.
WEATERS CRUSHING, INC.
August 31, 2000
WEST 99-19-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                         August 31, 2000

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 99-19-M
                 Petitioner     :  A.C. No. 35-02969-05506
            v.                  :
                                :  Docket No. WEST 99-105-M
WEATHERS CRUSHING, INC.,        :  A.C. No. 35-02969-05508
                 Respondent     :
                                :  Weathers Portable
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 99-361-M
                 Petitioner     :  A.C. No. 35-02969-05509 A
            v.                  :
                                :  Weathers Portable
DARWIN WEATHERS, employed       :
  by WEATHERS CRUSHING, INC.,   :
                 Respondent     :

                            DECISION

Appearances:  William  Kates,  Esq.,  U.S.  Department  of Labor,
              Office of the Solicitor, Seattle, Washington for
              Petitioner;
              Roger  Luedtke,  Esq., Schwabe Williamson & Wyatt
              P.C., Portland, Oregon, for Respondent.

Before:  Judge Bulluck

     These cases are before  me  upon Petitions for Assessment of
Penalty filed by the Secretary of  Labor, through the Mine Safety
and Health Administration ("MSHA"),  against  Weathers  Crushing,
Incorporated ("Weathers Crushing") and Darwin Weathers, president
of  Weathers  Crushing,  pursuant  to sections 105(d) and 110(c),
respectively, of the Federal Mine Safety  and  Health Act of 1977
("the Act"), 30 U.S.C.  801 et seq., as a result  of  a fatality
that occurred at the Weathers Portable mine facility on April 30,
1998.
     A  hearing  was  held  in Medford, Oregon.  The post-hearing
briefs are of record.  For the  reasons set forth below, Citation
Nos. 4135307, 4135310 and Order No. 4135308 shall be AFFIRMED, as
issued,  Order  No.  4135309  shall  be   DISMISSED,  and  Darwin
Weathers, as corporate officer, shall be ordered  to  pay a civil
penalty.

     I.  Stipulations

     The parties stipulated to the following facts:

     1.  The Respondent, Weathers Crushing, Incorporated,  is and
at  all  times  material hereto, was a corporation with a mailing
address of 6070 Rock Way, Central Point, Oregon 97502.

     2.  The Respondent,  Weathers Crushing, Incorporated, is and
at all times material hereto,  was  the  owner  and  operator  of
certain portable crushing machinery and equipment used at various
mine   sites  in  Oregon  and  several  years  ago,  in  Northern
California.

     3.   On  or  about  April 30, 1998, the Respondent, Weathers
Crushing,  Incorporated, was  operating  such  portable  crushing
machinery and equipment on a temporary basis at the mine facility
known as the  Weathers  Portable  and located at the pit known as
the  Brick  Pile  Quarry  in the Rogue  River  National  Forrest,
approximately 25 miles southeast of Central Point, Oregon.

     4.  The Weathers Portable  facility,  identified above, was,
on April 30, 1998, a mine subject to the Mine  Act,  in  that its
operations and products enter of affect commerce.

     5.   The  site  of  the alleged violations at issue in these
cases is the aforesaid Weathers Portable mine facility.

     6.  The Respondent, Darwin  Weathers,  an individual, is and
at  all  times  material  hereto, was the president  of  Weathers
Crushing, Incorporated.

     7.  The Respondent, Weathers  Crushing,  Incorporated, has a
history of two assessed violations, having two inspection days in
the 24 months prior to the violations at issue herein.

     8.  At the aforesaid Weathers Portable mine  facility, there
were approximately 5,973 hours worked in the calendar  year prior
to the violations at issue herein.

     II.  Factual Background

     Weathers  Crushing  began  operating the cited portable  jaw
crusher at its Weathers Portable  mine facility on or about April
21, 1998 (Tr. 44-45).  On the morning of April 30, 1998, when the
fatality occurred, Darwin Weathers, Dan Berkey and Richard Nelson
were working at the mine site (Tr.  25-26).  Weathers  had  hired
Nelson to operate the rock crusher, as a replacement for his son,
Jeff  Weathers,  who  had recently broken his ankle, and this was
Nelson's first day on the  job  (Tr.  57, 85).  Jeff Weathers and
Dan Berkey had both worked with Nelson previously, and Nelson had
talked to Darwin Weathers on a few occasions about coming to work
for him, indicating that he had worked  on  a  rock  crusher  and
around other heavy equipment on another job (Tr. 58, 85-86, 123).
The  record  is  vague as to the extent of Nelson's experience on
rock  crushers,  except   that   he  had  worked  in  Susanville,
California and New Mexico (Tr. 57,  79).  Prior to being hired by
Weathers, Nelson had been an automobile mechanic (Tr. 58).

     Dan Berkey had driven himself and  Richard Nelson to the job
site (Tr. 108, 122).  Weathers spent ten  to  thirty minutes with
Nelson  on  the  operator's  platform,  instructing  him  on  the
operation  of  the  jaw  crusher and watching  him  perform,  and
ultimately instructed Nelson  to  get his attention on the front-
end  loader, should any problems occur  that  would  require  his
assistance  (Tr.  78,  82, 86-87, 101, 122).  Following Weathers'
instruction, Berkey went  up  on  the  platform  with  Nelson and
showed him how to operate the crusher (Tr. 122-23).  In  response
to Nelson's mention of using a pry bar to clear blockages  in the
crusher,  Berkey told Nelson that "that wouldn't be a good idea,"
because "if  you  stick  it in there and everything breaks loose,
it's going to take that pry  bar  and slam it back at you and hit
you  with it (Tr. 82-82, 123)."  Before  he  left  the  platform,
however,  Berkey  did  instruct  Nelson  on  methods  of clearing
obstructions  with  a  running  crusher,  including breaking  off
corners of rocks with a sledge hammer and, like Weathers, advised
Nelson that `if he had any problems, to let  [him]  know  so [he]
could go over there and show him (Tr. 79-81, 124)."

     At approximately 9:45 a.m., 2  hours after Nelson had begun
working,  Weathers  was  operating the front-end loader supplying
rock to the jaw crusher, Berkey  was  removing  sticks  and other
foreign  objects from the conveyor belt to the cone crusher,  and
Nelson was  operating  the jaw crusher (Tr. 25-26, 35, 56-57, 79,
91, 124).  Weathers became concerned when he lost view of Nelson,
and rushed to the jaw crusher,  closely  followed  by Berkey, who
had seen Nelson's hat fly up in the air (Tr. 66, 95-96,  125-26).
Weathers and Berkey found Nelson injured, lying in the right side
of  the  feeder, just in front of the jaw crusher (Tr. 25, 30-32,
119; Ex. P-4).  The jaw crusher was still running, but the feeder
had been turned  off  (Tr.  64,  94-95,  109).  Weathers directed
Berkey to administer first aid to Nelson,  while  he  radioed for
help in his pick-up truck (Tr. 64).  The sledge hammer  head  had
been  hurled  37  feet from the jaw crusher into a pile of muck,
and its badly splintered  handle was found on one of the conveyor
belts, having passed through the cone crusher (Tr. 58-60; Exs. P-
10, P-11).  Neither Weathers  nor  Berkey  actually witnessed the
accident.

     The Jackson County Sheriff's Department  was  dispatched and
took  photographs  of  the  accident  scene, and Fire and  Rescue
emergency medical personnel attempted to  resuscitate  Nelson for
approximately  one  hour,  after  which  he  was  transported  by
ambulance to Rogue Valley Medical Center, where he was pronounced
dead  (Tr.  60-62; Exs. P-4, P-5, P-6, P-12, P-13, P-14).  At the
Medical Center,  marijuana  in a plastic bag and a marijuana pipe
were found in Nelson's jeans  pocket  by an emergency room nurse,
and Nelson tested "presumptive positive" for benzodiazephines and
cannabinoids (Tr. 68; Ex.P-15).

     MSHA Inspector Randy Cardwell and  Darwin  Weathers  met  at
Weathers'  home  in  Medford  at 7:00 that evening, discussed the
accident  and traveled to the mine  together,  so  that  Cardwell
could secure  the  site  (Tr. 12-15).  Cardwell observed that the
feeder  was empty, and was  told  by  Weathers  that,  after  the
accident,  they  had  run  the  remainder of the rock through the
crusher, before shutting down the plant and leaving the mine (Tr.
28-30).  Weathers expressed his opinion  to  Cardwell that Nelson
had  been hit in the face with the head of a sledge  hammer,  and
showed  him  where Nelson had fallen in the feeder (Tr.13,15, 24-
25).

     On  the  following   morning,   May   1st,   MSHA   accident
investigation  team  members  Collin Galloway, David Brabank  and
Randy Cardwell, accompanied by  Jackson  County  Medical Examiner
Sherman  Spencer, Weathers and Berkey conducted an  investigation
of  the fatality  at  the  mine  site  (Tr.  30,  35-36,  77-78).
Galloway  climbed  up  onto the operator's platform, took several
photographs, and noticed  the  absence of a pair of guard chains,
intended as a barrier between the operator's platform and the pan
feeder (Tr. 41-44; Exs. P-1, P-2,  P-3).  Weathers looked for the
chains after the inspector brought the  matter  to his attention,
but was unable to find them (Tr. 43-44, 91, 102-04).

     As  a  result  of  the  investigation,  Galloway issued  two
citations and two orders.

     III.  Findings of Fact and Conclusions of Law
            A.  Citation No. 4135307
                  1.  Fact of Violation

     104(d)(1)  Citation No. 4135307 charges a  violation  of  30
C.F.R.   56.14105,  describing  the  condition  or  practice  as
follows:

          A  fatal  accident  occurred at this mine on April
     30,  1998,  when  the  crusher  operator  attempted  to
     dislodge  rocks which would  not  go  through  the  jaw
     crusher.  The  crusher  operator  was  using a 12-pound
     sledge hammer to dislodge the rocks, and  was struck in
     the  face  when  the  head  of  the hammer was forcibly
     ejected  from the crusher.  The crusher  had  not  been
     shut off and  blocked against hazardous motion.  Darwin
     Weathers,  owner,  knew  or  had  reason  to  know  the
     procedure was used to clear blockages while the crusher
     was operating.   This  is  an  unwarrantable failure to
     comply with a mandatory safety standard.

     30 C.F.R.  56.14105 provides that:  "Repairs or maintenance
of machinery or equipment shall be performed only after the power
is off, and the machinery or equipment blocked  against hazardous
motion.  Machinery or equipment motion or activation is permitted
to  the  extent that adjustments or testing cannot  be  performed
without  motion   or   activation,   provided  that  persons  are
effectively protected from hazardous motion."

     The Commission broadly  interprets  "repairs  or maintenance
of machinery or equipment" to encompass activities of breaking up
and  removing  rocks  clogging a crusher.  Walker Stone  Company,
Inc., 19 FMSHRC 48, 51  (January 1997), aff'd 156 F.3d 1076 (10th
Cir. 1998).  It is undisputed  that  the  crusher was running and
the  feeder  had been turned off by Nelson when  he  was  fatally
injured.   One   of   the   Jackson   County  Sheriff  Department
photographs, taken contemporaneous with  the  accident and before
the feeder had been "run out," depicts large rocks  lying flat at
the  end  of  the feeder just above the jaw crusher, establishing
the likelihood  of  a  jammed feeder (Ex. P-13; Tr. 61-63).  This
photograph supports Weathers  Crushing's position that Nelson had
been attempting to loosen rock  blockage  in  the feeder with the
sledge  hammer,  rather than in the crusher, itself  (Tr.  65-66,
118-120; Resp. Br.  at  4).  A "bridge" or blockage in the feeder
prevents rock from falling into the jaws of the crusher, but does
not impede the actual motion of the crusher (Tr. 94, 114-15).

     Weathers Crushing argues, therefore, that if Nelson is found
to have been "repairing or  maintaining"  the  feeder, it follows
that he had complied with the standard, because he had turned  it
off. It is this reasoning, however, that totally  frustrates  the
safety  promoting purpose of the standard.  The fault in Weathers
Crushing's position lies in considering the feeder and crusher as
two separate  entities,  operating independent of each other.  On
the contrary, they operate  as  a  unit, wherein the walls of the
feeder are angled and its plates vibrate  to  jog  rock down into
the  jaws of the crusher, which reduces the rock to the  size  to
which  the  dies  have been adjusted (Tr. 49-51).  In effect, the
feeder is the gateway  to  the  crusher, such that objects in the
feeder are openly exposed to the crusher's jaws.

     Although speculation, since  there  were  no eyewitnesses to
the accident, it is likely that Nelson entered the  feeder  after
he  had turned it off, and in attempting to clear the obstruction
in the  feeder,  dropped  the sledge hammer, or somehow put it in
contact with the running jaw  crusher,  which spit the hammerhead
back at him, resulting in the fatal blow  to  his  face.   It  is
abundantly  evident  that  had  the  crusher  been turned off and
blocked against hazardous motion, the accident  would  have  been
avoided.   When  considering  that  Nelson,  himself,  could have
slipped  and  fallen into the moving jaws, it is clear that  both
feeder and crusher  must be turned off and blocked against motion
when working in either component.

     Accordingly, having  found  that Nelson was required to turn
off both jaw crusher and feeder, and block them against hazardous
motion  when  he  was  unblocking the  feeder,  I  conclude  that
Weathers Crushing violated section 56.14105.

                  2.  Significant and Substantial

     Section   104(d)  of  the   Act   designates   a   violation
"significant and  substantial"  ("S&S")  when  it  is  "of such a
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 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 set forth the four criteria  that  the  Secretary must
establish  in  order  to  prove  that  a  violation is S&S  under
National  Gypsum:  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.  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  9  FMSHRC  2015,  2021  (December  1987)(approving
Mathies  criteria).   Evaluation  of  the  third  criterion,  the
reasonable likelihood of injury, should be made in the context of
"continued  mining  operations."  U.S. Steel Mining Co., 6 FMSHRC
1573,  1574  (July 1984).   Moreover,  resolution  of  whether  a
violation  is  S&S   must  be  based  "on  the  particular  facts
surrounding the violation."   Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1998).

     Inspector Galloway determined  that  the  violation was S&S.
Clearly, the hazard of working in and around the  feeder  and jaw
crusher, without turning off the power and blocking the hazardous
motion  of  both components, was a significant contributing cause
of Nelson's fatal  accident.   Therefore,  I  conclude  that  the
violation was S&S.

                  3.  Unwarrantable Failure

     "Unwarrantable  failure" is aggravated conduct consisting of
more than ordinary negligence.   Emery  Mining  Corp.,  9  FMSHRC
1997,   2001   (December   1987).    Unwarrantable   failure   is
characterized   by   such   conduct   as   "reckless  disregard,"
"intentional misconduct," "indifference," or  a  serious  lack of
reasonable  care.   Id.  at  2001-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (February 1991).

     The Commission has provided  a  practical framework in which
to  analyze  whether  a  violation  resulted  from  unwarrantable
failure.    Among   the  factors  to  be  considered   are   "the
extensiveness of the  violation, the length of time the violative
condition has existed,  the  operator's  efforts to eliminate the
violative condition, and whether the operator  has been placed on
notice  that  greater  efforts  are  necessary  for  compliance."
Mullins  and  Sons Coal Co., 16 FMSHRC 192, 195 (February  1994).
The  culpability   determination   required   for  a  finding  of
unwarrantable   failure   is  similar  to  gross  negligence   or
recklessness.  It is more than  a  "knew  or  should  have known"
test.   Virginia  Crews  Coal  Co., 15 FMSHRC 2103, 2107 (October
1993).

     The practice of using a sledge  hammer  to break off corners
of obstructive rocks in feeders was standard operating  procedure
at Weathers Crushing, and demonstrated by Berkey to Nelson during
Nelson's new employee indoctrination.  Indeed, Weathers testified
that he had been in the rock crushing business for 23 years,  had
routinely  engaged in the practice that ultimately killed Nelson,
and had taught his son, a company employee of 15 years, to employ
the same technique (Tr. 88-90, 93, 99-100, 108-09, 111-12).   The
danger of working  in  and  around  the  jaw  crusher while it is
running  is,  or should be, visibly evident.  Tragically,  Nelson
performed as he had been instructed, to the extent that he worked
in the feeder with  the  sledge hammer, in close proximity to the
running  crusher.   It  is  irrelevant   whether   negligence  or
inadvertence  on Nelson's part caused the sledge hammer  to  make
contact with the  crusher, because the danger arose from exposure
to the moving machinery,  rather  than  the activity in or around
it.   It  is  my  finding,  therefore,  that Weathers  Crushing's
conduct  in  instructing Nelson to place himself  in  and  around
heavy,  running   equipment   demonstrated   a  serious  lack  of
reasonable   care   that   was  more  than  ordinary  negligence.
Consequently,  I find that the  Secretary  has  proven  that  the
violation was the  result  of  Weathers  Crushing's unwarrantable
failure to comply with the standard.

                  5.  Penalty

     While  the  Secretary  has  proposed  a  civil   penalty  of
$25,000.00,   the   judge   must   independently   determine  the
appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. 
820(j).   See Sellesburg Co., 5 FMSHRC 287, 291-92 (March  1993),
aff'd, 763 F. 2d 1147 (7th Cir. 1984).

     Weathers  Crushing  is  a  small  operator,  with an overall
history  of  violations  that  is  not  an aggravating factor  in
assessing  an appropriate penalty (Tr. 6).   As  stipulated,  the
proposed  civil  penalty  will  not  affect  Weathers  Crushing's
ability to continue in business (Tr. 127-28).

     The remaining  criteria involve consideration of the gravity
of the violation and  the  negligence  of  Weathers  Crushing  in
causing  it.  Considering that Nelson was fatally injured, I find
the gravity  of  the  violation to be very serious.  In assessing
the level of negligence  attributable to Weathers Crushing, since
Nelson  was  a rank-and-file  employee,  I  have  considered  the
operator's  supervision   and   training   of  Nelson,  and  have
determined that the operator not only failed  to  take reasonable
steps  to prevent Nelson's violative conduct, but encouraged  it.
See Secretary  of Labor v. Southern Ohio Coal Co., 4 FMSHRC 1458,
1464 (1982).  Accordingly, and consistent with my conclusion that
the violation resulted  from  Weathers  Crushing's  unwarrantable
failure to comply with the standard, I ascribe high negligence to
the  operator.  Therefore, having considered Weathers  Crushing's
small  size, seriousness of violation, high degree of negligence,
good faith  abatement and no other mitigating factors, I conclude
that the $25,000.00  penalty,  as  proposed  by the Secretary, is
appropriate.

     The  Secretary  has  charged Darwin Weathers  under  section
110(c) for a violation of 30  C.F.R.  56.14105, and has proposed
a civil of penalty of $250.00.   Section  110(c)  of the Mine Act
provides that whenever a corporate operator violates  a mandatory
health or safety standard, a director, officer, or agent  of such
corporate  operator who knowingly authorized, ordered, or carried
out  the violation  shall  be  subject  to  an  individual  civil
penalty.  30 U.S.C.  820(c).  A knowing violation occurs when an
individual  "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."
Kenny Richardson, 3 FMSHRC 8, 16 (January  1981),  aff'd on other
grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983).   Section  110(c)  liability  is predicated on aggravated
conduct   that   constitutes   more  than  ordinary   negligence.
Bethenergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).

     Darwin  Weathers,  as  president   and   owner  of  Weathers
Crushing, had been in the rock crushing business  for  23  years,
and  despite  assertions  that   using  sledge  hammers  to clear
obstructions,  with  crushers  running,  had  been a longstanding
practice in his company, without incident, the  danger  that  the
standard  is  intended to avoid and the standard of care required
should have been  evident  to him (Tr. 88-91, 92-93, 96-101).  It
is equally clear that Weathers  knowingly  authorized  Berkey  to
indoctrinate  Nelson  in  dangerous  work procedures (Tr.122-24).
Weathers' lack of due care was aggravated by the fact that he had
hired  Nelson  without  taking steps to ascertain  his  level  of
experience on rock crushers  (Tr.  57-58,  78-80).  Consequently,
the  Secretary  has established that Darwin Weathers  engaged  in
aggravated conduct  constituting  more  than ordinary negligence,
and  a civil penalty is warranted.  The parties  have  stipulated
that the  proposed  penalty  will  not adversely affect Weathers'
personal   financial   status   (Tr.  130).    Accordingly,   the
Secretary's proposed penalty of $250.00 is appropriate.

            B.  Order No. 4135308
                  1.  Fact of Violation

     104(d)(1) Order No. 4135308 charges a violation of 30 C.F.R.
 56.18006, describing the condition or practice as follows:

          A fatal accident occurred at the mine on April 30,
     1998, when the crusher operator  attempted  to dislodge
     rocks which would not go through the jaw crusher.   The
     crusher  operator was using a 12-pound sledge hammer to
     dislodge the  rocks and was struck in the face when the
     head  of  the hammer  was  forcibly  ejected  from  the
     crusher.  The crusher had not been shut off and blocked
     against hazardous  motion.   The  crusher  operator had
     been  on the job for about 2  hours and had  not  been
     indoctrinated   in   safety   rules  and  safe  working
     procedures.  This is an unwarrantable failure to comply
     with a mandatory safety standard.

     30 C.F.R.  56.18006 provides that  "New  employees shall be
indoctrinated in safety rules and safe work procedures."

     It is abundantly clear form the record that  Weathers  hired
Nelson  with  insufficient  knowledge  of  Nelson's experience in
operating  rock  crushers  and  other heavy equipment,  and  that
little time was spent training him  to  operate  the jaw crusher,
based  on  the  assumption  that  Nelson knew what he was  doing.
Moreover, what indoctrination Nelson  was  given familiarized him
with unsafe work procedures, after which he  was essentially cast
adrift.   The  fact  that  Weathers  and  Berkey made  themselves
available  to  Nelson  in the event of a problem,  presumed  that
Nelson had the experience  to  recognize when he needed help.  It
would appear that Nelson did not  view  the blockage as a problem
requiring  assistance,  since he had been instructed  on  how  to
resolve it himself with the sledge hammer.  Unfortunately, to the
extent that Nelson exposed himself to the hazardous motion of the
jaw crusher when he moved about the feeder, he was performing his
duties precisely as he had been instructed .  Consequently, it is
my finding that Nelson's  indoctrination in safety rules and safe
work procedures was sorely  lacking,  and  I conclude, therefore,
that Weathers Crushing violated section 56.18006.

                  2.  Significant and Substantial

     Inspector Galloway found this violation  to be S&S.  In view
of Nelson's fatal injuries, this violation satisfies  the Mathies
criteria.  "Clearly, it was a significant contributing  cause  to
the  fatal  accident."   156  F. 3d. at 1084-85.  Consequently, I
conclude that the violation was S&S.

                  3.  Unwarrantable Failure

     Referring to the unwarrantable  failure  analysis respecting
the  previous  citation,  and  having  found  that  the  operator
demonstrated a serious lack of reasonable care in supervising and
training Nelson to perform his duties safely, I conclude that the
Secretary  has  proven  that  the  violation  was  the result  of
Weathers  Crushing's  unwarrantable  failure to comply  with  the
standard.

                  4.  Penalty

     I  have considered the six penalty  criteria  set  forth  in
section 110(i)  of  the Act, and have discussed my analysis under
the previous citation.   Accordingly,  I find that the $20,000.00
penalty proposed by the Secretary is appropriate.

            C.  Order No. 4135309
                  1.  Fact of Violation

     104(d)(2) Order No. 4135309 charges a violation of 30 C.F.R.
 56.11012, and describes the condition or practice as follows:

          A fatal accident occurred at this  mine  on  April
     30,  1998,  when  the  crusher  operator  attempted  to
     dislodge  rocks  which  would  not  go  through the jaw
     crusher.  The chains used as railing or barriers around
     the elevated work deck on the jaw crusher  were  not in
     place.  Hooks were welded to the vertical supports, but
     the  chains  were  missing,  which  created  an opening
     approximately 40 inches high and 40 inches wide through
     which  a  person could fall either on the feed ramp,  a
     distance of  10 feet, or into the jaw crusher.  This is
     an unwarrantable  failure  to  comply  with a mandatory
     standard.

     30 C.F.R.  56.11012 provides that "Openings  above,  below,
or  near  travelways  through which persons or materials may fall
shall be protected by railings, barriers, or covers.  Where it is
impractical to install  such protective devices, adequate warning
signals shall be installed."

     When MSHA's accident  investigation team arrived at the mine
site  the morning of May 1st,  no  mining  was  being  conducted,
having ceased on April 30th subsequent to the accident, and after
the material  remaining  in  the  feeder had been run through the
crusher (Tr. 16-17, 28-30).  Weathers  testified credibly that he
was aware that he was required to have the guard chains in place,
that he was unaware that they were missing  while the jaw crusher
was operating, and that he was unable to locate  them at the mine
site when Inspector Galloway informed him that they  were missing
(Tr. 91, 102-03).

     The Secretary raises several questions as to why  the chains
were  never found, if they had existed when the portable  crusher
was set  up  in  the first place (Sec. Br. at 10).  The questions
lose most of their  significance  in  light  of the activity that
took  place  on  the portable crusher immediately  following  the
accident.  Numerous  personnel  had  been dispatched to the site,
county deputy sheriffs and emergency medical technicians, who had
climbed  up  onto the operator's platform  and  into  the  feeder
attempting  to   save  Nelson's  life,  and  had  left  behind  a
substantial amount  of  medical debris (Tr. 91, 103-04; Exs. P-4,
P-5, P-12, P-13).   Moreover,  the  evidence  indicates  that the
guard  chains  were  not a contributing factor to this accident--
Nelson  deliberately  entered  the  feeder  from  the  operator's
platform.  Crediting Weathers'  testimony  that  the guard chains
were  in  place  prior  to  the accident, I find that intervening
variables,  beyond  the  operator's   control,  contaminated  the
accident scene, so as to make a determination of what happened to
the chains, without further investigation,  virtually impossible.
It is my conclusion, therefore, that the Secretary  has failed to
prove, by a preponderance of the evidence, that Weathers Crushing
violated section 56.11012.

            D.  Citation No. 4135310
                  1.  Fact of Violation

     104(a) Citation No. 4135310 charges a violation of 30 C.F.R.
 56.20001, describing the condition or practice as follows:

          A  fatal  accident  occurred at this mine on April
     30,  1998,  when  the  crusher  operator  attempted  to
     dislodge  rocks which would  not  go  through  the  jaw
     crusher.  He  was  using  a  12-pound  sledge hammer to
     dislodge the rocks, and was struck in the face when the
     head  of  the  hammer  was  forcibly ejected  from  the
     crusher,  which  had  not  been shut  off  and  blocked
     against hazardous motion.  The  Jackson  County, Oregon
     Chief Deputy Medical Examiner reported that a marijuana
     pipe and a plastic bag containing marijuana  were found
     on  the  victim's  person upon arrival at the hospital.
     This  information  was   obtained   from   the  Medical
     Examiner's  Report  received  on  June  22, 1998.   The
     citation is issued 7/16/98.

     30  C.F.R.  56.20001 requires that "Intoxicating  beverages
and narcotics  shall not be permitted or used in or around mines.
Persons under the  influence of alcohol or narcotics shall not be
permitted on the job."   The  evidence  establishes  that  Nelson
brought marijuana and a marijuana pipe to the mine site and  that
he  tested  positive  for  drug usage.  There is no evidence that
Weathers Crushing knew of Nelson's conduct.  The Mine Act imposes
strict liability on mine operators  for  violation  of standards,
irrespective of fault.  Western Fuels-Utah v. Fed. Mine  Safety &
Health,  870  F.2d  711 (D.C. Cir. 1989); Rock of Ages Corp.,  20
FMSHRC 106, 114 (February  1998); Wyoming Fuel Co., 16 FMSHRC 19,
21 (January 1994).  As the Commission  has stated, "the principle
of liability without fault requires a finding  of  liability even
in  instances  where  the  violation  resulted from unpreventable
employee misconduct."  Western Fuels-Utah,  Inc.,  10 FMSHRC 256,
261  (March  1998).  Consequently, I conclude that the  Secretary
has  met  her burden  of  establishing  a  violation  of  section
56.20001, despite  my  finding  that Nelson's drug possession and
use were unknown to Weathers Crushing.

                  2.  Penalty

     I  have considered the six penalty  criteria  set  forth  in
section 110(i)  of  the  Mine  Act,  including  the evidence that
Weathers Crushing had a written drug policy that  it had given to
Nelson  as a new employee, and that there was no indication  that
Nelson was  under  the influence of drugs while he was working at
the  mine  (Tr. 104-05;  Ex.  R-1).   I,  therefore,  ascribe  no
negligence to the operator, and conclude that the $50.00 penalty,
as proposed by the Secretary, is appropriate.

                              ORDER

     Accordingly,  it  is  ORDERED  that  Citation  Nos. 4135307,
4135310 and Order No. 4135308 are AFFIRMED, Order No.  4135309 is
DISMISSED,  and  Darwin  Weathers is ORDERED TO PAY a penalty  of
$250.00, and Weathers Crushing  is  ORDERED  TO  PAY a penalty of
$45,050.00  within  30  days of the date of this decision.   Upon
receipt of payment, these cases are DISMISSED.

                              Jacqueline R. Bulluck
                              Administrative Law Judge

Distribution:  (Certified Mail)

William W. Kates, Esq., Office  of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA  98101-3212

Roger A. Luedtke, Esq., Schwabe,  Williamson  &  Wyatt, P.C., Pac
West  Center,  Suite  1600-1800  1211  Southwest  Fifth   Avenue,
Portland, OR  97204-3795

/nt