<DOC>
[DOCID: f:ct98199.wais]
VALLEY CALICHE PRODUCTS, INC.
September 22, 1999
CENT 98-199-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 22, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-199-M
Petitioner : A. C. No. 41-01477-05533
v. :
: Beck Quarry
VALLEY CALICHE PRODUCTS, INC., :
Respondent :
DECISION
Appearances: Ernest A. Burford, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas, for the
Secretary;
Hector J. Torres, Esq., Atlas & Hall, L.L.P.,
McAllen, Texas, for the Respondent.
Before: Judge Weisberger
Statement of the Case
This case is before me based on a Petition for Assessment
of penalty filed by the Secretary of Labor ("Secretary")
alleging that Valley Caliche Products, Inc. ("Valley Caliche")
violated 30 C.F.R. �� 56.14107(a), and 56.20003(a).
Subsequent to a notice, this matter was set for hearing,
and was heard on March 23-25, 1999. Subsequent to the hearing,
the Parties engaged in extensive discussions regarding
settlement. On September 15, 1999, pursuant to a previously
issued order, the Secretary filed a statement indicating that
the parties had not reached an agreement resolving all of the
issues in the case, but agree that ". . . the only factual and
legal issues remaining in dispute concern the amount and the
special assessment of the penalty and the degree of negligence
assigned to each citation." Accordingly, based upon the Parties'
agreement, and the evidence of record, I find that Valley
Caliche did violate 30 C.F.R. �� 56.14107(a) and 56.2003(a),
and that these violations were significant and substantial.
Penalty
Citation No. 4447248
Subsequent to an investigation of a fatality that had
occurred at Valley Caliche's Beck Quarry on March 24, 1997,
MSHA Inspector Ronald M. Mesa issued Citation No. 4447248
alleging a violation of 30 C.F.R. � 56.14107(a) in that, in
essence, the guard that was in place on the east side of the
tail pulley for the No. 38 conveyor belt was not adequate to
prevent access to the pinch point.
It is not contested that the violation was significant
and substantial. Further, the violative condition could have
led to contact with a hazardous pinch point. Also, a
fatality did occur. I conclude that the gravity of the
violation was relatively high.
The unguarded area at issue, located along the east side
of the conveyor belt No. 38, was more than 5 feet above the
ground. According to Robert H. Thompson, Valley Caliche's
president and general manager, and Samuel Bazan, Valley
Caliche's foreman, the area between the west side of
conveyor No. 35, and the east side of conveyor No. 38 is not
used as a travelway. Further, although the conveyor belt at
issue has to be adjusted regularly to keep its alignment
straight, and to prevent material from falling off the belt,
it may be properly aligned by adjusting either the screw
located on the west side of the belt, or the screw located
on the east side of the belt. Hence, it is not necessary to
go to the east side of belt No. 38 in order to align the
belt. Further, the adjustment screw on the east side is
located outside the guarded area. Moreover, although the
equipment at issue had been installed, according to
Thompson, in late 1986 or early 1987, no citations for the
violative condition were issued in an MSHA inspection 5
weeks prior to the accident at issue. Within this context,
I find that the level of Valley Caliche's negligence to have
been low. Considering the remaining factors set forth in
section 110(i) of the Federal Mine Safety and Health Act of
1997("the Act"), I find that a penalty of $5,000.00 is
appropriate for this violation.
Citation No. 4447249
Mesa also issued Citation No. 4447249 alleging that
material had accumulated in the area between conveyor Nos.
35 and 38 in violation of section 56.20003(a), supra. Taking
into account that it is not contested that the violation was
significant and substantial, I find that the level of
gravity of this violation was relatively high. According to
Sergio Verastegui, and Jose Facundo, Valley Caliche's belt
cleaners, the belt at issue goes out of alignment three to
four times a day which causes spillage of material that they
have to clean up to two to three times a day. However,
according to Bazan, material can fall on the floor within
minutes if the belt is not in proper alignment.
Additionally, there is no evidence in the record as to how
long the accumulated material at issue had been in existence
prior to the accident. In this connection, Thompson
testified that, based on interviews, the pile was not in
existence at 8:45 a.m., when the area was inspected the
morning of the accident. Within this context, I conclude
that the level of Valley Caliche's negligence was low.
Taking into account the remaining factors set forth in
section 110(i) of the Act, I conclude that a penalty of
$2,000.00 is appropriate for this violation.
ORDER
It is ORDERED that Citation Nos. 4447248 and 4447249 be
AFFIRMED. It is FURTHER ORDERED that, within 30 days of
this Decision, Valley Caliche shall pay a total civil
penalty of $7,000.00.
Avram Weisberger
Administrative Law Judge
703-756-6215
Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, U. S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
Hector J. Torres, Esq., Atlas & Hall, L.L.P., 818 Pecan,
McAllen, TX 78501 (Certified Mail)
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