<DOC>
[DOCID: f:wv97114.wais]

 
APPALACHINAN-MINING, INC.
June 18, 1998
WEVA 97-114


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          June 18, 1998

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. WEVA 97-114
                Petitioner    :  A.C. No. 46-07537-03549
          v.                  :
                              :
APPALACHIAN MINING, INC.,     :
                Respondent    :  Alloy No. 1 Mine

                            DECISION

Appearances:  Javier I. Romanach, Esq., Office of the
              Solicitor, U.S. Department of Labor, Arlington,
              Virginia, on behalf of the Petitioner; Julia K.
              Shreve, Esq., Jackson & Kelly, Charleston, West
              Virginia, on behalf of the Respondent.

Before:  Judge Melick

     This case is before me upon the 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 Appalachian Mining Inc., (Appalachian)
with one violation of the standard at 30 C.F.R.  77.1700, and
seeking a civil penalty of $157.00 for the alleged violation.
The general issue before me is whether Appalachian committed the
violation as alleged and, if so, what is the appropriate civil
penalty considering the criteria under Section 110(i) of the Act.

     Citation No. 4203309 alleges a "significant and substantial"
violation of the standard at 30 C.F.R.  77.1700 and charges as
follows:

          Ben Rucker, an employee of Austin Powder Company, doing
     contract blasting for Appalachian Mining Inc., was observed
     working in the Scrabble Creek point area of the mine,
     preparing a shot, and did not have any communications with
     other employees at this mine, nor was Mr. Rucker in sight
     of any other employees of the mine.  The explosive truck No.
     20323 being used was not equipped with two-way communi-
     cations.


     The cited standard, 30 C.F.R.  77.1700, provides as
follows:

          No employee shall be assigned, or allowed, or be
     required to perform work alone in any area where hazardous
     conditions exist that would endanger his safety unless he
     can communicate with others, can be heard, or can be seen.

     It is undisputed that on the morning of March 5, 1997, prior
to the 8:15 a.m. issuance of the citation at bar, Ben Rucker, was
working in the Scrabble Creek area of the subject mine and  was
neither in sight, nor within hearing distance, of any employee
and was without two-way communication.  Rucker was an employee of
Austin Powder Company, which was performing  contract blasting
for Appalachian

     Rucker's testimony  is undisputed.  Rucker was a certified
surface blaster and had been since August 1992.  On March 5,
1997, he arrived at his work site at the Scrabble Creek area
around seven or 7:30 a.m., and loaded three or four holes before
the MSHA inspectors arrived.  At each of these holes, he had
inserted a cap into the primer, placed it into the hole, loaded
the ANFO explosive and shoveled drill dust into the hole.  The
holes were 25 feet deep on the outside of the drill bench and 15
feet on the inside of the bench.  The drill bench was muddy from
the rain the night before and was flat.  The holes were 6 and 3
1/4 inches in diameter with surrounding dust mounds two to eight
inches high.  The nearest person was a mile away.

     According to Rucker, both the primer and the cap are
explosive and if you drop a primer forcefully it could detonate.
In addition, if a primer should become stuck in a drill hole and,
if in trying to remove it, the trunk line snaps, it could also
detonate.  Rucker acknowledged that there are occasions when he
tugs on a primer and cap to see if it is stuck in a drill hole
but asserted there is a difference between gently tugging on the
line and pulling it strongly, which could detonate the cap.
Rucker  observed that the dust piles remaining from drilling
constituted a tripping hazard and the ground in this area was
muddy.  On this occasion he had been carrying 50 pound bags of
the ANFO from the explosives truck to the holes he was loading.

     According to Rucker, his next step that morning would have
been to drive the truck that was at the Scrabble Creek site to
another truck which had communications so he could contact his
boss and ask for a warning horn.  He would then have returned to
the shot area, wired the shot and strung out the trunk line.  His
boss, Roger Mason, would then make sure the area was clear.
Rucker would then blow his warning horn, wait three minutes and
set off the shot.

     Leo Inghram has been an MSHA inspector since 1975.  He also
has 30 years experience in the mining industry and certifications
as a fire boss, underground blaster and mine foreman.  Inghram
testified that if a primer became stuck while being loaded and if
you pulled the primer out of the detonator it could explode in
the hole.  He was also concerned with a tripping hazard on the
bench with Rucker carrying 50 pound bags of ANFO.


     MSHA supervisory inspector, Aubrey Castanon, is a 26-year
MSHA employee.  He also has seven years additional industry
experience.  He accompanied Inghram on this inspection.  Castanon
described the bench area as 15 to 20 feet wide, relatively level
with several holes drilled and several loaded with trunk lines
emanating from the holes.  Castanon also observed three or more
dust mounds in the area 8 to 10 inches high and ruts 3 to 4
inches deep.  Castanon testified that loading explosives is
indeed hazardous noting that the explosive cap has to be inserted
in the primer correctly and that if it is done improperly and you
tug on it, it could explode.  He also observed that if a cap were
laid beside a hole before priming and stepped on, it could
accidentally go off.  Castanon was also concerned about carrying
50 pound bags of ANFO in an area where you could trip or fall
into a hole or trip on one of the trunk lines.

     Within this framework of evidence, I find that the Secretary
has established the elements of a violation of the cited
standard.  The hazards associated with handling explosives and
carrying 50 pound bags of ANFO over the subject terrain clearly
constituted hazards within the meaning of the standard.  Indeed,
even Roger Mason, Appalachian's superintendent at the time,
acknowledged that handling explosives is hazardous.  While
Kenneth Purdue, manager of safety for parent company Pittston
Coal Company, testified that he had heard of lab tests that
purportedly demonstrated you cannot stretch the trunk line and
break it, thereby causing an explosion, I give but little weight
to this testimony.  None of the purported laboratory studies or
results were brought to hearing to be scrutinized by cross
examination.  In addition, in rebuttal, MSHA Supervisory
Inspector Castanon, testified that there have been actual cases
of "snap and shoot" detonations.  He referred to a case involving
ICA Explosives Company, in which an employee had backed his
"Bronco" over a trunk line, severed the trunk line and detonated
the explosives.

     The Secretary also maintains that the violation was
"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 of a reasonably serious nature.  Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
 explained:

          In order to establish that a violation of a mandatory
     standard is significant and substantial under National
     Gypsum the Secretary must prove:  (1) the underlying
     violation of a mandatory safety standard, (2) a discrete
     safety hazard -- that is, a measure of danger to safety --
     contributed to by the 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 Co. v. Secretary, 861 F.2d
          99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
          (December 1987)  (approving Mathies criteria).

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

     Considering the credible evidence presented by the Secretary
in this case, I conclude that indeed, there was a reasonable
likelihood that reasonably serious injuries could result or be
aggravated by the inability of Mr. Rucker to have been able to
communicate or contact other persons in the event of serious
injuries resulting from slipping, falling, breaking a leg, or
from  inadvertent detonation.  It is reasonably likely that such
an incident would result in reasonably serious injuries.  The
violation was therefore "significant and substantial" and of
serious gravity.

     In reaching this conclusion I have not disregarded
Appalachian's reference in its brief to Inghram's testimony that
he did not "think that it was reasonably likely that an explosion
was going to occur."  However, it is apparent that Inghram's
testimony in this regard was misconstrued in that this testimony
was directed to the possibility of an explosion if Rucker tripped
and fell with a 50 pound bag of ANFO.

     I do not find however, that Appalachian is chargeable with
significant negligence.  While the Secretary argues that the
cited truck had been without two-way communications for three or
four months, it is undisputed that before this date Rucker either
worked with a partner or had another truck present with proper
communications available.  It appears therefore, that this event
was isolated and was the first occasion Rucker had been assigned
to work alone without two-way communications.  He was under the
direct and immediate supervision of contractor, Austin Powder
Company, and it cannot be inferred that Appalachian had any
advance knowledge of the violation or that it reasonably could
have had such knowledge under the circumstances.  There is no
evidence of any prior similar violations.  Under these
circumstances, indeed, Appalachian is chargeable with but little
negligence.  In assessing a civil penalty I have also considered
the prior history of violations, the size of the operator, and
the good faith abatement.

                              ORDER

     Citation No. 4203309 is affirmed and Appalachian Mining
Inc., is directed to pay a civil penalty of $75.00, within 30
days of the date of this decision.


                               Gary Melick
                               Administrative Law Judge


Distribution:

Javier I. Romanach, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
VA 22203 (Certified Mail)

Julia K. Shreve, Esq., Jackson & Kelly, P. O. Box 553,
Charleston, WV 25322
(Certified Mail)

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