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[DOCID: f:ct2000287.wais]

 
RIBBLE CONTRACTING INC.
CENT 2000-287-M
February 9, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        February 9, 2001

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :  Docket No. CENT 2000-287-M
               Petitioner       :  A.C. No. 29-01999-05530
          v.                    :
                                :
RIBBLE CONTRACTING INC.,        :
               Respondent       :
                                :  Ribble Crusher #1



                            DECISION

Before: Judge Weisberger

Appearances: David C. Rivela, Esq., Office of the Solicitor,
             U.S. Department of Labor, Dallas, Texas, for the
             Petitioner;
             Norman C. Ribble, Ribble Contracting Incorporated,
             Albuquerque, New Mexico, for the Respondent.

     Statement of the Case

     This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor ("Secretary")
seeking the imposition of civil penalties against Ribble
Contracting Inc. ("Ribble") for allegedly violating various
mandatory safety standards set forth in Title 30 of the Code of
Federal Regulations.  Subsequent to notice, the matter was heard
in Los Lunas, New Mexico on November 14, 2000.

      I.  Citation No. 7886651

          A.   Violation of 30 C.F.R.  56.14107(a)

     Ribble's Crusher No. 1 Mine is a sand and gravel operation.
On November 29, 1999, MSHA Inspector Abel Cisneros, Jr. inspected
the mine.  Cisneros observed that the tail pulley under the
grizzly feeder (crusher) was completely exposed.  According to
Cisneros, the belt was running at the time.  Cisneros concluded
that this condition created the hazard of a miner becoming
entangled in the moving tail pulley, and suffering a serious
injury.  He issued a citation alleging a violation of 30 C.F.R.
Section 56.14107(a) which provides, as pertinent, that "[m]oving
machine parts shall be guarded to protect from contacting ...
tail, and take-up pulleys, and similar moving parts that can
cause injury."

     Barney Jones, Jr., Ribble's Crushing Superintendent,
testified that when the grizzly was in operation sizing stones,
the guard was in place, and the area was cordoned off with
caution tape.  According to Ribble, the grizzly was a new piece
of equipment, and at the time of the inspection, the guard on the
tail piece had been removed in order to observe the belt in
motion so it could be properly adjusted.

       Joe Granillo, the crusher operator, testified that he
never saw the grizzly being run without the guard in place.

     It thus appears to be the position of  Ribble that it was
not in violation of Section 56.14107(a) supra,  as the guard was
not in place to allow for maintenance to be performed.

     The clear language of Section 56.14107(a) supra, requires,
in the absolute, that tail pulleys be guarded.  Section
56.14107(a) supra, does not allow for any exception for
maintenance work.  Based on the uncontradicted testimony of
Cisneros I find that, on the date cited, the tail pulley was in
motion, it was not guarded, and persons were not protected from
contacting the tail pulley.  Accordingly, I find that it has been
established that Ribble did violate Section 56.14107(a) supra.

          B.   Significant and Substantial

     According to Cisneros, in essence, the violation was
significant and substantial inasmuch as there was a reasonable
likelihood of an injury as a consequence of the violation.  He
explained that because the pulley was completely exposed an
employee at that site would be subject to inadvertent contact
with the pulley, which could result in an injury caused by the
moving pulley.  He indicated that employees work in the area of
the pulley in order to clean and adjust the belts.  In this
connection he testified that when he was on the site three days
before the date in question, he saw some employees cleaning with
a shovel around the tail pulley of the stacker belt.  Cisneros
indicated that they were within 18 inches of a guarded pulley and
that the machinery was in operation at the time.  He noted that
when he was at the mine on the date of the inspection it was in
operation.  Cisneros indicated that on a weekly basis he receives
reports of fatal injuries stemming from unguarded pulleys.

     On the other hand, Norman C. Ribble testified that employees
clean around and under the tail pulley when it is not in
operation.  In the same fashion Joe Granillo, the crusher
operator, testified that he never saw the pulley being run
without a guard when the plant was in operation.  In this
connection he said that when the plant is in operation and the
area is marked with caution tape, as it is dangerous to be
present.  He indicated that a laborer cleans the area in question
when it is not in operation.

     Barney Jones, Jr., the crushing superintendent, who is in
charge of operations at the plant, explained that the crusher at
issue accepts large pieces of rock placed on top of its cone
shaped upper portion.  The rocks are then sized, as a result of
vibration of the grizzly, and dropped onto a belt which is
operated by the tail pulley at issue.  He explained that the
crusher was a new piece of equipment and, when cited, had not yet
commenced to size large pieces of rock, but instead was being run
so that the belt could be aligned properly.  Jones indicated
that, in normal operations, employees would not be in close
proximity to the tail pulley at issue due to the hazard of being
hit by large pieces of rock falling from the top of the vibrating
crusher.  According to Jones, small pieces of rock, ("fines"),
which accumulate under and near the belt are cleaned by loaders,
and not by manual labor.

     A "significant and substantial" 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 coal or other mine safety or health hazard."
30 U.S.C.  814(d)(l).  A violation is properly designated
significant and substantial "if based upon 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 reasonably serious nature."  Cement Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary of
     Labor 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.

     In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

     We have explained further that 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).  We have emphasized that, in accordance with the
     language of section 104(d)(1), it is the contribution
     of a violation to the cause and effect of a hazard that
     must be significant and substantial.  U. S. Steel
     Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
     1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).

     I find, as discussed above, (I(A), infra) that the cited
condition was in violation of a mandatory safety regulation, and
contributed to the hazard of an employee becoming entangled in
the moving tail pulley.  I also find, within the context of this
record, that inasmuch as employees were in close proximity to a
moving tail pulley that was totally unguarded, an injury
producing event, i.e., inadvertent contact with the tail pulley
was reasonably likely to have occurred.  Also, I note that
Cisneros' testimony that contact with the unguarded tail pulley
could result in a serious injury or fatality.  Since this
testimony was not contradicted or impeached, I accept it.  Thus,
within the framework of this record, I find that the violation
was significant and substantial.

          C.   Penalty

     I find that, as discussed above, the level of gravity of
this violation was relatively high.  However, I find that the
record supports a finding, as agreed to by the parties of the
hearing, that the level of Ribble's negligence was only moderate.
Also, I note the parties' stipulations that Ribble demonstrated
good faith in abating the violation, and that Ribble's operation
was small.  Further, I have reviewed the history of violations
and, significantly, find that aside from the violations at issue
in this case, Ribble was not cited for any violations after the
plant had become Ribble's property.  There is no evidence that
the imposition of a penalty would have any effect on Ribble's
ability to remain in business.

     Considering all the above factors, I find that a penalty of
three hundred dollars is appropriate.

     II.  Citation No. 7886659

           A.  Violation of 30 C.F.R.  56.12030

                1.  The Secretary's Case

     Cisneros testified that during his inspection on November
29, 1999, he had observed an electrical box in a control room at
the subject plant.  He indicated that the box was provided with a
handle on the outside door covering the box.  According to
Cisneros the handle was designed to be moved up or down in order
to open or close a breaker located inside the box, which
energized a generator that supplied electricity to the crusher.
He noted that the door was open approximately three inches, which
exposed 480 v. conductors that were located inside the box.
Cisneros noted that the handle was broken, and that approximately
80 percent of it was missing.

     Cisneros indicated that Granillo told him that because the
handle was broken, the only way to energize the switch for the
generator was to open the box and do it manually.  According to
Cisneros, Granillo also told him that the switch had to be turned
on and off on a daily basis.

     Cisneros concluded that the box was in disrepair and that
since the off/on switch, located inside the box, had to be
operated by hand, a person performing this operation would be
exposed to energized conductors.  Also, when the door was left
open to operate the interior switch, the box could explode, and
persons in the area would not have any protection and could
suffer burns.[1]

     Cisneros issued a citation under C.F.R. 30, Section 56.12030
which provides as follows: "[w]hen a potentially dangerous
condition is found it shall be corrected before equipment or
wiring is energized."

                2.  Ribble's Evidence

     Granillo explained that he starts the crusher by pushing
buttons that are located on another compartment.  Granillo said
that he never placed his hand inside the box at issue, and never
opened it.

     Jones explained that although a five inch portion had been
broken off the handle on the outside of the box, a star shaped
stump remained.  Accordingly, Ribble had fashioned a wrench to
place over the star shaped stump, which allowed the interior
breaker switch to be turned on and off from outside the box.  He
explained that, in normal operations, the crusher is started and
stopped by pushing "cone starter buttons", that are located
elsewhere, i.e., not inside the box and not on the box.  Jones
explained that the breaker switch inside the box is not switched
on and off on a daily basis, and that the only time that it is
switched off is in order to check voltage or amperage on the
crusher.  According to Jones, on the date cited, the door had
been left open as the crusher had gone down, and he was in the
process of checking voltage and amperage, a task performed only
by him.

                3.  Discussion

     Section 56.12030, supra, requires the correction of "... a
potentially dangerous condition".  For the reasons that follow, I
find that the record establishes that Ribble failed to correct "a
potentially dangerous condition."

     The handle on the outside of the box was broken.  Since it
was designed to open or close a breaker inside the box,  a
dangerous condition was made possible thereby i.e., a person
being exposed to energized conductors inside the box, after
opening the door of the box to gain access to the breaker in
order to open or close it.  Accordingly, although Ribble had
provided a wrench to be attached to the stump of the handle to
allow it to be raised or lowered from the outside the box, the
failure to repair the handle clearly was potentially dangerous
(See Webster's Third New
International Dictionary (1996 Ed.), at 1775)).  Hence, I find
that it has been established that Ribble did violation Section
56.12030 supra.

                4.  Significant and Substantial

     Since the record establishes that Ribble did violation
Section 56.12030 supra, and a discreet safety hazard was
contributed to by the violation i.e., contact with energized
conductors inside the box, I find that the first two elements set
forth in Mathies, supra, have been met.

     Cisneros opined that it was reasonably likely that a serious
injury would have occurred because the handle had been broken,
and was not repaired.  In this connection, Cisneros testified,
based solely on what was told to him by Granillo, that because
the handle was broken, the door was left open as "... the only
way that they could energize the switch, off and on, was to open
the box and do it by hand".  (tr. 92)  Similarly, he testified,
based upon "... what was explained" to him by "the supervisor"
(tr. 98), that the switch inside the box had to be switched on
and off on a daily basis, as it was the main switch for the cone
crusher.  However, in this regard I place more weight on the
testimony of Barney Jones, the crusher superintendent, based on
his personal knowledge that, when cited, the box was open because
he was checking amperage due to some difficulties that had been
encountered with the crusher.  Further, I place more weight on
the testimony of Granillo, as it was based upon his personal
knowledge and not contradicted or impeached, that he starts the
crusher by pressing buttons located on another compartment.  In
other words, the box is not opened daily in order to start the
crusher.  Further, Granillo, the crusher operator, has never
opened the box at issue.  Also, I note the uncontradicted
testimony of Jones that Ribble had fashioned a wrench to place
over the stump of the broken handle which allowed the interior
breaker switch to be turned on and off from outside the box.
Within this context, I find that it has not been established that
the hazard of contact with energized conductors inside the box
was reasonably likely to have occurred as a result of the
violation herein.  Therefore I find that it has not been
established that the violation was significant and substantial.

                5.  Penalty

     I find that should a miner have made inadvertent contact
with energized conductors inside the box as a result of the
violative condition that a serious injury could have resulted.
Thus I find that the gravity of the violation was relatively
high.  Further, since Ribble fashioned a wrench to be used
because the handle had been broken, it is clear that Ribble had
notice of the violative condition.  I thus find that Ribble's
negligence was moderate.  Further, taking into account Ribble's
history of previous violations, size, and good faith in abating
the violation as stipulated to by the Secretary, that a penalty
of $300.00 is appropriate for this violation.

     III. Citation Nos.  7886652, 7886653, 7886654, 78866555,
          7886656 and 7886657.

     The parties filed a joint motion seeking the approval of a
settlement regarding the above citations.  The Secretary
originally sought a penalty for these violations of $3,162.00.
The parties proposed to settle these citations for $1,516. 10.  I
have reviewed the representations in

the motion as well as the record regarding these citations and
find that the settlement is appropriate under the terms of The
Federal Mine Safety and Health Act of 1977 and I approve it.

                              ORDER

     It is Ordered that, within 30 days of this Decision, Ribble
pay a total civil penalty of $2,116.10.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:(Certified Mail)

David C. Rivela, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75202

Norman C. Ribble, Ribble Contracting Incorporated, 1412 Broadway,
N.E., Box 25423, Albuquerque, NM 87125

/sct


**FOOTNOTES**

     [1]  It was stipulated should Daniel Lambert, an MSHA
electrical inspector, testify, his testimony would be the same 
as Cisneros'.