<DOC>
[DOCID: f:se2000159.wais]

 
WAKE STONE CORPORATION
SE 2000-159-M
April 19, 2001

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         April 19, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. SE 2000-159-M
               Petitioner       : A.C. No. 31-01940-05542
          v.                    :
                                : Triangle Quarry
WAKE STONE CORPORATION,         :
               Respondent       : Docket No. SE 2000-160-M
                                : A.C. No. 31-02071-05514
                                :
                                : Nash County Quarry

                             DECISION

Appearances: Melody   S.   Wesson,  Conference  and  Litigation
             Representative,  U.S.  Department  of  Labor, Mine
             Safety   and  Health  Administration,  Birmingham,
             Alabama, for Petitioner;
             Roland Massey,  Safety/Human  Services  Director,  
             Wake Stone Corporation, Knightdale, North Carolina,
             for Respondent.

Before: Judge Zielinski

     These  cases  are  before  me on Petitions for Assessment of
Civil  Penalties filed by the Secretary  of  Labor  against  Wake
Stone Corporation  pursuant  to  section  105 of the Federal Mine
Safety and Health Act of 1977 (the "Act").  30 U.S.C.  815.  The
petitions  each  allege  a  single violation of  the  Secretary's
mandatory health and safety standards and propose civil penalties
totaling $177.00.  A hearing  was held in Raleigh, North Carolina
on February 15, 2001.  For the  reasons set forth below, I affirm
the citations and assess penalties totaling $100.00.

                 The Evidence - Findings of Fact

     On  January  24,  2000, Thomas  P.  Clarkson,  an  inspector
employed by the Department  of  Labor's  Mine  Safety  and Health
Administration (MSHA), inspected Respondent's Nash County Quarry.
As  he  inspected  a  Caterpillar 796C haul truck, company number
8019, he observed that  there  were  no guards for the alternator
pulley and v-belt in the engine compartment  and  issued Citation
No.  7792135,  charging  a  violation of 30 C.F.R.  56.14107(a),
which provides:

          (a)  Moving machine  parts  shall  be  guarded  to
     protect  persons   from  contacting  gears,  sprockets,
     chains,  drive,  head,   tail,   and   takeup  pulleys,
     flywheels, couplings, shafts, fan blades,  and  similar
     moving parts that can cause injury.

He  concluded  that  the  violation  was "unlikely" to result  in
injury but that if an injury did occur,  it  would be permanently
disabling.   He  assessed  the degree of operator  negligence  as
"moderate"  and  did  not find  the  violation  "significant  and
substantial."

     The location of the  alternator  pulley  and  v-belt  in the
Caterpillar truck's engine compartment are clearly depicted  in a
series  of  pictures introduced into evidence as Respondent's Ex.
4.  The truck  is a very large vehicle and a man can easily stand
between the left  front  tire and the engine compartment.  The v-
belt drives and the alternator  pulley  are  located 12-14 inches
inside one of the truck's frame members at approximately shoulder
height and are directly accessible to anyone who  might  stand in
that position.

     On  March 15, 2000, Darrell Brennan, another MSHA inspector,
conducted  an  inspection of Respondent's Triangle Quarry.  As he
inspected a Euclid  R-22,  water  haulage  truck,  company number
8008,   he   observed  that  the  v-belt  drives  in  the  engine
compartment were  not  guarded  and  issued Citation No. 7792816,
also  charging  a  violation  of  30 C.F.R.    56.14107(a).   He
determined that the violation was "reasonably  likely"  to result
in  an  injury  that would result in lost work days or restricted
duty.  He concluded  that  the  violation  was  "significant  and
substantial"  and  assessed  the degree of operator negligence as
"moderate."

     The Euclid R-22 truck is  depicted  in  a series of pictures
introduced into evidence as Respondent's Ex. 5.   It  is  smaller
than  the  Caterpillar  truck  and access to the left side of the
engine compartment, where the v-belt  and  pulley are located, is
restricted by a fender/headlight assembly and a hose reel that is
mounted on the forwardmost part of the trucks'  frame.   In order
to  reach the v-belt and pulley, a person would have to stand  in
front  of  the fender and reach through the approximately 14 inch
wide gap between  the  fender  and the hose reel.  The v-belt and
pulley are located approximately  31  inches  from  the outermost
edge of the hose reel.  By standing sideways, however,  a  normal
sized man could slip between the hose reel and the fender and get
considerably closer to the v-belt/pulley.

     Both inspectors based their assessment of the violation  and
gravity  factors  on  the  possibility  that the truck's operator
might come into contact with the v-belt/pulley while performing a
pre-shift inspection of the truck or investigating a problem with
the truck, such as a fluid leak or belt noise.   They opined that
the operators would likely attempt to diagnose any  such  problem
before  reporting it to a mechanic, in order to more fully inform
the mechanic  of  the  problem.   They  testified  that they have
written   other   citations  for  similar  violations  on  mobile
equipment, although  not at Respondent's facility.  The Secretary
also introduced a listing  of  reported injuries involving v-belt
drives and pulleys on mobile equipment  in  order  to demonstrate
that such injuries do, in fact, occur.

     Wake Stone had purchased the Euclid R-22 truck  in 1976 as a
used  vehicle  and  it  did not have guards installed around  the
engine compartment v-belt drives.  The hose reel was installed in
1986.  The Caterpillar 796C truck had been purchased new in 1986.
It did not have engine compartment v-belt drive guards installed,
nor were such items listed  as  optional equipment in the list of
specifications for the truck.  In order to abate the violation on
the  796C  truck, Respondent consulted  the  manufacturer's  more
recent publications and was able to identify a v-belt drive guard
for a front  end  loader  that  would  fit  the  truck.   It  was
purchased  and installed.  The company had been inspected by MSHA
at least twice  a  year and the absence of v-belt drive guards in
the engine compartments of these trucks had never been cited as a
violation in the past, nor had any of Respondent's employees been
injured due to the absence of guards.

                   Conclusions of Law and Fact

     Respondent contends,  in  essence,  that its truck operators
virtually never put themselves into a position  where  they could
contact  the  v-belt/pulley  assemblies  in  the  trucks' engine.
compartments  and  that  there  is  no reasonable possibility  of
injury due to the absence of guards.  The Secretary contends that
truck operators or mechanics may, in fact, come into contact with
the  v-belt/pulley  assemblies in examining  or  working  on  the
engine.

     In construing an  analogous  standard[1]  in  Thompson Bros.
Coal  Co.,  6  FMSHRC  2094,  2097  (Sept.  1984), the Commission
stated:

     We  find  that  the  most logical construction  of  the
     standard is that it imports  the concepts of reasonable
     possibility  of contact and injury,  including  contact
     stemming  from   inadvertent   stumbling   or  falling,
     momentary  inattention, or ordinary human carelessness.
     In  related  contexts,  we  have  emphasized  that  the
     constructions  of  mandatory safety standards involving
     miners' behavior cannot  ignore  the  vagaries of human
     conduct.     See,   e.g.,   Great   Western   Electric,
     5 FMSHRC 840,  842  (May  1983);  Lone Star Industries,
     Inc.,  3 FMSHRC 2526, 2531 (November  1981).   Applying
     this  test   requires  taking  into  consideration  all
     relevant   exposure   and   injury   variables,   e.g.,
     accessibility of the machine parts, work areas, ingress
     and egress,  work duties, and as noted, the vagaries of
     human conduct.   Under  this  approach,  citations  for
     inadequate guarding will be resolved on a case-by-[case]
     basis.

     At  issue  in Thompson were citations issued for failure  to
guard cooling fan  blades and air compressor belts and pulleys in
the engine compartments  of  two  Euclid  R-50  dump trucks.  The
Commission affirmed the decision of an ALJ finding  violations of
the  standard  based  on the possibility that a miner might  come
into  contact  with  the  exposed   moving  machine  parts  while
examining  or  working  on the engines while  they  were  idling.
While  the possibility of  such  contact  was  determined  to  be
"minimal" it satisfied the "reasonably possible" test.

     I similarly  find that, while the possibility of contact and
injury presented by  the  unguarded  v-belt/pulley assemblies was
minimal, contact and injury was reasonably  possible  within  the
meaning of Thompson.  There is no question that the v-belt/pulley
assemblies  were  accessible to a miner or mechanic standing near
the engine compartments  of  the  subject trucks.  The inspectors
described a plausible scenario of a driver exploring some problem
with a truck's engine and contacting  the  v-belt/pulley  with  a
hand  or clothing.  A mechanic examining the engine while idling,
even though  trained  to  work  in  such  conditions,  could also
inadvertently  contact  the unguarded v-belt/pulley resulting  in
injury.

     Respondent also contends  that the obligation imposed by the
standard is to maintain guards furnished  with the equipment, not
to  install  new  guards,  except  where  an  unusual  hazard  is
presented.   However, that contention is based only  upon  MSHA's
past enforcement  practices  at  its facilities and a citation to
dicta  in an ALJ opinion that appears  to  be  at  odds  with  an
earlier  opinion  by  the same ALJ.[2]  It also ignores other ALJ
decisions finding violations  of this or a related standard based
upon the failure to install guards on moving machine parts in the
engine compartments of vehicles  that  were  manufactured without
such guards.  See, Nelson Bros. Quarries, Inc.,  21  FMSHRC 1100,
1102-03  (Oct. 1999) (ALJ); Riverton Corp., 16 FMSHRC 2082  (Oct.
1994) (ALJ);  Power  Operating Co., 16 FMSHRC 591, 595 (May 1994)
(ALJ).  Respondent's contention  is  unfounded.  Thompson and the
cited  ALJ  opinions make clear that guards  are  required  where
contact and injury is reasonably possible.

Citation No. 7792816 - Significant and Substantial

     In  issuing   Citation   No.   7792816,   Inspector  Brennan
determined that the violation was significant and substantial.  A
"significant  and  substantial" (S&S) violation is  described  in
Section 104(d)(1) of  the  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."   A
violation  is   properly  designated  S&S  "if,  based  upon  the
particular facts  surrounding  that  violation,  there  exists  a
reasonable  likelihood that the hazard contributed to will result
in an injury  or illness of a reasonably serious nature."  Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

     In Mathies  Coal  Co.,  6  FMSHRC  1,  3-4  (Jan. 1984), the
Commission explained:

          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. (footnote omitted)

See also, Buck Creek Coal, Inc. v. MSHA,  52  F.3d  133, 135 (7th
Cir.  1999); Austin Power, Inc. v. Sec'y of Labor, 861  F.2d  99,
103-04 (5th Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015,
2021 (Dec. 1987) (approving Mathies criteria).

     The  critical  issue  here is whether there was a reasonable
likelihood  that the hazard contributed  to  will  result  in  an
injury.  As noted  above, Respondent has voiced concern about the
consistency  of  MSHA's  enforcement  actions,  noting  that  the
conditions cited have  existed  for  many  years  and  have never
before  been cited.  Respondent's concerns about consistency  are
further highlighted  by differences in the two citations at issue
here.  Inspector Clarkson  determined that it was "unlikely" that
an injury would result from  the  violation he cited with respect
to the Caterpillar 796C truck and concluded  that  the  violation
was not significant and substantial.  Inspector Brennan,  on  the
other hand, found that the violation on the Euclid R-22 truck was
"reasonably  likely"  to  result in an injury and was significant
and substantial.  The Secretary's  representative  explained that
the  difference  in  the gravity assessments was based  upon  the
degree  of accessibility.   However,  it  is  apparent  from  the
pictures and related testimony that the v-belt/pulley assembly on
the R-22  truck was considerably less accessible than that on the
796C truck cited by Inspector Clarkson.

     I agree  with  Respondent  and Inspector Clarkson that it is
unlikely that an injury would result  from  the  cited violations
and find that the violation charged in Citation No.  7792816  was
not significant and substantial.

Negligence

     I  find  that the negligence of the operator with respect to
these violations  was low.  It is undisputed that guards were not
installed on the v-belt/pulley assemblies by the manufacturers of
the trucks in question  and  that Respondent purchased the trucks
in  the  cited  condition.   It  is   also  undisputed  that  the
violations were not cited in numerous prior  MSHA inspections and
that no injuries have resulted to Respondent's employees from the
cited  conditions.   As  noted  above,  I  have  found  that  the
possibility of injury presented by the violations was minimal, or
unlikely.  Moreover, that portion of MSHA's Program Policy Manual
addressing  the  standard  here  at issue, makes no reference  to
mobile equipment.  Only recently has  MSHA  apparently issued any
specific  guidance  on  applicability of the standard  to  mobile
equipment.[3]   While  there   have   been   prior  decisions  by
Commission  ALJ's finding violations under circumstances  similar
to those presented  here,  I  find  that  the  degree of operator
negligence with respect to these citations was low.

                    The Appropriate Penalties

     The assessment sheets reflect that Respondent's quarries are
medium  sized  and  part  of  a  small  controlling entity.   The
assessment sheets also show that in the 24  months  preceding the
subject inspection that the Triangle Quarry had been inspected on
23 days and that only 11 citations had been written and  that the
Nash  County  Quarry  had  been  issued  only  4 violations in 15
inspection  days,  both  very good records.  The violations  were
promptly  abated.   Findings   on   the  gravity  and  negligence
associated with each sustained citation are also noted above.

     Upon consideration of the factors  itemized  in   100(i) of
the  Act, I impose the following penalties, which are appropriate
to the  size  of  Respondent's  business.   As  to  Citation  No.
7792135,  I  assess  a penalty of $50.00, slightly lower than the
penalty proposed by the Secretary because of the finding that the
operator's negligence  was  low.   As  to Citation No. 7792816, I
also assess a penalty of $50.00, a reduction  from  the  proposed
penalty of $122.00, because of the finding that the violation was
not significant and substantial and that the degree of negligence
was low.

                              ORDER

     Based  upon  the  foregoing, Citations numbered 7792135  and
7792816 are affirmed, as  modified,  and Respondent is ordered to
pay a civil penalty of $100.00 within 30 days.

                                 Michael E. Zielinski
                                 Administrative Law Judge

Distribution:

Melody  S. Wesson, Conference & Litigation  Representative,  U.S.
Department   of  Labor,  MSHA,  135  Gemini  Circle,  Suite  212,
Birmingham, AL 35209 (Certified Mail)

Roland Massey,  Safety  Director, Theodore D. Bratton, President,
Wake Stone Corporation,
P.O. Box 190, Knightdale, NC 27545 (Certified Mail)

/mh

**FOOTNOTES**

     [1]: 30 C.F.R.  77.400
     (a)  Gears; sprockets;  chains;  drive,  head, tail and
     takeup    pulleys;    flywheels;   couplings;   shafts;
     sawblades;  fan  inlets;  and  similar  exposed  moving
     machine parts which  may  be  contacted by persons, and
     which may cause injury to persons shall be guarded.

     [2]: Compare Newmont Gold Co.,  19 FMSHRC 1640, 1642-43
(Oct. 1997) (ALJ) (stating in dicta  that  promulgators of  
standard  intended  that,  except  in a rare and  exceptional 
case,  there  would  be no  requirement  to  supplement  the 
existing guards that the manufacturer of a truck had installed 
in and around the truck's engine area)  with  Walsenburg Sand 
& Gravel Co., 11 FMSHRC  2233,  2237-38  (Nov.  1989)  (ALJ)  
(finding of violation for inadequate guarding of engine fan 
blade on road grader).

     [3]: The Secretary attempted to introduce into evidence
an excerpt  from  a revision to an MSHA  guarding  guide,  or 
book, to show that machine parts  on  mobile  equipment  need 
to be  guarded  to  prevent  contact  during  inspection  and 
maintenance activities. Respondent's objection to the exhibit 
was sustained because the revision was not adopted and printed 
until late in the  year 2000, after these citations had been 
issued.