<DOC>
[DOCID: f:ws99353.wais]

 
NORTHWEST AGGREGATES
November 26, 2001
WEST 99-353-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        November 26, 2001

SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. WEST 99-353-M
               Petitioner        : A. C. No. 45-03334-05508
          v.                     :
                                 :
NORTHWEST AGGREGATES,            : DuPont Pit
               Respondent        :
                                 :
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. WEST 2000-481-M
               Petitioner        : A. C. No. 45-03334-05518 A
          v.                     :
                                 :
RICHARD INWARDS, employed by,    :
  NORTHWEST AGGREGATES,          : DuPont Pit
  d/b/a, GLACIER NORTHWEST,      :
               Respondent        :

                             DECISION

Appearances: Deia W. Peters, Esq., Office of the Solicitor,
             U.S. Department of Labor, Seattle, Washington, on
             behalf of Petitioner;
             John M. Payne, Esq., Davis, Grimm & Payne, Marra &
             Berry, Seattle, Washington, on behalf of Respondent.

Before: Judge Zielinski

     These cases are before me on Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor against Northwest
Aggregates and Richard Inwards pursuant to sections 105 and
110(c) of the Federal Mine Safety and Health Act of 1977 (the
"Act").  30 U.S.C.  815 and 820(c).  The petitions allege that
the corporate operator and individual agent of the operator are
each liable for two violations of mandatory safety and health
standards.  The Secretary proposes civil penalties totaling
$10,000.00 as to Northwest and $6,500.00 as to Inwards.  A
hearing was held in Tacoma, Washington on June 12-13, 2001.
Following receipt of the transcript, the parties submitted
briefs.

     For the reasons set forth below, I find that Northwest
committed the violations alleged and impose civil penalties
totaling $3,250.00.  I further find that the Secretary failed to
prove that Inwards was liable for the violations in his
individual capacity and vacate the citations issued to him.

Background

     On or about February 10, 1999, MSHA was notified by phone
that an accident had occurred on February 5, 1999 at Northwest
Aggregates' mine, the DuPont pit.  It was reported that a front
end loader had been partially covered by a slide of material down
the pit wall and that the operator had been pinned in the cab.
On February 11, 1999, Herbert Bilbrey, an MSHA inspector, went to
the DuPont pit to investigate the accident.  After conversing
with witnesses and observing the scene, he issued citations to
Northwest Aggregates alleging violations of mandatory health and
safety regulations for failure to inspect and test ground
conditions and using unsafe mining methods.  Subsequently, a
special investigation was conducted, which resulted in identical
violations being charged against Northwest's superintendent,
Richard Inwards, in his individual capacity.  Those same charges
were also made against Mark Snyder, the excavation crew foreman.
However, the Secretary elected not to proceed against Snyder and
the petition filed against him was dismissed on her motion.

                         Findings of Fact

     Northwest Aggregates mines sand and gravel in the area
around Tacoma, Washington.  Mining operations were conducted for
many years at two locations, the Steilacoom pit and the DuPont
pit, which are located 7-8 miles apart.  The minerals were
deposited by glacier movement approximately 10,000 years ago and
are very clean, i.e., there are minimal amounts of fines, or
foreign material.  The materials at the Steilacoom pit had
approximately 1% fines and at the DuPont pit 3-4% fines.
Deposits with less than 5% fines are classified as free draining
granular deposits.  The Steilacoom pit has been in operation
since 1977 and the DuPont pit, comprising some 600 acres, opened
formally in 1996.  The DuPont pit operates under a permit that
allows only 30 acres to be actively worked at  one time, 10 acres
being cleared, 10 acres being mined and 10 acres being reclaimed.
The excavation portion of the operation, the pit, is located
about one mile from the mine's offices.

     The first step in the mining process involves clearing of
the overburden using a bulldozer.  The underlying sand and gravel
is then scooped up with large front end loaders, CAT model 992's,
and dumped onto a conveyor belt that transports the material from
the pit area.  The 992 loaders are very large machines.
Northwest ordered the loaders with oversized, 23 foot wide,
buckets.  The buckets are 8 feet deep at the throat and 7 feet
nine inches high.  The distance from the teeth of the bucket to
the front of the 8 foot diameter rear wheels is 23 feet.  The
operator sits about 13 feet above ground level.  Two 992's are
operated on two shifts and one dozer operates at the top of the
pit, clearing overburden and pushing sand and gravel down the pit
wall to the loaders.  The material is generally free running,
that is, it readily slides down the slope of the pit wall to its
natural angle of repose.  This movement is referred to as
sloughing and the loose material lying at the base of the wall is
referred to as "the slough."

     The mining method used by Northwest involves the use of
loaders to mine the slough, i.e., scoop up the loose material
that has sloughed down to the base of the pit wall.  The loader
operators were to "fan out," mining as wide an area as they
could.  Under normal conditions, the free running material would
continue to slough to its natural angle of repose, and by the
time they returned to an area newly sloughed material would be
available.  If, for some reason, the material in a particular
area did not slough readily, or overhangs or ridges of unsloughed
material appeared on the pit wall, the operators were supposed to
avoid that area until it sloughed or call for the dozer to push
material off the top and down the face of the pit wall,
essentially forcing the material to slough.  The loader and dozer
operators, as well as the excavation foreman, Mark Snyder, and
other employees had radios and could contact each other at will.
The loaders dug downhill at an approximately 5 degree angle and
as progress was made the pit wall became increasingly high.  At
the time of the accident on February 5, 1999, the wall was about
100 feet high.  One of the dangers posed by a wall that high is
that there is a large area of the slope in which hangups of
material may occur.  That material will eventually break loose,
or slough, and can cause other material to slough resulting in a
large amount of material sliding down the face of the wall to
where the loader operators are working.

     To avoid such dangers the loader operators were to fan out
and mine the slough over a wide area at the base of the wall,
thereby allowing time for the material to slough naturally, such
that overhangs and hung up material would be eliminated by the
time they returned to an area.  In addition, the loader operators
were to watch the high wall for such developments and avoid
working below those areas until the material sloughed.  They
could also use their radios to contact the dozer operator or the
excavation foreman to request that the dozer push material off
the top of the wall, which would generate a slough.  This mining
method was used at the Steilacoom pit and also at other sand and
gravel mines in the same area where the materials were similar to
those being mined by Northwest.  Stephen Dmytriw, a licensed
civil engineer, certified MSHA safety instructor, an instructor
at the Colorado School of Mines and a retired MSHA inspector,
testified as an expert witness in civil engineering, mining
techniques, slope stability and rock mechanics.  He described the
nature of the materials being mined and the mining method used by
Northwest and several other sand and gravel mines in the area.
In his opinion, the mining method used by Northwest was
appropriate and safe and was identical to that used by other
mines in that area.

     On the morning of Friday, February 5, 1999, the day shift
loader operators, William Wallace and Jack Zinski, reported for
work at their normal time, approximately 6:00 a.m.  It was
raining and they commenced mining in the DuPont pit.  About 7:00
a.m., they took a break to attend a weekly safety meeting of the
excavation crew conducted by foreman Snyder.  Following the
meeting they returned to work.  Zinski was mining on the left
side of the approximately 400 yard wide pit wall and Wallace was
mining on the right.  Snyder had directed him to mine in that
area earlier in the week, Tuesday or Wednesday, because the
material there had a higher sand content and the mine needed more
sand.  As Wallace mined the area, he did not fan out widely.
Rather  he  mined  an  area  only  about  2-3  buckets,  i.e.
approximately 60 feet wide.  He removed the loose slough at the
bottom of the wall and used his bucket to remove some of the
consolidated material at the base of the wall.  A large slough
occurred, burying the bucket of his loader and engulfing the
front wheels.  He tried to back the loader out, but was unable to
do so, and called Zinski on his radio requesting help in digging
his loader out of the slough.  Zinski, who had just scooped a
load of material, responded immediately, dumping his load as he
proceeded toward Wallace.  In the short time it took Zinski to
reach Wallace a second major slough occurred that engulfed
Wallace's loader and forced the windshield of the loader out of
its frame pressing Wallace's chest against the back of the seat.
Wallace could not breath.  Fortunately, Zinski reached him
quickly and was able to pull the windshield out of the material,
which relieved the pressure enough for Wallace to breath.
Zinski, other crew members, Snyder and Inwards, all of whom
responded to radio calls for help, were able to extricate Wallace
and his loader.  Wallace was taken to a medical facility to see
if he suffered any treatable injury.

     While this was the first incident in which an loader
operator had suffered an injury because of sloughing material, it
was not the first time a loader had been partially engulfed.
Wallace's loader had been partially engulfed in the summer of
1998.  He had mined a fairly narrow area, creating a pocket, and
material sloughed over his bucket and down around the front
wheels of his loader, which had to be freed by the other loader.
On other occasions, Snyder and Inwards had each seen Wallace
mining too narrow an area, i.e., failing to fan out sufficiently,
and had cautioned him and instructed him to mine a wider area. A
loader operator on the second shift had also had his equipment
partially engulfed on two occasions.  He also had mined in a
narrow area, creating a pocket.  Snyder was not informed about
those incidents until the second had occurred.  Management
officials and miners characterized the practice of mining in too
narrow an area as digging into a "death trap."  The danger
created by that technique was that greater instability of the
bank would be created and material could slough down around the
sides of the loader as well as from the face, or front.

     When Bilbrey conducted his investigation on February 11,
1999, six days after the incident, he spoke with management
employees, including Inwards and Snyder, the loader operators,
Wallace and Zinski, and visited the pit.  The equipment was not
there at the time and no mining was being done, ostensibly
because there was an abundance of material.  He was told that the
area had been altered somewhat, in that the floor of the pit had
been filled in such that the bank, then approximately 90 feet
high, was slightly lower than it had been at the time of the
accident.  He took pictures of the pit area, including the
location of the accident.  He concluded that the bank, or high
wall, was not in a stable condition because there were portions
of the face that were not at the angle of repose.  Conflicting
statements were made that the dozer had been unavailable to push
material down to the loaders from one to several weeks prior to
the accident.  He was told by Snyder that the mine had no policy
on designating persons to inspect and test ground conditions and
that no one had been specifically designated to do so.

     He concluded that Northwest had violated two mandatory
health and safety standards and issued citations for each.
Following a special investigation, those violations were also
issued against Inwards in his personal capacity.

          Conclusions of Law - Further Factual Findings

Citation No. 4531826

     Citation No. 4531826 alleged a violation of 30 C.F.R. 
 56.3130,  which requires the use of mining methods "that will
maintain wall, bank, and slope stability in places where persons
work or travel in performing their assigned tasks."  The
conditions he observed were noted on the citation as:

     Mining methods were not used that would maintain the
     wall, bank and slope stability in the pit where two 992
     Cat front-end-loaders work daily on two shifts.  An
     about 90 [foot tall] wall of sand and gravel was being
     mined single bench and the ground could not be
     controlled.  On 2/5/99 an employee was engulfed in his
     992 from the wall, pushing the windshield in his lap
     and burying him chest high in cab in material.  The
     mine operator knew the ground conditions were bad and
     used a dozer to push material over until about 2-3
     weeks ago.  This is not the first time a front end
     loader has been covered up by the high wall.  This
     violation is an unwarrantable failure to comply with a
     mandatory standard and presents a high degree of risk
     to miners in the pit. [The citation was modified on
     March 17, 1999 to add the following language.]  Dick
     Inwards and Mark Snyder engaged in aggravated conduct
     constituting more than ordinary negligence in that they
     did not implement mining methods that maintained wall,
     bank and slope stability.

     He determined that as a result of the violation it was
highly likely that a fatal injury would occur, that one person
would be affected, that the violation was significant and
substantial, and, that the operator's negligence was high.

The Violation

     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).

     Bilbrey issued the citation because he concluded that
Northwest was not following its mining method on February 5,
1999.[1]  His primary consideration was that the dozer had not
been available to push material down to the loaders for at least
a week and as a result the bank had become unstable and 
collapsed around Wallace's loader.  He based his determination 
on his observations of the high wall on February 11, 1999 and
conflicting  statements  made  during  the  course  of  his
investigation that the dozer had not been used to push material
to the loaders for 1-2 weeks or 4-6 weeks prior to the accident.
It is somewhat unclear who made these statements, but one source
relied upon was Victor Ghilerghi, the assistant superintendent.
Ghilerghi was a young college graduate who had been working for
Respondent for approximately one year and was "learning the
mining business."  There is no evidence that he had any
significant contact with the excavation operation.

     Bilbrey observed the high wall on February 11, 1999, and
thought that it was unstable.  He noted some hangups and
concluded that most of the sloughed material had come down
naturally as opposed to having been pushed down by a dozer.  He
felt that the conditions verified statements to the effect that
the dozer had not been used to push material for weeks prior to
the accident.  However, there was some evidence that the
condition of the wall on February 11, 1999, had been altered
since February 5, 1999.  The loader operators, who were present
during Bilbrey's inspection, stated that the bottom had been
filled, in raising the elevation of the floor some 15 feet.  It
was unclear whether there had been material pushed off the top of
the wall. There were relatively fresh dozer tracks on the top of
the bank, but they were parallel to the wall, not perpendicular
as they would have been for the pushing of material.  Notably,
the area identified as having been where the accident occurred
was, in Bilbrey's opinion, in a safe condition with material at
or near its angle of repose.

     Zinski, Wallace and Snyder, however, testified that the
dozer was working near the top of the bank around the time of the
accident and had been pushing material to Zinski the day before
the collapse.  While there was some disagreement, it is apparent
that a dozer can push material down the bank at a considerably
faster rate than a loader can remove it.  Consequently, Zinski
was satisfied that the natural slough, augmented by the material
pushed down the bank by the dozer the day before, had produced
enough sloughed material for him to mine on the day of the
accident.  Wallace also testified that he had called for a dozer
on prior occasions and that material had been pushed to him in
response, but that he had not called for a dozer to push material
to him on February 5, 1999.  It should be noted that Wallace had
filed a lawsuit against Northwest as a result of the incident.
The status of the case at the time of the hearing was that it had
been dismissed without prejudice to its re-filing.

     I credit the testimony of Snyder and Zinski, which was
consistent with that of Wallace, likely an adverse witness, that
the dozer was active in the area and had pushed material down the
day before.  Consequently, I reject Bilbrey's conclusion, perhaps
justifiable in light of the conflicting statements made on the
day of his inspection, that the dozer had not been available for
weeks prior to the accident.

     Although not noted by Bilbrey in the citation, the Secretary
contends that Wallace was instructed to mine in a narrow area and
his ability to fan out was restricted.  The evidence on whether
Wallace's ability to fan out was restricted and whether he raised
concerns about it was in direct conflict.  I decline to accept
that argument as a cause of the accident.  Wallace's testimony
was somewhat inconsistent with respect to his mining efforts on
and around the date of the accident.  He testified that the area
he had been instructed to mine in was narrow, restricting his
ability to fan out until he dug down to Zinski's level and
reached the base of the high wall.  He testified further that the
wall collapsed before he reached the base of the wall, but also
admitted that he had gotten into the base of the wall before the
collapse.  The descriptions of the scene provided by those who
rescued him indicated that he had dug into the high wall, beyond
the natural slough line.  Even if he had been instructed to mine
in a relatively narrow area, the critical inquiry would still
center on Wallace's ability to recognize unstable conditions and
call for the dozer to push material down the bank to alleviate
them.

     Wallace also testified that the dozer was unavailable to
push material to him that week.  However, it is apparent from his
testimony as a whole that his reference to "unavailability"
described any situation where the dozer operator was doing
something other than pushing material to Wallace, not that the
dozer would or could not have responded had Wallace requested
that material be pushed to alleviate unstable conditions where he
was working.  For example, Wallace stated that the dozer was
pushing material to Zinski, a few hundred  yards away, on the day
before the accident and, presumably, could easily have responded
to a request for assistance.  However, Wallace claimed that the
dozer had been "unavailable" to push material to him for about a
week.  Significantly, there is no evidence that he requested that
the dozer push material to him that week and he testified that,
on February 5, 1999,  he did not request that a dozer push
material to remedy unstable conditions in the area where he was
mining and, in fact, stated that he did not observe any unstable
conditions prior to his loader being engulfed.[2]

     Despite my rejection of the Secretary's contentions, it is
clear that unsafe mining methods were being used on February 5,
1999 and that a violation was proven.  However, the violation was
attributable to Wallace's disregard of Northwest's established
mining method, not the systemic unavailability of a dozer.

     As Respondents themselves vigorously argue, Wallace was
mining in a relatively narrow area.  Unstable conditions
developed because the wet material did not readily slough to its
angle of repose.  He failed to note the development of the
instability, or mistakenly thought that the conditions did not
pose a hazard.  He did not raise the issue at the safety meeting.
He did not cease mining in that area until the material sloughed
naturally.  Rather, he continued to mine the narrow area, did not
use his radio to request that the dozer operator push material
down to him, and actually worked into the consolidated material
at the toe of the bank.  He mined into a pocket and created
unstable conditions that resulted in an extensive collapse of
material around his loader that could easily have killed him.

     It is well settled that under the Act mine operators are
subject to a strict liability standard, i.e., an operator is
liable for a civil penalty even though its supervisory employees
are without fault with respect to the violation of a mandatory
health and safety standard.  ASARCO, Inc. v. FMSHRC, 868 F.2d
1195 (10th Cir. 1989) (aff'g 8 FMSHRC 1632) and cases cited
therein.  That the violation was the result of an individual
miner's actions does not absolve Northwest of liability for the
violation.  It does, however, affect the unwarrantable failure
analysis.  Northwest is, therefore, liable for the violation
cited in Citation No. 4531826.

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).

     In Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984), the
Commission explained:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum, the Secretary 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. (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 stated further as follows:

     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).

     The violation was S&S.  The use of an unsafe mining method
contributed to creation of a hazard, an unstable high wall, that
resulted in a reasonable likelihood that an injury would occur
and that the injury would be serious.  While the Secretary need
not prove that the hazard contributed to resulted in an accident
or actually will result in an injury causing event, Arch of
Kentucky, 20 FMSHRC 1321, 1330 (Dec. 1998), the hazard
contributed to here actually did result in a serious, life
threatening, injury to Wallace.

Unwarrantable Failure

     In Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999), the
Commission reiterated the law applicable to determining whether
a violation was the result of an unwarrantable failure.

          The unwarrantable failure terminology is taken
     from section 104(d) of the Act, 30 U.S.C.  814(d), and
     refers to more serious conduct by an operator in
     connection with a violation.  In Emery Mining Corp., 9
     FMSHRC 1997 (Dec. 1987), the Commission determined that
     unwarrantable failure is aggravated conduct
     constituting more than ordinary negligence.  Id. at
     2001.  Unwarrantable failure is characterized by such
     conduct as "reckless disregard," "intentional
     misconduct," "indifference," or a "serious lack of
     reasonable care."  Id. at 2003-04; Rochester &
     Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
     see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,
     136 (7th Cir. 1995) (approving Commission's
     unwarrantable failure test).  The Commission has
     recognized that a number of factors are relevant in
     determining whether a violation is the result of an
     operator's unwarrantable failure, such as the
     extensiveness of the violative condition, the length of
     time that the violative condition has existed, the
     operator's efforts to eliminate the violative
     condition, and whether an operator has been placed on
     notice that greater efforts are necessary for
     compliance.  Mullins & Sons Coal Co., 16 FMSHRC 192,
     195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
     (Aug. 1992).  The Commission also considers whether the
     violative condition is obvious, or poses a high degree
     of danger.  BethEnergy Mines, Inc., 14 FMSHRC 1232,
     1243-44 (Aug. 1992) (finding unwarrantable failure
     where unsaddled beams "presented a danger" to miners
     entering area); Warren Steen Constr., Inc., 14 FMSHRC
     1125, 1129 (July 1992) (finding violation aggravated
     and unwarrantable based on "common knowledge that power
     lines are hazardous, and . . . that precautions are
     required when working near power lines with heavy
     equipment"); Quinland Coals, Inc., 10 FMSHRC 705, 709
     (June 1988) (finding unwarrantable failure where roof
     conditions were "highly dangerous"); Kitt Energy Corp.,
     6 FMSHRC 1596, 1603 (July 1984) (conspicuous nature of
     the violative condition supports  unwarrantable failure
     finding).

     I do not find that the violation was the result of an
unwarrantable failure by Northwest.  The primary bases for
Bilbrey's determination that the operator's negligence was high
and that the violation was an unwarrantable failure were his
conclusions that the dozer had not been available to push
material to the loaders for a period of weeks prior to Wallace's
accident and that other similar events had occurred in the past.
The availability of a dozer was an important component of
Northwest's mining method.  While the material tended to slough
naturally, it was often necessary to push material down the bank
to eliminate unstable hangups of material and augment the natural
slough.  The unavailability of the dozer for an extended period
of time would, indeed, be evidence of high negligence.  However,
as noted above, I have found that the dozer was, in fact,
available to push material and had been used the day before the
accident.  Wallace also admitted that he had not called for a
dozer to push material to him.  With the availability of the
dozer, Northwest's mining method was appropriate.

     The fact that there had been past instances where loaders
had been partially engulfed does not alter this conclusion.  The
weight of the evidence as to the cause of those incidents was
that the operators had deviated from Northwest's established
mining method, i.e., had mined in too narrow an area creating an
unsafe pocket.[3]  Those incidents had been appropriately dealt
with by Northwest.  While the miners were not formally
disciplined for their actions, they were, in essence,
reprimanded.  It would also have been reasonable to assume that
the occurrences would have impressed upon the involved operators
the very real dangers posed by deviations from the established
mining method.  Northwest was on notice that Wallace had, on two
prior occasions, mined in too narrow an area.  At least in
retrospect, it could be faulted for not taking more aggressive
actions to deter such conduct.  However, its failure to do so
does not amount to high negligence or aggravated conduct.[4]

     It is significant that Northwest, which had used the same
mining method for decades, had not been cited by MSHA for unsafe
mining methods in any prior inspection.  Lack of prior
enforcement is not relevant to the determination of a violation
but is relevant evidence on the issue of negligence.  See, U.S.
Steel Mining Co., Inc., 15 FMSHRC 1541, 1547-47 (Aug. 1993).  I
find that Northwest's negligence was low to moderate and that the
violation was not the result of its unwarrantable failure.

Citation No. 4531825

     Citation No. 4531825 alleged a violation of 30 C.F.R. 
56.3401,  which provides, in pertinent part:

      56.3401 Examination of ground conditions.

          Persons experienced in examining and testing for
     loose ground shall be designated by the mine operator.
     Appropriate supervisors or other designated persons
     shall examine and, where applicable, test ground
     conditions in areas where work is to be performed prior
     to work commencing, after blasting, and as ground
     conditions warrant during the work shift. * * *

The conditions he observed were noted on the citation as:

     The mine operator failed to designate a person or
     persons experienced in examining and testing for loose
     ground conditions at the pit.  The pit foreman, Mark
     Snyder, stated that he was in charge of the pit and he
     did no such exam nor did he assign these duties.  The
     ground conditions change rapidly with the heavy rains
     this time of year.  The pit was not examined prior to
     work commencing and as ground conditions warrant.  An
     employee was covered up with material from the wall
     operating a 992 front end loader on 2/5/99.  This
     violation is an unwarrantable failure to comply with a
     mandatory standard.  Mine pit runs two shifts.  Failure
     to comply with this standard presents a high degree of
     risk to miners. [The citation was modified on March 17,
     1999 to add the following language.] Pit foreman, Mark
     Snyder, engaged in aggravated conduct constituting more
     than ordinary negligence in that he was in charge of
     the pit and did not assign these duties of inspecting
     the ground conditions to anyone nor did he do the
     inspections himself.

     He determined that as a result of the violation it was
highly likely that a fatal injury would occur, that one person
was affected, that the violation was significant and substantial,
and, that the operator's negligence was high.

The Violation

     Northwest had no formal policy, written or unwritten, of
designating individuals to conduct examinations and testing of
ground conditions either prior to the commencement of work or as
conditions warranted during the work shift.  Snyder was generally
at the pit once a day or more, but there is no claim that his
visits were made prior to work commencing or as dictated by
changing ground conditions and he had not gone to the pit on
February 5, 1999, prior to the accident.

     Northwest's defense to this charge is that, by virtue of
their job descriptions, the loader operators were supposed to
continuously survey the high wall for unsafe conditions and, if
the natural slough of material was insufficient, move to another
area and call for the dozer to push material to eliminate the
instability.  This duty to keep an eye on the high wall was
periodically reinforced at safety meetings.  Consequently,
Northwest argues, the loader operators had been designated to
examine ground conditions and were doing so at the time.

     This is clearly an after-the-fact justification, and an
inadequate one.  It is apparent that Northwest had made
essentially no effort to comply with the regulation.  Inwards and
Snyder initially told Bilbrey that such examinations were not
being done and that no one had been designated to do them,
including the loader operators.[5]  Inwards admitted to Bilbrey
that he was unaware of the specific regulation prior to the
inspection, though he was aware of a regulation requiring miners
to examine their workplace before beginning work.  Bilbrey
described a proper ground conditions examination as involving
visual inspection of the entire high wall from the top and bottom
to detect separations and other unsafe conditions, such as
overhangs.  No evidence was introduced to challenge Bilbrey's
description of a proper examination.  Assuming that the loader
operators visually observed the high wall in the area they were
removing material from, something they would presumably do in any
event for their own safety, it is clear that Northwest had not
designated anyone to conduct a proper ground conditions
examination prior to work commencing and as conditions indicated
and that such examinations and testing were not being done at the
time of the accident.

     Northwest argues that the loader operators were
knowledgeable as to slough patterns, wind and weather conditions,
ground conditions, break-offs, aggregate composition and
excavation techniques and that they were appropriately designated
by Snyder.  However, while they had experience as miners in
observing high walls as they worked, it is questionable that they
had sufficient training or experience in conducting proper
examinations of ground conditions, and testing them as indicated,
to satisfy the standard.  Dmytriw, an expert in the field of
civil engineering and slope stability,  testified that the
material would slough naturally under most conditions, but, that
it would slough less readily when it was wet.  If it was
saturated to the point that water would come off the wall, he
opined that it would be very unstable and should not be mined.
Wallace, one of the individuals Northwest relies upon as having
been qualified to examine and test ground conditions, thought
that the material sloughed more readily when wet.  Bilbrey's
notes also indicate that Wallace told him that it was raining
heavily when the shift started on February 5, 1999, such that
water was coming off the wall.  Yet this unsafe condition was
apparently not recognized or mentioned at the safety meeting.

     Northwest could have achieved compliance with the regulation
by designating all members of the crew to examine and test ground
conditions, if they possessed the requisite qualifications.[6]
However, it is apparent that the loader operators had not been
designated to conduct proper examinations of ground conditions as
required by the regulation and were not, in fact, conducting such
examinations. While Northwest does not argue that Snyder had been
designated to examine and test ground conditions, the same is
true as to him.  While he did visit the pit, generally on a daily
basis, and would observe conditions there, including the high
wall, there is no evidence that he had been designated to examine
and test ground conditions as required by the regulation.  There
was no claim that he visited the pit prior to work commencing and
he had not been to the pit on February 5, 1999, prior to the
accident.  Northwest violated the regulation.

Significant and Substantial

     The violation was S&S.  Failure to conduct a proper
examination of ground conditions, and test where indicated, prior
to work commencing and as conditions warrant, under continued
normal mining operations would contribute to a hazard, the
development of unstable conditions in the high wall.
Particularly as the high wall reached heights of 100 feet, there
was a considerable area over which hangups or other unstable
conditions could develop.  Bilbrey noted several such conditions
when he observed the high wall on February 11, 1999.  Weather
conditions, most importantly the amount of rainfall, varied
considerably and would affect the development of unstable
conditions as the natural sloughing property of the material
varied.  The development of unstable conditions on a high wall
would pose a reasonable likelihood that an injury would result
and that the injury would be of a reasonably serious nature.

     Northwest argues that the February 5, 1999, accident was
entirely the result of Wallace's improper mining actions and 
that there is no evidence that a proper examination of ground
conditions would have disclosed those unstable conditions. That
argument misses the mark. As noted above, the Secretary need not
prove that the hazard contributed to resulted in an accident or
actually will result in an injury causing event.  Arch of
Kentucky, supra.  Wallace's accident, aside from confirming the
obvious - that an injury resulting from the hazard of unstable
ground conditions in the high wall would likely be serious - has
minimal bearing on whether the violation was S&S.[7]

     Northwest also argues that the absence of any prior injuries
from unstable ground conditions  precludes a conclusion that an
injury would be reasonably likely to occur as a result of the
hazard contributed to.  However, the absence of prior injuries is
only one factor in the evaluation.  The determination of whether
a violation was S&S must be made assuming continued normal mining
operations and I am convinced that the hazard contributed to by
the violation posed a reasonable likelihood of a reasonably
serious injury occurring.

Unwarrantable Failure

     Northwest and its managers, particularly Snyder and Inwards,
should have been aware of the regulation and taken steps to
comply with it.  While the operator's negligence was at least
moderate, I cannot agree with Bilbrey's conclusion that the
violation was a result of Northwest's unwarrantable failure.  The
violation was longstanding, but, it had not been the subject of
prior enforcement action and was not, in itself, a highly
dangerous condition.  The observations by the loader operators,
foreman and superintendent were not sufficient to satisfy the
requirements of the regulation.  However, they did partially
address the goal of inspecting for dangerous conditions.  The
prior instances of sloughs partially engulfing loaders were
reasonably thought by Northwest to have been attributable to
miners' deviations from established mining methods, not to any
failure to examine ground conditions.  The absence of enforcement
action over a period of several years is a significant mitigating
factor.  Compare the facts in this case with those in Wiser
Construction, 18 FMSHRC 1641 (Sept. 1996) (ALJ), where a similar
violation was held to be the result of an unwarrantable failure
where the operator had violated an imminent danger order issued
some six months earlier and had had prior discussions with MSHA
officials identifying the violative practice subsequently cited.

Individual Liability

     The Act provides that a director, officer or agent of a
corporate operator may be subject to civil penalties in his
individual capacity for knowingly authorizing, ordering or
carrying out a violation of the Act.  30 U.S.C.  820(c).  The
legal standards governing individual liability were summarized 
in a recent Commission decision, Target Industries, Inc. 23 
FMSHRC 945, 963 (Sept. 2001) (Commissioner Beatty):

          Section 110(c) provides that, whenever a corporate
     operator violates a mandatory health or safety
     standard, a director, officer, or agent of such
     corporate operator who knowingly authorized, ordered,
     or carried out the violation shall be subject to an
     individual civil penalty.  30 U.S.C.  820(c).  The
     proper legal inquiry for determining liability under
     section 110(c) is whether the corporate agent knew or
     had reason to know of a violative condition.  Kenny
     Richardson,    3 FMSHRC 8, 16 (Jan. 1981), aff'd on
     other grounds, 689 F.2d 632 (6th Cir. 1982), cert.
     denied, 461 U.S. 928 (1983); accord Freeman United Coal
     Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C.Cir.
     1997).  To establish section 110(c) liability, the
     Secretary must prove only that an individual knew or
     had reason to know of the violative conditions, not
     that the individual knowingly violated the law.  Warren
     Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992)
     (citing United States v. Int'l Minerals & Chem. Corp.,
     402 U.S. 558, 563 (1971)).  A knowing violation occurs
     when an individual "in a position to protect employee
     safety and health fails to act on the basis of
     information that gives him knowledge or reason to know
     of the existence of a violative condition." Kenny
     Richardson, 3 FMSHRC at 16.  Section 110(c) liability
     is predicated on aggravated conduct constituting more
     than ordinary negligence.  BethEnergy Mines, Inc., 14
     FMSHRC 1232, 1245 (Aug. 1992). * * *

     I find that the Secretary has failed to prove that Inwards
was individually liable for the violations.  As to the unsafe
mining methods charge, Northwest's mining method was appropriate
and safe.  It was Wallace's deviation from it that resulted in
the violation.  The Secretary's theory as to Inwards was based
upon allegations that he had instructed Snyder to direct Wallace
to mine in a narrow area where his ability to fan out was
restricted.  However, the only evidence to support that
contention was that Inwards had been observed overseeing the pit
for a few minutes around the time that Wallace had been directed
to mine in that area[8] and statements allegedly made by Snyder
to Wallace.  Both Snyder and Inwards denied that Inwards had any
involvement in directing Wallace where to mine.  Snyder testified
that it was his determination that Wallace should mine in the
area where there was a greater concentration of sand based upon
his knowledge from observing the stockpiles that Northwest was
low on sand.  Even if Wallace had been instructed to work in a
narrow area, restricting his ability to fan out, no safety hazard
would have been presented as long as the dozer was available to
push material augmenting the natural slough.

     The Secretary also relies upon statements allegedly made by
Snyder to the loader operators that their continued complaints
about the loaders and mining downhill had been transmitted to
Inwards and that he refused to take further action beyond having
calcium chloride put into the rear tires.  However, as noted
above, those complaints were not prompted by safety concerns and
Inwards' failure to further address them was dictated by
legitimate business considerations.  There was nothing more that
could be done about the weight balance of the loaders and
switching to smaller buckets would have cut production.
Likewise, mining at a slight downward angle of approximately 5
degrees was necessary to effectively mine the deposit.  Neither
the loaders, nor the practice of mining downhill posed
significant safety risks if Northwest's mining method was
followed.

     The charge that Inwards failed to assure that qualified
individuals were designated to properly examine and test ground
conditions carries more weight.  Inwards should have been aware
of the regulation and made sure that it was complied with.
However, he had been in a position of authority for many years
during which Northwest had conducted operations in essentially
the same manner.  He was personally aware that MSHA inspectors
had inspected Northwest's mines on numerous prior occasions and
had never issued a citation for failure to comply with that
regulation or otherwise indicated that Northwest's compliance was
lacking.   Under the circumstances, I do not find that Inwards'
failure to assure that qualified individuals had been designated
to conduct proper examinations of ground conditions and perform
testing where indicated, was due to aggravated conduct.  Rather
it was due to ordinary negligence.

     Accordingly, the citations issued to Inwards in his
individual capacity will be vacated.

The Appropriate Civil Penalty

     Northwest's DuPont pit is a medium sized mine, with
approximately 77,161 hours worked per year and its controlling
entity is also a medium sized operation with 1,050,112 hours
worked per year.  It has a moderate history of violations, with
38 violations having been issued over 32 inspection days in the
24 months preceding the issuance of the subject citations.
Respondent did not argue in its brief that payment of the
proposed civil penalties would threaten its ability to continue
in business.  In light of these facts, I find that neither
payment of the proposed civil penalties, nor payment of the
reduced civil penalties imposed by this decision, will impair
Respondent's ability to continue in business.  I also find that
the civil penalties imposed below are appropriate to the size of
Respondent's business.

     The proposed civil penalty for Citation No. 4531825 was
$4,500.00.  The violation was sustained.  However, the violation
was held to have been the result of low to moderate negligence
and not the result of Respondent's unwarrantable failure.  Taking
into consideration all of the factors required to be assessed
under  110(i) of the Act, I impose a civil penalty of $750.00
for this violation.

     The proposed civil penalty for Citation No. 4531826 was
$5,500.00.  The violation was sustained.  However, the violation
was held to have been the result of moderate negligence and not
the result of Respondent's unwarrantable failure.  Taking into
consideration all of the factors required to be assessed under 
 110(i) of the Act, I impose a civil penalty of $2,500.00 for 
that violation.

                              ORDER

     The citations issued to Inwards in his individual capacity,
Citations No'd. 4531825A and 4531826A, are hereby VACATED and the
petition in Docket No. WEST 2000-481-M is hereby DISMISSED.

     Citations No'd. 4531825 and 4531826, issued to Northwest are
hereby affirmed, as modified, and Northwest is directed to pay a 
civil penalty of $3,250.00 within 45 days.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Deia W. Peters, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 
(Certified Mail)

John M. Payne, Esq., Davis, Grimm & Payne, Marra & Berry, 1111
Third Avenue, Suite 1865, Seattle, WA 98101 (Certified Mail)

\mh


**FOOTNOTES**

     [1]: There seems to be little question that the mining
method ostensibly used by Northwest was appropriate.  Bilbrey so
testified.  Dmytriw also offered expert opinion that, given the
nature of the material, using front end loaders to mine the
slough, fanning out and pushing material from the top of the bank
with a bulldozer when necessary, was a perfectly safe mining
method.  That mining method was employed not only by Northwest,
but also by several other surface sand and gravel mines in the
area.   Northwest's management personnel testified that its
mining method had been used for decades without serious incident
and that it had never been cited by MSHA for using an improper
mining method in any of the once or twice yearly inspections of
its operations.

     [2]: Wallace did testify that he had told Snyder earlier
that week that the bank was too high and should be lowered by the
dozer.  Snyder denied that Wallace had raised any concerns with
him.  The height of the bank, in itself, would not present a
dangerous or unstable condition.  Witnesses described mining
significantly higher banks at other sites without incident.
Raising a general complaint about the height of the bank is
markedly different than requesting a dozer to remedy an unstable
condition.

     [3]: There was evidence that the dozer was "unavailable" at
the time of some of the prior incidents.  However, as with
Wallace's testimony, the references to unavailability reflect
only that the dozer and/or the dozer operator were doing things
other than pushing material to the involved loader operator at
the time.  There was no evidence that the loader operators had
called for a dozer to push material to alleviate an unstable
condition, or that such requests were not honored.

     [4]: Bilbrey also placed weight on the fact that the loader
operators had made complaints about the operation several months
before and occasionally thereafter.  The conditions complained
of, however, were related to the purchase of the new CAT 992's
with the oversized buckets.  When operated on a slight downgrade,
i.e., digging down at 4-5 degrees, the rear wheels would hop when
the loader was backed upgrade with its bucket full, jarring the
machine and operator and requiring travel at a lower speed.  The
rear wheels also lost traction more easily and the machine was
unable to back quickly away from the slough.  In response,
calcium chloride and water were put into the rear tires, creating
more weight at that end of the loader.  The operators were not
entirely satisfied with that solution, however, and preferred to
work on flat or level ground.  Continued complaints about mining
"downhill" were rejected, because there was nothing else that
could be done about the problem and mining downhill was necessary
to efficiently extract the material.  While safety may have been
a concern, it appears that the operators' complaints were
grounded on performance issues, i.e., the uncomfortable bouncing
and related increases in cycle time -- the time required to scoop
a bucket of material, travel to the conveyor, dump it and return
to get another load.

     [5]: Snyder testified that his statement that Northwest had
no policy on designating individuals to examine ground conditions
was addressed only to formal written policies.  I reject that
explanation.  The statement itself was not qualified in any way
and was consistent with other statements made by Snyder.

     [6]: The Secretary argues that designating all of the miners
to conduct examinations and testing of ground conditions is, in
essence, designating no one.

     [7]: In any event, it is not at all clear that Northwest's
assertion is correct.  There is evidence of unusually heavy
rainfall on the morning of February 5, 1999, such that water was
coming off the high wall, an unstable condition.  Even though the
scene of the accident had been altered somewhat by the time of
Bilbrey's February 11, 1999 inspection, he did observe several
conditions that indicated instability in the high wall.  The fact
that the area where the accident occurred appeared to be at the
angle of repose is hardly remarkable.  It was material sloughing
to its angle of repose that engulfed Wallace's loader.  Even
though Wallace's continued digging into the face of the wall no
doubt exacerbated any unstable conditions, it is entirely
possible that a proper examination and, if indicated, testing of
ground conditions on the morning of February 5, 1999, would have
identified unstable conditions and avoided the subsequent
accident.

     [8]: Inwards had broken his ankle in November of 1998 and
began working on a part-time basis in late January, being driven
to work by his wife.  He was not cleared to return to work full-
time until February 11, 1999, the date of Bilbrey's inspection.