<DOC>
[DOCID: f:l95-190m.wais]
CEDAR LAKE SAND & GRAVEL
June 26, 1995
LAKE 95-190-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 26, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-190-M
Petitioner : A.C. No. 47-00792-05508
v. :
: Cedar Lake Sand & Gravel Pit
CEDAR LAKE SAND & GRAVEL, :
Respondent :
DECISION
Appearances: Ruben R. Chapa, Esq., U.S. Department of
Labor, Office of the Solicitor, Chicago,
Illinois, for the Petitioner;
Bruce Gilbert, President, Cedar Lake Sand
& Gravel Co., Hartford, Wisconsin, for the
Respondent.
Before: Judge Weisberger
This case is before me based on a Petition for
Assessment of a Penalty filed by the Secretary of Labor
alleging a violation by Cedar Lake Sand & Gravel Company,
Incorporated ("Cedar Lake") of 30 C.F.R. � 56.16006 and
30 C.F.R � 56.2003(a). Pursuant to notice, the case was
heard in Milwaukee, Wisconsin, on May 31, 1995.
Findings of Fact and Discussion
Violation of 30 C.F.R. � 56.16006
On June 22, 1994, Robert Taylor, an MSHA Inspector
[1], inspected the Cedar Lake Sand and Gravel Pit (Cedar
Lake Pit), a sand and gravel operation located in
Washington County Wisconsin. Taylor observed a compressed
gas cylinder that was attached to a portable cart, and
located outside adjacent to a shack where gas and grease
were stored. The cylinder was not covered. Taylor issued
a citation alleging a violation of 30 C.F.R. � 56.16006,
which provides as follows: "[v]alves on compressed gas
cylinders shall be protected by covers when being
transported or stored, and by a safe location when the
cylinders are in use."
Cedar Lake did not present any testimony to impeach
or contradict the testimony of Taylor that the cylinder
was not covered. Further, the parties stipulated that
the cylinder "was being stored," (Joint Stipulation 1,
Paragraph 8(a)). Clint Gerlach, Cedar Lake's Foreman,
testified that in the past MSHA inspectors only examined
those cylinders located in a storage facility to see if
they were covered. He said that the cylinder at issue
was set up for use, and that to the best of his
recollection cylinders are used daily. He could not
remember when the cylinder at issue had last been used
prior to June 22, 1994. He indicated that when a cylinder
is put to use, a regulator is installed. The cylinder at
issue had such a regulator. Gerlach indicated that in his
more than 18 years experience he had not been aware of the
need to cover cylinders that had regulators installed on
them.
Based upon the uncontradicted testimony of Taylor,
I find that the cylinder in question was not covered.
Further, the parties have stipulated that it was being
stored, and there is no evidence that it was in use.
Indeed, Gerlach could not recall when it was last used.
I thus find that Cedar Lake did violate section 56.16006,
supra. I note Respondent's allegation that MSHA in the
past had not cited Cedar Lake for not covering its
cylinders that were not stored in the storage area. I
find this allegation not to be a defense to the violation
of Section 56.16006, supra (see U.S. Steel Mining Co.,
Inc., 15 FMSHRC 1541, 1546-1547 (1993)).
Taylor explained that should the valve of the
cylinder be knocked off as a consequence of its not being
covered, the cylinder then would become like a missile,
and could cause serious injuries, a fire, or an explosion.
However, the gravity of the violation is mitigated to some
degree by the fact that the cylinder was secured to a cart.
Also, I find credible Gerlach's testimony that until the
instant citation was issued, he, in good faith, was not
aware that cylinders not stored in the storage area had to
be covered. I thus find Cedar Lake's negligence to have
been mitigated somewhat. Considering these factors, as
well as the remaining factors set forth in Section 110(i)
of the Act as stipulated to by the parties, I conclude
that a penalty of $200 is appropriate.
Violation of 30 C.F.R � 56.20003(a)
On June 22, 1994, as Taylor continued his
inspection, he climbed up a flight of stairs to a catwalk
(walkway) that led to a sizing screen. A handrail was
located on one side of the walkway. There was a toe
plate approximately 2 inches high on the edge of the
walkway. Taylor testified that he observed a buildup of
rocks on the walkway. According to Taylor, the rocks and
the accumulated rocks were 8 inches deep, and covered the
entire walkway.
Taylor issued a citation which initially alleged a
violation of 30 C.F.R. � 56.11001, but which was amended
on June 27, 1994, to instead allege a violation of 30
C.F.R. � 56.20003(a). Section 56.20003(a), supra,
provides that at all mining operations, "[w]orkplaces,
passageways, storerooms, and service rooms shall be kept
clean and orderly." Gerlach, who was present with Taylor,
testified regarding the accumulation of rocks as follows:
"I don't think it was quite 8 inches" (Tr. 90). He
opined that, due to the presence of a 2 1/2 inches high
toe plate on each side of the edge of the walkway it was
not likely that the material accumulated 8 inches.
However, since Gerlach indicated that he was not on the
walkway on the day the citation was issued, I find that
his testimony is inadequate to impeach or dilute the
testimony of Taylor based upon his actual observations.
I thus find that, based upon Taylor's testimony, the
walkway did have an accumulation of rocks. According to
Gerlach and Tony Wagner, the crusher plant operator, no
one works on the walkway when the plant is in operation.
However, the walkway is the means of access to the
sizing screen. A miner uses the walkway once a day to
access the screen in order to grease it and observe its
condition. Also, the walkway provides access to the
screen, when its cloth has to be changed. I thus find
that the walkway, which is the means of access to the
screen, is a passageway as that term is commonly
understood. In this connection, I note the following
definition of the term passageway as set forth in
Webster's Third New International Dictionary (1986
edition): "[a] way that allows passage to or from a place
or between two points." Since the walkway is considered
a passageway, and since it contained an accumulation of
rocks to the extent testified to by Taylor, I conclude
that Cedar Lake did violate Section 56.20003(a), supra.
Taylor noted footprints in the dust on the floor of
the walkway. He also noted dust on the accumulated rocks.
He opined that the accumulation of rocks had existed for
at least a day. On the other hand, Wagner testified that
each morning he checks the screen, and cleans the walkway.
Gerlach testified that earlier in the day Wagner had told
him that when Taylor had issued his citation, clay had
covered up the holes on the screen causing the materials
on the belt feeding the screen to fall on the walkway.
Also, Gerlach indicated that, in general, crushers
produce dust which extends about 1000 feet from the
crushers. In this connection, he noted that the walkway
at issue was located approximately 15 feet from two
crushers. Based upon this essentially uncontradicted
testimony, I find that the level of Cedar Lake's
negligence to have been mitigated to some degree.
According to Taylor, a person walking to the screen on
the walkway while carrying tools or other materials
could have tripped on the accumulated rocks causing a
sprain or a bruise. I thus find the violation was only
of a moderate degree of gravity. I find that a penalty
of $150 is appropriate for this violation.
ORDER
It is ORDERED that Cedar Lake pay a civil penalty
of $350 within 30 days of this decision.
Avram Weisberger
Administrative Law Judge
Distribution:
Ruben R. Chapa, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Bruce Gilbert, President, Cedar Lake Sand & Gravel Co.,
Inc., Route #2, Hartford, WI 53027 (Certified Mail)
/ml
**FOOTNOTES**
[1]:Taylor retired as an MSHA Inspector on
December 31, 1994.