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[DOCID: f:ct97192.wais]

 
HIGMAN SAND & GRAVEL, INC.
September 25, 1998
CENT 97-192-M


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


                          September 25, 1998

SECRETARY OF LABOR,          :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :   Docket No. CENT 97-192-M
            Petitioner       :   A.C. No. 39-00993-05517
                             :
        v.                   :   Screener Plant No. 1
                             :
HIGMAN SAND & GRAVEL, INC.,  :
            Respondent       :

                               DECISION

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

Before:   Judge Manning

     This case is before me on a petition for assessment of 
penalty filed by the Secretary of Labor, acting through the 
Mine Safety and Health Administration ("MSHA"), against
Higman Sand and Gravel, Inc. ("Higman"), pursuant to 
sections 105 and 110 of the Federal Mine Safety and Health 
Act of 1977, 30 U.S.C.  815 and 820 (the "Mine Act").  
The petition alleges one violation of the Secretary's 
safety standards.  A hearing was held in Sioux City, Iowa.

I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW  

     Screener Plant No. 1 (the "plant") is in Union County, 
South Dakota.  It is a small operation that typically 
employees two individuals.  One employee operates the pay 
loader.  The other employee, Mark Rasmussen, operates the 
screening plant.  Higman uses a portable generator as the 
source of electricity for the plant.  This generator was 
purchased by Higman during the 1980s and it has been used 
at this plant since the late 1980s.  The generator is in a 
covered trailer to protect it from the elements.  This 
trailer is of the type that is attached to a tractor for 
the transportation of goods over highways.  The trailer has 
two sets of doors.  The door on the side of the trailer is 
equipped with stairs for access to the trailer and the 
controls for the generator inside the trailer.  The doors 
at the back of the trailer are opened to provide 
ventilation for the generator when it is operating.  The
generator's large cooling fan exhausts out the back of the 
trailer.  The generator sits near the center of the trailer 
from side-to-side but is closer to the back of the trailer 
than the front.  The controls for the generator are at the 
end of the generator that is near the front of the trailer.
The control box for the plant is also in the front of the 
trailer.  The only person who regularly enters the generator 
trailer is Mr. Rasmussen, who enters the trailer to start 
the plant at the beginning of the shift, to shut down the 
plant at the end of the shift, and to shut down the 
conveyors or the power in the event that major repairs are 
required.

     On May 22, 1997, MSHA Inspector John R. King inspected
the plant.  During this inspection he issued Citation 
No. 4644726 under section 104(a) of the Mine Act alleging 
a violation of 30 C.F.R. 56.14107(a).  The condition or 
practice section of the citation states as follows, in 
pertinent part:

          The V-belt drives on the Caterpillar generator 
     set ... in the power generation van were not guarded.  
     The unguarded belts were approximately three feet from
     the throttle and three feet off the deck.  A trip, 
     fall, or loose clothing could cause an employee to 
     come into contact with the unguarded pinch points on
     the V-belts.

     Section 56.14107(a) provides, in pertinent part, that 
"[m]oving machine parts shall be guarded to protect persons
from contacting gears, ... drive, head, tail, and takeup 
pulleys, flywheels, ... and similar moving parts that can 
cause injury."  Inspector King determined that the 
violation was serious and of a significant and substantial 
nature ("S&S").  He also determined that Higman's 
negligence was moderate with respect to this citation.  
The Secretary proposes a civil penalty of $128 for the 
alleged violation.  

     A.   Fact of violation

     I find that the Secretary established a violation of 
section 56.14107(a) in this case.  The belt drives at issue 
were the type of moving machine parts that are covered by 
the safety standard. Unguarded V-belt drives can cause 
injury to an employee working in the area.  Loose clothing 
can get caught between the belt and the drive and the 
employee can be pulled into the pinch point.  Higman 
contends that employees do not travel to the back of the 
trailer where the belt drives are located while the 
generator is operating.  I find that the floor of the 
generator trailer is a "walking or working surface," as 
these terms are used in section 56.14107(b).  While it 
may not be the practice of Mr. Rasmussen to travel near 
the belt drives while the generator is operating, the 
area is open to travel.  It is likely that Mr. Rasmussen 
or another employee walked near these belt drives while 
they were turning on at least one occasion.  The drives 
are within seven feet of a walking or working surface and 
the exception set forth in section 56.14107(b) does not 
apply.  

     The most logical construction of a guarding standard
"imports the concepts of reasonable possibility of contact
and injury, including contact stemming from inadvertent 
stumbling or falling, momentary inattention, or ordinary 
human carelessness."  Thompson Brothers Coal Co., Inc., 
6 FMSHRC 2094, 2097 (September 1984).  The construction of 
safety standards that involve a miner's behavior "cannot 
ignore the vagaries of human conduct."  Id.  In finding a 
violation, I have considered the "accessibility of the 
machine parts, work areas, ingress and egress, [and 
employee] work duties."  Id.

     Finally, the Mine Act imposes strict liability on a 
mine operator.  See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 
(10th Cir. 1989).  "[W]hen a violation of a mandatory 
safety standard occurs in a mine, the operator is 
automatically assessed a civil penalty."  Id. at 1197.  
The Secretary is not required to prove that a violation 
creates a safety hazard, unless the safety standard so 
provides.

     The [Mine Act] imposes no general requirement that a 
violation of MSHA regulations be found to create a safety 
hazard in order for a valid citation to issue.  If 
conditions existed which violated the regulations,
citations [are] proper.

Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982)
(footnote omitted).  The negligence of the operator and the
degree of the hazard created by the violation are taken 
into consideration in assessing a civil penalty under 
section 110(i).  30 U.S.C.  820(i).

     B.   Significant and Substantial Nature of the Violation	

     An S&S violation is described in section 104(d)(1) of 
the Mine Act as a violation "of such nature as could 
significantly and substantially contribute to the cause and 
effect of a ... mine safety or health hazard."  A violation 
is properly designated S&S "if based upon 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."  National 
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In Mathies Coal 
Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out 
a four-part test for analyzing S&S issues.  Evaluation of 
the criteria is made assuming "continued normal mining
operations."  U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 
(July 1984).  The question of whether a particular violation 
is S&S must be based on the particular facts surrounding the 
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).  

     In order to establish that a violation is S&S, the 
Secretary must establish:  (1) the underlying violation of
the safety standard; (2) a discrete safety hazard, 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.  

     I find that the Secretary established the first two 
elements of this test.  There was a violation of the
standard and a measure of danger to safety contributed to 
by the violation.  The issue is whether there was a 
reasonable likelihood that the hazard contributed to by 
the violation will result in an injury.  I find that the 
Secretary did not establish that an injury was reasonably
likely in this instance.

     In reaching the conclusion that an injury was not 
reasonably likely, I rely on a number of factors.  First, 
the only employee who regularly enters the trailer is Mr. 
Rasmussen.  He enters the trailer in the morning to start 
the generator and the conveyors and in the late afternoon 
to shut down the conveyors and the generator.  He estimates 
that he is in the trailer about ten minutes per day.  
Occasionally, he enters the trailer in the middle of the 
day to shut down the conveyors and the generator if the
plant is shut down for repairs.  He also enters the trailer 
on occasion to get oil or grease that are stored at the 
front of the trailer.  The generator is at the opposite 
end of the trailer near the back.  He enters and exits the 
trailer by walking up the metal steps at the door on the 
side of the trailer.  He does not enter the trailer through 
the back doors because the deck of the trailer is four to 
five feet above the ground.  The controls for the generator 
and the plant are near the side door.  The control box for 
the plant is about 15 feet from the belt drives and the 
control panel for the generator is 10 to 12 feet from the 
belt drives.  (Tr. 47, 71, 111).  These controls are not 
along the side of the generator adjacent to the belt drives.

     When starting the generator Mr. Rasmussen checks to see 
if the throttle is properly adjusted before he starts the
generator.  The throttle is within a few feet of the 
unguarded V-belt drives.  After he starts the generator, he 
turns on the conveyors and exits the trailer.  There is no 
need for Mr. Rasmussen or anyone else to walk to the back 
of the trailer while it is operating.  One cannot easily 
exit the trailer through the back doors.  In addition, the 
noise of the generator and the wind produced by the cooling 
fan make the back of the trailer an unpleasant place to 
exit.  Maintenance to the generator is performed while it 
is shut down.  For example, the fuel filter, which is near 
the belt drives, cannot be changed except when the 
generator is off.  There are no grease fittings near the 
V-belt drives.  There are no stumbling hazards near the
belt drives except a set of small wooden blocks or wedges 
under the generator that stick out a little.  Although it 
would be possible for someone to trip over these blocks, I 
find that it is unlikely that anyone's body or clothing 
would come in contact with the belt drives in such an event.

     The Secretary disputes Mr. Rasmussen's testimony that he
does not travel within seven feet of the belt drives while 
the generator is running.  Inspector King testified that 
Rasmussen told him during the inspection that the belt 
drives should be guarded.  (Tr. 136; Ex. G-1).  The 
inspector also testified that Rasmussen told him that he 
sometimes adjusts the throttle after he has started the 
generator.  (Tr. 53, 137-38).  At the hearing, Mr. 
Rasmussen testified that he never adjusts the throttle
while the generator is running.

     I find that Mr. Rasmussen has adjusted the throttle 
after starting the generator, but that this is a rare event.  
The proper operating procedure for this generator is to set
the throttle before it is started.  (Tr. 72-73).  Mr. 
Higman testified that the person starting the generator 
"would not want to touch the throttle when it's running."  
(Tr. 74).  Mr. Rasmussen stated that he has been running 
this generator for Higman since it was "brand new" and he 
knows from that experience "exactly where to set the 
throttle" before he starts the generator.  (Tr. 119).  I 
credit this statement.  Rasmussen does not readjust the 
throttle while the generator is operating except in 
extraordinary circumstances.  Thus, his exposure to the 
moving belt drives was not very significant.  The control 
panel is at one end of the generator, the belt drives are 
near the opposite end, and the throttle is close to the 
belt drives in between.  It is unlikely that his clothing 
or body would come into contact with the pinch points if he 
stumbled.  The Secretary argues that because the doors to 
the trailer were open, the floor could be wet and present 
a slipping hazard.  I find that the floor would not 
usually be wet because the ventilation produced by the fan 
would quickly dry out the trailer.  In addition, the floor 
was grooved, which would tend to make the floor less 
slippery.  

     As a general matter, I believe that unguarded moving 
machine parts present a significant and substantial hazard 
to employees.  In this case, however, I find that an injury 
was not reasonably likely.  Although I find that the floor 
throughout the trailer was open for travel and constituted 
a walking or working surface, the floor near the belt 
drives was not generally used as a travelway or a working 
surface while the generator was operating.  I recognize 
that Rasmussen may have occasionally traveled near the belt 
drives while the generator was operating.  I find, however, 
that his exposure was insignificant and that an injury was 
highly unlikely, taking into consideration continued normal 
mining operations and the unpredictable nature of human 
conduct.  Inspector King stated that a guarding violation 
may not be S&S if "an individual is seldom, if ever, in the 
particular area."  (Tr. 26).  Mr. Rasmussen was the only 
person who entered the trailer on a regular basis, he was 
only in the trailer about ten minutes a day, and he rarely 
walked within ten feet of the unguarded belt drives while 
the drives were operating.

     I find that the Secretary established the fourth element
of the Mathies test because if an injury were to occur, the 
injury would be of a reasonably serious nature.  
Accordingly, I hold that the violation was not S&S because 
the hazard contributed to by the violation was not 
reasonably likely to result in an injury.

II.  APPROPRIATE CIVIL PENALTY

     Section 110(i) of the Mine Act sets out six criteria to 
be considered in determining appropriate civil penalties.  
I find that eleven citations were issued at the Screener 
Plant No. 1 between May 1995 and May 1997.  (Ex. G-5).  The 
plant is a small facility that employed two miners and 
worked 3,602 man-hours in 1997.  Higman is a small operator 
that worked 9,510 man-hours in 1997.  The violation was 
rapidly abated.  The penalty assessed in this decision will 
not have an adverse effect on Higman's ability to continue 
in business.  Although the violation was not S&S, I find 
that it created a moderately serious safety hazard.  
Higman's negligence was moderate.  Although the generator 
had been inspected by MSHA on a number of occasions and the 
belt drives had never been cited, Higman had received three 
citations for unguarded moving machine parts in the two 
years preceding the date of the citation at issue.  
(Ex. G-5; Higman Sand and Gravel, Inc., 18 FMSHRC 951 (June 
1996)(ALJ)).   Thus, Higman was on notice that guarding was
required for moving machine parts.  Based on the penalty 
criteria, I find that a penalty of $100.00 is appropriate 
for this violation.

III.  ORDER

     Accordingly, Citation No. 4644726 is AFFIRMED as 
modified above and Higman Sand and Gravel, Inc., is ORDERED 
TO PAY the Secretary of Labor the sum of $100.00 within 40
days of the date of this decision.


                                 Richard W. Manning
                                 Administrative Law Judge


Distribution:

Mark W. Nelson, Esq., Office of the Solicitor, U.S. 
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO 
80202-5716  (Certified Mail)

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

RWM