<DOC>
[DOCID: f:ws99348.wais]

 
JOHN RICHARDS CONSTRUCTION
September 13, 2001
WEST 99-348-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                       September 13, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. WEST 99-348-M
               Petitioner       : A.C. No. 24-02070-05502
                                :
          v.                    : Docket No. WEST 2000-168-M
                                : A.C. No. 24-02070-05503
                                :
JOHN RICHARDS CONSTRUCTION,     : Docket No. WEST 2000-470-M
               Respondent       : A.C. No. 24-02070-05504
                                :
                                : Richards Pit

                             DECISION

Appearances: John Rainwater, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Denver, Colorado, for 
             Petitioner;
             John  Richards, John Richards Construction, Seeley
               Lake, Montana, for Respondent.

Before: Judge Manning

     These cases are before  me on three petitions for assessment
of civil penalty filed by the  Secretary of Labor, acting through
the Mine Safety and Health Administration  ("MSHA"), against John
Richards  Construction  ("Richards  Construction"),  pursuant  to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. �� 815 and 820 (the "Mine Act").  The Secretary's
petitions  allege  21  violations  of  the   Secretary's   safety
standards  and propose penalties totaling $19,073.  A hearing  in
these cases was held in Missoula, Montana.

          I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.  Background  and  Discussion  of General Issues Raised by
Richards Construction

     John  Richards  owns  Richards  Construction   as   a   sole
proprietor.   It  operates  the  Richards Pit in Missoula County,
Montana.  The pit includes a crushing plant as well as a sand and
gravel quarry.  All of the citations  and  orders  were issued at
the crushing plant.  John Richards employs two individuals at the
pit.   One  employee  operates  the crushing plant and the  other
operates a loader to feed the hopper for the plant.  Mr. Richards
frequently works out of state for another employer.

     MSHA Inspector Siebert Smith  first tried to inspect the pit
on February 4, 1999.  When he could not find anyone at the pit on
that  date, he left the pit and did not  conduct  an  inspection.
Inspector  Smith  returned  to  the  pit on August 12, 1999.  Mr.
Richards was not at the pit on that day  because  he  was working
out of state.  When Inspector Smith arrived he talked to Mr. Carl
Tanner.  When Tanner discovered that Smith was an MSHA  employee,
Tanner  told  Smith  that  he  was  going to shut the plant down.
Tanner walked through the plant to the  other side, shut it down,
and  left with the other employee.  (Tr. 48-50).   As  they  were
leaving,  Tanner  told Smith that he was not going to participate
in the inspection and  that he could "[w]rite anything you want -
I've seen it all before."   (Tr.  49-50).   Smith  believes  that
Tanner  talked  to  Lance  Richards,  John's  son,  because Lance
arrived a short time later.

     Mr. Richards raised a number of defenses that are applicable
to  all  of  the  citations  and orders in this case.  First,  he
contends that, because there were  only two employees at the pit,
each with assigned duties, many of the  conditions  cited did not
pose a hazard.  For example, Richards contends that many  of  the
guarding  citations,  discussed  below, should be vacated because
employees do not walk around the plant  while  it  is  operating.
Mr. Tanner operates the loader while the other employee  operates
the  plant.  Richards asserts that anytime the plant operator  is
cleaning up accumulations or performing maintenance on the plant,
he shuts it down.

     The Federal Mine Safety and Health Review Commission and the
courts  have  uniformly  held  that  mine  operators are strictly
liable for violations of safety and health standards.   See, e.g.
Asarco  v.  FMSHRC,  868  F.2d 1195 (10th Cir. 1989).  "[W]hen  a
violation of a mandatory safety  standard  occurs  in a mine, the
operator  is  automatically  assessed a civil penalty."   Id.  at
1197.  In addition, the Secretary is not required to prove that a
violation creates a safety hazard,  unless the safety standard so
provides.

          The [Mine Act] imposes no general requirement
          that a violation of MSHA regulations be found
          to  create  a safety hazard in  order  for  a
          valid  citation   to  issue.   If  conditions
          existed  which  violated   the   regulations,
          citations [are] proper.

Allied   Products,   Inc.,  666  F.2d  890,  892-93   (5th   Cir.
1982)(footnote omitted).   The negligence of the operator and the
degree of the hazard created  by  the  violation  are  taken into
consideration in assessing a civil penalty under section  110(i).
30 U.S.C. � 820(i).  Thus, a violation is found and a penalty  is
assessed  even  if the chance of an injury is not very great.  In
assessing penalties in this case, I have taken into consideration
the fact that Richards  Construction  is  a  small  business.   I
cannot  vacate  citations  or  reduce  penalties  to  zero simply
because the risk of injury was small.

     The  Commission  interprets safety standards, including  the
guarding standard, to take  into  consideration  "ordinary  human
carelessness."   Thompson  Bros.  Coal  Co.,  6 FMSHRC 2094, 2097
(September  1984).   The Commission specifically  held  that  the
guarding standard must  be  interpreted to consider whether there
is a "reasonable possibility  of  contact  and  injury, including
contact stemming from inadvertent stumbling or falling, momentary
inattention,  or  ordinary  human  carelessness."   Id.     Human
behavior  can  be  erratic  and unpredictable.  It is conceivable
that  someone  might  attempt to  perform  minor  maintenance  or
cleaning near an unguarded  tail pulley without first shutting it
down.  In such an instance, the  employee's clothing could easily
become entangled in the moving parts  and  a serious injury could
result.  Guards are designed to prevent just  such  an  accident.
The  fact  that no employee has ever been injured by an unguarded
pinch point at this operation is not a defense because there is a
history of such injuries at crushing plants throughout the United
States and the  Richards Pit could be next.  Fatal accidents have
occurred at small  operations as a result of inadequately guarded
tail pulleys.  See   Darwin  Stratton & Son, Inc., 22 FMSHRC 1265
(Oct. 2000) (ALJ).

     Mr. Richards also argues that Mr. Tanner was responsible for
the creation of the cited conditions  because  he left Mr. Tanner
in  charge  while  he  was  out of state.  For example,  Richards
states that many of the guarding  citations  were  issued because
Mr.  Tanner  had allowed large amounts of material to  accumulate
around the plant  contrary  to  Richards'  explicit instructions.
The accumulations had the effect of raising  the walking surfaces
placing  them  within seven feet of unguarded pulleys.   Richards
states that if he  had been at the plant, he would have made sure
that accumulations were  cleaned  up  on  a regular basis and the
pulleys  would  have  been  guarded by location.   Richards  also
raises this defense with respect  to  the  unwarrantable  failure
citation and orders.

     As a general matter, a mine operator can be held liable  for
the  acts  of his agents.  An agent is defined at section 3(e) of
the Mine Act  as  "any person charged with responsibility for the
operation of all or  part  of  a . . . mine or the supervision of
miners  in  a . . . mine."   The Commission  has  held  that  the
negligence of an agent of a mine operator must be considered when
determining  the  operator's  negligence  in  assessing  a  civil
penalty under  section 110(i) of the Mine Act and when evaluating
an unwarrantable  failure  allegation.  Southern Ohio Coal Co., 4
FMSHRC 1459, 1463-64 (Aug. 1982);  Rochester  &  Pittsburgh  Coal
Co., 13 FMSHRC 189, 194-97 (Feb. 1991).  The issue is whether Mr.
Tanner was an agent of Richards Construction.

               When  deciding  whether  a  miner  is an
          agent  of  an  operator,  the  Commission has
          focused on the miner's function  and  not his
          job  title.   It  has  examined  whether  the
          miner's  function  involved  responsibilities
          normally  delegated  to management  personnel
          and whether his responsibilities were crucial
          to  the  mine's  operation.    It   has  also
          considered   whether   the   miner  exercised
          managerial responsibilities at  the  time  of
          his negligent conduct.

Martin  Marietta  Aggregates,  22  FMSHRC  633,  637  (May  2000)
(citations  omitted).  The conduct of a rank-and-file miner, "may
not, absent agency,  be  imputed to the operator."  Whayne Supply
Co., 19 FMSHRC 447, 454 (Mar. 1997) (emphasis in original).

     Mr. Richards' testimony  is  somewhat  inconsistent.  On the
one hand, he stated that he has "been (working)  in Arizona since
1987, part years."  (Tr. 492).  On the other hand,  he  testified
that  he  is usually around during crushing operations.  Id.   He
testified that  "this  was  really  the  first time that I'd left
[Montana] and left [Tanner] in charge."  (Tr.  491).  Apparently,
Richards had been in Houston for about three weeks at the time of
this particular inspection.  (Tr. 437).

     Ordinarily,   Tanner   was   not   an   agent   of  Richards
Construction.  Mr. Richards put Tanner in charge of the pit while
he was in Houston, Texas.  The question is whether Tanner  was an
agent of Richards Construction while Richards was away.  Richards
argues  that he had given his employees, including Tanner, safety
training.  For example, he told his employees to always wear seat
belts when  operating equipment.  (Tr. 491).  As discussed below,
Inspector  Smith  observed  Tanner  operating  a  loader  without
wearing a seat  belt.  After Mr. Richards returned to Montana, he
requested a health  and  safety  conference  with  MSHA  under 30
C.F.R.  �  100.6  to  discuss  the citations that Inspector Smith
issued.  He requested this conference  because  he  believed that
Tanner  should  have been held responsible for the violations  in
Richards' absence.   The  conference was held on October 1, 1999,
by   telephone.   Supervisory   MSHA   Inspector   Wayne   Wasson
represented  the  Secretary.  Carl Tanner and Lance Richards were
also on the telephone  conference.  Inspector Wasson testified at
the  hearing that Mr. Richards  told  him  during  the  telephone
conference that Tanner was the "superintendent" at the pit at the
time of  Inspector  Smith's  inspection.  (Tr. 350).   Several of
the  citations  that  were issued  by  Inspector  Smith  involved
violations committed by  Carl  Tanner,  including  the  seat-belt
violation.   As  a  consequence,  Inspector Wasson modified these
citations  to section 104(d)(1) citation  and  orders.   He  made
these   modifications   because   he   believes   that   a   mine
superintendent  should be held to a higher degree of care than an
employee who is not a manager.  (Tr. 351-52).

     At the hearing,  Richards  testified  that Tanner was a very
safety conscious individual who always "followed the directives."
Id.  Richards does not understand why he failed  to  wear  a seat
belt.   Richards  testified  that  he  terminated Tanner from his
employment with Richards Construction as  a result of his conduct
during the inspection.  (Tr. 495).  Richards believes that Tanner
should have been cited for this violation and  for  other similar
violations  rather  than  Richards  Construction  because  Tanner
failed to follow the pit's safety rules.  Richards  believes that
Tanner "was not looking out for my best interests. .  .  ."  when
Richards  was  away, especially during the MSHA inspection.  (Tr.
519).  As a consequence,  he  argues  that  Richards Construction
should  not be held responsible for Tanner's actions  during  the
inspection.

     Mr.   Richards  did  not  clearly  set  forth  Mr.  Tanner's
responsibilities  at  the  hearing.   Tanner  apparently  had the
authority  to  supervise  the  other  employee,  take  orders for
product, run the plant, and manage the day-to-day operations.  It
does  not  appear  that Tanner had the authority to hire or  fire
employees or to discipline employees.  It is clear, however, that
Tanner had responsibility  for  safety at the pit.  It was within
his  power to make sure that safety  rules  and  procedures  were
followed.    Tanner  was  more  than  a  leadman;  he  "exercised
managerial responsibilities" at the pit in Mr. Richards' absence.
For purposes of the Mine Act, I find that Mr. Tanner was an agent
of Richards Construction when Mr. Richards was out of state.  The
fact that Tanner did not follow Mr. Richards' guidelines does not
negate the agent-principal  relationship,  but  it may affect the
degree of negligence attributable to Richards Construction.

     Mr.  Richards also asserted that the penalties  proposed  by
MSHA are so high that they will affect his ability to continue in
business.   At  the  close  of the hearing I advised Mr. Richards
that this claim is an affirmative  defense for which he bears the
burden of proof.  (Tr. 551-56).  He provided his personal federal
tax returns for 1993-1998, which showed business losses for those
years.  He also submitted W-2 forms for 1999 and 2000.  I advised
Mr.   Richards  that  I  would  need  more   detailed   financial
information  in  order  to  consider  this issue.  By order dated
April 24, 2001, I set forth the specific information that I would
need.   I  enclosed a copy of my decision  on  remand  in  Unique
Electric, 21  FMSHRC 91 (Jan. 1999).  Mr. Richards did not file a
response  to  my   order  by  the  June  4,  2001,  due  date.[1]
Consequently, I have not reduced the penalties in this case based
on the ability to continue in business criterion.

     B.  Inspection of February 4, 1999

     Citation No. 7903871,  the  only  one  issued on February 4,
1999,  alleges  a violation of 30 C.F.R. � 56.1000,  because  the
"owner, operator, or the person in charge of the Richards Pit did
not give notification  to  the  nearest  Mine  Safety  and Health
Administration  office  of  the  shutdown  of  the Richards Pit."
Inspector  Smith  determined  that  the violation was  not  of  a
significant and substantial nature ("S&S")  and was the result of
Richards  Construction's  moderate negligence.   Section  56.1000
provides, in part, that "[W]hen any mine is closed, the person in
charge shall notify the nearest  [MSHA]  subdistrict office . . .
and indicate whether the closure is temporary or permanent."

     When Inspector Smith traveled to the  pit  on February 4, he
did not see anyone around.  He tried two different  approaches to
the  pit  without  success.   Smith  testified  that  the pit  is
classified as an intermittent operation.  Mr. Richards  testified
that he was out of state on February 4, but that the pit  had not
been  shut  down.   If  a  customer  wanted to purchase sand, the
customer would contact a Richards Construction employee who would
direct  him  to  the pit.  (Tr. 416-18).   If  the  customer  was
purchasing only one  truckload,  he  might  load the sand himself
from the stockpile, otherwise one of the pit employees would load
the customer's trucks.  Because it was winter,  the  crusher  had
not operated since about December 1998.  Id.  Nevertheless, if  a
customer  wanted  to  purchase  a  large  amount  of sand and the
weather  was not too severe, Richards Construction would  operate
its crusher  to  fill  the  order. The sand was primarily used to
sand subdivision roads in inclement weather.

     Inspector Smith issued this  citation  solely because he did
not see anyone at the pit on February 4.  Intermittent operations
do not mine and crush every day.  The inspector testified that he
did believe that an operator of an intermittent  pit  and crusher
would  be  required  to  notify  MSHA  every week whether it  was
planning on being open.  (Tr. 35).  The  standard  is designed to
cover  situations  where  an operation closes permanently  or  is
closing  for  some definite period  of  time,  such  as  November
through March.   In  the  case  of this pit, it remained open all
winter, but it had employees present only when there was a demand
for  its products.  If Richards Construction  had  notified  MSHA
that it  was  closed  at  the  end of December 1998, the standard
would  have required it to notify  MSHA  every  time  a  customer
called for  sand.   I do not read section 56.1000 imposing such a
requirement on intermittent  operations.   Consequently, Citation
No. 7903871 is vacated.

     C.  Guarding Citations

     Citation  No.  7904240  alleges  a  violation   of   section
56.14107(a),  because  no guard was installed on the v-belt drive
unit for the discharge conveyor  under  the  kinetic crusher. The
citation   states  that  the  "v-belt  drive  unit  was   located
approximately  56  inches  from  the  ground  level  and could be
contacted by employees at the site."  Inspector Smith  determined
that  the  violation  was  S&S  and  was  the  result of Richards
Construction's    moderate   negligence.    Section   56.14107(a)
provides, in part,  that "[m]oving machine parts shall be guarded
to protect persons from  contacting  . . . drive, head, tail, and
takeup  pulleys . . . and similar moving  parts  that  can  cause
injury."   The  Secretary  proposes  a  penalty  of $399 for this
alleged violation.

     There  is  no  dispute that the cited V-belt drive  was  not
guarded.  (Ex. P-3, p.1 bottom photo).  Inspector Smith testified
that there was no guarding  on  this  v-belt  drive and estimated
that the pinch point was about 56 inches from the  ground  level.
(Tr.  53, 59).  There was an accumulation of spilled material  at
that location  at  the  time of the inspection.  (Tr. 59-61).  He
determined that Richards  Construction's  negligence was moderate
because it received guarding citations in the  past. (Tr. 54-55).
He  also  determined  that the violation was S&S because  if  the
drive remained unguarded  it  was  reasonably likely that someone
would sustain an injury of a reasonably serious nature.  (Tr. 55,
67-70).

     Mr. Richards testified that the  conveyor  was  installed in
1993  and had been inspected on at least one previous inspection.
(Tr. 426).   No guarding citations have ever been issued for this
v-belt drive.   He  further  stated  that  the  distance from the
ground  to  the  tail  pulley  is about ten feet.  Id.   Richards
testified that the reason Inspector  Smith measured a distance of
56 inches was because he was standing  on  spilled  material that
had accumulated.  (Tr. 431-32).  Richards also testified that the
violation  should  not  have been designated as S&S because  "you
have to contort yourself  to  get  anywhere near it."  (Tr. 434).
Employees would not walk under this  conveyor when it was running
because large rocks fall from the conveyor,  as  evidenced by the
accumulation of spilled material.  Id.  He stated  that  "no  one
with  any  .  . . common sense would get in that area where those
rocks are falling."   (Tr. 434-35).  Richards also testified that
he  instructed his employees  to keep the area under the conveyor
clean and to remove spilled material.   (Tr.  436).  Mr. Richards
was not in Montana at the time of this inspection, so he believes
that he should not be held negligent for the failure of Tanner to
make sure that the area was clean of spilled material.

     There can be no dispute that at the time of  the inspection,
the v-belt drive was not guarded and was a little more  than  4.5
feet  above  the  ground level.  If accumulations in the area had
been cleaned out, the v-belt drive would have been higher off the
ground.  It may well  have  been  more  than  seven feet from the
ground during previous MSHA inspections.  (30 C.F.R.
� 56.14107(b)).  I find that the area under the  v-belt drive was
a  walking  surface.  Employees could walk through the  area  and
Inspector Smith  observed  Mr.  Tanner  walking  under  operating
conveyors on the date of the inspection.  (Tr. 49, 68, 260, 262).

     I  find  that  the Secretary established a violation of  the
safety standard.  I also find that the violation was S&S.  An S&S
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 . . . mine
safety or health hazard."  A violation is properly designated S&S
"if based upon the particular  facts  surrounding that violation,
there exists a reasonable likelihood that  the hazard contributed
to  will result in an injury or illness of a  reasonably  serious
nature."   National  Gypsum  Co., 3 FMSHRC 822, 825 (April 1981).
In  Mathies  Coal  Co.,  6 FMSHRC  1,  3-4  (January  1984),  the
Commission set out a four-part  test  for  analyzing  S&S issues.
Evaluation  of  the  criteria is made assuming "continued  normal
mining operations."  U.S.  Steel  Mining Co., 6 FMSHRC 1573, 1574
(July 1984).  The question of whether  a  particular violation is
S&S  must  be  based  on  the  particular  facts surrounding  the
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

     The Secretary must establish:  (1) the  underlying violation
of the safety standard; (2) a discrete safety  hazard,  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.  The Secretary
is not required to show that it is more probable than not that an
injury will result from the violation.  U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).

     In this instance,  the  exposed  moving parts were about 4.5
feet above the walking surface.  A measure  of  danger  to safety
was  present  that was contributed to by the violation.  Assuming
continued  mining  operations,  it  was  reasonably  likely  that
someone would  come in contact with the moving machine parts that
were about 4.5 feet  above  the  walking  surface.   The  exposed
moving parts were close to the walking surface because the  agent
of  Richards  Construction allowed a significant quantity of rock
to accumulate in  the  area.   The  fact that Richards would have
kept the accumulations cleaned up does  not  negate the fact that
employees  were  exposed  to  moving machine parts.   A  person's
clothing can easily get caught  in  moving machine parts and pull
the individual into the moving parts causing an injury.  Richards
testified that no employee "with common sense" would walk under a
moving conveyor because he could get  hit  by  falling rocks, yet
Inspector   Smith   observed   Tanner   walking  under  operating
conveyors.  I find that the Secretary also  established  that any
injury would be of a reasonably serious nature.

     The   Secretary   established   that   the  mine  operator's
negligence was moderate.  The negligence of Mr.  Tanner, Richards
Construction's  agent, is attributable to Richards  Construction.
A penalty of $200 is appropriate.

     Citation  No.   7904241   alleges  a  violation  of  section
56.14107(a) because the guard on  the  tail pulley for the return
conveyor to the Telesmith plant "did not  extend  a  [sufficient]
distance  to  cover  the  moving  parts of the tail pulley."   It
further states that the tail pulley was about 24 inches above the
ground  and  could  be  contacted  by  employees   at  the  site.
Inspector Smith determined that the violation was S&S and that it
was  the  result  of Richards Construction's moderate negligence.
The  Secretary proposed  a  penalty  of  $399  for  this  alleged
violation.

     Inspector  Smith testified there was a guard present at this
location but it did  not  extend  all  the  way  back  to protect
employees  from  coming into contact with the self-cleaning  tail
pulley.  (Tr. 76;  Ex.  P-3,  p. 2 top photo).  The open area was
about 24 inches above the ground.   (Tr.  77).   Inspector  Smith
determined  that  Richards  Construction was moderately negligent
with respect to this citation.   He determined that the violation
was S&S because if someone were to  trip  and  fall  in  the area
adjacent  to  the  opening  around  the  guard,  he could come in
contact with the pinch points.  (Tr. 78, 89).

     Richards  testified  that  during  1998,  a  different  MSHA
inspector  issued a citation at the same location and  the  guard
that was installed  to  abate the previous citation was the guard
that Inspector Smith considered  to be inadequate.  (Tr. 441-42).
As a consequence, Richards believes  that  he  was not negligent.
(Tr. 445).  Richards also testified that, in order  to  contact a
pinch  point,  an  employee's entire arm would have to go through
the opening.  (Tr. 442).  Given that the opening was very narrow,
he believes that such  an  event  was highly unlikely.  (Tr. 442-
44).

     I find that the Secretary established  a  violation  but did
not  establish that it was S&S.  The opening that was not covered
by the  guard  was  quite small.  Inspector Smith did not measure
the opening, but the  photograph shows a small opening.  Although
the  opening  created a discrete  safety  hazard,  it  is  highly
unlikely that anyone  would trip and fall next to the opening and
then inadvertently have  his  hand enter the opening.  The moving
machine parts were well inside  the  opening.   Although  such an
event  could occur, it was not reasonably likely to happen.   The
gravity is low.

     I also  find  that  Richards Construction was not negligent.
Mr.  Richards testified that  another  MSHA  inspector  issued  a
citation  at  the same tail pulley a year earlier for a violation
of section 56.14107(a).   The guard that Inspector Smith found to
be inadequate was installed  to  abate  the previous citation.  I
credit Mr. Richard's testimony on this issue.   The  pit received
seven guarding citations during the MSHA inspection of  August 6,
1998.   (Ex.  P-6).   This  fact  does  not negate this violation
because equitable estoppel does not apply  to  the  Secretary  in
Mine Act proceedings.  King Knob Coal Co., 3 FMSHRC 1417, 1421-22
(June 1981).  It is within MSHA's authority to determine that the
tail  pulley  was  not  adequately  guarded  on  August 12, 1999.
Nevertheless,  the  fact  that another MSHA inspector  determined
that the guard cited by Inspector  Smith  met the requirements of
the safety standard significantly lowers the  level of negligence
that should be imputed to Richards Construction.  It is unfair to
cite  a  mine operator for a violation of a safety  standard  and
then cite  it  again  for a violation of the same standard at the
same location with a moderate  negligence  finding.  If the first
MSHA  inspector  had  required  that  the violation  be  properly
abated, Richards Construction would not  have received the second
citation.  Consequently, I find that a nominal  penalty of $10 is
appropriate.

     Citation   No.  7904242  alleges  a  violation  of   section
56.14107(a) because  the guard on the fin-type tail pulley of the
discharge conveyor under  the  Pioneer  crusher "did not extend a
[sufficient]  distance to cover the moving  parts"  on  the  tail
pulley.  The citation  also states that the tail pulley was about
30 inches above the ground and could be contacted by employees at
the site.  Inspector Smith  determined that the violation was S&S
and that it was the result of  Richards  Construction's  moderate
negligence.   The  Secretary proposes a penalty of $399 for  this
alleged violation.

     Inspector Smith  testified no guard was provided on the tail
pulley.  (Tr. 93; Ex. P-3,  p. 2 bottom photo).  The lower pulley
was partially guarded but the  top  pulley  was  not.   It was 30
inches  from  the ground.  For the reasons set forth with respect
to the previous  citations,  Inspector  Smith determined that the
violation  was  S&S  and  the  result of Richards  Construction's
moderate negligence. (Tr. 94-95).    An  employee  could trip and
fall in the immediate area and get his hand caught in  the  pinch
point of the self-cleaning tail pulley.  (Tr. 104).

     Mr.  Richards  testified  that  normally  the tail pulley is
about  four  feet  above  the ground but that material  had  been
allowed to accumulate in the  area.   (Tr.  448).  He also stated
that other sides of this tail pulley had been guarded by Richards
Construction  following  a  previous  MSHA inspection.   Richards
believes that it was highly unlikely that anyone would walk close
to the cited area and even more unlikely  that  he would trip and
fall.  (Tr. 448-49).  He believes that if there was  a violation,
it  was  neither  serious  nor  S&S.    The  MSHA  inspector  who
conducted  the  previous  inspection  did  not designate guarding
violations  as S&S.  (Tr. 450; Ex. P-6).  In  addition,  Richards
believes that  there  was  no  negligence  associated  with  this
condition because the guards that were present were installed  to
abate  a  citation  issued  during  the previous MSHA inspection.
(Tr. 452).  He believes that he should not be cited twice for the
same condition and then assessed higher  penalties  for  moderate
negligence.

     I  find that the Secretary established a violation.  I  also
find that  the  violation  was  S&S.   The  opening  that was not
covered  by  the guard was fairly substantial in size and  it  is
reasonably likely that someone could be seriously injured if this
condition were  not  corrected.  The fact that the MSHA inspector
who issued a citation  at  this  same  location  a  year  earlier
considered  the  violation  to  be  non-S&S is not binding on the
Secretary or the Commission.

     For  the  reasons  set forth with respect  to  the  previous
citation, I find that Richards  Construction  was  not negligent.
I credit Richards' testimony that the other guards on  this  tail
pulley were installed to abate another MSHA inspector's citation.
If  the  first  MSHA inspector had required that the violation be
properly abated,  Richards  Construction  would not have received
the  second  citation.   I  assess  a  penalty of  $50  for  this
violation.

     Citation  No.  7904246  alleges  a  violation   of   section
56.14107(a)  because a guard was not installed on the head pulley
and on the v-belt  drive unit on the discharge conveyor under the
El Jay screen.  The  citation  states that the head pulley and v-
belt drive were about 56 inches  above  the  ground  and could be
contacted  by  employees at the site.  Inspector Smith determined
that the violation was S&S and that it was the result of Richards
Construction's moderate  negligence.   The  Secretary  proposes a
penalty of $399 for this alleged violation.

     Inspector  Smith  testified that the unguarded v-belt  drive
was under the decking on  the  El  Jay screen.  (Tr. 133).  There
was no guarding at this head pulley  and v-belt drive.  (Tr. 134;
Ex. P-3, p. 4 bottom photo).  He determined  that  the  unguarded
moving  parts  were  56  inches  above the ground in an area that
could be accessed by employees.  He determined that the violation
was S&S and that Richards Construction's  negligence was moderate
based on the same factors that he considered  with respect to the
other guarding violations. (Tr. 135-35).

     Mr. Richards testified that the cited head pulley and v-belt
drive would normally be ten feet above the walking surface.  (Tr.
459,  461).   Because  his  employees  had  allowed  material  to
accumulate   under   the  pulley  and  drive,  the  distance  was
considerably less.  He  testified  that  material  can accumulate
rather  quickly  in  that area.  (Tr. 460-61).  Richards  further
testified that employees  never walk under the cited drive pulley
because of the falling rock.  (Tr. 462-63).  He believes that the
condition  was  not  S&S.  He  also  contends  that  he  was  not
negligent.  He points  to  the  fact  that  there  has not been a
serious injury at his operation in 30 years.  (Tr. 464).

     The condition cited is similar to the condition  in Citation
No.   7904240.    Because  Richards  Construction  had  permitted
material to accumulate in the area, the moving machine parts were
about 4.5 feet above  the  walking  surface.  Normally the moving
parts were protected by location.  For the same reasons discussed
above  with  respect to Citation No. 7904240,  I  find  that  the
Secretary  established   an   S&S  violation  and  that  Richards
Construction's negligence was moderate.   A  penalty  of  $200 is
appropriate.

     Citation   No.   7904247  alleges  a  violation  of  section
56.14107(a) because a guard  was  not  provided  and installed to
"extend a [sufficient] distance to cover the moving  parts of the
fin-type tail pulley" on the number 3061 conveyor.  The  citation
states  that  the tail pulley was about 33 inches from the ground
and could be contacted by employees at the site.  Inspector Smith
determined that  the violation was S&S and that it was the result
of Richards Construction's  moderate  negligence.   The Secretary
proposes a penalty of $399 for this alleged violation.

     Inspector  Smith  testified that the existing guard  on  the
conveyor did not cover all  of  the moving parts.  (Tr. 141).  He
believed that an additional guard  had  been present but had been
removed.  Small openings were present as  well  as  a  protruding
shaft  for the pulley.  (Tr. 142; Ex. P-3, p. 5 top photo).   For
the reasons  discussed  above,  the inspector determined that the
violation  was  S&S  and  that  the  operator's   negligence  was
moderate.   He testified that the openings were large  enough  to
pose a hazard.  He was concerned that if someone were to trip and
fall while walking  by  the  unguarded  conveyor, he could become
entangled in the moving parts.  (Tr. 160).

     Mr.  Richards testified that the end  of  the  conveyor  was
sitting on  a  block  that  was six feet long, two feet high, and
about  two  feet  deep.   (Tr.  465).    He  stated  that,  as  a
consequence, an employee could not get close to the moving parts.
If an employee were to trip and fall in that  area,  he  believes
that  it  would be highly unlikely that he would become entangled
in the moving  parts.   (Tr.  466-68).  As with some of the other
guarding citations, Richards testified  that he had been issued a
citation  for  this conveyor in 1998 and the  guarding  that  was
present was adequate  to  abate  the  previous  citation.  Id.  I
credit Richards' testimony.

     The condition cited in this citation is quite similar to the
violation in Citation No. 7904241.  For the same reasons, I  find
that the Secretary established a violation; the violation was not
S&S;  the  gravity  was  low;  and  Richards Construction was not
negligent.  A penalty of $10 is assessed.

     Citation  No.  7904248  alleges  a  violation   of   section
56.14107(a) because a guard was not installed on the back side of
the  drum-type  tail  pulley  on  the  number  157 conveyor.  The
citation  states that the tail pulley was about 33  inches  above
the ground  and  could  be  contacted  by  employees at the site.
Inspector Smith determined that the violation was S&S and that it
was  the  result of Richards Construction's moderate  negligence.
The Secretary  proposes  a  penalty  of  $399  for  this  alleged
violation.

     Inspector  Smith  testified  that  a  number of moving parts
presented  a  hazard  at this location including  a  scraper  bar
across the top of the belt  and  the tail pulley.  (Tr. 163).  No
guard was present on the front and  top of the tail pulley.  (Tr.
165; Ex. P-3, p. 5 bottom photo).  There was a guard on the right
side,  but  the  guard  on the left side  had  been  pulled  back
exposing the moving parts.   Id.  As with the previous citations,
Inspector Smith believes that  someone  could become entangled in
the moving parts if he were in the area.

     Mr. Richards testified that a guard  had been present before
he left Montana.  (Tr. 470).  He stated that  he  became  furious
when  he discovered that the guard had been removed.  He believes
that the condition should be characterized as non-S&S and he also
believes that his negligence was very low.  (Tr. 470-71).

     I  find  that  the  Secretary  established an S&S violation.
This violation created a very serious safety hazard.  I also find
that Richards Construction's negligence  was moderate.  A penalty
of  $250  is  appropriate because of the serious  nature  of  the
violation.

     Citation  No.   7904249   alleges  a  violation  of  section
56.14107(a) because a guard was  not  installed  on  the fin-type
tail  pulley on the conveyor under the pro-screen.  The  citation
states  that the tail pulley was about 26 inches above the ground
and could be contacted by employees at the site.  Inspector Smith
determined  that the violation was S&S and that it was the result
of Richards Construction's  moderate  negligence.   The Secretary
proposes a penalty of $399 for this alleged violation.

     Inspector Smith testified that there was no guard present on
the back side of the self-cleaning tail pulley.  (Tr.  184).  The
fins  are visible in the photograph.  (Ex. P-3, p. 6 top  photo).
The inspector  believes  that  an  employee  could  be  seriously
injured  if  he  fell  in  the  area and came in contact with the
unguarded  moving  parts.  (Tr. 186).   For  the  reasons  stated
above, he determined  that  the  violation  was  S&S  and was the
result  of  Richards  Construction's  moderate negligence.   (Tr.
187).  There was spilled material in the area.  (Tr. 196).

     Mr. Richards stated that an employee  would  "have to crawl"
to get close to the tail pulley because the Fab Tec  screen is on
top  of  the  conveyor.  (Tr. 472).  He also testified that  this
tail pulley had been fully guarded but his employees removed part
of the guard.   (Tr.  473).   Richards  stated  that  he is angry
because  his  employees "know better, that's what makes me  mad."
(Tr. 473).  Because  the  tail  pulley  was  immediately  below a
screen, Richards believes that it was highly unlikely that anyone
would be injured by the condition.  He stated that an injury  was
especially  unlikely  because  he has two employees not hundreds.
(Tr. 474).  He also believes that  the  Secretary  failed to show
that his negligence was moderate.  (Tr. 479).

     I find that the Secretary established an S&S violation.  The
fins  on the self-cleaning tail pulley were exposed presenting  a
serious safety hazard.  Mr. Richards believes that the hazard was
minimal because the exposed moving parts were immediately below a
screen.  While this may have lessened the likelihood of an injury
to some  extent, I find that an injury was reasonably likely.  If
someone were  to  stumble  and  fall  in  the  area, his hands or
clothing could become entangled in the moving parts.  I also find
that Richards Construction's negligence was moderate  because its
employees  removed the guards that had previously been installed.
A penalty of $200 is appropriate.

     Citation   No.  79804251  alleges  a  violation  of  section
56.14107(a) because  a  guard  was  not installed on the fin-type
tail pulley on the Fab Tec feed conveyor at the main feed hopper.
The  citation states that the tail pulley  was  about  12  inches
above the ground and could be contacted by employees at the site.
Inspector Smith determined that the violation was S&S and that it
was the  result  of  Richards Construction's moderate negligence.
The  Secretary proposes  a  penalty  of  $399  for  this  alleged
violation.

     Inspector Smith stated that this citation was issued because
there  was  no guard on the self-cleaning tail pulley on the feed
conveyor under  the main feed hopper for the plant.  (Tr. 211-12;
Ex. P-3, p. 7 top  photo).  He stated that an employee could walk
along the side of this  conveyor.   (Tr.  214).   Smith testified
that  he  designated  the condition as S&S and the negligence  as
moderate for the same reasons discussed above.  (Tr. 214-15).

     Mr. Richards testified  that no employee would walk near the
conveyor  while  the  plant  was operating  because  large  rocks
constantly fall off the sides  of  the hopper from the grizzly on
top  of  the  hopper.   (Tr.  215-16,  482-4).   Inspector  Smith
testified  that he would not walk through  that  area  while  the
plant was operating.   Richards  believes that the conditions did
not present a violation, much less an S&S violation.

     Citation  No.  7904252  alleges   a   violation  of  section
56.14107(a) because a guard was not installed  on the head pulley
and  on tail pulleys for the small discharge conveyer  under  the
same feed hopper at the crushing plant.  The citation states that
the pulleys  were  about  40 inches above the ground and could be
contacted by employees at the  site.   Inspector Smith determined
that the violation was S&S and that it was the result of Richards
Construction's  moderate negligence.  The  Secretary  proposes  a
penalty of $399 for this alleged violation.

     The condition  cited  in  this citation is immediately above
the condition cited in the previous citation.  (Tr. 223; Ex. P-3,
p. 7 bottom photo).  The small discharge  conveyor  was under the
main feed hopper for the plant.  The inspector's testimony is the
same for both citations.  (Tr. 224-225).  Mr. Richards' testimony
was also the same.

     These two citations present a close issue.  Were  the moving
machine parts within seven feet of a walking or working  surface?
The  cited  areas were at the back of the main feed hopper.   The
land falls away quickly at the back as illustrated in Ex. P-3, p.
7.  I credit  the testimony of Mr. Richards that employees do not
walk behind the  feed  hopper while it is operating because large
rocks fall from the grizzly.   Inspector  Smith testified that he
would not walk in this area.  Nevertheless,  I  find  that  it is
possible that an employee might walk near those moving parts that
are  pictured  on  the  left side of the photographs.  There is a
wide  flat  area there that  can  be  classified  as  a  "walking
surface."  The  rocks  in  the  area  create  a  tripping hazard.
Consequently,  I  find  that  the  Secretary  established   these
violations.  I find that the violations are not S&S because it is
not  reasonably likely that anyone would be exposed to the hazard
assuming  continued  operations.   It  is  not likely that anyone
would  walk  in  the  area  when  the hopper was operating.   The
gravity  is  low.   I  also  find  that  Richards  Construction's
negligence was low.  Reasonable people could  differ  on  whether
guards   were  required  at  these  locations  under  the  safety
standard.  A penalty of $25 for each citation is appropriate.

     D.  Unwarrantable Citation and Orders

     Citation   No.   7904235  alleges  a  violation  of  section
56.14130(g) because Mr.  Tanner  was operating a front-end loader
on  an  elevated ramp at the pit without  wearing  a  seat  belt.
Inspector Smith determined that the violation was S&S and that it
was the result  of  Richards  Construction's moderate negligence.
After reviewing the facts at the  safety  and  health conference,
MSHA Inspector Wasson determined that citation should be modified
to  a section 104(d)(1) citation with high negligence.   He  made
this  change  because the individual operating the loader was the
"mine superintendent."   The  standard  provides,  in  part, that
"[s]eat  belts  shall  be  worn by the equipment operator."   The
Secretary  proposes  a  penalty   of   $1,800  for  this  alleged
violation.

     Inspector Smith testified that when  he first arrived at the
pit, he observed Mr. Tanner operating the loader  on  the ramp to
the hopper for the crusher.  When Smith flagged him down,  Tanner
was not wearing the safety belt that was installed on the loader.
(Tr.  240).   When  the  inspector  asked  Tanner  why he was not
wearing  it,  Tanner  replied that he was "just not wearing  it."
Id.  Smith testified that it took Tanner quite a while to pull it
out from under the seat cushion.  Inspector Smith determined that
the violation was S&S because  Tanner was using the loader on the
elevated ramp and the ramp was not  equipped  with a berm.  Smith
was  concerned about a rollover accident on the  ramp  which  was
about  six  feet  off the ground at its highest point.  (Tr. 242;
Ex. P-3, p.1 top photo).   He  said that it was reasonably likely
that a loader operator would roll  his equipment over on the ramp
and sustain a serious injury.  (Tr. 252-53).

     Mr. Richards testified that the  loader  was  equipped  with
seatbelts.   He stated that he instructed all equipment operators
to wear seatbelts  at  all times.  (Tr. 491).  Richards testified
that Tanner followed this rule when Richards was at the property.
He  admitted  that  Richards   Construction   received   seatbelt
citations  in  the  past.   Richards  does  not  believe that the
citation  should  have been designated as S&S or that  a  serious
injury was reasonably likely.  (Tr. 494).  He also testified that
the previous citation  was  designated as non-S&S.  Richards also
testified that the ramp was only  about 50 to 55 inches high (4.5
feet).  (Tr. 510-11).  He believes  that  the  inspector included
some horizontal distance when he attempted to measure the height.
Richards  also maintains that his negligence was  not  high.   He
testified that  Tanner wore his seatbelt when Richards was at the
pit.  (Tr. 495).   Richards  stated  that he instructed Tanner to
wear a seat belt and that his failure  to  do  so  should  not be
attributed to Richards Construction.

     I  find  that the Secretary established a violation and that
the violation was  S&S.   Based  on  the photograph, I credit Mr.
Richards' testimony that the ramp was  closer  to  4.5  feet high
than 6 feet high.  Nevertheless, the violation created a  serious
safety hazard.  It is reasonably likely that someone operating  a
loader  without  wearing a seat belt will be injured and that the
injury will be reasonably  serious.   See Lakeview Rock Products,
17  FMSHRC  83,  87 (Jan. 1995)(ALJ).  I reject  the  inspector's
testimony that a fatal  injury  was  reasonably  likely, but that
does not negate my S&S finding.

     The  key  issue  is whether the violation was caused  by  an
unwarrantable failure of Richards Construction to comply with the
safety standard.  The Commission  determined  that  unwarrantable
failure  is  aggravated  conduct constituting more that  ordinary
negligence.  Emery Mining  Corp.,  9  FMSHRC 1997, 2004 (December
1987).  Unwarrantable failure is characterized by such conduct as
"reckless  disregard," "intentional misconduct,"  "indifference,"
or  a  "serious  lack  of  reasonable  care."   Id.  at  2003-04;
Rochester  & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February
1991).   Whether  conduct  is  "aggravated"  in  the  context  of
unwarrantable  failure  is determined by looking at all the facts
and circumstances of each  case to see if any aggravating factors
exist, such as:   the extent  of  the  violative  condition;  the
length  of time it has existed; the operator's efforts in abating
the violative  condition; whether the operator has been placed on
notice that greater  efforts  are  necessary  for compliance; the
operator's  knowledge  of  the  existence  of the violation;  and
whether  the  violation  is  obvious or poses a  high  degree  of
danger.  See Consolidation Coal  Co.,  23  FMSHRC  588, 593 (June
2001).   These factors need to "be viewed in the context  of  the
factual circumstances  of a particular case, and some factors may
be  irrelevant to a particular  factual  scenario."   Id.   These
factors  must  be examined to determine if "an actor's conduct is
aggravated, or whether the level of the actor's negligence should
be mitigated."  Id.

     Because Mr.  Richards  appointed  Mr. Tanner as his agent in
his absence, the negligence of Tanner is attributable to Richards
Construction.  During this inspection, Mr. Tanner stood in
Mr. Richards' shoes, so to speak.  Although  this result may seem
harsh,  it  has  the effect of requiring mine operators  to  take
every reasonable step  to ensure that it appoints agents that are
responsible and competent  to  manage  the  operation  in  a safe
manner.  In the case of mine operators that are corporations, the
operator always depends on the acts of its agents.  In this  case
the  operator  is  a  sole  proprietor,  Mr.  Richards.  When Mr.
Richards  is  present,  he directly manages the pit  without  any
agents.  On those occasions  when he does rely on agent, Richards
Construction is liable for the agent's negligent acts.

     I  find  that  this  violation   was   the   caused  by  the
unwarrantable failure of the operator to comply with  the  safety
standard.   Richards  Construction  received  a  citation  for  a
violation  of this safety standard on August 6, 1998.  (Ex. P-6).
Consequently,  Mr.  Richards  was  aware  that  he needed to take
further steps to enforce this safety standard at  the  pit.   The
operator's  agent  was well aware of the violation because he was
the individual operating  the  loader.   It appears that this was
not  the  first  time  that  Tanner operated the  loader  without
wearing a seat belt because the  belt  was under the seat cushion
between  the  back  and  the  cushion.   The violation  was  also
obvious.  Although I recognize that Mr. Richards  was  not at the
pit  to  enforce his safety rules, his agent violated the  safety
standard and  was  aware that he was doing so.  A penalty of $500
is appropriate for this violation.

     Order No. 7904236  alleges  a  violation of section 56.15002
because Mr. Tanner was not wearing a  protective  hat at the pit.
The  inspector  observed him walking through the crushing  plant.
Inspector Smith determined that the violation was S&S and that it
was the result of  Richards  Construction's  moderate negligence.
After  reviewing  the facts at the safety and health  conference,
MSHA  Inspector Wasson   modified  the  original  citation  to  a
section  104(d)(1)  order  with  high  negligence.   The standard
provides,  in part, that "[a]ll persons shall wear suitable  hard
hats when in  or around a mine or plant where falling objects may
create a hazard."    The  Secretary  proposes a penalty of $1,400
for this alleged violation.

     Inspector Smith testified that when  Tanner told him that he
was  going  to shut the plant down, he walked  under  two  moving
conveyors at the pit instead of walking on the roads to reach the
other employee.  (Tr. 260-61).  Tanner was not wearing a hard hat
at the time.   Inspector  Smith  does  not know what was on these
particular conveyors at the time Tanner  walked under them.  (Tr.
265).  He stated that if it was sand, a serious  hazard would not
be presented.  When Tanner left the pit, he had his  hard  hat in
his truck.  (Tr. 273).

     Mr. Richards testified that the conveyors that Tanner walked
under  carried  three-eighths-  inch sand.  (Tr. 498).  He stated
that this material could not have  injured  Tanner even though he
was not wearing his hard hat.  Mr. Richards also  testified  that
he  cannot  understand  why Tanner walked through the plant given
its configuration and the  location  of the other employee.  (Tr.
499; Ex. R-5).  He stated that Tanner  would have gone out of way
to do so and such action does not make any  sense.   Mr. Richards
stated that there was no likelihood of an injury  in  this  case.
(Tr. 500-01).

     I  find  that  the  Secretary  established  a violation.  As
discussed  above  with  respect  to  the guarding citations,  the
Commission interprets safety standards  taking into consideration
the unpredictable nature of human conduct.   There are many areas
at the crushing plant where falling objects may  create a hazard.
Although the conveyors that Smith saw Tanner walk  under may have
carried  only  sand,  Tanner's  actions indicate that he  is  not
hesitant to walk in and around the  plant  without  a  hard  hat.
Given  his  behavior,  the  Secretary established a violation.  I
find, however, that the Secretary  did  not  establish  that  the
violation  was  S&S.  Tanner walked through the plant in a fit of
anger.  I credit  the  testimony  of Richards that Tanner did not
walk  under  conveyors  that  carry  large   rocks.    There   is
insufficient  evidence to establish that it was reasonably likely
that the hazard contributed to by the violation will result in an
injury of a reasonably  serious  nature.   It  is  impossible  to
ascertain  whether  Tanner's actions were unusual or commonplace.
Although there is sufficient evidence to establish a violation, I
cannot determine that  the  violation  was  S&S.  The gravity was
moderate.

     I  find that the Secretary established that  this  violation
was caused by the unwarrantable failure of the operator to comply
with the  safety  standard.  The violation was obvious and it was
committed by the agent  that  Richards  Construction  had  put in
charge of the pit.  This violation demonstrated a serious lack of
reasonable care on the part of Mr. Tanner.  A penalty of $300  is
appropriate.

     Order  No.  7904237  alleges a violation of section 56.15003
because Mr. Tanner was not  wearing  protective  footwear  at the
pit.   The  inspector  observed  him walking through the crushing
plant.  Inspector Smith determined that the violation was S&S and
that  it  was  the  result  of Richards  Construction's  moderate
negligence.  After reviewing  the  facts at the safety and health
conference, MSHA Inspector Wasson  modified the original citation
to a section 104(d)(1) order with high  negligence.  The standard
provides,  in  part,  that  "[a]ll  persons shall  wear  suitable
protective footwear when in or around  an area of a mine or plant
where a hazard exists which could cause  an injury to feet."  The
Secretary  proposes  a  penalty  of  $2,000  for   this   alleged
violation.

     Inspector  Smith  testified  that  Tanner was wearing tennis
shoes at the pit.  (Tr. 291).  Smith was  concerned  that  if  an
object  were  to fall and hit his foot, he could suffer a serious
injury.  The inspector  was  primarily  concerned  about  falling
rocks.   (Tr.  292).   John Richards testified that it was highly
unlikely that a large rock  would  fall  on  Tanner's foot.  (Tr.
500).   He  also  testified  that Richards Construction  was  not
negligent.  (Tr. 501).

     I find that the Secretary  established  a violation.  Tanner
was  observed  walking  through the plant wearing  tennis  shoes.
There were hazards present  that  could have caused injury to his
feet.  I also find that the violation  is  S&S.  In analyzing the
previous  violation,  I  took into consideration  the  fact  that
Tanner might have inadvertently  left  his hard hat in the loader
when he walked through the crushing plant.   In  this  instance I
cannot reach such a conclusion.  Had Inspector Smith not shown up
at  the  pit,  it is foreseeable that Tanner would have worn  his
tennis shoes all day.  Numerous hazards exist at a crushing plant
that  can  cause serious  injury  to  an  employee's  feet.   The
evidence establishes  that  it  was  reasonably  likely  that the
hazard contributed to by the violation would have resulted  in an
injury  of  a  reasonably  serious  nature,  assuming  continuing
operations at the pit.

     I  also  find  that  the  Secretary  established  that  this
violation was caused by the unwarrantable failure of the operator
to  comply  with  the  safety  standard.  The violation was quite
obvious and it was committed by  the agent chosen by Mr. Richards
to run the pit in his absence.  This  violation demonstrated more
than a serious lack of reasonable care  on the part of Tanner.  A
penalty of $500 is appropriate.

     Order No. 7904238 alleges a violation of section 56.14132(a)
because the backup alarm on the loader Mr.  Tanner  was operating
was  not working.  Inspector Smith determined that the  violation
was S&S  and  that  it  was the result of Richards Construction's
moderate negligence.  After reviewing the facts at the safety and
health conference, MSHA Inspector  Wasson   modified the original
citation to a section 104(d)(1) order with high  negligence.  The
standard  provides,  in  part,  that  "audible  warning   devices
provided  on  self-propelled mobile equipment shall be maintained
in functional condition."   The  Secretary  proposes a penalty of
$2,500 for this alleged violation.

     The inspector testified that he observed  the loader back up
and upon further inspection discovered that there  was  a  broken
wire  on  the  alarm.   (Tr.  293).   Smith also observed a truck
driver standing "in the area where the  truck  was  backing  up."
(Tr.  294).   He  believes  that  it  was  reasonably likely that
someone would be killed or injured as a result of this violation.

     Mr. Richards testified that the broken  wire was immediately
repaired. (Tr. 503).  He stated that although  the  truck drivers
do get out of their vehicles to stretch their legs, they  do  not
get  in  the way of the loader.  He further testified that when a
person regularly works around back- up alarms, he no longer hears
them.  He  believes  that  backup  alarms  do  little  to prevent
accidents.   (Tr.  504).   He  stated  that  an  accident was not
reasonably  likely.  Richards does not know when the  wire  broke
and stated that  it could have occurred that morning.  The backup
alarm functioned properly in the past.

     I find that the  Secretary  established  an  S&S  violation.
There  is  no  dispute  that  the back- up alarm was not working.
Although it is possible for people  to  get  used to the sound of
backup  alarms,  there is little dispute that they  help  prevent
accidents.  Hearing a backup alarm as back- ground noise is quite
different from hearing  one right behind you.  Assuming continued
mining operations, it was  reasonably  likely  that the violation
would contribute to an injury of a reasonably serious nature.

     Whether  this  violation  was  the result of the  operator's
unwarrantable failure is a closer question.   I  find  that  this
violation  does  not  meet  the  unwarrantable  failure  criteria
established  by  the Commission.  The record does not reveal  how
long the condition  existed.   It  is  also  not  clear  that the
operator's  agent  knew  about the violation, even though he  was
operating  the  loader.  He  may  simply  not  have  noticed,  an
indication  of ordinary  negligence.   The  record  reveals  that
Richards Construction  was  cited for this safety standard in the
past.  (Ex. P-6).  I find that  the  Secretary  did not establish
that  Richards  Construction  was  engaged in aggravated  conduct
constituting more than ordinary negligence.  A penalty of $200 is
appropriate.

     Order No. 7904239 alleges a violation  of section 56.9300(a)
because  a  berm  was  not  installed on the outer  edge  of  the
elevated ramp at the hopper.  Inspector Smith determined that the
violation  was  S&S  and  that it  was  the  result  of  Richards
Construction's moderate negligence.  After reviewing the facts at
the safety and health conference,  MSHA Inspector Wasson modified
the  original  citation to a section 104(d)(1)  order  with  high
negligence.  The  standard  provides,  in  part, that "[b]erms or
guardrails  shall  be provided and maintained  on  the  banks  of
roadways where a drop-off  exists of sufficient grade or depth to
cause a vehicle to overturn  or  endanger  persons in equipment."
The  Secretary  proposes  a  penalty of $3,000 for  this  alleged
violation.

     Smith testified that there  was no berm present on the right
side of the ramp to the main feed  hopper  for  the  plant.  (Tr.
295;  Ex.  P-3, p. 1 top photo).  He measured the height  of  the
ramp to be about 72 inches at the highest point.  (Tr. 242, 541).
He testified  that  it  was  reasonably  likely  that  the loader
operator  would  run the loader off the ramp because no berm  was
present and would  seriously  injure himself, especially since he
was not wearing a seat belt.  (Tr. 297).

     Mr. Richards testified that  Smith's measurement of the ramp
was inaccurate.  (Tr. 507-11; Ex. R-6).   He  believes  that  the
ramp  was  about  4 to 4.5 feet above the surrounding land at its
highest point.  Id.   Richards  also  testified  that the ramp is
about  55  feet  wide; the loader is 12 feet wide; and  the  feed
hopper is 14 feet  wide.  (Tr. 512-13).  In addition, the ramp is
about 25 feet long and  the  loader  is  about 35 feet long.  Id.
Richards  testified  that given these dimensions,  it  is  highly
unlikely that the loader  operator  would  go off the edge of the
ramp.  First, the ramp is more than four times  as  wide  as  the
loader  so  it  is not likely that the operator would be near the
edge.  Second, when the loader is up on the ramp dumping material
into the hopper,  its  rear  wheels  are  not on the ramp.  Given
these facts, Mr. Richards believes that an  accident  was  highly
unlikely.

     Mr. Richards also testified that MSHA inspected this ramp in
the previous August and issued a citation because the berm on the
left  side  of the ramp was not high enough.  (Tr. 514; Ex. P-6).
Richards states  he  was  not  negligent  with  respect  to  this
citation because an MSHA inspector previously inspected this ramp
and  did not believe that the area cited in this case required  a
berm.   He  testified  that  the  ramp  had  not  changed  in the
intervening year.  Id.

     I  find  that  the  Secretary established a violation.   The
Secretary established that  the drop-off on the right side of the
ramp was of sufficient grade  or  depth  to  cause  a  vehicle to
overturn or endanger persons in equipment.  As stated above,  the
fact  that  another  inspector  did not write a citation for this
condition  does  not negate the violation.   In  general,  it  is
reasonably likely that a drop-off on the side of a ramp to a feed
hopper would contribute  to  an  injury  of  a reasonably serious
nature.  Given the facts that Mr. Richards presented, I find that
the Secretary did not establish an S&S violation.   I  credit the
dimensions that Mr. Richards introduced at the hearing.  The ramp
was  very wide relative to the size of the loader.  The ramp  was
quite short relative to the length of the loader.  The hopper was
near the  center  of  the  ramp.   The Secretary did not meet the
third  element  of the Commission's Mathies  test.   It  was  not
reasonably likely  that the loader operator will accidentally run
off the edge of the ramp.  Although such an event is possible, it
is not reasonably likely.  The gravity is moderate.

     I also find that  Richards  Construction  did  not engage in
aggravated  conduct  constituting  more than ordinary negligence.
Although the condition had existed for  a long period of time, an
MSHA inspector observed the condition the previous August and did
not issue a citation.  The previous inspector  issued  a  non-S&S
citation  because  the berm on the opposite side of the ramp  was
not high enough.  (Ex.  P-6).   Richards Construction was not put
on notice that greater efforts are  necessary for compliance.  If
anything, the previous MSHA inspector  lulled  Mr.  Richards into
believing that a berm was not required on the right side  of  the
ramp.   I  delete the unwarrantable failure designation from this
order and hold  that  the operator's negligence was quite low.  A
penalty of $50 is appropriate.

     Order No. 7904245  alleges  a  violation of section 56.12005
because an unbridged electrical cord extended across a roadway at
the pit.  The cord provided power to  a  radio.   Inspector Smith
determined  that the violation was not S&S and that  it  was  the
result of Richards  Construction's  moderate  negligence.   After
reviewing  the  facts  at  the safety and health conference, MSHA
Inspector Wasson modified the  original  citation  to  a  section
104(d)(1) order with high negligence.  The standard provides,  in
part,   that   "[m]obile  equipment  shall  not  run  over  power
conductors . . .  unless  the  conductors are properly bridged or
protected."   The Secretary proposes  a  penalty of $900 for this
alleged violation.

     Inspector Smith testified that he observed  a  pickup  truck
drive  across  the cited power cord.  (Tr. 297; Ex. P-3. P. 4 top
photo).  Mr. Tanner was in the truck that ran over the cord as he
left the pit.  Smith  testified  that driving over the power cord
could damage the insulation and create a safety hazard.

     Mr. Richards testified that the  radio and the cord were the
personal property of the crusher operator.   (Tr.  515).  He took
the  radio  home  with  him  every night and threw the cord  back
across  the road.  Tanner drove  over  it  in  anger  soon  after
Inspector  Smith  arrived at the mine.  Apparently, Tanner had an
argument with another MSHA inspector on a previous occasion.  Id.
Richards testified  that he does not want the crusher operator to
listen to the radio because  he  wants him to be able to hear the
crusher.   Since  this is not his equipment,  Richards  does  not
believe that he should be held responsible.

     I find that the  Secretary established a violation.  I find,
however,  that  the violation  does  not  fit  the  criteria  for
unwarrantable failure.  The violation was not serious; it had not
existed for a long  period of time; and there was no showing that
the operator had been  put  on  notice  that greater efforts were
necessary to comply with this standard.   The  violation  is  not
very  obvious because there was no showing that vehicles normally
traveled  through this area while the cord was present.  There is
no showing  that  the  operator  engaged  in  aggravated  conduct
constituting  more  than  ordinary negligence other than the fact
that Tanner drove over it when  leaving  the pit.  The negligence
of Richards Construction was moderate.  I  find that a penalty of
$50 is appropriate.

     Order No. 7904256 alleges a violation of section 56.18002(a)
because a competent person was not examining  each  working place
at  least  once  each  shift for hazardous conditions.  Inspector
Smith determined that the  violation  was S&S and that it was the
result  of  Richards Construction's moderate  negligence.   After
reviewing the  facts  at  the  safety and health conference, MSHA
Inspector  Wasson modified the original  citation  to  a  section
104(d)(1) order  with high negligence.  The standard provides, in
part, that "[a] competent person . . . shall examine each working
place at least once each shift for conditions which may adversely
affect safety or health."   The  Secretary  proposes a penalty of
$2,500 for this alleged violation.

     The inspector testified that he issued this citation because
he  issued  a  large  number  of  citations  for  obvious  safety
violations.   (Tr.  300).   He designated this violation  as  S&S
"because of the large number of [S&S] violations" he had written.
(Tr. 301).  He believed that serious injuries would likely result
from the operator's failure to do on-shift examinations.  He felt
that at the time of the inspection,  the  pit  was  in  very poor
condition "safety wise."  Id.

     Mr.  Richards testified that he thought, based on his  prior
experience  with  Mr. Tanner, that the pit would be operated in a
competent manner when  he  was  in Houston.  (Tr. 519).  He has a
difficult time understanding why  Tanner  let  him down.  He does
not believe that this citation was S&S because he makes sure that
the pit is safe when he is there.

     I find that the Secretary established an S&S violation.  The
Commission identified three requirements of section  56.18002  as
follows:   (1)  . . . workplace examinations are mandated for the
purpose of identifying  workplace  safety  or health hazards; (2)
the examinations must be made by a competent  person;  and  (3) a
record  of  the  examinations must be kept by the operator."  FMC
Wyoming  Corp., 11  FMSHRC  1622,  1628  (September  1988).   The
record-keeping  requirement is set forth in subsection (b) of the
standard.  The Secretary  defines a competent person as "a person
having the abilities and experience  that  fully  qualify  him to
perform  the  duty  to  which he is assigned."  30 C.F.R. � 56.2.
Mr.  Richards did not present  any  evidence  that  the  required
examinations were being performed or recorded.  He testified that
his employees  quickly repair any conditions that create a safety
hazard, at least  when  he  is  at the pit.  (Tr. 518).  Although
that is an excellent practice, if  followed,  it  does not comply
with  the safety standard.  Given the large number of  violations
discovered  during this inspection, it was reasonably likely that
the violation  would  contribute  to  an  injury  of a reasonably
serious nature, assuming continued mining operations.  See Nelson
Bros. Quarries, Inc., 21 FMSHRC 1100, 1110 (Oct. 1999) (ALJ); but
cf.  Dumbarton  Quarry  Associates,  21 FMSHRC 1132, 1136   (Oct.
1999) (ALJ).

     I also hold that the violation was created by the operator's
aggravated  conduct constituting more than  ordinary  negligence.
Tanner  was  the   agent   of  Richards  Construction.   Richards
testified that another inspector  had  discussed the need for on-
shift examinations with him during a previous  inspection.   (Tr.
518-19).  Consequently, he was put on notice that greater efforts
were  necessary.   Smith  asked  Lance Richards about examination
records, but the inspector was not  shown  any such records.  The
violation  was  extensive  because  no  records were  kept.   Mr.
Richards  knew  of  the  specific  requirements  of  this  safety
standard.   I  find  that the operator  unwarrantably  failed  to
comply with the standard.  A penalty of $500 is appropriate.

     E.  Other Citations

     Citation No. 7904243  alleges a violation of section 56.4101
because signs were not posted  at  the portable fuel storage tank
at  the  crushing  plant  prohibiting smoking  and  open  flames.
Inspector Smith determined  that  the  violation  was not S&S and
that  it  was  the  result  of  Richards  Construction's moderate
negligence.  Section 56.4101 provides, in part,  that  "[r]eadily
visible signs prohibiting smoking and open flames shall be posted
where a fire or explosion hazard exists."  The Secretary proposes
a penalty of $224 for this alleged violation.

     Inspector   Smith   testified   that  there  were  no  signs
prohibiting open flames or smoking near  the  fuel  storage tank.
(Tr. 120; Ex. P-3, p. 3).  The tank contained diesel  fuel, which
could catch on fire or explode if someone smoked or lit  a  match
in  the  area.   Mr.  Richards  testified  that  there  was a "no
smoking"  sign  on  the  trailer  about  50  feet  from the cited
portable fuel storage tank.  (Tr. 453-54).  He further  testified
that  none  of  his  employees  smoke.  He stated that a fire  or
explosion was highly unlikely.

     The safety standard requires  that  the warning sign must be
posted  "where  a  fire  or explosion hazard exists."   The  only
warning sign was 50 feet away  on  a  trailer.  The portable fuel
storage tank can be moved at any time and  it was not at the same
location  on  the  date  of the hearing.  Id.  I  find  that  the
Secretary established a violation.   The  violation  was not very
serious.   The  fact  that  no employee smokes is not controlling
since a truck driver or other  person  could  smoke  in  the area
without  realizing  the  hazard.   The  operator's negligence was
moderate.  A penalty of $50 is appropriate.

     Citation  No.  7904244  alleges  a  violation   of   section
56.4200(a)(1)  because firefighting equipment was not present  at
the portable fuel  storage tank at the crushing plant.  Inspector
Smith determined that  the  violation was not S&S and that it was
the  result  of  Richards  Construction's   moderate  negligence.
Section 56.4200(a)(1) provides that each mine  shall have "onsite
firefighting equipment for fighting fires in their early stages."
The  Secretary  proposes  a  penalty  of  $224  for this  alleged
violation.

     The inspector testified that this citation involves the same
fuel  storage  tank.   He  stated  that  he  could  not find  any
firefighting  equipment  in the vicinity of the fuel tank.   (Tr.
122).  Richards testified  that  he had fire extinguishers in his
trailer and a water hose was about  24  feet  from the fuel tank.
(Tr. 455).  In addition, he testified that the  best way to fight
a fire is to throw dirt on the fire.  A shovel was  located  near
the fuel tank and there was plenty of dirt available.

     I  find  that  the  Secretary did not establish a violation.
The safety standard provides  that  the  mine  operator must have
"onsite  firefighting  equipment," but it does not  require  that
this equipment be located at fuel storage tanks.  Inspector Smith
did not know what firefighting  equipment the operator had at the
pit.  (Tr. 122).  This citation is vacated.

     Citation No. 7904250 alleges a violation of section 56.12004
because  the outer jacket on the orange  extension  cord  in  use
behind the  electrical  trailer was damaged, but bare copper wire
was not exposed.  The safety  standard  provides,  in  part, that
electrical  conductors  "exposed  to  mechanical damage shall  be
protected."  Inspector Smith determined  that  the  violation was
not  S&S  and  that  it was the result of Richards Construction's
moderate negligence.   The  Secretary  proposes a penalty of $224
for this alleged violation.

     Smith testified that he saw an extension  cord  that  had  a
broken  jacket in at least one location.  (Tr. 198; Ex. P-3, p. 6
bottom photo).   The  cord had not been spliced or repaired.  The
cord  was  plugged into an  outlet.   (Tr.  202).   Mr.  Richards
testified that  the  cited  cord  was not one of his cords.  (Tr.
479).   The  cord cited by the inspector  looks  very  cheap  and
unreliable.  Richards  believes  that  one  of his employees must
have brought it for his radio.  He believes that  this  cord  was
not  being  used  for  anything  and was not energized.  Richards
stated that if he knew that the cord  was  at  the  pit, he would
have  thrown  it away.  (Tr. 480).  Richards testified  that  his
negligence should be low.

     I find that  the  Secretary  established  a  violation.  The
violation  was  not  serious  and  the operator's negligence  was
moderate to low.  It created a slight  risk of an electric shock.
A penalty of $30 is appropriate.

     Citation No. 7904253 alleges a violation of section 56.18013
because a communication system was not provided  at  the crushing
plant  for  employees  to use in the event of an emergency.   The
safety standard provides, in part, that a "suitable communication
system shall be provided  at the mine to obtain assistance in the
event  of an emergency."  Inspector  Smith  determined  that  the
violation  was  S&S  and  that  it  was  the  result  of Richards
Construction's  moderate  negligence.   The Secretary proposes  a
penalty of $655 for this alleged violation.

     Inspector Smith testified that Lance  Richards told him that
he  had a cellular phone but that there was no  provision  for  a
phone   to  be  present  at  all  times.   (Tr.  230-31).   Smith
determined that the violation was S&S because there were a number
of serious  hazards  at  the  pit  and there was no way to obtain
emergency assistance.  For example,  if  someone  were  to become
caught  in  a  tail  pulley,  he  would  need  immediate  medical
assistance.   (Tr. 232).  Smith relied on the statements made  by
Lance Richards in issuing the citation.  (Tr. 233).  Mr. Richards
testified that  there  was a house, which is kept unlocked, about
300 feet from the pit where  there  was  a telephone.  (Tr. 486).
He also testified his truck has a CB radio in it that can be used
to obtain emergency assistance.  Richards  further testified that
there were other facilities nearby, including a state maintenance
yard, that could be used for emergency communications.   Finally,
he  stated  that  the  scale  house  contained a telephone.  (Tr.
487).   He  agrees  that  it is important  to  have  a  means  of
obtaining  emergency assistance.   Richards  testified  that  the
Seeley Lake  paramedics  are  about  2.5 miles away and that they
could be at the pit in about three minutes.  Id.

     I  find  that the Secretary established  a  violation.   The
safety standard  requires  that  the  mine  operator  provide  an
emergency  communication  system.   Richards  Construction cannot
rely on off-site telephones under the control of others to comply
with  the  standard.   See Ferndale Ready Mix & Gravel,  Inc.,  6
FMSHRC 2154, 2160 (Sept. 1984) (ALJ).  The CB radio in
Mr. Richards truck is not  sufficient  because  the  truck is not
always  at  the  pit.   See Robert L. Weaver, 21 FMSHRC 370,  372
(March  1999) (ALJ).  Finally,  I  question  Richards'  testimony
concerning  the  telephone  in  the  scale  house.   Mr. Richards
testimony about this phone was almost an afterthought.  The scale
house  was  kept  locked  and  the employees were apparently  not
provided with a key so an employee would be required to break the
window to use this phone.  Lance Richards made no mention of such
a  telephone  to the inspector.  Since  Lance  Richards  did  not
remember this phone,  the  two  employees  at  the  pit  may  not
remember  it  either.   Given  these  facts, I find that Richards
Construction did not comply with the safety standard.

     I also find that the violation was S&S.  A quick response to
a  medical  emergency  can  help prevent permanent  injuries  and
fatalities.   Id.   When  an  accident  occurs,  the  lack  of  a
communications system can contribute to a fatal accident.  I find
that it was reasonably likely that the violation would contribute
to an injury of a reasonably serious  nature,  assuming continued
mining  operations.  The operator's negligence was  moderate.   A
civil penalty of $200 is appropriate.

                 II.  APPROPRIATE CIVIL PENALTIES

     Section  110(i)  of the Mine Act sets out six criteria to be
considered in determining  appropriate  civil penalties.   I find
that 13 non-S&S citations were issued at the pit between February
4, 1997, and February 3, 1999.  (Ex. P-6).  Richards Construction
is a very small operator with two employees  in  addition  to Mr.
Richards.   MSHA's  records  show  that the pit worked about 1860
man-hours in 1998, less than 900 man-hours  in 1999, and 286 man-
hours in 2000.  (Ex. J-1).  All of the citations  and orders were
abated  in  good  faith.   In  the  absence  of  evidence to  the
contrary,  I  find  that the penalties assessed in this  decision
will  not  have  an adverse  effect  on  Richards  Construction's
ability to continue  in  business.   My  findings  with regard to
gravity and negligence are set forth above.  Based on the penalty
criteria,  I  find  that  the  penalties  set  forth  below   are
appropriate.   The  reduction in the penalties is based primarily
on the very small size  of  the  operator and, where noted above,
the gravity and negligence criteria.

                           III.  ORDER

     Based on the criteria in section  110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalties:

     Citation/Order No.       30 C.F.R. �     Penalty

     WEST 99-348-M

       7903871                56.1000             Vacated

     WEST 2000-168-M

       7904240                56.14107(a)         $200.00
       7904241                56.14107(a)           10.00
       7904242                56.14107(a)           50.00
       7904243                56.4101               50.00
       7904244                56.4200(a)(1)       Vacated
       7904246                56.14107(a)          200.00
       7904247                56.14107(a)           10.00
       7904248                56.14107(a)          250.00
       7904249                56.14107(a)          200.00
       7904250                56.12004              30.00
       7904251                56.14107(a)           25.00
       7904252                56.14107(a)           25.00
       7904253                56.18013             200.00

     WEST 2000-470-M

       7904235                56.14130(g)          500.00
       7904236                56.15002             300.00
       7904237                56.15003             500.00
       7904238                56.14132(a)          200.00
       7904239                56.9300(a)            50.00
       7904245                56.12005              50.00
       7904256                56.18002(a)          500.00



     Total Penalty                              $3,350.00



     Accordingly,  the citations and orders  contested  in  these
cases are AFFIRMED,  MODIFIED,  or VACATED as set forth above and
Richards Construction is ORDERED  TO  PAY  the Secretary of Labor
the sum of $3,350.00 within 90 days of the date of this decision,
unless the parties agree upon a different payment schedule.  Upon
payment of this penalty, these proceedings are DISMISSED.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

John Rainwater, Esq., Office of the Solicitor, U.S. Department of
Labor,   1999   Broadway,  Suite  1600,  Denver,  CO   80202-5716
(Certified Mail)

John Richards, John  Richards Construction, Box 316, Seeley Lake,
MT 59868  (Certified Mail)


RWM


**FOOTNOTES**

     [1]:  On July 18,  2001,  Mr.  Richards filed a motion for a
90-day extension of time to respond to  my  order  and  to file a
brief  in  these  cases.   The Secretary opposed the motion.   By
order dated July 30, 2001, I  denied  Mr. Richards' motion for an
extension  of  time.   At Richards' request,  I  placed  his  tax
records under seal.