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

 
BLUE BAYOU SAND AND GRAVEL, INC.
June 19, 1996
CENT 93-238-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                            June 19, 1996

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
            v.                      :    Docket No. CENT 93-238-M
                                    :
BLUE BAYOU SAND AND GRAVEL, INC.    :


BEFORE:  Jordan, Chairman; Holen, Marks and Riley, Commissioners[1]

                               DECISION

BY THE COMMISSION:

     This civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine
Act" or "Act"), involves a citation alleging a significant and
substantial ("S&S") violation of 30 C.F.R. � 56.14101(a) (1995)[2]
and a withdrawal order, issued under section 107(a)[3] of the Mine Act,
30 U.S.C. 817(a), alleging that defective brakes on a haulage truck
created an imminent danger.  Administrative Law Judge Avram Weisberger
concluded that the operator violated the standard but that the violation
was not S&S and did not present an imminent danger.  16 FMSHRC 1059,
1064-67 (May 1994) (ALJ).  For the reasons that follow, we reverse and
remand.

                                  I.

                  Factual and Procedural Background

     Blue Bayou Sand and Gravel, Inc. ("Blue Bayou") operates an
open-pit sand and gravel mine in Arkansas.  16 FMSHRC at 1059; Tr.
12.  On April 28, 1993, Larry Slycord, an inspector from the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
and his supervisor, Billy Ritchey, conducted a regular inspection of
the mine.  16 FMSHRC at 1060; Tr. 10.  Inspector Slycord observed a
loaded 22-ton Euclid haulage truck traveling out of the pit and
motioned to the driver, William Jewell, to stop the truck.  16 FMSHRC
at 1062-63; Tr. 135.  Slycord informed Jewell that he wanted to test
the service and parking brakes.  16 FMSHRC at 1063.  Jewell replied
that the brakes did not work and that he used the transmission to
hold the truck.  Id.

     Inspector Slycord directed Jewell to drive to a nearly level
area and motioned to him to stop the truck.  Id.  Slycord and Ritchey
heard an exhaust of air as if brakes had been applied but observed
that the truck continued to roll without hesitation, eventually coming
to a stop.  Id. at 1063, 1066.  The truck was tested again with the
same result.  Id. at 1063. Inspector Slycord issued Citation/Order
No. 4116491 alleging an imminent danger and an S&S violation of section
56.14101(a).  Id. at 1064, 1066; Tr. 181.  Slycord and Ritchey directed
Jewell to park the truck, permitting him first to unload it into a
nearby hopper in preparation for the brake repair.  16 FMSHRC at 1065;
Tr. 181-82. Subsequently, Inspector Slycord modified the citation by
changing the likelihood of injury designation from "reasonably likely"
to "highly likely."  Tr. 143-44; Gov't Ex. 1 at 2, 3.  Blue Bayou
contested the citation and order.

     Following an evidentiary hearing, the judge concluded that Blue
Bayou had violated section 56.14101(a) but that the violation was not
S&S.  16 FMSHRC at 1066-67.  The judge explained that, although the
violation contributed to the hazard of the truck hitting and injuring
a person, the reasonable likelihood of injury had not been established.
Id. at 1066.  The judge also determined that the record failed to
establish such an event was imminent.  Id. at 1064-65.  He emphasized
that the inspector, after becoming aware of the defective brakes,
permitted the truck to be driven down a grade to unload.  Id. at 1065.
Accordingly, the judge dismissed the withdrawal order, modified the
citation, and assessed a civil penalty of $50, based in part on his
findings of low gravity and low negligence.  Id. at 1067, 1069.

     The Commission granted the Secretary's petition for discretionary
review, which challenged the judge's S&S and imminent danger
determinations.

                                 II.

                           Disposition [4]

A. Significant and Substantial

The Secretary claims substantial evidence does not support the
judge's determination that the violation was not S&S.  PDR at 1.
He asserts the judge erred in finding that a reasonable
likelihood of injury had not been established because there was
evidence the truck could roll into the hopper and fall down a 20-
to 30-foot-high bank; truck drivers have been killed at other
mines because trucks without brakes have gone over bump blocks
and into hoppers; people working along the road would be
endangered by the truck; and mobile equipment accidents cause
more fatalities than any other hazard in the mining industry.
Id. at 11-14.  Blue Bayou contends the judge correctly determined
the violation was not S&S because the truck had operated in the
cited condition for many months; bump blocks and mounds of dirt
added a degree of safety to operation of the truck; the truck
normally operated at speeds of only 3 or 4 miles per hour; and it
had no history of accidents.  Blue Bayou Br. at 18-19.

The S&S terminology is taken from section 104(d)(1) of the Mine
Act, 30 U.S.C. � 814(d)(1), and refers to more serious violations.
A violation is S&S if, based on 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 Div., Nat'l Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).  In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission further explained:

     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.

Id. at 3-4 (footnote omitted).  See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).  An evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining operations.
U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).

     The first and second elements of the Mathies criteria have been
established.  16 FMSHRC at 1066.  The issue on review is whether the
judge erred in concluding the Secretary failed to establish the
reasonable likelihood of an injury-producing event.

     The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's factual determinations.  30
U.S.C. � 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "such
relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion."  Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (November 1989) ("R&P"), quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).  While we do not lightly
overturn a judge's factual findings and credibility resolutions,
neither are we bound to affirm such determinations if only slight or
dubious evidence is present to support them.  See, e.g., Krispy Kreme
Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest
Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).  We
are guided by the settled principle that, in reviewing the whole
record, an appellate tribunal must also consider anything in the
record that "fairly detracts" from the weight of the evidence that
supports a challenged finding.  Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951).

     In concluding the Secretary failed to establish the third Mathies
element, the judge determined there was a mound of dirt at the track
hoe[5] and a bump block at the hopper, the truck normally traveled at
a speed of under 10 m.p.h., and there were no steep grades or
significant traffic on the road.  16 FMSHRC at 1066-67.

     The overwhelming weight of the evidence, however, detracts from
the judge's conclusion.  Inspector Slycord observed the loaded truck
operating without brakes at a pit work site with grades as high as
10%.  Tr. 16, 110, 117.  To dump its load into the hopper, the truck
was driven in reverse down a 40-foot-long road with a 3- to 4-foot
decline to the hopper area.  Tr. 110, 117.  Both Slycord and Ritchey
testified that, if the transmission had failed, the driver would have
no means of stopping the truck.  Tr. 121, 184.  Slycord testified
that, if the driver had to swerve to avoid a person or obstruction,
the truck could have plunged into the hopper and down a 20- to 30-
foot-high bank into the plant area, fatally or seriously injuring the
driver.  Tr. 118-21, 127.  Slycord testified that the plant operator
who stands in the area beside the hopper, construction workers working
beside the road, and other drivers would also have been endangered.
Tr. 22, 111-12, 114-16, 118, 127-28.  On the day of the inspection,
another haulage truck was using the road and there were three other
vehicles that could use or cross the road.  Tr. 111, 127.  We consider
these particular facts surrounding the violation against the backdrop
of Inspector Ritchey's testimony that mobile equipment accidents are
the leading cause of fatalities in the mining industry. [6]   Tr. 186.

     The evidence relied upon by the judge is insubstantial compared
to the body of record evidence and does not establish that an accident
would not be reasonably likely to occur.  Although there was a bump
block at the hopper, it may not have been sufficient to stop the truck
from falling into the hopper.  Ritchey testified that fatalities have
occurred at other mines when trucks with malfunctioning brakes have
rolled over bump blocks and into hoppers.  Tr. 185-86.  Ritchey also
testified that, even if the 22-ton truck was going slowly, it could
"drive right over" a pickup truck, crushing its driver.  Id.  Blue
Bayou's assertions, that the company had no history of accidents and
that the truck had been operated in the cited condition for many
months without incident, are not dispositive of a finding that the
third Mathies element has not been established.  See Buffalo Crushed
Stone, Inc., 16 FMSHRC 2043, 2046 (October 1994).  Accordingly, we
reverse the judge's determination that the Secretary failed to
establish the third Mathies element.  See id. at 2045-47.

     Although the judge did not expressly consider the fourth Mathies
element, the evidence is undisputed that an injury resulting from the
truck's involvement in an accident would be serious in nature.
Inspector Slycord testified that, in the event of an accident, the
truck driver could have experienced broken bones, head injury, or
death, the plant operator could have been crushed to death, and
another driver using the haul road could have been killed.  Tr. 126-
28.

     Viewing the record as a whole, we find that substantial evidence
does not support the judge's conclusion that Blue Bayou's violation of
section 56.14101(a) was not reasonably likely to result in an injury.
Accordingly, we reverse the judge's determination that the violation
was not S&S.

B.  Imminent Danger

The Secretary argues that the judge erred in vacating the
imminent danger order and in failing to address evidence
establishing an imminent danger.  PDR at 6-10.  He also claims
the judge committed legal error when, relying on the inspector's
permitting the truck to be unloaded, he found that danger was not
imminent.  Id. at 10-11.  Blue Bayou responds, in essence, that
the judge correctly determined the record does not support a
finding of imminent danger.  Blue Bayou Br. at 17-19.  It also
emphasizes that Inspector Slycord initially designated the
likelihood of injury on the order as "reasonably likely" and only
changed it to "highly likely" to justify the withdrawal order.
Id. at 18.

Section 3(j) of the Mine Act defines an imminent danger as "the
existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated."
30 U.S.C. � 802(j).  Adopting the reasoning of the U.S. Courts of
Appeals, the Commission has "refused to limit the concept of
imminent danger to hazards that pose an immediate danger."  R&P,
11 FMSHRC at 2163, citing Freeman Coal Mining Co. v. Interior Bd.
of Mine Op. App., 504 F.2d 741 (7th Cir. 1974).  See also VP-5
Mining Co., 15 FMSHRC 1531, 1535 (August 1993); Island Creek Coal
Co., 15 FMSHRC 339, 345 (March 1993).  Rather, the Commission has
stated that "an imminent danger exists when the condition or
practice observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition
is eliminated."  R&P, 11 FMSHRC at 2163, quoting Eastern
Associated Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d
277, 278 (4th Cir. 1974) (emphasis omitted).  The Commission has
explained that "[t]o support a finding of imminent danger, the
inspector must find that the hazardous condition has a reasonable
potential to cause death or serious injury within a short period
of time."  Utah Power & Light Co., 13 FMSHRC 1617, 1622 (October
1991) ("UP&L").

In reviewing an inspector's finding of an imminent danger, the
Commission must support the inspector's finding "unless there is
evidence that he has abused his discretion or authority."  R&P,
11 FMSHRC at 2164, quoting Old Ben Coal Corp. v. Interior Bd. of
Mine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis omitted).
An inspector abuses his discretion, making a decision that is not
in accordance with law, if he orders the immediate withdrawal of
miners in circumstances where there is not an imminent threat to
safety.  UP&L, 13 FMSHRC at 1622-23.  An inspector is granted wide
discretion because he must act quickly to remove miners from a
situation he believes is hazardous.  Island Creek, 15 FMSHRC at
346-47.

We conclude that the judge erred in determining that an imminent
danger did not exist because the inspector allowed the truck to
be unloaded before the brakes were repaired.  The judge found the
inspector's action inconsistent with enforcement of an imminent
danger order.  Record evidence indicates the truck was unloaded
with caution to facilitate repair of the brakes.  Tr. 181-82.  As
the Commission stated in Wyoming Fuel Co., 14 FMSHRC 1282, 1292
(August 1992), although some "imminently dangerous conditions may
require abatement that poses a degree of unavoidable risk to
miners[, t]he fact that such actions are necessary to abate a
condition . . . does not mean that the condition does not pose an
imminent danger."

Further, although the judge articulated the proper standard for
imminent danger, he failed to apply it.  The judge did not
examine whether the inspector abused his discretion by issuing
the withdrawal order.  The inspector made a reasonable
investigation of the surrounding facts.  See Island Creek, 15
FMSHRC at 346.  The record reveals that Inspector Slycord
observed the 22-ton truck operating without brakes at a pit work
site with grades up to 10%, being driven in reverse on a decline
to the hopper.  Tr. 16, 110, 117.  The inspector also testified
there was a 20- to 30-foot drop from the bank where the hopper is
located to the plant area below.  Tr. 120-22.  Slycord noted
that, in addition to the truck driver, people in other vehicles
were using or could use the road, a plant operator was working at
the hopper, and construction workers were beside the road.  Tr.
22, 111-12, 114-16, 118, 127-28.  The inspector articulated his
concern that these people would have been endangered in the event
the driver could not control the truck, e.g., if the driver had
to swerve suddenly, or if the transmission had failed, leaving no
way to stop the truck.  Tr. 118-23, 127.  The bump block at the
hopper may not have prevented the cited truck from rolling into
the hopper.  Tr. 121-23, 184-85.  In addition, the truck was
dangerous even at slow speed and could cause a fatality in the
event of collision.  Tr. 185-86.

The subsequent modification of the citation from "reasonably
likely" to cause injury to "highly likely" does not diminish
evidence that it was the inspector's belief at the time he issued
the order that an imminent danger existed.  Inspector Slycord
explained that he modified the citation to correct a mistake.
Tr. 144.

It was reasonable for the inspector, in evaluating the particular
circumstances at issue in this case, to conclude that an imminent
danger existed.  The evidence does not allow any other conclusion
than that the inspector did not abuse his discretion in issuing
the imminent danger order.  Accordingly, we reverse the judge's
determination.

                              III.

                           Conclusion

For the foregoing reasons, we reverse the judge' s S &S and
imminent danger determinations.  We remand for reassessment of
the civil penalty consistent with this decision.[7]  See, e.g.,
Gatliff Coal Co., Inc., 14 FMSHRC 1982, 1989 (December 1992).


                         Mary Lu Jordan, Chairman

                         Arlene Holen, Commissioner

                         Marc Lincoln Marks, Commissioner

                         James C. Riley, Commissioner


**FOOTNOTES**

     [1]:  Commissioner Doyle participated in the consideration
of this matter but resigned from the Commission before its final
disposition.

     [2]:  Section 56.14101(a) provides in part:

          Minimum requirements. (1) Self-propelled mobile
     equipment shall be equipped with a service brake system
     capable of stopping and holding the equipment with its
     typical load on the maximum grade it travels. . . .

          (3) All braking systems installed on the equipment
     shall be maintained in functional condition.

     [3]:  Section 107(a) of the Mine Act provides in part:

          If, upon any inspection or investigation of a coal or
     other mine which is subject to this [Act], an authorized
     representative of the Secretary finds that an imminent
     danger exists, such representative shall determine the
     extent of the area of such mine throughout which the danger
     exists, and issue an order requiring the operator of such
     mine to cause all persons, except those referred to in
     section [104(c)], to be withdrawn from, and to be prohibited
     from entering, such area until an authorized representative
     of the Secretary determines that such imminent danger and
     the conditions or practices which caused such imminent
     danger no longer exist.

     [4]:  Blue Bayou requests that the Commission review the judge's
finding of violation for the instant citation as well as for two other
citations involving the defective brakes.  Blue Bayou Br. at 2, 15-17,
19-20.  The Mine Act and the Commission's procedural rules provide
that the Commission's scope of review is limited to issues raised in
the petition for discretionary review.  30 U.S.C. � 823(d)(2)(A)(iii);
29 C.F.R. � 2700.70(f) (1995); see, e.g.,  Chaney  Creek Coal Corp. v.
FMSHRC, 866 F.2d 1424, 1429 & n.7 (D.C. Cir. 1989).  Blue Bayou raised
its challenge to the judge's decision in its response brief, filed
after the deadline for filing a petition had passed.  See 30 U.S.C. �
823(d)(2)(A)(i); 29 C.F.R. � 2700.70(a).  Accordingly, we address only
the S&S and imminent danger issues raised by the Secretary.

     [5]:  A track hoe loads dirt from the pit into the truck.  Tr. 15.

     [6]:  Commissioner Holen notes that, under the Commission's
precedent, Inspector Ritchey's testimony to the effect that mobile
equipment accidents are the leading cause of fatalities in the mining
industry is irrelevant.  The Commission has long held that an S&S
determination is based on the particular facts surrounding the
violation.  E.g., Peabody Coal Co., 17 FMSHRC 508, 511-12 (April
1995); Eagle Nest, Inc., 14 FMSHRC 1119, 1122 (July 1992).  In Lion
Mining Co., the Secretary argued that the judge erred, when
determining whether a roof control violation was S&S, in failing to
consider that roof falls are the leading cause of fatalities in mines.
18 FMSHRC ___, slip op. at 3, No. PENN 94-71-R (May 23, 1996).  The
Commission unanimously rejected the Secretary's argument and
explained, "The Commission has held that an S&S determination must be
based on the particular facts surrounding the violation, including the
nature of the mine."  Id. at 5, citing  Texasgulf , Inc., 10 FMSHRC
498, 501 (April 1988).

     [7]:  We note that, in his penalty assessment, the judge found
low gravity and low negligence based on evidence that work necessary
to repair to the brakes was minor.  16 FMSHRC 1067.  We caution the
judge against relying upon such evidence on remand.  Cf. Southern Ohio
Coal Company, 13 FMSHRC 912, 919 (June 1991) (operator's failure to
make minor repairs was aggravated conduct).