Marion County Limestone Company, Ltd.

Plain-English summary

Marion County Limestone operated a portable limestone plant where a quarry foreman stood on an operating jaw crusher and used a sledge hammer to break a lodged rock. The judge found that the foreman was not wearing a safety belt or line, was exposed to falling or sliding material, and was performing secondary breakage from a dangerous position. The judge affirmed the three violations and their significant-and-substantial findings, while considering the operator's prompt abatement, safety-conscious history, and lack of prior knowledge in setting penalties. Civil penalties of $350, $175, and $200 were assessed, for a total of $725.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.15005, 56.16002(a)(1), and 56.3400
• Outcome: The combined order and citation were affirmed, with civil penalties totaling $725.
• Key point: An experienced foreman's unsafe position on an operating crusher supported the violations and significant-and-substantial findings even though the operator promptly abated the conditions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MARION COUNTY LIMESTONE CO.
DDATE:
19881208
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-77-M
PETITIONER A.C. No. 13-01953-05504
v.
Portable Plant No. 1 Mine
MARION COUNTY LIMESTONE
COMPANY, LTD.,
RESPONDENT

                               DECISION

Appearances: Margaret A. Miller, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado, for the Petitioner;
James H. Dingeman, President, Marion County
Limestone Co., Pella, Iowa, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed 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). The petitioner seeks a civil penalty
assessment of $500 for an alleged violation of mandatory safety
standard 30 C.F.R. 56.15005; an assessment of $400 for an
alleged violation of safety standard 30 C.F.R. 56.16002(a)(1);
and an assessment of $500 for an alleged violation of safety
standard 30 C.F.R. 56.3400. All of the alleged violations were
cited in a combined section 107(a) Imminent Danger Order and
section 104(a) "S & S" Citation No. 3055739, served on the
respondent by an MSHA inspector on October 29, 1987.

 The respondent filed a timely answer and a hearing was held

in Des Moines, Iowa. The parties waived the filing of any written
posthearing arguments, and I have considered their oral arguments
made on the record during the course of the hearing in my
adjudication of this matter.

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Issues

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

conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act; and (3) whether the violations were
"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 (Joint Exhibit No.

1):

              1. Respondent is engaged in crushing and
         selling of limestone in the United States, and
         its mining operations affect interstate commerce.

              2. Respondent is the owner and operator of
         the Portable Plant No. 1, MSHA ID. No. L 09154.

              3. Respondent 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 order/citation was properly served
         by a duly authorized representative of the Secretary
         upon an agent of the respondent on the date and place
         stated therein, and may be

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admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

           6. The exhibits to be offered by the respondent
      and the petitioner are stipulated to be authentic but
      no stipulation is made as to their relevance or the truth
      of the matters asserted therein.

           7. The respondent demonstrated good faith in
      abating the violations.

           8. Respondent is a medium-size mine operator
      with 13,607 tons of production in 1987.

           9. The certified copy of the MSHA Assessed
      Violations History, marked as Exhibit PÄ1, accurately
      reflects the history of the mine for the two years
      prior to the date of the order/citation.

                           Discussion

 The combined section 107(a) Imminent Danger Order and

section 104(a) "S & S" Citation No. 3055739, issued on October
29, 1987, by Inspector Dennis A. Heater, states as follows:

           The crusher operator was observed standing with one
      foot on the vibrating jaw crusher with the jaw running.
      The operator was attempting to break an oversized rock
      which was lodged in the jaw opening with a sledge
      hammer. If the operator should slip or lose his balance
      he could fall into the crusher jaws. The operator was
      directly above the jaw opening. The opening measured
      approximately 4 foot wide and could accommodate rocks
      approximately 2 foot in diameter. The crusher reduced
      rock to approximately 5 inches diameter. This order is
      to stop this practice immediately.

           The employee did not have the aid of a safety belt or
      line (56.15005). Loose material on the pan feeder above
      him could fall and strike the operator while in this
      area (56.16002, 1) (sic).

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The operator was placing himself in a very bad position
(56.3400). This jaw crusher can only be shut down from a lower
level. The practice now established, until the feasibility of
obtaining a back hoe or secondary breaking hammer can be
determined, will be to shut the pan feeder and the jaw crusher
down, trim any loose material from the edge of the pan feeder and
fill in the jaw crusher opening with this material. The operator
will then attempt to break the oversize rock with a sledge hammer
or remove it with the aid of a chain and back hoe.

 The order/citation was terminated by Inspector Heater on

November 10, 1987, and the termination notice states as follows:

      The company has established a written policy along with
      the verbal policy issued at the time of the order. The
      written policy explains procedure for working around
      the jaw crushers not at all while the crusher is in
      operation. If an object becomes entangled in the jaw
      crusher, the jaw is to be shut down and then the object
      is to be removed. Letter attached.

Petitioner's Testimony and Evidence

 MSHA Inspector Dennis A. Heater testified as to his

experience and training, and he confirmed that he issued the
combined imminent danger order and citation during the course of
a regular inspection of the respondent's limestone mining
operation. He explained the mining and crushing procedures
performed at the mine and plant. He confirmed that he issued the
order and citation after observing quarry foreman Clint Geery
standing on, and straddling the jaw crusher hopper using a sledge
hammer to break up a rock which had lodged at the bottom of the
hopper at the opening of the jaw crusher. The crusher was in
operation, and Mr. Geery had one foot on the vibrating device.
The pan feeder, which dumped rock materials into the jaw crusher
hopper, was located approximately 3 feet above the hopper opening
where Mr. Geery was standing, and the pan feeder was shut down
and was not in operation.

 Mr. Heater confirmed that Mr. Geery was not wearing a safety

belt or line and was not "tied off" while standing over the
hopper opening. In view of the fact that the crusher was

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in operation and Mr. Geery's foot was resting on the vibrating
machine, Mr. Heater was concerned that Mr. Geery would fall into
the crusher if he slipped while attempting to break up the rock
with the sledge hammer. Mr. Heater was also concerned that the
unconsolidated rock materials in the pan feeder could have moved
and struck Mr. Gerry, knocking him into the crusher opening over
which he was standing.

 Mr. Heater believed that it was highly likely that a fatal

accident would have occurred had Mr. Geery continued the practice
of attempting to break up or free the rock while standing in such
a precarious position. Mr. Heater stated that in order to
preclude distracting Mr. Geery, he did not yell at him to come
down. He simply placed his hand on Mr. Geery's shoulder and moved
him back and away from his position on the crusher hopper.

 Mr. Heater confirmed that he discussed the matter with Mr.

Geery, and that Mr. Geery informed him that he was attempting to
break up the rock because it would not feed through the crusher,
and that the method he was using was the only available practical
method without shutting down the crusher and causing delays in
production. Mr. Geery admitted that he had on previous occasions
used the same method in attempting to break up rocks which became
lodged in the jaw crusher opening.

 Mr. Heater confirmed that he issued the imminent danger

order in order to prevent Mr. Geery from continuing the practice
of standing on an operating crusher opening while attempting to
break up or free rock which was stuck over the jaw crushing
opening without wearing a safety belt or being tied off to
prevent him from falling into the jaw crusher opening located
approximately 4 to 5 feet below where Mr. Geery was standing.

 Mr. Heater stated that he cited the respondent with a

violation of section 56.15005, because Mr. Geery was not wearing
a safety belt or line and was not otherwise tied off to prevent
him from falling into the crusher. Mr. Heater believed that it
was highly likely that Mr. Geery could have slipped and fallen
into the running and vibrating crusher because he was not tied
off or wearing a safety belt.

 Mr. Heater stated that he cited the respondent with a

violation of section 56.16002(a)(1), because the unconsolidated
rock materials which were on the pan feeder presented a hazard to
Mr. Geery at the location where he was standing over the crusher
hopper. In the event a truck driver inadvertently

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dumped a load of rock onto the pan feeder while Mr. Geery was
attempting to dislodge the rock in the crusher, the material on
the pan feeder could have moved and dropped into the crusher
striking Mr. Geery or knocking him into the crusher. Mr. Heater
believed that Mr. Geery was exposed to the hazard of caving or
sliding materials from the pan feeder, and that his exposure to
this hazard while he was standing on the crusher while it was
running would reasonably likely result in serious injury or death
if he were to fall in the crusher. Mr. Heater confirmed that if
Mr. Geery had fallen into the operating crusher, he would be
unable to get out, and that the cut-off switch was in an area
below the crusher and not readily accessible.

 Mr. Heater stated that he cited the respondent with a

violation of section 56.3400, because Mr. Geery placed himself in
a hazardous position while attempting to perform secondary
breakage of the rock with a sledge hammer. Mr. Heater believed
that it was highly likely that an accident would have occurred
and that Mr. Geery would have suffered fatal injuries had he
continued the practice. Mr. Heater agreed that no one other than
Mr. Geery was exposed to any hazard or injury because of the
practice in question.

 Mr. Heater confirmed that he discussed the order and

citations with the respondent's president James Dingeman at the
time of his inspection, and that Mr. Dingeman agreed that Mr.
Geery should not have attempted to break or dislodge the rock
while standing on the operating crusher. Mr. Dingeman immediately
issued verbal instructions to Mr. Geery not to repeat the
practice, and he subsequently issued a written notice to all
employees instructing them not to stand on top of the crusher
while it was in operation, and to shut it down before attempting
to remove any material entangled in the crusher. Mr. Heater also
confirmed that he had no reason or information to believe that
Mr. Dingeman was aware of the fact that Mr. Geery had engaged in
the practice in question. Mr. Heater also stated that he
considered Mr. Dingeman to be a conscientious mine operator who
was concerned for safety (Tr. 7Ä35).

 On cross-examination, Mr. Heater stated that the materials

in the pan feeder were approximately 3 feet above, and 4 feet
away from where Mr. Geery was standing on the crusher. Mr. Heater
agreed that any material falling from the pan feeder would not
likely cause fatal injuries to Mr. Geery if they struck him, and
that they were only a contributing factor to the hazard
presented.

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Mr. Heater confirmed that although Mr. Dingeman had previously
engaged in the sand and gravel business, his limestone operation
was relatively new and that he had only been in this business for
approximately 3 years (Tr. 35Ä47).

Respondent's Testimony and Evidence

 James H. Dingeman, respondent's president, confirmed that he

does not dispute the fact that Mr. Geery placed himself in a
hazardous position on the crusher as described by Inspector
Heater. Mr. Dingeman also confirmed that he does not dispute the
fact that the violations occurred as stated in the order/citation
issued by Mr. Heater. Mr. Dingeman asserted that he filed his
contest because of his belief that the proposed civil penalty
assessments were excessive, and his belief that while it was
possible that Mr. Geery could have fallen into the crusher
hopper, it was not highly likely that he would have fallen into
the crusher jaws because they were blocked by the large rock
which was lodged at the bottom of the cone-shaped hopper.

 Mr. Dingeman asserted that he is concerned about the safety

of his employees and has always attempted to operate an
accident-free mining operation. He confirmed that he had
previously installed a chain across the crusher entrance location
to prevent employees from inadvertently walking or falling into
the crusher, and that prior to the issuance of the order and
citation, he believed that breaking or dislodging rocks from a
crusher with a sledge hammer was an acceptable industry-wide
practice. He had never received any information that such a
practice had ever resulted in accidents or injuries.

 Mr. Dingeman stated that in order to gain access to the

crusher, Mr. Geery apparently unhooked the chain which guarded
that location in order to position himself on the crusher. In
addition to issuing his written work policy instructions
requiring the shutting down of the crusher before any attempts
are made to break or dislodge rocks, Mr. Dingeman stated that he
relocated the crusher shut-down switch closer to the crusher so
that it would be readily accessible to all employees performing
this work. These corrective actions were taken by Mr. Dingeman
after the violations were issued (Tr. 47Ä52).

                    Findings and Conclusions

 The respondent does not dispute the fact that the three

violations occurred as stated by the inspector in the contested
order/citation which was issued in this case. I take note of

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the fact that all of the violations were the result of the
inspector's observations of quarry foreman Clint Geery placing
himself in a precarious and hazardous position on a vibrating
hopper of a jaw crusher while it was in operation. Mr. Geery was
attempting to break up or dislodge a large rock which had lodged
in the jaw crusher opening, and he was not wearing a safety belt
or otherwise tied off with a safety line to prevent him from
falling into the crusher. The inspector concluded that in the
circumstances, the foreman was in danger of falling into the
crusher.

 30 C.F.R.   56.15005, provides as follows:

 Safety belts and lines.

           Safety belts and lines shall be worn when persons
      work where there is danger of falling; a second person
      shall tend the lifeline when bins, tanks, or other
      dangerous areas are entered.

 30 C.F.R.   56.16002(a)(1), provides as follows:

 Bins, hoppers, silos, tanks, and surge piles.

           (a) Bins, hoppers, silos, tanks, and surge piles,
      where loose unconsolidated materials are stored, handled or
      transferred shall be -- (1) equipped with mechanical
      devices or other effective means of handling materials
      so that during normal operations persons are not
      required to enter or work where they are exposed to
      entrapment by the caving or sliding of materials.

 30 C.F.R.   56.3400, provides as follows:

 Secondary breakage.

           Prior to secondary breakage operations, material
      to be broken, other than hanging material, shall be
      positioned or blocked to prevent movement which would
      endanger persons in the work area. Secondary breakage
      shall be performed from a location which would not
      expose persons to danger.

 In the answer filed in this case, Mr. Dingeman asserts that

the foreman in question was a knowledgeable individual

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with many years of accident-free quarrying experience, and that
"if he was highly likely to fall into the crusher he would have
known that" and "would not put himself in jeopardy." Although the
quarry foreman did not testify in this case, I find no reason for
discounting Mr. Dingeman's assessment of his work skills.
However, the Commission has previously considered and rejected
such an argument in at least two cases dealing with the same
safety belt and safety line standard which was cited in this
case. See: KerrÄMcGee Corp., 3 FMSHRC 2496, 2497 (November 1981);
Great Western Electric Company, 5 FMSHRC 840 (May 1983).

 In the Great Western Electric Company case, the Commission

stated as follows at 5 FMSHRC 842:

           Great Western argues that the skill of a miner
      is a relevant factor in determining whether there is a
      danger of falling because the miner's skill defines the
      scope of the hazard presented. We find that such a
      subjective approach ignores the inherent vagaries of
      human behavior. Even a skilled employee may suffer a
      lapse of attentiveness, either from fatigue or
      environmental distractions, which could result in a
      fall. The specific purpose of 30 C.F.R.   57.15Ä5 is
      the prevention of dangerous falls. KerrÄMcGee Corp., 3
      FMSHRC 2496, 2497 (November 1981). By adopting an
      objective interpretation of the standard and requiring
      a positive means of protection whenever a danger of
      falling exists, even a skilled miner is protected from
      injury. We believe that this approach reflects the
      proper interpretation and application of this safety
      standard.

           That is not to say that the miner's skill is
      totally immaterial. The skill of a miner may be a
      relevant factor in determining an appropriate civil
      penalty for a violation. In making work assignments
      and giving instructions to its employees, the amount
      of reliance which an operator places on the relative
      skills of its employees may be an indication of the
      operator's negligence concerning the violation. A
      miner's skill may also influence the probability of
      the occurrence of the event against which a standard
      is directed, and so affect that element of gravity.

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It is well-settled that under the Act, an operator is liable
without fault for violations of any mandatory standards committed
by its employees. See: Allied Products Co. v. FMSHRC, 666 F.2d
809 (5th Cir.1982); American Materials Corp., 4 FMSHRC 415 (March
1982); KerrÄMcGee Corp., 3 FMSHRC 2496 (November 1981); El Paso
Rock Quarries, Inc., 3 FMSHRC 35 (January 1981); Ace Drilling
Company, 4 FMSHRC (April 1980).

 In addition to the respondent's candid admissions that each

of the violations occurred as stated in the order/citation issued
by the inspector in this case, I conclude and find that the
testimony and evidence adduced by the petitioner supports and
establishes each of the violations in question. I agree with the
inspector's conclusion that the position of the foreman on the
vibrating and operating crusher hopper without the use of a
safety belt or line exposed him to a hazard of falling into the
machine. I also agree with the inspector's conclusion that by
positioning himself in such a manner on the crusher hopper, the
foreman exposed himself to possible entrapment by the caving or
sliding of rock materials from the pan feeder, and that by
performing secondary breakage by means of a sledge hammer from a
hazardous position without being secured from a fall, the foreman
exposed himself to danger. Under all of these circumstances, the
violations, and the combined order/citation issued by the
inspector ARE AFFIRMED.

Significant and Substantial Violations

 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

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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, 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).

 With regard to the violation of 30 C.F.R.   56.15005, I

conclude and find that the foreman's unsecured position on the
vibrating and operating crusher presented a danger of his falling
into the crusher. In the event of a fall, I believe it would be
reasonably likely that the foreman would have suffered injuries
of a reasonably serious nature. I agree with the inspector's
"significant and substantial" finding, and IT IS AFFIRMED.

 With regard to the violation of 30 C.F.R.   56.16002(a)(1),

I agree with the inspector's "significant and substantial"
finding. By placing himself in a hazardous position on the
crusher hopper in question, the foreman exposed himself to injury
from moving or falling rock materials from the pan feeder.
Although

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it is possible that any materials moving or falling from the pan
feeder may not in and of themselves have inflicted fatal
injuries, I believe one may reasonably conclude that such a fall
or movement of materials could have contributed to the hazard
presented. Any sudden or unexpected movement or fall of these
materials could have knocked the foreman into the crusher hopper
from his unsecured position, and if this occurred, the weight of
the materials would likely have trapped the foreman inside the
moving crusher hopper and prevented his timely exit. For all of
these reasons, I also agree with the inspector's "significant and
substantial" finding with respect to the violation of 30 C.F.R.
56.3400. Accordingly, the inspector's "S & S" findings as to both
of these violations ARE AFFIRMED.

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

 The parties stipulated that the respondent is a medium size

mine operator, and that the 1987 annual production for the mine
was 13,607 tons of limestone. Mr. Dingeman stated that he employs
five people, and notwithstanding the stipulation, he believes
that his mining operation is a relatively small one. I agree, and
I conclude and find that the evidence here supports a conclusion
that the respondent is a small mine operator.

 Mr. Dingeman stated that while the payment of the proposed

civil penalty assessments will not put him out of business, he is
concerned about the amount of the penalty, particularly since the
three separate violations which were "specially assessed" by MSHA
were the result of only one incident involving Mr. Geery's
attempts to break or dislodge the rock from the crusher while not
wearing a safety belt or otherwise securing or protecting himself
from a fall into the vibrating and operating machine. I conclude
and find that the penalties assessed by me will not adversely
affect the respondent's ability to continue in business.

Good Faith Compliance

 The parties stipulated that the respondent demonstrated good

faith in abating the violations. The record establishes that the
violations were immediately abated when the inspector removed Mr.
Geery from his location on the crusher. Further, as soon as Mr.
Dingeman was informed of the practice, he immediately verbally
instructed Mr. Geery not to repeat the practice, and subsequently
issued written instructions to all of his employees as to the
safe procedures to be followed in

Page 14

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the future, and moved the stop-start switch closer to the
location of the crusher. Under the circumstances, I conclude and
find that the respondent exercised rapid good faith compliance in
abating the violative practice and conditions in question, and I
have taken this into consideration in this case.

History of Prior Violations

 An MSHA computer print-out of the respondent's prior history

of violations reflects that the respondent has received no
citations or assessed violations prior to February 19, 1987. The
information presented reflects that for the period February 19,
1987 to October 28, 1987, the respondent was assessed for five
violations for which it paid civil penalty assessments totalling
$110. None of these violations involved any of the mandatory
standards cited in this case. Under the circumstances, I conclude
that the respondent has a good compliance record, and I have
taken this into consideration in this case. I have also taken
into consideration the inspector's testimony that the respondent
is a conscientious and safety-conscious mine operator.

Gravity

 On the basis of the unrebutted testimony of the inspector,

and including my "significant and substantial" findings and
conclusions, I conclude and find that all of the violations which
have been affirmed in this case were serious.

Negligence

 The evidence in this case establishes that the violations

were the direct result of the conduct of the quarry foreman who
jeopardized only his own safety by placing himself in a hazardous
position on the crusher hopper while it was in operation. The
inspector's unrebutted testimony reflects that the foreman
admitted that he had engaged in this practice over a period of 2
years. The inspector was of the opinion that Mr. Dingeman, as the
operator and owner of the quarry, was a conscientious and safety
conscious mine operator, and there is no evidence that he had
ever observed the foreman on an operating crusher, or that he had
any knowledge of the apparent practice engaged in by the foreman.

 Although Mr. Dingeman characterized the foreman as

"intelligent, knowledgeable, and experienced," I have difficulty
understanding why such an individual would place himself in such
a precarious position on an operating crusher hopper without
securing himself from a possible fall into the machine.

Page 15

~1696
Mr. Dingeman testified that he had previously installed a chain
across the crusher access to preclude individuals from
inadvertently walking into or falling into the crusher, and that
the foreman apparently unhooked the chain guarding the crusher
location in order to position himself over it while attempting to
dislodge the large rock with a sledge hammer. Although Mr.
Dingeman believed that the breaking or dislodging of a rock with
a hammer was an acceptable industry-wide practice, and that he
never received any information that such a practice had ever
resulted in accidents or injuries, I find great difficulty in
accepting any notion that engaging in such a practice while the
crusher is in operation without the benefit of a safety belt or
line is acceptable, or the industry norm.

 The record and pleadings in this case reflect that Inspector

Heater made a finding of "high negligence" with respect to the
violation of section 56.15005, and that similar negligence
findings were made with respect to the violations of sections
56.16002(a)(1) and 56.3400 when the order/citation was
subsequently modified by another inspector. Based on the evidence
and testimony adduced at the hearing, I concur in those findings.

 I conclude and find that an experienced and knowledgeable

mine foreman should have recognized the fact that he was placing
himself in a precarious position by attempting to break or
dislodge a rock from an operating jaw crusher without first
shutting down the machine or securing himself with a safety belt
or line. Insofar as the foreman's conduct is concerned, I
conclude and find that it clearly supports a finding of "high
negligence" with respect to each of the violations which are a
direct result of his action in placing himself in such a
hazardous position.

 It is well settled that the negligence of a mine foreman may

be imputed to the operator. See: Southern Ohio Coal Company, 3
FMSHRC 1459 (August 1982); Nacco Mining Co., 3 FMSHRC 848 (April
1981). However, on the facts of this case, the evidence
establishes that Mr. Dingeman had not previously observed the
foreman on an operating crusher and had no knowledge of the
practice admitted to by the foreman. Further, the evidence
establishes that Mr. Dingeman had previously taken steps to
prevent anyone from inadvertently walking or falling into the
crusher by installing a chain across the access to the crusher,
and the inspector believed that Mr. Dingeman was a conscientious
and safety-minded-mine operator. Under these circumstances, I
believe it is appropriate

Page 16

~1697
in this case to take these factors in consideration in mitigating
any civil penalties which should be assessed against the
respondent for the violations in question. See; Allied Products
Company v. FMSHRC, supra; Nacco Mining Co., 3 FMSHRC 848, 850
(April 1981); Marshfield Sand & Gravel, Inc., 2 FMSHRC 1391 (June
1980); Old Dominion Power Co., 6 FMSHRC 1886 (August 1981). I
have also considered the fact that the three violations which
have been affirmed as separate violations of each of the cited
mandatory standards, are interrelated and arose out of one single
act of the foreman.

                   Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

taking to account the requirements of section 110(i) of the Act.
I conclude and find that the following civil penalty assessments
for the violations which have been affirmed are reasonable and
appropriate:

Order/Citation No. Date 30 C.F.R. Section Assessment

3055739 10/29/87 56.15005 $350
3055739 10/29/87 56.16002(a)(1) $175
3055739 10/29/87 56.3400 $200

                             ORDER

 The respondent IS ORDERED to pay civil penalty assessments

in the amounts shown above within thirty (30) days of the date of
this decision. Upon receipt of payment by the petitioner, this
matter is dismissed.

                             George A. Koutras
                             Administrative Law Judge