Walker Stone Company, Inc.

Plain-English summary

Walker Stone Company operated a small stone mine and portable plant. The judge affirmed one citation for dry vegetation within 25 feet of explosive-material magazines and three significant and substantial citations for conveyor tail-pulley guards that could not withstand normal operating conditions. The judge found that the exposed pinch points could reasonably result in serious injury during continued operations, including the loss of an arm. All four citations were affirmed, and the operator was ordered to pay a total civil penalty of $224.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.14112(a)(1), 56.6101, and 57.6101
• Outcome: Four citations were affirmed, including three S&S findings, and a $224 civil penalty was assessed.
• Key point: Guards must withstand normal operating conditions, and accessible conveyor pinch points may support an S&S finding when continued operation could reasonably cause serious injury.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH Docket No. CENT 92-52-M
ADMINISTRATION (MSHA), A.C. No. 14-01518-05503
PETITIONER Portable Plant No. 3

           v.

WALKER STONE COMPANY, INC.,
RESPONDENT

                                 DECISION

Appearances: Tambra Leonard, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for Petitioner;
David S. Walker, pro se, Chapman, Kansas,
for Respondent.

Before: Judge Cetti

 This case is before me upon a petition for assessment of

civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health
Admintration, (MSHA), charges the Respondent, the operator of the
mine, Portable Plant No. 3, with four violations of mandatory
regulatory standard found in 30 C.F.R.

 The operator filed a timely answer contesting the alleged

violations, the serious and substantial (S&S) characterization of
three citations and the appropriateness of the proposed
penalties.

 Pursuant to notice, a hearing on the merits was held before

me at Topeka, Kansas, on June 17, 1992. Testimony was taken from
Federal Mine Inspector Richard Laufenberg who made the inspection
on October 22, 1991 and from David Walker, President of Walker
Stone Company. At the conclusion of the hearing, the parties
submitted the matter waiving their right to file post-hearing
briefs.

                          Stipulations

 At the hearing, the parties entered into the record the

following stipulations which I accept as established fact.

 1. Walker Stone Company Incorporated is engaged in mining

and selling of stone in the United States, and its mining
operations affect interstate commerce.

 2. Walker Stone Company Incorporated is the owner and

operator of Portable Plant No. 3 Mine, MSHA I.D. No. 14-01518.

 3. Walker Stone Company Incorporated is subject to the

jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq. ("the Act").

 4. The Administrative Law Judge has jurisdiction in this

matter.

 5. The subject citation as modified was properly served by a

duly authorized representative of the Secretary upon an agent of
respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

 6. The exhibits to be offered by Respondent 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 penalty will not affect Respondent's ability

to continue business.

 8. The operator demonstrated good faith in abating the

violation.

 9. Walker Stone Company Incorporated is a small mine

operator with 67,187 hours worked per year as reflected in the
records for 1990.

 10. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citation.

 11. The conditions cited in Citation No. 3629902 constitute

a violation of 30 C.F.R. 56.14112(a)(1).

 12. The conditions cited in Citation No. 3629903 constitute a

violation of 30 C.F.R. 56.14112(a)(1).

 13. The conditions cited in Citation No. 3629904 constitute

a violation of 30 C.F.R. 56.14112(a)(1).

Citation No. 3629901

 This citation, as amended, charges the operator with a

104(a) non S&S violation of 30 C.F.R. 56.6101.

    The citation charges as follows:

         The magazine area was not kept free of dry grass and
    brush. Dry vegetation was observed at a distance of
    less than 25 feet. The magazines were used to store
    explosive material.

         A grass fire in the area could result in an unplanned
    detonation of the explosive material stored in the
    magazines.

 The cited safety standard 30 C.F.R.      57.6101 reads as

follows:

         57.6101 Areas around explosive material storage
       facilities.

          (a) Areas surrounding storage facilities for explosive
       material shall be clear of rubbish, brush, dry grass,
       and trees for 25 feet in all directions, except that
       live trees 10 feet or taller need not be removed.

 The essential facts are not in dispute. Inspector Richard

Laufenberg testified that there was dry vegetation within 25 feet
of each of two magazines used to store explosive material. One
was used to store detonators and the other to store explosives.
There was vegetation knee high to waist high within 25 feet to
the north and west of the detonator magazine. It covered 30 - 40%
of that area. There was also dry grass within 25 feet to the
north and east of the other explosive magazine, covering 90% of
that area. On the other hand the area in front leading up to the
door of each magazine was clear of all vegetation. To abate the
citation a front end loader was used to scrape clear the area
around the magazines.

 There was no contrary evidence. The operator simply argued that

the magazines were in a somewhat isolated area and that there was
no hazard of either magazine exploding. The operator also stated
he was relying upon photographs taken at the time of inspection
by the inspector to prove there was no hazard. At the hearing it
was established that the photographs were lost and thus
unavailable to either party.

 The undisputed testimony of the mine inspector clearly

established the alleged 104(a) non S&S violation of 30 C.F.R.
57.6101. There was dry vegetation within 25 feet of both th
detonator and explosive magazine.

 I have considered the statutory penalty criteria set forth

in Section 110(i) of the Act and find that MSHA's proposed $20
penalty is fully supported by the record. It is a modest but
appropriate civil penalty in view of the testimony of the mine
inspector who found that under all the circumstances and facts
involved in this violation, it was not a significant and
substantial violation.

Citation No. 3629902

 Citation No. 3629902 charges the operator with 104(a) S&S

violation of 30 C.F.R. 56.14112.

    The citation charges as follows:

           The guard for the tail pulley on the Pioneer conveyor
         belt was constructed in a manner that would not
         withstand the vibration, shock, and wear to which it
         was subjected during normal operations. The guard was
         constructed of old conveyor belting and hung on hooks
         mounted to the frame of the conveyor. Bent hooks and an
         accumulation of limestone dust on the belt guard, had
         eventually caused the guard to fall off the tail pulley
         section of the conveyor. A well designed guard is
         necessary to prevent someone from being caught by and
         entangled in the moving parts.

 The cited safety standard 30 C.F.R.   56.14112(a)(1) reads as

follows:

        56.14112 Construction and maintenance of guards.

      (a) Guards shall be constructed and maintained to -

      (1) Withstand the vibration, shock, and wear to which
      they will be subjected during normal operations . . . .

 The essential facts are undisputed. Inspector Laufenberg

testified the citation quoted above accurately describes the
violative condition he observed at the time of his October 22,
1991 inspection. The operator stipulated that "the conditions
cited in Citation No. 3629902 constitute a violation of 30 C.F.R.
Section 56.14112(a)(1)." (Stipulation No. 11). The primary issue
remaining is whether or not the violation was significant and
substantial. Since this is the primary issue in the remaining two
citations (Citation Nos. 3629903 and 3629904) this issue in all
three cases alleging an S&S violation of the same standard will
be discussed below under the heading entitled "Significant and
Substantial Violations" after setting forth the violative
conditions charged and established in these two remaining
citations.

Citation No. 3629903

 This citation charges a 104(a) S&S violation of 30 C.F.R.

56.14112. The citation reads as follows:

         The guard for the tail pulley on the #2 conveyor belt
      was constructed in a manner that would not withstand
      the vibration, shock, and wear to which it was
      subjected during normal operations. The guard was
      constructed of old conveyor belting and hung on hooks
      mounted to the frame of the conveyor. Bent hooks and an
      accumulation of limestone dust on the belt guard, had
      eventually caused the guard to fall off the tail pulley
      section of the conveyor. A well designed guard is
      necessary to prevent someone from contacting the moving
      machine parts. The tail pulley was located
      approximately four (4) foot above ground.

    The cited safety standard reads as follows:

           56.14112 Construction and maintenance of guards.

         (a) Guards shall be constructed and maintained to -

         (1) Withstand the vibration, shock, and wear to which
         they will be subjected during normal operation . . . .

 The essential facts are undisputed. The credible testimony

of Inspector Laufenberg established the violative conditions
alleged in the citation. The inspector testified the citation
accurately describes the condition he observed at the time of his
inspection.

 In addition, the operator stipulated that the conditions

cited in Citation No. 3629903 constitute a violation of 30 C.F.R.
56.14112(a)(1). (Stipulation No. 12)

 The S&S issue involved in this citation will be discussed

under the heading "Significant and Substantial Violations" since
this is also the primary issue in two other citations charging
violations of the same safety standard.

Citation No. 3629904

 This citation charges the operator with a 104(a) S&S

violation of 30 C.F.R. 56.14112.

    The citation reads as follows:

            The guard for the tail pulley on the 65 foot Universal
         stacking conveyor belt was constructed in a manner that
         would not withstand the vibration, shock, and wear to
         which it was subjected during normal operations. The
         guard was constructed of old conveyor belting and hung
         on hooks mounted to the frame of the conveyor. Bent
         hooks and an accumulation of limestone dust on the belt
         guard had eventually caused the guard to fall off the
         tail pulley section of the conveyor. A well designed
         guard is necessary to prevent someone from contacting
         the moving machine parts. The tail pulley was located
         approximately three (3) foot above ground.

 The cited safety standard 30 C.F.R.   56.14112(a)(1) reads as

follows:

        56.14112 Construction and maintenance of guards.

      (a) Guards shall be constructed and maintained to -

      (1) Withstand the vibration, shock, and wear to which
      they will be subjected during normal operation . . . .

 The essential facts are undisputed. Inspector Laufenberg

testified the citation quoted above, accurately describes the
violative condition he observed at the time of his October 22,
1991 inspection. There was no contrary evidence.

 The operator also stipulated that "The conditions cited in

Citation No. 3629904 constitute a violation of 30 C.F.R.
56.14112(a)(1)." (Stipulation No. 13).

 The S&S issue involved in this citation will be discussed

under the heading "Significant and Substantial Violations" since
this is also the primary issue in the other two citations
charging violations of the same safety standard.

             Significant and Substantial Violations

 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, 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: (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, (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 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, 1574-75
      (July 1984).

 Whether any particular violation is significant and

substantial must be based on the particular facts surrounding the
violation. Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498,
501 (April 1988).

 The reasonable likelihood that the hazard contributed to

will result in an event in which there is a serious injury must
be evaluated in terms of continued normal mining operations. U.S.
Steel Mining Co., 6 FMSHRC 1573 (July 1984); Monterey Coal Co., 7
FMSHRC 996 (1985). Thus the time frame for determining' if a
reasonable likelihood exists includes not only the time that a
violative condition existed but also the time it would have
existed if normal mining operations had continued. Rushton Mining
Co., 11 FMSHRC 1432 (1989); Halfway, Inc., 8 FMSHRC 8, 12 (1986);
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).

 The Secretary is not required to present evidence that the

hazard actually will occur. In Youghiogheny & Ohio Coal Co., 9
FMSHRC 673 (April 1987), the Commission held that:

         In order to establish the significant and substantial
    nature of the violation, the Secretary need not prove
    that the hazard contributed to actually will result in
    an injury causing event. The Commission has consistently
    held that proof that the injury-causing event is reasonably
    likely to occur is what is required.

 See also Eagle Nest, Incorporated, Docket No. WEVA 91-293-R

(July 28, 1992).

 Citation Nos. 3629902, 3129903 and 3629904 each allege a

significant and substantial violation of 30 C.F.R.
56.14112(a)(1). These citations involve three (3) different tail
pulley guards. Each tail pulley was 18 to 24 inches in diameter
and the conveyor belts were 30 to 32 inches wide. The tail pulley
guards were constructed of conveyor belting hung on hooks. Due to
poor construction and maintenance, a substantial portion of each
tail pulley guard had fallen off leaving employees exposed to the
hazard of contact with the pinch point between the pulley and the
moving conveyor belt.

 Each belt and pulley was moving at a speed of approximately

100 RPM. The pinch points between the belt and pulley were
located 2 to 4 feet above ground level and were easily accessible
to employees. I credit the testimony of Inspector Laufenberg that
there was spillage from the belt which could cause an employee to
trip and fall into the belt and also that an employee could be
drawn into the pinch point by his clothes being caught in the
pinch point. There was no stop cord near the conveyor belts.
Evaluated in terms of continued normal mining operations, the
hazard contributed to would reasonably likely result in serious
injury.

 The most probable injury would be the loss of an arm. The

operator was clearly negligent in his failure to comply with the
cited safety standard. The record fully supports the inspector's
evaluation of the operator's negligence as moderate. I find the
gravity of the violation was indeed serious. The operator abated
all violations in good faith. He is a small operator.

 Upon evaluation of all the evidence, I concur with Inspector

Laufenberg's finding that each of the three violations involving
tail pulley guards was a significant and substantial violation.
The credible testimony of Inspector Laufenberg established that
in each case there was a violation of a mandatory safety

standard; that a discrete safety hazard existed and that there
was a reasonable likelihood, evaluated in terms of continued
normal mining operation, that the hazard contributed to would
result in serious injury.

 Accordingly, it is found each of the violations of 30 C.F.R.

56.1412(a)(1) is a significant and substantial violation an
considering the statutory criteria in Section 110(i) of the Act,
the full amount of MSHA's proposed penalty is assessed for each
violation.

                             ORDER

 Each of the citations is AFFIRMED. Walker Stone Company IS

DIRECTED TO PAY civil penalties in the sum of $224 to the
Secretary of Labor within 30 days of the date of this decision.
Upon receipt of payment, this case is DISMISSED.

                   August F. Cetti
                   Administrative Law Judge