<DOC>
[DOCID: f:ws1999280.wais]

 
WATKINS ENGINEERS & CONSTRUCTORS
WEST 99-280-M
July 23, 2002

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006

                          July 23, 2002

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket Nos. WEST 99-280-M
          v.                    :             WEST 99-376-M
                                :
WATKINS ENGINEERS &             :
  CONSTRUCTORS                  :

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

                            DECISION

BY THE COMMISSION:

     This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), involves an accident in which an
employee of Watkins Engineers and Constructors ("Watkins")
sustained severe injuries when he fell 70 feet while working 
at the Lyons Cement Plant (the "Plant").  The Department of 
Labor's Mine Safety and Health Administration ("MSHA") charged
Watkins with violating three mandatory safety standards, and 
further alleged that the violations were significant and 
substantial ("S&S"), and that two of the violations were due 
to Watkins' unwarrantable failure.[1] 23 FMSHRC 81, 89, 93-94, 
100 (Jan. 2001) (ALJ).  Administrative Law Judge Richard W. 
Manning upheld the Secretary of Labor's charges. Id. at 91-93,
98-102. He also rejected Watkins' arguments that the Plant was 
not a mine within the meaning of section 3(h)(1) of the Mine
Act, 30 U.S.C.  802(h)(1), and that section 3(h)(1) sets forth
an unconstitutional delegation of legislative power to the
Secretary.  23 FMSHRC at 86-87.  For the reasons below, we 
affirm  the  judge's  jurisdictional  and  constitutional 
determinations,  his  three  violation  determinations,  his
S&S determinations,  and  his  two  unwarrantable  failure 
determinations.

                               I.

                Factual and Procedural Background

     The Plant, which is located in Boulder County, Colorado, 
and owned by Southdown, Inc., produces portland cement.[2] 
23  FMSHRC at 81.  Portland cement is primarily composed of 
limestone, shale, and quartz.  Tr. 33-36.  Limestone and shale 
are mined at a nearby quarry owned by Southdown and transported
to a primary crusher located at the quarry site.  23 FMSHRC at 
81-82. Once crushed, the rock is carried on a two-mile conveyor 
belt to the Plant where it is stockpiled.  Id. at 82.  Quartz 
is mined at a second nearby quarry and is transported by truck 
to the primary crusher at the first quarry.  Id. The crushed 
quartz is then transported to stockpiles at the Plant via the 
conveyor belt. Id.

     The stockpiled material at the Plant then goes through
various operational steps in the production of cement. Id. The
material is crushed, ground into powder, and heated to 2,500
degrees Fahrenheit in a kiln where it undergoes a chemical
reaction to form  chunks  of  crystalized  cement  known  as 
"clinker." Id.; see n.2, supra.  The clinker is ground into 
fine powder in a finish mill. 23 FMSHRC at 82. The only waste 
created during cement production is large amounts of carbon
dioxide released from the limestone when it is heated in the 
kiln.  Id.; Tr. 39-40.  The cement from the finish mill is 
drawn by vacuum into the "bag house" where it is collected 
in large bags.  23 FMSHRC at 82; Tr. 29-30.  The cement in 
the bags is then emptied into hoppers and transported to 
storage silos for sale.  Tr. 29-30.

     The above description of the process is a simplification
of a more complex process. 23 FMSHRC at 82. For example, other
material, such as gypsum, is added and coarse material is
recirculated back through the process at several steps.  Id.
Most of the material that enters the Plant is used in the
finished product.  Id.

     In January 1999, Watkins, a construction contractor, was
constructing a new bag house building for Southdown at the 
Plant. Id. at 81.  During construction, openings at the north 
and south ends of the bag house building provided access to 
the large compartments inside the bag house. Id. at 89-90, 
94. Each opening was four- to five-feet wide and was about 70 
feet above the ground. Id. at 89. At the time of the accident, 
there were no railings or barriers at these openings. Id. at 
89-90. The two openings were connected by a breezeway that ran 
between the two compartments inside the bag house. Id. The
floor of the breezeway was the top of a heating duct. Id.

     Watkins accessed the opening on the north end of the bag
house with the man-lift of a subcontractor onsite, Mountain
States Engineering ("Mountain States").  Id. at 94.  Prior to
using the man-lift to transport employees to the breezeway,
Mountain States and Watkins agreed that the long side of the 
man-lift basket would be positioned against the breezeway 
opening because the breezeway opening was nearly three feet
wider than the short end of the man-lift's basket. Id. at 
95-96.

     On the day of the accident, January 21, 1999, Jeremy
Boyette, a Watkins' employee, was operating the man-lift, which
was transporting another Watkins' employee, Jefferson B. Davis,
up to the north opening.[3]  Id. at 95.  Davis testified that,
for some reason, Boyette positioned the short end of the basket
against the opening.  Id. at 96; Tr. 102, 112-13.  When the
basket reached the opening, Davis pulled himself on top of the
insulation panels that were in the basket.[4]  23 FMSHRC at 96.
When he reached the top rail of the end of the basket next to 
the building,[5] he placed one foot on the middle rail and 
unhooked his safety line from the railing of the basket because
that was as far as the safety line would allow him to go. Id.; 
Tr. 112. Davis did not attempt to re-tie the line because he 
was going to tie off on the structure of the bag house building.
23 FMSHRC at 96; Tr. 139.  Davis testified that, as he was 
sitting on the top rail with one foot on the middle rail, he 
placed  the other foot on the entrance to the breezeway. 23 
FMSHRC at 96. His forward foot slipped and he fell backwards, 
hitting the left corner of the basket, and causing him to fall 
through the three-foot gap on to the concrete pad below. Id.  
Davis suffered serious injuries as a result of the accident 
and had to have one of his legs amputated. Id. at 99.

     Following the accident, MSHA Inspector Richard Laufenberg
inspected the Plant. He issued Citation No. 7923622 to Watkins,
alleging that the unguarded openings constituted a fall hazard,
and that the violation was S&S and caused by unwarrantable
failure. Id. at 89, 92. He issued Order No. 7923625 to Watkins,
alleging a failure "to ensure that a safe means of access [to 
the breezeway] was provided and being used," and that the 
violation was S&S and unwarrantable.  Id. at 93-94.  Finally, 
the inspector issued Citation No. 7923626 to Watkins, alleging 
that Davis' safety line was not tied off when he transferred 
from the basket to the breezeway, and that the violation was 
S&S and due to moderate negligence.  Id. at 100.

     Watkins contested the citations and order and also asserted
that MSHA lacked the jurisdiction to inspect the Plant.  It
further contended that the authority granted to the Secretary to
construe the term "milling" in section 3(h)(1) of the Mine Act
was an unconstitutional delegation of legislative power.

     The  judge  rejected  the  operator's  challenges.  He
determined that the Plant was within the jurisdiction of the 
Mine Act and that the authority granted to the Secretary was 
not an unconstitutional delegation of authority. Id. at 86-89.
The judge affirmed the citations and order issued to Watkins 
and their S&S designations. Id. at 91-92, 98-99, 101-02. He 
also affirmed the unwarrantable designations for Citation 
No. 7923622 and Order No. 7923625, but determined that the 
violation in Citation No. 7923626 was not due to the operator's 
negligence. Id. at 93, 100-01. The judge assessed a penalty 
of $2000 for Citation No. 7923622 as proposed by the Secretary. 
Id. at 89, 93.  However, he reduced the Secretary's proposed 
penalties for Order No. 7923625 from $50,000 to $40,000, and 
for Citation No. 7923626 from $35,000 to $500. Id. at 94, 100,
102.

     The Commission granted Watkins' petition for discretionary
review challenging the judge's jurisdictional and constitutional
determinations, his three violation determinations, and his two
unwarrantable failure determinations.[6]

                               II.

                           Disposition

     A.   Whether the Plant is Within MSHA's Jurisdiction 
Because it Engages in "Milling"

     Section 4 of the Mine Act provides, in part, that "[e]ach
coal or other mine, the products of which enter commerce, 
. . . shall be subject to the provisions of this Act."  30 
U.S.C.  803. Section 3(h)(1) of the Act defines a "coal or 
other mine" to include "facilities . . . used in . . . the 
milling of . . . minerals."  30 U.S.C.  802(h)(1).  Section
3(h)(1) further provides that, in determining "what constitutes
mineral milling for purposes of this Act, the Secretary shall
give due consideration to the convenience of administration 
resulting from the delegation to one Assistant Secretary of all 
authority with respect to the health and safety of miners 
employed at one physical establishment." Id. The term "milling" 
is not defined in the Act.

     The first inquiry in statutory construction is "whether
Congress has directly spoken to the precise question at issue."
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837,
842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr.
1996).  If a statute is clear and unambiguous, effect must be
given to its language.  See Chevron, 467 U.S. at 842-43; accord
Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. 
Cir. 1990).  However, when a statute is ambiguous or silent 
on a point in question, a further analysis is required to 
determine whether an agency's interpretation of the statute is 
a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder 
Basin, 18 FMSHRC at 584 n.2; Keystone Coal Mining Corp., 16 
FMSHRC 6, 13 (Jan. 1994). Deference is accorded to "an agency's
interpretation of the statute it is charged with administering 
when that interpretation is reasonable."  Energy W. Mining Co. 
v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 
467 U.S. at 844).  The agency's interpretation of the statute 
is entitled to affirmance as long as that interpretation is 
one of the permissible interpretations the agency could have 
selected. See Joy Techs., Inc. v. Sec'y of Labor, 99 F.3d 991,
995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997) 
(citing Chevron, 467 U.S. at 843); Thunder Basin Coal Co. v. 
FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

     The Supreme Court recently recognized that Chevron 
deference  is  appropriately  applied  to  an  agency's 
interpretation of a statute when Congress delegated authority 
to the agency to speak with the force of law when it addresses 
ambiguity or "fills in a space" in the statute and the 
agency's interpretation claiming deference was promulgated in 
the exercise of that authority. United States v. Mead Corp., 
533 U.S. 218, 226-27, 229 (2001). Section 3(h)(1) contains an
express delegation of authority to the Secretary to determine 
what constitutes milling. See In re: Kaiser Aluminum and Chem.
Co., 214 F.3d 586, 591 (5th Cir. 2000) ("Congress expressly 
delegated to the Secretary . . . authority to determine what 
constitutes mineral milling") (internal quotations omitted), 
cert. denied, 532 U.S. 919 (2001). Thus, Congress explicitly 
left a gap for the Secretary to fill with respect to the 
definition of milling.  Under Mead, 533 U.S. at 227, the 
Secretary's interpretation of milling is entitled to acceptance 
if it is reasonable.  See Chevron, 467 U.S. at 843-44; Thunder 
Basin, 18 FMSHRC at 584 n.2; Keystone Coal, 16 FMSHRC at 13.

     The Secretary has determined that the term milling can 
apply to facilities like the cement plant at issue here, which 
engage in the grinding and crushing of ore, even if the plant 
does not separate waste from valuable material.  Sec'y Br. at 
21-24. Consistent with that view and noting the administrative
convenience that would be served, the Secretary in 1979 entered
into an interagency agreement (the "Agreement") with OSHA,
section B(6) of which gave MSHA jurisdiction over "alumina and
cement plants."  44 Fed. Reg. 22827, 22827 (Apr. 17, 1979).

     Watkins (W. Br. at 11), however, directs our attention 
to Appendix A of the Agreement, wherein milling is defined as
requiring the "separation of one or more valuable desired
constituents of the crude from the undesirable contaminants 
with which it is associated."  44 Fed. Reg. at 22828. Watkins 
claims that this section restricts MSHA's jurisdiction to only 
those facilities which also engage in this separation process.  
W. Br. at 12-13.  We note, however, that section B(6) of the 
Agreement, does not place any restrictions on the kinds of 
cement plants that fall within MSHA jurisdiction. 44 Fed. Reg. 
at 22827.

     Moreover, the section upon which Watkins relies is not 
the only relevant definitional provision.  The appendix also 
refers to a list of "general definitions of milling processes 
for which MSHA has authority to regulate subject to [Section 
B(6)  of]  the  Agreement."  Id.  at  22829.  This  "general 
definitions" section defines "milling" in terms of "one or 
more of" a list of processes. Id. The list includes crushing, 
grinding, pulverizing, sizing, calcining, and kiln treatment, 
all of which, according to the uncontested testimony of Steven 
Mossberg, Southdown's safety and environmental compliance 
manager at the Plant, occur at the plant at issue here.  Id.; 
Tr. 21-29, 31, 38-39, 71, 73-76.  We conclude that the 
Agreement, when read as a whole supports MSHA's application 
of the term "milling" to cement plants regardless of whether 
the facility engages in the separation of waste from valuable 
material.[7]  See Donovan v. Carolina Stalite Co., 734 F.2d 
1547, 1548, 1552 (D.C. Cir. 1984) (stating that, although "not 
dispositive," the Agreement could assist in resolving the 
jurisdictional question of whether the Secretary's application
of the term "milling" to a slate gravel processing facility
was reasonable).[8]

     The Secretary's interpretation of "milling" is consistent
with the general usage of the term within the mining industry
and with ordinary usage.  Within the industry, milling is 
defined as: "The grinding or crushing of ore.  The term may 
include the operation of removing valueless or harmful 
constituents . . . ," while mill is defined as a "mineral 
treatment plant in which crushing, wet grinding, and further 
treatment of ore is conducted." DMMRT at 344 (emphasis added); 
see also Alcoa Alumina & Chems., L.L.C., 23 FMSHRC 911, 914 
(Sept. 2001) (using DMMRT to determine usage in mining 
industry). The ordinary meaning of "to mill" is "to crush or 
grind (ore) in a mill," and the term "a mill" is defined as 
"a machine for crushing or comminuting some substance."  
Webster's Third New Int'l Dictionary (Unabridged) 1434 (1993);
see also Nolichuckey Sand Co., 22 FMSHRC 1057, 1060 (Sept. 
2000) ("Commission . . . look[s] to the ordinary meaning of 
terms not defined by statute").  These definitions are 
consistent with the Secretary's interpretation that milling 
includes processes such as grinding and crushing, but that 
the separation of waste from valuable materials is not an 
essential component of milling.[9]  Sec'y Br. at 21-23.

     Dr. Baki Yarar, Watkins' expert witness, testified that
milling requires a separation of waste from valuable materials,
but he admitted that people in the mining industry use other
definitions of milling "[a]ll of the time." Tr. 332, 340, 
368-69.  The judge correctly concluded that Yarar's testimony 
related to a technical definition of milling that is not 
dispositive of the scope of mineral milling under the Mine 
Act. 23 FMSHRC at 84.  In enacting the Mine Act, Congress did 
not impose upon the Secretary a technical definition of 
milling based on the separation of valuable from valueless 
materials, nor in the Act's legislative history did it 
intimate  that  such  separation  was  critical  to  the 
determination that "milling" took place. Moreover, Watkins' 
position, that a cement plant is outside of MSHA jurisdiction 
if it does not separate waste from valuable materials, implies
that, for jurisdictional purposes, the Secretary must 
determine for each cement plant whether at some point in its 
operations it separates valuable from waste materials. As the 
judge noted, under Watkins' interpretation, whether a cement 
plant comes under MSHA or OSHA jurisdiction could depend on 
the current purity of the limestone entering the plant, 
presumably a variable factor at some plants.  Id. at 86.
Hence, administrative convenience is served by including all
cement plants under the jurisdiction of MSHA.  30 U.S.C. 
 802(h)(1) (stating that the Secretary should take "the
convenience of administration" into account when determining 
what constitutes milling).

     Many processes at the Plant are commonly associated with 
the concept of milling and fall squarely within the Secretary's
interpretation  of  that  term.  Mossberg  gave  uncontested 
testimony that the processes at the Plant include crushing 
(Tr. 21-22, 24, 31, 38, 71), grinding (Tr. 23, 25, 28-29, 
73-74, 77-78), pulverizing (Tr. 23), sizing (Tr. 73), 
calcining (Tr. 39, 75), and kiln treatment (Tr. 26-28, 71, 
75-76).  He also testified that the Plant's processes include 
a "raw mill," also called a "ball mill,"[10] comprising a 
25-foot long rotating cylinder in which raw materials are ground 
and pulverized using steel balls. Tr. 23. He further testified 
that the Plant uses a 50-foot long "finish mill" in which cement 
clinker and gypsum are ground using steel balls.  Tr. 28-29.  
He described the operations taking place in the finish mill 
as "fine milling."  Tr. 38.

     The legislative history of the Mine Act also supports the
Secretary's interpretation of "milling."  Congress clearly
intended that any jurisdictional doubts be resolved in favor of
coverage by the Mine Act.  S. Rep. No. 95-181, at 14 (1977),
reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,
Legislative History of the Federal Mine Safety and Health Act 
of 1977, at 602 (1978) ("Legis. Hist.") ("[I]t is the intent
of this Committee that doubts be resolved in favor of inclusion 
of a facility within the coverage of the Act.").

     In addition, the Secretary has enforced her interpretation
consistently.  All cement plants in the nation, including the
plant at issue here, have been inspected by MSHA since the
agency's creation in 1978.  23 FMSHRC at 82, 87-88.  Until the
subject litigation, MSHA's jurisdiction over the Plant has 
never  been  challenged.  Id.  at  88.  Even  the  present 
jurisdictional challenge is not being raised by Southdown, 
the owner and operator of the Plant, but by Watkins, a 
contractor working at the facility.  Id. at 81.

     We find further support for the Secretary's interpretation
in relevant precedent.  In Kaiser, the operator of the alumina
plant claimed that its plant was not within MSHA's jurisdiction
because of operational differences between its plant and other
alumina plants.  214 F.3d at 590-91.  The operator maintained
that the processes at its plant were predominantly chemical,
while "milling"  under  the  Mine  Act  refers  to  mechanical 
processes involving primarily crushing and grinding.  Id. at 
591-92, quoting DMMRT at 344.  The court determined, in light
of the explicit delegation of authority granted to the 
Secretary in section 3(h)(1) to define milling, that the 
Secretary's definition of milling was reasonable.  Id. at
592-93.  The court reasoned, in part, that the Mine Act does 
not exclude chemical processes, and that the Secretary's 
interpretation was supported by definitions in the DMMRT and 
the Agreement.  Id. at 592.

     Thus, the Secretary's application of the term "milling" 
to cement plants is consistent with both ordinary usage, 
as well as the general usage of the term within the mining 
industry. It is also consistent with the legislative history 
of the Mine Act, the Secretary's past enforcement, relevant 
precedent, and the Agreement.  Accordingly, we conclude that 
the Secretary's interpretation is reasonable and entitled to
deference.

     For the foregoing reasons, we affirm the judge's
determination that the Plant is a mill within MSHA's
jurisdiction.

     A.   Whether Delegation was Constitutional

     We reject Watkins' assertion that Congress' grant of
authority to the Secretary in section 3(h)(1) to construe 
milling was an unconstitutional delegation of legislative 
power.  W. Br. at 22-26.  The Constitution provides that 
"[a]ll legislative Powers herein granted shall be vested in 
a Congress of the United States."  U.S. Const., Art. I,  1. 
From this language, the Supreme Court has derived the 
"nondelegation doctrine," which provides that "Congress may 
not constitutionally delegate its legislative power to 
another branch of Government."  Touby v. United States, 
500 U.S. 160, 165 (1991).  In applying the nondelegation 
doctrine, however, the Supreme Court has also recognized that,
"[s]o long as Congress shall lay down by legislative act an 
intelligible principle to which the person or body authorized 
to exercise the delegated authority is directed to conform, 
such legislative action is not a forbidden delegation of
legislative power."  Mistretta v. United States, 488 U.S. 
361, 372 (1989) (internal quotation marks and citation 
omitted). Expanding on this principle, the Supreme Court 
recently stated that it "almost never felt qualified to 
second-guess Congress regarding the permissible degree of 
policy judgment that can be left to those executing or 
applying the law."  Whitman v. Am. Trucking Ass'ns, Inc., 
531 U.S. 457, 474-75 (2001) (internal quotation marks and 
citation omitted) (holding that Clean Air Act provision 
requiring EPA to set air standards at levels "requisite
to protect the public health" was not an unconstitutional
delegation of legislative power).

     Moreover, in the instant case we believe that the Mine Act
places sufficient constraints on the Secretary's authority to
define the term "milling" so as to prevent an unconstitutional
delegation of legislative power.  First, in defining the term
"milling," section 3(h)(1) requires the Secretary to take into
consideration "the convenience of administration resulting from
the delegation to one Assistant Secretary of all authority with
respect to the health and safety of miners employed at one
physical establishment." 30 U.S.C.  802(h)(1). Second, section
3(h)(1) expressly restricts the Secretary's interpretation of 
the term "milling" to the milling of minerals extracted from 
their natural deposits.  Third, the legislative history of the 
Mine Act indicates that the Secretary must follow the principle
that jurisdictional doubts be decided in favor of Mine Act 
coverage. S. Rep. No. 95-181, at 14 (1977), reprinted in Legis. 
Hist. at 602; see Mistretta, 488 U.S. at 376 n.10 ("legislative 
history provides additional guidance" for agency to determine 
limits of its delegated power).  For the foregoing reasons, we
affirm the judge's determination that Congress' grant of 
authority to the Secretary to construe the word "milling" was
not an unconstitutional delegation of legislative power.

     B.   Violations and Unwarrantable Failure

          1.   Citation No. 7923622

     Watkins asserts that the judge erred in determining that 
it violated section 56.11012,[11] and that the violation was
unwarrantable.  W. Br. at 26.  It maintains that, at the time
of the accident, the breezeway was not a travelway within the
meaning of the standard.  Id. at 27-28.  Watkins contends that
the judge erred in his unwarrantability determination because 
the alleged violation was not obvious and only lasted for two 
days prior to the accident. Id. at 29. The Secretary responds
that the judge properly  determined  that  Watkins  violated
section  56.11012  and  that  the  violation  was  due  to 
unwarrantable failure. Sec'y Br. at 29-30, 32-33.

     Substantial  evidence[12]  supports  the  judge's 
determination that the breezeway was a travelway under 
section 56.11012. The  term "travelway" is defined as "a
passage, walk or way regularly used and designated for 
persons to go from one place to another." 30 C.F.R.  56.2.  
The record indicates that the breezeway was the designated 
way for accessing the bag house area because Watkins 
instructed employees to use it and, significantly, it was
the only available route.  Tr. 95, 194, 197-98.  Employees
regularly used the breezeway several times a day for several 
days prior to the accident.  23 FMSHRC at 90-91; Tr. 100, 
195-97. We reject Watkins' additional argument (W. Br. at 
27-28) that the breezeway was not a travelway because the 
permanent travelway had not yet been constructed.  As the 
Secretary correctly noted (Sec'y Br. at 30-31), the fact 
that the permanent travelway was not yet available supports 
the proposition that the breezeway was being used as a 
travelway.[13]

     In addition, substantial evidence supports the judge's
conclusion that the openings were unguarded and created a 
fall hazard.  23 FMSHRC at 89-91.  It is undisputed that the 
openings adjacent to the breezeway were not protected by 
railings, barriers, or other guards and that each opening led 
immediately to a 70-foot drop.  Id. at 89; Tr. 193. Employees 
also passed through and near to the unguarded openings several 
times a day for several days prior to the accident. 23 FMSHRC 
at 92; Tr. 100, 195, 197.  The inspector testified that there 
were tripping hazards on the breezeway and that its surface
could  be  slippery  due  to  snow  or  rainfall.  Tr. 195.  
Accordingly, we affirm the judge's determination that Watkins 
violated section 56.11012.

     Substantial  evidence  also  supports  the  judge's 
unwarrantable failure determination.  In Emery Mining Corp.,
9 FMSHRC 1997 (Dec. 1987), the Commission determined that 
unwarrantable failure is aggravated conduct constituting more 
than ordinary negligence. Id. at 2001. The Commission has 
recognized that whether conduct is "aggravated" in the context 
of unwarrantable failure is determined by looking at all the 
facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation 
has existed, the extent of the violative condition, whether 
the operator has been placed on notice that greater efforts 
are necessary for compliance, the operator's efforts in abating
the violative condition, whether the violation is obvious or 
poses a high degree of danger, and the operator's knowledge of 
the existence of the violation. See Consolidation Coal Co., 
22 FMSHRC 340, 353 (Mar. 2000) ("Consol"); Cyprus Emerald Res.
Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds,
195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 
30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). 
All of the relevant facts and circumstances of each case must 
be examined to determine if an actor's conduct is aggravated,
or whether mitigating circumstances exist.  Consol, 22 FMSHRC 
at 353.

     Substantial evidence supports the judge's finding that 
the violation was obvious.  23 FMSHRC at 93.  The inspector
testified that the cited condition was obvious because a 
number of employees accessed the bag house several times 
through the unguarded openings.  Tr. 196. His testimony was 
collaborated by Davis who testified that he used the unguarded
openings at least eight times a day. Tr. 100.

     Because the openings were unguarded and led immediately 
to a 70-foot drop, the record also supports the proposition 
that the openings posed a high degree of danger.  We find 
unconvincing Watkins' argument (W. Br. at 29) that the 
unguarded openings posed minimal danger because, when 
positioned properly with its long side next to the bag house, 
the man-lift basket completely covered the opening.  As we 
have already stated, often the short end of the basket was 
placed against the opening and it is undisputed that the short 
end was narrower than the opening and left unprotected gaps
there.  Tr. 52, 108, 141, 263, 300.  The judge credited the 
inspector's testimony that Boyette and Donald Busbee, both 
hourly employees of Watkins, told him that the short end of 
the basket was regularly placed next to the openings when
employees were accessing the breezeway.  23 FMSHRC at 98; 
Tr. 176, 179, 182.  We do not find the lack of evidentiary
support that would form a basis for overturning the judge's
credibility determination.  Cf. Consolidation Coal Co., 
11 FMSHRC 966, 974 (June 1989) (providing that the Commission 
will not affirm credibility determinations if there is no 
evidence or dubious evidence to support them). Furthermore, 
the practice of placing the short end of the basket next to 
the opening was collaborated by Davis.  23 FMSHRC at 98; 
Tr. 101-03.  Robert Bartholomew, Watkins' construction 
superintendent, also testified that the short end of the 
man-lift basket was against the opening when he arrived at 
the accident scene soon after the accident.  23 FMSHRC
at 98; Tr. at 232-33, 245, 290.

     As to the duration of the violation, we reject Watkins'
argument that the judge erred in concluding that the violation
was unwarrantable because the cited condition only lasted for
two days prior to the accident.  In light of the degree of 
danger and obviousness of the violation, a duration of two 
days demonstrates aggravated conduct.  Cf. Midwest Material, 
19 FMSHRC at 32, 36 (finding unwarrantable failure for 
extremely unsafe violation that lasted only minutes). Further, 
the operator had knowledge of the existence of the violation,
because on the day of the accident but prior to its occurrence, 
Bartholomew passed through the unguarded opening en route to 
inspect the bag house worksite. Tr. 274, 285; see Cyprus 
Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug. 1994) 
(affirming unwarrantable failure determination where operator 
was aware of brake malfunction but failed to remedy problem). 
Accordingly, given the obviousness, danger, duration of the 
violation, and the operator's knowledge of the violation, we 
affirm the judge's unwarrantable failure determination.

          2.   Order No. 7923625

     Watkins asserts that the judge erred in determining that 
it violated section 56.11001,[14] and that the violation was
unwarrantable.  W. Br. at 30.  It contends that it provided 
safe access to the breezeway because it provided the man-lift 
and a safe procedure for using it, and it maintains that it 
was unaware that employees were accessing the breezeway using 
the short end of the man-lift basket. Id. at 30-32. Watkins 
asserts that the alleged violation was not unwarrantable 
because the man-lift was only used for two days before the 
accident to access the breezeway and because Davis knew the 
correct method for accessing the breezeway from the man-lift.  
Id.  at  33.  The  Secretary  responds  that  the  judge's 
determinations were correct.  Sec'y Br. at 31-32.

     The Commission has held that section 56.11001 comprises 
the dual requirements of providing and maintaining safe access 
to working places. Lopke Quarries, Inc., 23 FMSHRC 705, 708 
(July 2001).  In Lopke, we explained that the term "maintained" 
in the standard "incorporates an on-going responsibility on the 
part of the operator to ensure that [the] means of safe access 
is utilized, as opposed to a purely passive approach in which 
an operator initially provides safe access and then has 
absolutely no further obligation."  Id.

     Even if Watkins initially provided a safe means of 
accessing the breezeway, substantial evidence supports the 
judge's determination that Watkins violated the standard by 
failing to maintain safe access. As discussed above, we accept 
the inspector's credited testimony that the short end of the 
basket was regularly placed against the unguarded opening and 
that employees had to climb over the top rail on the short end 
to enter the breezeway. 23 FMSHRC at 98; Tr. 179, 182. Davis 
also testified that the short end of the basket was regularly
used to access the opening.  23 FMSHRC at 98; Tr. 103.  He 
testified that, although he knew how the basket should have 
been positioned with respect to the breezeway opening, no one 
instructed him on how to get in and out of the basket.  Tr.
139-41, 145-46. In addition, Watkins does not contest that 
Boyette, who operated the man-lift at the time of the accident, 
had not been instructed on how to operate the man-lift to 
provide safe access to the breezeway.  23 FMSHRC at 95, 98; 
Ex. P-8 at 4-5. The inspector also gave uncontested testimony 
that Watkins' general foreman, Jeffery Bochette, stated that 
he never discussed with his employees the proper procedure 
for accessing the breezeway via the man-lift. 23 FMSHRC at 
94-95; Tr. 185.

     We are also not persuaded by Watkins' argument that, 
because management did not know that employees were using 
the short end of the man-lift basket, the judge erred in 
determining that it violated section 56.11001.  W. Br. at 
30-31.  Watkins' alleged lack of knowledge is no defense 
against the judge's violation determination because "[t]he 
Mine Act is a strict liability statute and an operator may 
be held liable for violations without regard to fault."  
Wyoming Fuel Co., 16 FMSHRC 19, 21 (Jan. 1994).  Watkins' 
assertion that it did not know that employees were regularly 
using the short end of the basket actually supports the 
judge's finding that Watkins failed to adequately maintain 
safe access because it shows that Watkins took inadequate 
steps to determine whether the procedure for safe access was
implemented.  23 FMSHRC at 99; see Lopke, 23 FMSHRC at
708 (holding that section 56.11001 incorporates ongoing
responsibility to ensure safe access is maintained)  Thus,
we  affirm the judge's determination that Watkins violated 
section 56.11001.

     The judge's unwarrantable failure determination is also
supported by substantial evidence.  Watkins failed to instruct
employees such as Davis and Boyette on the safe procedure for
accessing the breezeway and failed to follow up to ensure that
employees were accessing the breezeway in a safe manner.  23
FMSHRC at 100; Tr. 145-46, 185; Ex. P-8 at 4-5.  As to the 
extent of the violation, the inspector's credited testimony 
and Davis' collaborating testimony support the judge's finding
that employees frequently accessed the breezeway using the 
unsafe short end of the basket.  23 FMSHRC at 98; Tr. 100, 
179, 182, 196.  Furthermore, the violation posed a high degree 
of danger, given the 70-foot fall hazard (Tr. 189), such that 
Watkins should have had a heightened sense of awareness that 
precautions were called for when accessing the breezeway. The 
violation was also obvious because employees regularly accessed
the breezeway using the short end of the basket, and this 
position of the basket against the opening would have been 
clearly visible.  Tr. 100, 196.  Given the danger and 
obviousness of the violation, the two day duration of the
violation demonstrates aggravated conduct. Accordingly, we 
affirm the judge's unwarrantable failure determination.

          3.   Citation No. 7923626

     Watkins disputes the judge's determination that it violated
section 56.15005.[15]  W. Br. at 33-35.  It asserts that the
plain language of the standard requires employees to wear safety
belts and lines, but does not require that such belts and lines
be used or "tied off."  Id. at 33-34.  Watkins argues that it
complied with the standard because Davis was wearing a safety
belt and line at the time of the accident.  Id.  The Secretary
responds that the judge properly concluded that Watkins violated
section 56.15005.  Sec'y Br. at 34.  She contends that the
standard requires safety lines to be tied off and that this
interpretation is supported by Commission case law and by the
language and purpose of the standard.  Id. at 34-35.

     The purpose of the Part 56 regulations is "the protection 
of life, the promotion of health and safety, and the prevention
of accidents." 30 C.F.R.  56.1. Consistent with that purpose,
the Commission has interpreted section 56.15005 to require that
safety lines not only be worn but be worn in a safe and proper
manner in the vicinity of a fall hazard.  Mar-Land Indus.
Contractor, Inc., 14 FMSHRC 754, 757 (May 1992). Similarly, the
Commission has previously recognized with respect to 30 C.F.R.
 57.15-5 (1979), a regulation with wording almost identical to
section 56.15005, that "[a]lthough a literal reading of the
standard might suggest that compliance is achieved whenever a
miner wears any kind of line in any manner, such an
interpretation is inconsistent with the [safety enhancing]
purposes of the Part 57 regulations and this standard in
particular." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981).
In Kerr-McGee, the Commission affirmed the judge's determination
that the operator violated section 57.15-5 when a miner, wearing
a safety belt and line, suffered a fatal fall because his safety
line was not properly used.  Id. at 2497-2500; see also Austin
Power, Inc., 9 FMSHRC 2015, 2019-21 (Dec. 1987), aff'd 861 F.2d
99 (5th Cir. 1988) (affirming violation of a similarly worded
regulation where three miners wearing safety belts and lines did
not use their safety lines in the presence of a fall hazard).

     Moreover, an interpretation of section 56.15005 requiring
that a safety belt or line be used, in addition to being worn, 
in the presence of a fall hazard is consistent with a harmonious
reading of all portions of the standard. See Morton Int'l, Inc.,
18 FMSHRC 533, 536 (Apr. 1996) (holding that regulations should
be read as a whole).  The second part of section 56.15005
requires that "a second person shall tend the lifeline when 
bins, tanks, or other dangerous areas are entered."  As the
Secretary notes (Sec'y Br. at 34-35), it does not make sense to 
require an operator to assign a second person to tend the safety 
line if, as Watkins asserts, the employee wearing the safety 
line does not have to use it.

   We conclude that substantial evidence supports the judge's
determination that Watkins violated the standard.  Watkins does
not dispute (W. Br. at 7-8) that, although Davis was wearing a
safety belt and line immediately prior to the accident, he did
not tie off his safety line before moving from the man-lift to
the opening.  Tr. 111.  As discussed, the judge's determination
that the openings adjacent to the breezeway created a fall 
hazard finds substantial evidentiary support in the record. 23 
FMSHRC  at 101; Tr. 189, 193, 195.  Accordingly, we affirm the 
judge's determination that Watkins violated section 56.15005.

                              III.

                           Conclusion

   For the foregoing reasons, we affirm the judge's
determinations that the Plant falls within MSHA jurisdiction 
and that the authority granted to the Secretary by section 
3(h)(1) to define "milling" is not an unconstitutional 
delegation of legislative power.  We also affirm the judge's
determinations that Watkins committed S&S violations of 
sections 56.11001, 56.11012, and 56.15005, and that the 
violations of sections 56.11001 and 56.11012 were due to 
Watkins' unwarrantable failure to comply with the standards.

                         Theodore F. Verheggen, Chairman
                                                        
                         Mary Lu Jordan, Commissioner
                           
                         ____________________________________
                         Robert H. Beatty, Jr., Commissioner

**FOOTNOTES**

     [1]:  The S&S terminology is taken from section 104(d)(1)
of the Act, which distinguishes as more serious any violation 
that "could significantly and substantially contribute to the 
cause and effect of a . . . mine safety or health hazard."  
30 U.S.C.  814(d)(1).  The unwarrantable failure terminology 
is also taken from section 104(d)(1), which establishes more
severe sanctions for any violation that is caused by "an
unwarrantable failure of [an] operator to comply with . . .
mandatory health or safety standards."  Id.

     [2]:  Portland cement is "[a] calcium-aluminum silicate
produced by fusing or clinkering limestone and clay in a kiln 
so as to drive off carbon dioxide and produce an oxide glass 
[or clinker].  The clinker is ground very fine and, when mixed
with water, will recrystallize and set."  Am. Geological 
Institute, Dictionary of Mining, Mineral, and Related Terms 
420 (2d ed. 1997) ("DMMRT").

     [3]:  Davis testified that a Mountain States employee
operated the man-lift most of the time and that Boyette 
operated it at other times.  23 FMSHRC at 95.

     [4]:  There were four insulation panels, each of which 
were about 22 inches wide, 48 inches high, 4 inches thick, and
weighed between 19 and 20 pounds.  23 FMSHRC at 95.

     [5]:  The basket contained a top and a middle rail. 23
FMSHRC at 95. Mountain States and Watkins had agreed that the
proper way to enter and exit the basket would be to lift the
middle rail and crawl under the top rail.  Id.

     [6]:  Watkins did not contest the judge's S&S 
determinations on review.  Hence, because we affirm the 
violations, we also automatically affirm the associated S&S
determinations.

     [7]:  Contrary to Watkins' assertion (W. Br. at 19-20), 
the Secretary provided a sufficient explanation for her
determination that cement plants fall under MSHA jurisdiction.
In section B(6) of the Agreement, the Secretary explained 
that cement plants are under MSHA jurisdiction for 
"convenience of administration" considerations.  44 Fed. Reg. 
at 22827.  In section B(5) of the Agreement, she described 
various factors used to determine whether a facility is under
MSHA jurisdiction, including "Congress' intention that doubts 
be resolved in favor of inclusion of a facility within the 
coverage of the Mine Act." Id.

     [8]:  Watkins  contends  that  the  "convenience  of
administration" clause in section 3(h)(1) was intended solely 
to alleviate the potential for overlapping jurisdiction at 
"one physical establishment," and does not extend MSHA's 
authority to plants where no mineral milling occurs.  W. Br. 
at 13-15; 30 U.S.C.  802(h)(1).  This argument fails for two
reasons.  First, in Donovan, the D.C. Circuit, rejecting a 
similar argument, held that the "convenience of administration"
clause of section 3(h) (on which the Secretary relied in 
formulating the Agreement) is a broader concept than the need
to eliminate overlapping jurisdiction.  734 F.2d at 1553. 
Second, Watkins' argument assumes that no milling occurs at
the Plant, a premise that we reject.  See infra at 7-8.

     [9]:  We note that, although the Secretary did not 
challenge Watkins' assertion before the judge or on review
that waste is not separated from valuable components at the
Plant, the judge determined that waste in the form of carbon 
dioxide is released at the facility when the limestone is
heated in a kiln. 23 FMSHRC at 82. The record reveals that 
"out of every hundred tons of limestone that [enters the 
Plant, only] 60 tons . . . ends up in the cement," because 
of the release of carbon dioxide from the limestone during 
heating in the kiln.  Tr. 39-40.

     [10]:  The DMMRT definition of "mill" expressly 
encompasses separate components such as a ball mill. DMMRT
at 344.

     [11]:  30 C.F.R.  56.11012 provides, in pertinent part,
that "[o]penings above, below, or near travelways through which
persons or materials may fall shall be protected by railings,
barriers, or covers."

     [12]:  When reviewing an administrative law judge's 
factual determinations, the Commission is bound by the terms 
of the Mine Act to apply the substantial evidence test.  30
U.S.C.  823(d)(2)(A)(ii)(I).  "Substantial evidence" means 
"`such relevant evidence as a reasonable mind might accept as 
adequate to support [the judge's] conclusion.'"  Rochester & 
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [13]:  We are not persuaded by Watkins' assertion that, 
even if the breezeway were a travelway, the railings or
barriers were not required because the standard calls for
railings that are  parallel rather than perpendicular to the 
travelway.  W. Br. at 28.  The standard sets forth no such 
limitations.  See 30 C.F.R.  56.11012.

     [14]:  30 C.F.R.  56.11001 provides that "[s]afe means 
of access shall be provided and maintained to all working 
places."

     [15]:  30 C.F.R.  56.15005 provides that "[s]afety belts
and lines shall be worn when persons work where there is danger
of falling; a second person shall tend the lifeline when bins,
tanks, or other dangerous areas are entered."

Distribution

Carl B. Carruth, Esq.
Jason M. Bradley, Esq.
The McNair Law Firm, P.A.
P.O. Box 11390
Columbia, SC 29211

Jack Powasnik, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-3939

Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204