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[DOCID: f:c94-97m.wais]

 
WALKER STONE COMPANY, INC.
April 8, 1997
CENT 94-97-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


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


                          April 8, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :    Docket No. CENT 94-97-M
               Petitioner       :    A. C. No. 14-00164-05520
                                :
          v.                    :
                                :    Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC.,     :
               Respondent       :


                       DECISION ON REMAND

Before:  Judge Barbour

     This  civil  penalty  proceeding  involves a
violation of 30 C.F.R.  56.14105, a mandatory
safety standard for metal and nonmetal mines
requiring  in part that, "Repairs or maintenance
of machinery or  equipment .  .  . be performed
only after the power is  off, and the machinery
or equipment blocked against hazardous motion" and
that "persons be effectively protected from
hazardous motion."

     The  case was heard by Commission
Administrative  Law  Judge Roy  J. Mauer, who
concluded Walker Stone Company, Inc.  (Walker)
did not violate the standard (17 FMSHRC 600
(April  1995)).   The  Commission reversed  the
judge,  found   a   violation,  and remanded
the  proceeding  for  assessment  of  an
appropriate civil penalty.  (Walker Stone Company,
Inc., 19 FMSHRC 48 (January 1997).   Because Judge
Maurer  was  due  to  leave  the  Commission,  the
remanded case was assigned to me.

                            THE FACTS

In its decision, the Commission's summarized the facts:

On  June  25, 1993, the primary impact crusher  at
Walker's open-pit  limestone  quarry  . . . became
clogged  with  rock,  causing  its drive motor  to
stall.   The  .  .  . crusher is located  below  a
hopper into which trucks  dump loads of rock.  The
crusher is powered by a diesel  motor, which turns
a rotor inside the crusher.  As the  rotor  turns,
rock is tossed inside the crusher housing until it
breaks into pieces small enough to drop out of the
crusher onto a splash pan and conveyor belt, which
transports the rock for further processing.   When
rock   becomes   lodged  inside  the  crusher,  it
prevents the rotor  from  turning  and  stalls the
drive  motor,  rendering  the  crusher  inoperable
until the rock is removed.
[W]hen  .  .  .  [rock  clogged the crusher],  the
crusher operator, Roy Brooner,  changed the signal
light at the hopper from green to  red to indicate
to the truck drivers to stop dumping  their  loads
and  to help him unclog [it].  Truck drivers Danny
Boisclair, Bill Scott and Frank Esterly arrived at
the  scene.    Boisclair  and  Scott  entered  the
interior of the crusher and, using a sledgehammer,
broke up large boulders  that  were resting on top
of the rotor.  Upon their exiting the crusher, the
crusher operator attempted to jog the rotor to see
if it had been unclogged.  The rotor did not turn,
so  Scott,  after  conferring  with   the  crusher
operator, went underneath the rotor to see if rock
was   lodged  in  the  area  of  the  splash  pan.
Unbeknownst  to  the  crusher  operator, Boisclair
reentered  the interior of the crusher.   Easterly
followed Boisclair  but  remained just outside the
crusher.  While Scott cleared  rock from under the
rotor, Boisclair used his hunting  knife to remove
rock that was lodged between the top  of the rotor
and the crusher housing.  Easterly observed  Scott
working  below  and  asked  him if he needed help.
Scott responded that he though  he had removed the
rock that was clogging the rotor  and  that he was
ready to leave.  Easterly told Boisclair  to hurry
and get out of the crusher because Scott was done.
Boisclair began to exit the crusher but, before he
was out, Scott told the crusher operator that  the
rotor  was  clear  and the crusher operator jogged
the rotor.  The rotor  turned  and  Boisclair  was
pulled  between the rotor and the crusher housing,
causing massive  injuries  to  his upper and lower
torso  that resulted in his death  (19  FMSHRC  at
49).

Following an  investigation, the Secretary's Mine Safety and
Health Administration  (MSHA) charged Walker for a violation
of section 56.14105 for  failing  to  protect Boisclair from
the  hazardous  motion  of  the  rotor.   In  addition,  the
Secretary asserted that the violation was a  significant and
substantial  contribution  to  a  mine  safety hazard.   The
Secretary  proposed  a  civil  penalty  of  $9,000  for  the
violation.

In holding that section 56.14105 was not applicable  to  the
facts  under  which  Boisclair  met  his death, Judge Maurer
found  that  the  miners  involved  were  not  repairing  or
maintaining  the  crusher and thus that the standard,  which
specifically  states   it    applies  during  "[r]epairs  or
maintenance of machinery or equipment,"  was  inapposite  to
the work done (17 FMSHRC at 604-605).

Reversing  the  judge, the Commission held that the standard
"clearly and unambiguously reach[ed] the facts" and that the
removal of rock to  restore the crusher to working condition
was  "covered by the standard's  broad  phrase  `repairs  or
maintenance  of machinery or equipment'"  (19 FMSHRC at 51).
The  Commission   found  a  violation  and  found  that  the
violation was a significant  and substantial contribution to
a mine safety hazard (Id. at 52-53).

                      PROCEEDINGS ON REMAND

On remand, I ordered the parties  to  determine if they were
able to agree upon an appropriate penalty  and,  if  not, to
"advise  me  in  writing,  and  with  pertinent cites to the
record, of the penalty ... [each proposed]" (Order On Remand
(February 18, 1997)).

Noting that Judge Maurer assessed a penalty  of  $7,500  for
another violation that was associated with the fatality -  a
violation that was not before the Commission on review - the
Secretary  asserted  that  "the  failure  to protect against
hazardous  movement  .  .  . was the proximate  cause  of  a
miner's death" and suggested  that the penalty should be "at
least  $7,500"  (Letter  of Secretary's  Counsel  (March 17,
1997)). Counsel for Walker  countered that the company had a
good  faith  belief  the  language   of   the  standard  was
inapplicable  to  the  facts  and  that  Boisclair  violated
measures  in  place at the time of the accident  to  prevent
unauthorized entry  into  the  crusher  while employees were
trying to dislodge rock.  Counsel stated  that  a penalty of
$100 was appropriate (Letter of Counsel (March 14, 1997)).

                  DETERMINATION OF THE PENALTY

The  Commission recently has reminded its judges that  while
they have  broad  discretion  in  assessing civil penalties,
their assessments must reflect proper  consideration  of the
penalty  criteria  set  forth  in  section 110(i) of the Act
(30 U.S.C.  820(i) (Jim Walter Resources,  Inc.,19 FMSHRC _
(Docket No. SE 95-459), slip op. 3, (March 27, 1997)).

The  parties  stipulated  to  two  of the statutory  penalty
criteria, namely that the penalty would  not affect Walker's
ability to continue in business and that Walker demonstrated
good  faith  in  abating  the  violation (17 FMSHRC at 601).
They also stipulated that Walker  had  54,977  man-hours  of
production  in 1992, a level of production that I find makes
Walker  a  small   operator.    Finally,  they  agreed  that
Petitioner's Exhibit 18, which indicates that in the 2 years
proceeding  the  subject  accident  Walker   was  cited  for
30 violations   of   various  standards,  reflects  Walker's
applicable history of previous violations (Id.).  Given that
Walker is a small operator,  I  find  this  is a medium size
history.   The  remaining  criteria are the gravity  of  the
violation and the negligence of Walker in causing it.

It is obvious that the violation  was extremely serious.  It
was a cause of Boisclair's death.   It  is not as obvious to
what extent the company was negligent.

Walker violated the standard when it failed  to turn off the
power  to  the crusher and to block it against motion  while
miners, including Boisclair, were attempting to break up and
remove rocks  clogging  the  crusher  and  when it failed to
protect Boisclair from the hazardous movement  of the rotor.
The fact that Walker may have believed the standard  did not
apply  to  the  circumstances, does not excuse the company's
failure.  The Commission found that the language
of  the  standard "clearly  and  unambiguously"  applied  to
breaking  up   and   removing  rocks  clogging  the  crusher
(19 FMSHRC at 51).  The  company should have known this, and
in failing to implement the  standard  so  as to protect the
miners, the company failed to exhibit the care  required  by
the circumstances.

Nevertheless, Walker's negligence was mitigated, at least in
part,  by the fact that Boisclair, for reasons known only to
himself,  put himself in harm's way in violation of at least
two  company   directives.   Walker  had  a  policy  of  not
permitting one person to work  above  another (Tr. 202-203).
Had Boisclair complied with this policy and not worked above
Scott, Boisclair would not have needed  protection  from the
hazardous movement of the rotor.  Further, the company had a
policy that the crusher could not be entered without letting
the crusher operator know (Tr. 229).  Had Brooner been  told
that  Boisclair  was in the crusher, Brooner never would put
the rotor into motion.

Judge Maurer observed  that in this case "there is plenty of
negligence . . . to go around" (17 FMSHRC at 607).  While it
is true that Boisclair would  not  have  been  killed had he
complied  with company policy, it is equally true  he  would
not have been  killed  had  the  company  complied  with the
standard.   In  my  view,  as in Judge Maurer's, Boisclair's
negligence lessens the degree  of,  but does not excuse, the
company's failure.  Like Judge Maurer, I find that Walker is
chargeable with ordinary negligence.

In  assessing  a  civil  penalty,  I  have   considered  the
company's small size and its good faith abatement as well as
its  medium  size history of pervious violations.   Standing
alone these factors  would  warrant  a  small to medium size
penalty.   However,  they  are  overridden  by  the  extreme
seriousness  of  the  violation and the fact that  Boisclair
would  not  have  died,  but  for  the  company's  negligent
violation of the standard.

Accordingly,  I  find that a  civil  penalty  of  $7,500  is
appropriate, and I note that this assessment will not affect
Walker's ability to continue in business.

                              ORDER

Walker is ORDERED  to  pay a civil penalty of $7,500 for the
violation  of section 56.14105  as  set  forth  in  Citation
No. 4337450  and to do so within 30 days of the date of this
decision.




                                          David F. Barbour
                                          Administrative Law Judge

Distribution:

Ann M. Noble, Esq., Office of the Solicitor,  U.  S.  Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Katherine  Shand  Larkin, Esq., Jackson  &  Kelly,  1660  Lincoln
Street,  Suite  2710, Denver,  CO 80264 (Certified Mail)

Keith  R.  Henry, Esq., Weary, Davis, Henry, Struebing & Troup,
819  North Washington Street, Junction City, KS 66441
(Certified Mail)


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