Secretary of Labor (MSHA) v. Applegate Aggregates (ALJ decision, August 27, 1980)

Plain-English summary

MSHA charged Applegate Aggregates with two violations of the machine guarding standard at its Oregon operation. Judge John J. Morris upheld the citation concerning an unguarded tail pulley because a worker cleaning spillage came within six inches of it. He assessed $25 after crediting the company with good faith in abating the condition. He vacated the separate citation for an unguarded vibrator because workers were two to three feet from its pinch points, a guardrail limited access, and the equipment was shut down for maintenance. The heading for the first citation prints No. 349666, while the discussion and order identify the upheld citation as No. 349866.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14-1, guarding of exposed moving machine parts.
• Outcome: Citation No. 349866 affirmed with a $25 penalty; Citation No. 349867 vacated.
• Key point: The judge distinguished direct worker exposure to a moving pulley from a vibrator's pinch points separated by distance and a guardrail.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

333 W. COLFAX AVENUE
DENVER, COLORADO 80204

AUG 27 1980
)
SECRETARY OF LABOR, MINE SAFETY AND )
HEALTH ADMINISTRATION (MSHA), )
) CIVIL PENALTY PROCEEDING
Petitioner, )
) DOCKET NO. WEST 79-150
v. )
) A/O NO. 35-02875-05001
)
APPLEGATE AGGREGATES, ) Mine: Applegate Aggregates Bar
)
Respondent. )
)

APPEARANCES:
Mildred L. Wheeler, Esq., Office of Daniel Teehan, Regional Solicitor, United States Department of Labor, San Francisco, California

for Petitioner

E. W. Mignot, President, appearing pro se, Grants Pass, Oregon for the Respondent.

Before: Judge John J. Morris
DECISION

In this civil penalty proceeding, the Secretary of Labor, on behalf of the Mine Safety and Health Administration (MSHA), charges respondent, APPLEGATE AGGREGATES, failed to guard certain equipment thereby violating safety regulations promulgated under the authority of the Federal Coal Mine Health and Safety Act of 1969, (amended 1977), 30 U.S.C. § 801 et seq.

Pursuant to notice, a hearing on the merits was held in Grants Pass, Oregon, on July 8, 1980. The parties waived their right to file post trial briefs.

ISSUES

The issues are whether the violations occurred.

CITATION 349666

This citation alleges a violation of 30 C.F.R. 56.14-1. The cited

standard provides:

GUARDS

56.14-1 Mandatory. Gears; sprockets;
chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted
by persons, and which may cause injury to
persons, shall be guarded.

The evidence is conflicting. I find the following facts to be credible. 1

1. A workman could become entangled in APPLEGATE's unguarded self
   cleaning tail 12 inch pulley which was located near ground level (Tr. 8 - 11, 25, 39, P-1).

2. The clean up man who removes the spillage was observed to be within

6 inches of the unguarded moving equipment (Tr. 11, 42). DISCUSSION

APPLEGATE contends it constructed a guard suggested by the inspector: the equipment was later damaged. The guard obstructed the operator's view of a rock that split the belt (Tr. 26).

The inspector contends he suggested but did not direct APPLEGATE on how to abate the condition. In any event the guard he recommended was different from the one installed by APPLEGATE (Tr. 39 - 40, P-1).

While Applegate's president indicated the cleanup man uses a 5 1/2 foot shovel to clean up the spillage, the inspector's testimony is

uncontroverted. He observed the cleanup man hands within six inches of the

unguarded pulley (Tr. 42). It is this type of close promimity that

1/ Credibility determinations favor MSHA since APPLEGATE's witness was not present at the time of the inspection (Tr. 36).

that necessitates guarding of the pulley.

The standard here requires the guarding of pulleys where workers in the normal course of their duties may contact the moving machine parts. To like effect see the decision of Administrative Law Judge George A. Koutras in

Central Pre-Mix Concrete Company , 1 MSHC 2237 (1979).

I accordingly conclude that citation 349866 should be affirmed.

In considering the proposed assessment and in view of the statutory criteria 2, it does not appear that MSHA has credited APPLEGATE with sufficient good faith for abating the defective equipment. I deem a

penalty of $25 to be appropriate for this violation.

CITATION 349867

This citation alleges a violation of 30 C.F.R. 56.14-1, cited in the previous citation. The evidence is uncontroverted and the facts are as follows.

3. APPLEGATE's vibrator lacked a guard (Tr. 12 - 15, P-2).

4. Workmen pass within an arm's length of an unguarded equipment (Tr
   13).

5. The pinch points on the equipment would be two to three feet from
   the maintenance platform (Tr. 13, 14, 22, 29, 30).

6. The platform has a 1 1/2 inch pipe guardrail (Tr. 22, 30).

7. The machinery is shut down if it requires maintenances (Tr. 31,
   32).

DISCUSSION
The standard allegedly violated here requires that guarding of

equipment if the condition may cause injury to persons. Injury to persons

2/ 30 U.S.C. § 820(i)

as contemplated by the standard involves a real, and not an illusory exposure to the hazard.

In this situation a workman would be no closer than two to three feet from the pinch points. A guardrail prevents ready access and the equipment is shut down when any maintenance is done.

MSHA has failed to establish the likelihood of injury as required by the regulation. Accordingly, I conclude that Citation 349867 should be vacated.

Based on the foregoing findings of fact and conclusions of law I enter the following:

ORDER

1. Citation 349866 is affirmed and a penalty of $25 is assessed.

2. Citation 349867 and all penalties therefor are vacated.

John J. Morris
Administrative Law Judge

Distribution:
Mildred L. Wheeler, Esq., Office of the Solicitor, United States Department of Labor, 11071 Federal Building, Box 36017, 450 Golden

Gate Avenue, San Francisco, California 94102

Mr. E. W. Mignot, President, Applegate Aggregates, 2660 Vine Street, Grants Pass, Oregon 97526