Before:  Judge Manning

     These cases are before me on petitions for assessment of
penalties filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Northwest
Aggregates, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  815 and 820.  The
petitions allege ten violations of the Secretary's safety
standards.  A hearing was held in Seattle, Washington.  The
Secretary filed a post-hearing brief.

           I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     The Mats Mats Quarry is an aggregate mine adjacent to the
Hood Canal in Jefferson County, Washington.  Material is drilled
and blasted at the site, sized and crushed, and shipped out on
barges.  MSHA Inspector Arnold Pederson inspected the quarry on
Monday, March 31, 1997, and Tuesday, April 1, 1997.  At the time
he started his inspection, the quarry was without electricity
because a thunderstorm disrupted the power in the region at about
8 p.m. on Sunday, March 30.  Power was not restored to the quarry
until about 8 p.m. on Monday, March 31.

     It is important to keep in mind that the Commission and the
courts have uniformly held that the Mine Act is a strict
liability statute.  See, e.g. Asarco v. FMSHRC, 868 F.2d 1195
(10th Cir. 1989).  "[W]hen a violation of a mandatory safety
standard occurs in a mine, the operator is automatically assessed
a civil penalty."  Id. at 1197.  In addition, the Secretary is
not required to prove that a violation creates a safety hazard,
unless the safety standard so provides.

     The [Mine Act] imposes no general requirement that a
violation of MSHA regulations be found to create a safety
hazard  in order for a valid citation to issue.  If conditions
existed which violated the regulations, citations [are] proper.

Allied Products Co., 666 F.2d 890, 892-93 (5th Cir.
1982)(footnote omitted).  The negligence of the operator and the
degree of the hazard created by the violation are taken into
consideration in assessing a civil penalty under section 110(i).
30 U.S.C.  820(i).

     A.  Docket No. WEST 97-242-M

     1.  Citation No. 7950096

     On March 31, 1997, MSHA Inspector Pederson issued a section
104(a) citation alleging a violation of 30 C.F.R.  56.20003(a).
In the citation, the inspector alleged that the passageway under
the roll crushers was not kept clean and orderly.  The citation
states that a large accumulation of dust and gear lubrication was
just below the ladder.  It states that the accumulation was two
feet deep and that it would be difficult for an employee to enter
the area to work on the discharge conveyor or to service the
tail-pulley bearings.  Inspector Pederson determined that the
violation was not of a significant and substantial ("S&S") nature
and that Northwest Aggregates' negligence was moderate.   The
Secretary proposes a penalty of $50 for the alleged violation.
The safety standard requires that "workplaces, passageways,
storerooms, and service rooms" be kept "clean and orderly."

     Inspector Pederson testified that the passageway under the
roll crushers was not clean or orderly.  He stated that there was
a large accumulation of dust and gear lubrication just below the
ladder.  (Tr. 11)  The crushers were at ground level and a ladder
led to an area below ground where the alleged violation occurred.
Inspector Pederson testified that the cited area provided access
to the tail pulley and to the part of the discharge conveyor that
is under the roll crusher.  (Tr. 13).  He stated that an employee
would need to enter the area if the crusher broke down or if the
rollers needed to be serviced.  He further stated that the
accumulated material was two to three feet deep, very slippery,
and presented a falling hazard.  (Tr. 14, 70).  The ladder
provided the only access to the area.  (Tr. 116).

     Kenneth Johnston, the quarry superintendent, described the
cited area as a pit under the roll crushers.  (Tr. 158).  Dust
and soap grease from the crusher accumulates in the pit.  The
crusher is designed so that the grease flows through the bearings
and out the other side.  The grease accumulates in the area under
the crushers.  He testified that about twice a year, an employee
will descend the ladder, clean out the pit area, and service the
crusher.  (Tr. 160-61).  He testified that no employees enter the
area without first cleaning out the accumulated dust and grease.

     I find that the cited area is not a workplace, passageway,
or storeroom and that the Secretary did not establish a
violation.  I credit Mr. Johnston's description of the area as a
grease pit under the crusher.  Although an employee can gain
access to the area by descending a ladder, it is not a
passageway.  Both parties agree that the cited area is very
messy.  It is highly unlikely that anyone would enter the area
unless he were required to.  Anyone entering the area would, by
necessity, have to clean up the area before attempting to service
or repair any equipment.  I credit Mr. Johnston's testimony as to
the quarry's procedures for cleaning the area when servicing the
crusher.  Finally, I believe that a greater hazard would be
created if employees were required to enter the pit on a regular
basis for the sole purpose of cleaning it out.  The company's
policy of cleaning the pit whenever an employee is required to
enter the area to repair or service equipment creates a safer
environment.  Accordingly, this citation is VACATED.

     2.  Citation No. 7950100

     On March 31, 1997, Inspector Pederson issued a section
104(a) citation alleging a violation of 30 C.F.R.  56.20003(a).
In the citation, the inspector alleged that an accumulation of
spilled 4" minus rock was present in the surge tunnel creating a
tripping hazard to a person needing to enter the tunnel to work
on the conveyor or on the electrical circuits.  He determined
that the violation was S&S and that Northwest Aggregates'
negligence was moderate.  The Secretary proposes a penalty of
$102 for the alleged violation.

     The surge tunnel, which is under a surge pile, contains a
conveyor system that is part of the quarry's portable crusher.
Inspector Pederson testified that a walkway is present along the
side of the discharge conveyor in the surge tunnel.  (Tr. 17).
He testified that anyone could walk into the area and stumble on
the loose rock.  He stated that 4" minus rock, which is rock that
is 4 inches in diameter or less, was present along the width of
the walkway for a distance of about 20 feet.  (Tr. 19).  The
accumulation was two to three inches deep.  (Tr. 129).  He saw no
evidence that anyone had started cleaning up the accumulation and
believes that the rock accumulated in the area over a period of
time.  (Tr. 19, 77, 133).  He believes that the conveyor system
had been operating while the accumulation was present.  (Tr. 77,
133).  Inspector Pederson determined that the violation was S&S
because it was reasonably likely that someone would trip and fall
on the accumulation and sustain a serious injury.  (Tr. 38).

     Mr. Kerry Gauthier, the operator of the portable crusher,
testified that he was responsible for operating, maintaining, and
cleaning up around the portable crusher, including the conveyor
system in the surge tunnel.  (Tr. 177).  He stated that he was
the only person who worked on the portable crusher.  He testified
that, at about noon on Saturday, March 29, the portable crusher
broke down.  Mr. Gauthier stated that the belt in the surge
tunnel started splitting and the rock cited by Inspector Pederson
spilled into the surrounding area.  (Tr. 181).  He testified that
the rock accumulated in about a half hour.  (Tr. 185).  Upon
discovering the problem, Mr. Gauthier shut down and locked out
the portable crusher.  (Tr.180, 183, 186).   He then developed an
informal plan to fix the crusher, to clean up accumulations, and
to return the portable crusher to production.  (Tr.183).  He
testified that he had not completed these tasks when Inspector
Pederson inspected the portable crusher.

     I find that the Secretary established a violation.  There is
no dispute that the accumulation described by the inspector was
present in the walkway beside the conveyor in the surge tunnel.
I find that this walkway was a "passageway," as that term is used
in the safety standard.  The spill occurred on Saturday at about
noon.  The mine did not operate on Sunday.  Mr. Gauthier
testified that he drove a truck on Monday.  (Tr. 180).  He
further stated that the accumulations had to be removed by
shovel.  There is no indication as to why the accumulation
remained along the walkway, except that Mr. Gauthier planned to
take care of all the problems with the portable crusher after he
was able to complete some welding on the crusher.  (Tr. 190).  He
apparently drove a truck on Monday because the welder was in use
elsewhere at the quarry on that day.  The hazard presented by the
accumulation was present on Saturday afternoon and on Monday.
Mr. Gauthier or another employee could have tripped on the
accumulation and sustained an injury.  It appears that Mr.
Gauthier may have walked through the accumulation on one occasion
to evaluate the problems with the conveyor system.

     I find that the violation was not S&S.  I reach this
conclusion because I find that it was not reasonably likely that
the hazard contributed to by the violation would result in an
injury.  Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  I
credit the testimony of Northwest Aggregates' witnesses that the
portable crusher was locked out and tagged out on the afternoon
of March 29.  The portable crusher did not operate between that
time and the inspection and the accumulation would have been
cleaned up before the crusher was started.  Thus, there was
little exposure to the accumulation.  In addition, it is unlikely
that any injury would have been of a reasonably serious nature.
I find that the gravity of the violation was moderate and that
Northwest Aggregates' negligence was also moderate.  A penalty of
$75 is appropriate for this violation.

     3.  Citation No. 7950101

     On March 31, 1997, Inspector Pederson issued a section
104(a) citation alleging a violation of 30 C.F.R.  56.14107(a).
In the citation, the inspector alleged that two accessible
conveyor idler rollers in the 4" minus surge tunnel were not
guarded to prevent a person from contacting the pinch point
between the roller and the belt.  The citation states that the
openings were about 36 inches wide and between 4 and 5 feet above
the ground.  He determined that the violation was S&S and that
Northwest Aggregates' negligence was moderate.  The Secretary
proposes a penalty of $102 for the alleged violation.  The safety
standard states, in part, that moving machine parts shall be
guarded to protect persons from contacting drive, head, tail, and
takeup pulleys and similar moving parts that can cause injury.

     Inspector Pederson testified that two idler rollers on the
4" minus surge tunnel conveyor were readily accessible because no
guards were present.  (Tr. 21).  He was not sure whether the
guards had been removed or if guards had never been present at
that location. (Tr. 82, 120).  Guards were in place along the
sides, but the front area was not guarded.  (Tr. 118).

     As stated above, Mr. Gauthier locked out and tagged out the
portable crusher, including this conveyor system, when the belt
began splitting on Saturday afternoon.  He testified that, as
part of the process of repairing and cleaning the crusher,  he
removed all of the guards on Saturday afternoon.  (Tr.189-90).
He stated that he needed to remove the guards to repair the
equipment and remove any accumulations.  (Tr. 184, 188).  He
further stated that all of the guards had been in place prior to
this breakdown, including the guards cited by Inspector Pederson
in this citation.  (Tr. 180, 188).  Mr. Gauthier further
testified that he placed all of the guards outside of the tunnel
so that they would not be in his way when he repaired the
equipment and cleaned the accumulation.  (Tr. 184).  I credit the
testimony of Mr. Gauthier.

     I find that the Secretary did not establish a violation
because there was no showing that the portable crusher was
operated without the cited guards in place.  The crusher was
locked out on Saturday and remained locked out at the time of the
MSHA inspection.  Indeed, because of the thunderstorm, the leads
to the primary transformer had been unhooked thereby cutting off
power to the entire quarry.  (Tr. 186).  Mr. Gauthier had the
only key to lock and unlock the power for the portable crusher.
(Tr. 183-84).  The guards were not removed until the portable
crusher was locked out and tagged out and I credit Northwest
Aggregates' evidence that the guards would have been replaced
before the crusher was unlocked.  The Secretary must show that
the equipment was operated without guards in place to establish a
violation.  In this case, the mine operator established that it
removed the guards to perform maintenance and to clean up
accumulations while the equipment was locked out.  Accordingly,
this citation is VACATED.

     4.  Citation No. 7950102

     On March 31, 1997, Inspector Pederson issued a section
104(a) citation alleging a violation of 30 C.F.R.  56.14112(b).
In the citation, the inspector alleged that the guards for the
self-cleaning pulley on the discharge conveyor under the
horizontal crusher were not properly secured to prevent anyone
from pushing them out of the way.  The citation states that the
guards were also bent.  He determined that the violation was not
S&S and that Northwest Aggregates' negligence was low.  The
Secretary proposes a penalty of $50 for the alleged violation.
The safety standard provides that guards shall be securely in
place while machinery is being operated.

     Inspector Pederson testified that the guards were between
one and two feet off the ground and he surmised that the guards
were pushed out by a bobcat during cleaning operations.  (Tr.
26).  He stated that the guards were very loose.  Id.  He was
concerned that someone could push the guard out of the way while
cleaning up with a shovel and become entangled in the pulley.
He believed that the portable crusher had been operated while the
guards were in this unsecured condition.  (Tr. 85).

     As discussed above, Mr. Gauthier testified that the portable
crusher was locked out on Saturday, March 29, due to mechanical
problems.  Mr. Gauthier also testified that the guards were not
fastened at the bottom at the time of the MSHA inspection.  (Tr.
186).   He stated that he removed the guards when he inspected
the crusher after he locked it out on Saturday.  Id.  He did not
refasten the guards at that time because he had to perform some
maintenance with a welder under that area.  He testified that
these guards were securely fastened when the crusher was
operating and that he would have made sure that they were secured
before unlocking the crusher to begin operations once the repairs
and cleanup had been completed.

     For the reasons discussed in the previous citation, I find
that the Secretary did not establish a violation.  There was no
showing that the crusher had been operated with loose guards or
that the guards would have remained unsecured once the crusher
began operating again.  Accordingly, this citation is VACATED.

     5.  Citation No. 7950103

     On March 31, 1997, Inspector Pederson issued a section
104(a) citation alleging a violation of 30 C.F.R.  56.14107(a).
In the citation, the inspector alleged that a guard was not
installed on the head pulley adjacent to the elevated walkway on
the 4" minus stacker conveyor.  The citation noted that few
employees would use the walkway because a ladder had to be used
to reach the walkway.  He determined that the violation was not
S&S and was caused by Northwest Aggregates' moderate negligence.
The Secretary proposes a penalty of $50 for the alleged
violation.

     Inspector Pederson testified that because a ladder was not
present at the time of his inspection, he did not enter the
elevated walkway.  (Tr. 29).  He stated that he observed the
violation from the ground.  He believes that employees may need
to get onto the walkway to perform routine maintenance.

     Mr. Johnston testified that the walkway is about 7 feet
above the ground at the tail pulley and 50 feet above the ground
at the head pulley.  (Tr. 162).  He further testified that
company procedures require employees to lock out and tag out the
equipment before gaining access to the walkway with the ladder.
The ladder is kept in a locked storage area to keep trespassers
from going up on the walkway when the mine is closed.  This
conveyor is not part of the portable crusher that was locked out
for repairs, as described above.

     I find that the Secretary established a violation.  The head
pulley was not guarded and it was immediately adjacent to a
walkway.  The fact that the walkway was not frequently used is
not controlling.  In addition, the fact that the company requires
employees to lock out and tag out the conveyor prior to entering
the walkway cannot be the basis for vacating the citation.  As
stated above, the Mine Act is a strict liability statute.  Sand
and gravel operators frequently require miners to lock out and
tag out equipment prior to performing any maintenance.  The
standard, by its own terms, only applies to "moving parts that
can cause injury."  The Commission held that the most logical
construction of guarding standards "imports the concepts of
reasonable possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness."  Thompson Bros.
Coal Co., 6 FMSHRC 2094, 2097 (September 1984).  The Commission
stated that the construction of safety standards involving
miners' behavior "cannot ignore the vagaries of human conduct."
Id. (Citations omitted).  In this case, it is possible that an
employee would travel along the walkway to service the conveyor
system without locking out the conveyor, especially if the
employee believed that his work could be completed quickly.   The
employee may not see the need to stop production for such a
simple task and may take a shortcut that could lead to a serious
injury.

     I find that the violation is not serious because the
violative condition was in a remote location.  The violation was
not S&S because the possibility of an injury was slight.  I also
find that Northwest Aggregates' negligence is moderate to low,
due to the location of the violation.  A penalty of $50 is
appropriate for this violation.

     6.  Citation No. 7950107

     On April 1, 1997, Inspector Pederson issued a section 104(a)
citation alleging a violation of 30 C.F.R.  56.11012.  In the
citation, the inspector alleged that the barge access ramp at the
loading area had two holes in the planking that forms the surface
of the ramp.  The citation states that the openings were about
six by two feet and four by two feet.  He determined that the
violation was S&S and that Northwest Aggregates' negligence was
moderate.  The Secretary proposes a penalty of $102 for the
alleged violation.  The safety standard provides, as relevant
here, that openings above, below, or near  travelways through
which persons may fall shall be protected by covers.

     Inspector Pederson testified that trucks use the ramp to
drive onto barges to dump the processed rock.  (Tr. 34).  He
stated that employees also walk onto the barges and that he was
concerned that an employee could fall into one of the openings
and break a leg, especially if it was dark outside.  (Tr. 35; Ex
P-1).  Employees of Northwest Aggregates showed Inspector
Pederson the holes at the time of his inspection and also showed
him the repairs that were being made.  (Tr. 91).  He testified
that it was his belief that the condition had existed for at
least one day.  Finally, he testified that the holes should have
been immediately covered, but admitted that repairs could not be
made unless a barge was present.  (Tr. 139-40).

     Mr. Johnston testified that the holes developed in late
March and that he immediately ordered planking to repair the
holes.  (Tr. 164, 166).  He stated that as soon as a barge
arrived, the holes were repaired.  He described the function and
design of the ramp.  The ramp is hinged from the heel and
supported by a head frame and counterweight system so that it can
be raised and lowered.  (Tr. 165).  The ramp is always raised,
unless a barge is present.  To perform maintenance on the ramp,
it must be in a horizontal position.  It can only be lowered to
that position when a barge is present.  He testified that the
holes were repaired when a barge arrived on April 1.  (Tr.
167-68).  The truck drivers' records indicate that a barge had
also been present on either March 28 or 29.  (Tr. 174, Ex. P-6).

     I find that the Secretary did not establish a violation.
Except at those times when the ramp was down, the ramp was not a
travelway and the holes did not present a hazard.  Inspector
Pederson was not concerned that anyone would fall through the
holes, but that someone's leg or foot could get caught in one of
the holes.  There is no evidence as to when the holes developed.
The Secretary did not establish that the ramp was down when holes
were present, except perhaps on the day that the holes first
developed.  The holes were caused by the truck traffic on the
barge.  The only time anyone walks on the ramp is when a barge
first arrives because someone needs to check the depth of the
water.  The Hood Canal is a natural waterway that is subject to
tides.  The ramp was down on either March 28 or 29, and again on
April 1.  The holes may have developed on one of those days.
Northwest Aggregates began repairing the holes as soon as the
April 1 barge arrived.  Indeed, the operator was repairing the
holes at the time of Inspector Pederson's inspection.  The
evidence does not show whether there was any exposure to the
hazard presented by the holes.  Northwest Aggregates repaired the
holes as soon as possible after they developed.  Accordingly,
this citation is VACATED.

     7.  Citation No. 7950109

     On April 1, 1997, Inspector Pederson issued a section 104(a)
citation alleging a violation of 30 C.F.R.  56.11027.  In the
citation, the inspector alleged that the upper grizzly work deck,
where the drive motor and v-belt drive are located, did not have
a railing to prevent a person from falling.  The citation states
that the work deck was about 20 feet high and that it is the
company's policy to require employees to wear a safety belt and
line when working at that location.  He determined that the
violation was S&S and that Northwest Aggregates' negligence was
low.  The Secretary proposes a penalty of $119 for the alleged
violation.  The safety standard provides, in part, that scaffolds
and working platforms shall be provided with handrails.

     Inspector Pederson testified that there was no railing on
the upper deck.  (Tr. 40; Ex. P-2).  He testified that he
determined that the violation was S&S because he thought that it
was reasonably likely for an accident to occur resulting in
serious injuries.  (Tr. 48).  He stated that he believes that an
accident was reasonably likely because there was no place to hook
up a safety line when traveling to the work platform.  (Tr. 145).
He stated that the use of safety lines is not an alternative in
the safety standard.  (Tr. 123).  He admitted that if an employee
were tied off when working on the work deck, he would not fall
far.  (Tr. 95, 145).

     Dale Inwards, a foreman for Northwest Aggregates, testified
that the mine uses safety belts and lines when doing any work at
the cited area.   (Tr. 194).   He stated that employees need to
go to the area when a belt breaks.  (Tr. 195).

     I find that the Secretary established a violation.  Although
employees do not need to work on the drive motor or v-belt drive
on a regular basis, I find that the deck for the motor and v-belt
drive is a "working platform," as that phrase is used in the
safety standard.  Exhibits P-2 and P-3 show the cited working
platform.  I conclude that the use of safety belts and lines is
not an alternative means of compliance.  Section 56.15005 is an
independent safety standard that requires safety belts and lines
to be worn "when persons work where there is a danger of
falling."  Nothing in the Secretary's safety standards suggests
that safety belts and lines may be used in lieu of rails on
scaffolds and working platforms.

     I find that the Secretary did not establish that this
violation was S&S.  Inspector Pederson based his S&S finding on
the fact that he was concerned that employees would not have an
adequate place to attach their lanyard when traveling to the work
platform.  There is a place to tie off a safety line at the cited
area.  (Ex. P-2).  Northwest Aggregates contends that the
question of safe access to the work area is not an issue in this
citation.  I agree.  The inspector's concerns about access to the
work platform would remain whether or not hand rails are present.
(Ex. P-2).  There seems to be no dispute that employees used
safety belts and lines when working in the cited area.  (Tr.
48-49).  I find that the Secretary did not establish that it was
reasonably likely that the hazard contributed to by the violation
would result in an injury, given that safety belts and lines were
used in the area.  I find that the gravity of the violation was
moderate and that Northwest Aggregates' negligence was also
moderate.  I find that a penalty of $75 is appropriate for this
violation.

     8.  Citation No. 7950111

     On April 1, 1997, Inspector Pederson issued a section 104(a)
citation alleging a violation of 30 C.F.R.  56.12004.  In the
citation, the inspector alleged that two power cables for the
grizzly drive motors had rips and cuts in their outer jackets
that could easily lead to a short circuit or ground fault.  The
citation states that the rips and cuts could allow dirt and
moisture to enter the cable and that the condition presented an
electric shock hazard.  Inspector Pederson determined that the
violation was S&S and was caused by Northwest Aggregates' low
negligence.  The Secretary proposes a penalty of $119 for the
alleged violation.  The safety standard provides, in part, that
electrical conductors exposed to mechanical damage shall be
protected.

     Inspector Pederson testified that both cables had rips and
holes in the outer jacket.  (Tr. 51; Ex. P-3).  He stated that
water and dust could enter the cable and deteriorate the inner
insulated conductors.  He further stated that rocks and dust fall
from the grizzly onto the cables.  Inspector Pederson believed
that the condition could lead to a fatal injury.  (Tr. 52).  He
testified that even though bare wires were not exposed, the
damaged cables presented a serious electric shock hazard.  (Tr.
103-04).  Mr. Inwards testified that he saw that the outer jacket
on at least one of the cables was damaged after Inspector
Pederson inspected the grizzly.  (Tr. 196).  He believes that the
jacket was cut from rocks falling off trucks or off the side of
the grizzly.

     I find that the Secretary established a violation.  It is
clear that the cables were subject to mechanical damage and that
they were not sufficiently protected against such damage.  The
outer jacket on a power cable is designed to protect it from
mechanical damage.  The cables were subjected to such a heavy
amount of damage from falling rocks that the jackets were
insufficient to protect them.  Additional protection was required
by the standard.  The fact that the inner insulation was present
is not controlling.  The inner insulation provides electrical
separation between the phases, not mechanical protection.  As
Inspector Pederson stated, moisture and dirt could enter the
inner insulation and create conditions that could lead to a short
circuit or ground fault.

     I also find that the Secretary established that the
violation was S&S.  A citation is properly designated S&S "if,
based on the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious
nature."  National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  I
find that it was reasonably likely that the hazard contributed to
by the violation would result in an injury, assuming continued
normal mining operations.  The cables were damaged and were
subject to continuing damage.  The insulated conductors in the
cable were also subject to damage from moisture and dirt.  I
credit the testimony of Inspector Pederson that a short circuit
or ground fault was reasonably likely and that a fatal accident
could result.  I also accept the inspector's negligence
determination.  A penalty of $120 is appropriate.

     B.  Docket No. WEST 97-257-M

     1.  Citation No. 7950095

     On March 31, 1997, Inspector Pederson issued a section
104(d)(1) citation alleging a violation of 30 C.F.R. 
56.14107(a).  In the citation, the inspector alleged that the
surge pile discharge conveyor head pulley was not guarded.  The
citation states that the head pulley was next to an accessible
walkway at the crusher and that the guard had been removed and
stored under the shaft for the rotary screen.  The citation also
states that the crusher operator knew that the guard had been
removed.  It states that the foreman and superintendent visit the
crusher occasionally and should have noticed that the plainly
visible head pulley was not guarded.  Inspector Pederson
determined that the violation was S&S and was caused by Northwest
Aggregates' high negligence.  The Secretary proposes a penalty of
$1,000 for the alleged violation.

     Inspector Pederson testified that there was a walkway beside
the head pulley and "there might be an occasion for someone" to
be in the area.  (Tr. 54; Ex. P-4).  The pulley was within a foot
of this walkway.  The walkway ended a few feet from the head
pulley so employees would not pass through the area to go
somewhere else.  (Tr. 111).  Employees would not be near the head
pulley very often.  (Tr. 127-28).  He determined that the
violation was serious and S&S because the area was completely
exposed.  (Tr. 55-56).  He based his high negligence and
unwarrantable failure determinations on the fact that the crusher
operator was aware of the condition and the foreman and
superintendent visited the crusher.  He stated that the violation
was obvious.  Inspector Pederson testified that the crusher
operator stated that he had been operating the crusher for a few
days and the guard was off during that period.  (Tr. 56).
Inspector Pederson also relied on the fact that the condition had
not been entered in the onshift examination books.

     Walt Turner, a supervisory MSHA inspector at the time the
citation was issued, testified that he discussed this citation
with Mr. Johnston.  (Tr. 150).  Mr. Johnston advised him that the
guard had been off for about a week, but that he was not aware
that it was off.  Id.  Mr. Johnston testified that only one
person is normally at the crusher and he stands at the controls
near the office.  (Tr. 156; Ex. R-1). He stated that it is
company policy for the crusher to be locked out and tagged out
before any maintenance is performed.  If any maintenance or
service were required at the crusher, the crusher operator would
go to the electrical shed to lock out and tag out the crusher.
(Tr. 156).  He testified that the cited head pulley is in a
remote location and there would be no reason for anyone to be
there while the crusher was operating.  (Tr. 156, 161).

     For the reasons stated above with respect to Citation No.
7950103, the Secretary established a violation.  The citation was
issued at the permanent crusher, not the portable crusher that
had been locked out on Saturday for maintenance.  The head pulley
was not guarded and it was immediately adjacent to a walkway.
The citation cannot be vacated simply because the walkway is not
frequently used or the company has lock-out and tag-out
procedures.  The safety standard applies to moving parts that
"can cause injury."  Given the "vagaries of human conduct" it is
possible that an employee could be at the head pulley while the
crusher was operating.  Because the unguarded pulley was
immediately adjacent to the walkway and was at about waist level,
it posed a significant hazard to employees who might be in the
area.

     Inspector Pederson determined that it was reasonably likely
that someone would be injured and that such an injury could be
fatal.  Based on this testimony, I find that the violation was
serious.  I also find that the violation was S&S.  It is clear
that the violation created a discrete safety hazard.  I also find
that it is reasonably likely that the hazard contributed to by
the violation would have resulted in an injury.  This element is
the third part of the Commission's S&S test.  Mathies, 6 FMSHRC
at 3-4.  Under this test, it is not necessary for the Secretary
to establish that it was more probable than not that an injury
would result from the hazard contributed to by the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).  The test
is whether an injury was reasonably likely assuming continued
mining operations.  In concluding that an injury was reasonably
likely, I have taken into consideration the fact that the head
pulley was in an area where employees do not normally travel.  I
also recognize that the company requires employees to lock out
and tag out equipment before maintenance work is performed.
Nevertheless, the pinch point was located at the walkway so that
anyone walking in the area was in danger of becoming entangled.
In addition, the condition had existed for about a week and,
assuming continued operations, the condition presented a hazard
to employees at the permanent crusher.  It is foreseeable that an
employee would be in the area to perform a minor task and not
think it was necessary to shut down the crusher.  Any injury
would be serious.

     I also find that the Secretary established that the
violation was the result of Northwest Aggregates' unwarrantable
failure.  Unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Emery Mining Corp.,
9 FMSHRC 1997, 2001 (December 1987).  Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or "a serious lack of
reasonable care."  Id. at 2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (February 1991).  In analyzing the
evidence in the present case using this
test, I find that the violation was caused by Northwest
Aggregates' aggravated conduct.  The violation was not the result
of intentional misconduct, indifference, or a reckless disregard
of the dangers posed by unguarded pulleys.  I find, however, the
Northwest Aggregates' failure to meet the requirements of section
56.14107(a) was the result of a serious lack of reasonable care
that constituted more than ordinary negligence.

     I reach this conclusion for a number of reasons.  First, the
violation was readily obvious.  Section 56.18002 requires each
operator to conduct an examination of each working place at least
once a shift for conditions that may adversely affect the safety
or health of employees.   A record of such examination is
required to be kept.  Inspector Pederson testified that the
company's examination books did not show that the guard was
missing.  Even a cursory examination of the crusher would have
revealed that the guard was not there.  The violative condition
was quite obvious.  See Faith Coal Co., 19 FMSHRC 1357, 1369
(August 1997).

     Second, the condition had existed for some time while the
crusher was operating.  The guard had been removed sometime
during the previous week and had not been replaced.  The crusher
continued to operate and employees were exposed to the hazard.
A penalty of $800 is appropriate for this violation.

     2.  Order No. 7950099

     On March 31, 1997, Inspector Pederson issued a section
104(d)(1) order alleging a violation of 30 C.F.R.  56.14107(a).
In the citation, the inspector alleged that both sides and the
back of the self-cleaning tail pulley for the 4" minus conveyor
were not guarded.  The citation also states that the top guard
was bent back exposing part of the pulley.  It states that the
violation was in plain sight of the crusher foreman and the
superintendent.  Inspector Pederson determined that the violation
was S&S and was caused by Northwest Aggregates' high negligence.
The Secretary proposes a penalty of $1,000 for the alleged
violation.

     This order was issued for a tail pulley on the portable
crusher.  As discussed above, the portable crusher was locked out
on the afternoon of Saturday, March 29 due to mechanical
problems.  Mr. Gauthier testified that he removed guards after
the crusher was locked out, but that all of the guards were
present before he shut down the portable crusher.  (Tr. 180,
188).  He removed guards to clean and perform maintenance.  He
stated that the top guard was not bent back, but the guard was
made of material that was not rigid so that it may have appeared
to be bent.  (Tr. 189).  There has been no showing that the
portable crusher was operated with the cited guards missing.  I
credit Mr. Gauthier's testimony that once the repairs were made,
the guards would have been replaced before the lockout was
lifted.  Inspector Pederson testified that Mr. Gauthier told him
that there had never been any guards at this location.  (Tr.
115).  I conclude that the inspector misunderstood Mr. Gauthier's
comments.  For the reasons discussed with respect to Citation
Nos. 7950101 and 7950102, this order of withdrawal is
VACATED.

                II.  APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties.  I find
that two citations were issued at the Mats Mats Quarry between
July 1995 and March 1997. (Ex. P-8).  The Mats Mats Quarry is
small.  It appears that Northwest Aggregates is owned by Lonestar
Northwest, but the Secretary did not present any evidence on this
issue.  (Tr. 53).  Accordingly, I find that Northwest Aggregates
is a small operator.  The Secretary has not alleged that
Northwest Aggregates failed to timely abate the citations and
order.  The penalties assessed in this decision will not have an
effect on Northwest Aggregates' ability to continue in business.
The gravity and negligence criteria are discussed separately for
each violation.   Based on the penalty criteria, I find that the
penalties set forth below are appropriate for the violations.

                           III.  ORDER

     Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C.  820(i), I assess the following civil penalties:

     Citation/Order No.         30 C.F.R.          Penalty

WEST 97-242-M
      7950096                   56.20003(a)         Vacated
      7950100                   56.20003(a)           75.00
      7950101                   56.14107(a)         Vacated
      7950102                   56.14112(b)         Vacated
      7950103                   56.14107(a)           50.00
      7950107                   56.11012            Vacated
      7950109                   56.11027              75.00
      7950111                   56.12004             120.00

WEST 97-257-M

      7950095                   56.14107(a)          800.00
      7950099                   56.14107(a)          Vacated

     Accordingly, the citations and order listed above are
hereby VACATED, AFFIRMED, or MODIFIED as set forth  above,
and Northwest Aggregates is ORDERED TO PAY the Secretary of
Labor the sum of $1,120.00 within 40 days of the date of this
decision.

                               Richard W. Manning
                               Administrative Law Judge

Distribution:

Cathy L. Barnes, Esq., Office of the Solicitor, U.S.
Department of Labor, 1111 Third Avenue, Suite 945, Seattle,
WA 98101-3212  (Certified Mail)

Charles R. Bush, Esq., Vandeberg, Johnson & Gandara, 600
University Street, Suite 2424, Seattle, WA 98101-1192
(Certified Mail)

/RWM