<DOC>
[DOCID: f:kt97292.wais]

 
DIAMOND MAY MINING
September 23, 1998
KENT 97-292


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                       September 23, 1998

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. KENT 97-292
                Petitioner     :  A.C. No. 15-17715-03504
          v.                   :
                               :  Bubba Branch
DIAMOND MAY MINING,            :
                Respondent     :

                            DECISION

Appearances:  Susan Foster, Esq., U.S. Department of Labor,
              Office of the Solicitor, Nashville, Tennessee,
              for the Petitioner; Billy R. Shelton, Esq.,
              Baird, Baird, Baird & Jones, P.S.C., Lexington,
              Kentucky, for the Respondent.

Before:  Judge Bulluck

     This case is before me upon a Petition for Assessment of
Penalty filed by the Secretary of Labor, through her Mine Safety
and Health Administration ("MSHA"), against Diamond May Mining
("Diamond May"), pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977, ("the Act"), 30 U.S.C. � 815.  The
petition seeks a civil penalty of $1,855.00 for an alleged
violation of section 77.1006(a), 30 U.S.C. � 77.1006(a).

     A hearing was held in Prestonsburg, Kentucky.  The parties'
post-hearing briefs are of record.  For all the reasons set forth
below, the citation shall be AFFIRMED.

I.  Stipulations

     The parties stipulated to the following facts:

     1.  Respondent is subject to the Federal Mine Safety and
Health Act of 1977.

     2.  Respondent and its Bubba Branch Mine have an effect upon
interstate commerce within the meaning of the Federal Mine Safety
and Health Act of 1977.

     3.  Respondent and its Bubba Branch Mine are subject to the
jurisdiction of the Federal Mine Safety and Health Review
Commission and, thus, the administrative law judge has the
authority to hear this case and issue a decision.

     4.  Mine size is as stated on the proposed assessment dated
July 1, 1997; i.e., 676,242 production tons per year for
respondent and 411,574 production tons per year for the subject
mine.

     5.  Payment of a reasonable penalty will not have an adverse
effect on the ability of the respondent to continue in business.

     6.  Order No. 4472213 and Citation No. 4472214 were served
properly on Respondent.

     7.  There is no procedural defect in this case which affects
the validity of this proceeding.

     8.  Respondent's history of prior violations for its Bubba
Branch Mine is as indicated on the R-17, Assessed Violation
History Report.  The parties agree that the R-17 may be admitted
into evidence without objection.

II.  Factual Background

     On March 18, 1997, MSHA Inspector Denver Ritchie,
unaccompanied by a representative of the operator or the union,
visited Diamond May's Bubba Branch, a surface coal mine, in order
to conduct a spot inspection of its haulage roads and a Triple A
inspection of its contract highwall mining operation (Tr. 14-15).
Upon arriving at the No. 7 coal pit, the inspector  observed a
992C Caterpillar front-end loader loading out blasted overburden
material into Caterpillar rock trucks, in a manner that he
concluded posed an imminent danger to the operator (Tr. 15-19).
Accordingly, pursuant to section 107(a) of the Act, Inspector
Ritchie immediately issued Imminent Danger Order No. 4472213 at
9:05 a.m., to mine superintendent Roger Pigman, who removed the
front-end loader and the operator from the site (Tr. 42-43).
Order No. 4472213 describes the dangerous condition as follows:

          Safe work procedures and practices were not being
     followed in the No. 7 coal pit where a 992C Caterpillar
     front end loader was in the process of trying to shack
     [sic] down a loose, fractured over hanging high wall
     approximately 65 foot [sic] in height which had
     been drilled, blasted and was in the process of being
     loaded out in order to uncover the coal bed. The underlying
     cause is that management failed to safely break down the
     materials for safe loading.  30 CFR. 70-1006a.  Citation
     No. 4472214 will be issued under 30 CFR 1006a for this
     practice

(Gov't Ex. 3).  Inspector Ritchie also issued section 104(a)
Citation No. 4472214 at the same time, alleging a significant and
substantial violation of 30 C.F.R. � 77.1006(a), describing the
condition as follows:

          A safe work area was not provided for the operator of
     the 992C Caterpillar front end loader which was observed
     trying to breack [sic] down a loose, fractured over hanging
     high wall which had been blasted and was in the process
     of being loaded out in order to uncover the No. 7 coal seam.
     The highwall was approximately 65 foot [sic] in height.
     This condition and practice was the factor that constituted
     the issuance of Imminent Danger Order No. 4472213 dated
     3-28-97 there for [sic] no abatement time was set

(Gov't Ex. 4).  Later that day, a dozer was placed on top of the
pile, and the material was pushed down to form a more gradual
slope and a toe, from which a front-end loader could remove the
material (Tr. 47-48, 116, 154).

III.  Findings of Fact and Conclusions of Law

       A. Order No. 4472213

     It is undisputed that Diamond May did not file a notice of
contest respecting Imminent Danger Order No 4472213.  The
Secretary takes the position that failure to timely contest the
order under section 107(e)(1) of the Act, 30 U.S.C. �  817(e)(1),
and section 2700.22 of the Regulations, 29 C.F.R. �  2700.22,
renders the order final and, therefore, not at issue in this
proceeding (Tr. 6-7; Sec. Br. at 10-12).  Diamond May takes the
contrary view that the validity of the order is properly before
me, based on inconsistency between the wording of the Act and the
Regulation, and because Diamond May included contest of the order
in its contest of the civil penalty associated with the 104(a)
citation (Tr. 7-9; Resp. Br. at 6).  I am not persuaded by
Diamond May's rationale, and for the reasons set forth below, I
find that Imminent Danger
Order No. 4472213 is FINAL.

     Section 107(a) of the Act, 30 U.S.C. �  817(a), authorizes
an inspector to issue an order requiring the operator to remove
all affected persons from an area whenever, in the inspector's
judgment, the condition in the area poses an imminent danger.
Section 107(e)(1) of the Act, 30 U.S.C. �  817(e)(1), in
pertinent part, sets forth the requirements for contesting an
imminent danger order as follows:

          Any operator notified of an order under this section or
     any representative of miners notified of the issuance,
     modification, or termination of such an order may apply
     to the Commission within 30  days of such notification for
     reinstatement, modification or vacation of such order.

     Similarly, section 2700.22(a) of the Regulations provides
the following:

          A notice of contest of a withdrawal order issued
     under section 107 of the Act, 30 U.S.C. 817, or any
     modification or termination of the order, shall be filed
     with the Commission by the contesting party within 30
     days of receipt of the order or any modification or
     termination of the order.

     Turning to the facts of this case, 30 days from the March
18, 1997, issuance of the order,  was April 17, 1997.  Diamond
May's Answer to the Secretary's Petition for Assessment of
Penalty contests the validity of the citation and order, but was
filed on September 22, 1997, some five months in excess of the
statutory and regulatory requirement.  It is noted that Diamond
May has provided no precedent for the proposition that filing
within 30 days is not a mandatory requirement and, indeed, has
conceded that it is subject to the requirements of the Act.  See
ICI Explosives USA, Inc. v. Secretary of Labor, 16 FMSHRC 1794
(August 1992) (Chief ALJ's dismissal of imminent danger contest,
analogizing an application for review under section 107(e) to a
notice of contest under 105(d), which the Commission has long
required be filed within the statutorily prescribed period of 30
days).  Diamond May has misread section 107(e) of the Act,
however, by interpreting use of the word "may" to relate to when
a contest must be filed.   In the context of this section, it is
clear that "may" references whether an operator desires to
contest an imminent danger order, not when or how a contest is
filed.  Diamond May's reading implies no time limitation on
filing and, therefore, would render that portion of the provision
meaningless.  Consequently, Diamond May's failure to timely
contest the imminent danger order precludes review in this
proceeding.

       B.  Citation No. 4472214

       1.  Fact of Violation

     This citation charges a "significant and substantial"
('S&S") violation of 30 C.F.R. �  77.1006(a), which provides
as follows:

           Men, other than those necessary to correct unsafe
     conditions, shall not work near or under dangerous
     highwalls or banks.

     In resolving whether a violation of the standard had
occurred, the parties contend that an initial determination must
be made as to whether the cited area constituted a highwall.[1]
The Secretary argues that the blasted/fractured sandstone cited
constituted a highwall (Tr. 19-20, 25, 60; Sec. Br. at 12-13).
Diamond May, on the other hand, contends that a highwall can only
consist of solid, unblasted material and, therefore, argues that
the cited condition was "blasted overburden" (Tr. 107, 166-167;
Resp. Br. at 7-8).[2]  While neither the Act nor the Regulations
define the term, I need not decide whether the cited condition
constituted a "fractured highwall," since the plain, unambiguous
language of the standard encompasses "banks," as well.  The
mining industry uses the term "bank" in a number of instances,
including "a usually steeply sloping mass of any earthy or rock
material rising above the digging level from which the soil
or rock is to be dug from its natural or blasted position in an
open-pit mine or quarry."  U.S. Department of the Interior,
Bureau of Mines, A Dictionary of Mining, Mineral and Related
Terms 77 (1968).  Based on this definition, I conclude that
the blasted overburden, cited by the inspector as the
violative condition, comes within the ambit ofthe standard.
Having so concluded, the next determination to be
made is whether the condition was dangerous.

     Inspector Ritchie testified that the overburden in the No. 7
coal pit consisted of fractured sandstone in stacked, loose
components that ranged from granular size to eight-by-eight foot
pieces, weighing between eight and ten tons (Tr. 20-21).  He
estimated the pile to reach 65 feet in height, 50 or 60 feet in
depth, and with the toe removed where the end-loader was
operating, to constitute a vertical wall of approximately 90
degrees (Tr. 20, 22-24, 61-63, 78-79, 81-82, 89-90, 98; Gov't Ex.
5). According to Inspector Ritchie, a crack of one to two feet in
width, located eight feet back from the face and extending from
top to bottom, separated the blasted overburden into two sections
(Tr. 34-35, 67-69).  He described a large, flat piece of
sandstone or chimney-like structure on the top of the pile, which
he estimated to be six to eight feet wide, extending beyond the
rest of the loosely stacked material by five to six feet (Tr.
25-28, 74-76; Gov't Ex. 5).  This chimney-like structure,
Inspector Ritchie testified, was loose and difficult to get down,
and from his standing position on the No. 7 coal seam,
approximately 100 feet away from the wall, he observed the
operator backing up and ramming the wall with the bucket of the
front-end loader, in the inspector's opinion, to shake down the
blasted material for loading (Tr.16, 28, 32, 65).  According to
the inspector, "every time he would hit the wall, due to this
crack that's in it and separations, the front part of the chimney
portion of the wall would move back and forth" (Tr. 33-34,
36-37).  Inspector Ritchie stated that, in his judgment, based on
the movement of the wall that he had observed over the course of
the few minutes it took to reach the front-end loader, the wall
could collapse at any moment (Tr. 35-36, 42).  Inspector Ritchie
also testified that material falling at an angle some 40 feet
above the loader could invade the windshield, irrespective of
whether it is glass or Plexiglas,  and cause fatal injury to the
operator (Tr. 32, 40-42, 71-73, 91-92).  Furthermore, the
inspector testified that approximately one hour after the
instant order and citation had been issued, on or about
10:00 a.m., he observed the top two blocks, eight to ten
feet in size, fall onto the area where the front-end loader
had previously been operating, without anyone being around
or on the area (Tr. 43-45, 69-70, 91-92).  According to
Inspector Ritchie, the highwall miner operator also
saw the collapse of the top portion of the wall (Tr. 70).

     Diamond May disputes that the vertical face of the fractured
overburden was as steep as 90 degrees, and postulates that
unconsolidated material standing at a 90 degree angle would defy
gravity and nature (Resp. Br. at 8-9).  Dirk Smith, engineering
assistant to Diamond May's president, testified to being unsure
of whether he had checked the No. 7 coal pit prior to Inspector
Ritchie's 9:00 inspection on the morning of March 18th, but that
when he did inspect the site considerably later, around
lunchtime, the face of the pile had not been vertical, but "would
appear to be steep due to the angle of repose of this material"
(Tr. 106-109, 125-127, 133, 135-136, 145-146).  Mr. Smith
acknowledged that he had not actually surveyed or diagramed the
cited condition during this inspection, but that  the angle of
repose of shot material is sometimes steep; he estimated the face
of the pile to lay back at an angle of 80 degrees (Tr. 109-110,
114, 126, 130, 140-141).[3]  Mr. Smith also testified that he was
not in the pit during operation of the front-end loader, that he
did not observe any overhanging chimney-like structure on the top
of the pile, and that he did not recollect the top having failed,
as alleged by Inspector Ritchie (Tr. 112, 120-121, 128, 130).

     Joseph Jacobs, Diamond May's director of risk management,
acknowledged that he "did not see the area that was cited until
after the condition that he alleged had been there had allegedly
been rectified," and that he had not heard of the "big rock up on
top" until Inspector Ritchie referenced it in his testimony
during the hearing (Tr. 169-170).

     Diamond May largely presented evidence on the typical
loading geometry for the Hazard No. 7 seam surface mining
operation, rather than on the particulars of the overburden cited
in this case (See Resp. Exs. 1, 2; Tr. 114, 121-125).  Inspector
Ritchie's assessment of the condition which he cited remains
unrebutted, since Diamond May has produced no witnesses that
observed the condition during the relevant timeframe, and has
conceded that, although improbable, a vertical wall is possible
(Tr. 136).  While neither Inspector Ritchie nor Dirk Smith
actually surveyed the cited wall, it is clear from their
estimates of the slope that it was steep. Moreover, Diamond May
has produced no evidence contradicting Inspector's Ritchie
testimony that he observed the top of the wall wobbling when the
operator rammed it with the bucket of the front-end loader.  That
the top of the wall collapsed by itself an hour after the
condition had been cited, a fact also unrebutted by Diamond May,
removes any doubt that the slope of the wall, in and of itself,
posed a very dangerous condition, compounded by the ramming of
the front-end loader.  I am not persuaded by any suggestion that
the distance between the cab of the front end-loader and the wall
provided adequate protection to the operator, given the
circumstances under which the equipment was being operated.
Accordingly, the Secretary having established that a miner had
been working near or under a dangerous bank, the evidence is
clearly sufficient to sustain the violation.

       2.  Significant and Substantial

     Section 104(d) of the Mine Act designates a violation
"significant and substantial" ("S&S") when it is "of such a
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard."  A violation is properly designated S&S "if, based upon
the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set forth the four criteria that the Secretary must
establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory
safety standard; 2) a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the violation; 3) a
reasonable likelihood that the hazard contributed to will result
in an injury; and  4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.  See also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power, Inc. v. Secretary, 861 F.2d 99, 103- 104 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).  Evaluation of the third criterion, the
reasonable likelihood of injury, should be made in the
context of "continued mining operations."  U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984).  Moreover,
resolution of whether a violation is S&S must
be based "on the particular facts surrounding the violation."
Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988).

     Inspector Ritchie found the violation to be S&S.  He
testified that, based on the separation in the wall and the back
and forth  movement of the chimney-like portion when the bucket
rammed it, he had determined it very likely that continued
ramming would eventually knock the top down, and that the falling
material could slide off the arms of the bucket into the
windshield, resulting in serious injury to the operator, even
death (Tr. 33-37).  The evidence, evaluated in terms of continued
mining operations, proves the inspector's judgment to be sound,
since the size of the sandstone blocks that fell in the area from
which the operator and the front-end loader had been removed an
hour previously, was roughly eight-by-eight feet, weighing eight
to ten tons.  I find, based on the evidence, that there was a
reasonable likelihood that collapse of the top, which hazard was
contributed to by the steep angle of the wall and ramming by the
front-end loader, would result in an injury of a very serious
nature.  Therefore, I conclude that the violation was, indeed,
"significant and substantial."

       3. Penalty

     While the Secretary has proposed a civil penalty of
$1,855.00, the judge must independently determine the appropriate
assessment by proper consideration of the six penalty criteria
set forth in section 110(i) of the Act, 30 U.S.C. � 820(j). See
Sellersburg Co., 5 FMSHRC 287, 291-292 (March 1993), aff'd 763
F.2d 1147 (7th Cir. 1984).

     Diamond May is a medium-sized operator, with a history of no
prior violations of the standard at issue and an overall record
that is not an aggravating factor in assessing an appropriate
penalty (Gov't Ex. 1).  As stipulated, the proposed civil penalty
will not affect Diamond May's ability to continue in business.

     The remaining criteria involve consideration of the gravity
of the violation and the negligence of Diamond May in causing it.
I find the gravity of the violation to be serious, since the
potential for grave injuries to miners, ranging from cuts and
broken bones to head injuries and death, caused by large blocks
of sandstone falling into the operators' cab, is substantiated
by the record.  Consideration of the operator's aggravating
conduct, i. e., ramming an already steep wall of unconsolidated
material with the bucket of the front-end loader, so as to shake
down the top, leads me to ascribe high negligence to Diamond May.
Therefore, having considered Diamond May's medium size,
insignificant history of prior violations, seriousness of the
violation, high degree of negligence, good faith abatement and no
other mitigating factors, I find that the $1,855. 00 penalty
proposed by the Secretary is appropriate.

                              ORDER

     Accordingly, Order No. 4472213 is FINAL, Citation No.
4472214 is AFFIRMED, and Diamond May is ORDERED TO PAY a civil
penalty of $1,855.00 within 30 days of the date of this decision.
On receipt of payment, this proceeding is DISMISSED.


                               Jacqueline R. Bulluck
                               Administrative Law Judge


Distribution:

Susan Foster, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
(Certified Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, PSC, 841
Corporate Drive, Suite 101, Lexington, KY 40503 (Certified Mail)

/mh


***FOOTNOTES***

     [1]  Highwall.  The unexcavated face of exposed overburden
and coal or ore in an open cast mine or the face or bank on the
uphill side of a contour strip mine excavation.  U.S. Department
of the Interior, Bureau of Mines, A Dictionary of Mining, Mineral
and Related Terms 543 (1968).
     [2]  Overburden.  Used by geologists and engineers in
several different senses.  By some, it is used to designate
material of any nature, consolidated or unconsolidated,
that overlies a deposit of useful materials, ores, or
coal, especially those deposits that are mined from the
surface by open cuts.  Id. at 780.

     [3]  Angle of repose.  The maximum slope at which a heap of
any loose or fragmented solid material will stand without sliding
or come to rest when poured or dumped in a pile or on a slope.
Id.  at 39.  See also Tr. 22, 103-104 (the normal angle of
response for unconsolidated material is approximately 35
degrees).