.
BECO CONSTRUCTION COMPANY, INC.
October 31, 2001
WEST 2000-543-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                        October 31, 2001

SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. WEST 2000-543-M
               Petitioner        : A.C. No. 10-01827-05514
                                 :
                                 : Docket No. WEST 2000-544-M
          v.                     : A.C. No. 10-01907-05511
                                 :
                                 : Docket No. WEST 2000-545-M
BECO CONSTRUCTION COMPANY, INC., :  A.C. No. 10-01907-05512
               Respondent        :
                                 : CH1 and CH2 Crushers

                             DECISION

Appearances: Jay Williamson, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Seattle, Washington, 
             for Petitioner;
             Merrily Munther, Esq., Penland Munther Goodrum,
             Boise, Idaho, for Respondent.

Before: Judge Manning

     These  cases are before me on petitions  for  assessment  of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and  Health  Administration  ("MSHA"),  against  Beco
Construction  Company,  Inc.,  ("Beco Construction"), pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C.  815 and 820 (the  "Mine  Act").  A hearing was
held  in  Idaho  Falls,  Idaho.   The parties filed  post-hearing
briefs.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.  Background and Discussion  of  General  Issues Raised by
Beco Construction

     Beco Construction operates the CH1 and CH2 portable crushers
in Bonneville County, Idaho.  MSHA Inspectors Curtis Chitwood and
Robert Montoya inspected the CH1 crusher on May 18,  2000.    The
CH1  crusher  is  a  portable  crusher  and  screening plant that
produces  sand and gravel.  This crusher operates  two  shifts  a
day, five days  a  week  and employs three miners each shift.  On
May 16, 2000, Inspector Chitwood inspected the CH2 crusher.  This
facility  also  includes  a  crusher  and  screening  plant  that
produces sand and gravel.  It  has  the  same  shift schedule but
employs four miners on each shift.

     Beco Construction raised a number of general  issues  at the
hearing and in its post-hearing brief.  First, it argues that the
Secretary  failed  to demonstrate that MSHA safety standards were
violated because she  did  not  establish  that  accidents  could
result  from  the  cited  conditions.  It contends that an injury
could only result from "an  intentional  act and it is impossible
for an employer to guard against intentional  acts."  (B. Br. 2).
Furthermore,  Beco  Construction  maintains  that  the  Secretary
failed to establish that there was any likelihood of an injury to
employees as a result of the cited conditions.

     The Federal Mine Safety and Health Review Commission and the
courts  have  uniformly  held  that  mine  operators are strictly
liable for violations of safety and health standards.   See, e.g.
Asarco  v.  FMSHRC,  868  F.2d 1195 (10th Cir. 1989).  "[W]hen  a
violation of a mandatory safety  standard  occurs  in a mine, the
operator  is  automatically  assessed a civil penalty."   Id.  at
1197.  In addition, the Secretary is not required to prove that a
violation creates a safety hazard,  unless the safety standard so
provides.

          The [Mine Act] imposes no general requirement
          that a violation of MSHA regulations be found
          to  create  a safety hazard in  order  for  a
          valid  citation   to  issue.   If  conditions
          existed  which  violated   the   regulations,
          citations [are] proper.

Allied   Products,   Inc.,  666  F.2d  890,  892-93   (5th   Cir.
1982)(footnote omitted).   The negligence of the operator and the
degree of the hazard created  by  the  violation  are  taken into
consideration in assessing a civil penalty under section  110(i).
30 U.S.C.  820(i).  Thus, a violation is found and a penalty  is
assessed  even if the chance of an injury is not very great.  The
risk of injury  and  the appropriate penalty for each citation is
discussed below.

     The Commission interprets  safety  standards  to  take  into
consideration "ordinary human carelessness."  Thompson Bros. Coal
Co.,  6  FMSHRC  2094,  2097 (September 1984).  In that case, the
Commission held that the guarding standard must be interpreted to
consider whether there is  a  "reasonable  possibility of contact
and injury, including contact stemming from inadvertent stumbling
or   falling,   momentary   inattention,   or   ordinary    human
carelessness."    Id.     Human   behavior  can  be  erratic  and
unpredictable.  For example, someone  might  attempt  to  perform
minor  maintenance  or  cleaning  near  an  unguarded tail pulley
without  first  shutting  it  down.   In  such  an instance,  the
employee's  clothing could become entangled in the  moving  parts
and a serious  injury  could  result.   Guards  are  designed  to
prevent  just  such  an  accident.  The fact that no employee has
ever  been  injured  by  an  unguarded   tail   pulley   at  Beco
Construction's  operations  is  not a defense because there is  a
history of such injuries at crushing plants throughout the United
States.  Fatal accidents have occurred  at  small operations as a
result  of  inadequately  guarded  tail  pulleys.    See   Darwin
Stratton  &  Son,  Inc.,  22 FMSHRC 1265 (Oct. 2000) (ALJ).   The
likelihood of injury for each citation is discussed below.

     Beco Construction also  correctly  notes  that the Secretary
bears the burden of proving that a violation occurred.   In  this
regard,   it   argues  that  where  "discretion  is  involved  in
determining  whether   a  standard  was  violated,  the  relative
experience  of  the  inspector   and   employer   are  reasonable
considerations,  as  is the company's history of work  injuries."
(B. Br. 2).   I agree  that  the relative degree of knowledge and
experience  of  a  witness  is  a factor  I  must  consider  when
determining how much weight to give  to that witness's testimony.
Nevertheless, I cannot vacate citations  on  the  basis that Beco
Construction has not had any serious workplace injuries.

     Beco Construction also argues that "[t]raining  is  a  valid
means  of  abating  some  working  conditions."   Id.  All of the
citations in these cases were rapidly abated in good faith.   The
method  used  to  abate  the  citations  was  not at issue at the
hearing.  Employee training may be relevant when  considering the
negligence   of  the  mine  operator  when  assessing  reasonable
penalties.

     Finally,  Beco  argues  that  "MSHA should not be allowed to
cite  an  employer  for a condition which  was  not  cited  in  a
previous inspection and  which  has not changed, until notice and
an opportunity to correct the condition  has been provided."  Id.
The argument is that the Secretary should  be  equitably estopped
from applying a safety standard to a particular  condition if the
condition has existed for a period of time without being cited by
MSHA, unless prior notice is given.  The Commission has held that
equitable estoppel does not apply to the Secretary  in  Mine  Act
cases.   King  Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981).
In King Knob, the  Commission stated that "approving an equitable
estoppel defense would be inconsistent with the liability without
fault structure of the  1977  Mine  Act."   Id.    The Commission
further analyzed the issue, as follows:

          Such   a  defense  is  really  a  claim  that
          although the violation occurred, the operator
          was not  to blame for it.  Furthermore, under
          the    1977   Mine    Act,    an    equitable
          consideration,  such  as confusion engendered
          by  conflicting MSHA pronouncements,  can  be
          appropriately   weighed  in  determining  the
          appropriate civil penalty.

Id. at 1422.

     The Commission recently provided additional guidance on this
issue in the context of guarding  citations  in  Allen  Lee  Good
d/b/a  Good  Construction,  23 FMSHRC 995 (Sept. 2001).   In that
case, the mine operator contended  that  it did not have adequate
notice of the requirements of 30 C.F.R.  56.14107(a) because the
language  of  the  safety standard "does not  provide  reasonably
clear guidance regarding how any particular moving part should be
guarded, allows inconsistent interpretation by inspectors, and is
unconstitutionally vague  based  on  the  fact  that  other  MSHA
inspectors  never  cited  these  same conditions over the past 18
years."   Allen  Good at 1002.  The  moving  machine  parts  were
guarded, but the MSHA  inspector determined that the guarding was
insufficient.  The Commission stated that, in determining whether
a  mine operator has received  fair  notice  of  the  Secretary's
interpretation  of  a  broadly written safety standard, the judge
should  consider a number  of  factors.   In  addition  to  prior
enforcement  by  MSHA  inspectors, the judge should consider "the
language of the standard,  its  purpose,  its regulatory history,
whether  MSHA  has  published  notices  informing  the  regulated
community of its interpretation of the standard, and the facts of
each  violation to determine whether [the  mine  operator]  would
have had  notice  that  the  standard required the moving machine
parts to be guarded entirely."   Allen  Good  at 1006 (opinion of
Commissioners Jordan and Beatty).

     Both  the CH1 and CH2 crushers are portable  and  have  been
moved  to  different   locations   in  the  recent  past.   As  a
consequence, although the crushers are  set  up in the same basic
configuration at each location, moving machine  parts may be more
or  less accessible at the different locations.  Thus,  the  fact
that  a  citation  was  not  previously issued for the failure to
guard a particular moving part  may not be decisive in evaluating
whether adequate notice was provided.  This issue is evaluated in
more detail below with respect to each applicable citation.

     B.  Citations Issued at the CH1 Crusher, WEST 2000-543-M

     Citation  No.  7982112  alleges   a   violation  of  section
56.14107(a), because a protective guard was  not provided for the
return roller located on the discharge conveyor  belt  under  the
Pioneer  shaker screen.   The citation states that the roller was
45 inches  above  the  existing ground level.  Inspector Chitwood
determined that the violation  was  significant  and  substantial
("S&S")  and  was  the  result  of  Beco  Construction's moderate
negligence.   Section  56.14107(a)  provides,   in   part,   that
"[m]oving  machine parts shall be guarded to protect persons from
contacting .  . . drive, head, tail, and takeup pulleys . . . and
similar moving  parts  that  can  cause  injury."   The Secretary
proposes a penalty of $90 for this alleged violation.

     The  inspector testified that the return roller was  running
when he observed  it.   He measured the distance above the ground
as 45 inches.  (Tr. 29; Exs. P-1, R-1).  He stated that if anyone
were cleaning out accumulations  near  the  roller,  his clothing
could become entangled in the pinch point, and he could be pulled
into the moving parts and suffer serious injuries.  (Tr.  28-34).
He determined that it was reasonably likely that someone would be
seriously  injured  as  a  result of this violation.  He observed
footprints within two feet of the roller.  (Tr. 31).

     Harvey Herbertson, the crusher supervisor, testified that an
employee will shovel out accumulated  material in the vicinity of
the roller about once a day.  (Tr. 232).   A backhoe is then used
to remove the shoveled material.  He stated  that  the only way a
person could come in contact with the moving belt or roller is if
he crawled on his hands and knees under the shaker screen.   (Tr.
233).  Doyle Beck, president of Beco Construction, testified that
an  employee  would  not  come in contact with the moving machine
parts unless he intentionally  crawled  under  the shaker screen.
(Tr. 262).  He stated that the area is shoveled on a daily basis.
Mr. Beck testified that the employee who shovels  up the material
"would have to reach to the other side of the roller  to  collect
all the material."  (Tr. 264-65).  Mr. Beck also stated that this
area  of  the  crusher  has  been previously inspected by MSHA at
least three or four times and has never been cited. (Tr.  266).  
Finally,  he testified  that  there  have been no injuries caused 
by the cited condition.

     There is no dispute  that  the return roller was not guarded
and that it was about 3.75 feet above  a  working surface.  It is
also clear that the roller was a moving machine  part.   I credit
the testimony of Inspector Chitwood that if someone were to  come
in  contact  with  the roller or the belt where it feeds into the
roller, he could be pulled between the belt and the roller.  Such
an  event  could  cause  a  serious  injury.   Beco  Construction
contends that such  an injury could only occur if someone were to
crawl under the shaker  screen.  I disagree.  An employee shovels
in the area while the belt  is running.  There is no dispute that
the area where this employee  works  is an uneven surface.  (Exs.
P-1, R-1).  He must reach to the other  side with his shovel.  An
employee could lose his footing or stumble while in the area.  He
could then accidentally get his hand or clothing  caught  in  the
pinch  point  as  he  attempted to catch himself.  These types of
accidents have occurred at other sand and gravel operations.

     The first issue is whether the cited condition is covered by
the requirements of the  safety  standard.   The  language of the
standard states that moving machine parts that can  cause injury,
including  drive,  head,  tail,  and  take-up  pulleys,  must  be
guarded.  The language is quite broad, but return rollers are not
specifically  included.   In the preamble to the final rule,  the
Secretary  emphasized  the  broad  construction  of  this  safety
standard.  The preamble states:

          [T]he    final    standard    requires    the
          installation  of guards  to  protect  persons
          from  coming  into   contact  with  hazardous
          moving machine parts.  The standard clarifies
          that the objective is to prevent contact with
          these machine parts.   The guard must enclose
          these moving parts to the extent necessary to
          achieve this objective.

53 Fed. Reg. 32496, 32509 (Aug. 25,  1988).  The preamble further
provides:

          Under  the  final rule, the standard  applies
          where  the  moving   machine   parts  can  be
          contacted and cause injury.  Some  commenters
          believed    that    guards   should   provide
          protection against inadvertent,  careless, or
          accidental contact but not against deliberate
          or purposeful actions.  They consider  guards
          which   totally   enclose   moving  parts  as
          counter-productive     to     other    safety
          considerations    such    as    proper   work
          procedures,  training, and general  attention
          to hazardous conditions.

Id.  In rejecting these  comments, the Secretary stated that most
injuries caused by moving  machine  parts  occur when persons are
"performing  deliberate or purposeful work-related  actions  with
the machinery"  and  that  the installation of a guard would have
prevented  these  injuries.   Id.    The  Secretary  stated  that
"[g]uards  provide  a physical barrier,  which  offers  the  most
effective protection  from hazards associated with moving machine
parts."   Id.   Thus,  the   Secretary  provided  notice  to  the
regulated community that she would interpret this safety standard
vary broadly to protect persons  from  coming  into  contact with
moving  machine  parts  and  that  the standard covers deliberate
actions by employees.

     The  Secretary's  Program  Policy  Manual  ("PPM")  provides
additional  information  to  the  public  about  the  Secretary's
interpretation of safety standards.   The  PPM provides, in part,
as follows:

          All   moving  parts  identified  under   this
          standard  are  to  be guarded with adequately
          constructed, installed  and maintained guards
          to provide the required protection.  The  use
          of chains to rail off walkways and travelways
          near  moving  machine  parts, with or without
          the  posting  of  warning signs  in  lieu  of
          guards,  is  not  in  compliance   with  this
          standard.

          Conveyor belt rollers are not to be construed
          as  "similar  exposed  moving  machine parts"
          under  the standard and cannot be  cited  for
          the absence  of  guards and violation of this
          standard where skirt  boards  exist along the
          belt.  However,  inspectors should  recognize
          the accident potential,  bring  the hazard to
          the  attention  of  the  mine operators,  and
          recommend appropriate safeguards  to  prevent
          injuries.

IV  MSHA,  U.S.  Dep't  of  Labor,  Program  Policy Manual,  Part
56/57.14107 (2000) ("PPM").  Although the PPM  is  not binding on
the Secretary it does provide the mining community with notice of
MSHA's interpretation of her safety standards.  The  PPM explains
that  using  chains  to  rail  off  exposed  moving parts is  not
acceptable.  This provision indicates that MSHA  does not require
that  conveyor  belt  rollers  be equipped with guards  if  skirt
boards  are  present.   Conveyor  belt   rollers   are  generally
understood  to  be  the  rollers that support the belt where  the
material is being transported.  The roller cited in this instance
was a return roller which  was  under  the  conveyor and kept the
belt from sagging as it returned to the head pulley.

     I  find  that  the Secretary established a  violation.   The
language of the safety  standard  makes clear that moving machine
parts  must  be  guarded.   Although  return   rollers   are  not
specifically  mentioned,  I  find  that the return roller in this
case was covered by the safety standard  because  it could easily
be  contacted.  The language of the standard is broad  enough  to
include  this return roller.  In addition, the regulatory history
states that  the "standard applies where the moving machine parts
can be contacted  and  cause  injury."   53  Fed.  Reg. at 32509.
Employees must shovel accumulations in the vicinity of the roller
while  standing on uneven ground while the roller is  in  motion.
It is foreseeable  that  someone  could  slip and come in contact
with the roller while trying to brace himself to prevent a fall.

     The most difficult issue is whether the  Secretary  provided
fair  notice that the requirements of the safety standard applied
to the  cited roller.  The language of the standard, its purpose,
and the regulatory history support the Secretary's interpretation
and support  the application of the standard to the cited roller.
They provided sufficient notice of the Secretary's interpretation
to the regulated  community.   The only factor that supports Beco
Construction's position is its allegation  of  prior inconsistent
enforcement.   Mr.  Beck  testified  that  this  "same  piece  of
equipment  I  know  has  been  at  least  through  three or  four
inspections and has never been cited."  (Tr. 266).  I credit this
testimony.  The record establishes, however, that the CH1 crusher
is moved around.  Although the violation was readily visible when
Inspector  Chitwood  inspected the crusher, it is not  clear  how
visible it was during  previous  inspections.  The fact that this
roller  was not previously cited does  not  establish  that  Beco
Construction  was  not  provided  with  sufficient  notice of her
interpretation  of the safety standard given the clear  direction
given by the Secretary  in  the regulation, the preamble, and the
PPM.   This determination must  be  made on a case by case basis.
I find that sufficient notice was provided  by  the  Secretary in
this instance.

     I   also  find  that  the  Secretary  established  that  the
violation  was  S&S.   An  S&S  violation is described in section
104(d)(1) of the Mine Act as a violation "of such nature as could
significantly  and  substantially contribute  to  the  cause  and
effect of a . . . mine  safety or health hazard."  A violation is
properly  designated S&S "if  based  upon  the  particular  facts
surrounding  that violation, there exists a reasonable likelihood
that the hazard  contributed  to  will  result  in  an  injury or
illness of a reasonably serious nature."  National Gypsum  Co., 3
FMSHRC  822, 825 (April 1981).  In Mathies Coal Co., 6 FMSHRC  1,
3-4 (January  1984),  the Commission set out a four-part test for
analyzing  S&S  issues.   Evaluation  of  the  criteria  is  made
assuming "continued normal mining operations."  U.S. Steel Mining
Co., 6 FMSHRC 1573,  1574 (July 1984).  The question of whether a
particular violation is S&S must be based on the particular facts
surrounding the violation.  Texasgulf, Inc., 10 FMSHRC 498 (April
1988).

     The Secretary must  establish:  (1) the underlying violation
of the safety standard; (2)  a  discrete safety hazard, a measure
of danger to safety, contributed  to  by  the  violation;  (3)  a
reasonable  likelihood that the hazard contributed to will result
in an injury;  and (4) a reasonable likelihood that the injury in
question will be  of  a reasonably serious nature.  The Secretary
is not required to show that it is more probable than not that an
injury will result from the violation.  U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).

     In this instance,  the  exposed moving parts were about 3.75
feet above the walking surface.   A  measure  of danger to safety
was  present that was contributed to by the violation.   Assuming
continued  mining  operations,  it  was  reasonably  likely  that
someone would come in contact with the moving machine parts while
cleaning   accumulations   in   the  area.   Such  contact  would
contribute to a reasonably serious injury.

     The fact that the Pioneer shaker  screen  had been inspected
by MSHA at least three times and that the roller  was  not  cited
significantly  reduces  Beco  Construction's  negligence.  It was
reasonable   for  Beco  Construction  to  rely  on  MSHA's   past
inspections.  A penalty of $60 is appropriate.

     Citation   No.   7982113  alleges  a  violation  of  section
56.11012, because a section  of  metal  flooring was missing from
the walkway on the south side of the Cedar  Rapids shaker screen.
The  citation  states that the opening was eight  feet  long  and
eleven  inches wide.   Inspector  Chitwood  determined  that  the
violation  was  not S&S and was the result of Beco Construction's
moderate negligence.  The safety standard provides, in part, that
"[o]penings  above,  below,  or  near  travelways  through  which
persons or objects  may  fall  shall  be  protected  by railings,
barriers,  or covers."  The Secretary proposes a penalty  of  $55
for this alleged violation.

     Inspector  Chitwood testified that employees would be on the
walkway a few times  a week for scheduled maintenance.  (Tr. 40).
Employees would gain access to the walkway by using a ladder.  He
testified  that an employee  could  accidentally  fall  into  the
opening or drop  tools  through  the  opening.   (Tr. 43-45).  He
testified that an accident of this type was unlikely.   Mr.  Beck
testified  that  the  opening  was  partially  protected  by  its
location.  (Tr. 268).  He stated that it was unlikely that anyone
would   accidentally  injure  himself  at  that  location.   Beck
testified  that  the  missing piece had fallen the day before the
inspection and was scheduled to be repaired.
(Tr. 269, 272).  The ladder  had  been removed to keep people off
the walkway until it was repaired.  Id.

     I  find  that the Secretary established  a  violation.   The
opening was present  and,  although  the ladder had been removed,
someone could retrieve the ladder to gain  access  to  the  area.
The  violation  was  not serious.  Beco Construction's negligence
was low because it was  aware  of the problem; it had removed the
ladder; and it had scheduled it  for repair.  A penalty of $25 is
appropriate.

     Citation  No.  7982115  alleges   a   violation  of  section
56.14107(a)  because  the  head  pulley  on  the  cone  discharge
conveyor  belt  was  not  properly  guarded to prevent accidental
contact  with  the  moving  head  pulley.    Inspector   Chitwood
determined  that the violation was not S&S and was the result  of
Beco Construction's  high  negligence.   The Secretary proposes a
penalty of $55 for this alleged violation.

     Inspector  Chitwood  testified  that Beco  Construction  had
placed plastic fencing about two feet  away  from the head pulley
to  barricade  the  area in lieu of guarding the  moving  machine
parts.  (Tr. 51-52; Ex.  P-4,  P-4).   He  further testified that
moving parts were present that, if contacted, could injure anyone
who came in contact with them.  (Tr. 49-51).   The moving machine
parts  were  about  39  inches  above the ground.  The  inspector
testified that the plastic fencing  was  not  adequate because it
was attached with wire so that if someone were  to  trip and fall
into the fence, it would not protect him from the moving  machine
parts.  (Tr. 52).  He also indicated that someone could lean over
the   fence  and  come  into  contact  with  the  moving  pulley.
Inspector  Chitwood  determined  that an injury was unlikely, but
that Beco Construction's negligence  was high.  He based his high
negligence finding on the fact that he  saw brackets on the frame
supporting the pulley that indicated to him  that  the pulley had
been guarded in the past.  (Tr. 55-56,162-63).

     Mr. Beck testified that no employees would have  any  reason
to  work  in the vicinity of the head pulley and that the plastic
fencing was  put there to keep them away  (Tr. 277; Ex. R-8).  He
stated that the  plastic  fencing  was about 30 to 35 inches from
the head pulley.  (Tr. 278).  Because the cited pulley was a head
pulley, no shoveling would be required in the area.  Beck further
testified that the brackets were present  on  the  frame  for the
pulley  because  rods are sometimes attached to support the frame
if it is suspended from the equipment above  it.  (Tr.  279).  He 
stated  that  this  pulley  was  never  guarded.  Indeed,  Beck 
testified that Beco Construction  received  a  citation  for  its 
failure  to  have a guard present and  the  plastic  fencing  was 
installed as a barricade  in response to  the  citation  to  keep
people away from the area..  (Tr.  280).  Beck testified that the
fence was accepted by the MSHA inspector  in  lieu  of a guard to
abate  the  citation.   Id.   I credit Mr. Beck's testimony  with
respect to this citation.

     Based on the Commission's  decision  in Allen Good, I vacate
this citation.  Although the safety standard  was broadly written
to include head pulleys, the Secretary did not  provide  adequate
notice  to  Beco Construction that the fence it had installed  to
barricade the  pulley  was  no  longer  sufficient  to  meet  the
requirements  of  the  safety  standard.   One of the fundamental
principles of due process requires that when  "a  violation  of a
regulation   subjects   private  parties  to  criminal  or  civil
penalties, a regulation cannot  be  construed  to  mean  what  an
agency  intended  but did not adequately express."  Allen Good at
1004 (citations omitted).   In this instance, although the intent
of MSHA is reasonably clear in the safety standard and regulatory
history, the agency directly  misled Beco Construction as to what
is  required.   By accepting the  fencing  to  abate  a  previous
violation, MSHA gave  notice  to Beco Construction that the fence
met  the  requirements  of the safety  standard.    To  determine
whether  an  operator  received   fair  notice  of  the  agency's
interpretation, the Commission asks "whether a reasonably prudent
person  familiar  with  the mining industry  and  the  protective
purposes  of the standard  would  have  recognized  the  specific
prohibition  or  requirement  of  the  standard."  Id.  (citation
omitted).   In Citation No. 7982112, above, I found that  such  a
reasonably prudent person would have recognized that the standard
required  the  cited  roller  to be guarded.  With respect to the
present citation, however, such  a person would not have realized
that a guard was required at the cited  head  pulley because MSHA
previously accepted the fence to abate a guarding citation.  MSHA
is  required  to  provide  notice  that  fencing  is  no   longer
acceptable  under  the  standard  before  a  civil penalty can be
assessed for the failure to have a guard at the  cited  location.
Consequently, Citation No.7982115 is vacated.

     Citation No. 7982116 alleges a violation of section 56.14108
because the overhead drive belts on the El Jay feed Conveyor were
unguarded.  The citation states that someone could walk under the
drive  and  could  be  injured  by  the belt if it were to break.
Inspector Chitwood determined that the  violation was not S&S and
was  the result of Beco Construction's low  negligence.   Section
56.14108  provides  that "[o]verhead drive belts shall be guarded
to contain the whipping  action  of  a broken belt if that action
could  be  hazardous  to  persons."   The  Secretary  proposes  a
penalty of $55 for this alleged violation.

     Inspector Chitwood testified  that  the drive belt was about
13 feet above the ground. (Tr. 62; Ex. P-5).  The overhead drive 
was about seven feet above the walkway of the Cedar Rapids shaker
screen.   (Tr. 62-63). The inspector believes that if the belt
were to break  while  it  was operating,  it could come off with 
a great deal of force and hurt an employee in  the  vicinity.   
Inspector Chitwood believes that the drive belt was about six 
feet long.  Thus, he concluded that if anyone were on the walkway 
performing routine maintenance when the belt broke, he could be 
seriously  injured  by  the  whipping action of the belt.  (Tr. 
64).   The inspector believed that such an event was not very 
likely because Beco Construction shuts  the system down before 
anyone gets up on the walkways.  (Tr. 66).  He determined  that 
the operator's negligence was low for the same reason and because 
the drive  belt  may not have been in the same position when the 
crusher was set up  at other locations.  In the notes that 
Inspector Chitwood took at the time of the inspection, he  noted  
that  "the  power  to  the plant is  turned  off  when employees 
work on the screen."  (Tr.  164-65;  Ex. R-2). He also wrote that 
"access to the area is removed till the  plant is shut down  for 
repairs."  Id.  The access referred to in the note is the ladder 
used to get to the walkway.

     Mr.  Beck  testified that when this drive belt has broken in
the past it has merely  fallen  onto  the screen.  (Tr. 283).  He
stated that employees are not allowed onto  the  walkway  on  the
shaker  screen  when  it  is operating and that the subject drive
motor never operates when the  shaker  screen is shut down.  (Tr.
284).  Beck testified that, because it is  dangerous and somewhat
frightening to be on the walkway when the screen is operating, it
is unlikely that anyone would go up there.  The access ladder was
not at the shaker screen.  He also stated that the drive belt has
been observed during previous MSHA inspections and has never been
cited  for  not  having  a  guard present.  (Tr.  285-86).   MSHA
inspectors  have told him that  a  guard  would  be  required  if
employees work  or  walk  on  the shaker screen walkway while the
crusher is operating.  Id.

     In rebuttal, MSHA inspector  Montoya  testified  that he has
been at other crushers owned by different mine operators  and has
observed employees on walkways of operating shaker screens.  (Tr.
361).  He stated that it is very common to see employees on  such
walkways  and  that  the vibration of the screen does not prevent
people  from being there.   He  has  also  observed  drive  belts
whipping around when they break.  Finally, Montoya testified that
when  a  crusher   is   moved,   the   configuration  can  change
significantly so it is possible that the  drive  belt  was higher
above   the  shaker  screen's  walkway  when  it  was  previously
inspected by MSHA.  (Tr. 363).

     I conclude  that  this  citation  should  be vacated for two
reasons.  First, the language of this particular  safety standard
requires  that  the Secretary establish that the cited  condition
created  a  safety  hazard.   Section  56.14108  states  that  an
operator violates  the  safety  standard  only  "if  the whipping
action  of  a  broken  belt . . . could be hazardous to persons."
Thus, not all drive belts  are required to be guarded, only those
that are located where the whipping action of a broken belt could
injure someone.  The Secretary  established  that this drive belt
could  break  and whip around.  She did not establish  that  such
whipping action  could  injure  anyone.   The  testimony  of  the
inspector  and  Mr.  Beck, as well as the inspector's notes, make
clear that employees do  not  work  or  walk  on  the deck of the
shaker  screen  while  it is in operation.  The ladder  had  been
removed to prevent anyone  from  getting  up  onto  this walkway.
There was no danger to employees on the ground.  The  Secretary's
belief that someone might go up on the walkway while the  crusher
is operating is too speculative to establish a violation.

     Second,  I  credit  Mr.  Beck's  testimony that another MSHA
inspector advised Beco Construction that  a  guard is required if
employees  walk or work on the shaker screen when  the  plant  is
operating.   It  was reasonable for Beck to conclude that a guard
was not required because  of this statement and the fact that the
drive belt was not previously  cited  by  MSHA.  In reviewing the
language  of section 56.14108, its regulatory  history,  and  the
enforcement  history  at  Beco  Construction,  I  find  that  the
Secretary  did not provide fair notice of the requirements of the
standard.   Allen  Good  at  1006.   Consequently,  Citation  No.
7982116 is vacated.

     Citation   No.   7982608  alleges  a  violation  of  section
56.14107(a) because the alternator v-belt  drive and sheaves  on  
the  Detroit  diesel  engine  were unguarded. This engine powered
the generator and was in a semi-trailer. The citation states that
employees working around this equipment were exposed  to  the  
possibility  of  injury from the moving  machine parts. Inspector 
Montoya determined  that  the violation was not S&S and was  the 
result of Beco Construction's moderate negligence.  The Secretary 
proposes a penalty of $55 for this alleged violation.

     Inspector   Chitwood,  who  was  with   Inspector   Montoya,
testified that the  pulley  system for the alternator and the fan
pulley were not guarded.  (Tr.  70; Ex. P-6).  He stated that the
moving machine parts, which were  about  2.5 feet above the floor
of the trailer, presented a safety hazard  to  employees  in  the
area.   An  employee  would only be in the trailer to service the
engine, to check the batteries,  or  to  check  the fluid levels.
(Tr. 72).  If he were to slip, his hand or clothing  may  come in
contact  with  the moving machine parts and he could be seriously
injured  as a result.   Id.   He  believes  that  an  injury  was
unlikely because  the  moving  parts  were  partially  guarded by
location  in that the metal framework of the engine shielded  the
area to a limited  extent.  Inspector Chitwood also believed that
the  engine  was  usually  shut  down  before  it  was  serviced.
Inspector  Montoya's  testimony  is  consistent  with  Chitwood's
testimony.  (Tr. 204-09).  He stated that there was no reason for
an employee  to  be in the area of the moving machine parts other
than when he  started  and  stopped  the  engine, "maybe [when he
performed] some maintenance checks," or if  someone  were walking
by the engine.  (Tr. 206, 213-16).

     Mr.  Beck testified that maintenance is performed  from  the
other side  of the engine. Oil and radiator fluid are checked and
added  on  the  opposite  side  of  the  engine.  (Tr.  288;  Ex.
R-14).  He stated that the oil level and radiator fluid are never
checked  or  supplemented   when   the   engine   is   operating.
Maintenance  is  performed by mechanics on the weekends when  the
generator is not operating.   (Tr.  292).   The  controls for the
engine  are at the opposite end of the engine.  (Ex.  R-14).   In
addition,  Mr.  Beck stated that, even if someone were walking in
the area adjacent  to the alternator and tripped, the chance that
he would get caught  in  the  moving machine parts is "absolutely
zero."  (Tr. 292).    Finally,  he testified that he has used the
cited engine and generator for about  eight  years.   (Tr.  293).
Beck testified that this generator has been inspected by MSHA  on
a  number  occasions  and  he is not aware of any citations being
issued for lack of a guard at the alternator v-belt drive.  Id.

     The Secretary recognizes  that  the  cited condition did not
create  a serious safety hazard to Beco Construction's  employees
because an  accident  was  unlikely.  She contends, however, that
because a serious accident was  possible,  the  v-belt  drive was
required  to be guarded under the standard.   Section 56.14107(a)
is ambiguous, because "its language is broad and does not specify
the extent  of  the guarding required or explain how moving parts
should be guarded."   Allen  Good at 1004.  The generator trailer
has been in the same condition  for  eight  years and it has been
inspected  by  MSHA  on numerous occasions.  The  moving  machine
parts were not readily  accessible  and were on the opposite side
of  the  engine  from where it is serviced.   I  find  that  Beco
Construction was not  given  sufficient  notice  that  additional
guards  were required on the engine.  Consequently, Citation  No.
7982608 is vacated.

     Prior to the hearing, Beco Construction withdrew its contest
of Citation  Nos.  7982114,  7982605,  7982606,  and  7982607.  I
assess  the  Secretary's  proposed  penalty  of  $231  for  these
violations.

     C.  Citations Issued at the CH2 Crusher

     WEST 2000-544-M

     Citation No. 7982098 alleges a violation of section 56.15004
because  an employee was observed working around the tail section
of the C-5  conveyor  belt  without  wearing safety glasses.  The
citation  states that the belt was in operation  and  that  loose
material was  being  fed  onto  it  from the conveyor belt above,
exposing  the  employee  to  a  possible eye  injury.   Inspector
Chitwood determined that the violation was S&S and was the result
of  Beco  Construction's moderate negligence.   Section  56.15004
provides, in  part, that "[a]ll persons shall wear safety glasses
. . . when in or around an area of a mine or plant where a hazard
exists  which could  cause  injury  to  unprotected  eyes."   The
Secretary proposes a penalty of $90 for this alleged violation.

     Inspector  Chitwood  testified that material from the shaker
screen was dropping in the  vicinity of the employee he observed.
(Tr. 81; Ex. P-7).  The employee appeared to be securing a nut on
a guard at the tail section of  the  conveyor  belt when Chitwood
saw him.  (Tr. 83).  The employee was not wearing safety glasses.
Another  belt was dumping "sand and small gravel"  onto  the  C-5
belt from  a  height  of about four to five feet.  (Tr. 84).  The
employee was about two  feet  from this dumping point.  Inspector
Chitwood stated that he was concerned  that  small  particles  of
rock,  dust,  or  sand  could  get  into the employee's eyes.  He
believed that the employee could suffer a serious eye injury if a
piece of rock flew into one of his eyes.   (Tr.  87).   He  could
also  have suffered a scratched cornea.  The inspector determined
that it  was  reasonably  likely  that  he would suffer a serious
injury  if  he  continued  to  work  in  the  area   without  eye
protection.

     Mr. Herbertson, who was with Chitwood, testified that he did
not  see any rocks or dust flying out of the discharge  conveyor.
(Tr. 248).   He  further stated that the employee at the belt had
safety glasses in  his  pocket  at the time of the inspection and
that Beco Construction requires employees to wear them when there
is  a  hazard  but that there was no  hazard  in  this  instance.
Herbertson testified  that the material that was being discharged
near the cited employee  was  wet  and that it was falling from a
height of about 18 inches.  (Tr. 255).   Mr.  Beck also testified
that the cited employee was not required to wear  safety  glasses
at that tail pulley because there was "no possible way that there
could be any flying objects that could damage or harm his eyes."
(Tr. 298).  The discharge conveyor moves at a slow rate of speed,
the  material was falling a short distance; and the material  was
quite  wet  to  keep  the  dust  down.   He testified that a belt
discharging larger rock would pose a hazard because a piece could
fly off from the impact and strike someone in the eye.  (Tr. 301-
02, 302).  Beck believes that there was no  possibility  that the
employee would sustain an eye injury at the cited location.  (Tr.
303).

     The  language  of  this  particular safety standard requires
that the Secretary establish that  the  cited condition created a
safety hazard.  Section 56.15004 states that  all  persons  shall
wear  safety  glasses  "where  a  hazard exists which could cause
injury to unprotected eyes."  The Secretary  is  not  required to
prove  that  an injury will occur but that a hazard exists  which
"could"  cause  injury.   In  this  instance,  I  find  that  the
Secretary established that an eye injury was possible at the tail
section of  the  C-5 belt.  I also find that the preponderance of
the evidence shows  that  it  was  not likely that the individual
would be injured.  I credit Mr. Beck's  testimony in this regard.
I note that the photograph introduced by  the  Secretary does not
indicate  that  any dust or debris was being kicked  up  at  this
location.  (Ex. P-7).   Consequently,  I affirm the citation, but
find that the Secretary did not meet the  third  element  to  the
Commission's  S&S  test.  The negligence was moderate.  A penalty
of $50 is appropriate.

     Citation  No.  7982099   alleges   a  violation  of  section
56.20003(a) because poor housekeeping conditions were observed at
the  oil  storage trailer.  The citation states  that  fiberglass
insulation,  electrical  motors,  steel,  and  other  debris  was
scattered all over the floor.  Inspector Chitwood determined that
the   violation   was   not  S&S  and  was  the  result  of  Beco
Construction's low negligence.   The  standard provides, in part,
that "[w]orkplaces,  passageways, storerooms,  and  service rooms
shall  be  kept  clean  and  orderly."  The Secretary proposes  a
penalty of $55 for this alleged violation.

     Inspector Chitwood testified  that  the  conditions  in  the
trailer  created a slipping and tripping hazard.  (Tr. 94-95; Ex.
P-8).  He  stated that he also observed hydraulic hoses and other
material in  the trailer.  He believed that any injuries would be
minor.  He stated  that  there  was  a  clear  two-foot wide path
without  a  tripping  hazard  on  one  side  of the trailer  that
employees could use to walk through.  (Tr. 177;  Ex.  R-3).   Mr.
Beck  testified that there was a walking path through the trailer
to the  oil barrels.  (Tr. 306).  He stated that employees do not
travel beyond these barrels.

     I find  that  the  Secretary  did not establish a violation.
The photograph taken by the inspector  shows  a  trailer  that is
relatively clean and orderly.  (Ex. P-8).  Spare hoses and  belts
are hung from hooks on the wall; other hoses are coiled along one
side; various cans, including oil barrels, are located along that
same  side; and a pathway leads into the area.  The only slightly
cluttered  area is at the back of the trailer, but even that area
is rather clear of impediments to walking.  There are long pieces
of metal along  one  side, but the floor is clearly visible along
the path that both Chitwood  and  Beck  testified about.  The PPM
does not provide any interpretive guidance  on this standard.   I
credit the testimony of Mr. Beck as to how this  trailer is used.
The Secretary did not establish that the operator  failed to keep
the  trailer  "clean  and  orderly."   Citation  No.  7982099  is
vacated.

     Citation No. 7982101 alleges a violation of section 56.11001
because  safe  access  was not provided to the cone crusher  work
platform.  The citation  states  that the steps and work platform
had a build-up of loose rock and that several 480-volt electrical
conductors were on the steps to the platform.  Inspector Chitwood
determined that the violation was  not  S&S and was the result of
Beco Construction's high negligence.  Section  56.11001  provides
that "[s]afe means of access shall be provided and maintained  to
all working places."  The Secretary proposes a penalty of $55 for
this alleged violation.

     Inspector  Chitwood testified that he observed loose rock on
the deck of the cone  crusher and on the stairs leading up to the
deck.  (Tr. 97-98; Exs.  P-9 & P-10).   He believed that if there
were a "plug-up" in the crusher  or  if  the crusher needed to be
serviced,  an  employee would face a tripping  hazard.   Chitwood
testified that the  employee might have to gain access quickly in
the event of an emergency.  He stated that an employee would need
to be able to walk all  around  the  cone crusher.  (Tr. 101-03).
He felt that the rock had been present for at least several days.
Although  Inspector  Chitwood  believed that  an  employee  would
receive  a serious injury if he tripped  and  fell,  he  did  not
believe that  such  an  occurrence was likely because there was a
handrail all around the deck.   He  also  took into consideration
the fact that employees do not enter the area  until the plant is
shut  down.   (Tr.  179).   He  believed that Beco Construction's
negligence was high because the condition had existed for several
shifts  and  workplace  examinations  should  have  detected  the
problem.  (Tr. 105-06).   The  inspector  testified that the deck
should  have  been cleaned off whenever loose  rock  accumulated,
which he estimated to be necessary about every other shift.  (Tr.
180-82).

     Mr. Beck testified  that  no  employees  are allowed to walk
onto the deck of the cone crusher while the plant  is  operating.
(Tr.  308).  He stated that the material accumulates on the  deck
as part  of the normal operation of the crusher.  The material is
overflow that  spills  on the deck from the crusher "and we don't
know if there is going to be an overrun five times an hour or not
for two days."  (Tr. 309).  As a consequence, Beck testified that
employees clear off the  deck  before  they  do  any  work at the
crusher.  He testified that he believes it is pointless  to clean
it  off  at  the end of each shift because an employee would  not
need to get up  on  the  deck  every  day.   (Tr.  310, 314).  He
disputed  the inspector's testimony concerning an emergency  that
would require  an  employee to rush on the deck before he had the
opportunity to clean  off  the accumulations.  Beck testified, as
follows:

          I cannot for the life  of  me figure out what
          type  of  emergency  may come up  that  would
          induce  a man to . . .  go  up  there  on  an
          emergency  basis.  There just isn't any.  The
          operator of  the  crusher and the control man
          is the emergency shutdown  guy  and, if there
          is  an emergency, he goes over and  hits  the
          shut-off button.

(Tr. 311-12).  The shut-off button is not on the deck.

     The safety  standard  is broadly written to be applicable to
many situations.  The term "working  place"  is  defined  as "any
place  in  or  about  a  mine where work is being performed."  30
C.F.R.  56.2.  Inspector  Chitwood  was  concerned  that someone
might walk up the stairs to the deck without cleaning them off in
an   emergency  situation.   He  was  also  concerned  about  the
electrical cables that were on the steps.  There was no testimony
that the  area  was entered during on-shift examinations required
under section 56.18002  or that an employee would use the deck as
a travelway to reach another  area  at  the  crusher.   Mr.  Beck
testified,   without   contradiction,   that  an  employee  would
typically be on the deck every few days to  make  adjustments and
that  his  first  order  of  business  would be to clean  up  the
accumulations.

     I find that the cited area was not  a  travelway but that it
was a working place.  Given that the working place was cleaned of
accumulations before anyone entered the area,  I  find  that  the
presence  of  rocks on the deck at the time of the inspection did
not establish that  a safe means of access was not being provided
by Beco Construction.   The safety standard does not require that
all working places be kept  clear  of  rock  at  all  times,  but
requires  that  a safe means of access be provided.  I credit Mr.
Beck's testimony  that employees would not work on the deck in an
emergency situation without first cleaning off the rocks.

     The electrical  cables  on  the  stairs  did present a minor
tripping  hazard.  (Ex. P-9).  I find that these  wires  were  in
violation of  the  requirement that safe access be provided.  The
violation  was not serious.   I  find  that  Beco  Construction's
negligence was moderate.  A penalty of $40 is appropriate.

     Citation   No.   7982102  alleges  a  violation  of  section
56.14112(b) because the  protective guard for the v-belt drive on
the discharge conveyor under the cone crusher was not securely in
place.  Inspector Chitwood  determined that the violation was not
S&S   and  was  the  result  of  Beco   Construction's   moderate
negligence.    Section   56.14112(b)   provides,  in  part,  that
"[g]uards  shall be securely in place while  machinery  is  being
operated."   The  Secretary  proposes  a  penalty of $55 for this
alleged violation.

     Inspector Chitwood testified that a guard  was  present  but
that  it was loose because two bolts were missing.  (Tr. 111; Ex.
P-11).   The  v-belt  drive was in the area where employees use a
loader to scoop up material  that has fallen from the deck of the
cone crusher.  The inspector noticed  that the screen was shaking
with the vibration of the crusher.  He  believed  that  the guard
"could possibly have fallen off at any time."  (Tr. 111, 186-87).
Inspector Chitwood testified that if the guard fell off,  someone
could  become  caught in the moving machine parts.  He determined
that an accident was unlikely because a guard was present but "it
just wasn't secure."  (Tr. 113).  In addition, he did not observe
any footprints in  the area and the accumulations are cleaned out
with a loader that is equipped with an overhead cab.

     Mr. Beck testified  that the guard was attached with bailing
wire.  (Tr. 317).  He testified  that  it  was attached with wire
because  about  once  a week an employee must remove  the  guard,
while the plant is shut  down,  to  inspect  the underside of the
cone  crusher.   Consequently,  he believes that  the  guard  was
vibrating because it was attached  with  wire  not because it was
insecure.  Other MSHA inspectors have inspected  the cone crusher
and  some inspectors have questioned the use of bailing  wire  to
secure  the  guard.   (Tr.  319).   He  could not remember if any
citations had been issued in the past for this guard.

     I  find  that the Secretary did not establish  a  violation.
The cited condition  would create a hazard only of the guard fell
off the crusher.  Inspector  Chitwood testified that it "possibly
could have fallen off."  I credit  the testimony of Mr. Beck that
it  was  secured with bailing wire.  The  guard  would  naturally
vibrate when  the  crusher  was  operating  because of the way in
which it was installed.  (Ex. R-11b).  The Secretary did not meet
her burden of showing that the guard was not  securely  in place.
Consequently, this citation is vacated.

     Citation   No.   7982103  alleges  a  violation  of  section
56.14107(a) because the  tail  pulley on the stacker conveyor was
not properly guarded to prevent  serious  injuries.  The citation
states  that  the  front and both sides of the  pulley  were  not
guarded.  Inspector  Chitwood  determined  that the violation was
not   S&S  and  was  the  result  of  Beco  Construction's   high
negligence.   The  Secretary  proposes  a penalty of $55 for this
alleged violation.

     The  cited tail pulley was protected  by  a  partial  guard.
(Tr. 116; Ex.  P-12).   The  openings were in the vicinity of the
shaft  for  the  pulley and in the  front  of  the  tail  pulley.
Inspector Chitwood  was concerned that if anyone were in the area
shoveling accumulated material, he might get his hand or clothing
into the moving machine parts if he tripped and fell.  (Tr. 118).
The moving parts were  about  two  feet  above  the  ground.   He
determined that an accident was not likely because he did not see
any  footprints  in  the area.  (Tr. 122).  In addition, the tail
pulley was under another conveyor belt.  (Tr. 189; Ex. P-12).  He
determined that Beco Construction  was  highly  negligent because
there are other tail pulleys at the plant that are fully guarded.

     Mr. Beck testified that the opening on each side of the tail
pulley was about four by eight inches.  (Tr. 320).   He said that
the moving machine parts were more than amply guarded because the
openings  were  very  small  and  the  other  conveyor  belt kept
employees   from   getting  close  to  the  tail  pulley.   "It's
absolutely inconceivable  to  me that someone could walk up there
and trip and, at the same time,  get  their hand or their foot or
something  through  that opening."  (Tr.  322).   Mr.  Beck  also
testified that another  MSHA  inspector previously inspected this
tail pulley in the same condition  and  did not issue a citation.
(Tr.  324).   He  believes that the likelihood  of  anyone  being
injured by the tail pulley was "zero."  (Tr. 326).

     Based in part  on the Commission's decision in Allen Good, I
find that Beco Construction  did not receive fair notice that the
condition  violated  the  safety   standard.    I  credit  Beck's
testimony that another inspector had inspected the same condition
without issuing a citation.  Consequently, Beco Construction  was
given  notice  by  an  authorized representative of the Secretary
that the guard on the tail  pulley  met  the  requirements of the
safety standard.  The openings that Inspector Chitwood cited were
very small and inaccessible.  Although the language of the safety
standard  is  broad,  as  discussed  above, a reasonable  prudent
person  familiar  with  the mining industry  and  the  protective
purposes of the safety standard  would  not  have recognized that
the  standard  required  additional guarding.  The  Secretary  is
required to provide notice  that  additional guarding is required
before  a  civil  penalty  can be assessed.   Consequently,  this
citation is vacated.

     Citation  No.  7982104  alleges   a   violation  of  section
56.14107(a)  because  a  protective  guard was not  provided  for
several idler rollers on the El-Jay discharge belt.  The citation
states that the cited area was about 57  inches above the ground.
Inspector Chitwood determined that the violation  was not S&S and
was  the  result  of  Beco  Construction's high negligence.   The
Secretary proposes a penalty of $55 for this alleged violation.

     Inspector Chitwood testified  that  the idler rollers on the
belt were not properly guarded.  (Tr. 125;  Ex. P-13).  He stated
that  these  rollers can create a pinch point especially  if  the
belt is full of  material.  If a person stumbled while walking in
the area, he could  get  his hand caught between the belt and the
rollers.  Id.   The conveyor  assembly  was  not  equipped with a
skirt board.  (Tr. 126).  The idlers along part of  this conveyor
were protected by plastic fencing.  The inspector did not believe
that an accident was likely because it did not appear  to be in a
heavily  traveled  area.   (Tr.  128).   He  also  testified that
employees  do  not work along this conveyor until the  system  is
shut down.  (Tr. 190; Ex. R-6).  Inspector Chitwood believed that
the  negligence was  high  because  the  operator  had  installed
plastic  fencing along part of the conveyor and the fact that all
of it was not protected should have been detected during on-shift
examinations.

     Mr. Beck  testified that about 15 feet of safety netting was
placed along the  conveyor to abate the citation.  (Tr. 326).  He
said that employees  work  at the head pulley and tail pulley but
not along the belt because there  is  nothing  to do there.  "You
can't adjust, you can't fix, you can't repair" at the cited area.
(Tr.  327).   The belt would need to be shut down  to  replace  a
roller.    Although  this  conveyor has been previously inspected
by MSHA, Mr. Beck was not sure  whether  any  citations  had been
issued because he did not know the configuration it may have been
in at the time.  (Tr. 329).

     I  find  that the Secretary established a non-S&S violation,
but that the negligence  was not high.  Because a skirt board was
not present, that part of MSHA's PPM that instructs inspectors to
provide a verbal warning does  not  apply.   I  credit Mr. Beck's
testimony that the company provided protection along  part of the
conveyor  because  that  section was near another conveyor  where
employees   could  be  walking   or   working.    (Tr.   327-28).
Consequently,  the  fact that Beco Construction guarded that area
does  not  establish high  negligence  in  this  citation.   Beco
Construction  believed that guarding was unnecessary at the cited
location because employees do not work or travel in that area.  I
find that Beco Construction's negligence was moderate.  A penalty
of $50 is appropriate.

     Prior to the hearing, Beco Construction withdrew its contest
of Citation No.  7982100.   I  assess  the  Secretary's  proposed
penalty of $55 for this violation.

     WEST 2000-545-M

     Citation No. 7982105 alleges a violation of section 56.12005
because  several  power  cables  were  on  the ground between the
control trailer and the cone crusher that had  been run over by a
vehicle.    The  citation  states  that  the  outer  jacket   and
insulation around  the power conductors could be damaged from the
weight of the vehicle.   Inspector  Chitwood  determined that the
violation  was not S&S and was the result of Beco  Construction's
high  negligence.   Section  56.12005  provides,  in  part,  that
"[m]obile  equipment  shall  not  run over power conductors . . .
unless the conductors are properly  bridged  or  protected."  The
Secretary proposes a penalty of $55 for this alleged violation.

     Inspector Chitwood testified that the cables  were  near the
control  trailer,  that they provided power for the crusher,  and
that  they  were  energized  at  the  time  of  his  inspection.
(Tr. 130; Exs. P-14  & P-15).  He observed tire tracks going over
the cables where there  was  no  bridging.   He believes that the
tracks were made by a pickup truck.  Rubber mats were in the area
but they did not cover the power conductors where he observed the
truck tracks.  (Tr. 134).  Inspector Chitwood  testified that the
violation  would  create an electric shock hazard  if  the  outer
jacket and insulation were damaged by truck traffic.  Because the
outer jacket was in  good  condition when he issued the citation,
he determined that such an accident  was  unlikely.   He believes
that the negligence is high because the violation was obvious and
in  an  area  where  management  would  frequently  travel.  Both
Inspector  Chitwood  and  Inspector  Montoya  testified that  the
rubber  mats  would  provide  adequate protection for  pedestrian
traffic but would not meet the  standard for truck traffic.  (Tr.
134, 211).

     Mr. Beck testified that pickup  trucks  do not travel in the
cited  location  because  it is a dead end.  He stated  that  the
tracks that the inspector observed  were  from  a trailer-mounted
welder.  (Tr. 331).  It weighed about 200-250 pounds  and  it was
pushed  around  by  hand.   The  mats  were present to reduce the
tripping hazard and to keep dirt from building  up on the cables.
Beck did not know when the mats became separated from the cables.
He does not believe that the power conductors would be damaged by
the weight of the welder.  (Tr.333).

     I  find  that  the welding trailer was mobile equipment,  as
that  term is used in  the  safety  standard.   MSHA's  standards
regulating  machinery and equipment defines "mobile equipment" as
"[w]heeled . . . equipment capable of moving or being moved."  30
C.F.R.   56.14000.   Another  similar  definition  of  the  term
includes  "all  equipment  that  is self-propelled or that can be
towed  on  its  own wheels . . . ."   Am.  Geological  Institute,
Dictionary of Mining,  Mineral,  and  Related  Terms  352 (2d ed.
1997).    The   Secretary  established  a  violation.   Mr.  Beck
testified that other  MSHA  inspectors  had  observed unprotected
power  cables during previous inspections and no  citations  were
issued.   (Tr. 335).  Beck did not state whether these inspectors
observed vehicles  crossing  the  cables  or  tire  tracks in the
vicinity of the cables.  Consequently, Beco Construction  did not
establish  that  it  was  not  provided  with  fair notice of the
application of the safety standard.

     I find that the violation was not serious.   The cables were
not damaged.  In addition, it is unlikely that the welder trailer
would  damage  the  cables.  I also find that Beco Construction's
negligence was moderate.   The fact that the violation was easily
observed by plant management  does not establish a high degree of
negligence.  Mr. Beck did not believe  that  the  cables had been
run  over by trucks and testified that welder trailer  would  not
damage the cables.  A penalty of $50 is appropriate.

     Citation No. 7982106 alleges a violation of section 56.12032
because the cover plate on the heater control power switch in the
operations  trailer  was  not  properly  closed and secured.  The
citation states that the cover plate was cracked open because the
screws holding it down were loose.  Inspector Chitwood determined
that  the  violation  was  not  S&S and was the  result  of  Beco
Construction's low negligence.  Section  56.12032  provides  that
"[i]nspection  and  cover  plates  on  electrical  equipment  and
junction  boxes shall be kept in place at all times except during
testing or repairs."  The Secretary proposes a penalty of $55 for
this alleged violation.

     Inspector  Chitwood  testified  that  the  cover plate on an
unenergized electrical box was not completely closed.   (Tr. 140-
41 ; Ex. P-16).  The cover plate was loose because several of the
screws  were  not tight.  The inspector was concerned that  if  a
miner tripped and  fell  against  the  electrical  box, "it could
possibly  pop  that  cover  open even more, exposing him  to  the
electrical conductors inside."   (Tr.  143).   He  believed  that
someone  could  be severely injured as a result, but that such an
accident  was unlikely.   Inspector  Montoya  testified  that  an
electrical  arc could escape from the box.  (Tr. 364).  Inspector
Chitwood marked the negligence as low because the company was not
using that junction box at the time.

     Mr. Beck  testified  the  cited  junction  box  was  "out of
commission  at the time."  (Tr. 337).  This junction box was  not
being used while  the  crusher  was being operated in the present
configuration because it was not needed.  (Tr. 339).

     Although the Mine Act is a strict  liability  statute, there
comes a point when a cited condition creates a hazard  that is so
speculative  or  insignificant that the citation must be vacated.
The photograph shows that the cover plate was in place but it was
not screwed down at  the  lower  right  hand  corner.   A  slight
opening was present.  The box was not only not energized, it  was
locked  out  because  it  was not being used at all at this plant
site.  To be a hazard, someone  would  have to take off the lock,
energize the box, fall against it causing  the cover to pop open,
and then get his hand inside the box as he fell.   This  scenario
is highly unlikely.  The citation is vacated.

     Citation   No.   7982108  alleges  a  violation  of  section
56.20003(a) because poor housekeeping conditions were observed on
the work platform of the  Nordberg  cone crusher.  Loose rock and
other  debris  had  accumulated.  The citation  states  that  the
material covered an area  of  about  8  feet  by  5.4 feet, which
exposed  employees  to a slip, trip, and fall hazard.   Inspector
Chitwood determined that  the  violation  was not S&S and was the
result of Beco Construction's moderate negligence.  The Secretary
proposes a penalty of $55 for this alleged violation.

     Inspector   Chitwood   testified   that  poor   housekeeping
conditions  on  the  work  platform.  (Tr. 145;  Ex.  P-17).   He
testified that employees would  need  to use the platform to gain
access to the crusher and the controls  on  the  platform.  Loose
rock, tools, and other debris were scattered over  the  platform.
The  presence of the tools convinced him that employees had  been
working on the platform without first cleaning the area up.  (Tr.
148-49).   The  material  presented a tripping hazard.  Inspector
Chitwood believed that an accident  was unlikely because it was a
small work platform that was surrounded by handrails.

     Mr. Beck testified that employees  of  Beco Construction are
required to clean the platform whenever they  use it.  (Tr. 340).
He stated that the controls that the inspector  saw  are not used
because  there  are hydraulic controls in the van.  Beck  further
stated that the crusher  was  less  than  a  year  old  and  that
employees  did  not have to go onto the work platform to make any
adjustments.  He testified that the chain across the entrance was
to prohibit employees  from  entering  the  work  platform.  (Tr.
341).  Finally, he stated that this crusher has been inspected by
MSHA in the past and no citations were issued.

     I find that the Secretary established a violation.  Although
it  was  not used frequently, the platform was a workplace.   The
presence of  tools  on the platform establishes that at least one
employee had been in  the  area.   The record does not reveal how
quickly rock accumulates in the area.   The photograph shows very
little rock. (Ex. P-17).  The other material that was lying about
on the platform created a greater tripping  hazard.   If the area
contained  only  the  amount of rock shown in the photograph  and
nothing else, I would have  vacated this citation.  The fact that
other MSHA inspectors did not  issue  any citations is irrelevant
because  there is no evidence as to the  condition  of  the  work
platform at  the time of these inspections.  The violation is not
serious.  Beco Construction's negligence was moderate.  A penalty
of $40 is appropriate.

     Prior to the hearing, Beco Construction withdrew its contest
of Citation Nos.  7982107,  7982109,  and  7982110.  I assess the
Secretary's  proposed  penalty  of  $223  for  these  violations.
I granted the Secretary's motion to vacate Citation  No.  7982111
at the hearing.  (Tr. 7).

                 II.  APPROPRIATE CIVIL PENALTIES

     Section  110(i) of the Mine Act sets out six criteria to  be
considered in determining  appropriate  civil  penalties.    With
respect  to  the  history  of paid violations, I find that eleven
citations were issued at the  CH1  crusher  and no citations were
issued  at  the  CH2  crusher  in  the 24 months preceding  these
inspections.   (Tr.  217-21).   Beco  Construction   is  a  small
operator that worked about 5,871 man-hours at the CH1  crusher in
1999 and 6,148 man-hours at the CH2 crusher in 1999, for  a total
of  12,019  hours at all Beco Construction facilities.  (Tr.  6).
All of the violations  were  abated in good faith.  The penalties
assessed in this decision will not have an adverse effect on Beco
Construction's ability to continue in business.  My findings with
regard to gravity and negligence  are  set forth above.  Based on
the penalty criteria, I find that the penalties  set  forth below
are appropriate.  The reduction in the penalties is based  on the
small  size  of  the operator and, where noted above, the gravity
and negligence criteria.

                           III.  ORDER

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

     Citation No.             30 C.F.R.      Penalty

     WEST 2000-543-M

       7982112                56.14107(a)          $60.00
       7982113                56.11012              25.00
       7982114                56.14107(a)           55.00
       7982115                56.14107(a)         Vacated
       7982116                56.14108            Vacated
       7982605                56.12004              66.00
       7982606                56.12008              55.00
       7982607                56.12025              55.00
       7982608                56.14107(a)         Vacated

     WEST 2000-544-M

       7982098                56.15004              50.00
       7982099                56.20003(a)         Vacated
       7982100                56.4101               55.00
       7982101                56.11001              40.00
       7982102                56.14112(b)         Vacated
       7982103                56.14107(a)         Vacated
       7982104                56.14107(a)           50.00

     WEST 2000-545-M

       7982105                56.12005              50.00
       7982106                56.12032            Vacated
       7982107                56.4101               55.00
       7982108                56.20003(a)           40.00
       7982109                56.14112(b)           55.00
       7982110                56.14107(a)          113.00
       7982111                56.14107(a)         Vacated


     Accordingly, the  citations  contested  in  these  cases are
AFFIRMED,  MODIFIED,  or  VACATED  as  set  forth  above and Beco
Construction  Company,  Inc., is ORDERED TO PAY the Secretary  of
Labor the sum of $824.00  within  30  days  of  the  date of this
decision.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

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

Merrily Munther, Esq., Penland & Munther, P.O. Box 199, Boise, ID
83701 (Certified Mail)


RWM