<DOC>
[DOCID: f:ct98293.wais]

 
HIGHWAY 195 CRUSHED STONE, INC.
July 16, 1999
CENT 98-293-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 16, 1999

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. CENT 98-293-M
                     Petitioner : A. C. No. 41-03920-05502
          v.                    :
                                :
HIGHWAY 195 CRUSHED STONE, INC.,:
                     Respondent : Highway 195 Crushed Stone

DECISION

Appearances: David C. Rivela, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Dallas, Texas, on behalf 
             of the Petitioner; 
             John Yearwood, Safety Coordinator, Highway 195
             Crushed Stone, Inc., Georgetown, Texas, on behalf 
             of the Respondent.

Before: Judge Melick

     This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor against Highway 195 Crushed
Stone, Inc. (Crushed Stone) pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801 et
seq., the "Act," alleging three violations of mandatory standards
and seeking civil penalties of $191.00 for those violations.  The
general issue before me is whether Crushed Stone violated the
cited standards as alleged and, if so, what is the appropriate
civil penalty to be assessed considering the criteria under
Section 110(i) of the Act. 

     James Goodale, a "metal/non-metal" inspector for the
Department of Labor's Mine Safety and Health Administration
(MSHA) was performing a regular inspection at the Crushed Stone
facility on March 26, 1998.  Goodale has been employed by MSHA
since 1987 and has 17 years  mining industry experience.  The
subject facility is a crushed stone operation.  Material is
hauled from a pit area to a feeder and crusher and is then
screened for size and stockpiled for sale and distribution. At
the time of Goodale's inspection the plant was temporarily shut
down for maintenance.  

Citation No. 7709180

     This citation alleges a violation of the standard at 30
C.F.R.  56. 14107(a) and charges as follows:

     The right side of the self cleaning tail pulley for the
under crusher belt was not guarded to prevent contact with the
pinch points or moving parts.  The tail pulley was at ground
level.  The area was located where no travel by employees when
the plant is operating. 

     The cited standard provides, in relevant part, that "[m]oving
machine parts shall be guarded to protect persons from contacting
. . . tail, and takeup pulleys, . . .  and similar moving parts 
that can cause injury.

     According to Inspector Goodale there was no guard on the right
side of the cited tail pulley.  Although Goodale believed that 
a fatal injury could occur if someone fell into the pulley, he 
acknowledged that any injury was unlikely.  The tail pulley was 
admittedly in a remote area and no one would be expected to be 
in the vicinity of this pulley while the plant was in operation.  
Goodale also acknowledged that it would, in any event, be 
difficult for anyone to be exposed to this condition because it
was a "tight fit - - you would have to shinny down" to get close 
enough to be hazardous.  

     John Yearwood, co-owner of the cited facility, testified that 
he began construction of this facility in July 1996 and began 
production in September 1996.  Before commencing operations 
MSHA Inspector Ed Lilly twice visited the plant for Courtesy 
Assistance Visits (CAV's).  Yearwood was new to the business 
and wanted to start out "correctly and in compliance." On his 
first post-CAV inspection on September 25, 1996, Lilly gave 
Yearwood what Yearwood  characterized as a "good-to-go"
inspection.  Lilly made it clear to Yearwood that he was in 
compliance with the regulations.  It is undisputed that the 
condition now cited was the same as when Lilly inspected the
premises and at the time of subsequent MSHA inspections on 
January 30, 1997, April 30, 1997 and January 15, 1998 (See
Resp.'s Exhs. Nos. 2, 3, 4 and 5). In spite of those inspections 
no citations had ever been issued for the presently cited 
condition.  

     Yearwood argues that there was no violation of the cited 
standard because the condition comes within two exceptions 
provided by MSHA.  The first exception, set forth in 30 C.F.R. 
 56.14107(b), provides that only moving parts within seven feet
of walking/working surfaces must be guarded.  The Secretary 
acknowledges this exception but claims that the record evidence 
does not support Respondent's factual claims. I disagree.  
Yearwood's credible testimony that the cited area was seven 
feet eleven inches from the walkaway is not directly disputed 
in the record.  Accordingly, Respondent has established this
affirmative defense.   

     The second exception is explained in MSHA's pamphlet entitled
"Guide to Equipment Guarding for Metal and Non-metal Mining" 
(Resp.'s Exh. No. 9 pg. 8).  It is stated therein that "remote 
areas protected by location need not be guarded."  According to
Inspector Goodale's own testimony the subject tail pulley was in
a remote location. Accordingly this exception also provides a 
valid defense to the alleged violation in this case. 

     Under all the circumstances I do not find a violation as
charged in Citation No. 7709180 and the citation must be vacated.

Citation No. 7709183

     This citation alleges a "significant and substantial"
violation of the same standard, 30 C.F.R.  56.14107(a), and 
charges as follows:

          The back and underneath of the self cleaning tail pulley 
     for the over screen belt was not provided with a guard to 
     prevent contact with the pinch points or moving parts.  The 
     tail pulley was approximately four and one-half feet above 
     ground level.  Employees travel this area daily by bending
     over and walking under the tail pulley.   
     
     It is undisputed that the cited pulley was partially guarded
by wire mesh (See Gov. Exhs. Nos. 3 and 4).  However, it is also
undisputed that an area of about four inches on each side of the
pulley between the self cleaning fins and the guard, remained
exposed from below.  It is further  undisputed that the area
below the pulley was used as a travelway with only four and a
half feet of clearance from the ground to the pulley.  

     Goodale concluded that the violation was of high gravity and
"significant and substantial" because of the limited clearance
between the walkway and the exposed hazard directly above and
because of the likelihood of persons slipping, tripping or
falling in this area and attempting to grab onto something.
Under the circumstances he concluded that permanently disabling
or fatal injuries were reasonably likely.  

     A violation is "significant and substantial" if, based on
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 
explained:

          In order to establish that a violation of a mandatory
     safety standard is significant and substantial under National 
     Gypsum the Secretary must prove: 
     (1) the underlying violation of a mandatory safety standard,
     (2) a discrete safety hazard -- that is, a measure of danger 
     to safety -- contributed to by the violation, (3) a reasonable
     likelihood that the hazard contributed to will result in an 
     injury, and (4) a reasonable likelihood that the injury in 
     question will be of a reasonably serious nature.

     See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) 
(approving Mathies criteria).

     The third element of the Mathies formula requires that the
Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
injury U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
The likelihood of such injury must be evaluated in terms of
continued normal mining operations without any assumptions as to
abatement.  U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12 (January
1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 
1991).

     The testimony of Inspector Goodale in this regard is
undisputed and I therefore conclude that the violation was
indeed, "significant and substantial" and of high gravity.  

     Goodale also believed that the operator "should have known"
of this violation as it was "readily visible" and therefore
concluded that it was the result of "moderate" negligence.
However, it is undisputed that this same condition existed at the
time of the two prior CAV's and four prior regular inspections
without being cited.  It is clear that the operator relied upon
these prior CAV's and inspections in setting-up and operating his
plant.  I therefore conclude that it is chargeable with but
little negligence.  

Citation No. 7709187

     This citation alleges a "significant and substantial"
violation of the standard at 30 C.F.R.  56. 9300(a) and charges
as follows:  

          The elevated roadway going onto the scales and exiting
     the scales were not provided with a berm to prevent overtravel 
     of equipment being used on the roadway. The roadway was 
     approximately five to six feet above the ground.  The scales 
     area used daily by haul trucks. [sic].  
     
     The cited standard provides that "[b]erms or guardrails
shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment."

     It is undisputed that this condition had also existed at the
time of the two CAV's and the  four prior MSHA inspections and
had never previously been cited.  According to the undisputed
testimony of Yearwood, similar conditions also existed at mine
sites throughout the area.

     According to Inspector Goodale there was no berm or other
guarding as he charged in the citation.  He made a Ajudgment
call" that a vehicle could roll over the sloped embankment
thereby causing serious injuries.  Trucks including 18-wheel
tractor trailers traveled this area on a daily basis.  Yearwood
disagreed that the slope presented a hazard noting that it was
only elevated four feet two inches above the surrounding area and
not the five or six feet the inspector estimated.  Yearwood also
testified that the trucks traveled very slowly in this area - -
only 3.2 to 3.9 miles per hour on average.  He noted that there
was also a "dog leg" on the road designed to slow down traffic.  
     
     I find that the cited standard suffers from ambiguity and
vagueness and therefore to provide adequate notice must be viewed
from the position of a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard.
Ideal Cement Company, 12 FMSHRC 2409, 2416 (November 1990);
Lanham Coal Company, 13 FMSHRC 1341, 1343 (September 1991).
While it is implicit in Yearwood's testimony that he did not
believe there was any hazard in the unguarded elevated roadway at
issue, I give greater weight to the testimony of Inspector
Goodale who has significantly more experience both as an
inspector and in the mining industry.  Clearly, Goodale qualifies
as a "reasonably prudent person" and under the circumstances I
give his testimony on this issue the greater weight.
Accordingly, I find that the violation is proven as charged.
Based on Goodale's testimony I also find that the violation was
"significant and substantial" and of high gravity.  However, in
light of the prior CAV's and inspections of this condition
without citations and the evidence that other operations in the
area had similar unbermed roadways, I find that the operator is
chargeable with but little negligence.  

     In assessing civil penalties herein, I have also noted the
small size of the operator, the absence of any prior violations,
evidence of good faith abatement and the absence of evidence that
the penalties herein would affect the operator's ability to
remain in business. 

	ORDER

     Citation No. 7709180 is vacated.  Citations No. 7709183 and
7709187 are affirmed and Highway 195 Crushed Stone Incorporated
is hereby directed to pay civil penalties of $60.00 for each
violation within 40 days of the date of this decision.


                          	 Gary Melick
                          	 Administrative Law Judge


Distribution:

David C. Rivela, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 525 South Griffin St., Suite 501, Dallas, TX 75202 
(Certified Mail)

Priscilla S. Yearwood, Highway 195 Crushed Stone, Inc., 5301
Highway 195, Georgetown, TX 78626 (Certified Mail)

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