.
OWYHEE CALCIUM PRODUCTS INCORPORATED
July 6, 1999
WEST 98-172-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268

                          July 6, 1999

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. WEST 98-172-M
          Petitioner            : A. C. No. 10-01817-05515
                                :
          v.                    :
                                :
OWYHEE CALCIUM PRODUCTS         : Owyhee Calcium Inc.
  INCORPORATED,                 :
          Respondent            :

                            DECISION

Appearances: William W. Kates, Esq., Office of the Solicitor,
             U.S. Department of Labor, Seattle, Washington,
             for Petitioner;
             Charles L. Honsinger, Esq., Ringert Clark,
             Chartered, Boise, Idaho, for Respondent.

Before: Judge Cetti

     This case is before me upon the petition for civil penalty
filed by the Secretary of Labor against Owyhee Calcium Products, 
Inc., pursuant to Section 105(d) and 110 of the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C.  801 et seq., the 
"Act," alleging 14 violations of mandatory standards and seeking 
a civil penalty of $6,580.00 for those violations. The general 
issue before me is whether Owyhee Calcium Products, Inc.,
committed the violations as alleged and, if so, what is the 
appropriate civil penalty to be assessed considering the criteria 
under Section 110(i) of the Act.

Citation Nos. 7959803, 7959804, 7959805 and 7959806 - Guards Not 
in Place

     Four of the citations involve guards not in place. Citation
No. 7959803 alleges a violation of 30 C.F.R.  56.14107(a) and 
each of the other three citations, referenced above, allege a 
violation of 30 C.F.R.  56.14112(b).

     30 C.F.R.  56.14107(a) cited in Citation No. 7959803
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.

     Citation No. 7959803 designates the operator's negligence 
as moderate and reads as follows:

          The self cleaning tail pulley on the primary
          feed conveyor was not guarded.  The pinch
          points were approximately one foot off of the
          ground and accessible to the employee.

     The "employee" refers to the owner-operator, Mr. Melton, who
is also the only employee of this very small  acre quarry.  The
evidence clearly established that the guard was missing on the
sides of the tail pulley as shown in the photograph received as
Exhibit G-3.  There was no contrary evidence.  Respondent's
defense to all four of the guards not in place violations was
that the machinery was not operating.  This defense will be
discussed later under the heading Respondent's Defense.

     Citations 7959804, 7959805 and 7959806 each allege a
violation of 30 C.F.R.  56.14112 which reads as follows:

               (b) Guards shall be securely in place
          while machinery is being operated, except
          when testing or making adjustments which
          cannot be performed without removal of the
          guard.

Citation No. 7959804

     With respect to Citation No. 7959804 the inspector presented
undisputed evidence that the guard for the Cedar Rapids roll
crusher was not in place.  It was lying closeby on the ground.
The exposed pinch-points on the crusher's large diameter flywheel
were approximately three feet above the ground and were
accessible to Mr. Melton, the owner, operator and sole employee.
The violation is established.  The citation is affirmed.

Citation No. 7959805

     With respect to Citation No. 7959805 the inspector presented
undisputed evidence that the guard for the short conveyor located
under the roll crusher was not in place.  The pinch-points were
accessible to the employee.  The inspector observed the guard
lying behind the tail pulley.  The violation is established.  The
citation is affirmed.

Citation No. 7959806

     With respect to Citation 7959806 the inspector presented
undisputed evidence that the guard for the long conveyor to the
sizing screen was not in place.  It was sitting near the pulley.
The pinch-points were at ground level and were accessible to Mr.
Melton who was the only employee, as well as the only
owner/operator of this very small quarry.

Respondent's Defense to Guarding Citations

     Respondent's defense to each of the four guarding citations
discussed above was that the mine machinery was not operating on
the day of inspection.  Mr. Melton, the owner/operator/employee
testified that he had shut the mine down about three days prior
to the inspection to clean and maintain the mine machinery and
equipment so as to protect it from the anticipated freezing cold
winter weather.  Mr. Melton testified he shuts down the mine to
do the cleaning and maintenance work every fall.  He testified
that he never operates the mine machinery without the guard being
in place.

     Inspector Usselman testified that based upon the
observations he made on arriving at the mine site, he determined
that the mine machinery was operating when he arrived at the mine
at 10:30 a.m. to make his October 8 inspection.  The inspector
observed a large cloud of dust going straight up into the air
from where the crusher was located.  It appeared to him the same
as on the other occasions when he inspected the mine and observed
the dust produced by the mine machinery in operation.  The
inspector also testified he heard some noise that sounded like
machinery operating.  Even though a shovel was observed lying
behind the tail pulley, the inspector did not see any indication
of any cleaning being done.  There is no evidence that Mr.
Melton, at the time of inspection, said anything to the inspector
about the mine being shut down for cleaning or maintenance.  I
credit the inspector's testimony and based upon his testimony,
find that the preponderance of the credible evidence established
that the machinery was in operation without the guards in place
and thus established a violation, as charged, in each of the four
citations issued for guards not in place.

Citation No. 7959807

     Citation No. 7959807 alleges a violation of 30 C.F.R. 
 56.12004.  The citation reads as follows:

          A black and yellow colored extension cord
          leading to the Michigan loader was in poor
          condition.  The outer jacket was pulled back
          from the plug, exposing the conductors.

     This exposure of the conductors is shown in the photograph
received into evidence as Gov't Exhibit 7 and  Resp. Exhibit 6.
The inspector testified, the outer jacket protects the inner
cables from being damaged.  Thus, the pull back of the outer
jacket from the plug exposed the conductors to mechanical damage.
A non S&S violation of 30 C.F.R.  12004, as charged in the
citation, was established with respect to the extension cord to
the Michigan loader.  The citation is affirmed.

Citation No. 7959809

     Citation No. 7959809 alleges a violation of the same safety
standard quoted above, 30 C.F.R.  56.12005, which mandates
protection of electrical conductors exposed to mechanical damage.
The Secretary presented undisputed evidence that a black and
yellow extension cord, lying across a roadway, leading to a
Caterpillar dozer was not bridged or protected.  There were
vehicular tire tracks showing that a vehicle passed directly over
the cord.  No protection was provided against damage that could
result from a vehicle passing over the cord.  The inspector
testified the cord was in poor condition.  He observed that in
some places on the cord the conductors were sticking out of the
cord's insulating jacket.  The evidence clearly established a
violation of 30 C.F.R.  58.12005.  The citation is affirmed.

Citation No. 7959810

     This citation charges Respondent with the violation of 30
C.F.R.  56.4201(a)(2) which provides in part as follows:

               (a) Firefighting equipment shall 
          be inspected according to the following
          schedules: . . .

             (2) At least once every twelve months,
          maintenance checks shall be made of
          mechanical parts, the amount and condition of
          extinguishing agent and expellant, and the
          condition of the hose, nozzle, and vessel to
          determine that the fire extinguishers will
          operate effectively.

     The inspector, based on his observation and inspection of
the fire extinguisher, determined that no 12-month maintenance
check had been made on the mechanical parts, the amount and
condition of the extinguishing agent and expellant, and the
condition of the hose, nozzle, and vessel to determine that the
fire extinguishers would operate effectively as required by part
2 of section (a) of the cited standard.  There was no tag or any
other indication that any maintenance check had been made.
Respondent did not offer any contrary evidence.  The violation of
30 C.F.R.  56.4201(a)(2) was established.  The citation is
affirmed.

Citation No. 7959811

     This citation charges Respondent with the violation of 30
C.F.R.  56.12028 which requires continuity and resistance of
grounding systems be tested immediately after installation,
repair, or modification, and annually thereafter.  The regulation
specifically requires that a record of the resistance measured
during the most recent tests shall be kept and made available to
the mine inspector.  The inspector, on checking the electrical
system, determined that the required annual testing had not been
done and instructed Mr. Melton about the need to do grounding and
continuity testing on an annual basis, and the need to have
records to show that this had been done.  The violation was
timely abated a few days after the inspection by Respondent
having a grounding test performed.

     Respondent did not present any evidence contrary to the
inspector's testimony and conclusion and did not produce any
records or other evidence indicating the required testing had
been done.  The violation of the cited safety standard was
established.  The citation is affirmed.

Citation No. 7959812

     This citation alleges a 104(a) S&S violation of 30 C.F.R. 
 56.12041.  That standard reads as follows:

               Switches and starting boxes shall be
          of safe design and capacity.

     The citation charges that the disconnect switch, also
described as an electrical box,  located in the No. 2 motor
control van was not of safe design.  The inspector testified that
the switch did not protect an employee from contacting the
connecting lugs.  It is undisputed that Respondent did not
construct or design the disconnect switch or the electrical box.

     Mr. Melton testified the electrical box, for which the
citation was issued, was an old unused electric box.  It had not
been used for a long time before the inspection.  He testified
that  no electrical current had run through the box or the
disconnect switch in question for a two-year period before the
October 1997 inspection.  There was no contrary evidence.  After
the inspector complained about the box, Respondent removed the
box  and "got rid" of it.

     The inspector, on redirect examination by his attorney,
testified he did not know whether there was or had been any
electrical current running through the electrical box.  In view
of Mr. Melton's testimony and the inspector's testimony, on
redirect examination, the preponderance of the evidence did not
establish that the switch in question was in use or had any
electric current running through it at any relevant time.  The
citation is vacated.

Citation No. 7959813

     This citation charges the Respondent with the violation of
30 C.F.R.  56.1101 which requires safe means of access to be
provided and maintained to all working places.

     The citation reads as follows:

          The walkway leading up to the screw conveyor
          was not completed.  Handrails and walkway did
          not continue over to the Quonset hut where a
          ladder way went into it.  It was
          approximately 20 feet to the ground below.
          Apparently the employee walked the covered
          screw conveyor for approximately 10 feet to
          the hut.

     It is clear from Mr. Melton's testimony, what the inspector
thought was a ladder from the screw auger to the top of the
Quonset hut was not a ladder.  It was only a brace anchored on
top of the Quonset hut to hold up the end of the screw conveyor
on top of the Quonset hut.

     The first part of the 20-foot walkway leading to the screw
conveyor motor was 36 inches wide and had a 4-foot high handrail
on both sides.  Access to the screw conveyor's motor then
continued from the 36-inch wide railed walkway along the 2-foot
wide top cover of the enclosed screw conveyor.  There were no
handrails along that portion of the access to the screw conveyor
motor that consisted of the 2-foot wide top cover for the
enclosed screw conveyor.  The only thing one could grasp to
prevent a fall from this part of the access route was a 3/4 inch
cable guy wire that slanted down from about a 4-foot height,
where the handrail of the first part of the walkway ended to
ankle height of the end of the screw conveyor cover, where the
screw conveyor motor was located.  Thus, the guy wire was too low
to provide satisfactory safe access to a person who had to work
on the motor located at the far end of the screw conveyor.  This
can be seen in the photograph received as Exhibit G-12.  Clearly
there was a hazard of an accidental fall to the top of the
Quonset hut or possibly a  20-foot fall to the ground below to a
person working on the motor.

     Mr. Melton, the sole owner, operator and sole employee
indicated he rarely had to access the screw conveyor motor but
added that, just a few days before the inspection, he had to
replace a burned-out motor with a new motor.  He testified this
only occurs about once in 10 years.  He also testified that on a
prior inspection, the MSHA inspector had okayed putting a 4-foot
high cable across the walkway where the handrails ended.  The
purpose of this 4-foot high cross cable was to bar any further
access along that part of the access-way that did not have a hand
rail.  This cross cable had been taken down at the time Mr.
Melton replaced the old motor.  Mr. Melton had neglected to re-
secure the barring cross-cable.  I found no merit in Mr. Melton's
contention that  there was no violation as the plant was not in
operation at the time of inspection.

     On evaluation of the evidence presented, I find the
preponderance of the credible evidence established the violation
of the safe access standard 30 C.F.R.  56.1101.  The citation is
affirmed.

Citation No. 7959814

     Citation No. 7959814 alleges a violation of 30 C.F.R. 
 56.16005.

     The citation reads as follows:

          An oxygen cylinder had not been secured in a
          safe manner.  The capped cylinder was lying
          on the ground at the quarry site.

     Inspector Usselman testified that the oxygen cylinder was
lying on the open ground at the quarry site as shown in the
photograph received as Exhibit G-10.  (Tr. 56).  The cylinder 
was lying on its side within a couple of feet of a roadway.  
(Tr. 57).  The cylinder was not secured in any way.

     The safety regulation 56.16005 in its entirety simply
states "Compressed and liquid gas cylinders shall be secured in
a safe manner."  The regulation makes no exception as to empty
cylinders.  An empty unsecured cylinder lying on its side near
a roadway is a potential hazard.  The evidence established a
violation of 30 C.F.R.  56.1101 as alleged.  The citation is
affirmed.

Citation No. 7959815

     On October 8, 1997, at the conclusion of his inspection of
the mine site at 1:15 p.m., the inspector issued this citation
which is in effect a duplication of all the citations issued
during the inspection of this very small half-acre quarry.  The
citation charges "The operator was not doing an examination of
work places on a daily basis and then taking action to correct
hazards on the mine property."

     Asked by his counsel what led him to this conclusion, the
inspector testified.

          A.  The violations that I had observed
          indicated that a daily inspection was not
          being conducted of the mine operation.

          Q.  How did your observations lead you to the
          conclusion?

          A.  Well, any time you have a number of
          violations that I find during my inspection,
          it indicates that the mining operator is not
          conducting a daily visit and looking at those
          objects and comparing those items during his
          visits and writing them in a logbook.  (Tr.
          58).

     In this case, the owner/operator is the only employee so
every time there is employee activity at the mine, he is that
activity and presumably has to have his eyes open in each and
every area where employee activity is going on.  It is equally
clear that the owner/operator/employee was not taking prompt or
timely action to correct the hazards or violations he observed.
However, as best can be determined from this record, Respondent
was issued a citation for every violation that was observed on
this half-acre mine site and, therefore, Citation No. 7959815
with its S&S finding and its $903.00 proposed penalty is a
duplication of all the "uncorrected" violations that are
specifically cited in Citation Nos. 7959803 through 7959814.
Citation No. 7959815 should be, therefore, vacated as it is a
duplication of the all the citations issued and their related
MSHA proposed penalties.  The citation is vacated.

Citation No. 7959802 - Berms

     The inspector testified the berms on the roadway leading up
from the office to the quarry site was not being properly
maintained.  He observed some erosion of the berms and believed
the eroded berms did not provide adequate protection for vehicles
running "into" the berms or "off the side of the roadway."  He
took two photographs of the berm in one area which were received
into evidence as Gov't. Exhibit 1 and Exhibit 2, the inspector
testifies the berm in that area was 6 to 8 inches high and in
some places was less than that.

     The terrain between the upper and lower road was rough and
rugged with potholes and sagebrush.  The inspector was of the
opinion that the drop-off was sufficient to cause a vehicle to
overturn.

     By way of mitigation, it is undisputed that the only vehicle
that is ever driven on the road in question is a very small
Yamaha ATV, All Terrain Vehicle, driven by the 64 year old owner,
operator and sole employee, Mr. Melton.  Evidence was presented
that this ATV shown in the photograph, Resp. Exhibit 5, is four
feet wide and approximately 36 inches high with 16 inch diameter
wheels, that is 16 inches from the top of the tire to the bottom
of the tire.  It has a 4 wheel drive.    The roadway is 16 to 20
feet wide and was constructed by Mr. Melton with a 16-foot blade
dozer.  Mr. Melton testified that in the 32 years he operated the
quarry, he never had an accident and never had "as much as a cut
finger."

     The inspector testified he was not good at estimating
"distances" and on redirect examination was asked by counsel for
the Secretary these somewhat leading questions:

          Q.  Now, you indicated that you're not
          particularly good at           estimating
          distances.  How sure are you of your estimate
          at the height of the wheel on the all-terrain
          vehicle was 16 inches?

          A.  I'm not.

          Q.  Might it have been as much as 20 inches?

          A.  That's correct.

          Q.  Isn't it true there's a substantial
          amount of foliage along the berms which you
          observed on the roadway leading up to the
          upper portion of the quarry?

          A.  That's correct.

          Q.  What would the presence of foliage on the
          berms indicate to you?

          A.  That it had been a long time since
          anybody had done anything to the berms.

     A violation of the cited safety standard was established.
The preponderance of the evidence, however, did not establish the
third element of the Mathies formula which is discussed in
greater detail below under the heading S&S Violations.

             Significant and Substantial Violations

     A number of citations issued as a result of the October 7th
inspection are alleged to be S&S violations.  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 contributed to the cause and effect of a coal or
other mine safety or health hazard."  30 C.F.R.  814(d)(1).  A
violation is properly designated as "significant and substantial"
if, based on 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 Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).  In Mathies Coal Co., 6 FMSHRC 1,3-4(January 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 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.

     See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988) aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).

     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)).  The likelihood of such injury must be evaluated in terms
of continued normal mining operations without any assumptions as
to abatement.  U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984); See also Halfway, Inc., 8 FMSHRC 8,12 (January 1986)
and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 1991).

Citation Nos. 7959803, 7959804, 7959805 and 7959806 - Guards Not
in Place, S&S Violations Affirmed

     Inspector Usselman designated the four violations charged
the operator with operating mine machinery without the guard in
place as significant and substantial.  The guards were closeby
but not secured in place.  Mr. Melton testified that he never
operated the machinery without the guards in place.  This may
well be true generally but based on the inspector's testimony, I
find that on this one occasion, at least, he slipped up and had
the machinery running without the guards in place.  As stated
above, the likelihood of injury must be evaluated in terms of
continued mining operation without any assumption of abatement.
With this in mind, I find the third and fourth elements of the
Mathies formula have been met, as well as the more obvious first
and second elements of the Mathies formula.  The evidence
established an S&S violation in all four of the guards not in
place citations.

Citation No. 7959802 - Not S&S

     It is well established that in cases decided under National
Gypsum and Mathies, S&S determinations are based upon the
particular facts surrounding the violation in issue.  E.g.,
Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988).

     In this case, the only vehicle to travel the roadway from
the office to the upper quarry site was a small Yamaha ATV, an
all terrain vehicle.  This four-wheel drive vehicle is only four
feet wide and the roadway is 16 to 20 feet wide.  The vehicle was
driven by the 64-year old owner, operator and sole employee, Mr.
Melton, who has operated the quarry for 36 years without an
accident.  Under the particular facts of this case, I find that
the evidence established only a possibility and not a reasonable
likelihood that the hazard contributed to, will result in an
injury.  The S&S designation is deleted and the citation, thus
modified, is affirmed.

Citation No. 7959813 - S&S Finding Affirmed

     Citation No. 7959813 alleges an S&S violation of the safety
standard requiring that safe means of access be provided and
maintained.  In this case there was no safe access to the 20-foot
high screw conveyor motor.  Although access to the motor was very
seldom required, the access was clearly not safe.  The evidence
presented established all four elements of the Mathies formula.
I agree with the inspector that this  violation is significant
and substantial.

Appropriate Civil Penalty Assessment

     It is well established that while the Commission's judges
are accorded broad discretion in assessing civil penalties under
the Mine Act Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr.
1986), such discretion is not unbounded, however, and must
reflect proper consideration of the six penalty criteria set
forth in section 110(i),[1] as well as the deterrent purpose of
the Act.  I have considered the statutory criteria as well as the
deterrent purpose of the Mine Act.  Having done this, I conclude
that the MSHA proposed penalties are the appropriate penalties
for the violations set forth in Citation Nos. 7959807, 7959808,
7959809, 7959810 and 7959811.

     I find the operator was moderately negligent in each of the
affirmed violations and the gravity was moderate.  With respect
to all the citations, the operator demonstrated good faith in
achieving rapid compliance after notification of the violation.

     I place considerable weight, in this case, on the statutory
criteria requiring the penalty to be appropriate to the size of
the business.  The mine is described by the inspector as a very
small operation.  The mine site covers approximately one-half
acre located near Grandview, Idaho.  It is a one-man operation.
Mr. Melton is the owner, operator and sole employee.  This small
operation produces agricultural limestone for cattle feed.  (Tr.
108).

                              ORDER

     Having considered the statutory criteria in section 110(i)
of the Act and the deterrent purpose of the Act, I assess the
civil penalties for each of the affirmed citations as follows:

                    Citation No.          Penalty

                      7959802           $  100.00
                      7959803              400.00
                      7959804              400.00
                      7959805              400.00
                      7959806              400.00
                      7959807               50.00
                      7959808               50.00
                      7959809               50.00
                      7959810               50.00
                      7959811               50.00
                      7959813              400.00
                      7959814               50.00

                       TOTAL            $2,400.00

     It is ORDERED that within 30 days of the date of this 
decision, Owyhee Calcium Products, Inc., PAY to the Secretary 
of Labor the penalties set forth above totaling $2,400.00. It 
is further ORDERED that Citation Nos. 7959812 and 7959815 be 
VACATED and that Citation No. 7959802 be modified by deleting 
the S&S designation.  That citation is affirmed as so modified.
Upon timely compliance with this Order, this case is dismissed.

                              August F. Cetti
                              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)

Charles L. Honsinger, Esq., Ringert Clark, Chartered, 455 South 
Third St., P.O. Box 2773, Boise, ID 83701-2773 (Certified Mail)

/sh

**FOOTNOTES**

     [1]: The six statutory criteria are:

          [1]   the   operator's  history  of  previous
          violations, [2]  the  appropriateness of such
          penalty to the size of  the  business  of the
          operator  charged,  [3]  whether the operator
          was   negligent,  [4]  the  effect   on   the
          operator's  ability  to continue in business,
          [5] the gravity of the violation, and [6] the
          demonstrated good faith of the person charged
          in  attempting  to achieve  rapid  compliance
          after notification of a violation.