LAC Bullfrog Incorporated

Plain-English summary

A blast at LAC Bullfrog's underground gold mine was followed by a 40 to 50 ton ground fall in an adjacent drift where three supervisors were present. Judge T. Todd Hodgdon found that the company failed to clear the drift before blasting, in violation of the warning and blast-area restriction standard. He found Lorenzo Ceballos knowingly carried out the violation, but found that Timothy Harter did not knowingly do so. The citation and Ceballos's case were affirmed, Harter's case was dismissed, and penalties of $1,500 against the company and $500 against Ceballos were ordered.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.6375
• Outcome: Citation No. 4130929 and Ceballos's case were affirmed, Harter's case was dismissed, and $2,000 in penalties were assessed.
• Key point: Supervisors must verify that all planned blasts are complete before entering an area the operator treats as endangered by blasting.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041



                        March 27, 1996

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 94-407-M
Petitioner : A. C. No. 26-02184-05516
v. :
: Bullfrog Mine Underground
LAC BULLFROG INCORPORATED, :
Respondent :
:
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 95-320-M
Petitioner : A. C. No. 26-02184-05524 A
v. :
: Bullfrog Mine Underground
LORENZO CEBALLOS, Employed by :
LAC BULLFROG INCORPORATED, :
Respondent :
:
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 95-321-M
Petitioner : A. C. No. 26-02184-05525 A
v. :
: Bullfrog Mine Underground
TIMOTHY HARTER, Employed by, :
LAC BULLFROG INCORPORATED, :
Respondent :

Page 2

                           DECISION

Appearances: Jeanne M. Colby, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, for Petitioner;
Charles W. Newcom, Esq., and Andrew W. Volin,
Esq., Sherman & Howard L.L.C., Denver, Colorado,
for Respondents.

Before: Judge Hodgdon

 These consolidated cases are before me on petitions for

assessment of civil penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA),
against LAC Bullfrog, Inc., Lorenzo Ceballos and Timothy Harter
pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820. The petitions
allege that the company violated section 57.6375 of the
Secretary’s mandatory health and safety standards, 30 C.F.R.
§ 57.6375, and that Messrs. Ceballos and Harter, as agents of the
company, knowingly authorized, ordered or carried out the
violation. The Secretary seeks penalties of $1,500.00 against
the company and $1,000.00 and $1,200.00 against Ceballos and
Harter, respectively. For the reasons set forth below, I find
that the company violated the regulation, that Ceballos, but not
Harter, knowingly carried out the violation and I assess
penalties of $1,500.00 and $500.00, respectively.

 A hearing was held on November 1 and 2, 1995, in Henderson,

Nevada. In addition, the parties filed post-hearing briefs in
these matters.

                     FACTUAL SETTING

 The Bullfrog gold mine in Beatty, Nevada, has both an open

pit and an underground section. The underground section consists
of a series of horizontal passages, called “drifts,” running off
of a main decline, which follow the gold vein. The drifts are
identified and distinguished by their elevation in meters and
whether they go north or south.

 On December 7, 1993, a ground fall of about 40 to 50 tons

occurred in the 906 South Drift. It was preceded by a blast in
the 918 North Drift. The blast occurred in a portion of the 918
North Drift which is directly over the area in the 906 South
Drift where the ground fall occurred.

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 Jack Bingham, the General Manager of the mine, Timothy

Harter, the General Mine Foreman, and Lorenzo Ceballos, a
Production Supervisor, were at the end of the 906 South Drift
when the ground fell from the roof. They discovered the fallen
ground when they were backing their vehicle along the drift and
encountered dust and then the ground fall. The men had to leave
their vehicle and climb over the fallen ground to get out of the
drift.

 MSHA Inspector Henry J. Mall was assigned to investigate the

incident. As a result of his investigation, he issued Citation
No. 4130929, pursuant to section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), on December 8. It alleged a violation of section
57.6375 of the Regulations because

 at approximately 845 [sic] AM 12-7-93 a heading in 918
 North was blasted without ample warning given to the
 (3) employees who had entered 906 South area which was
 directly under the 918 North heading where the blast
 was to occur. The distance between the areas is
 approximately 8 meters (25 ft). When the blast
 occur[r]ed approximately 40 to 50 tons of material
 above the anchorage zone supported with 6 ft roof bolts
 came down in the 906 South travel way. The (3)
 employees in 906 South were approximately 300 meters
 (984 ft) from where the fall of ground occur[r]ed. The
 company has a written policy dated 12-3-92 - 3-23-92
 [sic] on clearing the areas effected [sic] from [sic]
 the blasting that is to take place. On this date 12-7-
 93 the company failed to follow a safe practice of
 warning their [sic] employees of the blast in 918 North
 and did not follow company written policy. This is an
 unwarrantable failure.

(Govt. Ex. H.)

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Page 4

 Special Investigator Dennis J. Palmer conducted an

investigation of the incident during April 1994 for the purpose
of determining if the violation had been knowingly committed by
any agents of the company. As a result of his investigation, the
Secretary filed civil penalty petitions against Ceballos and
Harter under section 110(c) of the Act, 30 U.S.C. § 820(c).1

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Section 57.6375 is entitled Loading and blast site

restrictions and requires that: “Ample warning shall be given
before the blasts are fired. All persons shall be cleared and
removed from areas endangered by the blast. Clear access to
exits shall be provided for personnel firing the rounds.”2

 The issue in this case is whether the three men were in an

area endangered by the blast from which they should have been
cleared and removed. I conclude that the 906 South was an area
endangered by the blast and that the men should have been cleared
or removed from the drift prior to the blast.

Was the 906 South an area endangered by the blast?

 The Commission has not had occasion to address the issue of

what constitutes an area endangered by the blast with regard to
this regulation. However, it has discussed section 77.1303(h),
30 C.F.R. § 77.1303(h), having to do with surface coal mining,
which has a similar requirement.3 With regard to that
regulation, the Commission held that:

 1
   Section 110(c) provides, in pertinent part, that:

“Whenever a corporate operator violates a mandatory health or
safety standard . . . any director, officer, or agent of such
corporation who knowingly authorized, ordered, or carried out
such violation . . . shall be subject to the same civil penalties
. . . .”
2
This regulation was effective until December 31, 1993. It
has since been replaced by section 57.6306(f), 30 C.F.R.
§ 57.6306(f).
3
Section 77.1303(h) provides that: “Ample warning shall be
given before blasts are fired. All persons shall be cleared and
removed from the blasting area unless suitable blasting shelters
are provided to protect men endangered by concussion or flyrock
from blasting.”

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Page 5

 To establish a violation of the standard, based on a
 failure to clear and remove all persons from the
 blasting area, the Secretary must prove that an
 operator has failed to clear and remove all persons
 from the “blasting area,” as that term is defined in
 section 77.2(f). This requires the Secretary to
 establish the factors that a reasonably prudent person
 familiar with mine blasting and the protective purposes
 of the standard would have considered in making a
 determination under all of the circumstances posed by
 the blasting issue.

Hobet Mining & Construction Co., 9 FMSHRC 200, 202 (February
1987). The Commission went on to say that “[a]n operator’s pre-
shot determination of what constitutes a blasting area is based
not only upon the results of prior shots, but also depends upon a
number of variables affecting the upcoming shot.” Id.

 Although section 77.1303(h) uses the term “blasting area”

and section 57.6375 uses “area endangered by the blast,” they
mean essentially the same thing. Thus, it would follow that if
the company had not included the 906 South in the area endangered
by the blast in the 918 North, the “reasonably prudent person”
test would be applied to determine whether it should have been
included. However, it is not necessary to go through the
requirements of the test in this case because it is undisputed
that it was the mine’s practice to clear the level above and the
level below the level being blasted.

 Since the 906 South is the level below the 918 North and

since two miners were, in fact, cleared from that area before the
blast, the company obviously had determined that it was an area
endangered by the blast. Therefore, the Respondents’ argument,
in their brief, that the 906 South was not an area endangered by
the blast under the “reasonably prudent person” test, is
inapposite. The company is bound by its pre-shot determination.

Were the miners in the endangered area at the time of the blast?

 Having determined that the 906 South was an area endangered

by the blast, the next issue is whether Bingham, Harter and
Ceballos were in the endangered area at the time of the blast.
They argue that they did not enter the 906 South until sometime
after the blast in the 918 North. On the other hand, the
Secretary submits that the men were at the end of the 906 South
when the blast occurred. Finding the Respondents’ statements
made at the time of the incident more credible than the testimony

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at the hearing, I determine that the men were at the end of the
906 South at the time of the blast.

 Inspector Mall arrived at the mine on the afternoon of the

incident and began his investigation. Nevada State Inspector
Edward M. Tomany arrived to investigate the incident the next
day. On December 8, they interviewed several of the witnesses
together.

 According to their notes taken at the time, Louis

Schlichting, who did not testify at the hearing, told them that
he was the assistant foreman in charge of the blasts in the 918
North and South. He further told them that he cleared two
employees out of the 906 South when getting ready to blast the
918 North, but that he did not barricade the 906 South or do
anything to prevent anyone from entering it during the blast.
Finally, he told them that he assumed that the 906 South was
clear when he blasted and that he would not have blasted the 918
North if he had known that anyone was in the 906 South.

 According to their notes and testimony at the hearing,

Lorenzo Ceballos told them that he knew that both the 918 North
and South were going to be blasted and that while on the decline
between the 918 and the 906 he heard a blast which he assumed was
the 918 North. Additionally, he told them that the three
supervisors were at the end of the 906 when the 918 North was
blasted. Inspector Mall testified at the hearing that Ceballos
later told him that the blast he heard was the first blast
(apparently the 918 South) and that the second blast occurred
while he was in the 906.

 Tim Harter told the inspectors that he was not aware that

the 918 North was going to be shot. There is no indication that
either inspector asked him where he was when the blast and the
ground fall occurred. However, other employees of the mine gave
the inspectors the impression that the blast and the ground fall
had happened while the supervisors were in the 906 South.

 Inspector Mall concluded that the blast heard on the decline

must have been the 918 South and that the 918 North blast
occurred while the supervisors were at the end of the 906 South.
Consequently he wrote the citation in question. On receiving the
citation and at the close-out conference, no one from the company
suggested to the inspector that he had his facts wrong.

 Inspector Tomany apparently came to the same conclusion as

Inspector Mall. His notes state that he notified his boss that
“3 employees, J. Bingham, T. Harter, L. Ceballos were at the face

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of the 906 s when the 918 north blast dropped ground to obstruct
exit of the 906 south.” (Govt. Ex. V at 5.)

 It appears that no one talked with Bingham during the

investigation and he evidently was not present at the close-out
conference. However, Special Investigator Palmer interviewed him
in April 1994. Palmer testified, and his notes indicate, that
Bingham, who was no longer working for the company, told him that
he felt the second blast while backing out of the drift and that
they later came across dust and the ground fall.

 Palmer also interviewed Ceballos and Harter. By this time,

Ceballos’ story had changed somewhat. He said that the blast in
the 918 South had to have gone off first; that the blast the
supervisors heard while on the decline was in the 918 North. He
stated that the 918 South is a long drift and the 918 North a
shorter drift and that Schlichting told him in a discussion after
Mall’s investigation that he had set off the 918 South first
because it would be dangerous to light the fuses in any other
order.

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Page 8

 Harter told Palmer that he assumed that the blast he heard

on the decline was the 918 South because that was the only blast
that he expected. He claimed that he did not find out that there
was a second blast until after he got out of the mine. He
further averred that he would not have gone into the 906, or
allowed anyone else to go into the 906, if he had known a blast
was going to be directly above it.

 In December 1994, Ceballos and Harter were informed that

MSHA intended to seek civil penalties against them under section
110(c) of the Act. On December 21, they sent a letter to MSHA
requesting a conference on the matter and setting out their
position. In the letter, they summed up their position as
follows:

 [W]e believe that MSHA may have the mistaken
 impressions that three employees entered the 906 south
 prior to the 918 north blast (the final blast), that
 the blast caused the ground fall, and that the three
 employees were non-supervisory. None of these
 impressions are [sic] accurate. Instead, as the facts
 recited above show, Ceballos knew there would be
 blasting in the 918 north, the three of them did not
 enter the 906 south until after the 918 blast took
 place, the ground fall did not occur as part of the
 blast, but took place approximately 15 to 20 minutes
 later . . . .

(Govt. Ex. G at 2.)

 By the time of the hearing, the Respondents had added more

details to their version of the incident. For the first time,
they claimed that the blast in the 918 South was a “slab” round
while the blast in the 918 North was a “face” round. The
significance of this is that a slab round uses less explosive
than does a face round and is, therefore, not as loud. Thus, at
the hearing, Ceballos testified, “I knew there was two blasts
that were going to go off, but I only expected to hear one.”
(Tr. 335.)

 With regard to what he initially told the inspectors,

Ceballos testified as follows:

 Q. Did you tell Inspector Mall or Inspector Tomany
 that you heard a blast while you were on the decline on
 December 7?

 A.   Yes.


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Page 9

 Q. Did you tell them whether or not you thought that
 blast was from the 918 North or the 918 South?

 A.   I don’t recall exactly if I told them it was.

 Q. Did you tell Inspectors Mall or Tomany that you
 heard the blast of the 918 North while you were in the
 906 South?

 A.   No, I didn’t.

 Q. Do you recall whether or not Inspector Mall accused
 you of mistaking the blast that you heard on the
 decline for the 918 South blast as opposed to the 918
 North blast?

 A. I know there was a lot of confusion in there when
 they were asking a lot of questions. I was really
 confused in that open discussion.

(Tr. 342.)

 Obviously, when an inspector arrives to investigate an

accident after it has happened he must rely on what the witnesses
tell him and what physical evidence is available. In this case,
Inspector Mall did just that and concluded that a violation of
section 57.6375 had occurred. While the company argued with him
about the citation after he gave it to them, and during the
close-out conference, no one asserted that he had the facts
wrong.

 Now the company alleges that is exactly what happened.

However, I do not credit the revised version for the following
reasons. The statements given by witnesses at the time closest
to the incident, when the details are freshest in their minds,
and before they have had the opportunity to formulate statements
favorable to their own, or the company’s, cause, are more
reliable than the witnesses’ later statements.4 Further, the
Respondents did not raise this new scenario when given the
citation or at the close-out conference. Nor did they question
the inspectors facts. Finally, Jack Bingham, General Manager of

 4
   At the hearing, Ceballos only specifically denied telling

the inspector that he heard the 918 North blast while in the 906
South. He either could not “recall” making other statements or
was “confused.”

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the mine, unequivocally stated that he felt the second blast
while at the end of the 906 South.

 Respondents have attacked Bingham’s credibility on the

grounds that his statement is hearsay, that his ability to
distinguish sensations is questionable, apparently because he was
not wearing his hearing aid underground, and that the slab round
in the 918 South was too small to be heard. While it is true
that Bingham’s statement is hearsay, I credit it because at the
time that it was made, it was an admission, or, at a minimum, a
declaration against interest, and because Respondents had
subpoenaed Bingham to testify at the hearing, but announced at
the beginning of the second day that they did not intend to call
him. Since they had the opportunity to rebut or explain the
hearsay statement by the author of the statement, but chose not
to, they cannot now argue that the statement is unreliable.

 With regard to Bingham’s ability to distinguish sensations,

I note that he stated that he felt the blast, not that he heard
it. Furthermore, while there is no evidence concerning the
extent of his ability to hear, other than that he wore a hearing
aid, there is evidence that he, Ceballos and Harter held a
discussion in the 906 so that he must not have been totally deaf.

 Finally, there is nothing in the record to indicate that the

slab round in question could not be heard. In fact, Harter
stated that he was expecting a slab round to be used in the 918
South and when he heard the blast on the decline, assumed that
was what he had heard.

 I find that Bingham, Harter and Ceballos were in the 906

South at the time of the blast in the 918 North and the resulting
ground fall. Since the company had determined that this was an
endangered area for such a blast, I conclude that the company
violated section 57.6375 by not clearing them from the area
before blasting.

Significant and Substantial

 The Inspector found this violation to be “significant and

substantial.” A "significant and substantial" (S&S) violation is
described in section 104(d)(1) of the 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." A violation is properly designated S&S "if, based upon
the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result

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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 set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

 Applying the Mathies criteria, I have already found (1),

that the company violated a mandatory safety standard. I further
find: (2) That this violation contributed to a measure of danger
to safety, i.e. blasting is inherently dangerous, those within an
area endangered by a blast could be blown up, hit by flyrock, or,
as occurred in this case, caught by a ground fall; (3) That there
is a reasonable likelihood that a ground fall would result in an
injury; and (4) That there is a reasonable likelihood that the
injury would be reasonably serious in nature, involving
significant cuts and bruises, broken bones or death.

Unwarrantable Failure

 The inspector found this violation to be the result of an

“unwarrantable failure” on the company’s part. The Commission
has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence by a mine operator in
relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). “Unwarrantable failure is
characterized by such conduct as ‘reckless disregard,’
‘intentional misconduct,’ ‘indifference’ or a ‘serious lack of
reasonable care.’ [Emery] at 2003-04; Rochester & Pittsburgh Coal
Corp. 13 FMSHRC 189, 193-94 (February 1991).” Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994).

 Ceballos and Harter both stated that they would not have

gone into the 906 South if they had known that there was going to
be a blast in the 918 North. Thus, they were clearly aware of

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the danger involved. Ceballos thought that it was safe to go
into the 906 because he assumed that the blast he heard on the
decline was the 918 North blast.

 There is no evidence of intentional misconduct in this case.

I believe the Respondents when they state that they would not
have gone into the 906 if they had known the 918 was going to be
blasted. However, that does not remove this case from the
unwarrantable failure category.

 Ceballos, a miner with at least 18 years experience, the

person normally in charge of blasting operations, knew that plans
had changed from blasting the 918 South to blasting the 918 North
and South. He knew this because Schlichting told him so just
prior to the men going down the decline past the 918s to the 906.
He heard one blast and concluded that the 906 was safe. I find
that this conclusion was not a reasonable one. Cf. Wyoming Fuel
Co. at 1628-29.

 A supervisor in his position and with his experience should

have done more. Knowing that there were going to be two blasts,
and hearing only one, made it incumbent on him to verify that
both blasts had been performed before entering the 906. While
failure to do that does not rise to “intentional misconduct” or
even “reckless disregard,” it is more than ordinary negligence.

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I conclude that the failure to confirm that the 918 North had
been blasted before entering the 906 constitutes “indifference”
or a “serious lack of reasonable care” and that, therefore, the
violation resulted from the company’s unwarrantable failure.

Section 110(c) violations

 The Secretary has alleged that Ceballos and Harter

“knowingly” violated section 57.6375 and are personally liable
under section 110(c) of the Act.5 Based on the evidence, I find
that Ceballos “knowingly” carried out the violation, but Harter
did not.

 The Commission set out the test for determining whether a

corporate agent has acted “knowingly” in Kenny Richardson, 3
FMSHRC 8, 16 (January 1981), aff’d, 689 F.2d 623 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983), when it stated: “If a person
in a position to protect safety and health fails to act on the
basis of information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute.”
The Commission has further held, however, that to violate section
110(c), the corporate agent’s conduct must be “aggravated,” i.e.
it must involve more than ordinary negligence. Wyoming Fuel Co.,
supra at 1630; BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245
(August 1992); Emery Mining Corp., supra at 2003-04.

 In Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), the

Commission expanded the test to cover a situation where the
violation does not exist at the time of the agent’s failure to
act, but occurs after the failure, when it said:

 Accordingly, we hold that a corporate agent in a
 position to protect employee safety and health has
 acted ‘knowingly’, in violation of section 110(c) when,
 based upon facts available to him, he either knew or
 had reason to know that a violative condition or
 conduct would occur, but he failed to take appropriate
 preventative steps.

That describes the situation in this case.
As a supervisor, Ceballos was in a position to protect
employee safety by not taking the tour into the 906 South until
after the blast in the 918 North. He knew, based on what
Schlichting told him, that both sections of the 918 were going to

 5
     See n.1, supra, for the provisions of this section.

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be blasted. He knew that if they went in the 906 before the 918
North blast that he would be in an area endangered by the blast.
Finally, he failed to take appropriate preventative steps, that
is to insure that the 918 North blast had occurred before
entering the 906 South.

 As set out above, this was aggravated conduct involving more

than ordinary negligence. Accordingly, I conclude that Lorenzo
Ceballos knowingly carried out the violation of section 57.6375
and is, therefore, personally liable under section 110(c).

 The same, however, cannot be said about Harter. He knew

only that the 918 South was to be blasted. No one knew that both
the North and South were going to be blasted until Schlichting
informed Ceballos of that during the tour. While Harter was
present when Schlichting told Ceballos of the change, neither
Schlichting nor Ceballos could say whether Harter heard the
conversation. Both doubted it. Ceballos said that Schlichting
spoke directly into his ear because there was a fan in the area.

 Ceballos testified that when they passed the 918 on the

decline he informed Harter that they could not go into that area
because they were blasting. Harter maintained that he did not
hear Schlichting tell Ceballos that the 918 North was also going
to be blasted and that he did not know that the 918 North was
blasted until after he got out of the mine.

 Since there is no evidence to contradict it, I credit

Harter’s claim that he thought only the 918 South was to be
blasted and that when he heard the blast he thought it was safe
to enter the 906 South. Ceballos’ statement about not being able
to go into “that area” because they were blasting was not
specific enough to put Harter on notice that the situation, as he
understood it, had changed. Consequently, I conclude that
Timothy Harter did not knowingly carry out the violation of
section 57.6375 and is not personally liable under section
110(c).

                CIVIL PENALTY ASSESSMENT

 The Secretary has proposed civil penalties of $1,500.00 for

the company and $1,000.00 for Ceballos for this violation.
However, it is the judge’s independent responsibility to
determine the appropriate amount of a penalty, in accordance with
the six criteria set out in section 110(i) of the Act, 30 U.S.C.
§ 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151
(7th Cir. 1984).

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 In connection with the six criteria, I note from the

pleadings that the Bullfrog mine is a medium size gold mine and
that LAC Bullfrog, Inc., is a medium size company. The violation
history does not indicate an excessive number of violations.
There is no evidence that payment of a civil penalty will
adversely affect the company’s ability to remain in business. On
the other hand, the gravity of the violation is serious and
involved a high degree of negligence. Taking all of this into
consideration, I conclude that the penalty proposed by the
Secretary is appropriate.

 Obviously, except for the gravity of the violation, none of

the penalty criteria apply to an individual. However, taking
into consideration the gravity of the violation and Mr. Ceballos’
position with the company, I find that the penalty proposed by
the Secretary is somewhat high. I conclude that a penalty of
$500.00 is appropriate in this case.

                          ORDER

 The civil penalty petition against Timothy Harter is

DISMISSED. Citation No. 4130929 issued to LAC Bullfrog, Inc. and
the civil penalty petition alleging that Lorenzo Ceballos
knowingly carried out the violation in the citation are AFFIRMED.
Accordingly, LAC Bullfrog, Inc., or its successor,6 and Lorenzo
Ceballos are ORDERED TO PAY civil penalties of $1,500.00 and
$500.00, respectively, within 30 days of this decision. On
receipt of payment, these proceedings are DISMISSED.

                            T. Todd Hodgdon
                            Administrative Law Judge

Distribution:

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Room 1110, San Francisco, CA 94105-
2999 (Certified Mail)

 6
   In a subsequent hearing involving this company, counsel

for the Respondent advised that the mine was now owned by Barrick
Bullfrog, Incorporated.

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Page 16

Charles W. Newcom, Esq., Andrew W. Volin, Esq., Sherman & Howard
L.L.C., 633 17th St., Suite 3000, Denver, CO 80202 (Certified
Mail)

/lt

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