<DOC>
[DOCID: f:ct2000233.wais]

 
ORMET PRIMARY ALUMINUM CORPORATION, BURNSIDE ALUMINA DIVISION
CENT 2000-233-RM
December 18, 2001

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                        December 18, 2001

ORMET PRIMARY ALUMINUM           : CONTEST PROCEEDINGS
  CORPORATION, BURNSIDE          :
  ALUMINA DIVISION,              : Docket No. CENT 2000-233-RM
               Contestant        : Citation No. 7884162; 
                                 :   3/14/2000
                                 :
          v.                     : Docket No. CENT 2000-234-RM
                                 : Citation No. 7884168;
                                 :   3/14/2000
SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         : Docket No. CENT 2000-235-RM
  ADMINISTRATION (MSHA),         : Citation  No. 7884188;
                                 :   4/4/2000
               Respondent        :
                                 : Docket No. CENT 2000-236-RM
                                 : Citation No. 7884189;
                                 :   4/4/2000
                                 :
                                 : Docket No. CENT 2000-237-RM
                                 : Citation No. 7884193;
                                 :   4/5/2000
                                 :
                                 : Docket No. CENT 2000-322-RM
                                 : Citation No. 7885282;
                                 :   6/5/2000
                                 :
                                 : Docket No. CENT 2000-323-RM
                                 : Citation No. 7885279;
                                 :   5/17/2000
                                 :
                                 : Ormet Corporation
                                 : Mine ID 16-00354
                                 :
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. CENT 2000-331-M
               Petitioner        : A.C. No. 16-00354-05548
                                 :
          v.                     : Docket No. CENT 2000-435-M
                                 : A.C. No. 16-00354-05549
                                 :
ORMET PRIMARY ALUMINUM,          : Docket No. CENT 2001-182-M
  CORPORATION, BURNSIDE          : A.C. No. 16-00354-05550
  ALUMINA DIVISION,              :
               Respondent        : Ormet Corporation

                             DECISION

Appearances: Brian Duncan, Esq., Office of the Solicitor, 
             U.S. Department  of  Labor, Dallas, Texas, on 
             behalf of Petitioner;
             John C. Artz, Esq., Polito  &  Smock, P.C., 
             Pittsburgh, Pennsylvania, on behalf of Respondent.

Before: Judge Zielinski

     These cases are before me on Notices  of  Contest  filed  by
Ormet  Primary  Aluminum  Corporation and corresponding Petitions
for Assessment of Civil Penalty  filed  by the Secretary of Labor
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977 ("Act"). 30 U.S.C.  815. The petitions allege that Ormet
is liable for seven   violations  of  mandatory safety and health 
standards applicable  to  surface  metal and nonmetal mines.  A 
hearing was held in Baton Rouge, Louisiana.[1]   The parties 
submitted briefs following receipt of the transcript.[2]   At the 
commencement of the hearing, the Secretary withdrew two of the 
alleged violations and the petitions as to those citations will 
be  dismissed. The Secretary  proposes  civil penalties totaling 
$769.00  for the remaining charges.  For the reasons set forth 
below, I find that Ormet committed two of the alleged violations
and impose civil penalties totaling $315.00.

              Findings of Fact - Conclusions of Law

     During March and April,  2000,  MSHA  inspector John Ramirez
conducted an inspection of Ormet's Burnside  Aluminum  Division's
alumina  mill in Ascension County, Louisiana.  He issued  several
citations  alleging  violations  of  mandatory  safety and health
standards.   On  May  17,  2000,  fellow  MSHA  inspector,  James
Bussell, performed a follow-up compliance inspection to determine
whether  violations  cited by Ramirez had been abated.   He  also
visited the mine on June  5,  2000,  and  issued  a  citation for
failure  to timely report a work-related accident.  Both  Ramirez
and Bussell  have  14  years of experience as MSHA inspectors and
both have considerable prior  mining  experience.   They also had
inspected Ormet's facility on several prior occasions.

     The  citations  are  discussed below in the order that  they
were presented at the hearing.

Citation No. 7884162

     Citation No. 7884162 was  issued  by  Ramirez  on  March 14,
2000,  and  alleged a violation of 30 C.F.R.  56.9300(a),  which
requires  that:  "Berms  or  guardrails  shall  be  provided  and
maintained  on  the  banks of roadways where a drop-off exists of
sufficient grade or depth  to  cause  a  vehicle  to  overturn or
endanger persons in equipment."  The conditions he observed  were
noted on the citation as:

     Berms  or  guardrails were not provided on the banks of
     roadways where  a  drop-off existed of sufficient grade
     and  depth  to  cause a  vehicle  to  overturn.   Fatal
     injuries could occur as a result of the condition.  The
     affected roadway runs east and west along the pipelines
     to the mud lakes and two other roads running south from
     that same road.   Tire tracks were observed as close as
     one foot from the edge.   Only  persons  that check and
     maintain the pipeline use the road.  It is  traveled at
     least once a shift.

     He  concluded that it was unlikely that the violation  would
result in an injury - but that an injury could be fatal, that the
violation  was  not  significant and substantial, that one person
was affected and that  the  operator's  negligence  was moderate.
The  citation was subsequently modified to reduce the  operator's
negligence  to  low  because the condition had existed for a long
time and had not been noted in prior inspections.

     Ramirez was concerned  about  two  areas  that he determined
were  "roadways,"  neither  of  which  had  berms  or  guardrails
separating  the  traveled  surfaces from drainage ditches running
alongside them.

     The area of Ramirez's primary  concern  consisted of cleared
ground running north/south for about six-tenths  of  a mile along
the  pipeline, on which there were numerous vehicle tracks.   The
area was accessed from a short east/west road but did not connect
with any  other  road  or portion of Ormet's facility.  A picture
taken by Ramirez showed  marks  where  a tracked, as opposed to a
wheeled,  vehicle  traveled within one foot  of  the  edge  of  a
drainage ditch.  (Ex.  S-4,  Tr. 119).  Ramirez believed that the
area was part of the pipeline  inspection road that was used once
each shift by Ormet's employees.  (Tr. 20).  The area is depicted
in exhibits S-4 and O-9.

     The other area was an unpaved  road approximately two-tenths
of  a  mile long that ran east/west connecting  the  paved  plant
access road  with  another  unpaved  road  that  ran  north/south
alongside  a  pipeline  from  the  plant  to the "mud lakes,"  or
settlement ponds, about one mile away.[3]  The road was used once
per  shift  by  an  employee  in a pickup truck  to  inspect  the
pipeline.  A drainage ditch about  five  feet  deep ran along the
north side of the east/west road and was closest  to  it near its
intersection  with  the paved plant access road.  As it proceeded
away from that intersection,  the road curved gradually away from
the ditch, such that it ran roughly  parallel  to  the  ditch for
only  about  half of its length, i.e. about one-tenth of a  mile.
The road had a  shoulder  which  measured  six  feet  wide at its
closest  proximity  to  the ditch.  Both the Secretary and  Ormet
introduced pictures of the  short  east/west  road into evidence.
(Ex. S-5, O-7, O-8).

     Ramirez  had  inspected Ormet's facility on  more  than  six
prior occasions, but had never determined that the mud lakes road
posed a safety hazard  and  had  not issued any citations to that
effect.  He issued the instant citation  because  his observation
of a track mark within one foot of the edge of a ditch  raised  a
concern  that  a  vehicle  might be inadvertently driven into the
ditch, injuring the driver.

     In an enforcement proceeding  under  the  Act, the Secretary
has the burden of proving an alleged violation by a preponderance
of  the  evidence.   In  re: Contests of Respirable  Dust  Sample
Alteration Citations, 17 FMSHRC  1819,  1838 (Nov. 1995), aff'd.,
Secretary of Labor v. Keystone Coal Mining  Corp.,  151 F.3d 1096
(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July 
1993); Garden Creek Pocahontas Co., 11 FMSHRC  2148,  2152  (Nov.  
1989);  Jim Walter Resources Inc.,  9 FMSHRC 903, 907 (May 1987).

     I  find that the Secretary has not  carried  her  burden  of
proof with respect to this alleged violation.  The area primarily
focused on  by  Ramirez  was not a roadway and the drainage ditch
running alongside the short  east/west  road  did  not  present a
hazard to vehicle operators.

     Ormet's   witnesses   and   exhibits,  including  an  aerial
photograph of the area (Ex. O-1), clarified that the roadway used
to inspect the pipeline starts at the plant access road, proceeds
west for two-tenths of a mile and then runs about seven-tenths of
a  mile  south  along  the pipeline.   However,  the  north/south
portion is on the opposite  side  of  the  pipeline from the area
depicted   in   exhibits  S-4  and  O-9.   There  is   a   small,
approximately one foot deep, drainage ditch running alongside the
north/south roadway,  but  it  does  not  present a hazard.   The
north/south portion of the mud lakes road is  shown in exhibit O-
10.

     Ramirez did not recall whether there was a  roadway  on  the
other side of the pipeline from the area depicted in exhibit S-4.
(Tr.  61).   However, he later admitted that it was possible that
there was such  a roadway used for inspection of the pipeline and
that the area he cited was used only temporarily to clean out the
drainage ditch.   (Tr.  122).   His  field  notes, which may have
refreshed his recollection and clarified his  testimony, were not
available  because  he  had  not  brought them with  him  to  the
hearing.

     Ramirez  mistakenly  concluded that  the  area  depicted  in
exhibit S-4 was part of the  pipeline  inspection road.  In fact,
it was not a roadway at all.  It was simply  ground that had been
traversed by a tracked backhoe that had dredged  out the drainage
ditch.  It was not normally traveled by Ormet employees  and  was
used  only  to  maintain  the  ditch  every  few years or to make
repairs  to the pipeline that could not be effectuated  from  the
north/south mud lakes road.

     The short east/west road was part of the pipeline inspection
road and there  was  a  drainage  ditch  that  ran  alongside it.
However, that ditch was sufficiently far away from the  road that
it  did  not  present  an appreciable hazard to the operators  of
vehicles.  As noted above,  the  road  curves gradually away from
the ditch such that it was close to it for  only  about one-tenth
of  a  mile  nearest the plant access road.  A vehicle  traveling
that portion of  the  road  would  be  moving  relatively  slowly
because  the driver would have just turned onto the road or would
be preparing  to  turn onto the plant access road.  Olin K. Dart,
Jr.,  Ph.D., testified  as  an  expert  in  the  field  of  civil
engineering,   specializing   in   highway   design  and  traffic
engineering.  He inspected the area and measured the width of the
shoulder on the ditch side of the east/west roadway  as  six feet
for  the  short  distance that the ditch paralleled the road  and
testified that, in his opinion, the shoulder presented sufficient
protection from the  hazard of a vehicle overturning in the ditch
and was typical of roadway/ditch configurations in that area.

     Ramirez testified  that  he  observed  tire marks within one
foot of the ditch at that location.  However,  that  testimony is
inconsistent with the weight of the evidence and I find  that the
only  vehicle  tracks  he  observed in close proximity to a ditch
were the tracks made by the  backhoe  depicted  in  exhibit  S-4.
Both  exhibit S-5, depicting the east/west road, and exhibit S-4,
depicting  the  area  traversed by the backhoe, bore the notation
that tire marks were observed  within one foot of the edge of the
ditch.  Vehicle tracks, made by  the  tracked  backhoe, are shown
close  to  the  edge  of the ditch in exhibit S-4.   Any  vehicle
tracks  within  one foot  of  the  ditch  running  alongside  the
east/west road would  have  had  to  have  been  on the shoulder,
several feet from the roadway surface, and Ramirez  would  surely
have taken a picture of them.

     If  Ramirez  had not mistakenly concluded that the area used
by the backhoe was  part  of  the  mud lakes pipeline road, it is
highly  unlikely that he would have concluded  that  a  violation
existed.   Ramirez had inspected the mud lakes road during six to
eight prior  inspections  and,  like  other  MSHA inspectors that
inspected  Ormet's facilities twice yearly, had  determined  that
the road's proximity to the ditch did not violate the regulation.
While he testified that conditions in both of the described areas
were the bases  for  the  citation,  it is apparent that the work
area  depicted  in  exhibit  S-4  was  the primary,  if  not  the
exclusive,  focus  of  his  violation assessment.   The  citation
itself initially refers to "roadways,"  but  goes  on to describe
the  "affected  roadway"  as  one  that  "runs  .  . . along  the
pipelines to the mud lakes."   It was the presence of  the tracks
within  one  foot  of the ditch that prompted his concern.   But,
those tracks were not on a roadway.

     The  Secretary has  not  proven  the  violation  alleged  in
Citation No. 7884162.

**FOOTNOTES**

     [1]: The civil penalty proceeding as to Citation No. 7885282
had not yet  been  filed  at the time of the hearing.  The issues
raised by Ormet's related contest  proceeding, as well as penalty
issues  common  to  all  of  the citations  were  heard  and,  by
agreement of the parties, this  decision  disposes  of all issues
raised in the subsequently filed civil penalty proceeding, Docket
No. CENT 2001-182-M.

     [2]: Substantial  delays  were experienced in obtaining  the
transcript.  It was necessary to  request  further  review of the
court  reporter's  notes  to  supply some 27 pages that had  been
omitted from the transcript initially  submitted.   The  official
transcript  consists of pages numbered 1 through 40, followed  by
pages numbered  40-1 through 40-27, followed by pages numbered 41
through 314.  See the Amended Briefing Order entered on September
19, 2001.

     [3]: The east/west  road was also used by a farmer to access
land beyond the north/south mud lakes road.
Citation No. 7884168

     Citation No. 7884168  was  issued  by  Ramirez  on March 14,
2000,  and alleged a violation of 30 C.F.R.  56.20003(b),  which
requires that "[t]he floor of every workplace shall be maintained
in  a clean  and,  so  far  as  possible,  dry  condition."   The
conditions he observed were described in the citation as follows:

         Poor  housekeeping was evident on the north side of
     the red mud  tank in the 368 area. The mud does contain
     caustics and a burn hazard existed if a person slipped,
     tripped or fell  into  the mud.  The build up was up to
     12 inches deep in some areas.   Two pumps were observed
     with  worn  out  packing,  causing a  large  amount  of
     leakage.  A supervisor stated  that  they  were hard to
     keep  up  with.   Evidence  (foot  prints)  of  persons
     entering  and  leaving the affected area could be seen.
     Lack of maintenance on the pumps and sump areas created
     the hazard.  It  is  also evident that the build up has
     been there for an extended time.

     He concluded that it was  reasonably  likely  that an injury
would  result  from  the  violation  and that an injury could  be
permanently disabling, that it was significant  and  substantial,
and  that  two persons were affected.  He initially assessed  the
degree of operator  negligence as moderate, but later modified it
to low because the mud had a low caustic content and an emergency
eye wash station was in the area.

The Violation

     The area in question  is  a  concrete  deck  or  pad with an
approximately  one  foot  high wall or curb around its perimeter.
It was designed to collect  and  retain  leakage  from  pumps and
other  sources.  The red mud is removed from the alumina solution
by presses,  is  washed  to  remove  caustic  used in the alumina
extraction  process  and  is  then  pumped to the mud  lakes,  or
settlement ponds, about a mile from the  plant.   Because  of the
nature of the material and the process involved, leaks from  pump
packing and other sources occur on an ongoing basis.  The leakage
collects on the pad and is periodically cleaned up.  The floor of
the  concrete  pad is sloped downward slightly to a drain feeding
into  a  sump pump,  which  pumps  the  material  back  into  the
pressing/washing  process.  The area is cleaned with a hose using
water extracted as  part  of  the  process.  The water contains a
small  amount  of  caustic  and  is used  to  wash  the  mud,  in
suspension, down to the sump pump drain.  The only work performed
in the area is periodic cleaning and  occasional pump maintenance
and repair.

     On the day the citation was issued,  the  sump  pump was not
operational and had not been for several days.  Efforts  had been
made  to  repair  it, and Ramirez observed footprints in the  mud
most likely made by workers involved in the repair effort.  There
is  some  dispute as  to  the  thickness  of  the  mud.   Ramirez
estimated it  as  12  inches by measuring the height to which mud
was  deposited  on  the  boot   of  the  miners'  representative.
Pictures of the area, taken before and after it had been cleaned,
depict a concrete step at the base of a ladder which was measured
to  have  been  six inches higher than  the  pad  floor.   Before
cleaning, the level  of the mud solution was lower than the step,
although it was more likely  higher  in  the  thicker  mud  where
Ramirez observed the footprints.  (Ex. S-8, S-9, O-2, O-3).

     I  find  that  Ormet  is  liable  for the violation cited in
Citation  No. 7884168.  The area had not  been  cleaned  in  some
time, apparently  because of the failure to repair the sump pump.
No evidence was introduced  to  establish that the pump could not
have been promptly repaired.  The  buildup of slippery mud in the
area presented a hazard to miners maintaining  and  repairing the
sump and other pumps.

Significant and Substantial

     A significant and substantial ("S&S") violation is described
in section 104(d)(1) of the 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."   A
violation  is  properly  designated   S&S  "if,  based  upon  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
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

     The Commission has explained that:

          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.

Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan.  1984) (footnote omitted);
See also, Buck Creek Coal, Inc. v. MSHA,  52  F.3d  133, 135 (7th
Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d  99, 103-04
(5th  Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015,  2021
(Dec. 1987) (approving Mathies criteria).

     In  U.S.  Steel  Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance:

     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., Inc.,
     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 Co., Inc., 6 FMSHRC
     1866, 1868 (August  1984); U.S. Steel Mining Co., Inc.,
     6 FMSHRC 1573, 1574-75 (July 1984).

     This evaluation is made in terms of "continued normal mining
operations."  U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574.  The
question of whether a particular  violation  is  significant  and
substantial must be based on the particular facts surrounding the
violation.    Texasgulf,   Inc.,   10  FMSHRC  498  (Apr.  1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).

     Ramirez's S&S assessment was based  upon his conclusion that
a miner falling while walking through the  area might get some of
the caustic mud in his eyes and/or ears and  suffer  a  permanent
loss  of  sight or hearing.  (Tr. 40-5).  I find that possibility
too remote  to  support the S&S designation.  Ramirez admitted on
cross examination that he did not know the caustic content of the
mud or the effect  that it would have on human tissue.  (Tr. 78).
He  had  previously  suffered   a  burn  from  caustic  material.
However, it did not occur at Ormet's  facility and his assessment
was based upon an assumption that the mud at Ormet's facility was
comparable to the substance he had previously  encountered.   The
Secretary  did not introduce any evidence quantifying the risk of
permanent  injury  posed  by  the  limited  exposure  assumed  by
Ramirez.  There  is  no  dispute  that  workers  in the area have
access  to  and  use appropriate safety equipment, including  eye
goggles.  There is an eye wash station in the immediate area, and
emergency showers  and  clean  clothing  are available.  Assuming
that a fall was reasonably likely, it is considerably less likely
that caustic material would get into a miner's  eye  or  ear, and
there is no evidence to support a finding that relatively  prompt
flushing at the eye wash station would not be sufficient to avoid
injury, much less a reasonably serious injury.

     I  find  that  the  violation was not S&S and that, while an
injury may have been reasonably  likely,  the injury would result
in no more than lost work days or restricted  duty.  I agree with
Ramirez's conclusion that the operator's negligence was low.

Citation No. 7884183 and Order No. 7885279

     Citation No. 7884183 was issued by Ramirez on April 4, 2000,
and alleged a violation of 30 C.F.R.  56.11001,  which  requires
that "[s]afe means of access shall be provided and maintained  to
all  working places."  The conditions that he observed were noted
on the citation as:

     A  safe  means  of  access  was not provided to persons
     through the filtration area.   It  included:  the press
     floor,  the  half  deck, and the pad area.  The grating
     between the presses  was  irregular and bent, scale was
     observed throughout the half  deck  and  on  the floor,
     hoses,  scrap pipe and mud was observed.  A slip,  trip
     and fall hazard existed as a result of the condition.

     He concluded that it was unlikely that an injury would occur
as a result of the violation - but that an injury could result in
lost time or restricted  duty,  that  it affected one person, and
was  the  result  of  the  operator's  moderate  negligence.   He
required  that  the violation be corrected  by  April  24,  2000.
Ormet did not contest the citation.

     The press floor  of  the  plant  is  about 20 feet above the
concrete  pad area.  The presses remove the  "liquor"  containing
the  dissolved   alumina   from  the  solids,  the  red  mud-like
substance.   It  is  a  dirty  process   and  there  is  spillage
throughout the press floor.  The presses are  separated by aisles
and the flooring consists largely of open steel grating, bridging
drainage channels that allow for the area to be  washed down with
hoses.  Ramirez observed pieces of grating that were  bent and/or
not  seated  properly  and loose pieces of pipe and hose that  he
determined were tripping hazards.  (Ex. S-11).

     The half deck refers  to  a platform that is suspended about
five feet below the press floor.  It contains piping, conduit and
equipment associated with the presses,  and  has  narrow walkways
with  hand  railings  and floors consisting of grating.   Leakage
from the presses drips  onto  the  half deck and builds up on the
surfaces of the pipes, conduit and equipment.   The  deposits are
referred to as "scale."  Some of the material hardens as it drips
down, resulting in stalactite-type formations.  The formation  of
scale  is  an  ongoing  process and Ramirez recognized that there
would always be some scale present.  He felt that the buildup had
been allowed to go too far.   (Tr. 40-18).  Some of the scale was
loose and some was very hard.   Scale  is  dense material and its
weight had caused deflection in at least one  horizontal piece of
electrical  conduit.   Ramirez  was concerned about  loose  scale
falling on persons who might be traversing  or working on the pad
area  some  15-20 feet below, and about heavy deposits  deforming
and breaking the electrical conduit.  Although he noted the scale
buildup  in  the  body  of  the  citation,  the  only  hazard  he
specifically identified was the trip and fall hazard presented by
the grating and materials on the press floor.

     Ramirez testified  that  he  took a conservative approach to
the violations that he observed in  the  area  and chose to issue
one citation encompassing several conditions that could have been
cited  separately.   He  also  stated  that,  in retrospect,  the
violation may have been more properly evaluated to have presented
a  reasonably  likely possibility of an injury occurring  from  a
slip and fall and  that,  if  a  heavy  deposit of scale fell and
struck  a  miner on the pad floor, a permanent  or  fatal  injury
could result.    He, like Bussell later, rated the possibility of
an injury to a miner  on  the  pad floor as remote because no-one
worked in that area; they merely passed through occasionally.

     On May 17, 2000, Bussell visited  Ormet's  plant  to,  among
other  things, terminate Citation No. 7884183.  He concluded that
some of  the  conditions  cited by Ramirez had not been abated by
Ormet and issued Order No. 7885279, pursuant to section 104(b) of
the Act, barring access to the pad area below the press floor and
half  deck  until  the  unsafe   conditions  were  corrected  and
inspected by MSHA for compliance.  He described the conditions in
the body of the order as follows:

     A  safe  means of access was not  provided  to  persons
     working or  traveling  in  the pad area below the press
     floor.  The buildup of material  on  top of the piping,
     conduit, and framework above the pad area  had not been
     taken  down  sufficiently  to protect persons from  the
     hazard.   The  pad  area  below  the  press  floor  was
     barricaded off and entry to  the  area is denied except
     to remove the material creating the  hazard,  and until
     MSHA can inspect the area for compliance.

     Bussell  was  satisfied  that  Ormet  had abated the  unsafe
conditions on the press floor that Ramirez had  itemized  on  the
citation  as  presenting the "slip, trip, and fall hazard."  (Tr.
179-80).  Bussell's  concern  was  the  scale buildup on the half
deck.   Although  he  was  not  present when Ramirez  issued  the
citation on April 4th, he saw no-one working on scale removal and
concluded that virtually no effort  had  been devoted to removing
the scale.  He observed what he considered  to  be loose scale on
conduit   and   throughout  the  half  deck  area,  as  well   as
deteriorated pipe  insulation.   His order essentially closed-off
the  pad area below the half deck.   He  allowed  the  barricades
barring  access  to  the  closed area to be moved as progress was
made removing the scale, a process that took nearly two months.

     Terry   E.   Bozeman,   Ormet's    superintendent   of   the
digestion/filtration  area,  was present when  Ramirez  made  his
inspection and issued the citation.   He  testified  that Ramirez
told  him  that, in order to abate the citation, Ormet needed  to
eliminate the slip and fall hazards on the press floor and remove
the loose scale,  not  the  hard  cemented-on  scale, on the half
deck.  Ormet employs two persons to do scaling and  assigned  one
of  them  to  work solely on the half deck.  Bozeman observed the
person working  on  a  daily  basis and testified that all of the
loose scale was removed within  one  week of Ramirez's inspection
and  that  by  the  time  Bussell  came  to abate  the  citation,
approximately 50% of the remaining scale had  been  removed.  The
hard scale, which was similar to concrete, had to be chiseled off
by hand or with an air hammer.

     Bozeman was surprised and aggravated by Bussell's assessment
of  the abatement effort on the half deck.  He felt that  all  of
the loose  scale,  which  was Ramirez's concern, had been removed
and  that the miners' representative  who  had  also  accompanied
Ramirez  on the inspection was also of the opinion that the scale
problem  had   been   corrected.    Bussell,   however,   had  no
recollection   of   anyone   at   Ormet,  including  the  miners'
representative, claiming to have made  an effort to eliminate the
scale buildup.  Rather, Ormet officials  told  him  that,  due to
vacation  schedules and other demands, there had been essentially
no time available to remove the scale.

     It is apparent that the citation issued by Ramirez, which is
not contested  by Ormet, was properly issued and that the gravity
and negligence factors were correctly assessed.  It is also clear
that  Ramirez  and   Bussell   differed   considerably  on  their
respective evaluations of the condition of  the  half deck scale.
Neither inspector explained how he determined whether  scale  was
loose  or  cemented  and  it  appears, from the single photograph
depicting scale observed by Bussell,  that  it would be difficult
to  make  such  a  determination  from  observation  alone.  (Ex.
S-15).   Of course, Bussell was not present when  Ramirez  issued
the citation.   The  evaluation  of a general condition like that
noted by Ramirez ("scale was observed  throughout the half deck")
is somewhat subjective and it is not surprising  that  inspectors
would differ in their evaluations of such conditions.

     The  parties'  dramatically  different  positions on Ormet's
efforts  to  abate  the scale buildup cannot be reconciled,  even
when  the subjective nature  of  the  evaluation  is  considered.
Bussell  did  not  make his compliance inspection until six weeks
after Ramirez had issued the citation, well past the 20 days that
had been allowed for  abatement.   Had Ormet actually removed all
of the loose scale within the first week, and had one person been
exclusively  assigned to remove scale  for  the  additional  five
weeks prior to  Bussell's  inspection, it is virtually impossible
that Bussell would have reached  the conclusions that he did.  He
testified  that  if  he  had seen any  evidence  of  progress  on
abatement of the scale buildup he most likely would have extended
the time allowed for compliance.   However, he concluded from his
observations that virtually no effort  had  been  made.   I  find
that,  while Ormet may have devoted some effort to removal of the
half deck  scale  between  April  4  and May 17, 2000, it had not
taken adequate steps to abate the hazard posed by the scale.

     Ormet's claim of having made a good  faith  effort  to abate
the hazards identified by Ramirez also has support in the record.
The only hazard specifically identified by Ramirez in the body of
the citation was the trip, slip, and fall hazard presented by the
grating and obstacles on the walkways of the press floor.   There
is  no  dispute that those conditions were satisfactorily abated.
While Ormet  should  have  done more to remove the scale buildup,
its abatement effort cannot properly be categorized as completely
non-compliant, which resulted  in  imposition of an additional 10
points in the penalty calculation, as  well  as  loss  of the 30%
reduction  in  the originally proposed penalty.  See 30 C.F.R.  
100.3(f).  A more  appropriate  penalty would be that which would
have been assessed without addition  of  the  10  penalty  points
added for failure to abate the violation.

Citation No. 7884193

     Citation  No 7884193 was issued by Ramirez on April 5, 2000,
for what he perceived  to be a violation of 30 C.F.R.  56.11001,
which requires that a "[s]afe  means  of access shall be provided
and  maintained  to  all working places."   The  conditions  that
resulted in the violation were described on the citation as:

     A safe means of access  was  not provided to persons in
     the 350 area shaker floor.  A  buildup of alumina up to
     5 feet deep was observed on the  roof  area between the
     #1  and #2 kilns.  The weight of the material  was  not
     known but the hazard of structural failure could exist.
     Persons work under the affected area.

     He concluded  that  it  was  unlikely  that  an injury would
result  from the violation - but that an injury could  be  fatal,
that the violation was not S&S, that one person was affected, and
that the  operator's  negligence  was moderate.  The roof area is
depicted in exhibits S-15 and O-5.

     The roof in question is adjacent  to  kilns that are used to
dry Ormet's final product, alumina, which is  a white crystalline
substance.  It is abrasive and eventually wears through the walls
of  the kilns' cooling equipment.  Alumina leaking  through  such
openings,  as  well  as  smaller  amounts  that simply escape the
drying/cooling process, accumulates alongside  the  kilns  on the
roof.   There  are  three  kilns,  which  operate  at  very  high
temperatures, approximately 2,500 degrees Fahrenheit, effectively
preventing access to the roof.  Every three months, the kilns are
shut  down,  one  of  them  is  repaired  and refurbished and the
alumina accumulated in the area is removed.

     Ramirez did not go onto the roof.  In  consultation with the
miners'   and   management  representatives,  he  estimated   the
thickness of the  deposit  at  five  feet  at  its highest point.
However, he did not know the slope of the roof.   (Tr.  96).  Nor
did  he know the composition of the roof.  (Tr. 47, 100).   There
was a  vertical corrugated steel wall at the far end of the roof.
He observed  the underside of the roof from the affected area and
concluded that  it  was likely that the roof deck was constructed
of a similar corrugated  material.   The structural components of
the roof appeared to be of "pretty heavy  construction"  and were
in  good  condition.   (Tr.  55).   He  observed  no deflected or
corroded  members.   (Tr. 100).  He based his assessment  on  the
possibility that, under  the  weight  of  the  alumina,  the roof
decking  might  give way between the supports and that pieces  of
the roof structure  might  strike persons working in the affected
area.  (Tr. 54-56).

     Ormet's witnesses and exhibits  established that the roof is
not constructed of corrugated material,  as  Ramirez had assumed.
Rather,  it is constructed of steel decking with  an  overlay  of
steel plate.  (Tr. 249-50).  A picture taken in May of 2000, also
shows that  there  is a slope to the roof, such that the depth of
the material observed  and  photographed by Ramirez was likely no
more than three feet.  (Ex. O-5).   The  photographs also show an
outline  on  the corrugated metal wall of a  prior,  considerably
thicker accumulation.   Jeffery  Yeager,  who  had  been  Ormet's
safety  services  manager  at  the  Burnside facility, related an
incident when one of the coolers fell  onto the roof.  The cooler
weighed about 1,500 pounds and fell from  a distance of five feet
causing  no  damage  to  the  roof.   The  May 2000,  photograph,
moreover,   depicts   a   somewhat   smaller,   but   comparable,
accumulation  that  Bussell  concluded was sufficient to abate  a
similar violation that he had issued.

     Ramirez noted that the alumina  was  exposed  to  rain which
might  dramatically increase its weight.  However, the heat  from
the kilns would tend to dry the alumina and Yeager testified that
the material tended to crust over when rained on, such that water
penetrated  only  one to two inches.  I accept this testimony and
find that rainfall would only marginally add to the weight of the
accumulations.

     I find that the  Secretary has failed to carry her burden of
proof with respect to this  alleged  violation,  i.e.,  that  the
buildup  of  alumina  posed  a  safety risk to the workers in the
affected area.  While the quantity of alumina was not as great as
Ramirez estimated, the main failing  is that his conclusions were
based upon an erroneous assumption about  the  structure  of  the
roof.   It  was not made of relatively light corrugated material.
Rather, it was  made  of  steel  decking with an overlay of steel
plate  and had safely supported, not  only  considerably  greater
accumulations,   but  the  impact  of  the  1,500  pound  cooler.
Bussell, a similarly  experienced  inspector,  had concluded that
comparable accumulations did not violate the regulation.

Citation No. 7885282

     Citation  No.  7885282  was  issued  on  June  5,  2000,  by
inspector  Bussell.   It  alleged  a  violation  of  30  C.F.R.  
 50.20(a),  which requires that certain occupational injuries be
reported to MSHA within  10  working  days.   The grounds for the
charge were noted on the citation as:

     A  miner  .  .  . was injured on March 31, 2000,  which
     resulted  in  11  days  loss  of  work.   The  employee
     received a fractured  finger due to accidently striking
     his right index finger with a knocker while operating a
     hitting  valve.  The Company  failed  to  complete  and
     submit  an  MSHA  7000-1  (Mine  accident,  injury  and
     illness report)  within the 10 working days required by
     this standard.

     MSHA's attention was  called  to  the potential violation by
Ormet's submission of a report regarding  the  accident.  (Ex. S-
17).  The report had been prepared on April 18,  2000, and bore a
notation  that  the  "accident  did  not  turn  into a LTA  until
4/6/00."   Potential late reporting violations are  discussed  at
staff meetings  in  the  MSHA  office.   The inspectors and their
supervisor  review  the  circumstances of each  case  and  it  is
determined whether or not  a citation should be issued.  Where an
operator claims extenuating  circumstances,  an inspector reviews
them and has discretion to accept a late submission.   (Tr.  113,
189-91).   As  noted  on  the  report,  Ormet claimed extenuating
circumstances.

     The miner had left work on March 31, 2000, at the end of his
shift, but returned from the parking lot to the guard station and
claimed  to  have suffered an on-the-job injury  to  his  finger.
According to Yeager,  who  investigated  the  accident, the guard
checked the finger, which did not appear to have suffered trauma,
and the miner was able to move it freely.   The  guard  asked the
miner  to fill out paperwork reporting the injury, but the  miner
declined  and  left.[4]  The following day, a Saturday, the miner
apparently went  to  a  hospital  emergency  room.   The hospital
called Ormet to verify his workmen's compensation coverage, which
triggered  the investigation by Yager.  Ormet was skeptical  that
the miner had  been  injured  while  on-the-job,  but  eventually
concluded  on  April  6,  2000, that he may have been so injured.
Yeager filled out the report  form,  MSHA  7000-1,  on  April 18,
2000, and it was mailed.  Yeager testified that, consistent  with
longstanding  company  practice, it was most likely mailed on the
18th.  Bussell testified that, according to his recollection, the
envelope had not been postmarked  on the 18th, but "more like the
20th."   However, he had thrown away  the  envelope shortly after
it  was received.  The date of mailing is considered  to  be  the
date the report was submitted.  (Tr. 207).

     Regardless  of  whether the report was mailed on the 18th or
the 20th, it was submitted timely based upon Bussell's testimony.
Bussell did not recall  the  specifics  of Ormet's justification,
but  testified  that  he  determined  that  the   injury   became
reportable on April 6, 2000.  (Tr. 191, 203).  Bussell apparently
accepted  Ormet's  claim  that  the  injury  was  not  reasonably
determined   to   be  work-related  until  April  6,  2000.   The
regulation requires  that  the  report  be  submitted  within  10
working  days of becoming reportable.  The 6th was a Thursday and
the 20th was the tenth working day after the 6th.

     The Secretary  advances  several  alternative  arguments  in
support of the citation.  However, her arguments are inconsistent
with  the  evidence.  It is argued that Ormet was notified of the
claimed injury  on  March  31st  and April 1st, and that a report
prepared on April 18th was untimely  using  either of those dates
as  the starting point for the reporting period.   However,  both
Ramirez  and Bussell testified that inspectors have discretion to
take   into    consideration   extenuating   circumstances   when
determining whether  a  report  is  timely.   Bussell's testimony
regarding  this  citation was somewhat inconsistent  due  to  his
limited recollection  of  the  facts, and he clearly struggled in
his attempts to reconstruct the  events  surrounding  issuance of
the  citation.[5]   He  testified  that  he could not recall  the
circumstances surrounding this report, concluding  that  he  must
not have found any extenuating circumstances.  (Tr. 190-91).   He
was  fairly firm, however, in recalling that he used April 6th as
the date  the injury became reportable.  Under the circumstances,
I find that  the starting date for the reporting period was April
6,  2000,  the date  Ormet  obtained  sufficient  information  to
justify  a determination  that  an  on-the-job  injury  may  have
occurred.

     The Secretary also argues that, even if April 6th is used as
the starting  date, the report was untimely because Ormet's plant
operates seven days a week, such that the report should have been
submitted by April  16,  2000.  Ormet counters that only weekdays
should  be counted because  the  term  "working  days"  does  not
normally  include weekends and holidays, that Bussell's testimony
is consistent  with its interpretation, and that the office staff
responsible for preparing such reports does not work on weekends.
Ormet's arguments  are  well taken.  The term "working days" does
not  normally  include  weekends   and  holidays,  and  Bussell's
testimony,  although  unclear, indicates  that  he  counted  only
weekdays in determining the period within which the report should
have  been  submitted.   The   Ormet  personnel  responsible  for
preparing and submitting the reports  did  not  work on weekends.
(Tr. 208).  I find that only non-holiday weekdays can properly be
used to determine the reporting period.

**FOOTNOTES**

     [4]: A  miner  reporting  an  injury must undergo  drug  and
alcohol screening.  It is possible that  the  miner  declined  to
file  the  report  to  avoid  that  obligation.   The  miner  was
subsequently  terminated  on the basis of a positive drug/alcohol
test.

     [5]: For  example,  he  testified   that   April   6th   was
"evidently"   when   the  miner  received  (not  sought)  medical
treatment, thereby making  the  accident  reportable.  (Tr. 191).
In  fact,  the  miner  sought,  and  may  have obtained,  medical
treatment  on  April  1,  2000,  when  he  visited  the  hospital
emergency room.

     April 6, 2000, was a Thursday.  The report was submitted the
date it was postmarked.  Whether it was postmarked on April 18th,
as  Yager testified was probable, or on April  20th,  as  Bussell
recalled, it would have been submitted on or before the 10th work
day after Bussell determined that the injury became reportable.

     As noted previously, Bussell's testimony with regard to this
citation  was  inconsistent.   Obviously, if he used April 6th as
the starting date for the reporting  period  and  the 18th as the
submission  date,  as  he  stated  at  one  point,  he must  have
miscalculated the number of working days.  Even if he  used April
20th  as  the  submission date, he would have had to have made  a
mistake.   It  may  be  that  he,  in  fact,  did  not  find  any
extenuating circumstances  to  justify  tolling  of the reporting
period.   However, his inability to recall the circumstances  and
his fairly  certain  recollection  that  he  used  the 6th as the
starting  date,  can  justify  no  other conclusion but that  the
Secretary has failed to carry her burden  of  proof  as  to  this
violation.

The Appropriate Civil Penalty

     In  excess  of  500,000  man-hours  are  worked  per year at
Ormet's  mine,  which  makes  it  a  relatively large mine and  a
medium-sized  controlling entity.  The  parties  have  stipulated
that the payment  of  the  proposed  civil  penalties  would  not
threaten  Ormet's  ability  to continue in business.  I find that
neither payment of the proposed  civil  penalties, nor payment of
the reduced civil penalties imposed by this decision, will impair
Ormet's ability to continue in business.   I  also  find that the
civil  penalties  imposed  below are appropriate to the  size  of
Ormet's  business.   Ormet  has  a  relatively  good  history  of
violations,  with  47  violations  having  been  issued  over  69
inspection days in the 24 months preceding March 14, 2000.

     The proposed civil  penalty  for  Citation  No.  7884168 was
$184.00.   The  violation  is  sustained.  However, the violation
presented a reasonable likelihood  of an injury resulting in lost
work days or restricted duty, rather than a permanent injury, and
is  not  S&S.   Taking  into consideration  all  of  the  factors
required to be addressed  under  section  110(i)  of  the  Act, I
impose a civil penalty of $100.00 for that violation.

     The  proposed  civil  penalty  for  Citation No. 7884183 and
Order  No.  7885279  was  $420.00.  The violation  is  sustained.
However, the imposition of 10 penalty points for failure to abate
the violation, in addition  to  loss  of  the  30%  reduction  in
penalty  for  good  faith  abatement,  is  too  harsh  and is not
supported by the evidence.  Taking into consideration all  of the
factors required to be addressed under section 110(i) of the Act,
I impose a civil penalty of $215.00 for that violation.

                              ORDER

     As  to  the  citations  withdrawn by the Secretary, Citation
Nos. 7884188 and 7884189, the  petition  in Docket No. CENT 2000-
435-M is DISMISSED.

     Citation  Nos.  7884162,  7884193  and  7885282  are  hereby
VACATED  and  the  related  petitions  for  assessment  of  civil
penalties are DISMISSED as to those citations.

     Citations Nos. 7884168 and 7884183 and Order No. 7885279 are
AFFIRMED, as modified, and Respondent is directed  to pay a civil
penalty of $315.00 within 45 days.

                              Michael E. Zielinski
                              Administrative Law Judge

Distribution:

John  C.  Artz, Esq., Polito & Smock, P.C., Four Gateway  Center,
Suite 400, 444 Liberty Ave., Pittsburgh, PA 15222-1220 (Certified
Mail)

Brian Duncan,  Esq.,  Office of the Solicitor, U.S. Department of
Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202 (Certified Mail)

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