<DOC>
[DOCID: f:va986.wais]

 
LESUEUR-RICHMOND SLATE CORP.
August 6, 1998
VA 98-6-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                         August 6, 1998

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. VA 98-6-M
                Petitioner     :  A. C. No. 44-00061-05533
          v.                   :
                               :
LESUEUR-RICHMOND SLATE CORP.,  :
                Respondent     :  Richmond-Arvonia Quarry & Mill

                            DECISION

Appearances:  Javier I. Romanach, Esq., Office of the Solicitor,
              United States Department of Labor, Arlington,
              Virginia, on behalf of the Petitioner; Harlan L.
              Horton, Esq., Farmville, Virginia, on
              behalf of Respondent.

Before:  Judge Melick

     This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor against the Le Sueur-Richmond
Slate Corporation (Le Sueur), pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801, et.
seq., the "Act," alleging two violations of mandatory standards
and seeking a civil penalty of $1,299.00, for those violations.
The general issue before me is whether Le Sueur committed the
violations as alleged and, if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
110(i) of the Act.

     Citation No. 4433235 alleges a "significant and substantial"
violation of the standard at 30 C.F.R.  56.14107(a) and charges
as follows:

          The 10-inch Sears electric bench saw being used at the
     roofing plant to cut wedges, was not provided with a guard
     to protect employees from blade.  The saw was used on a
     weekly basis.  Employee has to get hand within 4-inches
     of  blade.

     The cited standard, 30 C.F.R.  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 parts that can cause injury."

     Respondent first claims that saw blades are not sufficiently
like other "similar moving parts that can cause injury" to come
within the meaning of the cited standard.  Under the rule of
statutory construction, ejusdem generis, where general words are
followed by specific examples in a statutory or regulatory
provision, the general words are construed to embrace only
objects similar in nature to the specific examples.  2A
Sutherland Stat. Constr. 47.17 (5th Ed.)  Garden Creek Pocahontas
Company, 11 FMSHRC 2148 (November 1989).  Therefore, the question
is whether the general words of this regulation ("similar moving
parts that can cause injury") can fairly be read to include the
saw blade at issue in this case given the nature of the specific
examples cited in the regulation.   I conclude that saw blades
come within the scope of the items such as "fan blades"
specifically enumerated in the regulation.  Saw blades are
similar moving parts that clearly can cause injury.  Respondent's
argument in this regard is accordingly rejected.

     The Secretary's evidence in support of the violation comes
primarily through the testimony of Inspector Joseph Bosley.
Bosley has been an inspector with the Mine Safety and Health
Administration for 14 years.  He also has 15 years underground
mining experience.  Bosley testified that he, accompanied by
another MSHA employee, Sam Bond, conducted an inspection of the
subject surface slate mine on October 7, 1997.  In its roofing
plant he observed a 10-inch Sears electric table saw without a
blade guard.  The saw was used on a weekly basis to cut wedges
for packing roof shingles.  The saw blade was 10-inches in
diameter, protruded about 2-inches above the surface of the bench
and had no guard affixed to it.  Bosley opined that the saw had
been used recently because of the presence of fresh sawdust and
statements by its operator that he used the saw on a weekly
basis.

     A guide had been provided for more safely moving  wood
through the channels on the bench, but the guide was found
underneath the saw covered with sawdust.  Bosley therefore
concluded that the guide had not been recently used.  The saw
operator also admitted to Bosley that he used the saw without any
guard over the blade.  Significantly, plant foreman Burley Hudgin
acknowledged to Bosley that the saw never did have a guard over
the blade.  This essentially undisputed evidence is clearly
sufficient to sustain the violation.

     The Secretary also maintains that the violation was
"significant and substantial."  A violation is properly
designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature.  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1,3-4 (January 1984), the
Commission explained:

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

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

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

     In this regard, Bosley testified that it was reasonably
likely for the saw operator to place his hand in the rotating saw
blade resulting in the loss of fingers or a hand.  The situation
was aggravated, according to Bosley, by the fact that the guide
itself was not used and that, during ordinary operation, the saw
operator's hand would be within 4-inches of the blade.

     Within the above framework of credible and essentially
undisputed evidence, I conclude that the violation was indeed
"significant and substantial."  In reaching this conclusion I
have not disregarded the testimony of Respondent's maintenance
supervisor, Keith Cheadham.  However, his testimony does not
contradict that of Inspector Bosley's in regard to the above
issues.  Rather, Cheadham's testimony goes to the issue of
negligence.  According to Cheadham, the saw had previously been
inspected by MSHA and he was unaware of any citations having
previously been issued for the lack of a guard.  Cheadham
maintains that after a guard was ordered from Sears he had to
further modify the saw by obtaining longer mounting bolts.  As an
aggravating factor however, I note that Cheadham acknowledged
that he was aware the saw was being used without a guard.  The
admission of the maintenance supervisor, an agent of the
operator, that he was aware that the saw was being used without a
guard also clearly supports a finding of high negligence.  The
absence of a guard under the circumstances was also obvious and
admittedly, the saw never had a guard.  Under the circumstances I
conclude that the violation was the result of high negligence.

     Citation No. 4433236, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. 
56.14132(b)(2), and charges as follows:

          The backup alarm of the Cat 966 front end loader was
     not audible above surrounding noise, could not hear within
     2-feet of rear of loader.  Observed to [sic] people out
     of there [sic] trucks in area.  Hazard backing over one
     of or both of these truck drivers.

     The cited standard, 30 C.F.R.  56.14132(b)(2), provides
that "alarms shall be audible above the surrounding noise level."
Inspector Bosley testified that during the same inspection
on October 7, 1997, when approaching the stockpile area, he
observed a Caterpillar Model 966 front end loader loading a
truck.  According to Bosley, the backup alarm on the loader was
not audible above the surrounding noise.  He asked the operator
to reverse the loader and he was unable to hear the alarm from a
distance of  five feet due to the surrounding noise.  At a
measured distance of two feet he was able to hear the alarm.  The
surrounding noise came from the diesel motors on the loader and
two nearby trucks.

     Bosley observed that the loader also had an obstructed view
to the rear.  The eight-foot-high engine compartment and exhaust
system created a blind spot behind the loader and pedestrians
could not be seen from the operator compartment less than 15 feet
behind the loader.  Bosley observed that as the loader was
operating two truck drivers were walking between the loader and
the trucks.  Based on this evidence Bosley concluded that the
violation was "significant and substantial."  He opined that it
was reasonably likely that persons walking between the loader and
trucks would be run over by the loader and this would be
reasonably likely to result in fatal injuries.  Within the above
framework of undisputed evidence the Secretary has clearly met
her burden of proving the violation and that the violation was
"significant and substantial" and of high gravity.

     In reaching these conclusions I have not disregarded
Respondent's argument that, in essence, the standard is so vague
that it leaves mine operators little notice as to their
responsibilities.  If Respondent is claiming that the cited
standard is unconstitutionally vague, the test is whether a
reasonable prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition would recognize a
hazard warranting corrective action within the purview of the
regulation at issue.  Alabama By-Products Corporation, 4 FMSHRC
2128, 2129-2130 (December 1982).  In this case there is little to
contradict the testimony of Inspector Bosley who, it may be
inferred, is a reasonably prudent person within the purview of
the Alabama By-Products decision.  Respondent's argument in this
regard is accordingly rejected.

     The Secretary further argues that  operator negligence was
high, in particular because of three prior violations relating to
backup alarms.  She refers to Citation Nos. 4440485, 4441557 and
7703296 (See Exh. P-9).  These prior violations do not however
concern the same factual circumstances as the instant citation.
This case involves a unique situation where the alarm was
actually functioning but was not, in the inspector's opinion,
sufficiently loud.  Because the ascertainment of loudness in this
case was subjective and not based on a measured standard I am
hesitant to find high operator negligence.  The point at which
alarms are not sufficiently loud is largely a judgment call and
depends on the ambient noise such as the number of diesel
vehicles present at any one time.

     In assessing civil penalties in this case I have also
considered the record evidence concerning the remaining criteria
under section 110(i) of the Act.

                              ORDER

     Citation Nos. 4433235 and 4433236, are AFFIRMED and Le
Sueur-Richmond Slate Corporation is directed to pay civil
penalties of $800.00 and $100.00, respectively for the violations
charged therein within 30 days of the date of this decision.

                              Gary Melick
                              Administrative Law Judge
                              703-756-6261

Distribution:

Javier I. Romanach, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203 (Certified Mail)

Harlan L. Horton, Esq., 200 North Main Street, Farmville, VA
23901 (Certified Mail)

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