Lebanon Rock Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

Lebanon Rock operated a portable limestone crushing plant. A laborer was injured when a return conveyor restarted while he was repairing its skirting, after the conveyor had been turned off but not locked out. The judge affirmed citations for failing to use the lockout system and failing to provide a start-up warning where the full conveyor was not visible, finding both violations significant and substantial. The judge assessed penalties of $1,000 and $800.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.12016 and § 56.9006
• Outcome: Both citations, the S&S findings, and the civil penalties were affirmed.
• Key point: Turning equipment off is not a substitute for locking it out before work begins, and hidden conveyor sections require an effective start-up warning.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. LEBANON ROCK
DDATE:
19900522
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. PENN 89-73-M
PETITIONER A.C. No. 16-00039-05505

      v.                             Lebanon Quarry

LEBANON ROCK INCORPORATED,
RESPONDENT

                         DECISION

Appearances: Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Robert M. Mumma II, President, Lebanon Rock,
Incorporated, Harrisburg, Pennsylvania, Pro se,
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), seeking civil penalty assessments for
two alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. A
hearing was held in Harrisburg, Pennsylvania, and the parties
waived the filing of posthearing briefs. However, they presented
oral arguments at the close of the hearing, and I have considered
these arguments in the course of my adjudication of this matter.

                            Issues

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

respondent violated the cited mandatory safety standards, (2)
whether the violations were "significant and substantial" (S&S),
and (3) the appropriate civil penalties to be assessed

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pursuant to the civil penalty assessment criteria found in
section 110(i) of the Act. 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, 30 U.S.C.

301, et seq

 2. Sections 56.9006 and 56.12016, Title 30, Code of Federal

Regulations.

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

Stipulations

 The parties stipulated to the following (Tr. 6-7):

      1. The Lebanon Quarry is owned and operated by the
 respondent and it is subject to the jurisdiction of the
 Act.

      2. The presiding judge has jurisdiction to hear and
 decide this matter.

      3. The violations were timely abated by the respondent.

      4. The quarry production is approximately 200,000 tons
 a year. The quarry produces high calcium limestone (Tr.
 28).

      5. The respondent's history of prior violations, as
 shown by an MSHA computer print-out, reflects a
 favorable history of compliance.

      6. Payment of the proposed civil penalty assessments
 will not adversely affect the respondent's ability to
 continue in business.

      7. The respondent owns the property where the subject
 quarry is located and it shares the property with the
 Elco Concrete Company.

                        Discussion

 The facts and evidence in this case establish that an

accident occurred on May 25, 1988, at a portable limestone
crushing and processing plant owned and operated by the
respondent. Patrick Werth, a laborer who sometimes operated the
crusher, was injured while performing work repairing the skirting
on a return

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belt. Mr. Werth had turned the belt off by using a push button,
but he did not lock the belt out with a lock which was provided
and available at the electrical switchbox location. While he was
performing this work, the crusher operator and a loader operator
were attempting to dislodge a rock which was stuck in the crusher
jaws. The crusher and crusher take-away belt were running while
this work was going on, and this was a normal and acceptable
operating procedure when rocks are stuck in the crusher.

 After freeing the rock, the loader operator who was helping

the crusher operator, started the return belt which Mr. Werth was
working on. Mr. Werth was standing on a portion of the return
belt which was not visible from the location where the crusher
and loader operator were working, and they could not see Mr.
Werth because the view was obstructed by the belt structure and
framework. No signal or warning was sounded before the return
belt was started up, and since it was not locked out, Mr. Werth
was drawn through a 15-inch high opening and suffered cracked
vertebrae. When the crusher operator realized that Mr. Werth was
on the belt when it started up, he immediately shut it down by
using the same push button used by Mr. Werth to turn the belt
off. The push button was located at the crusher station where the
crusher and loader operator were working to free the rock.

 As a result of the accident, MSHA Inspector Andrew Nawa

conducted an investigation, and after completing it he issued the
following citations:

 Section 104(a) "S&S" Citation No. 2626303, May 26, 1988,

cites an alleged violation of 30 C.F.R. 56.12016, and the cited
condition or practice is described as follows:

      The plant helper or laborer was injured while repairing
 the return belt conveyor skirting. The helper was on
 the belt while other employees were working on the
 primary crusher trying to free a hang-up. When the
 hang-up was cleared the conveyor belts were started. A
 lock-out system was provided but not used.

 Section 104(a) "S&S" Citation No. 2626304, May 26, 1988,

cites an alleged violation of 30 C.F.R. 56.9006, and the cited
condition or practice is described as follows:

      A start-up signal was not provided for the crushing
 plant. An employee was injured while in a confined
 space and not provided with adequate warning of the
 start-up of the plant.

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Petitioner's Testimony and Evidence

 Patrick Werth testified that he was employed by the

respondent as a laborer and was laid off on December 17, 1989. He
confirmed that he was working at the mine on May 25, 1988, when
he was injured when he was caught under a brace on the return
belt of the portable plant when the belt was started up while he
was standing on it while repairing the belt skirting.

 Mr. Werth stated that he went to the belt area to work on

the belt after he had helped two other employees, Mr. Stanley
Deck and Mr. Alberto Rolon, free up a rock which was stuck in the
crusher jaw. He confirmed that he had shut the belt down by
turning it off at a switch box which was located at the platform
which was over the crusher where the work to free the rock was
taking place. The switch box was approximately 100 feet from
where he was working on the belt skirting. He also confirmed that
he told Mr. Rolon and Mr. Deck that he was going to work on the
return belt.

 Mr. Werth stated that he had worked for the respondent for 9

weeks before he was injured and that he received no training
during his employment. He stated that on the day he started work
he was instructed to go to the crusher and that another employee
told him what to do. He identified his boss during the 9 weeks of
his employment as Mr. Doug Glasford, who he identified as the
quarry foreman or superintendent (Tr. 14-19).

 Mr. Werth stated that the entire length of the return belt

on which he was working could not be seen from the starting
switch box location and that the view along 10 feet of the belt
was obstructed by the belt bracing (Tr. 20).

 Mr. Werth stated that he suffered three cracked vertebrae

when he was caught in the belt bracing and was hospitalized for 7
days. He was out of work for a year and 2 months, cannot lift
heavy objects, and he sometimes has pain (Tr. 20).

 On cross-examination, Mr. Werth explained what he was doing

while attempting to free the rock lodged in the crusher and he
confirmed that the crusher and crusher belt were both in
operation. He confirmed that if the rock were freed, it would
have dropped through the crusher and onto the running belt, and
that it would have jammed the return belt which he had shut off
when it reached that point. He conceded that the shutting down of
the return belt was not normal procedure, and that normally all
of the belts are started before the crusher is started (Tr. 22).

 In response to further questions, Mr. Werth confirmed that

operating the crusher while attempting to free the rock was
normal procedure because the crusher vibration will help free the
jammed rock (Tr. 25). He confirmed that he had never heard about

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the belt lock out procedure and that the switch which he used to
shut off the return belt was a push button on/off switch. There
was no switch at the location where he was working on the return
belt skirting, and in order to start and stop the belt, he would
have to go to the switch located at the crusher platform (Tr.
28-29).

 Mr. Werth stated that after the rock was cleared from the

crusher Mr. Deck started up all of the belts after he saw the
rock go down the crusher. He confirmed that Mr. Rolon quickly
stopped the return belt because he knew that he was there (Tr.
30).

 Andrew Nawa, self-employed, testified that he was formerly

employed by MSHA as a district health specialist and left in
August, 1988. He confirmed that he visited the mine on May 26,
1988, to conduct an investigation of the accident concerning Mr.
Werth. He identified exhibit G-1, as the accident report which he
prepared. He explained his findings and confirmed that he issued
the citations in question (Tr. 31-39).

 Mr. Nawa confirmed that he issued Citation No. 2626303,

citing a violation of 30 C.F.R. 56.12016, because the power
switches for the belt conveyors were not locked out while Mr.
Werth was performing his work (Tr. 39, exhibit G-2). He confirmed
that locks were provided by the respondent in the control trailer
where the electrical power switches for the plant were located.
The locks were provided for the lockout system, and they were
hanging on the wall. However, they were not used to lock out the
belt conveyors and no warning signs were posted. The belts should
have been locked out in the trailer where the off/on switch was
located and at the primary crusher area by the person who shut it
off (Tr. 41-42).

 Mr. Nawa stated that the violation was significant and

substantial because an accident occurred and that if a belt
starts up and moves when someone is not expecting it, he could
sustain injuries ranging from a pinched finger to a fatality. He
stated that there is "a vast history of accidents of people
getting hurt that way." Since the accident occurred, the
likelihood of injury was high (Tr. 42).

 Mr. Nawa stated that he based his high negligence finding on

the fact that an order had been issued approximately a month
earlier at the site for failure to use a lockout system which was
available. He believed that the order was served on Elco Concrete
Products, but that the management at the site was aware of what
transpired (Tr. 43).

 Mr. Nawa confirmed that he issued Citation No. 2626304,

citing a violation of section 56.9006, for the failure by the
respondent to provide and use a start-up signal before starting

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the conveyor belts (Tr. 43). Petitioner's counsel asserted that
the cited standard has been redesignated as section 56.14201, as
part of Title 30, Code of Federal Regulations, effective July 1,
1989 (Tr. 45, exhibit G-4). Counsel confirmed that the standard
in effect at the time the citation was issued is essentially the
same, and the respondent agreed (Tr. 45-46).

 Mr. Nawa stated that he cited a violation of section

56.9006, because the accident occurred when Mr. Werth was in a
position where he could not be seen from the location of the
start-up switch and no signal system was provided. He confirmed
that the entire length of the belt was not visible from either of
the two belt start-up positions and that he personally determined
that this was the case and that no warning systems were installed
on any of the belts (Tr. 47-48).

 Mr. Nawa confirmed that the violation was significant and

substantial because the accident occurred, the lack of a start-up
signal can result in serious accidents, and he was personally
aware of injuries resulting from the lack of such a signal. There
was always a risk that someone will be caught in moving machinery
because they are not aware that it is going to move. If a signal
were used, a person would have time to stay clear of the moving
equipment (Tr. 48).

 Mr. Nawa stated that he made a finding of moderate

negligence because start-up signals were in use in other places
at the facility, and he was not sure that the respondent was
aware of the need for a signal at the cited portable plant (Tr.
49).

 On cross-examination, Mr. Nawa confirmed that the prior

order was served on Elco Concrete Products and not on Lebanon
Rock, and he conceded that he was not sure about who the
management personnel were who were operating at the same facility
as the respondent. However, he believed that there was continuity
among the same individuals and companies who operated at the
site. He stated that when he went to the site to investigate the
accident a lady serving as the scale master was vague as to who
was in charge of the respondent's operation and that 20 minutes
passed before anyone appeared and identified themselves as the
respondent's superintendent (Tr. 51-52).

 In response to further question, Mr. Nawa confirmed that Mr.

Werth was not trained in the use of the lockout system, and he
doubted that Mr. Rolon and Mr. Deck received any training (Tr.
60).

 MSHA Metal/Non-Metal Inspector Elwood Frederick, testified

that he terminated Citation No. 2626304, after the respondent
installed a signal belt on the crusher oil pump to signal when it
was started and a siren which also sounded when the conveyor belt
system was started up. Mr. Frederick confirmed that he had

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previously inspected the respondent's plant in March, 1988, and
that he issued a combined section 107(a) order and 104(a)
citation to Elco Concrete Products, Inc., citing a violation of
section 56.12016, for failing to lock out the primary crusher
main conveyor belt before performing work on the belt skirts
(exhibit G-5).

 Mr. Frederick stated that the respondent and Elco operated

at the same quarry location and that the respondent owned the
land. He explained that prior to March, 1988, there was no
distinction between the two operations and they were conducted by
the same family, namely, the family of Mr. Mumma, the
respondent's owner. Referring to his notes and an MSHA conference
work sheet which were attached to a copy of his order/citation,
Mr. Frederick stated that Mr. Doug Glasford was identified as the
respondent's plant superintendent, and that Mr. Richard Allwein
was identified as Elco's superintendent. He explained that during
his inspections of the quarry site, he encountered problems in
identifying the specific family members or individuals who were
responsible for the respondent's and Elco's operations, and that
this was caused by a split among the family who had interests in
both operations. As a result of these problems, Mr. Frederick
assigned an MSHA independent contractor ID Number to Elco so that
he could distinguish it from the respondent's operation. He
stated that Elco operated at the front of the quarry site, and
that the respondent operated to the rear of the property near the
quarry (Tr. 68-77).

 On cross-examination, Mr. Frederick confirmed that during

his inspection on March 24, 1988, Mr. Glasford informed him that
he was the respondent's plant superintendent. Mr. Frederick also
confirmed that Mr. Allwein had worked at the quarry site for a
long time. He also believed that the respondent and Elco were a
part of a company known as Pennsy Supplies, in which Mr. Mumma
had an interest (Tr. 77-79).

Respondent's Testimony and Evidence

 Robert M. Mumma II, respondent's president, explained the

operation of the plant portable crusher system which is used to
process high calcium limestone. He stated that when the plant was
originally purchased and installed, it was a complete "turn-key"
package which he believed included a belt alarm for the crushing
unit in question. He produced a copy of a March 2, 1987, proposal
from the plant manufacturer and supplier which includes the
operational specifications for all of the portable crushing plant
equipment (exhibit R-1). Referring to paragraph two on page two
of the specifications concerning the secondary crushing unit, Mr.
Mumma pointed out that they include an "oil pressure/temperature
alarm switch."

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Mr. Mumma stated that according to normal operating procedures
all maintenance on the crushing plant is performed while the
plant is down and not in operation. He stated that when the
crusher unit is operating, all of the belt conveyors are supposed
to be running and that Mr. Werth should not have shutdown the
return belt with the "on-off" switch which he used, and that this
switch is intended to be used only in emergencies.

 Mr. Mumma confirmed that he owns 50 percent of Lebanon Rock

and that his late father's "estate" owns 50 percent of the
company. He also confirmed that he has no interest in Elco
Concrete, but that other family members have a controlling
interest in that company. He also confirmed that he has an
interest in several other inter-locking companies which he
identified as Pennsy Supply and "999".

 Mr. Mumma denied that Mr. Glasford was employed by Lebanon

Rock as a superintendent or foreman, and he characterized him as
a "consultant" who worked on customer problems and other company
administrative matters. He confirmed that Mr. Glasford may have
interviewed prospective employees, including Mr. Werth. Mr. Mumma
confirmed that he had no knowledge as to whether the respondent
had any written safety rules and procedures, or any written
training program (Tr. 110-135).

 Mr. Werth was called in rebuttal by MSHA, and he stated that

Mr. Glasford hired him for his job with the respondent and
supervised his work "most of the time." Mr. Werth confirmed that
he knew Mr. Barnett, but denied that Mr. Barnett ever supervised
or instructed him as to his job duties (Tr. 136-139).

                    Findings and Conclusions

Fact of Violation - Citation No. 2626303

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 56.12016, which provides as follows:

         Electrically powered equipment shall be deenergized
    before mechanical work is done on such equipment. Power
    switches shall be locked out or other measures taken
    which shall prevent the equipment from being energized
    without the knowledge of the individuals working on it.
    Suitable warning notices shall be posted at the power
    switch and signed by the individuals who are to do the
    work. Such locks or preventive devices shall be removed
    only by the persons who installed them or by authorized
    personnel.

 The failure to deenergize electrically powered equipment and

to lock out power switches before any mechanical work is done on

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the equipment has been consistently held to constitute a
violation of mandatory safety standard 30 C.F.R. 57.12016, and
the identical standard section 56.12016, applicable to surface
metal and nonmetal mines. See: MSHA v. Adams Stone Corporation, 7
FMSHRC 692, 706-707, (May 1985); MSHA v. FMC Corporation, 4
FMSHRC 1818, 1821-22 (October 1982), petition for Commission
review denied, November 16, 1982; MSHA v. Greenville Quarries,
Incorporated, 9 FMSHRC 1390, 1428 (August 1987); North American
Sand and Gravel Company, 2 FMSHRC 2017 (July 1980); Brown
Brothers Sand Company, 3 FMSHRC 734 (March 1981); Ozark-Mahoning
Company, 11 FMSHRC 859 (May 1989), aff'd by the Commission on
March 21, 1990; Price Construction Company, 7 FMSHRC 661 (May
1985).

 MSHA's credible and unrebutted evidence clearly establishes

that the crusher return belt on which Mr. Werth was standing and
working at the time of the accident was not locked out. The belt
is an electrically powered piece of equipment, and although it
was deenergized by Mr. Werth by the use of a push button, it was
not locked out at the main power switch as required by section
56.12016. Further, there is no evidence that the respondent took
other measures to prevent the return belt from being energized
and started without the knowledge of Mr. Werth while he was
working on it. Under all of these circumstances, I conclude and
find that MSHA has established a violation by a preponderance of
the evidence, and the citation IS AFFIRMED.

Fact of Violation - Citation No. 2626304

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 56.9006, which provides as follows:

       When the entire length of a conveyor is visible from
 the starting switch, the operator shall visually check
 to make certain that all persons are in the clear
 before starting the conveyor. When the entire length of
 the conveyor is not visible from the starting switch, a
 positive audible or visual warning system shall be
 installed and operated to warn persons that the
 conveyor will be started.

 Section 56.9006 requires the installation and use of a

positive audible or visual warning system for a conveyor belt
when the entire length of the conveyor is not visible from the
starting switch. The purpose of this requirement is to provide a
warning to persons that the conveyor will be started. In this
case, the credible and unrebutted testimony of Mr. Werth and
Inspector Nawa establishes that the portion of the return belt on
which Mr. Werth was standing was not visible from the starting
switch which was located at the crusher station where the loader
and crusher operator were working and from where the return belt
was started up after the rock was cleared from the jaws of the

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crusher. The evidence also establishes that Mr. Werth could not
be seen from that location.

 In the answer filed by the respondent on June 14, 1989, Mr.

Mumma took the position that a start-up horn or signal would not
have been activated since the primary crusher was never shutdown
at the time Mr. Werth was performing work on the belt. During the
course of the hearing, Mr. Mumma pointed out that the crusher
equipment supplier's proposal and specifications for crushing
units include an oil pressure and temperature alarm system and
switches, and he explained that when the crusher unit is started
up the crusher unit alarm will sound until the oil pressure is
increased to a workable level. He suggested that this alarm
satisfies the requirements of the standard.

 I take note of the fact that the crusher specifications

includes an electrical turnkey system wired to the main
electrical generator source of power located and mounted in a
plant trailer. However, I find no provisions for any alarms or
warning devices installed on the belt conveyor components. The
specifications include a remote start/stop button located on the
work platform adjacent to the primary crusher and feeder to allow
the plant operator to control the feed to the jaw crusher.

 Inspector Nawa testified that the entire length of the

return belt was not visible from the control switch located at
the crusher platform area where the crusher and loader operator
were working to free the rock and that Mr. Werth was not in view
while he was standing on that portion of the belt which could not
be seen from the crusher platform location. Mr. Nawa confirmed
that there was no signal system in effect to warn Mr. Werth that
the return belt conveyor would be started by use of the switch
located at the crusher platform.

 Inspector Frederick, the individual who terminated the

violation, testified that he did so after the respondent
installed a signal bell on the crusher unit oil pump to signal
when it was started, and also installed a siren which sounded
when the conveyor belt system was started. A copy of the
violation notice of termination issued by Inspector Frederick
reflects the installation of these devices.

 Although Mr. Mumma's testimony suggests that the crusher

unit alarm system was initially installed on the crusher unit as
part of the turnkey installation of the portable plant, the fact
remains that the return conveyor belt, which could be turned on
and off by use of a remote push button "on-off" switch located at
the crusher unit work platform, was not provided with an alarm,
or equipped to sound an audible alarm or warning when that belt
conveyor was again started up after it was turned off. Section
56.9006, requires the installation and use of such a warning
device when the entire length of the conveyor belt is not visible

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from the starting switch. Under the circumstances, I conclude and
find that MSHA has established a violation by a preponderance of
the evidence, and the citation 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

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(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 I conclude and find that both of the citations issued by

Inspector Nawa involved significant and substantial violations of
the cited standards. The failure to lock out the power switch to
the conveyor belt resulted in serious injuries to Mr. Werth who
was standing on the belt conveyor performing work. He suffered
several broken vertebrae, was hospitalized, and missed many
months of work. Although the belt had been shutdown by means of a
push button, the power was not locked out, and when it was
started up again, Mr. Werth was drawn into the belt conveyor
support bracket opening and was injured. The accident could not
have occurred if the power switch had been locked out with the
locks which were available in the switch trailer. The seriousness
of the hazard was exacerbated by the fact that Mr. Werth had
received no safety training and was not informed about the
lockout procedures.

 The failure to provide an audible belt conveyor start-up

signal contributed to the accident and injuries. If such a signal
were in use when the belt was started, Mr. Werth may have had an
opportunity to jump off the belt and avoid the serious injuries
which he sustained. In addition, the evidence establishes that
while working on the belt conveyor, Mr. Werth was out of the view
of the two individuals who were working to free the rock from the
crusher. Although Mr. Werth had helped work to free the rock
shortly before the accident, after he left the platform area,
further communications were not maintained, and the belt was
started without any prior signal to warn Mr. Werth, who was out
of the view of the person who started it. In such situations, it
is reasonably likely that accidents of the kind which occurred in
this case will happen, with resulting injuries of a reasonably
serious nature. Under all of these circumstances, I conclude and
find that the inspector's significant and substantial findings
with respect to both violations was clearly justified, and they
ARE AFFIRMED.

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

 The evidence in this case reflects that the respondent is a

small limestone mine operator, and the parties have stipulated
that the payment of the civil penalty assessments for the
violations in question will not adversely affect the respondent's
ability to continue in business.

History of Prior Violations

 An MSHA computer print-out concerning the respondent's

history of prior violations reflects that for the period May 26,
1986 through May 25, 1988, the respondent made payment in the

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amount of $336 for six assessed violations, none of which are for
violations of the mandatory standards cited in this case. The
parties have stipulated that the respondent has a favorable
history of compliance, and I agree and adopt this as my finding
and conclusion on this issue.

Good Faith Compliance

 The parties stipulated that the respondent timely abated the

violations in good faith. I adopt this stipulation as my finding
and conclusion on this issue.

Gravity

 In view of my significant and substantial (S&S) findings, I

conclude and find that both of the violations were serious. The
failure to lock out the return belt on which Mr. Werth was
working when it was started resulted in serious injuries to Mr.
Werth. Further, the failure by the respondent to provide an
audible or visual warning system for the crusher belt system,
particularly the return belt conveyor where Mr. Werth was
working, contributed to the accident and resulting injuries. The
portion of the belt where Mr. Werth was standing was not visible
from the crusher station and Mr. Werth could not been observed by
the person who started up the belt. If a signal or warning had
been installed and used, Mr. Werth may have had an opportunity to
jump clear of the belt, and he probably would not have been
injured.

Negligence

Citation No. 2626304, 30 C.F.R. 56.9006

  The inspector found that this violation was the result of

moderate negligence on the part of the respondent. I agree with
this finding and conclude and find that the violation resulted
from the respondent's failure to exercise reasonable ordinary
care.

Citation No. 2626303, 30 C.F.R. 56.12016

 Inspector Nawa based his "high negligence" finding on the

fact that the respondent had been previously cited for a
violation of section 56.12016, by Inspector Frederick on March
24, 1988, after he observed the plant operator preparing to work
on some belt skirts without locking out the belt power switch.
However, the evidence establishes that this prior violation was
served on Elco Concrete Products, Inc., and it is not included as
part of the respondent's history of prior violations. Conceding
that this is the case, the petitioner nonetheless suggests that
because the respondent's superintendent, Doug Glasford, was
present when the prior violation was issued, and was aware of the

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circumstances, the respondent had constructive notice of the
violation and the conditions cited, and should have taken
appropriate steps to enforce its lockout procedures at the time
of the accident involving Mr. Werth.

 Inspector Frederick testified that prior to his inspection,

the quarry was operated by Mr. Mumma's family and there was no
distinction between Lebanon Rock and Elco Concrete. Mr. Frederick
believed that Mr. Mumma had an interest in both operations, but
due to certain "inter-family" differences and "turmoil" following
the death of Mr. Mumma's father, he had difficulty in identifying
any specific family members or management officials who were
responsible for each of these operations. He explained that a
separate MSHA Mine ID number was assigned to Elco Concrete in
order to distinguish it from the respondent's operation, and a
notation on an MSHA "conference sheet" which is attached to a
copy of the citation issued by Mr. Frederick (exhibit G-5)
reflects that "two different operations" were being conducted at
the quarry site.

 Mr. Frederick further testified that Mr. Glasford was

serving as the respondent's superintendent at the time of his
inspection and that he was with him when he observed the
violative conditions. Mr. Frederick confirmed that Mr. Glasford
was also present at the "closeout meeting" following his
inspection and that the violation and lockout procedures were
discussed with him and a representative of Elco Concrete. The
conference worksheet reflects that Mr. Glasford was present on
March 29, 1988, as the representative of the respondent.

 Mr. Mumma denied any ownership interest in Elco Concrete

Products Inc. He explained that he has a 14 percent interest in a
holding company known as "999", which owns Pennsy Supply Company,
and that Pennsy owns Elco Concrete. Mr. Mumma also denied that
Lebanon Rock and Elco Concrete ever operated as a single entity
at the quarry site, and he further explained that prior to 1985,
the quarry was owned by the Corson Lime Company, and that his
family was not involved in that operation. He testified that
Lebanon Rock Company was established in 1985, and purchased the
property and began mining high calcium limestone, and that Elco
Concrete began mining dolomite at the site during the spring of
1988 (Tr. 127-128).

 Mr. Mumma identified his quarry superintendent as Mr. Gerald

Barnett and the record establishes that the contested citations
were served on Mr. Barnett. Further, Inspector Nawa's accident
report of May 25, 1988, identifies Mr. Barnett as the quarry
superintendent at that time. Mr. Werth confirmed that he knew Mr.
Barnett, but he denied that Mr. Barnett ever supervised him or
instructed him as to his job duties. Mr. Werth further testified
that he was hired by Mr. Glasford, and that Mr. Glasford was his
"boss."

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Mr. Mumma denied that Mr. Glasford was an employee of Lebanon
Rock, and he characterized him as a "consultant" who handled
sales and administrative matters and who was paid by the day or
hour based on his billings. He stated that Mr. Glasford may have
been associated with Lebanon Rock for 4 or 5 months, but was not
at the site full time. Conceding that Mr. Glasford may have
interviewed Mr. Werth for employment, Mr. Mumma stated that
either he or Mr. Barnett hired Mr. Werth through the payroll
department. He conceded that Mr. Glasford was on the property
when the two citations were issued and that he "must have been
contending (sic) to work there" (Tr. 130).

 Mr. Mumma took the position that Mr. Werth deviated from

normal operating procedures by shutting down the belt while the
other two employees were attempting to free the rock which had
lodged in the jaws of the crusher. Mr. Mumma argued that the
respondent provided the proper locks, but that in his attempts to
do "something beneficial for the company," Mr. Werth violated
company policy concerning the normal operating procedures for
shutting down the equipment (Tr. 154).

 With regard to the prior violation issued by Inspector

Frederick, Mr. Mumma took the position that the respondent should
not be held accountable for this violation since it was served on
Elco Concrete Products, Inc. Mr. Mumma asserted that Mr. Glasford
was not given a copy of the previously issued violation, was not
given any information in this regard, and had nothing to transmit
to the respondent, and that he simply "over-heard a verbal
conversation" (Tr. 156). Mr. Mumma further asserted that if the
prior violation had been served on the respondent, he would have
received a copy in his office and would have been informed about
the violation and would have had an opportunity to take
appropriate action by immediately reviewing the plant operational
procedures with his employees. Mr. Mumma suggested that since he
had no prior knowledge of the previous violation, he should not
be penalized for any negligence. He also expressed some doubts as
to whether Mr. Werth actually informed Mr. Rolon and Mr. Deck
that he was going to perform work on the belt which was started
up and resulted in his injuries (Tr. 154-159).

 The respondent's reliance on Mr. Werth's alleged negligence

as a defense to the citation is rejected. The petitioner's
position on this issue is correct, and I conclude and find that
the respondent may be held strictly liable and accountable for
the violation regardless of any fault by one of its employees.
Although any negligence by Mr. Werth may be considered in
mitigation of any civil penalty assessments for the violations
which have been affirmed in this case, I cannot conclude that the
evidence establishes that Mr. Werth was negligent. His credible
and unrebutted testimony establishes that he received no training

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and was not aware of any lockout procedures. The respondent's
suggestion that Mr. Werth may not have notified Mr. Rolon and Mr.
Deck that he was going to work on the belt which was started up
and caused his injuries is likewise rejected. Mr. Rolon and Mr.
Deck were not called to testify in this case and I find Mr. Werth
to be a credible witness and I believe his unrebutted testimony.

 The record in this case establishes that the prior violation

issued by Inspector Frederick was in fact served on Elco Concrete
Products under its own MSHA Mine ID number, and as previously
noted, it is not included in the respondent's history of prior
violations. Under the circumstances, I find some merit in the
respondent's argument that it should not be penalized for the
negligence attributable to Elco. With regard to Mr. Glasford's
knowledge of the prior violation, and the respondent's
constructive notice of the violative conditions, since Mr.
Glasford was not called to testify, his managerial role with
respect to the respondent's operation at the time this violation
was issued, as testified to credibly by Inspector Frederick,
remains unrebutted. Although I find Mr. Mumma's testimony
concerning Mr. Glasford's status believable, I am not totally
convinced that Mr. Glasford was not informed about the prior
cited conditions. Nor am I convinced that Mr. Glasford did not
occupy a managerial position with the respondent, and I credit
Mr. Werth's testimony that Mr. Glasford was his boss.

 Apart from any knowledge by the respondent with respect to

the prior violation, I conclude and find that the evidence and
testimony presented in this case, taken as a whole, supports a
finding of a high degree of negligence by the respondent for the
citation in question. Although Mr. Mumma asserted that had he
been informed of the prior violation, he would have taken
appropriate steps to review the plant operational procedures with
his employees, he conceded that he had no knowledge of the
existence of any written company safety rules and procedures. Mr.
Mumma did not rebut the fact that Mr. Werth was not trained, and
he acknowledged that he had no knowledge of the existence of any
company training program (Tr. 132). He simply believed that Mr.
Werth had been assigned to Mr. Rolon for training, and that Mr.
Barnett was responsible for overseeing the operation of the
plant. However, Mr. Rolon and Mr. Barnett were not called to
testify, and in the absence of any testimony from these key
employees, Mr. Werth's unrebutted and credible testimony
establishes that he was not trained and had no knowledge of any
lock-out procedures.

 Mr. Mumma's acknowledgement of the fact that the respondent

provided the locks for use by its employees, establishes a strong
inference that it was aware of the requirements of the cited
standard, and Mr. Mumma conceded that he was aware of these
requirements (Tr. 90). I believe that it is not unreasonable to

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expect the respondent to insure that Mr. Werth was trained, or
otherwise made aware of the existence of the locks, including the
necessity for using them to lock out a belt before he performed
any work. Further, given the fact that Mr. Werth was working with
Mr. Rolon, an individual who Mr. Mumma stated was supposed to
train Mr. Werth, and who knew that Mr. Werth was working on the
belt, I can only conclude that the respondent failed to take
reasonable steps to adequately supervise Mr. Werth's work, and
that its failure to do so contributed to the accident which
resulted in serious injuries to Mr. Werth. Under all of these
circumstances, I conclude and find that the violation was the
result of a high degree of negligence on the part of the
respondent, and the inspector's finding in this regard IS
AFFIRMED.

                Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

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

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

   2626303      05/26/88           56.12016          $1,000
   2626304      05/26/88           56.9006           $ 800

                           ORDER

 The respondent IS ORDERED to pay the civil penalty

assessments for the violations in question, and payment is to be
made to MSHA within thirty (30) days of the date of this decision
and order. Upon receipt of payment, this matter is dismissed.

                              George A. Koutras
                              Administrative Law Judge