.
LIME MOUNTAIN COMPANY
October 21, 1998
WEST 98-55-M


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


                           October 21, 1998

SECRETARY OF LABOR,             :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :   Docket No. WEST 98-55-M
               Petitioner       :   A.C. No. 04-00099-05526
                                :
          v.                    :   Lime Mountain
                                :
LIME MOUNTAIN COMPANY,          :
               Respondent       :

                             DECISION

Appearances:  Steven R. DeSmith, Esq., Office of the Solicitor,
              U.S. Department of Labor, San Francisco, California,
              for Petitioner;
              Byron M. Ishkanian, Professional Safety Engineer,
              Santa Barbara, California, for Respondent.[1]

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 Lime Mountain
Company ("Lime Mountain"), 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
30 C.F.R.  56.15005.  The parties presented testimony and
exhibits at an evidentiary hearing.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Lime Mountain operates a limestone quarry (the "quarry") in
San Luis Obispo County, California.  On October 8, 1997, MSHA
Inspector Herbert Bilbrey was at the quarry.  As the inspector
was leaving, he looked over at the load-out facility and saw a
man on top of a pneumatic bulk trailer (the "bulk trailer")
holding a compressed air hose.  The man was using the hose to
clean off the top of the trailer.  Part of the hose was coiled
behind him on the trailer.  Inspector Bilbrey estimated that the
man was about 11 feet above the ground.  He was not using a
safety belt or line and the inspector believed that he was in
danger of falling.  Inspector Bilbrey ordered the man off the
truck and issued a combination section 104(a) citation and 107(a)
imminent danger order (the "citation") to Lime Mountain.

     Citation No. 4523948 alleges a violation of 30 C.F.R.
56.15005, as follows:

          A contract truck driver for Royal Trucking
          was observed on top of his pneumatic trailer
          using a compressed air hose to blow the top
          of his trailer off and [was] not using any
          fall protection, located at the load-out
          bins.  The company did not provide an area to
          open and close lids on top of truck where the
          contractors could do this safely....  The
          superintendent was not aware of this
          requirement....

     Inspector Bilbrey determined that the violation was of a
significant and substantial nature ("S&S") and was the result of
the mine operator's moderate negligence.  Section 56.15005
provides that "[s]afety belts and lines shall be worn when
persons work where there is a danger of falling...."  The
citation was terminated when the "contractor truck driver was
removed from the truck" and instructions were given on "the use
of the fall protection that was installed" in the area.  The
Secretary filed a petition for assessment of civil penalty for
this citation charging Lime Mountain with a violation of section
56.15005 and proposing a penalty of $240.

     A.   Fact of Violation

          1.  Summary of the Testimony

     The basic facts in this case are not in dispute.  The
load-out facility consists of about four storage bins that
are supported by a metal structure made of I-beams.
Lime from the quarry is loaded into the bins.  Various
trucking companies dispatch trucks with drivers to the
quarry to load product into the bulk trailers.  One
tractor generally pulls two bulk trailers.  Lime
Mountain does not own or operate trucks or trailers
used to transport lime to customers.  Independent
trucking companies transport the lime to customers.
The bulk trailers have rounded bodies and are loaded
from the top.  At least one hatch is located at the top
of each trailer.  Upon arrival at the quarry, the
driver of a rig proceeds to the scale house.  At the
time the citation was issued, the driver pulled up to
the load-out facility, climbed up the ladder on the
back of each trailer and opened the hatches.  He then
pulled the truck forward under the bins, went up the
adjacent stairs, and loaded material into the trailers.
After he was finished loading, he closed the hatches
and drove the rig back to the scale house.

     In this instance, the driver of the rig pulled out of
the load-out facility and parked his rig along the side of
this facility where there was a compressed air hose.
He used this hose to clean dust and dirt off the
trailers.  He was not directed to do this by Lime
Mountain, but it was not an unusual activity for a
driver to clean off his rig after loading.  (Tr. 93).

     The trailers used to transport lime from the quarry 
are standard trailers used to transport bulk material on
highways.  They are loaded from the top through
hatches, as described above, and unloaded from the
bottom.  They have ladders on the back and two
handrails along the top that are about four inches
high.  William Wahl, president of Lime Mountain,
testified that a little over a million and a half tons
of material has been shipped out of the quarry since
1984.  (Tr. 84).  He estimates that drivers have opened
hatches on top of the trailers in the manner described
above about 200,000 times since that date and he
testified that no driver has fallen from a truck or has
been injured while opening hatches during that period.
Id.

     Inspector Bilbrey testified that he issued the citation
because there was a danger that the driver could fall
off the trailer.  He was not using a safety line and
there were no handrails that would protect him from
falling.  The inspector believed that the presence of
lime dust on the top of the trailer as well as the
compressed air hose made a fall highly likely.  He
believed that an imminent danger was present because
the man was using the compressed air hose to clean off
the top of the trailer and he could have easily slipped
or tripped on the hose.  The inspector ordered the
driver off the truck as soon as he could get his
attention.

     Inspector Bilbrey also testified that the violation was
S&S. He based his S&S determination on his belief that a
fatal accident was highly likely.  He relied, in part,
on fatal accident reports that he had reviewed
involving similar circumstances.  The inspector
testified that a fall of 11 feet onto hard-packed soil
can easily be fatal.  Inspector Bilbrey determined that
Lime Mountain's negligence was moderate because the
foreman testified that the company had safety lines
available but that he was not aware that safety lines
were required for truck drivers when they were on the
tops of trailers.

     Paul Belanger, a supervisory special investigator for
MSHA, testified that falls from the top of trucks, trailers,
and rigs often result in serious or fatal injuries.  He
cited a number of examples in which drivers of trucks
were killed when they fell from the top of their rigs.
(See for example Ex. P-4).

     Lime Mountain does not dispute the basic facts described
above.  It maintains that MSHA should have cited the
independent contractor who employed the driver, that
the violation was not S&S, and that it was not
negligent.  Mr. Wahl testified that MSHA has inspected
the quarry 37 times since 1984 and never advised him or
his employees that safety lines are required when truck
drivers open hatches on trailers or when they clean the
tops of the trailers.  He stated that the load-out
facility is directly visible and any inspector would
have been able to see that safety lines were not being
used.  Mr. Wahl also testified that the truck drivers
were free to use Lime Mountain's safety lines or to
bring their own, but that Lime Mountain did not have
supervisory control over the drivers and it was not
responsible for training the drivers on safety matters.
He stated that Lime Mountain's employees do use safety
lines where there is a danger of falling.

     Based on the history at the quarry, Mr. Wahl testified
that it was unlikely that the driver would have been
seriously injured.  As stated above, drivers have
climbed onto trailers about 200,000 times at the quarry
and there have been no injuries.  He believes that the
citation should have been designated non-S&S and he
introduced a citation issued at a different quarry in
which a similar violation was designated non-S&S.  (Ex.
R-3).   He contends that MSHA's enforcement of this
standard is inconsistent.

          2.  Discussion and Analysis

     I find that the Secretary established a violation of
section 56.15005.  The driver of the rig was on top of the
trailer holding a compressed air hose.  There was a
danger of falling off the trailer.  The driver was not
using a safety line and suitable handrails were not
present.  Although Lime Mountain had not been given
specific notice that the safety standard applied to
bulk trailers, I find that MSHA has consistently
enforced the standard to require fall protection in
this and in other similar situations.  MSHA issues
citations under this standard when it becomes aware
that truck drivers are standing on the tops of bulk
trailers without adequate fall protection.

      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 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).  In this case, the
driver was in danger of falling and he was not using a
safety belt and line.

     B.   Significant and Substantial Nature of the Violation

     I also find that the Secretary established that the
violation was S&S.  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).

     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.  The Secretary is not required
to show that it is more probable than not that an injury
will result from the violation.  U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).

     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 established that an injury was
reasonably likely in this instance and that such an injury
would be of a reasonably serious nature.

     The driver was on top of a metal surface 11 feet above
the ground that was covered with lime dust in at least some
areas.  He was holding a compressed air hose and the hose
was coiled behind him.  I find that it was reasonably likely
that he would fall.  The dust created a slipping hazard and
the hose presented a tripping hazard.  In one of the
examples submitted by the Secretary, a truck driver was
blown off a trailer by a gust of wind as he was closing a
hatch.  (Tr. 58; Ex. P-8).  Thus, a driver can fall in the
absence of dust or an air hose.  The fact that no truck
driver has been injured at the quarry while on top of a
trailer does not mean that an injury would never occur if
this practice continued at the quarry.  I credit the
testimony of the Secretary's witnesses that if a driver fell
from a trailer, the injury would likely be very serious or
fatal.  The fact that a different inspector determined that
a similar violation at another mine should be designated as
non-S&S is not controlling.  There may have been mitigating
circumstances in that case that led the inspector to
determine that an injury was not reasonably likely.  
(Tr. 61-62).

     I also find that the presence of the driver on top of the
trailer in this instance created an imminent danger because
this condition "could reasonably be expected to cause death
or serious physical harm" before the condition could be
abated.  (30 U.S.C.  802(j); Blue Bayou Sand and Gravel,
Inc., 18 FMSHRC 853, 858 (June 1996)).  This condition had a
reasonable potential to cause death or serious injury within
a short period of time.  Utah Power & Light Co., 13 FMSHRC
1617, 1622 (October 1991).

     C.   Other Issues

     Lime Mountain contends that it should not be held
responsible for this violation because the independent
contractor, Royal Trucking, employed the driver and was
responsible for his unsafe actions.  Inspector Bilbrey
testified that he cited Lime Mountain rather than the
independent contractor because Lime Mountain did not provide
a place for a driver to tie off when using the compressed
air hose.  He stated that if there had been a place to
attach a lanyard at the compressed air hose, he would have
cited Royal Trucking instead of or in addition to Lime
Mountain.  (Tr. 32).  In this case he only cited Lime
Mountain because there was no place for the driver to 
attach a safety line if he wanted to tie off.

     The Commission and courts have held that under the Mine
Act's strict liability provisions, a mine operator, although
faultless itself, may be held liable for the acts of its
independent contractors.  (Extra Energy, Inc., 20 FMSHRC 1,
5 (January 1998)(citations omitted); Cyprus Indus. Minerals
Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981)).  The
Secretary has wide enforcement discretion and may proceed
against a mine operator, independent contractor, or both.
The Commission has determined that a mine operator seeking
to establish an abuse of that discretion "bears the heavy
burden of establishing that there is no evidence to support
the Secretary's decision or that the decision is based on an
improper understanding of the law."  (Extra Energy, 20
FMSHRC at 5).

     In this case I find that the evidence supports the
Secretary's decision to cite Lime Mountain.  While the
Secretary may have had the authority to cite the independent
contractor as well, its decision not to do so has no bearing
on my findings in this case.  The inspector stated that he
cited Lime Mountain because it did not provide a place for
drivers to attach a safety line at the compressed air hose.
The citation was abated when Lime Mountain attached two bars
to the structure supporting the storage bins.  One of these
bars is adjacent to the air hose.  Safety lines can now be
attached to this bar and drivers can use the compressed air
hose without a danger of falling.  They can also use the
bars to attach a safety line when they open and close the
hatches on the top of the trailers.  I hold that the
Secretary did not abuse her discretion when it cited Lime
Mountain for this violation.

     Lime Mountain also contends that its negligence was low 
in this case.  I agree.  The Secretary is under no legal
obligation to provide each mine operator with notice of the
requirements of all of her safety standards.  Nevertheless,
I credit the testimony of Mr. Wahl that the quarry has been
inspected 37 times and that it has never been cited for
violations of this standard with respect to trucks at the
load-out facility.  The load-out facility is centrally
located at the quarry and the fall protection issue should
have been obvious to MSHA inspectors.  In addition, I credit
the testimony of Mr. Wahl that Lime Mountain's employees use
safety lines where there is a danger of falling in or around
the bins at the load-out facility.  Finally, Lime Mountain
has less control over the actions of drivers employed by
independent contractors that it has over its own employees.
Lime Mountain did not direct or supervise this truck
driver's activities at the load-out facility.  Accordingly,
I find that Lime Mountain's negligence was low.

     Mr. Wahl testified that he stresses safety at Lime Mountain
and that he would never do anything to put his employees in
jeopardy.  (Tr. 88-90).  I credit his testimony in this
regard.  It must be stated, however, that quarry operators
who operate in a safe manner are issued citations by MSHA
from time to time.  The fact that Lime Mountain was issued
the subject citation does not mean that it does not
emphasize safety.  The citation simply indicates that the
conditions described in this citation presented a safety
hazard to truck drivers.

      II.  APPROPRIATE CIVIL PENALTY

     Section 110(i) of the Mine Act sets out six criteria to 
be considered in determining appropriate civil penalties. The
parties stipulated to many of the criteria.  I find that six
citations were issued at the quarry in the 24 months
preceding October 8, 1997.  The quarry worked about 15,880
man-hours per year at that time.  The violation was rapidly
abated.  The penalty assessed in this decision will not have
an adverse effect on Lime Mountain's ability to continue in
business.  The violation was S&S and it created a serious
safety hazard.  Lime Mountain's negligence was low.  I find
that a penalty of $150 is appropriate for this violation.


**FOOTNOTES**

     [1]:  I permitted Mr. Ishkanian, who is not an attorney, to
represent Lime Mountain Company at the hearing, under the
authority of 29 C.F.R.  2700.3(b)(4).


      III.  ORDER

     Accordingly, Citation No. 4523948 is AFFIRMED and Lime
Mountain Company is ORDERED TO PAY the Secretary of Labor
the sum of $150.00 within 40 days of the date of this
decision.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Steven R. DeSmith, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
71 Stevenson St., Suite 1110,
San Francisco, CA 94105-2999 
(Certified Mail)

Mr. Byron M. Ishkanian, 
1480 San Leandro Park Road,
Santa Barbara, CA 93108
(Certified Mail)

Mr. William Wahl,
Lime Mountain Company,
P.O. Box 1797,
Paso Robles, CA 93447
(Certified Mail)


RWM