.
HOBERT MINING, INC.
February 24, 1997
WEVA 96-77


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


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


                        February 24, 1997

SECRETARY OF LABOR,              :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :    Docket No. WEVA 96-77
               Petitioner        :    A. C. No. 46-02249-03602
                                 :
          v.                     :
                                 :    No. 7 Surface Mine
HOBET MINING, INC.,              :
               Respondent        :


                             DECISION

Appearances:  James F. Bowman, Conference and
              Litigation
              Representative, U. S. Department of Labor,
              Mine Safety and Health Administration, Mount Hope,
              West Virginia, for the Secretary;
              David J. Hardy, Esq., Jackson & Kelly, Charleston,
              West Virginia, for Respondent.

Before:  Judge Maurer

                      STATEMENT OF THE CASE

     In this case, the Secretary of Labor seeks the assessment of
a civil penalty against the respondent for an alleged violation
of 30 C.F.R. � 77.404(a).[1]  Pursuant to notice, the case was
heard in Beckley, West Virginia, and the parties have filed post
hearing briefs which I have considered in the course of my
adjudication of this matter.

             The issues presented in this case are:

     1.  Whether the condition or practice cited by the inspector
     constitutes a violation of the cited mandatory safety
     standard,

     2.  whether the alleged violation was "significant and
     substantial" ("S&S") and

     3.  in the case a violation is found, what is the
     appropriate civil penalty to be assessed.

                          STIPULATIONS

     The parties stipulated to the following (Joint Exhibit
     No. 1):

      1.  The Administrative Law Judge and the Federal Mine
     Safety and Health Review Commission have jurisdiction to
     hear and decide this civil penalty proceeding pursuant to
     section 105 of the Federal Mine Safety and Health Act of
     1977.

      2.  Hobet Mining Incorporated is the owner and operator of
     the No. 07 Surface Mine.

      3.  Operations of the No. 07 Surface Mine are subject to
     the jurisdiction of the Act.

      4.  Hobet Mining Incorporated may be considered a large
     mine operator for purposes of 30 U.S.C. � 820(i).

      5.  The maximum penalty which could be assessed for this
     violation pursuant to 30 U.S.C. � 820(a) will not affect the
     ability of Hobet Mining Incorporated to remain in business.

      6.  The inspector was acting in his official capacity as an
     authorized representative of the Secretary of Labor when he
     issued Citation No. 4640244.

      7.  A true copy of the citation listed in paragraph 6 was
     served on Hobet Mining Incorporated or its agent as required
     by the Act.

      8.  The citation listed in paragraph 6 is authentic and may
     be admitted into evidence for the purpose of establishing
     its issuance and not for the purpose of establishing the
     accuracy of any statements asserted therein.

      9.  MSHA's Proposed Assessment Data Sheet accurately sets
     forth (a) the number of assessed penalty violations charged
     to the Hobet Mining Incorporated 07 Surface Mine for the
     period from January 1993 through July 1996 and (b) the
     number of inspection days per month for the period from
     January 1993 through January 1996.

     10.  MSHA's Assessed Violations History Report, R-17 report,
     may be used in determining appropriate civil penalty
     assessments for the alleged violation.

     11.  The platform and handrail described in the citation
     were not mounted on the Caterpillar D-10 equipment.

              FINDINGS, CONCLUSIONS, AND DISCUSSION

     On November 28, 1995, MSHA Inspector Tyrone L. Stepp issued
     section 104(a) Citation No. 4640244 to Hobet Mining, Inc.
     (Hobet) alleging that:

          The Caterpillar D 10 N (Co. No. 115959) existed
     with the platform & handrail missing from the left
     side - (mounted near the radiator).

     Hobet acknowledges that the platform and handrail described
in the citation were not, in fact, mounted on the subject
Caterpillar D-10 equipment at the time the inspector saw it.
(Joint Stipulation No. 11).  They had apparently been knocked off
the bulldozer at some undetermined time during the course of
mining close to the highwall.  There is also no dispute that the
platform and handrail needed to be replaced and would have been
replaced at some point, with or without the citation.

     The real question in this case is what effect that has on
safely operating the bulldozer in the meantime.  The company's
position is that the missing parts did not present a hazard
per se, but rather only to those maintenance personnel who needed
to stand on the platform to service the radiator.  Therefore,
unless and until radiator maintenance was required, the bulldozer
could remain in service.  At the point in time that such access
to the radiator was needed, the bulldozer would then have to be
taken out of service until the platform was replaced and the
radiator service completed.

     I do not believe there is any question that there were
several safe means of getting on and off the bulldozer without
the missing platform and handrails described in the subject
citation.  Most obviously, operating personnel could simply get
on or off the equipment from the other side, the right side, for
instance.  Once safely aboard the bulldozer, the operator, of
course, would have no use for the missing pieces and could
continue to safely run the equipment.  Whenever he wanted to shut
down operation and get down from the bulldozer, he could depart
the same way he got aboard, e.g., down the right side.

     The platform and associated handrail are only required when
it becomes necessary to check the radiator coolant level or
otherwise examine and service the radiator.  There is some
dispute in the record as to when and how often this need arises.
It is variously described as being as long as every 10 to 11 days
or as short a time period as every other day.  Whichever time
period is in fact closer to the truth is not important to the
primary issue in this case as I view it.

     I find as a fact that the missing platform and handrail
assembly from the left side of the D-10 bulldozer is primarily
utilized to provide maintenance personnel with a secure place to
stand while servicing the radiator.  Other provisions have been
made on the left and right sides of the equipment to assist in
safely mounting and dismounting the dozer.

     Therefore, I conclude that so long as no radiator mainten-
ance is being attempted on the bulldozer without the required
secure platform and handrail, the bulldozer is not necessarily in
an unsafe operating condition simply because these parts have
been knocked off the dozer and not yet replaced.  For its normal
intended use, i.e., "bulldozing", its "operating condition" is
unaffected by their absence.  Mere proof of an equipment defect
does not establish a violation of 30 C.F.R. � 77.404(a).

     Hobet acknowledges that these parts must be replaced before
a maintenance worker attempts to access the radiator since no
safe alterative means exists to work on the radiator.  At that
point in time, the bulldozer must be taken out of service so that
the missing or damaged assembly can be replaced before the
maintainer attempts to access the radiator.

     There is no evidence in this record that any such attempt to
service the radiator on the affected bulldozer was made with the
platform and handrail missing.  Conversely, there is evidence in
the record that Hobet would discipline any maintainer caught
utilizing such an alternative, i.e., attempting to access the
radiator without first replacing the platform and associated
handrail.

     Accordingly, the Secretary has failed to sustain his burden
of proof that any unsafe condition actually existed at the time
the citation was issued and therefore, he has failed to prove a
violation of 30 C.F.R. � 77.404(a).


**FOOTNOTES**

     [1]:/ The standard cited, 30 C.F.R. � 77.404(a), provides as
follows: "(a) Mobile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately."


                              ORDER

     Citation No. 4640244 IS VACATED, and the Petition for Civil
Penalty IS DISMISSED.




                                Roy J. Maurer
                                Administrative Law Judge

Distribution:

James F. Bowman, Conference and Litigation Representative,
U. S. Department of Labor, Mine Safety and Health Administration,
100 Bluestone Road, Mt. Hope, WV 25880-1000  (Certified Mail)

David J. Hardy, Esq., Jackson & Kelly, P. O. Box 553, Charleston,
WV 25322 (Certified Mail)

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