.
NORTHERN STONE SUPPLY, INC.
November 24,2000
WEST 2000-245-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                        November 24, 2000

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 2000-245-M
               Petitioner       :  A.C. No. 10-00648-05511
                                :
          v.                    :  Rocky Mountain Quartzite Quarry
                                :
NORTHERN STONE SUPPLY, INC.,    :
               Respondent       :

                            DECISION

Appearances:  Deia  Wallace-Peters, Esq., Office of the Solicitor, 
              U.S. Department of Labor, Seattle, Washington, for 
              Petitioner;
              Gary  Mullard,  President,  and  Garth  Greenwell,
              Quarry Manager, Northern Stone Supply, Inc., Oakley,
              Idaho, for Respondent.

Before:  Judge Manning

     This case is before me on a petition for assessment of civil
penalty filed by the Secretary  of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Northern Stone
Supply, Inc. ("Northern Stone"), pursuant to sections 105 and 110
of the Federal Mine Safety and Health  Act  of 1977, 30 U.S.C. 
815 and 820 (the "Mine Act").  A hearing was  held in Twin Falls,
Idaho.  The parties presented testimony and documentary  evidence
and made closing arguments.

           I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     The  Rocky  Mountain  Quartzite  Quarry is a dimension stone
quarry operated by Northern Stone in Cassia County, Idaho.  It is
a rather small quarry that operates on  a  seasonal  basis.  As a
consequence, it is usually inspected by MSHA only once a year.

     On July 1, 1999, MSHA Inspector Curtis Chitwood conducted  a
health  inspection at the quarry.  As part of this inspection, he
sampled five miners for exposure to silica-bearing dust.  He used
the type  of  sampling  devices that MSHA typically uses and took
the sample over a single  six- hour shift.  These devices consist
of a "constant flow sampling  pump"  that  is designed to take an
air  sample in each miner's breathing zone.   These  devices  are
calibrated  at  a  flow  rate of 1.7 liters per minute.  The five
respirable  samples  that  were  obtained  were  sent  to  MSHA's
laboratory  in Pittsburgh, Pennsylvania,  along  with  a  control
sample.   As  a  result  of  this  sampling,  Inspector  Chitwood
determined that  two  miners  were  overexposed to silica-bearing
dust and he issued two citations under section 104(a) of the Mine
Act.  He issued a third citation alleging that Northern Stone was
not conducting dust surveys at the quarry.

     A.  Citation No. 7977666

     Citation  No.  7977666  alleges  a  violation  of  30  C.F.R.
 56.5001(a)/.5005.  The  condition  or  practice  section of the
citation provides, in part:

          The  miner  (Florentino Castillo) assigned to
          work in the quarry  area  was  exposed  to  a
          shift-weighted  average of .33 mg/cubic meter
          (TWA) of respirable  silica-bearing  dust  on
          7/1/99.    This   exceeded   the  permissible
          exposure  limit of .15 mg/cubic  meter  (TLV)
          times the sampling factor (1.2 for respirable
          free silica dust sampling and analysis).  .15
          times 1.2 (EF) equals .18.  .33 is 1.87 times
          .18 (TLV times  EF).  A fit tested respirator
          was  not  being  used   and   a   respiratory
          protection  program  meeting the requirements
          of ANSI Z88.2-1969 was  not  in  place.   All
          feasible engineering controls were not in use
          to control employee's dust exposure....

     In the citation, Inspector Chitwood determined that  it  was
reasonably  likely  that  the  violation  would lead to a serious
illness; that the violation was of a significant  and substantial
nature   ("S&S");  and  that  Northern  Stone's  negligence   was
moderate.   The  Secretary  proposes  a  penalty of $655 for this
violation.  The safety standard provides, in part, that "exposure
to airborne contaminates shall not exceed, on the basis of a time
weighted  average,  the  threshold limit values  adopted  by  the
American  Conference of Governmental  Industrial  Hygienists...."
Section 56.5005 provides, in part, that when "engineering control
measures have  not been developed or when necessary by the nature
of the work involved  ...,  employees  may  work  for  reasonable
periods  of  time  in  concentrations  of  airborne  contaminates
exceeding permissible levels if they are protected by appropriate
respiratory protective equipment."

     Northern  Stone  contested  this  citation  for a number  of
reasons.  First, Northern Stone states that MSHA conducted silica
dust surveys in the past and no over-exposures were detected.  As
a consequence, it believed that it was in compliance  with MSHA's
health standards.  Second, Northern Stone believed that  MSHA was
responsible  for conducting these respirable dust surveys and  it
relied  on  MSHA's  surveys  to  remain  in  compliance.   Third,
Northern Stone  questions  the accuracy of the allegations in the
citation because, after the  citation was issued, it arranged for
its own respirable dust survey and no over-exposures were found.

     I  find that the Secretary  established  a  violation.   The
Commission and the courts have uniformly held that mine operators
are  strictly   liable   for  violations  of  safety  and  health
standards.  See, e.g. Asarco  v. FMSHRC, 868 F.2d 1195 (10th Cir.
1989).  "[W]hen a violation of a mandatory safety standard occurs
in  a  mine,  the  operator  is automatically  assessed  a  civil
penalty."   Id.  at  1197.  In addition,  the  Secretary  is  not
required to prove that  a  violation creates a hazard, unless the
safety standard so provides.

          The [Mine Act] imposes no general requirement
          that a violation of MSHA regulations be found
          to  create a safety  [or  health]  hazard  in
          order  for  a  valid  citation  to issue.  If
          conditions   existed   which   violated   the
          regulations, citations [are] proper.

Allied   Products,   Inc.,  666  F.2d  890,  892-93   (5th   Cir.
1982)(footnote omitted).   The negligence of the operator and the
degree of the hazard created  by  the  violation  are  taken into
consideration in assessing a civil penalty under section  110(i).
30 U.S.C.  820(i).

     For  purposes  of  this  case, I find that MSHA may issue  a
valid citation for an overexposure  to  silica-bearing dust based
on a single-shift silica dust survey.  I  reach  this  conclusion
based  on the Commission's decision in Asarco, Inc., 17 FMSHRC  1
(1995),  and former Commission Judge Maurer's subsequent analysis
in Asarco,  Inc., 19 FMSHRC 1097, 1130-1136 (1997).  Based on the
evidence presented,  Judge  Maurer  concluded that "MSHA's use of
single-shift sampling is a reasonable  means  of ascertaining, to
the   requisite  degree  of  accuracy,  whether  the  enforcement
concentration  level  standard  in  Section  57.5001(a)  has been
exceeded."  Id. at 1136.

     The  Secretary presented evidence as to the procedures  used
by Inspector Chitwood to take the sample and the protocol used to
analyze  the  sample  at  MSHA's  Pittsburgh  laboratory.   Jaime
Alvarez,  a  safety  and  health  specialist  in  MSHA's  Western
District,  testified   very   generally   about  MSHA's  sampling
procedures.  (Tr. 6-20).  Inspector Chitwood  testified about the
procedures he used to sample at the quarry.  (Tr.  20-59).  Cathy
Burns,  the  quality  assurance coordinator at MSHA's laboratory,
testified about the procedures  used  to  analyze respirable dust
samples at the laboratory.  (Tr. 75-101).  James Polizzano, an x-
ray  analyst  at  the  MSHA  laboratory,  testified   as  to  the
procedures he used when analyzing the particular respirable  dust
sample  at issue.  (Tr. 102-121).  Northern Stone did not present
any evidence  to rebut this evidence.  Consequently, I credit the
testimony of these  witnesses.  I find that MSHA followed correct
procedures when sampling  for  respirable  dust at the quarry and
when analyzing the sample at its laboratory.  Accordingly, I find
that the citation accurately reflects the amount  of  silica dust
to which Mr. Castillo was exposed during the particular  six-hour
shift  that  was  sampled.   The  shift-weighted  average  of .33
mg/cubic meter of respirable silica-bearing dust detected by MSHA
is  an  "estimate"  of  that "individual's exposure concentration
level" on that date.  Id.

     The Commission has held that, in certain instances, there is
a presumption that the violation of a respirable dust standard is
S&S.  Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd sub
nom. Consolidation Coal Co.  v.  FMSHRC, 824 F.2d 1071 (D.C. Cir.
1987);  U.S. Steel Mining Co., Inc.,  8  FMSHRC  1274  (September
1986); Twentymile  Coal Co., 15 FMSHRC 941 (June 1993).  In those
cases, the mine operator  violated sections 30 C.F.R.  70.100 or
70.101, which apply to coal mines.

     An S&S violation is described  in  section  104(d)(1) of the
Mine  Act  as  a violation "of such nature as could significantly
and substantially  contribute  to  the  cause and effect of a ...
mine  safety  or  health  hazard."   A  violation   is   properly
designated  S&S  "if  based upon the particular facts surrounding
that violation, there exists  a  reasonable  likelihood  that the
hazard  contributed to will result in an injury or illness  of  a
reasonably  serious  nature."  National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).  In  Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), the Commission set  out a four-part test for analyzing S&S
issues.  Evaluation of the criteria  is  made assuming "continued
normal mining operations."  U.S. Steel Mining Co., 6 FMSHRC 1573,
1574 (July 1984).  The question of whether a particular violation
is  S&S  must  be based on the particular facts  surrounding  the
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).

     Under the Mathies  test,  the Secretary must establish:  (1)
the underlying violation of the  health  standard; (2) a discrete
health hazard, a measure of danger to health,  contributed  to by
the  violation;  (3)  a  reasonable  likelihood  that  the hazard
contributed  to  will  result in an illness; and (4) a reasonable
likelihood that the illness  in  question will be of a reasonably
serious nature.  The Secretary is not required to show that it is
more  probable  than not that an illness  will  result  from  the
violation.  U.S.  Steel  Mining  Co.,  18  FMSHRC  862, 865 (June
1996).

     In  the  cases  involving  coal  mines,  cited  above,   the
Commission  held that because an analysis of the four elements of
the S&S test  would  be  essentially the same in each instance in
which the Secretary proves  a  violation of 30 C.F.R.  70.100 or
70.101, proof of a violation gives  rise  to  a presumption that
the  violation  is  S&S.   See 8 FMSHRC at 1281.  It  based  this
presumption, in large measure,  on the legislative history of the
Mine   Act.    The   Commission   noted   that   "prevention   of
pneumoconiosis and other occupational illnesses  is a fundamental
purpose underlying the Mine Act."  8 FMSHRC at 895.

     For  reasons  set forth below, I find that this  presumption
should not be applied  under  the  particular facts of this case.
First, the Secretary made no attempt  to  introduce  any evidence
concerning   the   gravity  of  this  violation,  the  reasonable
likelihood of an illness,  or whether any illness is likely to be
serious.  Indeed, counsel for  the  Secretary ignored the S&S and
gravity issues both in the presentation  of  the  evidence and in
her closing arguments.  The only evidence on these  issues is the
citation  itself.   The Secretary cannot rely on this presumption
without at least attempting  to  invoke it in some way.  The fact
that the Commission created this presumption does not obviate the
Secretary's responsibility to establish her case.

     In addition, this case involves  facts that were not present
in  the  Commission's  decisions.  The Rocky  Mountain  Quartzite
Quarry operates on a seasonal basis with short-term workers.  The
quarry only mines dimension  stone  about six months a year.  Mr.
Castillo was a stone cutter at an area  of  the  quarry  known as
Silver  Peak.   When  Inspector  Chitwood  conducted  the  health
survey,  Mr.  Castillo  agreed to cut stone for the entire shift.
Normally, stone cutters do  not  cut stone straight through their
shift.   (Tr.  25-27).   At  Inspector   Chitwood's  urging,  Mr.
Castillo agreed to work through lunch without  taking  any breaks
or  performing  any  tasks  during  his  shift other than cutting
stone.  Id.  Thus, his exposure to silica  dust during this shift
may  not have been representative of his exposure  on  a  typical
work day.   In  addition, it is not clear from the record whether
Mr. Castillo returns  every  spring  to  work  at  the  quarry or
whether  different  people  work at the quarry each season.   Mr.
Castillo returns to his home  outside  of  Idaho  when  he is not
working at the quarry.  Given these circumstances, I believe that
the application of the presumption would be inappropriate.

     I find that the Secretary established the first two elements
of  the  Commission's  four  part S&S test.  A violation occurred
that contributed to a discrete  health hazard.  The Secretary did
not  establish  the  third element of  the  Mathies  formula:   a
reasonable likelihood  that the hazard contributed to will result
in  an  illness.  First, other  than  the  citation  itself,  the
Secretary did not offer any evidence on this element.  Second, as
stated above,  the  sample taken by the inspector may not reflect
Mr. Castillo's exposure  over a period of time.  The S&S criteria
are to be evaluated assuming  continued normal mining operations.
It is not at all clear that Mr.  Castillo would have been exposed
to a shift-weighted average of .33  mg/cubic meter of silica dust
during  his  normal  work days.  Accordingly,  I  find  that  the
Secretary failed to establish that the violation was S&S.

     I am required to  assess  a civil penalty for all violations
of safety and health standards taking  into consideration the six
penalty criteria set forth in section 110(i)  of  the  Mine  Act.
One  criteria  is the gravity of the violation.  As stated above,
the Secretary did  not offer evidence on this criteria except the
citation.  Based on  the  evidence  of  record,  I  find that the
violation was only slightly serious.  I take official  notice  of
the  fact  that, if a miner is overexposed to silica-bearing dust
over a period  of  time,  he  can  develop  silicosis, which is a
debilitating  disease.   But  I also take into consideration  the
fact that it is not clear in this case that Mr. Castillo had been
actually exposed to the level of  silica  dust  measured  by  the
inspector  over  a significant period of time or that he would be
so exposed in the  future.  His work routine was altered when the
sample was taken.  The  Secretary  is  not  usually  required  to
establish  that  the cited exposure level would continue, but the
facts in this particular  case  warrant  such consideration.  The
Secretary bears the burden of proof on the  gravity criterion and
I have taken into consideration the fact that  this issue was not
raised by counsel for the Secretary at the hearing.

     I also find that Northern Stone's negligence  was  low.  Mr.
Greenwell  testified  that MSHA had taken silica dust samples  at
the mine and no citations  were  issued.   He  believed  that the
quarry  was in compliance with the silica dust standard and  that
MSHA was responsible for taking samples to ensure compliance.  He
was very  concerned  that  the sample showed an overexposure.  He
questioned the accuracy of the  sample  because  he believed that
miners  were  not being overexposed, but he also wanted  to  take
steps to ensure  that  miners  worked  in  a healthy environment.
After  the  citations  were  issued, Northern Stone  purchased  a
sampling device and has sought  MSHA's assistance in developing a
sampling program.  It is important to note that the Secretary did
not introduce any evidence on the negligence criterion.

     B.  Citation No. 7977667

     Citation No. 7977667 alleged  another violation of 30 C.F.R.
  56.5001(a)/.5005.  The condition or  practice  section  stated
that  a  miner  was  exposed  to  a shift-weighted average of .17
mg/cubic meter of respirable silica-bearing dust on July 1, 1999,
and that the exposure limit, taking  into consideration the error
factor, was .25 mg/cubic meter.  When  I  pointed  out  that this
citation does not set out a violation because the exposure  level
was  less than the exposure limit, the Secretary agreed to vacate
the citation.   (Tr.  61-64,  133-34  ).   It  appears  that  the
inspector  made  an  error  when  entering the data received from
MSHA's laboratory.

     C.  Citation No. 7977668

     Citation No. 7977668 alleges a violation of 30 C.F.R.  56.5002.
The condition or practice section of the citation provides, in part:

          Two  (2)  stone  cutters  were overexposed to
          respirable   silica-bearing   dust   at   the
          dimensional stone quarry site on  07-01-1999.
          The  mine  operator  had  not conducted  dust
          surveys   as   frequently  as  necessary   to
          determine  the adequacy  of  the  engineering
          control measures  at  the  dimensional  stone
          quarry   site,   to   ensure   a   safe  work
          environment for the miner.

     Inspector Chitwood determined that it was  reasonably likely
that  the  violation  would lead to a serious illness;  that  the
violation  was S&S; and  that  Northern  Stone's  negligence  was
moderate.  The  Secretary  proposes  a  penalty  of $655 for this
violation.  The safety standard provides that "[d]ust, gas, mist,
and fume surveys shall be conducted as frequently as necessary to
determine the adequacy of control measures.

     Northern Stone contends that it did not know  how frequently
such  surveys  were required under the standard.  Northern  Stone
attempted to get  clarification  from  MSHA  on several occasions
after the citations were issued.  As stated above, Northern Stone
incorrectly  believed that MSHA would take all  of  the  required
respirable dust surveys.

     I find that  the  Secretary  established a violation because
Northern Stone had not conducted any  dust  surveys  prior to the
issuance  of  this  citation.   Thus, the issue of how frequently
such surveys must be taken is irrelevant  for  this  citation.  I
note  that  Northern  Stone contested the citations in this  case
primarily because it felt  that MSHA was not providing sufficient
assistance  in  helping it achieve  compliance  with  its  health
standards.  After  the  citations  were  issued,  Northern  Stone
sought MSHA's assistance in developing a plan to solve respirable
dust problems at its quarry and also sought help in learning  how
to use the sampling equipment it had purchased.  Northern Stone's
own  silica-dust  sampling results indicated that miners were not
being overexposed.  Messrs. Greenwell and Mullard expressed their
frustration at the  hearing and continued to seek MSHA's  advice.
They admitted that they  did  not sample for silica dust prior to
July 1999, but they were perplexed  by  MSHA's  failure to follow
through on its health inspection by answering their  rather basic
questions about the regulatory requirements.

     Although the Secretary did not introduce any evidence on the
gravity and negligence criteria at the hearing, I find  that  the
violation  was  serious  and that Northern Stone's negligence was
moderate.  The citation itself  supports  these  findings.   If a
mine operator does not conduct respirable dust surveys, it cannot
determine  whether  its employees are being overexposed to silica
dust.  Although MSHA  conducts  health surveys at mines from time
to  time, the standard requires mine  operators  to  monitor  the
health  conditions at the mine.  It cannot rely on MSHA's testing
alone.  Since  the  language  of the standard clearly places this
responsibility on the mine operator,  I  find that Northern Stone
was moderately negligent.

     I could not help but notice that immediately after the close
of the record in this case, while the parties  were  still in the
courtroom, Mr. Alvarez of MSHA's Metal/Nonmetal Western  District
Office   and   Messrs.  Greenwell  and  Mullard  began  generally
discussing approaches that Northern Stone could take with respect
to compliance with  the  silica dust standard.  It appeared to me
that  Mr.  Alvarez,  on  behalf   of  MSHA,  pledged  to  provide
assistance to Northern Stone in this  regard.  It is my hope that
the parties follow through on this discussion  so  that  Northern
Stone  can  provide  a  healthy  environment  for  its employees.
Discussion and assistance will help improve health conditions  at
this quarry more than further litigation will ever achieve.

                II.  APPROPRIATE CIVIL PENALTIES

     Section  110(i)  of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties.   Northern
Stone was issued 13 citations  during the two years prior to this
inspection.   None  of  these  citations  involved  silica  dust.
Northern Stone is a small operator  and  the  quarry worked 9,980
man-hours.  The violations were abated in good  faith.   Northern
Stone  appeared  eager to take steps to prevent future violations
of the cited standards.  The  penalties assessed in this decision
will not have an adverse effect  on  Northern  Stone's ability to
continue in business.  My gravity and negligence findings are set
forth  above.   I significantly reduced the penalties,  in  part,
because Northern  Stone  is small and it demonstrated good faith.
Based on the penalty criteria,  I  find  that  the  penalties set
forth below are appropriate.

                           III.  ORDER

     Based on the criteria in section 110(i) of the Mine  Act, 30
U.S.C.  820(i), I assess the following civil penalties:

     Citation No.        30 C.F.R.            Penalty

       7977666           56.5001(a)/.5005      $80.00
       7977667           56.5001(a)/.5005      Vacated
       7977668           56.5002               120.00

     Accordingly,  Citation Nos. 7977666 and 7977668 are AFFIRMED
as modified above; Citation  No. 7977667 is VACATED; and Northern
Stone Supply, Inc., is ORDERED  TO PAY the Secretary of Labor the
sum of $200.00 within 40 days of the date of this decision.  Upon
payment of the penalty, this proceeding is DISMISSED.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Deia  Wallace-Peters,  Esq.,  Office   of   the  Solicitor,  U.S.
Department of Labor, 1111 Third Avenue, Suite  945,  Seattle,  WA
98101-3212  (Certified Mail)

Garth  Greenwell,  Quarry  Manager,  Northern Stone Supply, Inc.,
P.O. Box 249, Oakley, ID 83346  (Certified Mail)

RWM