.
HOBERT MINING, INC.
September 4, 1997
WEVA 97-11


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          September 4, 1997


SECRETARY OF LABOR,                 :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA),            :
               Petitioner           :   Docket No.  WEVA 97-11
                                    :    A. C. No.  46-06750-03578
          v.                        :
                                    :   Peats Branch No. 3 Mine
HOBET MINING, INC.,                 :
               Respondent           :


                     DECISION

Appearances:  Pamela Silverman, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the Secretary;

William C. Miller II, Esq., Jackson and Kelly, Charleston,
West Virginia, for the Respondent.

Before:  Judge Melick

     This case is before me upon the petition for civil penalty
filed by the Secretary of Labor against Hobet Mining, Inc.
(Hobet) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq., the "Act" seeking a
civil penalty of $2,072 for one violation of the mandatory
standard at 30 C.F.R. � 77.409.

     The citation at bar, Citation No. 4401472, alleges as
follows:

          The model 8,200 Marrion [sic] dragline co No.
     113417 was being operated in the presence of persons
     (rock truck drivers) exposed to hazard from its
     operations in that the boom and bucket of said dragline
     was being operated, swung, loaded, and empty over top
     of the trucks and drivers hauling spoil out of No. 1
     shovel pit.  This citation was issued in conjunction
     with imminent danger order 4401471 therefore no
     abatement date or time was set.

     The cited standard, 30 C.F.R. � 77.409(a), provides in
relevant part that "shovels, draglines, and tractors shall not be
operated in the presence of any person exposed to a hazard from
its operation . . ."

     Experienced Mine Safety and Health Administration (MSHA)
Inspector Ernest Thompson was assigned to the subject Peats
Branch No. 3 Mine.  The operation involves the removal of
mountain overburden to reach multiple coal seams.  End loaders,
shovels, and draglines are utilized in the process.  Inspector
Thompson arrived at the mine around 8:00 a.m., on the morning of
September 4, 1996.  Commencing his inspection he was driving on
the haul road toward the pit about 200 to 300 yards behind union
representative Danny Spencer and West Virginia State Mine
Inspector Randall Bailey.  At a point where the haul road
narrowed and began a curve and about 50 feet away, Thompson
observed the dragline bucket cross over the haul road 30 to 40
feet above.  The dragline was digging on the left, turning 180
degrees and dropping spoil material.

     The bucket also passed directly over a haulage truck at a
time when Thompson was 100 to 150 yards away.  State Mine
Inspector Bailey agreed with Thompson that the bucket had passed
right over the truck.  Thompson therefore asked Bailey to bring
the pit foreman to the scene.  When pit foreman Jay Curry
arrived, Thompson told him to have the bucket swing over the
curve.  Curry made the request by radio but was told by the
dragline operator that he had lost power.  Curry thereupon drove
up to the dragline.  Within 15 or 20 minutes Thompson saw the
dragline tramming back from the road.  Thompson subsequently
asked Curry why he did not have the bucket dropped as was
requested and Curry responded that he "didn't want to lose any
more time, so he decided to move the dragline" (Tr. 32).

     According to Thompson, the subject dragline had a 72 cubic
yard bucket capable of holding approximately 100 tons of
material.  Thompson estimated the bucket to be 13 to 14 feet
across at the lip, about 15 to 16 feet high and 14 to 15 feet
deep.  The boom was about 320 feet long.

     Thompson opined that the violation was "significant and
substantial" because the bucket was being swung over an occupied
haul truck and there was a "possibility" of a rock dropping on
the truck, a piece of the bucket breaking off, the bucket itself
falling or the brakes failing.  He noted that when the bucket was
full loose material would fall off.  He had also seen loose rock
riding in the rigging of the dragline.  He further noted that the
buckets get "beat up," the teeth get broken and the spreader bar
can break.  Hoist ropes can also break or unravel with the
potential of causing serious injuries to a haul truck driver.
Thompson also opined that the dragline operator could accidently
pull the wrong lever and inadvertently drop the boom and/or load
onto a haulage truck.  Thompson opined that it was reasonably
likely for an accident to occur and for the resulting injuries to
be fatal.  Thompson also concluded that the operator was
moderately negligent because the foreman "should have known" of
the violative practice.

     Randall Bailey, a surface mine inspector for the West
Virginia Office of Miners Health Safety and Training,
corroborated the testimony of Thompson in significant respects.
He too observed the dragline bucket swing over the haulage road
and, more specifically, observed the bucket directly over the
haulage truck.  Bailey also heard Thompson tell pit foreman Curry
to lower the bucket to the road to determine its reach.  This was
not done and, after Curry left to go to the dragline, Bailey
observed that its lights went out.  Driving up to the dragline he
observed that it had been moved.  Bailey cited the operator for
this incident for a violation of West Virginia law (Government
Exhibit No. 5) and the operator paid the violation without
contesting it.

     Based on the credible testimony of both the Federal and
state mine inspectors, I conclude that the violation is proven as
charged and was "significant and substantial."  A violation is
"significant and substantial" if, based on 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.  Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:

          In order to establish that a violation of a
     mandatory standard is significant and substantial under
     National Gypsum the Secretary must prove:

          (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 violations,
          (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 reasonable serious
          nature.

          See also Austin Power Co. v. Secretary, 861 F.2d
     99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
     (December 1987) (approving Mathies criteria).

          The third element of the Mathies formula requires
     that the Secretary establish a reasonable likelihood
     that the hazard contributed to will result in an injury
     (U. S. Steel Mining Co.), 6FMSHRC 1834, 1836 (August
     1984), and also that the likelihood of injury be
     evaluated in terms of continued normal mining
     operations.  U. S. Steel Mining Co., Inc.,
     6 FMSHRC 1573, 1574 (July 1984); See also Halfway,
     Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio
     Coal Co., 13 FMSHRC 912, 916-17 (June 1991).

     In reaching these conclusions I have not disregarded the
testimony of pit foreman William Curry that he had earlier had
the dragline operator swing the bucket and drop it in the
direction of the haulage road.  However, he did not have the
bucket dropped at the point where the inspectors later requested
him to do so.  Curry further acknowledged that following
Inspector Thompson's specific request to drop the bucket where
requested, he decided to move the dragline.  His explanation for
failing to comply with the request strongly suggests that he knew
of the violative practice (Tr. 180-182).

     I have also not disregarded the testimony of dragline
operator Joseph Dever, that early in the shift he had cast the
bucket toward the road but found that it did not reach.  I
conclude however that he must not have cast the bucket in the
direction in which inspectors had observed the bucket swinging
over the road.  Under all the circumstances I can give Dever's
testimony but little weight.

     I must also conclude based on the credible observations of
the two inspectors that the points at which Hobert's surveyor,
Gary Joe Lane, was shown by Foreman Curry to begin his
measurements must not have been the actual location of the
dragline at the time of the violation.  Accordingly, the
testimony of Lane is likewise entitled to but little weight.

     I find that the cited condition was obvious and therefore
should have been observed by responsible management.  I therefore
accept the Secretary's contention that the operator is chargeable
with moderate negligence.  Considering all the criteria under
section 110(i) of the Act, I find that a civil penalty of $2,000
is appropriate for the violation herein.

                              ORDER

     Hobet Mining, Inc. is DIRECTED to pay a civil penalty of
$2,000 within 30 days of the date of this decision.

                                      Gary Melick
                                      Administrative Law Judge

Distribution:

Pamela Silverman, Esq., Office of the Solicitor,
U. S. Department of Labor, 2015 Wilson Boulevard,
Suite 400, Arlington, VA 22203
(Certified Mail)

William C. Miller II, Esq., Jackson & Kelly,
1600 Laidley Tower, P. O. Box 553, Charleston, WV 25322
(Certified Mail)

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