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[DOCID: f:c94-118m.wais]

 
ACME BRICK COMPANY
August 24, 1995
CENT 94-118-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           August 24, 1995
                            
SECRETARY OF LABOR,          :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :  Docket No. CENT 94-118-M
               Petitioner    :  A.C. No. 14-00211-05502
          v.                 :
                             :  Vondra Clay Pit
ACME BRICK COMPANY,          :
               Respondent    :

                               DECISION

Appearances:  Kristi L. Floyd, Esq., Office of the 
              Solicitor, U. S. Department of Labor, Denver, 
              Colorado, and Dennis J. Tobin, Conference 
              and Litigation Representative, Mine Safety 
              and Health Administration, Grand Junction, 
              Colorado, for the Secretary;
              Steven R. McCown, Esq., Littler, Mendelson,
              Fastiff, Tichy and Mathiason, Dallas, Texas, 
              for Respondent.

Before:  Judge Maurer

     This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to 
section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C.  801 et seq., the "Act," charging the
Acme Brick Company with two violations of the regulatory 
standard found at 30 C.F.R.  56.14101(a)(3).  The general 
issues before me are whether the respondent violated the 
cited regulatory standard and, if so, the appropriate 
civil penalty to be assessed in accordance with section 
110(i) of the Act.

     Pursuant to notice, the case was heard at Hays, 
Kansas, on May 31, 1995.  At the hearing, Inspector James 
G. Enderby testified for the Secretary of Labor.  Mr.
Clinton L. Bunch, plant manager, testified for respondent.
        
                             STIPULATIONS

     At the hearing the parties entered the following
stipulations into the record (Joint Ex. No. 1):

     1.  Respondent is engaged in mining and selling of 
     clay in the United States, and its mining operations 
     affect interstate commerce.

     2.  Respondent is the owner and operator of Vondra 
     Clay Pit, MSHA I.D. No. 14-00211.

     3.  Respondent is subject to the jurisdiction of the 
     Federal Mine Safety and Health Act of 1977, 30 U.S.C.
      801 et seq. ("the Act").

     4.  The administrative law judge has jurisdiction in 
     this matter.

     5.  The subject citation and order were properly 
     served by a duly authorized representative of the 
     Secretary upon an agent of respondent on the date and 
     places stated therein, and may be admitted into 
     evidence for the purpose of establishing their 
     issuance, and not for the truthfulness or relevancy 
     of any statements asserted therein.

     6.  The exhibits to be offered by respondent and the
     Secretary are stipulated to be authentic but no
     stipulation is made as the their relevance or the 
     truth of the matters asserted therein.

     7.  The proposed penalties will not affect
     respondent's ability to continue in business.

     8.  The operator demonstrated good faith in abating 
     the violations.

     9.  Respondent is a medium sized mine operator with 
     196,073 tons/hours of production in 1992.
                        
               DISCUSSION, FINDINGS AND CONCLUSIONS

     On October 20, 1993, MSHA Inspector James G. Enderby 
issued section 104(d)(1) Citation No. 4336451 to the
respondent because an International Harvester truck had
the brake lines to the front service brakes disconnected,
rendering them inoperable.  Fifteen minutes later, he 
issued section 104(d)(1) Order No. 4336452 on a second 
International Harvester truck for essentially the same 
reason.

     The particular section of the mandatory standards 
that the inspector cited, 30 C.F.R.  56.14101(a)(3), 
provides that: "All braking systems installed on the 
equipment shall be maintained in functional condition."
(Emphasis added).

     The standard requires that all braking systems, 
including front braking systems, installed on the equipment 
be maintained in functional condition.  The evidence 
clearly establishes that the front service brakes on the
cited equipment were completely disconnected and therefore
not functional.  That is a violation of the standard.  It 
is as simple as that.

     Respondent also believes the citation and order 
should be vacated because MSHA conducted the inspection 
outside the geographical confines of its jurisdiction.

     The Vondra Clay Pit is a small clay pit that the 
company mines clay from and then hauls it, using these two
trucks, to a production plant 3 miles away to make the
finished product, face brick.  The clay pit is subject to
MSHA jurisdiction, while the production facility is under
OSHA jurisdiction.

     Inspector Enderby conducted his inspection of the two 
trucks in question while they were parked at the production
plant, OSHA country.  However, the inspector had previously
observed these trucks being operated at the clay pit
earlier that month and both the plant foreman, Mr. Lamia 
and the maintenance man, Mr. Modrow, informed him that the 
vehicles had had the front service brakes disconnected ever 
since they had been delivered to this operation, years ago.  
The front brakes are purportedly removed from service as a 
standard practice because of a folkloric notion popular 
among truck drivers that you will have better control of 
the vehicle in an emergency stop situation without the 
front service brakes locking up the front wheels.

     Although in an ideal world the inspector would have
inspected the trucks and cited the trucks while they were
operating in an MSHA-regulated environment, I do not find 
that fatal to the Secretary's case.  The inspector
testified that earlier that month he had personally 
observed these trucks operating at the Vondra Clay Pit, 
and Mr. Bunch also testified to the effect that these 
trucks were used to haul material from the clay pit to 
the plant.  Mr. Bunch also admitted that the trucks had 
been operating in the cited condition, vis-a-vis the 
front service brakes, since their arrival at the pit in 
1985 in the one case and 1987 in the other.  Accordingly, 
I find the two violations of the standard proven as 
charged.

     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 C.F.R.
 814(d)(1). 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 822, 825 (April 1981).

     Inspector Enderby opined that if the truck driver 
had to stop in an emergency, he would not have sufficient
braking power to safely stop the vehicle.  However, I note
that with the exception of the front service brakes all 
the other braking systems on the trucks were functional.
In addition, one of the trucks pulls a trailer which also 
has an independent braking system. I also note that there 
is a complete lack of evidence in the record as to any 
testing or empirical determination of whether these trucks 
would safely come to a stop in the cited condition.  After 
all, they had been operating in this configuration for 
6-8 years before this violation without mishap. Really, 
the only evidence the Secretary submitted of any hazard 
with regard to operation of these trucks in the cited 
condition was the unsubstantiated conclusion of Inspector 
Enderby that such a hazard existed.  That is not enough 
to satisfy the Secretary's burden of proof.  I therefore 
find that it has not been established that an injury
producing event was reasonably likely to have occurred.  
Accordingly, it is concluded that the violations found 
herein, were not significant and substantial ("S&S").

     Inasmuch as Citation No. 4336451 does not recite an 
"S&S" violation, it must be modified to a citation issued
under section 104(a) of the Act.  Likewise, since Order No.
4336452 relies on Citation No. 4336451 to start the "d" 
chain, and since itself does not recite an "S&S" 
violation, it must also be modified to a section 104(a)
citation.

     On the basis of the foregoing findings and 
conclusions, and taking into account the civil penalty 
assessment criteria found in section 110(i) of the Act, I 
conclude and find that a civil penalty of $100 for each of 
the violations found herein, or $200 total, is a 
reasonable and appropriate civil penalty.

                              ORDER

     l.   Citation No. 4336451 and Order No. 4336452 ARE 
          MODIFIED to delete the "S&S" finding and, as 
          modified to section 104(a) citations, ARE 
          AFFIRMED.

     2.   The Acme Brick Company IS ORDERED TO PAY the 
          Secretary of Labor a civil penalty of $200 
          within 30 days of the date of this decision.
                            

                                Roy J. Maurer
                                Administrative Law Judge
                              

Distribution:

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

Steven R. McCown, Esq., Littler, Mendelson, Fastiff, Tichy
& Mathiason, 300 Crescent Court, Suite 600, Dallas, TX 
75201 (Certified Mail)

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