<DOC>
[DOCID: f:l95-190m.wais]

 
CEDAR LAKE SAND & GRAVEL
June 26, 1995
LAKE 95-190-M

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                            June 26, 1995
                                   
SECRETARY OF LABOR,        :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH   :
  ADMINISTRATION (MSHA),   :  Docket No. LAKE 95-190-M
               Petitioner  :  A.C. No. 47-00792-05508
          v.               :
                           :  Cedar Lake Sand & Gravel Pit
CEDAR LAKE SAND & GRAVEL,  :
               Respondent  :

                             DECISION

Appearances:   Ruben R. Chapa, Esq., U.S. Department of 
               Labor, Office of the Solicitor, Chicago, 
               Illinois, for the Petitioner;
               Bruce Gilbert, President, Cedar Lake Sand
               & Gravel Co., Hartford, Wisconsin, for the
               Respondent.

Before:   Judge Weisberger

     This case is before me based on a Petition for 
Assessment of a Penalty filed by the Secretary of Labor
alleging a violation by Cedar Lake Sand & Gravel Company,
Incorporated ("Cedar Lake") of 30 C.F.R.  56.16006 and 
30 C.F.R  56.2003(a).  Pursuant to notice, the case was 
heard in Milwaukee, Wisconsin, on May 31, 1995.

                 Findings of Fact and Discussion

               Violation of 30 C.F.R.  56.16006

     On June 22, 1994, Robert Taylor, an MSHA Inspector
[1], inspected the Cedar Lake Sand and Gravel Pit (Cedar
Lake Pit), a sand and gravel operation located in 
Washington County Wisconsin.  Taylor observed a compressed 
gas cylinder that was attached to a portable cart, and 
located outside adjacent to a shack where gas and grease 
were stored.  The cylinder was not covered.  Taylor issued
a citation alleging a violation of 30 C.F.R.  56.16006,
which provides as follows: "[v]alves on compressed gas 
cylinders shall be protected by covers when being 
transported or stored, and by a safe location when the 
cylinders are in use."

     Cedar Lake did not present any testimony to impeach 
or contradict the testimony of Taylor that the cylinder 
was not covered.  Further, the parties stipulated that 
the cylinder "was being stored," (Joint Stipulation 1, 
Paragraph 8(a)).  Clint Gerlach, Cedar Lake's Foreman, 
testified that in the past MSHA inspectors only examined 
those cylinders located in a storage facility to see if
they were covered.  He said that the cylinder at issue 
was set up for use, and that to the best of his 
recollection cylinders are used daily.  He could not 
remember when the cylinder at issue had last been used
prior to June 22, 1994.  He indicated that when a cylinder 
is put to use, a regulator is installed.  The cylinder at 
issue had such a regulator.  Gerlach indicated that in his
more than 18 years experience he had not been aware of the 
need to cover cylinders that had regulators installed on 
them.

      Based upon the uncontradicted testimony of Taylor, 
I find that the cylinder in question was not covered. 
Further, the parties have stipulated that it was being 
stored, and there is no evidence that it was in use.  
Indeed, Gerlach could not recall when it was last used.  
I thus find that Cedar Lake did violate section 56.16006, 
supra.  I note Respondent's allegation that MSHA in the 
past had not cited Cedar Lake for not covering its 
cylinders that were not stored in the storage area.  I 
find this allegation not to be a defense to the violation 
of Section 56.16006, supra (see U.S. Steel Mining Co.,
Inc., 15 FMSHRC 1541, 1546-1547 (1993)).

     Taylor explained that should the valve of the 
cylinder be knocked off as a consequence of its not being
covered, the cylinder then would become like a missile, 
and could cause serious injuries, a fire, or an explosion.
However, the gravity of the violation is mitigated to some 
degree by the fact that the cylinder was secured to a cart.  
Also, I find credible Gerlach's testimony that until the
instant citation was issued, he, in good faith, was not 
aware that cylinders not stored in the storage area had to 
be covered.  I thus find Cedar Lake's negligence to have 
been mitigated somewhat. Considering these factors, as 
well as the remaining factors set forth in Section 110(i) 
of the Act as stipulated to by the parties, I conclude 
that a penalty of $200 is appropriate.

Violation of 30 C.F.R  56.20003(a)

     On June 22, 1994, as Taylor continued his 
inspection, he climbed up a flight of stairs to a catwalk 
(walkway) that led to a sizing screen.  A handrail was 
located on one side of the walkway.  There was a toe 
plate approximately 2 inches high on the edge of the 
walkway. Taylor testified that he observed a buildup of 
rocks on the walkway. According to Taylor, the rocks and 
the accumulated rocks were 8 inches deep, and covered the
entire walkway.

     Taylor issued a citation which initially alleged a 
violation of 30 C.F.R.  56.11001, but which was amended 
on June 27, 1994, to instead allege a violation of 30
C.F.R.  56.20003(a).  Section 56.20003(a), supra, 
provides that at all mining operations, "[w]orkplaces, 
passageways, storerooms, and service rooms shall be kept 
clean and orderly." Gerlach, who was present with Taylor, 
testified regarding the accumulation of rocks as follows:
"I don't think it was quite 8 inches" (Tr. 90).  He 
opined that, due to the presence of a  2 1/2 inches high
toe plate on each side of the edge of the walkway it was 
not likely that the material accumulated 8 inches.  
However, since Gerlach indicated that he was not on the 
walkway on the day the citation was issued, I find that 
his testimony is inadequate to impeach or dilute the 
testimony of Taylor based upon his actual observations.  
I thus find that, based upon Taylor's testimony,  the 
walkway did have an accumulation of rocks.  According to 
Gerlach and Tony Wagner, the crusher plant operator, no 
one works on the walkway when the plant is in operation.  
However, the walkway is the means of access to the 
sizing screen.  A miner uses the walkway once a day to 
access the screen in order to grease it and observe its 
condition.  Also, the walkway provides access to the 
screen, when its cloth has to be changed.  I thus find 
that the walkway, which is the means of access to the
screen, is a passageway as that term is commonly 
understood.  In this connection, I note the following 
definition of the term passageway as set forth in 
Webster's Third New International Dictionary (1986 
edition): "[a] way that allows passage to or from a place 
or between two points." Since the walkway is considered 
a passageway, and since it contained an accumulation of 
rocks to the extent testified to by Taylor, I conclude 
that Cedar Lake did violate Section 56.20003(a), supra.

     Taylor noted footprints in the dust on the floor of 
the walkway.  He also noted dust on the accumulated rocks.
He opined that the accumulation of rocks had existed for 
at least a day.  On the other hand, Wagner testified that 
each morning he checks the screen, and cleans the walkway.
Gerlach testified that earlier in the day Wagner had told
him that when Taylor had issued his citation, clay had
covered up the holes on the screen causing the materials
on the belt feeding the screen to fall on the walkway.  
Also, Gerlach indicated that, in general, crushers 
produce dust which extends about 1000 feet from the 
crushers.  In this connection, he noted that the walkway 
at issue was located approximately 15 feet from two 
crushers.  Based upon this essentially uncontradicted 
testimony, I find that the level of Cedar Lake's 
negligence to have been mitigated to some degree.  
According to Taylor, a person walking to the screen on 
the walkway while carrying tools or other materials
could have tripped on the accumulated rocks causing a 
sprain or a bruise. I thus find the violation was only 
of a moderate degree of gravity.  I find that a penalty 
of $150 is appropriate for this violation.

                              ORDER

     It is ORDERED that Cedar Lake pay a civil penalty 
of $350 within 30 days of this decision.

                              Avram Weisberger
                              Administrative Law Judge

Distribution:

Ruben R. Chapa, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 South Dearborn Street, 8th Floor, 
Chicago, IL  60604  (Certified Mail)

Bruce Gilbert, President, Cedar Lake Sand & Gravel Co., 
Inc., Route #2, Hartford, WI  53027  (Certified Mail)

/ml

**FOOTNOTES**

     [1]:Taylor  retired  as  an  MSHA  Inspector on
December 31, 1994.