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[DOCID: f:c97181rm.wais]

 
BLUE CIRCLE, INC.
April 8, 1998
CENT 97-181-RM

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          April 8, 1998

BLUE CIRCLE, INC.,                 : CONTEST PROCEEDING
               Contestant          :
          v.                       : Docket No. CENT 97-181-RM
                                   : Citation No. 7855639; 4/2/97
SECRETARY OF LABOR,                :  Modified 7/22/97
 MINE SAFETY AND HEALTH            :
 ADMINISTRATION (MSHA),            : Tulsa Plant
               Respondent          : Mine ID No. 34-00026

                             DECISION

Appearances: Greg Ruffennach, Esq., Ruffennach Law Offices, Durango,
             Colorado, for the Contestant;
             Mary  Schopmeyer, Esq., Suzanne Dunne, Esq., U.S.
             Department of Labor, Office of the Solicitor, Dallas,
             Texas, for the Respondent.

Before: Judge Bulluck

     This case is before  me on a Notice of Contest filed by Blue
Circle, Inc. ("Blue Circle")  against  the  Secretary  of  Labor,
acting   through   her  Mine  Safety  and  Health  Administration
("MSHA"), pursuant to  section 105 of the Federal Mine Safety and
Health Act of 1977, 30  U.S.C.  801  et seq. ("Mine  Act"),  in 
which  Blue  Circle challenges a citation that it was  issued under
section 104(a) of the Act.

     A hearing was  held  in  Tulsa,  Oklahoma  and  the  parties
submitted  post-hearing briefs.  For the reasons set forth below,
the citation shall be affirmed.

I.  Stipulations

     The parties stipulated to the following facts:

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

     2.  The presiding Administrative Law Judge  has jurisdiction
to hear and decide this matter.

     3.   The subject citation, as well as the amended  citation,
were  properly  issued  and  served  by  a  duly  authorized
representative  of  the  Secretary of Labor, Mine Safety and
Health Administration, upon  an  agent  of the Contestant on
the date and place stated therein.

     4.  The Contestant has filed a timely notice of contest.

     5.  The abatement period, should this violation be upheld by
this  Court,  shall  be  eight weeks from the  date  of  the
Court's decision.

II.  Factual Background

     Blue Circle operates a limestone  quarry  and  cement  plant
near  Tulsa,  Oklahoma.   The limestone is mined on site and
transported overland to a bulk  storage  facility  where two
overhead cranes ("No. 1 crane" and "No. 2 crane"), traveling
the  length  of  the  main  bay on the same set of rails  at
varying speeds ranging from slow  to  very fast, pick up and
dump rock and other bulk materials into  large  hoppers (Tr.
103-104, 184; Ex. R-3).  Located at the end of the rails are
large,  3  x  4 feet metal bumpers (end-stops), designed  to
prevent the wheels  from  derailing and causing the crane to
fall some 60 feet to the ground  (Tr.  25, 32, 44).  One end
of  the  building  is  enclosed,  while  the  other  end  is
completely open to the outside (Tr. 44, 80).

     While similar in basic design, the cranes were  manufactured
by different companies (Tr. 13).[1]  Each crane consists of a bridge
that spans the east-west  distance  between  the  parallel rails,
and  runs north  and south to the ends of the building  (Tr.  25,
75, 132, 182).   Suspended from each bridge near the center is a
stationary, glass  enclosed, operator's cab (Tr. 13, 26, 52,
161), as well as a trolley  that  travels  east  and west on
girders affixed to and above the bridge (Tr. 13, 53-54, 182-
183).  The trolley supports two hoists that lift and lower a
clamshell  bucket,  which moves the bulk materials (Tr.  13,
182).  The motion of  the bridge, the trolley and the bucket
is controlled by use of  levers  located within the cab (Tr.
102-103, 184; see Ex. C-4).

     The  No.  1  crane,  newer in design,  is  equipped  with  a
hydraulic braking system,  whereby its drum brake is applied
by  a  foot pedal during operation  of  the  crane  (service
brake),  or  by  application of a console switch, which sets
the brake in a parking mode (emergency brake)
(Tr. 167).  The No.  2  crane was originally manufactured so
that its drum brake could  be  activated by a hydraulic foot
pedal located in the cab (service  brake)  (Tr. 16, 65, 165-
166, 177), or by electrical means when the operator pulled a
lever located behind his chair, which would disconnect power
to the entire crane, as well (emergency brake) (Tr. 14, 131,
137, 164-166). The crane has four motors: a motor to drive  the 
bridge;  a motor to drive the trolley; and two motors controlling
hoist motion--one  for  holding the clamshell bucket and the other
for opening/closing the bucket (Tr. 181-182).

     Sometime around late 1989/early 1990, Blue Circle  made
modifications   to   the   No.   2   crane,  which  included
reconfiguring the cab by installation  of  a  new operator's
swivel chair and two emergency-stop buttons (one  on  either
side of the operator's chair), and  removal of the hydraulic
foot pedal (Tr. 14, 139, 168-169, 171-173).  At some earlier
time,  the  actual hydraulic mechanism had been removed from
the  crane  (Tr.   172).    As   a   consequence   of  these
modifications, the crane has been operated without a service
brake   and  the  sole  means  of  activating  the  friction
emergency/parking  brake  has been by pressing either of the
emergency-stop  buttons  (Tr.   14).    Since  engaging  the
emergency  brake  shuts off the power to the  entire  crane,
this violent method  of  stopping  is reserved for emergency
situations only (Tr. 20-22, 28, 130, 162-164, 189).

      In order to stop the No. 2 crane during the normal course
of operations, the operators use a slowing method or braking
means  referred  to  as  "plugging,"  whereby reversing  the
bridge  motor's  torque to create a magnetic  field  in  the
direction opposite  of  that  in which the motor is running,
creates  friction  on  the wheels  by  the  back  and  forth
movement, until the crane  comes  to  a stop (Tr. 15, 70-71,
81, 194).

     On April 2, 1997, MSHA Inspector Don Richards  conducted  an
electrical  inspection  of  the  Tulsa  plant, pursuant to a
hazard complaint (unrelated to the operation  of  the crane)
(Tr. 47-49).  Upon his arrival, he was met by Blue  Circle's
safety  representative  Jerry  Dean,  who,  based  on safety
concerns,  directed the inspector's attention to the  No.  2
crane (Tr. 12).   During  his inspection of the No. 2 crane,
Inspector  Richards discovered,  among  other  things,   the
removal of the  hydraulic foot pedal and the installation of
the two emergency-stop buttons (Tr. 14).  Inspector Richards
then interviewed  two crane operators, traveled in the crane
with an operator, and  conducted  motion/stop tests (Tr. 14,
16,  18-20,  25-26,  28, 40).  Based  on  his  observations,
interviews  and  test  results,  Inspector  Richards  issued
section 104(a)  citation  No. 7855639 to Blue Circle on that
day, alleging a significant  and substantial violation of 30
C.F. R. 56.14101(a)(3) [later  modified  on  July  22nd  to
allege   a   violation   of  56.14100(b)],  describing  the
violation as follows:

          The overhead, rail mounted, #2 clamshell crane, located
     in the south crane storage  building, was observed operating
     without  the  factory equipped  foot  brake  that  had  been
     originally installed  on  it.   The  brake  was removed some
     months  ago  and  no  provision was made to install  another
     brake.   The crane is now  stopped  by  plugging  the  drive
     motor.  There are two cranes that operate in the south crane
     storage building  on  the  same rail at the same time.  They
     work in close proximity daily  and the lack of a foot brake,
     as a means of stopping the crane,  increases the possibility
     of  an accident or injury.  The other  crane  has  its  foot
     brake intact and operational (Ex. R-1).

III.  Findings of Fact and Conclusions of Law

     A. Fact of Violation

     30  C.F.R.  56.14100(b)  provides  that:  "Defects  on  any
equipment,  machinery,  and  tools  that  affect  safety shall be
corrected in a timely manner to prevent the creation  of a hazard
to persons."  The seminal issue for resolution, then, is  whether
removal of the manufacturer-installed hydraulic service brake  on
the P&H No. 2 crane constitutes a defect that affects safety.

     In  discussing  the  broad  applicability  of  the generally
worded predecessor regulation, [2] the Commission has  emphasized
that  the  standard  must  be  construed  in  consonance with the
fundamental  protective  ends  of  the  Mine  Act,  so  that  the
"integrity  of  a  machine  is  not defined solely by its  proper
functional performance but must also be related to the protection
of miners' health and safety."  Ideal Cement Co., 12 FMSHRC 2409,
2414-15 (November 1990) (Ideal I).

     1. Defect

     In order to establish a violation  of  this  regulation, the
Secretary must establish that 1) there was a defect  in the No. 2
overhead crane; 2) the defect affected safety; and 3)  the defect
was not corrected in a timely manner to prevent the creation of a
hazard.   Respecting  the  first  element  of this analysis,  the
Commission  has  previously  adhered to the ordinary  and  mining
industry usage of the term "defect" as a "fault, a deficiency, or
a condition impairing the usefulness  of  an  object  or  a part.
Webster's  Third  New  International  Dictionary (Unabridged) 591
(1971);  U.S.  Department  of  Interior,  Bureau   of   Mines,  A
Dictionary  of  Mining,  Mineral  and  Related Terms 307 (1968)."
Allied Chemical Corporation, 6 FMSHRC 1854,  1857  (August 1984).
Moreover, the Commission has held that a missing, as  well  as  a
defective  component, may constitute an equipment defect, and the
defect or missing  component need not affect the operation of the
equipment.  12 FMSHRC  2415; 6 FMSHRC 1857.  In the instant case,
there is no dispute that  the  missing hydraulic service brake on
the No. 2 crane constitutes a "defect"  within the meaning of the
regulation, Blue Circle concedes this point, and I so conclude
(C. Br. at 9).

     2. Affects Safety

     The parties  are in dispute, however, as to whether the
defect  affects   safety.    Respecting  this  element,  the
Commission has repeatedly stated that the "phrase `affecting
safety' in the standard has a  wide  reach  and  the `safety
effect of an uncorrected equipment defect need not  be major
or immediate to come within that reach."  Ideal Cement  Co.,
13 FMSHRC 1346, 1350 (September 1991) (Ideal II), citing Ideal
I, 12 FMSHRC 2415, citing Allied Chemical Corp.,
6  FMSHRC  1854,  1858.  Recognizing that adequate notice of
the conduct prohibited by the regulation must be accorded to
the operator, the Commission  has required that the evidence
be evaluated  in light of what a  "reasonably  prudent  person,
familiar with the mining industry and the protective purpose
of the standard,  would  have  provided in order to meet the
protection intended by the standard."  12 FMSHRC 2415, 2416,
citing  Canon  Coal Co., 9 FMSHRC  667,  668  (April  1987);
Quinland  Coal, Inc.,  9  FMSHRC  1614,  1617-18  (September
1987).  The  Commission  has  provided  further  guidance on
application of this objective test by recognizing  "that the
various  factors  that  bear  upon  what a reasonable person
would   do   include   safety   standards  in   the   field,
considerations  unique  to  the  mining  industry,  and  the
circumstances  at  the  operator's  mine."    BHP   Minerals
International  Inc.,  18  FMSHRC  1342,  1345 (August 1996),
citing U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983).

     The  Commission, in Ideal I, has provided  a  practical
framework  in  which  to  make  such analysis, by specifying
categories of evidence to be examined  in the context of the
modified condition in which the equipment  was  being  used.
Within   that   framework,   in  the  instant  case,  it  is
appropriate to examine, at least,  the  following  evidence:
1) the testimony of Blue Circle employees and the inspectors
regarding  whether  operating  the  No. 2 crane without  the
hydraulic service brake affects safety;  2)  any evidence of
whether the presence of the hydraulic foot pedal impeded the
equipment operators' use of the equipment; 3)  any  evidence
of  the  whether  the  operator's safety policies prohibited
removal of the hydraulic  service brake; and 4) any evidence
of  industry or manufacturer's  policy  on  removal  of  the
hydraulic service brake and the circumstances, if any, under
which it could be removed without impairing safety.
See 12 FMSHRC 2416.

     The Secretary takes the position that,irrespective of the
No.  2  crane's  ability  to  stop/perform  within  national
industry standards, removal  of  the hydraulic service brake
poses  a  hazard  to miners' safety (R.  Br.  at  4).   Blue
Circle,  on  the contrary,  contends  that  removal  of  the
hydraulic service  brake  does  not adversely affect safety,
since  the  crane  meets  national  safety   standards   and
Occupational   Health   and   Safety  Administration  (OSHA)
regulations, and the crane can  be stopped safely under both
normal  and  emergency  conditions.  Moreover,  Blue  Circle
asserts that it has been denied fair notice (C. Br. at 7-8).

     Inspector Donald Richards testified to having interviewed
two crane operators who related having experienced  numerous
electrical  problems on the No. 2 crane (blown fuses,  wires
burned off of  connections, and power failure to the motor),
and who attributed  the  inability  to hold the crane in one
place  by plugging, as the cause of collisions  between  the
clamshell  bucket  and  the cab, knocking off the end-stops,
and near-derailments (Tr. 16-17, 19, 24-26, 43).  He further
testified to having been  told  of the confusion experienced
by new operators, caused by having to switch between the No.
1 and 2 cranes, with differing braking  configurations  (Tr.
19-20).   Moreover,  he  stated that when he had an operator
demonstrate plugging on the  No. 2 crane, by running it from
one end of the building to the  other  at  high  speed,  the
violent  jumping and vibrating that occurred, accompanied by
tremendous  noise, "stressed everything on it" (Tr. 18, 40).
In this regard,  the inspector explained that, while pulling
and lifting functions usually cause stress cracks on cranes,
violent motion worsens  these  cracks  which,  taken  to the
extreme,  have resulted in derailment and, ultimately, death
(Tr.   19,   23-24).    Additionally,   Inspector   Richards
characterized   employment   of   the  emergency  brake  for
stopping,  as a "last ditch effort,"  because  of  its  very
violent nature  and,  due  to  disconnection  of  all power,
because it deprives the operator of all control (Tr. 20-22).
In his opinion, operating the crane without the availability
of  the  hydraulic  service brake poses a safety hazard,  by
depriving the operator  of  a  means  of  immediate stopping
that  does  not kill the power to the crane completely.   He
reasoned that  plugging  is  a  slowing, rather than braking
function, which requires estimates based on speed and weight
of load, it neither enables the operator  to  hold the crane
nor does it aid in checking the swing of the bucket when the
operator  has  to  stop  suddenly;   more  importantly,   in
situations  of  total  power  failure and/or emergency brake
failure,  it  renders the operator  powerless,  without  any
brake  at  all (Tr.  18,  27-28,  29-32).   While  Inspector
Richards  conceded   that  the  crane  stopped  within  OSHA
guidelines,[3]   he testified  that  the  hydraulic  service
brake  is  necessary   for  safe  operation  of  the  crane,
nevertheless, especially  in light of the close proximity in
which the cranes operate on  the  same rails, and since they
have already collided (Tr. 38-42).

     MSHA Inspector Stephen Dubina, an expert in  electrical
engineering, performed an inspection  of  the No. 2 crane on
August  12,  1997,  which included visual inspection,  stop-
testing using the emergency  brake,  and  interview of crane
operators (Tr. 64; see Ex. R-3).  Inspector Dubina testified
that, notwithstanding the fact that the crane stopped within
CMAA guidelines using the emergency brake and held the crane
in place (Tr. 66-67, 83, 88),[4]  the bucket swung radically
(Tr. 83), the crane jerked violently and "you could hear the
grinding  and  other  bad things happening inside  the  gear
cases, so that it's not  a  thing  that you want to stop the
bridge every time using that parking  brake"   (Tr.  89-90).
Plugging  is  an  ineffective  braking method, he explained,
because it slows the conveyance, rather than holding it in a
specific spot or bringing it to  an  immediate stop (Tr. 66-
67,  69,  81-82,  86).   While the inspector  asserted  that
plugging is the accepted stopping means used in the industry
during  anticipated  movement,   he   opined   that   during
unanticipated   movement   of   a  crane  (caused  by  wind,
vibrations, or tilted rails, for  example), there exists the
potential for injury and the ability  to  hold  the crane in
place is crucial (Tr. 78-80, 84, 94, 96-99).  The ability to
hold the bridge in place is also crucial to picking  up  and
dumping  loads, he noted, in which case use of the emergency
brake is essentially  prohibitive  because  it  cuts off all
power  to  the  crane  (Tr.  91).   He also stated that  the
operators  expressed  concerns  about plugging  failures  in
which  they  were  unable  to stop until  friction  actually
stopped  the  crane  or  it hit  something,  and  about  new
operators having difficulty  switching between operating the
two cranes (Tr. 68, 72-73).

     The Secretary presented compelling testimony of several Blue
Circle  employees who have operated  or  serviced  the  No.2
crane within  the  last  decade.   Jerry  Pardue,  a 26 year
employee and crane operator from July 1995 to July 1996 (Tr.
117),  testified  that,  due to loss of control more than  a
dozen  times  from  power  failure  and/or  emergency  brake
failure, he had collided with  the other crane, run into the
end-stops, and on one occasion when he had gone on vacation,
the relief operator had knocked out all the cab windows with
the  bucket  (Tr. 105-106, 108, 111-112).   Pardue  asserted
that, because  Blue  Circle  did not reinstall the hydraulic
service brake as he had requested, after these incidents had
been reported and Pardue had removed  the crane from service
for approximately two weeks, he refused to operate the crane
without the brake and ultimately changed  jobs in mid-summer
1996 (Tr. 108-113).

     25-year employee Jerold Emerson, a crane operator for 3
years (primarily on the No. 2 crane for 1  years) (Tr. 119,
127), testified that he experiences  electrical  failures in
the cab on an average of 1 to 2 times per week, that  he has
had   the   bucket  "kiss"  the  cab,  that  depressing  the
emergency-stop button causes dust to fly everywhere and loss
of control of  the  swinging bucket, that it is difficult to
hold the crane in one  position  by  plugging, that  of the
crane  operators  are  rookies  and have problems  switching
between the cranes, and that plugging  involves guesswork as
to where the crane will stop (Tr.120-125).  Additionally, he
expressed  his  belief that an operator is  better  able  to
predict where the  crane  will  stop  by using the hydraulic
service brake than with plugging, and the  hydraulic service
brake provides a means of stopping in situations  where both
plugging and the emergency brake fail (Tr. 123, 127).

     David  Ford, an  employee  of  19  years,  currently
an  electrician who services the cranes  and formerly 
a vacation  relief  operator  for 8 years (Tr. 129), 
testified to experiencing both plugging  and emergency
brake failure, having accidents in which he knocked the end-
stops  off  the building and the crane almost derailed  (Tr.
131-132), being  thrown  about  the cab and suffering injury
resulting  in a 5% back disability  (Tr.  130),  and  having
another worker  riding  the bridge when one of the accidents
occurred (Tr. 132-133, 138).   Further,  he  explained  that
since  the trolley is routinely serviced by workers standing
atop the  bridge,  which "is like a big sail in the wind, it
will move, " it is necessary  to  for  an operator to have a
safe means of holding the bridge in place  from the cab (Tr.
142).   Moreover,  Ford asserted that the hydraulic  service
brake permits compensation  for  overestimates  in plugging,
that because the two cranes work in close proximity  to each
other,  it is necessary to have a second method of stopping,
and that  production  supervisor Don Jones instructed him to
rely on plugging and the  hydraulic  service  brake  to stop
(Tr. 134-136).

     Jerry  Dean, 25-year employee and former miners'  union
representative, testified to having received complaints from
workers   about  unsafe  conditions  on  the  No.  2  crane,
including inability to stop during power failures, and  lack
of control over the swing of the bucket during plugging (Tr.
144-147).  Furthermore, he stated that he had reported these
complaints to management (Tr. 147).

     Blue Circle presented the testimony of utility supervisor
Ronald Glover, a 23 year employee and former  operator of the
No. 2 crane in or around 1966,  when  it  was relatively new
and long before the hydraulic service brake was removed (Tr.
152-153, 155).  Glover opined that removal  of the hydraulic
service  brake  did not affect safe operation of  the  crane
(Tr. 153).  He admitted, however, that he had never used the
emergency-stop, nor had he experienced plugging failure (Tr.
154).

     In considering the next category, whether the hydraulic
service brake impeded the operators' ability to operate  the
crane,  the  evidence establishes that the hydraulic service
brake was removed  due  to frequent leaks of hydraulic fluid
(Tr. 138-139, 171).  While  James  Kriel,  senior electrical
engineer at Blue Circle, testified on behalf  of Blue Circle
that the hydraulic foot pedal was in the way of  the  swivel
chair that had been installed when the cab was modified (the
hydraulic  brake  mechanism  had  been  removed previously),
there is no evidence that the foot pedal obstructed safe and
comfortable operation of the controls (See Tr. 168-169).

     The third category of evidence in considering whether safety
is  affected  is  whether  the  operator's  safety  policies
prohibited  removal  of the hydraulic service brake.   James
Kriel also testified that he was unaware of who had made the
decision to remove the  hydraulic brake mechanism previously
or whether Harnischfeger had been consulted, but that it was
he who had made the decision  to  remove  the hydraulic foot
pedal from the cab (Tr. 172).  He asserted  that  safety was
not   a   concern,  since  the  hydraulic  system  had  been
unreliable,  removal  did not degrade the ability to stop by
plugging   under  normal  operating   conditions,   and   an
emergency-stop  system  was  available in adverse situations
(Tr. 169, 171-172).

     In   considering  the  fourth  category,   industry  or
manufacturer's  policy  on removal of the hydraulic  service
brake, 19-year employee Gary Burch, a maintenance welder and
console  operator,  provided   credible   and   unchallenged
testimony  for  the  Secretary on this issue.  Burch  stated
that he had received a  week  of training on the No. 2 crane
in  late  1996/early  1997,  and that  in  response  to  the
question of whether the hydraulic  service brake should have
been   removed,   the   instructor,   a  representative   of
Harnischfeger  Industries,  responded  that   "they're   not
supposed  to  do away with anything that was manufactured on
the crane that has to do with the operation or the safety on
it" (Tr. 149-150).   Burch  also  stated that he had related
this  information  to Blue Circle's safety  and  maintenance
departments  (Tr.  150).    Moreover,   Inspector   Richards
testified  that,  of  the  overhead cranes he had inspected,
none but the No. 2 crane had had the hydraulic service brake
removed  (Tr.  49).   Andrew  Toth,  Blue  Circle's  expert,
testified that he would not recommend  removal  of hydraulic
service  brakes  on cranes similar to the No. 2 crane  as  a
general practice,  since  "there are applications where it's
advantageous  to  use  the  hydraulic   brake  for  accurate
positioning" (Tr. 215-216).  Harnischferer's letter of April
18, 1996, to Blue Circle does not address  the circumstances
under  which  the hydraulic service brake could  be  removed
without compromising  safety, but suggests how the P&H No. 2
crane, in its modified  configuration,  could  fulfill  OSHA
requirements.  While Harnischfeger noted that new P&H cranes
are  equipped  with adjustable frequency electrical controls
(designed to automatically  brake  them  without  the use of
foot  applied  brakes) and parking/emergency brakes,  it  is
clear from the record  that  the No. 2 crane is not equipped
with this technology (See Ex. R-3 at 8-9).

     Andrew Toth, a retired 35-year employee of Harnischfeger,
designed  assemblies for overhead cranes and hoists (Tr. 176-
177).  Pursuant to Blue Circle's request that he examine the
No. 2 crane, Toth rode in the cab with the operator (without
a  load)  in  order  to  test the crane's braking means  and
systems (Tr. 185, 208; see  also  Ex.  C-1).   He  testified
that, according to his test measurements, the crane  stopped
within industry and OSHA standards when plugged, as well  as
when  the  emergency  brake  was employed (Tr. 186-188, 198-
201).[5]  He noted, however, that  while  the  crane stopped
smoothly  when plugged, the stopping action associated  with
the emergency  brake  was  violent  (Tr. 189).  He asserted,
therefore, that the emergency-stop system should be utilized
only when all else fails (Tr. 189).   In  his testimony, Mr.
Toth  also emphasized the pervasive use of plugging  in  the
industry, as an accepted braking means on bridge and trolley
motions  (Tr. 190).  Although he concluded that the crane is
meant to be  plugged  and  that  removal  of  the  hydraulic
service brake does not affect safety,  he acknowledged that,
during his observation, the operator was unable to hold  the
crane  in  position,  nor  did  he,  Toth, observe any tract
clamps or other hold-down devices, which  he  had referenced
in his testimony as alternative holding means (Tr.  202, 205
211;  see Ex. C-1).  Moreover, Mr. Toth stated that he  only
talked  to the operator on duty, and that he did not ask his
opinion as  to  whether  the  missing  brake  posed a safety
problem (Tr. 209).

     It is important to note, at this juncture, that all of the
witnesses were credible, and  gave clear and  concise accounts
of  their  experiences  which,  with  minor  exceptions, were
unrebutted.   Based  on  the  personal  accounts   of  power
failures,   accidents  and  near-misses  by  the  operators,
notwithstanding  the  ability  of  the  crane to stop within
industry  and OSHA guidelines, it is clear  that  there  are
times when the ability to hold the crane is crucial.   James
Kriel even  acknowledged that hydraulic brakes were designed
"from  an operational  point,  to  allow  you  to  precisely
maneuver  the  crane  to  an  exact  point"  (Tr. 174).  The
evidence  of  record  is  overwhelmingly  contrary   to  his
conclusion, however, that "[i]n our operation, we don't have
to  precisely  maneuver  it  to  an  exact point" (Tr. 174).
While Blue Circle seeks to minimize the personal accounts of
those crane operators whose very lives  have  been placed on
the  line  by  diminished  to non-existent ability  to  stop
and/or control the crane, their  cumulative  testimony, when
considered  in conjunction with the enormity of  the  crane,
its suspension  on  the  rails and tandem operation with the
other crane, establishes the  need for the highest degree of
maneuverability that is technologically possibly, as opposed
to reduction of any safety devices  that  have  already been
provided for that purpose.  Moreover, the record  is replete
with credible accounts of power failures and failed  systems
that have left the miners to the mercy of the crane coasting
to  a stop on its own.  For all the obvious reasons that  it
is unfathomable  that  an  automobile driver lack control of
his vehicle in any aspect of  its  operation,  on  a  larger
scale, it is all the more obvious that a crane operator must
be  provided  with  all  available means of controlling this
enormous machinery, especially  when  life  and  limb are in
jeopardy  (See  Tr.  21,  69-71).   To the extent that  Blue
Circle has premised its position solely  on  the  functional
performance of the crane in terms of industry standards,  it
has  neglected to duly consider the electrical system and/or
emergency  brake  failures  which  have already occurred and
cannot be ruled out in the future, and,  therefore,  it  has
failed  to  prioritize the safety of the miners, as required
by the standard.   By  so doing, it has deprived them of the
enhanced protection that  the  hydraulic  service  brake was
designed  to  provide.    I  am  persuaded that plugging  is
generally accepted in the industry as the preferred stopping
means under normal conditions, but  I  am  equally persuaded
that, under extraordinary circumstances, the emergency brake
alone (stressing the crane and non-performing  on  occasion)
does not provide the level of protection that was envisioned
by  the  original  design  of the crane.  I find, therefore,
that removal of the hydraulic service brake comes within the
ambit of the "wide reach" covered  by 56.14100(b), and is a
defect affecting safety.

     3.  Timely Correction

     Respecting the last element in establishing a violation,
whether the defect was corrected in a timely manner, it is a
matter of record that  Blue  Circle  has  not  attempted  to
replace  the  hydraulic service brake, nor has any intention
of doing so.  Accordingly, I find that the safety defect was
not corrected in a timely manner.

     4.  Conclusion

     Section 56.1 of the regulations, 30 C.F.R. 56.1 makes known
that: "The purpose  of  these standards is the protection of
life, the promotion of health and safety, and the prevention
of accidents."  If Blue Circle  was unaware of the necessity
of the maintaining the hydraulic  service brake on the crane
at  the time it elected to remove it,  it  certainly  became
aware   that  the  brake  should  be  reinstalled  when  the
operators  reported  the  power  failures,  emergency  brake
failures  and  accidents,  and when Jerry Pardue removed the
crane  from  service.   I find  that  a  reasonably  prudent
person, familiar with the mining industry and the purpose of
the  regulations,  would  have   reinstalled  the  hydraulic
service  brake  on the No. 2 crane,  at  least,  immediately
after    Jerry    Pardue     reported    the    simultaneous
plugging/emergency brake failure, or while it was red-tagged
by Pardue for two weeks to prevent future accidents, such as
those that have caused David Ford's  back disability and the
Missouri fatality referenced by Inspector  Richards  in  his
testimony  (Tr. 19).  Therefore, I conclude that Blue Circle 
violated  section 56.14100(b) of the regulations.

     B.  Significant and Substantial

     Section 104(d) of the Mine Act designates  a  violation
"significant and substantial" (S&S)  when it is "of  such  a
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  the violation,
there   exists  a  reasonable  likelihood  that  the  hazard
contributed  to  will  result  in  an injury or illness of a
reasonably  serious  nature."   Cement   Division,  National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set  forth  the  four criteria that the Secretary
must establish in order to prove  that  a  violation  is S&S
under  National  Gypsum:  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.  See also Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133,  135  (7th Cir. 1995); Austin Power,
Inc. v. Secretary, 861 F.2d 99,  103-104  (5th  Cir.  1998),
aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
criteria.  Evaluation of the third criterion, the reasonable
likelihood  of  injury  ,  should  be made in the context of
"continued mining operations."  U.S.  Steel  Mining  Co.,  6
FMSHRC  1573,  1574  (July  1998).   Moreover, resolution of
whether a violation is S&S must be based  "on the particular
facts  surrounding  the  violation."   Texasgulf,  Inc.,  10
FMSHRC 498, 501 (April 1988).

     Inspector Richards found the violation to  be  S&S.  He
testified that he had determined it "reasonably likely" that
an  injury  would occur, based on information  that  he  had
received from  the crane operators that they had already had
incidents of a broken light and knocked off end-stops due to
inability to stop,  and  that  such  injury  would result in
"lost   workdays  or  restricted  duty,"  since  the   crane
operators,  without  seatbelts,  could  be  thrown about the
enclosed  metal  cab  (Tr. 26-27).  I find, based  upon  the
evidence,  that  there  was  a  reasonable  likelihood  that
collision with the other  crane  or  the  end-stops,  and/or
collision between the bucket and cab, contributed to by  the
removal  of  the hydraulic service brake, would result in an
injury  of  a  reasonably   serious  nature.   Therefore,  I
conclude   that   the   violation   was   "significant   and
substantial."

                              ORDER

     Accordingly, Citation No. 7855639 is hereby AFFIRMED, and
this Contest Proceeding is DISMISSED.

                                   Jacqueline R. Bulluck
                                   Administrative Law Judge

                                   Distribution:

                                   C.  Gregory  Ruffennach, Esq.,
                                   450 East 3rd Avenue,  Durango,
                                   CO 83101 (Certified Mail)

                                   Mary Schopmeyer, Esq., Suzanne
                                   Dunne,  Esq.,  Office  of  the
                                   Solicitor, U.S. Department  of
                                   Labor,   525  Griffin  Street,
                                   Suite 501,  Dallas,  TX  75202
                                   (Certified Mail)

                                   /mh

**FOOTNOTES**

     [1]:Harnishfeger  Industries,  Incorporated, using the trade
name "P&H" on some of its equipment,  is  the manufacturer of the
No. 2 crane.

     [2]:30  C.F.R.   56.9002 (1987) provided  that:  "Equipment
defects affecting safety  shall be corrected before the equipment
is used."

     [3]:Judicial notice was taken of applicable OSHA regulations
at the hearing (Tr. 207; see Ex. C-2).  Blue Circle concedes that
MSHA is not bound by OSHA regulations  (Tr. 199; C. Br. at 13, n.
11).

     [4]:CMAA  (Crane  Manufacturers  of  America)   is  a  trade
association  with  an  engineering  committee that writes  design
(industry) standards for overhead cranes (Tr. 178; Ex. R-4).

     [5]:Judicial  notice  taken  of  applicable  ASME  (American
Society of Mechanical Engineers) standards  at  the  hearing (Tr.
207).  ASME is a professional association of manufacturers, users
and  other  interested  parties  that  writes  consensus (safety)
standards  in performance language which, after distribution  and
comment under  procedures  accredited  by  the  American National
Standards  Institute  (ANSI), become American National  Standards
(Tr. 178-179; Ex. C-3).