.
LAKEVIEW ROCK PRODUCTS, INC.
January 30, 1995
WEST 94-308-M


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         January 30, 1995


SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. WEST 94-308-M
               Petitioner        : A.C. No. 42-01975-05505
          v.                     :
                                 : Docket No. WEST 94-309-M
LAKEVIEW ROCK PRODUCTS, INC.,    : A.C. No. 42-01975-05506
               Respondent        :
                                 : Mine: Lakeview Rock Products,
                                 :         Inc.

                             DECISION

Appearances:   Kristi L. Floyd, Esq., Office of the Solicitor,
               U.S. Department of Labor, Denver, Colorado,
               for Petitioner;
               Gregory M. Simonsen, Esq., Kirton & McConkie,
               Salt Lake City, Utah, for Respondent.

Before:        Judge Amchan

                        Factual Background

     On November 3, 1993, MSHA representative Richard Nielsen,
accompanied by his supervisor William Tanner, conducted an
inspection of Respondent's sand and gravel pit in Salt Lake City,
Utah (Tr. 21 -23).  The penalties for seven citations or orders
are at issue before me, the most significant of which involves
the safety of a highwall at the pit.

    Citation/Order No. 4120702:  Loose ground on the highwall

     At 1:10 p.m., on November 3, 1993, Inspector Nielsen issued
Citation/Order No. 4120702, pursuant to sections 104(a) and
107(a) of the Act.  The citation/order states:

     Loose ground was observed on the nearly vertical
     highwall at the upper bench where the bulldozer
     was pushing material to feed the crusher.  The
     dozer operator was operating adjacent to the high
     wall where loose rocks could fall into the cab of the dozer.
The loose rocks were large enough to
     cause fatal injuries.  The highwall was about
     15 meters (50 ft) high.  This was an imminent danger.

(Citation/Order No. 4120702, block 8).

     The citation/order alleged a violation of 30 C.F.R.
�56.3131, which provides:

     In places where persons work or travel in
     performing their assigned tasks, loose or
     unconsolidated materials shall be sloped to
     the angle of repose or stripped back for at
     least 10 feet from the top of the pit or quarry
     wall.  Other conditions at or near the perimeter
     of the pit or quarry wall which create a fall of
     material hazard to persons shall be corrected.

     MSHA proposed a $2,400 penalty for this citation/order[1].

     Inspector Tanner observed the cited condition first and
called it to Inspector Nielsen's attention (Tr. 61, 90).
Although Nielsen issued the citation and testified at hearing
regarding the highwall, the record is very unclear as to the
degree, if any, of his first-hand knowledge of its condition.

     Nielsen testified that he recommended that a special
assessment be made for the citation/order for the following
reasons:

     ... I didn't feel that due care was taken to
     control the loose ground or to control where
     people were working in relation to the loose
     ground, and it was an obvious thing that could
     be seen from even the lower levels that there
     was loose ground on this high wall and that
     some kind of action should be taken (Tr. 58).

     However, he later testified that he did not observe the
cited condition and that his opinions were based entirely on
photographs taken by Mr. Tanner and his conversations with
his supervisor (Tr. 61, 71, 91).

     Inspector Nielsen also testified that on the basis of
photographs taken by Mr. Tanner that there were loose rocks
lying on the edge of the quarry wall that were not stripped
back (Tr. 131).  However, it appears that this opinion is
based solely on Nielsen's interpretation of the photograph,
rather than first-hand observation (Tr. 132).  When asked how
he knew that the rocks in the highwall were not resting at an
angle of repose (an angle at which soil or rocks will not
slide or fall), Nielsen stated:

     That would be a judgment call from the inspector,
     but looking at the photos, you can see that there
     are areas where if jarring or weather or other
     factors entered into that material, that it could
     and very likely would fall.  (Tr. 138)[2].

     In sum, Inspector Nielsen demonstrated no first-hand
knowledge regarding this alleged violation and I therefore
accord his testimony in this regard no weight.  The factual
questions regarding this condition require a credibility
resolution between the testimony of Inspector Tanner, on
the one hand, and Pit Manager Scott Hughes, on the other.

     Inspector Tanner testified that material in an area
directly above that where Respondent's bulldozer was
operating on November 3, 1993, was "really, really loose"
(Tr. 166-67, Exh. 5B).  He told Nielsen to issue the
imminent danger order because some of that material,
primarily large boulders, could have fallen "at any minute,
at any second" (Tr. 174, 208).

     Mr. Tanner did not climb the highwall to examine the
area he considered loose out of concern for his safety
(Tr. 183).  He may never have been closer to the highwall
than 150 feet away (Tr. 62).  The inspector stated that he
could tell from the photographs he took that material on the
highwall was cracked and loose (Tr. 183-86).  This is not
apparent to the undersigned.

     As the photographic exhibits do not necessarily
corroborate Mr. Tanner's conclusions, it is necessary to
examine the basis for his opinions regarding the stability
of the materials on the highwall.  In this regard,
Respondent's counsel him asked the following question:

     Q.  ... do you have any specific information that
     would bear upon - - that would indicate to you that
     this material was not - - that you have circled in
     these pictures was not of the type that was embedded
     into the mountain?

     A.  The only thing I go by is my experience and my
     education.
                             * * * *

     A.  I did not go up there, no and I'm not about to.
(Tr. 187-88).

     Mr. Tanner's training and experience fall short of
qualifying him as an expert in matters of soil stability
and ground control.  He has a Bachelor of Arts degree from
Marshall University in Huntington, West Virginia, and has
attended four courses of undetermined length and content
relating to the issues in this case.  These courses covered
the subjects of ground control, wall and rock stability and
underground ground control.  They were conducted at the MSHA
Academy in Beckley, West Virginia, and in Michigan (Tr. 155-56).

     Respondent's pit manager, Scott Hughes, has been mining
at the same site since the late 1970's (Tr. 215, 230).  He
testified that the highwall consisted of conglomerated rock,
or "basically a bunch of rocks glued together" (Tr. 231-32).
He stated further that he blasted the rock in the area cited
by Tanner and then inspected to determine whether there was
any loose material (Tr.  236).  After blasting, Hughes contends
he had a bulldozer attempt to pull out the rocks protruding
from the wall and could not even wiggle them (Tr. 236).  He
therefore concluded that it was safe for the bulldozer to scrape
away dirt to lower that section of the highwall (Tr. 237).

     Comparing the testimony of the Inspector Tanner and
Pit Manager Hughes, I conclude that the Secretary has failed
to meet its burden of proving that there was loose or uncon-
solidated material in the highwall that posed a hazard to
Respondent's employees.  I therefore vacate the penalty
proposed for Citation/Order No. 4120702[3].

         Citation No. 4120693: Failure to Wear Seat Belt

     On the morning of November 3, 1993, Inspectors Nielsen
and Tanner observed the driver of one of Respondent's front-
end loaders operate his vehicle without wearing his seat belt
(Tr. 42-43, 144-45, 156-57).  The driver told Nielsen that
he did not always wear his seat belt because it hurt his back
(Tr. 43)[4].

     Nielsen issued a section 104(d)(1) citation alleging
a "significant and substantial" (S & S) violation of 30 C.F.R.
� 56.14130(g), due to Respondent's "unwarrantable failure" to
comply with the regulation and "high" negligence.  A civil
penalty of $1,800 was proposed for this citation.

     The S & S allegation was based in part on the fact that
the front-end loader was operating in areas in which the berm
on the side of the road was inadequate and was feeding a crusher
in an area where there was no bumper block (Tr. 29-39, 144-46).
I conclude that the record establishes an S & S violation of the
standard pursuant to the criteria set forth by the Commission in
Mathies Coal Co., 6 FMSHRC 1 (January 1984).  Specifically, I
find that given the area in which the front-end loader was
operating, an injury due to the driver's failure to wear a seat
belt was reasonably likely.  It was also reasonably likely that
the injuries sustained would have been of a reasonably serious
nature.

     On the other hand, I conclude that the Secretary has not
established an "unwarrantable failure" to comply with the
regulation or "high" negligence.  I credit Scott Hughes'
testimony that Respondent's policy was that drivers were to
wear seat belts and that this policy was verbally communicated
to its employees (Tr. 223-24, 226-27).

     While employee misconduct or disregard of company safety
rules is no defense to an MSHA citation, it may be relevant to
the degree of negligence imputed to the operator and the size
of the civil penalty assessed, Mar-Land Industrial Contractors,
Inc, 14 FMSHRC 754 (May 1992).  I affirm this violation as a
section 104(a) citation and conclude that it was due to the
ordinary negligence of Respondent.  Considering the six criteria
in section 110(i) of the Act, a civil penalty of $600 is
appropriate.

     I assess this penalty primarily on the basis of the
gravity of the violation, which I regard as quite high, and
the negligence of Respondent.  Although, as Mr. Hughes contends,
it is not reasonable to expect Respondent to fire a competent
driver every time one is observed without a seat belt, there
are effective means of discipline short of discharge.

     A graduated punishment scheme, including verbal and
written warnings and monetary penalties, might well achieve
nearly universal compliance with company safety rules.  Since
Scott Hughes was aware that his drivers failed to wear seat
belts prior to the issuance of this order (Tr. 222-23), his
negligence in not implementing a more effective disciplinary
system warrants assessment of a civil penalty of $600.

     Order Nos. 4120704 and 4120705:  Were records
     made available to the Secretary?

     Inspector Nielsen issued Order Nos. 4120704 and 4120705
pursuant to 30 C.F.R.  �56.12028 and �56.18002(b), after asking
Respondent for records pertaining to the continuity and
resistance of its electrical grounding systems, and workplace
examinations.  According to Nielsen and Tanner, Respondent
initially told them they had to have an appointment to see these
records (Tr. 72, 76, 175).  Both inspectors also testified that
the company records were brought to the closing conference at
the end of the inspection on November 4, 1993, but that they
were unable to look at the records due to confrontational
behavior on the part of Glenn Hughes, Respondent's owner
(Tr. 74, 199).

     The cited regulations provide that the records shall be made
available to the Secretary or his duly authorized representative.
They do not require that the records be maintained at the mine
site and do not specify how long after a request the records must
be produced.  Had these records been made available on November
4, at the closing conference, it would be necessary to decide
whether the records were made available within a reasonable
amount of time following the request.  However, since I credit
the inspectors' testimony that they were prevented from examining
the records, I conclude that Respondent violated the standards.

     The Secretary proposed penalties of $700 for each of
these two orders.  Pursuant to the criteria in section 110(i)
of the Act, particularly the good faith factor[5], I assess a
civil penalty of $500 for each of these orders.  Regardless
of its disagreement with the inspectors as to the requirements
of the standard, Respondent was obligated to allow MSHA to
inspect its continuity and workplace examination records.
Its interpretation of the standard's requirements can be
appropriately handled through the Act's review procedures.
Therefore, its unwillingness to allow for review of the
records at the closing conference warrants the characteri-
zation of "unwarrantable failure" and the penalties assessed.

         Citation No. 4120692: Absence of a bumper block

     Inspector Nielsen issued Citation No. 4120692 to Respondent
because he observed no bumper block in front of the crusher
plant (Tr. 23).  Respondent's front-end loaders were travelling
up a ramp to the crusher plant with material.  Nielsen was
concerned that the loaders would hit the feed plant and weaken
it (Tr. 24).

     The citation was issued pursuant to 30 C.F.R. �56.9301,
which requires that berms, bumper blocks or other restraining
devices be provided at dumping locations where there is a
hazard of overtravel or over-turning.  Respondent's defense
to this citation is that the plant extended eight to ten feet
above the ground level at the crushing plant and that it was
so firmly embedded into the embankment that its equipment
could not push it over (Tr. 219-20).

     I affirm the citation because the standard is intended
to prevent not only a single instance of overtravel, but also
the potential of repeated bumping of such structures which
could ultimately produce injury.  Exhibit No. 2-A indicates
that the portion of the plant protruding above the embankment
was subject to damage from repeated contact with heavy equipment.
Such contact could, at some point, cause the structure to break
and cause a vehicle to go over the embankment.  Therefore, I
affirm the citation and assess a civil penalty of $50, which
was proposed by the Secretary.

      Citation No. 4120694: Inadequate berm on side of ramp

     Inspector Nielsen observed one area of the ramps travelled
by Respondent's equipment where the berm on the side measured
16 to 24 inches in height, and another area in which there was
no berm at all (Tr. 29-30).  MSHA's regulations at 30 C.F.R.
�56.9300 require that berms or guardrails be provided and
maintained on roadways with a sufficient drop-off to cause
a vehicle to overturn or endanger miners in equipment.

     There was a sufficient drop-off in the areas cited that
a berm was required (Tr. 33-36, 243, Exh. No. 3-B).  When
berms are required they must be mid-axle height of the largest
vehicles that usually travel the roadway (section 56.9300(b)).
The ramps cited by Nielsen were regularly travelled by front-
ends loaders with a mid-axle height of 36 inches (Tr. 31-32).

     I affirm the citation as an S & S violation of the Act
and assess a civil penalty of $100.  The frequency with which
these ramps were travelled persuades me that it was reasonably
likely that an accident could occur due to the absence and/or
inadequacy of the berms.  The fact that one of the loader
operators was not wearing a seat belt persuades me that it was
also reasonably likely that injuries that might occur would be
of a serious nature (Tr. 36).

Citation No. 4120700: Records regarding defective back-up alarm

     At 10:45 a.m. on November 3, 1993, the back-up alarm on
one of Respondent's front-end loaders was not working (Tr. 39-
41).  The vehicle operator told inspector Nielsen that he was
not aware that he was required to check the back-up alarm
Tr. 39-40).

     Nielsen then issued Respondent Citation No. 4120700 alleging
a violation of 30 C.F.R. �56.14100(d).  That regulation requires
that defects on such equipment that are not corrected immediately
shall be reported to and recorded by the mine operator.

     There is no indication as to how long this back-up alarm was
not working.  Pit Manager Scott Hughes testified that the alarm
was working at the beginning of the workshift on November 3, and
that the alarm was repaired that afternoon (Tr. 220-223, 257-58).

     While Respondent may have been in violation of �56.14100(a),
which requires a pre-shift inspection of its vehicles by the
operator, it was cited for not having records of a defective
condition.  However, records are required under �56.14100(d) only
for defects which are not corrected immediately.  Since there is
no evidence that the defective back-up alarm was not fixed
immediately, I vacate Citation No. 4120700 and the $50 penalty
proposed therefor.

                              ORDER

                     Docket No. WEST 94-308-M

     Citation No. 4120692 is affirmed and a civil penalty
of $50 is assessed.

     Citation No. 4120694 is affirmed as a S & S violation
and a civil penalty of $100 is assessed.

     Citation No. 4120700 and the penalty proposed therefor
is vacated.

                     Docket No. WEST 94-309-M

     Citation No. 4120693 is affirmed as a S & S violation
of section 104(a) of the Act and a civil penalty of $600 is
assessed.

     The penalty proposed for Citation/Order No. 4120702 is
vacated.

     Order No. 4120704 is affirmed and a civil penalty of
$500 is assessed.

     Order No. 4120705 is affirmed and a civil penalty of
$500 is assessed.

     Respondent is ordered to pay the assessed civil penalties
of $1,750 within 30 days of this decision and order.  Upon such
payment these cases are dismissed.


                                   Arthur J. Amchan
                                   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)

Gregory M. Simonsen, Esq., Kirton & McConkie,
1800 Eagle Gate Tower, 60 East South Temple,
Salt Lake City, UT 84111-1004 (Certified Mail)


/lh


**FOOTNOTES**

     [1]: Citation/Order No. 4120702, insofar as it is an imminent
danger order issued pursuant to section 107(a) of the Act, is
unreviewable due to Respondent's failure to contest it within
30 days, Local Union 2333, District 29, United Mine Workers of
America (UMWA) v. Ranger Fuel Corporation, 12 FMSHRC 363 (August
1990); ICI Explosives USA, Inc., 16 FMSHRC 1794 (ALJ Merlin
August 1994).  However, the penalty assessment for the order is
reviewable, ICI, supra.

     [2]: The undersigned concludes that it is not obvious from
the photographic exhibits in the record that any of the material
in the highwall was loose, unconsolidated, or in danger of
falling.

     [3]: Inspector Tanner also stated that as he interprets the
cited standard, it prohibits miners from working underneath any
overhang where blasting has occurred recently (Tr. 205).  Section
56.3131 does not so provide explicitly and the record does not
establish that a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized that working beneath the highwall in this case
violated the standard, Ideal Cement Company, 12 FMSHRC 2409
(November 1990).

     [4]: I find it unnecessary to determine whether Pit Manager
Scott Hughes told Nielsen that he left the use of seat belts up
to his employees (Tr. 50, 226).  I do not find credible Scott
Hughes' testimony that the driver had just gotten back into his
vehicle and had not had a chance to put on his belt before the
citation was issued (Tr. 223-24).

     [5]: One of the six statutory criteria is "the good faith of
the person charged in attempting to achieve rapid compliance
after notification of a violation."