<DOC>
[DOCID: f:c95-265.wais]

 
LEO JOURNAGAN CONSTRUCTION COMPANY, INC.
June 7, 1996
CENT 95-265-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           June 7, 1996

SECRETARY OF LABOR,            :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :   Docket No. CENT 95-265-M
               Petitioner      :   A.C. No. 23-02068-05509
                               :
          v.                   :
                               :   Journagan Portable #12 MO
LEO JOURNAGAN CONSTRUCTION     :
  COMPANY, INC.,               :
               Respondent      :
                               :
                               :
SECRETARY OF LABOR,            :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :   Docket No. CENT 96-53-M
               Petitioner      :   A.C. No. 23-02068-05510-A
                               :
          v.                   :
                               :   Journagan Portable #12 MO
JAMES M. RAY, Employed by      :
  LEO JOURNAGAN CONSTRUCTION   :
  COMPANY, INC.,               :
               Respondent      :

                            DECISION

Appearances:  Margaret A. Miller, Esq., Office of
              the Solicitor, U.S. Department of Labor,
              Denver, Colorado, for Petitioner;
              Bradley S. Hiles, Esq., Peper, Martin, Jensen,
              Maichel & Hetlage, St. Louis, Missouri, for
              Respondents.

Before:  Judge Amchan

                        Findings of Fact

         Respondents' failure to deenergize the crusher

     On March 28, 1995, MSHA representative
Michael W. Marler conducted an inspection of
Leo Journagan Construction Company's portable
crusher No. 12 in southwestern Missouri.
While Marler was at the site, rocks became stuck
in the crusher.  Marler and Journagan's
superintendent, James "Mike" Ray, drove to the top
of a hill, just above the crusher (Tr. 247-48)[1].
When the inspector approached the crusher, he
observed Journagan employee Steve Catron trying to
unjam the rocks so that the crusher could operate
again (Tr. 31-32).

     Catron was straddling the crusher with his feet
resting on metal plates located two inches above the
jaws of the crusher.  He was wearing a safety belt
with a lifeline that was tied to a catwalk railing
above him.  Catron was using a five to six foot long
metal bar to dislodge the rocks in the crusher
(Tr. 32-33, 162-66, 187-88, 234, 294).  The
crusher was approximately six feet four inches in depth
(Tr. 294).  The jammed rocks extended up two feet from
the bottom of the crusher (Tr. 296).

     Although the crusher was not on, the electrical
power to the crusher was not shut off and locked out.
Earlier,when Catron and the crusher operator, Keith
Garoutte, began to unjam the crusher they turned
off the crusher controls and locked out the  power
at the generator trailer.  However, to determine
whether the crusher would work, Garoutte restored
power to crusher
(Tr. 182-83).

     After the power was restored, Catron tried
to move the rocks and then moved back from the
crusher jaws.  Garoutte watched him from a vantage
point uphill at the doorway of the shed containing
the crusher controls (Tr. 162-66, Exh. R-5).  When
Catron moved back from the jaws of the crusher,
he would detach his safety belt from the catwalk
railing and step up on the grizzly,[2] which was
located on the opposite side of the crusher jaws
from the catwalk.  He would then reattach his safety
belt to a point above


**FOOTNOTES**

     [1]: I credit Mr. Ray's testimony that he went to the
crusher with the inspector, over Inspector Marler's testimony
that Ray was at the crusher when he arrived (Tr. 96).  I conclude
that Ray would have a better recollection of his activities on
the day in question.

     [2]: The grizzly is a flat metal plate with openings to
separate smaller rock from larger rock (Tr. 187, Exh. R-5).
The grizzly was about 1-1/2 feet above the metal plate on which
Mr. Catron was standing (Tr. 295).
and behind him.  Catron then signaled or told
Garoutte to start the crusher (Tr. 192-195, 203,
225, 233-34).  Garoutte entered the control shed
and turned on the crusher.

Inspector Marler issued Respondent Citation/Order
No. 4329462 alleging that the failure to lock out the power
to the crusher posed an imminent danger under section 107(a)
of the Act, and a "significant and substantial" (S&S)
violation of section 104(a) of the Act and 30 C.F.R.
56.12016.  This regulation states:

Electrically powered equipment shall be deenergized
before mechanical work is done on such equipment.
Power switches shall be locked out or other measures
taken which shall prevent the equipment from being
energized without the knowledge of the individuals
working on it ... .

     A $4,000 civil penalty was proposed by MSHA against
Journagan and a $1,500 penalty against Mike Ray, pursuant to
section 110(c) of the Act.

     Although Ray may not have seen Catron straddling the crusher
until Inspector Marler saw Catron, Journagan had tried before to
dislodge rocks from the crusher with the machine energized
(Tr. 169).  Catron had dislodged rocks under these conditions
even before Ray became his supervisor (Tr. 170).  This was
apparently a standard practice of Leo Journagan Construction
Company.  Ray had seen Catron try to dislodge rocks from the
crusher with the machine energized 8 months earlier--in the
presence of another MSHA inspector (Tr. 266-68).

     Superintendent Ray disagreed with Marler that the failure to
deenergize the crusher posed a hazard to Catron or that it  vio -
 lated  the standard, because Catron was tied off with a safety
belt (Tr. 97-99).  However, he immediately went to the generator
trailer and deenergized the crusher.

      Miners working beneath rocks in the crusher's hopper

     After Mr. Ray shut off the power to the crusher, he and
Inspector Marler climbed up onto the catwalk just below the
crusher.  When they reached the catwalk they observed miners
Catron and Garoutte inside the crusher removing rocks from the
machine.  Above the miners, the crusher's hopper was 3/4 full
with slightly more than a truckload of rock sitting at an angle
of 35 degrees to the horizontal (Tr. 207-08, 281).[3]  The rocks,
which extended to within a foot of the miners, ranged in size
from dust-like particles to stones two inches in diameter
(Tr. 55-56, 195).

     There was no physical barrier between the rocks and the
crusher.  Inspector Marler advised Ray that he considered this
situation to pose an imminent danger to Catron and Garoutte due
to the likelihood that the rocks would slide into the crusher on
top of them (Tr. 63-66).  Ray argued that the rock pile in the
hopper was stable.  However, he immediately complied with the
order and welded a piece of steel to the end of the grizzly in
order to prevent rocks from sliding into the crusher.

     Later Marler committed the imminent danger order to writing
as Citation/Order No. 4329463.  It alleged a violation of
30 C.F.R.  56.16002(a).  That standard provides:

     Bins, hoppers, silos, tanks, and surge piles, where
     loose unconsolidated materials are stored, handled
     or transferred shall be-

          (1) Equipped with mechanical devices or other
          effective means of handling materials so that
          during normal operations persons are not
          required to enter or work where they are
          exposed to entrapment by the caving or
          sliding of materials ...


**FOOTNOTES**

     [3]:I have credited Mr. Ray's estimation of the slope over
that of Mr. Catron's 25-26 degrees (Tr. 212).  Although Catron
was in a better position to observe the slope of the rocks, Mr.
Ray appears to have superior ability by virtue of his education
and training to estimate the angle at which the rocks lay.  Mr.
Marler did not measure the slope (Tr. 108).
The quantity of rock in the feeder was estimated by Keith
Garoutte to be approximately 25-30 tons (Tr. 340).
The citation was characterized as "S&S" and a $4,500
penalty was proposed against Leo Journagan Construction
Company.  Additionally, a $1,500 penalty was proposed
against Mr. Ray pursuant to section 110(c) of the Act.

Although Ray did not order Catron and Garoutte into the
crusher he knew they would climb down into the machine (Tr.
287).  It was not uncommon for Journagan employees to remove
rocks from a crusher with rocks overhead and it was not the
company practice to install a barrier between the miners and
the rocks in the hopper (Tr. 345).

       Respondent Journagan violated the Act in failing to
       deenergize  the crusher before allowing an employee
                        to work above it.

Respondents' first argument is that section 56.12016 is
inapplicable to this case because its employees were not
per-forming "mechanical work" within the meaning of the
standard (Tr. 269).  It further contends that the standard
only applies to situations in which miners are exposed to a
hazard of electrocution or electrical shock.

I conclude that the term "mechanical work" must be construed
broadly in a manner consistent with the purposes of the
statute.  Therefore, I find that it includes any work that
enables  electri -  cally -powered equipment to operate in
the manner in which it is intended to operate.

Loosening jammed rocks so that the crusher jaw will move is
"mechanical work."  To conclude otherwise would suggest
that, even if Mr. Catron had not been protected by a safety
belt and even if the controls to the crusher been left
unprotected, no violation of the regulation would have
occurred.

Respondent, relying on the decision in Phelps Dodge
Corporation v. FMSHRC, 681 F. 2d 1189 (9th Cir. 1982),
argues that section 56.12016 cannot be cited in situations
where the only hazard is danger of being injured by moving
machinery.  This decision was followed by a Commission judge
in Arkhola Sand & Gravel, Inc., 17 FMSHRC 593 (ALJ April
1995).

The Ninth Circuit found that  56.12016 (then numbered
55.12-16) did not address hazards arising from the
accidental movement of machinery because it appears in a
subpart entitled "Electricity" and because the other
regulations in that subpart address only the hazard of
electrical shock.  I decline to follow Phelps Dodge, a
decision to which the Commission has never acceded[4].

The dissenting opinion of Circuit Judge Boochever, 681
 F.2d  at 1193, is far more compelling.  He found that the
plain language of the standard was clear and unambiguous and
saw no reason to qualify its application on account of the
title of the subpart in which the regulation was placed.  I
also agree with the dissent that the Commission should defer
to an agency  inter-pretation  of the standard which appears
to better effectuate the purposes of the  Act,  than one
limiting its reach to situations in which there is a danger
of electrical shock.

The fact that miner Catron was tied off at almost all times
when he was above the energized crusher is not relevant to
the issue of whether the standard was violated.  Section
56.12016 requires that electrically powered equipment be
deenergized before mechanical work is done--regardless of
what other  pre-cautions  are  taken,  to protect employees
working on the equipment or to prevent reenergizing of the
machinery, Ozark -Mahoning Company, 12 FMSHRC 376, 379
(March 1990).   Thus,  I find  that
Leo  Journagan violated the cited regulation.

The violation was not significant and substantial

The Commission test for a  "S&S"   violation, as  set
forth in Mathies Coal Co., supra, is as follows:


**FOOTNOTES**

     [4]: In Ozark-Mahoning  Company, 12 FMSHRC 376 (March 1990),
the Commission affirmed a citation issued under 56.12016 in a
situation in which miners were exposed to the danger of moving
machinery, rather than electrical shock.  In that case, it does
not appear that the operator argued that the standard applies
only to electrical hazards or made the Commission aware of the
Court of Appeals decision in Phelps Dodge.

      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.

     I conclude that there was not a reasonable likelihood that
     the hazard contributed to by Journagan's violation would
     result in injury.  Miner Catron was tied off to a catwalk
     railing above him while trying to pry the jammed rocks
     loose.  Moreover, the crusher controls were turned off while
     he was working.  Operator Keith Garoutte was standing at the
     doorway of the control shed watching Catron.  This makes it
     unlikely that anyone else would activate the crusher while
     Catron was standing over it.

      While tied  off,  Catron could only fall  1-  to 2  feet
     (Tr.  81-82, 190, 254).  If Catron fell this distance he
     could not have gotten caught between the jaws of the
     crusher, one of which moves and one of which is stationary
     (Tr.  84).   His feet could possibly have brushed the
     movable jaw (Tr. 190, 254).

     Even if the miner's feet touched the moveable jaw, it is
     unlikely that he would be hurt--even if the jaw moved.   The
     jaw moves much further at the bottom of the crusher than at
     the top.  At the top of the crusher the jaw moves only about
     an  inch
     (Tr.  254-55).  The jaw also takes a few seconds to move
     once it is activated (Tr. 264).

     Catron did unhook his safety belt when he stepped up to the
     grizzly and it is possible that he could have fallen while
     switching positions.  It is also possible that the crusher
     could have been activated at such a moment due to
     misunderstandings with Garoutte or due to an electrical
     fault.  However, I conclude that such possibilities do not
     make injury reasonably likely.

       Superintendent Ray is not subject to civil  penalty
                under  section 110(c) of the Act

     Section 110(c) of the Mine Act provides that, whenever a
     corporate operator violates a mandatory safety or health
     standard, any agent of the operator who "knowingly
     authorized, ordered, or carried out such violation" shall be
     subject to civil penalty.  The Commission has held that a
     violation under section 110(c) involves aggravated conduct,
     not ordinary negligence, Wyoming Fuel Co., 16 FMSHRC 1618,
     1630 (August 1994).

     While Mr. Ray clearly had reason to know that his employees
     would be working on the crusher without it being
     deenergized, I conclude that his conduct was not aggravated.
     The procedure employed by miners on the day of the
     inspection and implicitly condoned by superintendent Ray was
     Journagan's normal procedure (Tr. 169-170).  It was not a
     practice initiated by Ray (Tr. 170).

     More importantly, I find that Ray had a reasonable good
     faith belief that miners were adequately protected by
     wearing a safety belt that was tied off above them.  Mr.
     Catron was tied off for all but a very brief period, during
     which it was very unlikely he would fall and that the jaw of
     the crusher would move.  I therefore vacate the penalty
     proposed under section 110(c) with regards to  Citation
      No. 4329462.

        A $500 Civil Penalty is Assessed against Leo Journagan
         Construction Company for its violation of 56.12016

     Section  110(i)  requires consideration of the  following
     six  criteria in assessing a civil penalty under the Act:

     Size of the operator:  Leo Journagan is a relatively small
     mine operator.  Other things being  equal,  this would
     support a smaller penalty than for a large  operator.

     Effect  on the operator's ability to stay in business:  The
     parties stipulated that the proposed penalties would not
     compro-mise  Journagan's ability to continue in business
     (Tr.  11).

     Good  Faith demonstrated in rapidly abating the
     citation:   The civil penalty should account for the fact
     that superintendent Ray immediately deenergized the crusher
     when informed of the violation by inspector  Marler.

      Previous  History of Violations:  The Secretary introduced,
     as it does in every civil penalty case, a computer printout
     purporting to show the number of penalties assessed against
     Respondent and those paid (Exh. P-1).  This document
     indicates that between March 28,  1993  and March 27, 1995,
     Journagan paid $4,124.00 in civil penalties for 23
     violations.  One of these penalties was assessed for a
     citation which alleged a violation of section 56.12016 for
     failure to lock out a conveyor  belt
     (Tr.  171-72, 302).

     Exhibit P-1 is of no value to me in assessing a civil
     penalty.  I do not know whether Respondent has more
     violations than one would reasonably expect for an operator
     its size, less violations or about the same number.  There
     has been no  suggestion  made as to how the information in
     this summary is relevant to assessing a penalty in the
     instant case.

     However, I conclude the prior violation for failure to lock
     out the conveyor is relevant.  A somewhat higher penalty
     should be assessed on account of this citation.

      Negligence:  Respondent was negligent in  allowing miners
     to work over the crusher when it was not deenergized and
     locked out.  However, its negligence was "moderate" given
     the effective  pre-cautions  it did take to prevent injury.
     Furthermore, Respondent was apparently under the impression
     from a prior MSHA inspection that its' procedure complied
     with the Act (Tr. 201-02, 266-68).

      Gravity:  Given the fact that Mr. Catron was tied  off,
     except when moving from the crusher to the grizzly, injury
     was very unlikely to occur.  However, it was possible  and,
     if it  occurred,  an injury was likely to be very serious,
     or fatal.  First, there was a chance that Mr. Catron could
     fall or enter the crusher and that Mr. Garoutte could
     activate it due to miscommunication.  The facts of my recent
     decision in Stillwater Mining  Company,
     18  FMSHRC 34, 35-36 (ALJ 1996) present just such a
     situation.   In  Stillwater,  a miner misunderstood the
     instructions of his partner and closed a chute gate on him,
     fracturing his pelvis.

     Another case indicating the seriousness of the hazard
     presented by the instant violation is Price Construction,
     Inc., 7 FMSHRC 661 (ALJ Melick 1985).  There, the failure to
     lock-out the power to the rollers of a crushing machine, and
     miscommuni-cation  between miners resulted in the traumatic
     amputation  of the  legs of an experienced miner.

     The Secretary has also alleged that the violation created a
     danger that Mr. Catron would be injured by the bar he was
     using to pry the rocks in the crusher.  Inspector Marler
     contends that if the crusher  started,  the bar could snap
     or that Catron could have fallen on the bar and been
     impaled.  I am not persuaded that such a hazard existed.

     Assessment:  Having considering the penalty criteria in
     section 110(i), I assess a $500 civil penalty for this
     violation.

         The Secretary has not established a  violation
                     of  section 56.16002(a)

     In order to establish a violation of    56.16002(a) the
     Secretary must establish that miners Catron and Garoutte
     were "exposed to entrapment by the caving or sliding of
     materials
     ... ."   I conclude that the Secretary has failed to do so.
     The  fact that the miners were working downhill from a
     hopper filled with 25-30 tons of rock does not establish
     that the material might cave-in or slide on top of them.

     Materials tend to move until they obtain a slope at which
     they will stop moving, sometimes referred to as the "angle
     of repose." The Secretary has not established that the rocks
     in the  hopper had not reached the angle of repose.  In fact,
     Respondent's evidence tends to prove that the rocks would
     not slide.

     Inspector Marler did not measure the angle at which the
     rocks lay in the hopper (Tr. 108).  I have credited Mr.
     Ray's testimony that the rocks were at an angle of about 35
     degrees from the horizontal, which is generally regarded a
     relatively flat slope [5] .  I also credit Ray's testimony
     that prior to  the time  that the miners entered the crusher,
     the action of the feeder to the hopper had flattened the angle
     to one at which the rocks would not move further (Tr. 273-
     281).

       I further note that 35 degrees is one degree steeper than
     the slope required by OSHA to protect workers in excavations
     dug  in the least stable type of soil, 29 C.F.R. Section
     1926.652(b)(1), and Table B-1.  This indicates that a slope
     of 35 degrees would generally not expose employees to
     entrapment by caving or sliding.

     The rocks in the hopper extended to within a foot or two of
     the crusher (Tr. 61, 195, 220).   When  removing rocks from
     the crusher, Catron and Garoutte threw the smaller stones on
     the pile in the hopper and stacked the larger rocks (Tr.
     340-41).   How-ever,  I find the record insufficient to
     establish that whatever alterations this made in the slope
     of the rocks created a hazard to the miners.

     It was not Respondent's general practice to install a
     barrier between rocks in a hopper and miners working to
     unjam a crusher (Tr. 345).  It is unclear from this record
     what  the  general industry practice  is with  regard to
     barricading rocks
     in  a hopper which has already flattened the slope of the
     rocks.

     If the record established that industry practice was to
     barricade the rocks in the hopper in a situation like the
     instant one, I would be likely to find that Respondent
     violated section 56.16002(a).  Such evidence would indicate
     that a reasonably prudent mine operator would recognize a
     danger from sliding or caving materials, see Ideal Cement
     Co., 12 FMSHRC 2409 (November 1990).  However, on the
     instant  record,  I am unable to draw such an inference and
     conclude that a violation of this standard has not been
     established.


**FOOTNOTES**

  Although  photographic  exhibits  P-2 and P-3 indicate that the
rocks in the hopper were at a fairly steep angle, it has not been
established that these photos accurately  depict the slope of the
rocks (Tr. 108, 229-231, 283).
       ORDER

     Citation  No. 4329462  is AFFIRMED as a  non-S&S  violation
     of the Act.  A $500 civil penalty is assessed against Leo
     Journagan Construction Company for this violation.

     The penalty proposed for James Michael Ray under section
     110(c) of the Act on account of  Citation   No. 4329462  is
     VACATED.

     Citation  No. 4329463  and the penalties proposed therefor
     against Leo Journagan Construction Company and against James
     Michael Ray are VACATED.

     Leo Journagan Construction Company shall pay the assessed
     $500 civil penalty within thirty days of this decision.





                                Arthur J. Amchan
                                Administrative Law  Judge




Distribution:

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

Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel
and Hetlage, 720 Olive St., 24th Floor, St. Louis,
MO 63101 (Certified Mail)


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