<DOC>
[DOCID: f:va9917.wais]

 
July 28, 2000
LOPKE QUARRIES, INC.
VA 99-17-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                          July 28, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. VA 99-17-M
                  Petitioner    : A. C. No. 44-06897-05502 ASI
              v.                :
                                : Low Moor
LOPKE QUARRIES, INC.,           :
                  Respondent    :

                            DECISION

Appearances: Daniel M. Barish, Esq., Office of the Solicitor,
             U. S. Department of Labor, Arlington, Virginia, for 
             Petitioner;
             R. Henry Moore, Esq., Buchanan Ingersoll, PC,
             Pittsburgh, Pennsylvania, 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  Lopke Quarries, Inc., pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
 815.  The petition alleges nine violations of the
Secretary's mandatory health and safety standards and
seeks a penalty of $55,500.00.  A hearing was held in
Harrisburg, Pennsylvania.  For the reasons set forth
below, I vacate four orders, modify one citation and one
order, affirm one citation and three orders and assess a
penalty of $22,500.00.

Background

     Lopke Quarries, Inc., operates portable rock crushing
plants at various locations throughout the eastern half
of the United States.  In 1997, Lopke was hired by Vulcan
Materials to run such an operation at Vulcan's Low Moor
Mine, near Covington, Virginia.  Lopke began operating in
November 1997 and later increased the size of its plant
in April 1998.  The plant consists of an impactor, which
is known as the primary plant, and a double roll crusher
and screen, called the secondary plant.  Finished product
is taken from the plants by conveyor belts and deposited
in discrete piles depending on the type of rock.  Front-
end loaders move the rock from the piles below the
conveyors to the area where it is stored for delivery.

     Joe Spitzer was hired by Lopke to be superintendent of
the Low Moor plant.  He began working in January 1998.
Spitzer was not able to produce enough crushed stone to
meet Lopke's expectations.  He took a week off from the
job in late April.  In early May, Peter Lockwood, a Lopke
superintendent, was sent by the company to see if he
could assist Spitzer in getting the plant to meet
production standards.  Joe McCormack, another
superintendent, was also sent to the site to provide
advice.

     On May 15, 1998, Lockwood was injured on the site. MSHA
Inspector James E. Goodale was sent to the mine to
investigate the accident.  After investigating the
accident, Goodale returned to the mine on May 20, to
conduct a regular inspection of the mine.  Based on his
inspection, he issued 14 citations or orders to Lopke.
The company contested nine of them, which were the
subject of this hearing.  The orders and citations will
be discussed in the order of their issuance.

Findings of Fact and Conclusions of Law

Citation No. 7713969

     This citation alleges a violation of section 56.12008 of
the Secretary's Regulations, 30 C.F.R.  56.12008,
because:  "The power wires entering the junction box for
the 480 volt electric motor of the feeder for the impact
crusher were not substantially bushed to prevent electric
shock.  This area was located at the primary plant.  The
wires were pulled out the box [sic]."  (Govt. Ex. 3.)
Section 56.12008 requires that:

          Power wires and cable shall be insulated
          adequately where they pass into or out of 
          electrical compartments. Cables shall enter 
          metal frames of motors, splice boxes, and
          electrical compartments only through proper 
          fittings. When insulated wires, other than 
          cables, pass through metal frames, the holes
          shall be substantially bushed with insulated 
          bushings.

     The parties have stipulated that Citation No. 7713969
accurately sets out a violation of section 56.12008,
which the company committed.  (Stip. No. 10, Jt. Ex. 1.)
Accordingly, I conclude that Lopke violated the section
as alleged.

Citation No. 7713973, Order Nos. 7713974 and 7713975

     This citation and two orders involve violations of
section 56.11001, 30 C.F.R.  56.11001, for three different conveyor 
belts.  Citation No. 7713973 alleges that:

          Safe access was not provided to service and
          maintained [sic] the conveyor belt and head pulley 
          of the 57's belt.  The foreman stated that he has 
          walked up the elevated belt in the past, also other 
          employees, no safety belt or harness and line being 
          used.  The belt was elevated approximately four to 
          fifteen feet above ground level. The belt was 
          approximately fourty [sic] five feet long. A fall
          of person hazard exist [sic] in this area. The 
          foreman engaged in aggravated conduct constituing 
          [sic] more than ordinary negligence.  This is an 
          unwarrantable failure to comply with a mandatory 
          standard.

(Govt. Ex. 4.)  Order No. 7713974 contains essentially the same
language, except for the height and length of the belt and that
it deals with the "Fines stacker belt."  (Govt. Ex. 5.)  Order
No. 7713975, for the "8's belt" likewise is the same, except for
height and length.  (Govt. Ex. 6.)

     Section 56.11001 provides that:  "Safe means of access
shall be provided and maintained to all working places."
The company argues that the Secretary did not prove these
violations because it did provide a safe means of access
to the tops of the conveyors and because the Secretary
did not show that the belts provided access to working
places.  I find that the company violated this
regulation.

     It is undisputed that at the time the citation and orders
were issued none of the conveyor belts, which had been in
operation since April 1998, was equipped with handrails
or safety cables and that neither a ladder nor a man-lift
was being used to access the heads of the belts.  When
asked how the belt conveyors were serviced, Spitzer
testified:  "I and everybody else walked up the belt to
grease and check the head pulley."  (Tr. 195.)  This was
the same response he gave when Inspector Goodale asked
him the question during the inspection.  He stated that a
safety belt was not used when he and other employees
walked up the belt.  Spitzer said that the bearings in
the head pulley had to be greased at least once a week,
that each belt's gearbox had to be checked once a month
and that the electric motors had to be checked once a
year.

     Jason Lewandrowski testified that he became the plant
operator at Low Moor in the early part of May 1998.  He
stated that he serviced the belts once before the
citation and orders were issued and that when he did, he
used a safety harness and line which he attached to the
framework of the conveyor belt.  He maintained that he
crawled up the belts and had to unhook the safety line
and re-attach it several times.

     The Commission has held, in construing a regulation
worded identically to section 56.11001, that:

          [T]he standard requires that each "means of
          access" to a working place be safe. This does 
          not mean necessarily that an operator must 
          assure that every conceivable route to a
          working place, no matter how circuitous or 
          improbable, be safe. For example, an operator 
          could show that a cited area is not a "means 
          of access" with the meaning of the standard, 
          by proving that there is no reasonable 
          possibility that a miner would use the route 
          as a means of reaching or leaving a workplace.

The Hanna Mining Co., 3 FMSHRC 2045, 2046 (September 1981);
accord Homestake Mining Co., 4 FMSHRC 146, 151 (February 1982).

     Lopke asserts that it provided a safe means of access to
the head pulley by making a safety belt or harness and
safety line available.  It disputes that any employee
walked up the belt without such safety equipment by
attacking the credibility of its superintendent, Joe
Spitzer.  The Respondent maintains that Spitzer may have
been in a frustrated mental state during the inspection
because he was unhappy with his pay, the company kept
pushing him for more production, he viewed Lockwood as
his replacement and he had a confrontation with
McCormack.  All of this, the company argues, makes his
testimony inherently suspect.

     The problem with this argument is that it requires
speculation into Spitzer's state of mind and conclusions
about that state of mind that are not corroborated by any
other evidence.  In the first place, no one directly
contradicted Spitzer's statement that he and others had
gone up the conveyor belts without safety belt or
harness.  None of the witnesses, save Spitzer, had been
at the mine before early May 1998.  So no one but Spitzer
could testify what happened prior to that time.

     Secondly, none of the witnesses, except McCormack,
testified that they observed anything unusual about
Spitzer's manner or behavior at the time of the
inspection.  McCormack characterized him as being
"uptight, talking loud and then he gave me a little
punch."  (Tr. 366.)  He speculated that Spitzer was that
way because McCormack was giving him advice concerning
the impending inspection and raising production levels.
Being uptight in such a situation when you are the one in
charge of the plant does not seem that unusual.  It is a
stretch to conclude that because of this Spitzer
intentionally gave false information to the inspector and
then repeated it at the trial.

     Thirdly, Lockwood and McCormack were present at the mine
during the inspection and Lockwood, at least, assisted in
abating these violations the next week by installing
handrails.  Yet, there is no evidence that anyone from
the company ever challenged these violations at that time
either by advising the inspector that Spitzer's
information was suspect or stating that during the period
they were at the mine, the head pulleys were accessed
with the use of a safety harness.

     Fourthly, the matters causing Spitzer's frustration are
the types of matters that commonly frustrate many
superintendents in Spitzer's position.  Beyond the
frustrations, Lopke has made no showing that Spitzer bore
any animus toward the company, particularly to the extent
that he would attempt to sabotage it.  Further, it is
hard to believe that, if he did have such strong feelings
toward Lopke, he would have accepted the company's offer
of another position several weeks after he left Low
Moor.[1]  Indeed, it is hard to believe that, if the
company thought that Spitzer had intentionally admitted
to violations that did not occur, they would offer him
such a job.

     Finally, I observed Spitzer's demeanor and manner while
testifying and it did not appear that he was dissembling,
bore a grudge against Lopke, or was testifying
untruthfully.  Consequently, I find that he was a
credible witness and give great weight to his testimony.

     Turning to the Respondent's claim that the belts were not
working places when the inspector observed them, because
the mine was not in operation at that time, I find this
argument to be without merit.  Section 56.2, 30 C.F.R. 
56.2, defines a working place as "any place in or about a
mine where work is being performed."  It is undisputed
that work is performed on the head pulleys of the
conveyor belts; the pulleys' bearings have to be greased
at least once a week, the gearbox has to be checked once
a month, and the electric motor has to be checked once a
year.  All of this work is performed at the head pulley
during a mining shift.

     The company too narrowly construes the definition when it
argues that the work has to actually be being performed
in the view of the inspector.  The law is well settled
that it is not a defense that the inspector was not
present when the violation occurred.  Emerald Mines Co.
v. FMSHRC, 863 F.2d 51 (D.C. Cir. 1988); Nacco Mining
Co., 9 FMSHRC 1541 (September 1987).  Furthermore, if the
validity of such an argument were upheld, mine operators
could avoid liability for violations merely by shutting
down operations whenever an inspector arrived for an
inspection.  Such an interpretation would undermine the
purposes of the Mine Act.  Emerald Mines, 863 F.2d at 58.
Therefore, I reject the argument.

     Clearly, walking up the belt is an obvious route to the
head pulley and, thus, it was incumbent on the company to
make it safe.  The company did not do this.[2]
Accordingly, I conclude that the Respondent violated
section 56.11001 in these three instances.[3]

Significant and Substantial

     The Inspector found these violations to be "significant
and substantial."  A "significant and substantial" (S&S)
violation is described in section 104(d)(1) of the Act,
30 U.S.C.  814(d)(1), as a violation "of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard."  A violation is properly designated S&S "if,
based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness
of a reasonably serious nature."  Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for
a violation to be S&S.  See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power,
Inc. v. Secretary, 861 F.2d 99, 103- 04 (5th Cir. 1988),
aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December
1987)(approving Mathies criteria).  Evaluation of the
criteria is made in terms of "continued normal mining
operations."  U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984).  The question of whether a particular
violation is significant and substantial must be based on
the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007 (December 1987).

     In order to prove that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of a safety
standard; (2) a distinct safety hazard, 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 will be of a reasonably serious nature.
Mathies, 6 FMSHRC at 3-4.

     With regard to these violations, violations of the safety
standard have already been found.  The inspector
testified that walking up the belts created a hazard of
falling off of them.  Common sense, as well as the
inspector's testimony, indicates that a fall from belts
which are four to eighteen feet above the ground will
result in a reasonably serious injury, if not death.
Consequently, I conclude that these violations were
"significant and substantial."

Unwarrantable Failure

     The citation and orders allege that these violations
resulted from the company's "unwarrantable failure" to
comply with the regulation.[4] The Commission has held
that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine
operator in relation to a violation of the Act.  Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010
(December 1987).  "Unwarrantable failure is characterized
by such conduct as 'reckless disregard,' 'intentional
misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester &
Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)."  Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August
1994); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test).

     The Commission has established several factors as being
determinative of whether a violation is unwarrantable:

          [T]he extent of a violative condition, the 
          length of time it has existed, whether the 
          violation is obvious, or poses a high degree
          of danger, whether the operator has been
          placed on notice that greater efforts are 
          necessary for compliance, and the operator's 
          efforts in abating the violative condition.
          Mullins & Sons Coal Co., 16 FMSHRC 192, 195 
          (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 
          1261 (Aug. 1992); Quinland Coals, Inc., 10 
          FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 
          6 FMSHRC 1596, 1603 (July 1984); BethEnergy 
          Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 
          1992); Warren Steen Constr., Inc., 14
          FMSHRC 1125, 1129 (July 1992). The Commission
          has also examined the operator's knowledge of
          the existence of the dangerous condition.  
          E.g., Cyprus Plateau Mining Corp., 16 FMSHRC 
          1604, 1608 (Aug. 1994) (affirming unwarrantable
          failure determination where operator aware of 
          brake malfunction failed to remedy problem); 
          Warren Steen, 14 FMSHRC at 1126-27 (knowledge
          of hazard and failure to take adequate 
          precautionary measures support unwarrantable 
          determination).

Cyprus Emerald Resources Corp., 20 FMSHRC 790, 813 (August 1998).

     The evidence on these violations is that miners had been
walking up the belts since they were erected in April
1998.  Spitzer, the mine superintendent, observed miners
walking up the belts without safety devices and, in fact,
he walked up the belts without safety devices.  Spitzer
was aware that this was unsafe.  He had suggested to
higher management that handrails be installed on the
belts.  In addition, one of Vulcan's supervisors told
Spitzer and Lockwood that handrails should be installed
on the belts and this was relayed to higher management.
The failure to provide safe means of access to the head
pulleys was at best indifference and at worst a serious
lack of reasonable care.  Accordingly, I conclude that
these violations resulted from Lopke's unwarrantable
failure to comply with the regulation.

New Holland skid-steer loader

     Two orders were issued concerning the company's New
Holland skid-steer loader.  Order No. 7713976 alleges a
violation of section 56.14100(b), 30 C.F.R.  56.14100(b), 
because:

          Defects affecting safety on self propelled 
          mobile equipment were not corrected in a 
          timely manner to prevent the creation of an 
          hazard to persons. The safety devices for the
          seat and seat belts provided on the New Holland 
          skid-steer loader company number L-30 were not 
          maintained in a functional condition.  The 
          wires for the components were broken allowing
          the operator to exit the loader while it is 
          still running. The foreman has operated this 
          loader in the past with the unsafe condition 
          existing.  The foreman engaged in aggravated
          conduct constituing [sic] more than ordinary 
          negligence.  This is an unwarrantable failure 
          to comply with a mandatory standard.

(Govt. Ex. 7.)  Section 56.14100(b) requires that:  "Defects on
any equipment, machinery, and tools that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard
to persons."

     Order No. 7713977 charges a violation of section 56.14100(a), 
30 C.F.R.  56.14100(a), in that:

          The New Holland skid-steer loader company number
          L-30 was not inspected before putting into [sic]
          operation. Safety defects were found on the loader.  
          The foreman stated he has operated the loader and
          never conducted an inspection. The loader is used 
          at the plant areas.  The foreman engaged in
          aggravated conduct constituing [sic] more than 
          ordinary negligence.  This is an unwarrantable 
          failure to comply with a mandatory standard.

(Govt. Ex. 8.)  Section 56.14100(a) provides that:  "Self-
propelled mobile equipment to be used during a shift shall be
inspected by the equipment operator on the shift."

Order No. 7713976

     Inspector Goodale testified that when he inspected the
New Holland loader he had the operator remove his
seatbelt and stand up.  He related that the safety device
connected to the seat and seatbelt that was supposed to
lock up the hydraulics so that the loaders lift arms
could not be raised or lowered or the loader moved did
not work when the operator stood up.  He discovered that
the wires were broken underneath the seat.  The inspector
stated that the purpose of the device was to prevent the
operator from being struck by the loader's bucket when he
exited the driver's cage.

     Inspector Goodale further stated, and the other witnesses
confirmed, that none of the miners, including Spitzer,
was aware that the loader was equipped with such a
device.  He also testified that such a safety device is
not required by the Secretary's regulations and that
there were signs posted on the arms of the roll cage
warning the operator not to get out of the cage without
turning the loader off.

     The Respondent argues that this was not a defect
affecting safety because the regulations do not require
such a device to be present and because of the warning
signs.  Lopke also argues that the Secretary did not show
that it failed to correct the defect in a timely manner
since it had to be aware of the defect to correct it.

     The Commission has held, with regard to the predecessor
to this regulation,[5] that the phrase "affecting
safety," "has a wide reach and the 'safety effect of an
uncorrected equipment defect need not be major or
immediate to come within that reach.'"  Ideal Cement Co.,
13 FMSHRC 1346, 1350 (September 1991) (citations
omitted).  Under this definition, I have little trouble
concluding that the failure of the interlock device to
activate, when the seatbelts were unfastened and the
operator stood up, was a defect affecting safety.

     On the other hand, the company is correct that the
Secretary did not show that the defect was not corrected
in a timely manner.  In order to correct a defect, the
operator must first be aware that a defect exists.  In
this case, the uncontradicted evidence is that no one at
the mine was aware that the loader had a interlock
device.  (Tr. 81, 151, 214, 323.)  Therefore, no one was
aware that the device was defective.  Further, in view of
the facts that, (a) not all skid-steer loaders are
equipped with such a device, (b) the Secretary does not
require that skid-steer loaders be equipped with such a
device, and (c) the broken wires were hidden under the
seat, and, thus, not in plain view, I do not find the
miners' lack of knowledge to be unreasonable.

     In order to show that the defect was not corrected in a
timely manner, the time starts running from the time the
operator became aware of the defect, or, as is not
present in this case, should have become aware of it.
The Secretary did not present any evidence on this issue.
Indeed, it is not discussed at all in the Secretary's
brief.  Therefore, while the evidence demonstrates that
this was a defect affecting safety, there is no evidence
concerning whether it was corrected in a timely manner.
Consequently, the Secretary has failed to prove the
violation and the order will be vacated.

Order No.7713977

     The company has conceded that the loader was not
inspected.  (Jt. Ex. 1, Stip. 11.)  Accordingly, I
conclude that the Respondent violated section
56.14100(a).

Significant and Substantial

     The order alleges that this violation was "significant
and substantial."  The Secretary argues that this is so
because the loader operator could be "crushed" by the
bucket when exiting the loader.  (Sec. Br. at 21.)  While
that was certainly a possibility, I find that it was not
reasonably likely to occur.  The evidence is undisputed
that the only defect found on the loader was the non-
functioning interlock device.  The evidence is also
undisputed that there were signs on the loader's cage
warning the operator to turn the loader off before
getting off of it and that the Respondent's miners
routinely followed this practice.  Adding this to the
facts that not all skid-steer loaders have such a device
and that the Secretary does not require that they be
equipped with such a device, and I conclude that the
failure to inspect the loader was not "significant and
substantial."

Unwarrantable Failure

     The order charges that the violation resulted from an
"unwarrantable failure."  The evidence in this case is
that the New Holland skid-steer loader was the only piece
of self-propelled equipment that was not inspected in
accordance with section 56.14100(a).  Both Spitzer and
Lockwood testified that because the New Holland loader
was used for "clean-up" it was not mining equipment and,
therefore, did not have to be inspected.  There is no
evidence that this belief, although clearly mistaken, was
not held in good faith.  Accordingly, while this was
negligent conduct, it does not rise to the level of
aggravated conduct necessary for a finding of
"unwarrantable failure."  The order will be modified
appropriately.
Dresser 555b Front-end Loader

Order No. 7713679

     This order alleges a violation of section 56.14101(a)(2),
30 C.F.R.  56.14101(a)(2), because:

          The parking brakes provided on the Dresser 555b
          company number L41 front end loader would not 
          hold on the maximum grade it travels when tested 
          by the mine inspector.  The grade the loader was 
          tested was approximately twelve to fourteen
          percent.  The loader is used at the plant and 
          stock pile areas. The operator of the loader has
          been reporting this condition to  the foreman.  
          The foreman engaged in conduct constituing [sic]
          more than ordinary negligence.  This is an
          unwarrantable failure to comply with a mandatory 
          standard.

(Govt. Ex. 9.)  Section 56.14101(a)(2) provides that:  "If
equipped on self-propelled mobile equipment, parking brakes shall
be capable of holding the equipment with its typical load on the
maximum grade it travels."

     The inspector testified that he tested the loader's
parking brakes as follows:

          I said well, let's do a brake test. So the loader
          operator backed the loader back up to the side of 
          me, and I looked at him.  And I said put it in 
          gear.  Let it coast down the hill.  Don't use your 
          foot brake, and pull your parking  brake.  See if 
          it's going to stop you.

          When he pulled his parking brake, it just kept on
          coasting.  It slowed down a little bit, but then it
          started to speed up.  So I said okay, stop.  So, 
          you know, he applied his foot brake. I said let's 
          do it one more time.  So he backed back up the hill. 
          And I said apply your parking brake. When he
          backed up the hill and applied his parking brake, 
          it started to coast back down the hill again.

(Tr. 93-94.)  He further testified that loader rolled for
"probably eight seconds or something" and was traveling "I don't
know, three, four miles an hour.  Four, five miles an hour"
before he told the operator to pull the parking brake.  (Tr.
94-95.)

     The Respondent argues that this was not the appropriate
way to test whether the parking brakes would hold.  I
agree.  Section 56.14101(b), 30 C.F.R.  56.14101(b),
sets out the procedure for testing a vehicle's service
brakes, but there is no similar provision for testing the
parking brakes.  However, it is apparent that section
56.14101(a)(2) requires that the vehicle's parking brakes
hold on a hill, not stop it on a hill.  That there is a
difference between the two is evident from section
56.14101(a)(1), 30 C.F.R.  56.14101(a)(1), which
requires that the service brake system be "capable of
stopping and holding" the vehicle.  Thus, it would seem
that the appropriate test would be to stop the loader on
the incline, set the parking brake and then see if it
holds the loader, that is, that the loader does not move.

     Based on the testimony at the hearing, particularly that
of Joe Spitzer, that sometimes the brake would work and
sometimes it would not and that later it was determined
that the brake plate was warped, it may well be that the
parking brake would not have held if it had been tested
properly.  However, there is no evidence before me from
which I can conclude that the brake would not hold.[6]
Therefore, I find that the Secretary has not proved this
violation and will vacate the order.

Order No. 7713980

     This order alleges a violation of section 56.14100(b)[7]
because:

          Defects affecting safety on the Dresser 555b
          company number L-41 front end loader were not 
          corrected in a timely manner to prevent the 
          creation of a hazard to the operator of the 
          loader.  The defects were reported to the
          foreman and signed off by the foreman.  The 
          foreman engaged in aggravated conduct
          constituing [sic] more than ordinary 
          negligence.  This is an unwarrantable failure 
          to comply with a mandatory standard.

(Govt. Ex. 10.)

     Inspector Goodale testified, with regard to this order,
that:  "The defect was the parking brake on this front-
end loader."  (Tr. 102.)  The company argues that this
order is duplicative of the previous order and,
therefore, that it should be vacated.  While I agree that
the order must be vacated, it is not necessary to
determine that this violation is duplicative to reach
that conclusion.

     The Secretary's case that the parking brake was defective
rests on the theory that it would not hold on a hill.
However, as discussed above, the Secretary has failed to
prove that the brake would not hold on a hill.
Consequently, there is no evidence that the brake was
defective.[8]  Accordingly, I conclude that the Secretary
has failed to prove this violation and will vacate the
order.

Order No. 7713982

     This order charges a violation of section 56.18002(a), 30
C.F.R.  56.18002(a), in that:

          The contractor failed to conduct an adequate
          examination of work places for the primary 
          and secondary plant areas. Several violations 
          were cited relating to the plant areas. The 
          records were signed by the foreman.  The
          foreman engaged in aggravated conduct 
          constituing [sic] more than ordinary
          negligence.  This is an unwarrantable failure
          to comply with a mandatory standard.

(Govt. Ex. 11.)  Section 56.18002(a) provides that:  "A competent
person designated by the operator shall examine each working
place at least once each shift for conditions which may adversely
affect safety or health.  The operator shall promptly initiate
appropriate action to correct such conditions."

     Inspector Goodale testified, with regard to this violation, as 
follows:

          The violation . . . is that the foreman failed to do
          an adequate examination of workplaces.  If he would
          have done an adequate examination of workplaces, I 
          would not have found all these violations.  And where 
          it says several violations cited  relating to plant
          area, it starts with the bushing, and  it also
          starts with several of the other ones that aren't even
          in here such as a fire extinguisher, the electrical 
          extension cord, three unsafe access standards, and I 
          think that's it. And also under .18002(a) the operator 
          must initiate prompt action to correct these conditions, 
          and he didn't.

          Q.  In issuing this violation, are you contending that
          the workplaces were not examined at all?

          A.  No.  I'm just saying they were examined, but he
          didn't do an adequate examination.

          Q.  And why was it inadequate?

          A.  Because all the violations I found.

          Q.  If the exam had been adequate, what would be
          required to make it adequate?

          A.  Well, one thing is you need to have a record that
          you examined these work areas.  And I looked at these
          records examinations where the foreman signed off on.  
          But there was not --- on these records, there was 
          nothing indicating that the bushing was pulled out of 
          the motor, the fire extinguisher was discharged, an 
          electrical cord was missing a brown lug, the three 
          belts were not accessed safely. They did not have any
          handrails or whatever to prevent that condition.  
          There was nothing on this report indicating this.

(Tr. 106-08.)

     In connection with section 57.18002, 30 C.F.R. 
 57.18002, which is identical to the regulation in this
case, the Commission has held that there are three
requirements to the regulation:  "(1) daily workplace
examinations are mandated for the purpose of identifying
workplace safety or health hazards; (2) the examinations
must be made by a competent person; and (3) a record of
the examinations must be kept by the operator."  FMC
Wyoming Corp., 11 FMSHRC 1622, 1628 (September 1989).
Significantly, there is no mention of the word "adequate"
either in the regulation or the Commission's setting out
of the regulation's elements.

     Nor is it mentioned in the Secretary's Program Policy
Manual discussion of the regulation.  Program Policy
Manual Volume IV, Subpart Q, (last updated July 25, 2000)
<http://www.msha.gov/REGS/COMPLIAN/PPM/PMVOL4E.HTM#77.
With regard to alleging a violation of the standard, it
states:

          Evidence that a previous shift examination was 
          not conducted or that prompt corrective action 
          was not taken will result in a citation for 
          violation of  56/57.18002(a) or (c). This 
          evidence may include information which
          demonstrates that safety or health hazards 
          existed prior to the working shift in which 
          they were found.  Although the presence of
          hazards covered by other standards may indicate 
          a failure to comply with this standard, MSHA 
          does not intend to cite  56/57.18002
          automatically when the Agency finds an imminent 
          danger or violation of another standard.

Id.  While this does not preclude the Secretary from alleging
that an examination was inadequate, the language clearly tracks
the elements of the offense set out in FMC Wyoming in indicating
that the standard is violated if the examination is not conducted
or corrective action not taken.  More importantly, it indicates
that a violation should not be charged every time there is an
imminent danger, which was obviously not present here, or
violation of another standard.

     Judge Richard W. Manning vacated a nearly identical
citation which relied on the issuance of other citations
as proof that the examination was inadequate, finding
that:  "Moreover, it is not uncommon for an MSHA
inspector to issue multiple citations at a mine that cite
conditions which should have been detected by the
operator's examiner.  Citations under section 56.18002
are generally not issued under such circumstances."
Dumbarton Quarry Associates, 21 FMSHRC 1132, 1136
(October 1999).  In this case, it is undisputed that
examinations were being conducted and that the operator
was keeping a record of them.  Nor is there any evidence
that the examinations were not being conducted by a
competent person.

     While there may be cases where the violations are so
obvious and so egregious that a finding that section
56.18002(a) was violated is appropriate, such is not the
case here.  I agree with Judge Manning's reasoning and
will vacate the order.

Civil Penalty Assessment

     The Secretary has proposed penalties of $33,500.00 for
the citation and four orders found to constitute
violations.  However, it is the judge's independent
responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set
out in section 110(i) of the Act, 30 U.S.C.  820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th
Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84
(April 1996).

     In connection with the penalty criteria, the parties have
stipulated, and I so find, that the proposed penalties
will not adversely affect the ability of Lopke to remain
in business.  (Jt. Ex. 1, Stip. 5.)  I also find that
Lopke's operation at the Low Moor site was a small one
and that Lopke Quarries, Inc., is a small to medium size
company.  I further find that the operator's history of
violations is relatively good and that it demonstrated
good faith in rapidly abating the violations.

     Turning to the specific violations, the Secretary has
proposed a penalty of $5,000.00 because of the company's
"high" negligence for Citation No. 7713969.  This is
based on the belief that Spitzer knew about the problem
with the wires not being bushed for about two months and
made little effort to correct it.  I find, however, that
the violation was the result of "low" negligence on the
part of the company.  The wires were located in a
junction box on a feeder.  The evidence indicates that
the feeder vibrates and that it is not unusual for the
bushing and wires to vibrate out of the box.  It is a
continuing problem.  Further, Spitzer testified that he
fixed the problem at least twice and had a new part on
order at the time of the inspection.  The inspector
testified that he found that an injury was unlikely to
result from this violation.  I concur and find that the
gravity of the violation was not serious.  This was not a
high priority problem nor was it a problem that was being
ignored.  Accordingly, I will modify the citation by
reducing the level of negligence from "high" to "low' and
assess a penalty of $500.00.

     On the other hand, Citation No. 7713973 and Order Nos.
7713974 and 7713975 clearly involved "high" negligence on
the part of the operator.  Walking up the conveyor belts
without handrails or safety belts was highly risky.  The
gravity of these violations was serious.  The Secretary
has proposed a penalty of $7,000.00 for each of these
violations and I agree with that assessment.

     Finally, the Secretary proposed a penalty of $7,500.00
for Order No. 7713977.  However, I have found that the
violation was not "significant and substantial" and did
not result from the operator's "unwarrantable failure" to
comply with the regulation.  Consistent with those
findings, I find that the gravity of the violation was
not serious and that the operator was "moderately" rather
than "highly" negligent in committing it.  Consequently,
I assess a penalty of $1,000.00 for the violation.

Order

     Order Nos. 7713976, 7713979, 7713980 and 7713982 are
VACATED.  Citation No. 7713969 is MODIFIED by reducing
the level of negligence from "high" to "low" and is
AFFIRMED as modified.  Order No. 7713977 is MODIFIED to a
104(a) citation, 30 U.S.C.  814(a), by deleting the
"unwarrantable failure" designation, is further modified
by deleting the "significant and substantial" designation
and by reducing the level of negligence from "high" to
"moderate, and is AFFIRMED as modified.  Citation No.
7713973 and Order Nos. 7713974 and 7713975 are AFFIRMED.

     Lopke Quarries, Inc., is ORDERED TO PAY a civil penalty
of $22,500.00 within 30 days of the date of this
decision.

                            T. Todd Hodgdon
                            Administrative Law Judge
                            

Distribution: (Certified Mail)

Daniel Barish, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203

R Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301
Grant Street, 20th Floor, Pittsburgh, PA 15219-1410

/nt

**FOOTNOTES**

     [1] Spitzer quit in June 1998 and was gone for a month.
Lopke contacted him and offered him the position as
superintendent of its Rockbridge plant.

     [2] Although not necessary to this decision, it is
questionable whether the method of using the safety harness
testified to by Lockwood and Lewandrowski was, in fact, a safe
means of access.

     [3] The fact that the "57's" belt had grease lines allowing
the head pulley bearings to be greased from the ground does not
mean that the company did not violate the regulation on this
belt.  Neither the gearbox nor the electric motor could be
checked from the ground.  Furthermore, Spitzer testified that he
walked up all of the belts.

     [4] The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, which establishes more severe
sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with . . . mandatory health or
safety standards."

     [5] 30 C.F.R. _ 56.9002 (1987) provided:  "Equipment defects
affecting safety shall be corrected before the equipment is
used."

     [6] When taken out of context, the inspector's testimony, "I
said let's do it one more time.  So he backed back up the hill.
And I said apply your parking brake.  When he backed back up the
hill and applied his parking brake, it started to coast back down
the hill again," (Tr. 93-94), could be interpreted as indicating
that the parking brake was tested after the loader had made a
complete stop.  However, based on all his testimony, I am
satisfied that Inspector Goodale did not conduct two separate
tests, but had the parking brake applied after the loader had
begun coasting in both instances.

     [7] The requirements of section 56.14100(b) are set out at
page 7, supra.

     [8] The fact that the company's witnesses testified that the
parking brake had to be adjusted, does not without more, indicate
that it was defective.  Brakes commonly have to be adjusted.
That does not necessarily mean that they are defective.