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F. PALUMBO SAND & GRAVEL
August 15, 1997
YORK 96-67-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041

                           August 15, 1997

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
      MINE SAFETY AND HEALTH    :
      ADMINISTRATION (MSHA),    :  Docket No. YORK 96-67-M
               Petitioner       :  A. C. No. 30-01545-05512
               v.               :
                                :  Docket No. YORK 96-69-M
F. PALUMBO SAND & GRAVEL,       :  A. C. No. 30-01545-05513
               Respondent       :
                                :  Dover Pit

                             DECISION

Appearances:  John G. Campbell, Esq., James A. Magenheimer, Esq.,
              Office of the Solicitor, U. S. Department of Labor,
              New York, New York, for the Secretary;
              Fortunato Palumbo, Pro Se,  F. Paulumbo  Sand  and 
              Gravel, Dover Plains, New York.

Before:  Judge Barbour

     In  these  civil  penalty  cases,  the  Secretary  of  Labor
(Secretary),  on  behalf   of   her   Mine   Safety   and  Health
Administration  (MSHA),  seeks  the assessment of civil penalties
against  F. Palumbo Sand & Gravel  (the  company),  for  numerous
alleged violations  of the mandatory safety standards for surface
metal and nonmetal mines.   (The standards are found at 30 C.F.R.
Part 56.)  The Secretary alleges  the  violations occurred at the
company's Dover Pit located in Duchess County, New York, and that
several  of  the  violations  were  significant  and  substantial
contributions  to  mine  safety hazards  (S&S  violations).   The
alleged violations were cited on April 10, 17-19, 1996.

     The company raises a  general defense to the validity of the
inspections that resulted in  the citations and specific defenses
to the particular alleged violations.   The  cases  were heard in
Poughkeepsie, New York.

                    THE NATURE OF THE FACILITY

     John Paterson, an MSHA inspector, and Fortunato Palumbo,  an
owner of the company, described the facility as a sand and gravel
extraction  and  processing  operation.   At  the  pit, stone  is
extracted and processed.  Once extracted, the stone is put into a
hopper,  passed  from  the  hopper  into a vibrating feeder,  and
passed from the feeder onto a vibrating  screen.   Stone  smaller
than  an  inch and a half in size is dropped onto a main conveyor
belt .  Larger  material is passed through a jaw crusher where it
is reduced in size  and  dropped onto the same belt.  Once on the
main conveyor belt, the crushed  stone  is  carried  to  a screen
tower  where  three vibrating screens separate the stone.  Larger
stone is carried  on  a transfer conveyor to a cone crusher where
it is reduced to a smaller  size.   It  then  is  transported  by
conveyor  belt  to  a  stock pile (Tr. 44-45, 58).  Also, sand is
processed at the facility (Id.).

                        MOTION TO DISMISS

     At the commencement of the proceedings, Carmine Palumbo, co-
owner of the company, moved in effect to vacate the citations and
to dismiss the proceedings.   He  explained  that MSHA improperly
inspected  the pit and issued the citations before  the  facility
was ready to  operate.  According to Palumbo, MSHA instructed the
company to advise  it  by telephone when it was going to commence
operations in the spring.  Previously, inspectors had not come to
the mine until the agency  was notified.  However, in April 1996,
MSHA  did  not  wait  for  a  telephone   call.   Rather,  MSHA's
inspectors arrived unannounced.  In Carmine Palumbo's view, their
visit   was   premature.   He  maintained  that  the   inspectors
"shouldn't have  been  there  until [the facility] was officially
open for business" (Tr. 22).

     Fortunato Palumbo explained  that  due to weather conditions
the pit closed for the winter and that it  was  customary for the
company  to  make repairs and to do needed maintenance  prior  to
staring operations  in  the spring.  Normally, this work was done
in March.  However, the winter  of 1995-1996 was a long one, with
heavy snow in March and snow and  rain in April.  Therefore, when
the inspectors arrived, the company  was  still in the process of
repairing equipment and replacing needed components (Tr. 51-53).

     Fortunato Palumbo expressed the company's  objection  to the
April inspections:

          We  .  . . feel like the man that's got a car in a
     repair shop with  brakes being replaced and a policeman
     coming in and giving you a citation for bad brakes.  It
     is not something that  we consider to have been fair or
     equitable (Tr. 53).

     Counsel  for  the Secretary  responded  that  the  Mine  Act
prohibits prior notice  of  inspections  and that MSHA inspectors
acted  within  the  law  when they conducted the  inspections  in
question (Tr. 21).

     I  took the arguments  under  advisement  (Tr.  23).   After
considering  all  of  the  testimony,  and  for  the reasons that
follow,  I  conclude  the  facility  was  operating  when  MSHA's
inspectors  arrived  at  the  mine and that the April inspections
were proper.

     Patterson was the first inspector to visit the pit in April.
His testimony regarding what he  was told at the mine and what he
saw  during his inspections was credible  and  is  decisive.   He
stated that Carmine Palumbo told him "he would rather [Patterson]
left and  came  back  another  time," that the facility "had been
operation  for  only  a  week  or  two  and  they  hadn't  had  a
chance . . . to  get things done they  wanted  to  do"  (Tr. 43).
Moreover, while at  the  pit  Patterson  observed  the  front end
loader  operating,  as  well as the jaw crusher and the vibrating
screens.  In addition, the  conveyor belts were running and stone
was being conveyed to the stock piles (Tr. 44).

     The Palumbo's argued the  pit  was  in a "shakedown" period,
and I do not doubt it.  It is logical that  the  first  few  days
after  the  pit  reopened for the season, the company would check
and repair equipment.   However, it is also true equipment at the
facility was operating, and  even  if very few miners were as yet
working at the pit, those present were entitled to the protection
of the Act and the regulations promulgated  pursuant  to the Act.
MSHA's  inspectors had every right to arrive unannounced  at  the
pit and,  based  upon what they saw, to inspect the facility (see
30 U.S.C.  813(a)).

                       CONTESTED CITATIONS
                           YORK 96-67-M

Citation        Date         56 C.F.R.        Proposed Penalty

 4285641       4/8/96           12025                $81

The citation states:

          The 3 phase power circuit  of  [the] 5 horsepower,
     230/460  volt Teco motor that powers the  cone  crusher
     hydraulic pump was not grounded.

     In additional  to  alleging a violation of the standard, the
citation contains an S&S finding.

     Section 56.12025 requires  in part that "All metal enclosing
or encasing electrical circuits shall  be  grounded  or  provided
with equivalent protection."

     Patterson  described  the motor that provided power for  the
cone crusher's pump as cylindrical  in  shape and 10 to 12 inches
in diameter.  The motor was encased in metal  and  mounted  on  a
metal  platform  (Tr.  68-69).   Electricity  entered  the  motor
through a junction box.  (Although he stated on the citation  the
electricity  rated  230  to 460 volts, Patterson testified it was
actually 240 to 460  volts (Tr. 77-78)).

     Patterson saw only three  wires  entering  the  box.  In his
opinion,  there  should  have been a fourth wire, a ground  wire.
When Patterson did not see  the  fourth  wire,  he  concluded the
metal  casing  of the motor was not grounded and section 56.12025
was violated (Tr. 69; see Gov. Exh. 2B).

     Patterson was  not  alone  in  this  view.   MSHA electrical
inspector,  Jon  Montgomery,  who inspected the mine a  few  days
after Patterson, also believed  that  a fourth wire was necessary
to  meet the standard's grounding requirement.   He  testified  a
ground  wire  was  "the  best  way"  to insure a path back to the
electrical source (Tr. 278, 280).

        Patterson  believed  the  lack  of   a  ground  wire  was
dangerous.  If insulation on a conduit wore and  exposed  a naked
wire,  and  if the bare wire touched the motor's metal casing,  a
person  who touched  the  metal  could  be  severely  shocked  or
electrocuted  (Tr.  70).   However,  if  the  metal  casing  were
properly  grounded,  the  electricity  would  travel  back to the
source of the power, rather than through the person (Tr. 71).

     Employees regularly traveled in the area where the motor was
located  to  grease  the  crusher  or to check oil levels on  the
equipment.   Also,  there  was a portable  welder  in  the  area,
sitting within a foot or two  of  the  motor  (Tr. 72).  The mine
floor in the area where the motor was located was  saturated with
water  (Tr.  71).   In  Patterson's  opinion, this increased  the
likelihood  of  a  person  becoming "a fantastic  conductor"  for
electricity (Tr. 76).

     Fortunato Palumbo asked  Patterson  if  he  knew whether the
motor  casing  and  the  entire  structure  on which it  sat  was
grounded  "through  steel  beams and . . . steel  lattice  work,"
i.e., if he knew whether everything  was frame grounded (Tr. 77).
Patterson did not know, but he testified  he told Carmine Palumbo
that even if the motor casing were frame  grounded,  there had to
be a wire ground that went back to the electrical source (Tr. 81-
82).   Patterson  emphasized  that  MSHA  did  not  accept  frame
grounding.   The  agency  required  a  four wire system (Tr. 79).
According  to  Patterson,  MSHA's policy was  set  forth  in  the
agency's Program Policy Manual (PPM) (85-86).

     Fortunato Palumbo stated  that he did not know if the ground
wire was missing, as Patterson maintained  (Tr.  84),  but in any
event, the pump motor was frame grounded.

                          THE VIOLATION

     Patterson   was  specific  in  describing  the  lack  of  an
observable ground  wire (Tr. 69 ), whereas  Fortunato Palumbo did
not know whether it  was missing (Tr. 84).  Therefore, I find the
Secretary established that there was no fourth wire to ground the
motor's metal casing.

     Fortunato Palumbo was equally specific in testifying how the
cited equipment was frame grounded (Tr. 83-84), whereas Patterson
did not know whether or  not  it was (Tr. 85).  Therefore, I find
the company established the motor casing was frame grounded.

     Section 56.12025 does not set forth any particular means for
grounding  metal enclosing or encasing  electrical  motors.   The
standards  for   metal  and  nonmetal  mines  define  "electrical
grounding"  as "to connect with the ground to make the earth part
of  the  circuit" (30  C.F.R.   56.2).   This  is  exactly  what
Fortunato  Palumbo  described with respect to the frame grounding
of the cited motor casing.

     In a case involving  a  similar  set  of  facts,  Commission
Administrative Law Judge Richard Manning stated that he  did "not
doubt that a fourth wire grounding system is state of the  art at
the   present   time   and  that  it  offers  certain  advantages
over . . . [a frame grounding]  system,"  but  that  if the proof
established the cited casing was frame grounded, "[t]he Secretary
failed to show . . . that the metal encasing the cited  motor was
not grounded nor provided with equivalent protection" Tide  Creek
Rock,  Inc.,  18  FMSHRC  390,  396-397  (March  1996)).   I find
Judge Manning's reasoning equally applicable here.

     Further,  although  Patterson  believed  the  PPM prohibited
frame  grounding,  I  do  not  read  it  to  do so.  There is  no
provision  of  the  PPM  dealing with section 56.12025,  and  the
provision   to   which   the   inspector   apparently   referred,
56/57.12028, is intended to insure that continuity and resistance
tests of grounding systems are conducted  on a specific schedule.
While the provision may have been premised on the assumption that
the systems tested are not frame grounded systems,  it  does  not
specifically  prohibit  frame grounding (Gov. Exh. 3; see also IV
PPM at 51-52).

     Commission  Administrative  Law  Judge  Augustus  Cetti  has
suggested, "If the  Secretary  believes frame grounding should be
prohibited, the Secretary should initiate appropriate rule making
to achieve this goal" (Contractors Sand & Gravel Supply, Inc., 18
FMSHRC  384,  388  (March  1996) (ALJ  Cetti)).   It  is  a  good
suggestion.

     I conclude the alleged violation has not been proven.

Citation        Date         56 C.F.R.        Proposed Penalty

 4286260       4/8/96          14112(b)             $ 111

     The citation states:

          The  guard  had been removed from the back-side of
          the  crossover   belt  tail  pulley  and  was  not
          replaced.   The  self  cleaning  tail  pulley  was
          approximately 2 feet above ground level.  Existing
          hardware for attaching  the  guard  indicates this
          tail pulley had previously been guarded.

     In additional to alleging a violation of the  standard,  the
citation contains an S&S finding.

     Patterson  observed  stone  being  carried  on the crossover
conveyor belt (Tr. 41-42).  Although the belt  was  operating,
the guard protecting its tail pulley  assembly  was  missing.
There  had  been  hooks  on the tail pulley to which a guard
screen had been attached,  but the hooks either were so bent
they could not be used, or they  had  been  removed (Tr. 38-
39).

     The  tail  pulley  assembly  was between 1 and 2 feet  above
ground.  A space that measured about 1 1/2 feet wide existed
on both sides of the tail pulley.   This was enough room for
a  miner to walk without restriction into  the  tail  pulley
(Tr.  28).   Employees had to go into the area to grease the
pulley.  From  time  to  time  they  also  needed  to  clean
spillage  under  and  around  the pulley, to dislodge stones
stuck in the pulley, and to adjust the belt (Tr. 30).

     Without a guard, Patterson believed  it  reasonably likely a
miner's clothing would be caught in the tail  pulley and the
miner would be dragged into the mechanism.  The  miner would
suffer injuries ranging from broken bones to death  (Tr. 29-
31).

     Fortunato  Palumbo agreed with Patterson that the guard  was
missing (Tr. 37).   However  he  disagreed  with Patterson's
assessment of the hazard.  He testified that all maintenance
of  the  equipment  was  done  in  the  morning  before  the
equipment was started, and if there was any spillage  it was
cleaned up after the equipment was shut down (Tr. 63).

                          THE VIOLATION

     Section 56.14112(b) requires that "Guards . . . be  securely
in  place  while  machinery  is  being operated, except when
testing  or  making adjustments which  cannot  be  performed
without removal of the guard."

     The company did  not  dispute that the guard was missing and
the belt was operating.   Therefore, I find these conditions
existed.  The company maintained as a general matter that it
was  in  the  process  of  repairing   and  maintaining  the
equipment at the pit and the guard "would normally have been
there  when  [the  company]  completed  [the]   repairs  and
maintenance" (Tr. 37).  However, no one was doing adjustment
or  maintenance on the tail pulley assembly or the  conveyor
belt when Patterson was there, and Patterson saw no evidence
such  work was in progress.  I conclude the Secretary proved
the violation as charged.

                         S&S AND GRAVITY

     A violation  is  properly  designated S&S, "if, based on the
particular facts surrounding  the  violation  there exists a
reasonable  likelihood that the hazard contributed  to  will
result in an injury or illness of a reasonable serious nature" 
(Cement Division, National Gypsum  Co., 3 FMSHRC 825 (April 1981)).
There are four things the Secretary  must  prove  to  sustain  an 
S&S finding:

          (1) the underlying violation of a mandatory safety
     standard;  (2)  a  discrete  safety hazard - that is, a
     measure  of  danger  to safety contributed  to  be  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 reasonable  serious  nature  (Mathies Coal Co.,
     6 FMSHRC 1, 3-4 (January 1984); see also  Austin  Power
     Co.  v. Secretary, 861 F.2d 99, 104-105 (5th Cir. 1988)
     (approving Mathies criteria)).

The question  of  whether  a violation is S&S must be resolved on
the basis of the conditions  as  they  existed at the time of the
violation and as they might have existed  under  continued normal
mining operations (Eastern Associated Coal Corp.,  13 FMSHRC 178,
183 (February 1991); U. S. Steel Mining Co., 7 FMSHRC  1125, 1130
(August 1985)).

     Here, there was a violation, and the lack of a guard  at the
tail pulley contributed to the hazard that a miner working in the
vicinity  of  the  pulley would be caught in the pulley mechanism
and be seriously injured or worse.

     I credit Patterson's testimony that from time-to-time miners
needed access to the  tail  pulley  to adjust it, clean up around
it,  and/or  maintain  it  (Tr. 30).  While  I  credit  Fortunato
Palumbo's testimony such work  usually was done either before the
belt was started or after it was  shut  down (Tr. 63), I would be
naive to believe this always occurred.  It  is  common  knowledge
that clean up or maintenance work is at times required after  the
belt has started operating and that miners attempt to do the work
quickly  before  the  belt  is  shut  down.  It is something that
happens in the context of continued normal mining operations.

     I  therefore  conclude  that  as  mining  continued  it  was
reasonably likely that a miner would attempt  to  do  clean up or
maintenance  work  around  the  unguarded  trail pulley assembly,
would  be  caught  and  dragged  into the pulley,  and  that  the
resulting injuries would be of a reasonably  serious nature.  The
violation was S&S.

      Because the company was doing maintenance  work at the same
time it was processing stone, it is likely miners either had been
and would be in the vicinity of the tail pulley.   In view of the
fact  that  I  believe  it is likely some work around the  pulley
would be conducted while  the  conveyor  belt was running, and in
view of the gravity of the injuries that could be expected when a
miner  was caught in the unguarded pulley assembly,  I  find  the
violation was serious.

                            NEGLIGENCE

     I have  found  there  was  maintenance  work going on at the
facility.  I also believe the Palumbos' contention  the  facility
was  not  yet  in a total operational mode.  Because the facility
was not yet operating  at  "full  tilt," the frequency with which
miners  were  exposed  to  the hazards  of  everyday  mining  was
lessened,  as  was the company's  duty  of  care.    I  conclude,
therefore, that the company's negligence was moderate.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285642       4/8/96        14109(b)(1)              $50

     The citation states:

          The metal rails that were used to prevent a person
     from falling against the  first  4  troughing rolls and
     [the] belt (both sides) of the crossover  conveyor  had
     been  removed  and  were  not  replaced.  The unguarded
     rolls  were  approximately  3 1/2 to 5 1/2 feet   above
     ground level.

     Patterson testified the conveyor belt below the cone crusher
was not guarded adequately to prevent miners from contacting  the
belt   or   four  troughing  rolls  under  the  belt  (Tr.  100).
("Troughing rolls"  are  defined  as  "[R]olls . . . that  are so
mounted on an incline as to elevate each edge of the belt into  a
trough" (U. S. Department of the Interior, A Dictionary of Mining
Mineral and Related Terms (1968) at 1169)).  Patterson stated the
purpose of the rolls was to "make the belt into a trough . . . to
keep  the material within the belt so it doesn't run off all over
the ground" (Tr. 102; see Gov. Exh. 2C, 2 BB).

     The  conveyor belt was between 3 1/2 to 5 1/2 feet above the
ground.  The  belt  was  running  and  there  was  stone  on  it.
Railings  that had protected miners from the danger of contacting
the belt and rollers had been removed.  Patterson feared a person
walking by  the  belt could fall or trip or slip and be caught in
turning rollers (Tr. 101-103).

     Fortunato Palumbo  again maintained that the plant was being
operated only on a "test  run" basis and that, in fact, the plant
could not have been fully operational  because at that time there
was no water to clean the material as it was processed (Tr. 105).
According to Palumbo, the railings had been  taken  down when new
rollers  were  installed (Tr. 108-109).  There was stone  on  the
belt and the belt  was  running because the only way to make sure
the belt was aligned properly was to run it (Tr. 110).

                          THE VIOLATION

     Section 56.14109(b)(1) states that "Unguarded conveyors next
to the travelways shall be  equipped  with  -  [r]ailings which -
[a]re positioned to prevent persons from falling  on  or  against
the conveyor."

     To establish a violation the Secretary must prove the  cited
conveyor was unguarded, that it was next to a travelway, and that
it did not have a railing to prevent a person from falling on  or
against  the  conveyor.  Patterson testified without dispute that
both sides of the  crossover  conveyor  were unguarded (Tr. 100).
Patterson  also  testified without dispute  that  there  were  no
railings to prevent  a person from stumbling or tripping into the
belt  mechanisms  (Tr.  101).   Patterson  did  not  specifically
testify that a travelway  was  next to the belt, but he did state
that without the railings, a person  walking  by  the  belt could
fall, trip, or slip and be caught in the unguarded conveyor  belt
and rollers (Tr. 101).  Obviously, a person could not fall, trip,
or  slip  into  these  mechanisms  unless  the  person was or had
traveled in the vicinity of the rollers.  It is obvious  too that
a  person  would have to walk or travel next to the belt to  gain
access to the conveyor belt rollers.  I infer from these factors,
as well as from  the  fact  railings had been in place previously
(Tr. 108), that the belt was  next to a travelway, and I conclude
the Secretary established the violation.

     In finding the violation, I reject any suggestion compliance
was not required because the railings  had  been removed in order
to install new rollers.  That work was over.   Fortunato  Palumbo
spoke of the rollers as having been "newly installed" (Tr.  108).
The  railings  should  have  been  replaced  once  the  work  was
finished.

     I  also reject the suggestion there was no violation because
the pit was  operating  on  a "test run" basis.  As I have found,
while I do not doubt maintenance  work was being done, it is also
true that equipment was being operated and stone was moving along
and  through the equipment.  As a result,  the  company's  miners
were entitled  to  the full protection of the Act, whether or not
the facility was totally operational.

                             GRAVITY

     Patterson found that the violation was not serious.  It long
has  been  held the gravity  of  a  violation  is  determined  by
analyzing the  potential  hazard  to the safety of miners and the
probability of the hazard occurring (Robert G. Lawson Coal Co., 1
IBMA 115, 120 (May 1972)).  While Patterson  testified  regarding
the potential hazard to miners, neither he nor any other  witness
for the Secretary offered a view as to the probability of a miner
being  caught  in  the conveyor belt rollers or being injured  by
falling onto the belt.   For  example,  there  was  no  testimony
regarding  the frequency with which miners accessed the travelway
nor was there testimony regarding conditions on the travelway.  I
find, therefore, that this was not a serious violation.

                            NEGLIGENCE

     For the  reasons stated with regard to Citation No. 4286260,
I find the company's negligence was moderate.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285643       4/9/96           12025                $117

     The citation states:

          The  110  volt electrical  circuit  that  provides
     power to the diesel  pump  located  at  the diesel fuel
     skid  tank was not provided with a guard.   The  ground
     prong had  been removed from the power cord plug in the
     switch/utility trailer.

     In additional  to  alleging a violation of the standard, the
citation contains an S&S finding.

     While at the pit's motor  control trailer, Patterson noticed
and  inspected the electric cable  that  provided  power  to  the
diesel  fuel  pump.   (Patterson  described  the fuel pump as the
"type of . . . pump that . . . would pump gas  into  your vehicle
at a service station" (Tr. 121).)  The cable carried 110 volts of
electricity.   The  cable ran from the trailer up a hill  to  the
fuel pump.  The pump  was  enclosed  in a metal housing.   A rope
was tied around the housing and Patterson  noticed  that the wire
which  had  served  as  the ground wire for the pump was  hanging
loose, unconnected to the  pump (Tr. 121, 123; see Gov. Exh. 2F).
The disconnected ground wire  indicated  to  Patterson  that  the
metal casing enclosing the pump motor was not grounded (Tr. 122).

     Patterson  believed  that  the failure to ground the motor's
casing subjected miners to the danger of being shocked or burned.
If the electrical circuit to the  pump contained a fault, a miner
who was pumping fuel and touched the pump could, as Patterson put
it, "get zapped" (Tr. 123).  Further,  the  earth around the pump
was damp (Id.).

     Fortunato  Palumbo  maintained the pump had  been  idle  all
winter and when Patterson  saw  it the company was in the process
of checking the pump's electrical  integrity.   This  was part of
the normal spring "shakedown" procedure (Tr. 127).

                          THE VIOLATION

     As noted, section 56.12025 requires the grounding  of  metal
enclosures   or  casings  of  electrical  circuits.   Patterson's
testimony describes,  and  the  Secretary's photographic evidence
confirms, that the metal casing of  the  electrical  motor of the
fuel   pump  was  not  grounded   (Tr. 121-123;  Gov.  Exh.  2F).
Fortunato  Palumbo  essentially  agreed that Patterson accurately
described the condition of the pump (Tr. 126-127).  Patterson saw
no  evidence the company was engaged  actively  in  checking  the
pump's  electrical  circuits  when he inspected the pump.  If the
company checked the circuits prior  to Patterson's inspection, it
should have reconnected the ground wire.   Further,  the  company
did not contend the pump casing was frame grounded.  Therefore, I
find that the violation existed as charged.

                         S&S and GRAVITY

     The  Secretary  established  three  elements  of  the  proof
necessary  to  sustain  an S&S finding.  There was a violation of
the  cited mandatory safety  standard,  the  violation  subjected
those  who  used  the  pump  to the possibility of being shocked,
perhaps seriously.  However, it  is not possible to determine the
reasonably likelihood of the injury.  Patterson testified that if
there was a fault in the circuit,  any  miner  touching  the pump
could  be  shocked  (Tr.  123).   He also testified that the pump
might be used up to two times a day  (Tr.  124).  What he did not
reveal  was how likely an electrical fault was  or  would  be  as
mining continued.   Nor did he explain how  miners using the pump
would touch its energized  casing or how likely such contact was.
Without evidence on the "likelihood"  factor,  I  cannot find the
violation was S&S.

     Nevertheless,  the  violation  was  serious.   Although  the
likelihood  of  an electrical fault is not clear, it is  possible
one could have occurred.   The  conductor to the pump carried 110
volts, and the metal casing could  have been energized.  Also, it
is possible that a miner using the pump  could  have  touched the
casing.   The  ground  around  the  pump  was damp.  As Patterson
explained,  the  violation  could  have lead to  a  miner's  body
becoming  the shortest route to ground  the  current  (Tr.  123).
Further, although  the circuit carried only 110 volts, Montgomery
persuasively described,  in the context of another violation, how
shocks from low voltage can  have  serious consequences (Tr. 276-
277).

                            NEGLIGENCE

              For the reasons stated with respect to Citation No.
4286260, I find the company's negligence was moderate.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285644       4/9/96           4101                  $50

     The citation states:

          Signs prohibiting smoking and open flames were not
     posted at the diesel fuel skid tank.

     Patterson  noticed an above-ground fuel tank attached to the
pump.  The tank contained  diesel  fuel.   Patterson saw no signs
warning against smoking or open flames.  Patterson  believed  the
signs were required by section 56.4101 (Tr. 138).

     In  Patterson's opinion the lack of warning signs could have
lead to someone  smoking  or to someone using an open flame  -  a
blow torch, for example -  which in turn could have resulted in a
fire  or explosion (Tr. 139).   However,  Patterson  agreed  with
Fortunato  Palumbo,  that diesel fuel is less volatile and harder
to ignite than gasoline  and  that  this  somewhat  lessened  the
chance of a fire or explosion (Tr. 141-142).

                          THE VIOLATION

     Section  56.4101  states  "Readily visible signs prohibiting
smoking and open flames shall be posted where a fire or explosion
hazard  exists."   The  company does not dispute  there  were  no
signs.  Nor does it dispute  there was a fire or explosion hazard
at the tank.  Rather, it argues  the  danger was less with diesel
fuel  than if the tank held gasoline.  Therefore,  I  agree  with
Carmine  Palumbo who stated, "We are guilty of not having a sign"
(Tr. 142), and I find that the company violated section 56.4101.

                             GRAVITY

     Failure  to post the signs was not a serious violation.  The
signs are not a  primary  preventive  measure.   Rather, they are
secondary in that they are designed to remind miners of what they
already know -  not to smoke or use open flames around a visually
obvious  fuel tank.  The fact that few miners were  at  the  mine
reduced the  possibility the lack of a sign would contribute to a
fire or explosion,  and Patterson agreed that the diesel fuel was
less likely to be ignited by a lighted cigarette or an open flame
(Tr. 141-142).

                            NEGLIGENCE

     Although the violation  was  visually obvious, the company's
negligence  was  low given the fact that  the  company  was  just
beginning its seasonal  operation,  the fact that few miners were
at the mine, and the fact that hazard was not serious.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285645       4/9/96          14112(b)              $111

     The citation states:

          Both  sides  and the back of the tail pulley guard
     at the main belt below the jaw crusher were removed and
     were  not  replaced  before  the  belt  was  energized.
     Existing bolts on the conveyor frame indicate this area
     had been guarded

     In additional to alleging  a  violation of the standard, the
citation contains an S&S finding.

     Patterson found the tail pulley  of  the  main conveyor belt
beneath  the  jaw  crusher  was not guarded.  (The  conveyor
transports material from the  crusher  to the screen tower.)
The  pulley  was  located  about 1 1/2 to 2 feet  above  the
ground.  The pulley was different from a drum type pulley in
that it had rotor-like fins that spun around and helped keep
the pulley area clean (Tr. 143; see Gov. Exh. 2H).  Both the
conveyor  belt  and  the  jaw crusher  were  operating  when
Patterson observed the condition (Tr. 152).

     Because the pulley area was unguarded, Patterson feared
miners who reached  into the area with shovels or with their
hands to dislodge stuck  stone  or  foreign materials, or to
grease the mechanism, would become caught  by the "fins" and
pulled into the pulley (Tr. 143-145).   "We  have  accidents
all  the time," he stated, "where people loose arms,  hands,
the entire  arm  gets  ripped off.  We've had guys caught in
these things and sucked  into the equipment and . . . [t]hey
come out hamburger" (Tr. 144-145).

     Moreover,  the  bottom part  of the belt was running in
accumulated materials, and Patterson felt that a miner might
come at any time  to  clean  up  beneath  the unguarded area
(Tr. 144, 148).  The tail pulley had been guarded  (Tr. 151-
152).   However,  the guards had been taken off.  They  were
not in the area, and no one knew where they were (Tr. 151).

     Fortunato  Palumbo  maintained that the guards had been
removed because the company  was  in  the process of getting
the belt ready for use during the season,  and that once the
"shake-  down" period was over, the guards would  have  been
replaced (Tr. 150).

                          THE VIOLATION

     As previously stated, section 56.14112(b) requires guards
on pulleys to be  in  place  while  the  machinery  is  being
operated,  except  when  the  equipment  is  being tested or
adjusted  and  when such work cannot be done without  taking
off the guards.

     I find the violation existed as alleged. The company did
not  dispute the pulley area was  unguarded.   Nor  did  the
company dispute the conveyor belt was being operated.  While
it would  have  been  difficult  for a miner accidentally to
access the area and become caught  in  the  pulley,  one who
purposefully  tried  to clean the area under the belt or  to
service the pulley while  the  belt  was  operating,  easily
could  have  been  caught  by the "fins" and pulled into the
unguarded pulley.

     The company's arguments it should not have been cited for a
condition existing while it was readying  the  facility  for
full  production  and  it  had  to  remove  to  guards to do
maintenance work on the conveyor belt and pulley  again  are
rejected  (Tr.  150).   While it may well be true the guards
were removed to facilitate  maintenance work on the conveyor
belt and pulley, I conclude the  work  had  finished and the
company  was  too  slow  in  replacing  the  guards.   I  am
persuaded  of  this  by Patterson's testimony that  when  he
observed the tail pulley,  the conveyor belt and jaw crusher
were  operating (Tr. 152).  Patterson  did  not  see  anyone
working  on  the  pulley or belt and when he asked about the
guards, all he was told was that no one knew where they were
(Tr. 151).  There was  no testimony that anyone told him the
guards had been removed  to  make  repairs or adjustments to
the conveyor belt and/or tail pulley.   Nor  was  there  any
visual evidence such repairs or adjustments were necessary.

                         S&S and GRAVITY

     There was a violation of the standard. The violation meant
those who  tried  to  service  the pulley while the conveyor
belt was running or who tried to clean accumulated materials
from  under  the  belt would have been  subjected  to  being
caught  in  the pulley  and  seriously  injured.   Patterson
offered valid  reasons  why it was reasonably likely such an
accident would have happened.  First, although access to the
pulley area was difficult,  it  was  not impossible.  Anyone
who purposefully tried to service or to  clean  up under the
pulley   could   have   done   so.   Second,  there  was  an
accumulation under the pulley and  the  belt  was running in
it.  This created an immediate incentive for the  company to
insure   the   area   was  cleaned.   As  Fortunato  Palumbo
explained, the belt cost  approximately  $2,500.  Keeping it
from running in accumulations extended the life of the belt,
as did keeping the pulleys greased (Tr. 153).

     I have credited Fortunato Palumbo's contention it was the
company's policy regularly to clean up and service the belts
and  pulleys while the belts were not running (Tr. 153).  It
is simply  good  mining  practice to  implement such a rule.
However, miners do not always do what they are instructed to
do, and access to the unguarded  area  presented miners with
the  opportunity to do those jobs without  waiting  for  the
belt to  shut  down,  an  opportunity that easily could have
been too tempting for a miner  in a hurry (see Tr. 147-148).
Given access to the area, the need  to work in the area, and
the economic incentive quickly to do the work, I conclude it
was reasonable likely as mining continued a company employee
would have been caught in the unguarded  pulley and severely
injured or killed (Tr. 144-145).  The violation was S&S.

     The violation was also serious. There was an obvious need
to  access  the  area  to  clean under the  unguarded  pulley.
This need raised the real possibility  that  a person  trying
to clean material from under the pulley or trying to service
the  pulley  would, as Patterson graphically stated,  become
entangled in the  mechanism  and  loose  a  hand, an arm, or
worse.

                            NEGLIGENCE

     For the reasons stated with respect to Citation No. 4286260,
I find the company's negligence was moderate.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285646       4/9/96          14112(b)              $111

     The citation states:

          The guards had been removed  and were not replaced
     from  the head pulley (lower side) and  from  the  gear
     reducer  drive pulleys leaving the conveyor belt and v-
     belts . . . nip  points  exposed. [The e]xposed belts &
     pulleys were approx. 6 feet  above  [the]  screen  deck
     walkway.   Existing  bolts  indicate  a  guard had been
     attached at this location.

     In additional to alleging a violation of the  standard,  the
citation contains an S&S finding.

     Patterson  testified  that  during the inspection he noticed
there were no guards for the lower side of the head pulley of the
conveyor belt, the main conveyor belt  drive  motor, and the gear
reducer pulley.  He explained that the head pulley  is located at
the discharge end of the main conveyor belt, approximately 6 feet
directly  above  the  walkway  on the screen tower (Tr. 156-157).
The motor that powers the gear reducer  also  is  located at this
end of the belt (Tr. 155-156).

     When  Patterson  noticed  that the guards were missing,  the
belt and head pulley were operating  (Tr. 161; see Gov. Exhs. 2I,
2J).   Patterson  also  noticed  bolts  and   "maybe   brackets,"
indicating guards once had been in place (Tr. 156).

     Patterson feared an employee who traveled the walkway  under
the  pulley  in order to clean up spillage, to grease the pulley,
or to adjust the  belt,  would slip, would put out an arm or hand
to maintain his or her balance, and would become entangled in the
moving parts of the pulley,  drive  motor,  or the motor's v-belt
(Tr. 157, 164).  Also, he was concerned if the  belt frayed, that
one  of  the  loose  pieces  of  belt  would  catch an employee's
clothing.  The result would be cuts, broken bones,  the loss of a
limb, or death (Tr. 157-158).

     Patterson stated that "in many cases" MSHA inspectors  found
miners  servicing belts and pulleys while the belts were running,
although  he was not aware of any such incidents at the Dover Pit
(Tr. 160).

     Fortunato  Palumbo  maintained the equipment that lacked the
guards was closer to 8 feet above the walkway than to 6 feet (Tr.
167).  At first he also maintained  that  when  the shaker screen
was operating the walkway under the pulley vibrated  so much that
no  one  but "a blooming idiot" would stand under the pulley  and
try to service  the  conveyor  or  pulley  (Id.),  and  Patterson
appeared to agree with Palumbo that it was extremely unlikely any
miner would stand on the walkway under such conditions (Tr. 169).
However,  in subsequent testimony, both men seemed to agree  that
operation of  the  shaker  screen  did  not  cause the walkway to
vibrate to any great extent (Tr. 201-205).

     Fortunato Palumbo confirmed that the area  had been guarded.
He stated the guards had been removed because all  of  them  were
being  changed (Tr. 171).  In addition, Carmine Palumbo explained
that the  stairs  leading  to the shaker screen walkway had a bar
across them to prevent access  and that a person could not get to
the walkway unless he or she went over or under the bar (Tr. 172-
173).

     Patterson concurred there was a bar on the stairs (he called
it a "gate"), however, as he recalled,  the  "gate" was open when
he  was  there (Tr. 174).  In any event, Patterson  testified  he
explained  to  Carmine  Palumbo  that  area  guards  were  not an
acceptable means of complying with the standard (Tr. 175).

                          THE VIOLATION

     The   requirements   of   the   standard  have  been  stated
previously.

     Here,   the   company  did  not  disagree  with  Patterson's
testimony that the cited  machinery  was  operating and unguarded
(see Tr. 171).  Rather, the company's primary  defenses were that
the machinery was 7 or 8 feet above the walkway and access to the
walkway was barred.

     While   30 C.F.R.    56.14107(b)  exempts  operators   from
guarding exposed moving parts  that are at least 7 feet away from
walking  or working surfaces, I conclude  the  exemption  is  not
applicable.    I  credit  Patterson's  estimate  that  the  cited
machinery was approximately 6 feet above the platform.  Patterson
saw the area and  the  fact  the machinery was guarded previously
implies his on site estimate was accurate.

     Further, the violation is  not  excused by the fact that the
stairs leading to the walkway had a bar or "gate."  Patterson, at
the time he cited the violation, recalled  that  it was open (Tr.
174).   Even  if  it  was closed, the gate could not serve  as  a
defense.  There was nothing  to  prevent a miner from going under
or over it to reach the walkway,  (see Jamison Company, 15 FMSRHC
2549, 2554 (December 1993) (ALJ Lasher)).

                         S&S and GRAVITY

     Patterson  testified  about the  injuries  that  would  have
befallen miners who became caught  in  the  moving  and unguarded
machinery,  but  neither Patterson nor any other witness  offered
testimony there was  a  reasonable  likelihood  the  hazard would
result  in  such  injuries.  Patterson's statement that "in  many
cases"  MSHA's inspectors  found  miner's  working  on  unguarded
machinery  while  the  machinery was operating was followed by an
admission  this  had  not occurred  at  the  Palumbos'  operation
(Tr. 160).  Further, the  Secretary offered no evidence regarding
the  frequency  of  service  on   the   cited  equipment  and  no
explanation of  how such work was done.   Also,  while the height
of the unguarded machinery did not make service of  the equipment
impossible,  it made service and contact extremely difficult  and
greatly reduced  the  likelihood of contact (Tr. 169).  For these
reasons, I conclude the violation was not S&S.

     Because the likelihood  of injury arising from the violation
was remote, I also conclude the  violation  was not serious.  The
gravity  of   injuries  that might have occurred  was  more  than
offset by their improbability.

                            NEGLIGENCE

     Because I credit the company's contention the pit was in the
process of being placed on a fully operational basis, because few
miners were exposed to the hazards of noncompliance, and because,
in this instance, the hazards resulted in a very remote chance of
injuries, I find  the company's duty of care was lessened and its
negligence was low.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285647       4/9/96           12025                 $111

     The citation states:

          The 30 horse power, 230/460 volt, 3 phase electric
     drive motor for the shaker  screen  was  not  grounded.
     This  is  a  wet  screen which causes the entire screen
     deck[,] walkway, and  electric  motor  to be wet during
     plant operations, depending on wind.

     In additional to alleging a violation of  the  standard, the
citation contains an S&S finding.

     Patterson  testified that the 30 horse power electric  drive
motor  for  the  shaker   screen   is  16 to 18 inches  long  and
10 to 12 inches in diameter (Tr. 176).   The motor is attached to
a  steel plate, which in turn is attached to  the  metal  walkway
that  passed  under  the  machinery  referenced  in  the previous
citation (Tr. 177-178).

     Patterson saw only three wires coming out of the drive motor
(Tr. 176; Gov. Exh. 2K).  He did not see a ground wire (Tr. 181).
Patterson again stated his belief that "you've got to  have  that
fourth  wire to provide a ground . . . When you see a three phase
with only  three  wires,  you  know that you don't have a ground"
(Tr.  181).  At the time Patterson  saw  the  motor,  the  shaker
screen had been running.  As a result, the tower walkway was wet.

     Patterson  feared  the vibrations of the shaker screen would
case the electrical conductors  entering the motor to rub against
the motor's metal casing and to fray  their  insulation, exposing
the naked wires.  Because the conductors were  not grounded, they
could  energize  the  motor  casing,  the plate to which  it  was
attached, and the metal walkway that touched  the  plate.  Anyone
who  touched  the  metal  could  suffer  a  sever  shock  or   be
electrocuted  (Tr.  178).   The hazard was heightened by the fact
the walkway was wet.

     The company maintained it  did  not  violate  the  standard.
Fortunato Palumbo testified that the motor was frame grounded and
that he believed frame grounding constituted compliance with  the
standard (Tr. 183).  Carmine Palumbo added that because the motor
was  frame  grounded, if there were a short in one of the motor's
conductors, the  motor and all the metal contacting it would have
been grounded (Tr. 184).

                          THE VIOLATION

     Section 56.12025  required  the  metal  casing  of the drive
motor  to  be  grounded.   The Secretary did not refute Palumbo's
contention the motor was frame  grounded,  and I accept it.   For
the  reasons  stated  with  regard  to  Citation No.  4285641,  I
conclude the Secretary has failed to establish a violation of the
standard.   In  other  words,  I  find that the  frame  grounding
described by the Palumbos constituted compliance.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285648       4/9/96          14107(a)               $81

     The citation states:

          The  shaker  screen  drive motor v-belts & pulleys
     guard did not extend a distance  to  prevent accidental
     contact with the moving machine parts  or  exposed  in-
     running nip points.  Two 1/2 -5/8 inch rebars were used
     to  restrict  travel to the exposed belts[,] pulleys, &
     machine parts [.]   One  of  the  top bar[s] was out at
     this time.

     In additional to alleging a violation  of  the standard, the
citation contains an S&S finding.

      Patterson testified that he issued the citation because the
cited  moving  parts  (the  drive motor and pulleys),  "were  not
guarded . . . per MSHA specs" (Tr. 188).  The equipment, which is
part of the shaker screen tower  structure, was operating when he
observed it.  The drive motor was  turning  and  the pulleys were
revolving (Tr. 190).   Some screen cloth was placed approximately
8 to 10 inches from the equipment.  ("Screen cloth" is defined as
"[a]  woven  medium  suitable  for use in a screen deck"  (U.  S.
Department of the Interior, A Dictionary  of  Mining, Mineral and
Related  Terms (1996); see also Tr. 189).  The screen  cloth  did
not cover  all  of  the  pinch  points  created  by the belts and
pulleys  and  Patterson  stated  that  he  "explained to  Carmine
Palumbo . . . that [the] entire assembly belt  and pulleys had to
be  guarded  so  that  [a] . . . person would not reach  into  or
behind  [the] belts and pulleys  and  make  contact"  (Tr.  195).
Further,  the  location of the screen cloth left room for a miner
to reach behind  the  cloth  and  become entangled (Tr. 195-196).
The  adjacent walkway was wet and subject  to  freezing,  factors
that Patterson believed added to the hazard (Tr. 204-205).

     Patterson feared any person on the walkway who traveled past
the cited  parts  would be in danger of becoming entangled in the
unguarded pulleys and  belts.   He  described the drive motor and
associated pulleys as located 3 1/2 to 4 feet  above the walkway,
and  he  maintained that the moving machine parts  were  easy  to
contact (Tr.  191;  Gov.  Exh.  2K).    He testified there were a
number of reasons a miner would used the  walkway and pass by the
parts,  including  checking the screen for debris  or  holes  and
cleaning  spillage from  the  walkway  (Tr.  191,  210-211).   In
addition, he  had seen persons trying to grease pulleys while the
equipment was running,  although not at this mine (Tr. 192).  Any
person who contacted the  moving  parts would be badly cut and/or
bruised, or would loose fingers or  an  arm,  or  would be killed
(Id.).

     In  Patterson's opinion, the condition was S&S  because  the
height of  the  equipment,  combined with the wet walkway and the
loose stones scattered on the  walkway, made it reasonably likely
persons would slip, trip, or fall and become tangled in the belts
and pulleys (Tr. 191).

     Fortunato Palumbo argued that  there  was  no  reason  for a
miner  to  be on the walkway while the screen was running and the
motor and pulleys  were  operating  (Tr.  200).   Carmine Palumbo
testified  that  the  only time a person would be on the  walkway
would be to change the  bearings  on the shaker screen, something
that  happened  twice  a  year and when  the  equipment  was  not
operating (Tr. 202-203).    He  also  noted  the  presence of two
guardrails that were intended to keep persons off of  the walkway
(Id.).

                          THE VIOLATION

     I  have  no  doubt the company violated section 56.14107(a).
Patterson carefully  described  the  moving machine parts and how
they were either inadequately guarded  or  not guarded at all and
explained how the parts could cause injury.   The company did not
contest Patterson's description of the unguarded  parts,  or that
they  were  moving.  Rather, the company maintained guarding  was
unnecessary because  there  was no reason why miners would access
the area while the parts were operating.  Because the language of
the standard "specifically and  unequivocally  requires  guarding
for  any of the enumerated moving parts that can cause injury  if
contacted"  (Highlands   Board of County Commissioners, 12 FMSRHC
270, 291 (February 1992) (ALJ Koutras)),  the  company's concerns
do not bear upon whether compliance was required, but rather upon
the S&S nature of the condition, its gravity, and  the  company's
negligence  in allowing the condition to exist.  In other  words,
because the moving  machine  parts cited by Patterson could cause
injury and were inadequately guarded  or  totally  unguarded, the
violation existed as charged.

                         S&S and GRAVITY

     The  violation  was  both  S&S  and  serious.   Unlike   the
testimony   presented   regarding   Citation   No.  4285646,  the
government established the reasonable likelihood the hazard posed
by the unguarded machinery would result in miners becoming caught
in  the  moving and unguarded machine parts.  The  machinery  was
easily accessible  to  miners present on the walkway.  Neither of
the Palumbos contested Patterson's  description  of the equipment
as being 3 1/2 to 4 feet above  the walkway (Tr. 191).   Further,
neither  contested his contention that the wet walkway and  loose
stones on  the  walkway  combined to create a slipping hazard and
that a person who slipped  or  fell  toward the belts and pulleys
could become entangled in them.  Further,  it is logical that the
water  and stones on the walkway increased the  likelihood  of  a
slip or fall in the direction of the belts and pulleys.

     While  I accept Carmine Palumbo's assertion that bearings on
the  shaker screen  were  changed  twice  a  year  and  that  the
equipment  was  not  be operated while this work was performed, I
reject his testimony that  this  was  the  only work that brought
miners to the walkway.  Obviously, the cited  belts  and  pulleys
had  to  be  serviced  from  time  to  time.   Also,  Patterson's
contention  that from time to time employees needed to check  the
shaker screen for debris and holes and to clean spillage from the
walkway was logical  and  credible (Tr. 191, 210-211).  It is the
kind of work that always needs to be done.

     From this I infer miners  were  at  times required to travel
and to work in the vicinity of the unguarded equipment.  Further,
and as I have explained previously, while  I credit the company's
contention that it was company policy to turn  off  the equipment
when  such  work  was  done,  I  cannot  conclude the policy  was
followed invariably.  Human nature being what  it  is,  it defies
belief  that miners would always insist on the operation shutting
down before accessing the walkway to work.

     Therefore,  I  conclude  it  was  reasonably  likely that as
mining continued at the pit, a miner would have slipped or fallen
on  the walkway and become entangled in the unguarded  belts  and
pulleys,  or  would  have  been  otherwise pulled into the moving
parts.  It was also reasonably likely that when this happened the
miner would have suffered injuries  ranging from relatively minor
(bruises), to very serious (major cuts,  the  loss  of a digit or
appendage), or worse (death).

     In  addition,  because  the  injuries posed by the unguarded
belts and pulleys could have been severe  and because miners were
from  time  to  time exposed to such injuries  by  accessing  the
walkway, I also find that the violation was serious.

                            NEGLIGENCE

     For the reasons stated with respect to Citation No. 4286260,
I find the company's negligence was moderate.

                           YORK 96-69-M

Citation        Date         56 C.F.R.        Proposed Penalty

 4285649       4/9/96          14112(b)              $111

     The citation states:

          The tail pulley guard had been removed and was not
     replaced  on  the  3/8 stone  belt.  The unguarded tail
     pulley  was  approximately 2 feet  above  the  existing
     ground level.   Existing bolts indicate the tail pulley
     had been guarded previously.

     In additional to  alleging  a violation of the standard, the
citation contains an S&S finding.

                          YORK 96-67-M

Citation        Date         56 C.F.R.        Proposed Penalty

 4285650       4/9/96          14112(b)               $111

     The citation states:

               The  tail  pulley  guard had been removed and
     was not replaced at the sand belt.   The unguarded tail
     pulley was approximately 4 to 5 feet above the existing
     ground level.  Existing bolts indicate  the tail pulley
     had previously been guarded.

     In additional to alleging a violation of  the  standard, the
citation contains an S&S finding.

     Essentially,   the  allegations  concerning  Citation   Nos.
4285649 and 4285650 were tried together.

     With regard to Citation No. 4285649, Patterson testified the
tail pulley assembly area of the 3/8 inch stone conveyor belt was
not  guarded.   (The  belt  transported  finished  stone  from  a
transfer point to a stock  pile.)  Patterson noticed "attachments
like hooks and so forth" that  had  been  used  to attach a guard
(Tr.  216,  220;  Gov.  Exh.  2M).  The stone conveyor  belt  was
operating during the inspection (Tr. 215-216).

     Because the conveyor tail  pulley  was within 4 to 5 feet of
the ground, Patterson believed any person  working  or  traveling
near  it  could be entangled in the unguarded pulley or the  belt
(Tr. 217, 219).   Work  activities  that  would  being a miner in
close proximity to the unguarded area were aligning  the  belt to
get it running as straight as possible or cleaning up accumulated
spillage under the belt (Tr. 219).  If the clothing of the  miner
doing  such  work  became  caught  in  unguarded tail pulley, the
person could be pulled into the conveyor belt and be "turned into
hamburger" (Id.).  Adding to the hazard  was the fact that it was
April and that miners wore extra clothing  that could more easily
be caught in the mechanisms (Tr. 219).

     Fortunato Palumbo testified that the stone conveyor belt was
misaligned.  The misalignment had to be corrected,  and  the only
way  to correct it was to make an adjustment and then to run  the
belt to  see  if  it  was  aligned  properly (Id.).  Palumbo also
testified that to realign the belt, the  guard  had to be removed
from the belt drive area (Tr. 225).

     When questioned by Fortunato Palumbo, Patterson  agreed  the
stone  conveyor  belt  was  misaligned (Tr. 221).  Patterson also
agreed that belts usually are  operated  while they are realigned
(Tr. 225).  Patterson stated that "the guard  can be taken off if
there  is  an adjustment" (Tr. 226).  However, Patterson  saw  no
tools indicating  the company was in the process of adjusting the
belt, nor did he find  the  guard  anywhere  near the tail pulley
assembly (Id.).

     With regard to Citation No. 4285650,  Patterson  stated that
as he approached the tail pulley of the sand conveyor, he noticed
the  pulley  guard was missing.  (The sand conveyor carries  sand
from the sand  screw  to  a stockpile (Tr. 231)).  Like the stone
conveyor tail pulley,
Patterson saw indications the  sand conveyor tail pulley once had
been guarded.  Hooks and bolts indicated where the guard had been
attached (Tr. 230-231; Gov. Exh.  2N).    Patterson  recalled the
sand  conveyor  belt  and  the  tail pulley as being in operation
during the inspection (Tr. 231-232).

     There was standing water in  the  area,  but enough sand had
built  up around the pulley for a miner to access  the  unguarded
area (Tr.  231).   Therefore, the lack of a guard meant that when
the belt was running  and  a  miner was near it, there was danger
the miner would be caught in the  pulley.   His  or  her clothing
would  be  entangled  in the moving parts or in the pulley's  nip
points, and the miner would be dragged into the pulley mechanism.
Patterson believed it reasonably  likely  that broken bones, lost
limbs, or death would result (Tr. 232).

     Because of its height, the tail pulley was easily accessible
to anyone working around it.  Such a person would be greasing the
pulley, cleaning up around the belt, checking  the  operation  of
the  sand  screen,  or  making adjustments to the belt (Tr. 233).
Patterson felt that "at any  time  someone could walk right up to
[the unguarded area]" because "[t]here  was  nothing  to restrict
anyone from going up" (Tr. 234).

     Fortunato  Palumbo  agreed  the guard was not in place  (Tr.
235-236).

                          THE VIOLATIONS

     To  prove a violation of the standard,  the  Secretary  must
establish  that the guards were missing and that the tail pulleys
were operating.  In both instances, the parties agreed the guards
were missing.   Further, Patterson testified credibly that he had
seen the belts and the pulleys operating during the course of his
inspection (Tr. 216-217).  Based upon all of the evidence, I find
that the cited tail  pulleys  were  not  guarded  and were "being
operated" within the meaning of the standard.

     However, the standard also states that a guard  need  not be
in place when an operator is "making adjustments which cannot  be
performed without removal of the guard" (30 U.S.C. 56.14112(b)),
and  I  find  this  exception applicable in the case of the stone
conveyor tail pulley.   The gist of Fortunato Palumbo's testimony
was that the company was  in  the  process of realigning the belt
and that to do this the guard had to  be  and  was  removed  (Tr.
225).   Patterson  agreed  the stone conveyor belt was misaligned
(Tr. 221) and the guard could be taken off to align the belt.

     The fact Patterson saw  no  tools  or the old guard near the
tail pulley, does not defeat the exception.  The company may have
taken its tools and the old guard elsewhere.   Or,  it  may  have
disposed  of  the  old  guard.  The evidence establishes that the
belt  was in need of alignment,  that  the  company  was  in  the
process  of getting the plant ready for the operating season, and
that
the guard  could  be removed to do the realignment.  Therefore, I
have no reason to doubt  Fortunato  Palumbo's  assertion that the
guard  was  missing  because  the  belt was being aligned.    The
violation of section 56.14112(b) alleged  in Citation No. 4285649
has not been established.

     The allegation with regard to the sand  conveyor tail pulley
(Citation  No.  4285650)  is  another  story.  Although  Fotunato
Palumbo stated that he "offered the same comments" regarding both
the sand conveyor tail pulley and the stone conveyor tail pulley,
neither he nor Carmine Palumbo testified  that  the sand conveyor
belt  was  misaligned  or had been realigned.  Nor did  Patterson
testify he observed a problem with the belt's alignment.

     The Palumbos were representing  the  company without benefit
of counsel, and I allowed them considerable  leeway.  However, to
find  the  exception  applied  there  has  to  be testimonial  or
documentary  evidence  the  guard  was missing so that  necessary
adjustments could be made, and there  is  no  such evidence here.
Therefore, the violation of section 56.14112(b),  as  alleged  in
Citation No. 4285650, has been established.

                         S&S and GRAVITY

     The  violation  was  both  S&S  and  serious.  The Secretary
proved it was reasonably likely the hazard posed by the unguarded
sand conveyor tail pulley would result in a miner being caught in
the pulley.  First, the unguarded pulley was  easily  accessible.
The  company  did not dispute Patterson's opinion that there  was
nothing to prevent  or  deter  access to the pulley, and the fact
that  water was standing in the area  was  negated  by  the  sand
"bridge"  that  was  present  (Tr. 231).   Nor  did  the  company
question the fact that location of the unguarded pulley, was such
that a miner easily could walk into it or have an extended arm or
piece  of  clothing  caught  in it (Tr. 230).  Further, Patterson
credibly testified to activities  that  would  bring a miner into
contact with the unguarded pulley - cleaning up  around  the belt
and  checking  the  operation  of  the  sand  screen  (Tr.  233).
Clearly,  as  mining  continued these activities would have taken
place and when they did,  open  access to the tail pulley made it
reasonably likely an accident would occur.  Finally, as Patterson
testified, the result of any accident  would have been reasonably
serious or worse (Tr. 232).

     Because  the injuries posed by the unguarded  sand  conveyor
tail pulley would  have  been  serious  or  worse, and because as
mining continued, miners would have been exposed to the danger, I
find the violation was serious.

                            NEGLIGENCE

     For the reasons stated with regard to Citation  No. 4286260,
I find the company's negligence was moderate.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285651       4/9/96           18002                 $50

     The citation states:

          Records  of  inspections  of  working   places  for
     conditions which adversely affect safety or health . . .
     were  not  being  . . .  completed  and  recorded  by  a
     competent person or the operator.

                           YORK 96-69-M

Citation        Date         56 C.F.R.        Proposed Penalty

 4285652       4/10/96          12028                 $50

     The citation states:

          The  operator  did  not  have available for review
     records of the annual continuity  &  resistance test of
     the  plant's  grounding system.  MSHA records  indicate
     the last continuity  & resistance test was conducted on
     3/12/95.

     Essentially the allegations concerning Citation Nos. 4385651
and 4385652 were tried together.

     With regard to Citation  No.  4385651,  Patterson  explained
that  section 56.18002(a) in part requires a competent person  to
examine   each  working  place  at  least  once  each  shift  for
conditions  which  may adversely affect safety or health and that
section 56.18002(b)  requires  a record of the examinations to be
kept for 1 year.  In addition, the  records must be available for
review by MSHA and its inspectors (Tr. 237-238).

     Patterson stated it was his usual  practice  upon conducting
an inspection to ask the person in charge of the mine  where such
records are located.  At the Dover Pit,  Patterson asked  Carmine
Palumbo.   Palumbo  responded  that  the  records might be at the
office.  When Patterson and Palumbo got to  the  office,  Palumbo
could not find them (Tr. 238).

     Patterson  did  not  believe  there  was  "any great hazard"
associated  with  failing  to have available the results  of  the
examinations  (Tr.  242).   Nevertheless,   Patterson  noted  the
records could be useful to an operator because  they  could alert
the operator to conditions that needed correction (Tr. 243).

     Fortunato Palumbo testified the examinations were  conducted
but  that he "was not aware . . . there was a requirement  for  a
written record" (Tr. 240).

     With  regard  to  Citation  No. 4685652, Patterson explained
that section 56.12028 requires in  part  that  the continuity and
resistance  of  grounding  systems be tested annually  after  the
systems  have been installed.   In  addition,  a  record  of  the
resistance  measured  during  the  most recent tests must be made
available  to MSHA and its inspectors  upon  request.  The  tests
establish the continuity of the system and reveal the presence of
any electrical faults (Tr. 245).

      According  to  Patterson,  when he was at the mine on April
10, he asked to see the result of  the last annual continuity and
resistance  test  for  the  plant's  grounding  system.   Carmine
Palumbo  thought  the  reports  might  be at  the  office.   When
Patterson and Palumbo got to the office,  Palumbo  could not find
the records (Tr. 244-246).

     Fortunato   Palumbo   testified  that  the  continuity   and
resistance tests were last done  in  the spring of 1995, but that
he too could not find a record of the tests (Tr. 249-250, 251).

              THE VIOLATIONS, GRAVITY, & NEGLIGENCE

     Patterson and Fortunato Palumbo agreed  the required records
were  not  kept  (Tr. 240, 249-250, 251).  Patterson  essentially
testified that the  failure  to  keep the records was not serious
(Tr. 242).  Therefore, I find that  the  violations  occurred and
that they were of minimal gravity.

     The  company's failure to keep written records represents  a
moderate lack  of  care.   The  record  keeping  requirements are
clearly  stated  in  the  regulations, and it is the duty  of  an
operator to know and abide  by  the  regulations.  Ignorance does
not lessen the operator's duty to comply.

Citation        Date         56 C.F.R.        Proposed Penalty

 4285271       4/17/96          12030                $157

     The citation states in part:

          The  MCC  [motor  control  center] trailer used to
     power the plant has not been maintained,  or, used in a
     workman-like  manner,  has no evidence of a proper  and
     safe grounding system, and  contains  other  violations
     creating some potentially dangerous conditions.

     In  additional to alleging a violation of the standard,  the
citation contains an S&S finding.

     Jon Montgomery  is an MSHA electrical inspector.  He went to
the Dover Pit on April  17, 1996, in order to further inspect the
operation's grounding system  (Tr.  253-255).   Montgomery  first
inspected  the motor control center trailer (a van-type trailer).
In addition  to  being  used  for storage, the trailer housed the
electrical controls for almost all of the electrical equipment at
the pit, including the conveyor  belts,  shakers,  and  the  cone
crusher (Tr. 257).

     Inside  the  trailer  Montgomery noticed a number of exposed
and  energized  relay  devices.    He   also   noticed  starters,
disconnecting  devices,  and  conduits  that  were  exposed   and
unprotected  (Tr. 258,  262-263, 267-270, 271; Gov. Exhs. 2O, 2P,
2T, 2U, 2V).  In addition,  he  observed  cables  that  were  not
bushed  where  they  left  junction boxes (Tr. 265-266; Gov. Exh.
2R),  other cables that were  not  installed  in  a  workman-like
manner,  and  fuses that were too large for their conductors (Tr.
259).  Finally,  the electrical service mast (a conduit that rose
above the trailer and that provided access to incoming electrical
wires) was laying on an angle and was not supported (Tr. 259-260;
Gov. Exh. 2W).  The  condition of the service mast put additional
stress on the cables entering the trailer (Tr. 273).

     Carmine Palumbo's  son  was  at  the  mine  on April 17, and
Montgomery asked him how long the conditions had existed.  He did
not  know (Tr. 275).  On the other hand, Fortunato  Palumbo  told
Montgomery  the  conditions   had "been like that for many years"
and  that  other  MSHA inspectors  had  "no  problem"  with  them
(Tr. 275-276).

     In Montgomery's  opinion  all  of these conditions created a
serious  shock  and fire hazard, and he  cited  the  company  for
failing to correct  them  before  the  electrical  equipment  was
energized  (Tr. 259-261,  263,  267).  Montgomery believed that a
short in the system would have resulted  in a fire in the trailer
or a shock hazard to miners working in the trailer (Tr. 260).  In
his  view, the confluence of the conditions  made  it  reasonably
likely  an  injury  would  have resulted (Tr. 282-283).  He noted
employees  often were exposed  to  the  conditions  because  they
frequently entered  the  trailer  during the course of a shift to
start and stop equipment and to obtain parts (Tr. 283).

     Fortunato Palumbo reiterated what  he  had  told Montgomery,
that the wiring in the trailer had been in place for "a number of
years" (Tr. 285).  Indeed, some of it was installed  in  1971  or
1972  (Id.).  He maintained many of the unprotected wires did not
require  conduits  because  they  had  an  "extra heavy covering"
(Tr. 286),  and  that,  in  any  event,  the trailer  itself  was
grounded by structural frame grounding (Tr.   287).  He admitted,
however,  that  the  service  mast was not as straight  as  "good
practice" required (Tr. 288).

                          THE VIOLATION

     Section  56.12030 requires  that  "a  potentially  dangerous
condition"  be  "corrected   before   equipment   or   wiring  is
energized."    I  credit  Montgomery's  testimony  regarding  the
conditions he found  inside  the trailer and the condition of the
outside service mast.  Montgomery's  recitation of the conditions
was detailed and was confirmed by pictorial evidence entered into
the record by the Secretary (see Gov. Exhs. 20-2X).  Further, the
company did not contest his description  as much as challenge the
conclusions he drew from the conditions.   Since it is clear from
Patterson's testimony the electrical equipment  had  been running
at  the  plant,  and  since  it is also clear that the conditions
Montgomery described existed when  Patterson  was  there  and the
equipment was running, the question of whether or not a violation
occurred  turns  upon  whether  the  conditions  were potentially
dangerous.

     I agree with Montgomery that the exposed wiring  should have
been  protected  from  unintended  damage,  and  that failure  to
protect it presented a fire and shock hazard.  The  standards  do
not  exempt  conductors from the protection afforded by covers or
conduits on the  basis  of  their  jackets.   Vibrations or other
stress  factors  eventually can wear through the  toughest  outer
jackets.

     I also agree  with Montgomery that fuses that were too large
for  the  conductors they  serviced  added  to  the  danger.   He
persuasively  described  what  could happen: "[I]n the event of a
short  circuit [or] overload, the  fuse  is  intended  -  or  the
circuit  breaker  is  intended  [to]  open.  If you size that too
large   then   the   fuse  or  the  circuit  breaker   will   not
open . . . and the conductor will start overheating resulting in,
most times, a fire" (Tr. 259).

     I further agree that the bent service mast put stress on the
incoming electrical wires  and made it more likely the live wires
would disconnect in the trailer,  especially  in view of the fact
the wires outside were subject to the weight of  ice  forming  on
them  during  spring  storms  (Tr.  273).  In this regard, I note
Fortunato Palumbo's statement that "[g]ood practice" required the
mast head to be straight and supported (Tr. 288).

     The fact that miners frequently entered the trailer to start
or  stop  equipment and to obtain parts,  meant  that  they  were
directly subjected  to  the  hazards, and this too contributed to
making the conditions "potentially  dangerous" within the meaning
of the standard.

     Without  considering  whether  or  not  there  was  a  "safe
grounding system" (Citation No. 4285271)  there is more than
ample evidence of the potential dangers posed  to  miners by
the  other  cited  conditions,  and  I  sustain  the alleged
violation.

                         S&S and GRAVITY

     The  violation  was  both  S&S  and serious.  The conditions
cited  by Montgomery, created a measure  of  danger  to  the
safety of  the miners who entered the trailer.  Moreover, as
mining continued,  the  frequent visits of the miners to the
trailer, combined with the  unprotected  wires, the improper
fuses,  and  the  added  strain  on the electric  conductors
coming into the trailer made it reasonably  likely  a  short
circuit  or  an  exposed  live  wire would result in a miner
being  burned or shocked or both.   The  resulting  injuries
would have been reasonably serious, if not fatal.

     Electrical  conduits,  connections,  and overload protective
devices  are  potentially very dangerous  if  they  are  not
installed  and maintained  as  required.   In  view  of  the
gravity of the  injures  that  could  be  expected  and  the
extensiveness of the violative conditions in and immediately
outside the trailer, this was a serious violation.

                            NEGLIGENCE

     The  conditions that constituted the violation were numerous
and visually  obvious.   The  potential danger to miners from the
electrical  components  in and immediately  outside  the  trailer
meant the company had a high  duty  of  care  to make certain all
were  properly installed and maintained.  The extensive  disarray
found by  Montgomery  and  the  length  of  time  the  conditions
apparently  existed  are  indicative  of the company's more  than
moderate failure to meet its duty.

                   OTHER CIVIL PENALTY CRITERIA
                  HISTORY OF PREVIOUS VIOLATIONS

     The company has a very small history  of previous violations
in  that  during  the 2 years  prior  to  the  first  violation
alleged in  these  cases,  the  company's  applicable  history
consisted of  two violations (Tr. 13-17; Gov. Exh. 1).

                         SIZE OF BUSINESS

     It  is clear that the company is very small.  When Patterson
was at  the  mine  only  two  miners  were  working  (Tr.  26).
Further, in proposing penalties for  the  alleged  violations,
MSHA  assigned  the  company no points  for its  size,  which
means that according to  MSHA's records, 10,000 annual hours
or  less  are worked at the  mine.   This  is  the  smallest
category MSHA recognizes (see 30 C.F.R.  100.3(b)).

                 ABILITY TO CONTINUE IN BUSINESS

     The burden  is  on  the  operator to come forward with proof
that  the  size of any penalty  will  effect  adversely  its
ability to continue  in business.  The company did not offer
any evidence in this regard, and I find that the size of the
penalties assessed will  not effect the company's ability to
mine.

      GOOD FAITH IN ATTEMPTING TO ACHIEVE RAPID COMPLIANCE

     The parties stipulated that the company exhibited good faith
in rapidly abating any violations that existed (Tr. 66-67).

                    CIVIL PENALTY ASSESSMENTS

      YORK 96-67-M

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285641    4/8/96       12025            $ 117             $ 0

     There was no violation of the standard.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285642    4/8/96    14109(b)(1)         $ 50              $ 75

     The  violation  was not serious and the company's negligence
was moderate.  Given these  and  the other civil penalty criteria
discussed above, I conclude a penalty of $75 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4286260    4/8/96      14112(b)          $ 111             $ 90

     The  violation  was  serious and the company's negligent was
moderate.   Given these and  the  other  civil  penalty  criteria
discussed about, I conclude a penalty of $90 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285643    4/9/96       12025            $ 117             $ 90

     The  violation  was serious and the company's negligence was
moderate.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $90 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285644    4/9/96        4101            $ 50              $ 50

     The  violation  was not serious and the company's negligence
was  low.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $50 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285645    4/9/96      14112(b)          $ 111             $ 90

     The  violation  was serious and the company's negligence was
moderate.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $90 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285646    4/9/96      14112(b)          $ 111             $ 50

     The  violation  was not serious and the company's negligence
was  low.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $50 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285647    4/9/96       12025            $ 111             $ 0

     There was no violation of the standard.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285648    4/9/96      14107(a)          $ 81              $ 90

     The  violation  was serious and the company's negligence was
moderate.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $90 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285650    4/9/96      14112(b)          $ 111             $ 90

     The  violation  was serious and the company's negligence was
moderate.  Given these  and  the  other  civil  penalty  criteria
discussed above, I conclude a penalty of $90 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285651    4/9/96       18002             $ 50             $ 75

     The  violation  was not serious and the company's negligence
was moderate.  Given these   and the other civil penalty criteria
discussed above, I conclude a penalty of $75 is appropriate.

                           YORK 96-69-M

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285649    4/9/96      14112(b)            $ 111            $ 0

     There was no violation of the standard.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285652    4/10/96      12028              $ 50             $ 75

     The  violation  was not serious and the company's negligence
was moderate.  Given these   and the other civil penalty criteria
discussed above, I conclude a penalty of $75 is appropriate.

Citation    Date     56 C.F.R.     Proposed Penalty    Assessment

4285271    4/17/96      12030              $ 157            $ 150

     The  violation  was serious and the company's negligence was
more than moderate.  Given  these  and  the  other  civil penalty
discussed   above,   I   conclude  that  a  penalty  of  $150  is
appropriate.

                              ORDER

     Within 30 days of the  date  of this decision, the Secretary
WILL VACATE Citations  No. 4285641, 4285647, and 4285649 and WILL
MODIFY Citation Nos. 4285643  and  4285646 by  deleting  the  S&S 
findings. Within the same 30 days, Palumbo Sand & Gravel WILL PAY
civil penalties as follows:

     Docket No. YORK 96-67-M - $700
     Docket No. YORK 96-69-M - $225

     Upon vacation and modification of the citations  and payment
of the assessed penalties, these proceedings are DISMISSED.

                                David Barbour
                                Administrative Law Judge

Distribution:

John G. Campbell, Esq.,  James A. Magenheimer, Esq., Office  of the
Solicitor, U.S.  Department  of Labor, 201 Varick Street, Room 707,
New York, NY 10014 (Certified Mail)

Mr.  Fortunato  Palumbo,  Palumbo Sand &  Gravel,  Route  22, Dover
Plains, NY 12522 (Certified Mail)

dcp