.
WESTERN CONSTRUCTION, INC.
October 8, 1998
WEST 98-11-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268


                           October 8, 1998

SECRETARY OF LABOR,             :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :   Docket No. WEST 98-11-M
               Petitioner       :   A.C. No. 10-01634-05517
                                :
          v.                    :   Portable Plant No. 1
                                :
WESTERN CONSTRUCTION, INC.,     :
               Respondent       :

                              DECISION

Appearances:  Megan J. Green, Esq., Office of the Solicitor,
              U.S. Department of Labor, Seattle, Washington,
              for Petitioner;
              Maurice O. Ellsworth, Esq., Howard, Ellsworth,
              Ipsen & Perry, Boise, Idaho, for Respondent.

Before:  Judge Manning

     This case is before me on a petition for assessment of
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Western
Construction, Inc. ("Western Construction"), pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. �� 815 and 820 (the "Mine Act").  The petition alleges one
violation of the Secretary's safety standards.  A hearing was
held in Boise, Idaho.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Western Construction operates Portable Plant No. 1 (the
"plant"), which was in Elmore County, Idaho, at the time of
MSHA's inspection.  The plant was being used to produce aggregate
for a road construction project.  The plant includes a jaw
crusher and a feeder conveyor (the "feeder").  The feeder is at
an angle and is used to convey rock to the crusher.  (Ex. R-1).
The feeder is about 25 feet long and about 4 feet wide.  Heavy
metal aprons are attached to the frame of the feeder to keep the
rock from spilling off the sides of the feeder.  These aprons are
at an angle so that the feeder assembly resembles a large "V"
with a flat bottom.  A metal bar connects the top of the aprons
on each side of the feeder near the discharge end.  The conveyor
itself consists of metal cleats or slats, sometimes called
flights, that are similar to the track on a dozer.  The slats
move rock that is pushed onto the feeder at the feeder trap up to
the top of the feeder where the rock dumps into the jaw crusher.
The vertical distance between the slats and the top of the aprons
is about four feet.

     Rock is pushed onto the feeder at the bottom with dozers
operated by Claude Sarbaum and other employees.  The dozer
operators are instructed to push rock that is four feet in
diameter or less onto the feeder.  When the jaw crusher becomes
plugged with material, it is shut down to free the material.

     On June 23, 1997, MSHA Inspector Robert Capps arrived at the
plant to conduct an inspection.  Soon after he arrived, he
observed Mr. Sarbaum standing on the feeder near the discharge
end.  At the time Inspector Capps observed this condition, he was
about 150 feet away near the tool trailer.  He became quite
excited and motioned to Mr. Sarbaum to get off the feeder.
Sarbaum walked back to his dozer and waited.  Inspector Capps
walked to the dozer and asked Mr. Sarbaum to step down.  The
inspector put his hands on Sarbaum's shoulders and told him that
he was an MSHA inspector and that it was a violation of MSHA
regulations to walk on the feeder.

     Inspector Capps issued a combination 104(a) citation and
107(a) imminent danger order (the "citation") soon after he
observed the condition.  It alleges a violation of 30 C.F.R.
� 56.11001, as follows:

          A Cat D10N dozer operator was observed using
          an unsafe means of access to go from the
          primary feeder trap to the primary jaw
          crusher to assist in the removal of an
          oversized rock from the jaw.  The dozer
          operator walked/climbed across the primary
          feeder, which was mostly full of loose
          material, to the jaw area.  The jaw was still
          rotating as he arrived at the opening above
          it.  He could have fallen into the moving
          jaw.  He was not secured from fall with a
          safety belt and lanyard (56.15005).  There
          was an imminent danger of falling into the
          jaw.

     Inspector Capps determined that the violation was of a
significant and substantial nature ("S&S") and was the result of
the mine operator's high negligence.  Section 56.11001 provides
that a "[s]afe means of access shall be provided and maintained
to all working places."  The citation was terminated when Mr.
Sarbaum was removed from the feeder and instructed on safe
access.  On June 26, 1997, Inspector Capps modified the citation
to "add [an] additional violative evaluation" for section
56.15005.  That safety standard provides that safety belts and
lines shall be used where there is a danger of falling.

     The Secretary filed a petition for assessment of civil
penalty for this citation on November 3, 1997, charging Western
Construction with a violation of section 56.11001.  The proposed
penalty of $1,500 was specially assessed under 30 C.F.R. � 100.5.
The Secretary conducted an investigation to determine whether any
agent of Western Construction should be assessed a penalty under
section 110(c) of the Act, but no charges were filed.
     A.   Fact of Violation

          1.  Summary of the Testimony

     The facts in this case are in dispute.  Inspector Capps
testified that he was standing at the main controller's
booth at the plant when he observed Mr. Sarbaum on the
feeder.  (Tr. 12).  Although he was about 150 feet
away, the inspector was at an elevated position and his
view was not obstructed except by dust in the air.
(Tr. 13).  He stated that the feeder is about 15 feet
above the ground at its highest point.  (Tr. 16).  The
inspector stated that he saw Mr. Sarbaum walking up the
feeder towards the discharge end near the jaw crusher.
(Tr. 17).  The feeder was not running and the jaw
crusher had been turned off.  The crusher was still
rotating from its own momentum.  Inspector Capps
described the metal bar connecting the aprons on both
sides of the feeder assembly as a "spreader bar."  (Tr.
15).  He stated that it was made of tubular steel, that
it keeps the aprons in position, and that it can also
be used to lift the feeder assembly.  Id.  He stated
that the vertical distance between the slats of the
feeder and the spreader bar is about six feet.

     Inspector Capps testified that Mr. Sarbaum traveled
beyond the spreader bar and looked down into the jaw crusher
that was still rotating.  (Tr. 17).  He was not tied
off.  The inspector testified that he could clearly see
that Mr. Sarbaum was between the spreader bar and the
discharge end of the feeder despite the fact that he
was 150 feet away.  He also testified that the feeder
was mostly full of rock.  (Tr. 18).  The rock was more
than half way up the sides of the aprons.  (Tr. 19).
Thus, the inspector believes that Mr. Sarbaum walked on
top of the uneven rocky surface to reach the discharge
end of the feeder.

     Inspector Capps believes that Western Construction
violated the standard because a safe means of access was 
not provided.  Mr. Sarbaum could have fallen off the sides
of the feeder as he walked up the feeder and he could
have fallen into the jaw crusher as he looked down into
the crusher.  (Tr. 19).  The inspector believes that
Mr. Sarbaum could have tripped on the rough, uneven
surface of the rocks on the feeder.  (Tr. 21).

     MSHA Inspector Robert Palmer conducted an investigation
of the incident.  He testified that the rocks on the
feeder presented a tripping and falling hazard.  (Tr.
54-55).  He stated that if Mr. Sarbaum had fallen, he
could have been seriously injured.  He stated that a
fall into the crusher could have been fatal.

     Mr. Sarbaum, an experienced heavy equipment operator,
testified that on June 23 he was gathering rocks with
the dozer and pushing them onto the feeder trap.  (Tr.
99).  He stated that he pushes a new load onto the
feeder every five to ten minutes.  Another dozer
operator was also pushing rock into the feeder on that
day.  (Tr. 102).  When he was getting ready to push one
load onto the feeder, he saw that the feeder was empty
and it was not running.  (Tr. 101).  He looked at the
feeder operator, who works in a booth past the
discharge end of the feeder, and she signaled that the
jaw crusher was plugged.  Mr. Sarbaum did not push any
more rock onto the feeder.  He was concerned that
something that he had pushed onto the feeder could have
caused the crusher to become plugged, so he got off his
dozer, walked onto the feeder, traveled up the feeder
to look down into the crusher, and saw a big rock in
the crusher that was causing the problem.  (Tr. 102)

     Mr. Sarbaum testified that before he went into the
feeder, he signaled to the crusher operator who sits in
the control house.  (Tr. 104).  Through hand signals, he
indicated to the crusher operator that he was going
onto the feeder.  Id.  The crusher operator, Jake
Chavarria, waved back.  Mr. Chavarria disappeared for a
short time, returned to the control house, and waved a
second time.  (Tr. 119).  Mr. Sarbaum understood this
to mean that the feeder had been locked out.  Mr.
Sarbaum then walked onto the feeder.  He was not
instructed to travel up the feeder by his supervisor
and he did not expect to assist in freeing the plug.
Mr. Sarbaum testified that he "was just curious to see
what happened."  (Tr. 110).

     Mr. Sarbaum testified that he walked only as far as
the spreader bar, which he called the "safety bar."  (Tr.
103).  He stated that he would never travel past the
safety bar because to do so would be unsafe,
particularly when the jaw is moving.  He also testified
that the feeder was virtually empty of rock when he
walked on it.  Mr. Sarbaum stated that there was very
little rock on the feeder when he approached it in his
dozer.  Id.   As he walked up the feeder, he did not
have to step over rocks because there "wasn't any
material" on the feeder.  (Tr. 106).  He stated that he
could see the slats of the feeder.  He testified that
there was some rock and dirt on the feeder and that he
could see 90% of the slats.  (Tr. 122).

     Mr. Sarbaum testified that when he reached the safety
bar, he was able to look over the end of the feeder and see
part of the crusher.  (Tr. 108).  He could see a large
rock lodged in the crusher.  (Tr. 106).  He stated that
the safety bar was at about the level of his chest and
that he did not travel beyond the bar.  The bar was
about five feet from the discharge end of the feeder.
(Tr. 107).  Mr. Sarbaum testified that he was not in
any danger when he walked up the feeder because it was
nearly empty and the four-foot high aprons on the
feeder would keep him from falling off the feeder even
if he were to stumble.  In addition, he was not in
danger of falling off the end of the feeder into the
jaw crusher because he did not travel beyond the safety
bar.

     He stated that he has walked up the feeder in similar
circumstances on a number of occasions and that he
normally walks back down the feeder and returns to his
dozer once he sees what is plugging the crusher.  In
this instance, he saw someone waving his arms at him
near the tool trailer.  (Tr. 111).  After Mr. Sarbaum
returned to his dozer, the man approached him and
motioned him to step down from the dozer.  The man put
his hands on Mr. Sarbaum's shoulders, identified
himself as an MSHA inspector, and told him that he
should not be walking on the feeder when the crusher is
in motion.  Mr. Sarbaum became upset when the inspector
put his hands on his shoulders.

          2.  Discussion and Analysis

     For the reasons set forth below, I find that the
Secretary established a violation of section 56.11001. 
First, I find that the standard applies to the feeder 
because Mr. Sarbaum walked up the feeder to look into 
the crusher. The standard provides that a safe means of
access shall be provided and maintained to all working
places.  Working place is defined as "any place in or
about a mine where work is being performed."  30 C.F.R.
� 56.2.  Although the area near the discharge end of
the feeder is not a working place in the traditional
sense, Mr. Sarbaum walked up the feeder for a specific
purpose:  to see what was in the crusher.  He was not
directed to look into the crusher by his supervisor,
but this was his general practice and his supervisor
was aware of this practice.  The feeder conveyor was
the normal travelway that was used by Mr. Sarbaum.
Accordingly, I find that the end of the feeder was a
working place.

     The parties dispute the amount of rock that was on
the feeder at the time.  Inspector Capps testified that
the feeder was about half full of rock.  Mr. Sarbaum
testified that it was mostly empty.  For reasons that
are not clear to me, Inspector Capps did not inspect
the feeder after he talked to Mr. Sarbaum near his
dozer.  The inspector observed the condition from a
distance of 150 feet, walked to the dozer, and talked
to Mr. Sarbaum, but he did not examine the feeder from
the dozer.  The inspector stated that he did not need
to look at the feeder from the dozer because he saw
everything he needed to see from 150 feet away.  (Tr.
37).  The feeder is at an angle and it would be
difficult to see the conditions inside the feeder from
a distance of 150 feet because of the aprons.  He had a
clear view of the discharge end of the conveyor,
however.

     Given the fact that Mr. Sarbaum was actually on the
feeder and the inspector only saw the feeder from a
considerable distance, I generally accept Mr. Sarbaum's
account of the conditions inside the feeder.  I find
that the feeder was mostly empty but that there was
rock on the feeder.  Mr. Sarbaum testified that he saw
a large rock in the crusher; he did not say that he saw
a lot of smaller rock and dirt on top of or around the
large rock.  It is likely that at least some rock
remained on the feeder when it was shut down.  Thus, I
find that rocks of various sizes were on the feeder but
that it was not half full, as the inspector believed.
I find that the discharge end of the feeder contained a
considerable amount of rock, as observed by the
inspector.

     The testimony also conflicts as to whether Mr. Sarbaum
traveled past the spreader bar when he looked into the
jaw.  On one hand, Mr. Sarbaum testified at the hearing
that he did not go beyond the spreader bar and that he
would never do so because it would be dangerous.  He
also made this statement to Inspector Palmer during the
special investigation.  (Tr. 53).   Inspector Capps
testified that he saw Mr. Sarbaum walk up the feeder,
get on the other side of the spreader bar and look down
into the jaw crusher.  (Tr. 17).  He testified that he
is positive that Mr. Sarbaum crossed under the spreader
bar because he had a clear view of the discharge end of
the feeder from his observation point.  (Tr. 18).

     I find that it would have been difficult to see much of
the crusher if one were to stand behind the spreader bar.
Mr. Sarbaum is over six feet tall and the spreader bar
was about six feet above the surface of the feeder.  It
is possible that he could have observed a small part of
the crusher without crossing under the spreader bar.  I
find that the testimony of Inspector Capps is more
credible on this issue, however.  I rely, in part, on
the photographs introduced by Western Construction.
(Ex. R-1, R-2).  Given the angle of the feeder and the
distance between the spreader bar and the end of the
feeder, it is unlikely that anyone could see a
significant part of the crusher from that location.  He
would have had to travel past the spreader bar or
leaned forward under the bar to examine the crusher.

     I agree with counsel for the Secretary that even if
Mr. Sarbaum did not travel beyond the spreader bar, he was
still in danger of falling.  (Tr. 127-28).  He walked
up the feeder to the spreader bar and rocks on the
feeder presented a stumbling hazard.  He could have
stumbled and sprained an ankle or hit his head on one
of the aprons.  Other cases present similar situations.
In one case, an administrative law judge affirmed an
S&S violation of section 56.11001 because an employee,
who was walking on an empty elevated conveyor belt,
could have been knocked over by a gust of wind.  Walker
Stone Co., 14 FMSHRC 603, 606 (April 1992).  In USS, 13
FMSHRC 145, 154 (January 1991), an administrative law
judge affirmed a citation issued under this standard
because of an accumulation of rock on a walkway that
was up to eight inches deep.  It is not necessary to
find that Mr. Sarbaum would have fallen off the feeder
or fallen into the crusher in order to sustain a
violation.  As stated above, Mr. Sarbaum could have
injured himself without falling from the feeder.

     Mr. Sarbaum testified that he believed that it was 
safe for him travel up the feeder to observe the crusher 
and pointed to the fact that no employee of Western
Construction has ever been injured while walking on a
feeder.  I credit Mr. Sarbaum's testimony in this
regard, but the fact that an employee has never been
injured does not mean that an injury would never have
occurred if this practice continued at Western
Construction.  I find that the Secretary established
that Western Construction did not provide Mr. Sarbaum
with safe access to the discharge end of the feeder.  I
find that it was reasonably likely that Mr. Sarbaum or
another employee would be injured if this practice
continued at the mine.  Accordingly, I affirm the
violation.

     B.   Significant and Substantial Nature of the Violation

     An S&S violation is described in section 104(d)(1) of 
the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and
effect of a ... 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."  National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In Mathies Coal
Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out
a four-part test for analyzing S&S issues.  Evaluation of
the criteria is made assuming "continued normal mining
operations."  U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984).  The question of whether a particular violation
is S&S must be based on the particular facts surrounding the
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

     In order to establish that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of the safety
standard; (2) a discrete 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 in
question will be of a reasonably serious nature.

     I find that the Secretary established the first two elements
of this test.  There was a violation of the standard and a
measure of danger to safety contributed to by the violation.
The issue is whether there was a reasonable likelihood that
the hazard contributed to by the violation will result in an
injury.  I find that the Secretary established that an
injury was reasonably likely in this instance and that such
an injury would be of a reasonably serious nature.

     As stated above, the surface of the feeder was uneven,
there were rocks of various sizes along the feeder, and it was
reasonably likely that Mr. Sarbaum would trip and fall, if
the practice of walking up the feeder continued unabated at
the plant. There was no handrail or other device that one
could hold to steady oneself.  It was also reasonably likely
that a fall would result in an injury of a reasonably
serious nature.  An employee could twist his ankle, break a
bone, or hit his head on the apron.  If the feeder contained
a significant amount of rock, someone could fall off the
side of the feeder because the apron would no longer act as
a barrier to such a fall.  It was also reasonably likely
that Mr. Sarbaum or another dozer operator would fall off
the feeder into the crusher if this practice continued.
Western Construction argues that the stumbling hazard
presented in the feeder is no greater than the stumbling
hazard presented while walking on the ground at the plant.
I disagree.  Anyone walking up the feeder is restricted to a
confined area and he cannot walk around obstructions as he
could on the ground.

     C.   Other Issues

     At the hearing, the Secretary presented evidence of a
violation of section 56.15005.  The petition for assessment
of penalty does not mention a violation of that section.
Exhibit A, attached to the petition, lists only a violation
of section 56.11001.  The citation itself, including the
modification, refers to section 56.15005.  I hold that the
only issue before me is the allegation concerning section
56.11001.  In civil penalty cases, the Secretary proposes
civil penalties for alleged violations of her safety and
health standards.  A separate penalty is proposed for each
alleged violation.  In this case only one penalty has been
proposed.  I reject the Secretary's argument that the
proposed penalty in this case covers both alleged
violations.  Although it is clear that Mr. Sarbaum was not
wearing a safety belt or line, a penalty was not proposed
for that alleged violation and any issues concerning that
safety standard are not before me.

     Western Construction presented evidence that it operates 
the plant in a safe manner.  It argues that it is not "renegade
company" and that its policy "emphasizes safety first."
(Tr. 70).  It introduced two safety awards it received from
MSHA's Holmes Safety Association.  Western Construction
received one award for working 100,392 hours from January
1986 through March 1995 without any fatal accidents or
permanent total disability accidents.  (Ex. R-3).  It
received another award for working 50,392 hours between
April 1991 through March 1995 without incurring a lost time
injury.  (Ex. R-4).  Western Construction's achievements in
this regard are commendable.  It must be stated, however,
that safe mine operators are issued citations from MSHA.
The fact that Western Construction was issued the subject
citation does not mean that it is a renegade company or that
it does not emphasize safety.  The citation simply indicates
that the conditions described in this citation presented a
safety hazard to employees.


      II.  APPROPRIATE CIVIL PENALTY

     Section 110(i) of the Mine Act sets out six criteria to
be considered in determining appropriate civil penalties. The
parties stipulated to many of the criteria.  I find that
seven citations were issued at the plant in the 24 months
preceding June 23, 1997.  The plant worked about 20,692 man-
hours per year at that time.  Western Construction worked
about 41,293 man- hours per year at that time.  The
violation was rapidly abated.  The penalty assessed in this
decision will not have an adverse effect on Western
Construction's ability to continue in business.  The
violation was S&S and it created a serious safety hazard.

     Inspector Capps determined that Western Construction's
negligence was high because it was a normal practice at the
mine for dozer operators to walk up the feeder to find out
what was in the jaw crusher.  (Tr. 21-22).   The employees
at the plant did not consider this practice to create a
significant hazard.  Although I disagree with this
assessment, management at the plant was not indifferent to
safety issues.  I credit the testimony of Eldon Heath, the
crusher superintendent, that safety is a primary concern at
the plant.  (Tr. 88).  Nevertheless, I find that there was a
lack of reasonable care in allowing employees to walk along
the feeder.  I hold that Western Construction's negligence
was moderate to high.  Based on the penalty criteria, I find
that a penalty of $1,000 is appropriate for this violation.


      III.  ORDER

     Accordingly, Citation No. 7959086 is AFFIRMED and Western
Construction, Inc., is ORDERED TO PAY the Secretary of Labor
the sum of $1,000.00 within 40 days of the date of this
decision.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Megan J. Green, Esq.,
Office of the Solicitor, 
U.S. Department of Labor,
1111 Third Avenue, Suite 945,
Seattle, WA 98101-3212 
(Certified Mail)

Maurice O. Ellsworth, Esq., 
Howard, Ellsworth, Ipsen and Perry,
P.O. Box 637,
Boise, ID 83701-0637
(Certified Mail)

RWM