<DOC>
[DOCID: f:se99101.wais]

 
NOLICHUCKEY SAND COMPANY, INC.
June 20, 1999
SE 99-101-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          June 20, 1999

NOLICHUCKEY SAND COMPANY,      : CONTEST PROCEEDINGS
      INC.,                    :
               Contestant      : Docket No. SE 99-101-RM
          v.                   : Citation No. 7777862; 1/28/99
                               :
SECRETARY OF LABOR,            : Docket No. SE 99-102-RM
     MINE SAFETY AND HEALTH    : Citation No. 7777863; 1/28/99
     ADMINISTRATION (MSHA),    :
               Respondent      : Docket No. SE 99-103-RM
                               : Citation No. 7777864; 1/28/99
                               :
                               : Docket No. SE 99-104-RM
                               : Citation No. 7777865; 1/28/99
                               :
                               : Docket No. SE 99-105-RM
                               : Citation No. 7777866; 1/28/99
                               :
                               : Docket NO. SE 99-106-RM
                               : Citation No. 7777867; 1/28/99
                               :
                               : Pit No. 436
                               : Mine ID 40-00806

                             DECISION

Appearances: Thomas A. Bewley, President, Nolichuckey Sand
             Company, Inc., Greeneville, Tennessee, pro se, for
             the Contestant;
             Thomas A. Grooms, Esq., Office of the Solicitor, 
             U. S. Department of Labor, Nashville, Tennessee, 
             for the Respondent.

Before: Judge Weisberger

     These case are before me based on a Notices of Contest filed
by  Nolichuckey Sand Company, Inc. ("Nolichuckey") contesting the
issuance by the Secretary of Labor ("Secretary") of six citations
on  January   28,  1999,  alleging  violations  of  30  C.F.R.  
� 56.14109(a).[1]

     Pursuant to  notice,  the cases were heard on March 9, 1999,
in Johnson City, Tennessee.   Nolichuckey  filed a Brief on April
29,  1999.   On June 15, 1999, the Secretary filed  a  Brief  and
Argument.

     I.  Statement of the Facts

     Elton Hobbs, an MSHA Inspector, inspected the subject sand
and gravel operation  on January 19, 1999.  He  observed  that
conveyor belts  did not  have  either  stop cords or railings,
and he discussed these conditions  with  Jerry  Knight,  the
foreman, and Nolichuckey's President, Thomas Anthony Bewley.
Hobbs  was told by Bewley that in the past MSHA had informed
him (Bewley)  that  if the conveyor was a 42-inch structure,
it did not need to have  a  railing  or stop cord.[2]  Hobbs
then spoke with his supervisor, Larry  Nichols, who informed
him to allow Nolichuckey to fix its belts,  and not to issue
any  citations.   Hobbs  indicated  that Bewley refused  his
request to install stop cords or railings  on  the  belts at
issue.    When  Hobbs  returned  on  January 28,  he  issued
citations for  the  belts  at  issue citing the lack of stop
cords or railings.[3]

     Hobbs explained that the section 56.14109(a), supra, is
designed to protect  persons  from falling on or against the
conveyor.  He explained that a  miner  inspecting  the  belt
from  the travelway might lose his footing and fall onto 
the conveyor.  Hobbs  indicated  that  material  on  the
travelway,  or  accumulated  snow or ice could be a tripping
hazard.  He stated that one falling  against  the belt could
get  caught  in a pinch point between the conveyor  and  the
support rollers, and could fracture his fingers or his hand.


**FOOTNOTES**

     [1]:/ 30  C.F.R.  �  56.14109(a)  provides that "[u]nguarded
conveyors next to the travelways shall be  equipped  with  -  (a)
Emergency stop devices which are located so that a person falling
on  or  against  the conveyor can readily deactivate the conveyor
motor; or (b) Railings  which  -  (1) Are  positioned  to prevent
persons from falling on or against the conveyor; . . .  ."

     [2]:/  The Secretary stipulated that Bewley was in fact told
in  the  past  by  MSHA  inspectors that a 42-inch belt structure
would constitute a guard on the belts at issue, and that MSHA had
not issued Nolichuckey any  citations  for  violations  of 30 CFR
� 56.14109(a).

     [3]:/ Government Exhibit 2 depicts a belt in issue.   "A" is
the support structure (known as a 42-inch deep truss) which has a
vertical  height  of  42 inches.   "B"  depicts the idler rollers
supporting the belt.  "C" depicts the conveyor  belt itself which
conveys the material.  "D" depicts the travelway  or catwalk that
runs alongside the conveyors.  "E" depicts the hand  rail  on the
travelway,  which is 42 inches from the bottom of the catwalk  or
travelway.  The  horizontal  distance  to the nearest point where
the belt rides on the rollers is 8 inches;  the  distance  to the
nearest point on the rollers is approximately 6 inches.


     Hobbs opined that a railing on top of the belt is necessary
to keep someone from  falling against the belt, and that the
42-inch structure itself  would not prevent one from falling
against the belt.  He explained  that there is approximately
12 inches between the belt structure  and  the  top  of  the
belt,  and  that  someone falling could fall into the moving
rollers or the belt itself.

     On cross-examination, Hobbs indicated that there is  no
danger  of  falling to the ground below as the result of the
lack of a railing  or stop cord, because the handrail of the
42-inch truss was sufficient to keep this from happening.

     Larry Nichols, the field office supervisor of MSHA's field
office in Knoxville, opined that  the  belt  structure  itself
is  not  a  guard  as  it is does not prevent a person  from
falling against the belt.

     Bewley agreed that, once a day, one man walks up and down
each catwalk that runs alongside the conveyor to  inspect the
belt  and  check the rollers.  He opined  that  if  railings
would be installed  on  the  42-inch structures, it would be
hazardous for a person to reach  over  the  belt in order to
change  a roller.  In this connection, Guy Morgan  indicated
in a unsworn statement made on a vedio tape that he would be
less safe if there would be a rail installed for most of the
length of  the structure at issue.  Bewley indicated that he
contacted various  conveyor  manufacturers  "if  they  would
warrant  any  of  their conveyors to meet MSHA standards for
guarding, specifically  under this standard and to a man and
manufacturer[,]  [t]hey all  said,  no,  we  can't  do  that
because it varies  with  the  inspector  as  well as varying
within districts" (sic) (Tr. 148-149).

     Bewley  opined  that  the  catwalk at issue is really a
maintenance  platform  as it is attached to the conveyor  to
ease maintenance, but is not used to allow men and machinery
to go from one place to another.

     II.  Nolichuckey's Defenses

     Nolichuckey does not contest the fact that the conveyors 
at issue   did   have   either   stop  devices  or  railings.
Nolichuckey's position that the citations at issue should be
dismissed is based upon the following  arguments:   that the
catwalk or walkway along which a Nolichuckey employee  walks
to  carry  out daily inspections is not a "travelway" within
the meaning  of  section 56.14109(a)  supra;  that it is not
required, as a matter of law, to have emergency stop devices
or  railings  for its conveyors because these conveyors  are
guarded by a 42-inch truss or belt structure;  that the 
Secretary is estopped from issuing citations  for  violations
of  section 56.14109(a)  supra, because in the past other MSHA 
inspectors  had not enforced this regulation against it, and 
that equipping the conveyors or  belts with stop devices or
railings would  result  in  a "greater hazard" to the safety 
of miners.

     III.  Discussion

     Essentially, it is Nolichuckey's position that the catwalk
located alongside the conveyor is not a travelway, and hence
the cited conveyors  are  not  within  the  scope of section
56.14109(a)  which  requires the guarding of conveyors  that
are  located  next  to "travelways."   Nolichuckey  in  this
connection refers to the fact that the catwalks are not used
by miners as part of  the normal traffic pattern at the mine
to go from one point to another.

     The term "travelway" is defined in 30 C.F.R. � 56.14000
as follows:  "[a]  passage,  walk,  or way  regularly used or
designated for persons to go from  one  place  to  another."
Since this definition applies to section 56.14109(a), supra,
it must be adhered to in the case at bar.  According to this
definition,  a  walkway  or  catwalk  is considered to be  a
travelway if it is designated for persons  to  go  from  one
place  to another or "regularly used."  Although the walkway
in question  was  not  designated for persons to go from one
place to another, it was  used  by miners daily to carry out
inspections of the belt conveyors.   Accordingly, it clearly
falls within the definition of a travelway  as  set forth in
section 56.14000, supra.  Hence, it follows that  the  cited
conveyor   belts   are   within   the   purview  of  section
56.14109(a), supra.

     I find that there is  not  any  merit  to  Nolichuckey's 
argument that since in the past MSHA has not cited it for the
conditions at issue, and has  allowed  the  conveyors  to be
considered guarded based upon the height of the 42-inch belt
structure,  the  Secretary should be estopped from presently
enforcing section  56.14109(a),  supra, against Nolichuckey.
I find that although the failure in  the  past  of  MSHA  to
enforce  section 56.14109(a), supra, against Nolichuckey has
a bearing on the level of Nolichuckey's negligence and hence
the  level  of  a  penalty  to  be  assessed,  it  does  not
constitute  a  defense  to  the issuance of the citations at
issue.  Aside from stipulations  that  Nolichuckey  had been
told by MSHA inspectors that a 42-inch belt structure  would
constitute  a  guard,  and  that  MSHA had not issued it any
citations  for  violations  of  section 56.14109(a),  supra,
there  is  no  evidence  that  any such  MSHA  "policy"  was
incorporated  as  part  of its official  policy  manual,  or
promulgated pursuant to notice,  and  normal APA rule making
procedures.  Accordingly, any past practices by MSHA are not
binding in litigation before the Commission.   In  the  same
fashion, the lack of previous enforcement does not support a
claim  of  estoppel (See, Secretary of Labor v. Walker Stone
Company, Inc.,  16 FMSHRC 337, 359 (Judge Koutrus) (February
16, 1994), and cases  cited therein.  See also, Emery Mining
Corporation v. Secretary  of  Labor,  744  F  2nd 1411, 1416
(Tenth  Cir.  1984)  affirming  Emery  Mining Corporation  5
FMSHRC 1400 (August 1983).

     MSHA's past practices of not citing the belts at issue 
might have been based upon a rationale that a  42-inch  belt
structure  constitutes  a  guard  within  the   meaning   of
section 56.14109(a),  supra,  and  that  no  stop  device or
railing is required.  However, I note that there is  nothing
in the language of section 56.14109(a) which in any way even
suggests   such   an   exception  (See,  Hinkle  Contracting
Corporation, 12 FMSHRC 431, 433 (Judge Melick) (March 1990).
Moreover,  as  explained by  Hobbs,  the  42-inch  structure
itself would not  prevent  one from falling against the belt
because there is approximately  12  inches  between the belt
structure  and  the  top  of  the belt, and that accordingly
someone falling could fall onto  the  moving  rollers or the
belt itself.  Nolichuckey does not dispute these  distances.
I  therefore  accept  Hobbs testimony in these regards,  and
find that the structure  itself would not adequately guard a
stumbling or falling miner from falling against the belt.

     Lastly, Nolichuckey argues, in essence, that if it were
to be  required to comply with section 56.14190(a), supra, a
greater  hazard would be created for miners.  It argues that
the   vedio    demonstration,    Petitioner's   Exhibit   1,
specifically demonstrates that installing  a  railing on top
of the 42-inch truss changes what is now a safe  and routine
roller  changing procedure "into an opportunity for  falling
from the  conveyor."   This  defense  is also without merit.
The  Commission,  in  Sewell Coal Co., 5 FMSHRC  2026,  2029
(December  1983),  held,  in  essence,  that  a  defense  of
"diminution of safety,"  is  not  available  to  an operator
unless   the   operator  had  first  filed  a  petition  for
modification,  and   that  the  Secretary  had  granted  the
modification,  but  nonetheless  continued  the  enforcement
proceedings.  Since no  evidence  was  presented  here  that
these  conditions have been met, I find that Nolichuckey can
not raise  the  defense  of  diminution of safety before the
Commission at this time.

     Therefore, for all the above reasons, I conclude that the
citations in these cases were properly issued, and shall  be
affirmed.

                              ORDER

     It is ORDERED that the citations issued in these proceedings
shall  be  AFFIRMED  as  written, and the Notices of Contest
shall be DISMISSED.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:

Tom Bewley, President, Nolichuckey Sand Company, Inc., 1980 
Greystone Road, Greeneville, TN 37743 (Certified Mail)

Thomas A. Grooms, Esq., Office  of the Solicitor, U. S. 
Department of Labor, 2002 Richard Jones Road, Suite B-201, 
Nashville,  TN  37215-2862 (Certified Mail)

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