<DOC>
[DOCID: f:w-95-186.wais]

 
HOLLOW CONTRACTING, INC.
November 22, 1996
WEST 95-197-M

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

                          November 22, 1996

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. WEST 95-186-M
               Petitioner     :  A.C. No. 24-01986-05505 
                              :
          v.                  :  Docket No. WEST 95-433-M
                              :  A.C. No. 24-01986-05507
                              :
                              :  Docket No. WEST 95-448-M
                              :  A.C. No. 24-01986-05506
HOLLOW CONTRACTING, INC.,     :
               Respondent     :  Docket No. WEST 95-549-M
                              :  A.C. No. 24-01986-05508
                              :
                              :    Portable Crusher

                               DECISION

Appearances:  Barbara J. Renowden and Gary L. Grimes, Conference
              and Litigation Representatives, Mine Safety and 
              Health Administration, Denver, Colorado, for 
              Petitioner;
              William J. Hollow, President, Hollow Contracting,
              Inc., Butte, Montana, for Respondent.

Before: Judge Manning

     These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against
Hollow Contracting, Inc. ("Hollow Contracting"), 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 petitions
allege 33 violations of the Secretary's safety standards.  For
the reasons set forth below, I affirm 30 citations, vacate 3
citations, and assess penalties in the amount of $2,065.

     A hearing was held in these cases in Butte, Montana.  The
parties presented testimony and documentary evidence, but waived
post-hearing briefs.

   I.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

      The Portable Crusher involved in these cases was a very
small facility that produced fines and crushed rock.  (Tr. 284).
At the time the citations were issued, the crusher was about ten
miles south of the town of Big Timber in Sweet Grass County,
Montana.  The operation consisted of a crusher and related
equipment.  Hollow Contracting recorded about 2,375 hours of
production in 1994 and it employed about 16 people.  (Ex. S-1;
Tr. 284).  About five people were employed at the Big Timber
crusher at the time the citations were issued.  (Tr. 283).
Hollow Contracting has a history of 25 citations between Septem-
ber 1992 and September 1994.  (Ex. S-2).  On September 15, 1994,
MSHA Inspector Seibert Smith inspected the crusher and issued
most of the citations at issue in these proceedings.  Two
citations were issued by MSHA Inspector Ronald Goldade at a
different time.

                        General Background

     Hollow Contracting first became involved in the crushing
business when it operated a crusher that was owned by another
company near Libby, Montana.  (Tr. 280).  After that job was
completed, Hollow Contracting bought equipment, leased other
equipment, and operated a crusher near Roundup, Montana.  (Tr.
281).  At about the same time, Hollow Contracting started the
Big Timber operation.  Id.  It started setting up the Big Timber
crusher about a week before MSHA's inspection.  (Tr. 282).  It
ran the plant for one day to get product samples to be analyzed
in Billings.  Id.   At the time of the inspection, the plant was
not operating because the crusher was broken.  Mr. Hollow went to
Billings to get a part.  (Tr. 286).  The crusher started produc-
tion the next day after it was fixed.  Id.  Hollow Contracting
was not paid for much of its work and the company sold its
crushing equipment to Montana Materials, L.L.C., sometime after
the subject citations were issued.  (Tr. 317-18).  Hollow
Contracting is still in  business but does not own the crushing
equipment.  Id.  Mr. Hollow is the sole owner of Hollow Con-
tracting and Hollow Contracting is a part owner of Montana
Materials.  Id.  Based on the evidence of record, I find that
Hollow Contracting remains liable for any penalties assessed for
the citations at issue in these proceedings.

     Hollow Contracting contends that it attempted on several
occasions to get a copy of MSHA's safety regulations from MSHA
inspectors.  Hollow Contracting states that it did not know what
the safety standards required because it did not have a copy of
the standards.  The Secretary's safety standards are publicly
available in the Code of Federal Regulations.  While I appreciate
that the standards may be difficult for a small mine operator to
obtain, they are available to the public.  The fact that
Mr. Hollow had not yet received a copy cannot be a defense to the
citations or a mitigating factor in assessing civil penalties.
See Materials Delivery, 15 FMSHRC 2467, 2471 (December 1993)
(ALJ).

     Hollow Contracting also maintains that many of the condi-
     tions described in the citations did not create a hazard to
     its employees.  The Commission and the courts have uniformly
     held that the Mine Act is a strict liability statute.  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.  In addition, the Secretary is not
     required to prove that a violation creates a safety hazard,
     unless the safety standard so provides.

          The [Mine Act] imposes no general requirement
          that a violation of MSHA regulations be found
          to create a safety hazard in order for a
          valid citation to issue.  30 U.S.C.  814(a).
          If conditions existed which violated the
          regulations, citations [are] proper.

Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982)
(footnote omitted).  The degree of the hazard is taken into
consideration in assessing a civil penalty under section 110(i).
30 U.S.C.  820(i).

     In addition, Hollow Contracting contends that its crusher
was not operating at the time of the inspection.  There is no
dispute that the crusher was out of service for repairs at the
time the citations were issued.  Nevertheless, Mr. Hollow tes-
tified that once the repairs were completed, the plant was
scheduled to start commercial production within one day.  (Tr.
286).  Thus, the conditions observed by MSHA would have continued
to exist when the plant was started.  Except where noted below,
Hollow Contracting did not argue that it would have repaired the
cited conditions prior to starting production.  In addition,
there is no dispute that the crusher was operating the day before
the inspection when product samples were obtained.

     Finally, Hollow Contracting contends that its crushing
equipment was inspected by MSHA in the past and that MSHA's
inspectors saw the same conditions that were cited at Big Timber.
It argues that it is unreasonable for MSHA to issue citations and
assess penalties for conditions that were not cited in these past
inspections.  The Commission has held that the Secretary is not
prevented from issuing a citation for a condition that violates a
safety standard simply because the same condition existed during
a previous MSHA inspection and was not cited.  The fact that a
condition was observed by an MSHA inspector and not cited may
reduce the level of negligence attributed to the mine operator
and result in a reduced penalty.

     In assessing civil penalties, I have taken into considera-
tion the fact that Hollow Contracting is a very small business
and that it promptly abated the citations.  I reduced the
penalties from that proposed by the Secretary, in part, because
the Secretary did not give sufficient consideration to Hollow
Contracting's small size.  Except as noted below, I find that
Hollow Contracting's negligence was low with respect to the
citations.  Mr. Hollow was attempting to run a safe operation
and reasonably believed that he was in compliance with the
Secretary's safety standards.

                        Specific Citations

     In order to discuss the allegations in a systematic way, I
have grouped the citations by subject area rather than by docket
number.

             A.  NOTIFICATION AND REPORTING CITATIONS

     1.  Citation No. 4409918 alleges that Hollow Contracting
failed to notify MSHA in writing that it was starting operations
at the Big Timber site.  The regulation, 30 C.F.R.  56.1000,
provides, in part, that the operator of any metal or nonmetal
mine shall notify the nearest MSHA office before starting opera-
tions.  Inspector Smith testified that the crusher was not on
MSHA's list for the Big Timber location.  (Tr. 219-20).  He
stated that the violation was not serious and that Hollow Con-
tracting's negligence was moderate.  The Secretary proposed a
penalty of $136.

     Mr. Hollow testified that his office notified the local MSHA
office of the Big Timber operation by telephone.  (Tr. 316).
Apparently, Hollow Contracting had notified MSHA of its other
crushing operations.  (Tr. 224).  I find that the Secretary
established a violation.  The regulation does not specifically
require that the notification be in writing, but when the regu-
lation is read in conjunction with 30 C.F.R.  41.11(a) and
section 109(d) of the Mine Act it is clear that a telephone call
may not be sufficient.  In any event, I credit the testimony of
Inspector Smith that the local MSHA office did not have any
record of the call.

     I find that Hollow Contracting's negligence was very low
because it believed that it notified MSHA and the crusher
facility had only been at Big Timber for about a week.  Based on
the penalty criteria, I assess a civil penalty of $5 for this
violation.

     2.  Citation No. 4363435 alleges that Hollow Contracting
failed to notify the local MSHA office when it closed its
operations at Big Timber.  The regulation, 30 C.F.R.  56.1000,
provides, in part, that the operator of any metal or nonmetal
mine shall notify the nearest MSHA office when a mine is tem-
porarily or permanently closed.  Inspector Goldade testified
that when he traveled to the site on March 23, 1995, the crusher
was no longer there.  (Tr. 258).  He stated that the violation
was not serious but that Hollow Contracting's negligence was high
because Hollow Contracting had been cited for violations of this
safety standard on two previous occasions.  The Secretary pro-
posed a penalty of $189.

     Mr. Hollow testified that Hollow Contracting had not com-
pleted its work at the Big Timber site at the time of Inspector
Goldade's inspection so the mine was not temporarily or perma-
nently closed.  (Tr. 312-15).  Apparently, Hollow Contracting was
crushing material at the site that was used in an asphalt paving
project.  The citation was issued in March and Mr. Hollow stated
that Hollow Contracting was required to return to the cite in the
spring and "clean up the chips."  (Tr. 315).  Chips are "three-
eighths rock with no fines in it."  (Tr. 314).  The cleaned chips
would then be put on top of the asphalt.  The asphalt was not
chipped in the fall because of cold weather.

     I find that the Secretary did not establish a violation.  I
credit Mr. Hollow's testimony that he had to return to the site
to finish work on the project.  Hollow Contracting had to bring
in some screening equipment to clean the chips.  (Tr. 259, 313-
14).  The screen removed any debris and fines.  This activity is
considered to be "sizing," which is subject to Mine Act jurisdic-
tion.  The Secretary did not produce evidence to establish the
length of time between the date the crushing operation was com-
pleted and the date that the chips were to be screened.  The
inspector issued the citation because the crushing equipment was
not at the Big Timber site on March 23.  Although the regulation
requires mine operators to notify the nearest MSHA office when a
mine is temporarily closed, a rule of reason is required.  A
short period of inactivity may not amount to a temporary closure.
Hollow Contracting removed the crushing equipment because they
were no longer needed at Big Timber, not because the mine was
closed.  Accordingly, this citation is vacated.

     3.  Citation No. 4410149 alleges that Hollow Contracting
failed to provide Inspector Smith with a copy of the quarterly
employment report for the second quarter of 1994.  The regula-
tion, 30 C.F.R.  50.40, provides, in part, that mine operators
shall keep a copy of each quarterly employment report submitted
to MSHA at the mine office for a period of five years.  Inspector
Smith testified that he was told that the report was not avail-
able at the mine.  (Tr. 171).  He stated that the violation was
not serious but that Hollow Contracting's negligence was high
because no employment reports were available at the mine.  The
Secretary proposed a penalty of $136.

     Mr. Hollow testified that the plant was not in operation and
he did not know that these reports were required to be filed when
Hollow Contracting was not in production.  (Tr. 315).  He stated
that at that time he kept his records on top of his refrigerator.
I find that the Secretary established a violation, but I do not
agree that the operator's negligence was high.  The fact that
several reports were not available does not establish high neg-
ligence.  Based on the penalty criteria, I assess a civil penalty
of $5 for this violation.

              B.  MACHINERY AND EQUIPMENT CITATIONS

     1.  Citation No. 4410144 alleges that records were not pro-
vided at the mine site of the defects in the equipment that "were
cited on this inspection" for review by the inspector.  The regu-
lation, 30 C.F.R.  56.14100(d), provides, in part, that defects
on self-propelled mobile equipment affecting safety, which are
not immediately corrected, shall be recorded.  Inspector Smith
testified that there were no records kept of safety defects at
the mine.  (Tr. 209-10).  He stated that the violation was not
serious and that Hollow Contracting's negligence was moderate.
The Secretary proposed a penalty of $157.

     Mr. Hollow testified that there was a calendar in the
generator van where workers would mark down what needed to be
fixed that day.  (Tr. 210, 310-11).  It appears, however, that
this record concerned routine matters, such as oil changes.  The
calendar did not contain a list of the safety defects found by
employees.  Accordingly, I find that the Secretary established a
violation.  I find that the violation was not serious.  Based on
the penalty criteria, I assess a civil penalty of $20 for this
violation.

     2.  Citation No. 4409970 alleges that the backup alarm on a
John Deere loader was not maintained in a functioning condition.
The safety standard, 30 C.F.R.  56.14132(b)(2), provides, in
part, that backup alarms shall be audible above the surrounding
noise level.  Inspector Goldade testified that he observed an
employee backing up the loader and that a backup alarm could not
be heard.  (Tr. 250).   He stated that the violation was signif-
icant and substantial ("S&S"), and that Hollow Contracting's
negligence was moderate.  The Secretary proposed a penalty of
$595.

     Mr. Hollow testified that the backup alarm was working, but
that Inspector Goldade did not think it was loud enough.  (Tr.
305, 312).  He stated that Inspector Smith was in the area on the
previous day and did not issue a citation.

     I find that the Secretary established a violation.  I also
find that the violation was S&S.  The four elements of the
Mathies test were met.  Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984).  The third element, whether there was a reason-
able likelihood that the hazard contributed to will result in an
injury, presents the closest question.  Inspector Goldade testi-
fied that if an employee were to walk in the area of the loader
while it was backing up, he may not be aware that he was in
danger because he could not hear the backup alarm.  (Tr. 252).
He testified that the operator of the loader might not see him
because of a blind spot on the loader.  (Tr. 253).  He further
testified that there was a reasonable likelihood that the hazard
contributed to would result in a serious accident or a fatality.
(Tr. 254).  He noted that fatal accidents in such situations are
not uncommon.  (Tr. 252).

     I credit the inspector's testimony and find that the viola-
tion was very serious.  I also find that Hollow Contracting's
negligence was moderate.  Based on the penalty criteria, I assess
a civil penalty of $300 for this violation.

     3.  Citation No. 4409920 alleges that the guard installed on
the tail end of the pan discharge feeder was not secured on the
right side.  The safety standard, 30 C.F.R.  56.14112(b), pro-
vides, in part, that guards shall be securely in place while
machinery is being operated.  Inspector Smith testified that a
guard was present but that it was not secured on one side.
(Tr. 39-44; Ex. G-448-2).  He determined that the violation was
not serious and was the result of Hollow Contracting's low neg-
ligence.  The Secretary proposed a penalty of $189.

     Mr. Hollow testified that the guard had been bolted on, but
that the guard must have been snagged by a loader.  (Tr. 287).
He stated that it was highly unlikely that the condition would
cause anyone to be injured.  I find that the Secretary estab-
lished a violation.  I agree that the violation was not serious
and that it was highly unlikely that it would have caused an
injury.  Based on the penalty criteria, I assess a civil penalty
of $20 for this violation.

     4.  Citation No. 4409922 alleges that a guard was not
installed on the overhead v-belt drive unit for the main white
screen plant to prevent a whipping action of the belt if it were
to break.  The safety standard, 30 C.F.R.  56.14108, provides
that overhead drive belts shall be guarded to contain the whip-
ping action of a broken belt if that action could be hazardous to
persons.  Inspector Smith testified that he observed that the
v-belt drive was not provided with a guard.  (Tr. 54-58; Ex.
G-448-4).  He stated that if the belt were to break, a whipping
action could cause the belt to strike an employee.  Inspector
Smith stated that he saw an employee in the area on the previous
day.  (Tr. 60-61).  He determined that the violation was not
serious and was the result of Hollow Contracting's low negli-
gence.  The Secretary proposed a penalty of $147.

     Mr. Hollow testified that because of the direction of the
rotation of the belt and the location of the motor, he did not
believe that a broken belt would hit anyone.  (Tr. 59, 289).
I find that the Secretary established a violation.  I agree that
the violation was not serious and that it was highly unlikely
that it would have caused an injury.  Based on the penalty
criteria, I assess a civil penalty of $20 for this violation.

     5.  Citation No. 4409921 alleges that a guard was not in-
stalled on the sides of the fin-type tail pulley for the orange
stacker discharge conveyor.  The safety standard, 30 C.F.R.
 56.14107(a), provides, in part, that moving machine parts shall
be guarded to protect persons from contacting drive, head, tail,
and takeup pulleys and similar moving parts that can cause
injury.  Inspector Smith testified that he observed that the
cited tail pulley was not provided with guards and that several
employees were required to work or walk by the area.  (Tr. 44-46;
Ex. G-448-3).  He stated that neither side of the tail pulley was
guarded and that employees cleaning up in the area could be
injured as a result.   He determined that the violation was S&S
and was the result of Hollow Contracting's moderate negligence.
The Secretary proposed a penalty of $362.

     Mr. Hollow testified that it would be very difficult for a
person to fall and trip into the pinch point of the tail pulley.
(Tr. 288).  He stated that the only time that anyone was in the
area was at the end of the work day after the operation was shut
down.  Id.  On the other hand, he testified that employees
sometimes clean up while the conveyors are running.  (Tr. 289).

     The Commission held that the most logical construction of a
guarding standard "imports the concepts of reasonable possibility
of contact and injury, including contact stemming from inadver-
tent stumbling or falling, momentary inattention, or ordinary
human carelessness."  Thompson Brothers Coal Co., Inc., 6 FMSHRC
2094, 2097 (September 1984).  The Commission stressed that the
construction of safety standards involving miners' behavior
"cannot ignore the vagaries of human conduct."  Id.  (citations
omitted).  Thus, I must consider all relevant exposure and injury
variables including "accessibility of the machine parts, work
areas, ingress and egress, work duties, and ... the vagaries of
human conduct" on a case-by-case basis.  Id.

     Taking these factors into consideration, I find that the
Secretary established a violation.  The more difficult question
is whether the Secretary established that the violation was S&S.
It is clear that a discrete safety hazard was created by the
violation.  The issue is whether there was a reasonable likeli-
hood that the hazard contributed to by the violation would result
in a serious injury if not corrected.  Inspector Smith testified
that an employee working in the area or walking through the area
could slip and fall and come in contact with the moving parts of
the tail pulley.  (Tr. 48).  He determined that such an event was
reasonably likely.  (Tr. 47-48).  The tail pulley was about one
foot above the ground.[1]  I find that the Secretary established
that the violation was S&S.  The ground was uneven in the area.
A significant tripping hazard was presented by the terrain.
(Ex. G-448-3).  I find that it was reasonably likely that someone
would be seriously injured as a result of the cited condition.
Based on the penalty criteria, I assess a civil penalty of $100
for this violation.

     6.  Citation No. 4409923 alleges that a guard was not
installed on the tail pulley for the discharge conveyor under
the white shaker screen, in violation of section 56.14107(a).
Inspector Smith testified that he observed that the cited tail
pulley was not provided with a guard.  (Tr. 62-72; Ex. G-448-5).
He stated that employees were required to clean up in the area
and that an employee could slip, come in contact with the moving
parts, and sustain serious injuries.  The pulley was about one
and a half feet above the ground.  He determined that the
violation was S&S and was the result of Hollow Contracting's
moderate negligence.  The Secretary proposed a penalty of $362.

     Mr. Hollow testified that it would be difficult for someone
to come in contact with the tail pulley because of its location.
(Tr. 290).  He stated that the tail pulley is behind iron sup-
ports for the white shaker screen.  (Tr. 290-92; Ex. G-488-4).
He stated that an employee could not get any closer than about
three to four feet from the pulley.  He testified that it was
unlikely that someone would trip and come in contact with the
tail pulley.  Finally, Mr. Hollow stated that the fines are
cleaned off the belt at a different location.  Id.

     I find that the Secretary established a violation but did
not establish that the violation was S&S.  There was no showing
that it was reasonably likely than anyone would be injured by the
violation because the pulley was not in an easily accessible area
and regular cleanup was not required.  Based on the penalty
criteria, I assess a civil penalty of $50 for this violation.

     7.  Citation No. 4409924 alleges that a guard was not
installed on the head pulley and v-belt drive system for the main
discharge conveyor for the shaker screen, in violation of section
56.14107(a).  Inspector Smith testified that he observed that the
cited head pulley and v-belt drive were not provided with guards.
(Tr. 73-85; Ex. G-448-6).  He stated that employees were required
to be in the area where they could make contact with the moving
parts.  He stated that he observed footprints in the area.  At
its lowest point, the pulley unit was about three feet above the
ground.  He determined that the violation was S&S and was the
result of Hollow Contracting's moderate negligence.  The Secre-
tary proposed a penalty of $362.

     Mr. Hollow testified that the area had been guarded, but
that the guard had been removed.  (Tr. 293-95).  I find that
the Secretary established a violation.  The moving parts were
within seven feet of a walking or working surface.  (Tr. 83-84).
Whether the violation was S&S is a close question.  Inspector
Smith stated that employees "could make contact with the moving
parts."  (Tr. 76).  Spilled material was in the area and foot-
prints were observed on the spilled material.  He stated that
anyone cleaning up the spilled material or walking in the area
could slip and make contact.  (Tr. 78-79).  Inspector Smith did
not observe anyone working close to the head pulley or v-belt
drive.  (Tr. 81).  Given the nature of the hazard, the location
of the unguarded moving parts, the terrain around the area, and
the necessity to clean up the accumulated material from time-to-
time, I find that it was reasonably likely that someone would be
seriously injured as a result of the cited condition, assuming
continued normal mining operations.  Based on the penalty
criteria, I assess a civil penalty of $100 for this violation.

     8.  Citation No. 4409925 alleges that a guard was not
installed on the v-belt drive unit for the pan feeder for the
orange crusher, in violation of section 56.14107(a).  Inspector
Smith testified that he observed that the cited v-belt drive was
not provided with a guard.  (Tr. 85-94; Ex. G-448-7).  He stated
that employees were required to be in the area where they could
make contact with the moving parts.  He stated that the v-belt
drive was readily accessible to employees walking in the area.
The lower pulley was about two feet from the ground and the upper
pulley was about eight feet off the ground.  He determined that
the violation was S&S and was the result of Hollow Contracting's
moderate negligence.  The Secretary proposed a penalty of $362.

     Mr. Hollow testified that the area may have been guarded in
the past and that it is a slow-moving v-belt drive.  (Tr. 295).
I find that the Secretary established a violation but did not
establish that the violation was S&S.  Although the v-belt drive
was not near an established walkway, it was in an area that was
easily accessible to miners.  They could walk within seven feet
of the pulleys in their daily routine.  It was not shown, how-
ever, that it was reasonably likely that anyone would be injured
as a result of this condition, assuming continued normal mining
operations.  Inspector Smith stated that employees would not be
in the area very often.  (Tr. 89).  Based on the penalty cri-
teria, I assess a civil penalty of $50 for this violation.

     9.  Citation No. 4409926 alleges that a guard was not
installed on the side of the fin-type tail pulley for the stacker
conveyor at the El-Jay crusher, in violation of section
56.14107(a).  Inspector Smith testified that he observed that the
cited tail pulley was not provided with a guard.  (Tr. 97-103;
Ex. G-448-8).  He stated that employees were required to be in
the area where they could make contact with the moving parts.
The pulley was about 15 inches above the ground.  He determined
that the violation was S&S and was the result of Hollow Con-
tracting's moderate negligence.  The Secretary proposed a penalty
of $362.

     Mr. Hollow testified that the pulley was in an area where
employees were not normally required to be.  (Tr. 295-96).  He
stated that there was a cluster of belts in the area and it was a
difficult area to enter.  I find that the Secretary established a
violation but did not establish that the violation was S&S.
Although the tail pulley was not near an established walkway, it
was in an area that was accessible and employees might be
required to cleanup accumulations in the area.  It was not shown,
however, that it was reasonably likely that anyone would be
injured as a result of this condition, assuming continued normal
mining operations.  I credit Mr. Hollow's testimony and find that
employees would generally not be in the area while the belts were
operating.  Based on the penalty criteria, I assess a civil
penalty of $50 for this violation.

     10.  Citation No. 4409927 alleges that a guard was not
installed on the tail pulley for the light yellow stacker con-
veyor, in violation of section 56.14107(a).  Inspector Smith
testified that he observed that the cited tail pulley was not
provided with a guard.  (Tr. 103-08; Ex. G-448-9).  He stated
that employees were required to be in the area where they could
make contact with the moving parts.  The pulley was about 15
inches above the ground.  He determined that the violation was
S&S and was the result of Hollow Contracting's moderate negli-
gence.  The Secretary proposed a penalty of $362.

     Mr. Hollow testified that a guard was supposed to be on the
tail pulley.  (Tr. 296).  I find that the Secretary established a
violation and that the violation was S&S.   The tail pulley was
in an open area and accumulations from the conveyor would require
cleaning.  In addition, the exhibit shows a shovel within a few
feet of the conveyor.  It would be reasonably likely that an
employee would be seriously injured while cleaning around the
pulley.  Based on the penalty criteria, I assess a civil penalty
of $100 for this violation.

     11.  Citation No. 4409928 alleges that a guard was not
installed on the head pulley and the v-belt drive for the main
discharge conveyor for the El-Jay crusher, in violation of
section 56.14107(a).  Inspector Smith testified that he observed
that the cited head pulley and v-belt drive assembly were not
provided with a guard.  (Tr. 109-17; Ex. G-448-10).  He stated
that employees were required to be in the area where they could
make contact with the moving parts.  The pulley was about five
feet above the ground.  He determined that the violation was S&S
and was the result of Hollow Contracting's moderate negligence.
The Secretary proposed a penalty of $362.

     Mr. Hollow testified that he did not own the cited equip-
ment, but rented it.  (Tr. 297).  He said that the crusher did
not have guards when it was delivered.  I find that the Secretary
established a violation and that the violation was S&S.  The tail
pulley was in an open area and accumulations from the conveyor
would require cleaning.  The fact that Hollow Contracting did not
own the equipment is not controlling.  In addition, the evidence
shows that it would be reasonably likely that an employee would
be seriously injured while cleaning around the pulley.  Based on
the penalty criteria, I assess a civil penalty of $100 for this
violation.

     12.  Citation No. 4409929 alleges that a guard was not
installed on the fin-type tail pulley for the sand stacker
conveyor, in violation of section 56.14107(a).  Inspector Smith
testified that he observed that the cited tail pulley was not
provided with a guard.  (Tr. 117-22; Ex. G-448-11).  He stated
that employees were required to be in the area where they could
make contact with the moving parts.  The pulley was between one
and two feet above the ground.  He determined that the violation
was S&S and was the result of Hollow Contracting's moderate
negligence.  The Secretary proposed a penalty of $362.

     Mr. Hollow testified that he had recently purchased the
cited equipment and that it did not come equipped with guards.
(Tr. 297).  I find that the Secretary established a violation and
that the violation was S&S.  The tail pulley was in an open area
and accumulations from the conveyor would require cleaning.  The
fact that guards were not installed on the equipment when Hollow
Contracting purchased it is not controlling.  In addition, the
evidence shows that it would be reasonably likely that an
employee would be seriously injured while cleaning around the
pulley.  Accumulations were visible and the inspector observed
footprints in the accumulations.  Based on the penalty criteria,
I assess a civil penalty of $100 for this violation.

     13.  Citation No. 4409930 alleges that a guard was not
installed on back end of the tail pulley for the conveyor under
the Telsmith crusher, in violation of section 56.14107(a).
Inspector Smith testified that he observed that the cited tail
pulley was not provided with a guard.  (Tr. 123-27; Ex. G-448-
12).  He stated that employees were required to be in the area
where they could make contact with the moving parts.  The pulley
was about one foot above the ground.  He determined that the
violation was S&S and was the result of Hollow Contracting's
moderate negligence.  The Secretary proposed a penalty of $362.

     Mr. Hollow testified that he had recently acquired the
equipment and it did not come with guards.  (Tr. 298).  I find
that the Secretary established a violation and that the violation
was S&S.   The tail pulley was in an open area and accumulations
from the conveyor would require cleaning.  The fact that guards
were not installed on the equipment when Hollow Contracting
purchased it is not controlling.  In addition, the evidence shows
that it would be reasonably likely that an employee would be
seriously injured while cleaning around the pulley.  Accumula-
tions were visible around the pulley and there were indications
that the an employee had cleaned around the area.  (Tr. 124).
Based on the penalty criteria, I assess a civil penalty of $100
for this violation.

     14.  Citation No. 4409932 alleges that a guard was not
installed on the bottom half of the main v-belt drive unit for
the Telsmith crusher, in violation of section 56.14107(a).
Inspector Smith testified that he observed that the cited v-belt
drive unit was not provided with a guard.  (Tr. 131-40;
Ex. G-448-14).  He stated that he believed that a guard had been
provided at one time.  He also said that he observed footprints
under the Telsmith crusher.  The v-belt drive was about five feet
above the ground and a little over two feet from the frame of the
crusher.  He determined that the violation was S&S and was the
result of Hollow Contracting's low negligence.  The Secretary
proposed a penalty of $235.

     Mr. Hollow testified that it would be impossible for anyone
to come in contact with the v-belt drive assembly unless one
climbed up onto the crusher and reached into the area or crawled
under the crusher.  (Tr. 298-300).  He stated that the sides of
the v-belt drive were guarded.  I find that the Secretary did not
establish a violation.  There was no showing that the cited drive
was within seven feet of walking or working surfaces.  30 C.F.R.
 14107(b).  The v-belt drive was protected by its location and
an employee could come in contact with the moving parts only if
he stooped over and walked under the crusher or climbed onto the
crusher.  (Tr. 135-36).  Although Inspector Smith observed foot-
prints under the crusher, it is not clear how they got there.
The crusher had been recently set up and the prints could predate
the operation of the crusher.  Accordingly, this citation is
vacated.

        C.  FIRE CONTROL AND MEDICAL ASSISTANCE CITATIONS

     1.  Citation No. 4409940 alleges that a small quantity of
gasoline was stored in a five-gallon plastic container.  The
safety standard, 30 C.F.R.  56.4402, provides that small quan-
tities of flammable liquids shall be kept in safety cans labeled
to indicate the contents.  Inspector Smith testified that he was
concerned that pressure could build in the container if it got
hot and cause an explosion.  (Tr. 185-93; Ex. G-443-2).  He could
not recall if the can was labeled.  He stated that a safety can
is "a metal can that has a spring loaded lid on top that ... will
pop and relieve the pressure."  (Tr. 189).  He stated that the
violation was not serious and that Hollow Contracting's negli-
gence was low.  The Secretary proposed a penalty of $147.

     Mr. Hollow testified that the can was OSHA-approved and it
probably contained diesel fuel.  (Tr. 306-07).  I find that the
Secretary established a violation.  Safety can is defined as "an
approved container ... having a spring-closing lid and spout
cover."  30 C.F.R.  56.2.  There is no question that the can
used by Hollow Contracting was not a safety can.  I find that the
violation was not serious in that it did not pose a hazard to
employees, and that Hollow Contracting's negligence was low.
Based on the penalty criteria, I assess a civil penalty of $20
for this violation.

     2.  Citation No. 4410141 alleges that a set of oxygen and
acetylene cylinders were observed being stored in the back of a
pickup truck.  A small container of gasoline was stored in the
same area.  The safety standard, 30 C.F.R.  56.4601, provides
that oxygen cylinders shall not be stored in areas used for
storage of flammable liquids.  Inspector Smith testified that he
observed grease, an acetylene cylinder, and gasoline stored in
the same area as the oxygen cylinder.  (Tr. 193-98; Ex. G-443-3).
He was concerned about an explosion hazard.  He stated that the
violation was S&S and that Hollow Contracting's negligence was
low.  The Secretary proposed a penalty of $238.

     Mr. Hollow testified that he was not present at the time the
citation was issued and the can may have contained antifreeze.
(Tr. 307).  I find that the Secretary established a violation and
that the violation was S&S.  Two employees were cutting metal
with the torch at the end of the truck.  (Tr. 196).  This created
a significant risk of a fire or explosion.  It was reasonably
likely that an employee would be seriously injured by this
practice.  This violation posed a serious safety hazard to
employees.  I credit Inspector Smith's testimony that he consid-
ered the negligence to be low because Mr. Hollow was not at the
mine at the time of the violation.  Based on the penalty cri-
teria, I assess a civil penalty of $175 for this violation.

     3.  Citation No. 4410142 alleges that an employee was
observed using oxygen and acetylene cylinders with a cutting
torch at the end of a pickup truck and that a fire extinguisher
was not available.  The safety standard, 30 C.F.R.  56.4600
(a)(2), provides, in part, that a fire extinguisher shall be at
a worksite where cutting is being performed with an open flame.
Inspector Smith testified that he observed employees cutting with
an open flame on the tailgate of the pickup truck in the vicinity
of flammable material and that a fire extinguisher was not
readily available.  (Tr. 198-206; Ex. G-443-3).  The conditions
that prompted Inspector Smith to issue this citation are the same
as described in Citation No. 4410141, above.  He stated that the
violation was S&S and that Hollow Contracting's negligence was
moderate.  The Secretary proposed a penalty of $595.

     Mr. Hollow testified that fire extinguishers were available
at the mine.  (Tr. 308-10, 200-06).  He stated that if a fire
were to start, employees would want to get away from the fire and
get an extinguisher.  Mr. Hollow contends that under MSHA's
interpretation of the standard, the extinguisher would have to be
within a few feet of the cutting activity, which would be too
close to be of use during a fire.  He testified that a fire
extinguisher was available in a truck that was parked within ten
feet of the cutting activity.  (Tr. 310).

     Inspector Smith testified that he issued the citation
because he could not find a fire extinguisher in the "immediate
area."  The regulation does not contain such a requirement.  It
states that an extinguisher must be "at the worksite."  This term
is not defined in the regulations.  Mr. Hollow testified that an
extinguisher was available within about ten feet of the cutting
activity.  No evidence contradicts this testimony and I credit
the testimony.  I also agree that there is no advantage in having
an extinguisher so close that an employee would hesitate to get
it for fear of getting burned.  Accordingly, this citation is
vacated.

     4.  Citation No. 4410147 alleges that Hollow Contracting had
not established emergency fire fighting, evacuation, and rescue
procedures for the mine.  The safety standard, 30 C.F.R.
 56.4330(a), provides that such procedures be established and
coordinated with available fire-fighting organizations.  Inspec-
tor Smith testified that Mr. Hollow had not contacted any fire-
fighting organization or established any procedures.  (Tr. 216-
18).  He stated that the violation was not serious and that
Hollow Contracting's negligence was moderate.  The Secretary
proposed a penalty of $168.

     Mr. Hollow testified that he had not established any pro-
cedures but that everybody knew that the crusher was there,
including the police department.  (Tr. 311).  I find that the
Secretary established a violation.  The violation was not serious
and was highly unlikely to result in an injury.  Based on the
penalty criteria, I assess a civil penalty of $20 for this
violation.

     5.  Citation No. 4410146 alleges that Hollow Contracting had
not made arrangements for obtaining emergency medical assistance
and transportation of injured persons.  The safety standard, 30
C.F.R.  56.18014, provides that such arrangements be established
in advance.  Inspector Smith testified that Mr. Hollow had not
made arrangements for emergency medical assistance and for the
transportation of injured persons in the event of an accident at
the mine.  (Tr. 213-16).  He stated that the violation was not
serious and that Hollow Contracting's negligence was moderate.
The Secretary proposed a penalty of $168.

     Mr. Hollow testified that he had not made any arrangements
but that everybody knew that the crusher was there, including the
police department.  (Tr. 311).  He stated that he did not believe
that rescue services were available in the area.  I find that the
Secretary established a violation.  The violation was not serious
and was highly unlikely to result in an injury.  Based on the
penalty criteria, I assess a civil penalty of $20 for this
violation.

     6.  Citation Nos. 4409933 and 4409934 allege that a record
of the inspection of the fire extinguishers at the fuel truck and
generator trailer was not provided at the mine for review by the
MSHA inspector.  The safety standard, 30 C.F.R.  56.4201(b),
provides that a certification shall be made that fire extinguish-
ers have been tested in the manner set forth in subsection (a),
and requires that this certification be kept at the mine.
Inspector Smith testified that he searched for the required
records but that none were available.  (Tr. 140-42).  He stated
that other extinguishers at the site were provided with such
certifications.  He stated that the violation was not serious and
that Hollow Contracting's negligence was moderate.  The Secretary
proposed penalties of $147 and $136, respectively.

     Mr. Hollow said that the employees regularly check the
extinguishers, but he did not know why these did not have a
record of the inspections.  (Tr. 300-01).  I find that the
Secretary established the violations.  The violations were not
serious because there was no showing that the extinguishers were
not functioning properly.  Based on the penalty criteria, I
assess a civil penalty of $10 for each violation.

                     D.  ELECTRICAL CITATIONS

     1.  Citation No. 4410143 alleges that Hollow Contracting did
not perform a continuity and resistance test of the grounding
system at the mine.  The safety standard, 30 C.F.R.  56.12028,
provides, in part, that continuity and resistance of grounding
systems shall be tested immediately after installation and
annually thereafter.  Inspector Smith testified that there was no
indication that such a test had been preformed.  (Tr. 206-08).
He stated that the violation was not serious and that Hollow
Contracting's negligence was moderate.  The Secretary proposed a
penalty of $168.

     I find that the Secretary established a violation.  If such
tests are not conducted, the operator cannot be sure that its
grounding system is working.  Based on the penalty criteria, I
assess a civil penalty of $50 for this violation.

     2.  Citation No. 4409931 alleges that a cover plate was not
provided on the motor make-up box for the drive unit for the feed
return conveyor on the Telsmith crusher.  The citation states
that the cover plate fell off and was on the ground.  The safety
standard, 30 C.F.R.  56.12032, provides, in part, that cover
plates on junction boxes shall be kept in place at all times
except during testing or repair.  Inspector Smith testified that
he observed the condition during his inspection.  (Tr. 127-31;
Ex. G-488-13).  He stated that the crusher was not energized at
the time of his inspection.  He further stated that the violation
was not serious because it was not in an accessible area and that
Hollow Contracting's negligence was low.  The Secretary proposed
a penalty of $235.

     I conclude that the Secretary established a violation.  I
agree with the inspector that the violation was not serious
because the junction box was in an inaccessible area and it was
unlikely that anyone would come in contact with it.  Based on the
penalty criteria, I assess a civil penalty of $50 for this
violation.

     3.  Citation No. 4409935 alleges that the door on the 480-
volt electrical panel in the generator trailer was left open.
The citation states that the circuits were energized and could be
accidentally contacted by employees.  The safety standard, 30
C.F.R.  56.12030, provides that when a potentially dangerous
condition is found, it shall be corrected before the circuit is
energized.  Inspector Smith testified that he observed an em-
ployee in the generator trailer and that the door on the elec-
trical panel had been left open.  (Tr. 143-57; Ex. G-488-17).
He stated that he believed that the circuit was energized at the
time of his inspection.  He further stated that the violation was
S&S because it would be easy for an employee in the trailer to
accidentally contact the energized connections.  He stated that
he observed tools and other things stored in the trailer.  He
determined that Hollow Contracting's negligence was moderate.
The Secretary proposed a penalty of $595.

     Mr. Hollow testified that the generator was shut down
shortly after the inspector arrived because the crusher was not
operating.  He also testified that the main circuit breaker,
which was at a different location, was off so the electrical
contacts at the electrical panel were not energized.  (Tr. 301-
02).  He stated that employees are not in the generator trailer
and that he believed that the employee spotted by the inspector
had been in the trailer to test the circuit to make sure it was
not energized so that employees could start their repairs on the
crusher.  He stated that this panel is not used to de-energize
the circuit.

     I find that the Secretary established a violation.  The
panel could be closed but it could not be latched.  Normally I
would find that such a violation was S&S.  In this case, however,
I credit the testimony of Mr. Hollow that the circuit had been
de-energized at the main breaker and that employees do not gen-
erally go into the trailer when the power is on.  Because of
Hollow Contracting's operating procedures, it was not reasonably
likely that anyone would be in a position to contact the elec-
trical connections when the circuit was energized.  Based on the
penalty criteria, I assess a civil penalty of $50 for this
violation.

     4.  Citation No. 4409936 alleges that no ground was provided
for the extension cord that provided power to the overhead lights
at the crusher motor.  The citation states that the grounding
prong on the plug was missing.  The safety standard, 30 C.F.R.
 56.12025, provides that all metal parts enclosing or encasing
electrical circuits shall be grounded.  Inspector Smith testified
that he observed that the grounding prong was missing from the
electrical cord.  (Tr. 157-63; Ex. G-488-18).  He testified that
the cord was plugged in but was not energized at the time of his
inspection.  He further stated that the violation was S&S and
that Hollow Contracting's negligence was low.  The Secretary
proposed a penalty of $298.

     Mr. Hollow testified that he believes that the cited plug is
on a 110-volt cord and not on the 220 volt cord that supplied
power to the lights. (Tr. 302-03).  I find that the Secretary
established a violation.  The circuit connected to the cited
extension cord was not protected by the grounding circuit.  I
find that the Secretary did not establish that the violation was
S&S.  When the inspector was asked why he determined that an
injury was reasonably likely he stated that "the operator was
aware that all circuits shall have a ground."  (Tr. 159-60).
When the inspector was asked why he determined that the violation
was S&S, he replied that he observed an employee "in the area"
the day before when it was raining.  (Tr. 161).  This testimony
does not establish that it was reasonably likely that an employee
will be seriously injured as a result of the cited condition,
assuming continued normal operations.  Based on the penalty
criteria, I assess a civil penalty of $50 for this violation.

     5.  Citation No. 4409937 alleges that the inner wires on the
power cord for the overhead lights at the crusher operator's
station were exposed where they pass into the fixture.  The
citation states that if a person contacted the metal parts of the
light fixture, he could receive a serious injury.  The safety
standard, 30 C.F.R.  56.12008, provides, in part, that power
wires shall be insulated adequately where they pass into elec-
trical compartments and substantially bushed with insulated
bushings.    Inspector Smith testified that the power cord was
torn so that the inner wires were exposed to the metal frame of
the lighting fixture.  (Tr. 163-70; Ex. G-488-19).  He was con-
cerned that an employee working around the operator's station
could be killed or seriously injured if he made contact with the
metal parts of the fixture.   The inspector stated that the
violation was S&S and that Hollow Contracting's negligence was
moderate.  The Secretary proposed a penalty of $595.

     Mr. Hollow testified that he believes that the cord had not
been torn for a long time because the cord was pulled tight.  I
find that the Secretary established an S&S violation.  It is not
disputed that the inner wires of the cord were exposed.  Although
there is no evidence that the insulation on the individual wires
had been cut, this insulation is designed to provide electrical
protection, not mechanical protection.  The insulation could
easily be damaged and the metal components could become energized
as a result.  The photograph, Ex. G-448-19, shows the hazard
involved.  The wires were pulled tight against the frame and it
was only a matter of time before bare wire would be exposed.
People were required to work in the area and the lighting fixture
was in an easily accessible area.  Accordingly, I find that it
was reasonably likely that someone would be seriously injured as
a result of the condition.  I also find that Hollow Contracting's
negligence was moderate.  Based on the penalty criteria, I assess
a civil penalty of $300 for this violation.

                       E.  OTHER CITATIONS

     1.  Citation Nos. 4409938 and 4409939 allege that a toeboard
and handrails were not provided on the elevated work deck on the
main orange crusher below the operator's station.  The safety
standard, 30 C.F.R.  56.11002, provides, in part, that elevated
walkways, ramps, and stairways shall be provided with handrails
and, where necessary, with toeboards.  Inspector Smith testified
that the work deck was about nine feet above the ground.  (Tr.
175-84; Ex. G-433-1).  Toeboards were not provided.  He stated
that he was concerned that an employee on the deck could acci-
dentally kick rocks or other objects off the deck onto employees
working below.  Inspector Smith testified that handrails were
present but were not complete.  He stated that a midrail should
have been installed in one area and a top rail in another area.
He was concerned that an employee could slip and fall from the
deck.  Finally, he testified that the violations were not serious
and that Hollow Contracting's negligence was low.  The Secretary
proposed a penalty of $147 for each citation.

     Mr. Hollow testified that these conditions existed on the
crushing equipment for quite some time at other sites and were
never cited by MSHA.  (Tr. 304-06).  I find that the Secretary
established a violation.  The cited work deck is a walkway and I
believe that a toeboard was required in that location.  I find
that a reasonably prudent person would have known that a toeboard
was necessary.  I also agree with the inspector that complete
handrails were not provided at some locations on the deck.  The
violations did not present a serious safety hazard.  Based on the
penalty criteria, I assess a civil penalty of $20 for each
violation.

     2.  Citation No. 4409919 alleges that a berm was not pro-
vided on the outer edge of the elevated roadway at the main
hopper for the crusher.  The safety standard, 30 C.F.R.
 56.9300, provides that berms or guardrails shall be provided on
the banks of roadways where a drop-off exists of sufficient grade
or depth to cause a vehicle to overturn or endanger persons in
equipment.  Inspector Smith testified that the area cited is
where employees drive the front-end loader to dump rock into the
hopper of the crusher.  (Tr. 26-31; Ex. G-488-1).  He stated that
the drop-off was about ten feet and that it was possible for a
loader to fall off.  (Tr. 38-39).  Because the mine was shut down
at the time the citation was issued, there was no activity in the
area, but the inspector observed the front-end loader operating
in the area on the previous day.  He further stated that the
violation was S&S and was caused by Hollow Contracting's moderate
negligence.  The Secretary proposed a penalty of $595.

     Mr. Hollow testified that there was about a three-to-one
slope off the outer edge.  (Tr. 285-86).  He did not believe that
this slope created a serious hazard of a rollover.  In any event,
Mr. Hollow stated that once operations commenced, the loader
operator would have put a berm in that area.  I find that the
Secretary established a violation.  A drop-off existed along the
bank of the elevated dumping area of a sufficient depth and grade
to create a risk that a loader would overturn or the loader oper-
ator would be injured if he accidentally went over the edge.  I
cannot assume that the loader operator would have created a berm
when the mine began full production.

     I also find that the violation was S&S based on the testi-
mony of Inspector Smith.  He stated that he observed a loader
operating in the area the previous day and that he saw tire
tracks in the area.  He also relied on the fact that fatal and
serious accidents have been reported to MSHA involving overtravel
on elevated roadways.  Accordingly, I find that it was reasonably
likely that someone would be seriously injured as a result of the
condition, assuming normal operations.  Based on the penalty
criteria, I assess a civil penalty of $100 for the violation.

     3.  Citation No. 4410145 alleges that a record of the exam-
ination of working places was not provided for review by the MSHA
inspector.  The safety standard, 30 C.F.R.  56.18002(b), pro-
vides that a record certifying that an examination was made once
each shift of each working place shall be kept at the mine and
shall be made available for review by MSHA inspectors.  Inspector
Smith testified that he asked to review the records of the exam-
inations of working places and the operator could not provide
such records.  (Tr. 211-13).  He testified that the violation was
not serious and that Hollow Contracting's negligence was moder-
ate.  The Secretary proposed a penalty of $136.

     Mr. Hollow testified that records of equipment inspections
are usually kept at the generator van.  (Tr. 310).  I find that
the Secretary established a violation.  Equipment operators are
required to check equipment before they start using them.  In
addition, the cited safety standard requires that a competent
person examine all working places for adverse conditions.  This
requirement is in addition to the equipment checks.  A record of
these examinations must be kept at the mine.  The violation was
not serious and Hollow Contracting's negligence was moderate.
Based on the penalty criteria, I assess a civil penalty of $50
for this violation.

                  II.  CIVIL PENALTY ASSESSMENTS

     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 dis-
cussed above:

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

     WEST 95-186-M

       4409918                 56.1000               $ 5.00

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

     WEST 95-433-M

       4409938                 56.11002            $  20.00
       4409939                 56.11002               20.00
       4409940                 56.4402                20.00
       4410141                 56.4601               175.00
       4410142                 56.4600(a)(2)        vacated
       4410143                 56.12028               50.00
       4410144                 56.14100(d)            20.00
       4410145                 56.18002(b)            50.00
       4410146                 56.18014               20.00
       4410147                 56.4330(a)             20.00
       4409970                 56.14132(b)(2)        300.00
       4363435                 56.1000              vacated

     WEST 95-448-M

       4409919                 56.9300               100.00
       4409920                 56.14112(b)            20.00
       4409921                 56.14107(a)           100.00
       4409922                 56.14108               20.00
       4409923                 56.14107(a)            50.00
       4409924                 56.14107(a)           100.00
       4409925                 56.14107(a)            50.00
       4409926                 56.14107(a)            50.00
       4409927                 56.14107(a)           100.00
       4409928                 56.14107(a)           100.00
       4409929                 56.14107(a)           100.00
       4409930                 56.14107(a)           100.00
       4409931                 56.12032               50.00
       4409932                 56.14107(a)          vacated
       4409933                 56.4201(b)             10.00
       4409934                 56.4201(b)             10.00
       4409935                 56.12030               50.00
       4409936                 56.12025               50.00
       4409937                 56.12008              300.00

     WEST 95-549-M

       4410149                 50.40                   5.00

                              Total Penalty       $2,065.00

                           III.  ORDER

     Accordingly, the citations listed above are VACATED or
AFFIRMED as indicated, and Hollow Contracting, Inc. is ORDERED
TO PAY the Secretary of Labor the sum of $2,065.00 within 40 
days of the date of this decision.

                                Richard W. Manning
                                Administrative Law Judge

Distribution:

Barbara J. Renowden and Gary L. Grimes, Conference and Litigation
Representatives, Mine Safety and Health Administration, P.O. Box
25367, Denver, CO 80225-0367 (Certified Mail)

Mr. William J. Hollow, President, HOLLOW CONTRACTING, INC., 601 
Garden Avenue, Butte, MT 59701 (Certified Mail)

RWM

**FOOTNOTES**

   For  reasons  that are not entirely clear, Inspector Smith was
instructed by MSHA headquarters to take all of his measure- ments
in centimeters.  The  safety standard at subsection (b) uses feet
as  the  standard  measurement.    It  is  pointless  to  require
measurements in the metric system when  the  safety standards use
feet and inches.  This requirement confused Mr.  Hollow and I can
understand his confusion.  I encourage the Secretary  to drop his
requirement  that  MSHA  inspectors take measurements in centime-
ters.  In this decision, I  converted  Inspector Smith's measure-
ments to feet and inches.