<DOC>
[DOCID: f:w-94-259.wais]

 
AT&E ENTERPRISES, INC.
May 5, 1995
WEST 94-259-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                             May 5, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 94-259-M
                Petitioner      :  A.C. No. 04-05146-05503
                                :
          v.                    :
                                :
AT&E ENTERPRISES, INC.,         :  AT&E Mine
                Respondent      :

                               DECISION

Appearances:  Alan M. Raznick, Esq., Office of the Solicitor,
              U.S. Department of Labor, San Francisco, California,
              for Petitioner; Gregory J. Roberts, Esq.,
              Christensen & Barrus, Fresno, California, for
              Respondent.

Before:  Judge Manning

     This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against AT&E
Enterprises, Inc. ("AT&E"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815
and 820.  The petition alleges five violations of the Secretary's
safety standards.  For the reasons set forth below, I vacate one
citation, modify one citation, and assess civil penalties in the
amount of $200.00.

     A hearing was held in this case on December 13, 1994, in
Fresno, California.  The parties presented testimony and filed
post-hearing briefs.

I.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Background

     The AT&E Mine is a small, underground gold mine in Mariposa
County, California.  The mine had been operated in the past and
AT&E was in the process of rehabilitating it.  (Tr. 24).  At the
time of the inspection, December 1, 1993, no ore had been
extracted.  The mine is located at the top of a mountain and
its portal opens into a drift that is supported by timber.
AT&E was replacing old timber sets with new timber sets and
mucking out loose rock.  Miners had been working underground
for less than two months.  Id.  At the time of the inspection,
miners had replaced timbers about 50 feet into the drift from
the portal.  Mike Garoogian is president and sole owner of
AT&E.  (Tr. 110).  The inspection was conducted by MSHA
Inspector David Kerber.

     Section 110(i) of the Mine Act, 30 U.S.C.  820(i), sets
out six criteria to be considered in determining the appropriate
civil penalty.  I find that AT&E was issued two citations in
the 24 months preceding the inspection in this case.  (Tr.
6).  I also find that AT&E was a small operator, employing
about 18 people, with three miners working underground.
(Tr. 17, 112).  AT&E reported about 19,350 man-hours over
the previous year.  (Tr. 6).  I also find that the civil
penalties assessed in this decision would not affect AT&E's
ability to continue in business.  The conditions cited by
the inspector were all timely abated.  I find that AT&E is
concerned about the safety of its miners and made good faith
efforts to comply with MSHA's safety standards.

B.  Citation No. 3932726

     This citation alleges that the "timber located at the mine
entrance in the portal was not provided with a fire
suppression system, covered with a material equivalent for
fire protection, or fire-retardant paint to prevent a fire."
The citation states that the timber was exposed for about 55
feet.  The safety standard cited, 30 C.F.R.  57.4560,
provides, in pertinent part:

           For at least 200 feet inside the mine portal ...
     timber used for ground support in intake openings and
     in exhaust openings that are designated escapeways shall
     be --

          (a)  Provided with a fire suppression system, ...
     capable of controlling a fire in its early stages; or
          (b)  Covered with shotcrete, gunite, or other
     material with equivalent fire protection characteristics;
     or
          (c)  Coated with fire-retardant paint or other
     material....

     There is no dispute that the timbers were not protected with
a fire suppression system, covered with shotcrete or other mate-
rial, or coated with fire-retardant paint.  Matthew Swanson, op-
erations officer for the mine, testified that AT&E had considered
how to protect the timbers and had purchased fire-retardant paint
for that purpose.  (Tr. 85-89).  He stated that AT&E planned to
spray on the paint, but that they had not done so because the
timber was still wet.  Id.  He stated that due to the remote lo-
cation of the mine, AT&E operates a sawmill at the mine site and
cuts its own timber out of sugar pine trees on mine property.  He
stated that the timber is soaking wet, heavy and dense when it is
used and must dry out before it can be painted.  Id.  He believed
that the timber was too wet to be painted at the time of the
inspection.  He further stated that the timber at the portal was
almost dry enough to be painted.  I credit the testimony of
Mr. Swanson.

     Inspector Kerber testified that the purpose of the standard
is to prevent carbon monoxide from entering the mine.  (Tr. 47).
He stated that an operator is required to paint or otherwise
protect the timber as each set is installed in the mine.
(Tr. 47-78, 59, 72).  I find, however, that the safety standard
does not expressly contain such a requirement.  The language of
the safety standard does not address when fire-retardant material
must be applied if a mine operator is developing a new mine or
is rehabilitating an old mine by installing new timber sets.
Under the standard, an operator is permitted to cover the timber
with shotcrete or gunite.  Those materials are generally made
of cement and are sprayed on pneumatically.[1]  It would not
be feasible to spray the timber with gunite or shotcrete as it
is placed in the mine because that material must be prepared in
batches.  (Tr. 87).  I reject the inspector's interpretation of
the standard as requiring each timber set to be protected as it
is installed.

     The Commission has held that a safety standard cannot be
"so incomplete, vague, indefinite or uncertain that [persons]
of common intelligence must necessarily guess as its meaning
and differ as to its application."  Alabama By-Products Corp.,
4 FMSHRC 2128, 2129 (December 1982)(citation omitted).  The
Commission has determined that adequate notice of the
requirements of a broadly worded standard is provided if a
reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the
standard.  Ideal Cement Co., 12 FMSHRC 2409, 2416 (November
1990); Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).
Although the subject standard is not broadly worded, it does
not address the issue raised here.  I do not believe that
a reasonably prudent person would have recognized that it
was prohibited by the safety standard from installing
timber sets without applying gunite, shotcrete, fire-
retardant paint, or other material at the time it was
installed.

     Based on the particular facts in this case, I conclude
that the citation should be vacated.  I find, based on the
testimony of Mr. Swanson, that the timber sets were raw,
very wet, and could not have been painted at the time of the
inspection.  Fire retardant paint does not prevent wood from
burning, but rather retards the burning process.  (Tr. 13,
56).  In vacating the citation, I have taken into
consideration the fact the AT&E had only advanced about 50
feet into the mine, air naturally flowed out of the mine
through the entry being timbered, and there was no evidence
of any sources for a fire.  As a consequence, the lack of
fire-retardant paint did not present a danger of carbon
monoxide poisoning.

C. Citation No. 3932727

     This citation alleges that AT&E did not have any means of
testing for gases or fumes before entering into the part of
the mine that was not ventilated with a fan.  The citation
states that miners had gone about 100 feet into the mine to
work on an air door.  The cited safety standard, 30 C.F.R. 
57.5002, states:  "Dust, gas, mist, and fume surveys shall
be conducted as frequently as necessary to determine the
adequacy of control measures."

     There is no dispute that AT&E did not have any devices to
test the mine atmosphere.  AT&E maintains that during
previous MSHA inspections and when consultants had visited
the mine, the mine atmosphere had been tested and that such
tests did not indicate that there any bad air in the mine.
(Tr. 91, 132-34)  It further argues that the miners had
never gone more than about 50 feet into the mine except on
two days when two miners worked on the air door that was
about 120 feet into the mine.  (Tr. 16, 30, 93).  AT&E
states that it was going to install a new venti- lation
system and it was looking into various types of testing
equipment to monitor and control the air quality.  It
believes that it met the standard's "as frequently as
necessary" require- ment because all of the previous tests
indicated that the air was good and the natural air flow
from the upper workings kept the air circulating.

     On at least one occasion miners complained about the quality
of the air in the mine and some said that they had become
sick from the air.  (Tr. 14, 29, 50, 60-61).  In addition,
AT&E was rehabilitating an old mine and air circulated
through old stopes before exiting the mine through the
portal.  (Tr. 29, 36).  AT&E did not have any means to test
the quality of the air.  I find that, given the
circumstances of this case, AT&E was required to have
testing equipment at its disposal to check the air in the
mine, especially because miners were required, on occasion,
to enter the deeper areas of the mine where contaminated or
oxygen deficient air is more likely to accumulate.  (Tr.
14).  I find that AT&E violated the standard because it did
not, and could not, test the air as frequently as necessary
to determine the adequacy of its air control measures.

     Inspector Kerber determined in the citation that the
gravity of the violation was low and that the violation was the
result of AT&E's low negligence.  The violation was not
designated as sig- nificant and substantial ("S&S").  I
agree with the inspector's determinations and reject the
Secretary's argument in his brief that the negligence of
AT&E was greater than originally deter- mined by the
inspector.  After considering the evidence presented at the
hearing, I conclude that MSHA's proposed penalty of $50.00
is appropriate under the criteria set forth in Section
110(i) of the Act, 30 U.S.C.  820(i).

D. Citation No. 3932730

     This citation alleges that AT&E did not have a check-in and
check-out system at the mine to provide an accurate record
of persons who are underground.  In addition, the citation
alleges that persons underground did not carry a positive
means of being identified.  The cited safety standard, 30
C.F.R.  57.11058, requires each operator of an underground
mine to "establish a check-in and check-out system which
shall provide an accurate record of persons in the mine."
The standard also states that every person underground
"shall carry a positive means of being identified."

     AT&E contends that it had a check-in and check-out system.
It argues that because only three miners worked underground
and they could generally be seen from the mine entrance, it
could rely on verbal communication and a visual check to
determine who was underground.  Miners were not permitted to
go underground without notifying Bill Gergen, AT&E's mine
engineer.  (Tr. 30-31, 38, 94).  In addition, AT&E contends
that each miner had a posi- tive means of identification in
the form of a training certifi- cate which each carried.

     I find that AT&E's check-in and check-out system did not
meet the requirements of the standard.  Although under
normal circumstances AT&E would know who was underground,
confusion could arise during an emergency and rescue efforts
could be hindered.  (Tr. 52).  Under AT&E's system, an
accurate "record" of persons in the mine was not kept.  In
addition, I find that training certificates do not
constitute a positive means of identification because they
can be easily destroyed.  Although the standard does not
expressly require that metal tags be used, I find that metal
tags are standard in the industry and, conse-quently, a
reasonably prudent person familiar with the mining industry
would know that metal identification tags are required.
(Tr. 72-73).  Mr. Gergen testified that he carried a brass
tag and Mr. Swanson stated that he has worked at many mines
and not one used paper certificates as a positive means of
indentifica-tion.  (Tr. 17, 107-08).

     Inspector Kerber determined that the gravity of the viola-
tion was low and that the violation was the result of AT&E's
high negligence.  The violation was not designated as
significant and substantial ("S&S").  I agree with the
inspector's determina- tions.  After considering the
evidence presented at the hearing, I conclude that MSHA's
proposed penalty of $50.00 is appropriate under the criteria
set forth in Section 110(i) of the Act.

E. Citation No. 3932731

     This citation alleges that AT&E did not have a neutral
return spring on the control handle for the 12-B mucker.
The citation states that the lack of a return spring created
a hazard to employees using the mucker.  The cited safety
standard, 30 C.F.R.  57.14100(b), provides:  "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."

     There is no dispute that the return spring was missing from
AT&E's track-mounted mucker.  This mucker was used to pick
up waste rock from the mine and dump the material into an
ore car for removal.  The function of the return spring was
to return the gear shift to neutral if the mucker operator
took his hand off  the control handle.  Without the return
spring, it was possible for the mucker to remain running and
in motion if the operator's hand was removed from the
control handle.

     AT&E admits that the return spring was missing, but contends
that it ordered the replacement part immediately after it
discov-ered that the spring was missing.  Thus, it argues
that it was doing all that it could to correct the defect in
a timely manner.  AT&E also contends that the defect did not
create a hazard to persons because the mucker was used only
for about an hour a day and it had other safety devices that
would stop the mucker in the event the operator was knocked
off.

     I find that the evidence demonstrates that AT&E violated the
safety standard.  First, I find that the missing return
spring did affect the safety of the mucker.  Unanticipated
events could cause the mucker operator to let go of the
control handle.  For example, he could slip or be knocked
off the mucker, faint, suf-fer a heart attack, or become
distracted.  The return spring is designed to reduce the
movement of the mucker in the event the operator is no
longer in control of it.  Second, although AT&E immediately
ordered a new part, it did not take steps necessary to
assure that the defect was corrected in a timely manner.
The condition had existed for at least three days prior to
the in-spection.  (Tr. 33).  The spring did not arrive for
about three months after it was ordered.  (Tr. 20).  AT&E
could have shut down the mucker or fashioned a temporary
make-shift spring for use until the replacement part
arrived.  Indeed, AT&E's mine engineer, Bill Gergen, made a
make-shift spring to abate the citation.  (Tr. 20, 33).
Thus, I conclude that the safety defect was not corrected in
a timely manner, as required by the safety standard.

     Inspector Kerber determined that it was reasonably likely
that a serious injury would occur as a result of the
violation and designated the violation as S&S.  He also the
determined that the violation was caused by AT&E's moderate
negligence.  I con-clude that the Secretary has not
established that the violation was S&S.  The S&S terminology
is taken from section 104(d) of the Mine Act, 30 U.S.C. 
814(d), and refers to more serious viola-tions.  A violation
is S&S if, based on the facts surrounding the violation,
there exists a reasonable likelihood that the hazard
contributed to by the violation will result in an injury or
ill-ness of a reasonably serious nature.  The Commission has
estab-lished a four-part S&S test, as follows:

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

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  An evaluation
of the reasonable likelihood of an injury should be made assuming
continued normal mining operations.  U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).

     The Secretary established the first two steps of the S&S
test.  I find, however, that the evidence does not establish a
reasonable likelihood that the hazard contributed to by the
violation will result in an injury.  The mucker was used about
one hour every day to remove waste materials as new timber sets
were installed in the drift.  (Tr. 32).  During that hour, it was
being moved approximately half of that time.  (Tr. 32, 96).  Only
three people worked underground and the same two miners operated
the mucker whenever it was used.  The mucker operator stands to
one side as he operates the controls and another miner stands on
the same side and slightly behind it to protect the air line.[2]
(Tr. 32).  The drift was about six feet wide and the mucker was
about two and one half feet wide.  The operator's side has more
clearance that the other side.  (Tr. 18-19, 95-96).  When func-
tioning, the return spring on the mucker will return the gear to
neutral but it will not engage a brake, so the mucker will keep
moving at least a few feet if it is on a grade.  (Tr. 41-43).
Given these facts, and the fact that the mucker operator's hand
would have to be unexpectedly removed from the control handle
before a hazard is created, I find that it is unlikely that the
hazard contributed to by the violation would result in an injury,
assuming continued normal mining operations.  In addition, I find
that, even if one assumes an event occurs that causes the opera-
tor to take his hand off the control handle, it was not likely
that the mucker would injure anyone.  While I recognize that the
return spring is an important piece of safety equipment, I be-
lieve that, given the particular facts in this case, the likeli-
hood of an injury was remote.[3]

     I find that the violation was caused by AT&E's moderate
negligence.  After considering the evidence presented at the
hearing, I conclude that a penalty of $50.00 is appropriate
under the criteria set forth in Section 110(i) of the Act.

F.   Citation No. 3932732

     The citation alleges that there was not a whip check or
safety chain on the one-inch air hose on the oiler.  The
safety standard, 30 C.F.R.  57.13021, provides, in part,
that "safety chains or other suitable locking devices shall
be used on con- nections to machines of high pressure hose
lines ... where a connection failure would create a hazard."

     AT&E argues that the particular air hose in question was not
in use at the time of the inspection and that the Secretary
did not show that it had ever been used.  AT&E also states
that whip checks were available at the mine and that one
would have been attached to the air hose when it was used.

     A whip check is designed to protect miners from injury in
the event an air hose connection fails.  An air hose can
whip around and strike people if it becomes disconnected
from the equipment to which it is attached.  There is no
dispute that the type of air hose cited was required to be
equipped with a whip check.  AT&E's engineer testified that
while he was not certain that the cited air hose had been
used without a whip check, he stated that it could have been
used.  (Tr. 22, 34).  There was no evidence that the air
hose was not available for use or that it had been
disconnected from the air compressor.

     I find that the Secretary has established a violation of the
safety standard.  Inspector Kerber determined that the
gravity of the violation was low and that the violation was
the result of AT&E's moderate negligence.  The violation was
not designated as S&S.  I agree with the inspector's
determinations.  After considering the evidence presented
at the hearing, I conclude that MSHA's proposed penalty of
$50.00 is appropriate under the criteria set forth in
Section 110(i) of the Act.

II.  Civil Penalty Assessments

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

                                              Assessed
Citation Nos.           30 C.F.R.            Penalty

3932726                 57.4560               VACATED
3932727                 57.5002               $50.00
3932730                 57.11058               50.00
3932731                 57.14100(b)            50.00
3932732                 57.13021               50.00

   Total Penalty                              $200.00

                             III.  ORDER

     Accordingly, Citation No. 3932726 is VACATED, the
remaining citations are AFFIRMED with Citation No. 3932731
MODIFIED to delete the significant and substantial
designation, and AT&E Enterprises, Inc., is ORDERED TO
PAY the Secretary of Labor the sum of $200.00 within 30
days of the date of this decision.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Alan M. Raznick, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson Street, Suite 1110,
San Francisco, CA 94105-2999

Gregory J. Roberts, Esq., CHRISTENSEN & BARRUS, 7112
North Fresno Street, Fresno, CA 93720

/rwm

**FOOTNOTES**

     See definitions of "gunite," "guniting," and "shotcrete"
in Bureau of Mines, U.S. Department of the Interior, Dictionary
of Mining, Mineral and Related Terms, at 518-19, 1004 (1968).

     The mucker is powered by compressed air.

     The fourth element of the Mathies S&S test has been met
because it is reasonably likely that if an injury occurred, it
would be of a serious nature.