<DOC>
[DOCID: f:ct2000208.wais]

 
HIGMAN SAND & GRAVEL, INC.
CENT 2000-208-M
January 17, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                        January 17, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. CENT 2000-208-M
               Petitioner       : A.C. No. 13-00691-05514
                                :
          v.                    : Docket No. CENT 2001-140-M
                                : A.C. No. 39-01439-05502
HIGMAN SAND & GRAVEL, INC.,     :
               Respondent       : IA Portable #1 & Bergdale
                                :   Pit

                             DECISION

Appearances: Ann  M. Noble, Esq., Office of the Solicitor,
             U.S. Department of Labor, Denver, Colorado, for
             Petitioner;
             Jeffrey A.  Sar, Esq., Baron, Sar, Goodwin, Gill
             & Lohr, Sioux City, Iowa, for Respondent.

Before: Judge Manning

     These cases are before  me  on  petitions  for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine  Safety  and Health Administration ("MSHA"), against  Higman
Sand and Gravel, Inc. ("Higman Gravel"), pursuant to sections 105
and 110 of the  Federal  Mine  Safety  and Health Act of 1977, 30
U.S.C.  815 and 820 (the "Mine Act").     A hearing was held in
Sioux City, Iowa.  At my request, the parties  filed post-hearing
briefs on the issues raised by the Commission's  decision in Alan
Lee  Good  d/b/a  Good  Construction, 23 FMSHRC 995 (Sept.  2001)
("Good Construction").

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.  Background and Discussion  of  General  Issues Raised by
Higman Gravel

     Higman Gravel operates the Bergdale Pit and IA  Portable #1.
The Bergdale Pit is a small pit and screening plant which  opened
less that a year prior to the subject MSHA inspection.  This  pit
had  not  been  inspected by MSHA prior to this inspection.  MSHA
Inspector Joe Steichen  inspected  the Bergdale Pit on August 16,
2000, and issued one citation.  The IA Portable #1 is near Akron,
Iowa, in Plymouth County.  Higman Gravel  refers to this facility
as  the "Akron Plant."  It is a gravel-processing  facility  that
includes  a  pit  and a plant where the excavated rock is crushed
and screened.  It was  opened  in  the  1960s.   The equipment is
permanent and, despite the name given it by MSHA,  it  is  not  a
portable  operation.   MSHA Inspector Kevin LeGrand inspected the
Akron Plant on December  2,  1999.  Higman Gravel contested 16 of
the citations issued by Inspector LeGrand in these proceedings.

     Higman Gravel raised a number  of  general  issues  in these
cases.  First, it argues that the Secretary failed to demonstrate
that  accidents  could  result  from  the  cited  conditions.  It
contends  that  an  injury  could  only result from an employee's
intentional misconduct and that no employee has ever been injured
by the cited conditions.  It maintains  that the Secretary failed
to establish any likelihood of an injury to employees as a result
of the cited conditions.

     The Federal Mine Safety and Health Review Commission and the
courts  have  uniformly  held  that mine operators  are  strictly
liable for violations of safety  and health standards.  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,   Inc.,  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).  Thus, a violation is found and a penalty  is
assessed  even if the chance of an injury is not very great.  The
risk of injury  and  the appropriate penalty for each citation is
discussed below.

     The Commission interprets  safety  standards  to  take  into
consideration "ordinary human carelessness."  Thompson Bros. Coal
Co.,  6  FMSHRC  2094,  2097 (September 1984).  In that case, the
Commission held that the guarding standard must be interpreted to
consider whether there is  a  "reasonable  possibility of contact
and injury, including contact stemming from inadvertent stumbling
or   falling,   momentary   inattention,   or   ordinary    human
carelessness."    Id.     Human   behavior  can  be  erratic  and
unpredictable.  For example, someone  might  attempt  to  perform
minor  maintenance  or  cleaning  near  an  unguarded tail pulley
without  first  shutting  it  down.   In  such  an instance,  the
employee's  clothing could become entangled in the  moving  parts
and a serious  injury  could  result.   Guards  are  designed  to
prevent  just  such  an  accident.  The fact that no employee has
ever been injured by an unguarded  tail pulley at Higman Gravel's
operations is not a defense because  there  is  a history of such
injuries at crushing plants throughout the United  States.  "Even
a  skilled  employee may suffer a lapse of attentiveness,  either
from fatigue or environmental distractions. . . . " Great Western
Electric Co., 5 FMSHRC 840, 842 (May 1983).

     Ten of the  seventeen  citations  at  issue  in  these cases
allege  that  Higman  Gravel  failed  to  adequately guard moving
machine parts.  Higman Gravel argues that it did not receive fair
notice  of  MSHA's  determination that its existing  guards  were
inadequate.  The Akron Plant has been inspected at least annually
since MSHA was created.   Higman Gravel contends that many of the
guards that were cited by Inspector  LeGrand have been present in
the same condition since MSHA began enforcing  the  Mine  Act  in
1978  and that all of these guards have been present for at least
ten years.   It  states  that MSHA never cited these guards until
the  Inspector  LeGrand's  inspection.    At   the  hearing,  the
Secretary  stipulated  that  none  of  the pulleys cited  by  the
inspector  have  been cited in the past.   Higman  Gravel  states
that, although it  has  received  citations  for failing to guard
moving  machine  parts  in the past, these prior  citations  were
issued because the guard  had  been  removed  and  had  not  been
replaced  at  the  time  of the inspection.  I analyze this issue
below.

     B.  Guarding Citations  at the Akron Plant (IA Portable #1),
CENT 2000-208-M.

     Inspector LeGrand issued  nine  guarding  citations  at  the
Akron  Plant.   Inspector  LeGrand  was  a new MSHA inspector who
graduated from MSHA's Mine Safety and Health  Academy  about  six
months  prior to this inspection.  With one exception, all of the
cited  pulleys   were  protected  by  substantial  metal  guards.
Inspector LeGrand believed that additional guarding was required,
as discussed in more detail below.

     Section 56.14107(a)  provides  that  "[m]oving machine parts
shall  be  guarded  to  protect  persons  from contacting  gears,
sprockets,  chains,  drive,  head  ,  tail, and  takeup  pulleys,
flywheels,  couplings,  shafts, fan blades,  and  similar  moving
machine parts that can cause  injury."   The standard makes clear
that guarding is required, but leaves unanswered what is required
to  protect  persons  from  contacting   moving   machine  parts.
Consequently, I find that this standard is ambiguous,  especially
when  applied  to moving machine parts that are already protected
by a guard.  As  discussed  in more detail below, I find that the
Secretary's determination to  construe  the  standard  in a broad
manner is reasonable.  The standard was written broadly  to cover
a  wide  range  of  moving  machine  parts  within the standard's
protective purpose.  Higman Gravel is not arguing  that the cited
pulleys did not come within the purview of the standard.

     The  Secretary  must provide fair notice of the requirements
of a broadly written safety  standard.   The  language of section
56.14107(a) is "simple and brief in order to be broadly adaptable
to myriad circumstances."  Kerr-McGee Corp., 3  FMSHRC 2496, 2497
(November 1981); Alabama By-Products Corp., 4 FMSHRC  2128,  2130
(December  1992).   Such  broadly  written  standards must afford
notice of what is required or proscribed.  U.S.  Steel  Corp.,  5
FMSHRC  3, 4 (January 1983).  In "order to afford adequate notice
and pass  constitutional  muster,  a  mandatory  safety  standard
cannot  be  `so incomplete, vague, indefinite, or uncertain  that
[persons] of  common  intelligence  must necessarily guess at its
meaning and differ as to its application'"  Ideal  Cement Co., 12
FMSHRC 2409, 2416 (November 1990)(citation omitted).   A standard
must  "give  a  person  of  ordinary  intelligence  a  reasonable
opportunity  to  know  what  is  prohibited,  so  that he may act
accordingly."   Lanham Coal Co., 13 FMSHRC 1341, 1343  (September
1991).

               When  faced  with  a  challenge  that  a
          safety  standard  failed  to provide adequate
          notice of prohibited or required conduct, the
          Commission has applied an objective standard,
          i.e.,  the  reasonably prudent  person  test.
          The Commission  recently summarized this test
          as  "whether  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."

Id.  (citations omitted).   To  put  it  another  way,  a  safety
standard  cannot be construed to mean what the Secretary intended
but did not  adequately  express.  "The Secretary, as enforcer of
the  Act,  has the responsibility  to  state  with  ascertainable
certainty what  is  meant  by  the  standard he has promulgated."
Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).

     The  Commission addressed this issue  with  respect  to  the
Secretary's   guarding   standard  in  Good  Construction.    The
Secretary has been enforcing  this  standard  for about 23 years.
Relying,  in part, on Good Construction, Higman  Gravel  believes
that the guarding  citations  should be vacated because the Akron
Plant has been inspected by MSHA over many years; MSHA inspectors
have  examined  the  guards  during  these  inspections;  and  no
citations were previously issued  at  the  cited  locations.   It
believes  that  if a mine operator has been guarding  its  moving
machine parts in  a particular manner without receiving citations
from MSHA, the Secretary  must provide notice of her intention to
require  additional  guarding   before  civil  penalties  may  be
assessed.  The Secretary contends  that  the  citations should be
affirmed because Higman did not meet the burden of proof for this
notice defense.  The Secretary maintains that "to  establish such
an   affirmative   defense,   the   operator   must   demonstrate
particularized  facts,  such  as:   the  prior inspector actually
examined  the  machine  part  in  question, that  the  operator's
representative  discussed  the  situation   (here,   the  partial
guards), and was told that the guarding was adequate."   (S.  Br.
at  6).   The  Secretary  contends that the operator has a "heavy
burden" of demonstrating a  lack  of  notice,  given  the  strict
liability nature of the Mine Act.  Id. at 7.

     In  Good  Construction, the mine operator contended that  it
did not have adequate  notice  of the requirements of 30 C.F.R. 
56.14107(a) because the language of the safety standard "does not
provide reasonably clear guidance  regarding  how  any particular
moving part should be guarded, allows inconsistent interpretation
by inspectors, and is unconstitutionally vague based  on the fact
that other MSHA inspectors never cited these same conditions over
the  past  18  years."   Good  Construction  at 1002.  The moving
machine  parts  were  guarded, but the MSHA inspector  determined
that the guarding was insufficient.

     The Commission's decision was split on the issue of how that
particular case should be handled.  Nevertheless, when put in the
context of previous Commission  decisions,  I  believe  that  the
holding  is essentially the same in both opinions with respect to
how this issue  should be analyzed in future cases, as summarized
in the opinion of Commissioners Jordan and Beatty.

               In   applying   the  reasonably  prudent
          person  standard  to a notice  question,  the
          Commission  has taken  into  account  a  wide
          variety of factors,  including  the text of a
          regulation,  its  placement  in  the  overall
          enforcement  scheme, its regulatory  history,
          the consistency  of the agency's enforcement,
          and  whether  MSHA  has   published   notices
          informing   the   regulated   community  with
          "ascertainable      certainty"     of     its
          interpretation of the  standard  in question.
          Also   relevant  is  the  testimony  of   the
          inspector  and the operator's employees as to
          whether  the   practices   affected   safety.
          Finally,  we  have  looked to accepted safety
          standards in the field, considerations unique
          to the mining industry, and the circumstances
          at the operator's mine.

23  FMSHRC  1005  (citations and footnote  omitted).   The  facts
raised by Higman Gravel  relate  to  the  consistency  of  MSHA's
enforcement.   I  discuss  the  notice  issues  in the context of
specific citations below.

     Citation   No.  7815172  alleges  a  violation  of   section
56.14107(a) because  the  left, right, and rear sides of the fin-
type tail pulley on the South  Dakota flat sand conveyor were not
provided with a guard.  The citation  states  that the roller was
about  two  feet above the ground.  Inspector LeGrand  determined
that the violation  was  not  significant and substantial ("S&S")
and was the result of Higman Gravel's  moderate  negligence.  The
Secretary proposes a penalty of $55 for this alleged violation.

     The  inspector  testified  that  the  cited tail pulley  was
guarded  at  the  time  of  his  inspection but that  there  were
openings in the guard through which a miner could get his hand or
arm caught if he stumbled and fell.   (Tr.  67,  Exs. G-10 & 11).
He believes that the opening at the back measured  about  9 by 30
inches  and  the openings on the sides to be about 6 by 6 inches.
(Tr. 69-70).   He  determined  that  the  violation  was  not S&S
because water and a Bobcat (skid loader) are used to clean up any
accumulations  under  the  pulley.   Inspector LeGrand determined
that  someone could be seriously injured  as  a  result  of  this
condition, but such an injury was not likely because employees do
not  work  in  the  area.   The  inspector  determined  that  the
operator's  negligence  was  moderate  because  Ray  Haneklaus, a
Higman  Gravel  employee  who  accompanied  LeGrand  during   his
inspection,  told  him that he did not believe that the condition
created a hazard.  Inspector  LeGrand  testified  that  the  tail
pulley was required to be completely enclosed by a guard as shown
in Figure 3 of MSHA's Guide to Equipment Guarding.  (Ex. G-3).

     Harold  Higman,  the  owner of Higman Gravel, testified that
the cited tail pulley has been  in the same condition since 1962.
(Tr. 303).  He also testified that  the  plant  was  inspected by
MSHA at least annually since the Mine Act was passed.  Mr. Higman
stated  that,  because the Akron Plant is small, it is thoroughly
inspected each time  an MSHA conducts an inspection.   (Tr. 315).
Higman testified that during these past inspections, no inspector
ever suggested that the  tail pulley needed to be more completely
guarded.   (Tr.  316).   Higman  stated  that  accumulations  are
cleaned  out  with  water  and   a  skid  loader.   Consequently,
employees  do  not work or walk around  the  plant  while  it  is
operating.  The only employee working around the plant when it is
operating is Steve  Haneklaus,  the  plant operator, who performs
all maintenance when the plant is shut down.

     Mr. Higman testified that the pulley  is  recessed more than
twelve  inches from the back of the guard and eight  inches  from
each side.   (Tr.  313, 317).   He believes that it would take an
intentional act for  someone to get his hand or arm caught in the
moving tail pulley.  Someone  stumbling  or  falling  in the area
would  not  get any part of his body or clothing into the  moving
pulley because the existing guard provided sufficient protection.

     The language  of  the  standard  states  that moving machine
parts  that  can cause injury, including drive, head,  tail,  and
take-up pulleys,  must  be guarded.  In the preamble to the final
rule, the Secretary emphasized  the  broad  construction  of this
safety standard.  The preamble states:

          [T]he    final    standard    requires    the
          installation  of  guards  to  protect persons
          from   coming  into  contact  with  hazardous
          moving machine parts.  The standard clarifies
          that the objective is to prevent contact with
          these machine  parts.  The guard must enclose
          the moving parts  to  the extent necessary to
          achieve this objective.

53 Fed. Reg. 32496, 32509 (Aug. 25,  1988) (emphasis added).  The
preamble further provides:

          Under  the  final rule, the standard  applies
          where  the  moving   machine   parts  can  be
          contacted and cause injury.  Some  commenters
          believed    that    guards   should   provide
          protection against inadvertent,  careless, or
          accidental contact but not against deliberate
          or purposeful actions.  They consider  guards
          which   totally   enclose   moving  parts  as
          counter-productive     to     other    safety
          considerations    such    as    proper   work
          procedures,  training, and general  attention
          to hazardous conditions.

Id.  In rejecting these  comments, the Secretary stated that most
injuries caused by moving  machine  parts  occur when persons are
"performing  deliberate or purposeful work-related  actions  with
the machinery"  and  that  the installation of a guard would have
prevented  these  injuries.   Id.    The  Secretary  stated  that
"[g]uards  provide  a physical barrier,  which  offers  the  most
effective protection  from hazards associated with moving machine
parts."   Id.   Thus,  the   Secretary  provided  notice  to  the
regulated community that she would interpret this safety standard
very broadly to protect persons  from  coming  into  contact with
moving  machine  parts  and  that  the standard covers deliberate
actions by employees.

     The  Secretary's  Program  Policy  Manual  ("PPM")  provides
additional  information  to  the  public  about  the  Secretary's
interpretation of safety standards.   The  PPM provides, in part,
as follows:

          All   moving  parts  identified  under   this
          standard  are  to  be guarded with adequately
          constructed, installed  and maintained guards
          to provide the required protection.  The  use
          of chains to rail off walkways and travelways
          near  moving  machine  parts, with or without
          the  posting  of  warning signs  in  lieu  of
          guards,  is  not  in  compliance   with  this
          standard.

IV  MSHA,  U.S.  Dep't  of  Labor,  Program  Policy Manual,  Part
56/57.14107 (2000) ("PPM").  Although the PPM  is  not binding on
the Secretary, it does provide the mining community  with  notice
of MSHA's interpretation of her safety standards.

     I  vacate this citation for the following reasons.  Although
the  Secretary's   broad   interpretation   of  the  standard  is
reasonable, she failed to give adequate notice  that the guard on
the  cited  tail  pulley  was  no longer sufficient to  meet  the
requirements of the safety standard.  A reasonably prudent person
familiar with the mining industry  and the protective purposes of
the standard would not have recognized  that  additional guarding
was  required,  given  MSHA's enforcement history  at  the  Akron
Plant.  The text of the  safety  standard  is broadly written and
does not describe the extent of the guarding  required other than
to  state that moving machine parts shall be guarded  to  protect
persons from contacting the moving parts.  It does not state that
moving  machine  parts  must be totally enclosed by a guard.  The
regulatory history provides  some  guidance.   The  history makes
clear that guards must "provide a physical barrier" because  such
a  barrier  "offers  the  most  effective protection from hazards
associated with moving machine parts."   53  Fed. Reg. 32509.  It
also states that the Secretary interprets the  safety standard to
protect  against deliberate and purposeful actions  of  employees
because most  injuries  caused by moving machine parts occur when
employees are "performing  deliberate  or purposeful work-related
actions with the machinery."  Id.  The language of the PPM merely
states that the standard should be interpreted  to require guards
that are "adequate" to "provide the required protection."   These
aids to regulatory interpretation state that moving machine parts
must  be  guarded to the extent necessary to prevent contact with
the moving parts.

     Based,  in  part,  on  MSHA's  Guide  to Equipment Guarding,
Inspector LeGrand required the pulley to be  completely  enclosed
by  a  guard.   (Ex. G-3).  All of the illustrations in the guide
picture metal cages around moving machine parts.  With respect to
the guarding of head and tail pulleys, every example shown in the
guide  depicts  a  wire  cage  built  around  the  entire  pulley
structure.  The language  of  the  safety  standard and the other
aids to its interpretation discussed above do  not  indicate that
mine operators must construct such cage-type guards in  order  to
comply with the safety standard.   I conclude that the regulatory
history,  the  PPM,  and  MSHA's guide are ambiguous.  I conclude
that  MSHA has not "published  notices  informing  the  regulated
community with `ascertainable certainty' of [Inspector LeGrand's]
interpretation  of  the  standard"  as  applied  to  this pulley.
Clearly the tail pulley was required to be guarded, so  the issue
is  whether  MSHA  provided  notice  that  the type of guard that
Higman Gravel had in place was inadequate under the standard.

     The  guard  that was installed by Higman  Gravel  was  quite
substantial.  (Exs.  G-10  &  11).  I credit the testimony of Mr.
Higman that the conveyor, tail  pulley, and guard have existed at
the Akron Plant for a significant  length of time.  I also credit
his testimony that the plant has been  inspected by MSHA at least
once a year since MSHA's inception.  The  plant  is small and the
cited tail pulley was obvious.  It is inconceivable that MSHA has
been  inspecting  this  plant for all of these years  and  not  a
single inspector examined the tail pulley in question.  Indeed,
Mr. Higman testified one  MSHA  inspector  terminated  a citation
issued because a guard was missing by accepting as abatement  the
exact  type  of  guard  that  Inspector  LeGrand  cited  in  this
instance.  (Tr. 347).

     I agree with the Secretary that the fair notice issue is  an
affirmative  defense  and  that  a judge should not assume that a
condition has been observed by MSHA  inspectors  during  previous
inspections.  Nevertheless, an operator is not required to  prove
that  an  MSHA  inspector examined the cited moving machine part,
discussed the existing guard with the mine operator, and told the
operator that the  guard  was  adequate.  The Commission rejected
this approach in Good Construction.   In  any  event,  Mr. Higman
credibly  testified  that  in  at least one instance an inspector
accepted the type of guard cited here.

     It is also important to understand  that  the hazard created
by  the  openings  in  the  existing guard were negligible.   The
statement in the citation that  the  back  and  sides of the tail
pulley were not guarded is not correct.  Those areas were guarded
by  metal  panels  or  a  metal  guard but the guarding  did  not
completely enclose the pulley.  Employees did not use a shovel to
remove accumulations of material from  around the tail pulley and
the openings were small.  Employees did not work or travel in the
vicinity of the tail pulley.  The pulley  was  also well-recessed
within the existing guard.

     Applying   the   factors   set  forth  in  the  opinion   of
Commissioners Jordan and Beatty in Good Construction to the facts
of this case, I find that Higman  Gravel  was  not  provided with
fair  notice  that additional guarding was required at  the  tail
pulley cited by  Inspector  LeGrand  in Citation No. 7815172.  My
holding relies heavily on the fact that  the  existing  guard has
been  in  place  for many years through numerous MSHA inspections
and has never been  cited  under  the  safety  standard.   Higman
Gravel was led to believe by prior citation-free inspections that
its  guard  complied  with  the  standard.   A reasonably prudent
person would have reached the same conclusion  as  Higman Gravel.
A civil penalty cannot be assessed under such circumstances  and,
consequently, I vacate this citation.

     Citation   No.   7815174  alleges  a  violation  of  section
56.14107(a) because guarding was not provided for the head pulley
v-belt drive and spoked sheave on the South Dakota flat conveyor.
The citation states that  the moving machine parts were about six
feet above ground level.  Inspector  LeGrand  determined that the
violation  was  not  S&S  and  was the result of Higman  Gravel's
moderate negligence.  The Secretary proposes a penalty of $55 for
this alleged violation.

     Inspector LeGrand testified  that he walked under the pulley
and determined that the sheave for  the  v-belt drive that powers
the pulley was about six feet above the ground level by using his
own height as a gage.  (Tr. 78, 285; Ex. G-13).   He  stated that
it  was  unlikely that anyone would be around this sheave  during
normal operations.   (Tr.  80).  He did not use a tape measure to
determine the height of the  sheave  because  of the muck and mud
under the sheave.  (Tr. 17172).   The inspector  determined  that
the negligence was moderate because Ray Haneklaus did not believe
that  the  condition  presented  a  hazard.  On cross-examination
Inspector  LeGrand admitted that he was  not  positive  that  the
sheave was less that seven feet above the ground.  (Tr. 172).

     Mr. Higman  testified that the moving machine parts cited by
Inspector LeGrand  are  in excess of eight feet above the ground.
(Tr.  318, 379-81).  He also  testified  that  the  mud  and muck
under the sheave is about 18 inches deep.  He stated that  nobody
would ever want to walk in the area because the mud would come up
over his boots.  If someone did walk into the area, he would sink
into  the  mud  to  such  an extent that the moving machine parts
would be out of reach.  Higman  testified that the area is always
this muddy.  He further testified that this condition has existed
since 1962; that it is an obvious  feature  at the plant; and the
area  has  been  inspected by MSHA at least annually  for  years.
(Tr. 319).

     Steve Haneklaus  testified  that  anyone  walking  under the
cited  sheave  would  sink into the mud at least two feet.   (Tr.
398).  He stated that Inspector  LeGrand  did  not walk under the
sheave during his inspection.  Haneklaus further  stated that the
moving machine parts are about eight to nine feet above the solid
ground.  (Tr. 399).  He also testified that a loader  is  used to
clean up the area.  (Tr. 400-01).

     Section  (b)  of  the  standard provides that guards are not
required if the exposed moving  machine  parts are at least seven
feet  away from walking or working surfaces.   I  find  that  the
Secretary  did  not establish a violation.  The sheave for the v-
belt  drive was not  guarded.  Inspector  LeGrand  estimated  the
height of this sheave above the ground and could not testify with
certainty  that it was less than seven feet above the ground.  In
addition, I  credit  the  testimony of Higman and Haneklaus as to
the conditions in the area.   The  area  was  extremely  muddy as
shown  on  Exhibit  13.   As  a consequence, the ground under the
moving parts was not really a walking  or  working  surface.  The
fact  that  this  condition existed for many years without  being
cited by MSHA supports  Higman  Gravel's case.  The condition was
obvious  and  would  have  been easily  observed  by  other  MSHA
inspectors.  Consequently, I vacate this citation.

     Citation  No.  7815176  alleges   a   violation  of  section
56.14107(a) because the left and right sides of the fin-type tail
pulley on the wash plant feed conveyor were  not  provided with a
guard.   The citation states that the pulley was about  one  foot
above the  ground and that the openings on the sides of the guard
measured  about   five   by   eight  inches.   Inspector  LeGrand
determined that the violation was  S&S  and  was  the  result  of
Higman  Gravel's  moderate  negligence.  The Secretary proposes a
penalty of $90 for this alleged violation.

     Inspector LeGrand testified  that the existing guard on this
tail pulley was the same type that  was  installed  on  the  tail
pulley  cited  in Citation No. 7815172 discussed above.  (Tr. 87-
88;  Ex.  G-17).   LeGrand  testified  that  he  designated  this
citation as  S&S  because  Ray  Haneklaus  told  him  that  Steve
Haneklaus  cleans  out  accumulations  around  the pulley several
times a day using a shovel.

     Mr. Higman testified that the tail pulley and  the  existing
guard  have  been  in  the same location for over 30 years.  (Tr.
329).  He stated that water  is used to clean out the area around
the pulley.  The conveyor sits  on  a concrete platform and water
is used to wash away accumulations.   (Tr. 329-30).  A pay loader
is then used to scoop any material that  is washed up against the
retaining wall adjacent to the conveyor.   Mr.  Higman  testified
that  accumulations  are  not  cleaned  up  manually.  (Tr. 330).
Steve Haneklaus testified that he uses a Bobcat  and  a loader to
clean  the  area  of  accumulations.   (Tr.  403).    Mr.  Higman
testified  that  Ray  Haneklaus,  who  is  Steve's  father,  is a
mechanic at the plant.  Because he spends most of his time in the
shop,  he  does  not  have  specific  knowledge  of  the clean-up
procedures at the plant.  (Tr. 306-10).

     For  the  reasons  set  forth  with respect to Citation  No.
7815172, I vacate this citation.  The  cited tail pulley assembly
has been in existence at the same location  for  many years; MSHA
has inspected this plant many times; the plant is  small; and the
pulley is in plain sight.  There is no doubt that MSHA inspectors
have  examined  this  tail  pulley  during  previous  inspections
without  issuing  citations.   Taking into consideration all  the
factors  to  be  considered in applying  the  reasonably  prudent
person test set forth  in  Good  Construction, I find that Higman
Gravel was not provided with sufficient  notice that the existing
guard failed to meet the requirements of the safety standard.

     Citation  No.  7815177  alleges  a  violation   of   section
56.14107(a) because the left and right sides of the fin-type tail
pulley  on  the  one-inch rock conveyor were not provided with  a
guard.  The citation  states  that  the pulley was about two feet
above the ground and that the openings  on the sides of the guard
measured   about   five  by  eight  inches.   Inspector   LeGrand
determined that the  violation  was not S&S and was the result of
Higman Gravel's moderate negligence.   The  Secretary  proposes a
penalty of $55 for this alleged violation.

     The  testimony  with respect to this citation is essentially
the same as with Citation No. 7815176.  (Tr. 93-94, 331-32, 405).
Unlike that citation,  however, Inspector LeGrand determined that
the condition did not present an S&S hazard.  For the reasons set
forth with respect to Citation Nos. 7815172 and 7815176, I vacate
this citation.

     Citation  No.  7815181   alleges   a  violation  of  section
56.14107(a) because the left, right, and  rear  sides of the fin-
type  tail pulley on the rock conveyor were not provided  with  a
guard.   The citation states that the pulley was about three feet
above the  ground and that the openings on the sides of the guard
measured about  five  by  eight inches.  The citation also states
that the opening at the back was about 24 by 9 inches.  Inspector
LeGrand determined that the  violation  was  not  S&S and was the
result  of  Higman  Gravel's moderate negligence.  The  Secretary
proposes a penalty of $55 for this alleged violation.

     The testimony with  respect  to this citation is essentially
the same as with Citation No. 7815172.  (Tr. 106-09, 216-19, 342-
47, 410-11; Ex. G-23).  Mr. Higman  testified  that  sometimes  a
guard  will  be  torn  up  by  a  loader, but the guard is always
replaced by the same type of guard.   (Tr. 344).  Steve Haneklaus
testified that MSHA inspectors have examined  the  guards on tail
pulleys during previous inspections.  (Tr. 411).  For the reasons
set  forth  with  respect to Citation Nos. 7815172, 7815176,  and
7815177, I vacate this citation.

     Citation  No.  7815182   alleges   a  violation  of  section
56.14107(a) because a guard was not provided on the drive pulleys
on the raw material stacker conveyor.  The citation states that a
round six-inch diameter hole had been cut  into the right side of
the  drive  pulleys.   Inspector  LeGrand  determined   that  the
violation  was  not  S&S  and  was  the result of Higman Gravel's
moderate negligence.  The Secretary proposes a penalty of $55 for
this alleged violation.

     Inspector LeGrand testified that the hole presented a hazard
because someone could be "drawn in by contacting the pulleys that
are  on the inside, resulting in cuts,  lacerations,  and  broken
bones."   (Tr.  112;  Ex. G-25).  He testified that Ray Haneklaus
told him that the hole  was cut to provide access to the bearings
for the pulleys.  He admitted  that  the  bearings  could  not be
changed  while  the  unit was operating.  (Tr. 225).  He also did
not know how far in the  opening  the pulley was located.  He did
not observe a grease fitting.  He believes  that  the opening was
about chest high. (Tr. 226).

     Mr. Higman testified that there are no moving  machine parts
directly  inside  the  hole.    (Tr.  350).   He stated that  the
condition of the bolts shown in the photograph  demonstrates that
the  "area  has  not  been  touched for a significant  number  of
years."  (Tr. 351).  The bearings  cannot  be  replaced while the
machinery is in operation.  Steve Haneklaus also  testified  that
the  opening  did  not present a hazard to employees.  (Tr. 412).
He stated that if someone  were  walking in the area and slipped,
he is not going to accidentally put  his  hand  through the cited
hole.

     As with the other guarding citations, the condition cited by
Inspector  LeGrand  existed  for many years without  being  cited
during  previous  MSHA  inspections.    As  a  consequence,  this
citation is infected by the same notice problems  noted above.  I
vacate  this citation on a more fundamental basis, however.   The
standard requires that moving machine parts be guarded to protect
persons from  contacting  moving  machine parts.  As shown in the
photograph, the pulley was covered  by a substantial metal guard.
(Ex.  G-25).  The small opening did not  present  any  hazard  to
employees.   I  credit the testimony of Higman and Haneklaus that
it would be virtually impossible to get one's hand or arm through
the hole and contact  a  moving  machine  part.   If  an employee
tripped  in the area, his hand would not enter this opening.   In
addition, there is absolutely no proof that anyone would or could
perform maintenance  in  or  around  the  hole while the unit was
operating.  I find that the moving machine  parts were adequately
guarded under the safety standard.  Consequently,  I  vacate this
citation..

     Citation   No.   7815183  alleges  a  violation  of  section
56.14107(a) because the  left,  right, and rear sides of the fin-
type tail pulley on the rock-return  conveyor  were  not provided
with a guard.  The citation states that the pulley was  about one
foot  above  the  ground,  that  the opening at the rear was five
inches high and two feet wide, and  side openings were about five
by six inches.  Inspector LeGrand determined  that  the violation
was   S&S   and  was  the  result  of  Higman  Gravel's  moderate
negligence.   The  Secretary  proposes  a penalty of $90 for this
alleged violation.

     Inspector LeGrand testified that the conditions that led him
to  issue  this  citation  were  the  same as with  the  previous
citations.  (Tr. 115; Ex G-27).  He determined that this citation
was S&S because Ray Haneklaus told him  that  someone  cleans  up
accumulations   around  this  tail  pulley  "throughout  the  day
whenever  it's  needed."    (Tr.  115,  231-32)    The  inspector
believes that the area is cleaned by an employee using a shovel.

     Mr. Higman testified that  this  area  is  cleaned out by an
employee using a shovel, but that it is only cleaned  once  a day
prior  to  commencing operations.  (Tr. 354).  He stated that the
pulley is recessed  about  a  foot  from the back opening.  Steve
Haneklaus cleans the area each day using  a  shovel  and  a  skid
loader,  but  only  when the conveyor is not running.  (Tr. 413).
He stated that neither  he  nor  anyone else is around the pulley
during operations.  He also testified that he personally observed
at least one other MSHA inspector  examine  this conveyor without
issuing a citation.  (Tr. 414-15).

     As with other tail pulleys at the Akron  Plant, this one was
protected  by  a guard that had openings on the back  and  sides.
The record establishes that this condition existed for many years
and was observed  by  other  MSHA inspectors.  The guard that was
present appears to be similar to the guards that were used at the
other pulleys cited by Inspector LeGrand.  For the reasons stated
with  respect  to  Citation No. 7815172,  above,  I  vacate  this
citation.  Higman Gravel  was  not provided with fair notice that
additional guarding was required at this location.

     Citation  No.  7815186  alleges   a   violation  of  section
56.14107(a) because the rear side of the fin-type  tail pulley on
the  raw  material conveyor under the truck feed hopper  was  not
provided with  a  guard.  The citation states that the pulley was
about one foot above the ground and that the opening was about 17
by 48 inches.  Inspector  LeGrand  determined  that the violation
was   S&S   and  was  the  result  of  Higman  Gravel's  moderate
negligence.   The  Secretary  proposes  a penalty of $90 for this
alleged violation.

     Inspector LeGrand testified that the  tail  pulley  was  not
guarded  at  the  back.   (Tr.  122).   He  determined  that  the
condition  created  a  hazard because Ray Haneklaus told him that
"the plant person normally cleans out around this area on a daily
basis as needed."  (Tr.  123).   The  inspector  believed that an
employee's clothing could become entangled in the  moving machine
parts,  pull  him  into  these  parts,  and severely injure  him.
Inspector  LeGrand  credibly  testified  that   these   types  of
accidents occur with some frequency at unguarded tail pulleys.

     Mr.  Higman  testified that the cited area was between  "two
cement high walls."   (Tr.  355).   He  further stated that a pay
loader  is  used  to  keep the area clean of  accumulations.   He
testified that no employees  work  or  travel  in  the  area.  He
further  testified  that if anyone were to slip and fall next  to
the pulley, he would  not  be injured by the moving machine parts
because there are "additional  bars  around  it  that keep people
away."   (Tr.  356).  Steve Haneklaus testified that  he  is  the
"plant person" referred  to by Inspector LeGrand.  (Tr. 415).  He
stated that he does not manually  clean  up  accumulations in the
area with a shovel.  He further testified that there is no reason
for anyone to be in the vicinity of the tail pulley when it is in
operation.  (Tr. 416).  Although the pulley needs  to be greased,
he performs that task prior to starting operations.   Finally, he
stated that he saw at least one other MSHA inspector look  at the
area without issuing a citation.  Id.

     No  photographs  were  taken  of  the cited condition.  This
cited  area  does not appear to be similar  to  the  other  cited
areas,  given  its   location   and  the  size  of  the  opening.
Ordinarily,  an unguarded area that  measures  17  by  48  inches
adjacent to a  tail  pulley that is about a foot above the ground
would violate the safety  standard.   Such  a condition creates a
risk  that someone could become entangled in the  moving  machine
parts as  described  by the inspector.  Mr. Higman testified that
metal bars were present  to  keep  people  away.  Both Higman and
Haneklaus testified that no employees work in the vicinity of the
tail pulley.  I credit this testimony.

     Taking  into  consideration the factors set  forth  in  Good
Construction, I find  that the Secretary did not provide adequate
notice that additional  guarding  was  required at this location.
As stated above, the safety standard is  broadly written to apply
to a wide range of situations.   The cited  condition existed for
many  years and has been inspected by MSHA on  a  regular  basis.
The Akron  Plant  is  not a large facility.  The hazard presented
was not very great because employees do not walk or travel in the
area.  Although it is within  MSHA's authority under the standard
to require a guard at the cited  location,  a  reasonably prudent
person  familiar  with  the  mining  industry and the  protective
purposes of the safety standard would  not have realized that one
was required, given MSHA's enforcement history  and  the low risk
of injury.  Consequently, I vacate this citation.

     Citation No. 7815179 alleges a violation of section 56.14108
because  two  v-belts  for  the  head  pulley  drive  on the rock
conveyor were not guarded to prevent whipping action hazards if a
belt broke.  The citation states that the v-belts were  about 7.5
feet  directly  above the rock screw elevated walkway.  Inspector
LeGrand determined  that the violation was S&S and was the result
of  Higman Gravel's moderate  negligence.   The  safety  standard
provides  that  "overhead drive belts shall be guarded to contain
the whipping action  of  a  broken  belt  if that action could be
hazardous to persons."  The Secretary proposes  a  penalty of $90
for this alleged violation.

     Inspector LeGrand testified that if either of the  two belts
were  to  break,  anyone on the platform or on the ladder to  the
platform could be struck  by the broken belt.  (Tr. 98-99; Ex. G-
20).  Ray Haneklaus told him  that the belts were about nine feet
long and that the plant person  would go up the ladder once a day
to monitor the material flow and  the rock screws.  (Tr. 99-100).
The inspector did not observe anyone  on  the  platform or on the
ladder during his inspection.  (Tr. 202).  He estimated  that the
distance  from  these  belts  to  the ground to be about 20 feet.
(Tr. 205).  He also testified that  he  relied  on the statements
made  to  him by Ray Haneklaus when issuing this citation.   (Tr.
207-09).  The  inspector  does not know if the plant is operating
when employees are on the platform.   (Tr. 209-10).  The citation
was abated when the operator removed the ladder.

     Mr.  Higman  testified  that  no  employees  travel  to  the
platform while the pulleys are in operation.   (Tr. 336).  Higman
testified that there are only two reasons to travel  up  onto the
platform.   First,  someone  goes  up while the plant is down  to
check for wear and tear on the parts.   (Tr. 336-67).  Second, if
the  screws plug up with rock, someone has  to  go  up  onto  the
platform  to  remove the plugged up rock.  By necessity, the unit
is  shut  down  while   this  occurs.   Otherwise,  the  conveyor
continues  to  dump  rock onto  the  area.   (Tr.  337-38).   The
conveyor is shut down  at  the  control house before any plug-ups
are  removed.   The  pulleys  in question  are  attached  to  the
conveyor motor.  (Ex. G-20).

     Steve Haneklaus testified that he is the person who would go
up onto the platform if the need  arose.   (Tr. 405).  He further
testified that he would not travel up the ladder  to the platform
to fix a problem such as a plugged rock screw while  the conveyor
was  operating.  He stated that rock would fall on him  from  the
conveyor if he tried to do so.

     I  find  that  the  Secretary did not establish a violation.
The pulley was too high to pose a hazard to anyone on the ground.
An employee could be injured  only  if a belt were to break while
he  was on the ladder or platform.  I  credit  the  testimony  of
Messrs.  Higman  and  Haneklaus  as  to the use of the ladder and
platform.  There were no grease fittings  or  other service items
at the cited location.  The rock screws are checked for wear when
the plant is shut down.  If there is a plug-up,  the  conveyor is
shutdown  as  soon  as  possible.   It is quite obvious from  the
photograph  that  the operator would not  want  the  conveyor  to
continue dumping rock  over the top of the screws in the event of
a plug-up.  Moreover, the  plant person could not fix the problem
if the conveyor continued to operate.  Thus, no employee would be
on the ladder or platform when the pulleys were in operation.  No
employee has ever been injured  by  the whipping action of a belt
at this location.  If one of the cited  belts broke, its whipping
action would not create a hazard because employees do not work or
travel on the ladder or platform while the conveyor is operating.
Accordingly, I vacate this citation.

     C.  Guarding Citation at the Bergdale Pit, CENT 2001-140-M.

     Citation  No.  7919642  alleges  a  violation   of   section
56.14107(a) because the fan blades on the Detroit engine used  to
provide  power  to  the  screen plant were not guarded to prevent
persons  from  coming into accidental  contact  with  them.   The
citation states that the fan blades were about 30 inches from the
ground and about  30  inches  from  the  control levers.  It also
states  that employees are in the area on a  daily  basis.   MSHA
Inspector  Joe Steichen determined that the violation was S&S and
the result of Higman Gravel's moderate negligence.  The Secretary
proposes a penalty of $90 for this alleged violation.

     Inspector  Steichen  testified that the back side of the fan
blades for the diesel engine  on  the generator were not guarded.
(Tr.  29;  Ex. G-2).  He believed that  someone  walking  by  the
generator motor  could  "perhaps  trip  and  fall"  into  the fan
blades.   Id.    The  fan  blades were recessed about four inches
into the frame for the radiator.   (Tr.  38).  Steichen testified
that if an employee were to get a hand or  arm  caught in the fan
blades, he could suffer serious injuries.  He was  concerned that
someone  could  try  to  make  adjustments to the engine  without
turning it off.  He also stated  that  the Bergdale Pit had never
been inspected by MSHA.

     James Abbott, who ran the excavator  at  the  pit, testified
that  sometimes he starts the diesel engine but that  the  loader
operator  usually  starts  it.  (Tr. 10-11).  The engine operates
during the entire shift.  The  fluid levels are checked and other
maintenance is performed before  the engine is started.  (Tr. 16,
39).  He testified that there is no  reason for anyone to perform
any  maintenance on the generator unit  while  it  is  operating.
(Tr. 39).   The  controls  for  the generator are about four feet
from  the  engine.   Abbott further  testified  that  it  is  not
necessary to clean up  any  material  in or around the generator.
(Tr. 20).  He does not believe that it is very likely that anyone
would become entangled in the fan blades  because  the  fan "sits
way back in there next to the radiator."  (Tr. 21).

     Mr. Higman testified that this generator was used by  Higman
Gravel at its Volin, South Dakota, pit for about ten years before
it was moved to the Bergdale Pit.  (Tr. 42).  He also stated that
the cited condition has existed since the generator was purchased
and  that  no  employees have been injured.  He further testified
that there is no  reason  for  anyone  to  be  anywhere  near the
generator  after  it  is  started.   The two employees at the pit
operate heavy equipment during the entire  shift.   In  addition,
the  generator  sits under a conveyor assembly so it is protected
by its location.  (Tr. 45).

     I find that  the Secretary established a violation, which is
not  S&S.  The fan blades  are  moving  machine  parts  that  are
required  to  be protected.  The likelihood of such an injury was
not very great,  however.   I  credit  the  testimony  of  Higman
Gravel's witnesses on the likelihood of an injury issue.  I  also
find that Higman Gravel's negligence was low.  I assess a penalty
of $40 for this violation.

     D.   Other  Citations  at  the Akron Plant (IA Portable #1),
CENT 2000-208-M.

     Citation No. 7815175 alleges a violation of section 56.12008
because a bushing was not provided for the 220-volt cord where it
entered the metal junction box for  the  electric  motor  on  the
South  Dakota  flat  conveyor.   The citation states that no bare
wires were discovered.  Inspector  LeGrand  determined  that  the
violation  was  not  S&S  and  was  the result of Higman Gravel's
moderate negligence.  The safety standard  provides, in pertinent
part,  that  power  "cables shall enter metal frames  of  .  .  .
electrical components only through proper fittings ."  It further
states that "[w]hen insulated  wires,  other  than  cables,  pass
through  metal  frames,  the  holes shall be substantially bushed
with insulated bushings."  The  Secretary  proposes  a penalty of
$55 for this alleged violation.

     Inspector  LeGrand  testified  that  the  power  cord was  a
"three-wire Romex type cord."   (Tr. 84).  It had "three wires in
it  with  plastic  wrap around."  Id.  It appears to me that  the
power cord in question  was  an  electrical  cable rather than an
insulated wire, as these terms are used in the  safety  standard.
Nevertheless,  I  will  interpret  Inspector  LeGrand's testimony
concerning the lack of a bushing to include the  lack of a proper
fitting.  The Secretary's regulations and her PPM  do not provide
any  guidance.   Inspector  LeGrand was concerned that  the  cord
could rub against the metal opening  and energize the metal frame
of the conveyor.  He observed the condition while standing on the
ground some distance away.  The muddy conditions described in the
discussion of Citation No. 7815174 above,  were  located directly
under the motor.  The inspector estimated that the cited area was
about nine feet above the ground.  (Tr. 176; Ex. G-15).  The cord
entered  into  the  motor through, what the inspector  called,  a
"metal elbow."  Id.   He  believed  that  the  cord could vibrate
within that elbow.  (Tr. 177).  He could not state with certainty
that the cord was not tightly clamped within that  elbow,  but he
did not see a bushing or any other device holding the cord.  (Tr.
177-78, 290).

     Mr.  Higman  testified  that  the  cord was not free to move
around  because  it  entered  the junction box  through  a  metal
conduit.  (Tr. 320-21).   He stated  that the cited equipment had
been in use since the 1960s, but that it was taken out of service
prior to the hearing.  He further testified  that  no  change was
made to abate the cited condition.  (Tr. 324, 325-26).  He took a
photograph of the cited area after the equipment was taken out of
service.  (Tr. 322; Ex. R-C).  Mr. Higman testified that  because
the cord was tight and secure in the metal fitting, the condition
did  not  present  a hazard.  Finally, he stated that because  of
location of the motor,  it was difficult if not impossible to see
the fitting from the ground.  (Tr. 323-24).

     I find that the Secretary  did  not  establish  a violation.
The cord was a cable that was required to enter the frame  of the
motor  through  a  "proper  fitting."  The cord entered the motor
through  a  metal elbow or conduit.   I  credit  Higman  Gravel's
evidence that the cord was secure within this metal conduit which
served as a fitting.   (Ex.  R-C).   It was difficult to see this
fitting  from  the ground, as evidenced  by  the  fact  that  the
citation was terminated  even though Higman Gravel did nothing to
abate the condition.  Consequently, I vacate this citation.

     Citation No. 7815180 alleges a violation of section 56.11004
because  the  12-foot  portable  metal  ladder  to  the  elevated
platform  for the rock screw  was  not  secured  in  place.   The
citation states  that  the plant person uses this ladder daily to
access  the  rock  screw  elevated  walkway.   Inspector  LeGrand
determined that the violation  was  S&S  and  was  the  result of
Higman   Gravel's   moderate  negligence.   The  safety  standard
provides that "[p]ortable  ridged  ladders shall be provided with
suitable  bases and placed securely when  used."   The  Secretary
proposes a penalty of $113 for this alleged violation.

     Inspector  LeGrand testified that the cited metal ladder was
leaning against the  metal  frame  of the walkway adjacent to the
rock  screws.  (Tr. 101).  The ladder  was  not  affixed  to  the
walkway  at the top.  (Ex. G-20).  He stated that the ladder slid
to one side  when  he  first stepped onto the ladder.  (Tr. 102).
He was not concerned whether the base of the ladder was suitable.
Rather, he was concerned  that  the ladder was not secured at the
top and feared that it could slide off the walkway.  Id.   If the
ladder  fell while a person was climbing  it,  he  could  sustain
serious injuries.   He  issued  the  citation  because the ladder
shifted when he first stepped on it.  (Tr. 215).

     Mr.  Higman  testified  that  the bottom of the  ladder  was
buried in rock.  (Tr. 340).  Higman Gravel abated the citation by
removing the ladder.  A payloader had  to  be used to dig out the
ladder from the accumulated rock.  Steve Haneklaus testified that
the  ladder could not be removed by hand because  it  was  buried
about  two  to  three  feet in accumulated rock.  A payloader was
used to remove some of the  rock  and  then  a chain was attached
between the bottom of ladder and the bucket of  the loader.  (Tr.
409).  The ladder was then pulled out of the remaining rock.

     I  find  that the Secretary did not establish  a  violation.
The safety standard  requires  that  portable  ladders be "placed
securely when used."  The mere fact that the ladder  shifted some
when the inspector first stepped on it does not establish that it
was  not secure.  Although it would be a good idea to attach  the
top of  the ladder to the frame of the walkway, the standard does
not specifically  require that ladders be affixed at the top.  In
addition, the fact  that  the  ladder had to be pulled out of the
rock   with  a  loader  shows  that  the   ladder   was   secure.
Consequently, I vacate this citation.

     Citation  No. 7815185 alleges a violation of section 56.4101
because a sign prohibiting smoking or open flame was not provided
at or near the 500 gallon diesel tank under the raw material feed
conveyor.  Inspector  LeGrand  determined  that the violation was
not   S&S  and  was  the  result  of  Higman  Gravel's   moderate
negligence.   The  safety standard states that "[r]eadily visible
signs prohibiting smoking  and open flames shall be posed where a
fire  or  explosion hazard exists."   The  Secretary  proposes  a
penalty of $55 for this alleged violation.

     Inspector  LeGrand testified that there were no signs posted
at or near the diesel  fuel  storage  tank.  (Tr. 116; Ex. G-29).
The only source of a flame would be someone smoking or welding in
the area.  (Tr. 120).  Mr. Higman testified  that diesel fuel has
a  very  low  flash  point  so  that the possibility  of  someone
starting a fire or causing an explosion  by  smoking  or using an
open flame was virtually nonexistent.  (Tr. 354-55).

     I  find that the Secretary established a violation.   Diesel
fuel storage  facilities are covered by the safety standard.  The
fact that the likelihood  of  a fire was not great relates to the
gravity  of the citation.  I find  that  the  violation  was  not
serious and  that  Higman Gravel's negligence was low.  A penalty
of $40 is appropriate.

     Citation  No.  7815187   alleges   a  violation  of  section
56.14132(a) because the horn and back-up  alarm  on  the  Kamotsu
loader  were  not  in  operating  condition.   Inspector  LeGrand
determined  that the violation was not S&S and was the result  of
Higman  Gravel's   moderate   negligence.   The  safety  standard
provides that "[m]anually operated horns or other audible warning
devices provided on self-propelled  mobile  equipment as a safety
feature  shall  be  maintained  in  functional  condition."   The
Secretary proposes a penalty of $55 for this alleged violation.

     Inspector  LeGrand  testified  that  he  asked  the   loader
operator to test the horn and it did not work.  (Tr. 127; Ex.  G-
32).   He  stated  that  the loader operator should have detected
this deficiency in his pre-operational check.  He also determined
that the back-up alarm did  not  work  when  he  asked the loader
operator  to put the loader in reverse.  (Tr. 130).   The  loader
was operating  at  the  pit,  which  is  across the road from the
plant.   Id.   The  inspector  testified  that   there   were  no
pedestrians in the area.  (Tr. 131).  The loader operator  had an
obstructed  view to the rear of the vehicle.  Mr. Higman did  not
know that the  horn  was  not  working  and does not know when it
ceased  operating.   (Tr.  357).   He  also  disputed   LeGrand's
testimony  that  there was limited visibility to the rear of  the
loader.

     I find that the Secretary established a violation of section
56.14132(a).  There  is  no  dispute that the horn and the backup
alarm were not working. The violation  was  not  serious  because
pedestrians  are  not  in  the  pit  area  of  the plant.  Higman
Gravel's  negligence  was  moderate because these safety  defects
should have been detected during  the  required  examinations  of
mobile  equipment.   The  Secretary's  proposed penalty of $55 is
appropriate.

     Citation  No.  7815189  alleges  a  violation   of   section
56.9300(a)  because  berming  was not provided for a distance  of
about 100 feet along the edge of  the  pond in the sand pit.  The
citation states that the Kamotsu loader was operating in the area
and that loader tracks were observed within  two feet of the pond
edge.   Inspector LeGrand determined that the violation  was  S&S
and was the  result  of Higman Gravel's moderate negligence.  The
safety 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."   The  Secretary
proposes a penalty of $113 for this alleged violation.

     Inspector  LeGrand testified that  he  observed  the  loader
operating ten feet  away  from  the  pond.  (Tr. 134).  He stated
that there was no berm separating the  work  area  of  the loader
from the pond.  (Exs. G-32, G-34).  The inspector testified  that
the  loader  scoops up the sand that is pulled out of the edge of
the pond by the  excavator.  The excavator operator positions the
equipment at the edge  of  the  pond and scoops out fine material
from the pond.  The inspector testified  that  it did not violate
the standard for the excavator to work at the edge  of  the pond.
The sand is loaded into belly load dump trucks and is transported
across  the road to the plant.   Ray Haneklaus told the inspector
that berms  had  never  been required along the edge of the pond.
(Tr. 136).  Haneklaus also  told  the  inspector that the pond is
about  15 to 20 feet deep at the edge.  LeGrand  determined  that
the loader  travels  within  a  few  feet of the edge of the pond
based on his evaluation of the tire tracks  he  observed  in  the
area.   He  issued the citation because the loader operator could
accidentally back into the pond while traveling in the area.

     Mr. Higman testified that the edge of the pond must be clear
of  material so  that  the  excavator  can  "come  in  and  begin
excavation."  (Tr. 359).   The loader operator must clear an area
that  is  about  100  feet  long because that is the distance the
excavator will "cover in a one-day  period."   Id.  The excavator
"digs the material out of the water, swings it to  the  side, and
stockpiles  it  for  dewatering."  (Tr. 360).  The loader removes
the  mined  material so  that  the  excavator  can  extract  more
material on the next cycle.  Mr. Higman testified that the loader
operates parallel  to the edge of the pond when cleaning the area
adjacent to the pond.  (Tr. 363).  He stated that the loader does
not travel within 20  feet  of  the  pond  when it is required to
operate perpendicularly to the edge of the pond.  The dump trucks
do  not travel near the edge of the pond.  Mr.  Higman  does  not
consider  the  area  adjacent  to  the  pond  to  be a roadway or
travelway.  (Tr. 364-65).

     Mr.  Abbott, who operates the excavator, testified  that  he
must have a smooth area to operate safely.  (Tr. 431; Exs R-A, R-
B).  The loader  operator  tries to keep an area that is about 80
to 100 feet long clear for the  excavator.   The  loader operator
and  excavator operator work together in cycles up and  down  the
edge of  the  pond.  When the loader operator is loading the dump
trucks, he stays  about  50  to 60 feet away from the edge of the
water.  (Tr. 436).  If a loader  is  in the vicinity of the pond,
the loader operator is supposed to turn  away  from  the  pond or
travel parallel to the edge of the pond.  (Tr. 447).

     I  find  that  the  Secretary did not establish a violation.
The  Secretary is correct when  she  states  that  there  was  no
physical  barrier  preventing  the  loader  from driving into the
pond. (Tr. 471).  The safety standard, however, does  not require
berms "wherever a drop-off exists of sufficient grade or depth to
cause a  vehicle  to  overturn or endanger persons in equipment."
The safety standard requires  berms  only "on the banks of
roadways." I find that because the cited area  is  not a roadway,
the safety standard does not apply to the cited condition.

     The  Commission  has  interpreted this  safety  standard  to
include various transportation  corridors.  For example, the term
"roadway" in the standard applied  to elevated ramps that lead up
to dumping points.  Capitol Aggregates,  Inc.,  4 FMSHRC 846, 847
(May 1982).  The Commission has also concluded that a bench at an
open pit mine is a roadway if haulage trucks are driven along the
bench.  El Paso Rock Quarries, Inc. 3 FMSHRC 35,  36  (Jan 1981).
Under  the facts of this case, however, the area in question  was
not being used as a roadway.

     Three  types of vehicles enter the area along the pond.  The
excavator, the  loader,  and  the dump trucks.  By necessity, the
excavator is used along the edge  of  the pond to remove material
from the pond.  Inspector LeGrand did not  consider  this  use of
the  excavator  as  a  violation  of  the  safety  standard.  The
excavator  is  mounted  on caterpillar tracks.  He also  did  not
express any concern about  the  trucks.   The  inspector believes
that  a  berm  was  required to protect the loader operator.   He
stated that the "loader  [operating] there makes it a travelway."
(Tr. 249).  The inspector was primarily concerned that the loader
operator would accidentally  back  into  the  pond.   There  is a
slight  drop-off at the edge of the pond to the top of the water.
The bank continues to drop under the water.  A berm would let the
loader operator  know  that he was close to the edge.  He further
stated that other gravel operators place berms around their ponds
to  provide  this  protection.    (Tr.  263-64).   Higman  Gravel
contends that the loader operator does  not travel closer than 20
feet from the edge of the pond except when smoothing out the area
for the excavator and that he performs that  task while traveling
parallel to the edge of the pond.

     As described above, the excavator and loader  work in tandem
in  about  100-foot increments up and down the edge of  the  pond
pulling and  loading  material  from  the pond.  The excavator is
pulled away from the pond as the loader  prepares  a new area for
excavation.   When  the area has been prepared, the excavator  is
brought in to scoop up material along the 100-foot distance.  The
loader stockpiles the  material  for dewatering and then loads it
onto trucks for transportation to  the  plant.   When  all of the
mined  material  has  been  transported  away or stockpiled,  the
mining cycle starts again along an adjacent  area  of  the  pond.
Before Higman Gravel started mining, the pond did not exist.  The
pond  was  created as excavation occurred because the water table
is high in the area.

     I find  that  the  cited  area  is  a  "working place."  The
Secretary defines a "working place" as "any place  in  or about a
mine  where  work  is  being performed."  30 C.F.R.  56.2.   The
cited area along the pond  is  not  a "roadway."  Vehicles do not
travel  along  the pond to get from one  point  of  the  mine  to
another.  Term "roadway"  has  not  been defined by the Secretary
and its meaning in the standard is not plain on its face.[1]  The
loader works in the pond area and does not transport material out
of the area.  The cited area is not akin  to  a ramp for a hopper
or  a  bench  used  as  a  roadway.   It  is not a transportation
corridor.  Although placing a berm along the edge of the pond may
enhance  safety,  the  Secretary's  interpretation  of  the  term
"roadway"   to  include  the  work  area  along   the   pond   is
unreasonable.    As   a  consequence,  I  do  not  defer  to  her
interpretation.

     In addition, even  if  I  were  to  defer to the Secretary's
interpretation  here,  Higman  Gravel  was  not   provided   with
sufficient  notice  of  her  interpretation.   The  PPM and other
interpretative  materials do not provide any guidance.   Although
Inspector LeGrand spoke of other operations, it is not clear that
providing berms along  ponds  in  this  situation  is an industry
practice.  Higman Gravel has been mining out of this  pond  since
the  1960s without receiving a citation for failing to provide  a
berm along  the  edge  of  the  pond.   MSHA  has  inspected this
operation  at  least  once  a  year  since  the  Mine  Act became
effective in 1978 and only Inspector LeGrand determined  that the
safety  standard  required  a  berm  around the edge of the pond.
Consequently,  for  the reasons set forth  with  respect  to  the
guarding citations, I would also vacate this citation because the
Secretary failed to provide  notice  of  the  requirements of the
standard.  Consequently, I vacate this citation.

     Citation   No.  7815191  alleges  a  violation  of   section
56.18002(a) because  adequate examinations of working places were
not being performed as indicated by the multiple citations issued
in the inspection.  The citation states that contact with most of
the cited conditions would  have  injured  employees.   Inspector
LeGrand determined that the violation was S&S and was the  result
of  Higman  Gravel's  moderate  negligence.   The safety standard
provides, in part, 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 Secretary proposes  a  penalty  of  $66  for  this
alleged violation.

     Inspector  LeGrand  testified  that  he  issued the citation
because  he  believed  that the workplace examinations  were  not
sufficiently thorough to  meet  the requirements of the standard.
(Tr.  148).   He reached this conclusion  because  he  issued  14
citations including 9 guarding citations.  The inspector believed
that, because Ray  and Steve Haneklaus did not recognize that the
cited  conditions  created   hazards,   their  examinations  were
inadequate.  (Tr. 150).

     Mr. Higman testified that competent  examinations were being
performed but that the conditions cited by  Inspector LeGrand did
not create hazards.  (Tr. 369).  He contends  that  the fact that
most  of  the  cited conditions had been previously inspected  by
MSHA helps prove his point.  (369-71).

     I find that  the  Secretary  did  not establish a violation.
First, I vacated most of the citations in  this  case because the
Secretary  either  did not establish a violation or  because  she
failed to provide adequate  notice  of  her interpretation of the
cited safety standard.  Most of the cited  conditions existed for
20 years and have never been cited in previous  inspections.   In
addition, the fact that an inspector finds a number of violations
does  not,  by  itself,  establish a violation.  Dumbarton Quarry
Associates, 21 FMSHRC 1132,  1135-36  (Oct.  1999) (ALJ Manning).
Higman  Gravel  may  have allowed the cited conditions  to  exist
because it believed that  they  were  not  hazardous  and did not
violate  the  Secretary's  safety  standards, rather than because
workplace  examinations were not competently  performed.   Higman
Sand & Gravel,  Inc.,  18  FMSHRC  951, 962-63 (June 1996) (ALJ).
Consequently, I vacate this citation.

     Citation  No.  7815190  alleges  a   violation   of  section
56.18002(b)  because  there  were no records of daily work  place
examinations available for review.   Inspector LeGrand determined
that  the  violation was not S&S and was  the  result  of  Higman
Gravel's moderate negligence.   The safety standard provides that
"[a] record  that  such examinations were conducted shall be kept
by the operator for  a  period  of  one  year  and  shall be made
available for review by the Secretary."   The Secretary  proposes
a penalty of $55 for this alleged violation.

     Inspector  LeGrand testified that Ray Haneklaus advised  him
that no written records  of  workplace  examinations were kept at
the mine.  (Tr. 151).  Higman Gravel did  not produce any records
for him to review.

     Mr.  Higman testified that the person responsible  for  each
area of the  plant  examines his workplace once each shift.  (Tr.
366).  Most areas are examined by Steve Haneklaus.  Higman stated
that the record kept  to  show that the examination was completed
is  Mr. Haneklaus's time sheet.   If  he  reported  to  work,  he
performed  the  examination  because that is an important part of
his  job.   (Tr.  366-67).  Higman  further  testified  that  the
citation was abated  by  placing  a  calendar at the work station
where the examiner is required to indicate  that he performed the
required examination.  (Tr. 367).

     The Secretary established a violation.   An  examiner's time
sheet which simply shows that he reported to work that day is not
sufficient to meet the requirements of this safety  standard.  He
may  forget to perform the examination, yet the time sheet  would
indicate  that the work place examination was performed.  The $55
penalty proposed by the Secretary is appropriate.

                 II.  APPROPRIATE CIVIL PENALTIES

     Section  110(i)  of the Mine Act sets out six criteria to be
considered in determining  appropriate  civil  penalties.    With
respect  to  the  history  of  paid  violations,  I  find that no
citations were issued at the IA Portable #1 (Akron Plant)  and no
citations  were  issued  at  the  Bergdale  Pit  in the 24 months
preceding  these  inspections.   (Tr. 154-56; Ex. G-44).   Higman
Gravel is a small operator that worked  6,500  man-hours  at  the
Bergdale Pit in 1999 and 5,597 man-hours at the IA Portable #1 in
four quarters beginning with the fourth quarter of 1998.  (Tr. 4-
5).   All  of  the  violations  were  abated  in good faith.  The
penalties  assessed  in  this decision will not have  an  adverse
effect on Higman Gravel's  ability  to  continue in business.  My
findings  with  regard to gravity and negligence  are  set  forth
above.  Based on  the penalty criteria, I find that the penalties
set forth below are appropriate.

                           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 No.             30 C.F.R.          Penalty

     CENT 2000-208-M

       7815172                56.14107(a)         Vacated
       7815174                56.14107(a)         Vacated
       7815175                56.12008            Vacated

     Citation No.             30 C.F.R.          Penalty

       7815176                56.14107(a)         Vacated
       7815177                56.14107(a)         Vacated
       7815179                56.14108            Vacated
       7815180                56.11004            Vacated
       7815181                56.14107(a)         Vacated
       7815182                56.14107(a)         Vacated
       7815183                56.14107(a)         Vacated
       7815185                56.4101              $40.00
       7815186                56.14107(a)         Vacated
       7815187                56.14132(a)          $55.00
       7815189                56.9300(a)          Vacated
       7815190                56.18002(b)          $55.00
       7815191                56.18002(a)         Vacated

     CENT  2001-140-M

       7919642                56.14107(a)          $40.00


     Accordingly, the citations  contested  in  these  cases  are
AFFIRMED, MODIFIED, or VACATED as set forth above and Higman Sand
&  Gravel, Inc., is ORDERED TO PAY the Secretary of Labor the sum
of $190.00 within 40 days of the date of this decision.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Ann  M.  Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, P.O. Box 46550, Denver, CO 80201-6550  (Certified Mail)

Jeffrey A.  Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, P.O. Box
717, Sioux City, IA 51102-0717  (Certified Mail)


RWM


**FOOTNOTES**

     [1]:   The   Secretary's   regulations   and  interpretative
material  do  not define the term "roadway." A "roadway"  can  be
defined as "a strip  of land through which a road is constructed"
and "the part of a road  over  which  vehicular traffic travels."
Webster's Third New Int'l Dictionary 1963 (1976).