Young Brothers Incorporated, Contractors

Plain-English summary

MSHA cited Young Brothers after finding that guards did not adequately cover pinch points on two conveyor tail pulleys at the Atkins Pit. Judge Michael A. Lasher, Jr. found a violation where the rear and top of one tail pulley were not fully guarded, but found no reasonable possibility of contact with the other tail pulley because its rubber guarding was adequate in the circumstances. The first citation was affirmed with a $150 penalty, and the second citation was vacated.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14107(a), 30 U.S.C. § 820(a)
• Outcome: Citation No. 3895441 was affirmed with a $150 penalty. Citation No. 3895442 was vacated.
• Key point: The judge treated the evidence about the two guarding conditions separately and rejected an inference that metal guarding was always required.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
1244 Speer Boulevard #280
Denver, CO 80204-3582
(303) 844-5266/FTS 564-5266

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 91-221-M
PETITIONER A.C. No. 41-03142-05520
v.
Atkins Pit
YOUNG BROTHERS INCORPORATED,
CONTRACTORS,
RESPONDENT

                               DECISION

Appearances: Olivia Tanyel Harrison, Esq., Jack F. Ostrander,
Esq., Office of the Solicitor, U.S. Department of
Labor, Dallas, Texas,
for Petitioner;
Richard C. Baldwin, Waco, Texas
for Respondent.

Before: Judge Lasher

 In this matter, MSHA, proceeding pursuant to Section 110(a)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeks assessment of civil penalties (S20 each) for two
alleged violations of 30 C.F.R. 56.14107(a).1

 The issues are whether violations occurred and, if so, the

amount of appropriate civil penalties therefor.

 The two Section 104(a) non-"Significant and Substantial"

Citations involved were issued by MSHA Inspector Mike Sanders on
May 29, 1991.

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Citation No. 3895441 describes the allegedly violative
condition as follows:

      The guard provided to cover the Self-Cleaning Tail
      pulley pinch points on the C-12 conveyor did not extend
      a sufficient distance to cover all exposed areas.

 Based on the preponderant reliable and probative evidence

introduced at hearing the following findings of fact are made.

 The violation as described by the MSHA Inspector in the

Citation did occur. The Inspector clearly and credibly testified
that a violation was observed and the citation was issued because
the C-12 conveyor, which did have guards on both sides of the
tail pulley, was not properly guarded in the back section
thereof. There was not a guard surrounding all of the pinch
points. (T. 24). The Inspector testified:

 The back section of the tail pulley was not guarded, in that

an employee in the area could easily gain access to the area of
the tail pulley." (T. 25).

 The Inspector credibly testified that in addition to the

back section of the tail pulley, the "top section thereof "just
directly above the tail pulley" was also unguarded. (T. 24,
31).2 The hazard was an employee's becoming caught in the
pinch points while the tail pulley was in operation. Employees
were able to walk into the area where they would incur exposure
to such hazard. (T. 25-26, 55). Occurrence of such an accident
was possible but not likely. If it did occur, it could result in
loss of a limb. (T. 25-28).

 The guarding in question was personally installed by Plant

Manager Torgerson. (T. 44, 52). He conceded that a miner has to
get underneath the tail pulley "frequently" in order "to clean
out," (T. 46, 49-50, 51, 55) and that the miner "would be
standing right next to the conveyor" when he did so. (T. 55).

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He also admitted being familiar with the regulation requiring
rear guarding on these conveyors. (T. 56). Accordingly, it is
found that this is a serious violation which occurred as a result
of the Respondent's negligence. (See also T. 57-58).

 It is noted that in Respondent's post-hearing brief,

Inspector Sanders' testimony is seriously misquoted. This
misrepresentation, constitutes Respondent's defense. The Brief,
at page 3, states: "On cross-examination, Mr. Sanders states
clearly that, "if the conveyor had had a top guard, no citation
would have been issued'."3 It is thus necesary to examine
what Inspector Sanders' testimony, at page 31 of the transcript,
actually was:

      Q.   You indicated in testimony that there were guards on
           the side of the conveyors.

      A.   Yes, sir.

      Q.   Was there a guard on the top of the conveyor at that
           time?

      A.   No, sir. If there were, I would not have cited that
           condition.

      Q.   But your notes do not indicate one way or the other,
           do they?

      A.   They indicate that it was not guarded--pinch
           point--tail pulley did not completely cover the pinch
           points at the rear of the self-cleaning tail pulley. So
           the rear of the self-cleaning tail pulley was not
           totally covered. (Emphasis added). (T. 31).

  Further explanation is unnecessary; Respondent's defense is

REJECTED.

 Turning now to Citation No. 3895442 it describes the

allegedly violative condition as follows: "The guard provided at
the tail pulley of the C-11 conveyor were [sic] constructed of
rubber belting and could not be properly secured into place."

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Inspector Sanders testified that the rubber guarding used on
the C-11 conveyor in question "has never" been acceptable to MSHA (T.
64-65)4 since the tail-pulley operation cannot be clearly
seen without removing or lifting the guard as is the case with
"expanded metal or screen cloth" guards which permit the tail
pulley to be serviced through small holes and grease fittings
without lifting the guard. (T. 64). The Inspector said the hazard
would be "someone lifting the rubber belting up simply to observe
a condition which could be a build-up of material, a noisy
bearing, just to examine the general area and the condition of
the tail pulley." (T. 66). He pointed out that it would be
necessary for miners to come into the area to do shoveling and
maintenance (T. 66) and stated there was a "possibility" that an
incident could thus occur (Tr. 66), meaning that a miner could be
caught in the pinch points and suffer injuries such as loss of
limbs, broken bones, cuts, bruises, and abrasions. (T. 66).

 The Inspector conceded that if someone fell against the

rubber guarding, which was 3/8 of an inch thick rubber "conveyor
belting" (T. 73-74), he would not reasonably expect such person
to go through the guarding. (T. 71).

 Respondent's witness, Plant Manager Torgerson, testified

that if someone fell against the guard he would not pass through
to the pulley and that if someone were to hit the guard as hard
as possible with a shovel it would not penetrate the guarding
material. (T. 74). Torgerson also established that the pulley in
question was guarded from the top, both sides, and the rear, and
that cleaning was normally accomplished by use of a front-end
loader or small loader, rather than having an employee on the
ground lifting up the guard to clean. (T. 75).

 The preponderance of the evidence indicates that there was

only a remote possibility that any miner or other person would

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come into contact with the pinch points of the tail pulley. In
any event, I conclude, that to the extent MSHA's Guide to
Equipment Guarding heavily relied upon by the Inspector to
formulate his opinion as to the inadequacy of the guard, creates
a presumption or inference that metal or non-rubber guarding
material was required, such inference or presumption is rejected.
Such Guide is an informally promulgated handbook containing
guidelines to aid inspectors in enforcing the Mine Act and such
guides are not equivalent to safety regulations or rules of law
binding on the Commission in all cases. Secretary v. King Knob
Coal Company, Inc., 3 FMSHRC 1417 (June 1981).

 In the instant matter I find no evidentiary basis to support

a conclusion that there existed a reasonable possibility of
anyone contacting the tail pulley in question. Thompson Brothers
Coal Company, 6 FMSHRC 2094 (September 1984). Accordingly,
Citation No. 3895442 will be VACATED.

Penalty Assessment - Citation No. 3895441

 Respondent, a medium to a large Texas construction company

(T. 51-53), is the operator of the Atkins Pit, a very small
surface limestone mine consisting of a quarry and a primary and a
secondary crusher. It had a history of 43 previous violations (T.
81) during the two-year period immediately preceding the issuance
of the citation. The parties stipulated that the violation was
abated in "a timely fashion" and that payment of penalties would
not affect Respondent's ability to continue in business. The
violation described in this citation was above determined to be
serious and to have resulted from Respondent negligence.
Accordingly, a penalty of $150 is ASSESSED.

                             ORDER

 1. Citation No. 3895442 is VACATED.

 2. Respondent SHALL PAY to the Secretary of Labor within 30

days from the date of issuance of this decision the sum of $150
as and for a civil penalty for Citation No. 3895441.

                             Michael A. Lasher, Jr.
                             Administrative Law Judge

FOOTNOTES START HERE:-

 1. This standard provides:
      Moving machine parts shall be guarded to protect

persons from contacting gears, sprockets, chains, drive, head,
tail, and takeup pulleys, flywheels, couplings, shafts, fan
blades, and similar moving parts that can cause injury.

 2. Respondent's Plant Manager, Hans Torgerson, denied that

the top portion was unguarded. I find the Inspector's testimony
more trustworthy and it is accepted on this point. In any event,
the record is clear that the rear of the tail pulley was not
adequately guarded, that this was the Inspector's primary

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concern, and that such constitutes a violation.

 3. Respondent's presentation of this evidence, without

citation to the transcript, could have been seriously misleading.

 4. The Inspector pointed out that MSHA's interpretation is

based on its "guarding book," which is entitled "MSHA's Guide to
Equipment Guarding," Ex. P-2. Significantly, rubber guarding is
not specifically banned by this document, which on page 4 thereof
states, inter alia: "Materials for guards should be carefully
selected. For most installations, guards of bar stock, sheet
metal, perforated metal, expanded metal, or heavy wire mesh are
more satisfactory than those of other materials. It is also noted
that the regulation allegedly infracted does not specifically or
absolutely bar the use of rubber as a guarding material.