<DOC>
[DOCID: f:l95-180r.wais]

 
DAANEN & JANSSEN, INC.
October 22, 1996
LAKE 95-181-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           October 22, 1996

DAANEN & JANSSEN, INC.              :  CONTEST PROCEEDINGS
                 Contestant         :
                                    :
          v.                        :  Docket No. LAKE 95-180-RM
                                    :  Citation No. 4318581; 12/16/94
SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :  Docket No. LAKE 95-181-RM
  ADMINISTRATION (MSHA),            :  Citation No. 4318582; 12/16/94
                    Respondent      :
                                    :  Docket No. LAKE 95-182-RM
                                    :  Citation No. 4318583; 10/06/94
                                    :
                                    :  Docket No. LAKE 95-183-RM
                                    :  Citation No. 4318584; 10/06/94
                                    :
                                    :  Bay Settlement Mine
                                    :  Mine ID No. 47-03045
                                    :
SECRETARY OF LABOR,                 :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA),            :  Docket No. LAKE 95-290-M
                    Petitioner      :  A. C. No. 47-03045-05501-M
                                    :
          v.                        :
                                    :  Docket No. LAKE 95-313-M
DAANEN & JANSSEN, INC.,             :  A. C. No. 47-03045-05502
                    Respondent      :
                                    :  Docket No. LAKE 95-352-M
                                    :  A. C. No. 47-03045-05503
                                    :
                                    :  Bay Settlement Mine


                               DECISION

Appearances:  Christine  Kassak,  Esq., Office of the Solicitor, U.S.
              Department  of Labor, Chicago, Illinois, and Ernest K.
              Alvey, Conference and Litigation Representative, Duluth,
              Minnesota for the Secretary; Eric E. Hobbs, Esq., and John
              J. Kalter, Esq., Michael, Best, & Friedrich, Milwaukee,
              Wisconsin, for Contestant/Respondent.

Before:  Judge Barbour

     These consolidated contest and civil penalty proceedings arise
under sections 105 and 110 of the Federal Mine Safety and Health Act
of 1977 (30 U.S.C. �� 815, 820) (Mine Act or Act).  They involve
four citations issued by the Secretary's Mine Safety and Health
Administration as the result of a fatal accident that occurred at the
Bay Settlement Mine, a limestone quarry mined by Daanen & Janssen, Inc.
(Daanen & Janssen or the company).  The quarry is located in Brown
County, Wisconsin.

     Three of the citations were issued pursuant to section 104(a)
of the Act (30 U.S.C. � 814(a)) and one was issued pursuant to section
104(d)(1) (30 U.S.C. � 814(d)(1)).  All of the citations allege that
Daanen & Janssen violated specified mandatory safety standards for
surface metal and nonmetal mines and that the violations were
significant and substantial contributions to mine safety hazards (S&S
violations).  In addition, the section 104(d)(1) citation alleges that
the violation was the result of Daanen & Janssen's unwarrantable failure
to comply with the standard (unwarrantable violation).  The Secretary
seeks civil penalties for each alleged violation ranging from $81 to
$5,000.

     Daanen & Janssen challenges the validity of the citations,
asserting the alleged violations did not occur; or, if they did, were
not the result of the company's negligence and that the inspector's
S&S and unwarrantable findings are invalid.  The company also
challenges the civil penalty proposals.

     A hearing was conducted in Green Bay, Wisconsin.  Subsequently,
counsels filed helpful briefs.


                              THE ISSUES

     1.  Whether the violations existed as alleged.

     2.  Whether the inspector's S&S and  unwarrantable  findings
     are supported by the evidence.

     3.   The amount of the civil penalties that must be assessed
     for any violations found, taking into account the applicable
     statutory civil penalty criteria.

                             STIPULATIONS

     At the  commencement  of the hearing, the parties stipulated
     as follows:

     1.  [T]he  ...  Commission   has   jurisdiction   over  this
     proceeding.

     2. [T]he Bay Settlement Mine is a limestone mine located  in
     [Scott], Wisconsin.

     3.  [T]he ... [m]ine is operated by Daanen & Janssen ... and
     another operator,  Northeast Asphalt, Incorporated.

     4.  Daanen & Janssen and its ... [m]ine [are] subject to the
     jurisdiction of the ... Act.

     5.  [T]he [m]ine's operations affect interstate commerce.

     6. [T]he  ...  [m]ine  worked  approximately 65 hours in the
     fourth quarter of 1994.

     7.  Daanen & Janssen worked approximately  35,349  hours  at
     all of its mines during the fourth quarter of 1994.

               * * *

     19.  [T]he  proposed  penalties  of  each  citation will not
     affect Daanen & Janssen's ability to continue in business.

     20.  [T]he certified copy or MSHA assessed violations history
     [Joint Exh. 2] accurately reflects the history of Daanen &
     Janssen for two years prior to October 6, 1994  (Tr. 12-14,
     See also Tr. 15).

     The parties also stipulated with respect to the authenticity
of certain exhibits  (Tr. 13-14, 15), that the number of hours
worked at the mine in the fourth quarter of 1994 was "very small"
(Tr.14-16), and that Daanen & Janssen exhibited good faith in abating
the alleged violations  (Tr. 176-177).  In addition, the Secretary's
counsel agreed that the company's applicable history of previous
violations was "small"  (Tr. 15).

          THE ACCIDENT, THE INVESTIGATION, AND THE CITATIONS

     At the quarry, limestone is extracted and stockpiled on the
quarry floor where it is loaded into haulage trucks by front-end
loaders (loader).  As a result, loaders and trucks are the types
of mobile equipment most commonly used.

   All such mobile equipment reaches the quarry floor via an
access road that runs approximately 520 feet from the rim to the
floor.  The road is 22 feet wide and is "bermed" on both sides.
The road has an overall grade of approximately 10 percent, but
the descent is not even.  The road becomes more level for a brief
distance near its mid point, and then resumes its steep decent.

     The berms are composed of boulders, stones and granulated
material.  The granulated material is used as "fill" around and
between the boulders and stones.  The berms are from 3 to 4 feet
wide.  They vary in height, but are approximately 48 inches at
their highest.

     On the morning of October 6, one loader, driven by Richard
VanVonderen, was operating at the quarry.  Four haulage trucks
waited to be filled.  To reach the waiting trucks, VanVonderen
drove the loader down the access road.  He got about one third of
the way down, when the loader drifted to the far left (the west
side) of the road and twice hit the left berm.  The loader
traveled approximately 34 feet more, ran through and over the
left berm, fell 40 feet to the quarry floor, and overturned.

     The only eye witness to the accident was Mark Bray, a foreman
of the other company that mined at the quarry.  He saw the loader
traveling down the road.  He looked away briefly and when he looked
back, he saw the loader go over the edge of the road and fall to the
quarry floor.

     Bray ran to the loader. He called out, but received no
answer.  He returned to his work station, got another employee,
and they ran back to the loader.  They found VanVonderen out of
the operator's seat and up against one of the columns of the
loader's cab.  Bray ran to telephone for help.  He also called
the company to report the accident.

     Within minutes, county rescue personnel arrived at the scene.
They examined VanVonderen and detected no vital signs.  He was taken
by ambulance to a local hospital where he was pronounced dead.  An
autopsy revealed internal injuries and broken forearms.

     That same day, Thomas Pavlat, an MSHA investigator, was assigned
by the agency to investigate the accident.  Initially, there was
confusion concerning whether OSHA or MSHA had jurisdiction and both
began investigations.  However, it was decided that jurisdiction lay
with MSHA, and Pavlat conducted the only complete federal investigation
of the incident.

     Pavlat's investigation had two stages, from October 6-14, 1994,
and from November 8-11, 1994.  During these periods Pavlat estimated
that he spent a total of 5 1/2 days at the quarry.

     As a result of the investigation Pavlat served the company with
the four citations here at issue.  Citation No. 4318581  (Joint Exh.
1A) charges a violation of 30 C.F.R. � 56.14130(h) in that the seat
belt of the loader did not meet the requirements of Society of
Automotive Engineers (SAE) Schedule J386.  Citation No. 4318582
(Joint Exh. 1B) charges a violation of 30 C.F.R. � 56.14101(a)(3) in
that the service brake slack adjustors for both rear brakes were
"frozen" and did not work.  Citation No. 4318583 (Joint Exh. 1C)
charges a violation of 30 C.F.R. � 56.9101 in that VanVonderen "did
not or could not maintain control" of the loader.  Finally, Citation
No. 4318584 (Joint Exh. 1D) charges a violation of 30 C.F.R. � 56.9300
(a) in that the left berm was not substantial enough to provide
VanVonderen with the opportunity to regain control of the loader.

     DOCKET NO. LAKE 95-180-RM
     DOCKET NO. LAKE 95-290-M

Citation     No. 30 C.F.R. �       Date           Penalty
4318581      56.14130(h)           12/16/94       $ 81

     The citation states:

     The seat belt provided for the ... front-end loader
     ...  did not meet the requirements of SAE J386,
     Operator Restraint Systems for Off-Road Work Machines.
     The seat belt and seat were not tethered to the floor
     of the loader cab as required by the manufacturer.
     The provided seat belt was side mounted and the seat
     was hinged on the front.  The operator could be forced
     forward into the cab in the event of a severe accident
     (Joint Exh. 1-A).

     Section 56.14130(h) states in pertinent part:

     Seat belts shall meet the requirements of SAE J386.
     "Operator Restraint Systems for Off-Road Work Machines".

     SAE J386, is  incorporated  by  reference into the standard,
     and its requirements are therefore  mandatory.   The purpose
     of  SAE  J386  is  to  provide minimum performance and  test
     requirements for operator restraint systems (see Sec. Exh. 1
     at 1. Purpose).

                            THE VIOLATION

     At the hearing, Pavlat explained that he cited the violation
because "of the type of seat that was in this [loader]. It was
hinged on the front with a locking device in the back, and there
wasn't a tether provided to restrain the seat from going forward
in the event of an impact or whatever circumstances may force that
seat"  (Tr. 39, see also 114-115).  He also testified there was
another condition that he believed was a violation of SAE J386 --
"[t]he seat belt ... was not provided with a sticker, which J386
requires it to have"  (Tr. 39).  (Pavlat did not include this
condition in the descriptive portion of the citation.)

     To establish a violation of section 567.14130(h), the Secretary
must prove a violation of SAE J386. SAE J386 is divided into
three parts. Part I contains definitions, Part II contains seat belt
assembly requirements, and Part III contains machine-related
requirements for the testing and performance of seat belt assembly
attachments, tether belts, and seat belt assembly installations.
Pavlat maintained the company failed to meet three of the definitions
in Part I, one of the seat belt assembly requirements of Part II, and
one of the machine related requirements of Part III  (see Tr. 113-116).

     The definitions cited by Pavlat are those for "Anchorage,"
"Extension (Tether) Belt," and "Operator Restraint System" (Tr. 114-
115, 116).  The problem with relying on these definitions  is that they
do not state mandatory requirements with which an operator must comply.
"Anchorage" is defined as, "The point where the seat belt assembly and/or
extension (tether) belt is mechanically attached to the seat system or
machine"  (Gov. Exh. 1 at 3.2).  "Extension (Tether) Belt" is defined as,
"Any strap, belt, or similar device ... that aids in the transfer of
seat belt loads" (Id. at 3.6). "Operator Restraint System" is defined as,
"The total system composed of the seat belt assembly, seat system,
anchorages, and extension (tether belt, if applicable) which transfers
the seat belt load to a machine"  (Id at 3.9).  Because  these definitions
contain no language requiring an operator to do or not to do something, I
must exclude the definitions as a basis for finding a violation.

     I also must exclude the machine related performance standard of Part
III that Pavlat referenced.  Part III 5.1.2. states, "If the means of
attachment joining the seat assembly to the seat system cannot withstand
the seat belt assembly load of Part III, paragraphs 5.2.2., 5.2.3. or
5.2.4., extension (tether) belts may be used" (Gov. Exh. 1) (emphasis
added).

     It  is  clear Pavlat believed safety considerations dictated that
the seat be tethered (Tr. 39, 44, 114-115).  However, it also is clear,
as counsel for Dannen & Janssen pointed out during cross examination and
on brief, that the language of the require-ment is permissive not
mandatory  (Tr. 181, 183; Resp. Br. 6).  Under the conditions specified
in Part III 5.1.2., an operator "may" not "shall" use a tether belt.
Moreover, even if I read the SAE standard to require the use of a tether
belt, the Secretary did not establish "the means of attachment" could not
withstand the specified seat belt assembly load requirements.

     The remaining part of SAE J386 that Pavlat believed the company
violated is Part II 4.1.5. (Tr. 116). It states:

     MARKING (LABELING) - Each seat belt assembly and/or section of belt
     assembly shall be permanently and legibly labeled with year of
     manufacture, model or style number, and name or trademark of
     manufacture or importer, and shall state compliance with SAE J386
     JUN85. Part II (Gov. Exh. 1).

     Pavlat testified the seat belt did not have such a label (Tr. 39, 45,
see also Tr. 115).  Although this condition was not charged in the body of
the citation, counsel for the company did not object at the hearing or on
brief to its inclusion in the record and to testimony concerning it. I
therefore conclude Daanen & Janssen neither was surprised nor prejudiced
by the testimony and that the Secretary effectively amended  his pleadings
to allege that the Company's failure to comply with Part II 4.1.5. was a
part of the violation.  Further, because Daanen & Janssen presented no
evidence to refute Pavlat's contention that the required lable was
missing, I find that the loader's seat belt assembly was not labeled
as required by Part II.4.1.5.  In this respect, and in this respect
alone, the company violated section 56.14130(h).

S&S and GRAVITY

     The concept of S&S is well understood. For the purpose of this
violation, it is sufficient to note two holdings of the Commission.
First, that a violation is properly designated S&S, "if, based upon
the particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature" (Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981)); and second,
that the question of whether any particular violation is S&S must be
based on the particular facts surrounding the violation (Secretary
of Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987)).

     Because the sole allegation the Secretary established is that
Daanen & Janssen violated section 56.14130(h) by failing to comply
with the labeling requirement of SAE J386, I conclude the violation
was not S&S.  The lack of a proper label does not mean that the seat
belt assembly was unsafe or did not functionally meet the SAE
requirements.  Perhaps the assembly violated the requirements,
perhaps it did not.  The Secretary's evidence does not support
finding either way.

     Indeed, Pavlat did not even know if VanVonderen was wearing
a seat belt  when the accident occurred (Tr. 56-57).  VanVonderen
was found outside of his seat, the seat belt was not torn, and
there was no evidence that it failed during the accident (Tr. 132).
Further, Pavlat agreed that the coroner's  report indicated
VanVonderen's injuries were inconsistent with seat belt use (Tr. 133).

     Based upon these particular facts, I find that the labeling
violation was not reasonably likely to contribute to a hazard of
a reasonably serious nature and therefore that the violation was
not S&S.

     I also find that the violation of section 56.14130(h) was not
serious.  It long has been held that to determine the gravity of a
violation for purposes of penalty assessment, the violation should
be analyzed in terms of its potential hazard to the safety of miners
and the probability of the hazard occurring (Robert G. Lawson Coal
Co., 1 IBMA 115, 120 (May 1972)).  While the lack of a required label
presented a potential hazard to miners if there was a basis to infer
the seat belt or its assembly could not adequately restrain the vehicle
operator, the facts allow no such inference here.  Since I am unable to
find a potention hazard, I cannot gauge its probability.

                              NEGLIGENCE

     Pavlat believed the company's  negligence was moderate (Tr. 55,
57), and I agree. The SAE requirement clearly states that the seat
belt assembly must be labeled properly.  The lack of such a label was
visually obvious.  The loader belonged to Daanen & Janssen, and the
company should have known of the violative condition and corrected
it.  In failing to do so, it failed to meet the standard of care
required (Tr. 251).


                       CIVIL PENALTY ASSESSMENT

     This was not a serious violation, and the company was moderately
negligent in allowing it to exist.  The other civil penalty criteria
to which counsels either stipulated or otherwise agreed (the company's
small history of previous violations, its small size, its good faith
abatement of the violations, and the fact that the penalties proposed
would not affect its ability to continue in business) do not warrant
a large penalty.  Therefore, I conclude that a penalty of $50 should
be assessed.

     DOCKET NO. LAKE 95-181-RM
     DOCKET NO. LAKE 95-313-M

     Proposed     Citation No.     30 C.F.R. �       Date
     Penalty      4318582          56.14101(a)(3)    12/16/94
     $ 1,000

     The citation, which was issued pursuant to section 104(d)(1)
of the Act, 30 U.S.C � 814(d)(1), states:

     The ... front end loader ... had been operated while the car
rvice ake slack adjusters on both wheels were not functional.  The
adjusters were "frozen" and could not be adjusted any more.  Verbal
and written evidence, including the weekly vehicle defect review
reports, dated 8/19/94, 9/9/94 and 9/16/94  indicated  the company
production  manager was aware of the brake conditions.  The reports
were reviewed by the manager and he verbally indicated the loader
was scheduled for brake maintenance when another loader in the
shop was completed and removed.  The loader was damaged beyond repair
in an accident.  It could not be determined if the condition of the
brakes contributed to the accident because of the damage to the loader
and conflicting testimony concerning the quality of the loader brakes.
This is an unwarrantable failure (Joint Exh. 1-B).


     Section  56.14101(a)(3)  requires that, "All braking systems
installed on ... [self-propelled mobile] equipment shall  be
maintained in functional condition."

                            THE VIOLATION

     There was essential agreement among the witnesses regarding
the function and purpose of loader's service brake system and of the
system's slack adjusters.

     Richard Sobieck is Daanen & Janssen's assistant mechanic.  He
repairs machinery and equipment used at the quarry.  He explained that
the loader's service brake system has two brake shoes for each wheel
and that each shoe has one adjuster bolt.  There are eight adjuster
bolts in all (Tr. 239; see also Tr. 451 (testimony of Robert Svenson)).
The adjuster bolts are turned manually, and the brake shoes move
closer to the brake drum when the bolts are turned.

     The shoes are moved to compensate for wear on the brake linings
(also referred to as the brake pads).  In this  way, the shoes
continue to be applied evenly to the brake drums and to exert the
maximum amount of stopping power for the brake system (See Tr. 111,
390).

     Robert Svenson is the former chief engineer of the company
that manufactured the loader's brakes.  Prior to his retirement
in 1982, Svenson had 35 years of  experience in brake design and
manufacture.  Svenson testified that the frequency at which the
adjuster bolts need to be turned depends upon the rate at which
brake linings wear (Tr.  452).  Because wear is inevitable when
brakes are applied, the only way  to forego use of the adjuster
bolts is never to use the brakes, or continually to install new
brake shoes.

     Pavlat testified that during the investigation he learned
VanVonderen reported to the company there was a problem with
the brakes.  According to Pavlat, these reports were made "over
an extended period of time" (Tr. 96, see also Tr. 116).  The
"problem" was that the slack adjusters were "frozen" and would
not turn (Tr. 109).  As a result, the brakes shoes at times did
not fully engage the drums and the brakes did not hold as they
should.

     The reports to which Pavlat referred were completed weekly
by VanVonderen.  Then, the reports were given to Daanen & Jassen's
assistant mechanic, Richard Sobieck, to review.  Following that,
Daanen & Janssen's production supervisor, Aaron Kinney, read them.
(Tr. 101-102).

     VanVonderen's report dated August 19, 1994, indicated that
all of the systems of the loader were in good condition and that
the overall condition of the loader was satisfactory, but it also
contained a note added by Sobieck that the loader "needs brakes
all around" (Gov. Exh. 9).  Sobieck explained that he did not mean
that the loader actually needed new brakes, but rather that the
adjuster bolts on the braking system needed to be changed because
they were frozen (Tr. 222, 241). Sobieck made the notation after
going to the mine on August  20, and inspecting the brakes.  (He
inspected the loader because VanVonderen told him it was pulling
to the left (Tr. 242).)

     Sobieck was able to free and to move the slack adjusters on
August 20, and to thereby adjust the brakes.  However, once he
made the adjustments, he could not again turn the bolts.  They
were frozen.

     Sobieck testified that he told Kinney about the problem and
that Kinney planned to fix or replace the bolts in October when
space would become available in the  repair  shop.  (Tr. 229, see
also Tr. 102 (Pavlat's testimony)).  Therefore, the adjuster bolts
were not changed or otherwise unfrozen from August 20, to the date
of the accident.

     While there is ample evidence that the slack adjusters
did not work at the time of the accident, there is no basis
to find that anything else was wrong with the loader's braking
system.  For reasons that were never fully explained, MSHA's
investigation did not include an inspection or examination of
the brakes, or of what was left of them. (Tr. 107).  The alleged
violation was based upon what Pavlat was told and upon his
review of the company's inspection reports. Except for allegations
regarding the adjuster bolts, no testimony was offered by the
witnesses that the brakes were in any other way defective.  Therefore,
the question of whether there was a violation of section 56.14101(a)(3),
turns upon whether the presence of the frozen slack adjustors meant
that the loader's braking system was not maintained in functional
condition.

     Section 56.14101(a)(3) is, as the standard's  wording makes
clear, a maintenance standard.  It describes how an operator is
required to maintain all braking systems -- i.e., "in functional
condition."  It does not mandate that brakes meet specific
performance requirements.

     Although Daanen & Janssen argues that this distinction is
"nonsensical," "given the [s]tandard's plain language equating
compliance with the braking  system's function or performance"
(Op. Br. 12 (emphasis in original)), I do not agree. Daanen &
Janssen's argument equates section 56.14101(a)(3) with sections
56.14101(a)(1) and 56.1410(a)(2), thereby making section 56.1410(a)(3)
redundant.  Also, its argument ignores the "plain language" of the
standard.

     The adjective "functional" connotes something  being able to
perform its regular function, that is, it cannotes something being
able to work  as intended (see Webster's Third  New International
Dictionary 921 (1986) (Webster's)).  Under section 56.14101(a)(3),
the "something" that must be functional is the braking system, which
is made up of numerous component parts.  For the system to work as
intended all of its component parts must work.

     The wording of section 56.14101(a)(3) clearly distinguishes
it from preceding sections 56.14101(a)(1) and 56.14101(a)(2).  They
describe how service and parking brake systems must perform, i.e.,
they must be "capable of stopping and holding the equipment with its
typical load on the maximum grade it travels" (30 C.F.R. �� 56.14101
(a)(1) and 56.14101(a)(2)).

The Secretary recognizes this distinction in his Program Policy Manual
(PPM), which states:

     Subsection (a) [of section 56.14101] is divided into three parts.
     Part (1) ... sets a minimum performance standard for service brake
     systems on self-propelled mobile equipment.  Part (2) sets a minimum
     performance standard for parking brakes on self-propelled mobile
     equipment.  Part (3) sets a maintenance standard for all braking
     systems on self-propelled equipment.

     Standard [56].14101(a)(1) should be cited if a service brake system
is not capable of stopping and holding the equipment with its typical load
on the maximum grade it travels.

     Standard [56].14101(a)(2) should be cited if the parking brakes are not
capable of holding the equipment with its typical load on the maximum
grade it travels.

     Standard [56].141012(a)(3) should be cited if a component or portion
of any braking system is not maintained in functional condition even
though the braking system is in compliance with (1) and (2) above
(PPM Vol IV 55-55(a) (emphasis added).

     The Secretary argues that this interpretation deserves
deference (Sec. Br. 19-22), but this claim is beside the point.
Chevron teaches that where the wording of a statute, or in this
case of a standard, is clear, the question of deference need not
be reached.  Rather, effect must be given to the clear and
unambiguous language (Chevron, U.S.A. v. Natural Res. Def. Council,
467 U.S. 837, 842-43).

     The adjuster bolts were integral parts of the loader's braking
system.  They were frozen and inoperable.  I therefore conclude the
loader's braking system was not maintained in functional condition
and that this was a violation of section 56.14101(a)(3).

                           S&S AND GRAVITY

     In Mathies Coal Co, 6 FMSHRC 1, 3-4 (January 1984), the Commission
set forth four things the Secretary must prove in order to sustain
an S&S finding:

          (1) the underlying violation of a mandatory safety standard;
     (2) a discrete safety hazard -- that is, a measure of danger to
     safety contributed to be 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.

     See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-105 (5th
Cir. 1988) (approving Mathies criteria).

     In United States Steel Mining Company, Inc.,7 FMSHRC 1125, 1129
(August 1985), the Commission stated as follows:

          We have explained further that the third element
     of the Mathies formula "requires that the Secretary
     establish a reasonable likelihood that the hazard contributed
     to will result in an event in which there is an injury." U.S.
     Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).  We have
     emphasized that, in accordance with the language of section
     104(d)(1), it is the contribution of a violation to the cause
     and effect of a hazard that must be significant and substantial.
     U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984);
     U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,1574-75 (July 1984).

     Finally, an S&S determination must be made in the context of
continued normal mining operations (National Gypsum, 3 FMSHRC 327,
329 (March 1981); Halfway, Incorporated, 8 FMSHRC 8 (January 1986).

     The Secretary proved three of the four Mathies elements.  There
was a violation of the mandatory safety standard and the violation
contributed to a discrete safety hazard.  The brake lining wore as
the loader was used.  At some point, the brakes would have to be
adjusted to be able to slow down or stop the equipment. Because
the adjuster bolts on the rear brakes were inoperable, the rear
brakes could not be adjusted using the bolts unless the bolts were
replaced or otherwise fixed.  As mining continued this subjected
the loader operator and others working in the vicinity of the
loader to hazards resulting from the loader operator being unable
to slow or stop.  Further, if an accident occurred, it was reasonably
likely to result in the serious injury of the loader operator, of
other miners, or of both.

     However, the Secretary failed to prove there was a an injury.
There is no evidence to the contrary, and I credit Sobieck's
testimony that after he last turned the slack adjusters on August
20, 1994, the brakes worked properly (Tr. 238-239).  Joseph Judeikis,
assistant to the chief of the MSHA Approval and Certification Center,
agreed that if slack adjusters are adjusted   reasonable likelihood
the hazard contributed to would result in to within acceptable limits
and are then frozen, the braking system will still work (Tr. 392).
As he put it, the slack adjusters "are not necessary at a given
point in time if the brakes are adjusted to allow the [braking]
system to perform" (Tr. 422).  Svenson added that the brakes will
continue to work properly "until such time as lining [wear] takes
place or lining or drum wear takes place to the extent that [another]
adjustment has to be made" (Tr. 454).

     Sobieck estimated that a brake adjustment on a loader at the
mine lasts for about 1 year of use or about 3,000 hours before
the brakes have to be readjusted. Svenson observed that this
time period was "not uncommon" for off-road equipment (Tr. 257,
453).  Judeikis, on the other hand, believed that under normal
usage, an adjustment on a loader lasts approximately 1 � to
2 months, and Judeikis stated that he had no reason to think the
loader involved in the accident was subject to other than normal
use (Tr. 410, 412).

     I credit Sobieck's estimate. As the mechanic who made such
adjustments, he was familiar with the way in which the loader was
used at the quarry.  Judeikis, on the other hand, made clear that
his knowledge of how the loader was used was not first hand (Tr.
412).  He forthrightly admitted that he could not state that Sobieck's
time estimate was unreasonable. ("I can't speculate as to whether
or not ... [approximately one year] would be a reasonable time for
that particular machine in its particular operating environment.
That really is a function of the loader operator, the quality of
the mining and the operating conditions that the loader is subject
to" (Tr. 396)).

     Further, no evidence was introduced that there were unusual
circumstances at the quarry that would cause the brakes to wear more
quickly.  Indeed, Judeikis stated that the fact that a loader was
operated on a grade did not necessarily mean that its brakes would
wear more quickly.  The loader operator might control the speed
of the loader through gear selection and therefore not need
to use the brakes as frequently (Tr. 394, 396).

     Sobieck told Pavlat the company planned to take the loader
to the shop for repair by the end of October (Tr. 102), and
Sobieck confirmed this was the company's intention (Tr. 257-258,
259).  There is no evidence to support finding this was a
fabrication, and I find that, indeed, the company intended to
replace or repair the adjuster bolts by the end of October.

     I have found that the brakes were last adjusted on August 20
and that they worked as required up until the time of the accident.
Also, I have accepted Sobieck's testimony that the brakes would
not need to be adjusted for up to a year from the August  20, 1994.
Finally, I have accepted the company's testimony that as mining
continued, the adjuster bolts would have been repaired or replaced
by the end of October 1994. Obviously, this would have been well
before the brakes needed to be readjusted.  Therefore, I conclude
that as mining continued, it was not reasonably likely that the
frozen adjuster bolts would have lead to an injury causing
accident.

     I also conclude that this was not a serious violation.  As
noted, the evidence requires finding that the frozen adjuster bolts
did not affect the ability of the brakes to stop the loader, and
in the normal course of mining, would not have affected that
ability before the bolts were replaced or repaired.  Thus,
while it is true that at some point this violation could have become
serious, even life threatening, that point was not reached nor
reasonably could have been expected to be reached within the
relevant time frame of this case.

                 UNWARRANTABLE FAILURE AND NEGLIGENCE

     Unwarrantable failure is "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act" (Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987)). Unwarrantable failure is characterized by such
conduct  as "reckless disregard," "intentional  misconduct,"
"indifference" or a "serious lack of reasonable care" (Emery,
9 FMSHRC at 2003-04).

     Clearly, Sobieck knew that the  adjuster  bolts  were
inoperable and needed to be changed. Indeed, Sobieck testified
that when he wrote on the September 6 inspection report that the
brakes were "bad again.  Cannot adj[ust] anymore," he did so to
remind himself that when the loader ultimately was taken to the
shop for repairs, the adjusting bolts needed to be changed
because they could not be adjusted (Gov . Exh. 12; Tr. 219, 243,
256).  Sobieck further testified that on September 12, he
instructed VanVonderen to check the "service brakes not good" box
on the inspection forms in order again to remind management that
new adjustor bolts needed to be installed (Tr. 255).  Kinney,
Daanen & Janssen's production manager, reviewed these forms
(Tr. 230, 267-269).

     Kinney testified that he recalled Sobieck telling him that
one of the front slack adjustors was frozen but that Sobieck was
able to free it.  He did not recall Sobieck telling him anything
about the rear brakes and rear slack adjusters. (Tr. 269-270).
However, Sobieck testified that prior to the accident he told
Kinney that the adjuster bolts needed to be replaced (Tr. 232).

     I believe that Sobieck advised Kinney that the rear slack
adjusters were inoperable.  I find it highly unlikely that Sobieck
told Kinney about an adjuster bolt he was able to keep in working
condition, yet failed to tell him about those he could not free.
Indeed, Kinney stated he knew that "when it was convenient" the
loader would have to be taken to the repair shop "and we would
work on the adjustors, and ...replace them or free them or whatever"
(Tr. 304), which certainly implies he knew the adjuster bolts
did not function.  For these reasons, I find that the management
of Daanen & Janssen, through Kinney, knew that the rear slack
adjustors were inoperable.

     In the face of its knowledge that the slack adjustors required
replacement or repair, Daanen & Janssen elected to put off the work
until late October.  I have found that despite the frozen adjuster
bolts, the brakes reasonably could have been expected to function
adequately for up to 1 year from August 20, 1994.  In view of this
finding, I conclude, that Daanen & Janssen was not indifferent to
the violation.  Its decision to replace or repair the adjuster
bolts at a time when it was convenient--i.e., in late October
1994--was reasonable in light of the minimal risk the violation
posed to the loader operator and to others.  Therefore, the
violation was not the result of Daanen & Janssen's unwarrantable
failure to comply with the standard.

     Although the company was not guilty of a serious lack of
reasonable care in allowing the violation to exist, it was negligent.
Kinney knew of the violation.  There was at least a possibility --
however minimal -- that the loader would be used other than normally
and that the inability of the slack adjusters to function would
affect the brakes before the end of October.  In electing to put
off replacing or repairing the slack adjusters, the company
assumed the risk that continuing to use the loader would endanger
the loader operator and/or others.  The risk was slight, but it was
there, and Daanen & Janssen was negligent in assuming it.

                       CIVIL PENALTY ASSESSMENT

     The violation was not serious. Therecord does not support finding
that the violation contributed in any way to VanVonderen's death.
The violation was not caused by Daanen & Janssen's unwarrantable
failure to comply.  The company was slightly negligent. Given the
small size of the company, its small history of previous violations
and the fact that the other civil penalty criteria do not warrant
either increasing or decreasing the resulting penalty, I find that
a civil penalty of $300 should be assessed.

     DOCKET NO. LAKE 95-182-RM
     DOCKET NO. LAKE 95-352-M

Proposed Citation No.       Date       Penalty
30 C.F.R. � 4318583         12/16/94   $ 5,000
56.9101

     The citation states in pertinent part:

          [A] front end loader operator was fatally injured on
          October 6, 1994, when the ... loader he was operating
          went through the berm and off the edge of  a 40 foot
          elevated roadway.  The loader operator did not or
          could not maintain control of the equipment while it
          was in motion, and went through the berm and over the
          road edge.

     In issuing the citation, Pavlat found the violation to be
S&S and due to Daanen and Janssen's moderate negligence.

     Section 56.9101 states:

          Operators of self-propelled mobile equipment shall
          maintain control of the equipment while it is in
          motion. Operating speeds shall be consistent with
          conditions of roadways, tracks, grades, clearance,
          visibility, and traffic, and the type of equipment
          used.

                            THE VIOLATION

     The record allows for no other plausible explanation for the
accident than that VanVonderen failed to control the moving
loader. (Certainly, there is no suggestion he drove intentionally
off the road).

     Daanen & Janssen offered speculative testimony as to why he
failed to maintain control.  It suggested that wasps got into the
cab and distracted him (Tr. 318, 339, 470).  It also suggested
that he might have looked over his shoulder and lost track of
where he was going (Tr. 317-318).

     For his part, the Secretary, through Pavlat, suggested
excessive speed as the cause, a suggestion founded upon what Bray
reportedly told Pavlat of VanVonderen's driving habits
(Tr. 68-69).  However, Pavlat's recollection of what he was told
was not confirmed by Bray, and Pavlat himself never observed
VanVonderen operating the loader (Tr. 135).

     These speculations, even if established, at most would explain
why there was a violation, they would not excuse it.  The accident
itself speaks to the violation.  As Pavlat noted, the loader was
for no apparent reason on the far left side of the road.  (There
was no other vehicle on the road.)  It twice bumped the berm.  It
traveled another 34 feet, went over the berm and off of the road's
left edge (Tr. 68).  These things would not have happened if
VanVonderen had maintained control while the loader was in motion.

     Although Daanen & Janssen points to Pavlat's testimony that
he did not "know for a fact that [VanVonderen] was out of control"
(Op. br. 32 citing to Tr. 137), I do not find this compelling or
conclusive.  Of course Pavlat did not "know for a fact."  The only
person who knew with absolute certainty was VanVonderen. Violations
can be found by induction.  Here, the record provides no other
logical explanation for the accident than that VonVonderen failed
to maintain control, and I conclude that the violation occurred
as charged.

     In reaching this conclusion, I recognize there is an argument
to be made that section 56.9109 contemplates the equipment operator
be conscious while operating the moving vehicle, and that proof
he or she is not, obviates the violation.  However, I do reach this
argument because the evidence does not permit finding VanVonderon
was unconscious.  If anything, the injuries to his forearms
(Tr. 133) and the fact that he was sitting up straight when the
loader went off the edge (Tr. 359), suggest exactly the opposite.

                           S&S AND GRAVITY

     The violation was both S&S and very serious.  The failure to
maintain control of the loader while it was in operation on a
road with deep drop offs on both sides and with a grade of
approximately 10 percent was reasonably likely to result in an injury
of a reasonably serious nature; and, in fact, resulted in death.

                              NEGLIGENCE

     Pavlat described the negligence of Daanen & Janssen as "moderate"
(Tr. 80).  He based this assessment on Bray's reported statement that
VanVonderen had a history of operating the loader at excessive speeds
and that it was "commonplace" for him to speed (Tr. 148, 150).  However,
there is insufficient evidence to support Pavlat's assessment.

     Bray was called as the Secretary's witness and Bray never was asked
whether he had any knowledge of VanVonderen's driving habits and if so,
what those habits were.  Aside from Bray, Pavlat identified by name no
other person who gave him information about VanVonderen's alleged
propensity to speed.

     Further, Bray was not a reliable judge of speed.  He was asked if
he was able to tell how fast a loader was going when he saw one being
operated, and he replied he could not (Tr. 351).

     Moreover, even if I could find that VanVonderen had a propensity
to speed, the record contains no indication that Daanen & Janssen
knew or should have known about it.  Pavlat testified that
VanVonderen "pretty much worked by himself" (Tr. 80). Kinney testified
he never saw VanVonderen driving at what Kinney considered excessive
speed (Tr. 334), and when counsel for the Secretary asked Bray whether
Bray ever observed VanVonderen operating the loader with excessive
speed when Kinney was present, Bray responded, he had not (Tr. 357-358).
Finally, there is no suggestion Daanen & Janssen was deficient in
training or disciplining VanVonderen.

     Therefore, I conclude that Daanen & Janssen was not negligent.

                       CIVIL PENALTY ASSESSMENT

     The violation was a direct cause of VanVonderen's death.  It was
both S&S and very serious.  The violation was not the result of the
company's negligence.  The company is small, as is its history of
previous violations.  The other civil penalty criteria warrant
neither increasing nor decreasing the penalty assessed.  I conclude
that a penalty of $400 is appropriate.

     DOCKET NO. LAKE 95-183-RM
     DOCKET NO. LAKE 95-352-M

Proposed Citation No.        Dated        Penalty
30 C.F.R. � 4318584          10/6/94      $ 5,000
56.9300(a)

     The citation states in pertinent part:

          The  ...  front  end  loader  operator was fatally injured
          when the loader he was operating went through a berm and
          off the edge of a 40 foot elevated roadway  ...
          The loader pushed out the boulders and some of the other
          materials used for berm prior  to going over.  The
          boulder  material used for the berm failed to impede
          or moderate the force of the loader, which would have
          provided the operator an opportunity to regain control
          of the vehicle.  Some of the remaining berm was below mid
          axle height on the equipment involved in the accident
          (Joint Exh. 1D).

     Section 56.9300(a) states:

          Berms ... shall be provided and maintained on the banks of
          roadways were a drop-off exists of sufficient grade or
          depth to cause a vehicle to overturn or endanger persons
          in equipment.

     Section 56.9000 defines a "berm" as:

          A  pile  or  mound  of  material along an elevated roadway
          capable of moderating or limiting the force of a vehicle in
          order to impede the vehicle's passage over the bank of the
          roadway.

                            THE VIOLATION

     The essence of the alleged violation is that the berm failed
to impede the loader from going over the edge of the road.  "Impede"
is defined as, "to interfere with or to get in the way of the
progress of" (Webster's 1132).  It is a word containing the same
concept of delaying and inhibiting as the word "restraining."
Referring to the berm standard for surface coal mines (30 C.F.R.
� 77.1605(k)) -- a standard wherein a "berm" is defined as "a pile
or mound of material capable of restraining a vehicle" (30 C.F.R.
� 77.2(d)), the Commission stated that "[r]estraining a vehicle"
does not mean ... absolute prevention of overtravel ... under all
circumstances".  Rather, it means "reasonable control and guidance
of vehicular motion" (United States Steel Corporation., 5 FMSHRC 3
at 6, n.6 (January 1983)).

     Because I conclude that the meanings of "berm" in the metal and
nonmetal mine berm standard and the surface coal mine berm standard
are the same, I find that "to impede the vehicle's passage over the
bank of the roadway," the berm need not prevent overtravel but must
allow for reasonable control and guidance of vehicular motion.

     This is precisely the way in which Pavlat interpreted the
standard.  He consistently testified that he found a violation of
section 56.9003(a) because, in his judgement, the berm did not
hinder sufficiently the loader's motion to allow VanVonderen to
regain control.

     However, Pavlat's proper interpretation does not establish a
violation.  The Commission also has held that under a standard
such as section 56.9300(a), the adequacy of a berm must:

     ... be evaluated in each case by reference to an objective
     standard of a reasonably prudent person familiar with the
     mining industry and in the context of the preventive purpose
     of the statute.  [T]he Secretary is required to present
     evidence showing that the operator's berms ... do not measure
     up to the kind that a reasonably prudent person would provide
     under the circumstances.  This evidence could include accepted
     safety standards in the field of road construction, considerations
     unique to the mining industry, and the circumstances at the
     operator's mine.  Various construction factors could bear upon
     what a reasonable person would do, such as the condition of the
     roadway in issue, the roadways elevation and angle of incline,
     and the amount, type, and size of traffic using the roadway
     (United States Steel Corporation, 5 FMSHRC at 5).

     Neither Pavlat nor any other of the Secretary's witnesses
presented such evidence.  Pavlat speculated that the composition
and the dimensions of the berm were the cause of its inability to
impede the loader.  He described the berm as not having a consistent
composition and as having "multiple heights" (Tr. 82).  He suggested
that the inclusion of smooth bottomed stones and boulders in the berm
may have contributed to the alleged violation because the smooth
bottoms made the rocks more susceptible to sliding (Id.). He
speculated that the berm should have been wider and composed of
something other than the stones used (Tr. 83-84, 88).

     However, Pavlat did not know what that something else should have
been. When I asked him, the following exchange took place:

     Judge:  And what should [the berm] have been made up with?

     Pavlat:  I think there were gaps between the berm.  There  wasn't a
     solid  stone.  Additional height.  We talk about a mid axle height.
     Now that's not the basis of this citation, but volume -- we're talking
     about the minimum requirements.  Considering the nature of the roadway
     the vehicle was traveling --I think there should have been twice as
     much berm there.

     Judge:  Well, is it the materials themselves that constitute the
     violation or is it the amount of the materials?

     Pavlat:  I don't feel as though you can separate it. It's both.

     Judge:  So in your opinion, could Daanen & Janssen have complied
     by using the same type of rock ... only had more of it?

     Pavlat:  Wider, wider area, possibly could have done it.  I don't
     know specifically what would have done it ... .  I know this didn't
     (Tr. 84-85).


     Later, the company's counsel asked Pavlat about this testimony.

     Counsel:  In ... response to one of the Judge's questions you
     testified that you don't really know what could have been or
     would have been enough with respect to the berm to do the job;
     is that true?

     Pavlat:  True.

     Counsel:  Then how would the company know?

     Pavlat:  I don't know (Tr. 187).

     The combination of speculation and lack of knowledge offered
to prove the alleged violation does not provide a basis for finding
what kind of berm a reasonably prudent person would have provided
under the circumstances.  Therefore, I conclude that the Secretary
did not prove a violation of section 56.9300(a).

                                ORDER

     DOCKET NO. LAKE 95-180-RM
     DOCKET NO. LAKE 95-290-M

Citation No.            Date
30 C.F.R. � 4318581     12/16/94
56.14139(h)

     The Secretary is ORDERED to modify the citation by deleting
the S&S finding.  Daanen & Janssen is ORDERED to pay a civil penalty
of $50 within 30 days of the date of this decision.

     DOCKET NO. LAKE 95-181-RM
     DOCKET NO. LAKE 95-313-M

Citation No.         Date
30 C.F.R. 4318582    12/16/94
56.14101(a)(3)

     The Secretary is ORDERED to modify the citation by deleting the
S&S finding and to change the authority under which the citation is
issued to section 104(a) of the Act (30 U.S.C. � 814(a)).  Daanen &
Janssen is ORDERED to pay a civil penalty of $300 within 30 days of
the date of this decision.

     DOCKET NO. LAKE 95-182-RM
     DOCKET NO. LAKE 95-183-RM
     DOCKET NO. LAKE 95-352-M

Citation No.            Date
30 C.F.R. � 4318583     12/16/94
56.9101

Citation No.                Date
30 C.F.R. � 4318584         10/6/94
56.9300(a)

     Daanen & Janssen is ORDERED to pay civil a penalty of $400
(Citation No.  4318583) within 30 days of the date of this decision
and the Secretary is ORDERED to vacate Citation No. 4218584 within
30 days of the date of this decision.

     Upon receipt of the payments and upon modification and vacation
of the citations, these proceedings are DISMISSED.


                                 David F. Barbour
                                 Administrative Law Judge


Distribution:

Christine Kassak, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)

Eric E. Hobbs, Esq., John J. Walter, Esq., Michael, Best, & Friedrich,
100 East Wisconsin Avenue, Milwaukee, WI 53202-4108 (Certified Mail)

Ernest  K.Alvey, Conference and Litigation Representative, 515 West 1st
Street, No. 228, Duluth, MN 55802 (Certified Mail)

/dcp