Hallett Construction Company

Read the official release (fmshrc.gov)

Plain-English summary

Hallett Construction Company was cited at its sand and gravel operation for missing electrical grounds, unguarded moving parts, and exposed electrical equipment. Judge George A. Koutras affirmed the violations involving the fan cord, battery charger, water-pump coupling, conveyor guard, and lighting panel, and found those violations significant and substantial where the decision so concluded. He vacated the violation concerning a disconnected motor starter box and vacated the extension-cord portion of the battery-charger citation. The affirmed citations carried penalties totaling $518, and the case was to be dismissed after payment.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.12025; 30 C.F.R. § 56.14001; 30 C.F.R. § 56.14006; 30 C.F.R. § 56.12032
• Outcome: Five citation matters were affirmed in whole or in part, one citation was vacated, and $518 in penalties was assessed.
• Key point: A disconnected electrical box was not in service, and the cited standard's repair exception supported vacating that citation.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. HALLETT CONSTRUCTION
DDATE:
19881020
TTEXT:

---

Page 2

~1429
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 88-17-M
PETITIONER A.C. No. 41-03197-05506
v.
Porter Plant & Pit
HALLETT CONSTRUCTION COMPANY,
RESPONDENT

                               DECISION

Appearances: Mary Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Frank Johnson, Division Manager, Hallett
Materials, Porter, Texas, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This is a civil penalty proceeding initiated 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). Petitioner seeks civil penalty assessments in the amount
of $595 for six alleged violations of certain mandatory safety
standards found in Part 56, Title 30, Code of Federal
Regulations. The respondent filed a timely answer contesting the
alleged violations, and a hearing was convened in Houston, Texas.
The parties waived the filing of posthearing briefs, but I have
considered their oral arguments made on the record in the course
of the hearing.

                                Issues

 The issues presented in this case are (1) whether the

conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalty to be assessed for the violations,
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act, and (3) whether the violations were

---

Page 3

~1430
"significant and substantial." Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

         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, 29 C.F.R.   2700.1 et seq.

                           Discussion

 All of the contested citations in this case were issued by

MSHA Inspector Melvin R. Jacobson during the course of an
inspection of the respondent's sand and gravel dredge operation
on August 19, 1987 (Tr. 8). The inspector was accompanied by
respondent's mine foreman, Steve Iverson (Tr. 11).

 Section 104(a) "S & S" Citation No. 3061118, cites a

violation of mandatory safety standard 30 C.F.R. 56.12025, and
the condition or practice is described as follows: "The ground
lug on the electrical cord for the fan used on the left walkway
of the dredge was broke off exposing personnel to a probable
shock hazard should a fault occur on the fan motor or controls."

 Inspector Jacobson testified that he issued the citation

after finding the ground lug of an electrical plug-in cord of a
110Ävolt, 1/2 horsepower, metal encased cooling fan broken off.
The fan was one of two fans located on either side of the dredge,
and he believed they were used for cooling the cabin. He observed
an electrical outlet nearby, and the cord was long enough to
reach it. The fan was portable, had no handles, and the fan blade
was 18 to 24 inches in diameter. The cited fan was not plugged
in, and neither fan was operating. The dredge was down for
maintenance, and no one was at the controls. Mr. Jacobson stated
that he pointed out the condition to Mr. Iverson, and he agreed
that it was a hazard and stated that he would take care of it
"right away" (Tr. 12, 14).

 Mr. Jacobson believed that the lack of a ground lug

constituted a hazard because under a fault condition, the fan
could be energized and someone could be severely shocked. If this
occurred, the individual could suffer fatal injuries or burns.
Since the dredge operator is sometimes alone on the dredge, if he
were to receive a shock, no one would be there

---

Page 4

~1431
to help him. No one can predict when a fault will occur, and any
deterioration of the insulation on the wiring could result in a
fault if it were to contact the metallic fan parts. The lack of a
sufficient grounding device would not blow the fuses, and if
anyone were to touch the fan with the current still on, they
could become part of the circuit and this could result in a fatal
shock. Mr. Jacobson believed that it was reasonably likely that
an injury would occur "based on the fact that these type
accidents have been and are continuing to occur" (Tr. 16). He
stated that one of his friends was fatally injured after using an
electrical cord without a ground lug on it (Tr. 20).

 Mr. Jacobson confirmed that he made a finding of "low

negligence" because the dredge operator probably was not
cognizant of the potential shock hazard, and the fact that the
foreman was new and probably did not recognize the potential for
an accident. The violation was abated by installing a proper plug
with a connecting ground to provide the proper protection to
prevent a fault in the current on the fan frame (Tr. 17).

 Mr. Jacobson believed that the fan was not new and had been

used for a long period of time, and exposure to the sunlight
would contribute to the deterioration of the wiring. He confirmed
that he observed no deterioration, but did observe that it had
been exposed to a certain amount of grease and oil which would
also add to the deterioration of the cord (Tr. 19). He confirmed
that he inspected the cord receptacle and found that it would
accommodate a three-conductor plug (Tr. 20).

 Section 104(a) "S & S" Citation No. 3061120, cites a

violation of 30 C.F.R. 56.12025, and the condition or practice
is described as follows:

      The ground lug on the cord plug-in for the battery
      charger in the shop was broke off. Additionally, 3
      Light extension cords in the gravel plant and 1 in the
      sand plant had the ground lugs broke off. The foreman
      cut the plugs off these cords. This citation will only
      be abated when all of the cords are removed from
      service or new 3 conductor plug-ins installed.

 Inspector Jacobson confirmed that this citation was similar

to the previous one in that he found electrical extension cords
with the ground lugs cut off in the locations noted.

---

Page 5

~1432
The battery charger in question was often used with extension
cords to reach the batteries being charged on equipment located
at the mine. He observed the battery charger at the shop area
near a trailer used as a maintenance area. A grounding lug is
necessary because a battery charger is an electrical device that
changes AC current to DC current through a rectifier, and a fault
on the charger could energize the metal charger case, as well as
the vehicle to which it is attached. Anyone coming in contact
with the current, or between the two potentials, could be killed.
The remaining plugs were not being used and were rolled up and
stored in the trailers, but they were available for use by the
employees. The battery charger was not being used, and if it
were, he would have taken it out of service. Mr. Iverson agreed
that the conditions posed a severe hazard and indicated that he
"was going to keep better track of his equipment from now on,"
and was concerned about it (Tr. 23).

 Mr. Jacobson stated that a failure of the insulation or any

of the component parts of the metal battery charger under a fault
condition would cause the metal surface of the battery charger to
become charged, and without a ground to blow the fuse, anyone
could put their hand on it and become part of the circuit. The
same would be true if the frame of a vehicle being charged were
touched, and "it don't take much current to take you out" (Tr.
24).

 Mr. Jacobson believed that the cited conditions posed a

serious hazard, and that an electrical accident would likely
result in fatal injuries or burns. He stated that "the battery
charger, in particular, is notorious for causing accidents" (Tr.
25). If the battery charger had been plugged in, Mr. Jacobson
would have removed it from service by issuing an imminent danger
order because fault conditions can occur at any time (Tr. 26).
The cords which were stored "weren't in bad shape, except that
the plug ends were broke off," and Mr. Jacobson believed that
they were relatively new cords (Tr. 27). Mr. Jacobson observed no
visible signs of deterioration in any of the cords, including the
one used on the battery charger, and if the ground lug were in
place, he would have had no other reason for citing it (Tr. 28).

 Mr. Jacobson confirmed that he based his "moderate

negligence" finding on the fact that the individuals using the
equipment are maintenance personnel, and that the supervisor was
new and not aware of his responsibility to see to it that the
equipment is maintained properly (Tr. 29). Mr. Jacobson stated
that during a previous inspection in February, 1987, he found
some extension cords with the ground plugs broken off in storage and

---

Page 6

~1433
discussed the matter with Mr. Johnson. Mr. Jacobson believed that
these cords were either destroyed or replaced by new ones. He did
not cite the prior cords because "I would probably have had a
problem proving they were being used," and he did not cite the
battery charger previously because it had a ground plug on it
(Tr. 32). The cited fan had never been a problem in the past, and
Mr. Jacobson confirmed that his inspection of August 19, 1987,
was the first time he ever noticed any problem with electrical
equipment on the dredge (Tr. 32).

 Section 104(a) "S & S" Citation No. 3061127, cites a

violation of 30 C.F.R. 56.14001, and the condition or practice
is described as follows: "The drive coupling on the fresh water
pump on the pond supplying water to the plant was not guarded."

 Mr. Jacobson confirmed that he issued the citation after

finding an unguarded water pump drive coupling on the pump being
used to pump water to the plant area. The coupling was a moving
metallic machine part, and he identified exhibit PÄ3 as a
photograph taken of the pump, coupling, and motor, and confirmed
that the coupling is used to connect the pump to the motor (Tr.
34Ä36).

 Mr. Jacobson believed that anyone coming in contact with the

coupler could be injured, and he investigated one case in which
an individual's coattail was caught in a similar coupling, and it
resulted in fatal injuries. He believed that anyone contacting
the coupler could suffer severe lacerations, bruises or burns,
"something that would cause him to lose time." He described the
motor as a 100 to 150 horsepower motor, and estimated that the
coupler would turn at least at 120 rpm (Tr. 37). He believed that
anyone greasing the pump while it was operating, or observing a
mechanical problem, could contact the coupler inadvertently or
brush against it. If it were cold weather, a jacket tail could
wrap around the shaft and access to the pump was by means of a
walkway or ramp from the shore to the pump location (Tr. 38).

 Mr. Jacobson stated that the coupler has two parts which are

coupled together by bolts which leave seams, and that it probably
has rough edges. He confirmed that the pump could be turned on
and off from shore, and that no one needs to board the barge
where the pump was located to start and stop it. The only reason
one would have to go on to the barge would be for maintenance of
the coupling or to grease the pump. Mr. Jacobson had no knowledge
of the respondent's maintenance procedures, but he believed that
the pump should be greased once a day and that the ideal method
for greasing the pump

---

Page 7

~1434
bearings would be while it was running. However, he did not know
whether the pump in question was greased while it was running or
while it was turned off (Tr. 41).

 Mr. Jacobson believed that it was reasonably likely that an

accident would occur if someone on the barge came in contact with
the drive coupling in question, and that he could brush against
it with his leg and tear the tissue. He stated that one cannot
predict when someone will walk out to the barge, but the
opportunity is there, and the hazard exposure has "accident
probability," and the coupler needed to be protected (Tr. 44).

 Mr. Jacobson confirmed that he made a finding of "low

negligence" because the respondent did not believe the coupling
had to be guarded because the pump could be started and stopped
without anyone going on the barge. Abatement was achieved by
guarding the coupler (Tr. 45).

 Section 104(a) "S & S" Citation No. 3061128, cites a

violation of 30 C.F.R. 56.14006, and the condition or practice
is described as follows: "The sides of the guard on the pea
gravel conveyor had been removed, exposing the pinch point."

 Inspector Jacobson stated that he had previously observed

the conveyor in question during a prior inspection in February,
1987, and it was guarded. He identified exhibit PÄ4 as a
photograph of the tail pulley area of the conveyor, and he
confirmed that during his inspection of August 19, 1987, the
guards had been removed from the side, exposing the pinch points
and moving parts of the pulley. The guard on the back side of the
self-cleaning tail pulley was intact and not removed, and he
described it as the wire mesh guarding shown in the photograph.
He also described the location of the unguarded pinch point (Tr.
44Ä48).

 Mr. Jacobson confirmed that the conveyor was not in use at

the time of his inspection, but that Mr. Iverson admitted that it
had been used without the guard in place, and the presence of
small particles of material on the frame of the conveyor, as
shown in the photograph, would indicate that the conveyor was
operated without the guard in place (Tr. 49). Mr. Jacobson
believed that anyone working around the open pinch point while
greasing the tail pulley or cleaning up around it would be
exposed to the moving parts. He was aware of injuries occurring
under other similar conditions, and injuries have happened
through inadvertence or thoughtless acts while working in such
areas. The conveyor was out in the open, and anyone walking by
could stick his hand into the

---

Page 8

~1435
pinch point if he were to fall or slip. Anyone walking on the
outside of the conveyor, however, would have to stick his arm
into the pinch point. The conveyor operates at high speed, and
the pulley is turning at a rapid rate. If one were to contact the
pinch point he could not react fast enough to get away from it,
and many individuals have been known to get caught in similar
situations (Tr. 51Ä53).

 Mr. Jacobson stated that Mr. Iverson offered no explanation

as to why the guard was off, and Mr. Jacobson saw no guard in the
area. A new guard was made and installed to abate the violation,
and the respondent did a good job in designing and installing a
guard which was much better than those on the other conveyors in
the area. Mr. Jacobson stated that he had no information that the
guard had been removed for changing bearings, and was replaced
before the plant was started up. Had he been told that the
conveyor was out of service and locked out, which he doubted was
the case, he would not have issued the citation (Tr. 53Ä55).

 Mr. Jacobson believed that it was reasonably likely that an

accident would occur as the result of the unguarded conveyor in
question because unguarded equipment of this type has caused
numerous serious and fatal accidents over the years, and he
confirmed that within the past 6 months he investigated an
accident where an individual lost an arm in an unguarded pulley
pinch point (Tr. 58). Mr. Jacobson believed that all guarding
citations are "S & S" because "at some point in time, around a
piece of unguarded equipment that is accessible, somebody is
going to have to go there," and no one can predict when this will
occur (Tr. 59Ä60). Inadvertent accidents and mistakes have caused
many injuries of this type in the past (Tr. 61). He made a
finding of "moderate negligence" because the supervisor was new,
and Mr. Johnson was not able to be present at the mine site for
some time (Tr. 61Ä62).

 Section 104(a) "S & S" Citation No. 3061129, cites a

violation of 30 C.F.R. 56.12032, and the condition or practice
is described as follows: "A motor starter box in the gravel plant
electrical panel had the cover off exposing the electrical
480Ävolt conductors."

 On September 2, 1987, the inspector terminated the citation,

modified it to a non-"S & S" citation, and also modified the
gravity finding to "unlikely." The reasons for these
modifications are stated as follows: "It was determined the box
was disconnected lowering the degree of hazard to unlikely, no
lost work days, non-S & S. The cover should have

---

Page 9

~1436
been on the box to protect the magnetic starter from mechanical
damage. The cover was placed on the box."

 Mr. Jacobson explained the circumstances which prompted him

to issue the citation. He stated that he observed a cover off of
a motor starter box, and the motor starter was attached by
conduit to a fuse box directly above it. He assumed the unit was
either used, or could be used, and if someone "threw the right
switch, they could turn the power on," exposing the uncovered
electrical parts inside the box and thereby presenting a hazard
if someone contacted the parts. Since the area was muddy, a
person walking through the area could slip or fall and easily
come in contact with the exposed electrical parts. He believed
the box needed to be protected or removed if it were not to be
used (Tr. 63Ä64).

 Mr. Jacobson stated that during his follow-up abatement

inspection it was brought to his attention that the wiring inside
the cited starter box had been removed, and at the time of his
spot inspection "there was evidence that this was the case."
However, since the starter motor was still there, Mr. Jacobson
believed that it was going to be used again, and that it needed
to be protected and maintained in an operable condition. He
conceded that the starter could only be used only if the box were
re-wired, and that under the prevailing conditions, the motor
could not have been started. Under the circumstances, the only
hazard presented "would be in the abuse of the equipment." He
assumed that if the starter box were to be used again, there was
an opportunity to use the old box which had been exposed to mud
and water. He could not recall observing any wires going into the
box during his initial inspection, and during his follow-up,
there were no wires in the box, and it was deenergized. He also
stated that during his initial inspection, he assumed the box
"was dead," but that it could be energized. At that time, the
plant was down, and the power to the starters was off (Tr.
66Ä68). He assumed that the conduit connecting the fuse box to
the starter box would allow current to flow, but that the upper
portion of the box had apparently been disconnected (Tr. 69).

 Mr. Jacobson confirmed that he made a gravity finding of

"reasonable likely" based on the information he had during his
initial inspection, but that he would now rate it "unlikely." He
believed that the respondent's negligence was "low," and assuming
the box had been wired, he would have required the cover to be
replaced with a screw to hold it on. Assuming the box were not
wired or "live" he would require the box to be covered to protect
the components, and in this case abatement was achieved by
installing a cover over the box. The box was

---

Page 10

~1437
subsequently removed, and he believed this was a good idea (Tr.
69Ä70).

 On cross-examination, Inspector Jacobson confirmed that he

was unaware that the cited fan was burned out, and that Mr.
Iverson informed him that it was in operable condition. Mr.
Jacobson stated further that both he and Mr. Iverson believed
that the fan would have worked if it were plugged in, and that
the fact that it may have been burned out made no difference. He
believed that a burned out fan presented every opportunity for a
shock hazard because a fan motor malfunction could energize the
frame of the fan if it were plugged in (Tr. 80Ä81).

 With regard to the cited electrical extension cords, Mr.

Jacobson confirmed that during his prior inspection he discussed
with Mr. Johnson the fact that ground lugs were missing from
extension cords which were not in use and stored in a parts
trailer. Although Mr. Jacobson did not cite them at that time, he
included them in the citation which he issued during the August
18, inspection because they were available for use on the battery
charger. The batter charger cord was not long enough to reach a
piece of machinery in the shop area, and Mr. Jacobson believed
that the cords would have been used to reach the equipment being
charged with the battery charger (Tr. 85).

 In response to further questions, Mr. Jacobson stated that

an extension cord carries current to the circuit, and it is an
extension and integral part of the circuit. Without a grounding
lug or conductor, there is no grounding continuity. As soon as an
extension cord is plugged in, it becomes part of the circuit (Tr.
86Ä87). Mr. Jacobson confirmed that he has observed battery
chargers used with more than one extension cord at other mining
operations, but not at the respondent's mine. He cited the cords
because he believed they would be used in series with the battery
charger, and to bring to the attention of the respondent the fact
that the cords had a problem that needed to be corrected (Tr.
89).

 Mr. Jacobson stated that there is no MSHA standard

specifically requiring an extension cord to have a ground lug,
and if he were to cite only an extension cord he would cite
section 56.12030 which requires the correction of a potentially
dangerous condition before equipment or wiring is energized. He
confirmed that the cords were not in use, but in storage, and
that he had previously discussed the lack of ground lugs with Mr.
Johnson and that "it is quite apparent that conversation wasn't
doing the job" (Tr. 92).

---

Page 11

~1438
Mr. Jacobson stated that the battery charger was portable and
mounted on small wheels, and that it was used to charge batteries
on mobile equipment, including trucks and pick-ups. The battery
charger cord was not long enough to reach out to the trucks
without the use of an extension cord, and the battery charger was
on the ground in the shop area. If the charger were taken to the
vehicle, an extension cord would be required because the charger
would have to be plugged into an electrical source. Although a
battery could be removed from a piece of equipment and taken to
the charger, he found this highly unlikely because the batteries
are large and heavy (Tr. 93Ä96).

Respondent's Testimony and Evidence

 Division Manager Frank Johnson asserted that the cited fan

was burned out and was not in use at the time of the inspection.
He explained that the fan was not removed from the dredge because
it weighed 40 pounds and would require two men to carry it and
place it in a boat to take it to shore. He conceded that the fan
was not tagged out, and had no knowledge as to whether Inspector
Jacobson was aware of the fact that the fan was inoperable (Tr.
82Ä83; 96Ä97).

 With regard to the cited electrical extension cords, Mr.

Johnson stated that they were not in use and that "we threw them
in the parts trailer to get them out of service" (Tr. 97). He
confirmed that as a result of Mr. Jacobson's prior inspection in
February, "we had gotten rid of all the old, ungrounded cords,
and bought new ones." Mr. Johnson conceded that the battery
charger ground lug was broken off, and he explained that some of
his employees who live nearby probably used the charger to charge
their personal batteries and broke the lug off because their
house had no grounding plug-in device, and "they probably snapped
it off" (Tr. 98).
With regard to the cited unguarded coupler, Mr. Johnson
stated that it is perfectly round with no protrusions on it, and
that it is powered by a 75 horsepower motor, and turned at 1750
rpms. Mr. Johnson explained that the pump is greased in the
morning before it is started, and the water valves are opened to
bleed off any air. As soon as the flow of water begins, the valve
is closed, and the pump is started from shore with a start
button, and "we never touch it again until the next morning." No
one is on the barge during the course of the day, unless
something breaks down. Any breakdown would only involve the pump
or motor because they are the only

---

Page 12

~1439
moving parts on the barge, and in the event maintenance is
required this equipment is shut off (Tr. 99).

 Mr. Johnson stated that if anyone contacted the coupler

while it was in operation and spinning, he could suffer bruised
or broken ribs, but not fatal injuries, and this would also be
true if anyone fell against the guard which was installed to
abate the violation. He believed that the likelihood of anyone
coming in contact with the coupler while it was in operation was
remote (Tr. 99Ä101).

 With regard to the unguarded conveyor, Mr. Johnson stated

that the rock plant was down at the time of the inspection, and
that the conveyor belt speed was approximately 70 feet per minute
(Tr. 102). Mr. Johnson could not confirm that Mr. Iverson told
Mr. Jacobson that the belt had operated with the guard off, and
he stated that Mr. Iverson "was a very shook up man because he
got nailed with 19 citations that day," and he has since quit
(Tr. 102Ä103). Mr. Johnson agreed that if Mr. Iverson told the
inspector the conveyor was operated without a guard, "he should
give him a citation" (Tr. 109).

 With respect to the cited starter box with the missing

cover, Mr. Johnson stated that the box was not in use and that
all of the wires had been torn out of it when several conveyors
were dismantled and removed, and the disconnected box simply
remained in the panel (Tr. 109). The box in question had been
used for a magnetic starter, and the stop-start switch was
located on a separate panel and had a cover on it (Tr. 110). Mr.
Johnson agreed that in the event the box in question had been
hooked up, it would have been dangerous (Tr. 111). Mr. Iverson
may not have been aware of the fact that the wires had been
removed from the box because he was not working there when the
prior dismantling work was done, and Mr. Jacobson may not have
known it because he was not the inspector when this work was done
(Tr. 112).

                    Findings and Conclusions

Fact of Violations

Citation No. 306118 - 30 C.F.R. 56.12025

 The credible evidence of record reflects that the cited

electrical fan cord used to supply power to the fan had its
grounding lug broken off, thereby rendering it incapable of
providing any ground continuity in the event the fan were plugged
into a receptacle which was within ready access of the

---

Page 13

~1440
fan. The cited standard section 56.12025, requires that all metal
enclosing or encasing electrical circuits be grounded or provided
with equivalent protection. While it is true that the fan was not
plugged into the receptacle when the inspector observed it, thus
completing the circuit between the fan and the electrical source
provided by the receptacle, the fact is that the electrical
circuitry inside the fan motor, which was enclosed with a
metallic frame or covering, was not provided with any workable
grounding device since the ground lug to the power cord had been
broken off. Under the circumstances, I conclude and find that the
cited fan was not provided with any grounding protection, nor was
it provided with any equivalent ground protection. Accordingly, I
conclude and find that the petitioner has established a violation
of the cited standard, and the citation IS AFFIRMED.

Citation No. 3061120 - 30 C.F.R. 56.12025

 The respondent has conceded that the ground lug on the

electrical plug-in cord which supplied power to the cited battery
charger was broken off, and the credible testimony of Inspector
Jacobson establishes this fact. Given the fact that the broken
grounding lug would not provide a means of maintaining any
grounding continuity or protection for the metallic battery
charger circuitry, and the fact that no equivalent grounding
protection was provided, I conclude and find that the petitioner
has established a violation of the cited standard, and the
citation concerning the battery charger IS AFFIRMED.

 With regard to the extension cords which were found in the

equipment trailer and which were not in use or connected to the
battery charger, I cannot conclude that the missing ground lugs,
standing alone, constituted a violation of section 56.12025. The
cords were not an integral part of the battery charger electrical
circuitry, and Inspector Jacobson's speculative opinion that they
were available and could be use in conjunction with the battery
charger's power cord is insufficient to establish a violation.
Further, Mr. Jacobson admitted that part of his reason for citing
the cords was to alert the respondent to the fact that the broken
ground lugs may present a problem, and he conceded that although
MSHA has no specific mandatory standard for citing extension
cords per se, he could have cited section 56.12030, which
requires that potentially dangerous conditions be corrected
before equipment or wiring is energized. Under all of these
circumstances, that portion of the citation which alleges a
violative condition in connection with the extension cords which
were in the trailer IS VACATED.

---

Page 14

~1441
Citation No. 3061127 - 30 C.F.R. 56.14001

 The respondent does not dispute the fact that the drive

coupling for the water pump located on the barge was unguarded,
and Inspector Jacobson's credible testimony establishes that this
was the case. The cited section 56.14001 requires that all
exposed moving machine parts, such as a coupler, which may be
contacted by persons and which may cause injury to persons, be
guarded. Mr. Johnson conceded that the coupler in question was a
moving machine part, and although he believed that the chances of
someone contacting the unguarded and exposed coupler were remote,
he nonetheless confirmed that someone could have have come in
contact with it while it was spinning, and if they did, they
could possibly suffer bruised or broken ribs. Under all of these
circumstances, I conclude and find that the petitioner has
established a violation of the cited standard, and the citation
IS AFFIRMED.

Citation No. 3061138 - 30 C.F.R. 56.14006

 The respondent has not rebutted the credible testimony of

Inspector Jacobson which establishes that the conveyor side guard
in question had been removed and not replaced. Since Mr. Iverson
is no longer employed by the respondent, and was not called to
testify. Mr. Jacobson's testimony that Mr. Iverson admitted that
the conveyor had been in operation without the guard in place,
and that the presence of materials on and around the frame of the
conveyor led him to believe that the conveyor had been operated
without the guard in place, is unrebutted. Further, Mr. Johnson
conceded that if Mr. Iverson told the inspector that the conveyor
was operated without the guard in place, the citation was
justified (Tr. 109).

 The cited section 56.14006 requires that guards be securely

in place while machinery is being operated. While it is true that
the conveyor was not in operation during the inspection, I
conclude and find that the evidence presented by the petitioner
establishes with some degree of reasonable certainty that the
conveyor had in fact been operated with the guard off, and the
inspector found no evidence of any guard nearby the cited
equipment.

 Although the standard provides for an exception for a guard

while the equipment is being tested, and the respondent's answer
states that bearings were being changed, and that the guard was
assembled before the plant was started, the respondent advanced
no such credible evidence at the hearing.

---

Page 15

~1442
Further, the fact that the conveyor was guarded to the rear of
the exposed and moving pulley area, suggests that the respondent
was aware of the fact that the area was hazardous and needed
guarding.

 In view of the foregoing, and on the basis of all of the

credible evidence adduced by the petitioner in support of the
violation, I conclude and find that a violation of section
56.14006, has been established, and the citation IS AFFIRMED.

Citation No. 3061129, 30 C.F.R. 56.12032

  The record reflects that the cited motor starter box which

lacked a cover was inoperable and that all of the wiring inside
the box had been removed. There was no power to the box, and
Inspector Jacobson conceded that the box could only be rendered
operable if it were re-wired and again placed in service. Mr.
Johnson's unrebutted testimony, which I find credible,
establishes that the box had been disconnected and the inside
wires removed for a long time prior to the inspection of August
19, 1987, when several conveyors used in conjunction with the box
in question were dismantled and removed. Mr. Johnson testified
that although the box was in use in 1985, the conveyors were torn
out and the box was disconnected and the wires were removed (Tr.
109).

 The cited standard, section 56.12032, requires that cover

plates on electrical equipment and junction boxes be kept in
place at all times except during testing or repairs. I conclude
and find that the dismantling and removal of the conveyors and
the removal of the wires from inside the box which was used in
conjunction with the conveyors when they were operable,
constituted repair work. Under the circumstances, I conclude that
the removal of the box cover falls within the exception found in
the standard, and there is no evidence that the box was ever used
or rendered serviceable subsequent to the time this repair work
was done. I conclude and find that the petitioner has failed to
establish a violation, and the citation IS VACATED.

 The respondent has withdrawn its contest of section 104(a)

"S & S" Citation No. 3061132, August 19, 1987, citing a violation
of mandatory safety standard 30 C.F.R. 56.12032 (Tr. 70Ä71).
Inspector Jacobson issued the citation after finding that a
lighting panel at the plant was not provided with an inner cover,
thereby exposing a person to a 220Ävolt single phase hazard when
the outer cover was raised to turn on the lights. Under the
circumstances, the citation IS AFFIRMED AS ISSUED.

---

Page 16

~1443
Significant and Substantial Violation

 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.

 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).

---

Page 17

~1444
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).

 Based on the credible testimony of the inspector, I conclude

and find that the violation concerning the missing ground lug on
the fan electrical cord (3061118), and the violation concerning
the missing ground lug on the battery charger electrical cord
(3061120), posed a discrete shock hazard within the Commission's
interpretation of "significant and substantial." Even though the
fan may have been inoperable, it was not removed or tagged out,
and in the event someone inadvertently plugged it in and a fault
occurred, the metallic fan frame could have been energized. Had
this occurred, the individual plugging it in would likely suffer
a shock or burn injury of a reasonable serious nature. This same
result would occur in the event a fault occurred while someone
using the battery charger plugged in the cord supplying power to
the charger. The evidence establishes that employees often used
the battery charger to service their personal vehicles, and this
would increase the likelihood of an injury by the use of the
charger without a proper grounding device. Under these
circumstances, I conclude and find that these violations were
significant and substantial, and the inspector's findings in this
regard are affirmed.

 With regard to the unguarded motor drive coupler on the

fresh water pump (3061127), I agree with the inspector's
significant and substantial finding. While it is true that the
motor could be turned on and off from shore, the unguarded
coupler was readily accessible to anyone on the barge greasing or
performing maintenance work. Although respondent's witness
Johnson stated that no one had a need to be on the barge while
the pump was in operation, he conceded that someone would
necessarily be present in the event of an equipment breakdown,
and he confirmed that if anyone inadvertently came in contact
with the exposed and unguarded coupler, he would likely suffer
broken or bruised ribs. Under the circumstances, I conclude and
find that the violation was significant and substantial, and the
inspector's finding is affirmed.

 With regard to the unguarded pea gravel conveyor violation

(3061128), the credible testimony of the inspector supports his
significant and substantial finding. Although the conveyor was
not in operation at the time of the inspection, the evidence
presented by the inspector supports a reasonable unrebutted

---

Page 18

~1445
inference that material had been processed with the conveyor
running with an exposed unguarded pinch-point which was readily
accessible to anyone greasing or cleaning up in the vicinity of
the unguarded conveyor pulley. Since the conveyor operates at a
relatively high speed, anyone inadvertently contacting the
unguarded pinch-point would likely suffer injuries of a
reasonably serious nature. I conclude and find that this
violation was significant and substantial, and the inspector's
finding is affirmed.

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

 The parties agreed that the respondent is a medium-sized

sand and gravel operator (Tr. 121Ä122), and absent any evidence
to the contrary, I conclude and find that the civil penalty
assessments which I have made for the violations in question will
not adversely affect the respondent's ability to continue in
business.

History of Prior Violations

 Petitioner's counsel did not have a computer print-out of

prior assessed violations available at the hearing. However,
based on the information available from MSHA's proposed
assessment form, petitioner's counsel stated that the respondent
was issued 10 prior citations during the 24Ämonth period prior to
the issuance of the contested citations in this case. Counsel had
no knowledge as to whether or not any of the prior citations were
similar to those issued in this case (Tr. 119Ä120). Given the
available evidence, I cannot conclude that the respondent's
history of compliance is such as to warrant any additional
increases in the civil penalties which have been made for the
contested violations in issue in this case.

Good Faith Compliance

 The record establishes, and the parties agreed, that all of

the violations were timely abated by the respondent in good faith
(Tr. 17, 30, 45, 54Ä62, 122). I have taken this into account with
respect to the civil penalty assessments made in this case.

Negligence

 The inspector's negligence findings as to each of the

citations in question, ranging from low to medium, are affirmed.
I conclude and find that the violations resulted from the
respondent's failure to exercise reasonable care.

---

Page 19

~1446
Gravity

 For the reasons stated in my significant and substantial

violations findings, I conclude and find that the violations
concerning the missing ground lugs on the fan and battery
extension cords, the unguarded motor drive coupler on the barge
water pump, and the unguarded pinch point on the pea gravel
conveyor were all 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 and find that the following civil penalty
assessments are reasonable and appropriate for the violations
which have been affirmed in this proceeding:

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

3061118 08/19/87 56.12025 $ 112
3061120 08/19/87 56.12025 $ 100
3061127 08/19/87 56.14001 $ 68
3061128 08/19/87 56.14006 $ 126
3061132 08/19/87 56.12032 $ 112

 In view of my findings and conclusions concerning the cited

electrical motor box, Citation No. 3061129, 30 C.F.R. 56.12032,
the citation IS VACATED, and the petitioner's proposal for
assessment of a civil penalty for this violation is REJECTED AND
DISMISSED.

                                ORDER

 The respondent IS ORDERED to pay the civil penalties

assessed in this proceeding within thirty (30) days of this
decision and order. Upon receipt of payment by the petitioner,
this case is dismissed.

                                George A. Koutras
                                Administrative Law Judge