Walker Stone Company, Inc.

Plain-English summary

Walker Stone Company was cited for an unguarded conveyor tail pulley and a severely cracked windshield on a pickup used for mine business. Judge Roy J. Maurer affirmed the tail-pulley citation and assessed a $50 penalty. He vacated the windshield citation because the evidence did not establish that the cracks materially impaired visibility or made the truck unsafe to operate.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14107; 30 C.F.R. § 56.14103(b)
• Outcome: The tail-pulley citation was affirmed with a $50 penalty, and the windshield citation was vacated.
• Key point: A damaged windshield citation requires evidence that the damage obscures visibility necessary for safe operation or creates a hazard to the operator.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF A D M INISTRA TIV E LA W JUDGES
                         2 SK YLINE, 10 th FLOOR
                          5203 LEESBURG PIK E
                    FA LLS CHURCH, V IRGINIA 22041

                        August 10, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-1-M
Petitioner : A. C. No. 14-00164-05524
v. :
: Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC., :
Respondent :

                             DECISION

Appearances: Ann M. Noble, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado,
for the Secretary;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing & Troup, Junction City, Kansas,
for Respondent.

Before: Judge Maurer

                   STATEMENT OF THE CASE

 This case is before me upon the petition for civil penalty

filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging Walker Stone Company, Inc., with two
violations of the regulatory standards found in Part 56,
Title 30, Code of Federal Regulations. The general issues before
me are whether the respondent violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section 110(i) of the Act.

 Pursuant to notice, the case was heard at Fort Riley,

Kansas, on March 14, 1995. At the hearing, Inspectors Curtis W.
Dement and Eldon E. Ramage testified for the Secretary of Labor.
Mr. David S. Walker, the President of Walker Stone Company,
Inc., and Mr. Clifford Moenning, the plant foreman, testified for
respondent.

                          STIPULATIONS

 At the hearing, the parties entered the following

stipulations into the record (Tr 8):

  1. Walker Stone Company, Inc. is engaged in the operation

of a limestone quarry and mill in the United States, and its
mining operations affect interstate commerce.

  2. David S. Walker is the owner and operator of Kansas

Falls Quarry and Mill Mine, MSHA I.D. 14-00164-05521.

  3. Walker Stone Company, Inc. 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 citations were properly served by a duly

authorized representative of the Secretary upon an agent of
respondent 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
statement 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 penalties will not affect respondent's

ability to continue in business.

  8. The operator demonstrated good faith in abating the

violations alleged in Citation Nos. 4332611 and 4409171.

  9. Walker Stone Company is a limestone mine operator with

97,089 hours of production in 1993.

 10. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the
2 years prior to the date of the citations.

          DISCUSSION, FINDINGS AND CONCLUSIONS

Citation No. 4332611

 Citation No. 4332611, issued on November 16, 1993, alleges a

violation of the standard found at 30 C.F.R. § 56.141071 and
charges as follows:

      The self cleaning tail pulley on the second
 conveyor between the crusher and the surge bin was not
 provided with a guard to protect persons from
 contacting the moving parts that can cause injury. A
 build up of material under the conveyor allows persons
 to become with in less than 6 1/2 foot or (1.98) meters
 of the underside of moving machinery.

 Inspector Dement testified that he and Inspector Ramage,

accompanied by his supervisor, located an unguarded tail pulley
on a belt conveyor between the crusher and the surge bin. In his
opinion, this was a hazard because he thought it possible for a
person to get his clothing caught up in it, a coat sleeve, for
example.

 1
  / 30 C.F.R ' 56.14107 provides:
    (a) 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.
   (b) Guards shall not be required where the exposed
 moving parts are at least seven feet away from walking or
 working surfaces.




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 Dement also testified that he determined the bottom of the

unguarded tail pulley was about 6 1/2 feet off the ground. But
he allowed that the space between the ground and the tail pulley
had been closed due to spillage off the belt conveyor and that if
the spillage had been cleaned up, the tail pulley would have been
okay without the guard, because then it would have been at least
7 feet off the ground. In fact, if the spillage of crushed rock
off the conveyor, which he estimated to be somewhere in the
neighborhood of 24 inches thick, had been 6 inches less, the
citation would not have been issued and the pulley, which had
gone unguarded for the previous 24 years, would in all likelihood
still be unguarded.

 Inspector Ramage testified in corroboration of Dement's

testimony and added that he had had a prior discussion with plant
foreman Moenning in June of 1993, wherein he told Moenning that
the 7 foot distance would have to be maintained in order to stay
in compliance with the standard. He stated that he had observed
the unguarded tail pulley many times, but had never cited it
because the build-up of crushed rock underneath it had never
placed the pinch point of the pulley within 7 feet of the ground
at the time he observed it. On the cited occasion, however, he
concurs that it was closer than the 7 feet required by the
standard.

 Mr. Moenning also testified on this point and agreed that

the distance between pulley and ground was about 6 1/2 feet or
between 6 1/2 and 7 feet. Moenning further opined that there is
no work area or walkway for employees in the vicinity of that
tail pulley, but he did state that the crushed rock spillage is
cleaned up every day using a Bobcat.

 The preponderance of the evidence is to the effect that the

unguarded tail pulley was within 7 feet of the ground,
represented by the top of the spillage pile. It is also
uncontroverted that a person, operating a Bobcat, cleans up this
spillage on a daily basis, and thereby is exposed to the hazard
presented, however unlikely he might actually become entangled in
the tail pulley. The Secretary concedes the point that it is
unlikely. I would only add that in my opinion it is highly
unlikely that anyone would get entangled in this tail pulley, but
that is not relevant to the limited inquiry at bar.

 Accordingly, I find a violation of the mandatory standard as

cited and assess the proposed civil penalty of $50.

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Citation No. 4409171

 Citation No. 4409171 was originally issued as a

section 104(d)(1) order, but was later modified to a (d)(1)
citation upon the vacation of the earlier (d)(1) citation on
which it was based. It was originally issued on June 30, 1994,
for an alleged violation of the mandatory standard found at
30 C.F.R. § 56.14103(b)2 and charges as follows:

      The windshield of the light blue F150 Ford pickup
 was severely cracked. The cracked windshield impaired
 the operators vision. The pickup is seldom used but
 sun striking these cracks could temporarily blind the
 operator. The plant manager had driven the pickup on
 the afternoon of 6-29-94.

      At times there were several customer trucks and a
 company front-end loader in the area the pickup was
 operated.

      This is unwarrantable failure.

 Inspector Ramage issued this citation to the operator

because the windshield was cracked in the subject pickup truck,
which obstructed the operator's view, in his opinion.

 2
  / 30 C.F.R. § 56.14103(b) provides:
   (b) If damaged windows obscure visibility necessary for
 safe operation, or create a hazard to the equipment
 operator, the windows shall be replaced or removed.
 Damaged windows shall be replaced if absence of a window
  would expose the equipment operator to hazardous
 environmental conditions which would affect the ability
 of the equipment operator to safely operate the
 equipment.




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 The truck was operated at least once a day in an area where

customer's trucks were also operating. A front-end loader also
operated in this area and there was a plant man that could be on
foot in the area as well.

 There was a nonissue raised concerning the ownership of the

truck. Mr. Moenning claimed that it was his personal pickup
truck, given to him by Mr. Walker. However, a sign displayed on
the side of the truck said: "Walker Stone Co., Inc., Chapman,
Kansas."

 In reality, it does not matter whose truck it is. Since it

is being used on mine property, for mine business, it is the
operator's responsibility to ascertain that it meets the
applicable mandatory safety standards.

 The only genuine issue of material fact to be tried in

regard to this citation is whether or not the windshield was
cracked severely enough to be considered unsafe for operation.

 Based on the evidence in this record, most particularly the

photographs of the truck (GX-6 and GX-7), which quite clearly
depict the damage, I conclude that it is insufficient to
establish that the windshield cracks noted by the inspector
impaired the operator's visibility to any significant extent. In
this regard, I also find Mr. Moenning's testimony that his vision
was not impaired when he drove the truck to be credible. I also
note that Inspector Ramage admitted that he never got into the
truck and looked through the windshield himself to determine
whether the cracks would affect the operator's visibility.
Accordingly, the citation fails of proof and will be vacated
herein.

                           ORDER

 1.   Citation No. 4332611 IS AFFIRMED.

 2.   Citation No. 4409171 IS VACATED.




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 3. The Walker Stone Company, Inc. IS ORDERED TO PAY the

Secretary of Labor a civil penalty of $50 within 30 days of the
date of this decision.

                            Roy J. Maurer
                            Administrative Law Judge

Distribution:

Ann M. Noble, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
819 North Washington Street, P. O. Box 187, Junction City, KS
66441 (Certified Mail)

dcp

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