<DOC>
[DOCID: f:se200122.wais]

 
MARTIN MARIETTA AGGREGATES
May 21, 2001
SE 2001-22-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          May 21, 2001


SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. SE 2001-22-M
               Petitioner       : A.C. No. 31-02130-05502
          v.                    :
                                :
MARTIN MARIETTA AGGREGATES,     :
               Respondent.      : Franklin Quarry


                            DECISION

Appearances: Melody S. Wesson, and Terry Lingenfelter, U. S.
             Department of Labor, MSHA, Birmingham, Alabama,
             for the Secretary;
             W. Scott Hunt, Martin Marietta Aggregates, Castle
             Hayne, North Carolina, for the Respondent.

Before: Judge Weisberger

     This case is before me based upon a Petition for Civil
Penalty filed by the Secretary of Labor alleging that Martin
Marietta violated 30 C.F.R. Section 56.14132(a).

     The basic underlying facts in this case are not disputed.
On August 10, 2000, MSHA Inspector Darrell Brennan inspected
Martin Marietta's Franklin Quarry, an open pit quarry.  He
inspected a water-haul truck which was parked at a stockpile.
The truck was provided with a reverse activated alarm, but it 
did not work.  Brennan issued a citation alleging a violation 
of Section 56.14132(a) which provides as follows: "[m]anually-
operated horns or other audible warning devices provided on 
self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."

     Martin Marietta did not contest any of the above facts. As
a defense, it argues that it was improperly cited, as the truck
was not available for use on August 10.  In this connection,
John W. Allgood, Jr., the assistant plant manager at the quarry,
indicated that on August 10 it was not intended by Martin
Marietta, to use the water-haul truck, which is used to control
dust on the site, inasmuch as the roads were wet, as about a half
inch of rain had fallen the night of August 9 and the morning of
August 10 prior to the inspection.  He indicated that according
to company policy, the truck is not ready to be used until a pre-
shift examination is performed.  Since at the time of the
inspection the pre-shift had not yet been performed as the roads
were still wet, Martin Marietta had not intended to use the truck
at that time.  In this connection Martin Marietta further argues
that since 30 C.F.R. Section 56.14100 requires a pre-shift
examination of equipment before placing that equipment in
operation, the haul truck could not have been put in use prior to
the completion of the pre-shift examination, and it was
improperly cited.

     According to the unambiguous wording of Section 56. 14132(a)
supra, an audible warning device provided on equipment as a
safety feature "... shall be maintained in functional condition."
Nothing in the plain wording of Section 56.14132(a), supra,
limits its applicability to self-propelled mobile equipment that
is in use or available for use.  To make such a ruling, as in
essence urged by Martin Marietta, would have the effect of
amending a regulation that is clear on its face.  Accordingly, I
find Martin Marietta's position to be without merit.

     Further, I note that Martin Marietta's reliance on Secretary
of Labor v Giant Cement Co. 13 FMSHRC 286 (Judge Melick, Feb. 25,
1991), is misplaced.  In Giant Cement supra, the issue presented
was whether the operator violated 30 C.F.R. Section 56.14100(b)
which provides, that safety defects "... shall be corrected in a
timely manner."  Judge Melick held that it was premature to find
a violation under Section 56.141000(b) i.e., that corrections
were not made in a "timely" fashion, since a pre-shift
examination had not yet been made when cited, nor was it required
before the cited loader would next be operated.  In contrast, the
cited standard herein does not pertain to correcting safety
defects in a timely manner, but requires that warning devices on
mobile equipment be maintained in functional condition.  Inasmuch
as the evidence establishes that the alarm did not operate, it
had not been maintained in functional condition, and Martin
Marietta was properly cited.

     According to Allgood, the truck had been used on August 9
and no defects were noted; normally a pre-shift is performed
prior to use; that there was no intention to use the truck when
cited as it was not needed since the roads were wet; and that it
is standard procedure that it a defect if found on pre-shift
examination, the equipment is tagged out and the defect is
repaired.  Considering these facts, which have not been rebutted
by the Secretary, I find that the level of Martin Marietta's
negligence was negligible.  Take into account the factors set
forth in Section 110(i) of the Act as stipulated to by the
parties, I find that a penalty of $25.00 is appropriate for this
violation.

     Order

     It is Ordered that Martin Marietta shall, within 30 days of
this Decision, pay a total civil penalty of $25.00.


                              Avram Weisberger
                              Administrative Law Judge


Distribution List (Certified Mail)

Melody S. Wesson, Conference and Litigation Representative, and
Terry Lingenfelter conference & Litigation Representative, MSHA,
U. S. Department of Labor, MSHA, 135 Gemini Circle, Suite 212,
Birmingham, AL, 35209

W. Scott Hunt, Safety Engineer, Martin Marietta Aggregates, P.O.
Box 398, Castle Hayne, NC, 28429