<DOC>
[DOCID: f:yk9875.wais]

 
CAR-O-LIN
August 26, 1999
YORK 98-75-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         August 26, 1999

SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No.  YORK 98-75-M
               Petitioner        : A. C. No.  43-00509-05501
          v.                     :
                                 : Car-O-Lin Mine
CAR-O-LIN,                       :
               Respondent        :

                             DECISION

Appearances: Kathryn A. Joyce, Esq., Office of the Solicitor, 
             U. S. Department of Labor, Boston, Massachusetts, 
             for the Secretary;
             Lester Corwin II, Esq., South Royalton, Vermont,
             for the Respondent.

Before: Judge Weisberger

      I. Statement of the Case

     This case is before me  based  upon  a Petition  for 
Assessment of Civil Penalty filed by the Secretary of Labor 
(Secretary) alleging that CAR-O-LIN  violated  30  C.F.R. 
�� 56.14107(a) and 56.14132(a).  Subsequent to  notice, a 
hearing was held in Burlington, Vermont, on August 3, 1999.

     II. Findings of Fact and Discussion

     A.  Background

     CAR-O-LIN operates a sand and gravel pit in Turnbridge,
Vermont.   On  June  18,  1997,  Edward  M.  Blow,  an  MSHA
inspector, presently retired, inspected the  site  at  issue
and issued a backup alarm notice for an Allis-Chalmers 645-B
wheel  loader.   He  told Linclon Chambers, who had informed
him that he was working  for  Brent Lindstrom, that it would
be  at  least  4  weeks  before someone  would  be  back  to
reinspect the premises.  Blow informed Lindstrom, CAR-O-LIN's 
owner, that he  was  issuing  only  notices, not citations, 
in order to give him (Lindstrom) time  to comply. On  May 7,  
1998, Kathleen Robinson, an MSHA  inspector,  inspected  the 
site. She testified that  a  backup  alarm,  that  had  been 
installed in  a  Fiat  Chalmers  front-end  loader  was  not   
working. Robinson issued a citation alleging a violation  of 
section  56.14132(a),  supra.  In  addition,  according  to 
Robinson, there were not any guards in place  on  a  crusher 
that was not in operation. She testified that several guards 
were on the ground. Robinson testified  that  Chambers  told  
her that there was no guard for the chain drive.  She issued  
a citation alleging a violation of section 56.1417(a), supra.

     B.  Jurisdiction

     CAR-O-LIN asserted, in its closing argument, that it is 
not subject to the jurisdiction of the Act, as  no  coal  is
extracted  from  the  site.   There  is  no  merit  to  this
argument.   Sections  103 and 104 of the Federal Mine Safety
and Health Act of 1977  ("the Act") authorizes the Secretary
of Labor to inspect, and  issue  citations  to  operators of
"coal  or other mines."  Section 3(h)(i) of the Act  defines
"coal or other mine" as pertinent, as ". . .  (A) an area of
land from which minerals are extracted in nonliquid form . .
.   ."  The common meaning of the term "mineral," as defined
in Webster's  New Collegiate Dictionary, as pertinent, is as
follows: ". . .  broadly: any of various naturally occurring
homogeneous substances  (as stone, coal, salt, sulfur, sand,
petroleum, water, or natural  gas)  obtained  for  man's use
usu. from the ground . . .   ."  Hence,  it  is  clear  that
CAR-O-LIN's operation is a mine as defined in the Act.

     In essence, CAR-O-LIN further  argues  that  since  its 
products are not sold outside Vermont, it is not involved in
interstate commerce, and is not subject to the Act.  In this
connection, Lindstrom testified that CAR-O-LIN's permit from
the  State  of  Vermont allows it to sell only 15, 000 cubic
yards of sand and gravel a year, that it sells this material
only to customers  living  in Turnbridge and the surrounding
towns, and that it uses only  one  delivery truck and it can
only be operated in the State of Vermont.

     In Jerry Ike Harless Towing, Inc., and  Harless,  Inc.,  
(16 FMSHRC  683  (April  11, 1994)), the Commission analyzed 
the scope of the Commerce  Clause  of  the  Constitution  as 
follows:

          The Commerce Clause  of  the Constitution has been
     broadly   construed  for  over  50 years.    Commercial
     activity that  is purely intrastate in character may be
     regulated by Congress  under the Commerce Clause, where
     the  activity, combined with  like  conduct  by  others
     similarly  situated, affects commerce among the states.
     Fry v. United  States,  4221,  U.S.  542,  547  (1975);
     Wickard v. Filburn, 317, U.S. 111 (1942) (growing wheat
     solely for consumption on the farm on which it is grown
     affects  interstate  commerce).   Congress intended  to
     exercise its authority to regulate  interstate commerce
     to  the  "maximum  extent  feasible"  when  it  enacted
     Section  4 of the Mine Act.  Marshall v.  Kraynak,  604
     F.2d 231,  232,  (3d  Cir  1979), cert. denied 444 U.S.
     1014 (1980); United States v.  Lake, 985 F.2d 265, 267-
     69 (6th Cir. 1993).  In Lake, the  mine  operator  sold
     all its coal locally and purchased mining supplies from
     a  local  dealer.   985 F.2d at 269.  Nevertheless, the
     court held that the operator  was engaged in interstate
     commerce  because  "such  small  scale   efforts,  when
     combined  with others, could influence interstate  coal
     pricing and demand."  Id.  Harless, supra at 686.

     Based on the broad principles enunciated by the Commission
in Harless Towing, supra, and based upon the  authority of the
Sixth Circuit in Lake,  supra, I am constrained to  find  that
although CAR-O-LIN's operation is small, and no products are 
sold outside Vermont, it was engaged  in  interstate commerce 
"because such  small  scale  efforts,  when combined with others  
could influence  interstate  [sand  and  gravel]  pricing  and  
demand" Harless, supra, at 686.  I thus find  that  CAR-O-LIN's 
operation is a mine subject to the Act's jurisdiction.

     C.  Violation of Section 56.14132(a), supra

     Section  56.14132(a)  provides as follows: "[m]anually-
operated horns  or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."

     According to Robinson, the backup  alarm  on  the  Fiat 
Chalmers front-end loader  was in place, but was not working.  
CAR-O-LIN did not impeach this testimony, nor did it offer a
witnesses to contradict it, and  accordingly I accept  it. I
thus  find that since the backup alarm on the loader did not
function,  it  was not maintained in a functional condition,
and thus was in violation of section 56.14132(a), supra.

     The record does not contain any clear convincing evidence
as to the length of time the backup alarm had not been working,
and the length of time CAR-O-LIN  should  have  known of this
functional defect.  Blow testified that when he had inspected
the subject site in June 1997, a year prior to the inspection
at issue, he issued a "backup alarm  notice"  for  an  Allis-
Chamlers 645-B wheel loader. However, he did not testify as
to whether the loader's alarm was not functioning, or whether
an alarm had not been installed.[1] Neither did the Secretary
proffer in evidence the written Notice  given  to  CAR-O-LIN 
which might contain a description of the specific condition 
that provided the basis  for the Notice. Lindstrom testified 
that Chambers, who was not an employee of his and who just 
did repair work for him, had disconnected the alarm in order  
to locate a noise in the transmission. Robinson testified that 
Chambers had told her that the alarm had worked the day before 
the inspection. However, neither the Secretary nor CAR-O-LIN 
produced Chambers to testify. I thus find that it has not been 
established that the level of CAR-O-LIN's negligence was more 
than low. The Secretary did not adduce any evidence as to the  
gravity of this specific violation. Hence I conclude that the  
it has not been established that the level of the gravity was 
more than low. The  record establishes that the violation was 
abated timely, and in good faith. Also the record establishes 
that CAR-O-LIN does  not  have  any  history  of  violations.
Additionally,  based  upon  Lindstrom's  uncontradicted  and
unimpeached testimony, I conclude that the size of CAR-O-LIN's
operation is small. Considering all the above factors, I find 
that a penalty of $25.00 is appropriate for this violation.

     D.  Violation of 30 C.F.R. � 56.14107(a)

     Section 56.14107(a) provides as  follows:  "[m]oving 
machine parts  shall  be guarded to protect persons from  
contacting gears, sprockets,  chains,  drive,  head,  tail,  
and takeup pulleys,  flywheels,  couplings,  shafts,  fan  
blades,  and similar moving parts that can cause injury."

     In essence, according to Robinson, there was  no  guard 
for the chain drive area of the crusher.  CAR-O-LIN  did not
impeach this testimony, nor did it proffer any  testimony or
evidence that would tend to negate Robinson's testimony that
on the date in question, the chain drive area of the crusher
was  not  guarded.   I thus find that CAR-O-LIN did  violate
section 56.14107(a), supra.

     According to Robinson, Chambers told her that  the guard 
for the area at issue did not exist, and that the crusher had
last  been  operated  a  week prior to the inspection.   She
asked  Chambers  why  the guard  had  not  been  "repaired."
According to Robinson,  Chambers  stated  that "they had not
gotten around to it" (Tr. 35).  The Secretary  did  not call
Chambers  to testify, nor did the Secretary indicate why  it
had failed  to  do  so.   There  is nothing in the record to
establish that Chambers would have had personal knowledge as
to  why  a  guard had not been installed.   Therefore,  this
hearsay testimony  was accorded little weight.  On the other
hand, Lindstrom testified  that  the  area  in  question was
provided  with a guard, and that approximately a week  prior
to Robinson's  inspection,  the  guard  had  been removed in
order for a defective chain to be removed and  a  new one to
be  installed.   He also testified that the crusher had  not
been run without a  guard  in  place, and that the guard had
been installed immediately after  Blow's  inspection in June
1997.  This testimony has not been impeached or contradicted
by the Secretary and accordingly I accept it.   Within  this
context, I find that the level of CAR-O-LIN's negligence was
no  more than low.  The Secretary did not offer any evidence
specifically detailing the gravity of the instant violation.
I thus  find  that  it  has  not  been  established that the
gravity of the violation was more than low.   The  remaining
factors  set  forth in section 110(i) of the Act are as  set
forth above (II(C) (infra).  Based upon all these factors, I
conclude that a  penalty  of  $25.00 is appropriate for this
violation.

                              ORDER

     It is ORDERED that CAR-O-LIN shall, within 30 days of the 
date of this decision, pay a total civil penalty of $50.00.


                              Avram Weisberger
                              Administrative Law Judge


Distribution:

Kathryn A. Joyce, Esq., 
Office of the Solicitor,  
U. S. Department of Labor, 
JFK Federal Building, Room E-375,  
Government Center, 
Boston, MA 02203 
(Certified Mail)

G. Lester Corwin II, Esq., 
2219 Vt Rt 110, 
South Royalton, VT  05068
(Certified Mail)


dcp


**FOOTNOTES**

     [1]:  Lindstrom testified that when Blow inspected the
front-end loader, it had not been provided  with  a  backup 
alarm.