<DOC>
[DOCID: f:va998.wais]

 
VIRGINIA SLATE COMPANY
March 3, 2000
VA 99-8-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          March 3, 2000

SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No.  VA 99-8-M
               Petitioner        : A. C. No.  44-06803-05508
          v.                     :
                                 : Adco Land Corp No. 1
VIRGINIA SLATE COMPANY,          :
               Respondent        :

                             DECISION

Appearances: M. Yusuf M. Mohamed, Esq., Office of the Solicitor,
             U. S. Department of Labor, Arlington, Virginia, 
             for the Secretary;
             V. Cassel Adamson, Jr., Esq., Adamson and Adamson,
             Richmond, Virginia, for the Respondent.

Before: Judge Weisberger

     This case is before me based upon a Petition  for Assessment
of  Civil  Penalty  filed by the Secretary of Labor ("Secretary")
alleging  that  Virginia   Slate  Company  ("Virginia")  violated
various mandatory safety standards  set  forth in Title 30 of the
Code of Federal Regulations.  Pursuant to  notice,  a  hearing in
this matter was held in Buckingham, Virginia.

     Briefs were due to be filed three weeks after receipt of the
transcript.   The transcript was filed on November 16, 1999.   On
December 6, 1999  the  Secretary  filed a motion for extension of
time to file its brief.  The motion  was not opposed.  On October
21, 1999 an order was entered allowing the parties until February
15,  2000  to  file  their  briefs.   On February  15,  2000  the
Secretary  filed  a Post-Hearing Brief.   On  February  28,  2000
Respondent filed a Brief and Argument.

Findings of Fact and Discussion

     I.  Order No. 7711660

         A.  The Secretary's Evidence

         On June 2,  1998,  Rickey  Joe  Horn, an MSHA inspector,
inspected Virginia's open pit slate operation.   In the course of
his examination, he observed that the tail pulley  for  the No. 1
conveyor   belt,  located  on  the  crusher,  which  was  not  in
operation,[1]  was  not guarded.  According to Horn, he asked Roy
Terry,  the foreman, why  the  guard  was  off,  and  the  latter
informed him that the guard was off because the crusher motor was
being worked  on.   Horn  testified  that  he  also  spoke to two
crusher  operators  who  informed  him that the crusher had  been
worked on for the past 2 weeks, but  that  it had been run during
this time in the condition observed by him (Horn)  and that Terry
had told him that the mine had been in production  for  the  past
week.   In  this  connection,  Leroy  Williams, who was a crusher
operator in 1998, stated that a stock pile at the site on the day
of the inspection contained the quantity  of material produced in
"a full days run."  (Tr. 201).

     According  to  Horn, the pulley was only  2 feet  above  the
ground,  and because it  was  unguarded,  there  was  nothing  to
prevent a  person  from walking into it.  He described the ground
around  the  pulley as  being  rocky,  and  consisting  of  loose
material.  According  to  Horn,  if  a  person would trip on this
material  and  fall  into the pulley, a fatality  would  probably
result.  According to  Horn,  V.  Cassel Adamson, Jr., Virginia's
President, told him he did not know  how  long the guard had been
off.

     Horn  issued  an  order  alleging a violation  of  30 C.F.R.
 56.1417(a), and opined that the  violation  was significant and
substantial inasmuch as two employees work all day in the area of
the tail pulley, and that it was reasonably likely that an injury
that would be at least permanently disabling, would have resulted
upon  inadvertent contact with the pulley.  He also  opined  that
the violation  was  as  the  result  of  Virginia's unwarrantable
failure.

     Williams indicated that the cited tail  pulley  did not have
any  guard  "at  the time leading up to when the inspection  took
place" (Tr. I, 148).  He testified that the crusher had guards on
it when it was in  operation,  but  the guards were removed a few
weeks prior to the inspection.  He indicated  that  when  crusher
was  being  repaired,  the  motor  was test-fired, but he did not
recall if the guards were in place.   Later  on in his testimony,
he indicated that when the "engine" was tested,  the  guards were
in place.

         B.  Discussion

              1.  Violation of 30 C.F.R.  56.14107(a)

     Section   56.14107(a)  as  pertinent,  provides  as  follow:
"[m]oving machine  parts shall be guarded to protect persons from
contacting  gears, sprockets,  chains,  drive,  head,  tail,  and
takeup pulleys,  fly  wheels, couplings, shafts, fans blades, and
similar moving parts that can cause injury."

     According to Horn's  testimony the tail pulley at issue when
observed  by  him  on June 2,  did  not  have  any  guard.   This
testimony  was  not  impeached,   nor   was  it  contradicted  by
Virginia's  only  witness,  the  V.  Cassel  Adamson,   Jr.,  its
President.    Nor  did  Virginia  contradict  or  impeach  Horn's
testimony that  the  tail pulley was located approximately 2 feet
above the ground.  Accordingly, I accept Horn's testimony that on
June 2, the tail pulley  was  not guarded to prevent persons from
contacting  it.  I also find, based  upon  Horn's  uncontradicted
testimony that  contact  with the moving tail pulley can cause an
injury.  It appears to be  Virginia's  argument, in essence, that
it was not in violation on June 2, as the  tail pulley was not in
operation.  However, the plain meaning of the  wording of section
56.14107(a),  supra,  does not provide for any exception  to  the
requirements set forth  therein  if the moving part to be guarded
is  not in operation.  Further, Horn's  and  Williams'  testimony
establishes that the tail pulley, which is powered by an electric
motor,  was  capable of being operated at a time when the crusher
was inoperable.   For all these reasons, I find that Virginia did
violate section 56.14107(a), supra.

              2.  Significant and substantial

     A "significant  and  substantial"  violation is described in
section 104(d)(1) of the Mine Act as a violation  "of such nature
as could significantly and substantially contribute  to the cause
and  effect  of  a  coal  or other mine safety or health hazard."
30 U.S.C.   814(d)(l).   A  violation   is  properly  designated
significant and substantial "if based upon  the  particular facts
surrounding  the  violation there exists a reasonable  likelihood
that the hazard contributed  to  will  result  in  an  injury  or
illness  of  a  reasonably  serious  nature."   Cement  Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).

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

          In  order  to establish  that  a  violation  of  a
     mandatory   safety    standard   is   significant   and
     substantial  under National  Gypsum  the  Secretary  of
     Labor must prove:   (1)   the underlying violation of a
     mandatory  safety standard;   (2)   a  discrete  safety
     hazard--that  is,  a  measure  of  danger  to  safety--
     contributed  to  by  the  violation;  (3)  a reasonable
     likelihood that the hazard  contributed  to will result
     in an injury; and (4)  a reasonable likelihood that the
     injury  in  question  will  be of a reasonably  serious
     nature.

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

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

     As set forth  above,  the evidence establishes the first two
elements  set  forth  in  Mathies,  supra,  i.e.,  that  Virginia
violated a mandatory safety  standard,  and  that  the  violative
condition  contributed  to the hazard of a miner becoming injured
upon coming in contact with  a  moving tail pulley.  In analyzing
the third element of Mathies, supra,  i.e.,  whether  there was a
reasonable likelihood of an injury producing event, i.e., contact
with  a  moving  tail  pulley,  the continuation of normal mining
operations must be taken into an  account.  In essence, according
to Adamson, Jr., in normal operations the tail pulley at issue is
guarded, and the guard had been removed  because  the crusher was
inoperable, and was being worked on.  I reject this  testimony as
being too speculative to predicate a finding that, with continued
normal mining operations, there would not have been a  reasonable
likelihood of contact with the tail pulley, as it would have been
guarded.   Further, taking into account the nature of the  ground
conditions in  the  area  of the tail pulley, consisting of rocky
loose material which would  have  created a stumbling or tripping
hazard,  the  location  of the tail pulley  approximately  2 feet
above the ground, and the fact, as testified to by Horn, that two
crusher operators work in the area, I find that the third element
of Mathies, supra, has been  met.   In addition, Virginia did not
impeach or contradict Horn's testimony,  that should a miner have
contacted  the  unguarded tail pulley, it was  reasonably  likely
that a permanently  disabling injury would have resulted.  I thus
find  that  it  has  been  established  that  the  violation  was
significant and substantial.

              3.  Unwarrantable Failure

     According to Horn,  in  essence,  Terry  and the two crusher
operators has told him that the crusher had been operated for the
past  2 weeks in an unguarded condition.  The Secretary  did  not
call Terry  to  testify, nor did the Secretary indicate why Terry
was not called .  Hence, an inference might be drawn that Terry's
testimony would not  have  been  helpful to the Secretary's case.
Moreover, the only crusher operator  to  testify, Leroy Williams,
indicated that there was no guard at the tail pulley "at the time
leading up to the inspection"(Tr. Vol I, 148),  but  he  did  not
testify  that  it  had  been  run  without  a guard.  There is no
evidence  that a guard was not in place prior  to  the  time  the
crusher, and  the  operation  of  the entire plant, including the
belts at issue, had been shut down approximately 2 weeks prior to
June 2.  According to Horn's testimony,  a stock pile that was in
existence June 2, consisted of a quantity of material produced in
one  full  day  of  operation.  It appears to  be  the  Secretary
position that the stock  pile  evidences  the fact that the plant
was in operation, and the tail pulley at issue  was  in operation
during the 2 weeks period when it was not guarded.  I  find  this
argument  to be speculative, and not supported by the record.   I
take cognizance  of Horn's testimony that James Carter, a crusher
operator, had told  him  that he (Carter) was told by the foreman
to  operate  the  crusher without  the  guards  being  in  place.
However, not much weight  was accorded this hearsay testimony, as
Horn did not indicate where or when this conversation took place.
Nor was it corroborated by  Williams, the other crusher operator,
who did testify.  In contrast,  I observed Adamson's demeanor and
found his testimony credible that,  from  May 10,  1998,  through
June 1,  1998,  the plant was not in operation, was not producing
any material and  that  no  belts  were in operation, because the
conveyor was being worked on.  I also find his testimony credible
that only late in the afternoon on June 1, did the plant operate,
in order to test the crusher, and only  six  buckets  of material
were processed.  Also, I accept his uncontradicted testimony that
Virginia  had  decided  to make sure that all guards be in  place
prior to the startup of the  normal  operations,  but before this
task could be performed, Horn arrived at the site to commence his
inspection.

     Within  the  above  context, I find that Virginia's  actions
regarding the violative conditions  did  not  reach  the level of
aggravated conduct, and hence did not constitute an unwarrantable
failure. (c.f.,  Emery Mining Corp., 9 FMSHRC 1997 (1987)).

              4.  Penalty

     Inasmuch as the violative condition could have resulted in a
permanently disabling injury or fatality, I find that  the  level
of gravity of the violation was relatively high.  For the reasons
set  forth  above,  (I.(B.)(3.)),  I  conclude  that the level of
Virginia's  negligence  to  have  been  moderate.  The  violative
condition was abated in a timely fashion.   There  is no evidence
in the record that imposition of a penalty would have any adverse
affect on Virginia's ability to remain in operation.   Also there
is  no  evidence in the record that any penalty herein should  be
mitigated  by the size of Virginia's operation.  Taking all these
factors into  account, as set forth in section 110(i) of the Act,
as well as Virginia's  history  of  violations,  I  find  that  a
penalty of $300.00 is appropriate.

     II.  Order No. 7711661

     In his inspection of June 2, Horn observed that there was no
protective  device  for the V-belt drive, and the pulleys for the
feeder.  The drive motor  was  located approximately 3 feet above
ground level.  Horn issued an order  under  section  56.14107(a),
supra.   Virginia did not contradict or impeach Horn's  testimony
regarding  the  conditions observed by him, but adduced Adamson's
testimony to the effect that normally the belt drive at issue was
located above the  reach  of  miners working in the area.  I thus
find, based upon the Horn's testimony that on June 2, as observed
by him, the V-belt drive at issue  was not guarded and was within
approximately 3 feet above the ground.   For  the  reasons as set
forth above, (I.(B.)(2.)), I find that this condition presented a
hazard  to  miners of contacting moving machinery.  I  thus  find
that Virginia  did violate section 56.14107(a), supra.  Also, for
the reasons set  forth  above,  (I.(B.)(2.),  I.(B.)(3.)), I find
that the violation was significant and substantial,  but  not the
result of Virginia's unwarrantable failure.  For essentially  for
the  same  reasons  set  forth  above,  (I.(B.)(4)) I find that a
penalty of $300.00 is appropriate.

     III.  Citation No. 7711663

     On June 2, Horn observed that the tail  pulley for the No. 2
belt,  which was located about 2  feet above the  ground  level,
was not  guarded.   Virginia  did  not  impeach  Horn's testimony
regarding  his  observations,  nor  did  it  adduce  evidence  to
contradict   or  rebut  his  observations.   Virginia's  evidence
relating to the existence of the violative condition consisted of
Adamson's testimony  that  the  areas  at  issue had usually been
bolted  by perforated steel material considered  to  be  an  area
guard.  Since  Virginia  did  not  rebut or impeach or contradict
Horn's  testimony regarding the conditions  observed  by  him  on
June 2, I  find,  that  Virginia did violate section 56.14107(a),
supra.

     I  accept  Horn's testimony,  that  the  violation  was  not
significant and substantial  inasmuch as a injury of a reasonably
serious  nature  was  not reasonably  likely  to  have  occurred.
Essentially for the reasons  set  forth  above  (I.(B.)(3.)), and
based  upon  Adamson's testimony that I found credible  that  the
guard at issue  had  been  removed to clean the area, I find that
the  violation  was not the result  of  Virginia's  unwarrantable
failure (c.f. Emery,  supra).   I find that although a reasonably
serious injury was not reasonably likely to have occurred, should
an injury have occurred as a result  of  the  violation, it could
have been of a serious nature.  Thus, I find that  the gravity of
the  violation  was relatively high.  Considering the  additional
factors set forth  in  section  110(i)  of  the Act, as set forth
above,  (I.(B.)(4.)),  I  find  that  a  penalty  of  $300.00  is
appropriate.

     IV.  Citation No. 7711665

     On  June  2,  1998,  the  motor, which ran the crusher,  was
operated by separate clutch and throttle hand levers.  There were
no guard rails or catwalks provided  to access these levers.  The
means of accessing these levers, was by  walking  on  an  I-beam,
approximately  6 inches  wide,  and  located approximately 6 feet
above the ground.  According to the uncontradicted  testimony  of
Horn,  a  person walking on the I-beam while operating the motor,
could loose  his  balance  and  suffer  an  injury.   Horn  cited
Virginia  under  30 C.F.R.  56.11001 which provides that "[s]afe
means of access shall  be  provided and maintained to all working
places."

     Virginia did not impeach or contradict Horn's testimony, and
I accept it.  Accordingly, I  find  that  on June 2, there was no
safe  means  of  access provided to a working  place,  i.e.,  the
location of the levers  to  operate  the crusher.  Accordingly, I
find that Virginia violated section 56.11001, supra.

     According  to  Williams,  he had to  access  the  levers  by
walking on the I-beam twice a day.   Considering  this testimony,
as  well  as  the width of the I-beam, and its location  above  a
rocky surface,  I  find,  that  within  this  context it has been
established  that the violation was significant  and  substantial
(See Mathies, supra).

     According  to  Horn, it was "plainly visible"(Tr. Vol I, 82)
that there were no railings  or  catwalks providing access to the
control levers.  However, the only evidence the Secretary adduced
regarding the length of time that  the  violative  condition  had
existed,  consisted  of  Williams' testimony.  Williams indicated
that when he first started  to  work  at  the plant, he asked the
foreman, Roy Terry, why there was no hand rail  on  the  crusher,
and  Terry  said  that  he  did  not  know.   Not much weight was
accorded  this  hearsay  testimony,  as it was not  corroborated.
Also, the Secretary did not indicate why  it had not called Terry
to testify.

     Williams testified that the means of access  to the controls
as depicted in government exhibit 20, had been in that  condition
for  2  months  or less prior to the date of the inspection  (Tr.
Vol. I, 175).  However,  he  also  indicated  that he thought the
access  platform  was  taken  down  a  week  or so prior  to  the
inspection, but that he could not remember, and was not sure (Tr.
Vol. I, 178).  He indicated that the plant was  in operation just
part  of  the  week  prior  to June 2 (Tr. Vol. I, 180).  I  find
Williams' testimony unclear,  and  can not predicate any findings
on his testimony regarding the length  of  time  the  crusher had
operated without safe access.

     On the other hand, I observed that the demeanor of  Adamson,
and  found his testimony to be credible that the crusher was  not
in operation  in  the period from May 10 through June 1, and that
after the new motor  in  the crusher was tested for 10 minutes on
June 1, it was then shut down  and instructions were given not to
run it again until either the controls  were  shifted to the side
of  the crusher that had a catwalk, or additional  catwalks  were
installed.   Within  this  framework, I find that it has not been
established that Virginia's actions herein amounted to aggravated
conduct, and thus do not constitute an unwarrantable failure (see
Emery).

     I  find  that the level of  gravity  of  the  violation  was
relatively  high,   inasmuch  as  a  serious  injury  could  have
resulted.  For the reasons set forth above, I find that the level
of Virginia's negligence  to have been no more than moderate.  My
analysis of the remaining factors  set forth in Section 110(i) of
the Act is set forth above (I.(B.)(4.)).   I  find  a  penalty of
$300.00 appropriate for this violation.

     V.  Order No. 7711666

     Horn testified that a berm was missing for 20 feet along the
west  side  of  an  elevated  roadway  leading  to  the dump.  He
indicated that there was a 15 to 20 foot drop-off.  He  issued an
order  alleging a violation of 30 C.F.R.  56.9300 which provides
as follows:  "[b]erms  or  guard  rails  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  and  equipment."   Virginia  did  not impeach,
contradict, or rebut Horn's testimony, and accordingly  I  accept
it.  Based upon Horn's testimony, I find that, on June 2, 1998, a
berm  was  missing  for  approximately 20 feet on the bank of the
roadway where there existed  a  drop  off  of approximately 15 to
20 feet  would  have  endangered persons in a vehicle  using  the
roadway.  Accordingly,  I  find that Virginia did violate section
56.9300(a), supra.

     According  to  Horn,  the   violation  was  significant  and
substantial, because trucks do use  the  roadway,  and  if such a
vehicle   would  overturn,  fatal  injuries  could  result.   The
Secretary has  not  adduced  any  evidence  regarding  the slope,
physical  condition  of the surface of the roadway, the width  of
the roadway, how often  it was traversed, whether the roadway was
used  for  two way traffic,  and  the  condition  of  the  trucks
traveling the  roadway.   Within this context, I find that it has
not  been  established  that  an   injury  producing  effect  was
reasonably likely to have occurred.   I thus find that it has not
been   established  that  the  violation  was   significant   and
substantial (see, Mathies, supra).

     According  to  Horn,  Adamson  III,  told  him  that  he was
responsible  for  checking  the  area at issue, that Virginia had
started using a front-end loader the  week  prior  to June 2, and
that  he  did not realize that the drop off was that high.   Horn
concluded that  the  violation  was  as  the result of Virginia's
unwarrantable  failure,  since  Virginia knew  of  the  violative
condition, and did nothing about  it.   Williams  testified  that
since February 1998, a front-end loader has been used to load the
hopper.   On  the  other  hand, Adamson testified that from March
1997 when operations commenced,  until  June 1, 1998, he only saw
the  excavator feeding the crusher.  He indicated  that  normally
the excavator  was  used  to load the hopper, but that on June 1,
the front-end loader was used  the  load  the hopper for about 10
minutes.

     I find the Secretary's evidence inadequate  to  specifically
establish how long a period of time prior to June 2, the  area in
question  has  been  used  as  roadway.   More  importantly,  the
Secretary failed to establish for how long a period prior to June
2,  there  was  no berm along the bank for approximately 20 feet.
Within this context, I find that it has not been established that
Virginia's actions  amount  to  aggravated  conduct.  Thus I find
that  it  has  not  been established that the violation  was  the
result of Virginia's unwarrantable failure (see, Emery, supra).

     I find that should  a  vehicle have gone off the road due to
the  lack  of  a  berm a reasonably  serious  injury  could  have
resulted.  Accordingly,  I find that the gravity of the violation
was  relatively high.  For  the  reasons  set forth above, I find
that  it  has not be established that Virginia's  negligence  was
more than moderate.   I  find  that the violation was abated in a
timely fashion.  Additionally, taking  into account the remaining
factors  set  forth in section 110(i) of the  Act,  as  discussed
above  (I.(B.)(4.)).   I  find  that  a  penalty  of  $200.00  is
appropriate.

     VI.  Order 7711667

     According  to Horn, there were no bumper blocks or any other
impeding devices to prevent a front-end loader loading the hopper
from running into the hopper, hitting a rock, or overturning.  He
issued a section  104(d)(1)  order  alleging  a  violation  of 30
C.F.R.    56.9301  which  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."

     Virginia did not impeach or contradict Horn's testimony that
there were no bumper blocks or any impeding devices at the hopper
dumper  location.  Nor did it impeach or rebut  Horn's  testimony
that there was a danger of overturning.  Accordingly, I find that
it   has   been    established    that   Virginia   did   violate
section 56.9301, supra.

     According  to  Horn,  the  violation   was  significant  and
substantial because it was reasonably likely  that  if the front-
end loader continued to use the dumping point, the vehicle  would
overturn,  hit  rocks,  or  run  into  the  side  of  the hopper.
However,  he  did not explain the bases for his conclusion.   Nor
does the record  contain  any facts to support such a conclusion.
Accordingly, I find that it  has  not  been  established that the
violation was significant and substantial.

     The evidence adduced by both Parties regarding  the issue of
unwarrantable  failure  was essentially the same as that  adduced
regarding Order No. 771166.   Hence,  for  the  reasons set forth
above (V., infra), I find that the violation herein  was  not the
result of Virginia's unwarrantable failure.

     Essentially, for the reasons set forth above (V., infra),  I
find that a penalty of $200.00 is appropriate.

     VII.  Order 7711668

     According  to  Horn, on June 2, he asked the operator of the
Case 584 fork lift to  test  the  manual  horn  and the automatic
reverse horn, and they did not work.  He issued an order alleging
a  violation of 30 C.F.R.  14132(a) which provides  as  follows:
"[m]anually-operated  horns  or other audible devices provided on
self-propelled mobile equipment  as  a  safety  feature  shall be
maintained in a functional condition."

     Virginia   did   not   impeach  Horn's  testimony.   Adamson
testified that the cited vehicle,  at the time of the inspection,
was  not  provided with any manual horn.   However,  he  did  not
present any  evidence  to  contradict  Horn's  testimony that the
automatic  reverse  horn  was  not operable.  Hence,  based  upon
Horn's  testimony,  I  find  that Virginia  did  violate  section
56.14132(a), supra.

     Adamson testified that the  operator  of  the fork lift sits
high  above the ground, has all around visibility,  and  can  see
behind  him  by using a rear mirror.  Virginia did not impeach or
rebut Horn's testimony  that  the  fork  lift  was being operated
inside  a  building  where  there  is foot traffic.   Within  the
framework of this evidence, I find it  has  been established that
the  violation  was  significant  and substantial  (see  Mathies,
supra).

     Adamson testified that the fork  lift  had not been cited in
the two previous inspections, and that he was  not aware that the
horn  was  not  operational.   However, on the other  hand,  Horn
testified that he spoke to the operator of the fork lift who told
him that the horn  and  backup  alarm  had not worked for several
weeks.   There  is no evidence that the fork  lift  operator  had
communicated the  existence  of  this  defect  to  any Virginia's
managers.   Thus,  there  is no evidence that Virginia's  conduct
reached  the level of aggravated  conduct  (see,  Emery,  supra).
Within the  context, I find that it has not been established that
the violation was the result of Virginia's unwarrantable failure.

     I find that  the  level  of  gravity  of  this violation was
relatively high, inasmuch as a serious injury could have resulted
should a person not have been warned of the fork lift backing up,
and thus could have sustained a serious injury.   For the reasons
set forth above, I find that it has not been established that the
level  of  Virginia's negligence was more than moderate.   Taking
all the remaining  factors  of  section  110(i)  of  the Act into
account, I conclude that a penalty of $300.00 is appropriate.

     VIII.  Order 7711669

     Horn  testified  that  the  left  section  of  the two-piece
seatbelt  in a R-22 Euclid haul truck was missing.  Virginia  did
not impeach  Horn's  testimony.   Horn issued an order alleging a
violation of 30 C.F.R.  56.14131(a).[2]

     Adamson testified that when he  drove the truck in early May
1998,  both  halves  of  the seatbelt were  in  place.   However,
Virginia did not adduce any evidence to contradict Horn regarding
his observation on June 2.  Accordingly, I find that Virginia did
violate section 56.14131(a), supra.

     Horn testified that truck  was  driven on a elevated roadway
to and from the pit.  He opined that an  accident would have been
reasonably likely to have occurred, should  the  truck  have lost
its  brakes,  or  hit  something,  and that a fatality would have
resulted.   Accordingly Horn concluded  that  the  violation  was
significant and  substantial.   Virginia  did  not  impeach  this
testimony  nor  did  it  offer  any evidence to rebut it.  Hence,
within this frame work I find that  the violation was significant
and substantial (see, Mathies, supra.

     According to Horn, Terry had told  him  that after the truck
was delivered 3 weeks prior to June 2, he did  not  check  it for
safety  defects.   Also, Horn testified that Adamson III had told
him that he drove it  prior to its being put in service.  Roy Lee
Green, a former truck driver  for Virginia, testified that he had
driven the truck almost every day  prior  to  the inspection, and
that  it  had just one side of a seatbelt.  On cross-examination,
he stated that  he  had  driven  the  truck for 3 weeks without a
seatbelt.   He indicated that he reported  the  lack  of  a  full
seatbelt to Terry  who  told  him that "he would get it straight.
But . . . he didn't do nothing  about  it"  (sic)   (Tr.  Vol II,
224).

     Adamson testified that when he drove the truck in early  May
1998,  when he had purchased it, both halves of the seatbelt were
in place.   He  also testified that he had told Terry to check it
out before it was put in service, that a couple of days later, he
asked Green, who  was  driving  it, how it was and he said it was
okay, that his (Adamson's) son drove it and said it was okay, and
that the preshift reports of the  truck  indicated  that  it  was
satisfactory.   I accept Adamson's testimony that he neither knew
nor reasonably should  have  known  that  the  left  side  of the
seatbelt  was  missing  on  June  2, and prior thereto.  However,
Virginia did not rebut or impeach Horn's testimony that Terry had
told him that he did not check it.   Nor  did Virginia impeach or
rebut  Green's  testimony  that he had reported  the  lack  of  a
complete seatbelt to Terry,  but  that  the  latter  did  not  do
anything  about  it.   Within the context, I find that Virginia's
actions constituted aggravated conduct, and hence I find that the
violation resulted from  its  unwarrantable  failure  (see Emery,
supra).

     I accept Horn testimony, inasmuch as it was not impeached or
rebutted, that if the truck would have rolled over, the  operator
would  have  been  thrown  out  of  the  cab,  due to the lack of
seatbelt.  Accordingly, I find that the gravity  of the violation
was  relatively high.  Also, for the reasons set forth  above,  I
find that the level of Virginia's negligence was relatively high.
Considering  also  the  remaining  factors  set  forth in section
110(i)  of  the  Act,  I  find  that  a  penalty  of  $600.00  is
appropriate.

     IX.  Order No. 7711674

     According to Horn, on June 2, he observed two compressed gas
cylinders  that  were  standing  unsecured in a scale house.   He
indicated that although they were  capped,  they  could fall over
and injure someone.  He issued an order alleging a  violation  of
30 C.F.R.  56.16005 which requires that compressed gas cylinders
be secured in a safe manner.

     Virginia  did  not  rebut  or  impeach Horn's testimony, and
accordingly, I accept it.  I thus find  that Virginia did violate
section 56.16005, supra.

     According to Horn, Adamson III told  him  that he had placed
the  cylinders  inside  the  scale house, and that he  knew  that
instead they should have been  placed in a storage area, and that
he knew he was at fault.  Also,  according  to  Horn's testimony,
Virginia  had  been  cited  in  the  past for this same  type  of
violation.  Virginia did not rebut or impeach this testimony, and
I accept it.  Within this framework, I  find  that  the violation
was  as  the  result  of  Virginia's aggravated conduct and  thus
constituted an unwarrantable failure (see Emery, supra).

     I find that the gravity of this violation was only moderate,
inasmuch as Horn testified that should the cylinders fall over as
a consequence of not having  been  secured, and it could cause an
injury that would that would result in  restricted duty.  For the
reasons  set forth above, I find that  the  level  of  Virginia's
negligence   to  have  been  relatively  high.   Considering  the
remaining factors set forth in section 110(i), supra, I find that
a penalty of $300.00 is appropriate.

     X.  Citation No. 7711685

     According  to Horn, on June 10, 1998, he provided the driver
of the R-22 Euclid  haul truck with a calibrated noise dosimeter,
and the driver kept it  on  for 8 hours.  Horn testified that the
dosimeter indicated, after proper  conversion  from percentage to
decibel,  a  decibel  reading  in  excess of 90.  Horn  issued  a
citation alleging a violation of 30  C.F.R.  56.05050, which, in
essence,  provides that exposure for 8  hours  to  more  than  90
decibels is  not  permissible.  Virginia did not rebut or impeach
Horn's testimony, and  accordingly,  I  accept it.  I find on the
basis  of  this  testimony  that  Virginia  did  violate  section
56.05050, supra.

     According to Horn, continued exposure of the truck driver to
this level of noise over a long period of time  would  cause  the
employee  to  start to loose his hearing, and that this injury is
permanently disabling.    Virginia  did not rebut or impeach this
testimony, and accordingly, I accept.   Within  this  framework I
find  that  the  violation was significant and substantial  (see,
Mathies, supra.

     I  find that there  is  not  any  evidence  that  Virginia's
negligence  was  more  than  moderate.  Since the violation could
have resulted a miner losing his  sense  of  hearing, I find that
the  level  of  gravity  was  relatively  high.  Considering  the
remaining factors in section 110(i) of the  Act,  I  find  that a
penalty of $300.00 is applicable.

     XI.  Order No. 7711680

     Horn  testified that in his inspection, he had noted various
safety defects  that should have been observed in an examination,
and corrected.  He noted that it was obvious that guards, a berm,
and a stopping block  were  missing.   He  concluded  that proper
examinations  were  not  being  performed,  and  issued  an order
alleging  a  violation  of  30  C.F.R.   56.18002(a)  which,  as
pertinent,  requires  that  each shift the operator shall examine
each  working place ". . . for  conditions  which  may  adversely
affect  safety  or  health.  The operator shall promptly initiate
appropriate actions to correct such conditions."

     Inasmuch  as  I  previously   found   that  these  violative
conditions  did  exist  (I.(B.)(1.), II, III, V,  VI,  infra),  I
conclude  that  Virginia  did  violate  section 56.18002,  supra.
Further,  since  the  failure   to  conduct  proper  examinations
resulted in not correcting violative  conditions  that were found
to be significant and substantial (I.(B.)(2.), II, infra), I find
that the violation herein was significant and substantial.

     According  to  Horn,  Adamson  III  told  him  that ".  .  .
examinations  had  not  been conducted in a while, and that  they
just let it slide" (Tr. Vol.  III,  20-21).  Inasmuch as Virginia
did not impeach, rebut, or contradict this testimony, I accept it
and find that within this framework,  Virginia's conduct amounted
to an unwarrantable failure (see Emery, supra).

     Since the violation herein was significant  and substantial,
I  find  that  the level gravity was relatively high.   Also,  as
discussed  above,  I  find  that  the  level  of  negligence  was
relatively high.   Taking  into the account the remaining factors
set forth in section 110(i)  of  the  Act,  supra,  as  discussed
above, I conclude that a penalty of $600.00 is appropriate.

     XII.  Order No. 7711681

     Horn  testified that because he had observed several  safety
defects on mobile  equipment,  in  his  inspection  on June 2, he
concluded that if a preshift examination had been done  properly,
the  defects would not have existed.  He issued an order alleging
a violation  30 C.F.R.  56.14100 which requires, in essence, the
inspection of  mobile  equipment  prior  to  its  being placed in
operation on a shift.  As discussed above (VII, VIII, infra), the
record establishes the existence of the following safety  defects
on mobile equipment: inoperable horns and lack of seatbelts.  Due
to   the   existence  of  safety  violations  on  various  mobile
equipment, I  conclude  that it was more probable than not that a
proper preshift examination  had not been performed.  I thus find
that Virginia did violate section  56.14100,  supra.  Essentially
for the reasons stated above (VII, VIII, infra),  inasmuch as the
various   safety  defects  were  found  to  be  significant   and
substantial,  I conclude that the violation herein of the failure
to inspect, was also significant and substantial.

     The record  does not contain sufficient facts to predicate a
finding that Virginia's  conduct rose to the level of  aggravated
conduct.  Horn referred to  the  fact  that Terry and Adamson III
were aware of the standard at issue, and  had ignored the various
defects  cited.  Since the gravamen of the violation  relates  to
the performance  and  thoroughness of the inspection, evidence of
the  failure to correct  violative  conditions  is  not  relevant
regarding  the  issue of negligence relating to a proper preshift
examination.  Within  this  context,  I find that it has not been
established that Virginia's actions constituted  an unwarrantable
failure.

     I find that the gravity of this violation was high, but that
the level of negligence was no more than moderate.   Taking  into
the account the remaining factors set forth in section 110(i)  of
the Act, I find that a penalty of $300.00 is appropriate.

     XIII.  Order No. 7711683

     According  to  Horn,  on  June  4, 1998, a 1978 Ford welding
truck was being operated on the subject  site  by  an employee of
the mine.  Horn indicated that the manually operated horn on this
truck was not operable.  He issued an order alleging  a violation
of section 56.14132(a), supra.

     According  to  Adamson, the pickup truck was owned by  Terry
who used it to commute to the work site.  Adamson stated that the
truck contained a tool  box, torches, and gauges that belonged to
him  (Terry).   Adamson  stated   that  the  welder  was  usually
transported with a fork lift, and that  the  only  time it was in
Terry's truck was when, on a couple of occasions, Terry  borrowed
it.    Adamson  testified  that  the  truck  was  not  considered
Virginia's  quarry equipment, and was never intended to transport
quarry equipment  around  the  site, and that specifically it was
never intended for Terry to put  the  welder  or company tools in
the  truck, or for him to use his truck for other  than  personal
transportation.

     However, Adamson indicated that he did not know which set of
tools or gauges in the truck were his or Terry's.  Also, Virginia
did not  impeach  or  rebut  Horn's testimony that on June 4, the
truck was being operated by an  employee  of  Virginia.   Nor did
Virginia  impeach  or  contradict  Horn's testimony regarding the
inoperable condition of horn.  Accordingly,  I  find  that it has
been  established  that Virginia did violate section 56.14132(a),
supra.

     I  find  that  Horn's  opinion  reasonable  that  Terry,  as
foreman, should have  known  that his truck was being used on the
site.  However, although on June 2, Virginia had been cited for a
violation of the section 56.14132(a), supra, a different piece of
equipment was cited.  There is  no  evidence  as  to  how  long a
period  the  horn  had been inoperable, and for how long a period
Virginia  knew  or should  reasonable  have  known  that  it  was
inoperable.  Within  this  context,  I  find that it has not been
established that Virginia's action herein  constituted aggravated
conduct,  and  thus  the  violation was not as a  result  of  its
unwarrantable failure.

     There is insufficient  evidence  in the record regarding the
path of travel normally taken by the truck,  the  traffic pattern
in the area, any pedestrian traffic in the area, and  the  nature
of  the  roadway  over which it travels.  I thus find that it has
not been established  that  the gravity of the violation was more
than  low.   For  the  reasons  set  forth  above,  I  find  that
Virginia's negligence was no more than moderate.  Considering the
remaining factors set forth in section  110(i) of the Act, I find
that a penalty of $200.00 is appropriate.

     XIV.  Order No. 7711684

     Horn testified that he asked the operator  of  the 1978 Ford
truck to back up a slight incline, and set the parking brake, but
that  the  vehicle  rolled.   Virginia  did not impeach or  rebut
Horn's testimony.  I thus find that it has  been  established, as
alleged by Horn, in the order that he issued, that  Virginia  did
violate  section  56.14101(a)(2),  supra,  which,  as  pertinent,
provides  that mobile equipment shall be provided with a  service
brake system  ".  .  .   capable of . . . . holding the equipment
with its typical load on the maximum grade it travels."

     There is no evidence  as  to how long a period prior to June
4, the parking brake had been defective.   Within  this  context,
and  for the reasons stated above, infra, I find that it has  not
been established  that  Virginia's  conduct herein amounted to an
unwarrantable failure (see Emery, supra).

     According to the uncontradicted and unimpeached testimony of
Horn,  as  a consequence of the violative  condition,  the  truck
could hit a  person  or  roll  over  a  cliff  causing  an injury
resulting  in loss of work days or restricted duty.  I find  that
the gravity  of this violation was moderate.  For the reasons set
forth above, I  find  that  it  has  not  been  established  that
Virginia's  negligence  was  more than moderate.  Considering the
remaining factors set forth in  section 110(i) of the Act, I find
that a penalty of $200.00 is appropriate.

**FOOTNOTES**

     [1] If the hopper is not  in  operation,  the conveyor  belt
can be placed in operation as it has a separate power source.

     [2] Section  56.14131(a) provides that  "[seatbelts shall be
provided and worn in haulage trucks."

                              ORDER

     It  is  ORDERED that: (1)  The following orders  are  to  be
reduced to section  104(a)  citations  that  are  significant and
substantial: 7711660, 7711661, 7711665, 7711668, and 7711681; (2)
the following orders reduced to section 104(a) citations that are
not  significant  and  substantial;  7711663,  7711666,  7711667,
7711683,  and  7711684;  and  (3)  Respondent shall pay  a  total
penalty of $4,400.00 within 30 days of the date of this Decision.
                                   

                              Avram Weisberger
                              Administrative Law Judge

Distribution:

M.  Yusuf  M.  Mohamed,  Esq., Office of  the  Solicitor,  U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203 (Certified Mail)

V. Cassel Adamson, Jr., Esq.,  Adamson and Adamson, Crozet House,
100 East Main Street, Richmond, VA 22219-2168 (Certified Mail)

nt