Ozark-Mahoning Company

Plain-English summary

MSHA cited Ozark-Mahoning after an employee performed mechanical work inside a mine hoist skip while the hoist remained energized and the power switches were not locked out. Judge George A. Koutras found a violation of 30 C.F.R. § 57.12016 and denied the company's contest. He rejected the significant-and-substantial designation because the hoist's braking, signaling, and safety devices made inadvertent movement unlikely, and he found moderate negligence. The judge assessed a $25 civil penalty and dismissed the proceedings after payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.12016
• Outcome: The violation and $25 penalty were affirmed, the significant-and-substantial finding was vacated, and the contest was denied and dismissed.
• Key point: Lockout was required before mechanical work on the energized hoist, even though the record did not support a significant-and-substantial designation.

Full text (FMSHRC public release)

CCASE:
OZARK-MAHONING V. SOL (MSHA)
DDATE:
19890509
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

OZARK-MAHONING COMPANY, CONTEST PROCEEDING
CONTESTANT
Docket No. LAKE 88-128-RM
v. Citation No. 3260151; 3/4/88

SECRETARY OF LABOR, Annabel Lee Mine
MINE SAFETY AND HEALTH Mine ID 11-02780
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 88-108-M
PETITIONER A.C. No. 11-02780-05507

         v.                            Annabel Lee Mine

OZARK-MAHONING COMPANY,
RESPONDENT

                    DECISION AND ORDER OF DISMISSAL

Appearances: Victor Evans, General Manager, Ozark-Mahoning
Company, Rosiclare, Indiana, for the
Contestant/Respondent;
Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Respondent/Petitioner.

Before: Judge Koutras

                      Statement of the Proceedings

 These consolidated proceedings concern a proposal for

assessment of civil penalty initiated by the petitioner (MSHA)
against the Ozark-Mahoning Company (hereinafter respondent),
pursuant to section 110(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty
assessment in the amount of $74 for an alleged violation of
mandatory safety standard 30 C.F.R. 57.12015, (Docket No. LAKE
88-108-M). Docket No. LAKE 88-128-RM, concerns a separate

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contest filed by the Ozark-Mahoning Company challenging the
validity of the citation.

 A hearing was convened in Evansville, Indiana, and the

parties appeared and participated fully therein. The parties
waived the filing of written posthearing arguments. However, they
were afforded an opportunity to present oral arguments at the
conclusion of all testimony, and I have considered the arguments
in the course of my adjudication of this matter.

                               Issues

 The issues presented in these proceedings are (1) whether

the conditions or practices cited by the inspector constituted a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty assessment to be made for the violation
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, and (3) whether the violation was
"significant and substantial." Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub. L.

95-164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.     820(i).

Stipulations

 The parties stipulated to the following (Joint exhibit 1):

      1. The mine involved in this case is subject to the
      jurisdiction of the Federal Mine Safety and Health Act
      of 1977.

      2. The administrative law judge assigned to this case
      has jurisdiction in this matter.

      3. The MSHA inspector who issued the citation involved
      in this case was a duly authorized representative of
      the Secretary of Labor at all times relevant to this
      matter.

      4. From March 4, 1986 through March 4, 1988, respondent
      committed three (3) MSHA violations at its Annabel Lee
      Mine.

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5. During the calendar year preceding the
issuance of the citation involved in this case
the operator accumulated a total of 55,837 hours
of work at its Annabel Lee Mine.

      6. During the calendar year preceding the issuance of
      the Citation involved in this case the Ozark-Mahoning
      Company accumulated a total of 232,648 hours of work at
      all the mines under its control.

      7. The Ozark-Mahoning Company demonstrated its good
      faith by abating the condition involved in the Citation
      in this case within the time granted by the MSHA
      inspector.

      8. Payment of the penalty assessed for the citation
      involved in this case will not affect the mine
      operator's ability to remain in business.

                           Discussion

 The section 104(a) "S&S" Citation No. 3260151, in issue in

these proceedings was issued on March 4, 1988, and it cites an
alleged violation of mandatory safety standard 30 C.F.R.
57.12016, and the cited condition or practice states as follows:

      An employee was observed working in the skip under the
      man cage in the main hoist shaft without de-energizing
      the power for the hoist and locking the switch out. The
      hoist operator was sitting at the hoist controls.

Petitioner's Testimony and Evidence

 MSHA Inspector Gene Upton, testified as to his experience

and training, and he confirmed that he inspected the mine on
March 4, 1988, and issued the citation in question (exhibit P-1).
Mr. Upton confirmed that he issued the citation after observing
work being performed inside the skip bucket located beneath the
man cage used to carry men up and down the mine shaft. The bucket
is used to transport ore from the mine. Since the hoisting
electrical system was energized and not locked out as required by
section 57.12016, he issued the violation.

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Mr. Upton agreed that the skip bucket was approximately 4 feet
high and that it moved up and down the shaft with the man cage.
He stated that the individual inside the bucket was performing
some metal patch work at the bottom of the skip using welding and
acetylene torch equipment, as well as other tools. He considered
the work being performed as "mechanical work" within the meaning
of the standard. The individual performing the work was being
assisted by another individual who was outside the cage, and he
was being used to bring supplies to the area where the work was
being performed.

 Mr. Upton stated that the control booth which contained the

controls for operating the hoist and skip was located
approximately 200 feet away from the skip and that the hoist
operator was at the controls while the work was being performed.
Mr. Upton also stated that the main disconnect switch which
should have been used to deenergize the hoist was located outside
of the control booth approximately 15 to 20 feet away. He found
that the operator's hoist control switch located inside the
control booth and the main disconnect switch were not deenergized
and locked out.

 Mr. Upton stated that the failure to deenergize and lock out

the hoist and skip presented a hazard in that in the event of any
inadvertent movement move of the skip up or down the individual
performing the work in the skip could have been "banged around"
or suffered burns from the welding torch he was using, or he
could have been entangled in the welding cables and hoses. He was
also concerned that a mix-up in any signals between the hoist
operator in the control room and the person doing the work in the
skip may have caused the skip to move up or down since it was
still energized, and if this occurred, the individual could fall
out of the skip. If he did, it was reasonably likely that he
would sustain injuries of a reasonably serious nature. He also
believed that it was reasonably likely that in the event of any
movement of the skip while the individual was inside performing
work, the individual could be injured.

 Mr. Upton stated that he based his "significant and

substantial" finding on the fact that the individual working
inside the skip had to rely on someone other than himself to
signal the hoist operator who was in the booth, and in the event
of any mixed signals, it was reasonably likely that the hoist
would have moved at any time.

 Mr. Upton confirmed that he made a negligence finding of

"moderate" because the skip operator was at the controls holding
the hoist brake, and the respondent knew or should have

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known that it was required to use its lock out procedures while
the work was being performed inside the skip. He also confirmed
that the violation was timely abated within 10 minutes by
shutting off and locking out the power switch and hoist controls.

 On cross-examination, Mr. Upton confirmed that his mining

experience does not include any shaft work or work as a skip
operator or attendant. Upon review of the language found in
section 57.12016, he stated that he was not familiar with the
intent of the standard, and that other than deenergizing and
locking out the hoist, he was not aware of any exceptions or
"other measures" which would allow mechanical work to be
performed without locking out the equipment. He confirmed that
the hoist in question was not an "automatic" hoist, and that it
required someone to manually and physically be present to operate
and move it.

 Mr. Upton stated that he has inspected similar hoists in the

past, and that such an inspection would include an examination of
the drums, wire cables and ropes, head shafts and cables, upper
and lower lines, the "dead man" braking switch, and all hoist
controls. He confirmed that during the course of testing the
hoist cables, wire ropes, and drums, he uses a guage which
requires him to touch the cables and ropes, and that the drums
are turning. He confirmed that during these tests, the hoist is
not deenergized or locked out because the hoist must be moved to
facilitate the testing. However, someone is at the hoist controls
while this is being done. Mr. Upton also confirmed that while
inspecting the hoist shaft cables and guides, he needs to ride
the skip and it is not deenergized or locked out.

 Mr. Upton confirmed that the hoist in question was equipped

with two sets of brakes, a "dead-man" braking switch and device
which is activated by foot pressure inside the hoist. The hoist
can be energized if foot pressure is applied to this device, but
as soon as the pressure is taken off, the hoist will deenergize.

 Mr. Upton also confirmed that the hoisting system included

an emergency stop switch and a brake safety lever. He agreed that
in the event all of the aforementioned safety features provided
for the hoisting system were activated and in use, if someone
were to throw the main switch to the "on" position, the hoist
should not move. He conceded that it was unlikely and
unreasonable to expect that the hoist would move given the use of
these devices.

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Mr. Upton agreed that the skip was raised above the level of the
shaft while the work was being performed, and that the individual
performing the work inside the skip was not required to wear a
safety belt or line. He agreed that the skip landing was provided
with hand rails and that the hoistman who was at the skip
controls had a fairly clear visible view of the individual
performing the work inside the skip. He also confirmed that
pursuant to the hoisting procedures and MSHA's safety standards
the individual at the hoist controls cannot move the hoist
without an appropriate signal.

 Mr. Upton stated that it was his opinion that the failure to

deenergize and lock out the hoist was inadvertent, and he
asserted that when he spoke to the hoistman in the control booth
the hoistman advised him that he was not comfortable being at the
hoist controls without the main power switch deenergized and
locked out. Mr. Upton also confirmed that the hoistman was not
supervising the work taking place in the skip, and that the
decision not to deenergize and lock it out was apparently made by
the individual supervising the work.

Respondent's Testimony and Evidence

 Gary Austin respondent's maintenance supervisor, testified

that he has worked for the respondent for 20 years, and that he
is responsible for all of the mechanical maintenance work done on
the hoist and skip. He confirmed that he has moved and
re-installed the hoist on at least two occasions. He stated that
the hoist is equipped with two brakes capable of holding the
hoist under a full load and under full power. He also stated that
the hoist is equipped with a dead man's switch which is activated
by foot pressure on a button. This switch requires that the power
be on in order to operate, and when the foot pressure is
released, the brakes are automatically set. The hoist system also
has a safety stop switch, and a regulator to control the air
supplied braking systems.

 Mr. Austin confirmed that he was in charge of the work being

performed in the skip, and that the individual performing the
work was installing a water seal on the bottom of the skip. He
stated that this individual had full control of the work and the
skip through the established signaling system, and that he was in
the view of the hoist control operator.

 Mr. Austin stated that the hoist was not locked out because

the hoist and skip needs to be moved during the course of any
mechanical work, particularly when welding equipment and
acetylene hoses are used. This movement is necessary so as to
prevent the acetylene hoses from being caught, and to

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provide a safe distance between the acetylene tanks and the
individual performing the work. Requiring the hoist power to be
locked out under these circumstances would be impractical,
particularly when the individual doing the work is within the
view of the hoist operator and proper signalling measures are
being used.

 Mr. Austin stated that the brake handle purportedly being

held by the hoistman was in fact a small lever approximately 5 to
6 inches long which was engaged and locked out by means of a
notch on the lever. The lever was located on the hoist operator's
control panel, and he was not required to physically hold any
brake handle for the approximate 30 minutes it took to complete
the work on the skip.

 On cross-examination, Mr. Austin stated that the respondent

does have equipment lock out procedures in effect but that it was
his decision not to lock out the hoist in question because he did
not believe it was necessary. He pointed out that mandatory
safety standard section 57.14029, which requires the blocking of
machinery to prevent movement and the turning off of the power
before any work is performed, provides an exception where
machinery motion is necessary to make adjustments.

 Mr. Austin confirmed that the hoisting system in question

was not an automatic system which can be turned on and off
automatically and inadvertently by someone out of sight of the
individual performing any work on the hoist.

 Mr. Austin confirmed that he had the only hoist lock out key

in his possession on the day in question, and in the event of any
emergency underground, he would not want to be delayed by going
to the main switch to turn the power back on. Although another
hoist was available, it was diesel powered and slow, and the
hoist in question would be the quickest way of travelling down
the 1,000 foot shaft in the event of an emergency.

 Mr. Austin confirmed that at the time the work was being

performed on the skip, the hoistman was at the controls and had a
clear view of the individual doing the work. The hoist had a
voice box and bell signalling device for signalling the hoistman,
and the law prohibits the hoistman from starting or moving the
hoist unless he receives a signal to do so by the person doing
the work.

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The parties waived the filing of written posthearing briefs, but
were afforded an opportunity to present the following oral
arguments in support of their respective positions.

Petitioner's Argument

 Petitioner's counsel asserted that there is sufficient

evidence which establishes that the work being performed on the
electrically powered hoist was in fact mechanical work. He argued
that the evidence clearly establishes that the appropriate lock
out procedures were not followed while this work was being done,
and that the hoist was energized and that the power switch was
not shut off and locked out.

 Counsel asserted further that the inspector believed that

the "other measures" provision referred to in the cited section
57.12016, did not apply in this case, and that the hazard
presented concerned the possibility of a misunderstanding during
the exchange of signals between the individual doing the work and
the hoistman at the controls, and that in the event of such a
misunderstanding, the individual doing the work would be exposed
to the additional hazards testified to by the inspector.

Respondent's Argument

 Respondent's representative argued that its evidence has

established that the electrically powered hoisting system was
provided with two braking systems consisting of a dead man's
switch inside the hoist which automatically sets the brake when
no one is in the hoist and is not applying any foot pressure to
the activating switch, and an emergency stop switch and brake
safety lever located in the control room which was locked out. He
also pointed out that with all of these systems engaged and
operational at the time the work was being performed on the
hoist, and with the main power switch in the "off position," even
if the hoistman were to leave the control booth for any reason,
anyone deliberately or inadvertently turning the power on would
not cause the hoist to move.

 Respondent's representative argued further that the second

sentence of section 57.12016, contains an alternative, and an
exception, to the requirement that power switches be locked out,
and that this alternative does not require any lock out of the
hoist power switch as long as other measures are taken to prevent
the hoist from being energized without the knowledge of the
individuals working on it.

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Respondent's representative asserted that the unrebutted evidence
and testimony adduced in this case establishes that the
individual performing the work on the hoist skip with the
assistance of a helper was within visual sight of the hoist
control operator and that appropriate signals were available and
in use, and the hoist operator was prohibited by law from moving
the hoist unless given an appropriate signal from the individual
performing the work. Since the individual performing the work was
in complete control of the situation, and given the existence of
the aforementioned hoist braking and stopping devices which were
clearly in place and operational, and which prevented any
inadvertent movement of the hoist by someone engaging the hoist
power switch without the knowledge of the individual performing
the work in the skip, respondent's representative concluded that
the other measures referred to in section 57.12016 were clearly
present, and that under these circumstances, a violation has not
been established.

 Respondent's representative also pointed out that Inspector

Upton conceded that when he was required to inspect the hoist,
skip, and shaft, the hoist was not locked out. Respondent also
pointed out that pursuant to mandatory standard section 57.14029,
repairs or maintenance on machinery may be performed without
turning the power off and blocking the machinery against movement
as long as movement is necessary to make adjustments. In the
instant case, respondent's representative maintained that some
movement of the hoist was required in order to facilitate the
work being performed.

                    Findings and Conclusions

Fact of Violation

Section 104(a) "S&S" Citation No. 3260151, 30 C.F.R.
57.1201

 The respondent is charged with a violation of section

57.12016, for failing to deenergize the power and locking out the
power switch for the man cage skip in question while work was
being performed on the equipment. The cited mandatory safety
standard in question provides as follows:

      Electrically powered equipment shall be deenergized
      before mechanical work is done on such equipment. Power
      switches shall be locked out or other measures taken
      which shall prevent the equipment from being energized
      without the knowledge of the individuals working on it.
      Suitable warning notices shall be posted at the

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power switch and signed by the individuals who
are to do the work. Such locks or preventive
devices shall be removed only by the persons
who installed them or by authorized personnel.

 On the basis of the unrebutted credible testimony of the

inspector, I conclude and find that the hoist in question was an
electrically powered piece of equipment, that the skip bucket was
an integral part of the hoist, and that the work being performed
inside the bucket by the employee in question was mechanical work
within the intent and meaning of the cited standard. I also
conclude and find that the conditions cited by the inspector fall
within the scope of the cited standard.

 The failure by a mine operator to deenergize electrically

powered equipment and to lock out power switches before any
mechanical work is done on the equipment has been consistently
held to constitute a violation of mandatory safety standard 30
C.F.R. 57.12016, and the identical standard section 56.12016,
applicable to surface metal and nonmetal mines. See: MSHA v.
Adams Stone Corporation, 7 FMSHRC 692, 706-707, (May 1985); MSHA
v. FMC Corporation, 4 FMSHRC 1818, 1821-22 (October 1982),
petition for Commission review denied, November 16, 1982; MSHA v.
Greenville Quarries, Incorporated, 9 FMSHRC 1390, 1428 (August
1987).

 In the FMC Corporation case, supra, the operator argued that

the power switch for the equipment being worked on was
deenergized by the worker by using an "off" switch which was
always in his view while he worked 4-1/2 feet away. Judge Morris
rejected this defense, and found that simply turning the switch
to the "off" position did not totally deenergize the unit being
worked on and that the failure to deenergize the equipment
established a violation.

 In North American Sand and Gravel Company, 2 FMSHRC 2017

(July 1980), the judge affirmed a violation of section 56.12016,
after finding that a mine operator simply removed fuses when
electrical equipment was down for repairs, and had no lock-out
procedure to insure that anyone working on the equipment would
not be injured by someone inadvertently starting the equipment.
Likewise, in Brown Brothers Sand Company, 3 FMSHRC 734 (March
1981), a violation was affirmed where it was found that an
employee working on a pump deenergized the equipment by opening
the power "knife" switch, but failed to lock out the switch to
prevent it from being energized without his knowledge.

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In Price Construction Company, 7 FMSHRC 661 (May 1985), a welder
with 25 years experience lost a leg when he was injured by the
rollers of a crusher he was working on. The accident occurred
when the plant foreman misunderstood the welder's instructions
and engaged a switch which had not been locked out and simply
left in the "on" position. The plant superintendent admitted that
he did not require padlocks to lock out roller switches, and the
existing "lock-out" procedures were accomplished by merely
turning off the generator and cutting the switches. The judge
found a violation of section 56.12-16, and found that the company
safety director admitted that he knew that a padlock had to be
used on the roller switch to conform with the required lock-out
procedures, and that it is a generally understood practice in the
mining industry that a "lock-out" requires the use of a padlock.

 In my view, the primary intent of section 57.12016 is to

insure that all electrically powered equipment is deenergized
before it is worked on. This is accomplished by deenergizing, or
shutting down, any main power switch that supplies power to the
equipment. A secondary intent of the standard is to insure that
the equipment is not inadvertently energized while the work is
being performed by someone turning the power switch back on, and
this is accomplished by requiring the physical locking out of the
switch by an appropriate lockout device. In the case at hand, the
inspector alluded to two hoist power switches, one of which was
the main power switch located outside of the hoist operator's
control room approximately 15 to 20 feet away, and a second power
switch located inside the room on the hoist control panel. Both
switches were neither deenergized or locked out.

 Although I find some merit in the respondent's argument that

the language found in the second sentence of section 57.12016,
provides for an alternative method of insuring against any
inadvertent energizing of the equipment while it is being worked
on, short of locking out the power switch, I believe that this
language only comes into play once the requirements found in the
first sentence for completely deenergizing the equipment is
complied with, and that any alternative "other measures" for
insuring against the inadvertent energizing of the equipment
while it is being worked on may be considered in mitigation of
any hazard, but may not serve as a defense to the requirement
found in the first sentence that all such equipment be initially
deenergized.

 The respondent argues that it has not violated section

57.12016, because it complied with the second sentence of the
standard which it views an exception to the requirement that

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power switches be locked out. This defense is rejected. The clear
and unambiguous requirements of the first sentence of section
57.12016, mandates that electrically powered equipment be
deenergized before any mechanical work is done on the equipment.
I find no exceptions in the first sentence, and the inspector's
credible and unrebutted testimony establishes that the hoist main
power disconnect switch, which was located outside of the control
room, and some 15 to 20 feet away from where the hoistman was
located inside the booth, as well as a second power switch inside
the room, were not deenergized or locked out during the time work
was being performed on the hoist skip bucket. Under these
circumstances, I conclude and find that the failure to deenergize
and lock out these switches constitutes a violation of section
56.12016, and the citation IS AFFIRMED.

 The respondent's defense that mandatory safety standard 30

C.F.R. 57.14029, permits maintenance work to be performed
without turning of the power and blocking machinery against
movement is rejected. The respondent is not charged with a
violation of section 57.14029, and that standard makes no
mentioned of electrically powered equipment, the language found
in the cited section 57.12016.

 The respondent's assertion that Inspector Upton conceded

that he did not deenergize or lock out the power when he conducts
inspections of hoist equipment, is rejected as a defense to the
citation. While this may be true, I find a distinction between an
inspection of a hoist that necessarily requires movement of the
equipment in order to determine whether it is functioning
properly, and the welding work being performed in this case.
Notwithstanding the respondent's practicality arguments to the
contrary, I am not convinced that the welding work being
performed on the hoist, which took approximately 30 minutes to
complete, required the movement of the hoist while the work was
being performed. Further, insofar as the respondent's argument
raises an inference of some form of estoppel, it is rejected.
See: Emery Mining Corporation v. Secretary of Labor, 3 MSHC 1585
(10th Cir. 1984), affirming the Commission's decision in
Secretary of Labor v. Emery Mining Corporation, 5 FMSHRC 1400
(August 1983).

Significant and Substantial Violation

 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

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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, 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).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

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Maintenance Supervisor Gary Austin's credible and unrebutted
testimony reflects that the hoist in question was equipped with
several operational braking devices and safety mechanisms which
precluded any inadvertent movement of the hoist, and that the
hoist control operator was physically holding the brakes in place
by hand. In fact, the brakes were locked out by a lever at the
control panel where the hoist operator was stationed. Inspector
Upton agreed that with all of these braking devices in use, it
was unlikely and unreasonable to conclude that the hoist would
move, even if the power switch were thrown to the "on" position.
The hoist was not controlled "automatically," and someone would
have to manual activate the controls to cause it to move (Tr.
23).

 Although Mr. Upton believed that the hazard presented by the

violation involved a possible misunderstanding in signals between
the hoist operator and the individual doing the work inside the
bucket, Mr. Austin's unrebutted testimony reflects that the hoist
was equipped with a voice box and bell signalling devices for
signalling the hoistman, and that the hoistman is prohibited from
starting or moving the hoist without receiving an appropriate
signal. Inspector Upton confirmed that this was the case.

 Mr. Austin, an experienced maintenance supervisor with 20

years of experience working for the respondent, including hoist
removal and replacement work, testified that the individual doing
the work inside the hoist bucket had full control of the work he
was performing through the established signaling system. Although
Inspector Upton believed that the individual doing the work had
to rely on a helper who was bringing him supplies to signal the
hoistman, the evidence shows that the helper was within 5 feet of
the work which was being performed, and Inspector Upton confirmed
that the hoistman had a fairly clear visual view of the hoist
bucket at the time the work was being performed (Tr. 27-28).
Neither the individual doing the work or his helper, or the
hoistman, testified in this case, and I find no evidence or
testimony to support any conclusion that the helper was in fact
giving any signals to the hoistman, or that any of these
individuals were ignorant of the appropriate signals or use of
the signaling devices. In short, I find no credible or probative
evidence to support any conclusion that there was a potential for
any misunderstanding in the signals or signaling procedures which
may have been in effect or in use at the time of the inspection.
Further, as confirmed by the inspector, it was unlikely and
unreasonable to expect that the hoist would move even if the
power switch which was not locked out were thrown to the "on"
position. Under all of these circumstances, I cannot

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conclude that the violation was significant and substantial, and
the inspector's finding in this regard is rejected and vacated.

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business

 Based on the stipulations by the parties, I conclude and

find that the respondent is a medium-sized mine operator, and
that the particular mine in question was a small-to-medium size
operation. I also conclude and find that the payment of the civil
penalty which has been assessed for the violation in question
will not adversely affect the respondent's ability to continue in
business.

History of Prior Violations

 Based on the stipulations by the parties, which reflects

that three violations were committed at the mine during the
period March 4, 1986 through March 4, 1988, I conclude and find
that the respondent has a good history of prior compliance at
this mine and this is reflected in the civil penalty assessed for
the violation in question.

Good Faith Compliance

 The parties stipulated that the respondent demonstrated good

faith by abating the cited condition within the time fixed by the
inspector, and the record shows that abatement was achieved
within 10 minutes by shutting off the power switch and locking it
out. I conclude and find that the respondent demonstrated rapid
compliance, and I have taken this into account in the civil
penalty assessment for the violation in question.

Negligence

 The inspector made a negligence finding of "moderate," and

he confirmed that the failure to deenergize and lock out the
hoist was inadvertent. I conclude and find that the violation
resulted from the respondent's failure to take ordinary care, and
the inspector's "moderate" negligence finding is affirmed.

Gravity

 Notwithstanding my finding and conclusion that the violation

was not significant and substantial, I find that the failure to
deenergize and lock out the power switches in question was
serious, particularly with respect to the main switch

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which was located outside of, and approximately 15 to 20 feet
from the hoist operator's control room. While it may be true that
the movement of the hoist was unlikely, even if the switch were
"on," since it was not within the immediate control of the hoist
operator, anyone could have had access to this switch, and it
posed a potential, albeit not likely hazard.

                    Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $25 is reasonable and appropriate for the violation in
question.

                             ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $25 in satisfaction of the section 104(a)
Citation No. 3260151, March 4, 1988, for a violation of mandatory
safety standard 30 C.F.R. 57.12016, and payment is to be made
to MSHA within thirty (30) days of the date of this decision and
order. Upon receipt of payment, this proceeding is dismissed.

 In view of the disposition of the civil penalty case, IT IS

FURTHER ORDERED that the respondent's contest filed in Docket No.
LAKE 88-128-RM, IS DENIED AND DISMISSED.

                              George A. Koutras
                              Administrative Law Judge