.
GOOD CONSTRUCTION
February 17, 1999
WEST 98-139-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268

                          February 17, 1999

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 98-139-M
               Petitioner       :  A.C. No. 45-03086-05509
                                :
          v.                    :  Docket No. WEST 98-178-M
                                :  A.C. No. 45-03086-05510
GOOD CONSTRUCTION,              :
               Respondent       :  Good Portable Crusher

                             DECISION

Appearances: William W. Kates, Esq., Office of the
             Solicitor, U.S. Department of Labor, Seattle,
             Washington, for Petitioner;
             James A. Nelson, Esq., Toledo, Washington, 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 Good
Construction, 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 four violations of the
Secretary's safety standards.  A hearing was held in Kelso,
Washington.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Good Construction operates a portable crusher at its Brown
Road Quarry in Lewis County, Washington.  The quarry is owned and
operated by Allen L. Good.  On October 21, 1997, MSHA Inspector
Arnold Pederson inspected the quarry.  During the inspection, he
issued a number of citations including the three citations and
one order at issue in these proceedings.

     A.  Citation No. 7962491

     This citation alleges a violation of 30 C.F.R.  56.9300(a),
as follows:

          A berm was not placed on the outer edge of an
          approximately 150- foot long by 20- to 40-
          foot wide section of elevated access road to
          the mine, where a drop-off exists of
          sufficient grade or depth to cause a vehicle
          to overturn or endanger persons in equipment.
          The road was widened about two months ago so
          trucks could exit the scale and make
          traveling safer for passing.  The operator
          was aware that this condition existed but had
          not installed the berm.

     Inspector Pederson determined that the violation was of a
significant and substantial nature ("S&S") and was the result of
Good Construction's high negligence.  He issued the citation
under section 104(d)(1) of the Mine Act and alleged that the
violation was the result of Good Construction's unwarrantable
failure to comply with the safety standard.  Section 56.9300(a)
provides that "[b]erms or guardrails shall be provided and
maintained 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."  The citation was terminated the
following morning after large rocks were placed along the outer
edge of the roadway.  The Secretary proposes a penalty of $600
for this alleged violation.

     I find that the Secretary established a violation of the
safety standard.  There is no dispute that a berm was not present
along 150 feet of the roadway.  In addition, there is no dispute
that a drop-off existed along the outer edge of the roadway.
Good Construction argues that the roadway was of sufficient width
that a berm was not required.  It also argues that the standard
is so vague that it fails to give mine operators notice of when a
berm is required.  I reject these arguments.  First, I find that
the safety standard is clear with respect to its application in
this case.  A berm is required whenever there is a sufficient
drop-off where a vehicle could overturn if it traveled off the
edge of the road.  The drop-off on the roadway in this instance
was of a sufficient grade to cause a vehicle to overturn.
Although there may be a point at which a roadway is so wide that
berms are unnecessary, the roadway in this instance was 30 to 40
feet wide at its narrowest point and berms were necessary to
protect the safety of truck drivers.

     I find that the violation was the result of Good
Construction's moderate negligence and that the Secretary did 
not establish that the violation was the result of Good
Construction's unwarrantable failure.  In making his
unwarrantable failure determination, Inspector Pederson relied
heavily on the fact that Mr. Good was candid in stating that he
was aware that berms were required on elevated roadways.  In this
instance, however, there are a number of mitigating circumstances
that must be taken into consideration.  At the time of the
inspection, Good Construction was in the process of relocating
and widening the access road.  Good Construction started
rebuilding the road in the late summer of 1997 and the project
took a little over three months to complete.  (Tr. 88).  Good
Construction began putting rock on the surface of the road the
first week of October.  When Inspector Pederson arrived, trucks
had been using the new road for about one week.  Good
Construction had just completed grading the outer edges of the
roadway and was set to install the berm.  Good Construction
planned to use rocks for the berm because an earthen berm could
cause silting of the water runoff.  (Tr. 90-91).  It had gathered
the rocks for this purpose and placed them near the scale house.
(Tr. 91, 124, 127).

     The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February
1991).  The Commission stated that several "factors are relevant
in determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the
violation, the length of time that the violative condition has
existed, the operator's efforts to eliminate the violative
condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance."  Mullins and Sons
Coal Co., Inc., 16 FMSHRC 192, 195 (February 1994)(citation
omitted).

     I rely on a number of facts in holding that the violation
was not the result of Good Construction's unwarrantable failure.
The access road in question is only about 150 to 200 yards long.
The trucks that use this roadway are "highway legal," so they are
no more than eight feet wide.  County roads in the area are about
24 feet wide while the access road varied between about 42 and 85
feet wide without berms.  (Tr. 92, 130).  The trucks using the
access road traveled at a low rate of speed.  (Tr. 15, 44).  As a
consequence, the violation was not extensive and the risk of
injury very low.  The violation had only existed for about a week
and the operator was getting ready to install rock berms.  (Tr.
89-90).  Good Construction had not been put on notice that
greater efforts were necessary.  Although Good Construction
should have installed berms before it permitted trucks to use the
roadway, its failure in this regard does not constitute "reckless
disregard" of the safety of the truckers, "intentional
misconduct," "indifference" to safety, or a "serious lack of
reasonable care."  Good Construction did not believe that it was
endangering truck drivers and I find that its conduct constituted
no more than ordinary negligence.  The citation is modified to a
section 104(a) citation.

     I also find that the violation was not S&S.  An S&S
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 ... 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.  National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
set out a four-part test for analyzing S&S issues.  One must
assume "continued normal mining operations" when evaluating
whether a violation is S&S.  U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984).  The question of whether a particular
violation is S&S must be based on the particular facts
surrounding the violation.  Texasgulf, Inc., 10 FMSHRC 498 (April
1988).

     In order to establish that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of the safety
standard; (2) a discrete safety hazard, 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.

     The Secretary established all parts of this test except part
three.  I find that it has not been established that it was
reasonably likely that the hazard contributed to by the violation
would result in an injury.  The access road was wide, the
vehicles that used the road were no more than 8 feet wide, the
speed of vehicles on the road was 15 miles per hour or less, and
the unbermed portion of the road was about 150 feet long.  The
condition had lasted about a week and, assuming continued normal
mining operations, the condition would have been corrected within
a few days.  An accident was not likely.

     Although I do not rely on this fact, it is interesting to
note that the inspector first testified that it was unlikely that
the cited condition would result in an accident because of the
low speeds on the road and the courtesy exhibited by truck
drivers on the road.  (Tr. 15).  After he was shown a copy of the
citation, he testified that an accident was reasonably likely.
(Tr. 15-16).   Thus, the inspector implicitly conceded that the
S&S issue is close.

     B.  Order No. 7962495

     This order alleges a violation of 30 C.F.R.  56.9301, as
follows:

          Both sides of the approach to the feed hopper
          were not bermed.  The ramp was approximately
          30 feet long and gradually elevated to about
          12 feet high.  The plant was recently moved
          to its present location, ramp to the feeder
          installed, but berms [were] not placed to
          prevent the front-end loader from
          overtraveling, especially with the loaded
          bucket raised.

     Inspector Pederson determined that the violation was not S&S
and was the result of Good Construction's high negligence.  He
issued the order under section 104(d)(1) of the Mine Act and
alleged that the violation was the result of Good Construction's
unwarrantable failure to comply with the safety standard.
Section 56.9301 provides that "[b]erms, bumper blocks, safety
hooks, or similar impeding devices shall be provided at dumping
locations where there is a hazard of overtravel or overturning."
The citation was terminated ten minutes later after berms were
installed on both sides of the ramp.  The Secretary proposes a
penalty of $300 for this alleged violation.

     I find that the Secretary established a violation.  Good
Construction does not dispute the fact that there were no berms
on the sides of the ramp leading to the feed hopper of the
crusher.  Good Construction argues that there was no real danger
of overtravel or overturning for a number of reasons.  The ramp
was only 6 feet above the ground at the top and it was only 25
feet long.  (Tr. 96-97).  Because loaders are about 22 feet long,
the rear wheels would only be a few feet above the ground level
when the loader operator was dumping material into the feeder.
(Tr. 123).  The ramp was about 22 feet wide and the loaders were
about 8 feet wide.  (Tr. 25, 107).   The area around the ramp was
flat and open so it was not difficult to approach the ramp head
on.  (Tr. 122).  I find that these factors relate to the gravity
of the violation rather than the fact of violation.  The lack of
berms presented a hazard that one of the front wheels of a loader
would travel off the edge of the ramp as the operator was
approaching the feeder.  I find that the gravity was low,
however, because such an event was unlikely given the facts
discussed above.

     I also find that the violation was not the result of Good
Construction's unwarrantable failure.  Inspector Pederson
testified that he based his unwarrantable failure determination
on the fact that, when questioned, Mr. Good could not offer any
excuse for the lack of berms.  (Tr. 25).  There is no dispute
that the crusher had been recently moved within the quarry and a
new ramp was constructed out of earth and rock.  That ramp had
been in use for about a week.  (Tr. 24, 106).  Prior to the move,
the ramp to the feeder had been provided with berms.  (Tr. 106).
Good Construction's conduct does not demonstrate "reckless
disregard" or "intentional misconduct" with respect to the
requirements of the safety standard.  It could indicate
"indifference" or a "serious lack of reasonable care," however.
In this case it appears that the lack of berms was an oversight.
A new ramp had to be constructed when the crusher was moved and,
due to an oversight, berms were not added.  The condition had
existed for about a week but the violation did not create a
serious safety hazard.  I find that the violation was the result
of Good Construction's ordinary negligence.  The order is
modified to a section 104(a) citation.

     C.  Citation No. 7962493

     This citation alleges a violation of 30 C.F.R. 
 56.14132(b)(1), as follows:

          An automatic reverse signal alarm was not
          installed on the ... fuel truck that is used
          to store and dispense fuel for equipment at
          the mine.  The fuel truck is driven in the
          mine occasionally.

     Inspector Pederson determined that the violation was not S&S
and was the result of Good Construction's moderate negligence.
He issued the citation under section 104(a) of the Mine Act.
Section 56.14132(b)(1) provides, in part, that "[w]hen the
operator has an obstructed view to the rear, self-propelled
mobile equipment shall have" a backup alarm or an "observer to
signal when it is safe to back up."  The citation was terminated
the following day after a wheel bell was installed.  The
Secretary proposes a penalty of $50 for this alleged violation.

     The fuel truck had an obstructed view to the rear and it was
not equipped with a backup alarm.  Good Construction contends
that it complied with this standard by having an observer to
signal the driver of the fuel truck when it is safe to back up
the fuel truck.  (Tr. 103, 107, 115).  It is not disputed that
this truck is rarely moved.  Other vehicles in the quarry are
driven to the fuel truck when refueling is necessary.  The fuel
truck is not licensed so it never leaves the quarry.  Mr. Good
stated that the fuel truck is moved from time to time and that it
may be required to back up when it is moved.  (Tr. 101-03).  He
stated that an observer is present when the truck is backed up.
(Tr. 103, 107, 115). Inspector Pederson did not observe the fuel
truck backing up.  (Tr. 27).  He testified that during his
inspection, Mr. Good "didn't mention about having an observer,
although [that's] not to say there couldn't have been [one]."
(Tr. 28).  On the other hand, Inspector Peterson also stated that
Mr. Good told him that they normally would not use an observer.
Id.  This testimony is rather ambiguous.

     It is not clear from the testimony whether Good Construction
has backed up the fuel truck without having an observer present.
The truck was not moved on the day of the inspection.  The
inspector's testimony is somewhat ambiguous as to the
conversation he had with Mr. Good and there is no direct proof
that the fuel truck was backed up without an observer being
present.  Another administrative law judge held that the
Secretary had not established a violation when faced with a
similar dispute concerning whether an observer had been used in
lieu of an alarm.  The judge discussed the issue as follows:

          I find that in order to have made a prima
          facie case of a violation, the Secretary must
          have produced some evidence that the
          respondent was operating the equipment
          without a reverse signal alarm or an observer
          at some definite time or at least some date
          certain.  To hold otherwise would force the
          respondent to prove the negative, i.e. that
          it did not operate the equipment in violation
          of the standard on any day since it was first
          acquired, which was years before the citation
          was written.

River Cement Co., 10 FMSHRC 1027, 1029-30 (August 1988)(emphasis
in original).  I agree with the judge's reasoning.  The Secretary
contends that there have been occasions in which the fuel truck
was backed up without an observer present, but she offered
insufficient evidence to support her contention.  Since the
Secretary bears the burden of proof, I vacate the citation.

     D.  Citation No. 7962494

     This citation alleges a violation of 30 C.F.R.
 56.14132(b)(1), as follows:

          The Ford utility truck, with an air
          compressor and welding machine in the back,
          had an obstructed view to the rear.  An
          automatic reverse signal alarm was not
          installed to warn people when backing.  The
          truck is used in the plant for maintenance
          and construction purposes.

     Inspector Pederson determined that the violation was not S&S
and was the result of Good Construction's moderate negligence.
He issued the citation under section 104(a) of the Mine Act.  The
citation was terminated the following day after a signal alarm
was installed.  The Secretary proposes a penalty of $50 for this
alleged violation.

     The utility truck was not equipped with a backup alarm.
Good Construction contends that the view to the rear of this
truck was not obstructed.  Mr. Good testified that the view to
the rear of the utility truck was as clear as the view to the
rear in a pick-up truck with the tail gate closed.  (Tr. 111).
He testified that the welding equipment and the air compressor
did not obstruct the driver's view sufficiently to prevent him
from seeing a pedestrian behind the truck.  Although I agree that
the utility truck driver would be able to see most pedestrians,
blind spots existed that created a hazard.  (Tr. 32; Ex. R-5).  I
find that the cited utility truck had an obstructed rear view.
Accordingly, I find that the Secretary established a violation
and I affirm the citation.

     Based on the evidence presented at the hearing, I find that
an accident was unlikely and that the violation was not serious.
I find that Good Construction's negligence was slightly less than
that determined by the inspector.  First, the view to the rear of
the vehicle was only slightly obstructed.  Second, this quarry
has been inspected by MSHA on many occasions, Good Construction's
utility trucks were not equipped with backup alarms, and no
citations were previously issued.  (Tr. 105-06).

                 II.  APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties.  I find
that no citations were issued at the quarry during the two years
prior to this inspection.  (Ex. P-1; Sec. Prehearing Submission).
The quarry is a relatively small- to medium-sized facility that
employed about 10 miners in 1997 and worked 26,339 man-hours in
1996.  The record does not reveal that Mr. Good owns any other
facilities.  The violations were rapidly abated.  The penalties
assessed in this decision will not have an adverse effect on Good
Construction's ability to continue in business.  My findings with
regard to gravity and negligence are set forth above.  Based on
the penalty criteria, I find that the penalties set forth below
are appropriate.

                           III.  ORDER

     Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C.  820(i), I assess the following civil penalties:

     Citation  No.            30 C.F.R.          Penalty

     WEST 98-139-M

       7962493                56.14132(b)(1)      Vacated
       7962494                56.14132(b)(1)       $40.00

     WEST 98-178-M

       7962491                56.9300(a)            80.00
       7962495                56.9301               80.00

     Accordingly, the citations listed above are hereby VACATED,
AFFIRMED, or MODIFIED as set forth above, and Good Construction
is ORDERED TO PAY the Secretary of Labor the sum of $200.00
within 40 days of the date of this decision.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

William W. Kates, Esq., Office of the Solicitor, 
U.S. Department of Labor,
1111 Third Avenue, Suite 945, 
Seattle, WA 98101-3212  (Certified Mail)

James A. Nelson, Esq., 
P.O. Box 878,
Toledo, WA 98591  (Certified Mail)

RWM