.
ANCHOR MINING INCORPORATED
January 6, 1997
WEVA 95-169
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                         January 6, 1997
SECRETARY OF LABOR,              :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :     Docket No. WEVA 95-169
               Petitioner        :     A.C. No. 46-07166-03536
                                 :
          v.                     :     No. 1 Surface
                                 :
ANCHOR MINING INCORPORATED,      :
               Respondent        :
                                 :
                                 :
SECRETARY  OF  LABOR,            :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION   (MSHA),       :     Docket No. WEVA 96-74
               Petitioner        :     A.C. No. 46-07166-03539 A
                                 :
          v.                     :     No. 1 Surface
                                 :
JAMES SIMPKINS, Employed by      :
  ANCHOR MINING INCORPORATED,    :
               Respondent        :
                                 :
                                 :
SECRETARY OF LABOR,              :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION   (MSHA),       :
               Petitioner        :     Docket No. WEVA 96-75
                                 :     A.C. No. 46-07166-03540 A
          v.                     :
                                 :     No. 1 Surface
JAMES TACKETT, Employed by       :
  ANCHOR MINING INCORPORATED,    :
               Respondent        :
                            DECISIONS
Appearances:  James B. Crawford, Esq., Office of the
              Solicitor, U.S. Dept. of Labor, Arlington,
              Virginia, for the Petitioner;
              David J. Hardy, Esq., John T. Bonham, Esq.,
              Jackson and Kelly, Charleston, West Virginia, for
              the Respondents.
Before:  Judge Koutras
                  Statement of the Proceedings
     These   consolidated  proceedings  concern   proposals   for
assessment of civil penalties filed by the petitioner against the
respondents pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et seq.   Docket  No.  WEVA  95-169, concerns
civil  penalty  proposals  filed  by  the petitioner against  the
respondent  Anchor  Mining  Inc.,  for  alleged   violations   of
mandatory safety standards 30 C.F.R.  77.1006(a) and 77.1006(b).
The petitioner seeks civil penalty assessments of $8,500, for the
alleged violations.
     Docket Nos. WEVA 96-74 and WEVA 96-75, concern civil penalty
proposals  filed  by  the petitioner against the named individual
respondents pursuant to  section  110(c) of the Act for allegedly
"knowingly" authorizing, ordering,  or  carrying  out  an alleged
violation  of  30 C.F.R. 77.1607(g).  The petitioner seeks  civil
penalty assessments  of  $2,000  against Mr. Simpkins, and $2,500
against Mr. Tackett for the alleged violations.
     The respondents filed timely  answers  denying  the  alleged
violations,  and  a  consolidated hearing was held in Charleston,
West Virginia.  The parties  filed  posthearing briefs and I have
considered their arguments in the course  of  my  adjudication of
these matters.
                             Issues
     In  Docket No. WEVA 95-169, the issues include  (1)  whether
the  corporate  operator  violated  the  cited  mandatory  safety
standards;  (2)  whether  the  violations  were  "significant and
substantial" (S&S), (3) whether the violations were the result of
unwarrantable  failures  to comply with the cited standards;  and
(4) the appropriate civil  penalties  to be assessed, taking into
account the civil penalty assessment criteria  found  in  section
110(i) of the Act.
     In  the  two  individual section 110(c) cases, the principal
issue  is  whether  or   not   the  named  respondents  knowingly
authorized, ordered, or carried out the alleged violation, and if
so, the appropriate civil penalties  that  should be assessed for
the violation taking into account the relevant  criteria found in
section 110(i) of the Act.  Also in issue is whether  or  not the
violation was "S&S" and the result of an unwarrantable failure to
comply with the requirements of the cited standard.
         Applicable Statutory and Regulatory Provisions
          1.   The Federal Mine Safety and Health Act of 1977, 30
               U.S.C.  801 et seq.
          2.   Commission Rules, 20 C.F.R.  2700.1 et seq.
          3.   Sections  110(a)  and  110(c) of the Act.  Section
               110(a) provides for assessment  of civil penalties
               against  mine  operators  for  violations  of  any
               mandatory safety or health standards,  and section
               110(c) provides as follows:
               Whenever  a  corporate  operator  violates  a
               mandatory   health   or  safety  standard  or
               knowingly violates or  fails  or  refuses  to
               comply  with  any order issued under this Act
               or any order incorporated in a final decision
               issued  under  this   Act,  except  an  order
               incorporated  in  a  decision   issued  under
               subsection   (a)   or  section  105(c),   any
               director,   officer,   or   agent   of   such
               corporation    who   knowingly    authorized,
               ordered,  or  carried   out  such  violation,
               failure, or refusal shall  be  subject to the
               same civil penalties, fines, and imprisonment
               that  may  be  imposed  upon  a person  under
               subsections (a) and (d) (emphasis added).
     An "agent" is defined in Section 3(e) of the Act (30 U.S.C.
       802(e))  to mean "any person charged with  responsibility
     for the operation  of  all  or  part of a coal mine or other
     mine or the supervision of the miners  in  a  coal  mine  or
     other mine."
     Stipulations
     The   parties  stipulated  in  relevant  part  to  the
     following (Tr. 8-12):
     1.   The  respondent  is the operator of the subject
          mine and the operations  of  the mine are subject
          to the jurisdiction of the Mine Act.
     2.   The  Commission  and  the  presiding  Judge  have
          jurisdiction to hear and decide these matters.
     3.   The   information  contained  in   the   proposed
          assessments (MSHA FORM 1000-179) is accurate.
     4.   MSHA's   computer   print-out  concerning  Anchor
          Mining's listing of prior  violations (Exhibit G-
          1) is authentic and admissible,  except  that the
          proposed penalty assessments associated with  the
          two   instant  section  110(c)  cases  should  be
          excluded as part of the history.
     5.   Respondent James Simpkins served as an officer of
          Anchor  Mining  and  as  an "agent" as defined in
          section 3(e) of the Mine Act.
     6.   Respondent  James  Simpkins   has  the  financial
          ability  to  pay  the  assessed penalty  in  this
          matter.
     7.   Respondent James Tackett  served as an "agent" of
          Anchor Mining as that term  is defined in Section
          3(e) of the Mine Act, and, was  employed  as mine
          superintendent at the time of the violations.
     8.   The  section  104(d)(1)  and  (d)(2)  "chain" was
          procedurally  correct  and  followed the sequence
          pursuant to the Act.
Docket No. WEVA 95-169
     Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
cites an alleged violation of 30 C.F.R. 77.1006(a), and the cited
condition or practice is described as follows:
          It was revealed during an investigation  of a non-
          fatal  machinery  accident  that James G. Tackett,
          superintendent, performed work  in a underdrain at
          the  Dorothy Pit on September 15,  1994.   Tackett
          exposed  himself  to  the  hazards of the unstable
          spoil  on  the  sides  of  the underdrain.   James
          Simpkins,  President/Owner,  was   directing   the
          construction of the underdrain.
     Section 104(d)(1) "S&S" Order No. 4001124, October 12,
     1994,
cites  an alleged violation of 30 C.F.R. 77.1006(b), and the
cited
condition or practice is described as follows:
          It was revealed during an investigation of a non-
          fatal  machinery  accident that James G. Tackett,
          superintendent, performed  work  in an underdrain
          at the Dorothy Pit on September 15,  1994,  while
          an Hitachi Model EX 1000 excavator was positioned
          at  the  top  of  the  underdrain  which  blocked
          Tackett's egress.  The spoil on both sides of the
          underdrain   was   unstable.    James   Simpkins,
          President/Owner, was operating the excavator  and
          directing the construction of the underdrain.
Docket Nos. WEVA 96-74 and WEVA 96-75
     Respondents  James  Simpkins  and  James  Tackett  are  both
charged  with  a "knowing" violation of mandatory safety standard
30 C.F.R. 77.1607(g),  as  stated  in  a  section 104(d)(1) "S&S"
Citation No. 3745835, issued on September 19,  1994.   The  cited
condition or practice states as follows:
          It   was  revealed  during  a  non-fatal  accident
          investigation  that James Simpkins, mine operator,
          failed to insure  that  all  persons  were  in the
          clear before moving a Hitachi EX 1000 excavator at
          the  Dorothy  Pit on September 15, 1994.  Simpkins
          was placing rock  into  an  underdrain  when Dempy
          Cline,   Dozer   operator,   stepped  between  the
          excavator  and  a  spoil  pile.   Cline  sustained
          serious  injuries  to  his right leg which  became
          pinned between the excavator  and spoil.  Simpkins
          knew  that  3  persons  were  standing   in  close
          proximity to the excavator and said that he should
          have instructed them to move to a safe location.
                  MSHA's Testimony and Evidence
     Ricky   D.   Adams,  Environmental  Engineer,  employed   by
Cumberland River Coal Company, testified that his company holds
the coal mine leases and that the respondent was mining coal as a
contractor.  Since  Cumberland  River was responsible for surface
environmental compliance, Mr. Adams  was at the mine on September
15, 1994, to observe the construction  of  a  French  drain.   He
confirmed that he took photographs to document that the drain was
constructed  properly  to  drain  the  water from the underground
mine, and he explained what was taking place when the photographs
were taken (Exhibits G-2 through G-11; Tr. 22-51).
     Mr. Adams stated that the excavator  was digging at the base
of the highwall creating a drainage ditch running  away  from the
highwall.  The highwall was approximately 80 feet high above  the
edge  of  the  ditch  nearest  the  highwall, and the loose spoil
materials excavated from the ditch were  placed on either side of
the ditch (Tr. 28).  He confirmed that Mr.  Tackett went into the
ditch to spread a Typar covering material that had fallen off the
excavator teeth over the rocks that were placed in the ditch (Tr.
33, 35).
     Mr.  Adams stated that the ditch was approximately  six-foot
deep near the edge of the excavator and at least six-foot deep or
more at the  end  of the ditch near the spoil bank at the base of
the highwall.  After the initial layers of rock and Typar were
placed in the ditch, there was still depth to the ditch and spoil
was piled on each side  when he observed Mr. Tackett in the ditch
(Tr. 39-40).
     Mr. Adams stated that the Typar material had to be stretched
from end-to-end in the drain.   However,  Mr.  Tackett did not go
further  into  the ditch than the location shown in  photographic
exhibits G-8 and  G-9-A and "he just reached over and brought the
Typar back to completely cover the section of ditch that they had
constructed" (Tr. 42).   He  confirmed that Mr. Tackett was below
the height of the spoil material  that  was  on  each side of the
ditch (Tr. 45).
     Mr. Adams marked a red circle on exhibit G-11,  to  show the
vicinity of the area where he was standing for a good view of the
drain.   He stated that it was a flat area composed of the  spoil
material that  was  dug  out of the ditch (Tr. 51).  He confirmed
that at one time he, Troy  Perry,  Dempy Cline, Mr. Simpkins, and
Mr.  Tackett  were  all  standing  at that  location  before  the
accident (Tr. 52-53).
     Mr. Adams stated that Mr. Cline  was  standing  to  his left
within  "a  step  and  a reach," and that they were 16 to 18 feet
from  the  rear  machine  counterweight   before  it  turned  and
swiveled.  When the machine swiveled, he estimated that they were
5 or 6 feet from the rear counterweight.  After standing with the
group looking at the ditch, Mr. Simpkins commented  "let's finish
the job," and he and Mr. Tackett walked around the other side of
the machine.  The machine then started to turn and he noticed
that Mr. Cline was in its path.  He did not notice that Mr. Cline
had moved from his prior position.  Mr. Cline was looking  toward
the  ditch and did not see the machine.  Mr. Adams yelled at  Mr.
Cline  and  reached  to grab him, but the machine trapped his leg
and dragged him into the  spoil  pile  under the machine (Tr. 54-
59).
     Mr.  Adams  stated  that  before Mr. Cline  was  struck,  he
(Adams) knew that Mr. Simpkins was  going  to get on the machine,
but did not know the instant he was going to  swivel the machine.
Mr.  Adams noticed no signal from Mr. Simpkins and  Mr.  Simpkins
did not  tell  him  that  he  was going to move the machine.  Mr.
Adams stated that Mr. Tackett gave  no  warning  to  him,  and he
noticed no warning to anyone else (Tr. 60).
     Mr.   Adams   confirmed  that  when  the  accident  occurred
preparations were being  made  to  construct  and extend the next
section of the ditch.  He identified exhibit G-12 as a photograph
of the counterweight that struck Mr. Cline (Tr. 63).
     Mr.  Adams  stated that his safety training  included  spoil
bank loose and unconsolidated  materials.   He  saw nothing about
Mr. Tackett's location in the drain ditch that would cause him
any safety concern, and saw no dangerous situation involving
Mr. Tackett (Tr. 69-70).
     Mr.  Adams  was  of  the  opinion  that  the  accident   was
preventable  if the drain had been constructed two or three weeks
earlier before  pushing any spoil off the highwall because little
excavation work would  have  been  required, and if Mr. Cline had
been standing somewhere else behind  him.   However,  he conceded
that  the  state  regulations  did not prohibit constructing  the
drain the way the respondent was doing it, and he felt reasonably
safe where he was standing, and  Mr.  Cline was near him (Tr. 72-
76).
     On cross-examination, Mr. Adams confirmed  that  he  holds a
mining  engineering  degree  from  West Virginia Tech and has had
daily experiences with spoil banks and  highwalls  (Tr.  80).  He
stated  that  the  drain  design called for a six-foot deep ditch
with rock in it four-feet high  and  four-feet  wide.   The drain
area was five or six feet wide (Tr. 81-82).
     Mr.  Adams  confirmed that photographic exhibit G-9-A  shows
where Mr. Tackett  was  standing  in the ditch and he did not see
him go further into the ditch when  he  was  stretching the Typar
over the rock.  He stated that in the photograph the rock appears
to  be  directly  over Mr. Tackett, but that is not  the  way  he
recalled the situation when he took the picture.  At that time he
had no safety concerns  that  Mr.  Tackett was in danger of being
covered up, and the spoil banks on either side of Mr. Tackett
were  not  in danger of giving way (Tr.  83).   He  characterized
those spoil  banks  as "tapered out" to zero, and the ditch where
Mr. Tackett was standing  was  probably six feet deep and four to
six feet wide (Tr. 84).  Mr. Adams stated that Mr. Tackett was in
the ditch less than a minute and  he  did  not recall that he had
any difficulty in leaving (Tr. 85).  He confirmed  that  he would
have  spoken  out  if  he  believed  Mr. Tackett was in an unsafe
position (Tr. 88).
     Mr.  Adams stated that the area in  which  he  was  standing
prior to the  accident  was  loose, unconsolidated spoil material
near  the  toe of the spoil bank,  and  it  consisted  of  ninety
percent sandstone  rock.  The material never slipped while he was
standing on it, and  it  showed  no indication that it would slip
(Tr. 89).  The area was level and  it was approximately "five-by-
six, four-by-six, twenty-four feet square"  (Tr.  90).   The area
was  close to the elevation of the counterweight, and he observed
that the  counterweight had made a clear indentation in the spoil
bank between  the  level  area  where  he  was  standing  and the
excavator (Tr. 90-91).
     Mr.  Adams  believed  that  everyone  was in the clear while
standing on the level area in question, including himself and Mr.
Cline, and he perceived no hazard from that position.  If he had,
he would have relocated and informed the others to do so.  He
confirmed  that  Mr. Cline moved from the position  that  he  had
originally observed  him  in,  and  it  was not clear when he was
struck, but he did not observe him move (Tr. 93).
     Mr. Adams stated that Mr. Tackett had  to come "back behind,
back toward the excavator" to get out of the  ditch  and  he  was
sure that he "could get out on either side of the excavator" (Tr.
97).   He observed no problem, did not believe that the excavator
was blocking Mr. Tackett's egress, and saw nothing that prevented
him from leaving the ditch area from where he was standing.
     In  response  to  further  questions,  Mr. Adams stated that
although  the  rock  shown  in exhibit G-9-A was  away  from  Mr.
Tackett  towards  the  highwall,   it  was  part  of  the  loose,
unconsolidated spoil bank material above  the spoil bank in front
of Mr. Tackett, and if the spoil bank gave  way,  it  could  have
affected  him  (Tr. 108).  He further confirmed that anyone going
further into the  ditch  to  stretch the Typar all the way to the
back of the ditch would be exposed  to  20  feet of spoil bank on
either side of the ditch (Tr. 119).
     Mr.  Adams stated that the Typar was spread  by  the  bucket
teeth of the  excavator  and that Mr. Tackett did not go into the
ditch to spread it out against  the  farthest  end  of  the ditch
(Exhibit G-4, G-5).  He characterized the installation of the
Typar as a "sloppy job," and to spread the Typar "nice and  tidy"
would  require  someone to do it by hand (Tr. 127-130).  However,
he saw no one do this while he was there (Tr. 131).
     With regard  to  the accident involving Mr. Cline, Mr. Adams
stated that he knew the  machine  was  going  to move and was not
surprised by the swinging of the counterweight,  and  he expected
it  (Tr.  133-134).   Mr. Simpkins was operating the machine  the
entire time, and before it swiveled striking Mr. Cline he did not
hear or see Mr. Simpkins  give  an  audible  signal  or "eyeball"
anyone  standing  at the rear (Tr. 137).  He did not believe  the
machine  had  an  alarm   that  sounded  when  the  counterweight
swiveled, and the area  to  the  rear  of  the  machine  was  not
posted,  flagged,  or barricaded.  He was not aware that industry
practice or the regulations  required  an alarm or posting and he
believed  that  he  and  the other individuals  were  at  a  safe
distance where they were standing (Tr. 139).
     Roy T. Perry, employed  by  the  respondent  as  a  security
guard,  testified that he was present at the time of the accident
on September 15, 1994, and was taken to the site by Mr. Tackett
to help cut the Typar material that was installed in the drainage
ditch.  The Typar was placed on the bucket teeth of the excavator
to be placed into the ditch, and Mr. Tackett, assisted by
Mr. Cline, were hanging the Typar on the excavator.  The fabric
fell off,  and  he saw Mr. Tackett go into the ditch and hang the
Typar up again.   After  this was done, he stood to the rear left
side of the machine with Mr.  Cline  and Mr. Adams (Exhibit G-11;
Tr.  147-148).  Mr. Cline was looking into  the  ditch  when  the
machine  swung  and  struck  him  (Tr.  150).   Mr. Perry further
explained as follows at (Tr. 151-152):
          Q.   And  before the machine moved, did  you  have
               any signal or any type of warning from anyone
               that it was going to move?
          A.   I wasn't  - myself, I wasn't expecting it.  I
               don't know  whether  there was any indication
               of it, you know, to let  me  know or somebody
               else know.  I was interested in  watching him
               work the material in the hole.
          Q.   Do   you  recall  anyone  signaling  you   or
               notifying  you  at  all  that it was going to
               move?
          A.   I didn't see no one.  Like  I  said, I wasn't
               paying no attention.  You know,  I  was  just
               looking over in the hole.
          Q.   How  close were you to the counterweight, the
               rear part of the machine, as it went by you?
          A.   Well,  I  thought  I was far enough away, but
               after it went by me  there,  if  I would have
               made  one  step,  I would have probably  been
               under  it.   I  could  have  reached  up  and
               probably tipped it.   That  is  why  I looked
               off.  When it went by me, I felt the wind  of
               it and I jumped and looked back.
          Q.   How  many  feet  would  you estimate that you
               were close to it?
          A.   It's like I told the others, an arm's length.
               I could have reached out and tipped (sic) it.
     Mr.  Perry  stated that Mr. Tackett explained  the  possible
dangers to him before  he started the work and told him to "watch
the machine.  Be careful," and warned him not to get too close.
When he observed Mr. Tackett in the ditch, Mr. Tackett was on the
right side of the bucket hanging up the Typar (Tr. 153).
     On cross-examination, Mr. Perry stated that Mr. Simpkins was
operating  the excavator  when  Mr.  Cline  was  struck,  and  he
described what occurred as follows at (Tr. 156):
          A.   Like  I said, he was standing out in front of
               me.  I  was  looking  at the hole and I could
               see him.  He moved his foot like he was going
               to turn.  And when he done that, that is when
               everything went into motion and I looked off.
               I never did see him put  down  his foot.  The
               next time I looked back around,  he was under
               the  machine and Rick was trying to  get  him
               out.
     Mr. Perry stated  that  he  did  not realize that he and Mr.
Cline were close to the counterweight or in danger.  He confirmed
that he observed Mr. Tackett hook the Typar  on  the teeth of the
excavator but saw no one in the ditch laying it out,  and  he did
not observe Mr. Tackett straightening out the Typar (Tr. 159).
In  response  to bench questions, Mr. Perry viewed Exhibit G-9-A,
and confirmed that  it shows Mr. Tackett in the ditch next to the
excavator  bucket  straightening  out  the  Typar.   However,  he
indicated that he only observed Mr. Tackett hang the Typar on the
excavator teeth (Tr. 161).
     Dempy Cline, testified  that  he was unemployed, and that he
worked for the respondent for eight years as an equipment
operator.  He confirmed that he was working on September 15,
1994, helping Mr. Simpkins in the construction of the ditch.
Mr. Cline operated a D-9 dozer pushing  dirt out of the way while
Mr. Simpkins excavated dirt out of the ditch (Tr. 163-168).
Mr. Simpkins was operating the excavator,  and  after  holes were
cut  into  the  end  of the Typar material, it was placed on  the
excavator teeth and Mr.  Simpkins  dropped  it  in  the ditch and
stretched it out with the machine (Tr. 168).
     Mr.  Cline  stated  that when the second piece of Typar  was
dropped  in the ditch "it didn't  go  in  there  good,"  and  Mr.
Tackett went into the ditch to move and stretch the material.  He
stated that Mr. Tackett stretched the material toward the back of
the ditch to the farthest distance from the edge of the excavator
(Tr. 170).
     Mr. Cline  stated  that  he and Mr. Simpkins, Mr. Perry, and
Mr.  Adams  were  standing at the  left  rear  of  the  excavator
talking, and Mr. Tackett  was in the ditch.  Mr. Cline then moved
to the area circled in red on exhibit G-11, with Mr. Perry and
Mr. Adams, and they were talking  and looking up the hill where a
strip job was working.  Mr. Cline stated  that  he was looking up
and to the left, with his back turned toward the  excavator  when
"Rick  Adams  grabbed  me  by  the  shoulder and I sort of turned
around.  About that time, the machine hit me and knocked me down,
cut my leg off" (Tr. 173).
     Mr. Cline stated that he had no  warning  that the excavator
was going to move and he believed that Mr. Simpkins  should  have
known  where  he  was positioned because he got on the machine on
the left side where  the cab ladder was located, and that was the
same side where he (Cline)  and  the  others were standing at the
left rear of the machine.  Mr. Cline stated  that Mr. Tackett was
not aware where he was standing (Tr. 174).  He  confirmed that he
was  standing  on  recently  placed spoil (Tr. 175).   Mr.  Cline
stated that he had no indication by the sound of the machine that
it was going to turn in the direction  where he was standing, and
he did not expect that the counterweight  would  turn to the left
before it hit him (Tr. 176, 179)).
     Mr.  Cline  estimated that the height of the spoil  bank  on
each side of the ditch  was 10 to 15 feet at the excavator end of
the ditch, and 40 feet at  the end toward the highwall (Tr. 179).
Based  on  his experience, Mr.  Cline  believed  that  a  prudent
distance for  anyone  to be close to the machine would be 50 feet
away from the back of the  machine.   He  was  not  50  feet back
because the excavator was idling, and he was not present when the
counterweight was previously moving from right to left because he
was operating the bulldozer (Tr. 183-184).
     On cross-examination, Mr. Cline confirmed that he previously
     gave a taped interview to MSHA immediately following the
     accident, has given at least one deposition, and has filed a
     civil  lawsuit  against  the  respondent as a result of  his
     injuries (Tr. 187-188).
     Mr.  Cline  agreed  that  people  around  machinery  have  a
     responsibility to look out for its  movements.  He confirmed
     that  he  was at the work location for  three  and  one-half
     hours prior  to the accident and observed Mr. Simpkins swing
     the machine more than once (Tr. 190).
     Mr. Cline stated  that  he  heard no loud machine noises and
     observed no diesel smoke immediately  prior  to the accident
     and that he had his back to the machine.  He did not believe
     that it
     was idle with no one in it (Tr. 197).  He did not notice Mr.
     Simpkins leave the group when they were standing at the rear
     of the machine talking and Mr. Simpkins said nothing  to him
     that  he  heard.   He  thought Mr. Simpkins "was still there
     hanging around" (Tr. 198).   Conceding  that it was possible
     that he took a step
     into the path of the counterweight, Mr. Cline did not recall
     ever moving.  He also stated that it was  possible  that  he
     told MSHA that this is what occurred (Tr. 199).
     Respondent's counsel stated that he was prepared to play the
     tape  of  Mr.  Cline's  MSHA interview statement that it was
     possible that he took a step  to  the side or forward at the
     same time the
     machine started to turn.  MSHA's counsel stipulated that the
     tape  would reflect that Mr. Cline did  make  the  proffered
     statement (Tr. 200).  Mr. Cline confirmed that he stated "it
     was possible," but he did not recall moving (Tr. 203).
     Mr. Cline  confirmed that he was standing when he was struck
     and that he  did not slip or fall, and the area where he was
     standing did not  give  way (Tr. 205).  He confirmed that he
     did not actually see Mr.  Tackett  positioning  the Typar at
     the point farthest away from the excavator, and stated "that
     is what he was supposed to have done" (Tr. 206).   Mr. Cline
     read a portion of his prior deposition on October 31,  1995,
     at  page  73,  stating  that  he  did  not know where he was
     standing  prior  to the time he was struck.   He  could  not
     recall making the  statement,  but  confirmed that he didn't
     know exactly where he was standing (Tr. 207-209).
     Mr.  Cline  confirmed  his prior deposition  statement  that
     since the excavator was  not  operating he didn't believe he
     had  anything  to  worry about, and  had  he  known  it  was
     operating he would have  been back out of the way (Tr. 213).
     Further, since Mr. Simpkins  was near him immediately before
     he was struck, Mr. Cline had no  concern  about the rotation
     of the machine because there was no operator on it (Tr. 215-
     216).   The second phase of the operation would  entail  Mr.
     Simpkins tramming the machine back
     to continue  placing  rock and Typar in the ditch (Tr. 219).
     Mr. Cline confirmed that  Mr.  Tackett was on the right side
     of  the machine prior to the accident  and  would  not  have
     known  where  he  was  positioned  before he was struck (Tr.
     222).
     Roderick  R.  Wallace,  West  Virginia  state  surface  mine
     inspector, testified that he has inspected  the respondent's
     mining operation and investigated the accident that occurred
     on  September  15, 1994.  The investigation took  place  the
     following day and  Mr. Simpkins and Mr. Tackett were present
     and he spoke with them.   He  explained  what he covered and
     observed during his investigation, including  the dimensions
     of  the  French drain and how it was constructed  (Tr.  223-
     236).
     Mr.  Wallace  stated  that  the  loose  unconsolidated  soil
     material   that   was  excavated  out  of  the  drain  ditch
     constituted "a very  high  potential  of this stuff slipping
     and  sliding  off of there," and he believed  "it  would  be
     foolish to go into that hole
     for any reason" (Tr. 236).  He further stated that the spoil
     in and around the  ditch was "all near vertical.  It was all
     loose, unconsolidated  material"  (Tr.  236).   Based on his
     interviews,  he determined that the people who were  present
     at  the  time  of  the  accident  were  standing  on  loose,
     unconsolidated material  that  was on a slope, and they were
     in  very  close  proximity  to  the  swinging   arc  of  the
     excavator.  He confirmed that he interviewed Mr.
     Simpkins,  Mr. Tackett, Mr. Adams, and Mr. Perry (Tr.  243).
     In his opinion,  any  location within the swinging radius of
     the  excavator  is a hazardous  position,  and  standing  on
     unconsolidated  spoil   will   increase  the  potential  for
     personal injury (Tr. 245, 248).
     Mr.  Wallace  stated that no one told  him  that  they  were
     standing on unconsolidated  material or were unsure of their
     footing.  Nor did they tell him  that  they were slipping or
     sliding or thought that they were in a hazardous position
     (Tr. 245).  He stated that Mr. Perry told  him he was within
     an  arm's  length of the excavator (Tr. 246).   Mr.  Wallace
     stated  that  anyone  within  the  swinging  radius  of  the
     excavator  boom  could come in contact with the machine (Tr.
     251).
     Mr. Wallace stated that in an interview with Mr. Cline after
     his  initial investigation  Mr.  Cline  told  him  that  Mr.
     Tackett  went  into  the  drain to spread the Typar, and Mr.
     Tackett later confirmed that  he was in the ditch (Tr. 255).
     Mr. Wallace was of the opinion  that  it  was  not  safe for
     anyone   to   be  anywhere  in  the  ditch  because  of  the
     surrounding unconsolidated material (Tr. 256).
     Mr. Wallace stated  that  in  the  event  of  a  spoil  bank
     collapse,  anyone  in  the  ditch would have to come out the
     front,
     and the excavator would partially  block  that area and make
     it  "a  little  more  difficult to get out" (Tr.  258).   He
     confirmed that Mr. Simpkins  indicated to him that if he had
     made  sure  everyone was in a safer  location  the  accident
     would not have  occurred (Tr. 260).  Mr. Wallace stated that
     if he had observed  the individuals standing in the location
     indicated, he would have  cited  them  for  being  in  close
     proximity to the moving machine (Tr. 260).
     On  cross-examination, Mr. Wallace confirmed that he has  no
     mining  engineering  degrees, has no experience operating an
     excavator, and took no  measurements concerning the width or
     depth of the ditch.  He also  confirmed  that  his  accident
     report   reflects   that   there   is  conflicting  evidence
     concerning
     Mr.  Cline's  position  in  that  Mr. Adams  and  Mr.  Perry
     indicated
     that  Mr.  Cline stepped down into the  excavator,  and  Mr.
     Cline did not  recall  that  he  had done so (Tr. 268).  His
     report also reflects that "as the  excavator  began to move,
     Dempy  Cline  appeared  to  step onto a flat area where  the
     counterweight had scruffed off on the spoil bank" (Tr. 269).
     Mr. Wallace stated that no state  personal  action was taken
     against Mr. Tackett, Mr. Adams, Mr. Cline, or Mr. Perry, but
     charges were recommended against Mr. Simpkins  for a knowing
     violation  (Tr.  280-281).   He  confirmed  that his  report
     contains  no statement that anyone was within  the  zone  of
     danger on the
     swing of the excavator boom (Tr. 284).  He further confirmed
     that he did  not  personally  know whether Mr. Tackett had a
     means of egress and ingress to  the  left  of the excavator,
     and it was possible that he could have exited  on  the right
     side or under the tracks of the machine (Tr. 285).
     Mr.  Wallace  confirmed  that  he  cited  Mr.  Simpkins "for
     operating a piece of equipment with people in such proximity
     as to be injured" (Tr. 287).  He also cited the  company for
     the  same  violation  and for operating an excavator  within
     four feet of a spoil pile,  and the citations were issued as
     "unknowing" violations (Tr. 290).
     William  A.  Blevins,  MSHA  supervisory   mine   inspector,
     testified that he went to the mine on September 16, 1994, in
     response to a notification by the respondent that a  serious
     accident  occurred  the prior evening, and he discussed  his
     investigation and what  he  observed,  including a sketch of
     the  accident  scene,  his  accident  report,   and  several
     photographs (Exhibits G-12, G-13, G-18; Tr. 291-311).
     Mr. Blevins confirmed that he issued all of the citations in
     question.     He  issued  section  104(d)(1)  Citation   No.
     3745835, for a  violation  of section 77.1607(g), because of
     the respondent's failure to  assure  that everyone was clear
     of the excavator at the time of the accident  (Exhibit G-14,
     Tr. 315).  He based his "S&S"
     gravity  conclusions  on the fact that an accident  occurred
     and Mr. Cline lost part  of  his  leg.   He  based his "high
     negligence"  finding  on  the  fact  that  Mr. Simpkins  was
     directing  the work being performed and Mr. Tackett  was  in
     the area helping with the work (Tr. 317-318).
     Mr. Blevins  stated  that he based his unwarrantable failure
     findings on the fact that  Mr. Simpkins and Mr. Tackett were
     in the area directing the work  force,  had direct knowledge
     of the position of Mr. Adams, Mr. Perry,  and Mr. Cline, and
     failed to exercise reasonable care to assure  that they were
     in a safe location before moving the machine.   He  believed
     that  this  constituted  aggravated  conduct (Tr. 319).   He
     further explained
     that he was told that before getting back  on  the  machine,
     Mr.  Simpkins  glanced  to  the  left to see where the three
     people were located and Mr. Tackett was to the right side of
     the machine.  Mr. Simpkins signaled  Mr. Tackett that he was
     getting back on the machine, but did not  signal  the  other
     individuals (Tr. 320).
     Mr.  Blevins  stated  that the cited regulation requires the
     equipment operator to check  around  the  machine to be sure
     that everyone is in the clear, or give a signal or use other
     means to assure that everyone is in the clear  before moving
     the machine (Tr. 322).  Mr. Blevins stated that  during  his
     interview,  Mr.  Simpkins  told  him  that  he saw the three
     individuals standing in
     close proximity to the excavator.  He further stated that he
     asked  Mr. Simpkins what he could have done to  prevent  the
     accident, and Mr. Simpkins stated "have the people move to a
     safe location" (Tr. 327).
     With regard to section 104(d)(1) Order No. 4001122, citing a
     violation  of section 77.1006(a) because Mr. Tackett entered
     the drain ditch  and  exposed  himself to loose and unstable
     spoil,
     Mr. Blevins stated that he based  it  on  statements made by
     Mr. Cline, Mr. Adams, and Mr. Tackett that  Mr.  Tackett had
     indeed  entered  the ditch (Exhibit G-15; Tr. 331-332).   He
     based his "S&S" and  gravity  findings  on the fact that the
     unstable materials would cover up a person  in  the ditch if
     work were to continue.  He based his high negligence finding
     on  superintendent  Tackett's admission that he entered  the
     ditch and exposed himself  to  a  hazard.  His unwarrantable
     failure finding was based on the following (Tr. 334):
          A.Well, when I went back to the  mines  and talked
          to Mr. Tackett about it, he then admitted  that he
          had  gone into the ditch and realized that it  was
          unsafe for him to do so and said that he shouldn't
          have done it.  And I don't remember his exact
          remarks, but he wouldn't ask anybody else to go in
          and do  it,  but he would do it himself, something
          of that nature.
     Mr. Blevins confirmed that he issued section 104(d)(1) Order
No.  4001124, citing a violation  of  section  77.1006(b),  after
concluding  that Mr. Tackett's egress from the ditch where he had
worked would  be blocked by the manner in which the excavator was
positioned (Exhibit  G-16; Tr. 334).  He believed the only access
out of the ditch was up by the excavator tracks, but that mode of
access "was just about  blocked," although not completely.  While
it is possible that Mr. Tackett  could  have  escaped  under  the
machine  and  between the tracks, Mr. Blevins believed this would
be unsafe (Tr. 336).
     Mr. Blevins  explained  his  gravity findings, and he stated
that Mr. Tackett had a small area on  each  side  of  the machine
that would possibly have allowed him through depending  on  where
unstable  spoil  fell,  but  in the event of a spoil failure, "it
would probably have been fatal,"  and  he would have been covered
up (Tr. 337).  He based his unwarrantable failure finding
basically on the fact that Mr. Tackett was the superintendent and
agent of the operator and placed himself  in a dangerous position
by getting in the ditch (Tr. 339).
     On  cross-examination,  Mr. Blevins confirmed  that  he  has
worked  at  a  surface  strip mine  but  has  never  operated  an
excavator.  He further confirmed  that  he  made  no measurements
during his investigation, and that all of the distances he
mentioned were estimates (Tr. 344).  He stated that  Mr.  Tackett
admitted  that  he  was  in  the  ditch but that the boom was not
extended out over him (Tr. 346-347).
     Mr. Blevins agreed that nothing in his investigation led him
to  believe that any of the witnesses  thought  they  were  in  a
dangerous situation prior to the accident.  He confirmed that his
accident  report does not address the swing of the excavator boom
in the "zone  of  danger"  associated  with the range of the boom
(Tr. 349-350).
     Mr.  Blevins  confirmed that his report  reflects  that  Mr.
Cline positioned himself  in  a location where he would be struck
by the counterweight, and Mr. Blevins  cold  not  recall that Mr.
Adams believed that the material he was standing on was loose and
unconsolidated.   Mr. Blevins could not recall whether  he  asked
Mr. Tackett or Mr.  Simpkins  whether  they  recognized  the area
where they were standing as hazardous, and he confirmed that  Mr.
Simpkins believed they were in a safe location (Tr. 352).
     Mr. Blevins confirmed that the statement attributed to Mr.
     Simpkins  as  reflected on the face of the citation was made
     in response to "what could we do to prevent a reoccurrence,"
     and that it was made after the accident (Tr. 354-355).
     Mr. Blevins confirmed  that  Mr.  Simpkins  told him that he
     looked  back to see the location of the three  miners.   Mr.
     Blevins stated  that  this  was  an unobstructed view to the
     left of the machine and he found no  evidence  to refute Mr.
     Simpkins'  statement,  or  to refute his statement  that  he
     looked and made visual contact with Mr. Tackett on the right
     side of the machine (Tr. 357).
     Mr. Blevins confirmed that Mr.  Adams  and  Mr. Perry stated
     that Mr. Cline took a step in towards the machine, and these
     statements were made a day after the accident.   Mr. Cline's
     interview was conducted approximately three weeks later afer
     Mr. Cline's attorney contacted him and advised him  that Mr.
     Cline  was available at his home for an interview (Tr.  357-
     359).
     Mr. Blevins  was  of  the  opinion  that  the men were in an
     unsafe location even before the counterweight  swung around,
     and
     the fact that the miners did not recognize the hazard  would
     not  mitigate  the  respondent's  negligence  (Tr. 360).  He
     believed  that  the hazard should have been obvious  to  the
     miners, but he did not consider Mr. Cline's movement as part
     of his unwarrantable  failure  finding,  and  he  based  his
     determination  on  their position prior to the accident (Tr.
     361).
     Mr. Blevins did not  know  whether  or not Mr. Tackett could
     have gone around the right or left side  of the machine when
     he  was in the ditch, but stated it was possible.   He  also
     did not  know  if  Mr.  Tackett  could have exited the ditch
     under the machine and between the tracks because the machine
     had been moved.  The question of Mr.  Tackett's  ability  to
     get  himself in and out of the area was not addressed during
     his initial  investigation  interviews,  but he obtained the
     information  weeks  later.  He spoke to no eyewitnesses  and
     issued the citation based  on  his  judgment alone (Tr. 375-
     376).
     Mr. Blevins stated that during his interviews  of Mr. Perry,
     Mr. Adams, and Mr. Cline, they gave no indication  that  Mr.
     Simpkins  warned  or informed them that he was going to move
     the machine, and they stated that they did not know that Mr.
     Simpkins had gotten  back  into  the machine (Tr. 380).  Mr.
     Blevins observed that there was an  indentation in the spoil
     where the accident occurred, and according to the statements
     of the miners they were standing within  a  few  feet of the
     indentation.   He  concluded  from  this that they were  too
     close to the machine (Tr. 382).
     Dr. Kelvin K. Wu, PH.D., Chief, Mining Engineering Division,
     MSHA  Pittsburgh  Safety and Health Technology  Center,  was
     accepted as an expert  in  geotechnical  matters,  including
     ground control (Exhibit G-19; Tr. 12-21).  He testified that
     he   reviewed   the   accident  report  and  gained  further
     information concerning  the  respondent's  mining  operation
     through   discussions  with  MSHA's  counsel  and  Inspector
     Blevins, and  also  reviewed  the  photographic exhibits and
     equipment   specifications  for  the  Hitachi   Model   1000
     excavator.   He   also   gave   a   deposition  attended  by
     respondent's  counsel  and  has  been  present   during  the
     testimony  in  these  proceedings  (Tr.  30).  Based on  his
     review of the photographs and witness testimony,  Dr. Wu was
     of the opinion that the ditch was not very wide and that the
     sloped sides of the ditch consisted of loose materials  that
     "can  fall  in  unpredictably  anytime"  (Tr.  37).  He also
     believed that anyone standing at the end of the
     ditch  closest  to  the  excavator  would  be in a hazardous
     location  because the sloped materials can slide  and  cover
     him up (Tr. 41).
     Dr. Wu described  the working parameters of the machine that
     was used in excavating  and  constructing the ditch (Tr. 48-
     53).  He confirmed that the machine boom can make a complete
     360 degree turn, with a resulting 45 foot radius.  He agreed
     that the boom
     may  not  swing  completely  around   in   a   circle  while
     excavating, but since it is capable of doing so,  he  was of
     the  opinion  that  a  location  outside of the 45 foot boom
     swing would be a "safe
     location"  for people to be in.  He  further  believed  that
     only those people  necessary  to the work being performed be
     allowed around the machine, and  that  in  order to avoid an
     accident  it was critical for the machine operator  to  make
     acknowledged  eye contact with persons near the machine (Tr.
     57-60).
     Dr. Wu stated that  depending  on the prevailing conditions,
     and in an emergency, Mr. Tackett  could  have crawled out of
     the   ditch   under   and   through  the  openings  of   the
     undercarriage of the machine  (Tr.  62-66).   However, given
     the  fact that the ditch area is sloped, a sudden  slide  of
     materials  would  make  it  very difficult to get out of the
     ditch (Tr. 66-67).  Reviewing  photographic  exhibits G-9(a)
     and G-11, Dr. Wu believed that Mr. Tackett would  be exposed
     to a hazard if he were positioned between the machine shovel
     bucket and the front of the machine, and in the event  of  a
     massive slide of loose material, the machine boom area would
     be  covered  up (Tr. 68-70).  Dr. Wu believed that providing
     clearance on either  side  of  the  machine,  or providing a
     wider  area on either side of the ditch slopes,  could  have
     provided a means of egress for Mr. Tackett (Tr. 84-86).
     Dr. Wu believed  that the area outside the farthest reach of
     the machine would  be  a "safe zone."  Although Mr. Simpkins
     may
     have made visual contact with the people standing behind the
     machine, he did not receive  any  acknowledgment  (Tr.  72).
     Dr.  Wu believed that the people standing behind the machine
     on  loose   materials   as   shown  by  the  red  circle  on
     photographic exhibits G-2 and  G-11,  could  have lost their
     footing  while the machine was turning, and he  was  of  the
     opinion that  these hazardous conditions would be obvious to
     the equipment operator,  and  precautions  should  have been
     taken (Tr. 78, 81-82).  He further stated as follows at (Tr.
     90):
               Q.   Would  a  reasonably  prudent  equipment
               operator,   first   of   all,   under   these
               circumstances,  have  been  aware  that these
               miners,   as   testified   to   were  in  the
               counterweight area, were in an unsafe area?
               A.   As  I  stated  before,  based  on   this
               specification, I can comfortably say there is
               a  blind  area  or  spot behind this piece of
               equipment the operator  wouldn't  see.  So if
               he  knows  there is a certain blind spot  and
               very close if he knows people are there, then
               special precaution should be taken.
               Q.  And from testimony as was stated earlier,
               there was testimony  that Mr. Simpkins looked
               toward these people.   And would a reasonably
               prudent equipment operator do that?  Was that
               enough under the circumstances to - -
               A.  Under this circumstances, I would say no,
               because when the machine  was  faced  to  the
               highwall,  the  operator  sitting in the cab,
               when he turns left, he can  see those people.
               As I stated, you might misjudge the distance.
               And the major
               things  happening  here  is miscommunication.
               Seems   to   me   that   testimony    is   no
               acknowledgment  of  those people receive  his
               visual contact.  When  the  machine  swing to
               the  right,  then  those  people  behind  the
               counterweight  is  in  the blind spot.  He no
               longer can see them.
     And at (Tr. 92):
               Q.  And in terms of the spoil bank conditions
               surrounding  the  ditch, would  a  reasonably
               prudent superintendent  or  someone in charge
               of the health and safety of the  area  of the
               mine permit someone to go into that ditch  to
               work under those conditions?
               A.   If  those  people  responsible  for  the
               operation  have  a knowledge of the hazardous
               conditions,   then   they    probably   would
               recognize it.  If they do not,  then probably
               not.
     On cross examination, Dr. Wu acknowledged that  he has never
     worked  as  a  miner or operated an excavator (Tr. 97).   He
     confirmed that his  involvement  in  this case began in July
     1996, and he has never visited the accident scene (Tr. 100).
     He agreed
     that  no exact measurements were made with  respect  to  the
     areas in  and  around  the  excavator,  and  after reviewing
     photographic exhibits G-2, G-9(A), G-10 and G-11,  he agreed
     that  they  do  not show a lack of clearance on the left  or
     right of the machine  tracks  (Tr.  104-106).   He confirmed
     that  he  was  aware  of  no  definite  or  clear  testimony
     indicating the clearance between the
     left and right tracks where Mr. Tackett was moving the Typar
     material  (Tr.  107-108).  Dr. Wu was of the opinion that  a
     minimum of 2  feet  of clearance on each side of the tracks
     would be sufficient clearances  to  meet the requirements of
     the regulation.  In addition, a further  safe practice would
     be  to  stabilize the side slopes in order to  maintain  the
     clearances,  even  though  this is not required by the cited
     regulation (Tr. 116-118).
     Reviewing photographic exhibit G-9(A), Dr. Wu described what
     he believed were loose materials around the area where Mr.
     Tackett is standing.  He estimated  that the machine boom is
     extended 25 feet from the front of the  excavator track, and
     that Mr. Tackett is approximately 5 to 10 feet from the boom
     bucket teeth (Tr. 122-124).  Dr. Wu could  not  speculate or
     predict  where  the  rock  that is circled in the photograph
     would go if it fell and rolled down the slope (Tr. 124-125).
     Dr. Wu estimated from the photographs and testimony that the
     ditch was approximately 30 to 40 feet long, and from 0 to 30
     feet
     deep.  He further estimated that the ditch was 10 to 15 deep
     where Mr. Tackett was standing,  and  that  he  was standing
     within  25  feet of the end of the ditch (Tr. 131-135).   He
     believed that  a  safe  depth  for Mr. Tackett to stand with
     loose material around him would be 4  feet (Tr. 136).
     Dr. Wu stated that an equipment  operator has a duty to make
     sure he makes eye contact with a person  in a hazardous area
     before  he  moves  the  equipment, and the person  needs  to
     acknowledge that he received  the  signal  and  must also be
     alert  that  he  is  in a hazardous area (Tr. 138-139).   He
     agreed that when Mr. Simpkins  looked  left  before swinging
     the machine, he could see the people and they  were  not  in
     his  blind  spot.  It could take two seconds for the machine
     to swing in the  other  direction, and someone could move to
     his blind spot and he would  not  have  time  to do anything
     once he starts the turn.  Under this
     scenario,   it   is  extremely  important  that  the  person
     acknowledge the operator's  signal  (Tr. 141).  The operator
     sits on the left side of the machine and has a blind spot on
     the right side for anything below his  visual  line of sight
     (Tr. 142).
     Dr.  Wu  was  not  aware  of  any MSHA policy guidelines  or
     bulletins regarding an equipment operator's duty pursuant to
     sections  77.1006(a)  and (b) (Tr.  143-144).   Although  he
     believed that Mr. Adams honestly believed he was standing on
     stable
     material when the accident  occurred,  Dr.  Wu believed that
     Mr. Adams' belief was based on a lack of training.  He would
     have  expected Mr. Adams to understand that loose  materials
     are  unstable   and  that  any  disturbance  can  cause  the
     materials to flow (Tr. 147).  Dr. Wu acknowledged that there
     is no evidence that  the area where Mr. Adams and the others
     were standing moved an
     inch  or  caused  the  accident,  and  the  accident  report
     reflects that Mr. Cline,  for  whatever reason, "got himself
     down in that indentation" (Tr. 148).   Dr. Wu was unaware of
     any MSHA regulation that would have prevented  the  way  the
     drain was constructed (Tr. 153).
     Dr. Wu confirmed his deposition testimony that a slope such
     as  the  one at the ditch would generally be hazardous if it
     was
     over six feet,  or  at the height of the individual standing
     in the
     ditch (Tr. 153-157).  He also confirmed that he performed no
     calculations in formulating his opinion (Tr. 163).
     In response to further  questions,  Dr. Wu stated that there
     would  be  no  serious safety concern if  Mr.  Tackett  were
     standing in the  five  or  ten  foot  area at the end of the
     ditch coming out, but there would be a  hazard  if  he  were
     beyond  that  point  in  the  ditch  towards  the  highwall.
     However, if he were standing in the ditch where it was  four
     feet  deep,  and the ditch slope bank was an additional four
     feet, this would  be hazardous because of the
     presence of the  loose  materials  (Tr.  165-166).   He also
     believed  that the individuals who were behind the excavator
     when it swung around were too close to the machine, and they
     were standing  on  loose,  unconsolidated  materials.  Under
     these conditions, they were exposed to a hazard  of slipping
     or  loosing  their footing while in close proximity  to  the
     machine (Tr. 167-168).
               Respondent's Testimony and Evidence
     James G. Tackett, mine superintendent, testified that he was
     serving in that  capacity on the day of the accident, but he
     did
     not observe it take  place,  and did not observe Mr. Cline's
     actions  immediately  prior  to  the  accident  because  the
     excavating machine was between them  and  blocked  his  view
     (Tr. 180).
     Mr.  Tackett  stated  that Mr. Simpkins called him and asked
     him  to  come  to  the  area   where  the  ditch  was  being
     constructed  and  he  explained  the  work  that  was  being
     performed,  including  preparing and  installing  the  first
     layer of Typar material  in  the  ditch.   He stated that he
     never entered the ditch during the installation of the first
     layer  because  Mr.  Simpkins used the excavator  bucket  to
     spread the Typar (Tr.  181-185).   He stated that he and Mr.
     Cline and Mr. Perry then stood to the  left side of the rear
     of the machine in a flat area approximately 10 feet wide and
     watched Mr. Simpkins loading rock into the ditch over
     the Typar.  Everyone was standing 8 to 10 feet away from the
     machine   at   that   time,   and  he  confirmed  that   the
     counterweight of the machine was swinging around and digging
     into the soil bank (Exhibit G-11; Tr. 185-188).
     Mr. Tackett believed that everyone  was  in the clear and in
     no danger while Mr. Simpkins was loading the  rock  into the
     ditch
     over  the  first layer of Typar.  He also believed that  the
     rock
     and  dirt spoil  materials  in  the  area  where  they  were
     standing  "was  good  and stable there, because it was solid
     and there was no loose  rock,  everything  was compact and I
     wasn't walking on no
     loose rock," and no one had any trouble with  their  footing
     (Tr. 191).
     Mr.  Tackett confirmed that he went into the ditch when  the
     second layer of Typar was being spread over the rocks and it
     overlapped  itself close to the front of the machine, and he
     looked to both  sides  and  under  the  machine, checked the
     spoil on both sides, and determined that it would be safe to
     step onto the rock and spread the Typar.  He believed he had
     at  least  three  feet  on  each side of the machine  as  an
     escapeway in the event spoil  materials  came into the ditch
     (Tr. 195).
     Mr. Tackett stated that the ditch was approximately  two  to
     three feet deep at the end closest to the excavator where he
     was
     standing in front of the machine bucket on the other side of
     the  track.   He  was able to see around and out of the area
     while he was in that  position  (Tr. 196-197, Exhibit G-11).
     He believed he had access in and  out  of  the  ditch to the
     right  and left, and could have gone out under the  machine,
     and he estimated  the  tracks  to be three to four feet high
     (Tr. 199).
     Mr. Tackett stated that he was never in front of the machine
     bucket toward the highwall side  of  the ditch area and from
     what he observed he believed he was safe  and would not have
     gone into the ditch if he thought he would be hit by a rock.
     He confirmed
     that he did not initially inform Inspector  Blevins  that he
     was in the ditch because "I didn't even think nothing  about
     it two or three weeks later."  He denied telling Mr. Blevins
     that  he  "should have known better" or should not have done
     it.  He did  not  believe that it was unsafe for anyone else
     to go into the ditch,  but  stated  "I  wouldn't care to put
     either one of them men in there" (Tr. 201-203).
     Mr.  Tackett  stated that Anchor Mining is  presently  doing
     reclamation work  and  is  not  mining  coal,  and  when the
     reclamation   is   completed  the  company  has  no  further
     contractual obligations  to  mine  coal.   He  expects  that
     Anchor  Mining  will  close  its  operation  and  be  out of
     business  by October 1996, and he will probably be laid  off
     and will have to look for a job.  He expects
     to earn $50,000  in  1996,  has  savings  accounts and a car
     payment of $520 a month.  His wife is unemployed,  and if he
     is  laid  off,  he  expects  to  receive  $1,000  a month in
     unemployment.    He   owes   $10,000  for  his  wife's  1994
     automobile.  He stated that if  he  were required to pay the
     proposed $2,000 assessment it would create  a  hardship  for
     him  and  he  would  have  to use some of the $1,900, he has
     saved for his 13 year old daughter's college fund (Tr. 206).
     Mr. Tackett stated that he was  approximately  five feet ten
     inches tall and at the location where he was standing, he
     estimated  that  the ditch was three to four feet  high,  or
     "waist high" on each side of him (Tr. 207).
     On cross-examination,  Mr.  Tackett could not recall stating
     in  his deposition of July 16,  1996,  that  the  ditch  was
     "between  five and ten feet or something like that" where he
     was standing  (Tr.  209).   He  explained  further that this
     statement referred to the height of the spoil  bank  on  the
     side  of  the machine where he had been walking and standing
     and where the  machine  counterweight  was rubbing the spoil
     (Tr. 214; Exhibit G-9-A).
     Mr.  Tackett estimated that there was three  feet  of  spoil
     material  on the edge of the ditch where he was standing and
     "plenty of spoil," approximately 30 to 40 feet, toward the
     highwall.  However, he was not in that area (Tr. 215).  When
     he stretched  out  the  Typar  at  the  point  where  it was
     overlapping he pulled it toward the back of the machine, and
     at  no  time  did he stretch it back in the direction of the
     highwall (Tr. 216-218).
     Mr. Tackett stated  that  he was never instructed to stretch
     the Typar along the entire  length  of the ditch as shown in
     Exhibit R-12, nor was he instructed to  go  into  the ditch,
     and stated "I took that on myself to do that" (Tr. 221).  He
     confirmed  that  he was aware of the spoil bank material  on
     each
     side of the ditch  as  shown  in exhibit G-9-A.  He was also
     aware of the spoil bank at the  highwall area, and knew that
     the  spoil  bank  materials  were loose  and  unconsolidated
     materials that were dug out from  the  ditch.   He also knew
     that none of these materials were supported by any  shoring,
     posts, or timbers
     (Tr.  224).   Referring  to  exhibits G-7 and G-8, he stated
     that Mr. Simpkins stretched out  the  rest of the Typar with
     the machine bucket as shown in exhibit  R-12  (Tr. 228-230).
     He confirmed that he was between the machine bucket  and the
     machine when he stretched out the Typar (Tr. 235-236).
     Mr.  Tackett  reiterated that he never stated to Mr. Blevins
     that he knew it  was  unsafe  to  go  into the ditch, and he
     explained further as follows at (Tr. 238):
               I  just  got  in the ditch.  I observed  both
               sides, looked carefully,  seen if there was a
               way to get in and out of that ditch.  I could
               have walked to either side  of  the  machine,
               went under the machine.  I chose to just step
               off the rock, onto the flat area.
     Mr.  Tackett  stated  that just before the accident  he  was
     standing to the left side of the machine with Mr. Perry, Mr.
     Cline, and Mr. Adams, and with the machine counterweight
     swinging, they were in the "danger zone."  He stated that he
     observed that everybody  was safe and away from the machine.
     He did not recall if Mr. Simpkins  was  there  at that time,
     but he was not in the machine and "was probably  off, on the
     ground" (Tr.
     239-240).  He received no communication from Mr. Simpkins at
     that  time that he was going to move the machine, nor  could
     he recall  Mr.  Simpkins tell him that he was going to do so
     (Tr. 241-242).
     Mr. Tackett stated  that  after  he  left the area where the
     three individuals were standing he went to the right side of
     the  machine  and saw Mr. Simpkins in the  operator's  seat.
     Mr. Simpkins did  not  give  him  any  signal.   However, he
     signaled  to  Mr. Simpkins with his arm that he was  in  the
     clear  and he knew  that  after  spreading  the  Typar,  Mr.
     Simpkins would move the machine (Tr. 247-248).
     Mr. Tackett  stated  that  he  did  not  signal  the  people
     standing to the left side of the machine or try to warn  Mr.
     Simpkins  that  they  were there because he was on the right
     side of the machine and  Mr.  Simpkins  "was aware" and "was
     over there with the people on the left side  of the machine"
     (Tr.  250).   He  stated that Mr. Simpkins made eye  contact
     with him, but he did  not  signal  Mr.  Simpkins to stop the
     machine to check the other side  because  "the  last  time I
     was  on  the other side of the machine, all the men were  in
     the clear when I was over there with them" (Tr. 252).
     In response  to  further  questions, Mr. Tackett stated that
     the excavator dual diesel engines  are  noisy,  and when the
     machine throttles up to swing around, it was very  loud  and
     everyone in the area could hear it.  Mr. Tackett stated that
     he  never  had any concern that the three people standing to
     the left of the machine were not in the clear.  While he was
     in that area  everyone  was safe and out of the swing of the
     machine.  He stated that  Mr. Cline was an experienced miner
     and had operated the excavator  ninety  percent of the time.
     Mr. Tackett stated that he advised Mr. Perry  to  stay  away
     from  the swing of the machine because he was inexperienced.
     Mr. Tackett reiterated that it would be difficult for him to
     live on  his  unemployment  if  he were laid off and that it
     would be "tough" for him to make  ends meet if he had to pay
     the proposed penalty assessment (Tr. 263).
     James Simpkins, testified that he is  one of the mine owners
     and  has been in business for 8 to 10 years.   He  confirmed
     that he  was  operating the excavator constructing the ditch
     in question on  the  day  of  the accident, and has operated
     excavators for 20 years.  He considered  himself  to  be  an
     excellent operator and explained how the ditch was excavated
     and  how  he  spread  the Typar with the machine.  (Tr. 265-
     274).
     Mr. Simpkins stated that  the  rock  shown in Exhibit G-9-A,
     that appears to be above Mr. Tackett's  head  was secure and
     nearly halfway up into the ditch and he tried to  dig it out
     but could not move it (Tr. 277).  He attempted to remove  it
     because he was
     concerned that materials might flow from under the rock into
     the ditch while he was digging at the bottom.  He speculated
     that  the rock was 5 to 10 feet in front of Mr. Tackett (Tr.
     178).
     Mr. Simpkins stated that he tested and checked the rocks and
     the sides of the ditch, and did not believe that there was a
     potential  for  Mr.  Tackett  to  be covered up by any loose
     spoil where he was located.  If Mr.  Tackett  had  gone inby
     that area he would have exposed himself to some danger,  but
     he  did  not  do so (Tr. 279).  Mr. Simpkins stated that the
     company  has  no   assets,  no  prospects  for  future  coal
     production, and "has  been  in  the  red   for the last four
     years," and has no way of paying any assessments (Tr. 281).
     Mr. Simpkins described what occurred prior to  the accident.
     After  Mr. Tackett stretched the Typar, he came out  of  the
     ditch and  went  to  the  right  side of the machine and Mr.
     Adams, Mr. Cline, and Mr. Perry were  in the area where they
     had  been  standing all day (Exhibits G-11).   He  estimated
     that they were 15
     to 20 feet from  where he was located and clearly out of the
     way of the swing of the machine counterweight (Tr. 283-285).
     He further explained at (Tr. 285-286):
               A.   At  that  point  in  time,  Tackett  had
               flipped the  Typar back over.  The bucket was
               already turned  down  into  the hole with the
               teeth down in the right direction.   I simply
               made  a  couple  of  quick,  short  passes to
               stretch  the  Typar,  looked to the left  and
               right, revved the machine up and proceeded to
               swing  the machine to the  right,  but  could
               not, since  I had raised the boom up, see Jim
               Tackett and I had to lean up and look forward
               to locate him.
               Having spotted Jim, knowing he was now in the
               clear, I proceeded  to  swing,  and  at  that
               point,  made a swing out of the hole with the
               machine,  turned  it  around  almost a ninety
               degree turn.  And at that point in time, Troy
               Perry came running
               around  the  side of the machine,  waving  me
               down, and I knew something had happened.
     Mr. Simpkins stated that after the last swing of the machine
     his work was finished and he planned to tram the machine out
     of
     the ditch.  He stated that  "I  told  the  men  that  I  was
     finished  and  I  was  going  to tram the machine out of the
     hole," but up to that point, he gave Mr. Cline no indication
     that  he  would  turn  the  machine  around  and  tram  out.
     Although he could not state for  certain  whether  Mr. Cline
     heard  him  state  that  the work was finished, Mr. Simpkins
     stated "If he didn't, he should have" (Tr. 288).
     Mr. Simpkins stated he "felt perfectly comfortable" with the
     three individuals standing  on the left side of the machine,
     and he further explained at (Tr. 289-290):
               Q.  Would you rather  have had them in a different
               position?
               A.  I liked having them where I could see them.
               Q.  Why?
               A.  Because I knew where they were.  Had they been
               to my rear, all the time, then I would have had to
               swing around completely to have located them.  And
               when they were standing off to my left - - that is
               why  Rick  had  chosen  that   spot  to  take  the
               pictures, so I could see him, and  not  gotten off
               on  right  side  or behind me.  He got on my  left
               where there was clear  visible contact between the
               two of us and I could always see where he was.
               Q.  Did you have any reason  -  - did you have any
               indication at all that anyone was  going  to  step
               into the path of the counterweight?
               A.   No,  I had no idea that Dempy was going to do
               that.
               Q.  Did you  have  any  reason to believe that Mr.
               Cline or anyone else out there was going to move -
               - that any one of those people  on  the  left-hand
               side  of  your machine was going to move from  the
               position that you last saw them in?
               A.  No.  They  had  been  there  for  two or three
               hours in that position and they seemed to be quite
               content there.
               Q.  Had they all been in that position?
               A.   At times.  Troy and Rick had been there  most
               of the  time  and even, I think, at times, Tackett
               was there with them, and Dempy at different times.
     Mr. Simpkins stated that the company paid the assessment for
     the violation that was issued  for  failure  to make certain
     that people were in the clear because he had instructed  his
     controller  to  promptly pay for all violations.  He did not
     have time to stop the payment, and he would not have paid it
     (Tr. 291).
     Mr. Simpkins confirmed  that he made a statement to the MSHA
     inspectors during the accident  investigation,  but he could
     not  recall  the  exact words, and indicated that "the  only
     thing that could have  been  done was just not to have those
     people there, period."  He stated  that  he  had  no control
     over  what  any  of the people would do "because they  could
     have walked up to  the  machine  while  I  was busy with the
     equipment  and  had  my back to it" (Tr. 292).   He  further
     stated that "he may have" acknowledged
     to the inspector that  the people were not in the clear when
     he began to move the machine (Tr. 293).  Mr. Simpkins stated
     that Mr. Cline was a close  friend of his and worked for him
     for  8 years, and he "was heartbroken"  and  grief  stricken
     over the  accident, the first such incident at the mine (Tr.
     293-294).
     On cross-examination, Mr. Simpkins stated as follows at
     (Tr. 294-295).
               Q.  All right, Mr. Simpkins, according to our
               transcription   from   the   tape   recording
               interview  of  you  by Mr. Blevins, you  were
               asked  by him, as indicated  by  Mr.  Bonham,
               what could  be  done to prevent this accident
               from happening.  And the answer from the tape
               transcription is,  "If  I had, before I moved
               the  machine, if I had moved  everybody  from
               the area  and  made  sure they were back away
               completely,  this  accident  would  not  have
               happened."  Does that  refresh your memory as
               to what you said?
               A.  Yes.  If you're reading from the
               transcript, then that is what I said, yes.
               * * * *
               Q.  And you made mention  to  them  that  you
               were going to tram the machine out of there?
               A.  Yes.
               Q.   And you didn't mention to them, did you,
               that   you    were   going   to   swing   the
               counterweight to  the left and swing the boom
               to the right, did you?
               A.  It would have been necessary to have done
               that to have trammed the machine.
     Mr. Simpkins confirmed that he  did not exchange any signals
     with the people standing on the left  side  of  the  machine
     because  "they were already in the clear and I could plainly
     see them"  (Tr. 299).  He believed they should have known he
     was going to
     move the machine  when  he  throttled it up because it would
     have been impossible for them  not  to hear the engines, and
     he acknowledged that the machine responds  quickly  and  the
     counterweight turns in seconds (Tr. 302-303).
     With regard to the rock near Mr. Tackett as shown in Exhibit
     G-9-A,  Mr.  Simpkins confirmed that it was secure, but that
     it was located  in  loose, unconsolidated material, and even
     at 8 feet away, it could  have  caved  in  and  effected Mr.
     Tackett.   However, he tried to move the rock and  found  it
     very secure (Tr. 310).  He stated that the machine bucket is
     five feet wide and that the ditch was approximately ten feet
     wide and the reach of the bucket boom is 47 feet (Tr. 311).
     Mr. Simpkins  confirmed that the mine produced 1,000 tons of
     coal per day until  mid-July 1996, and he sold it for $10 or
     $15 a ton.  He stated  that  the  company  is owned by Pehem
     Industries, Inc., a parent company, and it has mined coal in
     1995 and 1996 (Tr. 317-318).  He confirmed that he also owns
     the  cattle  that are at the mine and is co-owner  of  Pehem
     Industries, the owner of Anchor Mining's stock (Tr. 319).
     Dr. Wu was recalled, and stated as follows at (Tr. 323-324):
               A.  I do believe as what Mr. Simpkins stated,
                that  he did try to loosing the material and
                the rock  is  his  concern.   It should be a
                simple  thing  to  do  with  this particular
                piece of equipment.  And my concern  is  for
                loose  materials, we're not only talking one
                piece of rock or one particular
                piece of  rock  when  you try to move it and
                you're sure the thing will not come down.
                    Basically,  when we're  talking  dealing
                with loose material,  he  is talking overall
                the  spoil  bank.   So there could  be  this
                piece of rock at the  time  was firm, but as
                time  goes  and  the  bottom, the  material,
                starts getting loose and  a  big  piece  can
                come down anytime.  So it's always
                important  to  slope  back  those banks, the
                spoil  banks,  to  provide  a  safe  working
                environment.
                    Findings and Conclusions
          Docket No. WEVA 95-169.  Fact of Violations.
     Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
     30 C.F.R. 77.1006(a)
     Inspector  Blevins  cited  Anchor  Mining  Company   with  a
     violation  of mandatory safety standard 30 C.F.R. 77.1006(a)
     after making  a determination that Mr. Tackett went into the
     ditch  that was  under  construction  at  the  base  of  the
     highwall to smooth out a part of the Typar covering material
     that was  over  the  rock that had been placed in the ditch.
     The cited section 77.1006(a), provides as follows:
                77.1006 Highwalls; men working.
               (a)  Men,  other   than  those  necessary  to
               correct  unsafe conditions,  shall  not  work
               near or under dangerous highwalls or banks.
     Based on the evidence adduced  with  respect to this
violation, I conclude and find that the construction of the
drainage ditch in question was taking  place  near or under a
dangerous  highwall  and  spoil  banks  that were located  on
either  side  of the ditch and formed by the  materials  that
either came off the highwall or were excavated from the ditch
during construction  and  placed on either side of the ditch.
Accordingly, the cited safety standard clearly applied to the
work that was being performed  on September 15, 1994, the day
of the accident in question.
     Mr. Tackett admitted that he went into the ditch to pull
back and straighten out a piece of the Typar material, and
this act on his  part was confirmed by eye witnesses Adams,
Cline, and Simpkins.  I  conclude and find that Mr. Tackett was
in the ditch near and under the dangerous ditch spoil banks
performing  work  and  that his presence there  was  a  clear
violation of section 77.1006(a).   Under  the  circumstances,
the violation IS AFFIRMED.
    Section 104(d)(1) "S&S" Order No. 4001124, October 12, 1994,
    30 C.F.R. 77.1006(b).
    Inspector Blevins cited Anchor Mining Company with a
violation of 30 C.F.R. 77.1006(b), after concluding that the
excavator being used to construct the drainage ditch on
September 15, 1994, was positioned in such a way as to block
Mr. Tackett's egress from the ditch which he had entered to
perform  the work that resulted  in the issuance of the prior
section 104(d)(1) "S&S" Order No.  4001122.   Section
77.1006(b), provides as follows:
                77.1006 Highwalls; men working.
               * * * *
               (b) Except as provided in paragraph (c) of
               this  section,  men  shall  not  work between
               equipment  and  the  highwall  or spoil  bank
               where  the  equipment may hinder escape  from
               falls or slides.
     Photographic exhibits G-8  and  G-9-A,  clearly  depict  Mr.
     Tackett  in  the ditch pulling on the Typar material, and he
     is positioned  between  the  excavator  and the highwall and
     adjacent ditch spoil banks that were on either  side of him.
     Further,  his location in the ditch was observed by  several
     of the witnesses,  and  I conclude and find that Mr. Tackett
     presented no credible evidence to rebut the fact that he was
     in the ditch between the  excavator  and  the  highwall  and
     spoil  banks.  The critical issue however, is whether or not
     the excavator  would have hindered Mr. Tackett's escape from
     his location in the ditch in the event of a fall or slide of
     the spoil materials.   Webster's  New Collegiate Dictionary,
     defines "hinder"as follows at pgs. 536-537:
               to make slow or difficult the progress of; to
               delay, impede, or prevent action.
     The burden of proof is on the petitioner  to  establish  the
     violation  by  a  preponderance  of  all of the credible and
     probative  evidence  presented  in  support  of  the  charge
     described in the citation.  I take note  of  the  fact  that
     although  section  77.1006(b),  prohibits an individual from
     working between equipment and a highwall or spoil bank where
     the equipment may hinder his escape  from  falls  or slides,
     the  citation  issued  by Inspector Blevins states that  the
     excavator blocked Mr. Tackett's  egress from the ditch.  The
     word  "block"  is  defined  by  Webster's   New   Collegiate
     Dictionary,   as   "to   make   unsuitable  for  passage  by
     obstruction; to hinder the passage  of;."   I  conclude  and
     find  that  both words have essentially the same meaning and
     the fact that  the  citation  states  "blocked"  rather than
     "hindered" is not critical to the charge.
     Eyewitness  mining  engineer Adams, testified credibly  that
     Mr. Tackett was in the  ditch  for less than a minute and he
     did not recall that Mr. Tackett  experienced  any difficulty
     in  leaving  after he pulled back the Typar (Tr.  85).   Mr.
     Adams further  believed that the excavator did not block Mr.
     Tackett's egress  and  he  was  certain  that  he could have
     exited the ditch on either side of the excavator (Tr. 97).
     State mine inspector Wallace, who investigated the  accident
     the following day, confirmed that he made no measurements of
     the
     width or depth or the ditch, and he was of the opinion  that
     in  the  event of a collapse of the spoil bank anyone in the
     ditch would  have  to exit out of the front of the ditch and
     that the excavator would  partially  block the area and make
     it "a little more difficult to get out" (Tr. 258, 268).  Mr.
     Wallace  conceded that he had no personal  knowledge  as  to
     whether Mr. Tackett had a
     means  of  egress  or  ingress  to  the  left  side  of  the
     excavator, and  that  it was possible that Mr. Tackett could
     have exited the ditch on  the right side of the excavator or
     under the tracks (Tr. 285).
     MSHA  Inspector  Blevins  confirmed  that  he  too  made  no
     measurements during the course of his accident investigation
     and   his report is confined  to  the  accident  itself  and
     contains  no  information concerning this alleged violation.
     Indeed, Mr. Blevins  admitted  that Mr. Tackett's ability to
     get in and out of the ditch was  not included as part of his
     accident investigation and that he  spoke  to  none  of  the
     eyewitnesses   about   this  violation  at  that  time.   He
     confirmed  that he obtained  information  about  this  event
     "weeks later"  and  that  the  citation  was  based  on  his
     judgement alone (Tr. 375-376).
     Mr.  Blevins  believed that the only access out of the ditch
     was by the excavator  tracks  that "was just about blocked,"
     but not completely (Tr. 336).   However,  he  also  believed
     that assuming there was no spoil failure, there was an  area
     on each side of the machine that would possibly have allowed
     Mr.  Tackett  to pass through (Tr. 337).  He later testified
     that he had no  knowledge  as  to whether or not Mr. Tackett
     could have exited the ditch around the right or left side of
     the excavator, but nonetheless believed  this  was  possible
     (Tr. 367-368).  I find Mr. Blevins's testimony in support of
     this   particular   violation   to   be   rather  equivocal,
     contradictory, and less than credible.
     Mr. Tackett's credible and unrebutted testimony  is  that he
     had  access  in  and  out of the ditch to the left and right
     side of the excavator,  as well as under the machine tracks,
     and that before going into  the ditch he looked carefully to
     both sides and determined that there was a way to get in and
     out by walking to either side  of the excavator or under the
     tracks   (Tr.  199-238).   His  testimony   is   essentially
     corroborated   by   Dr.   Wu,  who,  after  viewing  several
     photographic exhibits, agreed  that  they do not show a lack
     of clearance on the right and left sides  of  the excavator,
     and that Mr. Tackett could have crawled out of the ditch and
     through  the  undercarriage  of the machine in an  emergency
     (Tr. 66, 104-106).
     Although Dr. Wu believed than  a  minimum  of  2    feet of
     clearance   on  each  side  of  the  machine  would  provide
     sufficient clearance  to  meet  the  requirements of section
     77.1006(b),  he agreed that no measurements  were  taken  by
     anyone in connection  with  this  violation,  and  as  noted
     above,  his  own  testimony  lends  support to Mr. Tackett's
     belief that he had sufficient clearance  on  either  side of
     the  machine,  as  well  as  under  it,  to  leave the ditch
     unimpeded by the position of the machine.
     After careful review and consideration of the  evidence  and
     testimony adduced with respect to this alleged violation,  I
     conclude  and find that the petitioner has not established a
     violation of  section  77.1006(b), by a preponderance of the
     credible  and probative evidence  presented  in  this  case.
     Under the circumstances,  the  violation and contested order
     ARE VACATED.
              Docket Nos. WEVA 96-74 and WEVA 96-75
     Fact  of  violation, Section 104(d)(1)  "S&S"  Citation  No.
     3745835, September 19, 1994, 30 C.F.R. 77.1607(g).
     Mr.  Tackett  and  Mr.  Simpkins  are  charged  individually
     pursuant  to  section  110(c) of the Act as agents of Anchor
     Mining  Company with "knowingly  authorizing,  ordering,  or
     carrying  out"  a  violation of mandatory safety standard 30
     C.F.R. 77.1607(g), which states as follows:
                 77.1607  Loading  and  haulage  equipment;
               operation.
               (g)  Equipment operators shall be certain, by
               signal  or  other means, that all persons are
               clear before starting or moving equipment.
     Respondent Anchor Mining  Company  did  not  contest section
     104(d)(1)  Citation  No.  3745835,  issued on September  19,
     1994, for a violation of section 77.1607(g), and pursuant to
     section  105(a)  of the Act, the uncontested  violation  and
     proposed civil penalty  assessment  became  a final order of
     the  Commission.  Pursuant to the Commission's  decision  in
     Old Ben  Coal  Company,  7  FMSHRC 205, 209 (February 1985),
     such final orders reflect violations  of  the  Act  and  the
     asserted  violation contained in the citation is regarded as
     true.
     Although Mr. Simpkins and his counsel stated that the $4,000
     civil penalty  assessed  against Anchor Mining was paid (Tr.
     291, 320), an MSHA computer  print-out  of  the respondent's
     history  of  prior  violations  prepared  on July  8,  1996,
     reflects  that  the  penalty  was  not  paid  and   that   a
     delinquency  letter  was  issued (Exhibit G-1).  Further, at
     page 4 of his post-hearing brief, MSHA's counsel states that
     as  of the filing of the brief  on  October  28,  1996,  the
     penalty assessment of $4,000 has not been paid.
     The  respondent's  suggestion  that  Mr.  Cline  caused  the
     accident and violation by stepping in front of the excavator
     counterweight,  thereby  absolving  Anchor  Mining  and  its
     management  from  any  responsibility  or  liability for the
     violation  is  rejected.   It  is  well  settled  that  mine
     operators are liable
     without  regard  to  fault for violations of the Act.   See:
     Secretary v. Fort Scott  Fertilizer-Cullor,  Inc., 17 FMSHRC
     1112,  1115 (July 1995);  Secretary v. Western,  Fuels-Utah,
     Inc., 10  FMSHRC  256 (March 1988).  However, the absence of
     fault by the mine operator  may  mitigate its negligence and
     any civil penalty assessment for the violation.
     In  Austin Power, Inc., 9 FMSHRC 2015,  2018-2019  (December
     1987), the Commission stated as follows:
               We  hold that section 77.1607(g) requires the
               operator of equipment subject to the standard
               to be  certain  that  all  persons within the
               potential  zone  of  danger  are  clear  from
               reasonably foreseeable hazards resulting from
               the starting or moving of the  equipment.   *
               * *
               As contrasted with more detailed regulations,
               the  requirement  of section 77.1607(g)  that
               "[e]quipment operators  be certain . . . that
               all  persons  are  clear before  starting  or
               moving equipment" is  the  kind of regulation
               made "simple and brief in order to be broadly
               adaptable  to  myriad circumstances."   Kerr-
               McGee Corp., 3 FMSHRC  2496,  2497  (November
               1981).  Generally, the
               adequacy  of  an equipment operator's efforts
               to   comply  with   section   77.1607(g)   is
               evaluated  in  each case with reference to an
               objective test of  what  actions  would  have
               been  taken  by  a  reasonably prudent person
               familiar with the mining  industry,  relevant
               facts,  and  the  protective  purpose  of the
               standard.   See,  e.g.,  United  States Steel
               Corp.,  6  FMSHRC  1908, 1910 (August  1984);
               United States Steel  Corp.,  5  FMSHRC  3,  5
               (January 1983); Alabama By-Products, 4 FMSHRC
               2128, 2129 (December 1982).
     The critical  issue here is whether or not Mr. Simpkins, who
     was operating the  excavator, acted reasonably and prudently
     in making certain that  Mr.  Cline  was clear of the machine
     when he put it in motion by swinging  the boom to the right,
     causing the rear counterweight to swing to the left into Mr.
     Cline, causing serious injuries to his leg.
     Mr. Adams, Mr. Perry, and Mr. Cline were  standing  together
     to  the left rear of the machine shortly before Mr. Simpkins
     put it  in  motion.   Mr.  Adams  testified  that  they were
     standing  in  a  level  area  close  to the elevation of the
     machine and he saw that the machine counterweight  had  made
     an indentation in the spoil bank between the area where they
     were  standing  and  the excavator as it swung around in the
     course of the work that was taking place (Tr. 90-91).
     Mr. Adams testified that he perceived no hazard to Mr. Cline
     where he was standing,  and  he felt "reasonably safe" where
     he (Adams) was standing, and that  Mr.  Cline  was near him.
     However,  he  nonetheless  believed  that  the accident  was
     preventable,  in  part,  if  Mr.  Cline  had  been  standing
     somewhere  else  behind  him  (Tr.  72-76).  Mr. Adams  also
     indicated that he and Mr. Cline were 5 or 6 feet, or "a step
     and a reach" from the counterweight when  it  swiveled  (Tr.
     54-57).
     Although  Mr.  Adams stated that he was not surprised by the
     swinging counterweight and expected it, he confirmed that he
     did not hear Mr. Simpkins give any audible signal or see him
     "eyeball" anyone  before  putting the machine in motion (Tr.
     133, 137).
     Mr. Perry and Mr. Cline testified  credibly that they had no
     advance warning that Mr. Simpkins would  put  the machine in
     motion,  and Mr. Perry observed no signal from Mr.  Simpkins
     (Tr. 151-152).  Mr. Perry further testified that he was "one
     step" and  an  "arm's length" away from the counterweight as
     it swung by him,  and  that  he "felt the wind" as it passed
     him (Tr. 151-152).
     Mr. Tackett testified that Mr.  Cline,  Mr.  Perry,  and Mr.
     Adams  were standing 8 to 10 feet from the excavator on  the
     level area  to  the  rear  left  of  the  machine  while Mr.
     Simpkins loaded
     rock  into  the  ditch.   Although  they were in the "danger
     zone," Mr. Tackett believed the men were  clear  and  in  no
     danger  at  that  time  (Tr. 188, 190).  He could not recall
     that Mr. Simpkins ever told  him  that  he was going to move
     the  machine  and  he  received  no communication  from  Mr.
     Simpkins that he was going to do so
     (Tr. 241-242).
     Contrary to the testimony of Mr. Perry,  Mr.  Cline, and Mr.
     Tackett,  Mr. Simpkins testified that he told them  that  he
     was going to tram the machine out of the area.  With respect
     to Mr. Cline,  Mr.  Simpkins did not know if Mr. Cline heard
     him, and stated, "if  he didn't, he should have"  (Tr. 288).
     I  find  the testimony of  Mr.  Simpkins  to  be  less  than
     credible, and conclude that he did not inform Mr. Cline that
     he was going to move the machine before he put it in motion.
     Mr. Simpkins' assertion that the machine was loud enough for
     Mr. Cline  to  hear it and realize that it was going to move
     is rejected.  The  cited  standard  requires  the  equipment
     operator  to be certain "by signal or other means" that  all
     persons are  clear before moving the equipment.  I reject as
     unreasonable any  notion  that  revving  up the engine is an
     acceptable  means of warning anyone to stand  clear  of  the
     machine, particularly  since  the  machine  boom  can  swing
     around in a matter of seconds (Tr. 302-303).
     Mr.  Simpkins  acknowledged  his  prior statements to MSHA's
     inspector that the accident would not  have  happened  if he
     had  moved  Mr.  Cline  and the other individuals from where
     they were standing to the  rear left of the machine and made
     sure they were completely clear  of  the  machine (Tr. 295).
     Mr.  Simpkins  also  admitted that he did not  exchange  any
     signals with these individuals, and claimed he did not do so
     because he believed they  were  clear  of the machine and he
     could see them (Tr. 299).
     Mr.  Simpkins' assertion that he was in complete  compliance
     with section  77.1607(g),  because  he made certain that all
     men  in  the vicinity of the excavator  were  in  the  clear
     before he moved  is rejected.  The evidence establishes that
     Mr. Simpkins  did not signal the men standing to the rear of
     the machine that  he  was  going  to  move  it and swing the
     counterweight   around  in  their  direction.   He   clearly
     violated that part  of  section  77.1607(g)  that requires a
     signal  by  the  equipment operator.  The "other  means"  of
     compliance argued  by  Mr.  Simpkins  is  that  he  visually
     observed  the  men standing to the rear of the machine,  and
     based on his experience  and  judgment,  concluded that they
     were clear of the machine counterweight (Tr. 284-285).
     I  conclude  and  find  that the credible testimony  of  Mr.
     Cline, Mr. Perry, and Mr. Tackett establishes that they were
     not completely clear of the  swing  of the counterweight and
     were in
     the  "danger  zone"  when Mr. Simpkins put  the  machine  in
     motion.  While it may  be  true  that  Mr.  Cline  may  have
     stepped   into  the  counterweight  when  it  swung  in  his
     direction,  the  evidence  strongly suggests that he did not
     step  far  before  the  machine   contacted   his  leg,  and
     reasonably supports a conclusion that he was not  completely
     clear  of  the  counterweight.  The same can be said of  Mr.
     Perry who was standing  near Mr. Cline and testified that he
     could have reached out and  touched  the  counterweight  and
     heard the rush of air as it passed him.
     I  conclude  and  find  that  Mr. Simpkins acted less than a
     reasonably prudent mine operator when he failed to make sure
     that the three individuals who  he  observed standing to the
     rear of the excavator acknowledged the fact that he saw them
     and clearly understood that he was about  to put the machine
     in  motion  and swing the counterweight in their  direction.
     In the absence  of  a  clearly communicated and acknowledged
     signal by Mr. Simpkins   indicating that he was going to put
     the  machine  in  motion,  I  conclude  and  find  that  his
     unilateral observation of the three men standing to the rear
     of the machine was an inadequate  and  unreasonable means of
     making  certain  that  the  men were in fact  clear  of  the
     counterweight before putting the machine in motion.  This is
     particularly true in this case  where  Mr.  Simpkins claimed
     that  his  work  with the machine was finished and  that  he
     intended to tram the  machine out of the area.  If this were
     the case, I
     can  only  conclude  that   the  three  individuals  had  no
     particular reason for being so  close  to  the  machine, and
     that  it  would  have  been  a rather simple matter for  Mr.
     Simpkins to make sure that the  men  were completely removed
     from the area before moving the machine.   I  believe that a
     reasonably prudent mine operator would have done so in these
     circumstances.  I further believe that Mr. Simpkins's  tacit
     admission that he should have removed all of the individuals
     from  the  area and made sure they were completely away from
     the machine supports these conclusions.
     Based on the  foregoing findings and conclusions, I conclude
     and find that the  petitioner has established a violation of
     section  77.1607(g),  by  a  preponderance  of  all  of  the
     credible evidence adduced in these proceedings.
                The alleged "knowing" violation.
     The Commission  has  defined the term "knowingly" as used in
     the  statutory  predecessor  to  section  110(c),  in  Kenny
     Richardson v. Secretary of Labor, 3 FMSHRC 8 (January 1981),
     aff'd 669 F.2d 632  (6th  Cir.  1982), cert denied, 461 U.S.
     928 (1983), as follows:
          "Knowingly," as used in the Act, does not have any
          meaning of bad faith or evil purpose or criminal
          intent.   Its  meaning  is  rather  that  used  in
          contract  law, where it means  knowing  or  having
          reason to know.   A person has reason to know when
          he has such information  as  would  lead  a person
          exercising reasonable care to acquire knowledge of
          the fact in question or to infer its existence . .
          .  .  We believe this interpretation is consistent
          with both  the statutory language and the remedial
          intent of the Coal Act.  If a person 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, he has acted knowingly and in
          a manner contrary to the  remedial  nature  of the
          statute.  3 FMSHRC 16.
     In Secretary of Labor (MSHA) Bethenergy Mines, Inc., et al.,
     14 FMSHRC 1232 (August 1991), the Commission reaffirmed  its
     prior  holding  in  Kenny Richardson, supra, and stated that
     "the  proper  legal  inquiry  for  purposes  of  determining
     liability under section  110(c)  of  the  Act is whether the
     corporate agent knew or had reason to know"  of  a violative
     condition, and that the Secretary must prove only  that  the
     cited  individual  knowingly acted and not that he knowingly
     violated the law, 14  FMSHRC  1245.  The Commission has also
     stated  that  a corporate agent in  a  position  to  protect
     employee safety acts knowingly when, based on the
     facts available to him, he knew or had reason to know that a
     violation would  occur, but failed to take preventive steps.
     Roy Glenn, 6 FMSHRC  1583 (July 1984).  Further, a "knowing"
     violation requires proof  of  aggravated  conduct  exceeding
     ordinary negligence.  Wyoming Fuel Co., 16 FMSHRC 1618, 1630
     (August 1994); Beth Energy Mines, Inc., 15 FMSHRC 1232, 1245
     (August 1992).
     WEVA 96-75, James Tackett.
     The  evidence  establishes  that as the mine superintendent,
     Mr. Tackett was an "agent" of  Anchor  Mining Company on the
     day of the violation, and he has stipulated  that  this  was
     the  case.   The  petitioner argues that Mr. Tackett and Mr.
     Simpkins were both  supervisory  personnel with a heightened
     standard of responsibility for the  safety  of the miners at
     the work site, and its theory of section 110(c) liability on
     the part of Mr. Tackett for the violation seems  to be based
     on the fact that Mr. Tackett occupied a supervisory position
     and was present at the area where the violative conduct took
     place.
     The evidence in this case establishes that Mr. Simpkins, and
     not  Mr.  Tackett,  was supervising and directing the  drain
     construction work on  the  day in question.  Indeed, at page
     19 of its post-hearing brief, the petitioner recognizes that
     this was
     the  case.   The  evidence  further   establishes  that  Mr.
     Simpkins summoned Mr. Tackett to the ditch  area  to explain
     the work that was to be performed, and although Mr.  Tackett
     was the mine superintendent, Mr. Simpkins was in charge  and
     directed  the  work force which I find included Mr. Tackett.
     Under  the circumstances,  I  conclude  and  find  that  Mr.
     Tackett   had  little,  if  any,  supervisory  authority  or
     responsibility  for  the  ditch  construction  work that was
     taking  place  on  September  15,  1994,  when the violation
     occurred.
     The  evidence  further  establishes  that  Mr. Simpkins  was
     operating the excavator when the violation occurred  and was
     aware  of  the fact that Mr. Adams, Mr. Cline, and Mr. Perry
     were standing  to  the rear of the machine.  As the operator
     of the equipment, Mr.  Simpkins was directly obligated under
     section 77.1607(g), to make  sure  that the individuals were
     clear  of  the machine, and I conclude  and  find  that  he,
     rather than
     Mr. Tackett, was in the best position to make sure that this
     was done.
     Mr. Tackett  testified credibly that before leaving the area
     where the three  individuals were standing, he was satisfied
     that they were clear  of the machine.  Mr. Tackett then went
     to the other side of the  machine,  and  he  had  no further
     visual  contact  with  the individuals because the excavator
     blocked his view and
     he assumed that Mr. Simpkins  had  them  in view because his
     operator's compartment was on the left side  of the machine.
     Mr.
     Tackett's  credible testimony that his view was  blocked  is
     corroborated  by  Mr.  Cline,  the injured miner, who was an
     experienced  excavator  operator  who   often  operated  the
     machine.  Mr. Cline testified credibly that  Mr. Tackett was
     not  aware  where he (Cline) was standing when Mr.  Simpkins
     put the machine  in  motion.   Further,  Mr.  Perry, who was
     inexperienced and normally
     worked as a security guard, testified credibly  that  before
     the  work  was  started,  Mr.  Tackett explained the hazards
     associated with the ditch work to  him  and warned him to be
     careful and not to get too close to the machine (Tr. 153).
     In view of the foregoing, and in particular  the  fact  that
     Mr.  Tackett  was  not  supervising  the ditch work that was
     taking place and was located in an area  where  he could not
     see the three individuals standing behind the machine before
     Mr.  Simpkins put it in motion, I cannot conclude  that  Mr.
     Tackett  acted  in  a  knowing  and  intentional  manner, or
     engaged  in  any  aggravated  conduct.   In  short, I cannot
     conclude that the credible evidence adduced with  respect to
     Mr.   Tackett  establishes  that  he  knowingly  authorized,
     ordered,  or  carried out a violation of section 77.1607(g),
     within the meaning  of  section  110(c)  of the Act, and the
     applicable case law.  Accordingly, the alleged violation
     charged  to Mr. Tackett is VACATED, and the  proposed  civil
     penalty  assessment   filed   against   him  IS  DENIED  and
     DISMISSED.
                   WEVA 96-74, James Simpkins
     I  agree  with  the  petitioner'  assertion  that   in   his
     supervisory  capacity  as  the part mine owner, Mr. Simpkins
     had  a  heightened  duty  and standard  of  care  to  insure
     compliance with the cited standard.  As I found earlier, Mr.
     Simpkins was supervising the  work,  while  at the same time
     operating the excavator, and he clearly gave  no  signal  to
     the  individuals  behind  the  machine  before placing it in
     motion.  I have also concluded that Mr. Simpkins  acted less
     than  a  reasonably prudent operator when he failed to  make
     sure that the individuals who he observed to the rear of the
     machine either  acknowledged the fact that he had seen them,
     or to remove them completely from the area near the machine.
     As the supervisor  in  charge of the ditch construction, Mr.
     Simpkins was in the best  position to provide protection for
     Mr. Cline and the other individuals  standing to the rear of
     the excavator, and by failing to take  reasonable  steps  to
     insure  that they were not in close proximity to the machine
     when he put  it  in  motion,  causing  the  counterweight to
     swivel around and strike Mr. Cline, I conclude that he acted
     knowingly within the meaning of
     section  110(c)  of  the  Act.   Under the circumstances,  I
     conclude
     and  find  that  the petitioner has carried  its  burden  of
     proving by a preponderance of the evidence that Mr. Simpkins
     knowingly
     carried out the cited violation.  Accordingly, the violation
     IS AFFIRMED.
             Significant and Substantial Violations
     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 contributed  to  the
     cause and effect of a coal  or  other  mine safety or health
     hazard."
     30  C.F.R.  814(d)(1).  A violation is properly  designated
     S&S "if,  based  upon  the  particular facts surrounding the
     violation  there  exists a reasonable  likelihood  that  the
     hazard contributed
     to will result in an  injury  or  illness  of  a  reasonable
     serious
     nature."  Cement Division, National Gypsum Co. 3 FMSHRC 822,
     825 (April 1981).
     In  Mathies  Coal  Co.,  6  FMSHRC  3-4  (January 1984), the
     Commission explained its interpretation of the term "S&S" as
     follows:
               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.
     See also Austin Power, Inc. V. Secretary, 861 F.2d 99,
     103-04 (5th Cir.  1988), aff'g 9 FMSHRC 2015, 2021 (December
     1987) (approving Mathies criteria).
     The question of whether any particular violation is S&S must
     be based on the particular  facts surrounding the violation,
     including  the  nature of the mine  involved,  Secretary  of
     Labor  v. Texasgulf,  Inc.,  10  FMSHRC  498  (April  1988);
     Youghiogheny  &  Ohio  Coal Company, 9 FMSHRC 2007 (December
     1987).  Further, any determination of the significant nature
     of a violation must be made  in  the  context  of  continued
     normal mining operations.  National Gypsum, supra, 3  FMSHRC
     327,  329  (March 1985).  Halfway, Incorporated, 8 FMSHRC  8
     (January 1986).
     In United States  Steel Mining Company, Inc., 7 FMSHRC 1125,
     1129  (August  1985),   the  Commission  stated  further  as
     follows:
               We have explained  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
               is an injury.'  U.S.  Steel Mining Co.,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 Company,
               Inc., 6 FMSHRC 1866, 1868 (August 1984).
     The Commission reasserted its prior determinations  that  as
     part  of  his  "S&S"  finding,  the Secretary must prove the
     reasonable likelihood of an injury  occurring as a result of
     the hazard contributed to by the cited violative condition
     or
     practice.  Peabody Coal Company, 17 FMSHRC 508 (April 1995);
     Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
     Section 104(d)(1) "S&S" Citation No.  3745835, September 19,
     1994, C.F.R. 77.1607(g)
     After  careful  consideration  of  all of the  evidence  and
     arguments  presented  with  respect  to   this  citation,  I
     conclude and find that the petitioner has established  by  a
     preponderance of
     the  credible  evidence  that this violation was significant
     and substantial (S&S).
     I have concluded that a violation  of section 77.1607(g) has
     been  established.  I further conclude  and  find  that  the
     failure
     of  Mr.   Simpkins   to  signal  or  take  other  reasonable
     precautions to insure  that  the  three individuals who were
     located behind and close to the excavator  when  he  put the
     machine  in  motion  were clear of the machine, or to remove
     them from the area where  they  were  standing,  presented a
     discrete hazard of the machine counterweight striking one of
     the  individuals when it was placed in motion and turned  to
     the right by Mr. Simpkins.
     I further  conclude  and  find  the  failure  to  signal the
     individuals or otherwise insure that they were clear  of the
     machine, or moved away from the area, presented a reasonable
     likelihood  that the machine would come in contact with  any
     individual  in  close  proximity  to  the  swinging  machine
     counterweight.   If  this  were to occur, I further conclude
     and find that the individual contacting the counterweight as
     it  turned  would reasonably likely  suffer  injuries  of  a
     reasonably serious  nature.   Indeed,  in this case, that is
     precisely  what  happened, and Mr. Cline lost  a  leg  as  a
     result  of  the  accident.   Under  the  circumstances,  the
     inspector's "S&S" finding IS AFFIRMED.
     Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
     30 C.F.R. 77.1006(a)
     After careful consideration  of  all  of  the  evidence  and
     arguments  presented  with  respect  to  this  violation,  I
     conclude  and  find that the petitioner has established by a
     preponderance of  the  credible  evidence that the violation
     was significant and substantial (S&S).
     The respondent's assertion that Mr.  Tackett went no further
     than the outside edge of the drain area  to  grasp  and pull
     taut the Typar fabric is not well taken.  While there  is no
     evidence
     to  establish that Mr. Tackett ventured beyond the excavator
     bucket  in the direction of the highwall while he was in the
     ditch, the  fact  remains  that  the  testimony and evidence
     presented,  including the photographs, establishes  that  he
     was in the ditch, and not simply "at the outside edge."  Mr.
     Adams testified  that  the  location  where  Mr. Tackett was
     standing was approximately 6 feet deep and 4 to 6 feet wide,
     and that Mr. Tackett was below the spoil bank  material that
     was on each side of the ditch (Tr. 45, 84).
     Mr. Tackett estimated that the height of the ditch  where he
     was  standing  was 3 to 4 or 5 feet or "waist high" on  each
     side of him, and he estimated that there was 3 feet of spoil
     material on
     the edge of the ditch where he was standing (Tr. 207, 215).
     Mr. Tackett confirmed  that  he  was 5 feet, 10 inches tall,
     and I conclude and find that if the  spoil  bank  where  Mr.
     Tackett was
     standing  in  the  ditch  had given away, he could have been
     covered up by the materials.
     The fact that Mr. Tackett may  have  been  in  the ditch for
     less than a minute, as testified to by Mr. Adams  (Tr.  85),
     is   not   particularly  relevant  in  my  view.   Accidents
     involving roof  falls,  falling  rocks,  and  sliding  loose
     unconsolidated  spoils  materials  have  been known to occur
     instantaneously and in less than a minute.
     Although  Mr.  Simpkins  indicated  that the rock  shown  in
     photographic exhibit G-9-A, was secure,  and  that  he  also
     tested  and  checked  the  sides  of  the  ditch and did not
     believe that Mr. Tackett could potentially be  covered up by
     any  loose  spoil  where  he  was located in the ditch,  Mr.
     Simpkins further testified that the secured rock was located
     in loose, unconsolidated material,  and even though it was 8
     feet away from Mr. Tackett, if these  materials caved in, it
     would  have  affected  Mr. Tackett (Tr. 279-310).   He  also
     testified that he attempted  to  remove  the rock because he
     was concerned that loose materials might flow from under the
     rock  and  into  the  ditch that was being constructed  (Tr.
     178).
     Mr. Adams did not believe  that  the  spoil  banks on either
     side  of  the  ditch  at the location where Mr. Tackett  was
     standing
     were in danger of giving  way.   However, he stated that the
     rock that Mr. Simpkins found to be  secure  was  part of the
     loose, unconsolidated spoil bank material in front  of where
     Mr.  Tackett  was  located, and if it were to give way,  the
     rock may have affected Mr. Tackett (Tr. 83, 108).
     State  mine  inspector  Wallace  viewed  the  scene  of  the
     accident the next  day and testified credibly that the spoil
     banks around the ditch  consisted  of  loose, unconsolidated
     materials and were nearly vertical.  He  believed that these
     materials had a very high potential of slipping  or  sliding
     and  that  that  "it would be foolish" for anyone to go into
     the ditch for any reason (Tr. 236).
     MSHA inspector Blevins,  who  also  viewed the scene the day
     following the accident, testified credibly that he based his
     "S&S" finding on the fact that the unstable  spoil materials
     would cover up anyone in the ditch if work were  to continue
     (Tr. 216).
     Dr.  Wu,  who  did  not  view the scene, but was nonetheless
     competent  to  express  his  expert   opinion,  stated  that
     standing in a 4 foot deep ditch adjacent  to an additional 4
     foot sloped spoil bank, would be hazardous  to  Mr.  Tackett
     because  of  the  presence of the loose spoil materials (Tr.
     165-166).
     I have concluded that a violation of section 77.1006(a), has
     been established.   I further conclude and find that working
     near or under spoil banks consisting of loose unconsolidated
     soil and rock materials presents a discrete hazard of anyone
     working in such a location  to be covered up or being hit in
     the  event of a slide or fall  of  the  materials  into  the
     ditch.  If this were to occur in the normal course of mining
     activities,  I  find that it would be reasonably likely that
     the  person  in  the   ditch  would  suffer  injuries  of  a
     reasonably serious nature.   In  this  case,  I conclude and
     find that Mr. Tackett placed himself in just such a position
     when he went into the ditch in close proximity to a slide or
     fall of materials hazard.  Accordingly, I conclude  and find
     that  the  violation  was significant and substantial (S&S),
     and the inspector's finding in this regard IS AFFIRMED.
     Unwarrantable Failure Violations
     The  governing  definition   of  unwarrantable  failure  was
     explained  in  Zeigler  Coal Company,  7  IBMA  280  (1977),
     decided under the 1969 Act,  and it held, in pertinent part,
     as follows at 295-96:
               In light of the foregoing, we hold that an
               inspector should find that a violation of any
               mandatory   standard   was   caused   by   an
               unwarrantable
               failure to comply with such  standard  if  he
               deter-
               mines  that  the operator involved has failed
               to
               abate    the    conditions    or    practices
               constituting
               such violation, conditions  or  practices the
               operator knew or should have known existed or
               which it failed to abate because of a lack of
               due diligence, or because of indifference  or
               lack of reasonable care.
     In  several  decisions  concerning  the  interpretation  and
     application   of   the  term  "unwarrantable  failure,"  the
     Commission further refined  and  explained  this  term,  and
     concluded that it
     means  "aggravated  conduct, constituting more than ordinary
     negligence, by a mine operator in relation to a violation of
     the  Act."   Energy  Mining   Corporation,   9  FMSHRC  1997
     (December 1987); Youghiogheny & Ohio Coal Company,  9 FMSHRC
     2007  (December  1987); Secretary of Labor v. Rushton Mining
     Company, 10 FMSHRC 249 (March 1988).  Referring to its prior
     holding in the Emery  Mining  case, the Commission stated as
     follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
                    We  stated  that whereas  negligence  is
               conduct that is "inadvertent,"  "thoughtless"
               or "inattentive,"  unwarrantable  conduct  is
               conduct    that    is   described   as   "not
               justifiable"  or  "inexcusable."    Only   by
               construing  unwarrantable  failure  by a mine
               operator as aggravated
               conduct constituting more than ordinary
               negligence,    do    unwarrantable    failure
               sanctions
               assume  their intended distinct place in  the
               Act's enforcement scheme.
     In Emery Mining, the Commission explained the meaning of
     the phrase "unwarrantable  failure"  as follows at 9 FMSHRC
     2001:
               We  first determine the ordinary  meaning  of
               the    phrase     "unwarrantable    failure."
               "Unwarrantable"   is    defined    as    "not
               justifiable" or "inexcusable."  "Failure"  is
               defined as "neglect or an assigned, expected,
               or  appropriate  action."     Webster's Third
               New  International  Dictionary  (Unabridged),
               2514,      814     (1971)     ("Webster's"').
               Comparatively,  negligence  is the failure to
               use  such  care as a reasonably  prudent  and
               careful person would use and is characterized
               by
               "inadvertence,"       "thoughtless,"      and
               "inattention."  Black's  Law  Dictionary 930-
               931  (5th  ed.  1979).  Conduct that  is  not
               justifiable and inexcusable  is the result of
               more  than inadvertence, thoughtlessness,  or
               inattention. * * *
    Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
    30 C.F.R. 77.1006(a).
     As noted earlier, Mr.  Tackett did not deny that he went
into the ditch, and he did so with the full knowledge of the
presence of loose and unconsolidated materials on both sides of
the spoil banks where he was standing. I conclude and find that
he  failed to exercise such care as a reasonable and  prudent
person  would  be  expected to use, particularly someone in a
responsible position like Mr. Tackett, who in his capacity as
the mine superintendent,  should  set an example.  I conclude
and  find  that  Mr.  Tackett's conduct  was  aggravated  and
inexcusable, exceeded ordinary negligence, and constituted an
unwarrantable  failure  on   his  part  to  comply  with  the
requirements  of  the  cited  standard.    Accordingly,   the
inspector's finding in this regard IS AFFIRMED.
     Although  Mr.  Tackett  asserted that he was not instructed
to go into the ditch, and took it upon himself to do so, and
exposed  no one other than himself to a hazard, I nonetheless
conclude and  find  that  his  conduct  and negligence may be
imputed to Anchor Mining Company, particularly  in  light  of
the  fact  that  a  high  level agent of Anchor Mining (part-
owner  and officer), in  the  person  of  Mr.  Simpkins,  was
supervising  the  work  and obviously observed Mr. Tackett go
into the ditch and did nothing  to prevent him from doing so.
See: NACCO Mining Co., 3 FMSHRC 848 (April 1981); Rochester &
Pittsburgh Coal Company, 13 FMSHRC 189, 197 (February 1991).
    Section 104(d)(1) "S&S" Citation  No.  3745835, September 19,
    1994,
    30 C.F.R. 77.1607(g).
     After careful review and consideration of all of the
testimony and evidence presented with respect to this violation,
and based on my findings and conclusions with respect  to Mr.
Simpkins' "knowing" violation of section 77.1607(g), which  I
incorporate  herein  by reference, and where I found that Mr.
Simpkins acted in a knowing and intentional manner because he
knew or had reason to  know  that  Mr.  Cline  and  the other
individuals with him were standing dangerously close  to  the
rear  area  of  the  excavator  when  he was about to put the
machine in motion causing the counterweight  to  swing around
and  contact  Mr.  Cline's leg, I conclude and find that  Mr.
Simpkins's   conduct  was   aggravated,   exceeded   ordinary
negligence, and  resulted  in  an  unwarrantable  failure  to
comply with the cited standard.  Accordingly, the inspector's
finding in this regard IS AFFIRMED.
     I  further conclude and find that the negligence of Mr.
Simpkins, including his unwarrantable failure conduct in his
supervisory  capacity, is imputable to Anchor Mining Company,
NACCO Mining Co., 3 FMSHRC 848, 849-850 (April 1981).
    History of Prior Violations
     With respect to Anchor Mining Company, a computer
print-out for the period beginning on October 12, 1992, and
ending October 11, 1994, reflects that it paid penalty
assessments for 41 prior section 104(a) citations, none of which
are for violations of the same standards at issue in these
proceedings.  Further, there is no evidence that Mr. Tackett
or Mr. Simpkins have ever been previously charged pursuant to
section 110(c) of the Act.
     I have considered the compliance record of the respondents
in these  proceedings  in  assessing  the penalties which I have
affirmed  and I conclude that any additional  increases  over
those penalty assessments are not warranted.
Gravity
     Based on my "S&S"  findings  and conclusions, I conclude
and find that the violations that have been affirmed were serious
violations.
    Good Faith Compliance
     I conclude  and  find that the violations were all abated
in good faith by the respondents.
    Negligence
     Based on my unwarrantable  failure  findings, I conclude
and find that the violations resulted from a high degree of
negligence on the part of the respondents.
     Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business
     I conclude and find that Anchor Mining  Company was a small
to medium sized mining operation at the time of the violations.
Mr. Simpkins stipulated that he has the financial ability  to
pay  the assessed penalty in his case, and I find no credible
evidence  to  the  contrary.   With  regard to the respondent
Anchor  Mining  Company,  I  find  no  credible  evidence  to
establish  that  it lacks the resources to  pay  the  penalty
assessment for the violation that I have affirmed.
                    Civil Penalty Assessments
     On the basis of my foregoing findings and conclusions, and
my de novo consideration of the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that
the following penalty assessments are reasonable and appropriate
for the  violations  that  have  been affirmed in these
proceedings:
    Docket No. WEVA 95-169
     30 C.F.R.
     Order No.     Date        Section         Assessment
     4001122       10/12/94    77.1006(a)      $4,500
         Docket No. WEVA 96-74
      30 C.F.R.
     Citation No.    Date        Section         Assessment
     3745835         09/19/94    77.1607(g)      $2,500
                              ORDER
IT IS ORDERED as follows:
1.   Section  104(d)(1)  "S&S" Order No. 4001122,
October  12,  1994,  30  C.F.R.   77.1006(a),  IS
AFFIRMED.
2.   Section  104(d)(1) "S&S" Order No.  4001124,
October  12,  1994,   30  C.F.R.  77.1006(b),  IS
VACATED,   and   the   proposed   civil   penalty
assessment IS DENIED AND DISMISSED.
3.   The  section 110(c) charge  that  Respondent
James Tackett  violated mandatory safety standard
77.1607(g), as stated  in section 104(d)(1) "S&S"
Citation  No. 3745835, issued  on  September  19,
1994, IS VACATED  and DISMISSED, and the proposed
civil penalty assessment IS DENIED and DISMISSED.
4.   The section 110(c)  charge  that  Respondent
James Simpkins violated mandatory safety standard
77.1607(g),  as stated in section 104(d)(1) "S&S"
Citation No. 3745835,  issued  on  September  19,
1994, IS AFFIRMED.
5.   The  respondents  Anchor  Mining Company and
James    Simpkins   shall   pay   civil   penalty
assessments  in  the  amounts shown above for the
violations that have been  affirmed.   Payment is
to be made to MSHA within thirty (30) days of the
date  of  these  decisions  and  order,  and upon
receipt of payment, these matters ARE DISMISSED.
                                       George A. Koutras
                                       Administrative Law Judge
Distribution:
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington,
VA 22203 (Certified Mail)
John T. Bonham, Esq., David J. Hardy, Esq., Jackson & Kelly,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
                                        \mca