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[DOCID: f:c95-1m.wais]
WALKER STONE COMPANY, INC.
August 10, 1995
CENT 95-1-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 10, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-1-M
Petitioner : A. C. No. 14-00164-05524
v. :
: Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC., :
Respondent :
DECISION
Appearances: Ann M. Noble, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado,
for the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing & Troup, Junction City, Kansas,
for Respondent.
Before: Judge Maurer
STATEMENT OF THE CASE
This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 801 et seq., the "Act," charging
Walker Stone Company, Inc., with two violations of the
regulatory standards found in Part 56, Title 30, Code of
Federal Regulations. The general issues before me are
whether the respondent violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section 110(i) of the Act.
Pursuant to notice, the case was heard at Fort Riley,
Kansas, on March 14, 1995. At the hearing, Inspectors
Curtis W. Dement and Eldon E. Ramage testified for the
Secretary of Labor. Mr. David S. Walker, the President
of Walker Stone Company, Inc., and Mr. Clifford Moenning,
the plant foreman, testified for respondent.
STIPULATIONS
At the hearing, the parties entered the following
stipulations into the record (Tr 8):
1. Walker Stone Company, Inc. is engaged in the
operation of a limestone quarry and mill in the
United States, and its mining operations affect
interstate commerce.
2. David S. Walker is the owner and operator of
Kansas Falls Quarry and Mill Mine, MSHA I.D.
14-00164-05521.
3. Walker Stone Company, Inc. is subject to the
jurisdiction of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. �� 801 et seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in
this matter.
5. The subject citations were properly served by a
duly authorized representative of the Secretary upon
an agent of respondent on the dates and places
stated therein, and may be admitted into evidence
for the purpose of establishing their issuance, and
not for the truthfulness or relevancy of any
statement asserted therein.
6. The exhibits to be offered by respondent and the
Secretary are stipulated to be authentic but no
stipulation is made as to their relevance or the
truth of the matters asserted therein.
7. The proposed penalties will not affect
respondent's ability to continue in business.
8. The operator demonstrated good faith in abating
the violations alleged in Citation Nos. 4332611 and
4409171.
9. Walker Stone Company is a limestone mine
operator with 97,089 hours of production in 1993.
10. The certified copy of the MSHA Assessed
Violations History accurately reflects the history
of this mine for the 2 years prior to the date of
the citations.
DISCUSSION, FINDINGS AND CONCLUSIONS
Citation No. 4332611
Citation No. 4332611, issued on November 16, 1993,
alleges a violation of the standard found at 30 C.F.R.
� 56.14107[1] and charges as follows:
The self cleaning tail pulley on the second
conveyor between the crusher and the surge bin was
not provided with a guard to protect persons from
contacting the moving parts that can cause injury.
A build up of material under the conveyor allows
persons to become with in less than 6 1/2 foot or
(1.98) meters of the underside of moving machinery.
Inspector Dement testified that he and Inspector
Ramage, accompanied by his supervisor, located an unguarded
tail pulley on a belt conveyor between the crusher and the
surge bin. In his opinion, this was a hazard because he
thought it possible for a person to get his clothing caught
up in it, a coat sleeve, for example.
**FOOTNOTES**
[1]:/ 30 C.F.R � 56.14107 provides:
(a) Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.
(b) Guards shall not be required where the exposed
moving parts are at least seven feet away from
walking or working surfaces.
Dement also testified that he determined the bottom
of the unguarded tail pulley was about 6 1/2 feet off the
ground. But he allowed that the space between the ground
and the tail pulley had been closed due to spillage off
the belt conveyor and that if the spillage had been
cleaned up, the tail pulley would have been okay without
the guard, because then it would have been at least 7 feet
off the ground. In fact, if the spillage of crushed rock
off the conveyor, which he estimated to be somewhere in
the neighborhood of 24 inches thick, had been 6 inches
less, the citation would not have been issued and the
pulley, which had gone unguarded for the previous 24 years,
would in all likelihood still be unguarded.
Inspector Ramage testified in corroboration of
Dement's testimony and added that he had had a prior
discussion with plant foreman Moenning in June of 1993,
wherein he told Moenning that the 7 foot distance would
have to be maintained in order to stay in compliance with
the standard. He stated that he had observed the
unguarded tail pulley many times, but had never cited it
because the build-up of crushed rock underneath it had
never placed the pinch point of the pulley within 7 feet
of the ground at the time he observed it. On the cited
occasion, however, he concurs that it was closer than the
7 feet required by the standard.
Mr. Moenning also testified on this point and agreed
that the distance between pulley and ground was about 6 1/2
feet or between 6 1/2 and 7 feet. Moenning further opined
that there is no work area or walkway for employees in the
vicinity of that tail pulley, but he did state that the
crushed rock spillage is cleaned up every day using a
Bobcat.
The preponderance of the evidence is to the effect
that the unguarded tail pulley was within 7 feet of the
ground, represented by the top of the spillage pile. It
is also uncontroverted that a person, operating a Bobcat,
cleans up this spillage on a daily basis, and thereby is
exposed to the hazard presented, however unlikely he might
actually become entangled in the tail pulley. The
Secretary concedes the point that it is unlikely. I would
only add that in my opinion it is highly unlikely that
anyone would get entangled in this tail pulley, but that
is not relevant to the limited inquiry at bar.
Accordingly, I find a violation of the mandatory
standard as cited and assess the proposed civil penalty of
$50.
Citation No. 4409171
Citation No. 4409171 was originally issued as a
section 104(d)(1) order, but was later modified to a (d)(1)
citation upon the vacation of the earlier (d)(1) citation
on which it was based. It was originally issued on
June 30, 1994, for an alleged violation of the mandatory
standard found at 30 C.F.R. � 56.14103(b)[2] and charges
as follows:
The windshield of the light blue F150 Ford
pickup was severely cracked. The cracked windshield
impaired the operators vision. The pickup is seldom
used but sun striking these cracks could temporarily
blind the operator. The plant manager had driven the
pickup on the afternoon of 6-29-94.
At times there were several customer trucks and
a company front-end loader in the area the pickup was
operated.
This is unwarrantable failure.
Inspector Ramage issued this citation to the operator
because the windshield was cracked in the subject pickup
truck, which obstructed the operator's view, in his
opinion.
**FOOTNOTES**
[2]:/ 30 C.F.R. � 56.14103(b) provides:
(b) If damaged windows obscure visibility
necessary for safe operation, or create a hazard to
the equipment operator, the windows shall be replaced
or removed. Damaged windows shall be replaced if
absence of a window would expose the equipment
operator to hazardous environmental conditions which
would affect the ability of the equipment operator to
safely operate the equipment.
The truck was operated at least once a day in an area
where customer's trucks were also operating. A front-end
loader also operated in this area and there was a plant
man that could be on foot in the area as well.
There was a nonissue raised concerning the ownership
of the truck. Mr. Moenning claimed that it was his
personal pickup truck, given to him by Mr. Walker. However,
a sign displayed on the side of the truck said: "Walker
Stone Co., Inc., Chapman, Kansas."
In reality, it does not matter whose truck it is.
Since it is being used on mine property, for mine business,
it is the operator's responsibility to ascertain that it
meets the applicable mandatory safety standards.
The only genuine issue of material fact to be tried
in regard to this citation is whether or not the
windshield was cracked severely enough to be considered
unsafe for operation.
Based on the evidence in this record, most
particularly the photographs of the truck (GX-6 and GX-7),
which quite clearly depict the damage, I conclude that it
is insufficient to establish that the windshield cracks
noted by the inspector impaired the operator's visibility
to any significant extent. In this regard, I also find Mr.
Moenning's testimony that his vision was not impaired when
he drove the truck to be credible. I also note that
Inspector Ramage admitted that he never got into the truck
and looked through the windshield himself to determine
whether the cracks would affect the operator's visibility.
Accordingly, the citation fails of proof and will be
vacated herein.
ORDER
1. Citation No. 4332611 IS AFFIRMED.
2. Citation No. 4409171 IS VACATED.
3. The Walker Stone Company, Inc. IS ORDERED TO PAY
the Secretary of Labor a civil penalty of $50 within
30 days of the date of this decision.
Roy J. Maurer
Administrative Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U. S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing &
Troup, 819 North Washington Street, P.O. Box 187, Junction
City, KS 66441 (Certified Mail)
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