<DOC>
[DOCID: f:c95-203m.wais]

 
BECK MATERIALS COMPANY
May 15, 1996
CENT 95-203-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                           May 15, 1996

SECRETARY OF LABOR,         :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :   Docket No. CENT 95-203-M
               Petitioner   :   A. C. No. 23-02086-05503
                            :
          v.                :
                            :   HWY 54 South Quarry
BECK MATERIALS COMPANY,     :
               Respondent   :

                            DECISION

Appearances:  Margaret A. Miller, Esq., Office of the Solicitor,
              U. S. Department of Labor, Denver, Colorado, for
              the Secretary; Keith A. Wenzel, Esq.,
              Inglish & Monaco, P.C.,
              Jefferson City, Missouri, for Respondent.

Before:  Judge Maurer

                      STATEMENT OF THE CASE

     This case is before me upon the petition for
assessment of civil penalty filed by the Secretary of
Labor (Secretary) against the Beck Materials Company
(Beck Materials) pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  815.  The
petition charges Beck Materials with three violations
of the mandatory standards found in 30 C.F.R. Part 56
and seeks civil penalties of $3500, as a result of a
serious injury accident which occurred on December 7,
1994, at Beck Materials' Highway 54 South Quarry.

     Pursuant to notice, this case was heard at Columbia,
Missouri, on December 5, 1995.  Both parties have
subsequently filed written proposed findings of fact
and conclusions of law, which I have considered along
with the entire record in this case in arriving at the
following decision.

                           STIPULATIONS

     At the commencement of the hearing, the parties
proffered a signed set of stipulations, dated
December 5, 1995, which I accepted into the record
(Tr. 5-6) as follows:

1.  Beck Materials Company is engaged in mining and selling
    of limestone in the United States, and its mining
    operations affect interstate commerce.

2.  Beck Materials Company is the owner and operator of
    Highway 54 South Quarry Mine, MSHA ID No. 23-02086.
    The Highway 54 South Quarry Mine is a limestone mine
    using conventional mining methods to drill and blast
    limestone.

3.  Beck Materials Company 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 citations were properly served by a duly
    authorized representative of the Secretary upon an
    agent of respondent on the date and place 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.  Doug Laird, Plant Foreman, was seriously injured at
    approximately 4:30 p.m., on December 7, 1994, when he
    slipped or tripped and fell onto a moving conveyor
    belt.  His right arm was pulled between the drive
    pulley and the moving conveyor belt.

7.  Mr. Laird had l year and l month total mining
    experience, all at the Beck Materials Mine.

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

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

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

11.  Beck Materials Company is a limestone mine operator
     with 98,214 production hours worked in 1994.  The mine
     employs about 10 miners who work 9  hour shifts each
     day, 5 days per week.

12.  The certified copy of the MSHA Assessed Violations
     History accurately reflects the history of this mine
     for the
     2 years prior to the date of the citations.

          FINDINGS, CONCLUSIONS AND DISCUSSION

On January 31, 1995, MSHA Inspector Robert D. Seelke,
subsequent to an accident investigation, issued
section 104(d)(1) Citation No. 4329266 to Beck
Materials for a violation of 30 C.F.R.  56.12016[1]
alleging that:

At approx (sic) 4:30 pm on Dec. 7, 1994, plant foreman,
Doug Laird, who was filling in as the plant operator,
was seriously injured when his right arm was pulled
between the drive pulley and the moving conveyor belt
of the under scalping screen conveyor.  The injured

**FOOTNOTES**

     [1]:/ 30 C.F.R.  56.12016 provides: "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.
Suitable warning notices shall be posted at the power switch and
signed by the individuals who are to do the work.  Such locks or
preventive devices shall be removed only by the persons who
installed them or by authorized personnel."

     employee elected to make adjustments to the tracking of
     the belt without deenergizing the conveyor system.
     While checking the adjustments the employee slipped or
     tripped while walking on the framework of the screen,
     bin, conveyor system and fell over the top of the side
     guard on the drive pulley.  His right hand & arm
     contacted the moving conveyor which pulled his right
     arm into the pinch point of the drive pulley & conveyor
     belt.  This is an unwarrantable failure.

      On that same date, Inspector Seelke also issued
section 104(d)(1) Order No. 4329267 to Beck Materials for a
violation of 30 C.F.R.  56.11001[2] alleging that:

     At approx (sic) 4:30 pm on Dec. 7, 1994, plant foreman,
     Doug Laird, who was filling in as the plant operator,
     was seriously injured when his right arm was pulled
     between the drive pulley & the moving conveyor belt of
     the under scalping screen conveyor.  The employee was
     not using a safe means of access to check the
     adjustments he had made on the belt.  The injured
     elected to walk the 9" I-beam, that is part of the
     scalping screen and conveyor frame, to check the belt
     movement after making adjustments.  While attempting to
     step from the 9" I-beam to the tail pulley guard of the
     #1 product belt he slipped or tripped and fell causing
     his right arm to contact the moving under scalping
     screen conveyor, which pulled his arm into the pinch
     point between the drive pulley and the belt.  This is
     an unwarrantable failure.

**FOOTNOTES**

     [2]:/ 30 C.F.R.  56.11001 provides: "Safe means of access
shall be provided and maintained to all working places."

     Additionally, the inspector issued section 104(a) Citation
No. 4329268 to Beck Materials for a violation of 30 C.F.R.
 56.14107(a)[3] alleging that:

     At approx (sic) 4:30 pm on Dec. 7, 1994, plant foreman,
     Doug Laird, who was filling in as the plant operator,
     was seriously injured when his right arm was pulled
     between the drive pulley and the moving conveyor belt
     of the under scalping screen conveyor.  Upon
     investigation of the accident site it was concluded
     that the drive & the tail pullies (sic) of the conveyor
     were not sufficiently guarded to prevent contact with
     the pinch point.

     On December 7, 1994, the date of the accident, the plant had
crushed rock until early afternoon when due to rain, they ran out
of dry material in the pit and had to shut the plant down.  Danny
Foster, the plant superintendent, sent some of the men home at
that time, but kept Doug Laird, a plant foreman and the accident
victim, there to do some work on the plant.  More specifically,
Laird was adjusting the under scalping screen conveyor belt[4]
when he was injured.

     Earlier that day, Laird and Andrew Mitchem, a loader
operator, had attempted to make tracking adjustments to the belt,
but were unable to get it to track properly.  After the plant
shut down, Laird testified that he went back to this task.  He
started just that one belt back up, went to the south side of the
plant and got up on the framework where he could reach the
adjustment screws and bolts.  In order to climb up there, he
utilized the wheels and axles that run underneath the plant and
climbed from there to a 9-inch wide I-beam rail from where he
could reach the adjustment screws and bolts.  He testified that
there was no ladder available to climb up there to make these
adjustments.

     He adjusted the belt several times, but he stated that the
belt was not responding so he went back around to the other side
of the plant to see if the belt was hanging up on anything but
could not locate any problem.  At this point, he climbed up onto
the I-beam framework again and looked to see what might be
holding the belt up.  Not seeing anything blocking the conveyor
belt, he was moving back along the I-beam framework of the bin
and conveyor on the north side, getting ready to go back around
to the other side and make further adjustments when he fell.  His
right hand was pulled up into the head pulley of the still
running belt.  As a result of the accident, his right shoulder
and arm were amputated and he sustained a severe injury to his
spinal cord which causes him chronic and severe pain.  He is
disabled from further employment.

     Inspector Seelke issued Citation No. 4329266 because Laird
had been making mechanical adjustments to the electrically
powered equipment without deenergizing and locking out that
equipment, all in violation of 30 C.F.R.  56.12016.

     It is beyond dispute that the cited conveyor belt was in
fact running and therefore not deenergized and locked out at the
time of the accident, and it is also undisputed that Laird was
performing mechanical work on it.  Accordingly, that, without
more, is sufficient to find that a violation of 30 C.F.R.
 56.12016 occurred and I do so find.

     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 U.S.C.  814(d)(l).  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 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

          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.

     In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

     We have explained further that the third element of the
     Mathies formula "requires that the Secretary establish
     a reasonable likelihood that the hazard contributed to
     will result in an event in which there is an injury."
     U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
     1984).  We have emphasized that, in accordance with the
     language of section 104(d)(1), it is the contribution
     of a violation to the cause and effect of a hazard that
     must be significant and substantial.  U. S. Steel
     Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
     1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).

     In this case we do not have to deal with likelihoods,
possibilities or probabilities.  A serious injury accident did in
fact occur, as a direct result of this violation and as a result
of that accident, Laird was permanently disabled from gainful
employment.  I therefore find this cited violation to be
significant and substantial ("S&S") and serious.

     The Secretary also alleges the violation was the result of
the respondent's "unwarrantable failure" to comply with the cited
standard.

     In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the Commission determined that unwarrantable failure is aggra-
vated conduct constituting more than ordinary negligence.  This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure to use such care as a reasonably
prudent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention").  9 FMSHRC
at 2001.  Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct," "indifference"
or a "serious lack of reasonable care."  9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991).  The Commission has also stated that use of a
"knew or should have known" test by itself would make unwarrant-
able failure indistinguishable from ordinary negligence, and
accordingly, the Commission rejected such an interpretation.  A
breach of a duty to know is not necessarily an unwarrantable
failure.  The thrust of Emery was that unwarrantable failure
results from aggravated conduct, constituting more than ordinary
negligence.  Secretary v. Virginia Crews Coal Co., 15 FMSHRC
2103, 2107 (October 1993).

     Respondent's defense to the "unwarrantable failure" charge
contained in this citation is basically that Laird did not follow
established company procedures in attempting to adjust the
conveyor belt tracking.  Several witnesses testified to the
effect that respondent has a lock-out procedure in place and it
has been addressed repeatedly over the years at safety meetings.
However, that testimony aside, I find that that "official" policy
was not actually being observed in practice.  Mr. Laird very
credibly testified that he was performing the tracking
adjustments in the manner that he had been taught personally by
Mr. Foster, the superintendent, that is, with the belt running.
I therefore find and conclude that this violation occurred as a
result of the aggravated negligence of the operator.
Accordingly, Citation No. 4329266 will be affirmed herein, as
issued, in its entirely.

     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 $1500, as proposed by the Secretary for this citation,
is a reasonable and appropriate civil penalty that will serve to
satisfy the public interest in this matter.

     Inspector Seelke issued section 104(d)(1) Order No. 4329267
on January 31, 1995.  He testified that Laird did not use a safe
means of access to make or check the adjustments he had made on
the belt.  Several times Laird climbed up on or walked along the
I-beam of the framework of the machinery to make adjustments to
the belt or check those adjustments.  In Seelke's opinion, which
I accept, a secured ladder should have been used to make and
check the adjustments on both sides of the equipment.  This
becomes even more obvious when you consider that the belt was
running at the time Laird was attempting to adjust the tracking
on it.  If Laird had used a safe means of access, such as a
secured ladder, he would not have fallen onto the running belt.

     There was testimony to the effect that ladders were
available on the premises, but they were inside a trailer rather
than in place on the equipment.  Mr. Laird testified that no
ladder was available to him, and he saw no other way to access
the belt to make the needed adjustments other than to climb up
onto the I-beam.

     I find that there was a violation of the cited standard
since no safe means of access was readily available and in any
case, no safe means of access was used by Laird in this instance,
even if one could argue that he should have gone wherever he had
to to locate a suitable ladder.

**FOOTNOTES**

     [3]:/ 30 C.F.R.  56.14107(a) provides in pertinent part
that:  "Moving machine parts shall be guarded to protect persons
from contacting gears, sprockets, chains, drive, head, tail, and
take up pulleys. . . that can cause injury."

     [4]:/ The under scalping screen conveyor is a horizontal in-
house manufactured conveyor that Beck Materials Company
manufactured in approximately 1989.  The conveyor belt is
30-inches wide and the conveyor measures approximately 20-feet
from the head pulley to the tail pulley.  It is electrically
powered and travels at approximately 250 feet per minute.  The
top of the conveyor belt is approximately 6  feet above ground
level.

     Applying the Mathies test, I find that the violation is a
significant and substantial one given that the lack of a safe
means of access contributed to the serious injury sustained by
Mr. Laird.

     I also find that the negligence involved in this violation
demonstrates aggravated conduct on the part of the operator and
it is properly designated as an "unwarrantable failure" order.
Mr. Foster, the mine superintendent, who did not appear to
testify in this case, was on the premises at the time, knew that
Laird was working alone and in fact, had personally instructed
Laird at an earlier date regarding the procedure for adjusting
the tracking on these belts, including making the adjustments
without a ladder or other safe means of access to do so.
Furthermore, on many previous occasions, Laird had observed
Foster, and others, adjust the belts without deenergizing the
equipment and without using a safe means of access to reach the
adjustments on the equipment.  Accordingly, Order No. 4329267
will be affirmed herein, as issued, in its entirety.

     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 $1000, as proposed by the Secretary for this order,
will serve to satisfy the public interest in this matter.

     Inspector Seelke also issued a section 104(a) citation on
January 31, 1995, to Beck Materials (Citation No. 4329268).  This
was basically a guarding violation.  Allegedly, the drive pulley
on the under scalper conveyor was not sufficiently guarded.

     The equipment was in fact guarded sufficiently for anyone
approaching the pinch point from the ground, the more foreseeable
hazard.  The problem in this case and the reason that the
inspector issued the citation was that an employee, Laird, found
a way, by using the I-beam as a walkway, to get into the pinch
point between the conveyor belt and the drive pulley of the under
scalping screen conveyor despite the existing guarding.

     The finding of violation follows from the fact that Laird
did in fact make contact with the unguarded moving parts from
above, no matter how difficult it might have been to foretell
that occurrence beforehand.  Likewise, the violation is
significant and substantial ("S&S") simply because of the gravity
of the occurrence and the resultant very serious injury to
Mr. Laird.

     The only issue I take with the inspector who wrote the
instant citation is that of the negligence factor contained in
Block No. 11 of the citation.  I am going to modify that
negligence factor from "moderate" to "low," based on what I
perceive to be the relative unforseeability of contact with the
pinch point from above the pulley as opposed to from the
direction of the ground, from whence it was adequately guarded.
With that modification, Citation No. 4329268 will be affirmed
herein.

     On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria
contained in section 110(i) of the Act, I conclude and find that
a civil penalty of $300 is a reasonable and appropriate civil
penalty that will serve to satisfy the public interest in this
matter.

                              ORDER

     1.  Citation No. 4329266 and Order No. 4329267 ARE AFFIRMED.

     2.  Citation No. 4329268, as modified herein, IS AFFIRMED.

     3.  The Beck Materials Company IS ORDERED TO PAY the
     Secretary of Labor a civil penalty of $2800 within 30 days
     of the date of this decision.

                                Roy J. Maurer
                                Administrative Law Judge

Distribution:

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

Keith A. Wenzel, Esq., Inglish & Monaco, P.C., 237 East High
Street, Jefferson City, MO 65101 (Certified Mail)

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