Blue Circle Atlantic, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Blue Circle Atlantic contested five citations issued at its Tulsa Cement Plant after MSHA inspections. Judge George A. Koutras affirmed three citations and vacated two, finding that the record supported some housekeeping and safety violations but did not support the remaining alleged violations. The judge assessed a total of $205 in civil penalties for the affirmed citations and ordered payment within 30 days. The proceeding was dismissed upon payment, while the two vacated citations were removed from the case.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.20003, § 56.20003(a), § 56.4102, § 56.6112, and § 56.11012
• Outcome: Three citations were affirmed with $205 in penalties, and two citations were vacated.
• Key point: Citation outcomes depend on the evidence supporting each condition and the specific regulatory requirement, even within one enforcement proceeding.

Full text (FMSHRC public release)

+CCASE:
SOL (MSHA) V. BLUE CIRCLE ATLANTIC
DDATE:
19880805
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 87-77-M
PETITIONER A.C. No. 34-00026-05513
v.
Tulsa Cement Plant
BLUE CIRCLE ATLANTIC, INC.,
RESPONDENT

                               DECISION

Appearances: Michael Olvera, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
Robert McCormac, Industrial Relations Manager,
Blue Circle Inc., Tulsa, Oklahoma, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments in
the amount of $377 for five alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. The respondent filed an answer denying the
violations, and a hearing was held in Tulsa, Oklahoma. The
parties were afforded an opportunity to file posthearing briefs,
and the respondent's arguments presented therein have been
considered by me in the adjudication of this matter. The
petitioner opted not to file any posthearing arguments.

                                Issues

 The issues presented in this proceeding are whether the

respondent violated the cited mandatory safety standards, and if
so, the appropriate civil penalty to be assessed for those

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violations based on the criteria found in section 110(i) of the
Act. Also at issue are the inspector's "significant and
substantial" (S & S) findings, and the respondent's contention
that the petitioner failed to follow its civil penalty assessment
regulations by not affording the respondent an opportunity for a
conference with respect to one of the modified citations.

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95Ä164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

 3. Commission Rules, 20 C.F.R.     2700.1 et seq.

Stipulations

 The parties stipulated to the following (Tr. 3):

 1. The respondent's history of violations during the

24Ämonth period prior to the issuance of the citations in issue
in this case consists of ten (10) violations issued during the
course of 40 inspection days.

 2. The respondent's Tulsa Cement Plant had an annual

production of 235,139 tons, and the annual production rate of its
parent corporation, Blue Circle, Incorporated was 1,577,966 tons.

 3. The payment of civil penalties for the violations in

question in this case will not adversely affect the respondent's
ability to continue in business.

 4. The respondent's representative stated that the

respondent mines limestone, and that the product produced is
Portland cement.

                             Discussion

 The contested citations were issued by MSHA Inspector James

M. Smiser during the course of inspections he conducted at the
mine on March 24 and 25, 1987, and they are as follows:

 Section 104(a) "S & S" Citation No. 2870013, March 24, 1987,

cites a violation of 30 C.F.R. 56.20003(a), and the condition
or practice states as follows:

      The passageway on the #3 conveyor, in crushing
      division, was not maintained in a

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clean and orderly condition. An excessive amount of rock and
materials were allowed to accumulate on passageway, making
movement hazardous for employee.

 Section 104(a) "S & S" Citation No. 2870015, March 24, 1987,

cites a violation of 30 C.F.R. 56.4102, and the condition or
practice states as follows:

      The combustible liquid spillage and leakage, at the
      AllisÄChalmers primary crusher hydraulic control
      center, was not removed in a timely manner, or
      controlled to prevent a fire hazard. The oil spill/leak
      was large enough to cover floor area used as a
      passageway.

 The citation was subsequently modified on May 11, 1987, to

change the cited standard from section 56.4102 to section
56.20003, and the condition or practice was modified to read as
follows:

      The floor at lower level of the primary crusher work
      area was not maintained in a clean and dry condition.
      The hydralic (sic) oil spillage and leakage at the
      hydralic (sic) control center covered the floor area
      used as a passageway.

 Section 104(a) "S & S" Citation No. 2870016, March 24, 1987,

cites a violation of 30 C.F.R. 56.20003(a), and the condition
or practice states as follows:

      The passageway on west end of primary crusher discharge
      leaf conveyor was not maintained in a clean and orderly
      condition. The passageway was cluttered with steel
      plates, wood, and other materials.

 Section 104(a) "S & S" Citation No. 2870742, March 24, 1987,

cites a violation of 30 C.F.R. 56.6112, and the condition or
practice is described as follows:

      The burning rate of the safety fuse in use at quarry
      operation was not measured, posted in conspicuous
      location, and brought to the attention of all persons
      concerned with blasting. The last posted burning rate
      was 1985.

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Section 104(a) "S & S" Citation No. 2870741, March 25, 1987,
cites a violation of 30 C.F.R. 56.11012, and the condition or
practice is stated as follows:

      The opening at far east end of travelway, on north side
      of conveyor, between plant and clinker storage area is
      not provided with railings, barriers, or covers, to
      provide employee protection from a 15 to 20 feet fall,
      to bottom of storage bin.

MSHA's Testimony and Evidence

 MSHA Inspector James S. Smiser, testified as to his

background and experience, and he confirmed that he issued the
citations in question during the course of a scheduled regular
inspection conducted at the mine. He described the mine as an
open pit limestone mine with an associated cement mill, and he
confirmed that the mine employed approximately 80 employees
working three shifts (Tr. 6Ä9).

Citation No. 2870013 - 30 C.F.R. 56.20003(a)

 Inspector Smiser stated that he issued the citation for an

accumulation of materials which he found along an inclined
conveyor belt that is used in conjunction with the crushing of
materials. He believed that the material had fallen off the belt
onto the walkway or passageway along the north side of the belt
which proceeded from ground level up into the mill building. The
crushed limestone material was of various sizes, from
three-quarters of an inch to an inch and a half, and in some
areas it completely covered the walkway surface, running over the
kick-plate located along the side of the floor of the walkway. He
confirmed that section 56.20003(a) requires that passageways or
walkways be maintained in a safe condition free of accumulated
materials, and in his opinion, the cited accumulations presented
a tripping or falling hazard. The purpose of the three-inch
kickplate was to prevent the materials from falling off the
walkway to the ground level below and to prevent persons using
the walkway from falling off the walkway. He confirmed that a
standard handrail, with an upper and mid rail, was installed
along the walkway (Tr. 10Ä11).

 Mr. Smiser stated that his gravity finding of "highly

likely" was based on his opinion that the presence of accumulated
materials above the kickplate level presented a "very great
chance" of someone falling. Although someone falling would not
fall to the ground level below, they would probably

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catch themselves within the walkway area, but could possibly
sustain a back injury or a broken arm, leg, or ankle. He
determined that one individual such as a serviceman conducting an
equipment inspection regularly travelled the walkway and would be
exposed to the hazard. Such a person would normally be carrying a
grease gun or other service equipment in one hand, leaving only
one hand free for balance in the event he fell. This increased
the chances of an injury.

 Mr. Smiser believed that it was reasonably likely that the

hazard created by the accumulations would result in an injury of
a reasonably serious nature (Tr. 11Ä13). Mr. Smiser confirmed
that he made a finding of "moderate negligence" based on
information supplied to him during his close-out conference which
indicated that the accumulations had existed prior to his
inspection and would have been there more than one time. He was
told that the accumulations resulted from an engineering problem
associated with the conveyor and were often present. Abatement
was achieved by the removal of the materials from the walkway
(Tr. 13).

 On cross-examination, Mr. Smiser stated that it was unlikely

that anyone could slip completely under the handrail, and he
confirmed that he was familiar with the respondent's belt
maintenance procedures (Tr. 28).

Citation No. 2870015 - 30 C.F.R. 56.4102

 Mr. Smiser stated that he issued the citation after finding

spillage of hydraulic fluid caused by a leak of a crusher
hydraulic system located in the crusher plant. The spillage was
located on the concrete floor area which was surrounded by
handrails. The leak had been present for some time, and in an
effort to control it, clay absorbent material was spread over the
spillage in an effort to dry it up. At a later date, wooden
planks were put down over the spillage for access around the
crusher to the hydraulic control unit. Mr. Smiser stated that
section 56.4102 requires that the floor "be kept clean and
orderly" (Tr. 15).

 Mr. Smiser believed that the cited condition presented a

probable slip and fall hazard to a serviceman who periodically
was in the area to check the hydraulic oil in the crusher unit,
and that he would likely suffer back injuries if he were to slip
and fall on the walkway surface. Mr. Smiser estimated that the
variance between the flat walking surface and the planks ranged
between zero and 3 inches. He believed the condition resulted
from "high negligence" because it was obvious that the spillage
and leakage had existed for some time since

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the clay absorbent material and wooden planks had been used in an
attempt to control the spillage. The violation was abated by the
removal of the spillage and controlling the leak (Tr. 16Ä17).

 On cross-examination, Mr. Smiser confirmed that his citation

was subsequently modified on May 11, 1987, to delete the
reference to section 56.4102, and to replace it with section
56.20003, and that his original negligence finding was modified
from "moderate" to "high." Mr. Smiser confirmed that the
modifications were made after a post-citation conference with his
supervisor Russell Smith in which he and Mr. McCormac were
involved. Mr. Smiser confirmed that he believed the original
citation was properly issued but that Mr. Smith believed that the
cited hydraulic oil was not as combustible as he (Smiser) had
originally believed, and that the decision to modify the citation
was made by Mr. Smith (Tr. 30). Mr. Smiser stated that the
modified citation was mailed to the respondent and he had no
knowledge as to whether or not another conference was held to
discuss a clean-up problem rather than a combustibility problem
(Tr. 31). Mr. Smiser conceded that the use of absorbent materials
and the installation of wooden planks on the floor in an area of
spillage is normally done to alleviate or avoid problems and as
an effort to provide safe access. He was sure that a serviceman
had to go to the area to check the hydraulic oil, but could not
state how often this would occur (Tr. 32Ä33).

Citation No. 2870016 - 30 C.F.R. 56.20003(a)

 Inspector Smiser stated that he issued the citation after

finding steel plates, wood, and other materials such as cans of
lubricant on the walkway which had been constructed around a leaf
conveyor. The conveyor itself was well guarded and presented no
problem. The steel plates consisted of removable inspection and
service covers which had apparently been removed at some previous
time and left on the walkway. The plates were located at the top
of a staircase leading to the walkway. Once reaching the top of
the staircase, one had to step on top of the plates which were
stacked unevenly on top of each other in a "tipping" manner.
Since there was no solid walkway surface, he believed that it was
reasonably likely that an injury would occur in the event of a
slip or fall (Tr. 18).

 Mr. Smiser stated that the walkway in question was in a very

isolated area of the plant which was not traveled by a large
number of people, but that a serviceman in the area servicing the
conveyor and associated equipment once a shift

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would be exposed to the hazard. Mr. Smiser believed that if a
slip or fall injury occurred, there was a reasonable likelihood
that it would be of a reasonably serious nature. He made a
determination of "moderate negligence" on the basis of the amount
of stone dust on top of the plates and other materials,
indicating that they had been present for some time. The
violation was abated by the removal of the materials (Tr. 18Ä19).

 On cross-examination, Mr. Smiser stated that the passageway

in question did not lead to any other location, and in order to
get back from where one started, one would have to turn around
and go back in the opposite direction. Under the circumstances,
it would be unlikely that employees on any casual travel through
the plant would use the cited passageway, and any hazard exposure
would be extremely limited on the platform. Mr. Smiser confirmed
that it was possible that a failure of a dust collector earlier
on the day of his inspection could have caused the presence of
the dust which he observed on the materials, and that such a
failure could possibly accumulate dust in a fairly rapid period
of time (Tr. 40). The removal of the plates from the conveyor
would not pose a hazard to employees in the area from which they
were removed because the walkway would not normally take anyone
to that particular area (Tr. 49).

Citation No. 2879742 - 30 C.F.R. 56.6112

 Mr. Smiser stated that he issued the citation after finding

that the last safety fuse burning rate posted in the magazine was
dated 1985. Since his inspection was conducted in 1987, he was
concerned that the 1985 burning rate may not have referred to the
identical material which was burned and then marked on the wall
for use in 1987. He was also concerned with the fact that the
1985 fuse burning rate was currently being maintained as it was
in 1985, and that explosives "have of a way of aging
unpredictably." He believed that a more current rate should have
been posted, and he pointed out that the explosive manufacturer's
literature suggests that the age of explosives in very
unpredictable in terms of performance. Under these circumstances,
he stated that "I was not comfortable with the two-year time,"
and he confirmed that the explosives industry recommends that
explosives should be tested at least once a year. He also
confirmed that section 56.6112 does not include any dating
requirement (Tr. 20Ä21).

 Mr. Smiser stated that he based his gravity finding of

"reasonable likely" on the fact that if the fuse burning rate was
greatly increased, an individual using the explosives may not be
able to get away from it before an explosion took place.

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If he could not, serious injuries would result to one individual
lighting the fuse (Tr. 22). He made a finding of "low negligence"
because the respondent made an effort to comply by posting the
1985 fuse burning rate and did not ignore the regulation.
Abatement was achieved by testing the current fuse burning rate,
and this was done by cutting off a measured length and
determining the proper fuse burning rate and re-posting it. He
could not recall the exact burning rate time but indicated that
it "was very close" to the 1985 rate which had been previously
posted (Tr. 22Ä23).

 On cross-examination, Mr. Smiser confirmed that the

frequency of posting a fuse burning rate, as recommended by a
manufacturer such as Dupont, cannot be readily ascertained by
anyone by simply looking through MSHA's Part 56 standards, and
that one cannot know by reference to these regulations as to
whether or not MSHA has incorporated these recommendations as
part of its regulatory mandatory standards. He also confirmed
that the only way for the respondent to know whether the
recommendations by a manufacturer have been adopted by MSHA is to
ask an inspector when a citation is issued, or by a reference to
the recommendation itself (Tr. 42).

 Mr. Smiser stated that while other MSHA standards do

incorporate alcohol, tobacco, and firearms regulations and
provisions of the National Electric Code as part of its
regulations, one cannot find how often a safety fuse burning rate
should be posted because Dupont's blasting guides are not
incorporated by the cited standard (Tr. 42Ä43). Assuming that the
fuse burning rate posted at the time of the citation was the same
as the earlier rate 2 years ago, Mr. Smiser saw no need to post
it again and he would simply change the date (Tr. 43Ä44). Mr.
Smiser confirmed that he determined that the fuse in the magazine
which was being used in 1987 came from an identical spool which
was purchased in 1985 or earlier (Tr. 44). Mr. Smiser confirmed
that periodic blasting was taking place during March, 1987, and
assuming his inspection took place in 1985, no citation would
have been issued because the burning rate was posted and brought
to the attention of mine personnel. He issued the citation
because the posted burning rate was outdated and at least 2 years
old (Tr. 48Ä49).

Citation No. 2870741 - 30 C.F.R. 56.11012

 Mr. Smiser stated that he issued the citation after finding

that an opening at the end of a travelway alongside an inclined
conveyor running between the cement processing building and the
clinker storage area was unguarded and had no barrier to prevent
an employee from stepping off the walkway

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into the storage area below. Although the respondent's practice
concerning the wearing of safety glasses and safety equipment was
very good, since the materials being transferred from the belt to
the storage area were hot, any given any humidity present in the
area, safety glasses can "fog up" very quickly when one steps
into the storage area. Mr. Smiser was concerned that the
unguarded area posed a potential for someone slipping off the
edge of the travelway into the storage bin. Section 56.11012
required a barrier or cover on the open-ended walkway (Tr. 24).

 Mr. Smiser confirmed that although the unguarded area was

small, with a little walking area, a serviceman would be in the
"slipping area" and could fall through the unguarded opening for
a distance of 15 to 20 feet or less, depending on the build-up of
loose materials in the cone-type configuration bin below.
Although he believed that someone falling into the bin would have
his fall broken by the loose materials and would probably not
suffer fatal injuries, he believed that they would probably
suffer a back injury or broken bones. A serviceman in the area
servicing the dead pulley and associated conveyor parts would be
exposed to the hazard (Tr. 25).

 Mr. Smiser stated that he made a finding of "low negligence"

because the respondent had not discovered the opening or it
probably would have covered it, and MSHA had not previously
defined this area as a problem. The violation was abated after
the respondent provided a guard at the end of the walkway (Tr.
26).

 On cross-examination, Mr. Smiser stated that the conveyor

walkway entered the storage area of the adjacent building where
the tail pulley was located. He confirmed that it would be
unlikely that an employee would use the walkway as a means of
traveling from one point to another, except for performing some
work in the area. In the event that no work had been done in the
area for weeks or months, this would possibly explain why the
opening was not discovered, and it was possible that there was
extremely infrequent traffic in this area. Even so, he still
believed that it was not unlikely that an accident could occur
(Tr. 46). However, he would be surprised if there was no one in
the area at least once a shift to check the conveyor service
points, head pulley gear box, and to check oil levels and grease
the equipment (Tr. 47).

Respondent's Testimony and Evidence

 Lee Bales, retired quarry superintendent, testified as to

his work experience, and he confirmed that he was actively

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employed during the time of the inspection. Respondent's
representative made a videotape presentation of the locations
where the violations in question were issued, and Mr. Bales
explained what was depicted in the various scenes shown on the
videotape. The videotape was presented for the purpose of
familiarizing the court, and the parties, with the location and
physical parameters of the areas covered by the citations issued
by Inspector Smiser. Respondent's representative confirmed that
the videotape was made subsequent to the issuance of the
citations, and that it does not show the area concerning the
safety fuse burning rate citation (2870742), and that Citation
No. 2870741, dealing with the unguarded opening at the end of the
conveyor would be covered by another witness (Tr. 61, 79).

Citation No. 2870013

 Mr. Bales explained the purpose of the conveyor, and he

confirmed that the floor is constructed of grating, and that the
conveyor operates 5 days a week 8 hours a day. He stated that an
employee walking through the quarry area would have no reason to
use the conveyor as a regular means of travel from one place to
another, and that they would normally use a staircase to gain
access to the crusher building. However, the conveyor walkway is
used to gain access to the conveyor in the event of maintenance
problems or when the system is down for maintenance or service.
Normal operational procedures call for the cleaning of the
walkway when maintenance is required, and in his 10 years as a
supervisor there were no accidents or injuries caused by
materials on the walkway (Tr. 62Ä65). Any greasing could be done
from ground level by means of grease hoses (Tr. 77).

Citation No. 2870015

 Mr. Bales stated that there is no need to walk through the

cited area in the normal course of travel in the plant, and the
only need for anyone to be there is to perform maintenance work.
A lubrication pump in the area periodically causes oil leakage
problems due to the over-tightening of a "weeper seal," and
attempts are made to keep any leakage off the walkway floor by
means of a bucket kept under the pump. In addition, the area is
always wet due to rain water running into the area from outside,
and "soakum" material and wooden planks were used to alleviate
these oil leakage and water problems until the area could be
cleaned up. Mr. Bales stated further that because of production
and equipment difficulties in any crushing operation there are
occasions where more than one area of the plant is in an unclean
condition, and that in

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the exercise of his judgment as a supervisor, he must determine
which area needs to be cleaned first. Any such decisions are made
primarily on the basis of safety and any potential employee
hazard exposure, and secondarily, any potential equipment damage.
In his view, the cited area was a low hazard area, and that the
respondent's safety record attests to this (Tr. 65Ä67).

 On cross-examination, Mr. Bales stated that the pump is

operating constantly when the crushing system is running, and
during the winter months it operates all day. This causes a seal
"seepage" problem, and the buckets used to catch the overflow
would run over, and this would result in "a film of oil" on the
floor. The oil would never run over the wooden planks (Tr.
75Ä76).

Citation No. 7870016

 Mr. Bales stated that except for little maintenance work,

employees traveling through the cited area would not normally use
the passageway as a route to another work place. Any oiling of
equipment would be done while the equipment was idle, and any
clean-up judgments are made on the basis of the hazard involved,
and in his opinion the cited conditions would not likely cause
any accident of a reasonably serious nature (Tr. 69).

Citation No. 2870742

 Mr. Bales confirmed that he supervised the blasters, and he

explained the state training and licensing requirements for
blasters. He stated that the respondent uses safety fuses to
shoot water out of holes by means of a power primer and a 3Äfoot
length of fuse. Other blasting is done by an electrical "non-els"
system. All blasters working for him are certified, and they are
instructed in the proper use of safety fuses. The safety fuses
were not used very often, and at times, 2 or 3 months would pass
before there was a need to blast water out of holes.

 Mr. Bales stated that he determined the burning rate of the

safety fuse by burning it, and the rate was posted in the
magazine, a conspicuous place for employees who had access to the
fuse. Only he and the blaster had such access, and in his
opinion, he complied with the requirements of section 56.6112. He
confirmed that the standard contains no time restraints on the
frequency of posting the fuse burning rate, and he would always
test the fuse burning rate and post it as necessary.

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The standard does not require posting each time the fuse rate is
tested (Tr. 69Ä73).

 On cross-examination, Mr. Bales confirmed that for many

years safety fuses have only been used for shooting water out of
holes. He also confirmed that he was "comfortable" with the
posted 1985 fuse burning rate, and if he were not, he would have
checked it and changed the date (Tr. 75).

 Kenneth A. Lloyd, Process Engineer, and former maintenance

manager for 9 years, testified that he was familiar with most of
the plant areas and has had occasion to be in those areas during
his employment with the respondent. Referring to a videotape
presentation concerning Citation No. 2870741, Mr. Lloyd explained
the operation of the conveyor in question and described the
location where the citation was issued. He confirmed that the
alleged unguarded area was at the end of the conveyor where a
chain was installed, but not hooked up (Tr. 86). Respondent's
representative asserted that there were two chains in place, but
that neither were hooked up. Mr. Lloyd confirmed that the
conveyor ends at the point where one can enter the adjacent
storage area, and that anyone walking to the end of the conveyor
would have to turn around and go back, since the walkway ended at
that point (Tr. 87Ä88).

 Mr. Lloyd stated that a platform was installed several years

ago to facilitate some electrical work in connection with the
clinker storage area, but that normal maintenance work was not
performed from that platform. The platform is used as access to a
gate system used for freeing any material blockage which seldom
occurs. Any employee required to be on the platform would use
standard safety equipment such as a safety belt and safety line
attached to the handrailing (Tr. 89). No one is required on the
platform to perform any routine inspection or lubrication of the
conveyor, and in his opinion it was not reasonably likely that a
serious injury would result from the lack of a barrier at that
platform location (Tr. 90).

 On cross-examination, Mr. Lloyd confirmed that the chains

were originally installed as a safety barrier so that someone
could reach into the chute area with a pole to free any material
blockage. It was his understanding that the chains were unhooked
at the time of the inspection (Tr. 90). In the event the chains
are unhooked, an employee would be required to wear a safety belt
(Tr. 91). In response to further questions, Mr. Lloyd confirmed
that the platform was located at the same location as the end of
the conveyor, which ends at the same approximate location. He
also confirmed that there

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was a space between the platform and the conveyor, and if the
chains were not hooked up, there would be a drop to the storage
area below. A railing was provided for protection for anyone
falling off the conveyor travelway. Respondent's representative
confirmed that the chain location was the area which concerned
the inspector, and Inspector Smiser agreed. Mr. Smiser could not
recall the presence of any installed chain, and confirmed that
there was no barrier there. He also confirmed that a handrailing
was provided, and assuming the presence of an unhooked chain, he
would have issued a citation for not having the chain up.
Respondent's representative stated that he was with the inspector
during his inspection, and was surprised that the chains were not
hooked up. Mr. Smiser confirmed that he did not have his
inspection notes with him (Tr. 92Ä95).

 Robert McCormac, respondent's representative, reiterated

under oath that he was with the inspector and that a chain was
installed but was not hooked up. He confirmed that on prior
visits the chain was always hooked up, and that he was surprised
that it was not hooked up at the time of the inspection. Although
the citation does not refer to any chain, he was convinced that
the citation was issued because the chain was not attached across
the end of the walkway (Tr. 96). He also agreed that there was an
opening beyond the chain location (Tr. 97).

 With regard to Citation No. 2870015, Mr. McCormac read a

prepared handwritten statement explaining the respondent's
position concerning the citation. The statement consists of
arguments pointing out the modification to the citation, the
subsequent conference held with MSHA's district manager, and the
fact that the respondent was not afforded another conference
after the citation was modified (Tr. 97Ä105). Mr. McCormac
conceded that the cited conditions did exist (Tr. 106).

                    Findings and Conclusions

Fact of Violations

Citation Nos. 2870013 and 2870016, 30 C.F.R. 56.20003(a)

 The inspector issued these citations after finding

accumulations of rock and materials along the passageway of the
No. 3 belt conveyor, and steel plates, wood, and other materials
along a passageway at the west end of a primary crusher leaf
conveyor. He cited a violation of the housekeeping

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requirements of mandatory standard section 56.20003(a), which
provides as follows:

 At all mining operations-

      (a) Workplaces, passageways, storerooms, and service
      rooms shall be kept clean and orderly;

 *     *     *     *     *     *     *     *     *     *

 In its posthearing arguments, respondent takes the position

that the cited areas were not "passageways," and that the
citations should be vacated. Citing Webster's Dictionary
definition of a passageway as "a way that allows passage to or
from a place or between two points," and relying on the testimony
of its former quarry supervisor Mr. Lee Bales, that employees
walking through the quarry area would not have reason to use the
conveyor walkways as a normal means of getting from one place to
another, or for access or as a means of travel to any point in
the plant, the respondent concludes that the cited areas were not
passageways.

 The definitions found in section 56.2, do not define the

term "passageway." The term "travelway" is defined as "a passage,
walk or way regularly used and designated for persons to go from
one place to another." Webster's New Collegiate Dictionary
defines the term "passageway" as "a way that allows passage."

 While it may be true that the No. 3 conveyor passageway was

not used by mine personnel in general as a means of travel from
the quarry to the plant, the facts show that it was a walkway
adjacent to the inclined conveyor which provided a means of
travel and access to the conveyor by mine personnel and others
who had a need to be there from time to time. As a matter of
fact, the parties in this case characterized the "passageway" as
a "walkway," and on the facts here presented those terms are used
interchangeably. Inspector Smiser testified that the walkway or
passageway was used on a regular basis as a means of travel along
the conveyor by service personnel for inspection or maintenance
purposes.

 With regard to the leaf conveyor location, the inspector

characterized the passageway as a walkway which provided access
to the conveyor and associated equipment, as well as certain
removable conveyor inspection and service plates. Although the
inspector conceded that the cited area was not frequently
travelled and was rather isolated, he confirmed

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Page 16

~1004
that a serviceman would be in the area at least once during each
shift to service the conveyor and other equipment.

  Quarry superintendent Bales testified that the No. 3

conveyor walkway was used as a means of access to the conveyor
for maintenance or servicing, as well as for routine cleaning of
the walkway. As for the leaf conveyor, he confirmed that while no
one would normally use the passageway or walkway as a means of
travel to another workplace, service personnel would have
occasion to be in the area for routine cleanup or maintenance
work.

 Respondent's reliance on the Allied Chemical Corporation

decision, 2 FMSHRC 950 (April 1980), is not well-taken. In that
case, the operator was cited with a violation of mandatory safety
standard section 56.11Ä1, which required that a safe means of
access be provided and maintained to all working places. The
violation was issued after an inspector found an accumulation of
muck on a platform. Former Commission Judge Forrest Stewart
vacated the citation after finding that the record did not
establish that the platform was a "working place" with the
definition of that term pursuant to section 56.2, because there
was no evidence that any work was being performed, had ever been
performed in the past or would be performed in the future, while
the accumulation was present. Judge Stewart observed that the
cited standard was not a housekeeping standard, but one requiring
safe access to places where work is being performed.

 The Standard Slag Company decision, 2 FMSHRC 3312, 3324

(November 1980), cited by the respondent, also concerned a
violation of the safe access requirement of section 56.11Ä1, and
I vacated the citation after finding that a cited catwalk and
platform under a conveyor was not a "working place" within the
definition found in section 56.2. The Magma Copper Company case
cited by the respondent, 1 FMSHRC 837, 856 (July 1979), concerned
a violation of section 57.11Ä12, which required that openings
above, below, or near travelways be protected by barriers. I
vacated the citation after finding that an elevated platform
located 100 feet off the ground, and which was used infrequently,
was not a travelway within the meaning of the cited standard or
the section 57.2 definition of that term.

 In the instant case, the respondent is charged with a

violation of the housekeeping requirements of section 56.20003(a)
which required passageways to be kept clean and orderly. It is
not charged with a failure to provide a safe means of access to a
working place. Further, the fact that clean-up of the conveyor
adjacent to the cited passageway was

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Page 17

~1005
a regular part of the respondent's maintenance effort is only
relevant insofar as the negligence and gravity connected with the
violation is concerned. It may not serve as an absolute defense
in a situation where the inspector finds an accumulation of rock
and materials which may pose a hazard to anyone walking along the
conveyor passageway. The presence of such accumulations do not
comply with the requirement that such areas be kept clean.

 The respondent has not rebutted the fact that the cited

accumulations of rock materials were in fact found by the
inspector along the cited conveyor walkway or passageway in
question, nor has it rebutted the existence of the steel
inspection plates, wood, and other materials such as cans of
lubricant on the walkway on the location of the leaf conveyor.
The cited standard section 30 C.F.R. 56.20003(a), requires that
such areas be kept clean. Given the existence of the materials
found by the inspector, I conclude and find that the cited areas
were not maintained in a clean condition as required by the cited
standard, and that the failure by the respondent to keep these
areas clean constituted violations of the standard. Further, I
reject the respondent's arguments that the cited areas were not
passageways. To the contrary, regardless of whether they are
characterized as "passageways" or "walkways," the facts here
establish that the cited locations provided a means or travel,
access, and passage to and from the cited areas by mine personnel
who would have a need to be there for service, maintenance, or
cleanup work. Accordingly, the citations ARE AFFIRMED.

Citation No. 2870015 - 30 C.F.R. 56.20003

 This citation was issued on March 24, 1987, after the

inspector found some oil spillage on the floor area at the
primary crusher hydraulic control center. He characterized the
spillage as "combustible," and stated that it was large enough to
cover the floor areas used as a passageway. The inspector stated
that the spillage was "not removed in a timely manner, or
controlled to prevent a fire hazard," and he cited a violation of
mandatory standard section 56.4102, which provides as follows:

      Flammable or combustible liquid spillage or leakage
      shall be removed in a timely manner or controlled to
      prevent a fire hazard.

 The citation was subsequently modified on May 11, 1987, and

it was served on the respondent. The modified citation

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Page 18

~1006
deleted any reference to section 56.4102, and charged a violation
of the housekeeping requirements of section 56.20003, which
provides as follows:

      At all mining operations--

      (a) Workplaces, passageways, storerooms, and service
      rooms shall be kept clean and orderly;

      (b) The floor of every workplace shall be maintained in
      a clean and, so far as possible, dry condition. Where
      wet processes are used, drainage shall be maintained,
      and false floors, platforms, mats, or other dry
      standing places shall be provided where practicable;
      and

      (c) Every floor, working place, and passageway shall be
      kept free from protruding nails, splinters, holes, or
      loose boards, as practicable.

 In addition to the change in the referenced standard

allegedly violated, the cited condition or practice was modified
to read as follows:

      The floor at lower level of the primary crusher work
      area was not maintained in a clean and dry condition.
      The hydraulic oil spillage and leakage at the hydraulic
      control center covered the floor area used as a
      passageway.

 Inspector Smiser confirmed that the modification was made by

his supervisor Russell Smith because Mr. Smith made a
determination that the hydraulic oil spill was not combustible as
Mr. Smiser originally had believed.

 In its posthearing brief, the respondent argues that the

amended citation is procedurally defective because MSHA failed to
provide the respondent with an opportunity for a conference with
its district manager after the modification of the citation, and
that the inspector was not made available to the respondent for a
post-inspection conference to discuss the amended citation.
Although the citation was issued under the same number as the
original citation, the respondent takes the position that it was
in fact a new citation citing a new standard, and that it
required a notification to the respondent of its right to a
conference on the newly amended citation.

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Page 19

~1007
The respondent concedes that it was afforded a conference with
the district manager on the original citation. However, it takes
the position that to change a citation from a flammable liquid to
a housekeeping violation because evidence submitted by the
respondent during the conference proved the inspector wrong with
respect to the question of the combustibility of the oil spillage
is an abuse of MSHA's discretion. Citing the decision in Standard
Slag Company, 2 FMSHRC 3312, 3322Ä3323 (November 1980), and El
Paso Rock Quarries, Inc., 1 FMSHRC 35, 38 (January 1981), the
respondent asserts that MSHA has not always been allowed the
discretion to modify citations once they are written.

 In the Standard Slag Company case, I rejected MSHA's

attempts to amend its civil penalty proposal to alternatively
charge an operator with a violation of a standard different from
the one originally charged. The facts in that case reflect that
MSHA's attempts to amend the citation came after the trial of the
case after all of the evidence was in, and it took the form of a
motion filed by MSHA as part of its post-hearing arguments. In
the El Paso Rock Quarries case, the Commission affirmed the trial
ruling of a judge who denied MSHA's request at the opening of the
hearing to amend a citation to reflect a change in the originally
cited standard. The Commission held that "Granting or denying
amendments is largely a discretionary matter with the judge," and
it found no abuse of discretion, even though it may have ruled
differently as an initial matter.

 The facts in the instant case are clearly distinguishable

from those in Standard Slag and El Paso Quarries. In the case at
hand, the original citation was amended and modified prior to the
filing of the case with the Commission. A copy of the modified
citation was served on the respondent, and the respondent has had
its day in court and has been given a full opportunity to present
its defense. Further, there is no evidence in this case that the
respondent ever requested a conference with MSHA on the newly
amended citation. While it is true that 30 C.F.R. 100.6,
provides an opportunity to a mine operator to request a
conference upon notice from MSHA, I note that the granting of
such conferences is within MSHA's sole discretion. In any event,
I find no basis for concluding that the respondent has been
prejudiced by MSHA's failure to notify it of its right to a
conference or because a conference was not held. The respondent
has had a full opportunity to be heard on the merits of the
alleged violation during the hearing on the contested citation,
including its right to confront and cross-examine the inspector,
and to present its testimony

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Page 20

~1008
and evidence in defense of the citation. Under the circumstances,
the respondent's assertion that the contested modified citation
was procedurally defective IS REJECTED.

 With regard to the merits of the citation, the respondent

argues that the cited location was not a "passageway," and it
cites the testimony of Inspector Smiser who indicated that once
an employee goes into this area the only way out is the way he or
she came in, and that it would be unlikely for employees in
casual travel through the plant area to use this "passageway."
Respondent also cites the testimony of Mr. Bales who indicated
that the access to this area leads nowhere and there would be no
need for people to walk this area during the course of their
daily travel in the plant.

 For the reasons stated in my previous findings concerning

Citation Nos. 2870013 and 2870016, the respondent's "passageway"
arguments are rejected. The respondent has tacitly admitted that
the cited location provided an access route to the crusher unit,
and Inspector Smiser testified that service personnel were in the
area periodically to check the hydraulic oil used for the
crusher. Mr. Bales confirmed that people would be in the area to
perform maintenance work, and that a lubrication pump in the area
periodically presented known leakage problems which required a
bucket to be kept under the pump to prevent leakage onto the
walkway floor. Further, the placement of wooden planks and
"soakum" material in the area in an effort to alleviate the
leakage problems supports a reasonable conclusion that personnel
had a need to be in the area to perform work. Under these
circumstances, it seems clear to me that the cited location was
not only a passageway providing access to the area, but was also
a workplace area which was required to be kept clean. The
respondent has not rebutted the existence of the oil spillage and
leakage as described by the inspector, and the placement of
planks, and the use of "soakum" and a bucket reasonably suggest
that the spillage covering the cited area was more than "a film
of oil" as suggested by Mr. Bales. Since the area was not kept
clean and dry as required by the standard, I conclude and find
that a violation has been established, and the citation IS
AFFIRMED.

Citation No. 2870742 - 30 C.F.R. 56.6112

 The inspector issued this citation after finding that the

burning rate of the safety fuse used at the quarry for blasting
purposes was not measured, posted conspicuously, or brought to
the attention of mine personnel engaged in blasting activities.
He cited an alleged violation of mandatory safety standard
section 56.6112, which provides as follows:

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Page 21

~1009
The burning rate of the safety fuse in use at any time shall be
measured, posted in conspicuous locations, and brought to the
attention of all persons concerned with blasting.

 Inspector Smiser confirmed that he issued the citation

because he believed that the posted fuse burning rate was
outdated and at least 2 years old. However, he conceded that the
cited standard does not include any dating requirements for
determining the fuse burning rate, and the credible evidence
produced by the respondent, including the inspector's own
admissions, reflects that the respondent did in fact comply with
the standard by measuring the burning rate of its fuses, posting
the results in a conspicuous place, and bringing it to the
attention of personnel engaged in blasting. Respondent's evidence
also established that all certified blasters were instructed in
the proper use and handling of explosives, and that all fuses
were properly tested and the fuse burning rates posted as
necessary. Under all of these circumstances, I agree with the
respondent's posthearing arguments in defense of this citation,
and I conclude and find that MSHA has advanced no probative
credible evidence to support a violation. Accordingly, the
citation IS VACATED.

Citation No. 2870741 - 30 C.F.R. 56.11012

 The inspector issued this citation after finding that an

opening at the end of a travelway alongside an inclined conveyor
located between the cement processing building and a clinker
storage area was unguarded and had no barrier to prevent anyone
from stepping or falling off the end into the clinker storage
area below. Mr. Smiser further described the location of the
unguarded area as the north side of the conveyor where it entered
the enclosed building for a short distance around the conveyor
head pulley. He cited a violation of mandatory standard section
56.11012, which provides as follows:

         Openings above, below, or near travelways through which
         persons or materials may fall shall be protected by
         railings, barriers, or covers. Where it is impractical
         to install such protective devices, adequate warning
         signals shall be installed.

 Section 5.62 defines a "travelway" as "a passage, walk or

way regularly used and designated for persons to go from one
place to another."

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Page 22

~1010
In its posthearing brief, the respondent asserts that Inspector
Smiser's inaccurate testimony regarding the location of the
unguarded conveyor location in question should render the
citation null and void. This defense is rejected. Although the
inspector's testimony may have been imprecise, it seems clear to
me from the testimony of both Mr. Lloyd and Mr. McCormac that
they were clearly aware of the cited location which the inspector
had in mind when he issued the citation. During his video
presentation, Mr. Lloyd described the cited location, and Mr.
McCormac also pinpointed the area and confirmed that the
inspector was concerned about the "opening at the end of the
conveyor" where two chains were installed as a barrier, but not
hooked up. When asked whether this was the location referred to
in the citation, Mr. McCormac replied "yes sir" (Tr. 87).
Inspector Smiser in turn confirmed that this was the area he
cited (Tr. 88). Further, Mr. McCormac testified that he was with
the inspector during his inspection, agreed that there was an
opening beyond the location of the chain, and confirmed the cited
condition did in fact exist (Tr. 95Ä97; 106).

 Respondent further argues that the cited location was not a

"travelway" within the definition found in section 56.2, in that
it was not regularly used as a means of access in the normal
course of travel through the plant area, and was not used for
normal maintenance purposes. Respondent's witness Lloyd
characterized the cited location as a seldom used "platform" area
providing access to a gate system used for freeing up any blocked
material. When this is done, an employee would use a safety line
or belt attached to the handrailing which was installed around
the perimeter of the platform. Mr. Lloyd also confirmed that the
area is not used for routine inspections or maintenance, and once
reaching the end of the platform, one would have to turn around
and go back.

 Mr. Lloyd confirmed that the platform was originally

constructed a few years ago when there was an electrical problem,
and that the chain was installed as a means of a safety barrier
in the event one needed to stand on the platform with a pole to
free up any material blockage. Mr. McCormac also saw a chain at
the cited location, was surprised that it was not hooked up, and
he surmised that the citation was issued because the chain was
not hooked up. The inspector could not recall any chain in place,
and he did not have his inspector's notes with him. Although he
confirmed that the citation was abated after a barrier was
installed, he did not elaborate further as to the type of barrier
which was installed, and the

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Page 23

~1011
termination notice issued to abate the citation provides no
further information in this regard.

 The video tape taken for demonstration purposes during the

hearing clearly depicted the installation of two chains across
the opening which concerned the inspector, and I find the
testimony of Mr. McCormac and Mr. Lloyd with respect to the
presence of the chains at the time of the inspection to be
credible. I further find Mr. McCormac's conclusion that the
inspector probably issued the citation because the chains were
not up at the time of his inspection to also be credible. Since
the chains were not up and stretched across the opening of the
platform at the time of the inspection, one can reasonably
conclude that no barrier was provided at that time as a means of
protection to prevent one from going off the end of the platform.
Assuming that the cited opening was near a travelway as stated in
section 56.11012, and as that term is defined by section 5.62, I
would affirm the citation based in the undisputed fact that the
opening in question was not protected by the chain which was not
in place across that opening. However, the critical question here
is whether or not the cited location was in fact a "travelway."

 Inspector Smiser described the cited location as "small,

with a little walking area," and he characterized it as an
"open-ended travelway" and "open-ending walkway" (Tr. 23Ä24). He
surmised that a serviceman would "probably" be in the area, and
"guessed" that he would be within the "slipping area" and could
fall through the opening in the course of any "normal work"
performed in the area. He also surmised that a serviceman would
"probably" be the one in this area for purposes of servicing the
head conveyor head pulley and associated parts (Tr. 24Ä26).
However, I find no credible evidence to support the inspector's
conclusions that any work would be routinely performed at the
cited location, and he apparently made no effort to contact any
maintenance personnel to confirm that anyone was required to be
in the area for the purposes of maintenance. As a matter of fact,
he conceded that he based his "low negligence" finding on the
fact that the respondent had not previously discovered the
opening or that there was a problem in that area (Tr. 26).

 Inspector Smiser confirmed that with the exception of doing

work in the cited area, which he clearly did not determine as a
fact, it was unlikely that anyone would use the "walkway" in
question as a means of getting from one point to another. He
confirmed that anyone venturing into the area would have to turn
around and come back once reaching the end, that it was possible
that any foot traffic in the area was

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Page 24

~1012
extremely infrequent, and that it was further possible that the
reason the respondent did not discover the unprotected area could
have been based on the fact that no work had been done in the
area for weeks or months (Tr. 46). Although he later contradicted
this testimony by stating that he would be surprised if there was
no one there at least once a shift, I find no credible evidence
to support this speculative conclusion.

 The facts presented with respect to this citation are

strikingly similar to those presented in a prior case in which an
inspector issued a citation for a violation of section 57.11Ä12,
which contained language identical to that found in section
56.11012. See: Secretary of Labor v. Magma Copper Company, 1
FMSHRC 837, 856Ä858 (July 1979). In that case the inspector
issued a citation after finding that a chain guard which had been
installed at the end of a work deck or platform was not hooked
across the opening to prevent anyone from falling off the end. I
vacated the citation after finding that the evidence did not
establish that the infrequently travelled area in question was in
fact a travelway within the meaning of the cited standard, or
within he meaning of the definition of that term as found in
section 57.2, which is identical to that found in section 56.2.
In vacating the citation, I made the following observations at 1
FMSHRC 857Ä858:

      I believe the intent of the standard is to protect
      miners, who on a regular and frequent basis, use
      designated travelways for movement to and from their
      regular duty stations or who use such travelways on a
      regular basis while moving in and about the mine. The
      facts on which this citation was issued suggest the
      inspector sought to protect someone working on the
      platform from falling through the unchained opening.
      Even so, the standard cited does not lend itself to the
      factual setting which prevailed on the day the citation
      issued. The standard required railings, barriers, or
      covers, and I fail to understand how a hooked chain can
      be considered as such. In the circumstances, it would
      appear that the standard is intended to apply to a
      working place rather than to a travelway,
      notwithstanding petitioner's assertion at page 6 of its
      brief that the use of a chain establishes an inference
      that an opening some 100 feet in the air at the edge of
      a platform is a travelway.

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Page 25

~1013
* * * If the Secretary desires to afford protection to persons
working on elevated platforms, he should promulgate a safety
standard covering such situations rather than attempting to rely
on a loosely worded and vague standard. It seems to me that the
inclusion of the term "working place" as part of section 57.11Ä2
would cure the problem that I have with language which I believe
simply does not fit the facts presented.

 In view of the foregoing, and on the facts presented in this

case, I cannot conclude that the petitioner has established
through any probative credible evidence that the cited location
in question was near a travelway within the definition of that
term found in section 5.62. Accordingly, I find no basis for
finding a violation, and the citation IS VACATED.

The Significant and Substantial Violations Issue

 A "significant and substantial" 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 coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the 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, 3Ä4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a mandatory
      safety standard is significant and substantial under
      National Gypsum the Secretary of Labor 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.

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Page 26

~1014
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129,
the Commission stated further as follows:

      We have explained further that 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). We have emphasized that, in accordance with the
      language of section 104(d)(1), it is the contribution
      of a violation to the cause and effect of a hazard that
      must be significant and substantial. U.S. Steel Mining
      Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
      Steel Mining Company, Inc., 6 FMSHRC 1573, 1574Ä75
      (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 With regard to Citation No. 2870013, Inspector Smiser

testified that while it was unlikely that someone walking along
the conveyor walkway in question would fall off to the area below
if he were to trip or stumble on the accumulated rock and
material, the accumulations did present a tripping or falling
hazard, and that it was reasonably likely that in the event of a
fall, the individual could sustain a back injury or broken limbs.
If it were a serviceman who regularly walked the area, he would
more than likely be carrying a grease gun or other equipment in
one hand, thus increasing the likely of an injury if he were to
fall or trip on the accumulations of materials which ranged in
size from three-quarters of an inch to an inch and a half, and
which completely covered the walkway surface and ran over the
kickplate.

 The respondent takes the position that the violation was not

significant and substantial. In support of this conclusion, it
relies on the testimony of Mr. Bales who indicated that any work
being performed on the conveyor would only be done after the area
was cleaned up, that no employees used the walkway as a regular
of means of travel from one quarry location to another, that most
of the conveyor rollers can be greased from hose fittings which
hung down to ground level,

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Page 27

~1015
and that in the past 10 years there have been no reported
accidents or injuries at the quarry.

 Mr. Bales confirmed that the conveyor operated 8 hours a

day, 5 days a week, and that the walkway where the inspector
found the accumulations of rock and materials allowed access to
the conveyor for maintenance purposes. Although Mr. Bales
indicated that most of the conveyor rollers were serviced from
ground level, it was altogether possible that some were not, and
the inspector determined that a serviceman inspecting the
conveyor regularly travelled the walkway and would be exposed to
a tripping or falling hazard. Under the circumstances, I agree
with his finding that the cited violation was significant and
substantial. Given the extent of the accumulations on the
inclined conveyor walkway, and the fact that the conveyor would
be operating all day, I believe that one may reasonably conclude
that at least one person who would be travelling the walkway
while inspecting the conveyor would be exposed to a tripping or
slipping hazard, and if he were to trip or fall, it would be
reasonably likely that he would suffer injuries of a reasonable
serious nature. Accordingly, the inspector's "S & S" finding IS
AFFIRMED.

 With regard to housekeeping Citation No. 2870015, concerning

the fluid spill in the concrete floor area in the crusher plant,
I take note of the fact that MSHA's district manager modified the
citation because of his apparent conclusion that the fluid was
not combustible. Under the circumstances, I conclude and find
that the fluid did not present a fire hazard. Inspector Smiser
was concerned over a probable slip and fall hazard to a
serviceman who he believed would be in the area to check out the
crusher unit. However, the evidence establishes that the
respondent had installed wooden planks and used an absorbent
material in efforts to control the spillage caused by a known
problem, and that the floor area in question was surrounded by
handrails. Although the citation stated that the spill was large
enough to cover the floor area, there is no evidence that it
covered the floor planks, and Inspector Smiser conceded that the
respondent installed the planks and used the absorbent material
in an effort to provide safe access to the cited area in
question. Mr. Bales confirmed that the spill would never run over
the wooden planks. Under all of these circumstances, I conclude
and find that a slip or fall would be unlikely, and the
inspector's "S & S" finding IS VACATED.

 With regard to Citation No. 2870016, Inspector Smiser

testified that the existence of steel plates, stacked on top of
each other in a "tipping" manner, and located at the top of

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~1016
a staircase leading to a walkway, obstructed access to the area
in that one had to step on the plates to proceed along the
walkway. He also found wood and other materials such as lubricant
cans on the walkway, and he concluded that all of these materials
posed a slipping and falling hazard to a serviceman who would
likely be using the walkway to gain access to the equipment at
least once a shift. The inspector concluded that it was
reasonably likely that injuries of a reasonable serious nature
would result in the event someone slipped or fell while stepping
over the accumulated materials in question. The respondent has
advanced no credible evidence to rebut the inspector's findings,
and I agree with his conclusion that the violation was
significant and substantial. Accordingly, his "S & S" finding IS
AFFIRMED.

Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business

 Based on the stipulations by the parties, I conclude that

the respondent, as a corporate operator, is a large mine
operator, and that the mine in question was medium in size and
scope. The parties stipulated that the payment of civil penalties
for the violations in question will not adversely affect the
respondent's ability to continue in business.

History of Prior Violations

 The parties stipulated that the respondent's history of

prior violations consists of 10 citations issued over 40
inspection days during the 24Ämonth period preceding the
inspection conducted by Inspector Smiser. I conclude and find
that the respondent has a relatively good compliance record which
does not warrant any additional increases in the civil penalties
which have been assessed by me for the violations which have been
affirmed.

Good Faith Compliance

 I conclude and find that the respondent exercised good faith

in timely abating all of the violations which have been affirmed
in this proceeding.

Negligence

 I conclude and find that all of the violations which have

been affirmed resulted from the respondent's failure to exercise
reasonable care, and that they all resulted from ordinary
negligence on the respondent's part.

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Gravity

 I conclude and find that Citation No. 2870015 concerning the

fluid spillage on the floor of the crusher plant was non-serious.
For the reasons stated in my "S & S" findings, I further conclude
and find that Citation Nos. 2870013 and 2870016, concerning slip
and fall hazards, were serious violations.

                      Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude that the following civil penalty assessments are
reasonable and appropriate for the violations which have been
affirmed:

Citation No. Date 30 C.F.R. Section Assessment

2870013 03/24/87 56.20003(a) $ 91
2870015 03/24/87 56.20003 $ 35
2870016 03/24/87 56.20003(a) $ 79

                                ORDER

 The respondent IS ORDERED to pay the civil penalty

assessments in question to MSHA within thirty (30) days of the
date of this decision, and upon receipt of payment, this
proceeding is dismissed.

 Citation No. 2870742, March 24, 1987, citing a violation of

30 C.F.R. 56.6112, and Citation No. 2870741, March 25, 1987,
citing a violation of 30 C.F.R. 56.11012, ARE VACATED.

                                 George A. Koutras
                                 Administrative Law Judge