<DOC>
[DOCID: f:p94-23.wais]

 
CYPRUS EMERALD RESOURCES CORPORATION
November 29, 1995
PENN 94-23


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          November 29, 1995

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA)       :    Docket No. PENN 94-23
               Petitioner     :    A.C. No. 36-05466-03980
           v.                 :
                              :    Docket No. PENN 94-166
CYPRUS EMERALD RESOURCES,     :    A.C. No. 36-05466-03990
  CORPORATION,                :
               Respondent     :    Emerald No. 1 Mine

                               DECISION

Appearances: Myrna A. Butkovitz, Esq., Office of the Solicitor,
             U.S. Department of Labor, Philadelphia, Pennsylvania,
             for Petitioner;
             R. Henry Moore, Esq., Buchanan Ingersoll Corp.,
             Pittsburgh, Pennsylvania, for Respondent.

Before: Judge Fauver

     These are civil penalty cases under � 105(d) of the Federal
Mine Safety and Health Act  of 1977, 30 U.S.C. � 801 et seq.

     The principal issues are whether Respondent's placement of
coal refuse was a "refuse pile" under 30 C.F.R. � 77.215, whether
the accident-reporting and investigating  standard in � 50.10 and
� 50.11 applied to a collapse of coal refuse on December 27, 1992,
and, if violations are found, whether they were significant and 
substantial and due to an unwarrantable failure to comply.

     Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes  the following Findings of Fact
and further findings in the Discussion below:

                           FINDINGS OF FACT

     1. Respondent owns and operates Emerald Mine No. 1, which
produces coal for sales in or affecting interstate commerce.

     2. On April 2, 1993, MSHA received a � 103(g)[1] complaint
alleging dangers involved in a partial collapse of a refuse pile
on that date.

     3. On April 5, 1993, Federal Mine Inspector Walter Daniel
investigated the complaint and issued an imminent danger order 
and three citations alleging safety violations.

     4. During the investigation on April 5, 1993, Inspector 
Daniel received another � 103(g)  complaint  alleging that
there had been a failure of the same refuse pile on December 
27, 1992. After investigating the complaint, Inspector Daniel
issued five citations and orders alleging safety violations.

                           Impoundment Plan

     5. Respondent has an MSHA-approved plan for disposing of
the refuse from its coal  preparation  plant.  Known  as  the  
Impoundment Plan (short for "Slurry Impoundment Coal Refuse 
Disposal  Facility"), it calls for four stages of construction
of an impoundment embankment built up from refuse material. 
Stages II and  III  involve  upstream  construction,  whereby 
refuse material is systematically placed over a slurry pond
in compacted lifts according to certain construction standards.
Stage IV involves downstream construction as well as upstream
construction as the slurry pond is finally filled in and covered
over. Stage IV is to be constructed to a final crest elevation
of 1310 feet.

     6. The Impoundment Plan provides that each layer of the
impounding embankment:

     should  be  compacted  by either a sheepsfoot roller,  rubber-
     tired construction equipment, or approved compaction equipment
     exerting  a  force of 10 tons  or  more.   For  uniformity  of
     compaction, a  minimum  of  two passes of the roller should be
     made for each layer.  A complete roller pass is defined as the
     passing of a specified roller  over  the entire surface of the
     layer  once,  with  a  minimum  overlap of  one  foot  between
     successive trips of the roller.   Subsequent  lifts should not
     be  placed  until  the  layer  under  construction  has   been
     thoroughly compacted. . . .

     7. The Impoundment Plan provides specific lift limitations for
upstream construction in Stages II and III:

     for  upstream  construction, the initial lift of coarse refuse
     over  the settled  fines  of  the  previous  stage  should  be
     approximately  five to six feet thick to provide a working pad
     for earth-moving  equipment.   Subsequent  lifts should be two
     feet thick or less.

     8.  Under the Impoundment Plan, Stage IV development is expected
to be completed in the year 2002.

     Respondent's Practice of Piling Refuse Material

     9. Coal and refuse material were brought up from the mine to
the preparation plant where the coal was  washed  and  separated.
The refuse was then moved by conveyor  belt to a  500-ton  refuse
storage bin.

     10. At the bin, refuse was loaded onto 35-ton dump trucks and
under  the  Impoundment Plan the refuse was to  be  taken  to  the
impoundment embankment for use in its construction.

     11. At the time  of  the inspection in April 1993, the regular
lay down area for the  impoundment  embankment  was  approximately
southeast of the 500-ton  bin  and was  at  a  crest  elevation  of
about 1255 feet.

     12. Coarse refuse deposited at the impoundment embankment is
required to be placed in lifts  and  compacted  pursuant  to  the
Impoundment Plan.  The Impoundment Plan  provides  specific  lift
limitations for upstream construction in Stages II and III:

     for  upstream construction, the initial lift of coarse refuse
     over  the settled  fines of  the  previous  stage  should  be
     approximately five to six feet thick to provide a working pad
     for earth-moving equipment.   Subsequent  lifts should be two
     feet thick or less.

     13. At the time of the inspection in April 1993, a practice
had existed for the last 18 years of depositing coal  refuse  on
a refuse  pile  located  southwest  of  the  500-ton  bin.  The
refuse pile, which abutted the shore line of a  large  part  of
the  slurry pond, was commonly referred to as the  "short  haul
area."   In  inclement  weather,  or  when  the  road  to  the
impoundment embankment was considered to be too muddy, icy, or
dusty  to  travel, refuse was hauled to the refuse pile rather
than to the  impoundment  embankment.   Thirty-five  ton  dump
trucks  were used to haul refuse from the 500-ton bin and dump
loads along  the  edge  of the refuse pile.  Bulldozers spread
the piles and pushed refuse  over  the edge of the refuse pile
toward the slurry pond to make room  for  more  refuse.   This
practice  was  followed  for  years  before December 1992, and
continued  from December 1992 until a failure  of  the  refuse
pile on April 2, 1993.  By the time of the inspection in April
1993, the practice  of  depositing  coal  refuse  in  the area
southwest  of the 500-ton bin had created a large refuse  pile
that was about  1,000 feet long, 60-80 feet high, and 300 feet
wide.

     14. The practice  of  pushing coal refuse over the edge of
the refuse pile toward the  slurry  pond  caused the toe of the
refuse  pile  to extend over the slurry pond.  The refuse  pile
lacked compaction.   As  more  coal refuse was pushed over the
edge,  the  weight of the refuse pile  over  the  slurry  pond
increased and the angle of the slope became very steep.  These
conditions caused the refuse pile to be unstable.

     15. The refuse pile was not part of the impoundment embankment
and was not designed, constructed, or  maintained  in  accordance
with  the  requirements   of   the  Impoundment  Plan  or  the
requirements  of the refuse pile  standards  in  30  C.F.R.  
� 77.215.

     16. The refuse pile was not intended to be an impoundment
embankment,  nor was it intended to be a temporary  stockpile.
Although a small  part  of  the  refuse on the refuse pile was
used  at  times  to build up the impoundment  embankment,  the
great majority of  the refuse deposited on the refuse pile was
pushed over the edge  toward  the slurry pond to make room for
more refuse material.

     17.  Under the Impoundment Plan, as Stage IV construction
advances, some  of  the area adjacent to the 500-ton bin is to
be developed as part  of the impoundment embankment.  Any part
of  the refuse pile that  will  be  affected  by  the  growing
impoundment  embankment  under Stage IV construction will have
to be removed or regraded into two foot lifts before it can be
incorporated into the impoundment  embankment.  The reason for
this is that the refuse pile does not  meet  the standards for
the impoundment embankment under the Impoundment Plan.

                     December 27, 1992, Incident

     18. On December 27, 1992, there was a failure of part of the
refuse pile.  A 35 foot-wide section of coarse  refuse  material
broke off, caved in, and slid down toward the slurry  pond.  An
employee  was operating a bulldozer on the part of the  refuse
pile that failed.   The  bulldozer slid about 30 feet  down  the
refuse pile toward the slurry pond and was partially  buried in
refuse material.  Ropes were  thrown  down  to the employee to
help him climb up the steep slope of the refuse pile.

     19. The bulldozer that slid down the refuse pile was covered
by  coarse  refuse  material midway up the cabin  and  the  blade
was buried in the coarse refuse.

     20. Respondent knew that the refuse pile had collapsed and 
the bulldozer and driver slid down the refuse pile on December 27,
1992.

     21. After the accident Respondent did not rope off or danger
off the area where the refuse pile had collapsed.

      April 2, 1993, Incident

     22. On April 2, 1993, there was another failure of the refuse
pile. An area about 350 feet long, 60 feet  high, and 40 feet wide 
broke off, caved in, and slid into the slurry pond.

     23. The steepness of the refuse pile slope, the instability 
of the  refuse  pile  material,  and  the  slurry  foundation's
inability to support the weight of the coarse refuse deposited
on the refuse pile  were  the  primary  causes  for the refuse
failures in December 1992 and April 1993.

     24. Over the years, including the period from December 1992
through April 2, 1993, coarse coal refuse was hauled by  35-ton
trucks from  the  500-ton  bin  to  the refuse pile.  The dump
trucks deposited piles of coarse refuse  along  the  land-side
edge  of the refuse pile.  Bulldozers were used to spread  the
piles of  coarse  refuse and to push refuse over the pond-side
edge of the refuse pile.

     25. The coarse refuse piled on the  refuse  pile  was  not
compacted or deposited in layers two feet or less.

     26. The operator wa  aware of  the  fact  that miners were
bulldozing the coarse refuse material  over  the  edge  of  the
refuse pile toward the slurry pond.

     27. The operator  was aware of the fact that coal deposited
on the refuse pile was not  being  compacted  and  was not being
placed in lifts two feet or less.  The operator knew  that  this
practice  had  been  in  existence  before  December  1992,  and
continued through April 2, 1993.

     28. From December 1992 through April 2, 1993, the majority 
of the coarse refuse hauled from the 500-ton bin was deposited on
the refuse pile.

     29. The lack of compaction of the refuse material deposited
on the refuse pile and the failure to deposit the refuse material
in lifts two feet or less  contributed  to  the  failures of  the
refuse pile in December 1992 and in April 1993.

     30. Slope instability was one of the primary factors causing
the failures  of  the  refuse  pile in December  1992  and  April
1993.

     31. The slope instability was caused, in major part, by the
fact  that  the  refuse  pile was developed over the  years  by
coarse coal refuse being dumped  on  the  refuse  pile,  pushed
over  the  edge,  and  allowed  to settle on the fines  of  the
slurry pond.

     32. Over time, the foundation of the fines of the slurry pond
could not bear the weight of the heavy coarse refuse deposited
on the refuse pile.

     33. The refuse pile was not constructed in a way to prevent
the refuse material from shifting and ultimately sliding off.

     34. The coarse refuse deposited on the refuse pile was not
placed pursuant  to  any engineering plan and did not meet  the
engineering principles and requirements of either  Respondent's
Impoundment Plan or the refuse pile standards in 30 C.F.R.
� 77.215.

                       MSHA's Investigation of
                     December 27, 1992, Incident

     35. During the inspection in April 1993, Inspector Daniel
received  a  �  103(g)  complaint  concerning a failure of the
refuse  pile  on December 27, 1992.  After  investigating  the
complaint, he found  that a 35-foot wide section of the refuse
pile had broken away,  caved  in,  and  slid  down  toward the
slurry pond.  A miner was operating a bulldozer on top  of the
refuse section that broke away, caved in, and slid down toward
the slurry pond.  He and the bulldozer slid down the slope and
came to rest near the slurry pond.

     36. At the time of the refuse pile failure on December 27, 
the operator of the bulldozer was pushing coarse refuse material
over the edge of the refuse pile toward the slurry pond.

     37. Dump trucks traveled on the refuse pile, including the
area that failed, in order to deposit  loads  of coarse  refuse
along the edge of the refuse pile.

     38.  Respondent knew that dump trucks were hauling coarse
refuse from the 500-ton bin to the refuse  pile and bulldozers
were  pushing  material  over  the  edge  of the refuse  pile.
Respondent  also  knew  that  the  trucks and bulldozers  were
operating on a refuse pile that was not stable and presented a
serious risk of collapse.

     39. Before the failure in December 1992, a report from the
Pennsylvania  Department of Environmental Resources noted that
refuse material was being deposited on the refuse pile.

     40. Before and after December 27, 1992 (until April 2, 1993),
Respondent failed to take reasonable steps to  prevent  vehicles
from depositing coarse  refuse material on the refuse pile  and
pushing it over the edge  toward  the  slurry pond.  After  the
December 27 incident, Respondent continued  the  same  practice
that  led to a second failure of the refuse  pile on  April  2,
1993.

      ISSUES

     1.  Whether  the  incident  on  December  27, 1992, was an
"accident" as defined in 30 C.F.R. � 50.2 so that it had to be
reported under  30  C.F.R.  �  50.10 and investigated under 30
C.F.R. � 50.11(b).

     2. Whether Respondent violated ��  50.10 and 50.11(b) and if
a violation  of 30 C.F.R. � 50.11(b) occurred,  whether  it  was
properly designated "significant and substantial."

     3.  Whether  30   C.F.R.  ��  77.215(f) and (h) applied to
Respondent's placement  of  refuse  material  southwest of  the
500-ton bin and whether Respondent violated those standards.

     4. If violations of �� 77.215(f) and (h) occurred, whether
they  were  significant   and   substantial   and  due  to  an
unwarrantable failure to comply.

     5. If violations of  � 77.1608(b) occurred, whether they 
were significant and substantial and  due to an unwarrantable
failure to comply.

     6.  Whether the proposed penalties are appropriate  under 
the criteria for penalties in �110(i) of the Act.

      DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

     As a result of its investigation  of both the December 27,
1992, and the April 2, 1993, failures of the refuse pile, MSHA
issued an imminent danger order and eight citations and orders
alleging violations.

      Order No. 3658637

     Order No. 3658637 was issued under � 107(a) on April 5, 1993,
alleging an imminent danger due to the April 2  failure  of  the
refuse pile.  The order states in part:

     .  . . [A] section of the lay down area sheared off  into  the
     slurry  pond.   (Approximately 40 feet of material).  The area
     that sheared off  has  been  an area in which mobile equipment
     has been operating.

                         Citation No. 3658682

     Citation No. 3658682 was issued  under  �  104(a) on April 7,
1993,  alleging  a  violation of 30 C.F.R. � 50.10, concerning
the December 27, 1992, incident as follows:

     An accident occurred  at  the  Emerald  Mine  No.  1,  and the
     operator  did  not  immediately  contact  the MSHA District or
     Subdistrict office having jurisdiction over its mine, in that,
     an unstable condition in the mine refuse pile  in  by the 500-
     ton  bin  at  the  edge  toward the slurry pond failed causing
     approximately 35 feet of material  to  slide  along  with  the
     bulldozer  and  the  operator.   The  bulldozer  slid down the
     material approximately 34 feet.  There was 1 violation  issued
     during  the last inspection period 10-1-92  through 12-31-1992
     of C.F.R. 50.10.

As  modified, the  citation  alleges  a  non-significant  and  non-
substantial  violation  with high negligence.  The proposed penalty
is $400.

     Section 50.10 provides:

     If an accident occurs,  an  operator shall immediately contact
     the MSHA District of Subdistrict  Office  having  jurisdiction
     over  its mine.  If an operator cannot contact the appropriate
     MSHA District  of  Subdistrict  Office,  it  shall immediately
     contact the MSHA Headquarters Office in Arlington, Virginia by
     telephone, at (800) 746-1553.

     The  term  "accident"  in  �  50.10  is defined in �  50.2(h).
Subpart (10) of � 50.2(h) states that an "accident" includes:

     An unstable condition at an impoundment,  refuse pile, or culm
bank which requires  emergency  action in order to prevent failure,
or which causes individuals  to evacuate an area; or, failure of an
impoundment, refuse pile, or culm bank.

     The Secretary contends that the event on December 27, 1992,
was  a  "failure  of  a  refuse  pile"  and  was  therefore  a
reportable  accident.   Respondent  contends that the  incident
was not a reportable accident because the collapsed refuse was
in a temporary stockpile, not a refuse  pile, and the incident
did not jeopardize the integrity of the impoundment embankment
and residents downstream of the impoundment I find that the 
failure of refuse material  was  in  a  refuse  pile, not a 
temporary stockpile.  The refuse pile was built up over many 
years and the great majority of the refuse was  left as refuse
or was pushed over the edge toward the slurry pond to make room 
for more refuse.

     The definition of a reportable accident includes "failure of
a refuse pile."   It also includes an "unstable condition at ...
[a] refuse pile ...  which  requires emergency action in order
to  prevent  failure  ..."  �  50.2(h)(10).    There   is   no
requirement  that  the  condition must cause individuals to be
evacuated, or that it must  also  affect  the  integrity of an
impoundment.  This is clear from a comparison with � 77.215(e)
which  prohibits using a refuse pile to impound water.   If  
� 50.2(h)(10)  were  intended to cover only failures that affect
an impounding structure,  then failure of a refuse pile, which
may not be used to impound water, would not be included in the
definition of a reportable accident without words connecting a
refuse pile failure to the integrity of an impoundment.

     I therefore hold that the failure of the refuse pile on
December 27, 1992, was a reportable accident.

     Failure to notify MSHA immediately  after  an  accident is
a clear  violation  of  the regulation.  In JBA Industrial Fuel,
Inc., 16 FMSHRC 1778 (1994),  the  "operator delayed  almost 12
hours" before notifying MSHA of the accident.  The judge found
that  "the  operator could have called  MSHA's  24-hour  phone
number to comply  with this regulation" and upheld a violation
of � 50.10, stating  that  "the  requirement  that an operator
immediately report certain types of accidents to  MSHA  is  an
important part of mine safety and enforcement in terms of both
accident  investigation  and  assistance to injured or trapped
miners."  Id. at 1780.

     Respondent  knew  that  part of the refuse pile failed on
December 27, 1992, and that a bulldozer, with its driver, slid
down the refuse pile toward the  slurry pond and was partially
buried.  Respondent did not contact MSHA.

     Respondent's failure to call MSHA cannot be dismissed  as
a mere  difference of opinion  as  to  what  is  a  reportable
accident.  No  witness  for Respondent testified that  at  the
time a reasoned decision was  made  that,  in  his or her best
judgment, the failure of the refuse pile in December  1992 was
not  a  reportable  accident.   John Meyers, preparation plant
foreman, knew about the failure and  did  not notify MSHA.  He
presented  no  testimony  indicating  that  he consulted  with
management  or  Respondent's safety director and  received  an
opinion  that contacting  MSHA  was  not  required  under  the
regulations.    Gary  Bochna,  Respondent's  safety  director,
testified that although  it  was his responsibility to conduct
accident   investigations  and  complete   accident   reports,
management never consulted him about whether the December 1992
failure was a "reportable accident" and he  was  not informed 
of the December 1992 failure until  April  1993.  Mr.  Bochna 
acknowledged  that under Respondent's  policies, the  December 
1992 incident should have been reported to him.

     I find that Respondent's failure to report the December 27
accident was due to high negligence and that the violation was
serious.  Considering all the criteria for civil penalties in
�  110(i),  I  find that a penalty of $400 is appropriate  for
this violation.

                         Citation No. 3658696

     Citation No. 3658696 was issued under � 104(a) on May 26,
1993, alleging a violation of 30 CF.R. � 50.11(b) concerning
the December 27, 1992, incident as follows:

     An accident  occurred  at  the  Emerald  Mine  No.  1, and the
     operator  did  not  investigate  the  accident,  in  that,  an
     unstable  condition  in  the mine refuse pile inby the 500-ton
     bin  at  the  edge  toward  the  slurry  pond  failed  causing
     approximately 35 feet of material  to  slide  along  with  the
     bulldozer  and  the  operator.  The bulldozer and the operator
     slid down the material  approximately  34  feet.   There was 0
     violations  issued during the last inspection period  10-01-92
     through 12-31-92 of C.F.R. 50.11(b).

     The citation  alleges  a significant and substantial violation
with high negligence. The proposed penalty is $3,000.

     Section 50.11(b) provides:

          Each operator of a  mine  shall investigate each accident
     and each occupational injury at  the mine.  Each operator of a
     mine  shall  develop  a  report  of  each  investigation.   No
     operator  may  use  Form 7000-1 as a report,  except  that  an
     operator of a mine at  which  fewer  than  twenty  miners  are
     employed may, with respect to that mine, use Form 7000-1 as an
     investigation  report  respecting  an  occupational injury not
     related to an accident.  No operator may  use an investigation
     or an investigation report conducted or prepared  by  MSHA  to
     comply  with  this paragraph.  An operator shall submit a copy
     of any investigation  report  to  MSHA  at  its request.  Each
     report prepared by the operator shall include,

     (1) The date and hour of occurrence;

     (2) The date the investigation began;

     (3)   The   names   of   individuals   participating  in   the
     investigation;

     (4) A description of the site;

     (5)  An  explanation  of the accident or injury,  including  a
     description  of any equipment  involved  and  relevant  events
     before and after  the  occurrence,  and any explanation of the
     cause of any injury, the cause of any accident or cause of any
     other event which caused an injury;

     (6)  The  name,  occupation,  and  experience   of  any  miner
     involved;

     (7) A sketch, where pertinent, including dimensions  depicting
     the occurrence;

     (8)  A  description  of  steps  taken  to  prevent  a  similar
     occurrence in the future; and

     (9)  Identification  of any report submitted under � 50.20  of
     this part.

     On December 27, 1992, part of the refuse pile failed. About
35 feet of refuse material broke  off, caved in, and slid  down
toward the slurry pond.  A bulldozer was operating on  the part
of the refuse pile that failed.  The bulldozer, along with the
driver,  slid  down  with the fallen material  about  30  feet
toward the slurry pond, and was partially buried.  Respondent,
through management personnel,  including  Ron  Stotka  and Jim
Graznak, knew of the failure of the refuse pile shortly  after
it  occurred.   The  foreman, John Meyers, participated in the
efforts to assist the operator of the bulldozer in climbing up
the steep slope.

     Despite its knowledge  of the failure of the refuse pile,
Respondent  did  not investigate and develop a report  of  the
failure and measures  needed  to  prevent  a  recurrence until
after MSHA's investigation, four months after the accident.

     Soon after the failure, the only "investigation" into the
failure was initiated  by  the  miner  representative  for the
United  Mine  Workers,  not the Respondent.  Tim Brown, acting
safety committeeman, was  asked  by  Mr.  Prodan,  UMW  safety
committee  chairman, to look into the failure of December  27,
1992.  In response,  Mr.  Brown  asked Mr. Meyers, preparation
plant foreman, to accompany him to the area of the failure.

     In the failure area, Tim Brown expressed  his  concern for
the safety of the miners. Mr. Brown did not participate in  the
writing of  an investigative report of the failure.  Mr. Brown
relied upon the oral comments of John Meyers that the practice
of pushing piles over the edge would be stopped.  However, the
practice  of pushing  piles  over  the  edge  continued.   The
evidence  shows   an   indifferent   attitude  by  management,
demonstrated  by  its  failure  to  properly  investigate  the
December accident, to develop a report, and to take reasonable
measures  to  prevent  future similar accidents.   When  asked
whether he took preventive  measures  after  the  December 27,
1992,  accident,  Mr.  Meyers,  the preparation plant foreman,
testified:

     If  my  memory  serves  me  right,  I  believe   everyone  was
     instructed here that there would be no more pushing  over  the
     side of the impoundment.  In fact, I believe that there were -
     -  I  wouldn't want to swear to this, but it sticks in my mind
     that there were piles dumped along the haul road, more or less
     to barricade, to keep people out of there, but it didn't work.
     [Emphasis added.]

     If Respondent  had conducted a reasonable investigation with a
report of steps to prevent future similar accidents, the failure of
the refuse pile on April  2,  1993,  could  have been prevented and
employees  would  not  have  continued  the dangerous  practice  of
operating trucks and bulldozers on an unstable refuse pile.

     Respondent's  accident  report was not  prepared  until  April
1993,  and  was  prompted  not  by  the  accident  but  by  MSHA's
investigation on April 5, 1993.

     The importance of the investigation and report required by
�  50.11(b)  was  addressed by the Commission in Steele Branch
Mining,  15  FMSHRC 597  (1993).  The  Commission  noted  that
� 50.11(b) "requires  operators  to  investigate all accidents
and to `develop a report' of each investigation."   Id  at  p.
601.   The  Commission  took  note  of  "the  purpose  of  the
regulation  which  is  to  ensure  that  operators are in fact
investigating  accidents  and  injuries  and  are  engaged  in
constant  upgrading of health and safety practices.   42  Fed.
Reg 65534 (December 30, 1977)."
Id. at 602.

     Respondent violated the regulation by not investigating and
developing a report of the December 1992 failure of the  refuse
pile including measures needed  to prevent a  recurrence, until
prompted by MSHA four months after  the  accident.  Respondent
introduced  into  evidence  a  report  of  investigation  dated
April 23, 1993.  This report was prepared  about  four  months
after   the  accident  occurred.   The  portion  dealing  with
preventive  steps  was  not  completed  until  April 30, 1993.
Respondent's  delay demonstrates not only a violation  of  the
regulation, but  a  high  degree  of  negligence regarding the
violation.

     Respondent challenges the "significant  and  substantial"
finding in Citation No. 3658696 on the ground that  � 50.11(b)
is not a mandatory safety or health standard and therefore not
within  the  scope of � 104(d)(1).  However, the citation  was
issued under �  104(a),  not  �  104(d).   An  allegation of a
"significant and substantial" violation in a � 104(a) citation
is an allegation of gravity, not an assertion of  jurisdiction
to  apply  the sanctions of � 104(d).  Accordingly, I  do  not
reach the issue  whether  the sanctions of � 104(d) apply to a
violation of Part 50.

     I  find  that  Respondent's  violation  of � 50.11(b) was
significant  and  substantial.   Continued operations  without
investigating the causes of a failure of a refuse pile and the
measures  needed  to  prevent  a recurrence  could  contribute
significantly and substantially  to  another  failure  of  the
refuse  pile  with a risk of serious injury.  In fact, another
failure occurred  little  more  than  three  months  after the
December failure.

     I also find that the violation was due to high negligence.
There was a serious failure of the refuse pile on December 27.
An employee was operating  a  bulldozer on the refuse material
that failed.  The bulldozer, along  with the driver, slid down
a steep slope toward the slurry pond.   The  operator  of  the
bulldozer was frightened by this accident.  This was a serious
accident.  A reasonably prudent operator would have thoroughly
investigated  it   and prepared a report of measures needed to
prevent another failure  of  the  refuse pile.  Respondent did
neither.

     Considering all  the  criteria  for  civil  penalties  in
�  110(i)  of  the Act, I find that a  penalty  of  $3,000  is
appropriate for Respondent's violation of � 50.11(b).

                           Order No. 3768690

     Order No. 3768690 was issued under � 104(d)(1) on April 26,
1993, alleging a violation of � 77.215(f) concerning the
December 27, 1992, incident as follows:

     The refuse being deposited on the mine refuse pile was not
     constructed in such a manner as to prevent accidental sliding
     and shifting of the material, in that, a section of the lay
     down area sheared off at the edge toward the slurry pond.  The
     mine refuse failed causing approximately 35 feet of material
     to slide along with the bulldozer and the operator.  The
     bulldozer slid down the material approximately 34 feet.  There
     were 0 violations issued during the last inspection period 01-
     01-93 through 3-31-93  of C.F.R. 77.215(f).

The order was initially issued as a � 104(a) citation with "high"
negligence, which was modified to "moderate" negligence and then
back to "high."  The citation was modified to a � 104(d)(1) order.
The proposed penalty is $8,000.

     Section 77.215(f) provides:

     Refuse piles shall be constructed in such a manner as to
     prevent accidental sliding and shifting of materials.

     On December 27, 1992, part of the refuse pile failed.  The
shifting and sliding of the refuse material resulted from the
unsafe manner in which the refuse pile was constructed.  Over
the years, refuse material was dumped on the pile and pushed
over the edge toward the slurry pond.  This was done without
an engineering plan and without adherence to accepted
engineering practices to prevent accidental sliding and
shifting of materials.  Accordingly, the refuse pile was
plainly in violation of � 77.215(f).

     For the reasons stated here and in the discussion of Citation
No. 3658639,  below, I find that the violation was significant
and substantial and was due to high negligence and therefore
unwarrantable within the meaning of � 104(d)(1) of the Act.

     Respondent knew that the refuse pile was developed without an
engineering plan to prevent accidental sliding and shifting of
refuse materials.  Its risk-taking in this regard was more
than ordinary negligence.  Continued operations without
abatement of the violation was reasonably likely to result in
serious injury.

     Considering all the criteria for civil penalties in
� 110(i), I find that a penalty of $8,000 is appropriate for
this violation.

      Citation No. 3658639

     Citation No. 3658639 was issued under � 104(a), on April 5,
1993, alleging a violation of 30 C.F.R. � 77.215(f) concerning
the April 2, 1993, incident as follows:

     The refuse being deposited on the mine refuse pile was not
     constructed in such a manner as to prevent accidental sliding
     and shifting of the material, in that, a section of they lay
     down area sheared off into the slurry pond.  The area that
     sheared off has been an area in which mobile equipment has
     been operating.  This citation was one of the factors that
     contributed to the issuance of imminent danger order No.
     3658637 dated 04-02-93.  There was 0 violations issued during
     the last inspection period 10-01-92 through 12-31-92 of C.F.R.
     77.215(f).

The citation initially alleged "moderate" negligence but was
modified first to allege "high" negligence and then "reckless
disregard."  The proposed penalty is $8,500.

     Slope instability was one of the primary factors causing the
failure of the refuse pile.  This was caused, in major part,
by the fact that the refuse pile was developed over the years
by coarse coal refuse being dumped on the refuse pile, pushed
over the edge, and allowed to settle on the fines of the
slurry pond.  Over time, the foundation of the fines of the
slurry pond could not bear the weight of the heavy coarse
refuse deposited on the refuse pile.

     On April 2, 1993, a substantial amount of refuse material
shifted, caved in, and slid into the slurry pond.  The area
that failed was about 350 long, 60 feet high, and 40 feet
wide.  The refuse pile had been constructed over the years
without an engineering plan to prevent the refuse material
from shifting and sliding.  This was plainly  a violation of �
77.215(f).

     I find that the violation was significant and substantial 
in that continued use of vehicles on the unstable refuse pile was
reasonably likely to result in a failure of the pile with
serious injuries.

     I also find that the violation was due to high negligence.
Respondent knew that the refuse pile was not being constructed
in accordance with the engineering requirements for an
impoundment embankment, i.e., in its Impoundment Plan.  This
is clear from Respondent's acknowledgment that before the
refuse pile could be incorporated into the impoundment
embankment, the refuse material would have to be regraded and
compacted.  The regrading and compacting would not be
necessary if the material had been properly graded and
compacted in the first instance.  Respondent also knew from
the December 27 failure of the refuse pile that the refuse
pile was  not being "constructed in such manner as to prevent
accidental sliding and shifting of materials" as required by �
77.215(f).  After the December incident, Respondent continued
the same practice of depositing refuse on the pile and pushing
it over the edge toward the slurry pond.  I find that its
continued violation was due to high negligence.  However, I do
not find that its conduct amounts to "reckless disregard" for
the safety of its employees as alleged in the citation.  The
citation will be modified to change "reckless disregard" to
"high negligence."

     Considering all the criteria for a civil penalty in
� 110(i), I find that a penalty of $8,500 is appropriate for
this violation.


  **FOOTNOTES**

     [1]: Section 103(g) of the Act provides in part: "Whenever a
representative of the  miners or a miner in the case of a coal or
other mine where there is  no  such representative has reasonable
grounds to believe that a violation  of  this  Act or a mandatory
health or safety standard exists, or an imminent  danger  exists,
such  miner  or  representative  shall  have a right to obtain an
immediate inspection by giving notice to  the  Secretary  or  his
authorized representative of such violation or danger."

                         Citation No. 3658640

     Citation No. 3658640 as amended was issued under � 104(d)(1)
on April 5, 1993, alleging a  violation of  30 C.F.R. � 77.215(h)
concerning the April 2, 1993, failure as follows:

          The refuse being deposited on the mine refuse pile was
     not constructed in compacted layers and not exceeding 2 feet
     in thickness and shall not have any slope exceeding 2
     horizontal to 1 vertical (approximately 27 ) in that, the
     refuse was not constructed in compacted layers and did exceed
     the 2 feet in thickness, and the slope exceeded 2 horizontal
     to 1 vertical approximately 27 .  This citation was one of the
     factors that contributed to the issuance of Imminent Danger
     Order No. 3658637 dated 04-02-93.  There was 0 violations
     issued during the last inspection period 10-01-92 through 12-
     31-93 of CFR 77.215(h).

     The regulation requires that refuse piles "shall be
constructed in compacted layers not exceeding 2 feet in
thickness and shall not have any slope exceeding 2 horizontal
to 1 vertical (approximately 27 ). . . ."  The evidence
plainly shows a violation of this regulation.

     The citation alleges a substantial and significant violation
due to high negligence, and therefore an unwarrantable violation. 
The proposed civil penalty is $8,500.

     The refuse material hauled from the 500-ton bin to the refuse
pile was routinely dumped on the refuse pile. It was not compacted
and was not constructed in lifts two feet or less. Most of the 
refuse was simply pushed by bulldozers over the edge of the refuse
pile to make room for more refuse. The refuse pile was not compacted
and constructed in lifts so as not to exceed a 27 degree slope.  
The slope was much steeper.

     I find that the violation of � 77.215(h) was significant 
and substantial.  The safety hazard contributed to was a failure
of the refuse pile.  Continued use of vehicles on the unstable
refuse pile was reasonably likely to result in a failure of
the pile with serious injuries.

     I also find that the violation was due to high negligence,
and therefore was unwarrantable under � 104(d)(1) of the Act.
Respondent knew that the refuse pile was not being constructed
properly and that it posed a high risk to the miners working
on it.  Its conduct was aggravated and showed a serious
disregard for safety.

     Considering all of the criteria for civil penalties in
� 110(i), I find that a penalty of $8,500 is appropriate for
this violation.

                         Citation No. 3658683

     Citation No. 3658683 as amended was issued under � 104(a)(d)(1)
on April 7, 1993, alleging a violation of � 77.215(h) concerning 
the December 27, 1992, incident as follows:

     The refuse being deposited in the mine refuse pile was not
     constructed in compacted layers and did exceed 2 feet in
     thickness and also the slope exceeding horizontal to 1
     vertical approximately 27� resulting in an unstable condition
     in the mine refuse pile inby the 500-ton bin at the edge
     toward the slurry pond.  The mine refuse failed causing
     approximately 35 feet of material to slide along with the
     bulldozer and the operator.  The bulldozer slid down the
     material approximately 34 feet.  There was 0 violations issued
     during the last inspection period 10-01-92 through 12-31-92 of
     C.F.R. 77.215(h).  This citation will be terminated when the
     107(a) Order no. 3658637 is terminated.

The citation was initially issued under � 104(a), alleging a
significant and substantial violation with "high" negligence.  The
negligence was modified to "moderate" and then back to "high."  The
citation was modified to a � 104(d)(1) citation.  The proposed
penalty is $7,000.

     For the reasons stated as to Citation No. 3658640, above, I
find that Respondent violated � 77.215(h) as to its manner of
developing the refuse pile.  The violation concerning the
December 27 failure of the refuse pile was significant and
substantial, due to high negligence, and was therefore an
unwarrantable violation.

     Considering all the criteria in � 110(i), I find that a civil
penalty of $7,000 is appropriate for this violation.


                          Order No. 3658698

     Order No. 3658698 was issued under � 104(d)(1) on May 26,
1993, alleging a violation of � 77.1608(b) concerning the
December 27, 1992, incident as follows:

     The ground where refuse dump trucks were dumping failed and
     the trucks did not start dumping a safe distance back from the
     edge of the refuse bin, in that, an area of the mine refuse
     pile inby the 500-ton bin at the edge toward the slurry pond
     failed causing approximately 35 feet of material to slide
     along with the bulldozer and the operator.  The bulldozer and
     the operator slid down the material approximately 34 feet.
     There was 0 violations issued during the last inspection for
     10-01-92 through 12-31-92 of C.F.R. 77.1608(b).

The order alleges a significant and substantial violation due to
high negligence and an unwarrantable failure to comply.  The
proposed penalty is $9,500.

Section 77.1608(b) provides:

     Where the ground at a dumping place may fail to support the
     weight of a loaded dump truck, trucks shall be dumped a safe
     distance back from the edge of the bank.

     During the investigation in April 1993, Inspector Walter
Daniel received a � 103(g) complaint alleging a failure of the
refuse pile on December 27, 1992.  His investigation revealed
that on December 27 a part of the refuse pile, about 35 feet
wide, had broken away, caved in and slid down toward the
slurry pond.  A miner was operating a bulldozer on the part of
the refuse pile that failed.  The bulldozer was pushing coarse
refuse material over the edge of the refuse pile.  When the
refuse pile failed, the bulldozer slid with the collapsed
material about 35 feet down the slope and was partially buried.
The driver was pulled up the slope with a rope.

     As found above as to violations of � 77.215(f), the refuse
pile was unstable and constructed in violation of � 77.215(f),
which requires that refuse piles be "constructed in such
manner as to prevent accidental sliding and shifting of
materials...."

     Dump trucks traveled on unstable parts of the refuse pile,
including the area that failed, in order to deposit coarse
refuse.  Before the failure in December 1992, a report from
the Pennsylvania Department of Environmental Resources noted
that refuse material was being deposited on the refuse pile.

     I find that Respondent violated � 77.1608(b) by having dump
trucks drive on a refuse pile that might fail to support the
weight of a loaded dump truck.  I also find that the violation
was significant and substantial in that it was reasonably
likely that, if unabated, the violation would result in
serious injury.

     I also find that the violation was "unwarrantable" under
� 104(d)(1) of the Act.  An "unwarrantable" violation has been
determined by the Commission to be aggravated conduct
constituting more than ordinary negligence.  This may be
established by showing that the violative condition or
practice was due to "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable
care." Emery Mining Corp., 9 FMSHRC 1997, 2203-2204 (1987);
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194
(1989); Virginia Crews Coal Co., 15 FMSHRC 2103, 2106-2107
(1993).

     Respondent knew of the longstanding practice of dump trucks
dumping coarse refuse on the refuse pile.  Statements made by
management that they attempted to "encourage" operators to
dump the material closer to the 500-bin is a plain indication
of their awareness of the danger of dumping on the refuse
pile.  Despite awareness of this danger, no reasonable steps
were taken to prevent dump trucks from dumping on an unstable
refuse pile.  The fact that Respondent was aware of the
practice, anticipated the danger, and took no reasonable steps
to prevent danger to the miners constitutes high negligence
and therefore an unwarrantable violation.

     Considering all the criteria in � 110(i), I find that a
penalty of $9,500 is appropriate for this violation.

                         Citation No. 3658700

     Citation No. 3658700 was issued under � 104(a) on June 1,
1993, alleging a violation of 30 C.F.R. � 77.1608(b) concerning 
the April 2, 1993, incident as follows:

     The ground where refuse dump trucks were dumping failed, and
     the trucks did not start dumping a safe distance back room the
     edge of the refuse bank, in that, an area of the mine refuse
     pile inby the 500-ton bin at the edge toward the slurry pond
     failed causing approximately 40 feet of material to slide, the
     area sheared off has been an area in which mobile equipment
     has been operating.  There was 0 violation issued during the
     last inspection period 10-01-92 through 12-31-92 of C.F.R. �
     77.1608(b).

     The citation alleges a significant and substantial violation
due to reckless disregard for safety.  The proposed penalty is
$9,500.

     The regulation requires that "where the ground at a dumping
place may fail to support the weight of a loaded dump truck, trucks
shall be dumped at a safe distance back from the edge of the bank."

     Dump trucks were dumping loads of coarse coal refuse along
the edge of the refuse pile. The refuse pile was not stable. The
trucks were driven on the part of the refuse pile that failed
on April 2.  Photographs of the slide area show the presence
of tire tracks to the edge of the area that broke away.  An
area about 350 long, 50 feet high, and 40 feet wide broke off,
caved in, and slid into the slurry pond.

     I find that loaded dump trucks were operated in an area that
might fail to support the weight of a loaded dump truck. Therefore,
there was a violation of the standard.

     Because of the instability of the refuse pile, it was 
reasonably likely that a failure of the refuse pile would
occur and cause a dump truck to roll over or fall with
collapsed refuse material, resulting in serious injury.  The
violation was therefore significant and substantial.

     Respondent knew in December 1992 that part of the refuse pile
had failed and caused a bulldozer and driver to slide down the
slope, partially burying the bulldozer.  However, Respondent
took no reasonable steps to prevent dump trucks from dumping
on the unstable refuse pile.  By failing to take corrective
action after the December incident, the operator demonstrated
high negligence.  The violation was therefore "unwarrantable"
within the meaning of � 104(d)(1).  However, I do not find
that the facts sustain a finding of "reckless disregard" for
safety.  Accordingly, the citation will be modified to change
"reckless disregard" to "high negligence."

     Considering all the criteria for civil penalties in � 110(i)
of the Act, I find that a penalty of $9,500 is appropriate for 
this violation.

      Imminent Danger

     The immediate dangers presented by the violations found as to
Citation No. 3658639, Citation No. 3658640, Citation No. 3658700,
and Order No. 3658698 combined to create an imminent danger within
the meaning of � 107(a) of the Act on April 5, 1993.

      CONCLUSIONS OF LAW

     1. The judge has jurisdiction in these proceedings.

     2. Respondent violated the safety standards as alleged in the
     following citations and orders (Citation Nos. 3658639 and
     3658700 being modified to delete "reckless disregard" and
     substitute therefor "high negligence"):

     Citation or Order 30 C.F.R.

     Citation No. 3658682  � 50.10

     Citation No. 3658696  � 50.11(b)

     Order No.    3768690  � 77.215(f)

     Citation No. 3658639  � 77.215(f)

     Citation No. 3658640  � 77.215(h)

     Order No.    3658683  � 77.215(h)

     Order No.    3658698  � 77.1608(b)

     Citation No. 3658700  � 77.1608(b)

                                ORDER

     WHEREFORE IT IS ORDERED that:

     1. The term "reckless disregard" in Citation Nos. 3658639 and
     3658700 is deleted and the term "high negligence" is
     substituted therefor.  With the modifications, all citations
     and orders are AFFIRMED.

     2. Within 30 days of the date of this Decision and Order,
     Respondent shall pay civil penalties of $54,400.


                                   William Fauver
                                   Administrative Law Judge


Distribution:

Myrna A. Butkovitz, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., 14480 Gateway Bldg., Philadelphia  PA 
19104  (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll Corp., One Oxford Centre,
301 Grant St., 20th Floor, Pittsburgh, PA  15219-1410 (Certified Mail)

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