.
ALTA GOLD COMPANY
August 23, 2000
WEST 98-373-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268


                         August 23, 2000

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. WEST 98-373-M
                Petitioner     :  A.C. No. 26-02321-05504
                               :
           v.                  :  Docket No. WEST 98-375-M
                               :  A.C. No. 26-02321-05505
ALTA GOLD COMPANY,             :
                Respondent     :  Griffon Project


                            DECISION

Appearances:  Steven R. DeSmith, Esq., Office of the Solicitor,
              U.S. Department of Labor, San Francisco, 
              California, for Petitioner;
              Ross E. deLipkau, Esq., Reno, Nevada, for 
              Respondent.

Before:  Judge Cetti

     These consolidated cases are before me upon Petitions for
Assessment of Civil Penalty, filed by the Secretary of Labor
(Secretary) seeking the imposition of  civil penalties against
Alta Gold Company (Alta Gold) based upon three citations alleging
violations of mandatory standards which are set forth in Title 30
of the Code of Federal Regulations.  Respondent filed timely
answers and, pursuant to notice, the consolidated cases were
heard in Reno, Nevada.  Both parties presented testimony and
documentary evidence at the hearing.  Post-hearing and reply
briefs were filed by both parties.

                             ISSUES

     The issues at the hearing were whether at the time of
Inspector Cain's inspection of the Griffon Project mine a
violation of 30 C.F.R. � 56.9304(b), as alleged in Citation No.
7963330 in Docket No. WEST 98-375-M, occurred and whether a
violation of 30 C.F.R. � 56.9301, as alleged in Citation No.
7963328 in Docket No. WEST 98-373-M, occurred.

     If a violation of either or both standards occurred, whether
it significantly and substantially contributed to the cause and
effect of a mine safety or health hazard.

     If a violation of 30 C.F.R. � 56.9304(b) is established, did
it result from an unwarrantable failure to comply with the cited
standard.

     If a violation of a standard is established, what penalty is
appropriate, taking into consideration the statutory criteria in
section 110(i) of the Act.

                          STIPULATIONS

     1.  Respondent, Alta Gold Company (with respect to size) has
a total of 189,712 man- hours worked per year.  Alta Gold Company
owns and operates the Griffon Project mine which is a surface
mine with 12,420 man hours worked per year.

     2.  In the 24 months preceding the issuance of the subject
citations, Respondent has had 20 assessed violations.  (Tr. 9).

     3.  The payment of the assessed penalties will not affect
the ability of the Respondent to continue in business.

     4.  Respondent demonstrated good faith in timely abatement
of the alleged violations.

     5.  Respondent withdraws its contest of Citation No.
7963333.

DOCKET NO. WEST 98-375-M

Citation No. 7963330

     Inspector Stephen Cain, an experienced MSHA inspector,
testified at the hearing that he inspected Respondent's Griffon
Project mine on a regular mandated 01 inspection.  Inspector Cain
waited at the mine site for the arrival of Mr. Rick Stork who was
employed by Respondent as a  part-time safety director as well as
a truck driver.  On Mr. Stork's arrival, Inspector Cain requested
to inspect the mine's stockpile.  Cain found the stockpile to be
approximately 176 feet in length and 40 to 45 feet in height.
Cain testified the stockpile was composed of loose and
unconsolidated blasted ore which was being stockpiled for loading
into a crusher located at the bottom of the stockpile.  Cain
observed that approximately 87 feet along the bottom of the
stockpile had been undercut to a height of 10 to 15 feet.  He
noted that 15 feet is the approximate reach of the loader that
was parked at the bottom of the stockpile.  This front-end loader
had been used to feed the ore to the crusher.  At the time of the
inspection the loader was parked at the bottom of the stockpile
in the undercut area.

     After inspecting the stockpile from the bottom, Cain asked
to be taken to the top so that he could observe Respondent's
dumping operation.  He was taken to the top of the stockpile
accompanied by Mr. Stork.  While on top of the stockpile, he saw
a haul truck designated at the hearing as No. 2, pull onto the
top of the stockpile, drive along the top of the stockpile, turn
in, stop and then back up to the berm at the edge of the
stockpile. The driver then lifted the bed of  Truck No. 2 and
dumped his load over the edge.  Inspector Cain and Mr. Stork
walked over to the edge to see where the truck had dumped its
load.  Cain testified that he observed that the truck's load of
ore had been dumped within the 87-foot area that the stockpile
was undercut.

     Inspector Cain then issued to Alta Gold Citation No.
7963330.  That citation charges Alta Gold with a 104(d)(1)
violation of the safety standard set forth at Title 30 C.F.R. 
� 58.9304(b).  That standard reads as follows:

          � 58.9304(b)

          Where there is evidence that the ground at
          a dumping location may fail to support the
          mobile equipment, loads shall be dumped a
          safe distance back from the edge of the
          unstable area of the bank.

     The citation at item 8 describes the alleged violation as
follows:

          The haul truck operator (Eloy Crespin),
          operating company #HF5 haul truck, was
          observed dumping a load of ore over the edge
          of the ore stockpile.  The area that he was
          observed dumping over, had been undercut from
          below by the 988F loader that feeds the
          crusher.  By undercutting the slope and
          removing the toe of the dump this made the
          ground unstable.  There were haul truck tire
          tracks present that indicated dumping had
          taken place earlier in the shift at the same
          area.  This exposed area was approximately 87
          feet in length and the height of this dump
          was approximately (sic) 40-45 feet.  The
          entire dump was approx. 170 feet in length.
          There were no barriers, warning signs, or
          other measures used in this area to alert
          drivers of this hazard.  The company had
          allowed the practice of dumping over undercut
          material to exist.  This is an unwarrantable
          failure.

     The statement that "There were no barriers ---" may be
somewhat misleading as there was undisputed evidence that the top
edge of the stockpile had the proper required berm that complied
with the berm standard applicable for the 50-ton haul trucks that
were used to haul and dump the ore at the stockpile.

     At the time of the inspection, three haul trucks were
observed backing up to the berm and dumping their load.  Only one
of the three trucks observed dumping, a truck designated No. 2,
is charged with dumping over an undercut area of the stockpile.
There was no contention that the other two haul trucks dumped
over an unstable or undercut area of the stockpile.

     Cain testified that the stockpile was unusually high for its
length and for the composition of the material which was loose
and unconsolidated.  He stated that normally with this kind of
material, an operator will form a lower, longer stockpile to
maintain stability.  Cain added that the higher the stockpile,
the more unstable it becomes.  Cain was clearly of the opinion
that the undercutting of the stockpile for 87 feet along the
bottom of the stockpile resulted in the removal of the toe of the
stockpile in the undercut area and that removal of the toe
compromised the stability of the stockpile to such an extent
that, in the words of the standard, it "may fail to support" the
weight of the loaded 50-ton haul truck when it backed up to the
berm and lifts its bed to dump its load.  Under these conditions
the cited standard � 56.9304 requires the load to be dumped a
safe distance back from the edge of the unstable area.

     When the potential hazard was called to management's
attention, Respondent immediately ordered that all the trucks
"dump short."  That is the term used to instruct the haul trucks
to dump a safe distance away from the edge of the stockpile in
the absence of a spotter or other means which would direct haul
trucks not to dump over an undercut, unstable portion of the
stockpile.

     The berm that was in place along the entire dump site area
was 3 to 3" feet high with approximately an angle of repose of 1"
to 1.  It was the same angle of repose as the general slope of
the stockpile.  The haul trucks drove about two feet from the
berm which was approximately five feet from the edge of the
stockpile.  Cain testified he saw signs of instability but
conceded he saw no signs of cracking.  Asked if he saw any signs
of failure, Cain testified "unless it fails, you won't see any
signs of failure."  Cain said he talked to the driver who said
drivers were not told where to dump; that they used their own
judgment in determining where to dump.

     Alta Gold contends that all three of the haul truck dumps
that Inspector Cain and Mr. Stork observed at the time of the
inspection took place over stable, properly bermed ground.  To
support its position, Respondent presented the testimony of Mr.
Stork and the written statement of Mr. Crespin who was the driver
of the haul truck designated No. 2.  Mr. Crespin's written state-
ment was received at Respondent's Ex. 4 over objection by Petitioner.
The main weakness of Mr. Crespin's statement is the fact there was
no opportunity to cross-examine Mr. Crespin.  His written statement
which remains mere hearsay is as follows:

     THE MEETING BETWEEN, MSHA AND MYSELF, WAS MOSTLY, ABOUT WHAT 
     THE FORMAN DOSE, (Sic) HE ASKED ME IF ANY OF THE SUPERVISORS 
     TOLD ME WHERE TO DUMP THAT DAY, I TOLD HIM NO, THEN HE ASKED 
     IF THE SPOT WHERE I DUMPED WAS UNDERCUT, AND I TOLD HIM IT 
     WAS NOT, THAT THE MOST THE LOADER COULD OF TAKEN OUT OF THAT 
     SPOT WAS ONE BUCKET FULL.

     HE ALSO WANTED TO KNOW IF THE FORMAN CHECKS THE DUMPS AND HOW
     MANY TIMES A DAY THEY DO IT, I TOLD HIM THAT THEY DO CHECK
     THE DUMPS, HOW MANY TIMES A DAY, I DID NOT KNOW, BECAUSE A
     DRIVER  DON'T SPEND THAT MUCH TIME AT THE DUMP.  HE ALSO
     WANTED TO KNOW WHAT WE DO WHEN THE DUMP LOOKS UNSAFE, I TOLD
     HIM WE DUMP ON TOP, AT THE END OF THE MEETING, HE ASKED ME IF
     I HAD ANYTHING TO SAY, I TOLD HIM DO YOU REALLY BELIEVE, THAT
     I WOULD JEOPARDY (Sic) MY LIFE AND DUMP OVER A SPOT THATS
     UNDERCUT.  HE SAID I GUESS NOT.

     This is the statement Mr. Crespin gave his employer summarizing
his interview with the Inspector.

     Mr. Stork presented testimony indicating that only a small
part of the alleged 87-foot undercut section was in fact
undercut; that only a bucketful of ore was removed by the loader
so that only a small portion of the toe of the stockpile was
removed in the area where the No. 2 truck dumped its load.  Mr.
Stork was of the opinion that the stockpile was stable and safe.
He pointed out that there were no stress fractures at the dump
site and, furthermore, no truck dumped over any undercut area.
Mr. Stork testified that No. 2 truck dumped its load just next to
and not directly above the area of the stockpile where the loader
had taken a bucketful of ore out of the bottom toe of the
stockpile.  Mr. Stork explained that as the dumped ore cascaded
down the stockpile, a portion of the dumped load drifted into the
undercut area where the bucketful of ore at the toe of stockpile
had been removed.  He testified that when Truck No. 2 dumped its
load, the truck was on stable ground and a portion of the load
spilled or drifted over into the area at the bottom of the
stockpile where a bucketful of ore had been removed.

     Stork testified that in normal circumstances, the dozer
operator after trimming the dump, stays at the dump site to spot
the haul trucks and to direct the haul trucks where he wants them
to dump.  Asked as to why the dozer was not up at the dump site
at the time of Cain's inspection, Stork testified:

          A.  Yes.  In normal circumstances, we have a dozer
      operator up on that dump approximately 90 to 95 percent of
      the time.
          Q.  All right.  Could you explain why the dozer
      operator wasn't on the dump when inspector Cain and you
      visited the site in April of last year?
          A.  The dozer operator had been present on the dump
      until shortly after Mr. Cain arrived on the property.
      Rudy Montoya, the foreman, had just went (sic) through a
      safety inspection about a month and a half, two months
      before out at the Kinsley project by Mr. Cain, and Mr.
      Cain has got a way on his inspections of  being very
      forceful, sometimes arrogant -- "intimidating" is the
      words that I've gotten from some of the people - the way
      that they felt that he conducts his safety investigations.

          Rudy knew that we had a pit above that was covered, the
      haul road into it was covered in with snow because it was
      snowing that day, and he felt that if Mr. Cain was wanting
      to go out and to do the inspections like he'd done at Kinsley,
      would go into the pit and inspect it, and he went down and
      pulled the dozer off of the dump to take him up there spe-
      cifically to clean a haul road out in the pit so that, if we
      went in to inspect it, we would have a clean road and not a
      snow-packed road to do it.

          Had Rudy not been so jumpy, worried about what the
      inspector might want to inspect, what he's going to think,
      that dozer would have been left on that dump and it would
      have been there directing every load over.  (Tr. 128-129).

     Stork also testified that the area at the top of the
stockpile dump was stable and compacted.  Asked as to why that
was so, he testified:

               As the trucks roll over it, completely
          loaded, the wheel motion of the trucks
          rolling over the ore compacts that ore tight,
          and that - the type of material that we have
          at Griffon, we have the dirt - the ore, once
          it's been blasted, has got anywhere from
          small rock up to six-inch rock in it,
          sometimes a little bit bigger, with the fine
          dirt, with a tremendous amount of clay, with
          a little bit of moisture in it.
               As the truck rolls over it, the top of
          that dump gets so hard that sometimes when we
          need to trim it, the dozer actually has to
          sink his rippers into the dirt to cut it and
          rip it so that he can push it.  (Tr. 133-
          134).

     With respect to the top of the stockpile, Stork also
testified:

               There was no signs of settling in the
          dump which is an indication of an unstable
          dump, there was no stress cracks, which is an
          indication of an unstable dump, and when the
          trucks ran across it, there was no settling,
          no cracking, no vibrations, no movement.
               It had to be stable or it would have
          moved.  (Tr. 134).

     Stork testified that the area of the stockpile where the No.
2 haul truck operator made his dump was stable.  Asked as to
reasons why he determined it was stable he testified:

               A.  The fact that the dozer had just
          trimmed that whole face of that dump that
          morning, pushed off all loose materials from
          it, had reestablished a new berm that
          morning, and the surface showed no signs of
          stress cracks in it, the truck where Eloy
          backed up to did not sink into the dump, did
          not settle the dump, it did not cause any
          stress cracks to appear in the dump after he
          dumped there.
               When he pulled away from it, it was
          just as good as condition after he dumped
          there as before he ever backed into it.
               Q.  Okay.
               A.  And it had to be stable to be able to do that.
(Tr. 141).

     Cain, on the other hand,  testified that although he was not
a geologist or a mining engineer he had a high school diploma and
1" years of formal college.  Prior to his employment with MSHA he
worked eight years in the mining industry.  He has taken special
training courses in stockpile safety.  He described the courses
as follows:

               A.  They would do with the inspecting,
          the stability, the composition of the
          stockpiles, how to design a proper stockpile,
          how to maintain a stockpile, how to make sure
          that the stockpile can be dumped on, and that
          it doesn't present a hazard.
               Q.  And did you also take a course in
          haulage awareness training?
               A.  Yes, I did.
               Q.  And what were the details of that?  Or
          describe that training.
               A.  Well, that training is, it talks
          about where haul trucks operate, haul roads,
          on top of waste dumps, stockpiles, how to
          properly dump over stockpiles, how to
          maintain a dumping location, where the truck
          should dump.

     Mr. Stork testified there was a good solid berm all across
the face of the dump.  The ore had a tremendous amount of clay
and a little moisture.  The trucks and dozer running over the top
of the stockpile, compacted it down.  Stork said there was no
sign of settling in the dump and there were no stress cracks,
which is an indication of an unstable dump and when the trucks
run across the top of the dump there was "no settling, no
cracking, and no vibration, no movement."  (Tr. 134).

     Obviously, Cain and Stork differed in their perception of
the facts and even more on their evaluation on the stability of
the ground at the dumping location from which truck designated
No. 2 dumped its load.  On evaluation of all the evidence and
particularly on considering the experience and training of
Inspector Cain with respect to maintaining stability of the
ground at a stockpile dumping location, I find that a
preponderance of the evidence establishes a violation of the
cited standard.  Because of Inspector Cain's experience and
specialized training in stockpile stability, I credit his
testimony with respect to the potential lack of stability of the
dumping site at the location where the operator of the haul truck
designated No. 2 made its dump.  I find the hazard was not
obvious and management was not aware of the hazard.  I find the
negligence was moderate rather than high.

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
U.S.C. � 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 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 (August 1985), 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. Tell Mining Company, Inc.,
          6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
          Mining Company, Inc., 6 FMSHRC 1573, 1574-75
          (July 1984).

     I find the testimony of Inspector Cain established the four
elements of the Mathies formula for designating the violation
S&S.  Certainly with respect to the third and fourth elements of
the Mathies formula the most likely result for the operator of
the truck falling 40 feet from the top of the stockpile would be
serious or fatal injuries.

     Although I concur with the inspector's finding that the
violation was S&S, I reject the finding that the violation
resulted from an unwarrantable failure of the operator.

Unwarrantable Failure

     The Commission stated in a number of cases the factors
applicable to determining whether a violation was the result of
unwarrantable failure.  In Windsor Coal Co., 21 FMSHRC 997, 1000,
(Sept. 1999), the Commission stated that the unwarrantable
failure terminology is taken from section 104(d) of the Act, 30
U.S.C. � 814(d), and refers to more serious conduct by an
operator in connection with a violation.  In Emery Mining Corp.,
9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more
than ordinary negligence.  Id. At 2001.  Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of
reasonable care."  Id. At 2003-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).

     The Commission explained that a number of factors are
relevant in determining whether a violation is the result of an
operator's unwarrantable failure, such as the extensiveness of
the violative condition, the length of time that the violative
condition existed; whether the violative condition is obvious or
conspicuous; the operator's efforts to eliminate the violative
condition; and whether an operator was placed on notice that
greater efforts are necessary for compliance.  Mullins & Sons
Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14
FMSHRC 1258, 1261 (Aug. 1992), Beth Energy Mines Inc., Kitt
Energy Corp., 6 FMSHRC.  Upon evaluation of the evidence
presented and consideration of the above factors, I find the
preponderance of the evidence fails to establish aggravating
conduct.  The unwarrantable failure finding in this citation
shall be deleted.

     The citation, as modified, is affirmed.

Citation No. 7963333

     This citation charges Alta Gold with the violation of 30
C.F.R. � 56.14100(b) for having an unoperable front light and a
rear light on the 580E Case backhoe.  The citation stated injury
was unlikely; the violation was not S&S; and the negligence was
high.  The proposed penalty was $800.00.

     At the hearing Alta Gold withdrew its contest to the
citation and offered no evidence; it did not dispute liability
and accepted the citation and the proposed penalty.  Both the
citation and its proposed penalty are affirmed.

                    DOCKET NO. WEST 98-373-M

Citation No. 7963328

     This citation charges Alta Gold with a S&S violation of 30
C.F.R. � 56.9301 and proposed a penalty of $3,000.00.

     The citation, item 8, describes the cited condition or
practice as follows:

          The loader operator (Biff Braman) was
          observed driving the 988F loader over and on
          to the metal bumper block at the feed hopper
          for the crusher.  The bumper block had been
          buried with material (dirt) and no longer
          served as a restraint.  The hopper sits
          approximately 60 feet above the ground level
          below.  The hopper was approximately 15 feet
          long by 15 feet wide and was full of
          material.  The dirt had become a ramp into
          the hopper and the operator drove the loader
          up on top of it.  This presented a hazard of
          loader overtraveling feed area.

     The cited standard 30 C.F.R. � 56.9301.  That standard reads
as follows:

          � 56.9301   Dump site restraints.

             Berms, bumper blocks, safety hooks, or
          similar impeding devices shall be provided at
          dumping locations where there is a hazard of
          overtravel or overturning.

     The 998 front-end loader takes a bucketful of material from
the stockpile and drives up to the feeder hopper where the loader
operator stops and dumps the load into the feed hopper.  From
there the material travels, gravity fed, into the crusher below.

     Inspector Cain testified the company designed the feed
hopper with a three-foot high metal bumper block.  The bumper
block has a three-foot high metal restraining bar.  The three-
foot high bar consisted of an eight inch diameter metal pipe.
Its purpose is to prevent the front-end loader from overtraveling
the spot where it dumps its load into the feed hopper.  That area
is approximately 30 to 60 feet above the ground below.  The
purpose of the bumper block is to prevent the loader from
overtraveling and going into the feed hopper or even further on
downhill, which would result in serious injury to the operator.

     At the time of the alleged violation, Inspector Cain and Mr.
Stork were in the control room next to the feed hopper.  Cain
testified he observed a loader that drove right up to the feeder
hopper area and kept going, traveling up on top of the bumper
block where the driver stopped the loader by using his brakes.
Cain testified that he stepped out of the control room and
examined the area to see what the problem was.  He found that
material dropping from the front-end loader bucket had been
allowed to accumulate over time until it made a ramp leading up
to and covering the three-foot high bumper block so there was
nothing to impede the wheels of the loader.  The accumulation of
material had buried the bumper block so it could no longer serve
its purpose as an impeding device.

     Cain stated that when he observed the loader coming to stop
on top of the bumper block, he issued an imminent danger order.
Management then asked what they could do to correct the situation
and continue with production.  Cain told them they could install
an adequate earth berm  to serve as a restraining or impeding
device.  To terminate the violation Alta Gold installed a three-
foot earth berm on top of the buried metal bumper block that
reached mid-axle height of the loader.

     Mr. Stork's testimony as to the facts was different than
that given by Inspector Cain.  Stork testified that the distance
from the feed hopper to ground below was 31 feet 6 inches and not
60 feet.  Stork and Cain observed only one run of the loader to
the feed hopper.  Stork testified that there was an earth berm on
top of the metal bumper block.  When the loader, traveling too
fast, came up to the feeder hopper, the loader bounced and came
to a stop on top of the "dirt berm" which the loader had
"flattened out."  Stork stepped out of the control room and told
the driver he was driving too fast.  Stork also told him to get a
bucketful of dirt to replace the berm which the loader had
flattened out.  Stork stated that the metal bumper block
referenced by Cain in the citation was no longer in use at the
time of the inspection.  Management had decided to bury it with
earth and material and put a dirt berm on top of it.  Thus the
company, by design, decided to use a dirt berm on top of the
buried metal bumper block as an impeding device.

     After Stork completed his testimony, Cain was called on
redirect and testified there was no earth berm on top of the
metal bumper block which was buried.  There was a little bit of
dirt over the top of the metal bar that you could wipe away with
your shoe.  He could see the top of the metal bar that
constituted the top portion of the buried metal bumper block.

     On evaluation of the evidence I find, even under
Respondent's testimony, that the so-called earthen berm was so
unsubstantial that it was wiped out and cleaned off and had to be
"reestablished 10 to 15 times a day."  (Tr. 251).

     On evaluation of the evidence, I find there may have been
some dirt on top of the buried metal bumper block but not of
sufficient substance to qualify as an impeding device, as that
term is used in the standard cited.  I find that a preponderance
of the evidence established the violation of the cited standard
30 C.F.R. � 56.9301.

     Based on Inspector Cain's testimony I find that the
Secretary established the four elements of the Mathies formula
for finding the violation is significant and substantial.  I
therefore agree with Inspector Cain that the violation is S&S.

     This citation, as modified, is affirmed.

Appropriate Civil Penalties

     The Judge is required by Commission Rule 30, 29 C.F.R.
� 2700.30, as well as by the Mine Act itself, to consider the
statutory criteria set forth in � 110(i) of the Mine Act in
determining the appropriate civil penalty to each violation.

     Section 110(i) provides in relevant part:

          The Commission shall consider the operator's
          history of previous violations, the
          appropriateness of such penalty to the size
          of the business of the operator charged,
          whether the operator was negligent, the
          effect on the operator's ability to continue
          in business, the gravity of the violation,
          and the demonstrated good faith of the person
          charged in attempting to achieve rapid
          compliance after notification of a violation.

Size of Operator and Ability to Continue in Business

     The parties stipulated at the hearing that Respondent, Alta
Gold Company, with respect to the size of its business, has a
total of 189,712 man hours worked per year.  Alta Gold Company
owns and operates the Griffon Project mine, which is a surface
mine with 12,420 man hours worked per year.

     Based upon this stipulation of hours worked, I find the
business of its operator medium size.  In addition, I find in the
absence of any evidence to the contrary, that appropriate
penalties will not affect the operator's ability to continue in
business.

Negligence

     With respect to both contested violations, I find the
negligence to be moderate.  I find that the operator was unaware
that it was in violation of either standard.  Perhaps the
operator should have known it was in violation but it did not.
Management had good faith but a mistaken belief that they were
not in violation of the safety standard in either of the
contested cases.

History of Previous Violations

     Alta Gold's history of previous violations is not excessive.
It was stipulated that in the 24 months preceding the issuance of
the subject citations, Respondent has had 20 assessed violations.
There is no evidence that any of the violations established in
this case were repeat violations.

Gravity

     The Commission stated that the gravity penalty criterion
contained in � 110(i) of the Mine Act requires an evaluation of
the seriousness of the violations and that the focus of the
gravity criterion is on, "the effect of the hazard if it occurs"
(Hubb Corp., 22 FMSHRC 606, 609 (May 2000) (quoting Consolidation
Coal Co., 18 FMSHRC 1541, 1550 (September 1996).  In this case
the hazard, fortunately, did not result in any injury whatsoever
but the effect of the hazard, if it occurred, would have been a
serious injury or death.  Consequently, the degree of gravity in
both violations is relatively high.

Good Faith and Rapid Compliance

     I find the operator, without question, demonstrated good
faith in attempting and achieving rapid compliance after
notification of the violation with respect to both violations;
there was unhesitating, immediate compliance after notification
of the violations.

     On the basis of my foregoing findings and conclusions and my
de novo consideration of the civil penalty assessment criteria
found in � 110(i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for
the violations that have been affirmed in these proceedings:

          Citation No.   30 C.F.R. Section   Assessment

            7963330           58.9304(b)     $1,200.00
            7963333           56.14100(b)       800.00
            7963328           56.9301         1,500.00

                                 TOTAL       $3,500.00

                              ORDER

     Accordingly, it is ORDERED that Citation No. 7963330 be
modified to amend the negligence factor from "high" to "moderate"
and to delete the unwarrantable failure finding.  It is further
ORDERED that Citation No. 7963328 be modified to amend the
"gravity" factor from "highly likely" to "reasonably likely."
The finding of a violation which is significant and substantial
is AFFIRMED in both Citation Nos. 7963330 and 7963328 and both
citations, as modified above, are AFFIRMED.  It is further
ORDERED that Citation No. 7963333, as written, is also AFFIRMED.
It is further ORDERED that Alta Gold pay the Secretary of Labor a
civil penalty of $3,500.00 within 30 days of this decision and
order.


                              August F. Cetti
                              Administrative Law Judge

Distribution:

Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-
2999   (Certified Mail)

Ross E. deLipkau, Esq., MARSHALL, HILL, CASSAS & deLIPKAU, 333
Holcomb Ave., Suite 300, P.O. Box 2790, Reno, NV 89305-2790
(Certified Mail)



/sh