.
ARCATA READIMIX
May 26, 1995
WEST 93-376-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268


                             May 26, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 93-376-M
                Petitioner      :  A.C. No. 04-02710-05509 :
                                :
          v.                    :  Docket No. WEST 93-380-M
                                :  A.C. No. 04-02710-05510
ARCATA READIMIX,                :
                Respondent      :  Arcata Pit & Mill

                               DECISION

Appearances:  Jeanne M. Colby, Esq., Office of the ,
              SolicitorU.S. Department of Labor, San Francisco,
              California, for Petitioner; William J. O'Neill,
              President, Arcata Readimix, Arcata, California,
              for Respondent.

Before:  Judge Manning

     These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Arcata
Readimix ("Arcata"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815 and
820.  The petitions allege six violations of the Secretary's
safety standards.  For the reasons set forth below, I affirm the
citations and assess civil penalties in the amount of $170.00.

     A hearing was held in these cases before Administrative Law
Judge John J. Morris, in Eureka, California.  The parties pre-
sented testimony and documentary evidence, but waived post-hear-
ing briefs.  These cases were reassigned to me on April 25, 1995,
for an appropriate resolution.

     I.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.  Preliminary Matters

     The Arcata Pit & Mill is a small, sand and gravel pit in
Humboldt County, California.  The citations that are the
subject of these proceedings were issued at Arcata's
crushing and screening plant (the "plant") by MSHA Inspector
Dennis Harsh on February 2 and 3, 1993.

     Arcata maintains that its plant was shut down for the
winter at the time of the inspection.  Lawrence Frank, a former
supervisor at the plant, testified that the main power
center for the plant was at a "remote shack" that was
locked, and that only three people had a key to this shack:
William O'Neill, the president, Jim O'Neill, the president's
brother, and Mr. Frank.  (Tr. 38-39, 47-48; Ex. R-2).  He
further stated that a lock or a lockout sign was on the
electrical switch box inside the shack.  Id.  He further
testified that the plant was "in a state of semi-
disassembly."  (Tr. 40).  Mr. Frank stated that during the
shut-down, equipment at the plant was being taken apart and
serviced with the guards removed, "so when things pick up in
the spring, we don't have to deal with that."  (Tr. 41).  He
stated that the plant had not been in production since about
December 1992.  (Tr. 42-43).  This testimony was supported
by the testimony of William O'Neill.  (Tr. 53).  Mr. O'Neill
stated that the plant was shut down and that he thought
everyone knew that it was shut down, including Inspector
Harsh.  (Tr. 53-55).  He testified that all of the
conditions observed by the inspector would have been
corrected before the plant was put into operation in the
spring.  (Tr. 53-55; 70-71).  On that basis, Arcata argues
that the citations should be vacated.

     Inspector Harsh testified that, although the plant was
not operating at the time of the inspection, he believed that
the shutdown was only temporary.  He testified that he was
told by Arcata employees that the "plant was down for
repairs, clean-up, and [a shaker] screen change."  (Tr. 23).
Inspector Harsh testified that these types of repairs are
frequently made at crushing and screening plants.  (Tr. 65-
66).  He believed that "it was just a temporary shutdown for
these things which are necessary from time to time."  Id.
In addition, he stated that no Arcata employee advised him,
at the time of the inspection or during the close-out
conference, that the plant was shut down for the win- ter.
(Tr. 28, 65-66).  It was his understanding that the "plant
would be restarted or stopped as product was needed at any
time."  (Tr. 66).  Inspector Harsh also did not see any
evidence that Arcata was performing a major renovation of
the plant or that any equipment was being dismantled or torn
apart for service.  (Tr. 63-64).  Finally, he testified that
the power had not been disconnected from the plant and
that all that was required to start the plant was to "throw"
a few switches.  (Tr. 64).

     I credit the testimony of Inspector Harsh.  I believe
that if the plant was totally shut down for the entire winter,
someone from Arcata would have advised Inspector Harsh of
that fact during his inspection or the close-out conference.
Mr. O'Neill testified that he saw Inspector Harsh "writing for
two hours" immediately following the inspection, but that he
did not "anticipate any type of problem [because] we were
shut down."  (Tr. 56-57).  Arcata's witnesses did not offer
any explanation as to why the inspector was not notified of
the shutdown except that "everybody" knew about it and the
plant was "pretty quiet."  Id.  Upon receiving the citations,
one would expect a mine operator to say to the issuing
inspector, "Wait a minute, you shouldn't issue us any
citations because we are shut down for the winter and are
servicing our equipment."

     Apparently, this issue was not raised by Arcata until
it filed its answer in these proceedings.  As stated above,
Inspector Harsh testified that he did not see any evidence
that the plant was on a long-term shutdown or that equipment
was being torn apart and repaired.  He stated that he would
not issue citations on equipment that was torn apart.
(Tr. 63).

     Inspector Harsh testified that the plant could have been
started by throwing a few electrical switches.  Mr. O'Neill
did not seriously dispute that testimony.  (Tr. 57-58).
Thus, even if one assumes that the plant had not been
operating for some time, it could have been restarted very
quickly if more product was needed.  In addition, equipment
could have been operated for testing purposes during the
repair process and Arcata's employees could have been
exposed to the conditions cited by the inspector.  Thus, I
conclude that the citations issued by Inspector Harsh should
not be vacated on the basis that the plant was shut down or
that the conditions cited would have been corrected before
the plant was placed in production.

B.  Docket No. WEST 93-376-M

     1.  Citation No. 3913936 alleges that a bare electrical
conductor was within two inches of a metal start/stop switch in
the shaker power room.  The citation states that the power
cable had been pulled from the fitting in the bottom of the
switch, exposing the electrical conductors.  Bare wire was
exposed in one 220-volt conductor.  The safety standard
cited, 30 C.F.R.  56.12030, provides that, "when a
potentially dangerous condition is found it shall be
corrected before equipment or wiring is energized."

     There is no dispute that the conditions observed by the
inspector existed.  Inspector Harsh estimated that someone
enters the shaker power room to turn on or off the switch
about twice a day.  (Tr. 19-20).  He said that the condition
created a shock and electrocution hazard because the bare
wire was about two inches from the switch.  (Tr. 20-21)  He
determined that it was reasonably likely that someone would
contact the exposed wire and suffer a severe shock or burns.
Id.  He further stated that the Arcata employee who
accompanied him on the inspection, Earl Norris, indicated
that the bare wire could seriously hurt someone.[1]  (Tr.
18-19, 22).

     Mr. Frank testified that he pulled on electrical cables pe-
riodically to determine if they are firmly attached.  (Tr.
39).  He believes that he exposed the wire when performing
this test at the cited location.  (Tr. 39-40).  He further
testified that he made a notation to have it repaired before
the plant resumed operation.  Id.

     Based on the record as a whole, I find that the Secretary
established a violation of the safety standard.  I also find
that the violation was of a significant and substantial
nature ("S&S") because there was a reasonable likelihood
that the hazard con-tributed to would result in an injury of
a reasonably serious nature.  Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1994).  I find that the violation was serious.

     2.  Citation No. 3913937 alleges that the cover for the
splice box on top of the cone crusher feed belt was loose
and dislodged, exposing the electrical conductors to weather
con-ditions and mechanical damage.  The conductors were not
damaged.  The safety standard cited, 30 C.F.R.  56.12032,
provides that "inspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all
times except during testing or repairs."

     There is no dispute that the conditions observed by the
inspector existed.  The inspector testified that "the cover
had worked its way loose and was hanging there by one screw
with the box wide open, exposing the inner conductors ... to
any kind of adverse weather condition."  (Tr. 14-15).  Mr.
Frank testified that, more than likely, the cover had been
removed intentionally during the shutdown when equipment was
being repaired, and that the cover is always in place during
operation.  (Tr. 39-40).

     Based on this evidence, I find that the Secretary
established a violation of the safety standard.  There was no
evidence that the cover was off because the subject
equipment was being repaired or tested.  I agree with the
inspector that the violation was not S&S.  The conductors
and the splice were not damaged.  In addition, there was no
evidence that miners were likely to be in the immediate area
or that the metal splice box would become energized as a
result of the violation.  Accord-ingly, I find that the
violation was not serious.

     3.  Citation No. 3913939 alleges that there was no guard
covering the pinch point on the smooth tail pulley of the
cone-crusher feed belt.  It alleges that the exposed pinch
point was adjacent to the screen portion of the walkway,
about 16 inches above the walkway and about two feet from
the inside edge of the walkway.  The citation states that
the pulley was in a remote area of the plant, but was still
readily accessible.  The safety standard cited, 30 C.F.R. 
56.14107, provides, in pertinent part, that "moving machine
parts shall be guarded to protect persons from contacting
... drive, head, and takeup pulleys ... and similar moving
parts that can cause injury."

     There is no dispute that the conditions observed by the
inspector existed.  Mr. O'Neill stated that the guards were
off so that the area could be cleaned out and the bearings
underneath the pulley checked.  (Tr. 30-31).  Mr. Frank
testified that shaker screens were being repaired and that
welders from a con- tractor were coming to repair supports
for the shaker screens underneath the shaker plant.  (Tr.
40).  He further stated that aggregate had accumulated under
the plant and the guards were removed to clear the area out.
(Tr. 40-41).  He testified that during the shutdown, all of
the bearings were inspected and pul- leys were pulled apart
as part of Arcata's preventive mainte-nance program.  Id.
He testified that everything would have been replaced,
including the guards, when "things pick[ed] up in the
spring."  (Tr. 41).

     Based on the record as a whole, I find that the Secretary
established a violation of the safety standard.  As stated
above, Inspector Harsh did not see any evidence that the
equipment he inspected was in the process of being repaired
or "pulled apart."  There is no dispute that the pinch point
was not guarded.  It could have been operated during the
repair process without the guard.  I agree with the
inspector that the violation was not S&S.  The parties
concede that the pinch point was in a remote area of the
plant.  I find that the violation was not serious.

B.  Docket No. WEST 93-380-M

1.  Citation No. 3913935 alleges that the fire extinguisher
for the crushing plant had not had the required yearly
maintenance check since December 1991.  The citation also
states that the extinguisher appeared to be operational and
fully charged.  The safety standard cited, 30 C.F.R. 
56.4201(a)(2), provides, in pertinent part, that "at least
once every twelve months, maintenance checks shall be made
of [each fire extinguisher] to determine that the fire
extinguisher will operate effectively."

     There is no dispute that the maintenance check had not been
made.  Inspector Harsh testified that the inspection tag on
the extinguisher had not been initialed during the previous
12 months.  (Tr. 16-17).  He further stated that the
extinguisher appeared to be operational and fully charged.
Id.  Mr. Frank testified that Arcata had a contract with a
fire extinguisher service company to conduct the annual
inspection but that it had not been inspected because the
son of the contractor had recently died.  (Tr. 37-38).  He
further stated that the inspection was only two months
overdue and that Arcata has entered into a new service
contract with another company.  Id.

     Based on this evidence, I find that the Secretary estab-
lished a violation of the safety standard.  The Mine Act is
a strict liability statute and a mine operator is legally
responsible for any violation that occurs at its mine.  I
agree with the inspector that the violation was not S&S.
Since it appears that the extinguisher was in working
condition, the violation was technical in nature and was not
serious.

     2.  Citation No. 3913938 alleges that there was no guard
covering the spoke-type pulley and drive belt of the No. 4
conveyor belt.  It alleges that the exposed pinch point was
about 64 inches above and adjacent to the wooden walkway on
the west side of the shaker screen.  The citation states
that the amount of exposure could not be established, but
that the pulley was accessible.  The safety standard cited,
30 C.F.R.  56.14107, provides, in pertinent part, that
"moving machine parts shall be guarded to protect persons
from contacting ... drive, head, and takeup pulleys ... and
similar moving parts that can cause injury."

     There is no dispute that the conditions observed by the in-
spector existed.  Inspector Harsh testified that he observed
an unguarded V-belt pulley within reach of and no more than
seven feet above a walkway.  (Tr. 11).  He stated that an
injury was unlikely because the pinch point was about 64
inches above the walkway.  Id.  Mr. Frank testified that
during the shutdown, all of the bearings were inspected and
pulleys were pulled apart as part of Arcata's preventive
maintenance program.  (Tr. 40).  He testified that
everything would have been replaced, including the guards,
when "things pick[ed] up in the spring."  (Tr. 41).

     Based on the record as a whole, I find that the Secretary
established a violation of the safety standard.  As stated
above, Inspector Harsh did not see any evidence that the
equipment he inspected was in the process of being repaired
or "pulled apart."  There is no dispute that the pinch point
was not guarded.  It could have been operated during the
repair process without the guard.  I agree with the
inspector that the violation was not S&S.  Given the height
of the pinch point and the fact the inspector could not
establish the amount of the exposure, I find that the
violation was not serious.

     3.  Citation No. 3913940 alleges that continuity and
resistance testing of the electrical grounding system had not
been conducted since September 1991.  The citation also
stated that the weather in the area is highly corrosive to
metal and that corrosion is one of the factors that can
render the electrical grounding system ineffective.  The
safety standard cited, 30 C.F.R.  56.12028, provides, in
pertinent part, that "continuity and resistance of grounding
systems shall be tested immediately after installation ...
and annually thereafter."  A record of the tests is required
to be kept.

     There is no dispute that the required test had not been
made.  Inspector Harsh testified that when he uncovered a
portion of the grounding electrode, it showed signs of heavy
corrosion.  (Tr. 25).  Although the inspector marked the
citation as S&S, he stated at the hearing that it should not
be considered S&S because he did not perform a test to see
if the integrity of the grounding system had been
compromised by the corrosion.  (Tr. 26, see also 7).  Mr.
Frank testified that Arcata must depend upon its contractor
to conduct the inspections on an annual basis.  (Tr. 41).
Because the contractor was four months late in conducting
the inspection, Arcata changed contractors.  Id.

     Based on this evidence, I find that the Secretary estab-
lished a violation of the safety standard.  The Mine Act is
a strict liability statute and a mine operator is legally
re-sponsible for any violation that occurs at its mine.  I
agree that the violation was not S&S.  The violation was
serious because, without conducting the test, Arcata did
not know if its grounding system would protect its
employees.

II.  Civil Penalty Assessments

     Section 110(i) of the Mine Act, 30 U.S.C.  820(i), sets out
six criteria to be considered in determining the appropriate
civil penalty.  I find that Arcata was issued four citations
in the 24 months preceding the inspection in this case.
(Tr. 6).

     I also find that Arcata is a small operator, employing
about 23 people, with about 19,350 man-hours worked over the
previous year.  (Tr. 6, 44).  I also find that the civil
penalties assessed in this decision would not affect
Arcata's ability to continue in business.  The conditions
cited by the inspector were all timely abated.  I find that
Arcata is concerned about the safety of its miners and made
good faith efforts to comply with MSHA's safety standards.

     I also find that Arcata's negligence was very low with
respect to each violation.  As stated above, the Mine Act is a
strict liability statute.  Asarco, Inc. v. FMSHRC, 868 F.2d
1195 (10th Cir. 1989).  A citation issued by MSHA for a
violation of a safety standard must be affirmed if the facts
show that the  standard was violated, even if the mine
operator was not negligent.  The degree of the mine
operator's negligence, however, is an important factor in
determining the civil penalty.  I find that Arcata was only
slightly negligent with respect to the violations
discussed above because its managers believed, in good
faith, that these conditions did not need to be corrected
until it resumed production and there is no evidence that
these conditions existed while the plant was operating, even
for testing purposes.

     Based on the criteria in section 110(i) of the Mine Act,
30 U.S.C.  820(i), I assess the following civil penalties, as
discussed above:

                                              Assessed
Citation Nos.           30 C.F.R.            Penalty

3913936                 56.12030                $60.00
3913937                 56.12032                 20.00
3913939                 56.14107                 20.00
3913935                 56.4201(a)(2)            10.00
3913938                 56.14107                 20.00
3913940                 56.12028                 40.00

   Total Penalty                               $170.00

                             III.  ORDER

     Accordingly, the citations listed above are AFFIRMED, and
Arcata Readimix is ORDERED TO PAY the Secretary of Labor the
sum of $170.00 within 30 days of the date of this decision.


                                    Richard W. Manning
                                    Administrative Law Judge


Distribution:

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105-2999 (Certified Mail)

William J. O'Neill, President, ARCATA READIMIX, P.O. Box 4657,
Arcata, CA 95521 (Certified Mail)

/rwm

**FOOTNOTES**

        Arcata contends that Mr. Norris, a loader operator, was
not authorized to be its walk around representative during the
inspection.  William O'Neill, Mr. Frank and Jim O'Neill were
not available at the time of the inspection.  Apparently, Mr.
Norris accompanied the inspector because nobody else was
available.  This issue is not relevant and I have based my
decision on the testimony of the witnesses, not statements made
by Mr. Norris to Inspector Harsh.