.
ORIGINAL SIXTEEN TO ONE MINE, INCORPORATED
Docket No. WEST 2001-61-M
September 4, 2002

             FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3993/FAX 303-844-5268

                         September 4, 2002

SECRETARY OF LABOR,               : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          : Docket No. WEST 2001-61-M
                Petitioner        : A.C. No. 04-01299-05541
                                  :
          v.                      :
                                  : Original Sixteen to One
ORIGINAL SIXTEEN TO ONE MINE,     :
INCORPORATED                      :
                Respondent        :

                               DECISION

Appearances:     Isabella M. Del Santo, Esq., Office of the Solicitor, U.S.
                 Department of Labor, San Francisco, California, on behalf of
                 Petitioner.
                 Michael M. Miller, President and Chief Operating Officer,
                 Original Sixteen to One Mine, Inc., Alleghany, California, on
                 behalf of Respondent.

Before:          Judge Cetti

     This case is before me upon a petition for assessment of civil penalty
filed by the Secretary of Labor (Secretary) alleging violations by Original
Sixteen to One Mine, Inc. of various mandatory safety standards set forth in
Title 30 of the Code of Federal Regulations.  Pursuant to notice a hearing was
held in Nevada City, California.  The parties filed post-hearing briefs.

Jurisdiction

     Preliminarily, Respondent filed a motion for dismissal of this matter on
grounds Petitioner did not have jurisdiction.  Respondent states that the
Securities and Exchange Commission (SEC) determined that its mining operation
had insufficient reserves to hold itself out as a mine to shareholders.  The
respondent argues that if its operation isn't a mine for SEC purposes, this
operation also cannot be considered a mine under the Federal Mine Safety and
Health Act (Mine Act), 30 U.S.C. 801.  The SEC does not purport to regulate the
health and safety of miners, and whatever purpose a definition of the term
"mine" has in the SEC's regulatory scheme, that definition is there for a
purpose other than the protection of the health and safety of miners.  Since the
facility at issue herein was actively engaged in the extraction of ore from the
ground, with approximately nine miners actively engaged in extraction-related
activities, the mine is subject to the Mine Act.  Respondent's facility
certainly comes within the definition of a mine set forth in Section 3(h)(1) of
the Mine Act.

     "Coal or other mine" means (A) an area of land from which minerals are
extracted in nonliquid form or, if in liquid form, are extracted with workers
underground, (B) private ways and roads appurtenant to such areas, and (C)
lands, excavations, underground passageways, shafts, slopes, tunnels and
workings, structures, facilities, equipment, machines, tools, or other property
including impoundments, retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in nonliquid form, or if in
liquid form, with workers underground, or used in, or to be used in, the milling
of such minerals, or the work of preparing coal or other minerals, and includes
custom coal preparation facilities.  In making a determination of what
constitutes mineral milling for purposes of this Act, the Secretary shall give
due consideration to the convenience of administration resulting from the
delegation to one Assistant Secretary of all authority with respect to the
health and safety of miners employed at one physical establishment.

     Respondent's request for dismissal for lack of jurisdiction is DENIED.

Citations at Issue At the Hearing

     There are eight citations in this docket of which only five were at issue
at the hearing.  At the commencement of the hearing, the Respondent advised that
it withdraws its notice of contest of the following three citations:  Citation
No. 7987874, Citation No. 7987879 and Citation No. 7987880.  At issue at the
hearing were Citation No. 798785, Citation No. 7987876, Citation No. 7987977,
Citation No. 7987878 and Citation No. 7987883.  These citations were issued by
MSHA Inspector James Weisbeck who inspected the mine in August of 2000.

     For reasons discussed below, I modify two of the citations at issue and as
modified I affirm all eight citations and assess a total civil penalty of
$651.00.

                   FINDINGS OF FACT AND CONCLUSIONS OF LAW

Citation No. 7987875

Citation No. 7987875 states as follows:

     An area of restricted clearance at the ore chute on the 800 level behind 49
Winze, which created a hazard to persons who operate rail equipment, did not
have warning devices or signs on either approach nor was the restricted
clearance clearly marked.  The metal chute gate and bang-board were measured at
fifty-five inches above the rail.  The motorman's head was measured at sixty
inches while seated in the locomotive.  The motorman could receive serious
injuries if his head were to strike the chute parts.  The locomotive travels
under the chute on a regular basis.

     The cited regulation provides as follows:

56.9306  Where restricted clearance creates a hazard to persons on mobile
equipment, warning devices shall be installed in advance of the restricted area
and the restricted area shall be conspicuously marked.

     Inspector Weisbeck testified that at the 800 foot level of the mine, he
observed a "center of track" ore chute through which locomotives traveled on a
regular basis.  The inspector observed a restricted opening through the chute.
He observed no warning devices in advance of the restricted area.  He took
measurements.  The clearance measured 55 inches above the rail and the motor
man's head measured 60 inches above the rail while he sat in the locomotive.
The restricted area was not "conspicuously marked."

     The locomotive had lights.  The motor man was aware of the overhead
restrictions and ducked his head down to the side to avoid injury.  The
inspector was concerned that someday there would be a time when the motor
operator would be distracted and inadvertently not duck in time to avoid a very
serious injury.  The violation was abated by painting a bright red "low head
room" sign and by hanging conspicuous streamers in the appropriate area TR-25,
Res. Ex. 12.

     Respondent contends that there was light in the area and sufficient marking
to comply with the cited standard.  That flagging that existed before abatement
was dirty and on the side of the ore chute.

     I credit the testimony of Inspector Weisbeck that the restriction was not
conspicuously marked.  and find the evidence established a violation of 30 CFR
56.9306.

Citation No. 7987876

Citation No. 7987876 reads as follows:

     An area of unsupported rock beside the slusher at 848 Stope had not been
tested by a supervisor or designated person prior to work commencing in the
area.  The rock had several large cracks which started about ten feet from and
propagated towards the slusher operators station.  The supervisor and miner both
stated that they knew about the cracks and that neither one had done any testing
to determine how loose the rock was.  The ground was partially supported at the
operators station by the stalls which held the slusher down.  A fall of ground
could cause fatal injuries to the slusher operator who works in the area on a
regular basis.

     Respondent's response to the citation is as follows:

     As required by 30 CFR 57.3401 persons experienced in examining and testing
for loose ground are designated by the mine operator.  Appropriate persons
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.  Underground haulageways and travelways and
surface area highwalls and banks adjoining travelways are examined weekly or
more often if changing ground conditions warrant.

     The lead miner has extensive underground experience, including rock
mechanics and the specific nature of this mine.  His statements were taken out
of context or misinterpreted by the MSHA agent.  The miner was aware of the
crack and determined that alleged hazard posed no risk of an unsafe situation.
Furthermore, the crack itself does not constitute a hazard.

     The cited standard provides as follows:

57.3401 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. Underground haulageways and
travelways and surface area highwalls and banks adjoining travelways shall be
examined weekly or more often if changing ground conditions warrant.

     Inspector Weisbeck testified to the facts set forth in Citation No.
7987876.  He was of the opinion that the horizontal crack in the rock depicted
in P. Exs. 13 and 14 should have been tested because of vibration of the slusher
being used in the area.  The crack propagated toward the slusher operator's
station and the ground was only partially supported by the operator's station.
The fall of loose ground that could result from the crack and its vibration from
the slusher motor could cause fatalities.  A fall of the rock could cause
serious and fatal injuries.

     Respondent's lead man was aware of the crack but on visual examination
alone was of the opinion the alleged hazard presented no risk.  No testing was
done.

     I credit the testimony of Inspector Weisbeck and find the cited standard
was violated.  I affirm the Solicitor's findings in the citation and based on
the statutory criteria in Section 110(i) of the Act, I agree with the MSHA's
assessment of the $55 proposed penalty for this violation of the standard and
accordingly assess a penalty of $55.00.

Citation No. 7987877

     Citation No. 7987877 alleges a significant and substantial (S&S) violation
of 30 CFR 57.3360.  The citation reads as follows:

     Ground support was not installed in the area of 848 Stope which was being
slushed out.  A bowed and split timber, and two badly cracked pillars indicated
that the hanging wall was taking weight.  A large area beyond the two pillars
had caved in at some time in the past.  One of the pillars had several large
vertical cracks.  The other was badly cracked and appeared loose.  The grain
shift across a diagonal crack indicated that about one third of the pillar had
subsided about three inches.  An old timber near the pillar was partially rotten
and had bowed out about one foot in the middle.  Many old timbers in other areas
of the stope had rotted out or showed signs of crushing.  Mine management stated
that the stope had been mined for about three weeks at this time and was last
mined in 1994.  A fall of ground could cause fatal injuries to the two miners.

     The cited standard, 30 CFR 57.3360 provides as follows:

Ground support shall be used where ground conditions, or mining experience in
similar ground conditions in the mine, indicate that it is necessary. When
ground support is necessary, the support system shall be designed, installed,
and maintained to control the ground in places where persons work or travel in
performing their assigned tasks. Damaged, loosened, or dislodged timber use for
ground support which creates a hazard to persons shall be repaired or replaced
prior to any work or travel in the affected area.

     I find the Secretary established an S&S violation of the cited standard.
Inspector Weisbeck inspected the work area of the 848 Stope and found inadequate
ground support.  He testified as to his observations as set forth in the
citation quoted above.  He took photographs showing the bowed and cracked
vertical ground support timbers.  Petitioner's Exhibits P-15, P-16 and P-17.
Respondent's response to the facts alleged in the citation was that "[T]he
timber cited was cracked from weight of itself and was not utilized as current
ground support.  Had there been rock weight on the timber the timber would not
of [sic] held and rock would have fallen."

     Respondents contention was not persuasive in view of the photographs and
the inspector's testimony.  Two of the damaged timbers in the immediate working
area of the slusher and the portable lighting were replaced with new timber in
order to abate the violation.

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

     In order to establish that a violation of a mandatary 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.

See also, Buck Creek Coal, Inc. v. MSHA, 53 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).

     The contribution of the violation to the cause and effect of a hazard 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 inspector properly made findings noted in the citation "reasonably
likely," "fatal," and S&S.  If the roof were to collapse and strike a miner
working in the area the injury to the miner would most likely be fatal.

Citation No. 7987878.

     This citation charges a 104(a) violation of 30 CFR 57.16005.  The citation
reads as follows:

At the electrical shop of the lower shop area there was a unsecured acetylene
cylinder setting on the floor in the work area.  Exposing persons who enter area
to the hazards of the cylinder falling creating potential injuries.  Persons
enter on a as needed basis.

     In the lower shop area the Inspector saw an upright acetylene cylinder
sitting on the floor.  The cylinder was not secured in any way.  The Inspector
testified that there was not a lot of exposure.  The cylinder was sitting back
toward a wall, so it was not out in the center of the work area.  The Inspector
testified that, even though empty, it weighed 40 pounds and if it fell it could
result in severe bruising and possibly break a bone in a person's foot.

     The facts clearly establish a violation of the cited standard 30 CFR
57.16005 which provides that "compressed and liquid gas cylinders shall be
secured in a safe manner."  The gravity was somewhat less than if the cylinder
had been taller and full of gas and left in an area where there was greater
exposure.  Everything considered, I find the "negligence" factor in this
citation is "low" rather than "moderate" and the citation is so modified.  In
view of the small size of the operator and the very limited exposure and all the
other statutory criteria in Section 110(i) of the Act, I assess a penalty of
$25.00.

Citation No. 7987883

     This citation charges a 104(a) violation of 30 CFR 57.12032 and reads as
follows:

The cover plate on the 240 volt electric hot water heater in the store room
between the office and the dry was not in place.  The top screw was missing and
the cover was turned to the side exposing the bare energized components to
possible contact by persons who use the cleaning equipment stored in the room.
An electrocution could result.

The cited safety standard 30 CFR 57.12032 provides as follows:

57.12032 Inspection and cover plates.

     Inspection and cover plates on electrical equipment and junction boxes
shall be kept in place at all times except during testing and repairs.

     Inspector Weisbeck testified that the cover plate of the 240 volt electric
hot water heater had its top screw missing and the cover plate was turned to one
side exposing the bare energized components to inadvertent contact.

     Respondent asserts:

The top screw had worked itself loose.  This was a very recent occurrence and no
one had been in that area to detect it.  It is certain that at the time a miner
entered this area and upon inspection of the workplace, the plate would have
been notice [sic] and the screw put in place.

The Inspector testified that inadvertent contact with an energized part could
potentially cause defibrillation of the heart causing death.

     The hot water heater was in a storeroom at the office dry area where people
do not work constantly.  There was exposure to persons who go in and out to
remove cleaning products and tools.  In Petitioner's Exhibit P-11, the Inspector
notes "persons enter only as needed."

     Respondent contends that it was unaware that one of the screws holding the
cover plate in place was missing or that any energized component was exposed.
Respondent contends the loss of the screw and exposure of energized parts
occurred very recently before management had an opportunity to see the problem
and make the needed correction.  TR 321-22.

     On review of the evidence, I find the negligence of Respondent was "low"
rather than "moderate" and I would accordingly modify the citation to reflect
"low" negligence.  In view of the potential gravity of the violation, I would
not reduce the proposed $55.00 penalty.

Appropriate Civil Penalties

     Under section 110(i) of the Act the Commission and its judges must consider
the following criteria in assessing a civil penalty: the operator's history of
previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the effect
on the operator's ability to continue in business, the gravity of the violation
and the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

     Respondent demonstrated good faith with respect to all the cited violations
in the timely abatement of each citation by compliance with the proper standard
after notification of the violation.  The penalties assessed below are modest
penalties and appropriate for this small operator.  I find these penalties will
not affect the operator's ability to continue in business.  The Secretary has
submitted the Assessed Violation History Report for the relevant period prior to
the inspection that resulted in the citations.  The report indicates the number
of paid citations is 16 and the number of assessed violations is 71 for the
period beginning August 16, 1998 to August 15, 2000.  I affirm all the citations
including the inspector's finding except for the negligence factor in Citation
Nos. 7987878 and 7987883 where I find the negligence on the basis of the
evidence presented to be "low."  The negligence in all the other citations is
properly charged by the Inspector as "moderate."  Citations 7987877 was properly
charged as significant and substantial as set forth above in my discussion of
that citation.

                                     ORDER

     Based on the criteria in section 110(i) of the Mine Act, 30 USC 830(i),
particularly the small size of the operator and the good faith prompt abatement,
I assess the following civil penalties:

Citation No.             30 CFR              Penalty

  7987875                56.9306              $55.00
  7987876                57.3401               55.00
  7987877                57.3360              131.00
  7987878                57.16005              25.00
  7987883                57.12032              55.00
  7987874                57.12025              55.00
  7987879                57.20003(a)           55.00
  7987880                57.12019              55.00
  7987874                57.12025              55.00
  7987879                57.20003(a)           55.00
  7987880                57.12019              55.00
                                   TOTAL     $651.00

     Accordingly, the citations in this docket are AFFIRMED, Citation Nos.
7987878 and798783 were modified to reduce the negligence from "moderate" to
"low" and as so modified were affirmed.

     Respondent is Ordered to PAY the sum of $651.00 within 40 days of the date
of the decision unless the parties agree upon a different payment schedule.
Upon payment of this penalty, the proceedings is DISMISSED.

                              August F. Cetti
                              Administrative Law Judge

Distribution:

Ms. Isabella M. Del Santo, Office of the Solicitor, U.S. Department of Labor, 71
Stevenson Street, Suite 1110, San Francisco, CA 94105-2937

Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909,
527 Miners Street, Alleghany, CA 95910

/atc