.
CONTRACTORS SAND & GRAVEL SUPPLY, INCORPORATED
March 25, 1996
WEST 93-462-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3993/FAX 303-844-5268

                            March 25, 1996

SECRETARY OF LABOR,              :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :    Docket No. WEST 93-462-M
               Petitioner        :    A.C. No. 04-04679-05510
                                 :
          v.                     :    Montague Plant
                                 :
CONTRACTORS SAND & GRAVEL        :
  SUPPLY, INCORPORATED,          :
               Respondent        :
                                 :
                                 :
SECRETARY OF LABOR,              :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :    Docket No. WEST 94-409-M
               Petitioner        :    A.C. No. 04-04679-05514 A
                                 :
          v.                     :    Montague Plant
                                 :
ERIC SCHOONMAKER, owner & agent  :
  CONTRACTORS SAND & GRAVEL      :
  SUPPLY, INC.,                  :
               Respondent        :

                         SUMMARY DECISION

Before:  Judge Cetti

                                 I

                             Background

      Contractor's Sand and Gravel,  Incorporated,  operates  two
small portable  sand and gravel surface mining operations located
near Yreka, California.   The Scott River Plant has two employees
and produces about 10,000 to  15,000 tons annually.  The Montague
Plant has two employees and produces  about 10,000 to 15,000 tons
annually.

     Eric  Schoonmaker, the company's general  manager,  oversees
both operations.  Mr. Schoonmaker's responsibilities include, for
example, managing  the  business,  directing sales, marketing and
customer relations, organizing production, coordinating equipment
maintenance and repair, and making sure  that  the operations are
safe.  He is also the company's primary liaison  with  regulating
authorities  such  as  MSHA.   He  asserts the plant has been  in
operation for many years and passed all MSHA's electrical inspec-
tions  until the grounding citation in  question  was  issued  on
March 10, 1993, by Inspector Ann (Johnson) Frederick.

                                II

     Mr.  Schoonmaker  is  the 110(c) agent charged in Docket No.
WEST 94-409-M with the knowing  violation  of 30 C.F.R.  56.1205
at the Montague Plant.  That safety regulation 30 C.F.R.
 56.1205 reads as follows:

          All  metal  enclosing  or encasing electrical
          circuits shall be grounded  or  provided with
          equivalent protection.  This requirement does
          not apply to battery-operated equipment.

     The single citation at issue in both of  the above-captioned
dockets  charges both the operator and the manager  Eric  Schoon-
maker with  the  unwarrantable  failure to comply with the above-
quoted safety standard.  The citation reads as follows:

          The frame of the crusher  was  being  used as
          the  grounding  conductor.   The ground solid
          strand copper wire ran from a rod (found +18"
          below the surface near the van used as a con-
          trol electrical installation)  under  the van
          through  an  underground  pipe  and connected
          directly to the frame of the portable crusher
          operation.   Another  jumper  (solid   copper
          wire)  was  found  from the upper head pulley
          frame to the metal of  the  chute  where  the
          crushed  rock transferred to the stacker con-
          veyor belt.  The wires from both motors found
          on these belts was SO P123 MSHA 14/3 stamped.
          No other visible  grounds  were  found at the
          motors.   Effective equipment ground  conduc-
          tors have not  been  installed  as evidenced.
          The  electrical grounding tests performed  at
          the Montague plant and stated to on Sept. 15,
          192 (1992)  state that the grounding had been
          found to conform  to  applicable code.  Frame
          grounding has been forbidden for over fifteen
          years.  This is an unwarrantable  failure  by
          operator to comply with the standards.

     Respondents do not dispute that the paths to ground  for the
stacker motor and crusher delivery motor passed through the frame
of  the  crusher.   Respondents do, however, dispute that such  a
grounding system violates the regulatory requirement of 30 C.F.R.
 56.12025.

     Respondents' counsel  asserts  that  Petitioner has not even
established a prima facie case that the two  motors  in  question
were  not  grounded.   Respondent  contends  that at the time the
citations were issued, the two motors in question were effec-
tively grounded.  MSHA performed no test and has  no other defin-
itive evidence to show that the motors, at the time the citations
were issued, were not effectively grounded or were,  in  any way,
in  violation  of the plain, clear provisions of the cited safety
standard.

     Both parties  agree that there is no dispute as to any mate-
rial fact and that the matter is ripe for summary decision on the
single legal issue of whether Respondent's reliance on the crush-
er and stacker frames  to  serve  as  the  path to ground for the
electric current violates the provisions of 30 C.F.R.  56.12025.
The parties have cross-moved for summary decision  on this single
legal issue.

     Both parties agree that although the grounding issue is only
one issue, among many, in the nine consolidated cases  concerning
33 citations, Citation No. 3911909 is the most significant of the
citations and has generated, by far, the largest of the  proposed
penalties in these cases.  Although the parties here seek summary
decision  on  only  one of many issues in the consolidated cases,
the parties agree that the resolution of the grounding issue will
allow the remaining citations in the consolidated cases to be re-
solved by amicable settlement without need for a hearing.

                           STIPULATIONS

     In March 1996, the parties entered into the record the stip-
     ulation  that  the   record  for  summary  decision  on  the
     grounding is-sue consists of the following:

     1.  Citation No. 3911909.

     2.  All pleadings filed  with the presiding judge, including
     but  not limited to, motions,  oppositions,  and  prehearing
     state-
     ments,  to  show  the respective litigation positions of and
     repre-
     sentations made by the parties.

     3.  Respondent's Request for Admissions and MSHA's Responses
     to  Respondent's  Request   for   Admissions;   Respondent's
     Interroga-tories   and   MSHA's  Responses  to  Respondent's
     Interrogatories,          Plaintiff's         (Petitioner's)
     Interrogatories  and  Respondent's Responses to Petitioner's
     Interrogatories.

     4.  The affidavit of Eric Schoonmaker.

     5.  The declarations of Paul Price and Gordon Vincent.

     6.  The deposition  transcripts  of  Paul  Price,  Ann
     (Johnson) Frederick, Eric Schoonmaker and Frank Casci.

     7.  Article  250 of the 1993 National Electrical Code (NEC),
     to show the NEC's  definitions  of "grounded" and "grounded,
     effec-
     tively."

     8.  Article 250 of the 1993 National  Electrical Code (NEC),
     to show the electrical grounding requirements of the NEC.

     9.   Order No. 3913901, issued subsequent  to  Citation  No.
     3913895 and under contest in Docket No. WEST 93-141, to show
     that Order No. 3913901 was terminated.

     10.   Photographs  A-1,  A-2,  A-3  and  A-4 to show the
     equipment used at the Montague Plant.

     11.  August 3, 1995, letter from Paul Price to Mark Ode,
     to show that MSHA requested an interpretation of Article 250
     of the 1993 National Electrical Code from the  National Fire
     Protection Association.

     12.   August  14,  1995,  letter from Mark Ode to  Paul
     Price,  to show the National Fire  Protection  Association's
     unofficial inter-
     pretation  of  Article  250  of the 1993 National Electrical
     Code as it applies to the hypothetical  scenario  set out in
     Mr. Price's August 3, 1995, letter.

     The February 29, 1996, letter transmitting the above stipu-
lations  also states "the stipulated record contains  a  few
items that have not been previously cited by the parties and
attached to  prior  motions  or  pleadings.  These items are
being  included  to  make  the record  complete  for  appeal
purposes."

     Both parties in their pleadings  and  arguments  have stated
their  respective  cases very well.  Upon careful review  of
the  record, I am persuaded  that  the  undisputed  material
facts in this case do not establish a violation of 30 C.F.R.
 56.12025.

     The cited  standard 30 C.F.R.  56.12025 plainly and clearly
requires that "metal enclosing ... electrical circuits shall
be grounded."   The  regulation  is specific and not broadly
worded.  30 C.F.R.  56.12025 is a  "performance  standard."
It does not specify or require that the operator achieve  an
effective ground in a specific manner.

     I find that Respondent complied with the requirement of
the  cited  standard  by intentionally grounding the stacker
conveyor and crusher discharge  conveyor motors by using the
stacker and crusher frames as conductors  in carrying ground
fault  current  to  earth.   Part  56 which sets  forth  the
mandatory safety standards for surface  nonmetal mines, such
as we have here, clearly pro-
vides that "electrical grounding means to  connect  with the
ground  to  make  earth  part of the circuit."  30 C.F.R.  
56.2.   The  com-pany's  resistivity   tests   conducted  on
September  15,  1992,  pursu-ant  to  30  C.F.R.   56.12028
indicated  that  there was an effective path to ground  from
both of the motors.   Thus,  the  motors  in  question  were
connected  with  the  ground  to  make the earth part of the
circuit.  There is no contrary evidence.

     The Secretary should not be permitted through interpretation
to  expand  the regulation beyond its  plain  meaning.   The
Secre-tary's   purported   longtime  interpretation  of  the
regulation to prohibit per se frame grounding constitutes an
impermissible  expansion  of  the   plain   meaning  of  the
standard.  It constitutes an impermissible avoidance  of the
rulemaking  requirements  of  section  101  of the Mine Act.
Since   the   Secretary   purports   to   impose  additional
requirements and prohibitions without proper  rulemaking, it
lacks  the  "force and effect of law".  Western-Fuels  Utah,
Inc., 11 FMSHRC  278,  286-87 (March, 1989); see also Asarco
Inc., 14 FMSHRC 829, 835 (1992).

     If the Secretary believes frame grounding should be prohi-
bited, the Secretary should  initiate appropriate rulemaking
to achieve its goal rather than  attempting  to do so by its
interpretation  of  the  regulation beyond its plain meaning.
(See Mathies Coal Company, 5 FMSHRC 300, 303 (March 1983).

     With respect to the  application  of the reasonable, prudent
person  test,  I  find  that  a reasonable,  prudent  person
familiar with the mining industry would have recognized that
the  two motors, which were connected  to  earth  through  a
series  of metal frame and wire connections, were "grounded"
and were,  thus,  in  compliance with the requirement of the
cited  regulation.   I  base   this  on  the  definition  of
grounding at 30 C.F.R.  56.2 which specifically states that
"electrical grounding means to connect to the ground to make
the earth part of the circuit".  30 C.F.R.  56.2.

     In this connection, I also find  it  noteworthy  that in the
National   Electrical   Code,   "grounded"   is  defined  as
"connected to earth or to some conducting body  that  serves
in  place  of earth."  NEC, Article 100 (definitions) (1993)
and that "grounded effec-
tively" is defined  as  "Intentionally  connected  to  earth
through  a  ground connection or connections of sufficiently
low  impedance   and   having  sufficient  current  carrying
capacity to prevent the  buildup of voltages that may result
in undue hazards to connected equipment or to persons.  NEC,
Article 100 (definitions) (1993).

     Also noteworthy in the application of the reasonable prudent
person  test  is  the  fact  the   Secretary's   purportedly
longstanding  interpretation  has  never  been published  in
MSHA's   Program  Policy  Manual  and  furthermore,   MSHA's
purported interpretation is contrary to two  unappealed, 
well-reasoned  decisions  of  two  Commission  Judges 
who I believe to be reasonable, prudent persons
familiar  with  the mining industry.  See Mulzer Crush Stone
Company, 3 FMSHRC  1238  (May 1981) in which Judge Laurenson
rejected MSHA's contention  that  the frame was not a source
of grounding.  See also McCormick Sand Corporation, 2 FMSHRC
21,  24 in which Judge Michels rejected  MSHA's  contentions
and held  that  30  C.F.R.  56.12025 "fairly read, requires
only a "ground" or its  equivalent.   It  does not mandate a
particular  ground  such as that mentioned in  the  citation
..."  I have not been  able to find any Commission authority
contrary to these two unappealed Administrative Law Judge 
decisions.

     I conclude, primarily on the basis of the plain, clear lan-
guage of the cited regulation,  that  Citation  No.  3911909
should  be  vacated.   I  find nothing in the transcript and
declaration of Paul Price,  the  transcript of Ann (Johnson)
Frederick and the other material and arguments on which MSHA
relies  that  persuades me to a contrary  conclusion.   Such
testimony and arguments  would  be  more  appropriate  in  a
section 101 rulemaking proceeding.

                              ORDER

     Docket No. WEST 93-462-M

     Citation  No.  3911909 is VACATED and its related  $7,000.00
proposed penalty is set aside.  I retain jurisdiction of the
two remaining citations in the docket.

     Docket No. WEST 94-409-M

     Citation  No. 3911909  is  VACATED;  its  related  $6,000.00
proposed penalty is set aside.   Docket No. WEST 94-409-M is
DISMISSED.



                                 August F. Cetti
                                 Administrative Law Judge


Distribution:

Steven R.  DeSmith, Esq., 
Office of the Solicitor, 
U.S.  Department of Labor, 
71 Stevenson Street,  Suite 1110, 
San Francisco, CA 94105

C. Gregory  Ruffennach, Esq.,
RUFFENNACH LAW OFFICES,
1675 Broadway, Suite 1800, 
Denver, CO 80202

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