Amax Potash Corporation

Plain-English summary

MSHA cited Amax Potash after inspectors found loose and unsupported roof in several areas of the company's underground potash mine. Judge Michael A. Lasher, Jr. found that the conditions created a hazard, were significant and substantial, and constituted an imminent danger because miners could be exposed to a serious roof fall. He rejected Amax's argument that a drummy roof sound did not establish a hazard and found that the evidence showed loose ground, visible separations, inadequate support, and miner exposure. The judge affirmed the citation and assessed the requested $700 penalty.

Decision snapshot

• Cited provision: 30 C.F.R. § 57.3200
• Outcome: Citation/Order No. 2869304 was affirmed, with a $700 civil penalty.
• Key point: A drummy roof sound is not automatically conclusive, but it can support a loose-ground finding when combined with visible separations, lack of support, the size of the affected areas, and exposure to miners.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. AMAX POTASH
DDATE:
19890324
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 87-72-M
PETITIONER A.C. No. 29-00174-05537

     v.                               Amax Mine & Mill

AMAX POTASH CORPORATION,
RESPONDENT

                          DECISION

Appearances: Rebecca A. Siegel, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Charles C. High, Jr., Esq., Kemp, Smith, Duncan &
Hammond, El Paso, Texas and James L. Dow, Esq.,
Dow and Williams, Carlsbad, New Mexico,
for Respondent.

Before: Judge Lasher

 This matter arises under Section 110(a) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. Section 820(a) (herein
the Act). Petitioner seeks assessment of a penalty ($700) for an
alleged violation cited and described in a "Citation/Order"(FOOTNOTE 1)
dated February 12, 1987, issued under the authority of Sections
104(a) and 107(a) of the Act, respectively, and which
specifically charged Respondent (herein Amax) with an infraction
of 30 C.F.R. 57.3200 (which appears in Subpart B of the codified
regulations entitled "Ground Control", under the subparagraph
pertaining to "Scaling and Support-Surface and Underground" and
which itself is headed "Correction of Hazardous conditions"), to
wit:

      "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 impeded unauthorized
      entry."

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I note initially that 57.3200, in its essential language thrust,
is nearly identical to the provision of 30 C.F.R. which may have
been in effect in February, 1987, i.e. Section 57.3022, which
provides: "Loose ground shall be taken down or adequately
supported before any other work is done." Section 3022 has been
the subject of specific analysis by this Commission in its
landmark decision in Secretary v. Amax Chemical Company, 8 FMSHRC
1146 (1986). Any such question is found moot since it was not
raised at hearing or in briefs.

 The alleged violative conditions were described in Section 8

of the Withdrawal Order as follows:

      Miners were observed in the 7 West Mains pillaring
      section making a scheduled belt-line and power move in
      preparation for further continuous mining of the next
      rows of pillars. After inspecting most of the area
      where miners were present it was determined by this
      inspector that an imminent danger condition existed by
      reason of (practice) a failure of the operator to take
      down or support much loose and drummy top as detected
      throughout this area "before" effecting the belt-line
      and power move that exposed this crew to the following
      (conditions):

      A front-end loader was observed traveling under an area
      of loose and drummy top that measured about 7 feet wide
      by 4 to 5 feet long by 3 to 10 inches thick with
      visible separation and located in the southeast corner
      of the 180/6 intersection adjacent to the belt-line. A
      front-end loader and miners were observed traveling
      under an area of loose top located over the southeast
      corner of the 185/6 intersection and extending about 10
      feet east along the beltline. After this area was
      posted off with warning signs the same front-end loader
      again traveled under this loose and drummy top
      disregarding the signs.

      An area of loose and drummy top was detected in the
      main travelway, 5 entry, along the east perimeter of a
      cut into the back at the 182 intersection. The loose
      top was about 4 to 5 feet long by about 10 to 12 inches
      thick and extended across the width of the
      intersection.

      A loose and drummy area of top was detected in the 185
      break near its intersection with 5 entry along the west
      rib line where a front-end loader had traveled.
      Loose and drummy top was detected in the 186 break and
      7 entry along the southwest corner of the pillar over
      the access to the operators cab of a parked shuttle
      car.

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As other areas of loose and drummy top, unsupported, were found
it became apparent that little effort had been put forth to
secure bad top before using these travelways and accesses to
effect the move. Consequently, miners were withdrawn from the
area (180 break to the pillaring face along the 5, 6, & 7
entries).

 On a five-level "gravity" scale provided on the face of the

Order, the Order was marked "Reasonably Likely". The Order also
indicated that the violation charged was "significant and
substantial".

 Amax contends that the violation charged did not occur, that

the ground (roof) conditions described in the Order did not
create a hazard, that the allegedly violative conditions did not
constitute- or cause- an imminent danger, and that any alleged
violation was not "significant and substantial". Respondent Amax
also makes the contention that a drummy sound obtained by
sounding the roof in its potash mine does not necessarily
indicate a hazard, i.e., the danger of a roof fall.

 Having considered the transcript of testimony, exhibits, and

the briefs submitted by the parties, the position of Petitioner
is found supported in the record and meritorious.

Discussion of Evidence and Findings.

 On February 12, 1987, Lawrence R. Haynes, a Metal-Nonmetal

Mine Inspector for MSHA,(FOOTNOTE 2) while conducting an inspection of
the mine, issued the subject Citation/Order (T. 69). He was
accompanied on this inspection by David Tackett, Respondent's
safety supervisor, and Bruce Yates, an electrician (T. 257, 279).

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On February 12, 1987, at point (area) "A"(FOOTNOTE 3) as depicted on
Joint Exhibit 2, the conditions extant which led Inspector Haynes
to conclude their was "loose" roof or ground, were described by
him as follows:

      "A. Well there were two things that came into play
      there. The first one, the most obvious, was seeing that
      section of roof hanging down diagonally away from the
      roof and hanging down far enough to where it was about
      three inches at its widest point, wide enough where I
      could have stuck my elbow in it. Secondly, by sounding
      the perimeter of that particular slab to gain an
      indication of the size of the loose material in the
      roof." (T. 74-75).

 According to the Inspector the piece of roof that was

hanging down was 3 inches thick at its narrowest and ran to 10
inches thick and the area at Point "A" which he cited was 4 feet
by 5 feet in size (T. 75, 79, 192).

 The areas in which Inspector Haynes determined there existed

hazardous or loose ground were marked and are depicted on Joint
Ex. 2, at Points marked thereon as "A", "B", "C", "D", and "E"
(T. 70, 72-73, 319-321, 325).

 The Inspector's description of Point "A" (referred to in

Joint Ex. 2) in the Citation/Order has been set forth above. His
descriptions of points "B" (T. 204), "C", "D", and "E" (T. 197)
are set forth below:

      B. "An area of loose and drummy top was detected in the
      main travelway, 5 entry, along the east perimeter of a
      cut into the back at the 182 intersection. The loose
      top was about 4 to 5 feet long by about 10 to 12 inches
      thick and extended across the width of the
      intersection."

      C. "A loose and drummy area of top was detected in the
      185 break near its intersection with 5 entry along the
      west rib line where a front-end loader had traveled."
      D. "Loose and drummy top was detected in the 186 break
      and 7 entry along the southwest corner of the pillar
      over the access to the operator cabs of a parked
      shuttle car."

      E. "A front-end loader and miners were observed
      traveling under an area of loose top located over the
      southeast corner of the 185/6 intersection and
      extending about 10 feet east

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along the belt-line. After this area was posted off with warning
signs the same front-end loader again traveled under this loose
and drummy top disregarding the signs."

 At the time of the subject inspection, Amax was in the

"retreat" mode of mining, was retreating from the western end of
7 West Mains toward the shaft and was removing (mining) the
pillars which had been left during the initial development to
support the roof (T. 60-65; Joint Ex. 1; T. 392-396, 416-419).
The actual mining was to be accomplished by two continuous miners
(T. 65, 401, 433-434).

 Inspector Haynes was of the opinion based on his

observations that due to the mode of retreat mining employed
there was weight-shifting rolling over into the specific areas
where he observed the violative conditions (T. 104-105, 215,
216-218, 221-226). There is a greater likelihood of loose ground
(roof) falling where there is a weight shift into that area (T.
106-108, 110).

 Inspector Haynes further described the mining process at the

time as follows:

      "Along the north and south of these 7 West Mains, there
      were still areas where there might have been a little
      bit of solid ground, virgin ground, to be mined into
      and developed out and then pillared anyway to be mined.
      There were also old, first mine, or already developed
      sections where there was ore in the pillars that could
      also be pillared or --. And the 7 West Mains
      themselves, I'm not sure how many pillars wide it
      averaged, you know, from beginning to end; but the idea
      was, and this was the explanation given to me by Danny
      (Desai) was to narrow the 7 West Mains, and whatever
      material was available in the way of other pillars on
      the side, down to approximately 10 pillars wide."

                    XXX   XXX   XXX   XXX

      "Barring any break down of equipment or anything that
      might take place to hamper a regular pulling of these
      pillars, or mining of these pillars, the two continuous
      miners were to begin at the far pillar on each side of
      the middle of the mains; pull that pillar, move to the
      next pillar, moving toward the center of the mains . . .
      and continue on; and just progress in that fashion."

 Inspector Haynes, who used a metal hammer to sound the roof

at the various locations cited (T. 78), testified generally that
beating on the roof with any solid object would normally give an
indication whether there are any separations above the immediate

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roof; that a "fairly good, high ring usually indicates solid
material" and that a "hollow, or kind of a dull or drummy sound
indicates a separation" (T. 75, 76). This was confirmed by MSHA
Supervisory Mine Inspector Sidney Kirk who testified that if a
roof sounds drummy it indicates a separation of strata requiring
something "to be done" (T. 427-428), meaning "its to be supported
or taken down" (T. 428, 432).

 Inspector Haynes gave this explanation concerning the

meaning of such a separation:

      "Any ground, including this potash out here, has a
      certain ability to hold itself up without ever falling,
      forever and ever. However, when a void is opened up, it
      looses some of that strength and ability to hold its
      own self up. Normally, at the stress points where's
      there's going to be weight pulling down and away from
      more competent roof head of it, the weight alone can
      cause the immediate beam of salt above this void to sag
      down and actually separate from the next beam. Again,
      that would normally be at a mud seam or a seam of this
      carnallite. Once that separation has occurred, that is
      the separation I'm referring to that can be detected by
      sounding the ground, by beating on it and listening for
      that hollow, drummy sound. Once that drummy sound is
      detected, again, the separation, you can get pretty
      good indication of its parameters by sounding out away
      from the drummiest point to aid and determine the size
      of ground below that separation." (T. 77).

 Inspector Haynes did not actually observe any miners or

mining activity at or under Point "A". Nevertheless, there was
tire-track evidence that a front-end loader had been in this area
(T. 87). Had the loader, which the Inspector actually observed,
worked under Point "A", it is probable that the miner operating
the same would not have been directly under the area of loose
roof (T. 87. 88. 194). There were roof bolts in the vicinity of
Point "A", but not on the portion that was hanging loose (T. 89).

 Because there was loose roof which was unsupported, the

Inspector considered this area to be hazardous since there
existed the potential of the roof falling which could "easily"
have resulted in a fatality had a person been under it at the
time of the fall (T. 89, 181, 193).

 As with Point "A", Inspector Haynes testified that there

were no bolts holding up the other 4 areas of actual loose roof
he found to exist and designated as points "B", "C", "D" and "E"
on Joint Exhibit 2 (T. 94, 103, 185, 195-198, 206, 212, 214 222,
224, 230). He made his determinations of loose roof (ground) as
to all five points by sounding (T. 198, 223-224). In addition,

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as to Points A, B, C, D, and E, he visually observed a separation
or sloughing of the roof material at the time of his inspection
(T. 75, 96, 103, 104-107, 114-116, 198, 199, 207-210, 212, 214,
379). The separation at Point "B" was relatively slight (T.
207-210). The Inspector considered (1) points "A" through "E" to
be hazardous because of loose ground (T. 181), (2) that the
hazard of falling ground, should such occur, would "definitely"
result in a fatal injury, and (3) that at that point in time when
he determined imminency, "it was highly likely, not just
reasonable" that the hazard could occur (T. 145-149). I find no
probative or reliable basis in this record not to accept this
determination.

 At the time of his inspection, the Inspector himself did not

attempt to bar down any of the loose ground at points A, B, C, D,
or E (T. 138, 189-190) for two reasons, first, that MSHA would
not allow him to, and secondly, because it would have been too
dangerous (T. 139, 218). In the vicinity of Area "E" (which had a
visible separation but not as bad as at Point "A"), the Inspector
observed two signs which said "Keep out, Bad Top" (T. 198-199).
At area "E" the Inspector observed a front-end loader operator
disregard the signs and drive under the hazardous area (T. 115,
199-204). At area "D", Inspector Haynes observes shuttle cars and
he testified that to gain access to the cab of a shuttle car, a
person would have been required to pass "directly underneath the
loose portion of ground" (T. 102-103).

 The Inspector did not see anyone attempt to bar down any of

the subject areas (T. 190).

 It was Inspector Haynes's opinion that where an area of roof

(ground) is sounded and is drummy, even if it is not subject to
be being barred down by a scaling bar, the hazard of a roof fall
exists even though such hazard is not immediate. Thus, he
testified:

      "Q. Well, if you try to bar it down and you can't at
      that moment it's not a fall hazard, right?

      A. It is a fall hazard if it's not going to be
      supported. At some point in time, if it's left like
      that, it's going to fall. Eventually it's going to
      fall." (T. 189).

 Respondent's own training program for employees (Ex. P-2,

pg. 10, T. 286-289, 299) indicates that a drummy sound from the
roof "usually", but not always, indicates a "separated or loose
condition . . . " In instances where a hollow or drummy sound is
given off as the bar is struck against the top, Respondent's
Safety Supervisor conceded that the word "usually" used in its
training Program for employees (Ex. P-2, page 10) means that such
hollow or drummy sound indicates "more often than not" that a
"separated or loose condition exists in the overlying strata or
roof." (Tr. 301). In such instances, Respondent's employees are

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to either (1) bar the area down or (2) bolt it as a precautionary
measure (T. 302). Respondent's safety supervisor also conceded
that at area "E" there was a "loose" top, the size of which
ranged from basketball size to 2 feet by 2 feet (T. 295-296).

 Mr. Tackett also testified that he observed nothing that he

could "visually see" during the inspection walkaround that
indicated that "something was going to fall before it could have
been taken care of in the normal course of mining" (T. 285).

 Although Respondent's witnesses indicated there was bolting

in the vicinity of the five subject areas (T. 321) cited by the
Inspector, that visible cracks were common and not evidence of
looseness, and that there were no hazards, such evidence was
almost entirely broadly stated (T. 301, 326-328, 332-336, 340,

341. 345, 348-350) and not specific(FOOTNOTE 4) enough in terms of
     numbers, distances, etc. to enable determination whether (1) the
     bolting present would have negated or lessened the hazards
     detected by Inspector Haynes, (2) the cracks observed by the
     Inspector were of no consequence, or (3) that the five cited
     areas were not hazardous.

     Suresh Desai, Respondent's Production Superintendent,
     conceded that if an area is drummy and when scaled down pieces

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come down from the separation, such is a "loose roof" area (T.
383-384). He also indicated that if an area is drummy but can't
be barred down, further inspection, including further sounding is
required (T. 384) to determine whether further bolting was
necessary (T. 384-385). Mr. Desai also conceded that whether a
roof bolt was providing some support would involve consideration
of various factors, including the "quality" of material being
supported, whether there was drumminess around a separation,
whether or not the area could be scaled down, and whether or not
air could get in and affect the strata (T. 408-409).

 Mr. Desai, who examined the 5 cited areas after Inspector

issued the withdrawal order on February 12, 1987, was of the
opinion that there were no hazards at Points "A", "B", "C" and
"E". He did not recall seeing Point "D".

 Mr. Desai acknowledged that there was a separation (crack)

at Point "A" (T. 326-328) and that separations indicate that
there is less adhesion of the roof (T. 380). He would not
concede, on cross-examination, however that such reduced adhesion
would "necessarily" increase the likelihood of the roof's falling
(T. 380), explaining:

      "A. Why? Because you have to look at the separation, if
      the bolts installed or any precautionary measures are
      taken in terms of supporting the area with the remnant
      pillars or the bolts or could be a 60 x 60 pillar,
      which would support the area. So you have to use your
      own judgment."
                                 (T. 380-381).

 Respondent's Safety Supervisor, Tackett, conceded that there

was loose top at Point "E" (T. 295). Respondent's witness, Bruce
Yates, an electrician, as above noted, was a member of the
inspection party. He conceded that there was a "crack" at Point
"B", stating ". . . I know we didn't try to bar that one down
because it (was) so thick and there would be no way to pull
something down that heavy I would think" (T. 261).(FOOTNOTE 5)

           Legal Precedents and Conclusions

 The safety standard involved here imposes the continuing

duty on the mine operator to examine ground conditions in its
potash mine and to take down or adequately support any loose
ground. Secretary v. Amax Chemical Corporation, supra. In that
case, the Federal Mine Safety and Health Review Commission

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rejected any per se rule equating drumminess (detected in
sounding the roof) with "loose" ground, stating "The result of a
sounding test is an important factor, but is not necessarily
dispositive." The Commission enumerated other factors to be
considered in making a "loose ground" determination:

      "The size of the drummy area and other possible
      explanations for the drumminess must also be
      considered. Visible fractures, 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,
      are also relevant factors to be considered."

 On the record in this matter, the only plausible explanation

for the drumminess detected is separation of the strata. While
there was bolting in the vicinity of the 5 areas (points)
described by Inspector Haynes in the Citation/Order, there was no
bolting in the drummy areas themselves. With respect to the size
of the areas involved, all were sufficient in weight to have
caused a fatality, i.e., 200 pounds to two tons, had a fall
occurred. In addition, at all five points, visible separations,
cracks of sloughing were detected. This record is relatively
bland as to factors of operating experience, past or current,
which would materially affect the determination of whether a
hazard existed, or whether such was or wasn't an imminent danger.
As noted previously, herein, Respondent's miner training program
provides that a drummy sound usually, but not always, indicates a
separated or loose roof condition.

 In summary, the evidence indicates that sounding at all five

cited locations produced drumminess, there was no bolting or
evidence of other support inside the actual drummy areas, the
size of the drummy areas was sufficient to cause fatalities, and
visible separations, etc., were present. In addition, the record
demonstrates varying degrees of exposure of miners to the danger
of a roof (ground) fall (T. 87-89, 94, 98, 102-103, 114-115,
217). Inspector Kirk pointed out that these areas had not been
barricaded or dangered off (T. 440-441). Accordingly, it is
concluded that, in terms of the standard, ground conditions
existed on February 12, 1987, that created a hazard to persons
that were not taken down or supported before work or travel was
permitted in the affected areas. This constitutes the violation
as charged in the Citation/Order.

Imminent Danger and "Significant and Substantial" Considerations.

 Inspector Haynes testified that he determined an imminent

danger existed on February 12, 1987, because there was a

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"potential for fall of ground", meaning a fall of the roof (T.
69, 70, 89, 122-127). In terms of the immediacy of the threat,
Inspector Haynes gave this testimony:

      "Q. Could and would that -- or would that reasonably be
      likely to happen if you had permitted AMAX to continue
      their operations without first stopping and withdrawing
      the miners and correcting this condition?

      A. Yes. As a matter of fact, it was, in my estimation,
      highly likely that it was going to happen."
                                 (T. 140).
 In addition to the size of the affected areas (the potential

weight of a ground fall), and the exposure of miners thereto,
Inspector Haynes also indicated that his observation that there
was a weight shift occurring which Respondent was not staying
ahead of led to his determination that an imminent danger existed
(T. 122-128). In this connection, the Inspector pointed out that
a roof bolting machine had been out of operation (T. 126-127). It
is noted that Supervisory Inspector Kirk confirmed Inspector
Haynes' opinion that Respondent was not staying ahead of the
weight shift (T. 217). The likelihood of fatal injuries to miners
resulting from a fall(FOOTNOTE 6) has previously been discussed.

 Although Inspector Kirk did not personally observe the cited

conditions on February 12, 1987, he agreed with Inspector Haynes
that an imminent danger existed which was caused by the hazards
described in the Citation/Order (T. 426-427, 439-440).

 The term "imminent danger" is found in both the Federal Coal

Mine Health and Safety Act of 1969 and the Amendments thereto
which comprise the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq., and the definition thereof currently found
in section 3(j) of the 1977 Act is for all intents and purposes
identical in both Acts, to wit:

      "the existence of any condition or practice in a coal
      or other mine(FOOTNOTE 7) which could reasonably be expected
      to cause

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death or serious physical harm before such condition or practice
can be abated." (emphasis added).

 During the enactment of the 1977 Act, the Senate Committee

on Human Resources, made this statement:

      "The Committee disavows any notion that imminent danger
      can be defined in terms of a percentage of probability
      that an accident will happen; rather the concept of
      imminent danger requires an examination of the
      potential of the risk to cause serious physical harm at
      any time. It is the Committee's view that the authority
      under this section is essential to the protection of
      miners and should be construed expansively by
      inspectors and the Commission." (Leg. Hist. of the
      Federal Mine Safety & Health Act of 1977, Act at 38).
      (emphasis added).

 Under the 1977 Act, decisional emphasis seems to be on the

individual factual configurations involved rather than on
discrete tests and formulas for determining imminent danger. See,
for example, Secretary of Labor v. U.S. Steel Corporation, 4
FMSHRC 163 (1982). At this time, the Act's section 3(j)
definition appears to be the primary legal touchstone. Evaluating
the dangerous condition or practice - whether or not a
violation-in the perspective of continued mining operations, as
is required with S & S violations, also appears to be a
prerequisite in determining the validity of an imminent danger
order. There also is a case for treating these as prerequisites:
(1) that the hazard (risk) foreseen must be one reasonably likely
to induce fatalities or injuries of a reasonably serious nature,
and (2) that such hazard or risk have an immediacy to it, that
is, it could come to realization "at any time." See C.D.
Livingston, 8 FMSHRC 1006, 1013-1016 (1986).

 It is concluded on the basis of the findings heretofore made

concerning the types of injuries (fatalities) which would
reasonably be induced by the occurrence of the hazard, and the
testimony relating to both the likelihood and immediacy of the
hazard, that an imminent danger resulted from the violation. It
is also found that this violation was significant and substantial
since it created an imminent danger (T. 140, 145-149, 426-427).
Specifically, I find that the Petitioner has established the 4
elements of a significant and substantial violation, by
establishing (1) the occurrence of an underlying violation of a
mandatory standard, (2) a safety hazard contributed to by such
violation, (3) that there was a reasonable likelihood that the
hazard will result in an injury, and (4) a reasonable likelihood
that such injury would be of a reasonably serious nature. Mathies
Coal Company, 6 FMSHRC 1 (January 1984).

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Penalty Assessment.

 Respondent Amax operates a medium-sized underground potash

mine which at material times had a payroll of approximately 248
employees and an annual tonnage of 2 million production tons (T.
9-11, 36-37, 50). Upon notification of the violation, Respondent
proceeded in good faith to promptly abate the violative
conditions (T. 6). During the pertinent 2-year period preceding
the subject violation, Respondent had a history of 91 prior
violations (T. 14; Ex. P-1). Payment of a penalty at any given
appropriate monetary level will not jeopardize Respondent's
ability to continue in business (T. 7).

 The opinion of Inspector Haynes that only a moderate degree

of negligence was involved is found to be well-reasoned and not
otherwise rebutted in the record. The Inspector explained this
determination in his testimony:

      "Q. Why moderately?

      A. Moderately negligent in that a problem in that area
      in regard to ground and ground movement and ground
      control was known. However, if there's mitigating
      circumstances, then the normal assignment is moderate
      negligence. And the mitigating circumstance in my mind
      was that an attempt was already in progress of getting
      a bolter for the area. By mine plan and an attempt to
      adhere to that mine plan, there was already an attempt
      and an ongoing attempt to stay ahead of the weight
      shifts. Even though there was a failure, the attempt
      was there and that, in my mind, was the mitigating
      circumstance."
                                 (T. 146-147%9B.

 With respect to the gravity of the violation, I find no

basis in this record to discount Inspector Haynes' determination
that a high likelihood existed (T. 146) that the roof fall hazard
he observed on February 12, 1987, could happen, and that if it
did, a fatal injury would result if there were miners exposed to
the hazard. He estimated the weight range of such a fall to be
from 200 to 300 pounds at the least to up to two tons (T.
147-149). It has previously been concluded that the violation in
question caused an imminent danger and that the violation was
significant and substantial. It is concluded that this is a very
serious violation.

 In view of the foregoing mandatory assessment

considerations, the $700 penalty sought by the Petitioner is
found appropriate and is here assessed.

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ORDER

 Citation/Order No. 2869304 is affirmed in all respects.

Respondent shall pay to the Secretary of Labor within 30 days
from the date hereof the sum of $700.00 as and for a civil
penalty.

                           Michael A. Lasher, Jr.
                           Administrative Law Judge

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FOOTNOTES START HERE
~FOOTNOTE_ONE
1. On line 12 of this form where the "type of action" is to
be specified, the issuing Inspector designated his action to be
an "Order" only --- the "Citation" box was left blank.

~FOOTNOTE_TWO
2. Amax attempted to impeach Inspector Haynes, who has been
with MSHA 9 1/2 years, on the basis that he lacked sufficient
experience in and knowledge of potash mines to determine and give
opinion evidence as to the condition of the roof (ground) in the
subject mine. Having carefully considered the record made in this
connection, I conclude that the evidence of Inspector Haynes is
not subject to rejection, nor should the weight to be given it be
detracted from. The Inspector has approximately 16 years mining
experience, and has inspected mines in the so-called Potash Basin
wherein the subject mine is situated since the latter part of
1984. As the Inspector pointed out, his prior experience in other
types of mining has some overall value in its contribution to
this general core of information. Further, his opinion was
supported by Supervisory Inspector Sidney Kirk who also testified
and who has extensive background in potash mining and in the
particular geographic area involved here.

~FOOTNOTE_THREE
3. The alleged condition at point "A" was described in the
Citation/Order as follows:

      "A front-end loader was observed traveling under an

area of loose and drummy top that measured about 7 feet wide by 4
to 5 feet long by 3 to 10 inches thick with visible separation
and located in the southeast corner of the 180/6 intersection
adjacent to the belt-line."

~FOOTNOTE_FOUR
4. The testimony of Respondent's witness, Antonio Campos,
was particularly uncertain and self-contradictory. He
acknowledged, however, that the "company" taught that drumminess
can mean looseness in the roof (T. 247-248).

~FOOTNOTE_FIVE
5. Mr. Yates' memory of events was not particularly clear
(259, 260, 262).

~FOOTNOTE_SIX
6. The Federal Mine Safety and Health Review Commission

Page 16

itself pointed out in Secretary v. Halfway, Inc., 8 FMSHRC 8, at
p. 13 (1986): "Our decisions have stressed the fact that roof
falls remain the leading cause of death in underground mines".

~FOOTNOTE_SEVEN
7. By virtue of Section 102(b)(4) of the 1977 Mine Act the
phrase "or other" was added after the work "coal" to expand the
Act's coverage to all mines.