<DOC>
[DOCID: f:se98156x.wais]

 
MARTIN MARIETTA AGGREGATES
January 25, 1999
SE 98-156-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET, N.W. ,6TH FLOOR
                     WASHINGTON, D.C.  20006-3868


                           January 25, 1999

SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. SE 98-156-M
                Petitioner    :  A. C. No. 09-00075-05529
          v.                  :
                              :
MARTIN MARIETTA AGGREGATES,   :  Camak Quarry
                Respondent    :

                               DECISION

Appearances:  Leslie John Rodriguez, Esq., Fran Schleicher
              Esq., Office of the Solicitor, U. S.
              Department of Labor, Atlanta, Georgia,
              for Petitioner; Henry Chajet, Esq., Patton
              Boggs, Washington, D.C., for Respondent.

Before:  Judge Merlin

     This case is a petition for the assessment of civil
penalties filed by the Secretary of Labor against Martin
Marietta Aggregates under section 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  820.

     This case contains three violations one of which the
operator has agreed to withdraw its contest and pay the
proposed penalty in full (Stip. 4).

     On October 28, 1998, a hearing was held with respect
to the remaining two violations.  The transcript has been
received and the parties have filed post hearing briefs.

     The parties agreed to the following stipulations (Tr.
7-11) which are as follows:

          1.  The Federal Mine Safety and Health  Review
     Commission has jurisdiction over this matter because the
     product produced by respondent enters and affects
     interstate commerce.

          2.  The citations and order were issued by an
     authorized representative of the Secretary and properly
     served on respondent.

          3.  Martin Marietta Aggregates, Camak Quarry,
     employs approximately 40 people and produces approximately
     1.4 million tons per year.

          4.  Respondent agrees to withdraw its notice of
     contest of citation 4551643 and pay the proposed penalty
     of $267.  Petitioner agrees that the conditions cited
     in said citation are not in any way related to the
     accident that resulted in the other two citations
     at issue and did not affect the braking ability of
     the locomotive involved.  The parties further
     agree that, except for the purposes of setting
     future penalties under the Act by inclusion in
     respondent's history of violations, the payment of
     the penalty and the settlement of the citation is
     not an admission by respondent of any fact or
     violation and not usable by petitioner for any
     other purpose other than the calculation of future
     penalties.

          5.  Respondent demonstrated good faith in promptly
     correcting the conditions alleged.

          6.  Prior to the accident which gave rise to
     this case, respondent Camak Quarry had a 0.0  injury
     frequency rate compared to a rate of 6.06 for the
     industry.

          7.  The proposed penalties would not affect
     respondent's business viability.

          8.  Prior to the accident which gave rise to the
     citations at issue in this case, respondent had
     initiated and conducted a training program that met the
     requirements of 30 C.F.R. Part 48, despite the
     fact that respondent's operations are exempt from
     enforcement of said training regulations by
     congressional statute.

          9.  At the beginning of the morning shift on
     October 20, 1997, Jut Anderson traveled to the loadout
     area and informed loadout personnel, including Billy
     Moss, of the schedule for the day, including the
     fact that he would be cleaning the railroad
     scales.

          10.  Respondent's employee, Jut Anderson, like
     other key employees throughout the site, was provided
     with a portable radio by respondent to assist in
     communications on the site despite  the lack of
     any MSHA requirement.

          11.  On October 20, 1997, at approximately
     8:30 a.m., Mr. Anderson commenced the cleaning of
     the railroad scales.

          12.  On the morning of October 20, 1997,  Mr.
     Robert Hobbs stated to MSHA's inspectors that Mr. Jut
     Anderson did not communicate with him either by radio
     or in person that he would be cleaning the scales.

          13.  Mr. Robert Hobbs stated to MSHA inspectors
     that on the morning of October 20, 1997, he followed
     his normal procedure and performed part of his job by
     pushing the four railcars that were blocking the
     crossing toward the scale to clear the crossing.

          14.  As Mr. Hobbs pushed the four railcars along
     the track to clear the crossing, they hit the train,
     composed of the locomotive and ten attached cars,
     causing the train to move forward and critically
     injuring Mr. Jut Anderson, who was sitting on the
     track on the scales approximately 18 inches in
     front of the running locomotive.

          15.  The locomotive involved in the accident
     had two separate braking system control levers:  One,
     an air brake system for the locomotive itself, and,
     two, another air brake system for railcars attached to
     the locomotive.  These two systems were operated by two
     separate levers in the locomotive cab.

          16.  The railcars involved in the accident had
     two separate braking systems on each car:  One, an
     air brake system that attaches by hoses to other cars
     and ultimately to the locomotive, and a mechanical
     braking system that is set or released by turning a
     wheel on each railcar.

           17.  Immediately following the accident the
     locomotive and railcars were moved to  permit recovery
     of the victim.

           18.  The MSHA inspectors who investigated the
     accident and issued the citations did not examine the
     locomotive or railcars involved until the day following
     the accident.

           19.  The investigators who issued the citations
     determined through their interviews that Jut Anderson,
     the accident victim, communicated his activities and
     hazards present on the track to all of the loadout
     personnel both in person and using his radio but
     failed to communicate with Mr. Robert Hobbs on the
     morning of the accident.

           20.  Mr. Slaton acknowledges that the citation
     issued pursuant to his direction for an alleged violation
     of Section 56.14217 was issued for both the locomotive
     and the railcars because the standard covers both
     railcars and locomotives.

     The stipulations were accepted with the caveat that a
determination regarding the scope and effect of a mandatory
standard was a matter for me to decide  (Tr. 11).

     Citation No. 4551641 dated, October 22, 1997, was issued
pursuant to section 104(d)(1) of the Act, 30 U.S.C.  814(d)(1),
and charges a violation of 30 C.F.R.  56.14217 for the following
conditions or practices:

     An accident occurred at this mine on October 20, 1997,
severely injuring the employee.  He died of these injuries the
following day.  The victim was seated approximately 3 feet
from a 125 ton Alco RS-11 locomotive cleaning the rail scale
with compressed air being supplied by the locomotive.  The
locomotive and the 10 rail cars attached to it were not blocked
against movement.  Four loaded rail cars were pushed into the
locomotive and attached cars causing the locomotive to run over
and pin the victim beneath the locomotive.  Mine management
was aware the scales were to be cleaned but failed to assure
that the train was blocked against movement.  The conduct of
the operator was aggravated and constituted more than ordinary
negligence.  This is an unwarrantable failure. 30 C.F.R. 
56.14217 sets forth the following:

          Parked railcars shall be blocked securely unless held
     effectively by brakes.

     Order No. 4551642 dated, October 22, 1997, was issued
pursuant to section 104(d)(1) of the Act, supra, and charges
a violation of 30 C.F.R.  56.14207 for the following
conditions or practices:

          An accident occurred at this mine on October 20,
     1997, severely injuring the employee.  He died of these
     injuries the following day.  The victim was seated
     approximately 3 feet from a 125 ton Alco RS-11
     locomotive cleaning the rail scale with compressed air
     being supplied by the locomotive.  The locomotive and
     the 10 rail cars attached to it were left unattended
     and the parking brakes on the locomotive or rail cars
     were not set.  Four loaded rail cars were pushed into
     the locomotive and attached cars causing the locomotive
     to run over and pin the victim beneath the locomotive.
     Mine management was aware the scales were to be cleaned
     but failed to assure the parking brakes were set.  The
     conduct of the operator was aggravated and constituted
     more than ordinary negligence.  This is an
     unwarrantable failure.

30 C.F.R.  56.14207 sets forth the following:

          Mobile equipment shall not be left unattended
     unless the controls are placed in the park position and
     the parking brake, if provided, is set.  When parked on
     a grade, the wheels or tracks of mobile equipment shall
     be either chocked or turned into a bank.

                          Statement of Facts

     The essential facts are as follows:  At the loadout
point in the operator's Camak Quarry, railcars were loaded
with crushed stone and then gravity dropped to the storage
area (Tr. 34, 114, 115).  After the cars were dropped, a
loader was routinely used to push them forward so they
would attach to a locomotive which previously had been
parked a few feet in front of the scales (Tr. 115, 140).
The cars were then weighed at the scales and thereafter
the locomotive moved them to a point where they were
to be transported from the mine (Tr. 56, 165).  On October
20, 1997, the decedent, Jut Anderson, was the leadman of
the loadout crew (Tr. 139, 247, 302).  He told the plant
foreman, Donny Reese, and the loadout crew that he was
going to clean the scales (Stip. 9, Tr. 180-181, 293-294).
He did not, however, tell Robert Hobbs, the loader operator
(Stip. 12).  On the shift in question, Billy Moss, a member
of the loadout crew, brought the locomotive to the rail
scales (Tr. 113, 172).  Moss parked the locomotive 18 inches
to 3 feet before the scales and set the locomotive's brake
(Tr. 196).  Subsequently, ten railcars were dropped and
attached to the locomotive (Tr. 140, 173, 256).  Anderson
asked Jason Jones to assist him in cleaning the scales
by shoveling debris off the scales and later by digging a ditch
to remove water under the scales (Tr. 170, 247-248, 251).
Anderson used compressed air from the locomotive to clean the
scales. Hoping to increase the air pressure being used to clean
the scales, he told  Jones to release the air brake on the
locomotive and Jones did so (Tr. 248, 250, 300).  Anderson was in
front of the locomotive, cleaning the scales and Jones was on a
backhoe (Tr. 248-249, 268, 271).  At that time four cars which
were previously dropped from the loadout had come to a stop and
were blocking an intersection (Tr. 141).  Unaware that Anderson
was on the track cleaning the scales, Hobbs used a loader to push
the four cars into the ten cars (Tr. 141).  The impact of the
four cars caused the ten cars and the locomotive to move forward
(Tr. 141).  The locomotive hit and killed Anderson (Stip. 14, Tr.
141).

                             Duplication

     The operator asserts that the citations are duplicative,
arguing that 30 C.F.R.  56.14217 covers the charges involving
both the locomotive and the railcars.  This assertion is without
merit.  Section 56.14217 specifically applies to parked railcars
and does not refer to locomotives.  When the mandatory standards
delineate a specific requirement applicable to locomotives they
use the term "locomotive."  30 C.F.R.  56.14218.  Similarly,
when the standards apply a requirement to trains, it uses that
term.  30 C.F.R.  56.14219.  Indeed, an examination of section
56.14217 and the sections that follow it, demonstrates that the
mandatory standards are precise in their descriptions of the
equipment they cover.  When the standards impose requirements
upon many types of equipment, a comprehensive definition is given
to which the mandates apply.  This is the case with mobile
equipment which is described in broad terms including rail
mounted equipment that is capable of moving.  30 C.F.R. 
56.14000.  This definition plainly includes locomotives.
Therefore, the requirements of 30 C.F.R.  56.14207 relating to
mobile equipment apply to the locomotive in this case.

     The inspectors apparently believed that Section 56.14217
applied to both the locomotive and the railcars.  However, as I
made clear at the hearing, I am not bound by their interpretation
(Tr. 11).  It is however, disturbing that as enforcement under
the Mine Act and its predecessor, the Coal Act, enters its fourth
decade, inspectors come to the hearing supposedly prepared to
testify but are confused about the standards they cite and hold
views that conflict with those of the Solicitor in the case.

     The operator also argues that Section 56.14207 does not
apply to locomotives because the inspectors admitted that
locomotives do not have parking brakes.  I reject this argument
and do not believe the testimony of the inspectors supports the
operator's position.  Inspector Wriston focused on the fact that
the brakes in question were the locomotive's only brakes and not
on whether the brakes were service brakes or parking brakes (Tr.
86).  And he concluded by stating that the parking brake was the
service brake (Tr. 95).  Similarly, the testimony of Inspector
Slaton does not support the operator's position.  He also
testified that the parking brake was the service brake (Tr. 191-
192).  The operator presented no evidence of the differences
between service brakes and parking brakes.  And it did not come
forward with any evidence showing that the same brake cannot
serve as both a service brake and a parking brake depending upon
the circumstances.  What the record does show is that when the
locomotive was parked or came to a stop, the brake was set (Tr.
109, 113-114, 145, 147, 198, 269).  I hold that this brake was a
parking brake for the purposes of Section 56.14207.

                         Citation No. 4551642

A.  Existence of a Violation

     As set forth above, this citation was issued because the ten
railcars attached to the locomotive were not blocked or secured
effectively by brakes.  When asked whether the cars were blocked,
Moss who had parked the locomotive was evasive.  He first asked
for the question to be repeated and then said he did not
understand the question (Tr. 119).  But when queried from the
bench, Moss finally agreed that he did not block the wheels of
the railcars (Tr. 120).  Hobbs, the loader operator, testified
that past practice was not to block railcars (Tr. 149).  He
stated that the locomotive was blocked only at the end of the
shift (Tr. 149).  Inspector Slaton said that there was no
evidence of any blocks (Tr. 176).  At the hearing, the lack of
any conflict on the matter of blocking was noted from the bench
(Tr. 149).  I find that the railcars were not blocked.

     The critical issue, therefore, is whether the railcars were
held effectively by the brakes. The parties addressed this issue
solely in terms of whether the brakes on the railcars had been
set.  Their evidence on this question is unpersuasive.  The
inspectors testified that Parsons, the production manager and
member of senior management, told them that the brakes on the
railcars were not set (Tr. 30-31, 38-40, 173, 193).  Parsons was
not present at the quarry at the time of the accident, but went
there shortly afterwards (Tr. 69-70).  However, the Secretary did
not call Parsons as a witness, although he was still in the area
and working for another company (Tr. 308).  Hearsay evidence is
admissible in administrative proceedings but the probative weight
to which it is entitled depends upon the circumstances.  29
C.F.R.  2700.63(a); REB Enterprises Inc., 20 FMSHRC 203, 206
(March 1998); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135,
1139 (May 1984); Ideal Cement Co., 13 FMSHRC 1346, 1350 n.1
(September 1991).  Since Parsons was not called as a witness, he
was not available for cross examination on whether the notes and
testimony of the inspectors adequately and fairly set forth what
he told them.  In addition, Parsons himself had no first hand
knowledge of what happened.  He was only repeating what other
individuals had told him.  Because Parsons was not called as a
witness, there was no opportunity to ask him to identify his
sources of information.  Accordingly, even if the inspectors
accurately wrote down what Parsons told them, there is no way to
test the accuracy of  Parsons' statements or his sources of
information.  Under the circumstances, I determine that the notes
and testimony of the inspectors regarding Parsons are not
entitled to any probative weight.

      Every employee of the operator who testified, denied
knowing if the brakes had been set.  Moss testified that he did
not know if the brakes on the railcars were set (Tr. 118).[1]
ones also denied knowing whether anyone set the brakes, although
the inspectors testified that he told them the brakes were not
set (Tr. 40, 43-44, 193, 261).  So too, Hobbs said he did not set
the brakes and did not know if anyone did (Tr. 144-145).  In
addition, these individuals said they did not know who had
dropped the ten railcars and brought them forward to become
attached to the locomotive (Tr. 110, 116, 140, 256).  These on
site witnesses seem curiously ignorant of what must have been
going on before their eyes.  Reese testified that as a general
matter, the operator of the locomotive set the brakes and the
rail crew helped (Tr. 295-296).  Reese also stated that brakes
were not set on every car, but perhaps on every second or third
car (Tr. 296-297).   However, in this instance he did not know
whether the brakes on any railcars were set (Tr. 304).  It is
strange that the plant foreman identified by the operator as the
supervisor of the loadout area, did not know and did not ask
about such an important matter.

     In sum, therefore, none of the evidence is definitive or
convincing with respect to whether the brakes were set.
However, it is possible to determine the existence of a
violation without relying upon the unpalatable evidence
presented by the parties.  This is so because the parties
have incorrectly framed the issue to be resolved and
misunderstood the question that needs to be asked and
answered.  The mandatory standard requires that railcars be
held effectively by brakes.  If brakes are not set, they
obviously will not hold the cars effectively.  But even if
brakes are set, they must be set so as to hold the cars
effectively.  Therefore, the issue is not whether brakes
were set, but whether the railcars were held effectively by
the brakes.[2]  The ten parked railcars moved forward when
the four additional cars were pushed into them (Stip. 14,
Tr. 141).  As Stipulation No. 13 recognizes, Hobbs stated
that in pushing the four cars he was acting in accordance
with normal procedures.  At the hearing Hobbs testified that
for 24 years he had been pushing cars from the railroad
crossing down toward the scale (Tr. 142).  His statements
are uncontradicted.  Therefore, there was nothing unusual
about this case where four cars were pushed forward to
couple with ten cars already attached to the locomotive.  In
this instance, however, the motion of the four cars caused
the ten cars to move forward and push against the locomotive
which then moved ahead, running over Anderson and killing
him.  Accordingly, the brakes did not hold the railcars
effectively or the cars would not have moved.[3]  As set
forth below, the brake on the locomotive was not set, but
that did not cause the cars to move forward in the first
instance.  The cars may have kept on moving because the
locomotive brake was not set, but they moved initially
because their brakes, whether set or not, did not hold them
effectively.  This was a violation of the mandatory standard.


***FOOTNOTES:

     [1]:  When Moss was asked questions by the  Solicitor, he had
to  be  admonished  not to look at operator's counsel  (Tr.  114,
131).  And when operator's  counsel objected to a question by the
Solicitor, Moss immediately suffered  a  loss of memory or became
unable to understand simple questions (Tr.  110-113,  118,  119).
His  difficulty  in  testifying might be attributable to the fact
that as the locomotive  operator,  he was responsible for setting
brakes on the railcars.  Both Reese  and  Hobbs  stated  that the
locomotive  operator  set  brakes  on  the railcars (Tr. 145-146,
296).

     [2]:  There was evidence that general industry practice was to
set every third brake (Tr. 92, 221).  However, even assuming this
were  so,  the  mandatory standard is not premised  upon  general
industry practice. It requires that the brakes hold the cars
effectively.  Testimony was uncontradicted that the cars would
have  been  held effectively if brakes on every car had been  set
(Tr. 148, 199).

     [3]:  At an early point in the hearing, operator's counsel
stated that he would produce witnesses  who  would testify in the
operator's favor on the interpretation of "effectively" (Tr. 89).
But  he  did  not  do  so.   Inspector  Wriston  testified   that
effectively   holding   would   be   holding  under  the  working
circumstances that were present (Tr. 89).  He further stated that
effectively  holding  means  holding when   a  sitting  piece  of
equipment is hit by other equipment,  if  such  an  occurrence is
normal   activity   (Tr.  89-90).   As  noted,  Hobbs'  testimony
demonstrated that pushing  the  four cars forward with the loader
was normal activity.

B.  Significant and Substantial

     A violation is significant and substantial, if based on 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.  Arch of Kentucky, 20 FMSHRC 1321, 1329 (December
18, 1998); Cyprus Emerald Resources, Inc., 20 FMSHRC 790,
816 (August 1998);    National Gypsum Co., 3 FMSHRC 822, 825
(April 1981).  In Mathies Coal Co., 6 FMSHRC 1 (January
1984), the Commission held that in order to establish a
significant and substantial violation of a mandatory
standard the Secretary must prove :  (1) the existence of an
underlying violation; (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.  The Commission's  requirements
for a finding of significant and substantial have been
recognized and accepted by the courts.  Buck Creek Coal Inc.
v. FMSHRC, 52 F.3d 133, 135-136 (7th Cir. 1995); Austin
Powder, Inc. v. Sec. of Labor, 861 F.2d 99, 103 (5th Cir.
1988); Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1075
(D. C. Cir. 1987).  The Commission itself has declined the
invitation to change the test.  United States Steel Mining
Co., 18 FMSHRC 862, 865-866 (June 1996); Energy West Mining,
15 FMSHRC 1836, 1839 (Sept. 1993); Texas Gulf Inc., 10
FMSHRC 498, 500 n. 4 (April 1988).

     In this case the first requirement is met because there was
a violation.  The second element also is satisfied because
the violation contributed to the danger that the cars would
move forward and together with the locomotive hit someone.
I also find that the failure of the brakes to effectively
hold the cars created a reasonable likelihood of an injury
and the reasonable likelihood that the injury would be of a
reasonably serious nature.  The cleaning of the scales
required Anderson and Jones to work on or next to the rails
directly in front of the locomotive.    In fact, a fatality
occurred.  The movement of the cars was the precipitating
factor setting off a chain of events which ended in
Anderson's death.  The violation was significant and
substantial and very serious.

C. Negligence and Unwarrantable Failure

     As explained in detail infra,  I  find that Reese, the plant
foreman, was the responsible supervisor of the loadout area.
It was his obligation to insure that  the railcars were held
effectively  by  the brakes.  However, Reese  did  not  know
whether brakes on  the  railcars had been set (Tr. 304).  In
addition, he stated that as a general matter brakes were not
set on every car, but just  on some (Tr. 296).  Brakes could
be set on every other car or  every third car (Tr. 296-297).
Based on this testimony it appears  that  the  standard  for
determining  the number of brakes to set apparently was very
flexible.  Therefore,  as  the person in charge, Reese had a
particular duty to make certain  that sufficient brakes were
set   to   hold   the   cars  effectively.    This   crucial
determination was not one  that  could  be  left  to  a  non
supervisor.  I find that Reese was negligent in not properly
performing  his  supervisory  tasks  and that as a member of
mine  management,  his  negligence  is attributable  to  the
operator.

     I do not however, believe that the negligence in this case
rises to the level required for a finding of unwarrantable
failure.  The Commission has defined unwarrantable failure
as aggravated conduct constituting  more that ordinary
negligence.  Emery Mining Corp., 8 FMSHRC 1997, 2001 (Dec.
1987).  It is characterized by such conduct as reckless
disregard, intentional misconduct, indifference or serious
lack of reasonable care.  Id. at 2003-04; Cyprus Emerald
Resources, supra at 813; Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 (Feb. 1991).

     The inspectors found unwarrantable failure because they said
the operator's past practice was not to set the brakes on
railcars.  However, the evidence they provided was not
convincing.   Inspector Wriston gave conflicting testimony.
He first stated that Jones had told him that cars were
dropped without the brakes being set, but then admitted he
did not definitely know what the past practice was (Tr. 60-
61, 74).  Subsequently, he stated that Parsons had told him
about past practice(Tr. 84).  Inspector Slayton also
testified that Parsons told him that past practice was not
to set brakes on the railcars.  As explained above, this
testimony from the inspectors has no probative value because
Parsons was not called as a witness.  Moreover the
inspectors' notes do not indicate that Parsons was asked or
said anything about past practice.  Inspector Slayton also
testified that Hobbs told him that past practice was not to
set the brakes, but here again, the inspector's notes do not
contain such information (Tr. 187-188, 194).  Inspector
Slayton stated that Moss had told them about past practice,
but then said he was not sure that Moss had said this (Tr.
194).[4]  If the inspectors had been told about past
practice in their interviews as they alleged, their notes
surely would have contained such information.  The fact that
the notes are silent about past practice renders the
testimony of the inspectors suspect and unworthy of belief.
Accordingly, the evidence of record does not establish the
operator's past practice with respect to setting brakes on
railcars.  Since there is nothing else in the record to
support the allegation of unwarrantable failure, that
finding must be vacated.

                          Order No. 4551642

                       Existence of a Violation

     As set forth above, the cited mandatory standard, 30
C.F.R.  56.14207, requires that a locomotive shall not be
left unattended unless the controls are placed in the
park position and the parking brake is set.  Inspector
Wriston testified in accordance with his notes that he had
been told by Parsons and Jones that the brake had not been
set (Tr. 42-44).  However, Inspector Slayton's notes state
that Moss had parked the locomotive and set the brake when
he parked it (Exh. 11).  Inspector Slayton also testified
that Moss told him the brake had been set (Tr. 197-198, 207).
Moss testified that when he parked the locomotive, he set
the brake (Tr. 109,122).  Finally, Jones testified that
Anderson told him to release the brake (Tr. 248, 250).  I
find Jones a credible witness on this point and I accept
his testimony that he released the brake.  Obviously, the
brake could not have been released unless it was set.  There
is no dispute that the locomotive was unattended when the
accident occurred.  Accordingly, I find that a violation
occurred.

B. Significant and Substantial

     The four step test required for a finding of significant and
substantial has already been set forth. In this case the
first requirement has been met.  The second requirement is
also met because the release of the locomotive brake
contributed to the danger that the locomotive and cars would
move forward and hit someone.  I further find that the
released brake created a reasonable likelihood that a
reasonably serious injury would result from the hazard that
had been created.  The cleaning of the scales required
Anderson and Jones to work on or next to the rails directly
in front of the locomotive.  Indeed, a fatality occurred.
Although the rail cars were not held effectively by their
brakes, the fact that the locomotive was not braked was a
major factor in the continued forward movement of the entire
train which resulted in the accident and fatality.
Accordingly, I conclude that the violation was significant
and substantial and very serious.

Negligence and Unwarrantable Failure

     Inspector Wriston testified that the conduct of the operator
was aggravated and constituted more than ordinary negligence
because Anderson, the decedent, was mine management and put
himself in a position of great danger and failed to inform
others of the work he was going to perform (Tr. 72-73).
Inspector Slayton also testified that there was an
unwarrantable failure because a supervisor was involved and
others were exposed to the hazard (Tr. 188).

     As set forth above, the locomotive's brake was not set
because Anderson told Jones to release it so more air
pressure would be available to clean the scales.  Based upon
his knowledge and experience, Anderson surely knew that
releasing the brake created the risk that the locomotive
would move forward, especially since cars were being dropped
at the time and could be expected to be pushed forward to
couple with the locomotive.  In addition, he failed to use
available two way communication equipment to notify the
loader operator that he was cleaning the scales (Stip. 10,
12, 19, Tr. 98-99, 233, 305-306).  Under these circumstances
Anderson displayed an extraordinary degree of recklessness,
carelessness, indifference and wilful misconduct.  His
actions fit all the terms used by the Commission to describe
unwarrantable failure and they constitute extreme
negligence.

     The issue is whether Anderson's very high degree of
negligence and unwarrantable failure are imputable to the
operator.  Under Commission precedent, the negligence of a
rank and file miner cannot be imputed unless the operator
failed to discharge its responsibilities with respect to
training, supervision or discipline.  U.S. Coal Inc., 17
FMSHRC 1684, 1686 (Oct. 1995); Fort Scott Fertilizer-Cullor
Inc., 17 FMSHRC 1112, 1116 (July 1995).  However, the
negligence of a supervisor is imputable to the operator
unless the operator can demonstrate that no other miners
were put at risk by the supervisor's conduct and that the
operator took reasonable steps to avoid that particular
class of accident.  Nacco Mining Co., 3 FMSHRC 848, 849
(April 1981).  The Commission also has stated that an
agent's unexpected intentional misconduct may result in a
negligence finding against the operator where the lack of
care exposed others to risk or harm.  Rochester &
Pittsburgh, supra at 198.  It is also well settled that an
agent's conduct may be imputed to an operator for
unwarrantable failure purposes.  Whayne Supply Company,
19 FMSHRC 447, 451 (March 1997); Rochester & Pittsburgh,
supra at 197-198.

     There is no dispute that Anderson received all applicable
training and that he conducted safety meetings with the
loadout crew (Tr. 208, 236, 249, 276-277, 284-285, 287-289).
There is no suggestion that the operator did not fulfill its
responsibilities with respect to supervision or discipline
of Anderson.  Accordingly, if Anderson was a rank and file
miner, his negligence would not be imputable to the
operator.

     If Anderson was a supervisor, it must be determined
whether the defense under Nacco would be available to the
operator.  Jones testified that he was working in the
immediate area when the accident happened and that not long
before the accident he had been on the tracks working on the
scales with Anderson to clean the scales (Tr. 247-248).  At
the moment of the accident Jones was on the backhoe adjacent
to the track (Tr. 258, 271, 275).  The locomotive brushed up
against the backhoe, although it did not cause any damage or
injury.  However,  Reese, the foreman, agreed that it was
possible for Jones to have been standing on the track
(Tr. 299).  Based upon the foregoing, Jones' proximity to
danger from the unbraked locomotive is clear.  He was in the
immediate area and might well have been standing on the
tracks.  Even on the backhoe, he was in danger.  The
locomotive could have hit the backhoe harder than it did or
Jones might have fallen off.  Anderson's actions put Jones
at serious risk.  The Nacco defense would not apply.

     The determinative issue, therefore, is whether Anderson was
a rank and file miner or  a person charged with
responsibility for the supervision of miners or the
operation of all or part of a mine.  The Commission has
considered this issue on several occasions.

     In U.S. Coal Inc., supra, a certified electrician suffered
burns to his hand, when he failed to deenergize or lock out
equipment before he began his repairs.  The Commission held
that he  was not the operator's agent for purposes of
imputing negligence.  Although the electrician was
authorized to tell miners to stop working on dangerous
equipment and to remove such machinery from service, the
Commission held that this evidence standing alone was
insufficient to support a finding that the electrician was
an agent of the operator.  The Commission stated that in
this type of case, it did not rely upon the job title or
qualifications of a miner, but upon whether his function was
crucial to the mine's operation and involved a level of
responsibility normally delegated to management personnel.
Id. at 1688.  The Commission stated that the electrician's
negligent conduct occurred while he was repairing equipment,
a routine assignment not encompassing managerial or
supervisory responsibilities.  Id.

     In Ambrosia Coal & Construction Company, et al, 18 FMSHRC
1552 (Sept. 1996), the Commission decided that an individual
was an agent of the operator when he accompanied inspectors
on their inspections and attended close out conferences as
the operator's representative, gave work orders to abate
citations, was responsible to see that equipment repairs
were made, was paid a salary like management and did not
receive extra pay for overtime like rank


**FOOTNOTES**

     [4]:  The inspectors differed in their accounts of their
interview with Moss.  Inspector Wriston said they only asked
Moss two questions, one of which was whether he agreed  with
everything  Jones  had said (Tr. 79-80).  But Inspector Slayton
testified about many statements  that  Moss allegedly made to
him in the interview (Tr. 172-173, 200).  These differences
reflect poorly upon the veracity of the inspectors. and file
miners, and was treated by the mine owner as a person in a
responsible position.  Id. at 1560-1561.  Under these
circumstances the Commission did not view as determinative
the fact that he did not have the authority to recommend
hiring or firing, discipline employees, change work
schedules, or adjust pay and terms of employment.  Id.

     Thereafter, in Whayne Supply Company, supra, the Commission
held that an experienced repairman who needed little
supervision and helped less experienced employees, was not a
supervisor.  The repairman had been fixing a bulldozer, but
failed to secure certain parts of the equipment and as a
result became pinned under the equipment and was killed.  He
was working alone and not supervising anyone when the
accident occurred.  The Commission stated that an individual
does not become a supervisor merely because he possesses
greater skills and job responsibilities than his fellow
employees.  Id. at 451.  And the Commission identified
traditional indicia of supervisory responsibility as
including the power to hire, discipline, transfer, and
evaluate employees, none of which were possessed by the
repairman in that case.  Id.  The Commission further noted
that there was no evidence that the repairman controlled the
mine or any portion thereof.  Id.  The Commission stated
that if the repairman could be considered supervisory on the
basis of his duty to evaluate a problem and repair it
without supervision, potentially all repair personnel would
fall into the supervisory category.  Id. at 452.

     More recently, in REB Enterprises Inc., supra, the
Commission decided that a leadman on a highwall was not an
agent of the operator where he did not have the authority to
hire and fire employees, did not assign equipment to
employees and was not given any instructions regarding
discipline of employees.  In addition, the Commission noted
that there was no evidence that the leadman was directly
responsible for controlling acts of the miners on the
highwall, that he was responsible for their performance, or
that he was responsible for the safety of miners and for
ensuring their compliance with the mandatory standards.  Id.
at 211-212.

     The facts of  this case are similar in some respects to
those already considered by the Commission.  However, the
instant situation viewed in its entirely, is distinguishable
from prior cases and appears to fall somewhere between those
where agency and supervision were not found and those where
they were.  Anderson assigned specific tasks to the miners
in the loadout area  and he had the authority to tell them
how he wanted the job done and to stop them if he did not
like what they were doing (Tr. 139, 303-304).  On the day of
the accident he told members of the loadout crew what tasks
they should perform (Tr. 108, 139, 247).  However, it was
Reese, the foreman, who decided and told Anderson what work
was to be done each day (Tr. 303).  And if there was a
problem with a miner Anderson, who could not discipline
anyone, went to Reese (Tr. 151, 264).  Anderson could not
change an individual's job or the equipment on the job
without permission (Tr. 282-283).  Also, Reese visited
the loadout area three or four times during the shift to
check on how things were going (Tr. 154, 267, 281).  In
addition, Anderson could not hire, fire or evaluate miners
in the loadout area and he was paid at an hourly rate (Tr.
151, 153-154, 264, 281).  There is no evidence that he
acted or held himself out as the operator's representative
in any capacity or that it was up to him to decide what
action to take to abate citations.  In sum therefore,
Anderson had somewhat more authority than the
individuals in those cases where the Commission has held
there was no agency or imputable negligence.  REB
Enterprises Inc., supra; Whayne Supply Company, supra; U.S.
Coal Inc., supra.  But he did not have the level of
responsibility which the Commission has heretofore held
sufficient to establish that an agency relationship existed.
Ambrosia Coal & Construction Company, supra.

     After careful consideration of the evidence, I find that
Anderson did exercise a certain degree of control over the
loadout area and the miners who worked there.  I further
find, however, that the control which he exercised and the
responsibilities which were given to him were tightly
circumscribed.  He did not decide what work was to be done
and he did not set work priorities.  Although he assigned
specific tasks and stopped work being done improperly, he
did not resolve any disputes occurring on site.  And he was
subject to constant supervision since the foreman visited
the area several times during the shift.  He possessed none
of the indicia traditionally associated with a supervisory
position such the authority to hire, fire, discipline or
evaluate.  The fact that he was paid on an hourly basis
demonstrates that the operator did not look upon him as
member of management.  Under these circumstances, I conclude
that Anderson was not a supervisor and that therefore, his
negligence cannot be imputed to the operator.  I further
conclude that although Anderson had some authority, it
cannot fairly be said that he was an agent in control of a
mine or part of a mine and that therefore, his unwarrantable
failure conduct cannot be attributed to the operator.
Finally, since the general practice was to set the brake and
because the brake was initially set in accordance with that
practice, the operator was not negligent.

Remaining Criteria

     The Commission has held that each Commission judge must
expressly consider and make findings with respect to all six
criteria.  In addition, the Commission has made clear that
the judge bears the responsibility of insuring that the
record is sufficient to allow him to discharge his
responsibilities.  Sec. Labor on behalf of Kenneth Hannah,
et al. v. Consolidation Coal Co., 20 FMSHRC 1293, 1302
(Dec. 15, 1998).  If the record or the judge's decision is
found wanting, reversal or remand will result.  Id.

     As set forth above, the parties have stipulated to good
faith abatement.  I accept the stipulation and find that the
operator demonstrated good faith in attempting to achieve
rapid compliance after notification of the violation.

     As set forth above, the parties have stipulated to the
quarry's number of employees and annual tonnage.  I accept
the stipulation and based thereon find that the operator is
large in size.

     As set forth above, the parties have stipulated
to the quarry's accident frequency rate and the accident
frequency rate for the industry.  I accept the stipulation
and find that the operator has a very good history of
previous violations.

     As set forth above, the parties have stipulated that
imposition of a penalty will not affect the operator's
ability to continue in business.  I accept the stipulation
and find that imposition of a penalty will not affect the
operator's ability to continue in business.
Penalty

     After careful consideration of the evidence of record and
my findings and conclusions based thereon and with due regard
for the six criteria, I determine that a penalty of $12,500
for Citation No. 4551641 and a penalty of $2,000 for Order
No. 4551642 are appropriate.

     The post-hearing briefs filed by the parties have been
reviewed.  To the extent the briefs are inconsistent with
this decision, they are rejected.

                                Order

     It is ORDERED that in accordance with stipulation 4 the
finding of a violation for Citation No. 4551643 is AFFIRMED.

     It is further ORDERED that a penalty of $267 be ASSESSED
for Citation No. 4551643.

     It is further ORDERED that the finding of a violation
for Citation No. 4551641 is AFFIRMED.

     It is further ORDERED that the significant and substantial
designation for Citation No. 4551641 is AFFIRMED.

     It is further ORDERED that the finding of unwarrantable
failure for Citation No. 4551641 be VACATED.

     It is further ORDERED that Citation No. 4551641 be
MODIFIED from a 104(d)(1) citation to a 104(a) citation
and to reduce negligence from high to ordinary.

     It is further ORDERED that a penalty of $12,500 be
ASSESSED for Citation No. 4551641.

     It is further ORDERED that the finding of a violation
for Order No. 4551642 be AFFIRMED.

     It is further ORDERED that the significant and
substantial finding for Order No. 4551642  be AFFIRMED.

     It is further ORDERED that the finding of unwarrantable
failure for Order No. 4551642 be VACATED.

     It is further ORDERED that Order No. 4551642 be MODIFIED
from a 104(d)(1) order to a 104(a) citation and to reduce
negligence from high to none.  It is further ORDERED that a
penalty of $2,000 be ASSESSED for Order No. 4551642.

     It is further ORDERED that the operator PAY a total penalty
of $14,767 within 30 days of the date of this decision.


                               Paul Merlin
                               Chief Administrative Law Judge


Distribution:  (Certified Mail)

Leslie John Rodriguez, Esq., Fran Schleicher, Esq., Office
of the Solicitor, U. S. Department of Labor, 61 Forsyth
Street, S.W., Room 7T10, Atlanta, GA 30303

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, NW.,
Washington, DC 20037-1350

/gl