<DOC>
[DOCID: f:w-94-373.wais]

 
KONITZ CONTRACTING, INC.
September 11, 1995
WEST 94-373-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                       
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268
                       
                       
                          September 11, 1995
                       
SECRETARY OF LABOR,        :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH   :
  ADMINISTRATION (MSHA),   :  Docket No. WEST 94-373-M
Petitioner                 :  A.C. No. 24-01450-05502 QYQ 
                           :
          v.               :  Docket No. WEST 95-76-M
                           :  A.C. No. 24-00936-05522
                           :
KONITZ CONTRACTING, INC.,  :  Docket No. WEST 95-77-M               
            Respondent     : A.C. No. 24-01813-05510
                           :
                           :  Zortman Mine; Konitz
                           :  Portable Crusher; Portable
                           :  Crusher No. 2

                               DECISION
                           
Appearances:   Kristi Floyd, Esq., Office of the 
               Solicitor, U.S. Department of Labor, Denver,
               Colorado, for Petitioner;
               William E. Berger, Esq., Wilkins & Berger,
               Lewistown, Montana, for Respondent.

Before:   Judge Manning

     These cases are before me on petitions for assessment
of civil penalty filed by the Secretary of Labor, acting 
through the Mine Safety and Health Administration ("MSHA"),
against Konitz Contracting, Inc. ("Konitz"), pursuant to
sections 105 and 110 of the Federal Mine Safety and Health 
Act of 1977, 30 U.S.C. �� 815 and 820.  The petitions 
allege five violations of the Secretary's safety 
regulations.  For the reasons set forth below, I affirm 
the citations and assess penalties in the amount of
$175.00.

     A hearing was held on April 20, 1995, in Billings, 
Montana. The parties presented testimony and documentary 
evidence, but waived post-hearing briefs.

     I.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS 
     OF LAW

     A.  Docket No. WEST 94-373-M

     On November 4, 1993, MSHA Inspector Richard S. 
     Ferreira inspected Konitz's operation at the Zortman 
     Mine in Phillips County, Montana.  He issued Citation 
     No. 4331677 alleging that Konitz failed to submit to 
     MSHA for approval a training plan for its miners at 
     the Zortman Mine.  The safety regulation cited, 
     30 C.F.R. � 48.23, provides that each mine operator 
     must have an MSHA approved training plan for its
     employees before mining commences.  The inspector 
     determined that the violation was not serious, was 
     not of a significant and substantial nature ("S&S"), 
     and was caused by Konitz's moderate negligence.

     At the time the citation was issued, Konitz was an 
     independent contractor at the Zortman Mine, a surface 
     gold mine. Konitz produced crushed rock with a 
     portable crusher for use at the mine.  Before Konitz 
     began operating at the mine in early October 1993, 
     employees of Zortman advised Tom Konitz, the owner, 
     that MSHA training would be required for Konitz's
     employees. Mr. Konitz called the local MSHA field 
     office about the training requirements and was 
     referred to Mr. Rodric Breland, the MSHA District 
     Manager, in Denver, Colorado.  Mr. Breland referred 
     Mr. Konitz to Robert Koenig, an MSHA specialist in 
     the Denver office.  Mr. Konitz described the nature 
     of the work that Konitz would be performing at the 
     Zortman Mine and Mr. Koenig told him what training 
     that would be required. (Tr. 135-36).  After Mr. 
     Konitz obtained additional advice from Zortman 
     employees, Konitz trained the four employees that 
     would be operating the portable crusher at the mine
     site.  The training lasted about eight hours.

     As a result of his conversations with Mr. Breland and
     Mr. Koenig, Mr. Konitz received a letter from Mr. 
     Breland setting forth the training that would be 
     required.  (Ex. G-2). The letter states, in part:  
     "the following determination was made regarding 
     training requirements for your employees working at 
     Zortman:  If your employees are experienced at their 
     particular jobs ... they can be trained as `Newly
     employed experienced miners' (48.26)."  Id.  MSHA
     officials did not advise Mr. Konitz, either over the 
     telephone or in the letter, that Konitz was required 
     to submit a written training plan for MSHA's approval.

     Konitz has never operated at a metal mine or a coal 
     mine.  It normally operates its portable crushers at 
     locations that are separate from other mines.  These 
     operations are subject to MSHA's training regulations 
     at 30 C.F.R. � Part 48, but MSHA is not permitted to 
     enforce these requirements at Konitz's other 
     facilities because of a provision in the Federal 
     budget.[1]  As a consequence, Konitz has never been 
     cited for failing to submit training plans at its 
     other operations.

     Konitz abated the violation by conducting an 
     additional eight hour training class.  Both classes 
     were taught by Ken Bowser, the crusher operator.  He 
     testified that the training was essentially the same 
     in both sessions.  The miners involved had previously 
     operated this portable crusher.

     I find that Konitz violated section 48.23 because the 
     operator did not have an approved training plan in 
     place at the time of the inspection.  The Commission 
     and courts have held that the Mine Act is a strict 
     liability statute.  Asarco, Inc. v. 
     FMSHRC, 868 F.2d 1195 (10th Cir. 1989).  I further 
     find that the violation was not serious because the 
     miners had received the same basic training during 
     its unapproved training session.  I find that Konitz 
     negligence was very low because Konitz relied on the 
     advice of MSHA officials in setting up its training 
     program.  These officials unintentionally misled
     Konitz into believing that the training it provided 
     complied with the requirements of Part 48.  No 
     mention was made of the need for a written, 
     pre-approved training plan.

     Section 110(i) of the Mine Act, 30 U.S.C. � 820(i), 
     sets out six criteria to be considered in determining 
     an appropriate civil penalty.  Based on this 
     criteria, I assess a nominal penalty of $5.00 for 
     this violation rather than the $400 penalty proposed 
     by MSHA.  Konitz was issued seven citations in the 24
     months preceding the inspection.  (Ex. G-1B).  I also
     find that Konitz is a small operator with 2,310 hours 
     of production in 1993. (Tr. 9).  I find that the 
     civil penalty assessed would not affect Konitz's 
     ability to continue in business and that the 
     violation was timely abated.

     B.  WEST 95-76-M

          1. Citation No. 4409808

     On July 26, 1994, Inspector Ferreira inspected 
     Konitz's Portable Crusher in Fergus County, Montana.  
     He observed a haulage truck traveling through an area 
     where he believed a 110 volt power cord was stretched 
     across the dirt.  He observed the alleged violation 
     while sitting in his truck some distance away.  
     (Ex. G-3).  He issued Citation No. 4409808 alleging 
     that a single phase, 110 volt extension cord was not 
     bridged or protected against mobile equipment.  The 
     safety standard, 30 C.F.R. � 56.12005, provides that 
     mobile equipment shall not run over power conductors 
     unless the conductors are properly bridged or 
     protected.  The inspector determined that the 
     violation was serious, was not S&S, and was caused by
     Konitz's low negligence.

     Konitz contends that the power cord was not located 
     where the haulage truck was traveling, but was in a
     different area. (Tr. 142-44).  The area that the 
     inspector observed was a haulage road.  Mr. Konitz 
     testified that the cord was not across the haulage 
     road.  Id.   He testified that the cord went to the 
     test shack and that the only vehicle that could run 
     over it "would be a pickup pulling up to the test 
     shack."  (Tr. 144).  Konitz abated the condition by 
     burying the electric cord.

     I find that Konitz violated the safety standard 
     because the electric cord was not protected.  
     Although it may have not been on the haulage road, it
     was located in an area where mobile equipment would 
     run over it.  The insulation on the cord could be 
     damaged by mobile equipment and an employee could 
     receive an electric shock.

     Taking into consideration the civil penalty criteria, 
     I assess a penalty of $20.00 for this violation.  I 
     find that the violation was moderately serious and 
     was caused by Konitz's low negligence.  My findings 
     for the remaining penalty criteria are the same as 
     discussed in WEST 94-373-M, except that this crusher 
     has a history of one citation in the 24 months 
     preceding the inspection. (Ex. G-1A).

          2.  Citation No. 4409809

     On the same date, Inspector Ferreira issued Citation 
     No. 4409809 alleging that a rotating shaft on the 
     Pioneer Crusher was not protected by a guard to 
     prevent employees from accidentally contacting the 
     shaft.  The cited safety standard, 
     30 C.F.R. � 56.14107(a) provides that moving machine 
     parts shall be guarded to protect persons from 
     contacting shafts and other moving parts that can 
     cause injury.  The inspector determined that the 
     violation was serious, was not S&S, and was caused 
     by Konitz's low negligence.

     Konitz contends that the equipment in question was 
     taken out of service two years prior to the date of 
     the hearing. (Tr. 145, 156).  The citation was issued
     to Orville Olson, the crusher operator.  Inspector 
     Ferreira testified that the citation was abated by 
     installing screening material around the shaft.  (Tr.
     39).  I credit the testimony of the inspector.  The 
     Pioneer crusher must have been removed from service 
     at a later date.

  **FOOTNOTES**

     Each year the Federal budget contains a provision 
  prohibiting the enforcement of MSHA's training 
  regulations at certain types of mines.  In fiscal year 
  1994, which included October 1993, the budget contained 
  the following language in the paragraph setting forth
  MSHA's appropriations:  "Provided, That none of the 
  funds appropriated under this paragraph shall be 
  obligated or expended to ... carry out that portion of 
  section 104(g)(1) of [the Mine] Act relating to the 
  enforcement of any training requirements, ... with
  respect to any sand, gravel, surface stone, surface 
  clay, colloidal phosphate, or surface limestone mine."  
  H.R. Doc. No. 3, 103d Cong., 1st Sess., Budget of the 
  United States Government, Fiscal Year 1994, at 
  Appendix-801 (1993). I find that Konitz violated the 
  cited safety standard because the rotating shaft was not 
  guarded.  An employee could be injured if he or his 
  clothing came in contact with the rotating shaft.  I 
  agree with the inspector that the violation was not S&S
  because there was not a reasonable likelihood that the 
  hazard contributed to by the violation would result in 
  an injury.  I also find that the violation was 
  moderately serious.  I affirm the inspector's finding 
  that the violation was caused by the operator's low 
  negligence.  Miners were in the area on an infrequent
  basis.  Taking into consideration the civil penalty 
  criteria, I assess a penalty of $30.00 for this 
  violation.

     C.  WEST 95-77-M

          1. Citation No. 4331679

     On November 17, 1993, Inspector Ferreira inspected
     Konitz's operation at the Zortman Mine in Phillips
     County, Montana.  He issued Citation No. 4331679 
     alleging that Konitz failed to have circuit breakers 
     or fuses for the electrical circuits at the crusher.  
     The cited safety standard, 30 C.F.R. � 56.12001, 
     provides that circuits shall be protected against 
     excessive overload by fuses or circuit breakers of 
     the correct type or capacity.  The inspector 
     determined that the violation was serious, was S&S, 
     and was caused by Konitz's low negligence.

     Konitz does not deny that the electrical equipment 
     was not protected by circuit breakers or fuses.  Mr. 
     Konitz testified that magnetic starters for the 
     equipment contained "heaters" (overcurrent devices)
     that adequately protected the circuits.  In addition, 
     he testified that MSHA has inspected this crusher 
     many times over the past ten years and never 
     mentioned that fuses or circuit breakers are required.
     He stated that he spent about $10,000 to install new 
     circuits on his two crushers. (Tr. 147-48).

     I find that Konitz violated the safety standard. Over-
     current devices in magnetic starters are designed to 
     protect motors from burning out, not to protect 
     employees from electric shock, and these devices do 
     not meet the safety standard.  The portable crusher 
     is moved around and also vibrates during operation. 
     (Tr. 47-49).  The material being crushed is very 
     abrasive and it gets into electrical boxes and other 
     components.  The protective layer around power 
     conductors could wear through, causing a phase-to-
     phase fault.  Id.  Fuses and circuit breakers will
     open the circuit in the event of a fault.

     I also find that the violation was serious and S&S.  
     The evidence establishes that there was a reasonable
     likelihood that the hazard contributed to would 
     result in an injury of a reason-ably serious nature.  
     Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  I 
     recognize that Konitz has never had an electrical 
     injury at its crushers, but assuming continuing 
     normal mining operations, it was likely that an 
     injury or a fatality would occur.  I affirm the 
     inspector's determination that the violation was 
     caused by Konitz's low negligence.

     Taking into consideration the civil penalty criteria,
     I assess a penalty of $60.00 for this violation.  My 
     findings for the remaining penalty criteria are the 
     same as discussed in WEST 94-373-M, above.

          2.  Citation No. 4409807

     On July 19, 1994, Inspector Ferreira inspected 
     Konitz's Portable Crusher No. 2 in Fergus County, 
     Montana.  He issued Citation No. 4409807 alleging 
     that an employee was shoveling spilled material out 
     from under the unguarded self-cleaning tail pulley on
     the jaw crusher.  The safety standard, 
     30 C.F.R. � 56.14107(a), provides that moving machine 
     parts shall be guarded to protect persons from 
     contacting tail pulleys and other moving parts that 
     cause injury.  The inspector determined that the 
     violation was serious, was S&S, and was caused by 
     Konitz's low negligence.

     Konitz does not deny that a guard was not present but
     argues that a hazard was not created because the tail 
     pulley was underneath the jaw crusher.  The inspector 
     observed a man reaching with a shovel under the 
     crusher.  Mr. Konitz testified that the most that 
     could happen is that the shovel would be pulled out 
     of the employee's hand.  The pinch point of the tail 
     pulley was about two and one half feet from the edge 
     of the crusher.  (Tr. 129-30; Ex. J-1).  The inspector
     testified that the hands of the man who was shoveling 
     were only inches from the tail pulley. All witnesses 
     agreed that a hazard is presented if an employee's
     hands come within inches of the tail pulley. Given 
     that the edge of the pulley was only a few feet away 
     from the bottom edge of the crusher and the inspector 
     saw an employee shoveling under the crusher, I find
     that the Secretary established a violation of the
     safety standard.

     I also find that the violation was serious and S&S.  
     The evidence establishes that there was a reasonable
     likelihood that the hazard contributed to would 
     result in an injury of a reason-ably serious nature, 
     assuming continuing normal mining operations.  Anyone 
     shoveling under the crusher while the conveyor was 
     operating could be seriously injured.  I affirm the 
     inspector's determination that the violation was 
     caused by Konitz's low negligence.  Taking into 
     consideration the civil penalty criteria, I assess a
     penalty of $60.00 for the violation.

                    II.  CIVIL PENALTY ASSESSMENTS

     The citations are affirmed, as set forth above, and 
     the following penalties are assessed:
                                                   Assessed
     Citation Nos.           30 C.F.R. �           Penalty

       4331677 48.23                                $ 5.00
       4409808 56.12005                              20.00
       4409809 56.14107(a)                           30.00
       4331679 56.12001                              60.00
       4409807 56.14107(a)                           60.00

                                   Total Penalty   $175.00

                             III.  ORDER
                                        
     Accordingly, the above-listed citations are AFFIRMED
     and Konitz Contracting, Inc. is ORDERED TO PAY the 
     Secretary of Labor the sum of $175.00 within 40 days 
     of the date of this decision.
                 

                              Richard W. Manning
                              Administrative Law Judge
                 

Distribution:

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

William E. Berger, Esq., WILKINS & BERGER, P.O. Box 506, 
Lewistown, MT 59457 (Certified Mail)

RWM