<DOC>
[DOCID: f:p94-247.wais]
POWER OPERATING COMPANY
March 23, 1995
PENN 94-247
           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041
                            March 23, 1995
SECRETARY OF LABOR,         :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),    :  Docket No. PENN 94-247
               Petitioner   :  A.C. No. 36-04999-03549
          v.                :
                            :  Mine: Leslie Tipple
POWER OPERATING COMPANY,    :
               Respondent   :  Docket No. PENN 94-201
                            :  A.C. No. 36-02713-03599
                            :
                            :  Docket No. PENN 94-210
                            :  A.C. No. 36-02713-03598
                            :
                            :  Docket No. PENN 94-271
                            :  A.C. No. 36-02713-03602
                            :
                            : Mine: Frenchtown
                             DECISION
 Appearances:  Theresa C. Timlin, Esq., Office of the
               Solicitor, U.S. Department of Labor,
               Philadelphia, Pennsylvania, for
               Petitioner; James J. Sullivan, Jr., Esq.,
               Kathryn A. Kelly, Esq., Pepper, Hamilton
               & Scheetz, Wilmington, Delaware, and
               Michael T. Farrell, Esq., Stradley,
               Ronon,  Stevens & Young, Philadelphia,
               Pennsylvania, for Respondent.
Before:  Judge Amchan
     The seven citations/orders and proposed penalties
in these cases arise from MSHA inspections of Respondent's
mining facilities in central Pennsylvania in the fall of
1993.  The Frenchtown surface coal mine, where the
violation alleged in Docket No. PENN 94-201 occurred and
the Leslie Tipple, where the violations alleged in Docket
Nos. PENN 94-210, PENN 94-247 and PENN 94-271 occurred,
are five to ten miles apart (Tr. II: 21-23).  The Leslie
Tipple includes the preparation plant and refuse area for
the Frenchtown Mine (Tr. II:22)[1].
       Order No. 3710524:  Cut in dump truck tire
     On September 30, 1993, MSHA Inspector Lester Poorman
began inspecting the Frenchtown surface coal mine at 8:30
a.m. (Tr. I: 50).  Immediately upon his arrival at the
pit, at which mining was in progress, Poorman noticed
Caterpillar dump truck No. 130 suddenly leave the pit area
and drive to the mine's tire storage area (Tr. I: 54).
The inspector believed he saw a large cut on the truck's
right front tire (Tr. I: 55,57).
     At the storage area, Poorman measured the cut and
found it to be 38 inches long, 20 inches wide, and two to
three inches deep (Tr. I: 55-56).  It extended from the
inside sidewall in a half-moonlike pattern to the portion
of the tire touching the roadway (Tr. I: 55-57).
     The inspector determined that the day-shift driver
of truck No. 130 had completed an equipment report at the
end of his shift the previous evening (6:00 p.m.,
September 29, 1993), which noted a bad cut in the right
front tire (Tr. I: 58-59, 63)[2].  However, the equipment
report of the night-shift driver did not mention the cut
in the tire (Tr. I: 63, 80-81, 111-112).
     As a result of his observations and an interview with
the day-shift driver, Poorman issued Order No. 3710524,
alleging a violation of section 104(d)(2) of the Act and
30 C.F.R. 77.404(a).  The regulation requires that mobile
and stationary equipment be maintained in safe operating
condition and that unsafe equipment be removed from
service immediately.  MSHA subsequently proposed a $5,000
civil penalty for this order.
                Respondent's defense to the order
     Truck No. 130 was sent to the tire storage area by
Foreman Robert Greenawalt (Tr. I: 57, 94, 97) and the
damaged tire was replaced prior to 11:30 a.m. (Order No.
3710524, block 18, Tr. 94-97).  I credit Greenawalt's
testimony that he sent the truck to tire storage area as
soon as he was aware of the large cut on the right front
tire (Tr. I: 97, 101-02).[3]
     This, however, does not end the inquiry into the
question of whether Respondent violated the cited
regulation or whether it was negligent in doing so.  The
fact that Greenawalt was unaware of the defect in the
tire until sometime on the morning of September 30 is the
result, in part, of the procedures set up by Respondent
for handling reports of defective equipment. I conclude,
on the basis of the operator's report and Inspector
Poorman's testimony, that the vehicle had not been in
safe operating condition at least since the end of the
day shift at 6:00 p.m. on September 29 (Tr. I: 109).
     I conclude further that this vehicle had been used
and had been available for use in an unsafe condition for
a period of 14 hours due to Respondent's procedures for
handling defective equipment reports.  Respondent
contracted with Gem Industries for maintenance of its
equipment (Tr. I: 105-06).  Drivers' vehicle reports went
to Gem Industries, not to Power Operating or its foremen
(Tr. I: 100, 105-06).
     Gem Industries reviewed the equipment reports and
informed Respondent if any corrective action was warranted
(Tr. I: 105-07).  I conclude that Respondent cannot
contract away its responsibility to immediately remove
unsafe equipment from service.  If the contract with Gem
Industries failed to provide a mechanism for prompt
corrective action with regard to the driver's September 29,
1993 report, Power Operating bares responsibility for this
failure under the Federal Mine Safety and Health Act.
     I credit the opinion of Inspector Poorman that
continued use of the truck in the condition in which it
was reported on September 29, and observed on September 30,
was reasonably likely in the normal course of mining
operations to result in a blow-out of the tire.  Its
condition made it reasonably likely that miners would be
seriously injured by flying objects (Tr. I: 66-67),
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984); U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
     On the other hand, I do not believe that the record
supports a conclusion that Respondent's negligence was
sufficiently "aggravated" to constitute an "unwarrantable
failure" to comply with the regulation.  I deem
Respondent's negligence to be ordinary and affirm this
violation as a "significant and substantial" violation of
section 104(a) of the Act.
     Considering the six penalty criteria in section 110(i)
of the Act, particularly the gravity of the violation, the
degree of negligence, and Respondent's immediate abatement
of the violation, I assess a $1,500 civil penalty.  I
believe a penalty of this magnitude is warranted by the
fact that this truck was available for use in an unsafe
condition for at least 14 hours after the defect was
reported by the driver (Tr I: 69, 109-110).
**FOOTNOTES**
     [1]: The assessment control numbers assigned the
proposed penalties in these cases are not consistent with
the mine identification numbers for the locations at which
the alleged violations occurred.
     [2]: Poorman also testified that the driver told him
that when he advised his foreman Robert Greenawalt of the
cut, Greenawalt told him that if he was not satisfied with
the condition of the truck, he could go home (Tr. I: 64-65).
The import of this testimony is that the driver was forced
to use the truck in its defective condition.  I decline to
find, solely on the inspector's hearsay testimony, that any
such conversation occurred.  Moreover, even if such
conversation did occur, it is unclear when it took place
(Tr. I: 67, 101-02). This leaves open the possibility
that the condition of the tire was much less dangerous
than when observed by Inspector Poorman.
     [3]: I allowed Greenawalt to testify over Petitioner's
objection that Greenawalt was not listed in Respondent's
pre-trial exchange.  Since my notice of hearing required
the parties to exchange witness lists only one week before
hearing, I fail to see how Greenawalt's "surprise"
appearance prejudiced Petitioner's trial preparation.
Moreover, Inspector Poorman had been told by the driver
during the inspection that Greenawalt had sent him to the
tire storage area (Tr. I: 57).  In the absence of any
prejudice, I see no basis for excluding Greenawalt's
testimony for Respondent's noncompliance with the
directions in the Notice of Hearing, DeMarines v. KLM Royal
Dutch Airlines, 580 F. 2d 1193, 1201-02 (3d Cir., 1978).
     Respondent's handling of refuse at the preparation
plant: Order No. 3710451 (Docket No. PENN 94-210); Order
Nos. 3710505  and 3710506 (Docket No. PENN 94-271); Order
No. 3710674 and Citation No. 3710675 (Docket No.
PENN 94-247)
     Four of the violations in these dockets concern
whether Respondent's procedures for handing refuse at its
coal preparation plant comport with MSHA's regulations at
30 C.F.R. 77.215.  More specifically, the issues are
whether refuse was deposited and spread so as to minimize
the flow of air through a refuse pile in conformance with
77.215(a), and whether the piles were compacted in
two-foot layers as required by 77.215(h).
            Order No. 3710451 (Docket No. PENN 94-210)
     On October 13, 1993, MSHA Inspector Charles Lauver
inspected the 005 refuse pit at Respondent's preparation
plant (the Leslie Tipple).  Lauver observed a large number
of piles of refuse from the preparation plant that were
between four to eight feet high.  They were peaked in
shape and overlapped at the base (Tr. I: 124, 173).
These piles had not been spread or compacted.  A bulldozer
was pushing dirt on top of the piles of coal refuse[4].
     Because he determined that no effort was being made
to spread and compact the refuse in two-foot layers,
Lauver issued  Order No. 3710451, alleging a violation
of 77.215(h).  That regulation states that, "After
October 31, 1975 new refuse piles and additions to
existing refuse piles, shall be constructed in compacted
layers not exceeding two feet in thickness... ."
     Power Operating's procedure for compacting refuse
was to let it sit for a few days after being dumped at
the refuse pile. Then it covered the refuse with soil,
spread and compacted it (Tr. I: 152, 171).  Respondent's
witnesses testified that the refuse is up to 30 percent
water when dumped and is too loose to support the weight
of the machines that compact and spread it (Tr. I: 151-52,
171-72, 174).  Not only is this testimony not controverted,
it is essentially corroborated by Inspector Lauver and the
Secretary's expert, John Fredland.  Lauver testified:
     Q. .... this material is generally so soft that a
         vehicle could sink into it if it were to drive
         on top of it?
     A.  Yes, sir.        (Tr. I: 146-47).
     Q.  You said that this is a thick mud material that
         is soft enough for a vehicle to sink into it.
         Does it make a difference in your mind whether
         the vehicle is riding over a two or three-foot
         layer of material as opposed to a six-foot pile
         of material in terms of the likelihood of the
         vehicle to sink into it?
     A .... In this case a bulldozer riding over a two
         or three-foot layer of material, the tracks
         are able to get purchase [traction] even if it
         begins to spin. ...  When it gets thicker than
         that the machine will, what we call, belly out
         on the track.  It will rest on the belly pan on
         the underpart of the machine and the tracks will
         be unable to get purchase and they'll sit there
         and spin.        (Tr. I: 147-48).
**FOOTNOTES**
     [4]: This refuse is a mixture of rock, shale, dirt,
clay and fine coal that is cleaned from the raw coal by
washing at the preparation plant (Tr. I: 129, 157).  It
must be deposited in piles regulated by MSHA pursuant to
77.214-77.215-4.
     A major issue between MSHA and Respondent was the
company's practice of stacking large amounts of refuse
adjacent to the preparation plant prior to moving it to
the refuse pile. Although there was considerable testimony
regarding this practice, it appears to have little
relevance to the violations alleged (Tr. I: 219-224).
MSHA apparently believed that the alleged failure to
compact the refuse in accordance with its interpretation
of 77.215(h) was due to the large amount of refuse being
hauled from the preparation plant to the refuse pile in
October and November, 1993.
     Mr. Fredland agreed that a bulldozer would sink into
a refuse pile with moisture content of 30 percent or even
25 percent (Tr. I: 200, 207).
     Respondent argues that nothing in the cited regulation
specifies a time period in which the refuse must be spread
and compacted in two-foot layers.  It contends further that
by compacting the material in two-foot layers after letting
it dry for two to three days it complies with the terms of
77.215(h).  I reach the same conclusion.
     Respondent also suggests that its procedures are
consistent with the underlying rationale of the regulation
which is to minimize air flowing through the refuse pile
so as to prevent fire through spontaneous combustion (see
Tr. I: 135-37, 194-95, 276-78).  There is nothing in this
record that persuades me that waiting several days before
spreading and compacting the refuse created a possibility
of spontaneous combustion in the newly deposited refuse
(see Tr. I: 156).
     There remains the issue of whether the Secretary
proved its case through an expert witness, John Fredland.
Mr. Fredland opined, based on testimony of Inspector
Lauver and Respondent's witnesses, that it would not be
possible for Respondent to achieve a two-foot layer, and
that the refuse would end up in layers as thick as four
feet (Tr. I: 187-89, 192-94, 202-03)[5].
     Larry Kanour, Respondent's safety director, who saw
the piles in question on October 13, 1993, testified that
they "probably" were four to six feet in height
(Tr. I: 173) and that from previous drilling in the
refuse pile he knew that the company was able to compact
the material into two-foot layers (Tr. I: 173).  Given
the state of the record I am not sufficiently persuaded
by Fredland's testimony to conclude that the Secretary
has met his burden of proving that Respondent did not
compact the refuse material into two foot layers.  I
therefore vacate Order No. 3710451 and the corresponding
$1,800 proposed penalty.
     Order Nos. 3710505 and 3710506 (Docket No.
PENN 94-271)
     On November 3, 1993, Inspector Lauver returned to
the 005 Pit (Tr. I: 216).  He observed two areas in
which refuse had been dumped several days earlier without
being spread and compacted (Tr. I: 217, 240, 246).
     As the result of his observations, Lauver issued
Order No. 3710505 alleging another "unwarrantable
failure" to comply with 77.215(h) and Order No. 3710506,
which alleged an "unwarrantable failure" to comply with
30 C.F.R. 77.1713(a).  The latter regulation requires a
examination of each surface installation of a coal mine at
least once each shift.  All hazardous conditions must be
recorded and corrected.  The gravamen of Order No. 3710506
was that a hazardous condition had existed for several
days at the 005 Pit due to Respondent's failure to spread
and compact the refuse cited in Order No. 3710505 and no
record had been made of it.
     Respondent readily admits that the procedures it
followed at its 005 refuse pit were the same as when
inspector Lauver visited it on October 13 (Tr I: 254-55).
Power Operating dumped refuse in the left side of the pit
at the beginning of each week, dumped in the center of
the pit during the middle of the week, and in the right
side of the pit at the end of the week (Tr. I: 256).
The company has been following this procedure for at
least 33 years (Tr. I: 268, 272-73).
     In the middle of each week Respondent began to spread
and compact refuse dumped at the beginning of the week,
which by that time had dried significantly (Tr I: 256-257).
Indeed, Inspector Lauver observed a bulldozer spreading
and compacting material in an area of the pit separate
from those covered by the order (Tr. I: 226, 252)[6].
     I vacate Order No. 3710505 for the same reason that
I vacated Order No. 3710451.  MSHA's regulations do not
require that coal refuse be spread and compacted
immediately upon being dumped at a refuse pile.  Moreover,
there is nothing in this record that would lead me to
conclude that a reasonably prudent person familiar with
the mining industry and the protective purposes of the
standard would recognize that Respondent's procedure for
spreading and compacting refuse violated 77.215, Ideal
Cement Co., 12 FMSHRC 2409 (November 1990).  Although
fire from spontaneous combustion is a hazard at refuse
sites, I am not persuaded that such a hazard exists as
a result of an operator waiting several days for refuse
to dry out before spreading and compacting it.
     Order No. 3710506 is vacated because its validity
rests on Inspector Lauver's assumption that the failure
to spread refuse as soon as it is dumped is a hazardous
condition. Since I am not persuaded that Respondent's
procedure for spreading and compacting refuse was
hazardous, the company's failure to take "corrective"
action or record the existence of the condition did not
violate 77.1713(a).
      Order No. 3710674/Citation No. 3710675 (Docket
PENN 94-247)
     On October 20, 1993, MSHA Inspector Joseph Colton
was inspecting the areas leading to and surrounding
Respondent's preparation plant (Exh. G6-A).  At about
mid-day he observed an area in which the +5 refuse
material was deposited and saw what he believed was smoke
coming from the refuse (Tr. II: 202-03, Exhs. G11-15,
Order No. 3710674, block 8).  The area from which the
white substance was rising had a pungent odor similar to
sulfur (Tr. II: 206-07).
     The +5 refuse is material that is too large to go
through the preparation plant and is separated from the
coal and smaller refuse by a rotary breaker
(Tr II: 203, 299).  It consists of shale, siltstone,
sandstone and some impure coal (Tr. II: 299-300).  It
felt hot to the touch of Colton's gloved hand
(Tr. II: 204-06).
     Colton issued imminent danger Order No. 3710674,
pursuant to section 107(a) of the Act.  Shortly thereafter
he issued section 104(a) Citation No. 3710675 for the same
condition, alleging that Respondent violated 77.215(a),
which requires that refuse deposited on a pile be spread
in layers and be compacted in a manner so as to minimize
the flow of air through the pile.  MSHA proposed a $3,000
civil penalty for this citation/order.
     At Inspector Colton's suggestion, the +5 material was
moved to an empty area near the preparation plant where it
was spread and compacted (Tr. II: 210, 272-73).
Respondent's normal procedure for handling +5 refuse is to
deposit it on the ground by the preparation plant for
three to four days and then process it a second time in
order to recover residual coal (Tr. II: 290-92).  It is
then hauled to the 005 refuse pit where it is spread and
compacted (Tr. II: 317-18).
     I vacate Citation No. 3710675 and the penalty
proposed therefor because 77.215(a) does not specify a
time period in which such refuse must be spread in layers
and compacted. I also conclude that a reasonably prudent
person familiar with the mining industry and the purposes
of the standard would not necessarily conclude, on the
basis on the instant record, that Respondent's normal
procedures for handling +5 refuse violated the regulation.
     In so finding, I credit the testimony of Respondent's
witness, John Foreman, over that of Inspector Colton in
concluding that the white gaseous substance observed by
Colton was water vapor, rather than smoke, and the +5
refuse was not on fire (Tr. II: 295-303).[7]  Inspector
Colton believed that miners were reasonably likely to
incur permanently disabling injuries due to exposure to
noxious gases emitted from the smoking +5 refuse pile
(Tr. II: 221-22, Citation No. 3710674, block 10).
     Inspector Colton is a high school graduate and has
been trained as an electrical specialist by MSHA
(Tr. II: 32-36). Mr. Foreman has a college degree in
geological science and is a consultant who permits,
constructs and manages refuse piles (Tr. II: 295-299).
I conclude that Mr. Foreman is better qualified to
render an opinion of the nature of the emissions from
the +5 refuse pile than is Inspector Colton. Therefore,
I find that this record fails to establish that exposure
to the vapor from the +5 refuse exposed miners to a
hazard.
             Order No. 3710673: Unsafe haulage roads
     Upon his arrival at the Leslie Tipple on October 20,
1993, Inspector Colton started to drive up a hill on the
road leading to the raw coal storage area (Tr. II: 40-43,
Exh. G6-A, road "A").  At the base he noticed that the
truck in front of him was having difficulty negotiating
the hill.  It was moving very slowly and its wheels were
spinning (Tr. II: 42).
     October 20 was the fifth straight day that it had
rained at the Tipple and the mud on the road was
approximately 18 inches deep (Tr. II: 46, 143-44, Exh. 21).
Colton saw another truck coming down the hill which was
travelling in short jerky move-ments, which indicated to
the inspector that the driver was trying to avoid a skid
to the center of the road (Tr. II: 43).  One of the
drivers told Colton that he had observed another truck
slide sideways on the hill earlier that morning
(Tr. II: 49-50).
     Colton drove to the scale house at the preparation
plant to inform plant manager John Soltis that he was
issuing a with-drawal order pursuant to section 104(d)(1)
of the Act so as to require Respondent to remove the
accumulated mud from the roadway (Tr II: 51).  As he was
talking to Soltis, a front-end loader drove by the scale
house and entered an area where it travelled through five
feet of water (Tr. II: 51-52, Exh. G-6A, area "E").
     The inspector issued 104(d)(1) Order No. 3710673 for
both these conditions.  The order alleges a failure to
comply with 30 C.F.R. 77.1608(a).  The standard requires
that dumping locations and haulage roads be reasonably
free of water, debris and spillage.
     Colton was particularly concerned about the
possibility of a collision between two trucks on the
haulage road, at a point where it intersected with another
road (Tr. II: 90-91).  At the other cited location he was
concerned that a vehicle driver using
**FOOTNOTES**
     [5]: I allowed Mr. Fredland to testify at the hearing
despite Respondent's objections that his testimony should
be excluded because the Secretary did not timely identify
him as a witness by October 11, 1994, as required in the
notice of hearing. Pursuant to my pretrial orders in this
case, the parties were not required to exchange the names
of witnesses until a week before the October 18, 1994
hearing.  The Secretary did not identify Mr. Fredland as a
witness until October 14.
     There are four factors that should be considered in
deciding whether to exclude testimony for failure to timely
comply with pre-trial notice requirements:  (1) the
prejudice or surprise to the other party, (2) the ability
of the other party to cure the prejudice or surprise, (3)
the extent to which allowing the witness to testify would
disrupt the orderly and efficient trial of the case, and
(4) the bad faith or willfulness in failing to (Footnote. 5,
continued) comply with the pre-trial disclosure
requirements, DeMarines v. KLM Royal Dutch Airlines,
580 F.2d 1193, 1201-02 (3d Cir. 1978)). Considering the
above factors, I conclude that excluding Mr. Fredland's
testimony would have been unwarranted.
     I note that on June 9, 1994, Respondent served inter-
rogatories on the Secretary requesting him, among other
things to, "Identify all persons who possess knowledge or
information relevant to the above-captioned matter."  I do
not interpret this interrogatory as asking for the
identification of any expert witness that may be called to
testify at trial.  If I did interpret the interrogatory as
covering the identity of potential expert witnesses, I may
well have excluded Mr. Fredland's testimony.  In part as
the result of the instant proceeding, I have changed my
prehearing orders to require the exchange of the names of
potential witnesses, including experts, at an earlier stage
in the pre-trial process.
     [6]:Although Lauver's testimony suggests that the
bulldozer was spreading and compacting refuse as it was
dumped, Respondent's evidence indicates that it never spread
and compacted refuse that had been through the wash plant
until it had several days to dry out (Tr. I: 265-66).
     [7]:I allowed Mr. Foreman and several other witnesses
to testify over the objections of the Secretary's counsel.
These witnesses were not identified by Respondent in the
prehearing exchange.  I reiterate my conclusion that
exclusion of such witnesses was not warranted, see
discussion at pages 6-7, n.5, herein.  This is particularly
true in view of the fact that I offered both sides the
opportunity to reconvene the hearing at a site agreeable
to the parties to take additional testimony in order to
cure whatever prejudice either of them may have suffered
from "surprise" witnesses or exhibits (Tr. II: 308-311).
Neither party has availed themselves of this offer. I
acknowledge that, while the Secretary's "surprise" witness
and exhibits have little bearing on the outcome of this
case, Mr. Foreman's expert testimony is an important factor
in my resolution of Citation No. 3710675.  It is his
testimony that persuades me that no hazard was presented to
miners by Respondent's procedures for handling +5 refuse.
a fueling station adjacent to the scale house could drown
in the water impounded by +5 refuse (Tr. II: 70, 91-92,
116-17, 147, 151-54, Exhs. G7-9).
     Respondent concedes that it was having trouble keeping
the haulage road free of mud, but suggests it was doing the
best it could.  It had scraped the mud from the road with a
front-end loader earlier that morning (Tr. II: 160).  Power
Operating claims that the area in which water was allowed
to accumulate south of the scalehouse was not accessible to
its vehicles.  It contends that all drivers had been told
not to enter the area (Tr. II: 163, 166-67, 177-78, 192-93).
     I affirm this alleged violation as a "significant and
substantial" violation of 77.1608(a) with regard to both
areas and assess a $1,250 civil penalty.  The Secretary has
not established that the violations in either area were the
result of Respondent's "unwarrantable failure" to comply
with the regulation.
     I credit Inspector's Colton's testimony and find the
haulage road was not "reasonably free" of water and debris
and was in extremely dangerous condition.  Respondent
recognized that the wet conditions of the preceding days
had made the road dangerous and took some steps to
eliminate the hazard by pushing the mud to the bottom of
the road (Tr. II: 190). However, given the conditions
observed by Colton, the company obviously did not scrape
the road often enough.
     Respondent had knowledge of the propensity for this
road to become dangerously muddy.  Thus, it was incumbent
upon Respondent to assure that hazardous conditions did not
recur before letting vehicles use the road.  Since it
failed to do this, I find its conduct negligent, although
not sufficiently aggravated to sustain a characterization
of "unwarrantable failure."
     Given the conditions observed by Inspector Colton, I
find, however, that an accident resulting in serious injury
was reasonably likely and that these conditions were due to
some considerable degree of negligence on the part of
Respondent. I conclude that the gravity of the violation
and Power Operating's negligence in allowing it to occur
warrant a $1,250 penalty.
     I also credit Inspector Colton's testimony that he
observed a front-end loader travelling through the impounded
water in the +5 refuse area.  Further, I credit his
testimony that vehicle drivers using the fueling pump near
the scalehouse were endangered by this accumulation of
water.
     While I credit Respondent's testimony that it took
steps to prevent access to the accumulated water, I conclude
that these steps were insufficient, as evidenced by the
direct observations of Inspector Colton.  Since Power
Operating management realized the potential hazard posed by
the impounded water, I conclude that it was obligated to
take more concerted measures to preclude miners from
entering this area.  The record does not establish that
Power Operating took measures that would have assured that
all miners would stay out of impounded water.
     Given the action taken by Respondent to warn its
employees, I conclude that its conduct does not rise to the
level of aggravated conduct, but was sufficiently negligent
to warrant the imposition of the $1,250 penalty assessed
for the violations in both areas.  The precautions taken by
Power Operating to prevent access to this area indicate its
awareness that entry into the impounded water area was
reasonably likely to result in serious injury.
     Order No. 3710704: Accumulation of combustible
material in the old bucket shop
     On October 26, 1993, Mr. Colton inspected the old
bucket shop at Respondent's preparation plant (Tr. II: 224).
At the north end of the shop is a door used by Respondent to
bring a front-end loader partially inside the building for
lubrication.  Three 275-gallon drums of lubricant and
several smaller drums were positioned by the door.  There
were oil soaked rags, wooden containers, wooden pallets,
grease and other combustible materials around these drums
of lubricant (Tr. II: 225-228).
     Fluorescent lights, electrical sockets and an air
compressor were also in this area.  Inspector Colton
believed the conditions posed a fire hazard and therefore
issued Order No. 3710704, pursuant to section 104(d)(1)
of the Act, alleging a violation of 30 C.F.R. 77.1104.
That standard prohibits the accumulation of combustible
materials, lubricants and grease where such substances can
create a fire hazard.
     While I credit Inspector Colton's opinion that these
conditions at the north end of the bucket shop created a
fire hazard, I conclude that the Secretary has not proven
that a fire resulting in serious injury was reasonably
likely.  The record also does not establish that Respondent
was highly negligent in allowing this condition to exist.
I therefore affirm this violation as a "non-significant
and substantial" violation of section 104(a) of the Act.
Applying the six criteria in section 110(i) of the Act, I
assess a $400 civil penalty.
     Respondent had applied some oil-dry, a substance which
soaks up grease and oil, in front of the tanks and drums.
While it should have cleaned up the area better, I deem its
failure to do so constitutes a moderate degree of
negligence.
     I also conclude that the violation was not nearly as
serious as assumed by the inspector.  Mr. Colton was
concerned that a spark caused by a fault in an electrical
circuit could cause a fire (Tr. II: 234).  The record,
however, does not establish that such a spark was
reasonably likely to occur, or that it was reasonably
likely to cause a fire (Tr. II: 262-70, 287-93).
     The inspector also based his opinion of the likelihood
of fire on an assumption that hot vehicle exhausts would
enter the bucket shop (Tr. II: 234). However, I credit the
testimony of Assistant Plant Manager Gary Crago that the
only vehicle entering the north end of the bucket shop is
a front-end loader (Tr. II: 292). I further credit his
testimony that this vehicle enters the shop only half-way
with the exhaust (the hottest surface on the vehicle)
outside of the building (Tr. II: 289).
                         ORDER
     Citation No. 3710524 is affirmed as a significant and
substantial violation of section 104(a) of the Act and a
$1,500 civil penalty is assessed.
     Citation No. 3710673 is affirmed as a significant and
substantial violation of section 104(a) of the Act and a
$1,250 civil penalty is assessed.
     Citation No. 3710704 is affirmed as a non-significant
and substantial violation of section 104(a) and a $400
civil penalty is assessed.
     Order Nos. 3710451, 3710505, 3710506 and Citation No.
3710675 and the corresponding proposed penalties are
vacated.
     The assessed civil penalties in this matter shall be
paid within 30 days of this order.
                           Arthur J. Amchan
                           Administrative Law Judge
Distribution:
Theresa C. Timlin, Esq., Office of the Solicitor, U.S.
Department of Labor, 14480 Gateway Building, 3535 Market
St., Philadelphia, PA 19104 (Certified Mail)
James J. Sullivan, Jr., Esq., Kathyrn A. Kelly, Esq.,
Pepper, Hamilton & Scheetz, P.O. Box 1709, 1201 Market
Street, Suite 1401, Wilmington, DE 19899-1709 (Certified
Mail)
/lh