Grove Crushing Company (ALJ decision, December 9, 1980)

Plain-English summary

MSHA cited Grove Crushing Company for five conditions at its Oregon gravel pit. Judge John J. Morris upheld citations for a loader without a working backup warning device, a ramp without a berm, and a crusher platform without adequate edge protection. He reduced the penalties for those three violations to $25 each after finding that MSHA had not credited Grove's prompt abatement. The judge vacated two machine-guarding citations because MSHA had not proved the pulleys were unguarded or that workers were exposed to them. The resulting penalty total was $75.

Decision snapshot

• Cited standards: Backup warnings, 30 C.F.R. § 56.9-87; roadway berms, § 56.9-22; working-platform protection, § 56.11-27; machine guarding, § 56.14-1.
• Outcome: Citation Nos. 349420, 349421, and 349422 upheld at $25 each; Citation Nos. 349423 and 349424 vacated.
• Key point: The judge sustained the readily observed equipment and platform violations but required proof of both inadequate pulley guards and worker exposure for the guarding citations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GROVE CRUSHING
DDATE:
19801209
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 79-319-M
PETITIONER
MSHA CASE NO. 35-02844-05001
v.
MINE: SAGER CREEK PIT
GROVE CRUSHING COMPANY,
RESPONDENT
APPEARANCES:

William W. Kates, Esq., Office of Robert A. Friel, Associate Regional Solicitor, United States Department of Labor, Seattle, Washington for Petitioner

Michael R. Hughes, President of Grove Crushing Company, appearing pro se, Eugene, Oregon for Respondent

DECISION

Before: Judge John J. Morris

In this civil penalty proceedings, Petitioner, the Secretary of Labor, on behalf of the Mine Safety and Health Administration (MSHA), alleges that respondent, Grove Crushing Company (GROVE), violated five safety regulations promulgated under the authority of the Federal Mine Safety and Health Act of 1969 (amended 1977), 30 U.S.C. 801 et seq.

Pursuant to notice, a hearing on the merits was held in Eugene, Oregon, on July 9, 1980. Patrick Bodah testified for MSHA and Michael R. Hughes testified for GROVE. The parties did not file post trial briefs.

ISSUES

The issues are whether the violations occurred and what penalty, if any, is appropriate.
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CITATION 349420

This citation alleges a violation of 30 C.F.R. 56.9-87. The cited standard provides:

56.9-87 Mandatory. Heavy duty mobile equipment shall be provided with audible warning devices. When the operator of such equipment has an obstructed view to the rear, the equipment shall have either an automatic reverse signal alarm which is audible above the surrounding noise level or an observer to signal when it is safe to back up.

The evidence is uncontroverted.

1. GROVE's front end loader did not have a functioning automatic backing warning device (Tr. 11, 12).

2. The loader operator sits in the middle of the seven foot long machine. The loader itself obstructs the operator's view for a distance of 10 to 12 feet to the rear (Tr. 28).

DISCUSSION

The uncontroverted facts establish a violation of the standard. I accordingly conclude that this citation should be affirmed.

In view of the statutory criteria (FOOTNOTE 1) and in view of the nature of the defective equipment and its potential hazard to workers, I deem a penalty of $25.00 to be appropriate. The penalty was reduced from $52.00 because MSHA failed to credit GROVE for its good faith abatement (Tr. 12).

CITATION 349421

This citation alleges a violation of 30 C.F.R. 56.9-22. The cited standard provides:

56.9-22 Mandatory. Berms or guards shall be provided on the outer bank of elevated roadways.

The evidence is uncontroverted.

3. A twenty foot ramp leading to a feed hopper lacked a berm (Tr. 12 - 13).

4. A berm, hich must be hub high, prevents a vehicle such as a front end loader from going over the edge (Tr. 12 - 13).
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5. GROVE's front end loader was continually going up and down
   the ramp (Tr. 14).

   Since the evidence concerning the lack of berms is
   uncontroverted, the citation should be affirmed.

   Considering the statutory criteria (FOOTNOTE 2) the proposed penalty
   of $52.00 is excessive since the proposed assessment failed to credit Grove for its good faith abatement. A penalty of $25 is appropriate (Tr. 14).
   CITATION 349422

   This citation alleges a violation of 56.11-27. The cited
   standard reads:

       56.11-27 Mandatory. Scaffolds and working platforms
       shall be of substantial construction and provided with
       handrails and maintained in good condition. Floor
       boards shall be laid properly and the scaffolds and
       working platforms shall not be overloaded. Working
       platforms shall be provided with toeboards when
       necessary.
   

   The evidence is uncontroverted.

   6. The 10 foot high deck of the crusher machine had
      unguarded openings on two sides (Tr. 15).

   7. One side of the work platform faced the jaw crusher (Tr.
      15).

   8. The crusher operator works on this platform (Tr. 15).

   9. There is a chain on the crusher side, but it was
      unhooked at the time of the inspection (Tr. 36).

                              DISCUSSION
      

   The chain situated on the jaw crusher side of the work
   platform, even if it had been hooked, would not constitute compliance with the regulation. The standard, 30 C.F.R. 56.11-27, by its terms requires more substantial protection for the platform operator. This citation should be affirmed.

   In considering the statutory criteria,(FOOTNOTE 3) the proposed
   penalty of $72.00 is excessive since it fails to credit GROVE for its good faith abatement (Tr. 17). A penalty of $25.00 is appropriate.
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   CITATIONS 349423 and 349424
   These citations 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.
   
                            DISCUSSION
   

   MSHA's case fails for two reasons. First, MSHA did not
   sustain its burden of proof. The inspector testified there were two unguarded tail pulleys. One was identified as being under the cone conveyor and one leading to the shaker screen. (Tr. 17
   - 20, 30).

   On the other hand GROVE's president testified the tail
   pulleys had foot guard boxes bolted on to the conveyor which provide adequate protection (Tr. 37, 40). In addition, I do not perceive any evidence establishing in what manner the GROVE workers would be exposed to the hazard if in fact it existed. The burden of proving all elements of an alleged violation rests with MSHA, 5 U.S.C. 556(d). Brenner v. OSHRC, 511 F.2d 1139 (9th Cir., 1975); Olin Construction Company v. OSHRC 575 F.2d 464 (2d Cir., 1975).

   For the foregoing reasons I conclude that Citations 349423
   and 349424 and all proposed penalties therefor should be vacated.

                               ORDER
   

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

   1. Citation 349420 is affirmed and a penalty of $25.00 is
      assessed.

   2. Citation 349421 is affirmed and a penalty of $25.00 is
      assessed.

   3. Citation 349422 is affirmed and a penalty of $25.00 is
      assessed.

   4. Citation 349423 and all penalties therefor are vacated.

   5. Citation 349424 and all penalties therefor are vacated.

                           John J. Morris
                           Administrative Law Judge
      

~FOOTNOTE_ONE
1 30 U.S.C. 820(i)

~FOOTNOTE_TWO
2 30 U.S.C. 820(i)

~FOOTNOTE_THREE
3 30 U.S.C. 820(i)