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[DOCID: f:ct98167.wais]

 
JOSHUA COAL COMPANY
February 12, 1999
CENT 98-167


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          February 12, 1999

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. CENT 98-167
               Petitioner       :  A. C. No.  34-01062-03509
                                :
          v.                    :  Joshua Strip
                                :
JOSHUA COAL COMPANY,            :
               Respondent       :

                               DECISION

Appearances:  Ned Zamarripa, Conference and Litigation
              Representative, Mine Safety and Health
              Administration,  U.S.  Department  of Labor, Denver,
              Colorado, for the Petitioner; Alan Churchill,
              Proprietor, d/b/a Joshua Coal Company, Henryetta,
              Oklahoma, for the Respondent.

Before:  Judge Feldman

     This  proceeding concerns a petition for assessment of civil
penalty filed  by  the  Secretary of Labor against the respondent
pursuant to section 110(a)  of the Federal Mine Safety and Health
Act of 1977 (the Mine Act), 30  U.S.C.  �  820(a).   The petition
seeks to impose a total civil penalty of $200.00 for four alleged
non-significant  and  substantial  (non-S&S)  violations  of  the
mandatory  safety  standards in 30 C.F.R. Parts 48 and 77 of  the
regulations.[1]  These  matters were heard on January 5, 1999, in
Tulsa, Oklahoma.  The Respondent,  Joshua Coal Company, is a sole
proprietorship  operated  by  Alan  Churchill.    Alan  Churchill
represented himself in this matter.

     The  parties  stipulated  that  Churchill  is  a small  mine
operator who is subject to the jurisdiction of the Mine Act.  The
evidence further reflects that Churchill has no history  of prior
violations  during  the  two years preceding the issuance of  the
citations in issue, that Churchill abated the cited conditions in
a timely manner, and, that  the  $200.00 civil penalties proposed
by the Secretary will not effect Churchill's  ability to continue
his business.

     At the hearing, the parties were advised that  I would defer
my ruling on the four citations pending post-hearing  briefs, or,
issue a bench decision if the parties waived their rights to file
post-hearing  briefs.   The parties waived the filing of  briefs.
(Tr. 85-6).  Accordingly,  this  written  decision formalizes the
bench  decision  issued  with respect to each  of  the  contested
citations.

     The bench decision vacated two citations and affirmed the
remaining two citations.   A  total  civil  penalty of $50.00 was
imposed  for  the  two affirmed citations.  The  bench  decisions
herein are edited versions of the bench decisions issued at trial
with added references to pertinent case law.

     I. Findings and Conclusions

     Churchill operates two surface coal mines located in
Okmulgee County, Oklahoma.  The Joshua Strip, the subject of this
proceeding, is located near Coleton, Oklahoma.   The  other,
newer mine is located near Morris, Oklahoma.  Although Churchill
has  employed as many  as three individuals in the past, the only
individuals currently working at these mines are Alan Churchill
and his son Craig Churchill.

     The coal seams at Churchill's mines are approximately 15 to
50 feet under the surface. Coal is extracted by using
dozers, scrapers and front-end loaders to uncover and remove
the coal.  The coal is then taken to the crusher by pit
trucks where it is processed and loaded into haulage trucks.

          A. Citation No. 4366187

     Mine Safety and Health Administration (MSHA) Inspector
Lester Coleman conducted a regular Triple-A inspection of
the Joshua Mine, I.D. No. 3401062, in February and March of
1998.  A  Triple-A inspection is a regular bi-annual
inspection of a surface coal mine that is mandated by
section 103(a) of the Mine Act, 30 U.S.C. � 813(a). Coleman
was accompanied by Alan and/or Craig Churchill during most
of his inspection.

     During the course of his inspection, Coleman observed the
drive belt and pulleys on a ten inch Gorman Rump pump driven
by a 471 Detroit diesel engine that was located in the 001-0
pit. The pump had a radiator fan driven by one or more
belts and pulleys. At the hearing Coleman recalled seeing
an eight inch opening located on the left side , when
looking from the rear of the engine, where a person could
catch a finger, a shirt sleeve or a glove between the belt
and the pulley. The operating controls were on the right
side of the pump.  Coleman concluded the drive belt and
pulley "was not guarded to prevent a person from contacting
the exposed moving parts" and issued Citation No. 4366187
citing an alleged violation of the mandatory safety standard
in section 77.400(a), 30 C.F.R. � 77.400(a), pertaining to
guarding of mechanical equipment. (Gov. Ex. 1).

     At the hearing Churchill presented a video of the subject
pump.[2]  The video revealed the cited "unguarded" pinch
point area was 13 inches from the outer perimeter end of the
fan shroud and 16 inches from the top of the pump. There
was no exposure from the top because there are
two bars that run along the top of the pump. The width of
the alleged unguarded opening was demonstrated on the video
to be  approximately  the width of a hand and wrist
(approximately 4 to 5 inches).

     After viewing the video, Coleman conceded there was, at
most, a remote likelihood that someone could inadvertently
stumble and come into contact with the belt pulley given the
location of the belt, the narrow width of the opening, and
the fact there were two bars on top of the pump. (Tr. 78-
9). In fact the video evidence demonstrated that, short of
intentionally  placing  one's hand through this narrow
opening, 13 inches into the inner workings of the pump,
there was no means of inadvertent contact.

     In view of the evidence presented, I issued the following
bench decision with respect to Citation No. 4366187:

     While the Secretary is normally entitled to deference
when interpreting her own mandatory safety standards,
deference  cannot  be accorded to the Secretary's
interpretation if it is plainly wrong and inconsistent
with the purpose of the cited regulation.  Dolese
Brothers Co., 16 FMSHRC 689, 693 (April 1994) (quoting
Emery Mining Co. v. Secretary of Labor, 744 F.2d 1411,
1414 (10th Cir. 1984).

     Turning  to  the purpose of the regulation,  the
Commission addressed the purpose of the mandatory
standard in section 77.400(a) in Thomas Brothers Coal
Company,  6  FMSHRC 2094 (September  1984).  The
Commission stated:

     We find the most logical construction of the
     standard is that it imports the concepts of
     reasonable possibility of contact and injury,
     including contact stemming from inadvertent
     stumbling or falling, momentary inattention
     or ordinary carelessness. Applying this test
     requires taking  into  consideration  all
     relevant exposure and injury variables. For
     example, accessibility of the machine parts,
     work areas, ingress and egress, work duties,
     and as noted, the vagaries of human conduct.
     Under this approach, citations for inadequate
     guarding will be resolved on a case-by-case
     basis.  6 FMSHRC at 2097.

     Thus, stumbling and inadvertent contact is the concern
the standard addresses. The standard is not intended
to require moving parts to be guarded in order to
prevent intentional contact. The Secretary has the
burden of proving the occurrence of a violation.
Although I am sensitive to inspector Coleman's concerns
about inadvertent  stumbling  or other inadvertent
contact, the video evidence fails to demonstrate a
reasonable possibility of such unintentional contact.
Accordingly, Citation No. 4366187 SHALL BE VACATED.
(Tr. 87-91).

          B. Citation No. 4367403

     Coleman observed a tan mechanic's truck in the 001 pit that
was not equipped with an audible back-up alarm when the
truck was put in reverse.  Consequently, Coleman issued
Citation No. 4367403 alleging a violation  of section
77.410(a)(1), 30 C.F.R. � 77.410(a)(1) that requires, in
pertinent part, that trucks, except pick-up trucks with an
unobstructed rear view, shall be equipped with an audible
warning back-up device.

     Churchill admits the cited truck did not have a back-up
alarm. However, he maintains the driver's rear view was not
obstructed.  Churchill presented a video of the subject
vehicle that demonstrated that, although there was a clear
line of vision out the rear window through the center of the
truck bed, the driver's view was obstructed by equipment
located on the truck bed directly behind the driver and
directly behind the front passenger. Although the rear view
was partially rather than totally obstructed, common sense
dictates that the cited mandatory standard is triggered if
there is any obstructed view. For it is little comfort to a
victim struck by a vehicle in reverse that he would not have
been struck if he had been standing or kneeling in an area
that was not obstructed from view.

     Accordingly, at trial, I issued the following bench
decision concerning on Citation No. 4367403:

     The mandatory standard in section 77.410(1)(a) is
clear. It requires an audible back-up alarm with the
exception of a pick-up truck with an unobstructed rear
view.  The rear view does not have to be totally
obstructed, as the respondent suggests, for a violation
to occur.  A rear view is either unobstructed or
obstructed. A partially obstructed view constitutes an
obstructed view under section 77.410(1)(a).

     Although I have no doubt that the rear view of the
operator of the cited truck depicted in the video
evidence was adequate to safely change from the left
lane to the right lane on a highway, normal driving
hazards are not the hazards addressed in section
77.410(1)(a). Rather, the standard is meant to protect
an individual working in close proximity to the rear of
the truck. Such a person, at any moment, can bend down
behind the truck, for any number of reasons, and be
obscured from the view of the truck operator. In such
an instance, the truck would only have to travel
several feet for tragedy to occur.

     Accordingly, the partial obstruction of view observed
and cited by Coleman constitutes a violation of the
cited mandatory standard. Consequently, Citation No.
4367403 SHALL BE AFFIRMED. I view the placement of the
equipment on the truck bed, which left an open area to
preserve rear view as a mitigating circumstance that
reduces the respondent's degree of negligence to low.
Consequently, a civil penalty of $25.00  will be
imposed. (Tr. 107-112).

          C. Citation No. 4366193

     Section 48.31(a) of the Secretary's training regulations, 30
C.F.R. � 48.31(a), requires yearly hazard training to be
provided to all "miners" as that term is defined in section
48.22(a)(2), 30  C.F.R.  �  48.22(a)(2).  The section
48.22(a)(2) definition of "miner" includes any "delivery. .
.  worker contracted by the operator." Coleman testified
hazard training for fuel delivery truck drivers had been
approved by the MSHA district manager. Although Coleman did
not testify about the specific terms of the respondent's
approved hazard training requirements, Coleman speculated
the approved hazard training would include such subjects as
elevated road hazards as well as the proper way to mount and
dismount the fuel storage tank.

     Fuel deliveries occur at the mine site on an irregular
basis, usually less frequently than once per month. Coleman
asked Alan and Craig Churchill if the last fuel truck driver
to make a delivery had received hazard training. Coleman
testified that the Churchills indicated he had not received
such training. At trial, Churchill argued hazard training
was not required. Nevertheless, Churchill also maintained
that his and his son's negative response to Coleman's
question was intended to convey that the fuel driver had not
signed a hazard training certificate although he had, in
fact, received the required hazard training.

     As a result of the information given to Churchill, Coleman
issued Citation No. 4366193 charging, "[t]he operator did
not provide the last fuel truck delivery person with any
hazard recognition  training,"  as required by section
48.31(a)(1). Apparently, in view of Churchill's insistence
that training had been provided although  no training
certificate had been signed by the driver, Citation No.
4366193 was subsequently modified to reflect a violation of
section 48.31(d) that requires operators to maintain, and
make available for inspection, signed training certificates.

     In view of the above, I issued the following bench decision
on Citation No. 4366193:

     While I have my doubts that hazard training was
provided in view of Alan Churchill's insistence in this
proceeding that hazard training of delivery drivers is
not required, I will give Churchill the benefit of the
doubt that training was provided.  Moreover, this
conclusion is consistent with MSHA's modification that
removed the assertion that hazard training was not
given. However, modified Citation No. 4366193 cites a
violation of section 48.31(d) for Churchill's admitted
failure to maintain a signed training certificate.
Consequently, Citation No. 4366193 SHALL BE AFFIRMED.
However, I consider the fact that fuel deliveries for this
1,000 gallon fuel tank are made on an irregular basis,
sometimes as infrequently as once every few months, as a
mitigating circumstance that warrants a finding of very low
negligence. Accordingly, a civil penalty of $25.00 is
assessed for Citation No. 4366193. (Tr. 144-49).

          D. Citation No. 7599404

     Coleman inspected the 1,000 gallon fuel storage tank located
on a mound. The video of the tank reveals it to be a
circular  tank  with  steel  framing around the upper
circumference of the tank, approximately 36 inches below the
top of the tank. There is a locked fuel filler cap on the
top of the tank. The tank has a permanent, heavy duty,
vertical steel ladder that is welded or bolted to the tank
and steel frame. The person filling the tank normally
climbs the ladder and stands on the surrounding steel frame
while leaning forward against the tank and holding on to the
tank's top.

     From Coleman's vantage point at the bottom of the mound
where the tank was located, Coleman initially thought the
ladder was considerably taller than its approximate seven
feet height. Thus, Coleman thought the ladder may be in
violation of the provisions of section 77.206(c), 30 C.F.R.
� 77.206(c), that require installation of backguards on
vertically anchored ladders extending from a point not more
than seven feet from the bottom of the ladder to the top of
the ladder. A backguard is a tubular device installed on a
ladder to prevent a person from falling backwards. However,
since the distance from the top of the steel frame to the
ground was determined to be seven feet, two inches, Coleman
told Churchill that "[he] wasn't going to issue a citation
or anything until I did some more research and looked into
it and did some measuring and so on." (Tr. 151-52).

     Upon further reflection, Coleman assumed the person filling
the fuel tank would have to climb this seven foot height by
climbing the ladder to the top of the steel frame while
holding a fuel hose in his hand.  Coleman considered this
condition to be an unsafe means of access. Therefore,
Coleman ultimately issued Citation No. 7599404 citing an
alleged violation of the safe access provisions of section
77.205(a), 30 C.F.R. � 77205(a).  Although the citation was
initially issued as an S&S violation, it was later modified
by MSHA to reflect a non-S&S condition. Citation No. 7599404
stated:

     A safe means of access was not provided to and at the
work  place  on  the  1,000  gallon fuel storage
installation. The person fueling the storage tank was
required to climb up the ladder with a heavy fuel hose
in one hand and try to hold on with the other hand.
Once the person reached the work place, he was required
to lean against the fuel tank with his lower legs while
standing on a piece of angle iron that is about two
inches wide.  No hand holds were provided.  The
distance from the ground to the filler hole (work
place) was about 12 feet. (Gov. Ex. 4).  Craig Churchill
testified that the fuel filler cap at the top of the tank
is locked by key.  He stated that, normally, he climbs the
ladder and stands on the surrounding steel frame while leaning
forward against the tank and holding on to the tank's top.
He then removes the locked filler cap while the fuel driver
removes the hose from the truck.  The driver then hands him
the hose while the driver returns to the truck to open the
valve. Thus, Craig Churchill opined that he did not believe
this method of filling the tank was unsafe.

     After viewing the video tape and considering the testimony,
I issued the following bench decision with respect to Citation
No. 7599404:

     The cited mandatory standard requires that a safe means
     of access shall be provided and maintained to all
     working places. A means of access is unsafe when a
     reasonably prudent person familiar with the factual
     circumstances surrounding the  allegedly  hazardous
     condition, including any facts particular to the mining
     industry,  would  recognize  a  hazard  warranting
     corrective action. Alabama By-Products Corp., 4 FMSHRC
     2128, 2129 (December 1982). So the question is whether
     a reasonably prudent person familiar with the fuel
     delivery business would believe the cited condition was
     unsafe.

     In resolving this issue of safety in the context of the
Secretary's burden of proof, it is significant that
Coleman did not observe anyone accessing the fuel tank
at the time of his inspection.  While it is true that
inspectors need not observe a violation to conclude
that a violation has occurred [Emerald Mines Co., 9
FMSHRC 1590 (September 1987), aff'd, Emerald Mines Co.
v. FMSHRC, 863 F.2d 51, 59 (D.C. Cir. 1988); see also
Nacco Mining Co., 9 FMSHRC 1541 (September 1987)], in
this case, the citation  is  based  on Coleman's
speculation concerning how the individual would access
the tank.  Although climbing a ladder with, rather
than without, the fuel hose may be ill advised, a
citation is not supportable  solely  because  an
alternative conceivable method of access may be unsafe.
See, e.g., The Hanna Mining Company, 3 FMSHRC 2045,
2046 (September 1981) (an operator does not have to
assure that every conceivable route to a working place
is safe). Put another way, equipment is not inherently
unsafe simply because it is misused.

     Turning to the condition as described in Citation No.
7599404, I believe Coleman's description accurately
describes the  condition.  However, evaluating the
nature and extent of the alleged hazard can only be
accomplished by viewing the video. While standing
erectly, without hand holds, on a two or three inch
supporting frame, may sound precarious, the video
reflects there is no danger of slipping between the
frame or losing one's balance because the individual is
leaning forward about 30 degrees while holding on to
the top of the tank. Thus, there is little danger of
falling forward or backward.

     Churchill concedes the hand holds installed on the
ladder, and the platform constructed by the metal frame
to abate the citation, improve safety.  However,
because the means of access is now safer, does not,
alone, warrant the conclusion that the cited condition
was unsafe.  Significantly, while  a backguard is
required by the regulations if a vertical ladder
exceeds a certain length, hand holds are not explicitly
required.  Moreover, Coleman admits he initially was
uncertain if a violation existed and that he issued the
citation upon further reflection.

     Thus, on balance, I conclude that the Secretary has
failed  to  establish, by a preponderance of the
evidence, that  the  cited  condition was unsafe.
Accordingly, Citation No. 7599404 SHALL BE VACATED.
(Tr. 175-81).

                                ORDER

     In view of the above, IT IS ORDERED that Citation Nos.
4366187 and 7599404 ARE VACATED.

     IT IS FURTHER ORDERED that the respondent shall pay, within
30 days of the date of this decision, a total civil penalty of
$50.00 in satisfaction of Citation Nos. 4367403 and 4366193.
Upon timely receipt of payment, Docket No. CENT 98-167 IS
DISMISSED.


                                 Jerold Feldman
                                 Administrative Law Judge


Distribution:

Ned Zamarripa, Conference & Litigation Representative, U.S.
Department of Labor, Mine Safety and Health Administration,
P.O. Box 25367, Denver, CO 80225  (Certified Mail)

Alan Churchill, d/b/a Joshua Coal Company, Rt. 3, Box 124,
Henryetta, OK 74437  (Certified Mail)

/mh


**FOOTNOTES**

     [1]:  A violation of a mandatory safety standard is properly
characterized as non-S&S if it is not reasonably likely that the
hazard contributed to by the violation will result in an event,
i.e., an accident, resulting in serious injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).

     [2]:  Churchill presented a multi-volume video of the alleged
violative conditions at the hearing.  At the trial, the record
was left open, and leave was granted, for Churchill to edit the
video for the purpose of deleting the video references to
citations that were not in issue in this proceeding.  (Tr. 183).
The edited video was filed on January 12, 1999, and has been
admitted as Resp. Ex. 4.