<DOC>
[DOCID: f:lk9938.wais]

 
MATERIAL SERVICE CORP.
January 11, 2000
LAKE 99-38-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        January 11, 2000

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :  Docket No. LAKE 99-38-M
               Petitioner       :  A. C. No.  11-00066-05536
          v.                    :
                                :     Thornton Quarry
MATERIAL SERVICE CORP.,         :
               Respondent       :

                             DECISION

Appearances: Christine M. Kassak, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Chicago, Illinois, for the 
             Petitioner;
             Richard R. Elledge, Esq., Gould & Ratner, Chicago,
             Illinois, for the Respondent.

Before: Judge Feldman

     Before me is a petition for assessment of  a  $35,000  civil
penalty  filed  by the Secretary of Labor (the Secretary) against
the respondent, Material  Service  Corporation (MSC), pursuant to
section 110(a) of the Federal Mine Safety  and Health Act of 1977
(the Act), 30 U.S.C.  820(a).  This matter  concerns  the August
18,  1997,  fatality  of  Charles  E.  Street,  a  cartage driver
employed  by  Jack  Gray  Transport,  a contract haulage  company
servicing MSC's Thornton Quarry. The fatality occurred when the 
victim was  buried and asphyxiated by the sloughage of limestone 
material after  he  had  positioned himself on the base of a 
limestone stockpile, between the rear of  his  haulage truck and 
the stockpile. The hearing in  this proceeding  was conducted on  
September  28,  1999,  in  Chicago, Illinois.  The  parties' 
post-hearing briefs have been considered in this disposition.

     The Secretary's  petition  seeks  to  impose a $35,000 civil
penalty for Citation No. 7824527 that alleges  a violation of the
mandatory  safety  standard  in  section  56.9314,  30  C.F.R.  
56.9314.  This mandatory standard provides that "[s]tockpile  and
muck  pile faces shall be trimmed to prevent hazards to persons."
For the  reasons  discussed  below,  the  Secretary has failed to
demonstrate,  by  a  preponderance  of  the  evidence,  that  the
condition  of  the  stockpile  should have alerted  MSC  that  it
required trimming.   Accordingly,  Citation  No. 7824527 shall be
vacated.

     I.  Findings of Fact

          a. The Stockpile

     The Thornton Quarry, located in Cook County,  Illinois, is a
limestone quarry operated by MSC.  The stockpile involved in this 
fatal accident  contained Grade 8 material that was composed of a 
mixture of various  sizes of  crushed limestone, from  3/4  inch 
particles to particles  of sand.   The  site  of the fatality 
was a very busy stockpile that was the most frequently used
pile in the quarry.   The  stockpile was located in a lower level
of the quarry, approximately  50  to  60 feet below street level.
It was created, and constantly refilled,  by  material  deposited
off of a stacker conveyor that was located at a higher elevation.
The conveyor system fed material onto the stockpile at a  rate of
300 tons per hour (five tons per minute).

     At  the  time  of the August 18, 1997, accident, the subject
stockpile was a "fresh  pile"  that was created the night before,
after  the stacker system had operated  for  approximately  eight
hours.   On  that  day  the  stockpile  had  reached  a height of
approximately  75  feet.   As  the  day  progressed,  the stacker
continued to add material to the top of the stockpile.  While the
stacker continued to load material at the top, front-end  loaders
continued to remove material from the bottom of the stockpile  in
order  to  load  material into haulage trucks.  As the process of
adding material to  the top and removing material from the bottom
continues, consistent  with gravity, material continues to slough
down the side of the stockpile  throughout  the day until, at any
given moment, the material reaches its angle  of  repose.[1]   In
this  regard,  the  Secretary's witness Joseph Molnar, a contract
haulage truck driver  who  was familiar with the Thornton Quarry,
testified that as material is  loaded  from  the bottom, material
from  the  top fills the void during a constant  process  wherein
material "filters  down all day."  (Tr. 115-19).  Consistent with
Molnar's testimony, John  Halloran,  MSC's   area   manager,   
testified   stockpiles continually  slough  and move  as material 
is  unloaded  and replenished.  (Tr. 270).

     Stockpiles are frequently  trimmed.  Loader operator Michael
O'Donnell estimated stockpiles are trimmed every other day.  Area
Manager  John Halloran testified stockpiles  are  trimmed  daily.
The trimming  occurs from the street level above, by using dozers
to push material down when the stockpile becomes too high and the
angle of repose  becomes  extreme.   When  necessary,  dozers  or
loaders  are  used at the base of the stockpile to knock material
down to fill hazardous  voids that are created during the loading
process.  The Grade 8 stockpile had not been trimmed prior to the
accident because it was a new stockpile that had been created the
previous evening.

          b. The Accident

     At  the time of the accident,  Charles  Street  had  already
picked up and transported approximately 7 loads of crushed stone.
The stone was transported and delivered to a construction site by
utilizing spreader chains on the back of the truck bed.  Spreader
chains limit  the  opening in the truck bed to enable material to
be spread , rather than  dumped,  at  a site for purposes such as
road bed construction.  (Tr. 70).

     At approximately 11:00 a.m., after  Street's load was placed
in  his  truck  before  he  had  driven off the  Thornton  Quarry
premises, a MSC dispatcher was informed  by a Jack Grey Transport
dispatcher, that Street's last load had been  canceled.   The MSC
dispatcher  conveyed this information to Street who proceeded  to
drive back to the stockpile to unload.

     Eyewitnesses  told MSHA investigators that Street backed his
truck into the base  of the stockpile and raised his truck bed in
an  attempt  to dump his  load.   However,  the  spreader  chains
prevented Street  from  dumping the load in a timely or efficient
manner.  MSHA accident investigator  Fred Tisdale testified that,
after Street had raised his truck bed:

     [Street]dropped his truck bed a little bit, went to the
     back of the truck, and unhooked the  left  or driver's-
     side spreader chain, crossed over [on the base  of  the
     stockpile]  behind  the  truck,  and  was attempting to
     unhook  the  right  spreader  chains when the  pile  of
     material sloughed off and covered  him up, trapping him
     behind the right-hand tandem wheel.

(Tr.  70-1; MSHA Accident Investigation Report,  Gov.  Ex.  6  ).
Molnar testified the proper method of removing spreader chains is
to remove  them  when  the  truck  is  a  safe  distance from the
stockpile.

     At  the  time  of  the  August  18, 1997, accident,  Michael
O'Donnell, MSC's heavy equipment operator, was operating a loader
for the purpose of filling haulage trucks at the
Grade  8  stockpile.   O'Donnell normally  loads  trucks  on  the
driver's side.  When the  accident occurred O'Donnell was loading
a truck driven by Joseph Molnar, operated by Brites Cartage, from
the passenger side because  Jack Gray Transport drivers, who were
returning their loads, were parking  on  the driver's side of the
trucks   O'Donnell   was   loading.    O'Donnell's   loader   was
approximately  25 feet away from Street's  truck.   At  the  time
O'Donnell finished  loading  Molnar's  truck,  O'Donnell  noticed
material  behind  Street's  truck  start to slide.  But O'Donnell
could not see Street because his view  was obstructed by Molnar's
truck.  As Molnar was driving forward after  receiving  his load,
O'Donnell   could   see   Street  being  covered  with  material.
O'Donnell testified that the  amount of sliding "didn't look that
big to [him]."  (Tr. 169).

     Molnar testified that, on  August  18, 1997, the material at
the Grade 8 stockpile was just normally filtering  down  "all day
long," with the top filling the void at the bottom as trucks were
loaded.   (Tr. 115-16).  Significantly, Molnar testified that  as
he looked at  the stockpile through his rear view mirrors, he saw
no  unusual  overhangs  or  other  hazardous  conditions.   (Id.)
Street  drove  his  truck  to the stockpile and backed it against
the stockpile next to Molnar's  truck.  Molnar observed Street as
Street left his truck and walked  on  the  base  of the stockpile
behind the truck.
     John  Halloran,  MSC's  area  manager,  was working  in  the
vicinity of the Grade 8 stockpile at the time  of  the  accident.
Halloran immediately went to the accident scene to assist  in the
rescue  efforts.   Halloran directed O'Donnell and another loader
operator to use their  loaders  to  remove material from the side
and from the rear of the truck.  While  the loader operators were
removing  material,  material  that  was being  loaded  from  the
stacker conveyor above continued to slide  down the stockpile and
cover  the  victim.   It  took several minutes to  turn  off  the
conveyor.

     Although Halloran did not know the approximate weight of the
fatal  slide,  Halloran testified  the  sloughage  area  was  not
extensive in that  Street was extricated from the waist up to his
face  pretty quickly.   However,  Street  could  not  be  removed
because  his  legs  were caught between the rear passenger tires.
Halloran tried mouth-to-mouth resuscitation but was unsuccessful.

     With respect to the nature and extent of the slide, Halloran
explained:

     . . . what I gathered  from  the  two  Brites drivers I
     talked to . . . [Street] was up on the top of the pile;
     and  when  it  sloughed, it kind of took his  feet  and
     pushed him underneath  the  truck.  Because if he stood
     straight up, he would never have got (sic) buried.  But
     what happened is his feet, with the motion of the pile,
     he slid underneath, and then he tried to dive out.  And
     then  when he dove out, the pile  just  came  down  and
     buried  him.  .  .  .  he  probably went underneath the
     tires.  Because we found his  feet  when  we pulled the
     truck forward.  We couldn't get him out by just pulling
     him.   Because  we tried to put ropes on him  and  just
     pull him out.  We  couldn't  do  it,  so  we pulled the
     truck forward and then got him out.
(Tr. 286-87).

          c. The Condition of the Stockpile

     MSHA accident investigators Fred Tisdale and Steven Richetta
arrived at the Thornton Quarry accident scene several hours after
the accident had occurred.  Thus, Tisdale and Richetta    did not
observe  the  stockpile  prior to the accident.  Although Tisdale
and Richetta speculated about  possible  overhangs  that may have
required   trimming,   neither   testified  that  their  accident
investigation revealed the existence  of any potentially abnormal
or  otherwise  hazardous  conditions  immediately  prior  to  the
accident.   As  previously noted, neither  Molnar  nor  O'Donnell
observed any abnormal stockpile conditions before the accident.

     Although Richetta testified that the extent of the sloughage
led him to believe  there  was  an  overhang  in the slope of the
stockpile,  the  magnitude  and  location  of the sloughage  that
caused  the fatality was disturbed and redistributed  during  the
recovery efforts.  Moreover, normal portions of the stockpile had
to be removed and stacked in order to remove the victim.

     While  the  Secretary  relies on remnants of material on the
back of Street's tailgate measuring  approximately 7 to 8 feet in
height  from  ground  level  to  support her  hazardous  overhang
theory,  examination  of  accident  scene   photographs  reflects
Street's truck was backed into the slope of the stockpile.  (Gov.
Exs.  2,  3).    Thus,  the  location  of  residue lines  on  the
tailgate,  8  feet  above ground level, is of little  evidentiary
value  with respect to  demonstrating  the  significance  of  the
sloughage.

     Of  greater significance is the slope of the angle of repose
immediately  prior  to, and after, the accident.  MSHA's accident
investigation concluded:

     Measurements taken  at  the  [accident] scene indicated
     the  angle  of  the  stockpile  was   approximately  37
     degrees.   It  was  estimated  that the angle  of  this
     stockpile prior to the accident  was  approximately  39
     degrees.

(Gov. Ex. 6, p.3).

     Richetta testified the angles of repose before and after the
accident were determined through trigonometric formulas utilizing
measurements  taken  at  the  accident  site  and adjacent to the
accident  site.  (Tr. 231).  Richetta further testified  that  39
degrees verses  37 degrees would not be a discernible difference.
(Tr. 233).  In fact,  Richetta  conceded  a  39  degree  angle of
repose  was not necessarily hazardous.  (Id.).  Both Tisdale  and
Richetta  testified  that,  based  on  their  observations of the
condition of the stockpile after the accident,  the stockpile was
in compliance with section 56.9314 in that it did  not have to be
trimmed.  (Tr. 95, 96, 104, 240, 323).

     Based  on Tisdale and Richetta's accident investigation,  on
September 11,  1997, Tisdale issued Citation No. 7824527 alleging
a violation of section 56.9314.  The Citation stated:

     On August 18, 1997, a contract truck driver was fatally
     injured  when   the  grade  eight  stockpile  sloughed,
     covering him as he  was  removing  the  spreader chains
     from  his  truck's tailgate.  He had backed  the  truck
     against the  base  of  the  approximately  75 foot high
     stockpile,  and  had walked between the truck  and  the
     stockpile,  when  the  stockpile  sloughed.   (Emphasis
     added).

     To  abate Citation No.  7824527,  Tisdale  required  MSC  to
provide documentation  that  safety meetings were held with truck
drivers at which times the fatal  accident,  and  ways to prevent
further injury, were discussed.  MSC was also required to provide
cartage  drivers  with  handouts concerning rules of behavior  on
mine property.  The citation was terminated on October 14, 1997.  
The abatement  action did not involve trimming or otherwise 
altering the stockpile accident site.

          d. Procedural History of Citation No. 7824527

     Citation  No.  7824527 issued on  September  11,  1997,  the
subject of this proceeding,  initially alleged a violation of the
mandatory safety standard in section  56.9314  that requires that
"[s]tockpile and muckpile faces shall be trimmed to avoid hazards
to  persons."   On  March  25,  1998, MSHA modified Citation  No.
7824527 to substitute section 56.3439,  30  C.F.R.   56.3430, as
the   mandatory  safety standard violated.  This safety  standard
specifies, in pertinent part, that "[p]ersons shall  not  work or 
travel between machinery or equipment and the highwall bank or 
bank  where  the  machinery or equipment may hinder escape from 
falls or slides of the  highwall or bank."

     Subsequent  to  the  modification,  the Secretary apparently
became concerned about the applicability of a stockpile to the 
terms "highwall"  and/or "bank" contained in 30 C.F.R.  56.3430. 
Accordingly, on August 9, 1999, the Secretary filed a motion  to 
allow modification of Citation No. 7824527 to reinsert section 
56.9314  as  the  mandatory  standard  allegedly violated instead 
of section 56.3430.  The Secretary's motion was granted by Order 
dated August 25, 1999.


     II.  Further Findings and Conclusions

     As   a   threshold  matter,  in  appropriate  circumstances,
mandatory safety standards  should  be  broadly  interpreted  so 
that  they  can  be  adaptable  to  a  myriad  of  circumstances.
Kerr-McGee Corp., 3  FMSHRC  2496,  2497 (November 1981).  I note
the hazard associated with the inability  to escape from unstable
highwalls or banks addressed in section 56.3430  is  identical to
the  hazard  posed  by  the  inability to escape from an unstable
stockpile.  However, in this matter, the Secretary has elected to
attempt to establish a section  56.9314,  rather  than  a section
56.3430,  violation.   Accordingly,  the  issue  of  whether  the
victim's position between the rear of his truck and the stockpile
constitutes a violation of section 56.3430 is beyond the scope of
this proceeding.

     As already noted, section 56.9314 requires that "[s]tockpile
and muckpile faces shall be trimmed to avoid hazards to persons."
Put another way, section 56.9314 requires a mine operator to trim
a  stockpile  when  the  operator  has  a reason to know that the
stockpile  is  hazardous  or  unsafe.   In  deciding   whether  a
condition  is  unsafe,  the  Commission has determined that  "the
alleged violative condition must be measured against the standard
of whether a reasonably prudent  person familiar with the factual
circumstances  surrounding  the  allegedly  hazardous  condition,
including facts peculiar to the mining  industry, would recognize
a hazard requiring corrective action."  Alabama By-Products 
Corporation, 4 FMSHRC 2121, 2129 (December 1982).

     Thus, the issue for resolution is whether  Material  Service
Corporation  knew,  or  should  have  known,  the  stockpile  was
hazardous  and  required  corrective  action,  i.e., the angle of
repose  was  too  extreme and/or there was an overhang  or  other
abnormal condition.   In addressing this issue, sloughage, alone,
is not evidence of a hazardous  condition.   Section 56.9314 does
not repeal the law of gravity.  When rock material is loaded from
above by a stacker conveyor at a rate of five  tons  per  minute,
and  removed from below by a front-end loader, obviously material
will  slide   down   the  slope  of  the  stockpile.   Thus,  the
uncontroverted testimony, by both Secretary and MSC witnesses, is
that sloughage is a normal  and  continuing process.  (See, e.g.,
tr. 124-29).

     The  first question, therefore,  is  whether  the  angle  of
repose was  severe  enough  to alert MSC of a potential hazardous
fall or slide. The evidence reflects the angle of repose prior to
the accident was 39 degrees.  The post-accident  angle  of repose
in   the   vicinity   of  the  accident  was  37  degrees.   MSHA
investigator Richetta conceded there is no discernible difference
between a 39 degree and  37  degree  angle  of repose.  Moreover,
Richetta admitted a 39 degree angle of repose was not necessarily
hazardous.  Both Tisdale and Richetta stated  the 37 degree angle
of  repose  after  the accident complied with the  provisions  of
section 56.9314 in that  no  trimming  was  required.  Consistent
with their testimony, MSHA did not require any trimming action to
abate the citation.  Consequently, the record  does  not reflect,
nor  does  MSHA  contend, that the angle of repose prior  to  the
accident provided notice to MSC that trimming was necessary.

     The second and more difficult question is whether there were
any overhangs or other  hazardous  abnormalities  that provided a
basis   for   suspecting   that  remedial  trimming  action   was
appropriate "to avoid hazards  to persons" as required by section
56.9314.  It is not uncommon for  the  Secretary to establish the
elements  of  a  violation,  i.e.,  a  hazardous   overhang,   by
inference.  Mid-Continent  Resources,  6  FMSHRC  1132, 1138 (May
1984).  However, there must be "a logical and rational connection 
between the evidentiary  facts and  the  ultimate fact inferred."  
Id. Although Tisdale and Richetta admit the stockpile did not 
require trimming  after  the accident,  they  have  no  personal  
knowledge  of  the stockpile conditions  prior  to  the accident. 
They  infer  there was  a hazardous  overhang based on what they 
believe was an extensive rock slide.

     However, the accident scene  was  significantly  altered  to
extricate  the  victim.   Thus, piles of rock material removed by
loaders from the side and rear  of  the  truck,  in  an effort to
reach  the  victim  underneath  the  truck,  are  not necessarily
evidence  of  a  significant  rock slide.  Moreover, the  residue
sloughage on the rear of the tailgate  likewise  does not support
the  conclusion  of  a  massive rock slide.  Photographs  of  the
accident scene reflect Street's  truck  was  backed  against  the
slope  of  the  stockpile.  (Gov. Exs. 1-3).  The conclusion that
Street backed his  truck against the stockpile is consistent with
the description of the  accident in Citation No. 7824527, as well
as MSHA's accident investigation  report.[2]   (Gov.  Exs.  4, 6,
p.4).

     Although,  Tisdale and Richetta did not see the victim prior
to his removal, MSC's  manager, John Halloran participated in the
recovery efforts.  Halloran  credibly testified that the fatality
apparently occurred because the  sloughage  caused  the victim to
slide under the truck preventing his escape.  With the  victim in
a  prone  position, confined to the area under the truck, it  did
not take a  large  amount  of  dislodged  material  to  cause the
fatality.

     In  concluding  that the fatality was not caused by a  large
rock slide, I am not suggesting  that  the  stockpile  was stable
immediately  prior  to the accident.  To the contrary, given  the
loading from above at  five  tons  per minute, and unloading from
below, the stockpile was inherently  unstable.   However,  it  is
significant  that  the  Secretary does not argue that loading the
top  of  the stockpile by stacker  conveyor,  at  the  same  time
material is  being  removed  by  loaders  at  the  bottom,  is  a
violation  of any mandatory safety standard.  In this regard, the
Secretary responded:

     The Court: Ms.  Kassak,  let me ask you a question. How
               did    the    Mine    Safety    and    Health
               Administration's  abatement  process  prevent
               this accident, or prevent  the sloughage from
               recurring  if  that  was  the  problem,   the
               loading  at  the  top  and - - by the stacker
               conveyor and the loading  from  the front-end
               loader at the bottom?

     Ms.  Kassak: I  don't  believe  we addressed that as a
               hazard your honor . . . .

     The  Court: . . . the operator was  not  prevented from
               continuing  that  normal operation subsequent
               to the accident; is that correct?

     Ms. Kassak:I have to say that is correct . . . .

(Tr. 122-23).

     Although the process of loading  from above creates constant
"filtering"  or  sloughage, in view of  the  limited  nature  and
extent of the localized  sloughage  at  the  accident  site,  the
evidence  does  not  suggest an observable overhang that required
trimming.  In this regard,  neither Molnar nor O'Donnell observed
any  abnormalities  in the stockpile  immediately  prior  to  the
accident.

     In  the  final analysis,  the  possibility  of  drawing  two
inconsistent  inferences  from  the  evidence  does  not,  alone,
preclude the Secretary's  overhang  theory.   Id., citing NLRB v.
Nevada  Consolidated  Copper  Corp.,  316 U.S. 105,  106  (1942).
However, the greater weight of the evidence,  given the localized
nature of the fatal sloughage behind the truck,  the  location of
Street on the stockpile, the weight of Street's truck on the base
of  the stockpile, the weight of the material that may have  been
released  when  Street  initially  raised  the  truck  bed before
removing the spreader chains, and the lifting and lowering of the
truck  bed  against  the  slope  of  the  stockpile, leads to the
conclusion that Street's position on the stockpile,  as  well  as
the  contact  of  the  stockpile  with  Street's  truck  and  its
material,  substantially  contributed  to  the  dislodging of the
material that resulted in this tragic accident.

     Accordingly,  the  Secretary has failed to establish,  by  a
preponderance of the evidence,  that  there  was  any  observable
hazardous   stockpile   condition  prior  to  the  accident  that
warranted remedial trimming.  In reaching this conclusion, I have
not addressed whether Material  Service Corporation had a duty to
prevent the exposure of cartage drivers  to  stockpiles,  and, if
so,  whether  Material  Services  Corporation satisfied its duty.
Although  there  was testimony that signs  were  placed  on  mine
property warning drivers to stay in their trucks, the adequacy of
Material   Service   Corporation's   efforts   to   address   the
disembarkment  hazard  that  was  the  proximate  cause  of  this
fatality is not an issue in this case.  (Tr. 262-63).


                              ORDER

     In  view of the above,  Citation  No.  7824527  IS  VACATED.
ACCORDINGLY,
Docket No. LAKE 98-38-M IS DISMISSED.


                              Jerold Feldman
                              Administrative Law Judge

Distribution:

Christine   M.  Kassak,  Esq.,  Office  of  the  Solicitor,  U.S.
Department of Labor, 230 S. Dearborn  St.,  8th  Floor, Chicago, 
IL 60604  (Certified Mail)

Richard  R. Elledge, Esq., Gould  &  Ratner,  222  North  LaSalle
Street, 8th Floor, Chicago, IL 60601 (Certified Mail)

/mh


**FOOTNOTES**

     [1]   Stockpiles   become   unstable   during  loading  and
unloading.   Sloughage  (material falling down the  side  of  the
slope) occurs when a stockpile  exceeds  its  angle of repose.  A
stockpile achieves its angle of repose when the  pile  reaches  a
state of relative equilibrium and the pile is at rest.

     [2]  A  photograph  of the accident scene depicts the truck
backed against the stockpile.   (Gov.  Ex.  2).   The  photograph
reflects  the  position  of  the truck after it had been advanced
several feet in an effort to free the victim.