James River Limestone Company, Inc.

Plain-English summary

MSHA cited James River Limestone after a blast exposed an underground cavern and inspectors found unstable ground and cracks near quarry equipment. Judge George A. Koutras found that trucks and a shovel were operating close enough to the cavern for the ground to give way and create a serious injury hazard. He affirmed the violation of 30 C.F.R. § 56.3200, found the violation significant and substantial and the operator moderately negligent, and assessed a $250 civil penalty. The company had withdrawn miners and equipment from the area and left it out of operation.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: The ground-control citation was affirmed, with a $250 civil penalty.
• Key point: Known but unfilled cavern conditions and nearby heavy equipment supported a finding that the ground-control violation was significant and substantial.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. J. RIVER LIMESTONE CO.
DDATE:
19881227
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. VA 88-22-M
PETITIONER A.C. No. 44-02786-05514
v.
No. 1 Quarry and Mill
JAMES RIVER LIMESTONE
COMPANY, INC.,
RESPONDENT

                               DECISION

Appearances: Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Herbert A. Kelly, Plant Manager, James River Limestone
Company, Inc., Buchanan, Virginia, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a). Petitioner seeks a civil penalty assessment in the amount
of $305 for an alleged violation of mandatory safety standard 30
C.F.R. 56.3200. The respondent filed a timely answer contesting
the alleged violation, and a hearing was convened in Roanoke,
Virginia. The parties filed posthearing arguments, and I have
considered them in my adjudication of this matter.

                                Issues

 The issues presented in this case are (1) whether the

condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

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in section 110(i) of the Act, and (3) whether the violation was
"significant and substantial." Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

           Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977; Pub.L.

95Ä164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

 3. Commission Rules, 29 C.F.R.     2700.1 et seq.

Stipulations

      The parties stipulated to the following (Tr. 8Ä9):

      1. Copies of the contested order/citation, and the
      subsequent modifications, exhibits GÄ1, GÄ2, and GÄ3,
      were issued by an authorized representative of the
      Secretary and properly served upon the respondent.

      2. The presiding judge has jurisdiction in this matter.

      3. The respondent's ability to continue in business
      will not be adversely affected by any civil penalty
      imposed as a result of this proceeding.

      4. The respondent is a medium-size mine operator.

      5. The respondent abated the violation in question in
      good faith by complying with the order/citation.

                             Discussion

 The combined section 107(a)Äsection 104(a) Imminent Danger

Order/Citation No. 2851959, issued by MSHA Inspector Charles E.
Rines, cited a violation of mandatory safety standard 30 C.F.R.
56.30 03. This was subsequently modified to reflect the
redesignation of the cited mandatory safety standard to the
appropriate section which was in effect at the time of the
violation, namely, section 56.3200 (exhibit GÄ3). The cited
condition or practice is as follows:

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This is an order of withdrawal: A drill shot on the #4 bench had
shot into an underground cavern. The ground conditions around the
opening appear to be very unstable. No one shall be allowed to
enter this area on the #4 bench 350 ft. from the original slide
area where the cavern is in the floor until a geologist had
inspected the area along with an authorized representative of the
Secretary of Labor and the area has been determined safe for
mining operations.

Petitioner's Testimony and Evidence

 MSHA Inspector Charles Rines testified that the respondent

operates a limestone quarry which mines dolomite, and he
described the multiple bench drilling and blasting methods used
at the mine. He confirmed that he visited the mine on July 1,
1987, for the purpose of checking into the compliance for several
previously issued orders of withdrawal which had been served on
the respondent to prevent men from working under a slide area
where unstable materials had fallen from the top of the mountain.
He was accompanied by the pit superintendent Richard Gillam.
After viewing the area with Mr. Gillam, Mr. Rines advised him
that in view of the presence of unstable materials on the number
2 and 3 benches, the previous areas affected by the outstanding
order would be extended for an additional 300 feet (Tr. 21Ä29).

 Mr. Rines identified exhibit GÄ1 as a copy of the contested

order/citation which he issued, and he confirmed that he issued
it during the course of his inspection and observation of the
area in question with Mr. Gillam. Mr. Gillam advised him that a
shot had been fired into an underground cavern, exposing a hole
below the number 3 bench. Mr. Rines stated that he observed an
80ÄD shovel working on the number 3 bench, "just to the right" of
the hole. He also observed a truck pull up to within 5 feet of
the hole, and then back up to the shovel where it was loaded with
materials from the toe of the number 3 bench. The truck left to
take the loaded material to the crusher, and Mr. Rines observed
another truck drive in to position itself for loading in the same
manner as the first one. Mr. Rines estimated the weight of the
loaded truck at 54 tons, and the weight of the shovel at 72 tons.
He estimated the distance of the shovel from the hole as 25 feet.
He estimated the location of the hole as 35 feet beneath the top
of the bench, and estimated the dimensions of the hole as 12 feet
by 10 feet. Mr. Rines confirmed that he could not see the hole
from the top of the bench, and that he had to go down

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to the number 4 bench to approach and view it from a position on
the loose rock (Tr. 29Ä39).

 Mr. Rines stated that Mr. Gillam told him that the shot had

been fired several days prior to the inspection, and that the
holes had been drilled by IngersollÄRand with an experimental
drill. Mr. Rines identified several photographs of the cited area
and he described several cracks which he observed in the number 3
bench along the opening and bottom of the bench, and extending
from the hole itself. Mr. Rines could not state the depth of the
hole in question, and he identified the location of another
cavern which had been shot into in the past at the face of the
number 4 bench (Tr. 39Ä46).

 Mr. Rines confirmed that after observing the ground

conditions, he advised Mr. Gillam that he would have to issue an
order withdrawing men from the number 3 bench. Mr. Gillam ordered
the truck and shovel removed from the area, and he left the area
to summon Mr. Kelly, the plant manager. Mr. Rines confirmed that
he explained his reasons for issuing the order to both Mr. Gillam
and Mr. Kelly (Tr. 47Ä48). Mr. Rines also confirmed that he
marked the area affected by his withdrawal order with a can of
red paint on the face of the number 3 and 4 benches (Tr. 49).

 Mr. Rines confirmed that he issued the order because of the

unstable ground conditions in the proximity of the hole in
question. These unstable conditions consisted of visible
horizontal and vertical cracks in the face of the number 3 bench
and the floor of the number 4 bench, and on either side of the
hole. He also observed material which had slid down toward the
opening of the hole itself (Tr. 50Ä51).

 Mr. Rines stated that he cited a violation of mandatory

safety standard section 56.3200, which requires that certain
action be taken when hazardous ground conditions are present
which create a hazard to persons. He confirmed that the hazardous
conditions consisted of the visible cracks which were present in
the wall and floor of the number 3 bench, and the uncertainty of
the extent of the cavern and hole in the number 4 bench. In his
view, these conditions presented a hazard to the trucks and
shovel operating in the proximity of the hole. He was concerned
that the trucks were too close to the edge of the hole, and that
the weight of the trucks may have caused the wall to give way and
break off, thereby causing the trucks to fall into the void. The
shovels was located approximately 55 feet from the hole, and the
trucks were operating within 5 feet of the hole as they drove
into the area, and within 20 feet as they left with their loads.

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The cracks which he observed were closer to the trucks than to
the shovel. Although the shovel was approximately 35 to 40 feet
from the cracks, given the uncertainty of the length and breadth
of the cavern hole under the bench where they were operating, he
was concerned about the shovel as well as the trucks (Tr. 51Ä56).

 Mr. Rines explained his gravity finding of "reasonably

likely" as follows (Tr. 57):

      A. Due to the number of cracks and the close proximity
      that the trucks were coming to those cracks in the
      wall, that if they had continued operating there, it's
      reasonably likely we could have had an accident there.

      Q. Okay. And you say that the likelihood of the
      accident would be the ground giving way underneath the
      trucks?

      A. Yes, sir.

      Q. And you checked here that the injury was likely to
      be fatal. Why did you check fatal?

      A. Well, if that truck -- if the ground gave way, the
      truck was going to fall approximately fifty-five feet
      (55'). And a truck going over the side of a wall, or
      the wall sloughing off with him, could be a fatal
      accident.

      Q. Okay. You checked the number of persons affected as
      being two.

      A. Yes, sir.

      Q. Who would they be?

      A. They would have been the shovel operator and the
      truck driver, himself.

 Mr. Rines stated that he made a finding of "moderate"

negligence because Mr. Gillam conceded that he had known about
the existence of the cavern but had done nothing about it. Mr.
Rines believed that once the underground cavern was detected, and
given the presence of cracks, the area should have been
barricaded or blocked off. Holes could also have been drilled to
determine the extent of the cavern hole opening, and the top of
the number 3 bench could have been bermed.

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Had these measures been taken, the respondent would have been in
compliance with the cited standard (Tr. 59).

 On cross-examination, Mr. Rines confirmed that he did not

speak with any geologists after issuing the violation. He
explained that the truck in question was 5 feet from the edge of
the bench above the hole which was located below the bench, and
he identified the location of the hole by referring to
respondent's photographic exhibit RÄ2 (Tr. 75). He confirmed that
there was no actual hole on the flat surface of the number 3
bench haulageway where the truck was operating, and that the hole
was located at the face of the number 4 bench (Tr. 76). He
reiterated his concern that the area beneath the roadway where
the truck was located could have given way and engulfed the truck
(Tr. 77). He explained the work being performed with the truck
and shovel, and indicated that material was being removed after
the area was drilled and blasted (Tr. 79Ä82). Mr. Rines stated
that he was unaware that any geologists were examining the area
after he issued the violation, and that he next returned to the
mine on August 22, 1988 (Tr. 85).

 Charles B. Vance, MSHA supervisory mine inspector, testified

that the respondent's mine has been under the enforcement
jurisdiction of his office, and that he has visited the mine 15
to 20 times over the past 3 years. He confirmed that he visited
the mine in July, 1987, in the company of MSHA district manager
Mike Trainer, safety specialist Roger McClenta and sub-district
manager Ray Austin. The purpose of the visits was to observe the
ground conditions involving the cavern and slide area in question
(Tr. 90). Mr. Vance confirmed that he visited the mine on July
15, 1987, to examine the cavern area. He identified a copy of a
modification he issued to the citation issued by Inspector Rines
to allow work to correct the hazard noted in his initial order.
The modification made reference to the removal of material from
the floor of the number 3 bench, and the filling of the cavern on
the number 4 bench (Tr. 91). Mr. Vance stated that he had
expected the respondent to blast 10 holes which had been drilled
along the edge of the number 3 bench in order to fill the cavern
and hole with the material blasted from above that location (Tr.
92Ä93).

 Mr. Vance stated that he observed no equipment or work

taking place when he was in the area on July 15th, and the cavern
or hole was still open and unfilled, and nothing had been done to
correct the cited condition. He observed several cracks "all
around that area," and "in and around" the cavern (Tr. 94). He
considered the ground conditions at that time as hazardous to
persons working in the area because there was no

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indication as to the extent of the cavern or how much weight it
would take to break into it, and he believed that the rock could
give way and a vehicle could go over the edge of the bench or
break into the cavern (Tr. 94).

 Mr. Vance confirmed that the visit by Mr. Trainer and Mr.

Austin came after he issued his modification of July 15, 1987,
and since that time the respondent has not requested him or
anyone else in MSHA to further modify the order issued by Mr.
Rines. Mr. Vance also confirmed that no further work has been
done by the respondent in the affected area, and as far as he
knows "it has been left alone" (Tr. 96). He confirmed that the
respondent has the option of either abating the hazardous cited
conditions before continuing any further work in the area, or
simply leaving it alone (Tr. 96).

 On cross-examination, Mr. Vance was of the opinion that the

safest method for addressing the hazard in question would be to
seek the aid of a geologist to survey the cavern area and then
fill it with shot rock, or by blasting the material down into the
hole from the drill holes which were not previously shot (Tr.
96Ä97). Mr. Vance confirmed that he was not with Inspector Rines
when he issued his order on July 1, 1987.

Respondent's Testimony and Evidence

 Herbert A. Kelly, respondent's former plant manager,

testified that he is a professional geologist, and holds a degree
in geology from the South Dakota School of Mines, and a master's
degree in mining engineering from the South Dakota School of
Mines and Technology. He stated that the cited area in question
was not an active bench for quarry production at the time of the
inspection conducted by Mr. Rines. Mr. Kelly explained that the
IngersollÄRand Company had requested permission to test a drill
and the respondent permitted them to do so at the area in
question. The location was selected because "the wall between the
No. 3 bench and the No. 4 bench was pretty ragged. We had what we
call a belly rock hanging out, and it was cracked away in at
least one location. And this historically had been an area of
underground caverns, in this particular corner of the quarry. We
had no idea that one was lurking as close as it was" (Tr. 100).

 Mr. Kelly explained that after the blast holes were drilled,

some of them were shot in order to recover some of the rock. When
the shot was fired, the bottoms of the drill holes broke into the
natural cavern under and beyond the reach of the holes. Mr. Kelly
stated that the area was then

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observed for a day or two by himself, and the quarry and plant
superintendent, and they detected no problem in working on the
number 3 bench with equipment to remove materials which had been
previously shot from the bench above. The work in question "had
nothing to do with this cavern shot, other than the fact that we
would have to go near the top of the bench above it" (Tr. 101).

 Mr. Kelly stated that it is not unusual for quarry trucks to

come close to the edge of a wall, and that usually, a better berm
or big rocks are used to protect equipment from rolling over the
edge to the bench below. He conceded that in the instant case,
"we did not have a very planned arrangement above the top of this
hole" (Tr. 102). Mr. Kelly stated that he detected no cracks on
the face of the number 3 bench or the wall between the number 3
and 4 benches leading into the cavern in question. He believed
the ground conditions were safe for equipment to operate, and by
throwing rocks down the cavern hole, he determined that the
cavern was going down rather than up. He confirmed that work had
been done in the cited bench area for the past 6 years without
breaking into anything, and that this was the first time a cavern
had been discovered in that area (Tr. 103).

 Mr. Kelly stated that he had no objection to the withdrawal

order at the time Mr. Rines informed him that he would issue it.
Mr. Kelly explained that the cited area was not an urgent
operational area, and it was simply "a side job" which was not
holding up production. In weeks following the order, Mr. Kelly
and another company geologist inspected the area and believed
that there was no problem in continuing work on the number 3
bench. In addition, MSHA personnel from Pittsburgh, including a
geologist, inspected the area and agreed that the only way to
resolve the situation was to attempt to fill the cavity by
drilling and blasting material from above, or trucking in
material or bulldozing it in from above to fill the cavity. Mr.
Kelly confirmed that the MSHA personnel did not believed there
was any problem with proceeding in the manner stated in Mr.
Vance's modification of July 15, namely, "to work on the No. 3
bench to fill the cavern down to the No. 4 bench" (Tr. 104).

 Mr. Kelly confirmed that no work has been done to fill the

cavern in question because the area is not critical, and other
pending work took priority. He explained that work had started at
the top of the quarry in an attempt to rectify previous ground
control withdrawal orders by making benches at the very top of
the quarry, and it is impossible to work safely on the benches
below because of falling rocks. The

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respondent intended to fill the cavern, but Mr. Kelly was unaware
of any timetable for this to be done (Tr. 105). Mr. Kelly agreed
that it would be unsafe to bring equipment to the number 4 bench
to try and work around and too close to the cavern, but he saw no
problem in the work being performed on the number 3 bench on July
1, 1987, and the work which would be permitted by Mr. Vance's
modification (Tr. 106).

 Mr. Kelly confirmed that the drill holes were 55 feet deep

and did not reach the cavern. He estimated the thickness of the
material below and between the surface of the number 3 bench
roadway and the cavern area to be at least 55 feet, but agreed
that he had no idea as to the parameters of the cavern and
conceded that depending on the extent of the cavern, and its
direction, the roadway could be undermined. He confirmed that
caverns are natural occurrences in limestone mines (Tr. 108).

 Mr. Kelly stated that he objected to the civil penalty

assessment points for negligence and lack of good faith
abatement, and he believed that the respondent had a good
relationship with the inspectors and responded quickly to their
requests (Tr. 109). He also stated that while he had "no quarrel"
with the withdrawal order issued by Mr. Rines, he did not believe
that fines and "bad marks on our record for negligence and lack
of good faith" were deserved (Tr. 122). When asked whether he
agreed that a hazard existed, Mr. Kelly responded "we agreed to
get another look from experts on the outside. We recognize that
there's a problem there with the caverns. We don't pretend to
know it all, about them. And since it was not holding up our
operation, we were certainly willing to wait for somebody to come
in and check it out" (Tr. 122).

 Mr. Kelly confirmed that he was aware of the existence of

the cavern hole prior to July 1, 1987, when Mr. Rines came to the
mine, and that it had been exposed from the experimental drilling
which was taking place to shoot down the crack and "belly rock"
which posed a hazard to a shovel and loader working below. Mr.
Kelly also confirmed that he was aware of the fact that a network
of caverns were present in that area of the quarry, but he was
not aware that the cavern in question was so near to the area
where drilling would be taking place. Previous caverns which have
been exposed have been filled with rock (Tr. 124).

 Mr. Kelly confirmed that his contacts with MSHA's technical

personnel came after the order and modification were issued by
Mr. Rines and Mr. Vance, and that he requested their

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assistance in order to obtain an outside opinion. Although Mr.
Kelly agreed that drilling a test hole from the number 3 bench to
determine the extent of the cavern was a good idea, he stated
that this was never suggested by any of the MSHA people (Tr.
116Ä117). During this period of time, no work was being performed
on the bench and nothing further was done (Tr. 117).

 On cross-examination, Mr. Kelly confirmed that there are a

number of holes in the face of the pit which have not been filled
in, and that at the location next to the shot hole, there was no
berm which was placed there intentionally (Tr. 125). He confirmed
that he walked and observed the area several times after the
shots were shot through to the cavern, and saw no significant
cracks which penetrated the rock to any depth. He confirmed that
the equipment was moved to the cited location approximately 4
hours before the order was issued (Tr. 127). He also confirmed
that in the past, there was another location where machinery and
miners were working within 15 feet of a cavern which had been
bridged over, and where the thickness of the pillar was about 15
feet. However, he stated that after "we worked that for a while,
we backed off from it. We scared ourselves" (Tr. 128).

 Inspector Vance was recalled, and he identified exhibit

GÄ11, as a photograph of the cavern in question which he made on
July 15, 1987, when he modified Mr. Rines' order, and he
identified the area where work would be permitted to continue
pursuant to his modification in order to fill the cavern (Tr.
133Ä136). Mr. Vance stated that Mr. Trainer and Mr. Austin never
told him that it was safe to operate machinery on the floor of
the number 3 bench in the area of the cavern, and that the matter
was not discussed. In Mr. Vance's opinion, proper blasting and
filling should have been done to fill the hole (Tr. 137). He
believed that this could have been done from a good distance away
from the hole, or from the next bench above, or from blasting the
holes which had already been drilled (Tr. 138). Mr. Kelly stated
that this was tried, but that the holes were blocked off and
could not be opened (Tr. 138).

Petitioner's Arguments

 During oral argument at the hearing, petitioner's counsel

argued that the evidence establishes that a hazardous ground
condition existed on July 1, 1987, and that under the
circumstances, the order issued by Inspector Rines was justified
and that a violation of section 56.3200 has been established.
Counsel pointed out that Mr. Kelly conceded that he had no

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knowledge of the extent of the cavern which had been exposed by
prior drilling and blasting, and that men and equipment were
working on the bench area above the location of the exposed
cavern. Although Mr. Kelly further conceded that he had observed
ground cracks which he believed were not significant, counsel
pointed out that the cracks were not probed to determine whether
they were surface or sub-surface cracks. Conceding that Mr. Kelly
kept the area under observation after the cavern was exposed,
since he was a trained geologist, counsel suggested that Mr.
Kelly should have taken further steps to address the hazardous
ground conditions, but that nothing was done other than to throw
some rocks into the hole in an attempt to determine its depth and
breadth (Tr. 139Ä144). Counsel believed that once the cavern was
discovered, the respondent had an obligation to do something
about it before sending men back in for normal operations (Tr.
149).

 Petitioner's counsel argued further that a reasonable

interpretation of section 56.3200 would lead one to conclude that
the existence of surface ground cracks, coupled with an exposed
cavern hole, the extent and condition of which are unknown,
constituted a hazard to the truck and shovel operators working on
the bench above the cavern. Counsel asserted that the respondent
had a duty to at least determine the extent of the cavern or to
fill it up, and that drilling to determine the extent, thickness,
and integrity of the ground above the location of the cavern
would have been the kind of action expected by MSHA to address
the hazard. Counsel also suggested that the respondent could have
called in MSHA after such drilling for a determination as to
whether or not its efforts were sufficient (Tr. 147).

 In its posthearing brief, petitioner's counsel reiterates

his arguments made at the hearing, and concludes that the hazard
presented by the cavern hole and the surrounding ground
conditions where work was taking place at the time of the
inspection by Inspector Rines posed a danger and risk of injury
to the miners working on the number 3 bench. Conceding that the
term "hazard" is not further defined by the Act or MSHA's
standards, counsel cites the dictionary definitions of the term
as found in Black's Law Dictionary, Pg. 647 (rev. 5th ed. 1979),
and Webster's Ninth New Collegiate Dictionary, Pg. 557 (1986),
which define the term as "a risk or peril, assumed or involved; a
danger of risk lurking in a situation which by chance or fortuity
develops into an active agency or harm; a source of danger; a
chance event." Counsel asserts that these definitions are
consistent with the intent and purpose of the standards found in
30 C.F.R. Part 56, namely, the "protection of life, the promotion
of health and safety,

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and the prevention of accidents." Counsel also points out that
the rulemaking history concerning the promulgation of section
56.3200, reflects an intention that the standard have broad
application and would apply wherever a fall of ground hazard is
present.

 Counsel asserts that the respondent violated section

56.3200, by permitting miners to operate heavy equipment in the
vicinity of the cavern or hole, the extent of which was unknown,
but which it knew existed beneath the area where the work was
being performed. Counsel concludes that this conduct by the
respondent violated the standard because any ground condition
which creates a risk of injury to a miner must be taken down or
supported before miners resume work in the vicinity of that
ground condition.

Respondent's Arguments

 In support of his belief that the cited area did not pose a

hazard, Mr. Kelly relies on the fact that Inspector Vance's
modification to the order issued by Inspector Rines allowed entry
to the cited area for the purpose of removing materials from the
floor of the number 3 bench to fill the cavern on the number 4
bench. Mr. Kelly asserted that the modification indicated to him
that without doing anything else, work could safely proceed in
the cited number 3 bench area to excavate materials in an attempt
to fill the cavern hole below. Since this permitted excavation
work was precisely what was being done on July 1, 1987, when work
was stopped by the withdrawal order issued by Inspector Rines,
Mr. Kelly did not believe that a hazard existed on that day (Tr.
117Ä118). Mr. Kelly advanced this same argument when he stated as
follows in his posthearing argument filed in this case:

           The respondent requests that the monetary penalty
      assessment, penalty points for negligence, penalty
      points for lack of good faith and the citation on our
      record with MSHA should all be rescinded. We followed
      the inspector's instructions promptly, courteously and
      explicitly when he ordered us to withdraw from the
      area. We had other MSHA officials visit the site as
      required. Two weeks later MSHA modified the withdrawal
      order to permit us to return to work at the same
      location under the same conditions. The modification of
      the order makes me believe that the alleged safety
      hazard was not serious enough to be citable in the
      first place.

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Findings and Conclusions

Fact of Violation

 The respondent is charged with an alleged violation of

mandatory safety standard 30 C.F.R. 56.3200, which 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 respondent's position with respect to the existence of

any hazardous ground conditions rests on Mr. Kelly's argument
that the modified order issued by Inspector Vance allowed work to
continue in the very same area which Inspector Rines determined
was hazardous. Mr. Kelly also believed that there was sufficient
ground support and stability between the two benches in question
to allow the trucks and shovel to operate without posing a hazard
to miners or equipment.

 Although the two actions taken by the inspectors appear to

be contradictory and lend some support to Mr. Kelly's argument, I
take note of Mr. Vance's explanation concerning the area which he
had in mind when he modified the order to allow work to proceed
to address the hazardous ground conditions. I also take note of
the fact that Mr. Vance's modification is qualified and
conditional in that it allowed work to the limit of the area
previously sprayed in red paint by Mr. Rines. Taken in context, I
cannot conclude that Mr. Vance's modification per se supports a
reasonable inference that the ground conditions which he and Mr.
Rines believed were hazardous never existed. In my view, any
determination as to whether or not any hazardous conditions were
present at the time the order/citation was issued by Mr. Rines
must be made on the basis of an evaluation of all of the facts
and evidence available to Mr. Rines when he made his evaluation
of the ground conditions and came to the conclusion that they
presented a hazard to miners while they were engaged in the
excavation work which was taking place at that time.

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Although Inspector Rines made reference to a drill shot on the
No. 4 bench in his order, he clarified this by confirming that
the violation did not directly involve the number 4 bench because
it was blocked off by stored materials and there was no access
into the area by any equipment, and that his reference to the
number 4 bench was intended to refer to a production shot on the
number 4 bench if it were to be mined (Tr. 114Ä115). Mr. Kelly
agreed that Mr. Rines was concerned that the ground on the number
3 bench could give way to the cavern below, and his belief of the
existence of a hazard because of a possible vertical drop of
equipment caused by the edge of the bench cracking and coming
down from the weight of the equipment operating over the cavern
hole (Tr. 113).

 The evidence in this case reflects that Inspector Rines

issued the withdrawal order/citation on July 1, 1987, after
observing the exposed cavern and cracks in the floor of the
number 3 bench and the face of the number 4 bench. Coupled with
the uncertainty as to the extent of the cavern or hole which had
been exposed by prior blasting and drilling, Mr. Rines concluded
that the ground conditions where trucks and a shovel were engaged
in the excavation and removal of materials were such as to create
a hazard in that the weight of the equipment could have caused
the floor of the number 3 bench to give way beneath the trucks
and shovel. Two weeks later, on July 15, 1987, Inspector Vance
viewed the same ground conditions, and he observed cracks in the
floor of the number 3 bench near the shot hole, and cracks in the
immediate vicinity in and around the hole. Mr. Vance also
believed that the ground conditions he observed presented a
hazard in that the rock and material could give way, causing a
vehicle to go into the cavern.

 Mr. Kelly confirmed that he had no quarrel with the

withdrawal order issued by Inspector Rines. Mr. Kelly confirmed
that the quarry area in question had a history of underground
caverns, and that the particular location which was cited by Mr.
Rines was selected for drilling and blasting because it had
"bellied out" with hanging rock, was cracked in at least one
location, and that the wall between the number 3 and 4 benches
was "pretty ragged." Mr. Kelly conceded that these conditions
posed a hazard to miners and equipment working below. He also
alluded to a prior incident where equipment and miners were
withdrawn from a working area over a cavern with a pillar
thickness of 15 feet because "we scared ourselves." Mr. Kelly
also confirmed that caverns may vary from inches wide to 100 feet
wide, and he conceded that no drilling was done to determine the
direction or extent of the cavern in question, and that in the
event it extended back under the

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number 3 bench, the roadway used by the truck and shovel could be
undermined by the cavity. Although Mr. Kelly saw no problem with
working on the number 3 bench, he agreed that it would be unsafe
to bring in equipment to try and work around and too close to the
cavern.

 After careful consideration of all of the facts in this

case, I conclude and find that the petitioner has established by
a preponderance of all of the evidence that the ground conditions
observed by Inspector Rines were hazardous and presented a risk
and danger to the miners who were performing work in the cited
area. Although the respondent was aware of the hazard presented
by the cavern which had previously been exposed in the course of
drilling and blasting to excavate and remove materials from the
area, it simply kept the area under observation and took no
action to fill the cavern or take down and support the rock and
materials in the affected area. Under the circumstances, I
conclude and find that a violation of section 56.3200, has been
established, and the citation IS AFFIRMED.

Significant and Substantial Violation

 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)(1). 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 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3Ä4 (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

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in question will be of a reasonably serious nature.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, 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, 1574Ä75
      (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 I conclude and find that the hazardous ground conditions,

including the unknown extent of the cavern hole beneath the bench
where men and equipment were working, presented a danger of the
ground giving way under the weight of the equipment. In the event
this had occurred, I believe it would be reasonably likely that
the miners working in the area would have suffered injuries or a
reasonable serious nature. Under the circumstances, I agree with
the inspector's "significant and substantial" finding, and IT IS
AFFIRMED.

History of Prior Violations

 An MSHA computer print-out reflects that for the period July

1, 1985 through June 30, 1987, the respondent paid civil penalty
assessments in the amount of $570 for 10 section 104(a)
citations, seven of which are $20 "single penalty" assessments. I
take note of the fact that none of the prior citations are for
violations of the safety standard cited in this case, or for any
ground control violations.

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Inspector Rines was of the opinion that the respondent's
compliance record was "a little bit higher than normal" as
compared to quarries of similar size. In addition, he stated that
the respondent has had chronic ground control problems which have
been of concern to MSHA, and that several ground control imminent
danger orders have been issued, terminated, or are still
outstanding at the quarry. Mr. Rines believed that the
respondent's ground control practices were poor, and he confirmed
that the two outstanding imminent danger orders were issued in
1984, but that no active mining was taking place in those areas.
Mr. Rines explained that a previous slide caused by blasting and
drilling close to the highwall resulted in some of the material
sliding into the quarry, and that MSHA has been on the property
periodically attempting to control the overburden so that the
quarry may be made safe (Tr. 60Ä70).

 Although petitioner's counsel stated that Inspector Rines

believed that the respondent had a "poor attitude" in connection
with ground control, I find no credible evidence to support any
such conclusion. Further, even though the respondent may have
been served with prior imminent danger orders, some of which may
be outstanding, this does not per se establish a "poor attitude"
with respect to ground control. Absent any facts or evidence to
the contrary, I cannot conclude that the respondent has failed to
comply with any MSHA orders or directives, nor can I conclude
that the record in this case supports a finding that the
respondent's compliance record with respect to its paid history
of assessed civil penalties is such as to warrant any additional
increase in the civil penalty assessment which has been made for
the violation in question.

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business

 The parties stipulated that the respondent is a medium-size

mine operator and that the civil penalty assessment made in this
case will not adversely affect its ability to continue in
business. I adopt these stipulations as my findings and
conclusions on these issues.

Gravity

 On the basis of my findings and conclusions affirming the

"significant and substantial" findings made by Inspector Rines, I
conclude and find that the violation in question was serious. The
unstable ground conditions presented a hazard to both the miners
and equipment working in the cited bench area.

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Negligence

 Inspector Rines made a finding of "moderate" negligence, and

he testified that "their negligence wasn't all that high. They
just hadn't done anything." The evidence establishes that the
respondent was aware of the cavern which had been exposed as a
result of prior drilling and blasting which was done in an effort
to take down part of the bench wall which had cracked and
"bellied out." Although Mr. Kelly confirmed that he was aware of
the cavern and had inspected it and kept it under observation
prior to the inspection by Mr. Rines, no particular action was
taken to fill the hole or to determine its extent, and the area
was not barricaded or otherwise secured against entry. Under the
circumstances, I conclude and find that the violation resulted
from the respondent's failure to exercise reasonable care, and
the inspector's negligence finding is affirmed.

Good Faith Abatement

 The record reflects that the cited conditions have not been

corrected, and that the contested order is still "outstanding."
The respondent has apparently opted to leave the affected area
and continue its mining operations elsewhere in the quarry. The
petitioner has stipulated that the respondent acted in good faith
by immediately withdrawing the miners and equipment from the
cited area, and I find no evidence that the respondent has been
uncooperative with MSHA in attempting to address the hazardous
ground conditions in question. Mr. Kelly testified that in
compliance with Inspector Rines' order, the respondent requested
assistance from MSHA's technical support personnel, and
petitioner's counsel agreed that the unstable ground conditions
in the area of the cavern presented a difficult situation in that
any attempts to go back into the area to evaluate the ground
conditions, including the filling of the cavern hole, would in
itself present a hazard and danger (Tr. 150, 154). I find no
evidence that the respondent has ever attempted to place men or
equipment back to work in the area which has been withdrawn.

 Petitioner's counsel agreed that the respondent withdrew its

miners as soon as the order was issued and that the designated
danger area has in effect been dangered or marked off and has
remained so to the present. Counsel conceded that once this was
done, "the violation ceased to exist," and he could offer no
explanation as to why the respondent received "negative" civil
penalty assessment points with respect to the issue of good faith
(Tr. 109Ä112). Under all of the aforesaid

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circumstances, I conclude and find that the respondent acted in
good faith once the order/citation was issued, and I have taken
this into account in the civil penalty assessment which I have
made for the violation in question.

                    Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $250 is reasonable and appropriate for the violation
which has been affirmed in this case.

                             ORDER

 The respondent IS ORDERED to pay a civil penalty in the

amount of $250 for a violation of mandatory safety standard 30
C.F.R. 56.3200, and payment is to be made to MSHA within thirty
(30) days of the date of this decision and order. Upon receipt of
payment, this proceeding is dismissed.

                             George A. Koutras
                             Administrative Law Judge