<DOC>
[DOCID: f:l97-37rm.wais]

 
EMPIRE IRON MINING PARTNERSHIP
December 29, 1997
LAKE 97-37-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          December 29, 1997


EMPIRE IRON MINING PARTNERSHIP,   :   CONTEST PROCEEDINGS
                  Contestant      :
                                  :   Docket No. LAKE 97-37-RM
SECRETARY OF LABOR,               :   Order No. 4537189; 1/21/97
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :   Docket No. LAKE 97-38-RM
                   Respondent     :   Order No.  4537190; 1/21/97
                                  :
                                  :   Docket No. LAKE 97-39-RM
                                  :   Order No.  4537216; 2/12/97
                                  :
                                  :   Docket No. LAKE 97-53-RM
                                  :   Order No.  4537285; 3/10/97
                                  :
                                  :   Mine ID 20-01012
                                  :   Empire Mine
                                  :
SECRETARY OF LABOR,               :   CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :   Docket No. LAKE 97-41-M
                   Petitioner     :   A.C. No. 20-01012-05618
                                  :
              v.                  :
                                  :   Docket No. LAKE 97-47-M
EMPIRE IRON MINING PARTNERSHIP,   :   A.C. No. 20-01012-05616
                  Respondent      :
                                  :   Docket No. LAKE 97-50-M
                                  :   A.C. No. 20-01012-05620
                                  :
                                  :   Docket No. LAKE 97-51-M
                                  :   A.C. No. 20-01012-05621
                                  :
                                  :   Docket No. LAKE 97-69-M
                                  :   A.C. No. 20-01012-05625
                                  :
                                  :   Empire Mine


                             DECISION

Appearances:Christine M. Kassak Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, and Thomas J. Pavlat,
Conference and Litigation Representative, Mine Safety and Health
Administration, U.S. Department of Labor, Peru, Illinois.
for Petitioner;  R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania, for Respondent.

Before:  Judge Hodgdon

     These consolidated cases are before me on Notices of Contest
and Petitions for  Assessment  of  Civil  Penalty filed by Empire
Iron Mining Partnership against the Secretary  of  Labor,  and by
the Secretary of Labor, acting through her Mine Safety and Health
Administration (MSHA), against Empire, respectively, pursuant  to
section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C.    815.   The  company contests the issuance to it of two
orders and two citations.   The Secretary's petitions allege nine
violations  of  the  Secretary's   mandatory  health  and  safety
standards and seek penalties of $10,054.00.   For the reasons set
forth below, I approve the parties' settlement  agreement, affirm
one contested order, vacate three contested citations  and assess
penalties of $5,122.00.

     A hearing was held on September 3 and 4, 1997, in Marquette,
Michigan.  The parties also submitted post-hearing briefs  in the
cases.

                     Settled orders and citations

     At  the  beginning of the hearing, counsel for the Secretary
announced that  the  parties  had  settled  all  but  four of the
violations.   As  part  of the agreement, the Secretary moved  to
vacate  Citation No. 4537051  in  Docket  No.  LAKE  97-47-M  and
Citation  No.  4537206  in Docket No. LAKE 97-51-M and the motion
was granted.  (TrI. 14-15.)[1]   The parties agreed to reduce the
penalty for Citation Nos. 4537187  and  4537188  and  Order  Nos.
4537189 and 4537190 in Docket No. LAKE 97-50-M, which orders were
contested  in  Docket  Nos. LAKE 97-37-RM and LAKE 97-38-RM, from
$7,448.00 to $3,724.00.   (TrI.  15-16.)  The parties also agreed
to  modify  Order  No.  4537047 in Docket  No.  LAKE  97-47-M  by
deleting the "significant  and  substantial"  designation  and to
reduce the penalty from $382.00 to $100.00.  (TrI. 16.)

     After  considering the parties' representations, I concluded
that the settlements  were  appropriate  under  the  criteria set
forth  in  section  110(i)  of  the Act, 30 U.S.C.  820(i),  and
informed the parties that I would  approve  the agreement.  (TrI.
17.)  The provisions of the agreement will be  carried out in the
order at the end of this decision.

     Citation No. 4537093 in Docket No. LAKE 97-41-M,  Order  No.
4537055 in Docket No.  LAKE 97-47-M and Citation Nos. 4537216 and
4537285 in Docket Nos. LAKE 97-39-RM, LAKE 97-53-RM and LAKE 97-69-M
were contested at the  hearing.   The  order  and  citations  were
tried at the hearing  and will be discussed in this decision in the
following order:  Order No. 4537055,  Citation  No.  4537216,
Citation  No.  4537093 and Citation No. 4537285.

                          Contested Matters

Order No. 4537055, Docket No. LAKE 97-47-M

     Order   No.   4537055   alleges   a   violation  of  section
56.14100(b),   30  C.F.R.    56.14100(b),  of  the   Secretary's
regulations.  That  regulation  requires  that:   "Defects on any
equipment,  machinery,  and  tools  that affect safety  shall  be
corrected in a timely manner to prevent  the creation of a hazard
to persons."  The machinery at issue in this  order  is  a  metal
shear  used  to  cut  metal  plate of various sizes.  The parties
stipulated that Larry Smith incurred  a  lost time back injury in
an accident that occurred while operating  a  Pacific metal shear
in the fabricating shop on September 10, 1996,  and  that  Marvin
Swanson had previously reported back soreness on August 29, 1996,
resulting  from  an  incident with the same machine on August 28,
1996.  (TrI. 30-31.)

     An injury report  for the September 10 injury was filed with
MSHA on September 23, 1997.    Inspector Dominic Vilona conducted
an investigation of the incident  during  a regular inspection of
the mine on December 12, 1997.  As a result of his investigation,
he issued Order No. 4537055.  He found that:

               The  restricted  duty  back injury  that
          occurred on 9-10-96 was directly related to a
          defect  on  the  Pacific Metal Shear,  serial
          S10902, located in the fabricating shop.  The
          table of the shear  is  provided  with 17 air
          operated   balls  which  assist  the  machine
          operator when  pushing  steel  in  the shear.
          Larry  Smith  was  trying  to feed a 12  foot
          long,  6  foot wide by 3/4 inch  thick  plate
          into the shear  with the help of his partner,
          Gary Waterman.  This  is  when  Larry injured
          his  back.   At least 8 out of 17 balls  were
          reported inoperative  on 8-28-96 when another
          employee  strained  his back  performing  the
          same  work.   Foreman Rich  Hill  engaged  in
          aggravated  conduct  constituting  more  than
          ordinary negligence in that he was aware that
          their  [sic] was  a  problem  with  the  feed
          assist  balls   and   that   employees   were
          operating this machine.

(Govt. Ex. 3.)

     In  discussing  the  predecessor to this regulation,[2]  the
Commission held that "it is  appropriate to evaluate the evidence
in light of what a `reasonably  prudent person, familiar with the
mining industry and the protective purpose of the standard, would
have provided in order to meet the  protection  intended  by  the
standard.'   See,  e.g., Canon Coal Co., 9 FMSHRC 667, 668 (April
1987); Quinland Coal,  Inc.,  9  FMSHRC  1614, 1617-18 (September
1987)."  Ideal Cement Co., 12 FMSHRC 2409,  2415 (September 1990)
(Ideal I).  Applying this test, I find that Empire  violated  the
regulation.

     To  establish  a violation of this regulation, the Secretary
must show: (1) that there  was  a  defect in the metal shear; (2)
that the defect affected safety; and  (3) that the defect was not
corrected in a timely manner to prevent the creation of a hazard.
It is the Secretary's position that the  defect  in this case was
the failure of 8 of the 17 air lift transfer balls used to assist
in positioning steel on the shear to function;[3] that the defect
affected safety because the non-functioning balls made it hard to
move  the steel on the shear resulting in the two back  injuries;
and that  the defect was not corrected in a timely manner because
the operator  was  put on notice by the first back injury, if not
before, that the defect  created  a  hazard and had not corrected
the defect before the second injury occurred.  On the other hand,
while the Respondent concedes that some  of  the  balls  were not
functioning, it argues that the defect did not affect safety  and
that, even if it did, it was corrected in a timely manner.

     While  there  may  be some dispute as to exactly how many of
the transfer balls were not functioning, there is no dispute that
some were not functioning.   The  Commission  has previously held
that:  "In both ordinary and mining industry usage, a `defect' is
a fault, a deficiency, or a condition impairing the usefulness of
an   object   or  a  part.   Webster's  Third  New  International
Dictionary (Unabridged)  591 (1971); U.S. Department of Interior,
Bureau of Mines, A Dictionary  of  Mining,  Mineral,  and Related
Terms 307 (1968)."  Allied Chemical Corporation, 6  FMSHRC  1854,
1857 (August 1984).  I find  that  the failure  of  some  of  the
transfer balls to function  impaired the usefulness of the shear.
Therefore, I conclude that there was a defect in the metal shear.

     Turning to  the  second element, whether the defect affected
safety, I note that the  Commission has stated that:  "The phrase
`affecting safety' . . . has  a wide reach and the `safety effect
of an uncorrected equipment defect need not be major or immediate
to come within that reach.'"  Ideal  Cement  Co., 13 FMSHRC 1346,
1350  (September  1991)  (citations  omitted)  (Ideal  II).   The
transfer balls purpose was to make it easier to move large pieces
of steel onto the shear.  The harder it is to move heavy metal on
the shear table, the more likely that a back strain or other type
of  injury  could occur.  Thus, while there may have  been  other
factors that  contributed to the back injuries in this case, such
as the floor not  being  level,  I conclude that the defect comes
within the "wide reach" set out by  the  Commission,  and  was  a
defect affecting safety.[4]

     That  leaves  the  third  element,  whether  the  defect was
corrected  in a timely manner.  Empire argues that "timely"  does
not mean immediately and that it corrected the defect in a timely
fashion.  The  regulations  do  not  define "timely," nor has the
Commission had occasion to address this  question.   However, the
dictionary  defines "timely" as "done or occurring at a  suitable
time."  Webster's Third New International Dictionary (Unabridged)
2395 (1986) (Webster's).   And the Secretary has indicated that a
suitable time depends on the defect:

               If safety defects  are  detected  on any
          equipment,  machinery  or tools, the required
          compliance measures vary  with  the degree of
          the hazard.  The . . . rule requires that all
          safety  defects  be  corrected  in  a  timely
          manner and that, in instances where continued
          use   would   pose  a  risk  of  injury,  the
          correction must  be  made  immediately unless
          the  defective  equipment  is  removed   from
          service  and  identified  as  defective.  The
          defective condition must be corrected  before
          the equipment is returned to service.

Safety Standards for Loading, Hauling, and Dumping  and Machinery
and  Equipment at Metal and Nonmetal Mines, 53 Fed. Reg.  32,496,
32,504 (1988) (Safety Standards).

     Although there is evidence that management was put on notice
in the  spring  of  1996 that some of the transfer balls were not
working, the fabrication shop had been moved from town out to the
mine during that period  and  all the equipment had to be erected
again.  Consequently, it was only shortly before Swanson's injury
on August 28, that the shear had resumed operation.  Accordingly,
I find for the purpose of this  decision,  that  Rich  Hill,  the
fabrication  shop  foreman,  was  put on notice on August 29 that
there was a defect affecting safety on the metal shear.

     Hill initiated an investigation  of  the  incident which was
completed  on  September  4,  1996.   The  Safety  System   Final
Investigation  Report,  (Govt.  Ex.  5), found that the immediate
causes  of  the injury were "improper handling/loading/placement,
improper  position   for   task,"  that  the  basic  causes  were
"inadequate capability, inadequate  maintenance" and that "Marvin
was probably trying to push harder than he is physically capable.
Some of the transfer balls which aid  the  movement  of the plate
were  not working properly which caused more friction,  requiring
more bull  work  to  move  the  plate."  As preventive action the
report  indicated  that  the  equipment  should  be  repaired  by
"repair[ing] transfer balls which are not working."

     Hill had only been the foreman of the fabrication shop since
March 1996.  Prior to that he had never worked in the fabrication
shop  and he had no training in  running  the  fabrication  shop.
Although  he  had  determined  that  the transfer balls had to be
repaired, he did not know how to do it.   He  checked  the manual
for  the  shear,  but  it  provided no help.  He called the shear
manufacturer who in turn told  him  to  call  the  transfer  ball
manufacturer.  He did not, however, ask any of the shop employees
for their input.

     Consequently, nothing had been done when Smith's back injury
occurred  on  September  10,  1996.   Fortunately, Byron Tosseva,
foreman of the welding shop, happened to  overhear  some  of  the
employees  discussing Smith's injury, inquired what had happened,
and told the men to "shut the machine down, lock it out and we'll
get it fixed."   (Tr. 202-03.)  Gary Waterman, a fabrication shop
employee, figured  out how to remove the balls, clean and replace
them and the machine  was  ready  to operate the next day.  Hill,
who   still   had   not   received  any  guidance   from   either
manufacturer,[5] initiated  a  work  order  to  account  for  the
machine's  down  time,  describing the work as:  "repair transfer
balls  on  Pacific shear.   Clean,  adjust  or  replace  all  the
transfer balls."  (Resp. Ex. 1.)

     Empire   asserts  that  Hill's  actions  in  contacting  the
manufacturers was  reasonable  and  that he was trying to correct
the problem in a timely manner.  I do  not agree.  What he should
have done was what Tosseva, who knew no  more  about  the machine
than he, did, i.e. shut down the machine and repair it.   I  find
Hill's  response to the problem simply unreasonable.  Not knowing
anymore on  September  10  than he knew on August 29 he still was
able, after Tosseva had acted,  to direct that the transfer balls
be "cleaned, adjusted or replaced."   He could have done the same
thing on August 29 or September 4.  Accordingly,  I find that the
defect was not corrected in a timely manner.

     Section  56.1 of the regulations, 30 C.F.R.  56.1,  states:
"The purpose of  these  standards  is the protection of life, the
promotion of health and safety, and the prevention of accidents."
I find that a reasonably prudent person  familiar with the mining
industry  and  this  purpose  would  have  repaired   the   shear
immediately after Swanson reported his injury and the reasons for
it  on August 29, to prevent a similar injury, and would not have
permitted  work to continue while he waited for guidance from the
manufacturer.  Therefore, I conclude that Empire violated section
56.14100(b) of the regulations.

Significant and Substantial

     The Inspector  found  this  violation to be "significant and
substantial."  A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act, 30 U.S.C.  814(d)(1),
as  a  violation  "of  such  nature as  could  significantly  and
substantially contribute to the  cause  and  effect  of a coal or
other  mine  safety  or  health hazard."  A violation is properly
designated S&S "if, based  upon  the particular facts surrounding
that  violation, there exists a reasonable  likelihood  that  the
hazard  contributed  to  will result in an injury or illness of a
reasonably serious nature."   Cement  Division,  National  Gypsum
Co., 3 FMSHRC 822, 825 (April 1981).

     In  Mathies  Coal  Co.,  6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria  that  have  to  be  met  for  a
violation  to  be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC,
52  F.3d  133,  135  (7th  Cir.  1995);  Austin  Power,  Inc.  v.
Secretary, 861 F.2d  99,  103-04  (5th  Cir.  1988), aff'g Austin
Power,  Inc.,  9  FMSHRC  2015,  2021 (December 1987)  (approving
Mathies criteria).  Evaluation of  the  criteria is made in terms
of "continued normal mining operations."   U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on  the  particular facts surrounding the violation.   Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

     The inspector found the violation to be S&S because two back
injuries  had  occurred  before  the  shear  was  repaired.   The
Respondent  argues  that  the  violation  is  not S&S because the
Secretary did not show that the transfer balls  were the cause of
either  injury.   While  it  is true that the evidence  does  not
establish that the failure of  the  transfer balls to operate was
the  only  cause of the injuries, it does  show  that  it  was  a
contributing cause.  Furthermore, since there is no evidence that
similar back  injuries  occurred  after  the balls were fixed, it
appears that they were a significant part of the injuries.

     I  find that the failure of the transfer  balls  to  operate
properly  made  it  reasonably likely that an injury would occur.
The parties stipulated  Smith  suffered  lost  time  due  to  his
injury.  Therefore, it is apparent that the injury was reasonably
serious.    Accordingly,   I  conclude  that  the  violation  was
"significant and substantial."

Unwarrantable Failure

     The inspector also found  that  this violation resulted from
Empire's "unwarrantable failure" to comply  with  the regulation.
The Commission has held that unwarrantable failure  is aggravated
conduct  constituting  more  than ordinary negligence by  a  mine
operator in relation to a violation  of  the  Act.   Emery Mining
Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny  &  Ohio
Coal  Co.,  9  FMSHRC 2007, 2010 (December 1987).  "Unwarrantable
failure is characterized by such conduct as `reckless disregard,'
`intentional misconduct,'  `indifference'  or  a `serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal
Corp. 13 FMSHRC 189, 193-94 (February 1991)."  Wyoming  Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994).

     Empire  argues  that  the  violation did not result from  an
unwarrantable failure because "[g]iven  the  minor  nature of the
condition  reported  by Mr. Swanson, it was appropriate  for  Mr.
Hill to proceed as he did to investigate the proper way to repair
the air-assisted balls."   (Resp.  Br. at 14.)  Surprisingly, the
Secretary did not question the inspector  as  to why he found the
violation  to  be an unwarrantable failure, nor did  she  discuss
unwarrantable failure  in  her  brief.   Nevertheless, I conclude
that  this  violation  resulted from the Company's  unwarrantable
failure to comply with the regulation.

     The nature of the injury  makes no difference on this issue.
It would be unreasonable to assume  that  because  Swanson's back
injury  did  not  require  any  lost  time, that any future  back
injuries would also be minor.  It is the  fact  of injury that is
significant  in this case.  Swanson's injury put Hill  on  notice
that the defective  transfer  balls  created  a  hazard  for  his
employees.   Because  the defect created a hazard, he should have
shut  the  shear  down  and   tagged  it  out  immediately.   His
nonchalance  in not doing so demonstrated  an  indifference  that
raises the violation to the level of an unwarrantable failure.

Citation No. 4537216, Docket Nos. LAKE 97-39-RM and LAKE 97-69-M

     The No. 2  ore  crusher  belt is about 2,100 feet long.  The
belt  itself  is  60  inches wide and  is  43  inches  above  the
surrounding floor.  Up  near  the  head of the belt, there are I-
beams on either side of the belt, the  tops  of which are also 43
inches  above the floor, extending along the belt  for  about  30
feet.  The  top  surface  of  each I-beam is 10 inches wide.  The
beams are part of the structural steel for the conveyor belt bed.

     On February 12, 1997, as part  of a regular mine inspection,
Inspector Vilona was walking along the  No.  2 belt.  He observed
footprints  in the dust on top of one of the I-beams.   Based  on
the footprints,  the  fact  that he was told that repair work was
occasionally performed on the  belt  in  that  area, and the fact
that there were no handrails on the I-beams, he  concluded that a
violation  of section 56.11027 of the regulations,  30  C.F.R.  
56.11027, had  occurred.   Consequently,  he  issued Citation No.
4537216, which states:  "The belt repair area located at the head
end  of  the  2 belt was not equipped with handrails.   The  area
measures about  30'  long  7' wide and 43" high.  A 60" wide belt
runs down the center.  Footprints  were  observed  along  the 10"
wide  steel  on  each  side of the belt.  Work is done here a few
times a year, 2 men on a crew.  Fall hazard."

     Section  56.11027  requires,   in   pertinent   part,  that:
"Scaffolds   and   working  platforms  shall  be  of  substantial
construction and provided  with  handrails and maintained in good
condition."  The Secretary maintains that the I-beams are working
platforms.  The Respondent contends  that  they are not and that,
even  if  they  are  now found to be, the company  did  not  have
adequate notice that the regulation applied to this area.  I find
the Secretary has not  established  that the I-beam was a working
platform.

     Since the regulations do not define  "working platform," the
standard must be evaluated under the "reasonably  prudent person"
test.  Ideal I, supra.  The dictionary defines "platform"  as  "a
horizontal  flat  surface  usu[ually]  higher  than the adjoining
area."  Webster's 1735.  The regulations define  "working  place"
as  "any place in or about a mine where work is being performed."
30 C.F.R.    56.2.   Therefore, it seems logical that a "working
platform" is a "raised,  horizontal,  flat  surface where work is
being performed."  Applying that definition to  this  case, it is
apparent that the issue is not whether the I-beams were a raised,
horizontal, flat surface, but whether work was being performed on
them.

     Both  of the company's witnesses, Gordon Nelson, Maintenance
Coordinator,  and  William Hansard, Safety Coordinator, testified
that the I-beam was  only  used  to  step onto the belt when belt
repairs were performed.  They claimed that no work was done while
standing or kneeling on the I-beam.  The Secretary's witness, Ray
Ball, a former plant repairman, was more equivocal.  When pressed
on the issue, he testified as follows:

       Q.  Did you ever do work while  you  were  on
       the I-beam?

       A.  I think --- like I said earlier, wherever
       you  spotted  the  belt you might have had to
       stand on the end of  the  beam  to guide your
       cooker in underneath the belt.

       Q.  I thought that when you used  the  cooker
       you spotted it ahead of the I-beam?

       A.   You  had  the I-beam here and it stopped
       and then you had  an  opening  where  you put
       your  cooker  underneath.   So if you got  it
       hanging by the crane and you're trying to get
       underneath  here,  somebody's  standing  here
       trying to wiggle it underneath the crane.

       Q.  Would that be on the I-beam  or  in front
       of the I-beam?

       A.    Sometimes  you're  on  the  I-beam  and
       sometimes you're in front of the I-beam.

(TrI. 322.)

     The testimony  showed  that  the  cooker  to  which Ball was
referring is used only two or three times a year.  Thus, at best,
the evidence demonstrates that an employee may or may  not  stand
on  the  platform  two  or three times a year to guide the cooker
onto  the area of the belt  being  repaired.   In  addition,  the
evidence  is  that  when  the  cooker is used now, the handrails,
installed by the company to abate  this  violation,  have  to  be
removed.

     I  find  that  so little, if any, work is done on the I-beam
that the I-beam is not  a  "working platform" within a reasonable
interpretation of the regulation.   To  find that this de minimis
use  of the I-beam makes it a working platform,  results  in  the
paradoxical  circumstance  of the required handrails having to be
removed to perform the very  function  that  makes them required.
Accordingly,  I  conclude  that  Empire  did not violate  section
56.11027 and will vacate the citation.

Citation No. 4537093, Docket No. LAKE 97-41-M

     On Thursday, January 2, 1997, Glenn Wing,  a surveyor at the
Empire  Mine,  was  coming  to  work  at  about 6:30 a.m.   While
traveling on a two lane, blacktop, access road  on mine property,
the  rear of his car slid while exiting a curve and  he  collided
with a  pickup  truck  driven  by an employee at the Tilden Mine.
Wing received a few small cuts and a sore back as a result of the
accident.

     The week previously, the road  had  been  closed  because  a
pipeline  had been leaking causing ice to form on the road in the
area where  the  accident occurred.  The leak was repaired before
the road was reopened and the pipeline was not leaking on January
2.

     The night before  the  accident,  it  snowed  two  to  three
inches.   That  morning it snowed another  inch.  Wing described
the road conditions as follows:  "Basically looked like there had
been a fresh snowfall  with  approximately  a  half to an inch of
snow on the road, and the lanes where the cars had  been driving,
where the tires had been running was mostly wet with slush on the
rest of the roadway."  (TrII. 68.)

     Inspector Stephen Field was conducting an inspection  of the
Tilden Mine when he learned of the accident and was instructed by
his  supervisor  to  investigate  it.  He arrived at the accident
scene six or seven hours after it had  occurred.   Based  on  his
investigation, he issued Citation No. 4537093 because:

               An employee on his way to work could not
          maintain   control   of   his  vehicle  while
          rounding a corner on the mine  access roadway
          near  the  Empire  pipeline  crossing.    The
          employee  vehicle slid into the opposite lane
          colliding with  a  vehicle  traveling  in the
          opposite  direction.   Two  patches  of  ice,
          cause  by a pipeline leak during the previous
          week, extended  across the roadway in 2 areas
          near the corner.   An accident of this nature
          has the potential to  cause  serious injuries
          to persons involved.  Reportedly,  there  was
          about  1"  of  snow,  ice  and  slush  on the
          roadway.

(Govt. Ex. 7.)

     The  citation  initially  alleged  a  violation  of  section
56.9101  of  the  regulations,  30  C.F.R.  56.9101,[6] but  was
amended to allege a violation of section  56.11016,  30  C.F.R. 
56.11016, on August 19, 1997.[7]  Section 56.11016 requires that:
"Regularly  used walkways and travelways shall be sanded, salted,
or  cleared of  snow  and  ice  as  soon  as  practicable."   The
Secretary  argues  that  the  Respondent  violated  this  section
because  "the  ice was not removed from the travelway as soon  as
was practicable."   (Sec.  Br. at 24.)  However, that is not what
the standard requires; the standard  requires  that  if  there is
snow and ice on a walkway or travelway, the operator may sand it,
salt it or clear it as soon as practicable.

     In this case, the company elected to salt the road, although
the  evidence  of  this is not overwhelming.  The inspector,  who
visited the scene some six or seven hours after the fact, stated,
when asked if he could  tell  whether  the roads had been salted,
"the roads were bare."  (TrII. 30.)  Wing  testified  that:   "It
appeared  because  of  the  melt in the slush that there had been
salt on the road. . . .  The impression I had was they had salted
and it snowed a little bit after."[8]   (TrII.  68,  70.)  Steven
Laine, the man whose truck Wing hit, had only this to  say  about
salt:

       Q.  Had you seen a salt truck operating while
       you were ---

       A.  No.

       Q.   ---  on  the  road?   Did  you  see  any
       evidence of salting or sanding?

       A.  No.

(Tr. 84.)

     The only other testimony on this  issue  was from  Steven
Roberts,  Safety Coordinator at the mine, who related:  "I believe
[Inspector Field] had asked me whether the road had been salted,
and I didn't know the answer, so I called our pit  area  to find
out and they had indicated that it had been during the night shift."
(TrII. 136-37.)

     I  find  that a  preponderance  of  the credible  evidence
demonstrates  that  the company had salted  the  access road prior
to Wing's accident.  In making this finding, I am giving no weight
to the testimony of Laine on this issue because his "no"  answer was
not explained and it was apparent from his testimony  that he was
shading it to support his lawsuit against Wing and the company for
this accident.  Accordingly, I conclude that instead of violating
the regulation, the company complied with it. Consequently, I will
vacate the citation.

Citation No. 453285, Docket Nos. LAKE 97-53-RM and LAKE 97-69-M

     While  driving  home  from work in his personal  vehicle  on
February 21, 1997,  James  Beltrame attempted to pass a truck hauling
material to the  mine  when he skidded on ice.  His car hit a snow
bank and rolled over resulting in his receiving a broken rib and
being  off  work  for five days.  The road on which this occurred
was on mine property.   The  attempted  pass  was  in  a  marked no
passing zone.

     Inspector  Field  went  to  the  mine  to  investigate  this
accident on February 25.  After talking to Beltrame and viewing  the
accident  scene,  he  issued Citation No. 4537286   alleging  a
violation  of  section   56.9101 because:

               An accident  occurred  on  February  21,
          1997  when  an  employee on his way home from
          work  failed  to  maintain   control  of  his
          vehicle   on  the  mine  access  road.    The
          employee vehicle, while attempting to pass an
          over-the-road haulage truck, overturned after
          sliding on  ice and striking the snow bank on
          the opposite side of the road.  Consequently,
          the  employee   suffered   a   fractured  rib
          resulting in 5 days lost time and  restricted
          duty.  The roadway speed was posted  and this
          accident occurred in a no passing zone.

(Govt. Ex. 9.)

     Section  56.9101  provides:   "Operators  of  self-propelled
mobile equipment shall maintain control of the equipment while it
is  in  motion.   Operating  speeds  shall  be  consistent   with
conditions  of  roadways, tracks, grades, clearances, visibility,
and traffic, and  the  type  of  equipment used."  The Respondent
asserts that this standard does not  apply  to  the  operation of
personal  automobiles used by miners to travel to and from  work.
I agree.

     This is  a  case of first impression.  The Secretary has not
cited  any  cases  where  a  miner  has  been  charged  with  not
maintaining control  of  his  car  going  to  and  from work.  It
appears  that there are none.  While it seems obvious  that  this
regulation  was  never  intended  to apply to a situation such as
this,  I  will examine it under the "reasonably  prudent  person"
test.  Ideal I supra.

     I note  first  that a personal automobile, by definition, is
not owned by the mine  operator.   Nor  was  it being used by the
miner  in the performance of his duties at the  mine.   Secondly,
the standard  is  found in Subpart H of the regulations, which is
entitled "Loading,  Hauling, and Dumping."  The car was not being
used to perform any of  these  functions.   Third,  there  is  no
mention  in  the final rule of these standards that they apply to
personal automobiles.   Safety  Standards,  53  Fed.  Reg.  32496
(1988).   Finally,  there  is  no evidence in the record that the
Secretary has ever, either in her  Program  Policy  Manual  or by
some other means of public notice, interpreted the regulation  to
include personal automobiles.

     Furthermore,  as  suggested by the Respondent, if a personal
automobile  is  mobile  equipment   within  the  meaning  of  the
regulations, it would have to be inspected  each shift, 30 C.F.R.
 56.14100(a); the mine operator would have to  maintain a record
of defects found, 30 C.F.R.  56.14100(c); it would  have to have
a  service brake system, 30 C.F.R.  56.14101; it would  have  to
have  a  backup  alarm, 30 C.F.R.  56.14132; and a warning would
have to be sounded  before  it  could  be  started,  30  C.F.R. 
56.14200.   It  apparently would not, however, have to have  seat
belts.  Personal  automobiles  are  not listed among the specific
types of mobile equipment required to  have  seat belts installed
in them.  30 C.F.R.  56.14130(a).  On the other  hand,  cars are
also  not  listed  among  the  specific types of mobile equipment
exempted  from  the  requirement.    30   C.F.R.    56.14130(f).
Plainly,  there  was  never  any  intention  to include  personal
automobiles as mobile equipment in the regulations.

     Although the Commission has never had occasion  to  rule  on
this  issue,  there  have  been  some  cases  involving  personal
automobiles.  In Energy West Mining Company, 15 FMSHRC 586 (April
1993), the Commission held that an injury sustained in a personal
automobile  accident  on  mine  property  was a reportable injury
under section 50.20 of the regulations, 30 C.F.R.   50.20.   The
case  turned,  however,  on  the  definition of reportable injury
under the regulation, "any injury to a miner," and not on whether
a  personal automobile was covered by  the regulations.

     Two  Commission judges  have  found  violations  of  section
77.404(a), 30 C.F.R.  77.404(a),[9]  when  security  guards were
asphyxiated while on duty in their personal cars.  Extra  Energy,
Inc., 18 FMSHRC 1489 (Judge Melick  August 1996);  Madison Branch
Management,  17 FMSHRC 1257  (Judge Feldman  July 1995).  In both
cases  the  deaths were caused  by defective exhaust systems.  In
neither case, however, was the issue  of whether  the  regulation
applied to personal automobiles addressed.  Furthermore, the cases
are distinguishable  from  the  instant case in that the personal
automobiles were being used by the miners to perform their duties
at the mine.

     I find that a reasonably prudent person, familiar  with  the
mining industry and the protective purposes of the Act, would not
have  recognized that section 56.9101 applies to the operation of
personal automobiles being driven home from work.  Accordingly, I
conclude  that  Empire  did  not violate section 56.9101 and will
vacate the citation.

                       Civil Penalty Assessment

     The Secretary has proposed a civil penalty of  $1,298.00 for
Order No. 4537055 and the parties  have  agreed  on  penalties of
$3,824.00  for the settled order and citations.  However,  it  is
the  judge's   independent   responsibility   to   determine  the
appropriate amount of penalty in accordance with the  six penalty
criteria set out in section 110(i) of the Act.  Sellersburg Stone
Co.  v.  FMSHRC,  736  F.2d  1147,  1151 (7th Cir. 1984); Wallace
Brothers, Inc., 18 FMSHRC 481, 483084 (April 1996).

     The parties stipulated that Empire  worked approximately 1.9
million hours in 1995 and that payment of  the proposed penalties
will not affect Empire's ability to continue  in business.  (TrI.
29-30.)   With  respect  to  the  remaining  criteria,  since  no
evidence was presented that the company did not  demonstrate good
faith   in   attempting   to   achieve   rapid  compliance  after
notification of the violations, I find that  Empire  demonstrated
good  faith  in  this  area.  The company's history of violations
indicates an average number  of prior violations.  (Govt. Ex. 1.)
Therefore,  I  find  that  the  Respondent's   history  of  prior
violations is neither good nor bad.  I find that  the  gravity of
the violation in Order No. 4537055 was relatively serious in that
moderately serious injuries occurred as a result of it.   I  also
find the level of negligence for that violation to be high.

     Taking  all  of this into consideration, I conclude that the
penalty proposed by  the  Secretary for Order No. 4537055 and the
penalties agreed to by the parties for the settled violations are
appropriate.  Accordingly,  for Docket No. LAKE 97-47-M, I assess
penalties of $100.00 for Order  No.  4537047  and  $1,298.00  for
Order  No.  4537055.   For  Docket  No.  LAKE  97-50-M,  I assess
penalties  of  $1,862.00  each  for  Citation  Nos.  4534187  and
4537188.

                                ORDER

     Accordingly,  Order No. 4537189 in Docket Nos. LAKE 97-37-RM
and LAKE 97-50-M, Order  No. 4537190 in Docket Nos. LAKE 97-38-RM
and LAKE 97-50-M and Citation  Nos  4537187 and 4537188 in Docket
No. LAKE 97-50-M are AFFIRMED; Citation No. 4537216 in Docket No.
LAKE 97-39-RM and Citation No. 4537285  in Docket No. LAKE 97-53-
RM, which citations are also included in Docket No. LAKE 97-69-M,
are  VACATED; Order No. 4537047 in Docket  No.  LAKE  97-47-M  is
MODIFIED by deleting the "significant and substantial"designation
and AFFIRMED  as  modified,  Order No. 4537055 in Docket No. LAKE
97-47-M is AFFIRMED and Citation  No.  4537051 in Docket No. LAKE
97-47-M is VACATED; Citation No. 4537093  in  Docket No. LAKE 97-
41-M is VACATED; and Citation No. 4537206 in Docket  No. LAKE 97-
51-M is VACATED.

     Empire  Iron  Mining  Partnership  is  ORDERED TO PAY  civil
penalties  of  $5,122.00  within  30  days of the  date  of  this
decision.  On receipt of payment, these cases are DISMISSED.

                                          T. Todd Hodgdon
                                          Administrative Law Judge

Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll,  P.C.,  301  Grant St.,
20th Floor, Pittsburgh,
PA  15219-1410 (Certified Mail)

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

Thomas J. Pavlat Conference and Litigation Representative,  MSHA,
2200 Marquette Rd., Suite 110, Peru, IL  61354 (Certified Mail)

/lt


**FOOTNOTES**

     [1]:  A  separate  transcript,  beginning  with  page 1, was
prepared  for  each  day  of the hearing.  In this decision,  the
transcript for September 3  will be referred to as "TrI." and the
transcript for September 4 will be referred to as "TrII."

     [2]:  30  C.F.R.    56.9002  (1987)  provided:   "Equipment
defects affecting safety shall  be corrected before the equipment
is used."

     [3]: There are recessed metal  balls  in two rows across the
table  of  the shear.  (Resp. Exs. 4 and 6.)   When  heavy  metal
plate is being  positioned  on the table to be sheared, the balls
can be raised to table level  by air pressure and as the plate is
pushed onto the table, the balls  rotate making it easier to move
the metal.

     [4]:  In  connection  with  this  conclusion,   I  find  the
testimony  of Richard Bradley, who had never used the shear,  and
Ed Tresedder, that the transfer balls were merely a "convenience"
inapposite.   Likewise,  I find the testimony that there may have
been other means of getting  the  plate onto the shear, such as a
crane  or  forklift,  not relevant to  this  determination.   The
important point is that  the  balls were part of the machine, and
their failure to function could, and did, result in injuries.

     [5]: He finally received something in January 1997.

     [6]: See discussion of Citation  No.  4537285  infra for the
requirements of this regulation.

     [7]:  The  Respondent's  objection to the amendment  of  the
citation was overruled at the hearing.  (TrI. 21-28.)

     [8]: Wing was not able to  verify  that  he  slid on the ice
caused  by  the  pipeline leak, which is the theory  of  the
Secretary's case,  because  he  never  went back to check on
what  he  had slipped.  No one else testified  that  he  had
slipped on the ice patch.

     [9]: Section  77.404(a)  provides:   "Mobile  and stationary
machinery   and  equipment  shall  be  maintained  in   safe
operating condition  and  machinery  or  equipment in unsafe
condition shall by removed from service immediately."