Cyprus Tonopah Mining Corp.

Plain-English summary

Cyprus Tonopah Mining operated an open-pit molybdenum mine where MSHA cited loose ground, unstable walls, and inadequate benches in the Pushback One pit. The Commission affirmed both underlying violations, including the finding that the mine's bench-maintenance violation was caused by unwarrantable failure. It reversed the unwarrantable-failure finding for the hazardous-ground-condition violation because Cyprus had acted under a good-faith but mistaken belief that its berm work satisfied the requirement. The Commission also held that the citations were not duplicative, could be modified after termination without legal prejudice, and were sufficiently specific. It remanded for recalculation of the penalty for the section 56.3200 violation.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.3200 and 56.3130
• Outcome: Both violations were affirmed, one unwarrantable-failure finding was reversed, and the penalty for that violation was remanded for recalculation.
• Key point: Prior notice and an operator's maintenance practices can support an unwarrantable-failure finding, while a good-faith misunderstanding of abatement requirements can defeat that finding.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CYPRUS TONOPAH MINING
DDATE:
19930322
TTEXT:

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                               March 22, 1993

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 90-202-M
: WEST 90-363-RM
CYPRUS TONOPAH MINING CORP. : WEST 90-364-RM

BEFORE: Holen, Chairman; Backley, Doyle, and Nelson, Commissioners

                                 DECISION

BY THE COMMISSION:

  This consolidated contest and civil penalty proceeding, arising under

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
(1988)(the "Mine Act" or "Act"), involves a dispute between the Secretary of
Labor and Cyprus Tonopah Mining Corp. ("Cyprus") regarding two citations
issued to Cyprus alleging violations of 30 C.F.R. 56.3200 and
56.3130.(Footnote 1) The citations were later modified to allege that the
violations were caused by Cyprus' unwarrantable failure to comply with the
mandatory standards.

1 30 C.F.R. 56.3200, entitled "Correction of hazardous conditions,"
provides:
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.

          30 C.F.R.   56.3130, entitled "Wall, bank, and slope stability,"

provides:
Mining methods shall be used that will maintain
wall, bank, and slope stability in places where
persons work or travel in performing their assigned
tasks. When benching is necessary, the width and
height shall be based on the type of equipment used
for cleaning of benches or for scaling of walls,
banks, and slopes.

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Following an evidentiary hearing, Administrative Law Judge Michael Lasher
found that Cyprus had violated the standards and that the violations were
caused by Cyprus' unwarrantable failure to comply with the standards, but that
they were not significant and substantial ("S&S") in nature. 13 FMSHRC 1523
(September 1991)(ALJ). The judge also concluded that the citations were not
duplicative, and could be modified following their termination. The
Commission granted Cyprus' petition for discretionary review, which challenged
all of these conclusions except the judge's determination that the violations
were not S&S. For the reasons that follow, we affirm the judge's rulings,
except for his determination that Cyprus' violation of section 56.3200 was
caused by its unwarrantable failure, which we reverse.

                                I.

                Factual and Procedural Background

  Cyprus owns and operates an open pit molybdenum mine in Tonopah, Nevada.

The lower pit of the mine, "Pushback One" ("PB1"), is the focus of this
proceeding.

  On February 27, 1990, Arthur Ellis, an inspector from the Department of

Labor's Mine Safety and Health Administration ("MSHA"), conducted a regular
inspection of the mine. Inspector Ellis, accompanied by Mike Curran, Cyprus'
operations supervisor, observed that on the east wall of PB1 there was only
one partial bench "about one quarter of the way from the top ... and no
benches the rest of the way down," and that the bench was partly full of loose
and unconsolidated material.(Footnote 2) Tr. I 16-17, 20. He noticed that
the east wall was rather steep and had a "nose," or protrusion, that
considerably narrowed the middle of the pit floor. He observed that most of
the benches on the west wall of PB1 were covered by loose and unconsolidated
material and were impassable.

  Inspector Ellis also observed a dozer descending into PB1 and was

informed by Mr. Curran and Robert Altamirano, Cyprus' safety manager, that
miners were building a new berm along the base of the west wall because a
previous berm had been filled with loose material that had sloughed from the
wall. Inspector Ellis was told by Curran and Altamirano that material was
continually filling up the benches, and the berm was being built in an attempt
to prevent material from falling onto miners working at the pit bottom. The
inspector was concerned that, if the west wall were disturbed in the process
of building the berm, loosened material would collapse onto the dozer
operator. He suggested that the berm be rebuilt by hauling material into PB1
by truck, rather than by using existing material from PB1. This was
subsequently done.

2 A bench is defined as "a ledge, which ... forms a single level of operation
above which mineral or waste materials are excavated from a contiguous bank or
bench face...." Dictionary of Mining, Mineral, and Related Terms, 96 (1968).

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Later that evening, Inspector Ellis discussed his observations with his
supervisor, Roger Breland, and requested ground control advice from MSHA's
technical support division. The following day, on February 28, Ellis issued
Citation No. 3459560, which alleged an S&S violation of section 56.3200, and
stated:

        There was loose material and rocks on high walls in
        the Push Back One pit. Benches were full and did not
        provide protection from falling material. The walls
        were about 145 ft. high. An access road ran next to
        the west wall and pumps were being utilized to pump
        water at the bottom of the pit. An employee enters
        the area to move and maintain pumps. The area was not
        posted or barricaded to prevent travel alongside the
        high walls.

S-Exh. 2. The citation was terminated on March 2, 1990, after the "entrance
to Push Back One pit was barricaded and posted to prevent entry into the pit."
S-Exh. 2.

  Inspector Ellis also issued Citation No. 3645243 on February 28, which

alleged an S&S violation of section 56.3130, and stated:

        Benches between the 5545 level and the 5400 level in
        the Push Back One had accumulated with materials and
        would not provide an adequate catch bench to protect
        persons working below. An access road ran next to the
        west wall and pumps were being utilized to pump water
        from the bottom of the pit. Employee's [sic] enter
        the area to move and maintain pumps.

S-Exh. 1. The citation also provided that "[a]ll future mining will include
benches that are cleanable and maintainable." S-Exh. 1. On March 2, 1990,
the citation was terminated after mining activity in PB1 was abandoned.

  Inspector Ellis modified both citations on March 1, 1990, prior to their

termination, by adding unwarrantable failure findings, thereby changing the
two 104(a) citations to one citation and one order issued pursuant to section
104(d)(1) of the Mine Act. The citation and order were again modified on
September 5, 1990, to change the number of persons affected by the violations.
(Footnote 3)

  Cyprus subsequently filed notices of contest and also filed a motion for

partial summary judgment, alleging that the September 5 modifications were
improper because they occurred after the citation and order had been
terminated. The judge denied Cyprus' motion, and the matter proceeded to an
evidentiary hearing.

3 The citations were modified on various other occasions for minor or
technical reasons unrelated to the issues presented.

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Following the hearing, the judge affirmed his pretrial ruling on the
post-termination modifications. 13 FMSHRC at 1527. The judge also rejected
Cyprus' allegation that the citations(Footnote 4) were issued for the same
condition in the same area and, thus, were duplicative. 13 FMSHRC at 1549.
The judge reasoned that the requirements of sections 56.3200 and 56.3130, and
the conditions described in the two citations, differed. 13 FMSHRC at 1549-

50. The judge concluded that Cyprus had violated both sections 56.3200 and
    56.3130. 13 FMSHRC at 1550-51. The judge further determined that the
    violations were not S&S but were caused by Cyprus' unwarrantable failure to
    comply with the standards. 13 FMSHRC at 1551-55.

    On review, Cyprus challenges all of the judge's adverse determinations
    and also argues that the judge did not address its claim that the Secretary
    failed to plead violations with requisite particularity.

                                  II.
    
                          Disposition of Issues
    

    A. Violation of section 56.3200

    In concluding that Cyprus violated section 56.3200, the judge found:

          there existed loose rock and material on walls and
          slopes of Pushback 1, which together with full and
          partly full, inadequately maintained, failing benches
          created a hazard to miners working in the narrow pit
          below and traveling along the haul road leading into
          the lower pit area. These hazardous ground conditions
          had not been taken down or corrected, and the area was
          not posted with a warning against entry or otherwise
          barricaded to impede entry....
    

13 FMSHRC at 1550.

  On review, Cyprus argues that the judge's conclusion is not supported by

substantial evidence. Cyprus further contends that the judge erred by
adopting an interpretation of the standard whereby the mere presence of loose
material would constitute a per se violation. Cyprus also contends that the
judge's determination of the existence of a hazard is flawed because he failed
to consider that the west wall sloped to an angle of repose, and because the
factors he relied upon to determine the violation was not S&S could also
support a conclusion that there was no hazard.

  We disagree with Cyprus's arguments. The judge did not interpret the

standard to require a finding of violation whenever loose material was

4 After finding the S&S allegations invalid, the judge modified the citation
and order to section 104(a) citations. Consequently, we refer to the subject
enforcement actions as "citations." See Mettiki Coal Corp., 13 FMSHRC 760,
764 (May 1991); Consolidation Coal Co., 4 FMSHRC 1791, 1794 (October 1982).

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present. Rather, he expressly considered factors in addition to loose
material, stating that a hazard existed due to the "loose rock and material,
filled benches, failing benches, tension cracks, and narrow pit floor." 13
FMSHRC at 1536. While the judge noted the testimony of Cyprus's witnesses
that the west wall had reached an angle of repose, and was stable (See, e.g.,
13 FMSHRC at 1537-38, 1540-41), he credited testimony of the Secretary's
witnesses asserting that material on the west wall had a potential to move
and, in fact, was moving and reaching the pit bottom. 13 FMSHRC at 1535, 1551
n.27.

  Cyprus' further contention that the judge should have considered the

same factors that he utilized in considering whether the violation was S&S to
determine whether there was a hazard is without merit. In establishing that a
violation is S&S, the Secretary must prove that there is a reasonable
likelihood that the hazard contributed to by the violation will result in an
injury. Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). Section 56.3200
requires that operators restrict miners' access to areas where hazardous
conditions exist, whether or not it is likely that the hazard will result in
an injury.

  We also conclude that substantial evidence supports the judge's finding

that ground conditions on the east and west walls and pit floor created a
hazard within the meaning of section 56.3200.(Footnote 5) See Donovan v.
Phelps Dodge Corporation, 709 F.2d 86, 92 (D.C. Cir. 1983). The judge
credited Inspector Ellis' testimony that the benches on the west wall were
full, that there was loose material on the faces, that the loose material
"could come down and get somebody," and that the berm along portions of the
west wall was "filled up." 13 FMSHRC at 1529 n.8 & 1530. In addition, the
judge credited the testimony of David Ropchan, a mining engineer from MSHA's
technical support division who had observed the conditions in PB1 on March 6,
1990, that the west wall was in a "state of distress" in that there was a
partial failure of the wall, resulting in partly or fully covered,
inaccessible and ineffective catch benches. 13 FMSHRC at 1531, 1533. Mr.
Ropchan testified that pieces of loose material, up to several feet in
diameter, existed near the top of the west wall. 13 FMSHRC at 1532-33. He
stated that such conditions were hazardous because they could feed rock onto
the slopes below and allow material to roll into the pit. 13 FMSHRC at 1532.
Ropchan observed that the rough surface of the west wall would allow falling
rock to bounce, become airborne, and assume a "considerable horizontal
velocity." 13 FMSHRC at 1533-34. He explained that such loose material was a
threat to miners and equipment in the pit because the west wall benches would
be unable to contain some falling material, and the west wall stood over a
very narrow travelway. Id. Ropchan testified that large material and
"material coming down with enough energy" could roll over the berm or "blow"
through it. Tr. II 38-39.

  The judge also credited Ropchan's written report, in which he stated

that a berm placed along the west half of the haul road was too close to the

5 Evidence is undisputed that PB1 was not posted or barricaded against entry
and that miners were working in the area. Tr. I 63; Tr. III 15; 13 FMSHRC at
1536.

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wall and too small to "provide sufficient rock fall protection considering the
overall condition" of the west wall. 13 FMSHRC at 1535. Ropchan also stated
in his report that tension cracks existed along the crest of the west
wall.(Footnote 6) 13 FMSHRC at 1534.

  With respect to the east wall, the judge credited Inspector Ellis'

testimony regarding the scarcity of benches and the narrowness of the bottom
of the pit, allowing only limited room for a miner to escape falling rock. 13
FMSHRC at 1529-30; Tr. I 16-17, 20. Ropchan also testified that the east wall
would tend toward greater instability because of its protrusion. Tr. II 85-

86. The judge also credited Ropchan's testimony that the condition of the
    wall posed some hazard to miners working in the narrow bottom of the pit. Tr.
    II 30, 37; 13 FMSHRC at 1531 n.10.

    Cyprus challenges the judge's credibility determinations, arguing that
    MSHA's witnesses failed to investigate the conditions sufficiently, and that
    Cyprus' expert witnesses were better qualified than MSHA's. The Commission
    has recognized that:

        [e]xpert witnesses testify to offer their scientific
        opinions on technical matters to the trier of fact.
        If the opinions of expert witnesses conflict in a
        proceeding, the judge must determine which opinion to
        credit, based on such factors as the credentials of
        the expert and the scientific bases for the expert's
        opinion.
    

Asarco, Inc., 14 FMSHRC 941, 949 (June 1992).

  The judge recognized Ropchan as well as two of Cyprus' witnesses, James

Savely, a senior geological engineer in Cyprus' technical service assistance
group, and Richard Call, the president of a geotechnical consulting firm, as
experts. Tr. II 14; Tr. III 77, 116. The judge noted that, in weighing their
testimony, he would consider such factors as experience, qualifications,
familiarity with the precise conditions, and how convincingly the testimony
was stated. Tr. II 15. The judge credited the testimony of Ropchan and other
MSHA witnesses over that of Cyprus' witnesses because he found it to be more
convincing, reliable, and objective. 13 FMSHRC at 1534, 1546. The judge also
found Ropchan's conclusions regarding the conditions in PB1 to be "consistent
with the general sense of the evidentiary record (including the various
photographic exhibits therein)." 13 FMSHRC at 1534. In addition, Ropchan
testified that he had examined the mine conditions sufficiently to reach his
conclusions (Tr. II 91), and the judge credited this testimony. Furthermore,
the judge noted that the mining conditions observed by Ropchan had remained
materially unchanged from the time of citation. 13 FMSHRC at 1532 n.11.
However, the judge noted that the conditions observed by Dr. Call were

6 Ropchan testified that such cracks are a precursor to slope failure. Tr.
II 28-29.

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different from those in existence of the time of citation. 13 FMSHRC at
1541.(Footnote 7) We find no circumstances in this case warranting the
unusual measure of rejecting the judge's determination that the testimony of
MSHA's expert witnesses should be credited over the testimony of Cyprus'
expert witnesses. See generally Ranger Fuel Corp., 12 FMSHRC 363, 374 (March
1990).

  Therefore, we conclude that substantial evidence supports the judge's

finding that ground conditions existing in PB1 created a hazard within the
meaning of section 56.3200. We affirm the judge's finding that Cyprus
violated section 56.3200.

  B.    Violation of section 56.3130

  In concluding that Cyprus violated section 56.3130, the judge determined

that the use of adequately maintained benches was a necessary part of the
mining method employed in PB1, and that the benches had accumulated rock and
other material and did not serve as adequate catch benches. 13 FMSHRC at
1536, 1550. The judge also found that Cyprus had not otherwise maintained
wall, bank, and slope stability. 13 FMSHRC at 1551 n.27.

  Cyprus argues that the judge's determination is erroneous because the

judge misinterpreted the standard by holding that the "potential requirement
of benches was the paramount requirement" of the standard. C. Br. at 25.
Cyprus maintains that an operator is required to accomplish the purpose of the
standard, that is, provide stable walls, benches and slopes where miners work
or travel, by whatever mining method is appropriate. Cyprus also argues that
the standard requires cleaning and scaling of benches only when the mining
process is initiated. Cyprus further contends that the judge's finding of a
violation of section 56.3130 is not supported by substantial evidence and that
the standard is impermissibly vague.

  Section 56.3130 expressly requires the use of mining methods that

maintain wall, bank and slope stability where persons work or travel. The
standard also requires that "[w]hen benching is necessary, the width and the
height shall be based on the type of equipment used for cleaning of benches or
for scaling...." 30 C.F.R. 56.3130. The standard does not expressly
require benching, nor does it set forth specific parameters for cleaning or
maintaining benches if they are used.

  The preamble to section 56.3130 further explains its application:

              When benches are included in the "mining
        method," there must also be a maintenance system
        selected to prevent the deterioration of the ground
        from creating a fall of ground hazard. When required,

7 The judge explained, however, that the testimony of Mr. Savely and Dr. Call
had more probative value as to whether the violation was S&S, rather than as
to whether Cyprus had violated the standard, because they seemed to concede
the hazard of rock fall, and only gauged its probability of occurrence. 13
FMSHRC at 1542 n.18.

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the benches must be able to serve as catch benches.
MSHA agrees with the commenter who stated that many
factors contribute to the determination of bench width
and height. The standard provides a performance-
oriented approach without restrictions on width and
height of benches, other than those necessitated by
the equipment selected for the maintenance function.

51 Fed. Reg. 36192, 36193 (October 8, 1986). The purpose of the standard is
to require mining methods that will maintain ground stability. The standard
contemplates that benches, when included as part of an operator's mining
method, must function as catch surfaces and must be maintained in order to
prevent fall of ground hazards. Benches, therefore, must be accessible to
maintenance equipment. (Footnote 8)

  Evidence regarding the state of the benches in PB1 and Cyprus' failure

to clean them is probative of the stability of the walls, banks, and slopes in
PB1. The judge concluded that the east and west walls were not competent,
relying upon the failure of the benches, as well as other evidence that the
walls were not stable. As noted above, the judge credited Inspector Ellis'
testimony regarding the lack of space on the east wall benches to catch
material. The judge also credited statements in Ropchan's written report that
the east wall did "not have adequate catch benches to protect against falling
rock in the work and travel areas below." 13 FMSHRC at 1535. Cyprus
acknowledges that it employed benching on its east wall as a method of ground
control and that no consideration was given, when designing the benches, to
making them accessible for maintenance. Tr. II 143; C. Br. at 35.

  With respect to the west wall, the judge determined that benching was a

necessary part of the mining method employed, in part because Cyprus had
originally constructed benches on that wall and had adjusted its double-
benching method to a single-benching method. Cyprus contends that, because it
encountered unexpected problems in the west wall, it had to alter its mining
methods and, on the day of the inspection, benches were no longer necessary
because the wall sloped to an angle of repose and a berm existed along
portions of its base. The record, however, reveals that, although Cyprus
relied upon other methods, it did not abandon benching. As Cyprus
acknowledged, when it adjusted its mining method due to conditions encountered
on the west wall, it inserted a bench at the 5475 foot level and inserted "a
wider than planned bench" on other portions of the west wall. C. Br. at 4,
33.

  The judge credited MSHA witnesses' testimony that the west wall was in a

state of distress in that benches had failed or were partially full of fallen
material rendering some of them quite ineffective, and that a sufficient

8 We disagree with Cyprus' assertion that an operator is required under the
standard to clean benches only upon their initial construction. The standard
contemplates that benches must be cleaned whenever such activity would aid
their ability to catch material, or to prevent ground from deteriorating and
creating a hazard.

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threat existed that the benches would be unable to catch material moving down
the wall. 13 FMSHRC at 1529 n.8, 1532-33. The judge also credited testimony
that material was moving down the wall and had partially filled an existing
berm. 13 FMSHRC at 1535. Cyprus' operations supervisor conceded that some
material from the wall had raveled to the bottom. Tr. III 33-34. In
addition, the judge credited testimony from Ropchan regarding the inadequacy
of the augmentation to the existing berm along portions of the west wall. 13
FMSHRC at 1535. In sum, substantial evidence supports the judge's finding
that the east and west wall were not stable and that the benches were not
maintained to fulfill their function as required by the standard.

  We further agree with the judge that section 56.3130 is not

impermissibly vague. The Commission has previously recognized that, in order
to afford adequate notice, a mandatory safety standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its
application." Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990)
(citations omitted). Section 56.3130 incorporates a "performance-oriented"
approach so that it is "broad enough to apply to the wide variety of
conditions encountered." 51 Fed. Reg. at 36193. The appropriate test in
interpreting and applying such broadly worded standards:

        is not whether the operator had explicit prior notice
        of a specific prohibition or requirement, but whether
        a reasonably prudent person familiar with the mining
        industry and the protective purposes of the standard
        would have recognized the specific prohibition or
        requirement of the standard.

Ideal, 12 FMSHRC at 2416. The judge properly found that a reasonably prudent
person would have recognized that section 56.3130 requires operators to adopt
mining methods that maintain wall, bank, and slope stability, and that
benches, when used, must be maintained so as to aid wall stability.
Accordingly, we affirm the judge's determination that Cyprus violated section
56.3130.

  C.    Whether the violations were caused by Cyprus' unwarrantable
        failure

  In concluding that the violations were unwarrantable, the judge rejected

Cyprus' argument that the condition of the benches justified its failure to
clean them. 13 FMSHRC at 1552. He found that Cyprus never planned to
maintain its benches, and that the failure to clean them created the hazard of
falling rock. Id. In addition, the judge determined that Cyprus' conduct in
these instances was inconsistent with its abatement actions with regard to
previous violations of sections 56.3200 and 56.3130. Id. The judge concluded
that Cyprus':

        failure to maintain and clean its benches was not
        merely due to inadvertence or inattention since it is
        beyond dispute that its management personnel were
        quite aware of the continuity of conditions, [but]

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proceeded intentionally to expose miners on the haul
road and in the very narrow pit despite ineffective
failing catch benches, and the presence of loose rock
and material.

Id.

  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, characterized by inadvertence,'thoughtlessness,' and `inattention'"). Id. The Commission's determination
also was based on the purpose of unwarrantable failure sanctions in the Mine
Act, the Act's legislative history, and judicial precedent. Id.

  Prior to this proceeding, MSHA inspectors had been concerned about the

stability of the high walls in PB1 and had previously issued citations, which
were uncontested, for those conditions. In May 1989, nine months before
Inspector Ellis' inspection, MSHA Inspector Ron Barri had visited the mine, in
response to a miner's complaint about various matters including the condition
of the west wall. On May 31, and June 1, 1989, Inspector Barri issued two
citations that alleged S&S violations of sections 56.3200 and 56.3130. The
section 56.3200 citation stated that there "were large piece[s] of loose
material hanging on the west high wall ... above the ramp" and that the "area
was not posted or barricaded to prevent travel alongside the high wall." S-
Exh. 18. The section 56.3130 citation stated that benches on the south end of
the east wall "had been allowed to accumulate materials and would not provide
an adequate catch bench to protect haul truck traffic below," and that a
"maintenance program for maintaining benches had not been established...." S-
Exh. 19. Mr. Breland (supervisor of Ellis and Barri) had inspected the mine
in June 1989, and held a post-inspection conference regarding the two
citations issued by Inspector Barri. At the meeting, Breland, Cyprus' General
Manager Bill Gibson, Curran, Altamirano, and a miners' representative
discussed the pit walls, overall mining plan, and signs of failure in the west
wall. Breland testified that they discussed the requirements of section
56.3130 and 56.3200 "fairly extensively." Tr. I 111.

  The testimony in the instant proceeding reveals that Cyprus apparently

believed that maintenance of a berm along portions of the west wall put it in
compliance with section 56.3200. In May 1989, when cited for violating
section 56.3200 because of conditions existing on the west wall, Cyprus had
abated the citation by building a berm along the base of the west wall. S-
Exh. 18. Although Supervisory Inspector Breland testified that Cyprus had
been permitted to abate the earlier citation in such a fashion because MSHA
understood that Cyprus was going to lessen the angle of the west wall, Curran
testified that he did not understand that building the berm and lessening the
angle of the west wall were linked. Tr. I 172; Tr. III 30-32. Curran
understood that construction of the berm alone was sufficient to abate the
citation. Tr. III 31-32. The description of the abatement action for the

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May 1989 citation does not indicate that the angle of the west wall had to be
reduced, but states only that "the west high wall in the pit ... has been
barricaded with a large berm along its full length...." S-Exh. 18. Mr.
Gibson also testified that, from the discussions of the closeout conference in
June 1989, he understood that building a berm was sufficient for safe
operation. Tr. II 211-12.

  We also find significant the fact that on the day of Inspector Ellis'

inspection, Cyprus was in the process of constructing a larger berm at the
base of the west wall. The Commission has previously recognized that an
operator's pre-citation efforts in mitigating a violative condition are
relevant in reviewing an unwarrantable failure determination. See, e.g., Utah
Power & Light Co., 11 FMSHRC 1926, 1933 (October 1989).

  Because Cyprus' conduct apparently resulted from a good faith, albeit

mistaken, belief that its actions were in compliance with section 56.3200, we
conclude that substantial evidence does not support the judge's finding that
Cyprus' violation of 56.3200 was caused by its unwarrantable failure. See
generally Utah Power & Light Co., 12 FMSHRC 965, 972 (May 1990).

  The record, however, supports the judge's conclusion that Cyprus'

actions in violation of section 56.3130 were a result of its unwarrantable
failure. The citation issued to Cyprus in June 1989, alleging a violation of
section 56.3130, specifically provided that catch benches in PB1 "had been
allowed to accumulate[] materials and would not provide an adequate catch
bench to protect haul truck traffic below." S-Exh. 19. The citation also
provided that a "maintenance program for maintaining benches had not been
established." S-Exh. 19. In order to abate the citation, Cyprus was required
to clean a bench above a working area on the south wall. With respect to the
close-out conference regarding the citation, Breland testified:

        Also the 3130 I specifically had gone out on several
        of those benches with Mike Curran and my
        superintendent. I talked to him about what was going
        on there. They were or could have been accessed to do
        the bench maintenance that's required as part of the
        standard. However, they were not doing that and had
        not been doing that, and I explained the requirement
        there to keep those benches clear as long as there was
        staff beneath them.

Tr. I 111. Thus, Cyprus had been advised in June 1989, that it was required
to adopt a maintenance program so that benches above where miners worked could
be cleaned when necessary to maintain ground stability. Even after receiving
such notice from MSHA, Cyprus constructed benches that it never intended to
enter for maintenance purposes. Tr. II 111, 146.

  Cyprus' experience with ground stability in PB1 should have put it on

notice that bench maintenance would, most likely, be necessary, and, as
explained above, section 56.3130 requires an operator to maintain ground
stability. The standard contemplates that benches, when used, be accessible
to maintenance equipment. Cyprus continued to use benches in its mining, but

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did not construct them so that they could be maintained. As the judge found,
the benches did not serve their function as catch benches, and the
unmaintained benches contributed to ground instability. 13 FMSHRC at 1550-51.
We conclude that substantial evidence supports the judge's conclusion that
Cyprus' failure to maintain the benches or take other adequate measures to
maintain stability was aggravated conduct. Accordingly, we affirm his finding
that Cyprus' violation of section 56.3130 was caused by its unwarrantable
failure to comply with the standard.

  D.   Whether the citations are duplicative

  Cyprus argues that the citations are duplicative because they address

the same conditions in the same area of the mine. However, the requirements
of sections 56.3200 and 56.3130 are different. Section 56.3130 requires that
an operator use mining methods that maintain wall stability and sets forth
additional requirements if benching is necessary. In contrast, section
56.3200 requires that, if a hazardous ground condition occurs, it be corrected
and entry into the area be restricted until corrective work is completed. The
standards are related in that an operator's failure to mine in a way that
maintains stability may also result in a hazardous condition requiring an
operator to restrict access until the hazardous condition is corrected. As
the Commission has recognized:

         [t]he 1977 Mine Act imposes a duty upon operators to
         comply with all mandatory safety and health standards.
         It does not permit an operator to shield itself from
         liability for a violation of a mandatory safety
         standard simply because the operator violated a
         different, but related, mandatory standard.

El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January 1981). Thus, although
Cyprus' violations may have emanated from the same events, the citations are
not duplicative because the two standards impose separate and distinct duties
upon an operator. Accordingly, we affirm the judge's conclusion that the
citations are not duplicative.

  E.   Modification of the citations following termination

  Cyprus argues that the September 5, 1990, modifications to the citations

changing the number of persons affected by the violations, were improper
because the citations had been terminated. We agree in result with the
judge's conclusion that the subject citations were not improperly modified.

  In Wyoming Fuel Corp., 14 FMSHRC 1282 (August 1992)("WFC"), the

Commission held that, absent legal prejudice to the operator, the Secretary's
modification of a section 104 citation, terminated pursuant to section 104(h)
of the Mine Act, 30 U.S.C. 814(h), was permissible. 14 FMSHRC at 1287-92.
The Commission reasoned that termination of a section 104 citation is an
administrative action of the Secretary that is meant to convey that a
violative condition has been abated and to inform the operator that it will no
longer be subject to a withdrawal order pursuant to section 104(b), 30 U.S.C.
814(b), for failure to abate. 14 FMSHRC at 1289. The Commission drew a

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analogy between the Secretary's modification of a terminated citation or order
and the amendment of a pleading pursuant to Fed. R. Civ. P. 15(a), concluding
that a modification should be permitted unless the operator would be legally
prejudiced by the modification. 14 FMSHRC at 1290.

   Here, Cyprus has offered no evidence that it was prejudiced by the

modifications but only argues that the modifications were improper as a matter
of law. We conclude that Cyprus' challenge to the modifications is without
merit.

  F.   Particularity of citations

  Cyprus argues that the citations failed to plead violations with

sufficient particularity because they do not clearly set forth the time or
location that the allegedly violative conditions existed and, furthermore,
that it was confused as to the proper method of abatement. Cyprus contends
that the judge failed to address this argument. In fact, the judge noted that
Cyprus maintains that "both enforcement documents (the Citation and the Order)
... are impermissibly vague." 13 FMSHRC at 1525 (emphasis added). The judge,
by considering specifically the merits of each alleged violation, implicitly
rejected Cyprus' particularity argument.

  Section 104(a) requires that each "citation shall be in writing and

shall describe with particularity the nature of the violation, including a
reference to the provision of the Act, standard, rule, regulation, or order
alleged to have been violated." The Commission has generally recognized that
this requirement for specificity serves the purpose of allowing the operator
to discern what conditions require abatement, and to adequately prepare for a
hearing on the matter. See, e.g., Mid-Continent Resources,Inc., 11 FMSHRC
505, 510 (April 1989)(citations omitted); Jim Walter Resources, Inc., 1 FMSHRC
1827, 1829 (November 1979); Old Ben Coal Co., 2 FMSHRC 1187, 1190 (June 1980);
Ralph Foster and Sons, 3 FMSHRC 1181 (May 1981).

  We conclude that the citations were sufficiently specific to provide

notice to Cyprus that conditions existed that were alleged to be in violation
of the cited standards and that corrective action was necessary. Moreover,
Cyprus conducted extensive pretrial discovery that provided it with an
opportunity to gain the information necessary to prepare adequately for trial.
See, e.g., Annotation, Construction and Application of Provision of 29 U.S.C.
658(a) that OSHA Citation "shall describe with Particularity the Nature o
the Violation," 48 ALR Fed 466, 6(b)(1980). In addition, the cited
conditions were, in fact, adequately abated. Accordingly, we affirm the
judge's implicit conclusion that the citations met the Act's specificity
requirements.

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III.

                              Conclusion

  For the foregoing reasons, we affirm the judge's findings that Cyprus

violated sections 56.3200 and 56.3130, that Cyprus' violation of section
56.3130 was caused by its unwarrantable failure to comply with the standard,
and that the citations were not duplicative, could properly be modified
following their terminations, and charged violations with sufficient
particularity. We reverse the judge's finding that Cyprus' violation of
section 56.3200 was caused by its unwarrantable failure. Accordingly, we
remand to the judge for recalculation the penalty for Cyprus' violation of
section 56.3200.

                                Arlene Holen, Chairman


                                Richard V. Backley, Commissioner


                                Joyce A. Doyle, Commissioner


                                L. Clair Nelson, Commissioner