<DOC>
[DOCID: f:w-93-452.wais]

 
LAKEVIEW ROCK PRODUCTS, INC.
August 21, 1995
WEST 93-452-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3993/FAX 303-844-5268


                           August 21, 1995

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. WEST 93-452-M
               Petitioner     :  A.C. No. 42-01975-05504
                              : 
          v.                  :  Lakeview Rock Products
                              :
LAKEVIEW ROCK PRODUCTS, INC., :
               Respondent     :
                                
                               DECISION
                                
Appearances:  Ann Noble, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Gary V. Smith, North Salt Lake City, Utah,
              for Respondent.

Before:  Judge Cetti

     This case is before me upon a petition for assessment 
of civil penalties under section 105(d) of the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et 
seq., the "Act".  The Secretary of Labor on behalf of the 
Mine Safety and Health Administration (MSHA), seeks civil 
penalties from Respondent Lakeview Rock Products, Inc., 
("Lakeview") for the alleged violation of four mine safety 
standards found in Part 56, Title 30, Code of Federal
Regulations.

     Lakeview filed a timely answer contesting the 
existence of each of the violations and the assessment of 
penalties. Pursuant to notice to the parties the case was 
heard at Salt Lake City, Utah.  Oral and documentary 
evidence was presented and the matter submitted for 
decision.

                             Stipulations

          At the hearing the parties entered the following 
     stipulations into the record:

          1.  Lakeview Rock Products, Inc., is engaged in
     mining and selling of sand and gravel in the United 
     States and its mining operations affect interstate 
     commerce.

          2.  Lakeview Rock Products, Inc., is the owner 
     and operator of Lakeview Rock Products, Inc., MSHA 
     I.D. No. 42-01975.
     
          3.  Lakeview Rock Products, Inc., is subject to 
     the jurisdiction of the Federal Mine Safety and 
     Health Act of 1977, 30 U.S.C. � 801 et seq. ("the 
     Act").

          4.  The Administrative Law Judge has 
     jurisdiction in this matter.

          5.  The subject citations were properly served 
     by a duly authorized representative of the Secretary 
     upon an agent of respondent on the dates and places 
     stated therein, and may be admitted into evidence for 
     the purpose of establishing their issuance, and not 
     for the truthfulness or relevancy of any statements 
     asserted therein.

          6.  The exhibits to be offered by Respondent and 
     the Secretary are stipulated to be authentic but no 
     stipulation is made as to their relevance or the 
     truth of the matters asserted therein.

          7.  The operator demonstrated good faith in 
     abating the violations.

          8.  Lakeview Rock Products, Inc., is a small 
     mine operator with 8,720 hours of work in 1992.

          9.  The certified copy of the MSHA Assessed 
     Violations History accurately reflects the history of
     this mine for the two years prior to the date of the 
     citations.

         10.  The issue regarding Citation No. 4120260 is 
     whether a portion of the berm at the grizzly was 
     missing or inadequate.

         11.  A ramp ran from the plant area to the 
     primary plant feed.  Tracked vehicles used this ramp.  
     The issue with regard to Citation No. 4120281 is 
     whether the berms for the ramp were improperly 
     missing or inadequate.

         12.  The V-belt drive and feeder chain on the 
     primary crusher were not guarded at the time of the 
     inspection.  The issue, with regard to Citation No. 
     4120282, is whether such guarding was required.

         13.  The tail pulley on the stacker conveyor belt 
     was not guarded at the time of the inspection.  The 
     issue, with regard to Citation No. 4120283, is 
     whether such guarding was required. Citation
     No. 4120260

     This citation alleges a violation of 
     30 C.F.R. � 56.8300(a). The citation reads as
     follows:

            The berm at the primary grizzly was not 
          maintained in a condition to prevent equipment
          from dropping over the retaining wall.  A 10-
          foot section of the berm was missing on the 
          south side of the approach.

            It is unlikely that a vehicle would drop over
          the retaining wall, since the missing berm was
          located near the grizzly and the equipment was
          nearly stopped at that point.

     The cited safety standard provides:

            (a) Berms or guardrails shall be provided and
          maintained on the banks of roadways where a drop-
          off exists of sufficient grade or depth to cause
          a vehicle to overturn or en- danger persons in
          equipment.

     Inspector Pennington testified that he observed a 
     rubber tired front-end loader pick up material and 
     carry it to the primary grizzly.  The approach to 
     this grizzly had a berm consisting of a retaining 
     wall constructed with dirt and concrete blocks.  The 
     purpose of the berm was to protect vehicles and
     machinery using this approach from the hazard of a 10
     to 13 foot drop-off.  Inspector Pennington testified 
     there was a 10-foot section with no berm along the 
     south side of the approach.   Pennington conceded 
     that it was unlikely that a vehicle would drop over 
     the edge since the missing section of berm was 
     located near the grizzly where the front-end loader
     bringing material to dump in the grizzly slows to a
     near stop.

     Respondent presented evidence that the loader was 
     wider than the missing 10-foot section of berm and 
     that an accident was unlikely.  Respondent promptly 
     abated the violation within 20 minutes after the 
     citation was issued.

     I find there was a violation of the cited safety 
     standard; that there was no reasonable likelihood 
     that the hazard contributed to would result in an 
     injury.  Since injury was unlikely, the inspector 
     properly issued the citation as a 104(a) violation 
     that was not significant and substantial.

          Upon consideration of the penalty criteria set 
     forth in section 110(a) of the Act I find the MSHA 
     proposed penalty of $50.00 is the appropriate penalty 
     for this non-S&S, 104(a) violation of this safety 
     standard.

     Citation No. 4120281

     This citation also alleges a violation of 30 C.F.R.
     � 56.900(a) regarding berms.  The citation reads as 
     follows:

            A 50-foot section of the berm was missing from
          the ramp.  The missing berm was located on the
          south side of the ramp and the maximum drop-off
          was approximately 10 feet.  The drop-off was a
          gradual slope and it is un-likely that a serious
          injury would occur if a vehicle should leave the
          roadway.

     Inspector Pennington testified that there was a 50-
     foot section without a berm near the bottom half of 
     the 100-foot long ramp.  The ramp extended from the 
     bottom area of the pit to the primary feeder located 
     at a higher level.  There was a 10-foot drop from the 
     edge of the ramp along the section that was cited for 
     not having a berm.

     On cross-examination, the inspector agreed that the 
     ramp was used only occasionally and that the drop-off 
     was not vertical. The drop-off was sloped two to one.  
     The inspector conceded that injury was unlikely.

     The evidence presented established a violation of the 
     cited safety standard.  The inspector properly 
     evaluated the violation as non-significant and 
     substantial and Respondent's negligence was moderate.  
     I have considered the statutory criteria in section 
     110(a) of the Act and find that the MSHA $50.00 
     proposed penalty is the appropriate penalty for this
     non-S&S violation of the cited safety standard.
                      
     Citation No. 4120282

          This citation alleges a violation of 30 C.F.R.
     � 56.14107(a).

     The citation reads as follows:

            The V-belt drive and feeder chain was not
          guarded on the primary crusher.  The exposed
          pinch points were located 4 feet from a 
          travelway and 5 feet above the ground.

            Employees do not enter into this area when the
          plant is running.  Their (sic) is a danger of
          being struck by falling rock from the grizzly
          located above the feeder.  Employees are aware 
          of the hazards and stay out of the area.

     30 C.F.R. � 56.14107 subsections (a) and (b) provide 
     as follows:

          � 56.14107 Moving machine parts.

            (a) Moving machine parts shall be guarded to
          protect persons from contacting gears, 
          sprockets, chains, drive, head, tail, and takeup 
          pulleys, flywheels, couplings, shafts, fan 
          blades, and similar moving parts that can cause 
          injury.

            (b) Guards shall not be required where the
          exposed moving parts are at least seven feet 
          away from walking or working surfaces.

     Inspector Pennington testified that there was a 
     feeder chain and a V-belt drive on the primary 
     crusher.  Neither had a guard.  The exposed pinch 
     points were located four feet from a travelway and 
     five and one-half feet above the ground.  The 
     inspector acknowledged that if an employee were to 
     enter the area where he would be exposed to the 
     hazard of the pinch points there is a danger he 
     would be struck by falling oversize rocks.  These
     rocks fall down a distance of about 10-feet from the 
     top of the grizzly whenever the machinery is 
     operating.  Employees are aware of this hazard and 
     consequently never enter this area when the plant is 
     running.

     The inspector testified that the alleged violation 
     was abated not by guarding the pinch points but by 
     cleaning out the rock pile below the grizzly.  The 
     inspector freely admitted that when the rocks that 
     were piled on the ground below the grizzly were 
     cleaned out there was a distance of seven feet from 
     the ground to the pinch points.  The inspector 
     further explained that the rocks that had fallen from 
     the top of the grizzly had accumulated so that it 
     sloped up about five feet above ground level. The
     inspector took his four foot measurement from the top 
     of the rock pile to the pinch point.

     Scott Hughes, the pit manager, at the site for the 
     last 12 years was called by Respondent.  He testified 
     whenever the plant is operating there are rocks 
     falling 8 to 10 feet from the top of the grizzly to 
     the area below where the unguarded pinch points are 
     located.

     Mr. Hughes testified the pinch point on the V-belt
     and pulley drive and the chain feeder are 
     approximately 10 feet above the ground level.  No 
     employee has been in that area when the plant is 
     operating during the 12 years he has been at the pit.
     When Inspector Pennington showed up for the 
     inspection, Respondent shut everything down
     including all the machinery so Mr. Pennington could 
     conduct his inspection without any interference.

     At the end of each shift the rocks below the pinch 
     points are cleaned out by use of a rubber tired 
     loader with full over-head protection.  There is no 
     manual cleaning of the area below the pinch points.

     Mr. Hughes also testified that the V-belt and chain 
     drive assembly are maintenance free.  They do not use 
     grease or any other lubricant.  He also stated that 
     to even try to get close to the pinch points an 
     employee would have to climb the rock pile on his 
     hands and knees and if he attempted to do this while
     the machinery was running he would also be exposed to
     the hazard of being struck by the oversize rocks 
     falling from the top of the grizzly.

     Subsection (b) of the 30 C.F.R. � 56.14107 clearly
     states that guards shall not be required where the 
     moving parts are at least seven feet away from 
     walking or working surfaces.  On the basis of the 
     testimony of both the inspector and plant manager 
     and also the photograph of the rocks below the pinch
     point introduced as Petitioner's exhibit 3, I find 
     the rock pile below the exposed pinch point is not a 
     "walking" or "working surface" within the meaning of 
     the cited safety standard.  The unguarded exposed 
     moving parts were at least seven feet from walking or 
     working surfaces and thus clearly falls within the 
     exclusion of the need to guard specified in 
     subsection (b) of the cited safety standard.  For 
     this reason Citation No. 4120282 is vacated.

     Citation No. 4120283

          This citation issued under 104(a) of the Act 
     alleges a violation of 30 C.F.R. � 56.14107(a).

     The citation reads as follows:

            The tail pulley on the stacker conveyor belt
          was not guarded.  This pulley was a smooth drum
          type and located approximately 3 feet above 
          the ground.  The exposed pinch point was created
          where the return conveyor belt meets the tail
          pulley.  It is unlikely that an incident would
          occur since employees do not enter the area when
          the plant is run- ning.  There is a fall of rock
          hazard from the primary grizzly located near-by.

     30 C.F.R. � 56.14107 subsection (a) and (b) provide 
     as follows:

          � 56.14107 Moving machine parts.

            (a) Moving machine parts shall be guarded to
          protect persons from contacting gears, sprockets,
          chains, drive, head, tail, and takeup pulleys,
          flywheels, couplings, shafts, fan blades, and
          similar moving parts that can cause injury.

            (b) Guards shall not be required where the
          exposed moving parts are at least seven feet 
          away from walking or working surfaces.

     It is undisputed that the tail pulley for the stacker 
     conveyor belt did not have a guard.  The tail pulley 
     was flat and the conveyor belt was 30 to 36 inches 
     wide.  There was an exposed pinch point between the 
     return conveyor belt and the tail pulley.  The
     inspector testified he believed it was unlikely that
     anyone would enter the area where they would be 
     exposed to the hazard of the unguarded pulley because 
     of the hazard of being hit by rocks falling down from 
     the top of the grizzly whenever the machinery is 
     operating.

     The cited violation was abated by installing a guard 
     over the tail pulley.  The inspector evaluated the 
     Respondent's negligence as moderate.

     On cross-examination the inspector testified that a 
     person could walk up to the unguarded tail pulley and 
     that his 3-foot measurement was taken from the ground 
     to the pinch point and not from the top of any 
     build-up.  This was confirmed by the notes he took 
     during his inspection.

     Mr. Smith, the plant manager, testified that he 
     believes the inspector took the 3-foot measurement
     from the top of the build-up to the tail pulley and 
     not from the ground.  He stated the pulley "is about 
     seven feet above the ground."

     I credit the testimony of Inspector Pennington and 
     find the cited safety standard was violated since the 
     tail pulley had no guard and the unguarded tail 
     pulley was less than seven feet from a walking 
     surface.  I also agree with the inspector that the 
     operator's negligence was no more than moderate. 
     Upon consideration of the statutory criteria in 
     section 110(i) of the Act I find the appropriate 
     penalty for this violation is the MSHA proposed
     penalty of $50.00.

                                ORDER

         Based upon the foregoing findings and conclusions 
     it is ORDERED that:

     1.  Citation No. 4120260 is AFFIRMED and a civil 
     penalty of $50.00 is assessed for this violation.

     2.  Citation No. 4120821 is AFFIRMED and a penalty of
     $50.00 is assessed.

     3.  Citation No. 4120282 along with its proposed 
     penalty is VACATED.

     4.  Citation No. 4120283 is AFFIRMED and a penalty of
     $50.00 is assessed.

     5.  RESPONDENT SHALL PAY a civil penalty of $150.00 
     to MSHA within 40 days of this decision.  Upon 
     receipt of payment this case is dismissed.


                              August F. Cetti
                              Administrative Law Judge


Distribution:

Ann Noble, Esq., Office of the Solicitor, U.S. Department 
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Mr. Gary V. Smith, LAKEVIEW ROCK PRODUCTS, INC., 900 North
Redwood Road, North Salt Lake, UT 84054  (Certified Mail)


/sh