.
PORTABLE ROCK PRODUCTION CO., INC.
August 18, 2000
WEST 99-309-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                         August 18, 2000

SECRETARY OF LABOR,                 :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA),            :  Docket No. WEST 99-309-M
                  Petitioner        :  A. C. No. 35-02761-05521
              v.                    :
                                    :
PORTABLE ROCK PRODUCTION CO., INC., :
                  Respondent        :  Portable  Rock Production
                                    :    Co., Inc.
                                    :    (Sears Road Pit)

                            DECISION

Appearances:  William  W.  Kates,  Esq.,   Office   of  the
              Solicitor, U.S. Dept. of Labor, Seattle, Washington,
              for the Petitioner;
              E. Jay Perry, Esq., P.O. Box 7126, Eugene, Oregon,
              for the Respondent.

Before:  Judge Melick

     This case is  before  me  upon  a Petition for Civil Penalty
filed by the Secretary of Labor, pursuant  to  Section  105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.    801
et  seq.,  the  "Act,"  charging Portable Rock Production Company
Inc. (Portable Rock) with three violations of mandatory standards
and proposing civil penalties of $80,000.00 for those violations.
The general issue before me is whether Portable Rock violated the
cited standards as alleged  and,  if  so, what is the appropriate
civil  penalty  to  be  assessed concerning  the  criteria  under
Section 110(i) of the Act.

     On  September  2,  1998,  bulldozer  operator  Vernon  Smith
suffered massive head injuries  when  the outer edge of the third
level bench at Portable Rock's Sears Road Pit failed, causing his
bulldozer to overturn.  It is undisputed  that  material had been
removed  from  the  second  level  bench the day before,  thereby
undercutting and removing adequate support  for  the  third level
bench  at the location of the bench failure.  Smith died  of  his
injuries several days later.

     Citation No. 4135309 alleges a "significant and substantial"
violation  of  the standard at 30 C.F.R.  56.3130 and charges as
follows:

          A  fatal   accident   occurred  at  this  mine  on
     September 2, 1998, when a bulldozer  overturned  in the
     pit.   When  the bulldozer operator traversed the third
     level  bench, the  outer  edge  of  the  bench  failed,
     causing the bulldozer to overturn.

          Removal  of  material  from the second level bench
     the previous day eliminated adequate  support  for  the
     third  level  bench.   The  mine operator failed to use
     mining  methods  that would maintain  wall,  bank,  and
     slope stability in this area.

     The cited standard provides as follows:

          Mining methods  shall  be  used that will maintain
     wall, bank, and slope stability in places where persons
     work  or  travel  in performing their  assigned  tasks.
     When benching is necessary,  the width and height shall
     be based on the type of equipment  used for cleaning of
     benches or for scaling of walls, banks, and slopes.

     It is undisputed that material had indeed  been removed from
the second level bench on September 1, 1998, the  day  before the
accident  at  issue.  As a result of such action the third  level
bench was undercut  and  rendered  unstable for travel by Smith's
bulldozer.  The failure of the third  level  bench  in  this case
causing  the  bulldozer  to  overturn was a direct result of  the
Respondent's  failure to have maintained  the  stability  of  the
cited wall.  These  facts  clearly  establish  a violation of the
cited standard.

     Since  the  violation  was  the  direct cause of  the  fatal
accident it was therefore also unquestionably of high gravity and
"significant   and   substantial."   A  violation   is   properly
designated as "significant  and  substantial"  if,  based  on the
particular  facts  surrounding  that  violation,  there  exists a
reasonable likelihood that the hazard contributed to will  result
in  an  injury or illness of a reasonably serious nature.  Cement
Division,  National  Gypsum  Co., 3 FMSHRC 822, 825 (April 1981).
In  Mathies  Coal  Co.,  6 FMSHRC   1,3-4   (January  1984),  the
Commission explained:

          In  order  to  establish  that  a violation  of  a
     mandatory   safety   standard   is   significant    and
     substantial  under  National  Gypsum the Secretary must
     prove:   (1) the underlying violation  of  a  mandatory
     safety standard,  (2)  a discrete safety hazard -- that
     is, a measure of danger  to safety -- contributed to by
     the  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.

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

     The  third  element of the  Mathies  formula  requires  that
the Secretary  establish   a   reasonable   likelihood  that  the
hazard contributed  to  will result in an event  in  which  there
is an injury (U.S. Steel  Mining Co., 6 FMSHRC 1834, 1836 (August
1984)).  The likelihood of such injury must be evaluated in terms
of continued normal mining  operations without any assumptions as
to abatement.  U.S. Steel Mining Co.,  Inc.,  6 FMSHRC 1573, 1574
(July  1984);  See  also Halfway, Inc., 8 FMSHRC 8,  12  (January
1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

     While the citation  at  issue alleges that the violation was
the result of "moderate" negligence  the  Secretary  has cited no
theories  or evidence to support such a conclusion.  Indeed,  the
undisputed evidence does not support a finding of any significant
operator negligence.  While it is noted that the deceased, Vernon
Smith, had  previously  been  a  mine superintendent for Portable
Rock it is undisputed that he had  retired  from  that position a
number of years before and at the time of the accident  had  been
working  only  as  a  rank and file bulldozer operator.  As such,
Smith was not an agent  of  the  operator whose negligent conduct
can be imputed to the operator .   See Secretary v. Whayne Supply
Company, 19 FMSHRC 447 (March 1997).   While  the Commission held
in the Whayne Supply case that where a rank and file employee has
violated  the  Act,  the  operator's  supervision  training   and
discipline  of its employees must be examined to determine if the
operator has  taken reasonable steps to prevent the rank and file
miner's violative  conduct,  no  evidence  in  this  regard  with
respect to this violation was presented at hearing.

     It  is also undisputed that Smith had advised both co-worker
Edward Wright  and  the  operator's  agent,  crusher  foreman Art
Squires, that he was about to repair the subject undercut.  Smith
also told Wright at the end of the shift on the previous day that
the  following day he would be carrying diesel fuel to the  upper
bench but would first repair the bench.  Moreover, on the morning
of the  accident Smith confirmed to Squires that he would need to
build the  road  up  the  hill  in  order to haul fuel to Wright.
Squires was then aware that the bench  road  had  been undermined
and  that  it  needed  new material to provide support.   Squires
believed that Smith was the best qualified person to perform this
work.

     Under the circumstances  it is apparent that foreman Squires
reasonably and in good faith believed that Smith would remedy the
hazardous condition of the third  level  bench before it would be
used as a roadway.  Accordingly, I find the  operator  chargeable
with  but little negligence and significant weight is given  this
criterion in determining the appropriate penalty herein.

     Citation  No.  4135311, issued pursuant to Section 104(d)(1)
of the Act,[1] alleges  a "significant and substantial" violation
of  the  standard  at 30 C.F.R.    56.14130(g)  and  charges  as
follows:

          A  fatal  accident   occurred   at  this  mine  on
     September 2, 1998, when a bulldozer overturned  in  the
     pit.   The  third  level  bench  caved from beneath the
     bulldozer, causing it to roll 2  times.

          The  victim was not wearing the  seat  belt.   The
     mine operator's  failure to require and ensure that the
     bulldozer operator  wore  the  seat  belt  is a lack of
     reasonable   care   constituting   more  than  ordinary
     negligence  and is an unwarrantable failure  to  comply
     with a mandatory standard.

     The cited standard  provides as relevant hereto that "[s]eat
belts shall be worn by the equipment operator."

     The  Secretary's  proof   in   this   regard   is  based  on
circumstantial  evidence,  primarily  observations following  the
accident.   MSHA  inspector  and  special  investigator   Randall
Cardwell, arrived at the mine site at 9:30 on the morning of  the
accident.   Cardwell  examined  the  bulldozer  lying on its side
below the failed bench and noted that  one  end  of its seat belt
was   "tucked"  beneath  the  seat.   Cardwell  also  interviewed
Portable  Rock  employee Kenny Johnson who was first on the scene
of the accident.   Johnson  at  first  stated he could not recall
whether he found the deceased wearing the  seat  belt  but  later
told  Cardwell  that in fact he did find the deceased "out of his
seat belt."  Johnson  nevertheless  still claimed that he did not
know whether the deceased was wearing it.  According to Cardwell,
on  the  following  day,  September  3,  1998,   Johnson  finally
acknowledged to him that the deceased was not wearing a seat belt
when  he  found  him.[2]  I am satisfied from the above  evidence
alone that the Secretary has sustained her burden of proving that
Smith had not at the  time  of  his  accident been wearing a seat
belt.  The violation is accordingly proven as charged.  Under all
the circumstances there is also no doubt  that  the violation was
of high gravity and "significant and substantial."

     I  also  find  the operator chargeable with high  negligence
based upon the credible  evidence  of  its  prior failure to have
enforced  its  policy  requiring  the use of seat  belts  against
Smith.  According to Inspector Cardwell, Portable Rock President,
Jack Bessett, admitted during his investigation  that he had seen
Smith operating without a seat belt on prior occasions  and  that
Smith  explained  that  he  wanted to be able to jump free if the
equipment rolled over.

     According  to  MSHA supervisory  inspector  Colin  Galloway,
Portable Rock Vice-President  Lonnie  Bessett  admitted to him at
the   September  10,  1998,  "closeout  conference"  that   Smith
"sometimes  wore  his  seat belts" and asked rhetorically "how do
you discipline somebody  that's  been  with  the company since it
started?"   While  recognizing that Jack Bessett  had  apparently
retired from active participation in the Portable Rock operations
in 1994, his unchallenged  admissions, when considered with those
of current Vice-President Lonnie  Bessett,  provide  a sufficient
foundation  from which it may reasonably be inferred that  indeed
Smith had disregarded  the  seat  belt requirements with impunity
and without fear of disciplinary action.   Within  this framework
of evidence I find the operator chargeable with high  negligence.
The same evidence also supports a finding that the violation  was
caused by the operator's unwarrantable failure.

     In  Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the  Commission   determined   that   unwarrantable   failure  is
aggravated  conduct  constituting  more than ordinary negligence.
This determination was derived, in part,  from  the plain meaning
of  "unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect  of  an assigned, expected or appropriate action"), and
"negligence" (the failure  to  use  such  care  as a reasonably pru-
dent and careful person  would  use,  and  is  characterized   by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at
2001.  Unwarrantable failure is characterized by such conduct   as
"reckless  disregard,"  "intentional  misconduct," "indifference"
or a "serious lack of reasonable care." 9 FMSHRC at 2003-04;
Rochester  & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February
1991).  Clearly  the  evidence that both Lonnie  and Jack Bassett
failed to enforce the seat  belt  policy
against the  deceased  constitutes  a  serious lack of reasonable
care  and reckless disregard within the framework  of  the  cited
law.

     Order  No.  4135313, issued pursuant to Section 104(d)(1) of
the Act, alleges a "significant and substantial" violation of the
standard at 30 C.F.R.  56.14130(i) and charges as follows:

          A  fatal   accident   occurred  at  this  mine  on
     September 2, 1998, when a bulldozer  overturned  in the
     pit.    The  seat  belts  on  the  bulldozer  were  not
     maintained in functional condition in that the belt had
     been cut  or  torn  2  inches from the flat metal end,
     preventing adjustment  of the belt to a flat metal end,
     preventing adjustment of  the  belt to a longer length.
     Further,  the  belt was cut or torn  slightly  on  each
     edge, approximately 8 inches from the buckle.  The mine
     operator's failure  to  ensure that the seat belts were
     properly  maintained  is  a  lack  of  reasonable  care
     constituting more than ordinary  negligence  and  is an
     unwarrantable   failure  to  comply  with  a  mandatory
     standard.

     The  cited standard  provides  that  "seat  belts  shall  be
maintained in functional condition and replaced when necessary to
assure proper performance."

     The Secretary  acknowledges  in  her post-hearing brief that
the cited seat belt in fact "did work"  and  upon  testing  found
that the "buckle components of the belt" held (Petitioner's Brief
at p. 5).  At hearing the citing inspector also acknowledged that
he was unaware of any mandatory standard governing the length  of
seat belts, that he was unaware of the length of the seat belt at
issue,  that  he  was  unaware  of  the  waist size of any of the
operator's  employees,  that  he  was  unaware  of  any  specific
requirement for seat belt strength, that  no strength testing had
been performed on the seat belt at issue and that he did not know
whether the dirt (and presumably also the oil  stains)  found  on
the  belt had resulted from the accident at issue.  The inspector
further  acknowledged  that while he could have photographed both
of the alleged cuts or tears  in  the  seat  belt he photographed
only one.  Moreover the barely visible cut or  tear  shown in the
photograph in evidence is not in itself sufficient to demonstrate
that  the  subject  seat  belt was not maintained in a functional
condition or that it should  have  been replaced to assure proper
performance.  Under the circumstances  I  cannot  find  that  the
Secretary  has  sustained  her burden of proving the violation at
issue.  Accordingly, Order No. 4135313 must be vacated.

Civil Penalties

     The  Act  requires  that,  "[i]n  assessing  civil  monetary
penalties,  the Commission  shall  consider"  the  following  six
statutory criteria:

     [1]  the  operator's history of previous violations, [2]
     the appropriateness  of such penalty to the size of the
     business  of  the operator  charged,  [3]  whether  the
     operator  was  negligent,   [4]   the   effect  on  the
     operator's  ability  to continue in business,  [5]  the
     gravity of the violation, and [6] the demonstrated good
     faith of the person charged  in  attempting  to achieve
     rapid compliance after notification of a violation.

     In  determining  appropriate civil penalties herein  I  have
considered the gravity and negligence findings previously made as
to each violation.  I have  also considered the small size of the
operator (approximately 9,282 hours worked at the subject mine in
the  calendar  year  prior  to the  violations,  its  history  of
violations (a bad history consisting of 43 paid violations within
the  two  preceding  years  21 of  which  were  "significant  and
substantial") and the Secretary's  admission  that  the violative
conditions were abated as directed and within the time specified.
There is no claim or evidence that even the Secretary's  proposed
penalties   would  affect  Respondent's   ability  to  remain  in
business.  There  is  a  presumption therefore that the penalties
herein would not affect its ability to remain in business.

                              ORDER

     Order No. 4135313  is  vacated.   Citation  No.  4135311  is
modified  to  a  citation  under Section 104(a) of the Act and is
affirmed as a "significant and  substantial"  citation.  Citation
No.  4135309  is  affirmed  as  a  "significant  and substantial"
citation.   Portable  Rock  Production Company, Inc.,  is  hereby
directed to pay civil penalties  of  $5,000.00  for the violation
charged in Citation No. 4135309 and $25,000.00 for  the violation
charged  in Citation No. 4135311, within 40 days of the  date  of
this decision.

                              Gary Melick
                              Administrative Law Judge

Distribution: (Certified Mail)

William W.  Kates,  Esq.,  Office of the Solicitor, U.S. Dept. of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212

E. Jay Perry, Esq., Employers  Defense  Counsel,  P.O.  Box 7126,
Eugene, OR 97401

\mca

**FOOTNOTES**

     [1]:  Section 104(d)(1) provides as follows:

     "If,   upon   any  inspection  of  a  coal  or  other  mine,
an authorized  representative   of   the   Secretary  finds  that
there has been   a   violation   of  any  mandatory   health   or
safety standard,   and  if  he  also  finds   that,   while   the
conditions created by   such  violation  do  not  cause  imminent
danger,   such   violation   is   of   such   nature   as   could
significantly and  substantially  contribute  to  the  cause  and
effect of a coal or  other  mine  safety or health hazard, and if
he finds such  violation  to  be  caused   by   an  unwarrantable
failure of such   operator   to   comply   with   such  mandatory
health or safety standards,   he   shall   include  such  finding
in any citation given to the operator under this Act.  If, during
the same inspection or any subsequent inspection of such mine with-
in 90 days after the issuance of such citation,  an authorized
representative of the  Secretary  finds another violation of any
mandatory  health or safety standard and finds such  violation to
be  also  caused  by  an  unwarrantable	failure  of  such operator
to  so  comply,  he  shall  forthwith issue an  order  requiring
the operator  to  cause  all  persons  in the area  affected by
such  violation,  except  those  persons referred to in  subsec-
tion  (c)  to  be  withdrawn  from,  and to be prohibited  from
entering,  such  area  until  an  authorized representative  of
the  Secretary determines that such violation has been abated."

     [2]:  While Johnson testified that he could not recall at the
time of the hearing whether  he found Smith wearing a seat belt I
recognize  that  at the time of  his  testimony  he  remained  an
employee of Portable Rock.  I find Inspector Cardwell's testimony
regarding Johnson's statements to him on the date of the accident
and the day after,  corroborated  by  Cardwell's notes, to be the
most reliable and credible evidence on this issue.