<DOC>
[DOCID: f:ct2000419.wais]

 
TXI OPERATIONS, LP
January 19, 2001
CENT 2000-419-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        January 19, 2001

TXI OPERATIONS, LP,             : CONTEST PROCEEDINGS
               Contestant       :
          v.                    : Docket No. CENT 2000-419-RM
                                : Citation/Order No. 7887789; 
                                :   7/8/2000
SECRETARY OF LABOR,             :
     MINE SAFETY AND HEALTH     : Docket No. CENT 2001-24-RM
     ADMINISTRATION (MSHA),     : Citation No. 7897041;
                                :   6/20/2000
               Respondent       :
                                : Paradise Plant
                                : Mine ID 41-03253

                       CONSOLIDATION ORDER
                               AND
                             DECISION

Appearances: Michael T. Heenan, Esq., Heenan, Althen & Roles, 
             Washington, D.C., for the Contestant;
             Stephen E. Irving,  Esq.,  Susan  Meyercord, Esq.,
             Office of the Solicitor, U.S. Department of Labor,
             Dallas, Texas, for the Respondent.

Before: Judge Feldman

     These  contest matters concern Notices of Contest  filed  by
TXI Operations,  LP  (TXI),  challenging  two  citations  and  an
imminent  danger  order  issued  as  a result of a June 19, 2000,
fatal railroad crossing accident that occurred at the entrance of
TXI's Paradise Plant.  The  accident site is on property owned by
the  Union  Pacific  Railroad  (Union  Pacific).    The  accident
occurred  when  the driver of a haulage tractor-trailer  who  was
entering the Paradise  Plant  attempted  to  beat a freight train
across the railroad crossing.  The operator's  cab of the tractor
was struck by the train killing the truck driver.   TXI  notified
the  Mine Safety and Health Administration (MSHA) of the accident
the next morning on June 20, 2000, at approximately 9:00 a.m.

     As   a  result  of  MSHA's  accident  investigation,  104(a)
Citation No.  7887789  was  issued  citing  TXI for violating the
mandatory  safety  standard  in  30  C.F.R.    56.9100(a)   that
requires,  in  pertinent  part, that rules governing right-of-way
shall be established and followed  at  each  mine.  TXI was cited
for violating this mandatory standard because,  upon entering and
exiting  the  Paradise  Mine,  TXI  personnel  and its  customers
routinely failed to stop completely at the stop  signs  posted on
both  sides  of the railroad crossing.  Citation No. 7887789  was
also issued as  an  imminent  danger  order  pursuant  to section
107(a) of the Mine Safety and Health Act of 1977 (the Mine  Act),
30 U.S.C.  817(a), as a result of TXI's practice of not ensuring
that  vehicles  entering  and exiting its mine stopped completely
before traversing the railroad crossing.

     A  contest  hearing concerning  104(a)/107(a)  Citation  and
Imminent Danger Order No. 7887789 was conducted on October 11, 
2000, in Decatur, Texas. Subsequent to the  hearing, on December  
20,  2000, the contest proceeding in Docket No. CENT 2001-24-RM 
was assigned to me for disposition.  CENT 2001-24-RM  concerns  
TXI's  contest  of  104(a) Citation No. 7897041 for an alleged 
violation of the accident notification provisions of 30 C.F.R. 
 50.10 that require mine operators  to  notify  the local MSHA 
District or Subdistrict Office immediately after an accident 
occurs.

     During  a  post-hearing  telephone  conference,  the parties
agreed  to  consolidate  the contest in CENT 2001-24-RM with  the
104(a)/107(a)  contest  in  CENT   2000-419-RM.    To  facilitate
disposition  of  the  issue  in CENT 2001-24-RM concerning  TXI's
alleged failure to timely notify MSHA of the fatality, on December 
28, 2000, the parties filed joint stipulations related to the facts 
surrounding  TXI's notification  of  the accident.  Accordingly, 
Docket Nos.  CENT  2000-419-RM  and  CENT 2001-24-RM ARE HEREBY
CONSOLIDATED.

     I.  Findings of Fact

     TXI's Paradise Plant, a medium  size  sand  and  gravel mine
with approximately 22  employees,  is  located  in a remote area 
in the vicinity  of Chico, in Wise County, Texas. The  Paradise 
Plant is situated on the north side of Union Pacific's mainline  
railroad  tracks  that  run  in  an east-west direction.  State  
Highway  114,  the  exclusive route used  for traveling to and 
from the Paradise facility,  also  running in an east-west  
direction,  is  adjacent  and  parallel  to the  Union Pacific  
right-of-way, on the south side of the railroad tracks. Thus, 
Union  Pacific's  tracks  are located between State Highway 114 
and the entrance to the Paradise  facility.   To  enter  the
Paradise  Plant requires a ninety degree turn from Highway 114 to
traverse the  railroad tracks that are situated directly in front
of the Paradise Mine entrance.

     Two to four  freight  trains  pass  along  the Union Pacific
tracks  adjacent  to the Paradise Plant entrance each  day.   The
track bed in front  of,  and  in  the  general  vicinity  of, the
Paradise  Mine  is straight and level.  The  visibility down  the
tracks in both the  east  and west direction is unlimited.  Union
Pacific freight trains can  consist  of one hundred or more cars.
The freight trains travel at approximately  40  miles  per  hour.
The speed limit on State Highway 114 is
65 miles per hour.

     Because  TXI  has  no  control over Union Pacific's mainline
tracks, it had to negotiate a license agreement with the railroad
whereby Union Pacific granted  permission for TXI's personnel and
customers to cross from Highway  114  over Union Pacific's tracks
to the Paradise Plant.  Thus, in accordance  with  the terms of a
1983 license agreement, Union Pacific, pursuant to TXI's request,
constructed  a crossing from Highway 114 to TXI's mine  property.
(TXI Ex. 4).   The  terms of the license agreement provided, with
specified exceptions  not relevant here, that TXI would indemnify
Union Pacific for any liability  incurred as a result of injuries
or death to persons occurring at the  railroad  crossing.  (Id.).
Construction  of  the crossing was performed by Union Pacific  in
accordance with its own specifications.

     Union Pacific  established  rules  for its track crossing by
means of posted signs.  Specifically, a white  railroad  crossing
sign,  a  yellow  railroad  crossing  sign, and a stop sign, were
posted on both the highway and mine entrance  sides of the track.
Section 56.9104, 30 C.F.R.  56.9104, governs the traffic controls 
that are  required  at designated railroad crossings.   The  
Secretary  does not contend that  the  stop signs and railroad 
crossing signs posted  at  the railroad crossing  are inadequate. 
In  fact,  the  Secretary characterized  the  railroad   crossing
and  stop  signs as "conspicuous" in 104(a)/107(a) Citation/Order 
No. 7887789. (Gov. Ex. 9).

     In  1987,  independent of its license agreement granting the
right to cross the Union Pacific tracks, TXI entered into a lease
agreement for a relatively  small  portion  of Union Pacific land
across from the Paradise Plant entrance on the  Highway  114 side
(south  side)  of  the  tracks.[1]   (TXI  Ex.  5). TXI used this
property to install a flower box and signs that were visible from
Highway 114 to identify the location and entrance of the Paradise
Plant.  TXI also constructed a foundation area used for a rolling
fence that could be extended parallel to, and in  front  of,  the
highway  side of the tracks to prevent vehicles from crossing the
track when the Paradise facility was closed.

     To access  the  Paradise Plant, the Union Pacific tracks are
crossed approximately 500 times each day by  company,  vendor,  
contractor and visitor traffic. Photographs admitted in evidence 
reflect virtually unlimited  visibility  down  the  track  with  
regard to trains approaching from the east or west. (TXI Exs. 2,3).  
When a train approaches  the  crossing,  the  train  engineer 
blows the train whistle loudly and continuously.  In fact, the 
train can be heard long before it can be seen. Vehicles traveling
east or west on Highway  114  that  turn  into  the  railroad 
crossing would pass trains traveling in the same direction on the 
parallel track, or, face trains that were approaching the railroad 
crossing from the opposite direction. (TXI Ex. 1).

     On June 19, 2000, a multi-ton truck  pulling  double haulage
trailers  operated by Farris Concrete Company (Farris)  ,  a  TXI
customer purchasing  sand,  was  traveling  west on State Highway
114. The truck driver had been employed by Farris for approximately 
six months, and he had  averaged  four trips per day to and from 
the Paradise Plant, passing through the Union Pacific railroad 
crossing.

     As noted, the speed  limit  on  Highway  114 is 65 miles per
hour.   Based  on  the observations of Texas State  Trooper  Mike
Wiley who witnessed  the accident, it is apparent that the driver
of the Farris truck traveling  in a westerly direction on Highway
114  passed  a freight train that  was  also  traveling  west  at
approximately  40  miles  per  hour on the tracks parallel to the
highway.  State Trooper Wiley, who  was traveling east on Highway
114 observed the Farris truck driver  turn  right off Highway 114
as  the  truck  approached  the railroad crossing  to  enter  the
Paradise Plant.  Wiley concluded  the  truck driver was intent on
driving  through  the  stop  sign  in  an  attempt  to  beat  the
approaching train across the railroad crossing.  Tragically, as a
consequence of down-shifting and slowing to  negotiate  the right
turn off Highway 114, the truck driver miscalculated the speed of
the  approaching  train and the time required to clear the  train
crossing.  The freight  train  struck  the  cab  of  the tractor-
trailer killing the driver.

     TXI's Safety Manager Dana Glover-Smith, who was not  at  the
Paradise  mine  site  on the day of the accident, was notified of
the accident on the following  day  on June 20, 2000.  The Safety
Manager was not aware that the accident  had  occurred  on  Union
Pacific  rather  than  TXI property.  Therefore, upon learning of
the accident, she reported the incident to MSHA on June 20, 2000.  
TXI asserts it was not required to notify MSHA of the accident 
because the  accident site was not on mine property. Consequently,
TXI argues the  railroad crossing is not subject to Mine Act 
jurisdiction.

     Upon  being  notified  of  the  accident,  MSHA  Supervisory
Inspector Charles Sisk and MSHA Inspector Wyatt Andrews were sent
to the Paradise Plant on June 20,  2000,  to  perform an accident
investigation.  Shortly after arriving at the mine  on  June  20,
2000,  Andrews  issued  104(a)  Citation  No.  7897041  citing  a
violation of the provisions of 30 C.F.R.  50.10 that require  a  
mine  operator  to  immediately  notify  MSHA  of  an accident.   
The  citation  noted  that  although a fatal accident occurred on 
June 19, 2000, MSHA was not notified  until 9:05 a.m. of the 
following morning.

     During their accident investigation on June 20,  2000,  Sisk
and  Andrews  observed  at  least  20 vehicles crossing the Union
Pacific tracks to enter and leave the  mine site.  The inspectors
did not observe any of the vehicles come  to  a  complete stop at
the stop signs.  At the time these vehicles were observed,  there
were no freight trains in the vicinity of the railroad crossing.

     On  June  27,  2000,  from approximately 9:30 to 10:30 a.m.,
Sisk sat in his vehicle outside  the  mine  site  and  once again
observed  that  vehicles entering and exiting the mine site  were
not coming to a complete  stop  at the railroad crossing at times
when there were no trains in sight.  From  approximately 10:00 to
10:30  a.m.,  Sisk  observed  approximately  36 vehicles  and  he
recorded  notes  for every vehicle he observed.   (Gov.  Ex.  7).
Although most vehicles  slowed  at  the  stop sign, Sisk observed
only two to four of the 36 vehicles come to  a  complete  stop at
the stop signs.  At no time during Sisk's surveillance did he see
a train approaching the railroad crossing.

     On  July  6,  2000,  Andrews  observed and recorded vehicles
entering and exiting the mine.  (Gov.  Ex.  8).  Andrews observed
approximately  twelve  vehicles  during  a  25  minute  period.
Only  one  vehicle  came to a full stop at the railroad  crossing
stop  sign.   Once again,  there  were  no  trains  crossing  the
railroad crossing  during  the  period  of Andrews' observations.
Thus, during the course of the MSHA inspectors'  observations  of
vehicles  crossing the train tracks on June 20, June 27, and July
6, 2000, the  inspectors  did  not  observe  any motorist fail to
yield right-of-way to a train approaching the crossing.

     David  Nelson, TXI's Paradise Plant Manager,  testified  TXI
has established  and it enforces rules governing speed, right-of-
way and direction  of movement on mine property.  In this regard,
there is a 20 mile per  hour  speed  limit  sign  posted  on mine
property.  (Gov. Ex. 5(a)).

     Nelson readily admitted he was aware that drivers frequently
did not come to a complete stop when crossing the tracks when  no
trains were in sight.  (Tr. 205).  Nelson explained that a driver
of  a  haulage truck weighing over 30,000 pounds can more quickly
clear the tracks when no trains are coming by slowing down rather
than completely  stopping  at the stop sign and shifting to start
movement  again.  (Tr. 193-94).   Although  Nelson  knew  drivers
frequently  did  not  fully stop when no trains were seen, Nelson
testified that TXI had  no  reason  to  believe that drivers were
traveling over the railroad crossing at excessive speeds, or that
they  were  otherwise  failing  to  yield  the   right-of-way  to
approaching trains.  (Tr. 204-05).

     At the hearing MSHA Supervisory Inspector Sisk was requested
to consider the significance of drivers coming to a rolling stop,
rather than a complete stop, in instances when there was no train
in sight of the railroad crossing.  Sisk was asked:


          Court: . . . Well, as a matter of fact, if we
               assume  for  the sake of arguing in this
               hypothetical  that   it's   clear   that
               there's  no  train  on the tracks in the
               vicinity  of the mine  entrance  in  any
               direction,  either east or west, can you
               testify with  reasonable  certainty that
               all MSHA inspectors came to  a  complete
               stop  before  entering  and exiting  the
               mine under those circumstances?

          Sisk: Well, I wish I could, but not being with
               them, I would hope that they  did.   The
               inspectors that I've been with did.

          Court: All right.  But would you agree with
               me   that   it's  human  nature  if  the
               visibility is  unobstructed  and  you're
               crossing  a  railroad track, that people
               frequently  won't  come  to  a  complete
               stop?

          Sisk: Yes.

(Tr. 87-88).

     Based on MSHA's observations  of  the  traffic  entering and
exiting the mine, on July 6, 2000, more than two weeks after the 
accident,  Andrews issued 104(a)/107(a) Citation and Imminent Danger 
Order No. 7887789 citing a violation of  30  C.F.R.   56.9100(a).  
This   mandatory safety standard provides, in pertinent part, that 
"rules  governing  . . . right-of-way  .  .  . shall be established 
and followed at each  mine." Specifically, Citation/Order No. 7887789 
stated:

          Traffic  "right-of-way"  rules  are not being
          enforced   by   management  at  the  railroad
          crossing near the  mine  entrance.   Numerous
          over-the-road   haul   trucks  and  passenger
          vehicles have failed to  come  to  a complete
          stop  before  proceeding through the railroad
          crossing.  Conspicuous  stop  signs  and  two
          sets  of  railroad crossing signs are present
          at the site.   Five  previous  instances have
          been reported where trains have  struck  haul
          trucks  or  trailers  at the crossing because
          the vehicles failed to  stop.   On  June  19,
          2000,  one  instance caused fatal injury to a
          truck driver.   Failing to stop completely at
          the crossing is a  past  and current practice
          at  the  mine  and  constitutes  an  imminent
          danger.

(Emphasis added). (Gov. Ex. 9).

     Although the Citation/Order  No.  7887789  made reference to
five previous instances of "trains [striking] . .  .  haul trucks
or trailers at the crossing because the vehicles failed to stop,"
the  Secretary  has  failed  to  present any evidence of previous
accidents, or the cause of such accidents,  with the exception of
testimony that the prior incidents occurred in  1987,  1988, 1997
and  1998.   (Tr.  37-38).   Nor  are  there  any  allegations of
injuries  or  deaths  occurring  as  a  result  of  any  previous
incidents.

     To  abate  the  imminent  danger order, TXI was required  to
provide a flagman "at the crossing  to  insure  that vehicles are
aware  when  a  train  is  approaching  the crossing from  either
direction."  (Gov. Ex. 9).

     II.  Further Findings and Conclusions

          A.  Jurisdiction

     As  a threshold matter, TXI challenges  MSHA's  jurisdiction
because the  fatal  accident occurred outside the entrance to the
Paradise mine on Union Pacific property.  In this regard, TXI 
argues that a finding of MSHA jurisdiction in this case would be 
"tantamount to an award of MSHA jurisdiction  over an offsite 
mainline railroad - a step not contemplated by the  Mine  Act.  
. . ."  (TXI Proposed Findings, p.16).  However, here MSHA is not 
seeking  jurisdiction over  an  offsite  railroad line.  Rather, 
MSHA seeks enforcement authority over a railroad  crossing that 
provides TXI's customers with the exclusive access to  TXI's 
Paradise Mine.  Moreover, TXI is a licensee and lessee of this  
area;  TXI  has  fenced in this area to prevent mine access when 
its mine is closed for business; and TXI has assumed, with 
specified exceptions not relevant here, to  indemnify Union Pacific 
for any liability for any  injury  or death arising out of any 
incident at the railroad crossing.

     Although   the   above  circumstances  are  indicia  of  the
requisite mine operator  responsibility  and control warranting a
finding  of  Mine Act jurisdiction, ultimate  resolution  of  the
jurisdictional question requires application of traditional rules
of statutory construction  that  start  with  a  reading  of  the
language  of the statute.  If a statute is clear and unambiguous,
effect must  be  given  to  its language.  Chevron U.S.A. Inc. v.
Natural Resources Defense Council,  Inc.,  467  U.S.  837  842-43
(1984); Energy West Mining Co. v. FMSHRC, 40 F. 3d 457, 460 (D.C.
Cir. 1994).

     As  a  predicate  for  Mine  Act jurisdiction, the statutory
definition of "a mine" in section 3(h)(1), 30 U.S.C.  802(h)(1),  
is  "broad,"  "sweeping" and  "expansive."   Marshall v. Stoudt's 
Ferry Preparation  Plant Co., 602 F.2d 589, 591-92 (3rd Cir. 1979), 
cert. denied, 444 U.S. 1015 (1980). In this regard, the legislative 
history of the Mine Act clearly states "what is considered to  be  
a mine and to be regulated under this Act [shall be given the 
broadest possibl[e] interpretation, and . . . doubts [shall] be 
resolved  in favor of . . . coverage of the Act."  S. Rep. No. 
95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. On
Labor, Comm. On  Human  Resources, 95th Cong., Legislative History 
of the Federal Mine Safety  and Health Act of 1977, at 602 (1978).

     Turning   to  the  statutory  language,  Section  3(h)(1)(A)
provides that "a  mine"  is, "an area of land from which minerals
are extracted . . . ."  Clearly,  the  Paradise  Plant  is a mine
because  it  is  an  area  of land from which sand and gravel  is
extracted.  Section 3(h)(1)(B)  provides  that "a mine" includes,
"private  ways and roads appurtenant to such  area[s][from  which
minerals are  extracted]."   Without  question, the Union Pacific
railroad   crossing  is  a  "private  way  or   road"   that   is
"appurtenant,"  if  not  an  integral part, of the Paradise Mine.
But for TXI's Paradise Plant,  no  motorists  would be exposed to
the subject Union Pacific railroad crossing.  Surely,  given  the
express  legislative  intent to broadly construe the meaning of a
mine, Congress intended  the Mine Act to protect individuals from
potential hazards that are  incidental to entry into a mine, even
if  the potential hazards are  not  located  on land owned by the
mine operator.

     In  fact,  the Commission has recently recognized  that,  in
appropriate circumstances,  a finding of Mine Act jurisdiction in
cases  where  there  is  a lack of  mine  operator  ownership  is
consistent with established  precedent.   Justis Supply & Machine
Shop, 22 FMSHRC 1292, 1297 (November 2000),  citing  W.  J. Bokus
Industries,  Inc.,  16  FMSHRC  704,  707-08  (April  1994).
In Justis Supply, the Commission noted, there is a jurisdictional
basis, irrespective of ownership, when the cited conditions would
affect  miners.   Id.   Here,  the  conditions  at  the  railroad
crossing   affect   virtually   everyone   entering   the   mine.
Accordingly, the Union Pacific railroad crossing, located at  the
mine   entrance,  is  a  "a  mine"  as  contemplated  by  section
3(h)(1)(B) of the statute, and, as such, the railroad crossing is
subject to Mine Act jurisdiction.

          B.  Imminent Danger

     Imminent  Danger  Order  No.  7887789 was issued pursuant to
section 107(a) of the Mine Act.  The condition cited in Order No.
7887789 as constituting an imminent  danger  was  TXI's "past and
current practice" of not ensuring that vehicles entering the mine
"stop completely at the crossing."  Section 107(a) provides:

          If, upon any inspection or investigation of a
          coal  or  other mine which is subject to this
          act,  an  authorized  representative  of  the
          Secretary  finds   that  an  imminent  danger
          exists, such representative  shall  determine
          the   extent   of   the  area  of  such  mine
          throughout which the danger exists, and issue
          an order requiring the  operator of such mine
          to cause all persons, except  those  referred
          to  in Section 104(c), to be withdrawn  from,
          and to be prohibited from entering, such area
          until  an  authorized  representative  of the
          Secretary  determines  that  such an imminent
          danger and the conditions or practices  which
          caused  such imminent danger no longer exist.
          The  issuance   of   an   order   under  this
          subsection shall not preclude the issuance of
          a citation under Section 104 or the proposing
          of  a  penalty  under section 110.  (Emphasis
          added).

     In Wyoming Fuel Company  , 14 FMSHRC 1282 (August 1992), the
Commission stated the appropriate  analysis  for  determining the
validity of an imminent danger order is whether the preponderance
of the evidence shows ". . . that the condition or  practices, as
observed by the inspectors, could reasonably be expected to cause
death  or  serious  physical  harm,  before  the  conditions   or
practices  could  be eliminated."  14 FMSHRC at 1291.  In Wyoming
Fuel, the Commission  noted  that  there  must  be  a  degree  of
imminence  to  support  a  107(a)  order  noting  that   the word
"imminent"  is  defined  as  "ready  to take place: near at hand:
impending  .  .  .:  hanging  threateningly   over   one's  head:
menacingly near."  Id. at 1290 citing Utah Power & Light Co.,
13 FMSHRC 1617, 1621 (October 1991).

     In view of the potential imminence of danger, the Commission
has  repeatedly  recognized   that  an inspector must be accorded
considerable discretion in determining  whether to issue a 107(a)
withdrawal order because "an inspector must  act with dispatch to
eliminate conditions that create an imminent danger."   14 FMSHRC
at 1291 (citations omitted).  However, although far reaching,  an
inspector's  discretion to issue 107(a) orders is not unfettered.
Rather, the apparent  imminence  of  danger  is a prerequisite to
empowering  the  inspector  with  the broad discretion  to  issue
107(a) withdrawal orders.

     Analyzing whether the requisite  condition  or practice that
poses  an  imminent danger is present requires identification  of
the purported  extremely  hazardous condition or practice.  Here,
the Secretary relies on both the purported practice of failing to
yield  right-of-way at the railroad  crossing,  as  well  as  the
admitted  practice  of  failing to stop completely when no trains
are in sight.

     A motorist's obligation to come to a complete stop at a stop
sign is independent of a motorist's obligation to yield right-of-
way to traffic approaching  an  intersection.   The  flaw  in the
Secretary's case is that she fails to distinguish the practice of
failing  to  yield  the  right-of-way  to  an approaching freight
train, from the practice of treating a stop  sign as a yield sign
by coming to a rolling stop when the railroad  track is deserted.
In relying on the lack of strict stop sign compliance  to support
the imminent danger,  the Secretary equates a motorist's  failure
to  completely  stop  at  a  deserted  railroad  track  as an act
exposing  the  motorist  to  the  possibility  imminent  death or
serious injury.  Obviously, there is an essential element missing
from the Secretary's doomsday scenario - - an approaching train.

     The fact that MSHA inspectors Sisk and Andrews observed only
six to eight vehicles out of approximately 68 vehicles come  to a
complete  stop  illustrates  that these were not reckless drivers
engaging in self-destructive behavior.   On  the  contrary,  they
were doing what people normally do at a deserted intersection - -
ensuring  that  nothing was approaching from either direction and
then proceeding with  caution.   In reaching this conclusion I am
not trivializing the importance of full stops at stop signs under
normal circumstances.  However, the  circumstances  in  this case
are  not normal.  The subject Union Pacific railroad crossing  is
in a remote  area  of  Texas  located  in  an area with unlimited
visibility.

     As  noted above, to support an imminent  danger  order,  the
imminence  of  danger must be "menacingly near."  In this regard,
section 3(j) of  the  Mine Act defines an imminent danger as "the
existence of any condition  or  practice  in a coal or other mine
which  could  reasonably be expected to cause  death  or  serious
physical harm before such condition or  practice  can  be  abated 
. . . ." 30 U.S.C.  802(j) (emphasis added).  The fact that Sisk
and Andrews observed the purported  imminent  danger  for 16 days
from June 20 until July 6, 2000, before Andrews issued   Imminent
Danger  Order  No. 7887789 demonstrates the lack of any impending
threat to safety.

     Finally, the fatal accident had nothing to do with the "past
and current practice"  cited in Imminent Danger Order No. 7887789
of  "failing to stop completely  at  the crossing."  According to
the eyewitness account, the victim tried to beat the train across
the train crossing.  Such isolated conduct  is not evidence of "a
practice" of failing to yield right-of-way to  trains approaching
the railroad crossing.   Moreover, such conduct  is  unrelated to
the  common practice of coming to a rolling stop, rather  than  a
complete  stop,  when  visibility  is  unlimited and the railroad
crossing  unquestionably  is  deserted.    Accordingly,  Imminent
Danger Order
No. 7887789 shall be vacated.








          C.  Enforcement of Right-Of-Way Rules

     104(a)  Citation  No. 7887789 cites a violation  of  section
56.9100(a) that requires  that rules governing right-of-way shall
be established and followed.   In addressing the merits of 104(a)
Citation  No.  7887789, it is important  to  note  that  a  fatal
accident at mine  site is  not  always  attributable  to  a  mine 
operator's violation of  a  mandatory  safety  standard.  ASARCO,  
Inc., 14 FMSHRC 941, 951 (June 1992); Dynatec Mining Corporation, 
20 FMSHRC 1058, 1065 (September 1998) (ALJ Manning).

     Here, the linchpin of the  Secretary's  case  is  the  fatal
accident. In this regard, Citation No. 7887789 alleges: "Traffic 
`right-of-way' rules are not being enforced  by  management  at  
the railroad crossing near the mine entrance. . . . On June 19, 
2000,  one  instance  caused  a fatal injury to a truck driver." 
Thus, the Secretary contends that TXI's  admitted failure to take  
actions  to  ensure  strict compliance with the railroad crossing  
stop  signs  evidences a failure to enforce "right-of-way rules."   
Not  so  fast.   As previously  discussed,  stopping  completely 
at a stop sign, and yielding  to  traffic  in  an  intersection,  
are  separate responsibilities.  After stopping at a stop sign, a
motorist  can still fail to yield the right-of-way by proceeding 
into an intersection into  the  path  of  approaching  vehicles.   
Conversely, a motorist cannot fail to yield to traffic if, as in 
the present case, there is no traffic in sight.

     Thus, to prevail, the Secretary must show by a preponderance
of  the  evidence  that TXI failed to enforce right-of-way rules.
The Secretary cannot  satisfy  her  burden  of  proof  by  simply
bootstrapping an alleged practice of failing to enforce right-of-
way  rules  based  on  an  isolated  accident onto TXI's admitted
failure  to ensure that individuals visiting  the  mine  strictly
complied with  stop  signs  at  a deserted railroad intersection.
Significantly, the Secretary concedes  that  fully stopping under
such circumstances is contrary to human behavior. (Tr. 87-88).

      Although TXI's lack of effort to ensure strict adherence to
the  stop  signs may evidence a technical violation  of   section
56.9100(a) that would be unlikely to result in serious injury, to
support the  cited significant and substantial (S&S) violation of
section 56.9100(a) in Citation No. 7887789, the  Secretary  has 
elected to prove that TXI failed to enforce right-of-way rules, 
and,  that  such  failure somehow contributed to this tragic 
accident.[2]  The Secretary has failed on both fronts.  There is 
no evidence that TXI had  any knowledge that its employees, 
patrons or contractors were failing to yield to oncoming trains. 
In fact, with the exception of this accident, there is no specific
evidence of any motorist failing to yield  right-of-way.  Nor  is  
there any evidence that TXI's failure to ensure strict compliance
with the railroad  crossing stop signs encouraged individuals to 
race oncoming freight trains across the  crossing.  Accordingly, 
Citation No. 7887789 shall be vacated.

     Although  Citation  No.  7887789  has  been  vacated,  I  am
concerned  about  the  previous  incidents  that occurred at this
railroad crossing.  However, in the absence of  specific evidence
concerning the nature of those incidents, there is  an inadequate
basis  for  concluding  that TXI should have been on a heightened
state of awareness, or that  it should otherwise have anticipated
the reckless behavior that contributed to this accident.

          D.  Accident Notification

     Citation  No.  7897041 cites  a  non-S&S  violation  of  the
mandatory standard in  section  50.10.  It is undisputed that TXI
did not notify MSHA of the fatality  until June 20, 2000, the day
after the accident.  Such a delay violates  the  requirements  of
section  50.10  that requires notifying MSHA immediately after an
accident.  While  TXI's  delay  may  have  been  attributable  to
confusion  concerning  whether  the accident was reportable given
the fact that it occurred outside  mine property, the Mine Act is
a strict liability statute.  Wyoming  Fuel Company, 19 FMSHRC 19,
21 (January 1994).  Although TXI could be held liable even in the
absence of negligence, the circumstances of this case reflect, as
alleged in Citation No. 7897041, that,  as  a licensee and lessee
of the accident site, TXI's failure to immediately notify MSHA is
indicative of moderate negligence.  While the  violation  appears
to  be  serious  in  gravity  because  the  purpose  of immediate
notification is to enable MSHA to determine that the hazards that
contributed to  an  accident  no  longer  pose  risks to mine 
personnel,  the Secretary has designated the cited section 50.10  
violation  as non-significant   and  substantial.   Accordingly,  
Citation  No. 7897041 citing a non-S&S  violation  of  section 
50.10  shall be affirmed.

                              ORDER

     Accordingly, IT IS ORDERED that TXI's contest in Docket  No.
CENT  2000-419-RM IS GRANTED, and 104(a)Citation/107(a) Order No.
7887789 IS VACATED.

     IT  IS FURTHER ORDERED that TXI's contest in Docket No. CENT
2001-24-RM IS DENIED, and 104(a) Citation No.7897041 IS AFFIRMED.


                                Jerold Feldman
                                Administrative Law Judge


Distribution:

Michael T.  Heenan,  Esq.,  Heenan,  Althen & Roles, 1110 Vermont
Avenue, N.W., Suite 400, Washington, D.C.   20005-3593 (Certified
Mail)

Stephen  E. Irving, Esq., Susan Meyercord, Esq.,  Office  of  the
Solicitor, U.S. Department of Labor, 525 South Griffin St., Suite
501, Dallas, TX 75202  (Certified Mail)

/hs


**FOOTNOTES**

     [1]:  TXI's  1983  license  agreement,  and  its  1987 lease
agreement   concerning   the  railroad  crossing  were  with  the
Oklahoma-Kansas-Texas Railroad  Company, and the Missouri-Kansas-
Texas Railroad Company, respectively.   While  the  relationships
between  Union Pacific and these railroad companies are  unclear,
apparently  Union Pacific Railroad is bound by the terms of these
agreements.

     [2]: A violation  of a mandatory safety standard is properly
characterized as S&S if it is likely that the  hazard contributed 
to by the violation will result in an event, i.e., an accident, 
resulting in death  or  serious  injury.  U.S. Steel Mining Co., 
6 FMSHRC 1834, 1836 (August 1984).