Griesmer Stone Company

Plain-English summary

Springfield Underground and Griesmer Stone operated a limestone mine where MSHA alleged hazardous loose-ground conditions in several areas. Judge Roy J. Maurer found that some rock had to be excavated with powerful mechanical equipment and was not loose ground under the cited standard, so three citations or orders were vacated. He found one loose-ground violation, affirmed its significant-and-substantial designation, rejected unwarrantable failure, modified the citation to section 104(a), and assessed a $100 penalty. The decision covers six consolidated dockets and includes contest and civil-penalty proceedings.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 57.3200
• Outcome: Three citations or orders were vacated, one citation was modified to section 104(a), and a $100 penalty was assessed.
• Key point: Material is not necessarily loose ground merely because heavy equipment can remove it, but a condition posing a present hazard to workers can support a violation.

Full text (FMSHRC public release)

[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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