Adams Stone Corp

Read the official release (fmshrc.gov)

Plain-English summary

Adams Stone Corporation faced six safety violations after assistant superintendent Terry Cantrell fell about 25 to 30 feet from a primary crusher and suffered permanently disabling injuries. Judge George A. Koutras affirmed the safety-belt violations and several blasting-related violations, while modifying one unwarrantable-failure order to a section 104(a) citation and vacating other unwarrantable-failure findings where the Secretary did not prove aggravated conduct. He found the violations serious in most instances and assessed penalties totaling $3,425. The decision also found that the operator's size, history, good-faith abatement, and other statutory criteria did not justify further penalty increases.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.15005, 56.18009, 56.6313, 56.6320, and 56.6305
• Outcome: The six contested matters were affirmed, vacated, or modified in part, and civil penalties totaling $3,425 were assessed.
• Key point: An unwarrantable-failure finding requires aggravated conduct, not merely proof that management knew or should have known of a hazardous condition.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-604-M
Petitioner : A.C. No. 15-00056-05528
v. :
: Docket No. KENT 92-770-M
ADAMS STONE CORPORATION, : A.C. No. 15-00056-05529
Respondent :

                           DECISIONS

Appearances: Joseph B. Luckett, Esq. U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Petitioner;
David H. Adams, Esq., Pikeville, Kentucky, for the
Respondent.

Before: Judge Koutras

                  Statement of the Case

 These proceedings concern 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), seeking civil penalty assessments for
six (6) alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely contests and answers and hearings were
held in Pikeville, Kentucky. The parties filed posthearing
arguments which I have considered in the adjudication of these
matters.

                            Issues

 The issues presented in these proceedings include

(1) whether or not the respondent violated the cited mandatory
safety regulations; (2) whether the violations were significant
and substantial (S&S); (3) whether the violations were the result
of the respondent's unwarrantable failure to comply with the
cited safety regulations; and (4) the civil penalties to be
assessed for the violations taking into account the civil penalty
assessment criteria found in section 110(i) of the Act.

         Applicable Statutory and Regulatory provisions

    1. The Federal Mine Safety and health Act of 1977,
    30 U.S.C. § 820(a).

    2.   Sections 110(a) and 110(i) of the Act.

    3. MSHA's mandatory safety standards found at Title 56,
    Code of Federal Regulations, sections 56.6305, 56.6313,
    56.6320, 56.15005, and 56.18009.

    4.   Commission Rules, 29 C.F.R., Part 2700.

                           Discussion

 The testimony and evidence adduced in these proceedings

establishes that an accident occurred at the respondent's quarry
site on January 21, 1992, when Assistant Quarry Superintendent
Terry Cantrell was injured and suffered permanently disabling
injuries when he fell approximately 25 to 30 feet from the top of
a primary crusher to the ground below. Mr. Cantrell was not
wearing a safety belt or using a safety line and he was not tied
off or otherwise secured against falling. Following this event,
and upon receipt of a telephone message reporting the injury,
MSHA Inspector Richard L. Jones went to the quarry on January 22,
1992, for the purpose of conducting an investigation and
inspection. Mr. Jones issued several notices of violations,
beginning with a section 104(d)(1) citation, followed by five
section 104(d)(1) orders. The citation and orders are as
follows:

 Section 104(d)(1) "S&S" Citation No. 3883607, January 22,

1992, cites an alleged violation of mandatory safety standard
30 C.F.R. § 56.15005, and the cited condition or practice states
as follows (Exhibit G-1):

    A lost time injury resulted from the fall of an
    employee from the top of the primary crusher on
    1-21-92. No safety belt or line was being used as Terry
    Cantrell, assistant superintendent, was attempting to clear
    the top of the crusher of scrap iron and attached crane
    rigging in order to remove the top of the crusher. He fell
    to the ground approximately 30 feet below but not before
    striking the crusher support iron and pier. One safety belt
    but no safety line was in the area and was not being used.
    This is an unwarrantable failure. (See 104(d)(1)
    Order 3883608).

 Section 104(d)(1), "S&S" Order No. 3883608, January 22,

1992, cites an alleged violation of mandatory safety standard

30 C.F.R. § 56.15005, and the cited condition or practice states
as follows (Exhibit G-2):

 Two employees were observed working on the primary
 crusher approximately 25 feet above ground level while
 not tied off with safety belts and lines. There was no
 work platform from which to work as it had been moved
 to facilitate the removal of the top of the crusher for
 repairs. Only one safety belt and no lines were in the
 area and were not being used. This is an unwarrantable
 failure (See 104(d)(1) Citation 3883607). Employees
 were withdrawn from the area and ordered not to resume
 work until proper safety lines/belts are made
 available, and an MSHA inspector could observe the
 corrective measures taken and this order is terminated.

 Section 104(d)(1) "S&S" Order No. 3883609, January 22, 1992,

as amended, cites an alleged violation of mandatory safety
standard 30 C.F.R. § 56.18009, and the cited condition or
practice states as follows (Exhibit G-3):

 Six employees were working in the area of the primary
 crusher dismantling it for repair without a person on
 the mine property designated in charge. Their regular
 supervisor Terry Cantrell, Assistant Superintendent,
 had been injured on the job 1-21-92, and had not
 returned to work. (See 104(d)(1) Citation 3883608,
 104(d)(1) Order 3883608). The person with overall
 authority and responsibility, Stuart Adams, President,
 was also not on mine property. This is an
 unwarrantable failure. The employees were withdrawn
 from the work area and ordered not to resume work until
 a person was designated by the operator as in charge
 and an MSHA inspector could observe the corrective
 action taken and the order terminated.

 Section 104(d)(1) "S&S" Citation No. 3883610, as amended,

issued on January 23, 1992, cites an alleged violation of
30 C.F.R. § 56.6313, and the cited condition or practice states
as follows (Exhibit G-4):

 Two large limestone boulders were observed in the
 quarry area that had been drilled and charged with
 explosives (dynamite, detonating cord and primer) the
 area was neither attended, barricaded and posted nor
 flagged to prevent unauthorized entry. The condition
 has existed since day shift 1-16-92, at which time the
 blaster was laid off (Section 104(d)(1) order 3883611).
 The operator was aware that this condition existed.
 This is an unwarrantable failure. Employees were
 ordered to remain clear of the area a safe distance
 except those necessary to abate the hazard, guards were

    posted at each entry to restrict access until an MSHA
    inspector can observe corrective action taken and this
    order terminated.

 Section 104(d)(1) non-"S&S" Order No. 3883611, January 23,

1992, cites an alleged violation of mandatory safety standard
30 C.F.R. § 56.6320, and the cited condition or practice states
as follows (Exhibit G-5):

    Two large limestone boulders were observed in the
    quarry that had been drilled and charged with
    explosives. These charges were loaded on day shift
    1-16-92, thus exceeding the 72 hour time limit between
    charge and blast times. No prior approval for this
    condition was granted by MSHA. The operator was aware
    of this condition. This is an unwarrantable failure.
    (See 104(d)(1) Order 3883610). Employees were ordered
    to remain clear of the area except those necessary to
    abate the hazard, guards posted at each entry to
    restrict access until an MSHA inspector can observe the
    corrective action taken and this order terminated.

 Section 104(d)(1) "S&S" Order No. 3883612, January 23, 1992,

cites an alleged violation of mandatory safety standard 30 C.F.R. § 56.6305, and the cited condition or practice states as follow
(Exhibit G-6):

    Unused explosive materials (1000 ft. roll of detonating
    cord) were not moved to a protected area or magazine
    within a reasonable time after charging boulders in the
    quarry for secondary blasting. The detonating cord had
    been left unattended and exposed in the quarry area
    since day shift 1-16-92, the date the blaster was laid
    off. The operator was aware of this condition. This
    is an unwarrantable failure. (see 104(d)(1) orders
    3883610 and 3883611). Employees were ordered to remain
    clear of the area except those necessary to abate the
    hazard, secure the area, and until an MSHA inspector
    can observe action taken and this order terminated.

              Petitioner's Testimony and Evidence

 MSHA Inspector Richard L. Jones testified as to his

background and mining experience and he stated that after MSHA
received a telephone message reporting an injury at the
respondent's quarry on January 21, 1992, he went to the site the
next morning to conduct an investigation and inspection. He
stated that a crew was dismantling the primary crusher and that
assistant superintendent Terry Cantrell was injured when he fell
from the top of the crusher approximately 25 to 30 feet to the
ground below. Mr. Jones stated that Mr. Cantrell had jumped to
the top of the crusher from a catwalk to remove some "tramp

metal" from the crusher and to attach rigging to the crusher top
so that it could be removed by a crane. Mr. Jones explained that
Mr. Cantrell threw the metal material off the top of the crusher
and then fell off. Several crew members who were present
informed Mr. Jones that Mr. Cantrell was not using a safety belt
or line (Tr. 8-13).

 Mr. Jones stated that the crusher was mounted on twenty-two

foot high pillars and that the crusher itself was another four or
five feet high. He believed that there was a danger of falling
from the top of the crusher and he cited a violation of section
56.15005 because Mr. Cantrell was not wearing a safety belt or
safety line and was not tied off to prevent his falling off the
crusher. Mr. Jones stated that Mr. Cantrell received severe head
injuries, lost the use of his left eye, and has not returned to
work (Tr. 16).

 Mr. Jones stated that he based his "high negligence" finding

on the fact that Mr. Cantrell was the assistant superintendent
and knew that it was unsafe, knew about the regulatory safety
belt or line requirement, and engaged in an unsafe act (Tr. 15).

 Mr. Jones stated that he based his "S&S" finding on the fact

that employees could be injured if the "work practice" of not
using safety belts or lines where there was a danger of falling
continued (Tr. 16).

 Mr. Jones stated that he issued the section 104(d)(1)

unwarrantable failure citation because in his capacity as the
assistant mine superintendent, Mr. Cantrell was an agent of
management and knew that he was engaging in an unsafe act and
that his failure to use a safety belt or line was a violation of
the cited regulation and resulted in an injury. Mr. Jones
confirmed that the violation was abated and that he terminated
the citation after quarry operator Stuart Adams provided new
safety belts and instructed his employees in their use
(Tr. 17-18).

 On cross-examination, Mr. Jones confirmed that he determined

that Mr. Cantrell was not wearing a safety belt after speaking
with the crew who were dismantling the crusher, including crane
operator Carl Stumbo. Mr. Jones stated that Mr. Cantrell was in
charge of the work crew, and that after he was injured no one was
officially in charge. However, Mr. Jones confirmed that
Mr. Stumbo assumed control of the situation after the accident
and that he and the rest of the crew were highly trained and
experienced personnel who had completed all of their training.
He confirmed that apart from the dismantling of the crusher,
which was "a special operation", the quarry was not in operation
(Tr. 21-28).

 Mr. Jones confirmed that he did not speak to Mr. Cantrell,

and only assumed that he was aware of the safety belt requirement
found in the cited standard. Mr. Jones also confirmed that he
did not determine whether or not the respondent had any safety
belt and safety line rules in place, and he did not know whether
the respondent made it "a practice" not to use safety belts or
lines where there was a danger of falling. Mr. Jones stated that
his visit to the quarry was his first one and he was not aware
that the respondent had ever been cited previously for violations
of section 56.15005. He confirmed that he found a safety belt in
the area of the crusher during his investigation, but that it was
in poor condition and would probably not fit around anyone
(Tr. 31-36).

 With regard to Order No. 3883608, Mr. Jones stated that

while he was conducting his inspection on January 22, 1992, he
observed two employees working at the top of the same crusher
from which Mr. Cantrell fell the day before. Mr. Jones stated
that the two men were not using safety belts or safety lines and
that they were "perched" at the top of the crusher with one foot
on top of a one-inch bolt which was sticking out of the side of
the crusher. The men were using cutting torches to cut metal
from the crusher and they were within "arm's length" of each
other (Tr. 40-42).

 Mr. Jones stated that no one was supervising the work of the

two individuals in question, and he believed that there was a
danger of falling because they were standing on a bolt at the
side of the crusher and were using their cutting torches to cut
metal away from the crusher. Since there was no one supervising
the work, Mr. Jones instructed the men to come down off the
crusher and he informed them about the hazard and determined that
they were not wearing safety belts or lines. Mr. Jones asked all
of the six men present about the whereabouts of any belts or
safety lines, and none could be found in the area (Tr. 43-46).

 Mr. Jones explained his gravity finding, and he believed

that the violation was significant and substantial because it was
highly likely that a serious injury or fatality would result if
the employees were to continue to work at the top of the crusher
without using safety belts or safety lines (Tr. 47).

 Mr. Jones believed that the violation resulted from a high

degree of negligence because Mr. Cantrell had been seriously
injured the day before and one would expect mine management to
take steps to insure against another accident.

 Mr. Jones stated that he issued the section 104(d)(1)

unwarrantable failure order because he was informed by the scale
man that he had spoken with quarry operator Stuart Adams after
Mr. Cantrell's accident and that Mr. Adams was aware of the fact
that Mr. Cantrell had been injured. Mr. Jones confirmed that he

terminated the order on January 23, 1992, after Mr. Adams brought
new safety belts and lines to the quarry and instructed the
employees to use them (Tr. 48-49).

 With regard to Order No. 3883609, Inspector Jones testified

that he issued the violation after determining that Mr. Cantrell
had not returned to work and that six men continued to work on
the crusher with no one designated to be in charge of the crew.
Mr. Jones stated that section 56.18009, requires a mine operator
to designate a competent person to be in charge at the mine site
in the event of an emergency. Mr. Jones stated that none of the
six individuals who were present and working on the crusher
informed him that anyone was in charge, and although crane
operator Carl Stumbo may have worked as a foreman and been in
charge at the site in the past, Mr. Stumbo told him that he was
not in charge of the work which was taking place on January 22,
1992. Mr. Jones confirmed that he would not have issued the
violation if Mr. Stumbo had told him that he was designated to be
in charge (Tr. 57-61).

 Mr. Jones stated that he issued the section 104(d)(1)

unwarrantable failure order because he concluded that since
Mr. Stuart Adams saw fit to designate Mr. Cantrell as the person
in charge of the work site on January 21, 1992, before his
accident, Mr. Adams should have designated someone to take
Mr. Cantrell's place and to be in charge in the event of another
emergency situation at the mine after the accident. Mr. Jones
confirmed that at the time Mr. Cantrell was injured Mr. Stumbo
and the other men did what they could to take care of
Mr. Cantrell and that they acted properly to tend to him.
Mr. Jones confirmed that he terminated the order on January 23,
1992, after Mr. Adams returned to the site to take charge and
designated a chain of command of individuals to be in charge in
the event of an emergency (Tr. 62-63).

 Mr. Jones stated that following his accident investigation

and inspection on January 22, 1992, he met with Mr. Adams and
discussed the citation and orders with him. He stated that
Mr. Adams informed him that he had other matters to attend to and
could not accompany him. Mr. Adams designated Fred Bartley to
accompany Mr. Jones during the inspection which he continued on
January 23, 1992 (Tr. 74-75).

 Mr. Jones stated that he and Mr. Bartley traveled to the

quarry first level, and Mr. Jones observed two large limestone
boulders which had been drilled and charged for secondary
blasting. Mr. Jones stated that he observed detonating cord
leading from the drilled holes which were charged with dynamite
boosters, and that a new roll of one-thousand feet of detonating
cord was nearby within a couple of feet of the charged boulders.
Mr. Jones then went to the scale house with Mr. Bartley and

Mr. Jones telephoned Mr. Stuart Adams and asked him to come to
the site. Mr. Jones asked Mr. Stumbo to block off all of the
entries leading to the charged boulders (Tr. 76-77).

 Mr. Jones stated that he spoke with Mr. Adams when he

arrived at the site and that Mr. Adams acknowledged that he knew
that the boulders were charged and ready to blast and that the
roll of cord was laying out in the open area. Mr. Adams informed
Mr. Jones that he had laid off the blaster six days earlier and
that there was no competent person at the mine to shoot the
boulders. Mr. Adams immediately summoned the blaster to the
site, and the blaster confirmed that he had left the boulders in
a charged condition. He then proceeded to shoot the charged
boulders, and Mr. Jones terminated the citation (Tr. 79).

 Mr. Jones confirmed that he issued the section 104(d)(1)

Order No. 3883610 (Exhibit P-4), because the area where the
charged and primed boulders were located was not barricaded,
posted, or flagged in any manner to prevent unauthorized entry
(Tr. 80). He based his "high negligence" finding on the fact
that "I asked Mr. Adams if he knew this condition existed and he
said he did" (Tr. 80).

 Mr. Jones stated that he based his gravity finding of

"reasonably likely" on the following (Tr. 80):

 * * * *Dynamite, detonating cord and primers were not
 meant to be left out in the exposed weather. Once you
 put them together, they are ready to shoot. If they
 are allowed to lay out in the weather for any length of
 time, they immediately start to deteriorate and become
 unstable.

 Mr. Jones stated that he observed three state reclamation

inspectors pass by the area without knowing about the charged
boulders. He further stated that large equipment operates in the
area, personal vehicles are parked in the area, and if the
explosives became unstable "someone could bump into them with a
vehicle or loader, sit there and smoke, or just any number of
things. There was a lot of exposure there" (Tr. 81). He stated
that the boulders were four-to-four and one-half feet in diameter
and were located 30 or 40 yards from the main haul road, and 70
or 80 yards from where the crusher operator booth was located
(Tr. 81).

 On cross-examination, Mr. Jones conceded that it was

possible that the charged boulders were " a couple of hundred
yards" from the crusher plant (Tr. 86). However, he confirmed
that he cited the hazard because of the possibility that the
charge could be set off as people were travelling by the area
(Tr. 88). Mr. Jones explained that the dynamite did not require
a cap and that the detonating cord is cap sensitive and will set

off the booster which in turn detonates the dynamite. Under
certain conditions detonating cord can be set off by a one-pound
hammer, and if left out in the open "there is no way you can
guarantee that it won't be affected by something" (Tr. 90).

 In response to further questions concerning Mr. Adams' prior

knowledge of the conditions, Mr. Jones stated as follows
(Tr. 89):

 A. I asked him did he realize that these boulders were
 left there, charged; that the area had not been
 secured, posted, barricaded; and did he know that the
 thousand-foot roll of detonation cord was laying out
 there. He said, "Yes. I laid the man off six days
 ago. I knew it was like that."

 Q. Well, now, did he say that he laid him off six days
 ago knowing that situation existed or that he laid him
 off six days ago and he just found out that that
 situation was existing? There is a big difference
 there.

 A. The question I asked him was, "Do you know that
 these situations exist?" He said yes. "How long has
 it been that way"" I laid the man off six days ago.
 Six days, apparently." That is what I was told.

 Mr. Jones confirmed that he issued the section 104(d)(1)

Order No. 3883611, because the two charged boulders had been left
in that condition for more than 72 hours without being blasted
(tr. 91). He based his "high negligence" finding on Mr. Adams'
admission that he knew the charged boulders had existed past the
72 hour limit (Tr. 92). Mr. Jones stated that he modified his
initial "highly likely" gravity finding to "unlikely" because the
fact that a time limit had been exceeded does not, in and of
itself, constitute a hazard (Tr. 92). He confirmed that he
modified his initial "S&S" finding to "non-S&S" after
reconsidering the likelihood of any resulting injury (Tr. 93).
He further confirmed that he issued the order under section
104(d)(1) because of Mr. Adams' admission that he knew about the
condition (Tr. 94).

 Mr. Jones explained why he issued two orders even though the

cited conditions were the result of the same occurrence.
Mr. Jones confirmed that he would not have issued the orders if
he knew that Mr. Adams had no knowledge that the conditions had
existed since the blaster was laid off a week earlier. However,
Mr. Jones stated that "when I talked to him (Adams) for several
minutes at the crusher booth, we talked for a long time about
that and I was under the perfect understanding that he knew they
were like that since he laid the man off six days ago" (Tr. 100).

Mr. Jones stated that if he had misunderstood Mr. Adams, he would
have changed his negligence determination (Tr. 100).

 Mr. Jones confirmed that he made some notes concerning the

two citations, but did not have them with him at the hearing. He
further confirmed that he spoke with the blaster when he returned
to shoot the boulders to abate the citations, but he could not
recall if he asked the blaster if he informed Mr. Adams that he
had charged the boulders before leaving the site on the day he
was laid off (Tr. 102). Mr. Jones then stated that the blaster
stated that "Mr. Adams told him he was being laid of as of right
now and that he was not done with his duties and he said to go
home" (Tr. 103). Mr. Jones stated that the blaster did not
explain why he was laid off, and that he (Jones ) found it odd
that a blaster would jeopardize his license and livelihood by not
finishing his job (Tr. 103).

 Inspector Jones confirmed that he issued section 104(d)(1)

Order No. 3883612 (Exhibit P-6), because of the exposed and
unattended detonating cord (Tr. 104). He described the roll of
cord as a Class A high explosive, and he explained that it is
required to be stored in a magazine to protect it from the
elements. He stated that a premature explosion of the roll of
detonating cord "would produce a terrible explosion, scattered
debris, rocks. The concussion from it, itself, would be
tremendous" (Tr. 107). He stated that the cord could be
detonated by something being dropped on it or a piece of
equipment running over it. The cord weighed approximately 10 to
15 pounds and someone could have picked it up and put it in a
truck to transport it in an unauthorized manner (Tr. 107). He
confirmed that he modified his "highly likely" gravity finding to
"reasonably likely" (Tr. 108). He issued the section 104(d)(1)
order because "When I asked Mr. Adams did he realize that that
was setting out there unattended, he said he did. And it's an
unwarrantable failure" (Tr. 109). He explained the explosion
potential for a roll of detonating cord (Tr. 111-113).

 On cross-examination, Mr. Jones stated that although he is

not a highly qualified industry explosives expert, "I have worked
with explosives hands-on. I know how they operate. I know what
they're capable of". He confirmed that he has also learned about
explosives during his MSHA training, but is not a licensed
blaster. He worked as part of a surface mine powder crew for
three years, and at different times worked on a blasting crew
using the same explosive material used by the respondent
(Tr. 117).

           Respondent's Testimony and Evidence

 Stuart H. Adams, President, Adams Stone Corporation,

testified that he first learned about the two charged boulders
which are the subject of citation no. 3883610, and order

nos. 3883611 and 3883612, on the morning of January 23, 1992 when
Inspector Jones was at the quarry conducting his inspection.
Mr. Adams stated that the licensed blaster who had prepared the
boulders for blasting did not inform him what he had done on
January 16, 1992, and Mr. Adams emphatically denied that the
blaster informed him that day that the boulders had been drilled
and charged.

 Mr. Adams stated that the blaster asked to be laid off on

January 16, 1992, because of the weather so that he could receive
unemployment compensation. Mr. Adams stated that the quarry was
not in full production at that time and that the only activity
taking place was the dismantling of the primary crusher by five
or six employees so that the crusher could be shipped to the
manufacturer for repairs. Mr. Adams stated that the quarry was
down for a winter "seasonal layoff", and other than a large crane
being used to dismantle the crusher, there was no production
equipment operating in the area where the charged boulders were
located. He stated that the boulders were located at an elevated
bench area approximately 600 to 800 feet from the crusher area.

 Mr. Adams did not deny that the cited roll of detonating

cord was not protected or stored in a magazine, but he indicated
that the blaster had not completed the job by fastening the cord
to the detonating devices, and that this would be necessary
before the blast could be detonated. He confirmed that after the
cited boulder conditions were called to his attention by
Inspector Jones on January 23, 1992, he called the blaster at his
home and he came to the quarry within one hour and detonated the
charge, and the citation and orders were then terminated by
Mr. Jones.

 Mr. Adams confirmed that he told Inspector Jones that he was

aware of the cited conditions and that he did so in response to
the inspector's question as to whether or not he knew that the
boulders had been charged. However, Mr. Adams stated that when
be acknowledged that he was aware of this, his response was in
the context of his knowledge as of January 23, 1992, when the
inspector brought the conditions to his attention. Mr. Adams
stated that he was out of town when the accident involving
Mr. Cantrell occurred, and he denied that he ever told Inspector
Jones that he was aware of the charged boulders on January 16,
1992, when the blaster was laid off and left the quarry.
Mr. Adams stated that he was shocked to learn that the blaster
had left the site after charging the boulders, and without
notifying him what he had done, and Mr. Adams believed that the
blaster should probably have been charged with the violations.

 On cross-examination, Mr. Adams reiterated that he laid off

the blaster on January 16, 1992, because of the weather and at
the blaster's request. He confirmed that one of his employees,

either Fred Bartley, Tom Roberts, or Carl Stumbo, first informed
him about the two charged boulders on January 23, 1992.

 With regard to the citation concerning the absence of a

designated person in charge of the quarry on January 22, 1992,
the day following the accident, Mr. Adams stated that Mr. Stumbo
has served as one of his superintendents for many years, has
installed and dismantled a number of crushers over the years, and
had "worked the quarry" for many months. Mr. Adams stated that
based on Mr. Stumbo's many years of experience, he designated him
to operate the crane for the "heavy lift" required to dismantle
the crusher. Mr. Adams stated Mr. Stumbo was in charge of the
crew on January 23, 1992, but was reluctant to admit this to
inspector Jones. Mr. Adams confirmed that Mr. Stumbo was an
experienced and trained superintendent.

 In response to further questions, Mr. Adams conceded that he

designated Mr. Stumbo as the competent person in charge on
January 22, or 23, 1992, after he (Adams) went to the quarry
site. Mr. Adams confirmed that except for the crusher
dismantling work, everything else at the quarry was shut down,
and Mr. Adams believed that Mr. Stumbo was in charge. Mr. Adams
acknowledged that Mr. Stumbo may not have informed Inspector
Jones that he was in charge, and that Mr. Jones may not have had
any reason to believe that Mr. Stumbo was in fact in charge.

 With regard to the failure of Mr. Cantrell to use a safety

belt or line at the time he fell, Mr. Adams acknowledged that
this was the case. However, Mr. Adams stated that one or two
safety belts were available and stored in the equipment storage
room near the crusher area, and that belts were also stored in a
storage shop associated with the Adams Coal operation, which was
a separate corporation operating at the quarry site. Mr. Adams
stated that Mr. Cantrell knew how to use safety belts and lines,
and that he had observed him wearing them in the past during his
30 years of employment at the quarry.

                   Findings and Conclusions

Fact of Violations

Citation No. 3883607

 In this instance, the respondent was charged with a

violation of mandatory safety 30 C.F.R. § 56.15005, after the
inspector determined that Mr. Cantrell was not wearing a safety
belt or line when he fell from the top of the crusher while
performing work to dismantle the crusher so that it could be
shipped for repairs. The cited standard requires that safety
belts and lines be worn when persons work where there is a danger
of falling. The unrebutted evidence in this case establishes
that Mr. Cantrell was working and standing on the top of the

crusher approximately 25 to 30 feet above the ground. He had
jumped to the top of the crusher from an adjacent catwalk and he
was not tied off with a safety line, nor was he wearing a safety
belt. While in the process of removing some material from the
top of the crusher and throwing it to the ground below, he fell
off and sustained serious injuries.

 The respondent does not dispute the fact that Mr. Cantrell

was not wearing a safety belt and that he was not tied off while
working at the top of the crusher. I conclude and find that
Mr. Cantrell, working 25 to 30 feet above ground, at the top of a
crusher that was in the process of being dismantled, was in a
position or at a location where there was a danger of falling,
and that he was required to wear a safety belt or line while
performing the work in question. Since it is clear that he was
not wearing a safety belt or line, a violation of section
56.15005, has been established by a clear preponderance of the
evidence, and the violation IS AFFIRMED.

Order No. 3883608

 In this instance the respondent was charged with another

violation of the safety belt and line requirements found in
section 56.15005, after the inspector observed two employees
working on top of the crusher the day following the accident
involving Mr. Cantrell. The credible and unrebutted evidence
establishes that the two employees were working approximately
25 feet above ground level while standing with one foot on bolts
sticking out of the side of the crusher while they were cutting
metal with torches. They were not wearing safety belts and lines
and were not otherwise tied off to prevent them from falling to
the ground below. I conclude and find that the two cited
employees were working at a location where there was a danger of
falling, and that section 56.15005, required them to wear safety
belts or lines while performing work at that location. Since
they were not, I further conclude and find that a violation of
section 56.15005, has been established by a clear preponderance
of the evidence, and the violation IS AFFIRMED.

Order No. 3883609

 The respondent here is charged with a violation of mandatory

safety standard 30 C.F.R. § 56.18009, which provides as follows:
"When persons are working at the mine, a competent person
designed by the mine operator shall be in attendance to take
charge in case of an emergency". The inspector issued the
violation after returning to the work site the day after the
accident and observing that six men were continuing the work of
dismantling the crusher. None of the working employees informed
the inspector that anyone had been designated by management to be
in charge. Although the inspector determined that the crane
operator, Carl Stumbo, may have been a foreman in charge at the

site in the past, Mr. Stumbo informed him that he was not in
charge on January 22, 1992.

 The respondent's defense is that Mr. Stumbo was a longtime

employee who was trained in safety and repair matters, and that
on the day in question, the inspector admitted that Mr. Stumbo
"seemed to be in charge, or at least seemed to know what was
going on". The respondent's president, Stuart Adams, testified
that Mr. Stumbo had served as one of his superintendents in the
past and had installed and dismantled a number of crushers.
Mr. Adams initially testified that he designated Mr. Stumbo to
operate the crane on the day in question, and he claimed that
Mr. Stumbo was in charge of the crew. Mr. Adams later conceded
that he designated Mr. Stumbo as the competent person in charge
only after he went to the quarry site a day or two later. He
also conceded that Mr. Stumbo did not step forward to identify
himself to the inspector as the designated person in charge, and
when asked what he expected of the inspector under those
circumstances, Mr. Adams responded "You're absolutely right"
(Tr. 138).

 The respondent's defense IS REJECTED. I find no credible

evidence to support any reasonable conclusion that Mr. Stumbo was
in fact designated to be in charge in case of an emergency on the
day the citation was issued. Mr. Stumbo was not called to
testify, and I find Mr. Adams' testimony to be rather
contradictory and equivocal to support any suggestion that
Mr. Stumbo was in fact the designated person pursuant to
section 57.18009. If Mr. Stumbo was the designated person in
charge, I find it rather strange that neither he or his crew was
aware it. I conclude and find that the petitioner has
established a violation of section 56.18009, by a preponderance
of the evidence, and the violation IS AFFIRMED.

Citation No. 3883610, and Order Nos. 3883611 and 3883612

 In the course of the hearing, and in its posthearing brief,

the respondent took the position that the three cited violations
concerning the charged boulders were not justified because they
concern a single condition, namely, the two boulders which had
been drilled and charged in preparation for blasting. The
respondent questions the legality and propriety of issuing three
separate violations and orders for one single condition.
However, this issue has been raised in the past, and the defense
advance by the respondent here has been rejected by the
Commission. See: El Paso Rock Quarries, Inc., 3 FMSHRC 35,
40 (January 1981), and the recent decision in Cyprus Tonopah
Mining Corp., 15 FMSHRC 367,378 (March 1993), where the
Commission stated in relevant part that "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".

 After careful consideration of the respondent arguments, I

conclude and find that the issuance of the three separate
violations by the inspector was justified and warranted and did
not constitute an unreasonable or arbitrary enforcement action.
The credible and unrebutted testimony of the inspector
establishes that each of the cited conditions in question
constituted separate and distinct conditions which were in
violation of the three cited mandatory safety standards. Indeed,
the respondent conceded that the cited conditions existed
(Tr. 6-7, 104-109), and its defense is based on certain
mitigating arguments in connection with the amount of the
proposed civil penalty assessments.

 With regard to Citation No. 3883610, mandatory safety

regulation section 56.6313, requires that all areas in which
loading is suspended, or loaded holes are awaiting firing, shall
be attended, barricaded and posted, or flagged against
unauthorized entry. The credible evidence establishes that at
the time the inspector observed the charged boulders, they were
loaded and awaiting firing, and the blaster had left the
property. Thus, it seems clear that the loading and blasting of
the charged holes had been suspended and were awaiting firing,
and the inspector found no evidence that the affected area was
attended, barricaded and posted, or flagged against unauthorized
entry. Under the circumstances, I conclude and find that the
petitioner has established a violation of section 56.6313, by a
preponderance of the evidence, and IT IS AFFIRMED.

 With regard to Order No. 3883611, section 56.6320, of MSHA's

mandatory standards provides that all charged holes are to be
blasted as soon as possible after charging has been completed.
However, the standard further provides that "In no case shall the
time elapsing between the completion of charging to the time of
blasting exceed 72 hours unless prior approval has been obtained
from MSHA". The credible and unrebutted evidence in this case
establishes that more than 72 hours passed from the time the
boulders were charged on or before January 16, 1992, until they
were blasted on January 23, 1992, and MSHA had not granted
permission for an extension of time. Under the circumstances, I
conclude and find that the petitioner has established a violation
of section 56.6320, by a preponderance of the evidence, and the
violation IS AFFIRMED.

 With regard to Order No. 3883612, section 56.6305, of MSHA's

mandatory standards requires that all unused explosive materials
be moved to a protected location as soon as practical after
loading operations are completed. The credible evidence in this
case establishes that the 1,000 foot roll of detonating cord was
an explosive material which had not been moved to a protected

location or stored in a magazine, and the respondent presented no
credible evidence that it was not practical to move the roll of
exposed detonating cord to a protected area before it was found
by the inspector. Accordingly, I conclude and find that the
petitioner has established a violation by a preponderance of the
evidence, and the violation IS 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, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a
 mandatory safety standard is significant and
 substantial under National Gypsum the Secretary of
 Labor must prove: (1) the underlying violation of a
 mandatory safety standard; (2) a discrete safety
 hazard--that is, a measure of danger to safety-
 contributed to by the violation; (3) a reasonable
 likelihood that the hazard contributed to will result
 in an injury; and (4) a reasonable likelihood that the
 injury in question will be of a reasonably serious
 nature.

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

1129, the Commission stated further as follows:

      We have explained further that the third element
 of the Mathies formula "requires that the Secretary
 establish a reasonable likelihood that the hazard
 contributed to will result in an event in which there
 is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
 1836 (August 1984). We have emphasized that, in
 accordance with the language of section 104(d)(1), it
 is the contribution of a violation to the cause and
 effect of a hazard that must be significant and
 substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
 1866, 1868 (August 1984); U.S. Steel Mining Company,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The 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). Further, any determination of the significant
and substantial nature of a violation must be made in the context
of continued normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSHRC 1573, 1574
(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329
(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986).

Citation No. 3883607 and Order No. 3883608

 The evidence reflects that Mr. Cantrell fell from the top of

the crusher while in the process of throwing some material
to the ground below. The two other employees who were observed
working at the same location the next day were in the process of
cutting metal with torches while in close proximity to each other
and with one foot on bolts which protruded from the side of the
crusher. They too were not wearing safety belts or lines, and
they were not otherwise secured against falling approximately
25 to 30 feet to the ground below. Under the circumstances, I
believe that one can reasonably conclude that these individuals
were exposed to a falling hazard, and that in the event of a fall
they would reasonably likely suffer serious or fatal injuries.
Indeed, Mr. Cantrell fell and suffered serious and disabling
injuries, and in the context of continuing mining operations, I
conclude and find that the two employees who were busy working
with cutting torches in their hands while "perched" atop the
crusher in rather precarious positions would be exposed to a
discreet falling hazard, and if they were to fall, it would be
reasonably likely that they would suffer serious or fatal
injuries. Under all of these circumstances, I conclude and find
that the inspector's "S&S" findings with respect to both of these
violations were justified, and they ARE AFFIRMED.

Order No. 3883609

 Inspector Jones concluded that the failure of the respondent

to designate someone to be in charge of the work crew in case of
an emergency was a significant and substantial violation because
"the mining industry has been proven to be a dangerous industry.
Injuries happen all the time. . . . it has been proven to me that
in the event of an emergency, somebody needs to be in charge"
(Tr. 62). On the facts of this case, it seems obvious to me that
Mr. Jones was influenced by the fact that after Mr. Cantrell was
injured, the crew continued working on the very same crusher from
which Mr. Cantrell fell without anyone being officially
designated to be in charge in the event of any further emergency
situation similar to the one involving Mr. Cantrell. Mr. Jones
also believed that someone needed to be designated in charge so

that proper decisions could be made, and proper precautions taken
in time of an emergency (Tr. 60).

 In this case, Mr. Cantrell was the designated person in

charge prior to his injury, but after he was injured work
continued without anyone being officially designated to be in
charge in case of any further emergency. Although crane operator
Stumbo assumed control of the situation when Mr. Cantrell was
injured, and properly attended to him while awaiting assistance,
the failure to designate someone to be in charge when the
dismantling work continued in the absence of Mr. Cantrell exposed
the employees who continued with the work to the hazard of not
having anyone immediately available to take over in the event of
an emergency. If someone had been specifically designated to be
in charge as the work on dismantling the platform continued, and
was held accountable, it is altogether possible that the two
employees observed working on top of the crusher without being
secured against falling would not have been allowed to continue
working under those hazardous conditions, and they presumably
would have been instructed by the person in charge to wear safety
belts and lines. Under the circumstances, I conclude and find
that the inspector's "S&S" finding was justified, and IT IS
AFFIRMED.

Citation No. 3883610 and Order No. 3883612

 Inspector Jones' credible and unrebutted testimony clearly

establishes the hazards associated with leaving charged explosive
devices such as dynamite, detonating cord, and primer exposed and
unattended to (Tr. 84). While it is true that the mine was not
in operation when the inspector found the charged materials, and
that the boulders which were primed for blasting were in a remote
area, the inspector's unrebutted testimony reflects that
equipment and mine personnel, as well as other individuals who
had business at the site, would be exposed to hazards resulting
from a premature detonation of the charged boulders. The
inspector observed three state inspectors pass by the area, and
given the fact that there were no barricades to prevent anyone
from venturing near the boulders, and the area was not flagged to
alert persons of the danger, I believe that in the event of a
premature detonation, it would be reasonably likely that anyone
in the blast area would suffer injuries of a reasonably serious
nature. Under the circumstances, I conclude and find that the
inspector's "S&S" findings with respect to both of these
citations were warranted and justified, and they ARE AFFIRMED.

             Unwarrantable Failure Violation

 The governing definition of unwarrantable failure was

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided

under the 1969 Act, and it held in pertinent part as follows at
295-96:

      In light of the foregoing, we hold that an
 inspector should find that a violation of any mandatory
 standard was caused by an unwarrantable failure to
 comply with such standard if he determines that the
 operator involved has failed to abate the conditions or
 practices constituting such violation, conditions or
 practices the operator knew or should have known
 existed or which it failed to abate because of a lack
 of due diligence, or because of indifference or lack of
 reasonable care.

 In several recent decisions concerning the interpretation

and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). Referring to its prior holding in
the Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:

      We stated that whereas negligence is conduct that
 is "inadvertent," "thoughtless" or "inattentive,"
 unwarrantable conduct is conduct that is described as
 "not justifiable" or "inexcusable." Only by construing
 unwarrantable failure by a mine operator as aggravated
 conduct constituting more that ordinary negligence, do
 unwarrantable failure sanctions assume their intended
 distinct place in the Act's enforcement scheme.

 In Emery Mining, the Commission explained the meaning of the

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:

      We first determine the ordinary meaning of the
 phrase "unwarrantable failure." "Unwarrantable" is
 defined as "not justifiable" or "inexcusable."
 "Failure" is defined as "neglect of an assigned,
 expected, or appropriate action." Webster's Third New
 International Dictionary (Unabridged) 2514, 814 (1971)
 ("Webster's"). Comparatively, negligence is the
 failure to use such care as a reasonably prudent and
 careful person would use and is characterized by
 "inadvertence," "thoughtlessness," and "inattention."
 Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
 that is not justifiable and inexcusable is the result
 of more than inadvertence, thoughtlessness, or
 inattention. * * *

Citation No. 3883607

 Inspector Jones testified credibly that he based his

unwarrantable failure finding on the fact that Mr. Cantrell was
serving as the assistant mine superintendent at the time he was
injured because of his failure to wear a safety belt and line.
As an agent of management, Mr. Jones believed that Mr. Cantrell
knew that what he was doing was an unsafe act, and that he
suffered serious injuries because of his own actions (Tr. 17).
Mr. Jones later conceded that he did not speak with Mr. Cantrell
after he was injured and he simply assumed that as an experienced
and trained superintendent, Mr. Cantrell would be expected to
know that a safety belt and line were required to be worn and
that his working on top of the crusher without wearing a belt and
line was an unsafe act (Tr. 31-34).

 Mr. Adams did not dispute the fact that Mr. Cantrell was not

wearing a safety belt and line when he fell from the crusher.
Mr. Adams asserted that belts were available and were stored
nearby in two storage rooms, and he produced some new belts and
lines after the violation was issued. Further, Mr. Adams
believed that Mr. Cantrell knew how to use a belt because he had
observed him doing so during his many years of working at the
site. Inspector Jones confirmed that the respondent had not
previously been cited for any safety belt violations, and he
conceded that he did not determine whether the respondent had any
established safety rules in place, or that the respondent made it
a practice to allow workers to work on high places without
wearing a safety belt (Tr. 37-38). Although these factors may be
considered by me in mitigating the civil penalty assessment for
the violation in question, they may not serve as an absolute
defense warranting a dismissal of the violation.

 The evidence here establishes that Mr. Cantrell was an

experienced and trained management member who had worked for the
respondent for thirty years and served in a responsible
superintendent's position. It is difficult for me to comprehend
what may have prompted Mr. Cantrell to place himself in such a
precarious position on top of the crusher without securing
himself from falling. While it is most unfortunate that
Mr. Cantrell's actions resulted in his serious and disabling
injuries, as a member of management, he must nevertheless be held
responsible and accountable for his reckless and inexcusable
conduct. I conclude and find that Mr. Cantrell's failure to
comply with the requirements of the cited standard by failing to
wear a safety belt or line while working on top of the crusher
where there was a danger of falling constituted sufficient
"aggravated conduct" to support the inspector's unwarrantable
failure finding. Accordingly, the inspector's finding and the
contested citation ARE AFFIRMED.

Order No. 3883608

 Inspector Jones testified that he based his section

104(d)(1) unwarrantable failure order on the fact that the
individual tending the scale house told him that he had spoken to
Mr. Stuart Adams a couple of times about Mr. Cantrell's accident
and informed him about what had happened to Mr. Cantrell
(Tr. 46). Mr. Jones believed that Mr. Adams was aware of the
fact that Mr. Cantrell had fallen off the crusher the day before
and that he was aware of the fact that he was not wearing a
safety belt. Since the work of dismantling the crusher continued
after Mr. Cantrell's accident, Inspector Jones believed that
Mr. Adams "could understand the possibility of a man getting
injured" if he were not wearing a safety belt or line when the
work continued (Tr. 47-48).

 The evidence reflects that the respondent had erected a work

platform around the crusher, but it was dismantled to facilitate
the final removal of the structure. The inspector confirmed that
he found one safety belt in the work area, but he did not believe
it was usable. He also testified that he looked around the
immediate work area and found no other safety belts or lines, and
asked the employees about them (Tr. 44). Mr. Adams claimed that
safety belts were stored in a storage room near the crusher area,
and that additional belts were stored in another storage shop
associated with a coal mining operation carried out by the
respondent at the site.

 I conclude and find that the inspector's unwarrantable

failure finding was justified. While it may be true that safety
belts and lines were stored in storage rooms, the fact remains
that the two cited employees were not wearing them at the time
they were observed working at a precarious position on top of the
very same crusher from which Mr. Cantrell fell and was seriously
injured because he was not wearing a safety belt or line. As the
responsible mine operator, Mr. Adams had an obligation and duty
to insure that the men who continued to work on the crusher after
Mr. Cantrell was injured were wearing safety belts and lines to
preclude another serious accident. I conclude and find that
Mr. Adams' failure to do so constituted "aggravated conduct" and
clearly supports the inspector's order. Accordingly, the
inspector's finding and the contested order ARE AFFIRMED.

Order No. 3883609

 Inspector Jones testified that since quarry operator Stuart

Adams initially found it necessary to designate Mr. Cantrell as
the person in charge in the event of an emergency, he should have
designated someone to replace Mr. Cantrell as the person in
charge after Mr. Cantrell was injured. Since he did not do so,
Mr. Jones believed that the unwarrantable failure order was
justified (Tr. 62).

 The credible and unrebutted testimony of Mr. Adams reflects

that he was out of town on the day that Mr. Cantrell was injured,
that the quarry was not in a normal production mode, and the only
work taking place was the dismantling of the crusher. Mr. Adams
stated that he designated Carl Stumbo, an experienced and trained
crane operator, who had previously served as one of his
superintendents, to operate the crane used to dismantle the
crusher. Conceding that he did not formally designate or
advertise Mr. Stumbo as the person in charge, Mr. Adams testified
credibly that he believed that Mr. Stumbo was in charge, but that
Mr. Stumbo was reluctant to admit this to the inspector.

 I take note of the fact that section 56.18009, requires the

designation of "a competent person" to be in charge in the event
of an emergency. A "competent person" is defined in section
56.2, as a person "having abilities and experience that fully
qualify him to perform the duty to which he is assigned". I find
no evidence to suggest that Mr. Stumbo was not qualified to
perform his crane duties, and although I have concluded that
Mr. Adams did not specifically designate Mr. Stumbo to be in
charge in case of an emergency in violation of section 56.18009,
I find his explanation in mitigation of the violation to be
plausible and believable.

 After careful consideration of all of the evidence presented

in support of the disputed order, I conclude and find that the
inspector's asserted justification for his unwarrantable failure
finding does not support a finding of aggravated conduct on the
part of the respondent. In my view, the inspector's testimony
reflects the application of a "knew or should have known"
standard to support a moderately high degree of negligence,
rather than the kind of "aggravated conduct" reflected by the
Commission's relevant decisions. Under the circumstances, the
inspector's unwarrantable failure finding IS VACATED, and the
section 104(d)(1) Order IS MODIFIED to a section 104(a) citation
with "S&S" findings.

Citation No. 3883610 and Order Nos. 38833611 and 3883612

 The evidence reflects that the blaster who prepared the

boulders for blasting was laid off on January 16, 1992, and that
when he left the mine site that day the boulders had not been
shot, and they remained in that condition until January 23, 1992,
when Mr. Jones observed them during his inspection. Mr. Jones
testified that Mr. Adams admitted that he knew that the cited
conditions existed, and because of these purported admissions,
Mr. Jones concluded that the violations were unwarrantable
failure violations pursuant to section 104(d)(1) of the Act
(Tr. 80, 89, 109).

 Mr. Adams testified that he was informed of the existence of

the two charged boulders on the morning of January 23, 1992, by

one of his employees while Mr. Jones was at the quarry, and that
he immediately called the blaster at his home and instructed him
to come to the site and detonate the charged boulders. Mr. Adams
confirmed that the blaster left the site on January 16, 1992,
when he was laid off at his own request, but Mr. Adams denied
that the blaster informed him that day that the boulders had been
drilled and charged. Mr. Adams further denied that he admitted
to Mr. Jones that he had been aware of the conditions since
January 16, 1992. Mr. Adams acknowledged that he answered in the
affirmative when Mr. Jones asked him if he were aware of the
cited conditions, but he explained that this response was made in
the context of his knowledge as of the day of the inspection on
January 23, 1992, after he learned of the cited conditions from
one of his employees.

 The critical issue in support of the unwarrantable failure

findings by Inspector Jones is whether or not Mr. Adams had known
since January 16, 1992, that the boulders had been drilled and
charged and left in that condition by the blaster at the time he
was laid off at his own request, or whether Mr. Adams first
learned of the conditions on January 23, 1992, as he claims.

 The burden of proof with respect to the alleged

unwarrantable failure violations lies with the petitioner.
Although the citation and orders include a statement that "the
operator was aware that this condition existed" as part of the
description of the cited conditions, I find no credible evidence
to support a conclusion that Mr. Adams knew that the cited
conditions existed as of January 16, 1992, when the blaster was
laid off. Nor do I find any credible evidence that Mr. Adams
laid the blaster off knowing full well that the boulders had been
drilled, loaded, and made ready to be blasted, and that he simply
allowed them to remain in that condition indefinitely.

 The blaster was not called to testify, and there is no

indication that he was deposed, or that he was unavailable for
the hearing or beyond the reach of a subpoena. Inspector Jones
confirmed that he spoke with the balster when he returned to the
site on January 23, 1992, in response to Mr. Adams' request, but
Mr. Jones could not remember whether he asked the blaster if he
had informed Mr. Adams on January 16, 1992, that he had drilled
and charged the boulders before he left the quarry site that day.
Further, although Mr. Jones confirmed that he made some
inspection notes concerning the violations, he did not have them
with him during his hearing testimony, and none have been
produced.

 The respondent's compliance history does not reflect any

prior blasting citations, nor does it reflect any prior
unwarrantable failure violations. Further, Mr. Adams' testimony
that the blaster himself asked to be laid off is not rebutted,
and it stands in contrast to the inspector's undocumented

testimony that the blaster told him that Mr. Adams came to the
site on January 16, 1992, and told him that he was laying him off
"as of right now", and that the blaster simply walked away. When
asked whether or not the blaster gave any explanation for
Mr. Adams' rather abrupt and unannounced layoff, the inspector
stated that the blaster told him that Mr. Adams "did what he
pleased" and that his decisions were "final and instant"
(Tr. 103).

 Having viewed Mr. Adams in the course of the hearing, he

impressed me as being rather independent and not too enchanted
with the inspector, but he did not impress me as the kind of
individual who would deliberately leave himself open to severe
sanctions pursuant to section 110(c) of the Act, or to possible
criminal action, by knowingly allowing a blaster to walk away
from his quarry leaving behind two charged boulders which had
been readied for blasting. Mr. Adams also impressed me as a
credible individual, and I find his testimony that he first
learned about the boulders on January 23, 1992, on the day of the
inspection, rather than on January 16, 1992, as suggested by the
inspector, to be believable and plausible. I take note of the
fact that the boulders were located in a remote area of the
quarry, and based on the testimony and evidence adduced in this
case it does not appear that Mr. Adams was continuously at the
quarry site for any extended periods of time. Under the
circumstances, and in the absence of any evidence of aggravated
conduct on the part of the respondent, I conclude and find that
the petitioner has failed to make a case in support of the
unwarrantable failure findings by the inspector. According, his
findings in this regard ARE VACATED, and the contested section
104(d)(1), citation and orders ARE MODIFIED to section 104(a)
citations.

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

 Inspector Jones described the respondent's mining operation

as a multi-bench limestone operation which crushes limestone rock
in the primary crusher. After the crushing process, the
limestone is transported to a conveyor belt to a screen where it
is sized in different categories and stockpiled for sale to
customers. Mr. Jones stated that the quarry consists of
approximately twelve acres. At the time of his inspection there
were approximately six employees dismantling the primary crusher
so that it could be repaired, six-to-eight employees were working
in the shop, and one employee was at the scale house where the
stockpiled crushed limestone would be loaded on the customers
trucks. He also indicated that at one time the respondent had as
many as fifty employees working at the quarry property.

 The information provided on the face of MSHA Forms 1000-179,

Proposed Assessment, which are part of the pleadings, reflect

that the respondent produced 86,640, tons of crushed limestone
annually (Exhibits G-7 and G-8).

 Based on all of the available evidence and testimony, I

conclude and find that the respondent is a small mine operator,
and absent any evidence to the contrary, I further conclude and
find that payment of the civil penalty assessments which I have
made for the citations in question will not adversely affect the
respondent's ability to continue in business.

History of Prior Violations

 An MSHA computer print-out reflects that the respondent paid

civil penalty assessments of $870, for eighteen (18)
section 104(a) citations during the period January 22, 1990,
through January 21, 1992. Twelve (12) of the citations are
"single penalty" non-"S&S" citations, and there are no prior
violations for any of the mandatory safety standards cited in
these proceedings. Under all of these circumstances, I cannot
conclude that the respondent's compliance record warrants any
additional increases in the civil penalty assessments that I have
made for the violations which have been affirmed.

Good Faith Compliance

 The evidence adduced in these proceedings reflects that all

of the violations were timely abated by the respondent in good
faith.

Gravity

 With the exception of non-"S&S" Citation No. 3883611, and

based on my findings and conclusions affirming the inspector's
"S&S" findings with respect to the remaining violations, I
conclude and find that those violations were all serious.

Negligence

 I conclude and find that the two unwarrantable failure

violations (Citation No. 3883607 and No. 3883608), were the
result of a high degree of negligence. Taking into account the
fact that the Act imposes a high degree of care on a mine
operator to insure compliance with all mandatory safety
standards, I conclude and find that the remaining violations all
resulted from the respondent's failure to exercise reasonable
care amounting to a moderately high degree of negligence.

                Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that the

following civil penalty assessments are reasonable and
appropriate for the violations which have been affirmed:

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

  3883607        1/22/92           56.15005              $1,600
  3883608        1/22/92           56.15005              $1,000
  3883609        1/22/92           56.18009                $225
  3883610        1/23/92           56.6313                 $275
  3883611        1/23/92           56.6320                  $75
  3883612        1/23/92           56.6305                 $250

                           ORDER

 The respondent IS ORDERED to pay the civil penalty

assessments enumerated above within thirty (30) days of the date
of these decisions and order. Payment is to be made to the
petitioner (MSHA), and upon receipt of payment, these proceedings
are dismissed.

                             George A. Koutras
                             Administrative Law Judge

Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

David H. Adams, Esq., P.O. Box 2853, Pikeville, KY 41502
(Certified Mail)

/ml