Evansville Materials, Inc.

Plain-English summary

Evansville Materials operated a sand and gravel dredging business at the Rockport Plant. MSHA cited the company after an inspector found no safe means of access between a work boat and a dredge, where workers had to climb about three feet without a handhold. Judge George A. Koutras found that the company violated 30 C.F.R. § 56.11001, and that the violation was significant and substantial because a person could fall, suffer a serious head injury, or fall into the water. The citation, S&S finding, moderate negligence finding, and $58 civil penalty were affirmed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.11001
• Outcome: Citation No. 3260305 and its S&S designation were affirmed, and a $58 civil penalty was assessed.
• Key point: A rope and nearby structural features did not provide a safe means of access when the boat was not secured at both ends and employees had no established procedure for using them.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EVANSVILLE MATERIALS
DDATE:
19900105
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. LAKE 89-61-M
PETITIONER A.C. No. 12-01389-05503

       v.                              Rockport Plant

EVANSVILLE MATERIALS, INC.,
RESPONDENT

                            DECISION

Appearances: Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
the Petitioner;
Gene Hurm, Safety Director, Evansville Materials,
Inc., Evansville, Indiana, for the Respondent.

Before: Judge Koutras

                   Statement of the Case

 This is a civil penalty proceeding filed by the petitioner

against the 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 $58, for an alleged
violation of mandatory safety standard 30 C.F.R. 56.11001. The
respondent filed a timely answer denying the violation, and a
hearing was held in Evansville, Indiana. The parties waived the
filing of posthearing briefs, but I have considered their oral
arguments made on the record during the hearing in my
adjudication of this matter.

                             Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the standard as alleged in the proposal
for assessment of civil penalty, (2) the appropriate civil
penalty that should be assessed against the respondent for the
alleged violation based upon the criteria set forth in section
110(a) of the Act, and (3) whether the violation was "significant
and substantial."

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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).

 3. Commission Rules, 20 C.F.R.        2700.1 et seq.

Stipulations

 The parties stipulated to the following (Tr. 4-5):

      1. The Commission and presiding judge have jurisdiction

in this matter.

        2. The respondent's sand and gravel business affects

commerce.

      3. The respondent is a sand and gravel operator engaged

in the business of dredging sand and gravel from the Ohio River.

      4. The respondent's operation is located in Tell City,

Indiana, and its plant is known as the Rockport Plant No. 6.

      5. The respondent's Rockport Plant worked 45,941

manhours during the period March 9, 1987 through March 9, 1988.

      6. The respondent worked 400,223 manhours at all of the

mines which it operates during the period March 9, 1987 through
March 9, 1988.

      7. In the event the violation is established, the

proposed $58 civil penalty assessment will not adversely affect
the respondent's ability to continue in business.

      8. The parties agree to the admissibility of copies of

the citation, extension, and termination, and the computer
print-out reflecting the respondent's history of prior violations
(exhibits P-1, P-2).

                          Discussion

 The contested section 104(a) S&S Citation No. 3260305, was

issued by MSHA Inspector George Lalumomdiere on October 4, 1988,
and he cited an alleged violation of mandatory safety standard 30
C.F.R. 56.11001. The cited condition or practice states as
follows:

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Safe access was not provided between the dredge
work boat and the dredge. In order to enter or exit
from the work boat to the dredge, a step up of about
three feet was necessary with nothing available for a
hand hold. This area is traveled on a daily basis.

Petitioner's Testimony and Evidence

 MSHA Inspector George Lalumomdiere testified that he visited

the respondent's dredging operation on the day in question and
was taken to the dredge located in the middle of the Ohio River
on a small flat bottom "john boat" approximately 12 feet long
powered by a small motor. Mr. Gene Hurm, the respondent's safety
director, was with him in the boat along with another employee
who was operating the boat. He described the dredge as
approximately 100 feet long, and confirmed that it is used to
pump sand and gravel from the bottom of the river. Upon arriving
at the dredge, the boat operator tied the boat up to the dredge
timberheads which he identified from photographs as "two yellow
posts sticking up on the edge of the dredge." He estimated that
the deck of the dredge was 3 feet above the boat (Tr. 9-12).

 The inspector stated that in order to get out of the boat he

had to place his hand up on the deck of the dredge and pull
himself out of the boat, and since it was a sunny day, the steel
deck plate was "hot to the touch" as he grabbed the deck to pull
himself up and onto the dredge. Although the photographs include
some hand-holds or "D-rings" on the deck dredge, the inspector
stated that they were not installed at the time of his inspection
and he had to slide onto the slick deck in order to get out of
the boat (Tr. 13-14).

 The inspector stated that in the absence of any hand-holds,

or some other means of getting out of the boat, one could slip
and fall into the water while trying to get out of the boat and
could possibly strike their head on the boat, particularly on a
windy day. He stated that only the front end of the boat was tied
to the post, and while this may prevent the boat from sliding out
from under him, he still had to slide himself up onto the hot
deck. Other than the hot deck, and the possibility of sliding
off, since he is "agile and can get around," he had no problem
getting out of the boat (Tr. 15).

 The inspector confirmed that he cited a violation of section

56.11001, because he did not believe that there was a safe means
of access for getting out of the boat onto the dredge. He
believed that hand-holds would be "safer than having nothing at
all" because someone would have something to hold onto without
having to reach up to a hot deck and pull himself out of the
boat. He did not consider the hand-holds to be tripping hazards,
and he would probably consider the cavils to be adequate as a

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safe means of access, but only if they were longer and closer to
the boat shown in the photograph. He confirmed that another
inspector abated the citation (Tr. 16-17).

 The inspector believed that the lack of safe access from the

boat onto the dredge presented a hazard, and that it was
reasonably likely that anyone leaving the boat by reaching up and
grabbing the deck with nothing else to hold onto could slip and
fall and receive lost day or work injuries. He believed that it
was reasonably likely that someone would receive face or head
injuries, or be knocked unconscious if he struck his head in a
fall, and even though he would be wearing a life jacket "there's
still no guarantee that he'd come out a hundred percent safe"
(Tr. 18). He believed that the violation was significant and
substantial, and that the negligence was moderate because the
safety director travels the area at least once a month and should
have been aware of the condition. The citation was abated by
providing hand-holds for persons to hold onto while leaving the
boat (Tr. 19).

 On cross-examination, the inspector confirmed that when he

issued the citation he suggested that the respondent install a
chain ladder to provide a means of access from the boat to the
dredge, and that when he returned to see if the abatement had
been completed, he suggested the installation of "A-frame"
handles which were something different from the D-rings. He also
confirmed that during his inspection visit, the boat was tied off
to the timberhead with a rope, but he did not believe that the
people in the boat could get out by using the rope because the
boat operator was standing at the front end where the boat was
tied off steadying the boat (Tr. 23-27). The inspector further
confirmed that no one got out of the boat at the front by using
the rope, and that everyone got out by putting their hands on the
deck and sliding on to it. The person holding the boat steady by
the rope also got out the same way (Tr. 32). The inspector
confirmed that the use of a rope was better than nothing, but he
did not consider the rope to be a safe means of access from the
boat to the dredge because he believed there was a better way to
provide a safe means of access (Tr. 33).

 In response to further questions, the inspector confirmed

that he had never worked on a boat or a dredge, but that he has
inspected many similar dredging operations. These operations
provide a chain ladder with a hand-hold which is dropped over the
side of the dredge so that anyone getting out of the boat can
step up the ladder and have something to hold onto and step off
of (Tr. 36). The inspector confirmed that only the front end of
the boat was tied up, and that given the fact that the deck was
hot, and the back of the boat was not tied off, in the event of
any drifting, the person attempting to get out of the boat would
have no means of holding on, and there would be no safe means of
access from the boat onto the dredge (Tr. 41). He also confirmed

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that there were three persons in the boat on the day of the
inspection, and that when there is a crew change, more than one
person is in the boat. Normally, when there are no crew changes,
only one man is in the boat (Tr. 41).

 Referring to the photographs which were submitted by the

respondent as part of its answer in this case, the inspector
confirmed that the hand-holds shown in the photographs were
welded to the dredge by the respondent to abate the citation, and
if they were in place when he conducted his inspection, he would
not have issued a citation because "they'd had something to hold
onto besides the rope" (Tr. 42). It was his understanding that
the boat would normally be tied up at the yellow posts shown in
the photographs, and that the posts are also used to tie up any
barges that are loaded from the dredge (Tr. 43-44). The inspector
confirmed that he did not measure the distance between the top of
the boat and the deck of the dredge, but estimated it to be 3
feet or "waist high" (Tr. 44).

Respondent's Testimony and Evidence

 Neil Mulzer, respondent's president, testified that he

believed that the timberheads and cavils which were installed on
the dredge, as shown in the photographs, may be used as
hand-holds. He stated that when there is a current in the river,
only the front end of the boat is tied up because the current
keeps the back of the boat against the dredge. In the event of a
lack of any current, the back of the boat is also tied up to the
dredge to keep it from colliding with any barges which may be
loading (Tr. 47). He did not believe that the hand-holds which
were welded on for abatement were as good as the timberheads or
cavils because the timberheads are 18 inches high, and the cavils
are 10 inches high, and provide better hand-holds (Tr. 48). He
conceded that the boat shown in the photographs is some distance
from the cavil, but that the boat could be tied up there, and in
order for the cavil to function as a hand-hold, the boat would
have to be docked close to it (Tr. 49, exhibit R-10). Mr. Mulzer
confirmed that the cavil is an integral part of the dredge, and
it is used to tie up the boat (Tr. 50).

 Mr. Mulzer believed that the timberhead and rope used to tie

up the boat are sufficient to provide a means of access from the
boat to the dredge because the timberhead is high enough to allow
anyone to pull themselves out of the boat using the rope. He
demonstrated the difficulty one would have in grabbing the
hand-holds and placing their feet up onto the dredge deck (Tr.
53). He believed it was easier for someone to hold onto the
timberhead while stepping up and out of the boat (Tr. 54). He
confirmed that the hand-holds shown in the photographs were not
installed on the dredge at the time the citation was issued (Tr.
57). He also confirmed that photographic exhibit R-10 is not the
same dredge cited by the inspector, but that exhibits R-2 through

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R-9 are photographs of the cited dredge (Tr. 60). He stated that
he has been in the dredging business since 1963, and has visited
many dredges, but has never seen anything other than a cavil or
timberhead and a rope used to get in and out of boats (Tr. 61).

 On cross-examination, Mr. Mulzer stated that the boat in

question is usually tied up at a "notch" in the dredge in order
to keep it from swinging out and being struck by any barges being
loaded. He conceded that the boat shown in photographic exhibits
R-8 and R-9, is not tied on both ends, and he guessed that the
prevailing current could not hold the untied rear end of the boat
against the dredge. He conceded that the back end of the boat
might come out, and that someone could lose their balance even if
they were to use the hand-holds (Tr. 64).

 Mr. Mulzer stated that the metal dredge deck could get hot

in the summer, but that it would not be "searing hot" and would
not "blister your hands." He believed that the hand-holds would
be equally as hot to the touch (Tr. 67). Mr. Mulzer confirmed
that there is no standard company procedure or safety rule in
effect instructing employees as to how to get in and out of the
boat while it is at the dredge. He stated that the rope and
timberhead "is there for them to use," and "we didn't sit and
watch everybody as they got out of the boat" (Tr. 67). He
confirmed that the use of the rope and timberhead was
discretionary with each employee, and that "you can't watch
everybody" (Tr. 68). He confirmed that he was not with the
inspector during the inspection and did not discussed the
citation with him prior to the hearing (Tr. 68). Mr. Mulzer
stated that prior to the issuance of the contested citation,
other MSHA inspectors have inspected the dredge and never
required any D-rings. He "guessed" that these inspectors used the
rope tied around the timberhead to get out of the boat (Tr. 72).

 Gene Hurm, respondent's safety director, was of the opinion

that the hand-holds presented a tripping hazard, and MSHA's
counsel alluded to a telephone conference during which Mr. Hurm
raised this question (Tr. 22). Mr. Hurm took the position that
the cavils, timberheads, and the rope could all be used for
access from the boat to the dredge, and that the inspector could
have gone to the front of the boat and used the rope to get out
of the boat. He believed that anyone leaving the boat had an
option to use the rope or "crawl up the sides," and that the
hand-holds are not needed (Tr. 26).

 Mr. Hurm testified that the cavils and timberheads have been

in place on the dredge since it was new. He confirmed that he was
under the impression from the inspector that the cavils and
timberheads were insufficient to abate the citation, and that a
ladder would have to be installed over the side of the dredge to
abate the citation. He stated that had he known that hand-holds
welded to the dredge deck would have been adequate to abate the

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citation, this case "would never have gotten this far" and that
he "would have said something right away" to the inspector (Tr.
69). He confirmed that MSHA Inspector Gene Upton suggested the
hand-holds, and that Mr. Upton terminated the citation. Mr. Hurm
could not recall anyone suggesting the use of a "roll-up chain
ladder" (Tr. 70). He recalled discussing the use of the rope with
the inspector, but could not recall exactly what was said (Tr.
73). He confirmed that there are no written instructions for the
employees to follow, and that they normally leave the boat from
the front end after tying it up by holding on to the timberhead,
grabbing the rope, and just jumping off the boat (Tr. 74). He
explained that "it's just one of those things that's overlooked .
. . and you can't make a policy on getting out of a boat"
(Tr. 75).

 Inspector Lalumomdiere was recalled by the court, and in

response to further questions, stated as follows (Tr. 75-77):

      BY THE COURT: I want to ask you this, you saw that
 little demonstration Mr. Mulzer gave us about putting
 the hand-hold there and if you grab it and you put your
 foot up, you're kind of in an awkward position there,
 do you lend any credence to that.

 A. I didn't really figure on getting off the boat that
 way. I figured if there was a hand-hold there or
 you've got something to hold onto so you can swing your
 leg up over the side of the boat and then come up
 partially in a kneeling position and then straighten on
 up after you get up on the deck.

      BY THE COURT: So I take it, your concern was that an
 employee that got off in the middle of the boat or the
 back of the boat with it not being tied off or nothing
 to hold onto to, there was a possibility of reasonable
 likelihood that if you try to get off there he'll
 probably fall and knock his head or fall in the water.

 A.   I felt there was a chance of it.

      BY THE COURT: Now, what if the boat was secured at the
 both ends on the day you were there, the back end was
 tied snugly to the dredge and the front end was tied
 snugly to the dredge and you saw the first guy get off,
 grab that yellow telephone pole contraption there, used
 the rope to get off, and then the second guy did it and
 then the third guy did it . . .

 A.   If this was the customary way of getting off . . .

       BY THE COURT: Right.

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A. . . . and I directed you here, this is the way we
get off . . .

       BY THE COURT: Right.

  A. . . . and you've got something to hold onto, I would
  have probably accepted it as a safe way to get
  off because you'd also be stepping up on the bow of
  the board which would put you up another foot closer to the
  dredge. And with no way of the boat slipping out from
  under you or anything, got something to hold onto to to
  steady yourself, I would say, you know, probably I
  would have accepted it as safe and would probably never
  issued a citation.

       BY THE COURT: But on the day that you were there at the
  time that this happened, it's just that the cir-
  cumstances of what happened, the back end wasn't tied
  and you had to get off at the middle and the deck was
  hot and it was slippery, you had to kind of shinney
  your way up, you came to the conclusion that this was
  the way they normally do it, right.

  A. Right, because the guy that was operating the boat
  went off the same way we did.

       BY THE COURT: Well, I mean, the operator's been very
  candid with me, he more or less admitted that he lets
  the employee decide how to get off the boat.

       A. Right.

 The inspector denied that he had required the respondent to

install a ladder, but confirmed that he "suggested" that a chain
ladder could be installed "where you could stand up on the edge
of the deck and then drop it down when you get ready to get off
the boat and you would at least have something to step off onto"
(Tr. 78). Referring to photographic exhibits R-8 and R-9, the
inspector confirmed that if the boat had been tied up at both
ends, and the individual shown in the photographs had stepped out
of the boat and onto the dredge in the manner depicted in the
photographs, he would not have issued the citation and "probably
would not have given it that much thought" (Tr. 78-79).

 Mr. Mulzer pointed out that anyone leaving the boat from the

bow or the middle would be approximately a foot higher in the
boat because they could stand on the seats or the bow structure
which is elevated above the bottom of the boat (Tr. 79). He
further stated that his employee do not like the hand-holds
because of the difficulty in using them (Tr. 80).

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Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 56.11001, for failing to provide a
safe means of access for employees to get out of the work boat
which is used as a means of access to the dredge. Section
56.11001, provides as follows: "Safe means of access shall be
provided and maintained to all working places."

 The evidence establishes that the dredge is a working place

where employees are required to be in order to perform certain
duties in connection with the respondent's dredging operations.
The inspector issued the citation when he and the two other
individuals who were in the boat at the time of his inspection
visit to the dredge got out of the boat by simply placing their
hands on the deck of dredge and "sliding" out of the boat and
onto the deck. The dredge deck was approximately 3 feet above the
boat, and there were no hand-holds available for anyone to hold
onto. Only the front end of the boat was tied to a post located
on the dredge deck, and the steel deck plating was "hot to the
touch" as the inspector placed his hands on the deck. Although
there was a rope tied to the post, and the inspector understood
that the boat is normally tied up at that post, and believed that
the rope "was better than nothing," he did not consider the use
of the rope to be a safe means of access to the dredge deck
because he believed that there was "a better way" to provide such
an access. His subsequent suggestion that a ladder be installed
as a means of access from the boat to the dredge was not adopted
because it was impractical, and another MSHA inspector abated the
citation after the respondent welded hand-holds to the deck of
the dredge.

 The respondent does not dispute the lack of any hand-holds

of the type which were installed to abate the citation. It takes
the position that the cavils and/or the timberhead or post which
was provided with a rope, provided an adequate means for safe
access from the boat to the deck of the dredge, and that the
hand-holds which were installed were impractical in that one had
to contort his body after grabbing the hand-holds in order to get
out of the boat, and that the use of the hand-holds would place
the person in a rather precarious position while attempting to
get out of the boat while holding on to the hand-holds. The
respondent further asserted that the use of the rope tied to the
post provided an adequate means of access from the boat onto the
deck dredge.

 Having observed the courtroom demonstration of the use of

the hand-holds by Mr. Mulzer, I find some merit in his assertion
that it would be difficult for anyone holding on to these
hand-holds to climb up and on the deck of the dredge from the

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boat. However, after viewing the photographic exhibits which show
the hand-holds welded into position in close proximity to the
timberhead where the boat would be tied up, I cannot conclude
that one would have as much difficulty using the hand-hold in
conjunction with the timberhead as a safe means of access from
the boat.

 With regard to the use of the timberhead and rope as a safe

means of access from the boat, the facts in this case establish
that the inspector and the other two individuals in the boat at
the time of the inspection did not use the timberhead and rope
while leaving the boat. They simply placed their hands on the
deck and slid their bodies up and onto the deck. The inspector
obviously believed that this procedure was the normal method used
by employees to get out of the boat, and in the absence of
anything to the contrary, I cannot conclude that the inspector's
belief that a safe means of access was not provided was
unreasonable, and I agree with it. With regard to the use of the
cavils as a means of access from the boat, the facts here show
that the boat was not tied up to any cavil, and that a cavil
would only present a possible means of access if the boat were
docked in close proximity to the cavil, and it was within reach
of the person on the boat.

 Further support for the inspector's belief that the normal

method of leaving the boat was the method used by the inspector
and the other two individuals in the boat at the time of the
inspection may be found in the admissions by Mr. Mulzer and Mr.
Hurm that the respondent had no established procedure or safety
rule for the employees to follow when getting out of the boat.
Although Mr. Hurm suggested that an employee leaving the boat
would normally hold onto the timberhead and rope and simply "jump
off the boat," he did not use the rope or timberhead when he was
with the inspector, and I find no credible evidence to support
any conclusion that the use of the rope and timberhead was an
established procedure to be followed by all employees while
getting out of the boat.

 Although Mr. Mulzer suggested that the boat is normally tied

up at a "notch" in the dredge, I find no credible evidence to
support any conclusion that the respondent had any established
fixed location for the boat to be tied up to the dredge, or that
it had any safety procedures in place for the employees to follow
while getting out of the boat at only one location alongside the
dredge. Although the use of the existing cavils and timberheads,
in conjunction with ropes may have provided a safe means of
access, I am not convinced that the respondent had any clearly
defined procedures instructing its employees to use these devices
as a safe means of access. If it had, the respondent may not have
been cited. Indeed, the inspector agreed that if there were an
established and customary method of getting out of the boat while
it was securely tied to the dredge, and the employees were

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so instructed, he would have accepted the use of the timberheads
and ropes as a safe means of access. On the facts of this case,
it would appear to me that the tying up of the boat at the dredge
and the use of any of the available devices as a means of access
from the boat did not follow any established procedure or
practice, and that each employee was left on his own. Under all
of these circumstances, I conclude and find that the evidence
establishes that no safe means of access was provided as charged
by the inspector, and that a violation of section 56.11001, has
been established. The citation is therefore AFFIRMED.

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 man-
 datory 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

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effect of a hazard that must be significant and sub-
stantial. 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).

 The inspector's unrebutted credible testimony establishes

that the failure by the respondent to provide a safe means of
access for persons leaving the boat presented a potential slip
and fall hazard and that in the absence of a readily available
hand-hold for one to hold onto or steady himself while he is
leaving the boat presented a reasonable likelihood of an
accident, particularly in a situation where the boat may not be
secured to the dredge at both ends, or on a rainy or hot day when
the deck may be hot or slippery. Although one would expect that
anyone in the boat would be wearing a life jacket, if he were to
fall or slip while attempting to get out of the boat, he could
strike his head on the boat or the side of the dredge, and if he
were knocked unconscious, and landed face down into the water,
the life jacket may not prevent him from drowning. I conclude and
find that in the normal course of business, if a person working
alone in the boat were to slip or fall while attempting to get
out of the boat with no readily available safe means of access
onto the dredge, and were to strike his head, he would likely
sustain injuries of a reasonably serious nature. Accordingly, the
inspector's "S&S" finding IS AFFIRMED.

History of Prior Violations

 A computer print-out of the respondent's history of prior

violations reflects that the respondent paid civil penalty
assessments in the amount of $90, for two section 104(a) "S&S"
citations issued during the period March 9, 1987, through March
8, 1989. I conclude and find that the respondent has a good
compliance record, and I have taken this into consideration in
the assessment of the civil penalty in this case.

Good Faith Compliance

 The record establishes that the abatement time was extended

to allow the respondent more time to install suitable hand-holds
to abate the violation. It also establishes that the violation
was ultimately abated by the respondent in good faith within the
time allowed by the inspector.

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Negligence

 The inspector's finding of "moderate negligence" is

affirmed, and I conclude and find that the violation resulted
from the respondent's failure to exercise reasonable care.

Gravity

 For the reasons stated in my "S&S" findings, I conclude and

find that the violation was serious.

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

 I conclude and find that the respondent is a medium-size

sand and gravel operator, and that its dredging operations at the
Rockport Plant where the violation occurred was a small
operation. I further conclude and find that the civil penalty
assessment which I have made for the violation in question will
not adversely affect the respondent's ability to continue in
business.

                 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 the petitioner's proposed civil
penalty assessment of $58 is reasonable and appropriate for the
violation which has been affirmed.

                          ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $58, for a violation of mandatory safety
standard 30 C.F.R. 56.11001, as stated in the section 104(a)
"S&S" Citation No. 3260305, issued on October 4, 1988. Payment of
the penalty is to be made to MSHA within thirty (30) days of the
date of this decision and order, and upon receipt of the payment,
this matter is dismissed.

                 George A. Koutras
                 Administrative Law Judge