Colorado Silica Sand, Inc.

Plain-English summary

MSHA cited Colorado Silica Sand after finding that a guard was missing from the head pulley of a conveyor at the company's Wolf Pit No. 1 and Plant. Judge John J. Morris credited the inspector's testimony that the plant was operating and found that the guard requirement applied even though the conveyor was not moving at the inspection moment. He affirmed the citation, found low negligence and high gravity, and assessed a $40 penalty. The company had rapidly abated the condition.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14006
• Outcome: Citation No. 3065071 was affirmed and a $40 penalty was assessed.
• Key point: A missing machinery guard violated the standard where the plant was operating, even though the conveyor was not moving when inspected.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. COLORADO SILICA SAND
DDATE:
19890508
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. WEST 88-337-M
PETITIONER A.C. No. 05-03295-05514

         v.                              Wolf Pit No. 1 and Plant

COLORADO SILICA SAND, INC.,
RESPONDENT

                                 DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor
U.S. Department of Labor, Denver, Colorado
for the Petitioner;
Mr. Lennart T. Erickson II, Vice-President,
Colorado Silica Sand, Inc., Colorado Springs,
Colorado, pro se.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges respondent with violating a
safety regulation promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. 801 et seq., (the Act).

 After notice to the parties a hearing on the merits was held

in Denver, Colorado on April 25, 1989.

 The parties waived their right to file post-trial briefs,

submitted their cases on oral arguments, and further waived
receipt of the transcript and requested an expedited decision.

                           Summary of the Case

 Citation No. 3065071 charges respondent with violating 30

C.F.R. 56.14006, which provides as follows:

              56.14006 Placement of guards during
                       during machinery operation.

         Except when testing the machinery, guards shall be
         securely in place while machinery is being operated.

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Stipulation

 At the commencement of the hearing the parties stipulated as

follows:

 1. The operator has 13 miners working two shifts; the

company is a medium-sized operator.

 2. The imposition of a civil penalty will not impair the

company's ability to continue in business.

 3. Abatement was rapidly accomplished in this case.

Secretary's Evidence

 ARNOLD B. KERBER, an MSHA inspector, is a person experienced

in mining and mine safety. He has been an inspector for
approximately 15 years.

 The witness is familiar with the Wolf Pit No. 1 mine located

in El Paso County, Colorado. Both the plant and pit are under
MSHA's jurisdiction.

 The company uses front-end loaders to remove silica sand

from a hillside deposit. From there it is trucked to the plant
site where it is eventually fed into hoppers.

 On June 21, 1988, the inspector met Jack Wright, the

superintendent of maintenance, at the work site. They toured the
plant looking for any unsafe conditions.

 At the plant the silica sand is conveyed by a brown

crossover belt conveyor. The conveyor transfers the sand between
storage bins; it is transported from the north side to the south
side of the plant. The belt conveyor is 36 feet long; the belt
itself is 24 inches wide.

   The conveyor runs continually except when it is shut down.

 On June 21, 1988, the inspector observed the guard at the

head pulley of the conveyor lying on the ground. The conveyor is
usually completely covered. However, on this occasion there was
no guard at the head pulley where the belt meets the top roller.
The exposed area was 18 inches by 12 inches.

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The opening itself was 48 inches above the ground and if a person
fell he could become entangled with the head pulley. If this
occurred it would be possible to suffer the loss of an arm. In
addition, there was quite a bit of silica sand spillage in the
area; sand of this type can be slippery and walking in it can be
difficult.

 On the day of the inspection the belt was not being tested;

further, company representative Wright did not claim it was being
tested.

 There was a regular track where workers travel near this

area and the missing guard was in plain view.

 On the day the citation was issued the conveyor had been

operating and there was material on the belt.

 The inspector learned that three employees had come in at

5:00 a.m. and the balance of the employees had come in at about
8:00 a.m. when the regular shift begins. The citation was written
at approximately 11:00 a.m. It was terminated the next day when
the inspector returned to the site. At that time the guard was
back in place.

 During the balance of the day the inspector reviewed the

records that MSHA requires the company to keep. On June 22, 1988,
the following day, he tested employees for silica as well as
noise exposure. On June 23 he was there for a short time for a
close-out conference.

 When conducting the inspection it was windy. Dust and sand

reduced visibility in the area.

 The guards of the conveyor themselves were corrugated metal

and usually connected to the conveyor. (See Exhibits R-1, R-2,
R-3, R-5). The inspector did not learn who had removed the guard.

 In cross-examination the inspector indicated he has received

good cooperation from the company. He had also inspected the
company in March 1987. He had previously asked the company to
move a guard about 6 inches forward; he had also issued a
citation for that condition. However, there had been no
conversation about the particular head pulley that resulted in
the instant citation.

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The company was operating the plant because the inspector would
not have written the citation as S & S unless the plant was
operating. A good portion of the inspector's activities
concentrate on pointing out exposed pinch points to the company
representatives.

                        Operator's Evidence

 LENNART T. ERICKSON, II is a Vice-President of the company

in charge of finance and administration.

 The particular silica mined by the company is harder and

rounder than a river run. The company's silica, a dune deposit,
runs about 95 percent silica sand; a river run is approximately
65 percent.

 Mr. Erickson was not present when Inspector Kerber issued

his citation. However, his duties require that he investigate all
MSHA citations. In connection with this citation he talked to
Dale Correll (plant superintendent), Jim Wright (maintenance
supervisor), and Bill Hoss (mechanic).

 These three men are no longer with the company and they told

him that they were to fasten the guard covers. This could only be
accomplished by a tack weld. Mr. Erickson also learned from
investigation that the previous night the conveyor guard had
blown off. The morning of the investigation it was to be replaced
and welded.

   In addition, the conveyor was not in operation.

   The company tries to follow MSHA's rules and regulations.

 On cross-examination, the witness agreed that it had been

some months before, at a prior inspection, when they had been
told by the inspector to move a guard forward.

  Company employee Correll told Mr. Erickson the plant was not

operating at the time of the inspection nor had the conveyor been
running that day. The plant can be in operation without the
conveyor operating. The conveyor runs about 50 percent of the
time.

   The normal shift of the company starts about 8:00 a.m.

 The company's position that the conveyor was not in

operation is set forth in the company's letter dated December 15,
1988, which is in its answer filed in the case.

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Discussion

 A credibility issue arises here as to whether the plant was

operating at the time of the inspection. On this issue I credit
the inspector's testimony: the citation was issued about 11:00
a.m. when the full work force of thirteen workers was on the
site. I reject the operator's contrary evidence which is
admittedly hearsay with only minimal foundation.

 The regulation involved here requires that a guard shall be

securely in place "while machinery is being operated." The
credible evidence establishes that the conveyor at the head
pulley was not in place. In fact, it was lying on the ground. The
inspector indicated that the conveyor was not being tested and
the company representative accompanying him did not claim that
any such test was taking place.

 The credible evidence in the case establishes that the

conveyor was neither conveying material nor moving at the time
the citation was issued. However, I infer the conveyor was
nevertheless "being operated" as that term is used in 56.14006.
It is apparent that the conveyor supplies silica to the plant
about 50 percent of the time. Since the plant itself was
operating I infer the conveyor was also being operated. To like
effect, see Freeport Koolin Company, 2 FMSHRC 233, 250, 251
(1980) (Cook, J), and The Hanna Mining Company, 2 FMSHRC 1446,
1453 (1980) (Broderick, J).

 On the uncontroverted credible evidence it appears that a

violation of 56.14006 existed.

 At best, the company's defense is that the wind had blown

the guard off of the conveyor and that the company had three
hours to find and remedy this condition. The company's defense
cannot prevail. The fact that it had only three hours to find and
remedy the defective condition relates to the company's
negligence and not as to whether a violation occurred. Negligence
is a factor to be considered in the imposition of a civil
penalty.

 Since the uncontroverted evidence shows the guard was not in

place and the conveyor was in operation, a violation occurred and
Citation No. 3065071 should be affirmed.

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Civil Penalty

 The statutory criteria to assess civil penalties is

contained in section 110(i) of the Act.

 The evidence shows that for the two years ending June 20,

1988, the operator was assessed for 29 violations of safety
regulations. (Exhibit P-1).

 The stipulation of the parties indicates the company is a

medium-sized operator. The company's negligence must be
considered low in that it had a relatively short period of time
to discover and correct this violative condition. The stipulation
indicates that payment of a penalty will not cause the operator
to discontinue its business. The gravity of the violation is high
since a miner could be severely injured if he became entangled
with the exposed pinch point. The operator is entitled to its
statutory credit for good faith since it rapidly abated the
violative condition.

 On balance, I deem that a civil penalty of $40 is

appropriate.

                             ORDER

 Based on the foregoing finding of fact and conclusions of

law I hereby enter the following order:

 Citation No. 3065071 is affirmed and a penalty of $40 is

assessed.

                               John J. Morris
                               Administrative Law Judge