.
S & M CONSTRUCTION INC.
March 12, 1997
WEST 96-253


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                            March 12, 1997

SECRETARY OF LABOR,            :   CIVIL PENALTY PROCEEDINGS
 MINE SAFETY AND HEALTH        :
 ADMINISTRATION (MSHA),        :   Docket No. WEST 96-253
               Petitioner      :   A.C. No. 48-01215-03525
          v.                   :
                               :   Docket No. WEST 96-254
S & M CONSTRUCTION INC.,       :   A.C. No. 48-01215-03526
               Respondent      :
                               :   Coal Creek Mine

                             DECISION

Appearances: Tambra  Leonard,  Esq., Margaret  A.  Miller,  Esq.,
             (On  Brief),  U.S. Department of  Labor, Office  of 
             the Solicitor, Denver, Colorado, for the Petitioner;
             Stephen   Kepp,  S  &  M  Construction,  Gillette,
             Wyoming,  and   J.  Stan  Wolfe,  Esq.,  Gillette,
             Wyoming (On Brief), for the Respondent.

Before: Judge Weisberger

                      Statement of the Case

     These  cases  are  before  me  based   upon   petitions  for
assessment   of   penalty   filed   by  the  Secretary  of  Labor
(Secretary),  alleging  violations  of various  mandatory  safety
regulations  set  forth  in  Title  30 of  the  Code  of  Federal
Regulations  by S & M Construction Incorporated  ("S  &  M").   A
hearing was held  on  October 22, 1996, in Gillette, Wyoming.  On
December 9, 1996, the Secretary  filed  a Post-Hearing Brief.  On
December  11,  1996, S & M filed Proposed Findings  of  Fact  and
Conclusions of Law.   On  December  26, 1996, S & M Filed a Reply
Brief.

I.   Docket No. WEST 96-254

     S & M performs mining operations  at  the Thunder Basin Coal
Company's Coal Creek Mine.  After coal is mined  and  crushed, it
is transported to a 200 foot high silo for storage.  In  order to
remove coal dust from the air at various coal transfer points  in
the  operation, a fan pulls the air filled with coal dust through
a duct  from  the  silo  to a baghouse.  The baghouse is approxi-
mately 38 feet high, 10 feet  in  diameter, and is located at the
top of the silo.  When the air filled  with  coal dust enters the
baghouse, the coal dust is filtered out of the  air by way of 368
ten foot long bags that hang vertically inside the  baghouse.   A
rotating  air jet knocks the dust from the bag, and the dust then
drops down through a funnel shaped cone where it is expelled from
the baghouse  through  a rotating valve.  If the coal dust is not
expelled properly throughout  the valve, it can accumulate inside
the baghouse.  If the accumulation  of  dust  reaches  a level of
five  feet  and  eight  inches from the floor of the baghouse,  a
sensor located at that level  inside the baghouse shuts off power
to the fan so that air laden with  coal  dust  is no longer being
drawn to the baghouse.

     On  August 27, 1995, Inspector Herbert A. Skeens,  inspected
the subject  site pursuant to an investigation of a fire that had
occurred there the previous day.  He observed sparks falling from
the horizontal  beam inside the silo.  He issued a section 107(a)
withdrawal order  covering  the  silo,  an  adjacent  silo, and a
conveyor,  but  did  not  allege  the  violation  of any specific
mandatory safety standard.[1]

     Skeens set forth the following sequence of events  based  on
his  investigation[2]:  the sensor had tripped the fan on Monday,
August 21, 1996; miners tried  two  to  three  times to reset the
power  to  the  fan without checking to diagnose and  repair  the
problem; several  hours later they succeeded in getting the power
running but that the sensor tripped the power to the fan again on
August 22, 1996; miners  tried several times to restart the power
without  diagnosing  or  trying  repair  the  problem,  but  were
unsuccessful; the baghouse  was  unattended  from August 22 until
August 26; on August 25, a miner detected the  smell  of  burning
coal  and  suspected  a fire; the coal silo was emptied and water
was sprayed into the silo; and on August 26, smoke was discovered
coming from the top of  the  silo,  and  firefighters were called
from  the  neighboring  black thunder mine, but  they  could  not
control the fire.  The Campbell  county  fire department was then
called and extinguished the fire in the baghouse.

     Skeens issued a Citation alleging a violation of 30 C.F.R.
�  77.404(a),  which  provides  as  follows:  "[m]obile  and
stationary machinery  and  equipment  shall  be  maintained in
safe  operating  condition  and  machinery  or equipment in unsafe
condition shall be removed from service immediately."

     It appears to be the position of the Secretary  as argued
by Counsel  in  her  post-hearing brief, and as articulated by
Skeens in the citation  he  wrote and in his  testimony, that
the baghouse was not  in a safe  condition.   This conclusion
appears  to  be  based  upon the existence of the  following
"facts":  the sensor had been   tripped  on  August  21  and
August 22,  coal  dust had accumulated in the baghouse to at
least the level of  the  sensor  i.e.,  five  feet and eight
inches, and that the resulting accumulation was  not cleaned
up.   However,  the  Secretary  has failed to establish  the
existence  of  these  facts based upon  competent  evidence.
Skeens did not have any  personal knowledge of the existence
of  these  conditions.   His   testimony   regarding   these
conditions  was  based  solely  upon information he gathered
during an investigation, and inferences  he  drew  from that
information.  In support of her case, the Secretary  did not
proffer   the  testimony  of  any  persons  having  personal
knowledge regarding  the  existence  of the above conditions
that   are   relied  upon.   Nor  is  there  any   competent
documentary  evidence   in   the   record   to  support  the
Secretary's  position.   S  &  M introduced in evidence  six
pages  of handwritten notes (Defendant's  Exh.  R-1)  which,
according  to  its  representative,  are part of an Activity
Report prepared by the control room operator.   However, the
person or persons who prepared this report where  not called
to testify, and hence there is no explanation in the  record
for any of the entries, some of which are ambiguous.  I thus
find  that  the Secretary has failed to establish by way  of
competent evidence,  the  existence  of the facts she relies
upon to establish the violation herein.[3]
For all these I find that the Secretary has failed
to establish that S & M violated Section 77.404(a).
Accordingly, Citation No. 4058552 shall be dismissed, and
Docket No. WEST 96-254 shall be dismissed.

II.   Docket No. WEST 96-253

      A. Citation No. 9894926, and Order No. 4058625

         1.  Background

     Sometime  prior  to September 19, 1994,  a  designated  work
position 001-0375 (375) had been established for a 14G Caterpillar
road grader at the Campbell Creek Mine operated  by S & M. 
Respirable  dust  sampling  taken  on  September 14, 1994,
for the designated work position 375, designated  work
position  368,  a  rubber  tire  dozer,  and designated work
position  310,  indicated  that  the  former  two   were  in
compliance  but  that  the  designated work position 310,  a
Caterpillar scraper, was not in compliance.  Stephen Kepp, S
&  M's  Safety  Director,  indicated  that  the  Caterpillar
scraper was then removed from  service, and was removed from
the  mine  property.   According  to   Kepp,  in  subsequent
telephone   conversations  with  Leo  Boatwright,   of   the
McAlister, Oklahoma MSHA office, the former advised him that
the designated  work  position that had been established for
the Caterpillar scraper  was abandoned.  Kepp indicated that
Boatwright  also  informed  him   not  to  worry  about  any
citations that would be subsequently computer generated.

     A  computer  generated  notice to S &  M  from  MSHA,  dated
February 7, 1995, advised  that  MSHA had not received valid
samples for the designated work occupation 375 for December-
January 1995. A similar notice was generated April 10, 1995,
for the period February-March  1995.   On  June  7,  1995, a
similar notice was generated for the period April-May  1995.
On  June  8,  1995, Citation No. 9894915 was issued alleging
that there was no dust sample received for the period April-
May  1995, for the  designated  work  position,  375.   This
citation  was  abated  on  August 16, 1995, based on a valid
sample taken on July 20, 1995.

     On October 13, 1995, Citation No. 9894926 was issued to
S & M alleging that 30 C.F.R. � 71.208 was violated as there
was no sample taken for the  designated work position 375 in
the Bi-monthly period August-September 1995. The citation set
November 15, 1995, as the termination date.

     On December 5, 1995, Skeens issued a section  104(b) Order
(No.  4058625),  alleging  that  no apparent effort  had  been
made to collect a respirable dust  sample  on the  designated
work position  375.  Skeens subsequently modified  the order
to  allow  the  Caterpilar  grader  to  be  operated for the
collection of a dust sample on the designated  work position
375.  However, Skeens subsequently reinstated the  order  on
the ground that a respirable dust sample had not been taken.
This order was finally terminated on January 30, 1996.

        2.  Discussion

    It appears to be S & M's argument that, since sampling of
the  grader  on  September  14,  1994,  indicated  that it was in
compliance  with  the  applicable  standard,  no designated  work
position  should  have  been subsequently established.   For  the
reasons that follow, I find  this  argument  to  be  without  any
merit.

     30  C.F.R. � 71.208(e) provides, as pertinent, that the MSHA
District Manager  shall designate work positions at each mine for
Respirable dust sampling.  30 C.F.R. � 71.208(f), provides that a
designation of a work  position  for  sampling is to be withdrawn
upon  a finding that " . . . the operator  is  able  to  maintain
continuing   compliance   with  the  applicable  respirable  dust
standard  .  .  .  ."    Section  71.208(f)  supra,  goes  on  to
specifically sets forth the  required  basis  for this finding as
follows: "[t]his finding shall be based on the results of samples
taken during at least a one-year period under this  part  and  by
MSHA".

     The  record  does not contain any evidence to establish that
in  at  least a one-year  period  results  of  sampling  by  MSHA
indicated  compliance  for  the  designated  work  position  375.
Accordingly, it was clearly proper for MSHA to continue requiring
sampling on the designated work position 375.

     30  C.F.R.  �  71.208(a)  provides,  in  essence,  that  the
operator  shall  take  one valid respirable dust sample from each
designated work position  during each bi-monthly period.  The bi-
monthly periods are set forth as follows:  February 1 - March 31,
April  - May 31, June 1 - July  31,  August  1  -  September  30,
October  1 - November 30, and December 1 - January 31.  S & M has
not presented  any  facts or argument to challenge the allegation
set forth in the citation at issue that no samples were submitted
for the bi-monthly period August - September 1995.  In essence,
S & M argues that Kemp  was confused regarding the requirement to
sample  for  work  occupation  375.   In  this  connection,  Kepp
referred  to a conversation  that  he  had  with  Boatwright  who
advised him that the designated work position of the Caterpilar
scraper was  being abandoned, and that he should not be concerned
about  any  citations   that   would   be  subsequently  computer
generated.

     The regulatory scheme set forth in  Title  30 imposes strict
liability  upon  an  operator.   (Asarco,  Incorporated-Northwest
Mining Dept., 8 FMSHRC 1632 (1986) aff'd, 868 F2d 1195 (10th Cir,
1989)).  The operator is not allowed to escape  compliance  based
upon any confusion.  I thus reject S & M's argument.

     I  find  that  it  has been established that no samples were
submitted for the period August-September 1995.  Accordingly, the
citation at issue was properly  issued,  as  S  &  M  did violate
Section 71.208 supra.

     Citation No. 9894926 set a termination date of November  15,
1995.  S & M did not comply with this date.  S & M did not submit
any sample between October 13, 1995, the date of the citation and
the termination date of November 15, 1995.

     S  &  M  has not specifically challenged the issuance of the
104(b) order.  The time set for termination was more than 30 days
beyond the date  of  the original citation.  There is no evidence
in the record of any technical  or  other  difficulty  that would
have  prevented  S & M  from  submitting samples by November  15,
1995.[4]

     Based  on  all  the above, I  find  that  it  has  not  been
established that there  was  any  abuse of abuse of discretion in
the issuance of the Section 104(b)  order,  that  it was properly
issued, and that S & M did violate the Section 104(b) order.

         3. Penalty

     In essence, it is the position of S & M that any  penalty to
be  assessed  should  be reduced on the ground that there was  no
negligence on its part  relating  to  the violation.  S & M takes
the position that it was of the opinion  that it was not required
to  sample  the  375  designated  work  occupation,  because  the
sampling on September 14, 1994, of that position  did  not exceed
the pertinent standard.  However, subsequent to that date,  S & M
was  put on notice that it was required by MSHA to submit testing
for that  position,  and  that such testing had not been received
for  the following bi-monthly  periods:   December-January  1995,
February-March  1995,  and  April-May 1995.  Also, in response to
the issuance of citation on June  8, 1995, based upon the failure
to submit a sample for the bi-monthly period April-May 1995,
S & M had a valid sample taken on designated work position 375 on
July 20, 1995.  Hence, when the instant  citation  was  issued on
October 13, 1995, based on the failure to have submitted a sample
for  the period August-September 1995, S & M clearly should  have
known  of  its  responsibility in this regard.  I do not put much
weight on Kepp's  testimony that, in telephone conversations with
Boatwright, the latter told him not to worry about any subsequent
citations that might  be  computer  generated,  as the designated
work  position  that  had  been  established  for the Caterpillar
scraper had been abandoned.  This alleged statement by Boatwright
has no bearing on the obligation of S & M to submit  a sample for
the designated work position at issue, i.e., 375, the 14G grader.
I  thus  find  that  S  &  M's  negligence  was  relatively high.
However,  in reviewing the history of violations, Exhibit P-1,  I
conclude that  the  number  of  violations from April 18, 1994 to
February  6, 1996, 35, is not inordinately  high.   According  to
Skeens,  and  not  contradicted  or  impeached  by  S  &  M,  the
designated work position at issue had previously been tested, and
a dust reading  of  1.0  m.g.  per cubic meter was the result.  I
accept Skeens' uncontradicted testimony  that dust samples at the
mine site at issue "have been found to contain  as  high  as  12-
percent quartz silica" (Tr. 130).  (Emphasis added).  Further,  I
accept Skeens' testimony that exposure to quartz silica can cause
lung  disease.  I find that the level of gravity of the violation
was moderate.   Taking  all of these factors into account, I find
that a penalty of $1,000 is appropriate.

     B.   Citation No. 4058621

          1.   Violation of 30 C.F.R. � 72.620

     On December 5, 1995,  while in the Pit area, Skeens observed
a truck mounted drill, drilling  into  overburden  consisting  of
rock, shell and dirt.  When Skeens was about 1,000 feet away from
the  drill,  he  saw a cloud of dust billowing around the rear of
the drill.  He estimated that the cloud of dust was approximately
15 feet by 15 feet.  When Skeen approached the drill, he saw that
the operator was sitting  on the seat of the drill located on the
cab, but both doors were opened, and the operator was hanging out
the  side  of  the cab.  According  to  Skeens,  the  helper  was
standing within  a  few  feet of the hole that was being drilled.
Skeens said that both the  operator  and  the helper were covered
with  yellowish-brown dust.  According to Skeens, no dust control
measure was being used.

     Skeens  issued  a  Section  104(d)(1)  citation  alleging  a
violation of 30 C.F.R. � 72.620 which provides  as  pertinent, as
follows:   "[h]oles shall be collared and drilled wet,  or  other
effective dust  control measures shall be used when drilling non-
water soluble material."  It appears to be S & M's position, as a
defense to this matter, that the testimony did not establish the

contents of the dust  flowing  from  the  drill hole.  S & M also
asserts that the water dust suppression although  not  being used
was operable.  Kepp  testified  that  on  the  previous  day  the
operator  using  the  water  system " . . . had plugged the hole"
(Tr. 174).

     Kepp  who was present during  Skeens'  inspection,  did  not
contradict the  latter's testimony that, in essence, dust control
measures were not  being  used.   Nor  did  he contradict Skeens'
testimony that the material being drilled was  non-water soluble.
Nor did Kepp did indicate that the holes were in any way collared
or being drilled wet.  I thus accept Skeens' testimony,  and find
that S & M did violate Section 72.620 supra.

         2.    Significant and Substantial

     A  "significant  and substantial" 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 coal or other  mine  safety  or  health  hazard."
30 C.F.R.  �  814(d)(1).   A  violation  is  properly  designated
significant and substantial "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 explained its  interpretation of the term "significant
and substantial" as follows:

          In  order  to establish  that  a  violation  of  a
     mandatory   safety    standard   is   significant   and
     substantial  under National  Gypsum  the  Secretary  of
     Labor 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  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.

     In United States Steel Mining Company,  Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:

          We  have explained further that the third  element
     of the Mathies  formula  "requires  that  the Secretary
     establish  a  reasonable  likelihood  that  the  hazard
     contributed  to will result in an event in which  there
     is an injury."   U.S.  Steel Mining Co., 6 FMSHRC 1834,
     1836  (August  1984).   We  have  emphasized  that,  in
     accordance with the language  of  section 104(d)(1), it
     is the contribution of a violation  to  the  cause  and
     effect  of  a  hazard  that  must  be  significant  and
     substantial.  U.S. Steel Mining Company, Inc., 6 FMSHRC
     1866,  1868  (August  1984); U.S. Steel Mining Company,
     Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

     As discussed above, the  evidence  establishes  that Section
77.620  supra,  was  violated by S & M.  (See, II(B)(1),  infra).
Further, S & M did not  object to the introduction in evidence of
two statements issued by  MSHA  (Exhibits  P-20  and P-21), which
explain that exposure to dust containing silica from drilling can
cause silicosis.  Hence, the second element of Mathies  has  been
met.  According to Skeens, as observed by him, the drill operator
and  the  helper  were both exposed to the cloud of dust produced
because drilling took  place  in  the  absence  of  dust  control
measures.   Kepp  testified  that  the  two  individuals involved
"don't pay a great amount of attention to personal hygiene,"
(Tr. 173), and accordingly argued that any dust  on  them did not
necessarily  get there on December 5.  I find this testimony  too
hypothetical and  reject  it.   I  also take cognizance of Kepp's
testimony   as   follows   reqarding  the  placement   of   these
individuals:

          The weather conditions  that particular day were a
     brisk wind blowing out of the  north  at 20 to 25 miles
     an  hour.   I  remember this very well, because  I  was
     cold.  The drill  was  --  the motor carrier was facing
     west.

          That means that the drill  operator and the helper
     would have been north of the bore hole.  Therefore, any
     dust cloud that would have been generated  by the drill
     would  have  blown to the south and away from  the  two
     individuals (Emphasis added.) (Tr. 173-174).

     I find this testimony  as  to  where the location of the two
individuals would have been, and where  the location of the cloud
dust  would have been, to be hypothetical,  and  insufficient  to
contradict  the specific eyewitness testimony of Skeens as to his
observations  of the individuals, and their locations relative to
the cloud of dust.   Skeens  assumed  that the miners in question
were  exposed  to  silica dust.  However,  the  record  does  not
establish  this  fact.   Here   is   no  evidence  regarding  the
composition  of  the  dust  cloud  and  the  specific  overburden
material  that  was  being  drilled.   Keep,  in  discussing  his
allegation that the drill operator had plugged the hole using the
water system the previous day stated that this  occurred "because
the   drill  was  working  in  overburden  in  a  clay  material"
(Tr. 174).  This statement alone is insufficient to establish the
composition  of  the  overburden.    Skeens  was  asked  what the
material  consisted  of,  and  he stated as follows: "[i]t was  a
combination of rock and shale and  dirt.   I don't know the exact
identity of the strata" (Tr. 158).

     However,  it  is  significant  to  note  the  uncontradicted
testimony of Skeens that dust samplers collected at the mine have
been  found to contain as high as 12 percent quartz  silica.   In
addition,  I  note  the  following:  the testimony of Skeens that
exposure to quartz silica can cause lung disease, the significant
size of the cloud dust at issue, and the proximity of the exposed
miners to the cloud dust as  observed  by  Skeens.   Within  this
context,  I  find  that the third and fourth elements in Mathies,
supra, have been met.  Accordingly, I find that the violation was
S & S.

          3.  Unwarrantable Failure

     In an earlier inspection  on  March  19,  1995,  Skeens
had observed   an  independent  contractor  drilling  blast
holes.  He said that dust was being generated, although
no miners were  exposed.   According  to Skeens, in the
presence of Kepp he talked to the miners  " . . . about
compliance  with  72.620"  (Tr.  161).   According   to
Skeens,  he  spoke  to  the  independent  contractor as
follows: "And I told them if they didn't get  some dust
control  on  that  drill  it was a matter of time until
they  were  going  to  get caught,  because  they  were
gambling on which direction the wind blowed" (Tr. 162).

     Also, according to Skeens, the dust cloud at issue was
seen by  him when he was 1,000 feet  away.   Hence, it was
obvious  that  dust  control  measures were not in use.
Skeens indicated that when he asked  one  of the miners
present  how  long the drill had  been "belching  drill
dust", the response was "[a]bout six months" (Tr. 167).
This miner was  not  called  to testify.  I thus do not
place  much weight upon Skeens'  hearsay  testimony  in
this regard.  The Secretary relies on Skeens' testimony
that on  November  17, 1994, Inspector Doug Liller went
to the mine, and distributed  literature concerning the
hazards of exposure to silica.  However, Skeens did not
have any personal knowledge of  these  facts, as Skeens
was  not  present  when Liller went to the  mine.   The
Secretary did not call  Liller  to testify to establish
these  facts.   I  thus  place no weight  upon  Skeens'
hearsay testimony in these regards.

     In contrast, Kepp testified that  S & M had owned that drill
for six months; that it is incorrect  that  it  was not operated
for  six months with no dust control measures being used; and 
that S & M had "to take  the  drill  down  because the water
pump did freeze up; it broke.  And the  drill  did  not
work  until the water pump was replaced" (Tr. 175).  He
also indicated  that  on  the previous day the operator
using  the water system "had  plugged  the  hole"  (Tr.
174).   I  observed  Kepp's  demeanor,  and  found  him
credible.   I  find that there is insufficient evidence
that the violative  condition  had existed for a length
of  time as to establish that S &  M's  negligence  was
more than ordinary.

     Within the above framework, I find that the level of S & M's
did  not   reach  aggravated  conduct.   As  such,  the violation 
did not result from its unwarrantable failure  (c.f., Emery Mining
Corp., 9 FMSHRC 1997 (1987)).

          4. Penalty

     I find that the miners  in  question  were  working in close
proximity to the dust that contained silica.  Hence  I  find that
the violation was of a high level of gravity.

     For the reasons set forth above, II (C)(3), I find that
S  & M was negligent to only a moderate degree in connection
with  the  violation.   I  find  that a penalty of $2,000 is
appropriate for this violation.

     C.   Order 4058624.

          1. Violation of 30 C.F.R. � 77.1605

     On  December  5,  1995,  Skeens observed  approximately  six
scrapers  on  the top of a coal highwall.   Skeens  observed  the
scrapers driving  perpendicular  to the edge of the highwall, and
then making a U-turn.  The high wall  was 22 feet high, and there
was a "nearly vertical" (Tr. 178), drop  off  at  the edge of the
highwall.  There was no berm provided on the outer  bank  of  the
highwall.

     Skeens  issued  an  order under Section 104(d)(1) alleging a
violation of 30 C.F.R. � 77.1605(k)  which provides that "[b]erms
or  guards  shall  be  provided  on the outer  bank  of  elevated
roadways."  According to Kepp, the  scrapers  were being operated
on the horizontal surface of a coal seam.  They  were  being used
to remove the final amount of the overburden off the coal  so  it
could be drilled and shot.

     There  is  no  evidence  in  the  record  as  to whether, as
understood  in the mining industry, the term "elevated  roadway",
encompasses the  area  in  question.   It  is  manifest  that the
requirement  of  a  berm  in  Section 77.1605(k) is to prevent  a
vehicle from over traveling the  edge  of  the highwall.  Clearly
this hazard arises when vehicles traverse the area in question in
order  to  remove  overburden.  The common meaning  of  the  term
"roadway," as set forth  in  Webster's  Third  New  International
Dictionary (1986 Edition), is as follows:  "1(b) the  part  of  a
road  over  which  vehicle  traffic  travels".   Clearly vehicles
travel the area in question.  I find that it would be contrary to
the regulatory intent of Section 77,1605(k), supra,  to carve out
an  exception, and not require berms in a situation where  trucks
travel  in order to remove overburden.  Hence, I find that it has
been established that S & M did violate Section 77.1605(k).

         2.    Significant and Substantial

     In  support of its  position  that  the  violation  was
significant and substantial,  the  Secretary argues that the
highwall could have failed, and that  "  .  .  . any type of
steering  or brake problem, if it occurred on one  of  those
scrapers making  a turn that close to the edge, could create
some big problem for the operator, and probably result in an
accident." (Tr. 184).   According to Skeens, he had observed
tracks  within  12 feet of  the  edge  of  the  coal  bench.
However, he did not  testify  as  to  the  distance  that he
observed  trucks normally operating in relation to the  edge
of the highwall.   Nor  is  there  any other evidence in the
record  as  to  how close to the edge of  the  highwall  the
trucks traveled in  their  normal  operation.   There  is no
evidence  that   the truck's brakes, or any other mechanical
part was defective.   Within the framework of this evidence,
I find that although the  record  establishes that a scraper
could have traveled over the edge of  the  highwall,  it has
not  been  established that the such an event was reasonably
likely to have  occurred.   I thus find that it has not been
establishes   that  the  violation   was   significant   and
substantial.

         3.  Unwarrantable Failure

     A Section 104(d)(1) order can be upheld only if there had
previously  been  issued  a  valid  citation  under  Section
104(d)(1) of the Act.  As set forth above,  II (C)(1) infra,
the previously issued citation under Section  104(d)(1),  is
not  upheld.   Hence, the instant order issued under Section
104(d) shall be reduced to a Section 104(a) citation.

         4.  Penalty

     According to Skeens, on December 5, he had spoken to one
of the supervisors who told him that  he knew that a berm was
required,  but  that he had removed it earlier  that  shift.
Kepp indicated that  a  supervisor  was in the area, and was
guiding and directing scraper operators  as  they  came into
the cut area.  It is not clear from the record whether  this
statement  is  based  upon  an actual observation of Kepp on
December 5, or upon his description  in  general  of  mining
practices.   In  essence,  Kepp  argued  that  S & M was not
negligent since when it was cited it was in the  final stage
of  its  operation,  i.e.,  cleaning  the  top  of  coal  in
preparation for a shot.



     I  find that since the berm  was  intentionally removed,
S & M's  conduct  herein  constituted  a  high   degree   of
negligence.   Further, considering the height of the edge of
the highwall from  the  ground  below, and the fact the drop
off  was  steep,  I  find  that  should   a   vehicle   have
overtravelled  the  edge  of  the highwall, a serious injury
could have resulted.  I find that  a  penalty  of  $2,000 is
appropriate.

      D.  Order No. 4058628

         1.  Violation of 30 C.F.R � 1606(c)

     On December 6, 1995, Skeens observed that a rear tire of a
trailer  attached to a truck had an area of missing  tread  on
the surface  of  the  tire that makes contact with the  road.
Skeens indicated that he was able to see the nylon cords and
belts that are normally  covered  by  the tread.  Skeens was
concerned about the hazard of a blowout  of  this  tire, and
issued  a order under Section 104(d)(1) of the Act, alleging
a violation  of  30  C.F.R.  � 1606(c)  which  provides that
"[e]quipment  defects  affecting  safety  shall be corrected
before the equipment is used."

     Two front tires and four rear tires were located on the
truck.  Four rear tires,  two  on each side, were located on
the trailer.  The cited tire was  the  outside  rear tire of
the  trailer.   The  outside  diameter  of the tire was  100
inches, the width of the tread of the tire was approximately
27 inches, and the circumference of the tire was 330 inches.
The  area  of  the  tire  tread  that was missing  and  that
revealed the inner nylon cords and belts was 13 inches wide,
and   extended   for   72   inches.    The  tire   contained
approximately 90 pounds of air per square inch.

     Essentially, it appears to be S & M's position, that if 
the area of the tread that was missing was penetrated by some
object,  the tire would become flat and would not suffer any
explosive  blowout.   In  support  of  this  position,  Kepp
testified that since the tire was on the trailer, it was not
subject   to  the  stresses  of  steering  or  acceleration.
Accordingly,  it is S & M's position that the tire was safe.
In contrast, Skeens  cited  an  instance  where a worn truck
tire had blown, and referred to studies
" . . . where tires have thrown pieces of debris 300 yards"
(Tr. 210).

     Considering Skeens' uncontradicted testimony that the air
ressure in the tire was 90 pounds per  square inch, and  that
he  area  where the nylon cords were exposed extended for  a
onsiderable  portion of the radius of the tire, I find that
he defect to the  tire  noted  by Skeens did affect safety.
ince it was being used and the defect  was not corrected, I
ind that S & M did violate Section 77.1606(c) supra.



          2.  Significant and Substantial

     According to Kepp, in essence, the likelihood of an injury
causing event was remote since the cited tire was  located  on
the trailer, and not subject to the stresses of  acceleration
and  steering.   He  also  noted  that  the truck is usually
driven at speeds from only two to three miles an hour, up to
20 miles an hour.  However, he conceded that "rocks and bits
of  coal"  are "present on the roadway" "on  occasion"  (Tr.
227).  Also,  he  conceded  that tires with a bulge can blow
out.  Further, Kepp indicated  that  the driver of the truck
in question, and the loader/operator,  would  be  exposed to
the   tire   in  question  approximately  20  times  a  day.
Considering also  the  extent  of  the  area  of the missing
tread,  and  the  fact  that the inner cords and belts  were
visible, I conclude that  it  has  been established that the
violation was significant and substantial.

         3.  Unwarrantable Failure

     According to Skeens, the defect in the  tire in question
was obvious. Kepp indicated that  it  had been  torn  in  an
accident two days prior to the issuance  of  the citation in
question on December 6.  Also, Kepp indicated that he became
aware  of  this  defect on either December 5 or December  6.
Yet  no efforts were  made  to  remove  the  tire  from  the
surface.   Indeed,  the  truck  was  allowed  to continue to
operate  with  the  defective tire.  Within this context,  I
find that the level of  S & M's negligence to have been more
than  ordinary, and to have  reached  the  level  aggravated
conduct.   Thus I find that it has been established that the
violation was  as a result of S & M's unwarrantable failure.
(See, Emery, supra).

         4.  Penalty

     I find that should the tire had blown, a serious injury
could  have  resulted if a person would have been  in  close
proximity to the  tire.   Also,  as  discussed above, I find
that  the  level of S & M's negligence to  have  been  of  a
relatively high  degree.   I  thus  find  that  a penalty of
$2,000 is proper for this violation.

     D. Citation No. 3588975.

        1.  Violation of 30 C.F.R. � 208(c)

     On January 10, 1996, S & M was notified by MSHA that five
additional dust  samples  were  required  for the designated
work  position surface area No. 0010, occupation  code  375,
and that  these  samples  had  to  be received no later than
February 1, 1996.

     On February 7, 1996, MSHA supervisory  mine inspector Larry
Keller learnt that the five additional samples  had  not  been
submitted  by  February 1.  He issued a Citation to  S  &  M
alleging a violation of 30 C.F.R. � 71.208(c).

     Section 71.208(c), provides, as pertinent, that upon  a
notification  from  MSHA  that  dust  samples  taken  from a
designation  work position exceeded regulatory requirements,
" . . . the operator  shall  take five valid respirable dust
samples  from  that  designated  work   position  within  15
calendar days.  The operator shall begin  such  sampling  on
the  first  day  on  which  there  is  a  normal  work shift
following the day of receipt of notification."

     According to Kepp, the equipment in  question,  the 14G
Caterpillar  blade,  needed  a  certain  part  and  was  not
available  for  use  from on about January 14, 1996, through
January 30.  According  to  Kepp, dust samples were taken on
January 30 and January 31, 1996.   Kepp indicated that there
was  no production on February 1, and  February  2,  due  to
extreme  cold  weather,  and  there  was  no  production  on
February 3 and 4, as those days constituted a weekend.  Dust
samples were taken on February 5, February 6 and February 7.
(Defendant's Exhibit R-4).

     I have considered  Kepp's testimony. However, since S & M
did not take five samples  within  15 calendar days of  being
notified of this requirement, ie., January  10,  S  &  M did
violate Section 71.208(c).

     2. Significant and Substantial

     The violation at issue contributed  to  the  hazard  of
silicosis.   Dust  samples  collected  at the mine have been
found  to  contain  as  high  as  12-percent quartz  silica.
However,  according  to  Kepp,  whose  testimony   was   not
contradicted,  S  &  M  did  take  five dust samples on five
consecutive  production  shifts in which  the  equipment  at
issue was available.  As such,  I  find that there was not a
reasonable likelihood that an injury  producing  event i.e.,
lung  disease,  was  reasonably likely to have occurred.   I
thus  find  that  the  violation  was  not  significant  and
substantial (See, Mathies, supra).

          3.  Penalty

     I accept Kepp's testimony, as it has not been contradicted,
or impeached, that, in essence,  five samples were  taken,  on
five consecutive production shifts in which the equipment  in
issue  was  available.   I  thus  find  that  there  was  no
negligence on S & M's part.  I find  that  it  has  not been
established that the gravity of the violation was more  than
low.   I  find that a penalty of $20 is appropriate for this
violation.



     III. Order

     It is ORDERED as follows: 1. Citation  No. 3588975, and
Order  No.  4058624 are reduced to Section 104(a)  citations
that are not  S  & S; 2. Citation No. 9894926 and Order Nos.
4058625 and 4058628 are affirmed as written; 3. Citation No.
4058552 is dismissed;  4. Citation No. 4058621 is reduced to
a Section 104(a) S & S violation; and 5. S & M shall. within
30 days of this decision, pay a civil penalty of $7,020.


                                Avram Weisberger
                                Administrative Law Judge

Distribution:

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

Mr. Stephen Kepp,  S  &  M  Construction, Inc., P.O. Box  2606,
Gillete,  WY  82717-2606 (Certified Mail)

J.  Stan  Wolfe,   Esq.,   222   S. Gillette Avenue, Suite 500,
Gillette, WY 82716

/mh


**FOOTNOTES**

     [1]: S & M did not file any notice of contest of the Section
107(a) withdrawal  order  pursuant to 29 C.F.R. � 2700.22.  Also,
the petition for assessment of civil penalty filed by the
Secretary seeks a penalty in  this  case  only  for  Citation No.
4058552 which was issued alleging a violation only of 30 C.F.R.
�  77.404(a),  but not alleging a violation of Section 107(a)  of
the Act.  Accordingly  the  propriety  of  the  issuance  of  the
Section  107(a)  withdrawal  order is not an issue before me, and
will not be discussed.

     [2]: Those  persons  furnishing  information  and/or  present
during the investigation are  listed  in  the appendix to Skeens'
Accident Investigation Report (Exhibit P-6).

     [3]: I take cognizance of the serious hazards  created  by an
accumulation of coal dust inside a baghouse.  As explained by the
Secretary's expert, Thomas Koenning, the seam in which the coal
mine  at  issue is located is considered to be highly susceptible
to spontaneous  combustion.   Also,  in the past five years there
had been five baghouse fires in the county  in  which the subject
mine  is located.  In each of these instances, the  baghouse  had
been shut down for a period of a few days with an accumulation of
coal left  inside  the  baghouse, and then spontaneous combustion
had occurred.  It would thus  appear  that  the serious hazard of
spontaneous  combustion was created by a dangerous  accumulation.
However,  S  &  M  was  not  cited  for  allowing  coal  dust  to
accumulate. (c.f.,  30  C.F.R.  � 77.202).  Instead the Secretary
chose to cite S & M for violating  Section  77.404(a)  which does
not  deal  with  accumulations,  but requires that machinery  and
equipment be maintained not free of  accumulations,  but in "safe
operating  condition."  (Emphasis added.).  There is no  evidence
footnote 3 cont'd. that the baghouse  was  not  in  safe  working 
condition.  There is no evidence that there was any defect in any
element of the baghouse affecting its operation.

     [4]: Although no one at S & M's mine was qualified to take a
sample, Julie Hart, who was  certified,  worked  at a neighboring
mine.