<DOC>
[DOCID: f:ct94109.wais]

 
GRIESEMER STONE COMPANY
April 21, 1995
CENT 94-109-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            April 21, 1995
                                     
SPRINGFIELD UNDERGROUND, INC., :  CONTEST PROCEEDINGS
               Contestant      :
               v.              :  Docket No. CENT 94-109-RM
                               :  Citation No. 4321784; 1/11/94
SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :  Docket No. CENT 94-110-RM
  ADMINISTRATION (MSHA),       :  Citation No. 4321786; 1/12/94
               Respondent      :
                               :  Docket No. CENT 94-111-RM
                               :  Order No. 4321787; 1/12/94
                               :
                               :  Plant No. 1 Mine & Mill
                               :  Mine ID 23-00094
                               :
SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. CENT 94-131-M
               Petitioner      :  A. C. No. 23-00094-05543
          v.                   :
                               :  Docket No. CENT 94-201-M
SPRINGFIELD UNDERGROUND, INC., :  A. C. No. 23-00094-05546
               Respondent      :
                               :  Plant No. 1 Mine & Mill
                               :
SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. CENT 94-91-M
               Petitioner      :  A. C. No. 23-00094-05542
          v.                   : 
                               :  Plant No. 1 Mine & Mill
GRIESEMER STONE COMPANY,       :
  (n/k/a SPRINGFIELD           :
  UNDERGROUND, INC.),          :
               Respondent      :
                               
                               DECISION

Appearances:  Kristi Floyd, Esq., Office of the Solicitor,
              U. S. Department of Labor, Denver, Colorado,
              for the Secretary;
              Bradley S. Hiles, Esq., Peper, Martin, 
              Jensen, Maichel & Hetlage, St. Louis, 
              Missouri, for Contestant/Respondent.

Before:  Judge Maurer

     These consolidated proceedings concern a proposal 
for assessment of civil penalty filed by the Secretary of
Labor (Secretary), against the mine operator (Springfield 
Underground, Inc., hereinafter referred to as 
Springfield), pursuant to section 110(a) of the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C.  820(a), 
seeking a combined civil penalty of $2,772, for four 
alleged violations of the mandatory safety standard found 
at 30 C.F.R.  57.3200.[1]  The various issues presented 
in the civil penalty cases include the fact of violation, 
and if so found, whether the violation(s) were 
"significant and substantial", whether some of the 
violation(s) were "unwarrantable failures", and the 
appropriate civil penalty assessments to be made for the 
violations, should any be found.  The contest cases filed 
by Springfield challenge the legality and propriety of 
the cited violations.

     Pursuant to notice, the cases were heard at 
Springfield, Missouri, on January 4-5, 1995.  Both parties
have filed posthearing briefs.  I have considered the
entire record and the contentions of the parties and make
the following decision.
                         
                           STIPULATIONS

     The parties agreed to the following (Tr. 14-17):

     1.  Springfield is engaged in mining and selling of 
crushed and broken limestone in the United States, and its 
mining operations affect interstate commerce.

     2.  Springfield is the owner and operator of Plant 
No. 1 Mine & Mill, MSHA ID No. 23-00094.

     3.  Springfield is subject to the jurisdiction of 
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
 801 et seq. ("the Act").

     4.  The administrative law judge has jurisdiction in 
this matter.

     5.  The subject citations were properly served by a 
duly authorized representative of the Secretary upon an 
agent of respondent on the date and place stated therein, 
and may be admitted into evidence for the purpose of 
establishing their issuance, but not for the truthfulness 
or relevancy of any statements asserted therein.

     6.  The proposed penalty will not affect respondent's
ability to continue in business.

     7.  The operator demonstrated good faith in abating 
the violation(s).

     8.  Springfield is a small mine operator with 78,118 
hours of production in 1992.

                     The "Loose Ground" Issue

     As a general matter central to all four of the 
violations alleged by the Secretary in these cases, I note 
that the terms "hazardous ground conditions" and "loose 
ground" or "loose material" are not specifically defined 
in the regulations.
      
     "Loose" is defined as "not rigidly fastened or 
securely attached."  Webster's Third World New 
International Dictionary (Unabridged) 1335 (1966).  The
term "loose ground" is defined as "[b]roken, fragmented, 
or loosely cemented bedrock material that tends to slough
. . . . As used by miners, rock that must be barred down 
to make an underground workplace safe. . . ."  Bureau of 
Mines, U.S. Department of Interior, A Dictionary of 
Mining, Mineral and Related Terms 658 (1968).  In Amax 
Chemical Company, 8 FMSHRC 1146, 1148 (August 1986), the 
Commission interpreted the term "loose ground" to refer 
"generally to material in the roof (back), face, or ribs 
that is not rigidly fastened or securely attached and thus 
presents some danger of falling."

     For the operator's employees who testified concerning 
the terminology, their working definition of "loose 
ground" was "any material that would fall on its own."  
The operator's position at trial and in their post-trial 
brief would add to that definition "any material that 
could be 'barred down' using a hand scaling bar."

     For the MSHA inspector who testified on behalf of 
the Secretary, the paramount factor he used to determine
"loose ground" was more or less a hindsight test.  If the 
material, once tentatively identified as "loose," could be 
brought down by any means necessary, then that 
demonstrated it was "loose."

     In a somewhat related case involving the roof in an
underground potash mine, Amax Chemical Corp., supra,
8 FMSHRC at 1149, the Commission stated that a variety of
factors should be considered in determining whether loose
ground is present, including but not limited to the results
of sounding tests, the size of the drummy area, the 
presence of visible fractures and sloughed material, 
"popping" and "snapping" sounds in the ground, the 
presence, if any, of roof support, and the operating 
experience of the mine or any of its particular areas.  
In this case, however, as a practical matter the 
Secretary's evidence was largely limited to the results 
of a visual inspection of the cited areas and the 
subsequent scaling operations.  The inspector admitted he 
did not consider the operating experience of the mine with 
respect to loose ground, the presence or absence of 
sloughed material, or popping or snapping sounds in the
ground.  He also admittedly is not familiar with the rock
formation of the mine.
                    
     With that general outline in mind, I proceed to the
individual matters at bar.

              DISCUSSION, FINDINGS, AND CONCLUSIONS

      I.  Docket No. CENT 94-91-M

          Citation No. 4111868 was issued by MSHA 
Inspector Michael R. Roderman on October 13, 1993 under 
section 104(a) of the Mine Act, and alleges a violation of 
the mandatory safety standard found at 30 C.F.R.  57.3200.  
The condition or practice cited by the inspector is 
described as follows:

          The operator of the Tamrock Drill was observed
     drilling in a heading in the underground mine area
     known as the "Southwest Corner."  There were large
     pieces of loose material on the rib directly behind 
     and to the left of the driller.  A person could not 
     safely walk around the drill without being exposed to 
     possible "fall of ground."  The back height in this 
     area is about 30 feet high.  The fall of the amount 
     of rock observed from these heights could easily 
     result in death.  The drill was immediately removed 
     from the area, and scaling started.

     On the day in question, Inspector Roderman, 
accompanied by Mr. Tony Brasier, the Safety Director and 
Mining Engineer for Springfield, observed what he felt to 
be loose material approximately 20 feet high on a rib in 
the "Southwest Corner." He described this as large pieces 
of loose material directly behind and to the left of an 
area where drilling was taking place.  He later observed 
that this loose material was brought down "quite easily,"
but does not recall what method was used to bring it down.  
He testified that the mine used both hand scaling and a 
mechanical scaler with a hydraulically operated tooth.

     In fact, it was brought down by the Gradall 880 
mechanical scaler, and according to the employee who 
actually performed the scaling activity, none too easily.


**FOOTNOTES**

     [1]:30 C.F.R.  57.3200 provides as follows:

          Ground conditions that create a hazard to 
          persons shall be taken down or supported before 
          other work or travel is permitted in the 
          affected area.  Until corrective work is 
          completed, the area shall be posted with a 
          warning against entry and, when left 
          unattended, a barrier shall be installed to 
          impede unauthorized entry.

     The Gradall 880 is a large machine weighing 26 1/2
tons and having a reach of 42 feet in the air.  The cab of 
the Gradall sits more than 6 feet high and the operator's 
eye-level is approximately 10 or 11 feet off the floor.  
The Gradall 880 also has powerful lighting, with six high 
intensity lights, plus a spotlight for the operator.  The 
machine is capable of illuminating any rock surface it 
faces.  The lights are evenly distributed from low running 
lights, to lights on the top and sides of the cab attached 
to the boom, which can reach to the top of the mine.  The 
Gradall has a single telescopic arm, or boom, with a large 
tooth on the end.  Through the use of a joy stick, the 
Gradall operator may manipulate the large tooth in the same
directions and with the same motions as a person moves his
hand. The tooth is capable of delivering enormous force
-- 16,000 pounds of curling force.  In addition, the boom 
can deliver up to 19,000 pounds of force when it attacks a 
rock face.  The Gradall is capable of excavating rock with 
tons of force and enormous leverage.

     Mr. Shannon Davis, the employee who operates the
Gradall 880, and performed the scaling activity which the
inspector witnessed, very credibly testified to the effect 
that the material in question was not "loose."  He is an 
hourly employee of the company, a member of the Operating 
Engineers Union, and an experienced scaler.  Mr. Davis 
testified that when he initially positioned his scaler in 
front of the rib in question, he did not observe any loose 
ground.  He did bring material down from the wall, but 
only after exerting "full power" with the mechanical 
scaler.  He brought down "a very small rock that was 
basically excavated off the wall."  By his account, the
mechanical scaler actually broke the rock away from the
other stone on the rib.  He also opined that that rock 
could not have been brought down by hand scaling nor would 
it have fallen on its own.

     This version of events was corroborated by Mr. 
Brasier.  He testified that although material was brought 
down by the Gradall scaler, it had to be pounded and 
scraped down.  He described the machine as "shaking
violently. . . .[y]ou could see the machine sit there and 
shake and take a lot of abuse."

     Based on the preponderance of evidence available on 
this point of contention, I conclude that the material was 
not "loose."  The testimony of Mr. Davis was very 
significant on this point.  If the material has to be 
pried off the rib with thousands of pounds of mechanical 
force, it is not "loose." Accordingly, I find no hazardous 
ground conditions existed as alleged in Citation 
No. 4111868 and it will therefore be vacated herein.

     II.  Docket Nos. CENT 94-109-RM and CENT 94-131-M

     Citation No. 4321784 was also issued by Inspector 
Roderman under section 104(a) of the Act on January 11, 
1994.  It alleges a violation of 30 C.F.R.  57.3200, and 
states as follows:

          Loose material was observed on the left pillar 
     in "Knob Tunnel" area at Grid 375-550.  The mechanical
     scaler had earlier scaled the face in this area, but
     had not checked for loose on the pillars before
     reaching the face.  The amount of loose that was
     scaled down (approximately 2 loader buckets full) and 
     the ease with which it came down indicate that someone 
     could have easily been fatally injured in this area.  
     The driller was the next scheduled person to enter 
     this area after the loader cleaned up the debris.

     According to Inspector Roderman, this loose was 25-30 
feet above the floor level and filled approximately two 
full front loader buckets after it was scaled down.

     Once again, however, there is a serious difference of
opinion concerning the threshold issue of whether the 
material was "loose" in the first place.

     Shannon Davis was again the Gradall operator who 
scaled the pillar at the inspector's direction.  He 
testified that the material he brought down was "broken" 
off the pillar by the Gradall.  He started with a rock that 
stuck out from the top of the pillar and, at Mr. Brasier's
direction, used the full power of the Gradall to bring it 
down.

     An experienced scaler with the hand bar as well, Mr. 
Davis opined that the rock could not have been brought 
down by hand; nor would the vibrations from nearby 
scaling or drilling have caused the rock to fall.  After 
bringing down the rock at the top, Mr. Davis "hit" the 
pillar repeatedly with the Gradall tooth, breaking off 
more rock.

     Another discrepancy with this citation involves the 
amount of rock excavated off the pillar by the Gradall.  
Inspector Roderman recorded the volume on the citation 
as "two loader buckets full."  Shannon Davis, as it turned 
out, also operated the loader which picked up the scaled-
down stone.  He testified that the volume was only about 
one-third of one bucket, a difference of several tons in 
volume from Inspector Roderman's estimate.  Tony Brasier's
recollection supported Mr. Davis.

     The Secretary bears the burden of proving these 
violations by a preponderance of the evidence and in this 
instance it just is not here.  Once again, I made the 
critical credibility choice in favor of Mr. Davis and find 
that the material brought down by the Gradall was not 
"loose," does not constitute a hazardous ground condition 
under the standard cited, and is therefore not a violation 
of that standard.  Determining material is "loose" based 
on the fact that it can be brought down by such tremendous
force goes well beyond what can reasonably be contemplated
by the standard at bar.  Accordingly, Citation No. 4321784 
will be vacated herein.

     III.  Docket No. CENT 94-110-RM (Citation No. 4321786
assessed in Docket No. CENT 94-201-M)

     Citation No. 4321786 was issued by Inspector Roderman
on January 12, 1994, under section 104(d)(1) of the Act.  
Like the others, this citation alleges a violation of 
30 C.F.R.  57.3200. The condition or practice alleged by 
the inspector is as follows:

          Loose material was observed on the ribs and 
     pillars in the "Skinny Pillar" area of the mine.  A
     front-end loader and two haul trucks were mucking a
     heading in this area.  The trucks were traveling
     directly by large amounts of loose.  The loose 
     measured about 3 foot diameter to about 6 foot by 12 
     foot by 1 foot thick, in some locations.  Even though 
     all persons observed were in their vehicles, if a 
     fall of ground did occur, they could still be 
     seriously injured.  It was determined that the 
     company did not take all steps necessary to prevent 
     this occurrence, as they did not insure that the area 
     was properly checked for loose after blasting and 
     prior to mucking.  This is an unwarrantable failure.

     The inspector testified that numerous factors might 
cause what he considered to be loose material to fall, 
including vibrations from equipment or equipment bumping 
against the ribs or pillars.

     The scaling in this instance was done by hand, with 
scaling bars in a highlift to reach the affected area.  
The inspector was not present.  However, the hand scalers 
abating the citation admittedly brought down several 
"fist-size" pieces of loose material.  This is 
considerably less than the inspector described but is 
still sufficient to create a "hazard to persons" and
violate the cited standard.  Employees were working in the 
area and were exposed to the hazard presented by this 
"loose."

     The inspector also marked the citation "significant 
and substantial" ("S&S").

     A "significant and substantial" violation is 
described in section 104(d)(1) of the Mine Act as a 
violation "of such nature as could significantly and 
substantially contribute to the cause and effect of a coal 
or other mine safety or health hazard." 
30 C.F.R.  814(d)(l).  A violation is properly designated
significant and substantial "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 reasonably serious nature." 
Cement Division, National Gypsum Co., 3 FMSHRC 825 (April 
1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984),
the Commission explained its interpretation of the term 
"significant and substantial" 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.

     In United States Steel Mining Company, Inc.,
7 FMSHRC 1125, 1129 (August 1985), the Commission stated 
further as follows:

     We have explained further that the third element of 
     the Mathies formula "requires that the Secretary 
     establish a reasonable likelihood that the hazard 
     contributed to will result in an event in which 
     there is an injury." U. S. Steel Mining Co., 
     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); U. S. Steel Mining Company, Inc.,
     6 FMSHRC 1573, 1574-75 (July 1984).

     The violation of the cited standard has been proven 
to my satisfaction.  Furthermore, I find that if the 
condition were left unabated, continued vibrations from 
further blasting could adversely effect the status of the 
loose material.  It would likely continue to deteriorate 
over time.  The rock, which was already loose, was not 
going to get any tighter over time; it would only get 
looser.  Assuming no one corrected the condition, it would 
eventually fall, and I concur with the inspector that a
fist-size rock falling from overhead would be reasonably 
likely to cause a serious injury to a person or persons 
below.  I therefore find that the violation was "S&S" and 
serious.

     The Secretary also argues that the violation was the 
result of Springfield's unwarrantable failure to comply 
with the standard at bar.

     In Emery Mining Corp., 9 FMSHRC 1997, 2004 
(December 1987), the Commission determined that 
unwarrantable failure is aggravated conduct constituting
more than ordinary negligence.  This determination was 
derived, in part, from the plain meaning of 
"unwarrantable" ("not justifiable" or "inexcusable"), 
"failure" ("neglect of an assigned, expected or 
appropriate action"), and "negligence" (the failure to 
use such care as a reasonably prudent and careful person 
would use, and is characterized by "inadvertence," 
"thoughtlessness," and "inattention").  9 FMSHRC at 2001.  
Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care."  
9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 
13 FMSHRC at 189, 193-94 (February 1991).  The Commission 
has also stated that use of a "knew or should have known" 
test by itself would make unwarrantable failure 
indistinguishable from ordinary negligence, and 
accordingly, the Commission rejected such an 
interpretation.  A breach of a duty to know is not 
necessarily an unwarrantable failure.  The thrust of Emery 
was that unwarrantable failure results from aggravated 
conduct, constituting more than ordinary negligence.  
Secretary v. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 
(October 1993).

     The evidence does not support any "indifference, 
willful intent or serious lack of reasonable care" on the 
part of the operator with regard to the "loose material" 
in the "Skinny Pillar" area.

     First, I found the previously issued citations
(October 13, 1993 and January 11, 1994) citing "loose 
ground" as a hazardous ground condition were not 
violations.  Therefore, these previous citations cannot 
serve as a basis for the Secretary's contention that 
respondent was "indifferent" (i.e., that respondent was
aware of the violative conditions yet failed to correct
them).

     Secondly, Inspector Roderman testified that the mine
foreman, Mr. Vandenburg, had inspected the area the 
morning the citation was written but failed to correct 
obvious "loose." However, the operator provided credible 
testimony that the scalers could not readily identify the 
"loose" and questioned whether they were even in the 
correct area.  I find that there is at least a good faith, 
honest difference of opinion concerning what constitutes 
loose material.  I do not believe it was as "obvious" as 
the inspector thinks it was.  In this particular instance 
I am giving the inspector the benefit of the doubt in a
close factual case that the material was in fact "loose" 
and apt to fall.  I also find that the operator is 
chargeable with but ordinary or moderate negligence in 
this instance.

     Therefore, I conclude that the violation of the cited
standard due to the presence of "loose" in the "Skinny 
Pillar" area was not an unwarrantable failure, and the 
section (d)(1) citation will be modified to an "S&S" 
citation issued under section 104(a) of the Mine Act.

     After considering the statutory criteria contained 
in section 110(i) of the Act, I assess a civil penalty of 
$100 for the violation found herein.

     IV.  Docket No. CENT 94-111-RM (Order No. 4321787 
          assessed in Docket No. CENT 94-201-M)

     Section 104(d)(1) Order No. 4321787 was issued on
January 12, 1994, by Inspector Roderman, and alleges a
violation of the mandatory standard found at 
30 C.F.R.  57.3200.  The condition or practice alleged 
by the inspector is as follows:

          Loose material was observed on the ribs and
     pillars in the "Sump Run" area of the mine.  A front-
     end loader and two haul trucks were mucking a heading
     in this area.  The mucking crew had been sent to this
     area after the area they had been in earlier had been
     "shut down" due to loose in that area also. 
     Management was notified of the loose problem in the 
     mine and the need to change the current mining cycle 
     to include scaling prior to mucking commencing.  The 
     loose that was observed in this area varied in size 
     and was from about l0 feet above ground level near 
     the back (about 30 feet) and although all persons 
     were in their vehicles, they still could be 
     seriously injured.  This is an unwarrantable failure.

     The hazard alleged in this Order is that of a 
"serious injury" from the fall of loose material onto 
cabs of a front-end loader and two haul trucks.  According 
to Inspector Roderman's testimony, the mine employee 
exposed to the greatest risk was the loader operator who, 
by the inspector's account, was parked under a large rock 
perched 30 feet high on a pillar "gaped open so seriously, 
I am not even sure how it was hanging there."

     Respondent's witnesses agree that the large rock in 
question was there and that it came down "easily."  
Shannon Davis used the Gradall to bring down the rock.  
By his account, he used "full throttle" and "basically 
dragged it off" of a ledge.  Tony Brasier recalled that 
Mr. Davis used the Gradall to break the rock in two before 
taking it off the ledge.  Davis and Brasier also opined
that the size and weight of the rock was such that normal 
vibrations throughout the mine would not have caused it to
fall.  Whether or not this particular rock was "loose," 
there remains a question of whether it created a present 
hazard to persons in the affected area.  I will discuss 
that issue later in this decision.

     At the inspector's immediate direction, Davis 
proceeded to scale other pillars in the vicinity.  He 
moved the Gradall to at least 16 other locations, on the 
various sides of six other pillars.  By the account of 
witnesses Brasier, Vandenburg, and Davis, Inspector
Roderman would direct the Gradall operator to scale a 
pillar by shining his (Roderman's) mining light on that
pillar.  When the scaling was done to Inspector 
Roderman's satisfaction, he would flash his light into 
the operator's cab as a signal to move on to another area.  
Mr. Davis testified that he did not observe any loose 
material in this area and opined that he would not have 
wasted his time scaling these pillars.  Mr. Brasier 
testified that referring to one of these pillars, the
inspector had claimed there was loose and directed it to
be scaled down.  When Mr. Davis proceeded to scale it with 
the Gradall and nothing would come down despite Davis' 
best efforts, the inspector said:  "That's tight.  Lets go
somewhere else." Mine Foreman Marty Vandenburg likewise 
did not see any loose.  He did see a few rocks come down 
that Davis was able to break loose with the Gradall, but 
in his opinion, they were not loose to begin with.

     It occurs to me that this particular inspector may 
just have an overly acute sense of what material is 
"loose."  If he is consistently the only one who thinks a 
rock is loose while everyone else does not think so and 
the rock ultimately has to be pried off the rib or pillar 
(essentially excavated) with thousands of pounds of 
force, I agree that perhaps it was not "loose" in the 
first place.

     Basically, Inspector Roderman's determination of 
whether material is "loose" seems to depend on whether or 
not the Gradall can bring the material down.  I do not 
believe that is a reasonable interpretation of the 
standard.

     To prove a violation under 30 C.F.R.  57.3200, the
Secretary must prove two things:  (1) a hazardous ground
condition existed in an area, and (2) a person could be 
expected to work or travel through the area affected by 
the hazardous ground condition.

     With regard to the second item of proof as it relates 
to the larger rock scaled down first by Mr. Davis in the 
"Sump Run" area, the preponderance of evidence is to the 
effect that the loader identified by the inspector as being 
parked directly under the rock, in fact could not gain 
access to the pillar in question because shot rock littered 
the ground surrounding the pillar. Mr. Davis opined that 
neither the loader or a haul truck could have driven 
underneath that rock while the scattered stone (shot rock)
was on the floor.  Mr. Brasier's testimony and computer
assisted drawing of the area supports Davis' opinion.

     Based on the foregoing facts and circumstances, I 
conclude that there were no ground conditions in the "Sump 
Run" area of the mine that created a hazard to persons 
unless and until the shot rock was cleaned up.  The cited 
standard protects only against presently existing 
hazardous conditions, not possible future hazardous 
conditions.  Hence, I find no violation of the cited 
standard and Order No. 4321787 will be vacated herein.

                              ORDER

     On the basis of the foregoing findings and 
conclusions, IT IS ORDERED THAT:

     1.  Section 104(a) "S&S" Citation No. 4111868, 
October 13, 1993, citing an alleged violation of 
30 C.F.R.  57.3200, IS VACATED.

     2.  Section 104(a) "S&S" Citation No. 4321784,
January 11, 1994, citing an alleged violation of 
30 C.F.R.  57.3200, IS VACATED.

     3.  Section 104(d)(1) Citation No. 4321786, 
January 12, 1994, citing an alleged violation of 
30 C.F.R.  57.3200, IS MODIFIED to an "S&S" citation 
issued under section 104(a) of the Mine Act.

     4.  Section 104(d)(1) Order No. 4321787, 
January 12, 1994, citing an alleged violation of 
30 C.F.R.  57.3200, IS VACATED.

     5.  Respondent pay the Secretary of Labor $100 as a 
civil penalty within 30 days of this Decision.


                                Roy J. Maurer
                                Administrative Law Judge

Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U. S. 
Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO 80202-5716 (Certified Mail)

Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel 
and Hetlage, 720 Olive Street, 24th Floor, St. Louis, MO 
63101 (Certified Mail)

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