.
SOUTH WEST SAND & GRAVEL, INC.
May 29, 2001
WEST 2001-112-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          May 29, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. WEST 2001-112-M
               Petitioner       : A.C. No. 02-02618-05507
          v.                    :
                                : South West Sand & Gravel
SOUTH WEST SAND & GRAVEL, INC., :
               Respondent       :

                            DECISION

Appearances: Rebecca A. Baird, Esq., Office of the Solicitor,
             U.S. Department of Labor, San Francisco,
             California, for Petitioner;
             Roger A. Van Camp, President, South West Sand & 
             Gravel, Inc., Glendale, Arizona, pro se, for 
             Respondent.

Before: Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil
Penalty brought by the  Secretary  of  Labor,  acting through her
Mine Safety and Health Administration (MSHA), against  South West
Sand & Gravel, Inc., pursuant to section 105 of the Federal  Mine
Safety  and  Health  Act  of 1977, 30 U.S.C. � 815.  The petition
alleges nine violations of  the  Secretary's mandatory health and
safety standards and seeks a penalty  of  $590.00.  A hearing was
held in Phoenix, Arizona.  For the reasons  set  forth  below,  I
vacate  three  citations, affirm the rest and assess a penalty of
$425.00.

                        Settled Citations

     Prior to the  hearing the parties filed a Partial Settlement
Agreement in which the  Secretary  moved  to vacate Citation Nos.
7945392, 7945394 and 7945395 and the Respondent agreed to pay the
proposed  penalties for Citation Nos. 7945228,  7945229,  7945393
and 7945400  in  full.   The parties reaffirmed this agreement at
the hearing.  (Tr. 6-8.)   Accordingly,  the  provisions  of  the
agreement  will  be carried out in the order at the conclusion of
this decision.

                            Background

     As its name suggests,  South  West Sand & Gravel is sand and
gravel operation in Maricopa County,  Arizona.   It  is  a  small
company consisting of four employees.

     On  July  6, 2000, MSHA Inspector Keith J. Campbell and MSHA
Inspector-trainee  Terry  L.  Ward conducted an inspection of the
mine.  They issued several citations to the company, two of which
were contested at the hearing.

     Citation  No.  7945397  charges   a   violation  of  section
56.14100(d), 30 C.F.R. � 56.14100(d), because:

               There was a Ford 8000 truck with  a 1000
          gallon  water tank installed on it taken  out
          of service,  allegedly.  The tank was secured
          onto the truck frame with 1 inch cables.  One
          cable was loose and one cable had fallen off.
          There was no record available as to when this
          truck was first removed from service.  It was
          parked on the  ready line with keys in it and
          not tagged out.

(Jt. Ex. 2.)

     Citation  No.  7945398   alleges   a  violation  of  section
56.14103(b) of the regulations, 30 C.F.R. � 56.14103(b), because:

               The caterpillar 988 B front  end  loader
          had 2 broken and cracked front windows.   One
          window  had several holes and numerous cracks
          directly  in  front  of the operators station
          and  the  other  was  to  the  right  of  the
          operators   station.    This   was   severely
          cracked.   Both  windows  made visibility  an
          unsafe condition and the large window created
          a hazard to the operator.

(Jt. Ex. 1.)

             Findings of Fact and Conclusions of Law

Citation No. 7945397

     Section 56.14100(d) requires that:

               Defects    on   self-propelled    mobile
          equipment affecting  safety,  which  are  not
          corrected  immediately,  shall be reported to
          and  recorded  by  the  mine  operator.   The
          records shall be kept at the mine  or nearest
          mine  office  from  the date the defects  are
          recorded,  until the defects  are  corrected.
          Such records  shall  be  made  available  for
          inspection by an authorized representative of
          the Secretary.

     The inspectors observed a water truck during the  inspection
which  appeared  to  be defective because the straps holding  the
water tank on the back  of  the truck were not properly attached.
The rear strap had come loose  and one end of it was lying on the
ground.   The front strap was still  around  the  tank,  but  was
loose.  The  inspectors  were told by Mr. Van Camp that the truck
had been taken out of service  so  that  the tank could be safely
secured to the back of the truck.  Inspector Campbell asked to be
shown the records recording the defects and  the  fact  that  the
truck  had  been  taken  out  of  service.  The company could not
produce the records.

     Based  on  this,  I conclude that  the  Respondent  violated
section 56.14100(d) of the regulations as alleged.

Citation No. 7945398

     Section 56.14103(b)  provides, in pertinent part, that:  "If
damaged windows obscure visibility  necessary for safe operation,
or create a hazard to the equipment operator,  the  windows shall
be replaced or removed."  The Respondent argues that windows were
not  unsafe.   I  find  that  the  evidence does not support  its
position.

     Inspector Ward testified that as  he  and Inspector Campbell
approached  the  front-end  loader,  he noticed  that  the  front
windshield was broken.  He stated that he climbed up into the cab
to see how badly it was broken and he  found that it had multiple
cracks in it that "went above my line of  vision."  (Tr. 27.)  He
said that the cracks covered 60 to 70 percent  of  the windshield
from  top  to  bottom and went all the way across the windshield.
He  related  that   vision   through   the  windshield  was  "all
distorted."  (Id.)  He also testified that  the left corner glass
was  "totally  spiderwebbed."   (Tr.  28.)   Inspector   Campbell
testified that the windows were "so badly holed and cracked  that
I  don't  know  how  the  driver made it from the pit to where he
parked it."  (Tr. 95.)

     Mr. Van Camp testified  that  neither  of the inspectors got
into the driver's compartment of the loader.   He further stated:
"Quite frankly, I can't tell you how the cracks  arranged  in the
windshield  at the time in July 2000.  I can testify to you there
were no holes  in  the  windshield,  and the safety glass was not
broken  on  the inside."  (Tr. 158.)  In  addition,  the  company
offered into  evidence  the  affidavits  of  two  employees and a
former employee which stated that the windshield did not have any
holes "in the glass area."  (Resp. Exs. B, C and D.)

     I   find   the  inspectors'  testimony  convincing.    Their
descriptions were  detailed  and  leave  little  doubt  as to the
condition  of  the  windshield  and  side  glass  on  the loader.
Furthermore,  on  April 9, 2001, Inspector Ward drew pictures  of
the two windows from  memory  which  demonstrate  that visibility
through the windows was obscured so that the loader  could not be
operated safely.[1]  (Govt. Ex. 1.)

     On  the  other  hand, the company does not dispute that  the
windows were cracked, only that the windshield did not have holes
in it.[2]  I find that  the  windshield did have holes in it, but
even  if  it did not, the cracks  alone  were  severe  enough  to
obscure the  operator's  vision.[3]  Accordingly, I conclude that
the Respondent violated section 56.14103(b).

     Significant and Substantial

     The Inspector found this  violation  to  be "significant and
substantial."  A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause  and  effect  of  a  coal  or other mine safety  or  health
hazard."  A violation is properly  designated S&S "if, based upon
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 set out four criteria  that  have  to  be  met  for  a
violation  to  be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC,
52  F.3d  133,  135  (7th  Cir.  1995);  Austin  Power,  Inc.  v.
Secretary, 861 F.2d  99,  103-04  (5th  Cir.  1988), aff'g Austin
Power,  Inc.,  9  FMSHRC  2015,  2021  (December  1987)(approving
Mathies criteria).  Evaluation of the criteria is made  in  terms
of  "continued normal mining operations."  U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on the  particular  facts  surrounding the violation.  Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (December 1987).

     In order to prove that  a  violation  is  S&S, the Secretary
must  establish:   (1)  the  underlying  violation  of  a  safety
standard;  (2) a distinct safety hazard, 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  will be
of a reasonably serious nature.  Mathies, 6 FMSHRC at 3-4.

     The  inspectors  testified  that  there  are  several safety
hazards contributed to by the loaders' windows being  cracked and
having holes in them.  The loader is used to dig into a  30  foot
high  bank.   When  the  digging occurs, loose and unconsolidated
material, including rocks,  falls  on the loader.  The windshield
protects  the  operator  from  the falling  material.   When  the
windshield is cracked and has holes in it, it may not prevent the
falling  material  from  hitting the  operator,  or  the  falling
material may shatter the windshield onto the operator.  Moreover,
with the operator's vision  obscured, he could run into, or over,
other pieces of equipment, he  could  run off of the road and tip
the loader over, or he could run over another employee.

     Since the loader spends most of its  time  digging  into the
bank,  and  since  the  material falling from the bank apparently
caused the cracks and holes in the windshield, I find that if the
windshield were not replaced that it is reasonably likely that an
injury  would  result from  the  violative  windshield  and  side
window.  I further  find  that  the  injury  would  be reasonably
serious,  ranging  from cuts and bruises to the operator  to  the
death of the operator or another employee.

     Other  than asking  Inspector  Campbell  what  data  he  had
concerning injuries resulting from damaged windshields in Arizona
(he had none), the Respondent did not present any evidence on the
S&S issue.  Accordingly, I accept the testimony of the inspectors
concerning the hazards resulting from this violation and conclude
that the violation was "significant and substantial."

                     Civil Penalty Assessment

     The Secretary  has  proposed  penalties  of  $205.00 for two
contested  violations.   However,  it  is the judge's independent
responsibility to determine the appropriate  amount of penalty in
accordance  with  the  six  penalty criteria set out  in  section
110(i) of the Act, 30 U.S.C.  � 820(i).  Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th  Cir.  1984);  Wallace Brothers,
Inc., 18 FMSHRC 481, 483-84 (April 1996).

     The company has four employees.  Therefore,  I  find that it
is  a  small  company.   I  further  find  that  the  company was
moderately  negligent in committing the contested violations.   I
find that the  gravity of the violation concerning the loader was
fairly serious,  but that the gravity of the violation concerning
the water truck was not serious.

     The Respondent did not present any evidence to show that the
penalty  in this case  would  adversely  affect  its  ability  to
continue in  business.  Accordingly, I find that the penalty will
not adversely affect the company's ability to remain in business.

     The Secretary  did  not  present any evidence concerning the
operator's history of previous  violations or whether the company
demonstrated good faith in attempting to achieve rapid compliance
after notification of the violations.   Consequently, I find that
the  operator  has  a good history of prior  violations  and  did
demonstrate good faith in abating the violations.


     Taking all of these  factors  into consideration, I conclude
that  the  penalties proposed by the Secretary  are  appropriate.
Therefore, I assess the following penalties:

          Citation                      Penalty

          7945228                       $  55.00

          7945229                       $  55.00

          7945393                       $  55.00

          7945397                       $  55.00

          7945398                       $ 150.00

          7945400                       $  55.00

                                Total   $ 425.00


                              Order

     Citation  Nos.  7945392,  7945394  and  7945395 are VACATED.
Citation  Nos.  7945228, 7945229, 7945393, 7945397,  7945398  and
7945400 are AFFIRMED.   Accordingly,  South  West  Sand & Gravel,
Inc., is ORDERED TO PAY a civil penalty of $425.00 within 30 days
of the date of this decision.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:   (Certified Mail)

Rebecca A. Baird, Esq., Office of the Solicitor, U.S.  Department
of  Labor,  71  Stevenson  Street, Suite 1110, San Francisco,  CA
94105

Roger A. Van Camp, South West  Sand  &  Gravel,  Inc.,  P.O.  Box
12455, Glendale, AZ  85318

nt

**FOOTNOTES**

     [1]: The Respondent argues that because the drawings are not
the   same  shape  as  the  windows  on  the  loader,  which  are
triangular,  they  are somehow not valid.  The issue, however, is
whether visibility was  obscured,  not  the shape of the windows.
The drawings vividly depict obscured windows.

     [2]: I give little weight to the three  affidavits  for  the
following reasons:  (1) No reason was given why the two employees
and former employee were not available to testify at the hearing.
(2)  The  three affidavits are worded almost identically, stating
only that the  windshield  did not have holes in it and providing
no other details.  (3) One of  the  employees  was not present on
the day of the inspection.  (4)  The employees were  not  subject
to  cross-examination  by  the  Secretary  and  I did not have an
opportunity to observe them while they testified.

     [3]: The Respondent correctly argues that a photograph would
have greatly aided in the resolution of this citation.   However,
that  argument  cuts both ways.  There does not appear to be  any
reason the company  could  not  have  taken  a  photograph of the
loader at the time of the inspection to support its position.