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[DOCID: f:w-95-220.wais]
A.M. WELLES, INC.,
May 10, 1996
WEST 95-220-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 10, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-220-M
Petitioner : A.C. No. 24-01951-05508 :
:
v. : Red Pioneer Portable Crusher
:
A.M. WELLES, INC., :
Respondent :
DECISION
Appearances: Kristi Floyd, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner; Alfred Hokanson,
President, A.M. Welles, Inc., Norris, Montana,
for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against
A.M. Welles, Inc. ("A.M. Welles"), pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. �� 815 and 820. The petition alleges two violations
of the Secretary's safety regulations. Orders of withdrawal were
issued under sec- tion 104(b) of the Mine Act alleging that A.M.
Welles failed to timely abate the cited conditions. For the
reasons set forth below, I affirm the citations and orders, and
assesspenalties in the amount of $330.00.
A hearing was held in Butte, Montana. The parties presented
testimony and documentary evidence, but waived
post-hearing briefs.
I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.M. Welles operates the Red Pioneer Portable Crusher. It
is a very small operation that recorded about 4,360 hours worked
in 1993. It has a history of four citations in the two years
preceding the inspection in this case.
A. Citation No. 4405454
On May 12, 1994, MSHA Inspector Ronald Goldade inspected the
Red Pioneer Portable Crusher. At the time of his inspection
the crusher was at the Belgrade Pit near Bozeman, Montana.
He issued Citation No. 4405454 alleging that the guard on
the fin type tail pulley on the product discharge conveyor
system needed to be extended on the sides of the conveyor
frame. The citation states that the existing guard needed
to be extended about ten inches to provide sufficient
coverage of the moving machine parts. The ci- tation
alleges a violation of 30 C.F.R. � 56.14107(a). Inspector
Goldade determined that it was unlikely that anyone would be
injured and that the violation was not of a significant and
sub-stantial nature ("S&S"). A guard was present at the
time of the inspection, but the inspector did not believe
that it provided sufficient protection against the moving
parts. The safety standard states that "moving machine
parts shall be guarded to protect persons from contacting
... head, tail, and takeup pul- leys, ... and similar moving
parts that can cause injury."
The tail pulley was about two feet above the ground. (Tr.
12; Ex. G-2). Inspector Goldade testified that he was
concerned that someone could inadvertently come in contact
with the moving pulley when cleaning around the area. (Tr.
13). He determined that the negligence was moderate because
the violation was obvi- ous. (Tr. 14). The conveyor had
been recently purchased and the existing guard was installed
by the manufacturer. (Tr. 14;
Ex. G-2).
Inspector Goldade discussed the condition with William Haug-
land, the crusher superintendent, and told him that it
should be abated by 8:00 a.m. on May 16, a period of four
days. (Tr. 15). The inspector also wrote that abatement
date on the citation. The condition could have been abated
by welding or wiring old screening material over the open
area. (Tr. 16). He estimated that it would take an hour to
abate the condition. Neither Mr. Haugland nor anyone else from
A.M. Welles told the inspector that the time set for abatement
was too short.
On August 1, 1994, MSHA Inspector Seibert Smith inspected
the crusher, which had been moved to a pit near Big Sky,
Montana. He issued Order No. 4410028 under section 104(b) of
the Mine Act because he believed that the condition
described in Citation No. 4405454 had not been abated. The
order states that no apparent effort was made by the
operator to extend the guard to cover the moving parts of
the fin type tail pulley on the product discharge conveyor
under the pioneer crusher by the termination due date of May
16, 1994. He issued the order to Mike Nunn, who did not
know anything about the citation. (Tr. 32). Inspector
Smith left the mine shortly thereafter. When he returned on
August 5 a guard made of solid metal and screening was in
place, so he terminated the order. (Tr. 33).
A.M. Welles contends that the conveyor pulley observed by
Inspector Smith on August 1, was not the same pulley that
Inspec-tor Goldade cited on May 12. (Tr. 46-50, 60). It
states that it abated the citation issued by Inspector
Goldade and that the withdrawal order issued by Inspector
Smith was for a different conveyor at the crusher. Id. Mr.
Haugland and Alfred Hokanson, President of A.M. Welles,
believe that they abated the condition cited by Inspector
Goldade before August 1, 1994.
I credit the testimony of Inspectors Goldade and Smith, and
find that the condition cited on May 12 had not been abated
on August 1. Inspector Smith testified that the tail pulley
he observed was the same pulley that was cited by Inspector
Goldade and that no abatement effort had been made. (Tr.
63).
An MSHA inspector is authorized to issue an order under
section 104(b) of the Mine Act if he determines on a
subsequent inspection that: (1) the violation described in
the citation has not been totally abated within the period
of time originally fixed in the citation; and (2) the period
of time for abatement should not be further extended. Upon
discovering a failure to abate, an inspector must apply a
rule of reason in determining whether to issue a section
104(b) order or to extend the abate- ment time. Martinka
Coal Co., 15 FMSHRC 2452 (December 1993).
I find that Inspector Smith did not abuse his discretion in
issuing the order. Accordingly, I affirm the citation and
the order.
Ordinarily, an operator's failure to timely abate a citation
warrants a substantially greater penalty than the citation.
An unabated violation presents a potential threat to the
safety and health of miners. When an inspector does not
require that the condition be abated on the day of the
inspection, it is important for the mine operator to abate
it within the reasonable period of time set forth in the
citation. If the operator fails to do so a significantly
higher penalty is warranted.
With respect to this violation, however, I believe that
there are several mitigating circumstances that compel a
reduc-tion in the penalty. I find that A.M. Welles
genuinely believed that it corrected the condition cited by
Inspector Goldade within the time set for abatement. A
number of other guarding citations were issued during the
same inspection and A.M. Welles believed that it abated all
of them. I credit the testimony of Mr. Haug- land that it
is the practice of A.M. Welles to immediately cor- rect
conditions found by MSHA inspectors. (Tr. 50, 70). I
believe that this citation inadvertently fell between the
cracks, in part because of the fact that different names are
often used for the same conveyor. Apparently, A.M. Welles
often refers to the conveyor cited by Inspector Goldade as
the "stacking convey- or" rather than the product discharge
conveyor. (Tr. 46).
MSHA proposed a penalty of $1,500.00. The Commission is not
bound by the MSHA's penalty assessment regulations or
practices. The Commission assesses penalties de novo by
applying the statu-tory criteria set forth in section 110(i)
of the Mine Act to the evidence of record. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (March 1983), aff'd 736 F.2d
1147, 1151-52 (7th Cir. 1994). I agree with Inspector
Goldade that the violation was not S&S. There is no
dispute that A.M. Welles is a small operator and that it has
a history of only four prior violations. I find that the
gravity was low. With respect to the citation, I find that
the negligence of A.M. Welles was not as great as the
inspector be-lieved. The cited equipment was new, had been
recently pur-chased, and was extensively guarded by the
manufacturer. It was not unreasonable for A.M. Welles to
have relied on this guarding. Based on the criteria in
section 110(i), I find that a penalty of $130.00 is
appropriate.
B. Citation No. 4405457
On May 12, 1994, Inspector Goldade issued Citation No.
4405457 to A.M. Welles at the Red Pioneer Portable Crusher
alleg-ing that a guard was not provided around the
alternator and V-belt drive for the cooling drive motor on
the Caterpillar gener-ator. The citation was issued at the
Belgrade Pit and charged a violation of 30 C.F.R. �
56.14107(a) The citation states that the height of the
contact area is between two and five feet above the ground,
and the pinch point was within four inches of the motor
frame and two feet of the throttle control. The citation
further alleges that employees are exposed to the hazard on
a daily basis.
Inspector Goldade testified that he measured the distances
set forth in the citation with a tape measure. (Tr. 20).
He testified that an employee would have to start and stop
the gen- erator at least once a day and would be exposed to
the hazard created by the pinch points of the V-belt drives
if he were to trip or stumble. (Tr. 21-22). The only guard
present on the generator was around the fan blades. (Tr.
23; Ex. G-4). The inspector determined that the violation
was S&S because, based on his experience, it was reasonably
likely that someone would even- tually be injured by the
unguarded V-belt drives. (Tr. 23). He determined that the
violation was caused by A.M. Welles' moderate negligence
because the condition was clearly visible.
Inspector Goldade discussed the citation with Mr. Haugland
and required abatement by May 16. (Tr. 24). The inspector
be- lieved that the condition could be abated with a
fabricated guard in a couple of hours. Id. Mr. Haugland
did not tell the inspec- tor that the time for abatement was
too short. Id.
On August 1, 1994, Inspector Smith inspected the crusher af-
ter it had been moved to another pit near Big Sky, Montana.
He issued Order No. 4410029 under section 104(b) of the Mine
Act be- cause he believed that the condition described in
Citation No. 4405454 had not been abated. The order states
that a guard was not installed on the alternator and V-belt
drive system by the termination due date of May 16. The
generator was running and Mike Nunn did not know anything
about the citation. (Tr. 36). When Inspector Smith
returned on August 5 a guard made of solid metal and
screening was in place, so he terminated the order. (Tr.
36-38: G-5).
A.M. Welles contends that it abated the citation before the
generator was moved from Belgrade to Big Sky by installing a
solid metal guard in front of the cited area. (Tr. 41, 45,
51-52, 70-72). It contends that it merely added some
screening material after Inspector Smith issued the order on
August 1. (Tr. 45, 51-54).
I credit the testimony of Inspectors Goldade and Smith, and
I find that the condition cited on May 12 had not been
totally abated on August 1. Inspector Smith testified that
he did not observe any guard on August 1. (Tr. 63, 65-66).
Messrs. Haug-land and Hokanson testified that part of the
guard was installed prior to the time the generator was
moved to Big Sky. In any event, there is no question that
additional guarding material was installed after August 1
and the order was terminated on Au gust 5. I find that
Inspector Smith did not abuse his discretion in issuing the
order. Accordingly, I affirm the citation and the order.
I also affirm 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).
MSHA proposed a penalty of $2,200.00. As stated above, an
operator's failure to abate a citation generally mandates a
high penalty. In this instance, however, I believe that
there are mitigating circumstances. With respect to the
citation, I find that the negligence of A.M. Welles was not
as great as the in-spector believed. The record as a whole
makes clear that A.M. Welles tries in good faith to quickly
abate all citations. Its managers genuinely believed that
they had abated the cited con-dition. I have also taken
into consideration that the violation created a serious
safety hazard and A.M. Welles is a small oper-ator with a
history of four previous violations. Based on the civil
penalty criteria, I assess a penalty of $200.00 for this
violation.
II. ORDER
Accordingly, the citations and section 104(b) orders of
withdrawal are AFFIRMED and A.M. Welles, Inc. is ORDERED TO
PAY the Secretary of Labor the sum of $330.00 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)
Alfred Hokanson, President, A.M. WELLES, P.O. Box 8, Norris, MT
59745
(Certified Mail)
RWM