.
ALAN LEE GOOD, an individual doing business as GOOD CONSTRUCTION
September 13, 2000
WEST 2000-44-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                       September 13, 2000

SECRETARY OF LABOR,                : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH          :
   ADMINISTRATION (MSHA),          : Docket No. WEST 2000-44-M
                      Petitioner   : A. C. No. 45-03086-05512
          v.                       :
                                   :
ALAN LEE GOOD, an individual doing :
   business as GOOD CONSTRUCTION,  :
               Respondent          : Good Portable Crusher
                                   :
SECRETARY OF LABOR,                : Docket No. WEST 2000-149-M
   MINE SAFETY AND HEALTH          : A. C. No. 45-03086-05513
   ADMINISTRATION (MSHA),          :
               Petitioner          :
          v.                       :
                                   :
GOOD CONSTRUCTION,                 :
               Respondent          : Good Portable Crusher

                             DECISION

Appearances: William  W.  Kates, Esq., Office of the Solicitor,
             U.S. Department of Labor,  Seattle, Washington, on
             behalf of Petitioner;
             James A. Nelson, Esq., Toledo, Washington, on behalf 
             of Respondent.

Before: Judge Melick


     This  case  is  before  me  upon  the  petitions  for  civil
penalties filed by the Secretary of Labor pursuant to Section 
105(d) of the Federal  Mine  Safety and Health  Act  of  1977, 30 
U.S.C. � 801 et seq. the "Act" charging Alan Lee Good doing  
business as Good Construction (Good) with 10 violations of
mandatory  standards and seeking civil penalties of $854.00 for 
those violations.   The  general  issue  before me is whether Good 
violated the cited standards as alleged and,  if so, what  is the 
appropriate civil penalty to be assessed considering the criteria 
under section 110(i) of the Act.

Alleged Violations of 30 C.F.R � 56.14107(a)

     This standard provides that "[m]oving machine parts shall be
guarded  to  protect  persons  from  contacting gears, sprockets,
chains,  drive,  head,  tail, and take up  pulleys,  fly  wheels,
couplings, shafts, fan blades  and  similar moving parts that can
cause injury."  This standard is alleged to have been violated in
Citations No. 7974337, 7974340, 7974341, 7974342 and 7974343.

     Respondent maintains in its post  hearing  brief that all of
the cited areas had been inspected "many, many times  before by a
fairly large and representative number of MSHA inspectors  over a
period  of  18  years  or  more and they had all considered these
areas  to  be  adequately  guarded".    Respondent   argues  that
therefore the citing inspector herein was either "out of line" or
the  cited  standard  is  unconstitutionally  vague.   Respondent
raises  questions that seem to arise with some frequency  with  a
change of  MSHA  inspectors.  Moreover Respondent could very well
have prevailed in  it's  argument  if any of those inspectors had
offered credible testimony at trial  that  he  had  inspected the
precise areas now cited and found those areas adequately guarded.
Without  such  testimony  however  I find the allegations  to  be
without necessary factual support.

     In  these  cases  the  credible  testimony   of  the  citing
inspector, who, it may be inferred is a reasonably prudent person
familiar with the mining industry and protective purposes  of the
standard,  is  sufficient to meet the criteria set forth in Ideal
Cement Co. 12 FMSHRC  2409, 241 (November 1990); and BHP Minerals
Int'l  Inc., 18 FMSHRC 13342  (August  1996).   The  standard  as
applied    here    has   not   therefore   been   shown   to   be
unconstitutionally vague.

     Citation No. 7974337 charges as follows:

          The unguarded  rollers on the roll crusher exposed
     workers to the hazard  of  moving  machine  parts.  The
     rollers could be contacted by a worker standing  on the
     work platform beside the rollers.  The rollers where  a
     worker  could  contact  them were five (5) feet off the
     floor of the platform and  the roll crusher was mounted
     on  and  within  arms  reach of  this  inspector.   The
     foreman stated the moving  machine parts of the crusher
     had passed previous MSHA inspections.   Moving  machine
     parts   shall   be  guarded  to  protect  persons  from
     contacting the moving machine parts and causing injury.

     Inspector Terry Miller  of  the  Department  of Labor's Mine
Safety and Health Administration (MSHA) was performing  a regular
inspection  at the Brown Road Quarry on June 29, 1999.  According
to Miller the  cited  roll crusher was located on a portable flat
bed trailer with exposed  roll  crushers only two feet from where
he was standing.  The crusher was  used to size rock as it passed
through the rollers.  Miller testified  that  he  could reach and
touch the moving parts while standing next to it, located  5 to 6
feet off of the platform.  He noted that there was a handrail  in
front of the cited area but there was nothing to prevent him from
touching  the  rollers.   He discussed the violation with foreman
Ken Gates who accompanied him on this inspection and according to
Miller, Gates agreed that Miller  was able to reach and touch the
rollers.  According to Miller, Gates responded only that the area
had been inspected previously.    Miller  assessed the gravity of
the violation as "unlikely" based upon representations  that  the
machinery  was  turned  off to perform maintenance and servicing.
According to Miller, there  would  be no other reason for persons
to  be  on the platform and subject to  exposure  to  the  hazard
unless there  was  a  breakdown  or  the  machinery  was  out  of
adjustment.   Miller's  conclusions  that  the  violation was, in
effect, of low gravity are not disputed.

     Miller  also  found  that  the violation was the  result  of
"moderate" negligence based on his  belief  that  there  were "no
mitigating circumstances".  He accepted Gates's explanation  that
based  on previous inspections, Gates thought the roller had been
satisfactorily  protected.   Gates  testified that the areas here
cited had been previously inspected twice a year for the previous
eight years and had never previously  been  cited.   Within  this
framework  I conclude that Gates could therefore have entertained
a good faith and reasonable (but mistaken) belief that he was not
in violation as charged herein and that therefore the operator is
chargeable with but little negligence.

     Citation No. 7974740 charges as follows:

          The  guarded  `V'  belt drive for the cone crusher
     created a hazard for workers  in  the  plant area.  The
     `V'  belt  drive was located under the trailer/platform
     the  cone crusher  was  mounted  on.   The  hazard  was
     located  approximately  five (5) feet off ground level.
     A worker could access the  hazard  by ducking under the
     edge  of the platform the crusher was  mounted  on  and
     walking over to the `V' belt drive pulley.  The side of
     the platform  where a worker could duck under to access
     the hazardous condition was approximately five (5) feet
     off  ground  level.   Moving  machine  parts  shall  be
     guarded to protect  persons  from  contacting  them and
     causing an injury.

     Inspector  Miller  observed that the cited cone crusher  was
located on a separate trailer from the roll crusher and there was
no guard on the bottom of the V-belt drive.  He observed that the
cited area lay beneath the trailer where persons might be exposed
if they checked a damaged  belt.   The  V-belt  drive was about 1
foot  wide  and  passed  1 foot beneath the trailer bed.   Miller
asked Gates why there was  no  guard  at  that location and Gates
purportedly  responded that it had been guarded  before.   Miller
acknowledged that  the  gravity  was low and considered an injury
"unlikely".  He observed that very few people would be present in
the  cited  area but that if an accident  would  occur  it  could
result in permanently  disabling  injuries.  Miller's findings of
low gravity are undisputed and I therefore accept those findings.
For the reasons previously stated with  respect  to  Citation No.
7974337,  I  conclude  that the violation was also the result  of
little negligence.

     Citation No. 7974341 charges as follows:

     The unguarded tail  pulley on the belt under screen for
     the cone crusher created  a  hazard  to  workers.   The
     self cleaning tail pulley was six (6) feet  off  ground
     level.   The  tail pulley was located in the middle  of
     the platform/trailer  and  was  accessible  by  ducking
     under the side of the platform and walking over to  the
     tail  pulley.  The  side of the platform where a worker
     could duck under and  access  the  tail pulley was five
     (5)  feet high.  Workers perform scheduled  maintenance
     on  the  plant  daily.   The  foreman  stated  all  the
     equipment   is  turned  off  before  and  any  work  is
     performed on the equipment.  Moving machine parts shall
     be guarded to  protect persons from contacting them and
     causing injury.

     According to Inspector  Miller  the cone crusher also had an
unguarded tail pulley i.e., the idler pulley, which was located 4
feet  to  5 feet off the ground and beneath  the  platform.   The
pulley was  3  feet  wide and 2 feet within the platform.  Miller
found  that  injury was  "unlikely"  because  the  area  was  not
ordinarily accessed  while  the  equipment was operating.   Under
the circumstances, a finding of low  gravity  is  warranted.  For
the  reasons  previously  stated  with  respect  to Citation  No.
7974337 I also find operator negligence to be low.

Citation No. 7974342 charges as follows:

          The  inadequate  guard on the tail pulley  exiting
     the double deck screen exposed workers to the hazard of
     moving machine parts.   The  tail  pulley was three (3)
     feet off ground level.  The top of the  pulley was well
     guarded.   The  lower back side of the pulley  and  the
     bottom of the pulley  were  exposed.   The sides of the
     pulley  could  also  have  been accessed by  a  worker.
     Scheduled maintenance is performed  on the plant daily.
     The  foreman  stated  no  work  is  performed   on  the
     equipment  until  the  equipment is turned off.  Moving
     machine parts shall be guarded  to protect persons from
     contacting them and causing injury.

     According to Inspector Miller, the double deck screen, which
is used for sorting and sizing rock, had a deficient guard on its
tail pulley so that a person could reach  beneath  the guard.  He
observed  that the pulley was three feet above ground  level  and
protruded beyond the machinery.  Miller concluded that any injury
was "unlikely"  and that the only exposure to the hazard would be
while servicing,  inspecting  or  shoveling around the equipment.
The violation was accordingly of low  gravity.   For  the reasons
previously  stated  with respect to Citation No. 7974337  I  also
find the operator chargeable with only low negligence.

     Citation No. 7974343 charges as follows:

          The inside of the flywheel for the jaw crusher was
     unguarded.  The  unguarded part of the flywheel was two
     (2)  feet  out  of the  walkway  used  by  the  crusher
     operator to access  the  crusher  control  booth.   The
     flywheel  went  between two (2) and (7) seven feet high
     where a worker could slip/trip and possibly contact the
     moving machine parts  and be injured.  The flywheel was
     usually running when the  crusher operator accessed the
     walkway  to  enter/exit  the  control   booth.   Moving
     machine parts shall be guarded to protect  persons from
     contacting them and causing injury.

     Inspector Miller testified that the cited jaw  crusher was a
separate piece of mobile equipment.  Miller opined that  the  fly
wheel  had an ineffective guard and the exposed area was adjacent
to a walkway  access ladder.  The flywheel was about five feet in
diameter and one foot wide.  According to Miller, employees would
pass this area on the way to the work station on the second level
and it was as close  as  two feet from the walkway to the exposed
flywheel  area.  I accept Miller's  testimony  as  credible  and,
under the circumstances,  I conclude that the violation is proven
as charged.

     The  Secretary  also  alleges   that   the   violation   was
"significant   and   substantial".    A   violation  is  properly
designated  as "significant and substantial"  if,  based  on  the
particular facts  surrounding  that  violation,  there  exists  a
reasonable  likelihood that the hazard contributed to will result
in an injury  or  illness of a reasonably serious nature.  Cement
Division, National  Gypsum  Co.,  3 FMSHRC 822, 825 (April 1981).
In  Mathies  Coal  Co.,  6 FMSHRC  1,3-4   (January   1984),  the
Commission explained:

          In  order  to  establish  that  a  violation  of a
     mandatory    safety   standard   is   significant   and
     substantial under  National  Gypsum  the Secretary must
     prove:   (1) the  underlying violation of  a  mandatory
     safety standard, (2)  a  discrete safety hazard -- that
     is, a measure of danger to  safety -- contributed to by
     the  violation, (3) a reasonable  likelihood  that  the
     hazard  contributed  to  will  result in an injury, and
     (4) a reasonable likelihood that the injury in question
     will be of a reasonably serious nature.

     See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th  Cir.  1988),  aff'g  9 FMSHRC 2015,  2021  (December  1987)
(approving Mathies criteria).

     The  third  element of the  Mathies  formula  requires  that
the Secretary  establish   a   reasonable   likelihood  that  the
hazard contributed  to  will result in an event  in  which  there
is an injury (U.S. Steel  Mining Co., 6 FMSHRC 1834, 1836 (August
1984)).  The likelihood of such injury must be evaluated in terms
of continued normal mining  operations without any assumptions as
to abatement.  U.S. Steel Mining Co.,  Inc.,  6 FMSHRC 1573, 1574
(July  1984);  See  also Halfway, Inc., 8 FMSHRC 8,  12  (January
1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

     In this regard Inspector  Miller  testified  that  since the
equipment  operator  passed this area several times a day he  was
thereby frequently exposed  to  the hazard.  In addition he noted
that the crusher operator would check  the  conveyor periodically
and  there  was  no  other  means  of  access  to the  operator's
compartment  other  than  to  pass the area of exposure.   Miller
concluded that fatal injuries "might"  occur  should the operator
get caught in the flywheel.  According to Miller  his  whole body
would  likely be pulled into the flywheel and crushed.  Based  on
this testimony  it  may  be  inferred that it would be reasonably
likely that reasonably serous  injuries would occur.  I find this
evidence to be credible and I indeed  conclude  by inference that
the  violation  was  "significant  and substantial" and  of  high
gravity.   For  the reasons previously  stated  with  respect  to
Citation No. 7974337  I  find  the  operator  chargeable with low
negligence.

     Citation No. 7974336 alleges a violation of  the standard at
30 C.F.R. � 56.14101(a)(3) and charges as follows:

          The  inoperative  park brake on the 88 Model  Ford
     super duty shop truck exposed  the  operator  and other
     persons  int he pit to the hazard of possibly of  being
     struck by  unintentional  movement  of  the truck.  The
     truck  was  parked  in  the  parking area next  to  the
     highwall above the pit where the  crusher  was located.
     The keys were in the truck, and the truck was ready for
     use.  The foreman stated he did not know how  long  the
     park  brake  had  been  inoperative.  The  foreman also
     stated he did not know the last time the truck was used
     or when the truck would be used again.  Braking systems
     installed on mobile equipment shall be maintained  in a
     functional condition.

The cited standard 30 C.F.R. � 561401(a)(3), provides that "[a]ll
braking systems installed on the equipment shall be maintained in
functional condition."

     Respondent  does  not deny that the cited parking brake  was
indeed inoperative on the  1988  model Ford Super Duty shop truck
or that the keys were in the truck  and  that  the truck could be
used but argues that only equipment to be operated during a shift
needs  to  be  inspected  on  any given day.  In support  of  its
argument  Respondent  cites  certain  qualifying  language  in  a
different regulatory standard  from that cited herein.  Since the
standard at issue herein, 30 C.F.R.  �  56.14101(a)(3),  does not
contain  any  such  qualifying language Respondent's argument  is
without merit.  The cited  standard  requires  proof  only that a
braking  system  on  the truck was not maintained in a functional
condition.  Under the  circumstances  the  violation is proven as
charged.  The Secretary's allegations that an  injury  or illness
was  unlikely  and  that  the  violation was a result of moderate
negligence is undisputed and supported by the record.  Gravity is
therefore low.

     Citation No. 7974338 alleges a violation of  the standard at
30 C.F.R. � 56.11002 and charges as follows:

          No Handrails on the elevated  platform  where  the
     roll  crusher was mounted exposed workers to the hazard
     of  possibly   falling  from  the  platform  and  being
     injured.  The platform  was  six  (6)  feet  off ground
     level.   The  ground under the platform where a  worker
     would  fall to was  level  and  covered  with  pit  run
     material.   One  worker  accessed the platform daily to
     perform  scheduled maintenance  on  the  roll  crusher.
     Elevated working  and  travel  areas  shall be provided
     with handrails and maintained in good condition.

     The  cited  standard,  30  C.F.R.  � 56.11002,  provides  as
relevant  hereto  that "crossovers, elevated  walkways,  elevated
ramps,  and  stairways  shall  be  of  substantial  construction,
provided with handrails, and maintained in good condition."

     Respondent  argues  that  there  was  no  violation  at this
location because the cited area was an elevated platform and  not
a  travelway.   The  Secretary  in her post-hearing brief did not
respond  to  this argument so the Secretary's  position  in  this
regard is not known.  It may reasonably be inferred however, from
the testimony  of  the  citing  inspector,  that  the  cited area
although  described  as  a  "platform" was of sufficient size  to
permit  actual  "walking".   Accordingly   I  conclude  that  the
elevated  platform  cited  in this case was indeed  an  "elevated
walkway" within the meaning  of the cited standard.  Respondent's
argument herein is accordingly rejected.  The violation is proven
as charged.  The Secretary's findings  that  an injury or illness
was unlikely is not disputed.  Accordingly I find  gravity  to be
low.   In  light  of  the  evidence  that this operation had been
inspected  many  times  over  a  number of  years  without  prior
citation  leads  me  to  accept  Respondent's  argument  that  it
therefore, in essence, had a reasonable  and  good  faith  belief
that  it  was  not in violation of the standard at this location.
Accordingly I find only low operator negligence.

     Citation No.  7974339 alleges a violation of the standard at
30 C.F.R � 56.11002 and charges as follows:

          No handrails  on  the  elevated platform where the
     Ell-Jay cone crusher was mounted exposed workers to the
     hazard of possibly falling from  the platform and being
     injured.   The  platform was six (6)  feet  off  ground
     level.  The ground  under  the  platform where a worker
     would  fall  to  was  level and covered  with  pit  run
     material.  One worker accessed  the  platform  daily to
     perform  scheduled  maintenance  on  the  cone crusher.
     Elevated  working  and  travel areas shall be  provided
     with handrails and maintained in good condition.

     Respondent again argues that the cited area was a "platform"
and not a "travelway" and that  it therefore does not come within
the terms of the cited standard.   It  may reasonably be inferred
from the testimony of the inspector that  the  elevated  platform
cited in this case was of  sufficient size to permit walking  and
that  accordingly  it  may  be  considered  to be an "elevated of
walkway"  within the meaning of the cited standard.   Accordingly
Respondent's  argument  is  again  rejected.  There is no dispute
with the Secretary's findings of low  gravity.   I also find that
the  operator  chargeable  with  low negligence in light  of  his
apparent  good faith and reasonable  belief  that  there  was  no
violation at  the  cited  location  based  on  the absence of any
citation over many previous inspections.

     Citation No. 7974344 alleges a violation of  the standard at
30 C.F.R. � 56.14100(b) and charges as follows:
          The  operative brake lights on the Michigan  L-190
     F.E.L.  S/N   828A00073S   could   create  a  hazardous
     condition  for  persons  in  the pit/plant  area.   The
     operator stated he performed his  pre-operational check
     before  operating the F.E.L.  But did  not  notice  the
     brake lights being inoperative.  An off road haul truck
     and another F.E.L.  operated regularly in the pit/plant
     area as well  as  a  third  F.E.L.  used  occasionally.
     Customer and mine operator highway trucks also  entered
     the  mine  area  and  were  loaded  by  one  (1) of the
     F.E.L.'s.   The  inoperative  brake lights could  cause
     another  mobile  equipment  operator   in  the  pit  to
     misjudge the movement of the F.E.L. and  possibly cause
     an accident resulting in injury to a worker.

     The cited standard, 30 C.F.R. � 56.14100(b),  provides  that
"defects  on  any  equipment,  machinery,  and  tools that affect
safety  shall  be  corrected  in  a timely manner to prevent  the
creation of a hazard to persons."

     Respondent argues that even assuming  that  the  inoperative
brake  lights affected safety, those brake lights had been  found
to  be working  during  a  pre-operational  check  of  the  cited
equipment  by Kenneth Gates on the morning of the inspection.  It
is not disputed  that  the  defect  was  caused by a short in the
brake light wire adjacent to the light.  The  Secretary  does not
appear to dispute the testimony of Gates and argues only that the
brake  lights  were  not  working  at the time of the inspection.
Under the circumstances I conclude that  the Secretary has failed
to  sustain  her  burden  of  proving  that the  defect  was  not
corrected  in a timely manner within the  meaning  of  the  cited
standard.  Accordingly the Secretary failed to sustain her burden
of proving a violation herein and the citation must be vacated.

     Citation  No. 7974345 alleges a violation of the standard 30
C.F.R. � 56.18002(a) and charges as follows:

          An effective work place examination, checking each
     working place  at least once each shift, for conditions
     which could adversely  affect health or safety, was not
     being performed at this  operation.  This was evidenced
     by the nine (9) citations  issued  during  the  regular
     inspection.   five   (5)   citations   for  missing  or
     inadequate  guards,  two  (2)  citations  for   missing
     handrails,  one  (1)  citation  for  inoperative  brake
     lights on mobile equipment, and one (1) citation for an
     inoperative  park  brake  on  mobile equipment.  All of
     these conditions could have went  [sic]  undetected and
     uncorrected  if  not  for  the regular MSHA inspection.
     Any  one  of  the  uncorrected  conditions  could  have
     resulted in injury to a worker.

     The  cited  standard, 30 C.F.R. � 56.18002(a),  provides  as
follows:

     A competent person  designated  by  the  operator shall
     examine each working place at least once each shift for
     conditions which may adversely affect safety or health.
     The operator shall promptly initiate appropriate action
     to correct such conditions.

     The testimony of Kenneth Gates is undisputed  that he indeed
performed  the  examinations  required by the cited standard  and
indeed produced a copy of his examination  performed  on the date
of  the  citation,  i.e.  July  1,  1999  (Exhibit  R-7).   Gates
described the procedures he followed in making his inspections as
follows:

     I inspect all things on the list here personally myself
     around  the  pit area and on individual time cards that
     are wrote [sic] by each employee at the mine site, they
     state on theirs on each day, they have a check list for
     their safety inspection  for  each  piece  of equipment
     which  they  operate, and if there's any problems  with
     it, it's reported  to  me  and  then  we  usually right
     underneath this if it needs to be fixed or  if  can  be
     fixed in that shift.  If it can be fixed on that shift,
     it  is  fixed  and  it's not stated, but it is still on
     theirs, and if it is not fixed, I put it on, whether it
     be hazardous, it would  be  red  tagged  or  shut down.
     (Tr. 89).

     The citing inspector in this case acknowledged  that  indeed
the  required  examinations  were  being conducted but it was his
opinion that, because of the number  of  violations he found, the
examinations were not effective.

     While  I cannot conclude, because of the  lack  of  credible
evidence,  that   any  MSHA  inspector  had  previously  actually
approved  of  the  conditions   cited  in  the  instant  case,  I
nevertheless conclude that, based on MSHA's prior failure to have
cited these conditions, the operator  had  a  reasonable and good
faith belief that the conditions were not violative.  Under these
circumstances the failure of Mr. Gates to have  noted  these same
conditions  as  hazardous  in  his  examinations  under the cited
standard  is  not  surprising.  I cannot therefore conclude  that
Mr. Gates' workplace  examinations were not effective.  Under all
the circumstances I conclude that the Secretary has not sustained
her burden of proving a  violation  as  charged  in  the  instant
citation and that citation must accordingly be vacated.

Civil Penalties

     Under  section  110(i)  of  the  Act  the Commission and its
judges must consider the following criteria  in assessing a civil
penalty:   the  operator's  history  of previous violations,  the
appropriateness of such penalty to the  size  of  the business of
the  operator  charged,  whether the operator was negligent,  the
effect on the operator's ability  to  continue  in  business, the
gravity of the violation and the demonstrated good faith  of  the
person  charged  in  attempting to achieve rapid compliance after
notification of a violation.

     In this case the  gravity and the negligence of the operator
has been discussed with  respect to each violation.  The evidence
regarding  the  remaining criteria  are  common  to  all  of  the
violations.  It has been stipulated that Respondent had a history
at the subject mine  of  three  assessed  violations during three
inspection  days in the approximate 24 month  period  before  the
violations at issue.  Accordingly Respondent has a low history of
violations.   It  has  been also stipulated that the subject mine
and its controlling entity  had  reported  11,857 hours worked in
the calendar year prior to the violation at  issue.   Accordingly
the   subject   operator   is   small  in  size.   The  Secretary
acknowledges that each of the violations was corrected and abated
within  the time set forth in the  citations.   Accordingly  this
operator  is  entitled  to full credit for its abatement efforts.
There is no claim and no evidence that the penalties herein would
have  any  affect  on  the  operator's  ability  to  continue  in
business.  In the absence of such evidence there is a presumption
that indeed the penalties would  have no effect on the operator's
ability to continue in business.

                              ORDER
     Citations No. 7974344 and 7974345  are  hereby vacated.  The
remaining  citations  are  affirmed  and  Good  Construction   is
directed  to  pay the following civil penalties within 40 days of
the date of this  decision:  Citation No. 7974336 - $55, Citation
No. 7974337 - $55,  Citation  No.  7974338  -  $55,  Citation No.
7974339 - $55, Citation No. 7974340  - $55, Citation No.  7974342
- $55, Citation No. 7974343 - $200.


                               Gary Melick
                               Administrative Law Judge


Distribution: (Certified Mail)

William  W.  Kates, Esq., Office of the Solicitor, U.S. Dept.  of
Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212

James A. Nelson,  Esq.,  Attorney  at  Law, 205 Cowlitz, P.O. Box
878, Toledo, WA 98591

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