<DOC>
[DOCID: f:ct99272.wais]

 
JUSTIS SUPPLY & MACHINE SHOP
April 20, 2000
CENT 99-272


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

                         April 20, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. CENT 99-272
               Petitioner       : A.C. No. 29-00097-03501 1JW
                                :
          v.                    : Navajo Mine
                                :
JUSTIS SUPPLY & MACHINE SHOP,   :
               Respondent       :

                             DECISION

Appearances: Ned  D. Zamarripa, Conference and Litigation
             Representative, Mine Safety and Health Administration, 
             Denver, Colorado, for Petitioner;
             George  R.  Carlton, Jr., Esq, Godwin,  White  and
             Gruber, Dallas, Texas, for Respondent.

Before: Judge Manning

     This case is before me on a petition for assessment of civil
penalty filed by the Secretary  of Labor, acting through the Mine
Safety and Health Administration  ("MSHA"), against Justis Supply
and Machine Shop ("Justis"), 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 Albuquerque, New
Mexico.  The parties presented testimony and documentary evidence
and filed post-hearing briefs.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     The  Navajo  Mine  is a surface coal mine  operated  by  BHP
Minerals, Inc. ("BHP") in San Juan County, New Mexico.  Draglines
are used at the Navajo Mine  to  remove  the overburden above the
coal.    On  January  5, 1999, MSHA Inspector  Peter  Paul  Saint
conducted an inspection  of  the  Navajo  Mine.   As  part of the
inspection, he inspected the site where a new dragline  was being
assembled.  This site, hereinafter the "dragline site," was about
one mile from the area where coal was being excavated.  (Tr. 93).
An  earthen berm surrounded the dragline site and the site  could
be accessed  directly  from  a  road that was open to the public.
(Tr. 66-67)  Another entrance to  the dragline site lead directly
to the mine.

     The dragline was being assembled by a company referred to by
the  parties  as  CDK.  Employees of the  Navajo  Mine  were  not
directly  involved  in   the   assembly  of  the  dragline.   CDK
contracted with Justis to do some  cutting  and  welding  on  the
dragline  at  the dragline site.  Justis operates its business in
Farmington, New  Mexico,  and its employees drove a welding truck
owned by Justis from Farmington to the dragline site when working
there.  When Justis's employees  first drove to the dragline site
to start the welding project, they  entered the mine gate and met
with representatives of the mine operator  before  traveling down
mine roads to the dragline site.  After that first trip, however,
Justis's employees always entered and exited the dragline site by
traveling down roads that were open to the public.   Thus,  after
the  first  day,  Justis's  employees  did not travel through the
Navajo Mine.

     When  Inspector  Saint  inspected  the   dragline  site,  he
traveled on mine roads to get there.  He issued  three  citations
under  section  104(a)  of  the  Mine Act.  Justis contested each
citation and also maintains that MSHA  did  not have jurisdiction
over the dragline site.

      A.  Jurisdiction

           1.  Arguments of the Parties

     The Secretary contends that MSHA had jurisdiction to inspect
the dragline site because this site was a mine, as the term "coal
or other mine" is defined in section 3(h) of  the  Mine  Act,  30
U.S.C.  �  802(h).   She  argues  that  those  employees who were
engaged  in  the  work  of cutting and welding the dragline  were
"miners" as that term is  defined in section 3(h).  The Secretary
maintains that the dragline  site was selected by the operator of
the Navajo Mine and "sectioned  out"  with a berm for the purpose
of assembling the dragline.  (S. Br. 15).   Once  assembled,  the
dragline was to be used to remove the overburden at the pit.  She
contends  that  the  dragline  site  was  on  or adjacent to mine
property about one mile from the area where coal  extraction  was
taking  place.   The Secretary characterizes the dragline site as
"a dedicated off-site  facility  of  the  mine operator where the
assembly of the dragline was to be performed."  Id.  As such, she
contends that the dragline site was a mine and that Justis was an
"operator" performing services at the mine.   The  services  were
welding  and  cutting on the dragline.  The Secretary states that
these services were essential to the assembly of the dragline and
the work "subjected"  workers  at the site to "hazards associated
with this type of project."  (Id. at 16).

     Justis contends that the Secretary  failed  to show that the
dragline site was a mine.  The Secretary did not offer  any proof
that  the site was owned or operated by BHP.  It states that  the
only  evidence   the  Secretary  offered  was  Inspector  Saint's
"subjective belief  that  the  [dragline  site]  was  part of the
Navajo  Mine."   (J.  Br. 2).  Justis maintains that because  the
dragline  site was over  a  mile  away  from  the  actual  mining
operations and Justis's employees used public roads to get to and
from the site,  the  site  was not a mine.  It also points to the
fact that only CDK and Justis  employees  worked  at the dragline
site  and  that  anyone  could have driven into the site  without
passing through the mine.   In  addition, when Justis's employees
first drove to the dragline site  through  the Navajo Mine, BHP's
representatives  told  them that the site was  exempt  from  MSHA
regulations because it was not part of the mine.  The record does
not indicate who owned or leased the land at the dragline site.

           2.  Discussion

     For  the reasons explained  below,  I  find  that  MSHA  had
jurisdiction  to  inspect  the  dragline site under the Mine Act.
The starting point for an analysis  of  Mine  Act jurisdiction is
the  definition  of  the  term "coal or other mine,"  in  section
3(h)(1).  A coal or other mine  is defined, in pertinent part, as
"(A) an area of land from which minerals  are  extracted ..., (B)
private ways and roads appurtenant to such area,  and  (C) lands,
... structures, facilities, equipment, machines, tools,  or other
property  ...  on  the surface or underground, used in, or to  be
used in ... the work  of  extracting  minerals from their natural
deposits, ... or used in ...the milling of such minerals...."  30
U.S.C.  �  802(h)(1).   The Senate Committee  that  drafted  this
definition stated its intention  that "what is considered to be a
mine and to be regulated under this  Act  be  given  the broadest
possible interpretation, and ... that doubts be resolved in favor
of inclusion of a facility within the coverage of the  Act."   S.
Rep.  No.  181,  95th  Cong.,  1st  Sess. 14 (1977), reprinted in
Senate Subcommittee on Labor, Committee  on Human Resources, 95th
Cong., 2nd Sess., Legislative History of the  Federal Mine Safety
and  Health  Act  of  1977  at  602 (1978); see also  Donovan  v.
Carolina Stalite Co., 734 F.2d 1547  (D. C. Cir. 1984).

     The record does not disclose who owned or leased the land at
the  dragline  site.   Inspector  Saint   testified   that  BHP's
walkaround  representative  told  him that the site was on  BHP's
property.   I  cannot  enter a finding  based  on  that  evidence
because this BHP representative  might  have been misinformed.  I
can safely assume, however, that CDK was  not a trespasser on the
land.  CDK was the principal employee at the  site  and exercised
control  over  the site.  Although the site could be accessed  by
roads that were  open  to the public, the site was private and it
can be assumed that CDK  could  exclude individuals unknown to it
from  the  area.   The  only  activity   at   the  site  was  the
construction of the dragline.  There is no evidence  that CDK was
performing any other activities at the dragline site or  that  it
was  performing  services  for other customers at the site.  More
importantly, the record makes clear that employees of Justis were
only  at the site to do welding  and  cutting  on  the  dragline.
Justis  was  not  providing  services  for other customers at the
dragline site.

     Before  Justis began work at the dragline  site,  CDK  asked
Justis's employees  to  drive  to  the  mine  gate  so that BHP's
contract  security  personnel could look over the trucks.   These
security  guards  also  gave  the  Justis  employees  a  training
handbook.  It was at  this time that Justis's employees were told
that the dragline site was exempt from MSHA regulations.

     I find that the dragline  site fits within the definition of
a "coal or other mine" in section  3(h).   The  dragline site was
dedicated  to the construction of a dragline to be  used  at  the
Navajo Mine.  By necessity, the final assembly of a dragline must
occur near a  mine because it is such a large piece of equipment.
It is not clear who owned the site, but it is clear that the site
was under the control  of  CDK.   The bermed-off site existed for
the sole purpose of assembling the dragline.

     The Commission has stated, "[t]he  definition  [of  `coal or
other  mine']  is  not  limited  to  an  area  of land from which
minerals are extracted, but also includes facilities,  equipment,
machines,  tools  and  other  property used in the extraction  of
minerals from their natural deposits  ...."   Harless,  Inc.,  16
FMSHRC  683,  687  (April  1994)(citation omitted).  Although the
dragline was not used in the extraction of minerals, it was being
assembled  to  be  used  in  the  extraction  process.   Justis's
argument that the Secretary failed  to show that the dragline was
being assembled for use at the Navajo  Mine  is  not  well taken.
CDK  and  Justis  would not have been assembling and welding  the
dragline at this site  if  it  was  not  going  to be used at the
Navajo Mine.  Indeed, Inspector Saint testified that it was being
used at the mine at the time of the hearing.  (Tr. 19).

     Justis was at the dragline site for a limited  purpose.   It
did  not  have  a  shop or other facilities at the site or at the
mine.  It was present at the dragline site to perform cutting and
welding  on  the  dragline.   The  work  it  was  performing  was
essential to the construction and assembly of the dragline.

     If Justis was  welding  a  piece  of mining equipment at its
shop in Farmington that was to be used at  the  Navajo Mine, such
activities  would  not  be  subject  to  Mine  Act  jurisdiction.
Likewise, I believe that if it operated a commercial welding shop
in an area immediately adjacent to the Navajo Mine, it  would not
be subject to MSHA jurisdiction even if most of its welding  work
was  for  the  mine.   In  this  case,  however,  Justis  was not
operating  a  welding  business  at  the  dragline  site.  It was
performing welding services on a dragline for CDK which, in turn,
was  assembling the dragline for use at the Navajo Mine.   Justis
was not open for public business at the dragline site.

     Justis relies heavily on the fact that the dragline site was
a mile  away from the pit where coal extraction was taking place,
its employees  never  entered  the  Navajo  Mine  after the first
visit, and there was no showing that the dragline site  was owned
by   the  mine  operator.   Although  these  are  factors  to  be
considered,  they  do  not  resolve  the issue.  The Commission's
recent  decision  in Jim Walter Resources,  Inc.,  22  FMSHRC  21
(January  2000)  is  instructive.    In  that  case,  Jim  Walter
Resources ("JWR") operated a common supply  shop  for  several of
its mines and the shop was not located at any of the mines.   The
shop  was  used  to  warehouse materials and supplies used at its
mines and preparation  plants.   The  Commission  held  that this
supply  shop  was  subject  to  Mine Act jurisdiction "because  a
`mine' includes `facilities' and  `equipment ... used in or to be
used in' JWR's mining operations or coal preparation facilities."
(Jim Walter at 25).  In a footnote, the Commission stated:

               This  case  does  not  involve,  and  we
          therefore do not address, whether an off-site
          supply warehouse operated by a vendor, mining
          equipment manufacturer, or distributor  would
          be  covered  by  the  Act, or even whether an
          off-site  facility  operated   by   a  mining
          company   or  subsidiary  that  is  open  for
          "commercial" business would be covered.

Id. fn 7.

     The present case  is somewhat similar to the Jim Walter case
except for the fact that  it  involves an independent contractor.
The dragline site was immediately  adjacent  to  the Navajo Mine.
Indeed,  anyone  exiting  the  site  via  the  mine  road   would
immediately   enter   the  area  of  the  mine  where  extraction
activities were taking  place.   In the context of a western open
pit  coal mine, a mile is a very short  distance.   The  dragline
site was  a  dedicated  facility  that was used by CDK and Justis
solely for the assembly of the dragline.  It was not open for any
other business.

     I find that Justis was an "operator"  as  defined by section
3(d)  of  the Mine Act because it was an "independent  contractor
performing  services or construction at [a] mine."  The fact that
Justis may not have had a written contract with BHP or CDK is not
controlling because  a common law contractual relationship is not
required.  Joy Technologies,  Inc. v. Secretary of Labor, 99 F.3d
991, 995-99 (10th Cir. 1996).   In addition, the fact that Justis
did  not  have  the  authority  to  control   any  mining-related
operations does not defeat a finding that it was  an  independent
contractor.   Id.   Justis  was  an operator because it performed
services  at  a  mine.  Id. at 999-1000;  Otis  Elevator  Co.  v.
Secretary of Labor, 921 F.2d 1285, 1290 (D.C. Cir. 1990).

     If  BHP  employees  were  assembling  the  dragline  at  the
dragline site,  there is no doubt that the site would be deemed a
mine and these activities  would be subject to MSHA jurisdiction.
The  fact  that these same activities  were  being  performed  by
independent  contractors  at  the dragline site should not change
the result.  Accordingly, I find  that  the  dragline  site was a
mine and the activities occurring at the site and equipment  used
there were subject to MSHA jurisdiction.

      B.  Citations

          1.  Citation No. 7602366

     Citation  No.  7602366  alleges  a  violation of 30 C.F.R. 
� 77.410(a)(1), as follows:

          Mobile  equipment  was  not provided  with  a
          back-up  alarm with an obstructed  rear  view
          that  gives   an   audible   alarm  when  the
          equipment  is  put  in  reverse.    The  Ford
          welding  truck  ...  was not provided with  a
          back-up alarm.  The foreman  stated that this
          was a new truck and had not had  a  chance to
          put  the  alarm on the truck.  This truck  is
          used at the  contractor  CDK  site and person
          observed working and walking in  the  area of
          the  truck.   This condition would allow  the
          truck to run into  or  over person working or
          walking around the truck.

     Inspector  Saint determined that  the  violation  was  of  a
significant and substantial  nature ("S&S") and was the result of
Justis's moderate negligence.   Section 77.410(a)(1) provides, in
part, that "[m]obile equipment such  as ... trucks, except pickup
trucks with an unobstructed rear view,  shall  be equipped with a
warning device that gives an audible alarm when  the equipment is
put  in reverse."  The Secretary proposes a penalty  of  $66  for
this alleged violation.

     There  is no dispute that the welding truck was not equipped
with a back-up  alarm.   The  truck  was  a  Ford  350 with a gas
powered  welder  mounted  behind  the  cab.  Oxygen and acetylene
bottles were also mounted on the bed of  the  truck.   Tool boxes
were  mounted  along  the  sides  of  the  bed.   This  equipment
obstructed the rear view from the cab of the truck.  (Tr. 25-27).
The  tool  boxes along the sides of the bed made it difficult  to
see behind the truck using the side mirrors.  Id.

     The rear  of  this  truck  was  used as a work bench and was
equipped with a vise and rack.  The truck  was  parked head-first
about 40 feet from the dragline.  CDK and Justis  employees  work
in  the area.  It is highly likely that someone would back up the
truck.

     Justis  argues that the welding truck is a "service vehicle"
as that phrase  is  used  in MSHA's program policy manual ("PPM")
and is not required to be equipped  with  a  back-up  alarm.  The
paragraph  of  the  PPM  that discusses section 77.410 states  as
follows:

          The warning device  required  by this section
          need not be provided for automobiles,  jeeps,
          pickup trucks, and similar vehicles where the
          operator's  view  directly behind the vehicle
          is not obstructed.  Service  vehicles  making
          visits to surface mines or surface work areas
          of  underground mines are not required to  be
          equipped with such warning devices.

(Ex. G-6).  Justis  argues  that  the  welding truck is a service
vehicle and that Inspector Saint admitted that fact.  (Tr. 57).

     The Secretary contends that Justis's welding truck was not a
"service vehicle" as that phrase is used  in the PPM.  She states
that the truck was used not only to transport people and supplies
to  the  dragline  site,  but  was  "engaged  in work  activities
associated with the assembly of the dragline."  (S. Br. 17).  The
Secretary  maintains  that  the exemption in the PPM  applies  to
vehicles that make deliveries to a mine.

     I find that the welding  truck  was  not  a "service vehicle
making  visits  to"  a  surface mine.  Although the  PPM  is  not
entirely clear, the language indicates that the exemption applies
only to vehicles that "visit"  a mine.  Examples of such visiting
vehicles would include Postal Service  trucks,  UPS  trucks, soft
drink  delivery  trucks,  and  other  trucks delivering parts  or
supplies.  Such vehicles are generally not inspected by MSHA when
they make deliveries to mines.  A truck used at a mine site by an
independent contractor is subject to MSHA  jurisdiction.  In this
instance, the welding truck was an integral  part  of the welding
services  that Justis provided.  The truck was used as  a  mobile
work station  at  the  dragline site.  Justis's interpretation of
the  PPM  would  exempt a large  percentage  of  trucks  used  by
independent  contractors  at  mines.   Inspector  Saint  did  not
testify that the  welding  truck  was  a  service  vehicle making
visits  to  the dragline site; he stated that it was a  "service"
truck because  Justis  was  providing  welding  services  at  the
dragline site.  (Tr. 56, 76-78).

     Based  on  the  testimony  and  exhibits,  I  find  that the
Secretary   established  a  violation.   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).

     The  Secretary   established  the  violation  and  that  the
violation contributed to  a  discrete  safety  hazard.  Inspector
Saint testified that about 20 individuals worked  at the dragline
site.  (Tr. 17).  Two Justis employees were working  at  the site
and both employees used the welding truck.  The inspector  stated
that  an injury was reasonably likely because people work at  the
back of  the  welding truck and there was a pronounced blind spot
in that area from  the  cab  of the truck.  (Tr. 26, 28-29).  The
inspector believed that, given  the  noise  and  activity  in the
area,  it  was  reasonably likely that someone would be seriously
injured if the truck  were  to  be put in reverse.  (Tr. 30).  He
concluded  that  if  the  violative  condition  were  allowed  to
continue, it would cause an accident of  a  serious nature.  (Tr.
31).  I credit Inspector Saint's testimony in this regard.

     I find that Justis's negligence was low.   It relied in good
faith upon information provided by BHP's security  guards that it
would not be subject to MSHA regulation.  Justis did not normally
perform  work at mines and it did not have an MSHA identification
number.  It  was  unfamiliar  with  MSHA's regulatory program.  I
enter this finding notwithstanding the fact that Justis was aware
that the truck did not have a back-up alarm.  A penalty of $50 is
appropriate for this violation.

          2.  Citation No. 7602367

     Citation  No. 7602367 alleges a violation  of  30  C.F.R.  
� 77.402, as follows:

          Hand-held   power   tools  [were]  not  being
          maintained   with   controls   that   require
          constant hand or finger  pressure  to operate
          the tool, located at the CDK contractor  work
          site.   The  Black  and Decker 110-volt hand-
          held grinder was observed with a control that
          would lock the equipment in the on state when
          in use.  This condition  would allow a person
          to  be  injured if the wheel  would  jam  and
          break or turn the equipment around.

     MSHA determined  that  the violation was not S&S and was the
result of Justis's low negligence.   Section  77.402 provides, in
part,  that  "[h]and-held  power  tools  shall  be equipped  with
controls  requiring constant hand or finger pressure  to  operate
the tool ...."   The Secretary proposes a penalty of $55 for this
alleged violation.

     The cited grinder  was  equipped  with  a  trigger lock that
allowed  the  grinder  to remain running even when there  was  no
pressure on the trigger.  The grinder was inside a locked toolbox
on the side of the welding truck.  (Tr. 51).  The grinder was not
tagged-out or otherwise  marked to indicate that it should not be
used.  (Tr. 36).  The grinder was the personal property of one of
Justis's  employees.  Inspector  Saint  testified  that,  in  his
experience,  as  long  as  equipment  is  on  the property and is
available for use, a employee will use it if he  needs it whether
it is owned by his employer or another individual.   (Tr. 36-37).
The  inspector  determined  that  the  condition  was not serious
because Justis representatives told him that the grinder was more
likely  to  be  used  at the shop than at the dragline  site.   I
credit the inspector's testimony.

     I find that the Secretary established a violation.  The fact
that the grinder was owned  by  an employee rather than Justis is
not a defense to the violation because  the grinder was available
for use at the dragline site.  Although the grinder was in one of
the locked tool boxes on the welding truck,  the  key to the tool
box  was  in  the  cab  of  the truck.  (Tr. 73).  Thus,  it  was
available for use by the two Justis employees.

     The violation was not serious.   Justis  was  not  negligent
with respect to this violation.  There is no showing that  Justis
was  aware that the grinder was on the truck or, if it was aware,
that it  was  equipped  with a trigger lock.  A penalty of $10 is
appropriate for this violation.

          3.  Citation No. 7602368

     Citation No. 7602368  alleges  a  violation  of  30 C.F.R. 
� 77.404(a), as follows:

          Mobile and stationary equipment was not being
          maintained   in   safe  operating  condition.
          Located on the Ford  truck  ...  at  the  CDK
          contractor  site.   A  3-ton  chain hoist was
          observed  without the safety latches  on  the
          hook to prevent  cable  from  coming  off the
          hooks.

     MSHA determined that the violation was not S&S  and  was the
result   of  Justis's  moderate  negligence.   Section  77.404(a)
provides,  in  part,  that "[m]obile and stationary machinery and
equipment shall be maintained  in  safe operating condition ...."
The  Secretary  proposes  a  penalty  of  $55  for  this  alleged
violation.

     Inspector Saint testified that the  hook  at  the end of the
chain  for the hoist was not equipped with a safety latch.   (Tr.
40).  Such  a latch is designed to prevent anything that is being
hoisted from  sliding  out  or  slipping off the hook.  He stated
that hoists of this type are used  to  lift  motors  or pieces of
metal.   The  inspector  referred  to  the hoist as a "three  ton
hoist" and it was on the back of the welding  truck.  (Tr. 41-42,
53).   Inspector  Saint  determined  that the condition  was  not
serious because Justis was not using the hoist at the time of his
inspection.

     There is no dispute that the hook  was  not  equipped with a
safety latch.  Based on the testimony of Inspector  Saint, I find
that this condition violated the safety standard.  The  hoist was
not  maintained  in  safe operating condition.  I agree that  the
violation was not serious  because  there  was no showing that it
would be used at the dragline site.  I also  find  that  Justis's
negligence was quite low.  The hoist was laying on the bed of the
truck, but there was no indication that it was going to be  used.
The  cutting and welding described by the parties did not include
any hoisting  activities.   A  penalty  of $10 is appropriate for
this violation.

                 II.  APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets  out  six criteria to be
considered in determining appropriate civil penalties.    I  find
that  Justis  was  not  issued any citations during the two years
prior to this inspection.   Justis  was  a  small  operator  that
worked  less  that  10,000  man-hours  annually  and employed two
people at the dragline site.  The violations were  rapidly abated
in good faith.  The penalties assessed in this decision  will not
have  an  adverse  effect  on  Justis'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.

                           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

       7602366                77.410(a)(1)         $50.00
       7602367                77.402                10.00
       7602368                77.404(a)             10.00


     Accordingly,  the citations contested in this proceeding are
AFFIRMED as set forth  above,  and Justis Supply and Machine Shop
is ORDERED TO PAY the Secretary of Labor the sum of $70.00 within
40  days  of  the date of this decision.   Upon  payment  of  the
penalty, this proceeding is DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:


Ned D. Zamarripa,  Conference  &  Litigation Representative, Mine
Safety  and Health Administration, P.O.  Box  25367,  Denver,  CO
80225-0367  (Certified Mail)

George R. Carlton, Esq., Godwin, White & Gruber, 901 Main Street,
Suite 2500, Dallas, TX 75202-3727  (Certified Mail)

RWM