Secretary of Labor v. Mountain Parkway Stone, Incorporated

Plain-English summary

Mountain Parkway Stone operated the Staton Mine in Kentucky, producing limestone with a small workforce. Judge Avram Weisberger dismissed most of the citations because the Secretary did not provide enough evidence to establish the alleged conditions or their legal elements. He found several violations involving missing accident-report forms and inadequate brakes, but determined that the brake violations were not significant and substantial. The judge dismissed nine citations, amended four others to remove the significant-and-substantial designation, and ordered an $820 civil penalty.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 50.20, 57.5050, 57.9002, 57.9003, 57.9022, 57.11001, 57.16009, 57.3200, 57.5001, and 57.6250
• Outcome: Nine citations were dismissed, four brake violations were amended to remove the significant-and-substantial designation, and an $820 penalty was ordered.
• Key point: The Secretary must prove the specific regulatory elements of each cited standard, including the required equipment condition, use, or exposure facts.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MOUNTAIN PARKWAY STONE
DDATE:
19890714
TTEXT:

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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. KENT 89-26-M
PETITIONER A. C. No. 15-15676-05510

      v.                            Docket No. KENT 89-27-M
                                    A. C. No. 15-15676-05511

MOUNTAIN PARKWAY STONE,
INCORPORATED Staton Mine
RESPONDENT

                             DECISION

Appearances: Michael L. Roden, Office of the Solicitor, U. S.
Department of Labor, Nashville, Tennessee, for
the Secretary;
Jeffrey T. Staton, Vice President, Mountain Parkway
Stone, Incorporated, Stanton, Kentucky, for
Respondent.

Before: Judge Weisberger

Statement of the Case

 In the above captioned cases, the Secretary (Petitioner)

seeks Civil Penalties for alleged violations by the Operator
(Respondent) of various safety standards set forth in Volume 30
of the Code of Federal Regulations. Pursuant to notice, these
cases were heard in Lexington, Kentucky, on May 16 - 17, 1989.
Eric Shanholtz and Vernon Denton testified for Petitioner, and
Charles Williams, Teddy Combs, Vernon Denton, and Jeffrey T.
Staton testified for Respondent. Both Parties waved their right
to present closing oral arguments or to submit Post-hearing
Briefs and Proposed Findings of Fact.

Stipulations

 The following stipulations were agreed to by both Parties:

 1. Mountain Parkway Stone, Incorporated, is a Kentucky

corporation which produces limestone for resale in interstate
commerce and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its administrative
law judges.

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2. As of June 1988, Mountain Parkway Stone, Incorporated produced
approximately 172 tons of limestone per day (45,000 annually) at
its sole underground mine site, the Staton Mine in Powell County,
Kentucky, and employed six full time employees in June 1988. At
the date of the Hearing Respondent had five employees.

 3. J. T. Staton is, and was in June through August 1988, the

President of Mountain Parkway Stone, Incorporated, and the
supervisor of the Staton Mine.

Findings of Fact and Discussion

Docket No. KENT 89-26-M.

    Citation No. 3253127.

 Eric Shanholtz, an MSHA Inspector, essentially testified

that on June 16, 1988, when he inspected Respondent's mine, he
measured the level of noise while standing below the level of the
bin and to the front of Respondent's primary crusher. He said
that he measured the noise for 2 and 1/2 hours until the crusher
broke down. He indicated that there was an over exposure of 135
percent to the employee in the control booth. He issued a section
104(a) Citation asserting a violation of 30 C.F.R. 57.5050(b).

 30 C.F.R.   57.5050(a) as pertinent, provides that noise

level measurements "shall" be made using a meter ". . . meeting
specifications for Type 2 Meters contained in American National
Standards Institute (ANSI) Standard S1.4-1971 general purpose
sound level meters." The record does not contain any evidence as
to the type of meter, if any, used by Shanholtz. Further, section
57.5050, supra, sets forth various permissible dBA levels
relating to duration per day of hours of exposure. Aside from the
conclusional statement of Shanholtz that the levels resulted in
an over exposure of 135 percent, the record does not contain any
evidence of any dBA level.

 Also, section 57.5050(b), supra, provides, in essence, that

if there is a noise level exposure which has not been reduced by
administrative or engineering controls, ". . . personal
protection equipment shall be provided and used to reduce sound
level to within the levels of this table. According to Shanholtz,
the primary crusher operator was wearing ear plugs, but would
still be subject to a permanent disability. There is no evidence
that the ear plugs did not reduce the sound levels for the
wearer, within the levels set forth in subsection a, supra.

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Accordingly, it is concluded that the evidence fails to establish
that the Respondent herein violated section 57.5050, supra.
Accordingly, Citation 3253127 shall be dismissed. In light of
this Decision, it is further concluded that the subsequently
issued Citation No. 2861249, alleging a violation of section
104(b) of the Act, was improperly issued and shall be dismissed.

Citation 3253323.

 Shanholtz testified that on July 20, 1988, he was told by

some of Respondent's employees that an employee had been off from
work with a pulled muscle in his back, which had been sustained
on the mine property on June 27. Shanholtz indicated that Staton
told him that Respondent did not have any MSHA Accident Report
Forms, and these were subsequently provided to him by Shanholtz.
Shanholtz further indicated that the accident was not reported to
MSHA on its forms although the accident was reported in
Respondent's records. A Citation was issued alleging a violation
of 30 C.F.R. 50.20.

 Section 50.20, supra, provides, in essence, that an operator

shall maintain a supply of MSHA Mine Accident Report Forms, and
shall report accidents on such forms to be submitted to MSHA.
Inasmuch as the uncontroverted evidence indicates that at the
time of the accident in question, Respondent did not have any of
the proper MSHA Forms, and did not report this accident to MSHA
on its forms, a violation of section 50.20 has occurred as
alleged. Taking into account the fact that this accident was
recorded by Respondent in its records, and there was no evidence
that this accident was caused by Respondent's negligence or
caused by any instrument, property or condition under its
control, it is concluded that a penalty herein of $20 is
appropriate.

Citation 3253324.

 Shanholtz testified that on July 21, 1988, he observed one

of Respondent's employees lying under an axle of a dump truck
with his shoulder on the ground, using a sledge hammer to knock
tires off the vehicle. He indicated that the axle and the truck
were above the employee and that the truck was "suspended" by a
front-end loader bucket (Tr. 160). He said that the supporting
unit was being used beyond its capacity, as its hydraulic system
was less than adequate for what it was being used. Accordingly,
Shanholtz issued a citation under sections 107(a) and 104(a) of
the Act alleging a violation of 40 C.F.R. 57.16009.

 Section 57.16009, supra, provides that "Persons shall stay

clear of suspended loads." (Emphasis added.) Webster's New
Collegiate Dictionary (1979 edition) defines suspend, as
pertinent, as ". . . a: HANG; esp: to hang so as to be free on
all sides except at the point of support . . . b: to keep from
falling or sinking by some invisible support . . . . " Although
Shanholtz

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testified that the truck, under which the employee was observed
working, was "suspended" by a front-end loader bucket, (Tr. 160),
there is no evidence that the truck, under which the employee was
working, was in any way hanging from or free on all sides except
for a point of support. It appears from Shanholtz' testimony that
the truck was raised off the ground by the front-end loader
bucket, but there was not any evidence that it was hanging free
from the bucket except for the point of support. Accordingly, it
is concluded that there was no violation herein of section
57.16009, supra, and the Citation must be dismissed.

Citation No. 2861250.

 In essence, Shanholtz testified that on August 17, 1988, he

observed Respondent's haulage road which he indicated as being
approximately half a mile long, and at a 12 degree slope. He
indicated that the outer edge of the roadway was exposed. He said
that some of the berm had deteriorated "over a period of time"
and that "the berms in this area probably washed away and
weathered" (Tr. 481). (sic.) He issued a section 104(a) Citation
alleging a violation of 30 C.F.R. 57.9022.

 Section 57.9022 provides that "Berms or guards shall be

provided on the outer bank of elevated roadways." On
cross-examination Shanholtz revealed that he had not measured the
berm, and that only some areas did not have a berm. According to
30 C.F.R. 57.2 a berm is defined as ". . . a pile or mound of
material capable of restraining a vehicle." The record does not
contain any evidence of the type of berm in question, or its
detailed description. Nor is there in the record any measurement
of the areas of the roadway that allegedly did not have a berm.
Thus, it is concluded that it has not been established by the
weight of the evidence that the roadway did not have a berm
capable of restraining a vehicle. Accordingly, it is concluded
that it has not been established that Respondent herein violated
section 57.9022, and accordingly, Citation 2861250 must be
dismissed.

Docket No. KENT 89-27-M.

 Citation No. 3253179.

 Shanholtz testified, in essence, that on June 16, 1988, he

observed smoke and exhaust fumes coming out of the portal of
Respondent's mine. He said that he went approximately 600 to 700
feet underground using a drager pump and a sorbet tube. He said
that the testing device has a scale which can be read, and the
results indicated "extreme high" levels of nitric oxide and
nitrogen dioxide, and "high" levels of carbon monoxide (Tr 33).
He said that the nitrogen dioxide was an extremely dangerous
contaminant, and blackened the tubes so that it could not be
measured. He indicated that nitrogen oxide has a threshold level
of 25 parts per million, and carbon monoxide has a threshold
level of 50 parts per million. He indicated that nitrogen dioxide has a

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ceiling level of 5 parts per million. Shanholtz issued a section
107(a) Withdrawal Order and a 104(a) Citation alleging a
violation of 30 C.F.R. 57.5001(a).

 Section 57.5001, supra, in essence, provides that exposure

to airborne contaminants shall not exceed ". . . on the basis of
a time weighted average, the threshold limit values adopted by
the American Conference of Governmental Industrial Hygienists and
contained in the 1973 edition of its publication entitled "TLV'S
Threshold Limit Values for Chemical Substances in Workroom Air
Adopted by AGGIH for 1973,' . . . . " Shanholtz indicated that
the "contaminants" blackened the tube and could not be measured
(Tr. 35). However, he offered no explanation as to the manner in
which the testing device operated. Thus, I do not have any
evidentiary basis to evaluate the observation that the tube was
blackened. Similarly, Shanholtz' comments that the contaminants
could not be measured in the tube was not explained, and hence I
can not evaluate its significance. Further, the best evidence, of
threshold limit values for various substances, as required by
section 75.5001, supra, is the publication of the American
Conference of Governmental Industrial Hygienists, referred to
above. Neither that publication, nor any part thereof, was
offered in evidence. Nor did Shanholtz make reference to that
publication as the basis for his testimony as to various
threshold values. Further, there is no evidence in the record
that any contaminants in question exceed any threshold values ".
. . on the basis of a time weighted average." (Section 57.5001,
supra.) Indeed, no evidence was presented as to any time weighted
average. Thus, I conclude that the Petitioner has not adduced
sufficient evidence to establish that the Respondent herein
violated section 57.5001, supra. Accordingly, Citation No.
3253179 is dismissed.

 Citation No. 3253131.

 Shanholtz indicated that on June 17, 1988, he observed

sparks, which he described as hot carbon sparks, coming out of
the exhaust of a diesel engine which was located on the rear of a
boom truck. He indicated that the sparks were hitting the rear of
the boom truck or the hydraulic reservoir. He further indicated
that the situation was dangerous, as there was leakage and
spillage from the hydraulic reservoir, and also the "presence" of
ammonia nitrate, which he described as a blasting agent, and
explosives being loaded (Tr. 113). He issued a section 107(a)
Withdrawal Order and a section 104(a) Citation citing a violation
of 30 C.F.R. 57.6250.

 Section 57.6250 indicates, as pertinent, that "Smoking and

open flames, . . . shall not be permitted within 50 feet as
measured by the line of sight of explosives, blasting agents, . .
. . " The sparks coming out of the diesel engine exhaust, on a
"continuous" basis as described by Shanholtz (Tr. 126), would not
appear to be within the purview of section 57.6250, which
prohibits smoking and open flames. The record does not contain
any evidence of the distance between the sparks and the ammonia

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nitrate, referred to as the blasting agent, or between the sparks
and explosives. Also, there is no evidence of the distance
between the sparks and the hydraulic leakage or spillage observed
by Shanholtz. It is clear that there has not been a violation of
section 57.6250, which prohibits flames "within 50 feet" of
explosives and blasting agents. Further, aside from the opinion
of Shanholtz that the hydraulic fluid was combustible, there is
no evidence that such was either an explosive or a blasting
agent. For these reasons, I find that Petitioner has failed to
establish that the conditions observed constitute a violation of
section 57.6250. Therefore, Citation 3253131 is dismissed.

 Citation No. 3253336.

  Shanholtz indicated that on August 17, 1988, he pumped the

brake pedal of an idle boom truck "several times" (Tr. 200)
without starting the engine. He said that the brake pedal went to
the floor. Also, he indicated that the hydraulic reserves were
empty and dry, and that there was evidence of leakage at the
wheels. He also indicated that two of Respondent's employees told
him that the truck did not have brakes, and that Gary Parks told
him that he stopped the truck by running it into a large rock rib
or muck pile. Charles Williams, a mechanic working for
Respondent, indicated that he had operated the truck in question,
stopped it with the brakes, and he had not seen other employees
stop it by running it into something. He also indicated that the
truck is equipped with vacuum hydraulic brakes, and the engine
has to run in order to apply the brakes so that the booster can
work.

 I do not accord much probative value to the testimony of

Williams with regard to his experience operating the truck and
being able to stop it, as his testimony did not establish that he
actually had driven the truck on the day it was tested by
Shanholtz, nor at any time in reasonable proximity to Shanholtz'
inspection. Based on Shanholtz' testimony that the brake pedal
went all the way to the floor and, importantly, that the
hydraulic reserves were empty and dry with evidence of hydraulic
leakage at the wheels, I find sufficient evidence to conclude
that the vehicle in question did not have "adequate brakes."
Accordingly, I conclude that Respondent did violate 30 C.F.R.
57.9003.

 The only evidence with regard to the likelihood of the

occurrence of a reasonably serious injury, consists of Shanholtz'
testimony that it is "MSHA's experience," (Tr. 188) that
operating a vehicle without brakes will result in a fatality. I
find this conclusion insufficient to establish a finding that
there was any imminent danger involved. Further, considering the
unrebutted testimony of Williams that the vehicle had two braking
systems, and considering the lack of detailed testimony
concerning the terrain in which the vehicle operated, i.e.,
whether the area

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was level, and whether there were drop-offs or obstacles in the
vicinity, it must be concluded that it has not been established
that there was any reasonable likelihood of an occurrence of a
reasonably serious injury. Accordingly, I conclude that it has
not been established that the violation herein was significant
and substantial (Mathies Coal Co., 6 FMSHRC 1, (January 1984)).

 Although Williams indicated, in essence, that he did not

have any difficulty stopping the vehicle in question, his
testimony does not establish when he last was able to drive the
truck and stop it. According to Shanholtz, the brake pedal went
down to the floor, and it would appear that this condition would
be obvious to any one driving the truck. Further, Shanholtz
testified that two employees told him that the vehicle did not
have brakes and it was stopped by driving into an obstruction.
Thus, I find that the negligence of Respondent herein was
relatively high. Further, I find that Respondent has not adduced
any evidence to establish that its operation would be adversely
affected by the imposition by any fine herein. As noted above, I
find that the record does not establish a description of the
terrain in which the vehicle in question was operated. As such, I
conclude that it has not been established that the gravity of the
violation herein was of a high degree. I have taken into account
the remainder of the statutory factors of section 110 of the Act,
as stipulated to by the Parties, as well as the history of
violation as indicated by Exhibit 1. Taking into account all
these factors, I conclude that a penalty herein of $200 is
appropriate for the violation found herein.

 Citation No. 325338.

 Shanholtz testified that he observed various safety defects

with regard to a boom truck. He indicated that there was no
stability jacks to support the truck when the boom was in the
air, and therefore there was a possibility of the truck
overturning if it was used in the wrong capacity. He said he also
observed hydraulic leaks at the cylinder, which created a danger
of a fire or a slipping hazard. He also indicated that the doors
were missing, there were no lights, and there was a rag in the
gas tank which acted as a wick for the gas, causing a danger of
ignition. Shanholtz issued a 104(a) Citation alleging a violation
of 30 C.F.R. 57.9002.

 Section 57.9002, supra, provides that "Equipment defects

affecting safety shall be corrected before the equipment is
used." The record does not establish that the truck in question
was being used. Inasmuch as section 57.9002, requires safety
defects to be corrected as a condition precedent to the use of
the equipment, it is clear that there is no violation in the
absence of evidence of the equipment being used. Since there is
no evidence that the truck in question was being used, the
Citation herein is dismissed.

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Citation No. 3253340.

 Shanholtz indicated that on October 17, 1988, one of

Respondent's employees, Raymond Patton, told him that the
previous day he had to throw rocks under the wheel of a
compressor truck in order to stop it, as the brakes did not hold.
He also indicated that another employee had told him that he had
trouble with brakes the day before. Shanholtz said that he did
not start the truck, but applied the brake with his foot and
there was no resistance as the pedal went to the floor. He said
he checked for hydraulic fluid, but did not find any.

 Teddy Combs testified on behalf of Respondent and indicated

that he operated the truck in question and stopped it by applying
the brakes.

 I do not place much weight on Combs' testimony, as his

testimony did not establish that he was able to stop the truck
the same date as Shanholtz' inspection, or at some time in close
proximity to that day. Based on the testimony of Shanholtz, I
conclude that the brakes on the truck in question were not
adequate, and as such Respondent violated 30 C.F.R. 57.9003.

 According to Shanholtz, the violation herein was significant

and substantial based on the experience of MSHA that operating a
vehicle without brakes is highly likely to result in a fatality
or serious injury. In the absence of specific testimony with
regard to the specific terrain on which the vehicle in question
traveled, and the circumstances under which it was operated, I
find the testimony of Shanholtz insufficient to support a
conclusion that the violation herein was significant and
substantial.

 According to the uncontradicted testimony of Shanholtz, he

was told by two employees that they had driven the truck in
question the previous day and the brakes did not work. Further it
is clear that one operating the truck would have noticed that the
brake pedal did not have any resistance. Hence I find the
Respondent herein acted with a relatively high degree of
negligence in not having the brakes repaired. Taking this into
account, as well as the remaining statutory factors, I find that
a penalty herein of $200 is appropriate for the violation herein.

    Citation No. 2861242.

 Shanholtz indicated that on August 17, 1988, he inspected an

"old" truck which had a mobile drill placed on it (Tr. 277). He
said that the foot brake pedal went to the floor, and that
although the truck had an air braking system, there still should
have been some resistance to the brake pedal. He indicated that
he did not start the truck, but the brake lines were
"deteriorated," bent and broken, and "nonfunctional" (Tr. 280).
He indicated that although there was a parking brake handle which he

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applied, he looked and to the best of his knowledge there was no
cable. He also indicated that Respondent's employees told him
that they had to drive the truck into a stock pile or rib to stop
it whenever they used it.

 Combs indicated that he had operated the drill prior to

August 17, and that the brakes did operate. He said that the
engine must operate before the hydraulic system can function. He
also said that the parking brake worked. Williams indicated that
he used the truck once or twice and the parking brake did work.

 I do not place much weight on the testimony of Combs and

Williams with regard to the functioning of the brakes on the
subject truck, as Williams indicated that he used it only once or
twice and did not indicate the time period in which he used it,
and how close that period was to the inspection by Shanholtz.
Combs indicated that he last ran the truck 3 weeks to a month
prior to the inspection. I find this too remote in time to be
probative of the condition of the brakes at the date of
inspection.

 Based on the testimony of Shanholtz, I find that the truck

did not have adequate brakes. The truck clearly is a power mobile
piece of equipment, in spite of the fact that at the time of the
inspection it had flat tires. As such, I find that there has been
a violation herein of section 57.9003, supra, as cited by
Shanholtz. The testimony of Shanholtz and the balance of the
evidence with regard to the issue of significant and substantial,
is essentially the same as was presented in Citation No. 3253340.
For the reason that I discussed, infra, P. 6, I find that it has
not been established that the violation herein was significant
and substantial. I find that a penalty herein of $200 is
appropriate, based on the same reason set forth in Citation Nos.
3253336 and 3253340, infra, P. 6, 7.

 Citation No. 2861244.

 Shanholtz, in essence, indicated that on August 17, 1988, he

observed a lot of large overhanging trees (Tr. 330) which he
described as an extremely dangerous situation. He also said
"There was loose ground there. It was obvious, large slabs." (Tr.
331). According to notes he had made on August 17, 1988, he
indicated that the material he observed was above and to both
sides of the portal. Shanholtz issued a citation alleging
violation of 30 C.F.R. 57.3200, which, as pertinent, provides
that "Ground conditions that create a hazard to persons shall be
taken down or supported before other work or travel is permitted
in the affected area."

 Respondent presented testimony from Denton and Williams. I

do not place much weight on their testimony with regard to the
conditions in question as neither of them observed the conditions
on the date in question, and their testimony was limited to
interpreting photographs (Exhibits 26, 28, 29, and 37).

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Based on Shanhotz' testimony I find that on the date of the
Citation there were certain conditions that created a hazard.
However, on the date in question, there is no evidence that there
was any work or travel in any area affected by the observed
conditions. Denton and Williams preferred their opinions, based
solely on their examinations of the photographs, Exhibits 26, 28,
29, and 37, as to the time sequence of various shots. I do not
find any of this testimony helpful in resolving the issues
herein. I find that Petitioner has failed in its burden in
establishing by competent evidence that any work or travel was
permitted by Respondent in any area affected by the conditions he
observed that he termed to be dangerous. Indeed, there is no
evidence whatsoever which delineates the "affected area."
(Section 57.3200, supra). Hence I must conclude that it has not
been established that there has been any violation of section
57.3200, supra. Accordingly, I find that Citation No. 2861244
shall be dismissed.

    Citation No. 20612147.

 Shanholtz indicated that on August 17, 1988, he observed a

front-end loader operating in "uneven terrain" (Tr. 406). He said
that Raymond Parks was operating it and that he (Shanholtz)
noticed that Parks was using the reverse gear to stop the loader
when it was going forward, and using the forward gear to stop it
when it was going backwards. Shanholtz said that he asked Parks
to back it up and stop it, and Parks backed the vehicle up at 5
to 10 miles an hour, put the brake on, pumped the brakes three
times and it traveled approximately 100 feet before it stopped.
He said that the vehicle stopped when Parks dropped the bucket.
Shanholtz said that he asked Parks if there were problems with
the brakes, and Parks said that he "didn't have any" (Tr. 408).
Shanholtz indicated that he did not check the hydraulic system
reservoir, and said that the backup system can only be used 4 or
5 times. Shanholtz issued a Citation alleging a violation of 30
C.F.R. 57.9003.

 Williams testified that at approximately 6 a.m. on the day

of the inspection, August 17, he loaded the above vehicle and it
stopped "real fast" (Tr. 425). He said that after the inspection
the booster system was checked with a gauge, and it read 300
pounds which meant it was not depleted. He indicated that to
abate the Citation a hydraulic system pump was replaced, but that
the old one was "operating good" (Tr. 431). In essence, he
indicated that the reason why the pump was replaced was "because
he had to try and fix it whatever was wrong with it" (Tr. 428).

 Although the brakes may have operated satisfactorily when

Williams drove the vehicle in question at 6 a.m., I find nothing
in the record to contradict the observations of Shanholtz at
approximately 2:30 p.m., with regard to Parks' inability to stop
the vehicle in question. I find Shanholtz' testimony with regard
to his observations sufficient to establish a violation of

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section 57.9003, supra, which, in essence, requires mobile
equipment to have "adequate brakes." Shanholtz' testimony with
regard to the issue of significant and substantial was
essentially the same as presented in Citation Nos. 3253336,
3253340, and 2861242, infra. Aside from Shanholtz' indication
that the vehicle was being operated over uneven terrain, there
was insufficient evidence presented as to the speed at which the
vehicle was operated, the presence of dangerous obstructions or
drop-offs, nor was there presented any detailed description of
the terrain. Further, I note that Shanholtz did not check the
brake reservoir, and Williams testified that after the Citation
the booster system still contained 300 pounds, which indicates
that it was not depleted. This testimony has not been
contradicted. Hence, I must conclude that it has not been
established that a reasonably serious injury was reasonably
likely to occur as a consequence of the impaired braking of the
vehicle in question. Accordingly, it has not been established
that the violation herein was significant and substantial.
Essentially for the reasons I discussed in Citation Nos. 3253336,
3253340, and 2861242, I find that a penalty herein of $200 is
appropriate.

 Citation No. 2861248.

 Shanholtz indicated that access to a clutch on the crusher

used to energize a diesel drive, was only by crawling under a
V-belt which would subject one to being immediately killed, or
coming behind the crusher where one would be exposed to unsure
footing and V-belts. Shanholtz indicated that, on August 17,
1988, two employees were present, one whose first name was
identified as Arnold, and Parks. Shanholtz indicated that Arnold
demonstrated for him access to the clutch by crawling under the
belt, and that Parks demonstrated access by going behind the
crusher. Neither Shanholtz, nor Denton, who was present, recalled
seeing any steps going up to the platform where the clutch was
located. Denton indicated that, on August 17, he was on the
platform. He indicated he did not go up any steps to reach it and
did not recall seeing any steps. He indicated he got off the
platform by jumping off. Shanholtz issued a Citation alleging a
violation of 30 C.F.R. 11081 which provides that "Safe access
shall be provided and maintained to all working places."

 Exhibit B, which, according to Respondent's Vice President

Jeffrey T. Staton, indicates the crusher in question, clearly
depicts steps going up to the platform on which the clutch was
located. According to Staton's testimony the crusher was
installed in 1984, and always had steps on it. Staton indicated
that Exhibit B depicts steps the same way they were located on
August 17, 1988.

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Based on observations of Staton's demeanor, I find, that as
depicted on Exhibit B, there were steps on August 17,1988,
leading to the platform on which a clutch was located. There is
no evidence that this means of access was not safe. Accordingly,
I find that it has not been established that there has been a
violation herein of section 57.11001, supra. For these reasons
Citation No. 2861248 should be dismissed.

                             ORDER

 It is ORDERED that Citation Nos. 3253179, 3253131, 3253338,

2861244, 2861248, 3253127, 2861249, 3253324, and 2861250 be
DISMISSED. It is further ORDERED that Citations 3553336, 3253340,
2861242, and 20612147 shall be amended to reflect the fact that
the violations cited therein are not significant and substantial.
It is further ORDERED that, within 30 days of this Decision,
Respondent pay $820 as a civil penalty for the violations found
herein.

                             Avram Weisberger
                             Administrative Law Judge