Overland Sand & Gravel Company

Plain-English summary

Overland Sand & Gravel operated open-pit sand and gravel mines in Nebraska. Judge David F. Barbour found violations involving unguarded pinch points, a slack handrail on a floating dredge, and a walkway without handrails. He found several violations significant and substantial, but found that the walkway violation was not S&S because the evidence did not show a reasonable likelihood of injury, and he modified one citation to remove its S&S designation. The judge approved a $20 settlement and assessed $199 for the remaining violations, for a total of $219.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9100(a), 56.14107(a), 56.11002, and 56.11012; 30 U.S.C. § 814(d)(1)
• Outcome: Several violations were affirmed, one citation was modified to remove its S&S finding, and Overland was ordered to pay $219.
• Key point: A locked chain may reduce the gravity of an unguarded pinch point but does not replace the guarding required by the standard; S&S status depends on the reasonable likelihood of injury in normal operations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OVERLAND SAND & GRAVEL
DDATE:
19920803
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 91-228-M
PETITIONER A.C. No. 25-00772-05507

      v.                                  Mowitz Mine

OVERLAND SAND & GRAVEL Docket No. CENT 92-3-M
COMPANY, A.C. No. 25-01057-05504
RESPONDENT
McCool Portable Mine

                               DECISION

Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver Colorado,
for Petitioner; Tobin N. Anderson, Stromsburg,
Nebraska, for Respondent.

Before: Judge Barbour

 These cases are before me upon petitions for assessment of a

civil penalty filed by the Secretary of Labor ("Secretary")
pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 (the "Mine Act"). 30 U.S.C. 815 and 820.
The petitions allege violations of various mandatory safety
standards for surface metal and non-metal mines found in Part 56
of Volume 30 of the Code of Federal Regulations. Overland Sand &
Gravel Company ("Overland") timely answered, and the matters were
consolidated for hearing. The cases were tried on March 31, 1992,
in Lincoln Nebraska.

 At the hearing, the parties proposed that I approve the

settlement of one of the citations at issue in Docket No. CENT
92-228-M (section 104(a) citation no. 3635911). The citation was
issued for a violation of 30 C.F. R. 56.9100(a), a mandatory
safety standard requiring establishment and compliance with rules
governing speed, right of way, direction of movement and use of
headlights at surface metal and non-metal mines. The citation
states that there where no uniform traffic rules established for
entering and leaving the mine's stockpile and plant area, that
two gates were used both for entrance and exit from the mine and
that there should have been one entrance and one exit only.

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The inspector indicated the violation was not a significant and
substantial contribution to a mine safety hazard (an "S&S"
violation), that an injury was unlikely to occur as a result of
the violation and that Overland exhibited moderate negligence in
allowing the violation to exist. A $20 penalty was proposed for
the violation by the Mine Safety and Health Administration
("MSHA") which Overland has now agreed to pay.

 The Secretary's counsel believes the $20 penalty is

appropriate for the violation. In light of the facts as stated,
as well as the relevant statutory penalty criteria, I agree. I
will incorporate the terms of the settlement into my order at the
end of this Decision.

                  STIPULATIONS AND AGREEMENTS

 There remained for trial three alleged violations in Docket

No. CENT 91-228-M and two alleged violations in Docket No. CENT
92-3-M. At the hearing the parties entered into the following
stipulations:

 1. Overland . . . is engaged in the mining and selling
 of sand and gravel in the United States, and its mining
 operations affect interstate commerce.

 2. Overland . . . is the owner and operator of Mowitz
 Mine . . . and McCool Portable Mine.

 3. Overland . . . is subject to the jurisdiction of the
 [Mine Act].

 4. The Administrative Law Judge has jurisdiction in
 this matter.

 5. The subject citations were properly served by a duly
 authorized representative of the Secretary upon an
 agent of [Overland] on the dates and places stated
 therein, and may be admitted into evidence for the
 purpose of establishing their issuance, and not for the
 truthfulness or relevancy of any statements asserted
 therein.

 6. The exhibits . . . offered by [Overland] and the
 Secretary are stipulated to be authentic but no
 stipulation is made as to their relevance or the truth
 of the matters asserted therein.

 7. The proposed penalt[ies] will not affect
 [Overland's] ability to continue business.

 8. [Overland] demonstrated good faith in abating the
 violations.

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9. Overland . . . is a small mine operator with 15,229
tons of production or hours worked per year.

    10. The certified copies of the MSHA Assessed
    Violations History accurately reflect the history of
    these mines for the two years prior to the date of the
    citations.

                              DISCUSSION

 The alleged violations in this case arose out of general

health and safety inspections conducted at Overland's Mowitz Mine
and McCool Portable Mine by MSHA Inspector James Enderby on April
10, 1991, and July 2, 1991, respectively. The Mowitz Mine is an
open pit sand and gravel dredging operation and is located in
Hamilton County, Nebraska. The McCool Portable Mine is also an
open pit sand & gravel dredging operation. The McCool Mine
operates intermittently about 9 months of the year. It is located
in York County, Nebraska. Enderby was familiar with both
operations, having begun inspecting the Mowitz Mine in October
1990 and the McCool Mine in October 1989.

 At the hearing, the Secretary called Enderby as her primary

witness. Overland's Vice President, Tobin Anderson, presented
Overland's case through cross examination of Enderby, as well as
through Anderson's own sworn testimony.

                       DOCKET NO. CENT 92-228-M

 Three violations are alleged. Section 104(a) citation no.

3635908 was issued for a violation of 56.14107(a) because a pinch
point between the roller screen and the trunnion rollers on the
crusher was not guarded. Section 104(a) citation no. 3635910 was
issued for a violation of section 56.14107(a) because pinch
points on the front of the dredge's main diesel engine were not
guarded. Section 104(a) citation no. 5635905 was issued for a
violation of section 56.11002 because the wire rail around the
outer edge of the dredge was not properly maintained.

 Overland argues that it did not violate section 56.14107(a)

with regard to guarding the crusher rollers. Overland admits the
second guarding violation, and it admits the violation of failing
to maintain the wire handrail around the edge of the dredge, but
argues that, contrary to the inspector's findings, neither of
these admitted violations was S&S.

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Mine Act
Section Citation No. Date 30 C.F.R.
Section 104(a) 3635908 4/10/92 56.14107(a)

The citation states:

 The pinch point between the roll screen and the south
 trunnion roller was not guarded to prevent a person
 becoming entangled in the pinch point. The pinch point
 was located adjacent to the walkway on the south/side
 of the roll screen. Persons are not permitted on the
 roll screen walkways when the screen is in operation.

 The inspector testified that during his inspection of the

plant area of the mine he observed an unguarded pinch point on the
south/side of the roll screen mechanism that is used for screening
gravel. The roll screen consists of a steel drum, approximately 8
feet in diameter, and 10 to 12 feet in length. There are screens
on the roll. The drum turns in a clockwise direction. The
inspector described the mechanism that drives the drum and how the
roll screen functions. He stated that the roll screen has "four
support rollers underneath it, one side being the drive and the
other side being the support rollers, just to keep it so it will
stay in one position." Tr.23 The trunnion rollers are hard rubber
rollers mounted on the lower parts of the framework of the
platform. They hold the drum up off the walkways and off the
platform so it can turn, allowing the gravel to go through the
screens that are on the roll. The roll screen is surrounded on
three sides by a deck or platform. The platform is approximately
12 feet above the plant floor. A stairway provides access to the
platform.

 The inspector explained that an unguarded pinch point

existed between the drum and the drive roller and that this pinch
point was located approximated 12 inches above the walkway and 12
inches from the side of the walkway. Although, there was no guard
immediately adjacent to the pinch point, the inspector further
explained that at the bottom of the stairway leading to the
platform, a 3/8 inch chain was stretched from one handrail of the
stairway to the other side of the stairway. The chain was welded
to the handrails and was locked with a padlock.

 The inspector feared that a miner who slipped or fell on the

walkway would reach out while trying to steady himself or herself
and would come in contact with the pinch point. If so, he
believed, fingers or hands would be crushed beyond repair and/or
arms would be broken. He estimated the drum to weigh 2,000
pounds. Because there was nothing to prevent a person from
stepping over or ducking under the chain and proceeding up the
stairs to the platform, and because the person might then slip or
fall and be caught in the pinch point, the inspector issued to
Overland the citation for a violation of section 56.14107(a).

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The Violation

Section 56.14107(a) states:

    (a) Moving machine parts shall be guarded to protect
    persons from contacting gears, sprockets, chains,
    drive, head, taxi, and takeup pulleys, flywheels,
    coupling, shafts, fan blades, and similar moving parts
    that can cause injury.

 Overland does not dispute the fact that the pinch point was

unguarded but rather argues that access to the pinch point was
effectively restricted by the padlocked chain across the
stairway, that there was no reason for anyone to gain access
except for purposes that require the screen roll to be
de-energized and rendered inoperable and that were a person
nonetheless on the platform the person would be seen prior to
re-energizing the roll screen.

 The Secretary responds that the chain was not an adequate

guard as contemplated by the regulation because it did not
prevent anyone from gaining access to the roll screen platform. A
person could step over or duck under the chain, and any employee
who had a key to the padlock could also gain access to the
platform.

 I conclude that the Secretary has established the violation.

The guarding standard for metal and non-metal mines is not
comparable to the guarding standards for coal mines, 30 C.F.R.
75.1722 and 30 C.F.R. 77.400, which state that "Gears,
sprockets, chains and similar exposed moving machine parts, which
may be contacted by persons and which may cause injury to persons
shall be guarded." Rather, section 56.14107(a) states that moving
machine part that can cause injury "shall be guarded to protect
persons from contact." As Commission Administrative Law Judge
George Koutras, has aptly noted, "the. . . . language found in
[section] 56.14107(a) specifically and unequivocally requires
guarding for any of the enumerated moving machine parts, as well
as any similar moving parts that can cause injury if contacted.
The obvious intent of the standard is to prevent contact with a
moving part." Highland County Board of Commissioners, 14 FMSHRC
270,291 (February 1992) (ALJ Koutras).

 Overland does not dispute the fact that the cited moving

machine parts were unguarded, nor has it asserted that the
equipment was not the kind covered by the standard. I therefore
find that the cited roll screen and trunnion roller were moving
machine parts within the meaning of section 56.14107(a) and that
contact by anyone with the pinch point can cause an injury.

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The presence of the locked chain across the entrance to the
stairs accessing the platform mitigates the gravity of the
violation but does not excuse it. I note in this regard MSHA's
official published policy that "the use of chains to rail off
walkways and travelways over moving machine parts, with or
without the posting of warning signs in lieu of guards, is not in
compliance with this standard". Department of Labor, the Mine,
Safety and Health Administration, Program Policy Manual, Vol.V at
55a (6/18/91).

                     Gravity and Negligence

 In assessing the gravity of the violation, both the

potential hazard to the safety of miners and the probability of
such hazard occurring must be analyzed. There is no doubt that
the potential hazard was grave. Severe injury to fingers, hands,
or arms reasonably could be expected should a miner slip and fall
into the pinch point or reach into it in order to break a fall.

 However, such a accident was decidedly less than likely

given the fact that access to the platform was restricted by the
locked chain and given the fact that, as the inspector himself
testified, a miner would not normally be in the area of the pinch
point when the roll screen was operating. The inspector candidly
explained that the only time access is required to the platform
is when screening material needs to be replaced and that this
must be done while the drum is not moving. Further, it is not
disputed that a miner in the vicinity of the pinch point would be
observed before the roll screen was re-energized and started. In
addition, the inspector termed the possibility of a non-miner
having access to the platform while the drum was operating as
"very remote." Tr. 28,40.

 I conclude that although the potential injuries resulting

from the violation are grave, the likelihood of them occurring is
so remote as to make this a non-serious violation.

 Because the lack of a guard was readily apparent Overland

knew or should have known of the violation, and I also conclude
that Overland negligently violated the standard.

Mine Act
Section Citation No. Date 30 C.F.R.
Section 104(a) 3635910 4/10/91 56.11002

 After inspecting the roll screen, the inspector proceeded to

the dredge area of the mine. The dredge itself is located in the
pit on an island-like platform that floats on pontoons. The dredge
is reached by rowboat. The water is 30 to 40 feet deep at the
dredge.

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The inspector testified that upon climbing onto the dredge
platform from the rowboat, he noticed that the wire rope hand
rail that completely surrounds the platform was slack. The wire,
which the inspector described as being either 5/16 inch or 1/4
inch in size, passes through metal loops at the top of steel
posts. There is one post every six to eight feet around the outer
perimeter of the dredge deck, and the posts are bolted or screwed
to the deck. The wire rope completely circles the outer edge of
the dredge platform and is of one piece. It is clamped together
at its ends.

 The inspector testified that the rope could be pushed out

over the water one arm's length, or about 30 inches. The
inspector believed that if a person fell against the wire rope,
the slackness of the rope would allow the person to go over the
rope and into the water. The inspector cited Overland for a
violation of section 56.11002. The citation states in part:

    The handrail and mid-rail around the outer edges of the
    dredge walkways and travelways was not being properly
    maintained in that it was not kept tight.

He further found that the violation was S&S.

                            The Violation

 30 C.F.R.   56.11002, requires that when handrails are

provided at specified locations they shall be "maintained in good
condition." Overland does not dispute that it violated the cited
standard. Rather, it asserts that the violation was not S&S.

                                 S&S

 A S&S violation is described in section 104(d)(1) of the

Mine Act as a violation "of such nature as could significant and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." 30 U.S.C. 814(d)(1). A
violation is properly designated S&S "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 reasonable serious nature." Cement
Division, National Gypsum Co.., 3 FMSHRC 822,825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (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:

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(1) the underlying violation of a mandatory safety standard; (2)
a discrete safety--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 reasonable serious nature.

 In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129

(August 1985), 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 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 Co.,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 In United States Steel Mining Co., Inc., 7 FMSHRC 327,

(March 1985), the Commission reaffirmed its previous holding in
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984) that it
is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial, and that a
determination of the significant and substantial nature of a
violation must be made in the context of continued normal mining
operations, including the question of whether, if left
uncorrected, the cited condition would reasonably likely result
in an accident or injury.

 The inspector testified that during the course of normal

mining operations, one person, the dredge operator, was usually
on the dredge and that the dredge operator would leave the dredge
control shack up to 3 or 4 times a day to start, to grease, or
otherwise to service the dredge engine. The inspector feared that
a person on the deck could slip on oil, or, if there were a
frost, on ice, or could trip on equipment lying on the deck, such
as hydraulic hoses and pipelines, and could fall over the loose
wire rope and into the water. Due to the heavy clothing that is
usually worn by the dredge operator, such a fall could lead to a
drowning or an injury. The inspector also feared that the dredge
operator could slip upon getting out of the rowboat and climbing
up onto the dredge deck and, because of the slack wire rope, fall
into the water.

 He believed that such an accident was made more likely by

the fact that the dredge operator arrived at the dredge in the
morning when frost was more likely to be on the deck. Although,
life jackets are required to be worn in the boat and on the
dredge deck, they are not worn in the control shack, and the

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inspector believed a mine employee would forget to put on a
jacket when coming out of the shack. Also, he feared that
employees of Overland who were sent to the dredge for repair and
maintenance work would not always wear life jackets. (He
testified that repair and maintenance workers usually numbered
between one and four people and on the average were sent to the
dredge one day a week.) Finally, although the inspector agreed
that two or three employees working at the pit could see the
dredge from their work stations, he stated that an employee who
had fallen into the water could go unnoticed.

 In assessing the S&S nature of the violation, it is certain

that the first element of the Mathies test has been established.
Overland agrees that the cited standard has been violated. The
second element of the test, likewise, has been established. The
inspector's testimony makes clear that there was a daily need for
at least one employee to climb from the rowboat to the deck and
that there was a possible slipping or tripping hazard once on
the deck. The third element requires a reasonable likelihood that
the hazard contributed to will result in an injury. I conclude
that the condition of the wire rope contributed to the danger of
an employee falling off the deck and into the water and that the
evidence establishes it was reasonably likely that such a fall
would result in an injury. Even if, as seems probable, the
employee was wearing a life jacket, and was ultimately "fished
out", the employee could be injured by striking the edge of the
deck while going "over board", or could be injured while trying
to climb back onto the deck. Obviously, it is reasonably likely
that the resulting injury, whether a drowning or bodily injury
from the fall, would be of a reasonably serious nature.

 The Secretary argues that she is not required to establish

that the feared injury causing event is more likely than not to
occur, and I agree. Rather, as I understand the Mathies test, the
Secretary must prove that the feared event is reasonably likely.
Since, in my opinion, she has done so here, the S&S finding is
affirmed.

                     Gravity and Negligence

 Given the potential injuries that could have resulted from

the violation and the probability of the hazard occurring, I
conclude that the violation was serious.

 In addition, the slack rope was readily detectable and

should have been known to the operator. Hence, Overland was
negligent in allowing the violation to exist.

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Mine Act
Section Citation No. Date 30 C.F.R.
Section 104(a) 3635910 4/10/91 56.14107(a)

Continuing his inspection of the dredge, the inspector found that
the pinch point of the V-belt drive and the alternator pulley on
the front of the dredge's main diesel engine was accessible and
unguarded. He cited Overland for a violation of the guarding
standard, section 56.14107(a), and he found that the violation
was S&S.

 The inspector testified that the unguarded pinch point was

on the right front side of the engine, 36 to 40 inches above the
dredge floor and twelve to fourteen inches from a stairway
providing access to the control shack. The inspector stated the
stairway is one of the main stairways to and from the control
shack and that it is normally used two or three times a day by
the dredge operator during the course of the day. (The inspector
stated that he had seen the dredge operator use the stairs two
or three times during the inspection.) He further stated that the
stairway is part of the most direct route from the control shack
both to the main diesel engine and to the place where oil is
stored on the dredge. The inspector feared that a person could
fall or trip and extend a hand into the pinch point, which
accident could result in the full or partial amputation of a
finger or fingers. He noted that the walkway past the pinch point
could be slippery from spilled oil or frost (work starts on the
dredge at 7:00 a.m.) and, in fact, he stated that he had observed
some spilled oil when he cited the violation. While the stairway
has a handrail and a mid-rail, these are on the side opposite the
pinch point. The inspector also stated, and Overland agreed, that
the guard on the pinch point had been removed during a recent
overhaul of the diesel engine and that it had not been replaced.

 Overland's representative testified that the stairs in

question are designed to provide access to the main diesel engine
for servicing and that under normal circumstances the engine was
shut off while it is being serviced. However, he acknowledged
that at least once a day the dredge operator walks past the
unguarded pinch point while the engine is turning and that it is
possible the dredge operator might have to walk by more
frequently if other engines on the dredge malfunctioned.

                            The Violation

 Overland concedes the violation.

                                 S&S

 As with the prior violation, the first two elements of the

Mathies test have been established. Overland admitted the

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required guard was not in place, and the testified offered by
both parties is in agreement that the stairway provided access to
the pinch point and that the stairway was normally used. The
lack of a guard on the pinch point created a safety hazard to
anyone using the stairway and passing the unguarded pinch point.
The question is whether the third and fourth elements of the
Mathies test were also established by the Secretary?

 The hazard contributed to by the violation is the danger of

a person having fingers or a hand caught in the pinch point. The
testimony establishes that at least once a day miners pass close
to the pinch point while the engine is running and, indeed,
Overland's representative does not dispute the testimony of the
inspector that on the day of the inspection the dredge operator
used the stairs adjacent to the pinch point 2 or 3 times. The
fact that the feared injury was reasonably likely to occur was
heightened by the fact that there was an open space between the
edge of the stairs and the pinch point. Moreover, Overland did
not refute the inspector's belief that oil and early morning
frost could make the stairs slippery and that the inspector noted
some spilled oil on the day of the inspection. Given the presence
of at least one miner adjacent to the pinch point, and given the
presence of causes for slipping and falling, I conclude that
there was a reasonable likelihood the hazard contributed to would
result in a reasonably serious injury in that a miner's fingers
or hand could be caught in the pinch point, with the resulting
loss or severe damage of such parts, and I find that the
violation was S&S.

                     Gravity and Negligence

 Further, given the potential hazard to miners and the

probability of the hazard occurring, I conclude that the
violation was serious.

 In addition, the violation was visually obvious, Overland

should have known of its existence and was negligent in allowing
the violation to exist.

                     DOCKET NO. CENT 92-3-M

 Two violations are alleged to have occurred at the McCool

Portable Mine. One section 104(a) citation was issued when the
inspector found that a wooden walkway leading to a floating pump
platform lacked handrails in violation of 30 C.F.R. 56.11012,
and a second section 104(a) citation was issued for an alleged
guarding violation on the main diesel motor of the dredge. The
inspector further found that both were S&S violations.

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Overland concedes the violations but challenges the S&S
designations.

Mine Act
Section Citation No. Date 30 C.F.R.
Section 104(a) 3907149 7/2/91 56.11012

 The inspector testified that he observed a wooden walkway

that lacked handrails. The walkway was approximately 12 inches
wide, 2 inches thick and 14 feet long. It extended from the shore
of the pit to a floating platform, on which was located a fresh
water pump. The first 2 to 3 feet of the walkway rested on the
sand and gravel at the edge of the pit. The rest of the walkway
extend over the water to the platform. Although, there was a
handrail around the platform, there was no handrail on either
side of the walkway. The inspector testified that the water under
the walkway gradually increased in depth until it measured 2 to 3
feet at the platform. The inspector described the board as being
"slightly warped" and as not being secured to the platform. Tr.
141

 The inspector testified that during the Spring and Fall one

miner uses the walkway daily to access the platform in order to
prime and drain the pump. During the summer, daily visits are not
required -- there being no chance the water in the pump will
freeze -- and the walkway is used approximately one time a week
by a miner who checks the pump.

 The inspector stated that the board could be slippery from

frost or rain and that he feared without handrails a miner trying
to cross to the pump platform could slip or loose his or her
balance and fall, that the miner could come down on the board and
have a resulting injury to his or her back, or a miner could hit
his or her head on the board, be knocked unconscious and drown.
However, he agreed that drowning was but a very remote
possibility. In his opinion a back injury was more likely.

                              The Violation

    Overland agrees that it violated the cited standard.

                                   S&S

 Overland argues, I believe correctly in this instance, that

the testimony does not establish the S&S nature of the violation.
While the first two elements of the Mathies test have been met in
that there is a violation of section 56.11012 which resulted in a
measure of danger to safety, the evidence falls short of
establishing a reasonable likelihood that the hazard contributed
to will result in an injury. The inspector's testimony makes
clear that if a miner slips or looses his or her balance, the
miner will simply step in the water and get his or her feet and

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legs wet; or the miner will fall to one side and the water will
cushion the fall -- as the inspector stated, the miner will "just
fall in the water and go splash." Tr. 148 Should this happen, the
inspector agreed that the miner would most likely have no
difficulty standing and walking out of the water. Further, even
if the miner hit the board on the way down, which appears
unlikely given the relative narrowness of the board (12 inches),
the inspector stated that the flexibility of the board would in
most cases cause the person to simply bounce back up. In short, I
conclude that the chance of actual injury to a miner is so remote
as to exclude a reasonable likelihood that the hazard contributed
to will result in an injury. Therefore, I find that this is not a
S&S violation.

                      Gravity and Negligence

 The lack of any reasonable likelihood of injury in my

opinion renders the violation non-serious, and I so find.

 The lack of handrails was visually obvious and due to

Overland's negligence.

Mine Act
Section Citation No. Date 30 C.F.R.
Section 104(a) 3907149 7/2/91 56.14107(a)

 Continuing the inspection the inspector found that a guard

was missing at the pinch points of the fan belts and pulleys on
the portable dredge's main diesel engine. The inspector was most
concerned with the belt at the side of the engine that went to
the alternator. The pulley and pinch point were adjacent to a
walkway and the pinch point was approximately 48 inches above the
floor level. The inspector believed that a miner could
purposefully reach into the belt and pulley area and become
entangled in the pinch point. The inspector also believed that a
miner could inadvertently slip or trip, that the miner's clothing
could become entangled in the pulley and that the miner could be
drawn into the pinch point.

 The pinch point was adjacent to a walkway normally traveled

one time a day by a person doing visual equipment checks.
Further, on the day of the inspection, the inspector observed one
person cleaning an hydraulic fluid spill in the immediate
vicinity of the pinch point. The inspector, therefore, cited
Overland for a violation of the guarding standard, 56.14107(a),
and found that the violation was S&S.

                            The Violation

 Overland concedes that the violation existed.

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S&S

 Overland challenges the inspector's S&S finding. The first

two elements of the Mathies test are established in that the
violation of section 56.14107(a) is admitted, and it is apparent
the violation contributed to the hazard of a miner being injured
by becoming entangled in the pinch point. The next question is
whether there was a reasonable likelihood the feared injury would
actually occur. Obviously, for there to be a reasonable
likelihood of injury there must be a miner in the vicinity of the
unguarded pinch during normal mining operations. The inspector's
testimony that normally a miner would traverse the walkway
adjacent to pinch point one time a day was not refuted, nor was
his assertion that on the day the violation was cited a person
was in the area, at times was within 12 inches of the pinch
point, cleaning up an hydraulic oil spill. Further, the
inspector's statement that the walkway was uneven due to the
presence of hydraulic hoses and water lines was not challenged,
and this material, along with the presence of the hydraulic
fluid, obviously increased the possibility that a miner would
slip or fall and come in contact with the pinch point.

 I conclude that in the context of continued normal mining

operations the presence of the hydraulic fluid and the presence
of the hoses and water lines made it reasonably likely that a
miner would slip or fall, would become entangled in the pinch
point, and, as a result, would be injured. Further, as the
inspector explained, the resulting injuries could include cuts,
bruises, scrapes and strained muscles, all injuries that are of a
reasonably serious nature. Therefore, I find that the Secretary
has established the S&S nature of this violation.

                     Gravity and Negligence

 Because of the nature of the potential injuries resulting

from the violation and the possibility that they would occur, I
conclude that the violation was serious.

 Because the lack of a guard was visually obvious, Overland

should have known the guard was missing and I find that Overland
was negligent in allowing the violation to exist.

                  Other Civil Penalty Criteria

 The parties stipulated that Overland is a small operator,

that assessment of the proposed penalties would not effect
Overland's ability to continue in business, and that Overland
demonstrated good faith in abating the violations. The parties
also stipulated that copies of MSHA's assessed violations history
accurately reflect the history of previous violations at
Overland's mines for the two years prior to the date of the
citations. I accept these stipulations.

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Regarding Overland's history of previous violations, I note
that in the two years prior to the subject inspection of the Mowitz
Mine, a total of six violations occurring at the mine were
assessed, one of which was a violation of section 56.14107(a) and
one of which was a violation of section 56.11012. Exh. P2. No
violations were assessed at the McCool Portable Mine in the two
years prior to July 1, 1991. Id. This is a commendably low
history of previous violations.

 It is so worth noting that Overland's attitude toward

compliance was described by the inspector as reflecting a "very
good record." Tr. 184 The inspector stated that Overland
effectuated compliance "almost immediately." Id. In my opinion,
the company's low history of previous violations and its
willingness to abate with expedition those violations for which
it was cited, are indicative of a laudable attitude toward
compliance, an attitude that warrants encouragement. Effectuation
of the goals and purposes of the Mine Act is made possible when
violations of the Act and its standards are kept to a minimum and
when unsafe conditions are swiftly eliminated. In consideration
of these factors the penalties assessed will be reduced by
approximately 10%, and I do so with the hope and expectation that
Overland will continue its efforts to maximize compliance with the
Act.

                       Civil Penalty Assessment

 On the basis of the foregoing, I conclude and find that the

following civil penalties are appropriate for the violations that
have been affirmed:

Docket No. CENT 91-228-M
Mowitz Mine

Citation No. Date 30 C.F.R. Amount Assessed
3635908 4/10/91 56.14107(a) $18.00
3635909 4/10/91 56.11002 $71.00
3635910 4/10/91 56.14107(a) $57.00

Docket No. CENT 92-3-M
McCool Portable Mine

Citation No. Date 30 C.F.R. Amount Assessed
3907148 7/2/91 56.11012 $18.00
3907149 7/2/91 56.1407(a) $35.00

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ORDER

 ACCORDINGLY, Overland is ordered to pay civil penalties

totaling $199 for the assessed violations. Overland is also
ordered to pay a civil penalty of $20 for section 104(a) citation
no. 3635911 (Docket No. CENT 91-228-M) as agreed to in the
approved settlement. In addition, section 104(a) citation no.
3907149 (Docket No. CENT 92-3-M) is modified to delete the S&S
finding. Overland shall pay the assessed civil penalties and the
civil penalty specification of the approved settlement within
thirty (30) days of the date of this Decision and, upon receipt
of payment, these matters are DISMISSED.

                            David F. Barbour
                            Administrative Law Judge
                            (703) 756-5232