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STANDARD LAFARGE
December 16, 1996
LAKE 95-114-RM

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          December 16, 1996

STANDARD LAFARGE,               :  CONTEST PROCEEDING
               Contestant       :
          v.                    :  Docket No. LAKE 95-114-RM
                                :  Citation No. 4413670; 11/05/94
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :  Marblehead Quarry
  ADMINISTRATION (MSHA),        :  Mine ID No. 33-00099
               Respondent       :
                                :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. LAKE 95-239-M
               Petitioner       :  A. C. No. 33-00099-05546
          v.                    :
                                :  Marblehead Quarry
LAFARGE CONSTRUCTION MATERIALS, :
               Respondent       :
                                :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. LAKE 96-28-M
               Petitioner       :  A.C. No. 33-00099-05548A
          v.                    :
                                : Marblehead Quarry
THEODORE M. DRESS, Employed     :
  by LAFARGE CONSTRUCTION       :
  MATERIALS,                    :
               Respondent       :

                             DECISION

Appearances:  Patrick  L. DePace, Esq., Office of the Solicitor,
              U.S. Dept. Of Labor, Cleveland, Ohio for Secretary 
              of Labor;
              William  K. Doran, Esq., Smith, Heenan  &  Althen,
              Washington,   D.C.,   for   LaFarge   Construction
              Materials.

Before: Judge Barbour

     These  consolidated  contest  and  civil penalty proceedings
arise  under sections 105(d), 110(a) and 110(c)  of  the  Federal
Mine Safety and Health Act of 1977 (30 U.S.C.  815(d), 820(a),
820(c)).   They  involve  a  citation  issued by the Secretary of
Labor's (Secretary) Mine Safety and Health  Administration (MSHA)
as  the  result  of  an  investigation  of  an  accident  at  the
Marblehead  Quarry of Standard Lafarge (Lafarge) (also  known  as
Lafarge Construction  Materials  (Tr. 9)).  The quarry is located
in Ottawa County, Ohio.

     The citation alleges that Lafarge  violated mandatory safety
standard 30 C.F.R. 56.16002(a)(1) when a  miner who climbed into
a  surge  bin  to  work  was  trapped  by falling rock.   Section
56.16002(a)(1)  requires  surge  bins  to  be   "[e]quipped  with
mechanical devices or other effective means of handling materials
so  that  during  normal operations persons are not  required  to
enter or work where  they  are exposed to entrapment by caving or
sliding materials".  In addition,  the  citation alleges that the
violation  was a significant and substantial  contribution  to  a
mine safety hazard (S&S) and was due to Lafarge's high negligence
and unwarrantable failure to comply (30 U.S.C.  815(d)(1).

     Lafarge  contested  the  citation, asserting that it did not
state a violation.   Also, Lafarge challenged the citation's S&S,
unwarrantable, and negligence findings.

     After the citation was issued,  the Secretary petitioned the
Commission to assess Lafarge a civil penalty  of  $3,800  and  to
assess  Theodore  Dress, the foreman in charge at the time of the
accident,  a  civil  penalty   of   $3,000.   Lafarge  and  Dress
challenged the petitions.

     A  hearing  was  conducted in Toledo,  Ohio,  at  which  the
parties  presented  oral   testimony  and  documentary  evidence.
Subsequently, counsels filed helpful briefs.

                            THE ISSUES

     The principal issues with  regard  to Lafarge are whether it
violated section 56.16002(a)(1); if so, whether the violation was
S&S and unwarrantable, and the amount of  the  civil penalty that
must be assessed, taking into consideration the  statutory  civil
penalty  criteria  set  forth  in  section  110(i) of the Act (30
U.S.C. 820(i)).

     The principal issues with regard to Dress  are  whether  the
alleged  violation  occurred,  whether  he  knowingly authorized,
ordered, or carried it out, and, if so, the amount  of  the civil
penalty  that  must  be  assessed, taking into consideration  the
applicable section 110(i) criteria.

                           STIPULATIONS

     The parties stipulated that:

          1.  The Marblehead Quarry is owned and operated by
          Lafarge ... [and] is subject to the ... Act;

          2. [T]he Administrative Law Judge has jurisdiction
          to hear and decide the matters;

          3.  Inspector James D. Strickler, who issued
          [the  c]itation  [,]...   is   a  duly  authorized
          representative of the Secretary;

          4. [A] copy of the [c]itation ...  was  served  on
          Lafarge ... and on Dress ...;

          5.  [I]mposition  of  any  appropriate civil money
          penalty will not affect the ability of Lafarge ...
          to continue in business;

          6.  Lafarge ... is a large operator;

          7. [T]he assessed violation  history  report [Gov.
          Exh.  1] may be used in determining an appropriate
          civil money penalty (Tr. 8-9).

     In addition to the stipulations, counsel for the Secretary
agreed  that  Lafarge   had   a  small  number  of  pervious
violations.   He  characterized  the  company's  history  of
violations as "good" (Tr. 130).  Counsel  also  agreed  that
Dress had no applicable history of violations (Tr. 130).

        THE ACCIDENT, THE INVESTIGATION, AND THE CITATION

     The Marblehead Quarry is a dolomitic limestone extraction
and processing facility.   The  operation  encompasses  2,500
acres and produces 3,500,000 tons of limestone  a  year (Tr.
89).   At  the  quarry,  limestone  shot  from  the  face is
transported  to the primary crusher, where it is reduced  in
size to 10 inches or smaller.  It is then transported by two
conveyor belts  to  a  surge  bin.  The crushed limestone is
dumped  from  the  belts into the  bin.   When  the  bin  is
vibrated the stone passes  through  the bin and falls onto a
conveyor belt below the bin.  The stone  then  travels along
the belt to other facilities for further processing (Tr. 14-
15,51,90; Resp. Exh.1).

     The surge bin is approximately 22 feet wide, 22 feet long,
and 13 feet high (Tr. 91-92).  At the bottom of the bin  are
a  chute  and  vibrating  feeders (Tr. 55, 92).  The feeders
allow the rock to flow evenly  out of the chute and onto the
lower  conveyor  belt (Tr. 52).  The  chute  and  vibrators,
which are integral  parts  of  the  bin,  hang below the bin
floor.

     The floor is flat. It has two rectangular openings in the
middle  (Tr. 47, 92).  As stone falls into the bin from  the
overhead  conveyor  belts, it piles on the floor between the
two openings.  As the  vibrators  shake  the  bin,  the rock
"sloughs off" the piles and falls through the openings, into
the chute, and onto the lower conveyor belt (Tr. 96).

     The bin was installed at the quarry in 1992. When the bin
was first  used,  some  of  the rock around the openings  was
compacted.   This  rock is so solid  that  it  only  can  be
removed by chiseling  or  by using high pressure water hoses
(Tr. 41, 45, 90, 95).  The  solid  material  is  called  the
"dead  bed"  (29).   The  dead  bed  forms ridges around the
openings in the bin floor.  Rock on the  sides of the ridges
opposite the openings slids away from the  openings and does
not  pose  a hazard to anyone working below.   Rock  on  the
other sides  of  the  ridges slids down through the openings
(Tr. 41, 49-50; 96 see also Tr. 42-43; Resp Exh. R-2).

     David Nelson, the plant manager, testified that miners did
not "regularly" work around the bin  and  that  it was  not  a
"standard  practice"  for someone to  work at or in  the  bin
(Tr. 92-93).  Nelson believed  miners  worked inside the bin
approximately  one  time  a year (Tr. 94-95).    Nelson  was
familiar with the bin because  his duties required him daily
to check it (Tr. 96-97).

     When a miner was assigned to  work  inside  the  bin, the 
normal procedure at the quarry was to run  the  vibrators until
the sensor at the bin control tower indicated the bin was empty.
Then, the vibrators were left running for  an  additional time
to shake out and dislodge anything remaining in the bin  (Tr.
97-98).  After that, all of the electricity  to  the bin was
disconnected (Tr. 98). However, Nelson admitted that because
the bin had not been emptied that often in the past, Lafarge
officials did not know "automatically" how long it  took  to
clean out the bin (Tr. 105).

     According to Nelson, when Lafarge's employees had to work
in the  bin,  they  were instructed "to check the bin for loose
material, look at  it and use [their] own judgment"  (Tr.  98-
99).  Usually, employees  looked  into  the  bin from  below.
They  were closer to any remaining material if  they  looked
from below  then if they looked from above (Tr 100).  Nelson
agreed, however, that if miners looked into the bin from the
top, they would  get a "different perspective" (Id.)  Nelson
was of the opinion,  that  if loose material remained in the
bin  after it had been vibrated,  the  only  way  to  ensure
safety  was  to  go to the top of bin, take a bar, and knock
out the loose the material (Tr. 105-106).

     On July 15, 1994, Daniel  Harder worked as a laborer at
the quarry. He had been at the quarry for less than two years,
but he had a long work history  at  other  quarries (Tr. 33-
34).   Dress was Harder's foreman.  Dress's duties  were  to
supervise miners and to oversee production (Tr. 111-112).

     As Dress came to work on July  15,  the  surge  bin was
operating  normally.   However,  Dress  noticed sand leaking
through a hole near the bottom of the bin.   Dress looked at
the  hole and decided that it should be patched.    He  also
decided  that the patch could be applied from inside the bin
(Tr. 112-113).

     To get the bin ready for the repair work, Dress ordered
that the vibrators be kept operating. As has been noted, this
was the procedure normally  used  to clean loose rock out of
the  bin  (Tr. 40, 98, 113).  The vibrators  operatored  for
approximately 20 minutes to a half hour more.

     Dress told Harder and another miner, Brian Chumley, to go
the  bin.   In the meantime,  Dress  went  to  the  building
housing the controls  of  the  bin,  disconnected  the bin's
electricity, and locked out its electrical circuits.

     Dress then went to the bin. Harder and Chumley were there.
Dress  and  Harder  looked into the bin from below  (Tr.  113-
114).  Dress saw "a cone ... of hard-packed fines ... like a
wall of hard-packed sand.   And  laying  up above ... on the
other level ... [was] some loose surge material"  (Tr.  116-
117).  Dress did not believe any of this material could fall
(Tr.  117).   As he recalled, the rock was lying on the side
of the dead bed  away  from the opening (Tr. 41).  According
to  Dress,  he  and  Harder   discussed  the  situation  and
concluded that it was safe for  Harder  to  patch  the  hole
(Id.).

     Harder essentially agreed with Dress. When Harder looked
into the bin, he too saw some  rock,  but like Dress, Harder
did not believe that it would fall.  Harder  did  not  think
that  the situation was dangerous (Tr. 21, 24-25, 57).  Both
Dress and  Harder  stated that if the rock had looked loose,
they would have gone  to  the  top of the bin and knocked it
out with a bar.

     While Harder prepared to patch the  hole, Dress left to 
find Harder a wooden bock upon which to stand so that Harder
could  better  reach  the hole.  When Dress returned, Harder
had climbed up into the  bin and did not need the block (Tr.
118-119).  This was the first  time Harder had worked inside
of the bin.

     Once inside, Harder began to weld the patch over the hole.
Dress  remained outside, along with Chumley  (Tr.  22).   No
other miners  were  working  in  the  vicinity.   During the
course  of  the repair work, Dress and Chumley left so  that
Chumley could  do  other  work  (Tr.  22, 53, 93).  However,
Dress returned periodically to check on Harder (Tr. 53).

     Harder welded for approximately 45 minutes. He was almost
finished  when  he  heard  rocks  begin  to fall  around  him.
Harder jumped down to get out of the bin.  Harder managed to
got  his head out of the bottom opening, and  he  assumed  a
crouched  position.   Rocks continued to fall about his back
and shoulders. He could  not get all of the way out (Tr. 23,
37).  Fortunately for Harder,  Dress  had returned.  He came
immediately to Harder's aid.  He helped  Harder  remove some
of the rocks, and Harder was able to free himself (Id.).

     Harder estimated that he was trapped for about five minutes
(Tr. 36).  He suffered minor cuts.  Dress took him  for  first
aid,  and  asked  if  Harder  wanted  to  go  home.   Harder
responded  that  he  felt  "okay"  (Tr.37).   He  stayed and
finished the shift.  When describing the experience,  Harder
stated, "[I]t was scary, that's for sure" (Id.).

     In  October 1995, Strickler was conducting an inspection 
at the quarry when an employee told him about the accident (Tr.
64).   Strickler investigated and concluded there had been a
violation  of  section 56.16002(a)(1).  In Strickler's view,
the  violation centered  around  the  company's  failure  to
remove the loose material before Harder entered the bin (Tr.
77-78, 79-80).  Strickler stated:

          There  was a buildup of material in ... [the bin].
     They observed it.  They tried to make a correction, but
     it was still  there.   They  made  no  other attempt to
     remove the material above the individual and put him in
     that situation (Tr. 65, see also Tr. 76-77).

     In  Strickler's opinion, to comply with the  standard  Dress
should have  "made  sure  that there wasn't any loose material in
[the] bin" (Tr. 82).  The company  should  have run the vibrators
more and should have barred down the rock from  the  top  of  the
bin, if necessary (Tr. 68).   Strickler stated; "That's taking  a
little  bit  more time and more precaution.  And evidently, there
had to be loose  stuff  in there because something came loose and
covered ... [Harder] up" (Id.).

     Strickler testified  that  the violation was abated when the
company "had a safety meeting and  instructed  the  employees  on
working  inside  bins  and hoppers" (Tr. 127).  As best Strickler
could recall, the instruction  concerned  the use of safety belts
and  lines  when  going  into  hoppers (Id.).  It  also  involved
instructions  in  the  procedures to  take  when  removing  loose
material from bins, e.g.,  running  the vibrators.  Abatement did
not  include the installation of any additional  devices  on  the
bin (Tr. 128).

      Strickler cited the company pursuant to section 104(a)
of the  Act  (30  U.S.C.    814(a)).   After discussing the
citation with his supervisor, Strickler modified  it  to one
issued  pursuant  to  section  104(d)(1)  (Tr.  67-68).  The
modification  was  based  on  Strickler's  belief  that  the
violation  was  due  to  Lafarge's unwarrantable failure  to
company with section 56.16002(a)(1).   He explained that the
company knew that rock had built up in the bin, nevertheless
Dress  assigned  Harder to work inside the  bin   (Tr.  68).
Strickler  also  believed   that  the  company  was  "highly
negligent"  (Tr. 69).  Finally,  Strickler  found  that  the
violation was  S&S  because he believed it reasonably likely
that Harder would have suffocated (Tr. 69).

                      THE MOTION TO DISMISS

     Following presentation of the Secretary's case-in-chief,
counsel   for   Lafarge  and  Dress  moved  to  dismiss  the
proceedings.  Counsel  argued  that  the  Secretary  had not
proven  a  violation,  in that section 56.16002(a)(1) states
its requirements are applicable  during "normal operations",
and patching the hole in the bin "was  definitely not a part
of  the  normal  operations"  (Tr.  85).   Counsel  for  the
Secretary  responded  that  patching  the  hole  constituted
maintenance  of  the bin and that "maintenance is considered
part  of ... normal  operations"  (Tr.86).   I  agreed  with
counsel for the Secretary, and denied the motion (Id.).

                          THE VIOLATION

     The first issue is whether there was a violation of section
56.16002(a)(1).   If  not, Lafarge's contest must be granted
and  the Secretary's civil  penalty  proceedings  dismissed.

     Citation No. 4413670 states:

          On  7-15-94 a maintenance employee was required to
          perform  the  task of welding a metal patch on the
          inside  of [the]  ...  surge  bin.   The  employee
          started out  by  standing  on top of the vibrating
          feeder, in order to gain a better  angle  to weld,
          he  climbed  up  inside  the  bin.   After a short
          period of time, loose material began to  fall, the
          employee  attempted  to  exit the discharge chute,
          when  the  loose material entrapped  him....   The
          foreman at the  scene  was  able  to  free  him by
          removing  some of the large rocks and getting  him
          off the feeder (Gov. Exh. 3).

     Subsequently, the citation was modified as follows:

          It was management's  responsibility  to  take  the
          necessary  precautions  to  eliminate  the hazards
          involved, [p]rior to assigning an employee  to the
          task of welding a metal patch on the inside of the
          ...  bin.   After  running  the  bin  vibrators to
          remove most of the material from inside  the  bin,
          management observed material attached to the sides
          of  the  bin  but  made no attempt to remove loose
          material prior to the  work  being started (Id. at
          2).

     Subpart O of the regulations for metal and nonmetal mines
contains  standards  for  "Materials  Storage and Handling".
Section  56.16002  of  Subpart  O  contains   standards  for
"[b]ins, hoppers, silos, tanks, and surge piles."  As noted,
section 56.16002(a)(1) states in pertinent part

          (a)  Bins ... where loose unconsolidated materials
          are stored, handled or transferred shall be -
          (1) Equipped  with  mechanical  devices  or  other
          effective  means  of  handling  materials  so that
          during  normal  operations person are not required
          to  enter  or  work  where  they  are  exposed  to
          entrapment   by   the   caving   or   sliding   of
          materials[.]

     The wording of the standard makes clear that the specified
facilities used for storing and handling  materials  -  bins,
hoppers,   silos,  etc.  -  must  either  be  equipped  with
mechanical devices  or  with other means so that persons are
not required to enter or  work  where  they  are  exposed to
entrapment.   It  also  makes  clear  that  the standard  is
applicable during normal operations.

     Here, the vibrators were the "mechanical devices" with 
which the bin was equipped to  prevent  persons  from  being 
trapped. They were an integral part of the bin. Although they
were used  primarily  to  shake  stone  into  the  feeder and 
to facilitate  its  even flow onto the belt below, they also
could  be  and  were  used  to  comply  with  the  standard.
(Strickler  and  Dress essentially agreed that  the  company
tried to eliminate  all of the loose material by running the
vibrators until the loose rock was cleared from the bin (see
especially Tr. 65, 76-77).)  That the mechanical devices had
a  dual  purpose does not  prevent  them  from  meeting  the
singular goal of the standard.

     In addition to the "mechanical devices" required by the
standard, the record supports finding the bin  was  equipped
with  another "effective means" to prevent entrapment.   The
inspector and Lafarge's witnesses agreed that a bar could be
used from  above  to knock down and eliminate loose material
(Tr. 68, 105-106, Tr.  120).   While  it is true that unlike
the vibrators, the bar was not attached  to bin, the bin was
nonetheless "equipped" with the bar in that  the  it readily
was available when necessary (Tr. 120) (Webster's Third  New
     International Dictionary 768 (1968)).

     Since the bin was equipped with  mechanical  devices to
prevent  persons  from  working  where they were exposed  to
entrapment  by  caving  or  sliding materials,  Lafarge  was
required to use the devices to  achieve the mandated result.
In  other  words,  Lafarge  was  required   to  operate  the
vibrators to clear the loose rock so that Harder  would  not
be  trapped.   If  its  operation  of  the vibrators did not
sufficiently clear the rock, Lafarge was  required  to  make
sure  a  bar was used to complete the task.  In other words,
under the standard, both the means for achieving the end and
effective use of the means were required.

     By failing to operate the vibrators to eliminate all of
the loose rock, and by failing to ensure  that the remaining
loose rock was barred down prior to Harder entering the bin,
Lafarge  violated the standard, provided patching  the  hole
was a "normal operation".

     As used in the standard, "normal" connotes a regular or
periodic  pattern  (see Webster's 1540).  Nelson, the  plant
manager,  testified  that   miners  worked  inside  the  bin
approximately  once a year (Tr.  94-95).   Thus,  they  were
regularly exposed, albeit on an annual basis, to the hazards
of such work. This periodic exposure  was  sufficient to make
such work a "normal operation".

     In  addition, the hole in the bin, was the result of the
regular use of the  bin.   Repair  of  the hole was simply a
necessary extension of this regular use  and, as counsel for
the  Secretary  argued,  in  this  way  too  was  a  "normal
operation".

     Therefore, I conclude that Lafarge violated the standard.

                         S&S AND GRAVITY

     A violation is properly designated S&S, "if, based upon
the particularfacts 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)).  There are four things the Secretary must
prove to sustain an S&S finding:

               (1)  the  underlying   violation   of  a
          mandatory  safety  standard;  (2)  a discrete
          safety hazard -- that is, a measure of danger
          to  safety  contributed  to be 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 (Mathies Coal  Co,  6  FMSHRC  1,  3-4
          (January  1984); see also Austin Power Co. v.
          Secretary,  861  F.2d  99,  104-105 (5th Cir.
          1988) (approving Mathies criteria).

     Here,  the  Secretary  has proven all  four.   There  was  a
violation of section 56.16002(a)(1).  It contributed to a measure
of danger to safety in that the  failure  to ensure the vibrators
were  used effectively or that a bar was used  to  eliminate  the
remaining  loose  rock,  meant that a person entering the bin was
subject to being trapped by  the  rock.   Moreover,  there  was a
reasonable likelihood that the hazard contributed to would result
in  an  injury.  Given Harder's presence under the rock and given
the work  he  was  doing,  the  loose  rock was likely to fall on
Harder  at any time and to subject him to  crushing  injuries  or
suffocation.   Harder  was  lucky.   He suffered only minor cuts.
However, it was reasonably likely that  he  would  have been more
severely injured or even killed.

     In   addition   to   being  a  significant  and  substantial
contribution to a mine safety  hazard,  the  violation  was  very
serious.  It long has been held that to determine the gravity  of
a  violation,  the  violation  should be analyzed in terms of its
potential hazard to the safety of  miners  and the probability of
that hazard occurring (Robert G. Lawson Coal Co., 1 IBMA 115, 120
(May 1972)).  The potential hazard was injury  due to cuts and/or
broken bones, or death due to asphyxiation.  Because  Harder  was
required  to work in the immediate presence of loose rock, it was
probable that  an accident causing serious injury or even causing
death would happen.

             UNWARRANTABLE  FAILURE  AND NEGLIGENCE

     Unwarrantable failure is "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 Co., 9 FMSHRC 2007
(December 1987)).  Unwarrantable failure is characterized by such
conduct   as  "reckless  disregard,"  "intentional   misconduct,"
"indifference,"  or  a  "serious lack of reasonable care" (Emery,
9 FMSHRC at 2003-04).

     While  the  violation   was   not   caused   by  intentional
misconduct,  the  company  was  guilty  of  a  serious  lack   of
reasonable  care.   First,  patching the hole from inside the bin
potentially was a very dangerous  job.   Any miner assigned to do
the job was subject to being injured or killed  unless loose rock
above  the  miner  was  removed.  This potential threat  required
heightened precautions on  the  part  of Lafarge and those acting
for it.  Rather than exhibit heightened  care,  the  company  and
Dress  relied  on  procedures normally used at the quarry to make
sure the bin was safe.

     The evidence leads inescapably to the conclusion that no one
at Lafarge knew enough  about emptying the bin to be certain that
the procedures were adequate.   As has been noted, the procedures
involved the visual examination of  the  bin from below after the
vibrators had been run for approximately 25 minutes (Tr. 101-102,
117), and for a "judgment call" based on the examination (Tr.98).
Nelson   candidly  admitted  that  Lafarge  officials   did   not
"automatically"  know  how long it took to clear the bin, because
they had not done it that  often  (Tr.  105).   Moreover,  visual
inspection   from   below   did  not  give  a  sufficiently  full
perspective of what remained  in  the bin.  Inspection from above
also  was  necessary  (see  Tr. 74, 79-80).   In  view  of  these
factors, it was not enough for  the  company to have miners "look
at it and use [their] own judgement" to  determine whether or not
loose rock remained (Tr. 98).  The company  should  have required
more.

     For  example,  before  a miner entered the bin, the  company
should have mandated inspection  from  both  below  and above and
should have required that a bar be used from above, no matter how
long the vibrators had run.

     To put the matter another way, given the company's  relative
unfamiliarity with emptying the bin and given the danger inherent
in the work assignment, the company should have erred, if at all,
on the side of safety.  Its failure to make sure that the  normal
prework procedure did not involve more than vibrating the bin for
a period it believed, but was not certain, was adequate, and  did
not  involve more than miners, who were unfamiliar with assessing
what they saw, visually inspecting the bin, represented a serious
lack of reasonable care.  I conclude therefore that the violation
was caused by the unwarrantable failure of Lafarge to comply with
the standard.

     Having  concluded  the  company  exhibited a serious lack of
reasonable  care  in  allowing the violation  to  exist,  I  also
conclude that the company commensurately was negligent.

                     CIVIL PENALTY ASSESSMENT

     The violation was  very serious.  Lafarge was extemely lucky
Harder was not disabled,  or  worse.  The violation was caused by
the company's serious lack of care.   These  criteria, along with
the company's large size, would warrant a substantial penalty, if
they  stood alone.  However, the are balanced by  the  mitigating
effect  of the company's prompt abatement of the violation and by
its small history of previous violations.

     The  violation  was  not part of a pattern of neglect of the
company's statutory responsibilities.   Rather,  as  indicated by
the company's history of previous violations, it was more  in the
nature  of  an  isolated  incident.   Although, the Secretary has
proposed a civil penalty of $3,800, I conclude  that a penalty of
$2,500 should be assessed.

                        KNOWING VIOLATION

     Section 110(c) of the Act provides for the assessment  of  a
civil  penalty  when  any agent of a corporation "knowingly [has]
authorized, ordered, or  carried  out" a violation of a mandatory
health or safety standard (30 U.S.C.    820(c)).  Since there is
no  dispute  about  the  corporate status of Lafarge  and  Dress'
status as an agent, the critical  question  is  whether,  as  the
Secretary    alleges    Dress    knowingly    violated    section
56.16002(a)(1).

     The  Commission  has approved the description of "knowingly"
found in U.S. v. Sweet  Briar,  Inc.,92  F.  Supp.  777 (W.D.S.C.
1950)). There, the court stated that the word:

          does  not  have  any  meaning of bad faith or evil
     purpose or criminal intent.  Its meaning is rather that
     used in contract law, where  it means knowing or having
     reason to know.  A person has  reason  to  know when he
     has such information as would lead a person  exercising
     reasonable care to acquire knowledge of the
     fact in question or to infer its existence
     (92 F. Supp at 780).

The Commission has found that this interpretation:

          is consistent with both the statutory language and
     the remedial intent of the ... Act (Kenny Richardson, 3
     FMSHRC  8, 16 (January 1981), aff'd, 689 F.2d 623  (6th
     Cir. 1982).)

It has explained that:

          If a  person  in  a  position  to protect employee
     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 (Kenny Richardson,  3  FMSHRC  at
     16).

In  addition,  the  Commission  has  held that to violate section
110(c), the person's conduct must be "aggravated",  i.e., it must
involve  more  than  ordinary negligence.  Wyoming Fuel  Co.,  16
FMSHRC 1618, 1630 (August  1994);  Beth  Energy  Mines,  Inc., 14
FMSHRC 1232, 1245 (August 1992).

     It  is certain that Dress did not intentionally violate  the
standard. Harder was sure that Dress never would assign him to do
a job that  Dress  believed  was dangerous, and I agree (Tr. 24).
The respect Dress and Harder had  for one another was apparent at
the hearing.  Both clearly were troubled by what had happened and
relieved and grateful the consequences had been slight.

     This said, it also is clear that  intent  is  not the issue.
Rather,  and  as  explained  by  the Commission, the question  is
whether Dress should have known of  the  violation and whether he
exhibited more than ordinary negligence in allowing the violation
to occur.

     As  a  foreman, Dress had a high standard  of  care  to  the
company for whom  he worked and to the miners who worked pursuant
to his directions.   When  Dress  assigned  Harder  to work under
conditions  that  were  potentially  very  hazardous,  it  became
incumbent upon him to meet a standard of care proportionate  with
the  danger.   Rather  than  do  this,  Dress relied on the usual
procedures of running the vibrators and of  visual inspecting the
bin from below in order to assess and remove  the danger, and, as
I have found, these procedures were wholely inadequate.

     Because  of  the  unfamiliarity  of  company personnel  with
emptying  the bin, because of the unfamiliarity  of  miners  with
working in  the  bin,  because Harder never had worked in the bin
before, there were too many uncertainties involved (see Tr. 105).
In view of them, and of  the  fact  that Harder easily could have
been trapped, severely injured, or killed  if  he  misjudged  the
situation,  Dress  should  have  know  that  loose material might
remain and should have insisted that the bin be viewed from above
and a bar be used.  He did not.

     I conclude, therefore, that Dress should  have  known of the
violation  and  that  his  failure represented more than ordinary
negligence.  As a result, he knowingly violated the standard.

                     CIVIL PENALTY ASSESSMENT

     This was a very serious  violation, and Dress exhibited more
than ordinary negligence in failing  to make sure that Harder was
not  exposed  to  entrapment by sliding and  falling  rock.   The
Secretary has proposed  that Dress pay a civil penalty of $3,000.
However, I find it incongruous that the Secretary proposes Dress,
an individual, pay a civil penalty greater than three fourths the
amount of that proposed for Lafarge, a large operator.

     Moreover,  although Dress  used  bad  judgement  in  placing
Harder in harm's  way,  there  is  no  suggestion  that Dress was
habitually  careless in assigning miners to work in violation  of
mandatory safety  standards.   Indeed, the company's overall good
history of previous violations and  the  fact  that  Dress has no
applicable  history  of previous violations suggests exactly  the
opposite (Tr. 130).

     In view of the fact  that the violation appears to have been
the result of a single, isolated  lapse  of  judgment  on Dress's
part, I conclude that a penalty of $500 is appropriate.

                              ORDER

                    DOCKET NO. LAKE 95-114-RM

          CITATION NO.        DATE           30 C.F.R.
          4413570             10/5/94         56.16002(a)(1)

     The  citation is AFFIRMED, and DOCKET NO. LAKE 95-114-RM  is
DISMISSED.

                     DOCKET NO. LAKE 95-239-M

                                           PROPOSED     ASSESSED
CITATION NO.   DATE      30 C.F.R.         PENALTY      PENALTY
4413570       10/5/94    56.16002(a)(1)   $3,800       $2,500

     Lafarge  is  ORDERED to pay a civil penalty of $2,500 within
30 days of the date of this decision.

                     DOCKET NO. LAKE 95-28-M

                                          PROPOSED     ASSESSED
CITATION NO.   DATE      30 C.F.R.         PENALTY      PENALTY
4413570        10/5/94    56.16002(a)(1)  $3,000        $500

     Dress is ORDERED  to  pay  a  civil  penalty  of $500 within
thirty days of the date of this decision.

     Upon  receipt of the payments, DOCKET NO. LAKE 95-239-M  and
DOCKET NO. LAKE 95-28-M are DISMISSED.

                                   David F. Barbour
                                   Administrative Law Judge

Distribution:

Patrick L. DePace, Esq., Office  of the Solicitor, U.S. Dept. Of
Labor,  881  Federal Office Bldg., 1240 East  Ninth Street,  
Cleveland,  OH  44199 (Certified Mail)

William K. Doran, Esq., Smith, Heenan  & Althen, 1110 Vermont
Ave.,   N.W.,    Suite    400, Washington,   D.C.  20005-3593
(Certified Mail)

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