<DOC>
[DOCID: f:y94-3m.wais]

 
TILCON CONNECTICUT, INC.
January 30, 1996
YORK 94-3-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           January 30, 1996

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. YORK 94-3-M
               Petitioner       : A. C. No. 06-00022-05509
          v.                    :
                                : New Britain Quarry & Mill
TILCON CONNECTICUT, INC.,       :
               Respondent       :
                                :
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. YORK 95-17-M
               Petitioner       : A. C. No. 06-00022-05512 A
          v.                    :
                                : New Britain Quarry & Mill
EDWARD SAKL                     :
  Employed by TILCON            :
  CONNECTICUT, INC.,            :
               Respondent       :
                                :
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. YORK 95-18-M
               Petitioner       : A. C. No. 06-00022-05511 A
          v.                    :
                                : New Britain Quarry & Mill
JOSEPH DONAROMA                 :
  Employed by TILCON            :
  CONNECTICUT, INC.,            :
               Respondent       :


                             DECISION

Appearances:  Robert A. Cohen, Esq., Office of  the Solicitor, 
              U.S. Department of Labor, Arlington, Virginia, for
              Petitioner;
              Michael T. Heenan, Esq., Smith, Heenan and Althen,
              Washington,   D.C.   and  Carl  R.  Ficks,   Esq.,
              Eisenberg,  Anderson,  Michalik   &   Lynch,   New
              Britain, Connecticut, for Respondents.

Before:  Judge Hodgdon

     These  consolidated  cases  are  before  me on petitions for
assessment of civil penalty filed by the Secretary of  Labor,  
acting through his Mine Safety and Health Administration (MSHA),
against Tilcon Connecticut, Inc., Edward Sakl and Joseph DonAroma
pursuant  to  Sections  105 and 110 of the Federal Mine Safety 
and Health Act of 1977, 30 U.S.C. �� 815 and 820. The petitions
allege that the company violated Sections 56.14105 and 56.14201(b),
30  C.F.R.  �� 56.14105  and 56.14201(b),  of  the  Secretary's  
regulations and that Messrs. Sakl  and  DonAroma, as agents of the
company, knowingly authorized, ordered or carried out the violations.
For the reasons set forth below, I find that the company violated 
Section 56.14201(b), although not as  the result of an "unwarrantable
failure," and that the two agents did not knowingly authorize, order
or carry out the violation.[1] I assess a civil penalty against the
company of $400.00.

    A hearing was held  on  August  1  and 2, 1995, in Hartford,
Connecticut.   Richard  Moreno,   MSHA   Inspector  Richard  R.
Sabourin and MSHA Special Investigator John S. Patterson  testified
for  the  Secretary. Joseph  P. DonAroma, Edward M. Sakl, Jr., 
Raymond Petke,  Stephen  Scarpa,  Darrell  F.  Hotham  and
Joseph A.  Abate  gave  evidence  on behalf of the Respondents.
The  parties also submitted  briefs which I have considered in my
disposition of these cases.

                         FACTUAL SETTING

     Tilcon's  New Britain Quarry and  Mill  is  a  surface  rock
quarry  and  crushing  plant.  It  uses  a large, multiple  belt
conveyor system to transport materials within the site property.
The system is operated by a switch house operator located in the
switch house.  Not all of the  conveyor  belts are visible  to 
the switch house operator.  When  the entire system  is  first
started in the morning, a siren alarm is activated  by  the  
operator before starting the belts.

     On  the  morning of June 23, 1993, the No. 18 unit  conveyor
belt  was  stopped  by Joseph DonAroma, the quarry superintendent,
so that the rock chute feeding the belt could be unblocked. DonAroma
removed  the material  blocking  the chute and placed it on the
catwalk next to the belt  where Richard Moreno and Steve Scarpa
threw it off onto the ground.

     When DonAroma finished unblocking the chute, he stepped onto
the catwalk near the ladder  leading to the ground and stated "we're
all set here."   (Tr.  191.)  He then  told  Moreno  to  put  the 
door back on the chute.    At   the  same  time,  Edward  Sakl, a
supervisor at the  quarry, signaled with his hands to Raymond Petke,
the  recrush plant operator, who was located in a building  near 
the  top  of  the conveyor belt, to start the belt.  Petke called 
by  telephone  to  Darrell  Hotham,  the  switch house operator, 
and told him to start the belt.

     In the meantime, Moreno had picked up the chute door and was
standing on the conveyor belt to place the door on the chute. The
siren  alarm  was not activated before the belt started. When the
belt  started, Moreno  was thrown off of his feet and carried  by
the belt  into the discharge chute. He suffered a broken shoulder,
sprained  ankle  and  multiple abrasions on his back and legs.

     Inspector Sabourin was called to  investigate  the accident.
As  a  result  of  his  investigation,  he  issued Citation  No. 
4079379  on  June 25, 1993.[2]  The citation was issued pursuant 
to Section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1),[3]  and
alleges that  Section  56.14201(b) of the Regulations  was
violated because:  "A nonfatal accident occured [sic] on 6/23/93.
An employee was  injured  when the unit  18  conveyor  he  was
working  from was started.   The  audible  warning  device  to 
sound startup was not operated. This is an unwarrantable failure."
(Govt. Ex. 2.)

                FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Section 56.14201(b) of the Regulations requires that:

          When the entire length  of  the  conveyor  is  not
     visible  from  the  starting  switch,  a  system  which
     provides  visible or audible warning shall be installed
     and operated  to warn persons that the conveyor will be
     started.  Within 30 seconds after the warning is given,
     the conveyor shall be started or a second warning shall
     be given.

The parties disagree as to what this regulation requires.

     In his brief, the  Secretary  argues  that  "[t]his language
must be read to require some type of automatic or  manual device,
which  has  to  be  operated  as part of the belt system  and  is
capable of giving the same identical  warning each and every time
the belt is started."  (Sec. Br. at 6.)   On  the other hand, the
Respondents  maintain  that  the  regulation does not  require  a
"device"  and submit that "[a]n administrative  system  can  lend
itself to the  requirements of the standard just as well as might
a piece of hardware."  (Resp. Br. at 42.)

     Although Tilcon  has  a  warning  siren which it sounds when
first starting all of the belts in the morning,  it is undisputed
that the siren was not used prior to Moreno's accident  and  that
it  is  not  "company policy or practice . . . to sound the plant
wide siren" to  restart an individual conveyor belt that has shut
down  during  the  day.    (Resp.   Br.  at  40.)   However,  the
Respondents  assert  that there is a "system  installed"  at  the
quarry that complies with the regulation.  That system is that an

     individual belt start  up is under the specific control
     of a particular person on scene who personally examines
     the  entire length of the  belt  for  safety  and  then
     alerts  everyone  that  the  belt will start [by saying
     "we're all set here" or similar  words],  at which time
     the signal is relayed to the switch house and  the belt
     is started immediately.

(Resp. Br. at 41.)

     I  conclude that a mechanical warning system is required  by
the regulation.  Since the regulation does not specifically state
that a mechanical  warning system is required, this conclusion is
reached by evaluating  it "in light of what a `reasonably prudent
person, familiar with the  mining  industry  and  the  protective
purpose of the standard, would have provided in order to meet the
protection intended by the standard.'" Ideal Cement Co.,
12 FMSHRC 2409, 2415 (November 1990)(citations omitted).

     Clearly,  the purpose of the standard is to warn persons  on
or around the conveyor  that  the  belt  is  going  to be started
within  30  seconds.  Tilcon's "system" does not carry  out  this
purpose.  While  the  supervisor's statement "we're all set here"
may warn those within the  sound of his voice, it would not alert
anyone on or around the belt,  but  not  within  the sound of his
voice,  that  the  belt was about to start up.  In addition,  the
rule requires a second  warning  to  be given before start up, if
the belt is not started within 30 seconds.   Since  hand signals,
telephone  calls  and three separate people are involved  in  the
Tilcon "system," there  would  be  no  way  to  comply  with this
requirement.

     Furthermore, the use of the word "installed" implies the use
of  a  mechanical  device.   "Installed"  is  not  defined in the
Regulations,   however,   Webster's   Third   New   International
Dictionary 1171 (1986) defines it as:

          "1a  :  to  place  in  possession  of an office or
     dignity by seating in a stall or official  seat  b : to
     place in an office, rank or order : INDUCT . . . 2 : to
     introduce  and  establish  (oneself  or  another) in an
     indicated place, condition or status . . .  3  : to set
     up for use or service."

Obviously, only the third definition would apply in this case.[4]
As  to  what  that  means,  the  dictionary  gives  the following
examples: "the electrician installed the new fixtures"  and  "had
gas  heating  installed."  Id.  Plainly, "installed" used in this
context applies to inanimate objects rather than people.

     Finally, the  MSHA  Program  Policy  Manual,  Vol.  IV, Part
56/57, 55d-55e (04/01/92), in discussing the requirements of this
section, states that the standard "has been uniformly interpreted
by  MSHA,  and  its  predecessor  organizations,  to include both
automatic  and  manual conveyor alarm systems."[5]  An  automatic
system is one "designed  to first activate a start-up horn before
the start-up system of the  conveyor."   Id.   "A manual conveyor
alarm  system  is  one  which  actuates  an audible alarm  by  an
independent  switch  and uses a separate switch  to  actuate  the
conveyor."  Id.  Nowhere is a non-mechanical system discussed.

     Taking all of these  factors  into consideration, I conclude
that  a  reasonably  prudent  person, familiar  with  the  mining
industry,  would  conclude that Section  56.14201(b)  requires  a
mechanical warning system to achieve its purpose.  Tilcon did not
have such a system.   Consequently,  I  conclude that the company
violated the regulation.

Significant and Substantial

     The parties stipulated at the hearing that the violation was
"significant and substantial."  (Tr. 5-6.)  Even if they had not,
it is evident from the injuries suffered  by  Mr. Moreno that the
violation  was  "significant and substantial."  Therefore,  I  so
conclude.

Unwarrantable Failure

     The violation  was alleged to be an "unwarrantable failure."
The  Commission  has  held   that   "unwarrantable   failure"  is
aggravated conduct constituting more than ordinary negligence  by
a  mine  operator  in  relation to a violation of the Act.  Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio   Coal   Co.,  9  FMSHRC   2007,   2010   (December   1987).
"Unwarrantable  failure  is  characterized  by  such  conduct  as
`reckless disregard,' `intentional misconduct,' `indifference' or
a   `serious  lack  of  reasonable  care.'  [Emery]  at  2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)."  Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).

     The  evidence  does  not support a finding of "unwarrantable
failure" in this case.  Tilcon's  conduct  with  regard  to  this
violation  was  not  aggravated.   On  the contrary, the evidence
shows that the quarry and plant had been  in existence for almost
30 years and no question had been raised about  the alarm system.
The  company's Assessed Violation History Report for  the  period
January  1,  1982,  through  May  26,  1994,  indicates  only  15
violations,  including the two involved in this case.  (Resp. Ex.
R.)  None of the  remaining  violations  involve the belt system.
This evidence corroborates Joseph Abate's,  president  of Tilcon,
testimony that the company strives to comply with MSHA policy  as
well as any matter brought to its attention by MSHA inspectors.

     When   examined   in   view   of  Tilcon's  excellent  prior
enforcement  history  and  the fact that  its  alarm  system  had
apparently  not been questioned,  I  conclude  that  the  company
reasonably believed in good faith that its procedure for starting
individual belts  was the safest method of complying with Section
56.14201(b).  There  is  no evidence that it acted with "reckless
disregard,"   intentionally    violated   the   regulation,   was
indifferent or exhibited "a serious  lack  of  reasonable  care."
Accordingly,  I  conclude  that although its belief was in error,
Tilcon  did not unwarrantably  fail  to  comply  with  the  rule.
Cyprus Plateau  Mining Corp., 16 FMSHRC 1610, 1615 (August 1994);
Utah Power and Light Co., 12 FMSHRC 965, 972 (May 1990); Florence
Mining Co., 11 FMSHRC 747, 752-54 (May 1989).  In view of this, I
also conclude that  the  degree  of negligence for this violation
should be reduced from "high" to "moderate."

Joseph DonAroma and Edward Sakl

     The Secretary has alleged that DonAroma and Sakl "knowingly"
violated  Section  56.14201(b) and are  personally  liable  under
Section 110(c) of the  Act,  30 U.S.C. � 820(c).[6]  Based on the
evidence, I find that they did  not  "knowingly"  carry  out  the
violation within the meaning of the Act.

     The  Commission  set  out the test for determining whether a
corporate  agent has acted "knowingly"  in  Kenny  Richardson,  3
FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982),
cert. denied,  461  U.S. 928 (1983), when it stated: "If a person
in a position to protect  safety  and  health fails to act on the
basis of information that gives him knowledge  or  reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the  statute."
The Commission has further held, however, that to violate Section
110(c), the corporate agent's conduct must be "aggravated,"  i.e.
it must involve more than ordinary negligence.  Wyoming Fuel Co.,
16 FMSHRC 1618, 1630 (August 1994); BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1245 (August 1992); Emery Mining Corp.,
9 FMSHRC 1997, 2003-04 (December 1987).

     Just as the evidence indicates that Tilcon did not engage in
aggravated  conduct,  I  conclude  that neither DonAroma nor Sakl
engaged  in  aggravated  conduct.  They  were  following  a  long
standing company procedure.   There  is  no  evidence  that  they
directed  the  belt start-up knowing that Moreno was on the belt,
or even had reason  to  believe that he might climb onto the belt
to  replace  the  chute  door.[7]   The  two  supervisors  had  a
reasonable belief that they  were  operating  in a safe manner in
compliance with the regulation.  Consequently,  I  conclude  that
they  did  not  "knowingly" violate Section 56.14201(b).  Wyoming
Fuel, supra.

                     CIVIL PENALTY ASSESSMENT

     The  Secretary has proposed a civil penalty of $1,200.00 for
this  violation.   However,   it   is   the  judge's  independent
responsibility to determine the appropriate  amount of a penalty,
in accordance with the six criteria set out in  Section 110(i) of
the Act.  Sellersburg Stone Co. v. Federal Mine Safety and Health
Review Commission, 736 F.2d 1147, 1151 (7th Cir. 1984).

     In  connection  with  the  six  criteria,  the parties  have
stipulated  that  the  company  has  a  low  history of  previous
violations  and  that  the  company  demonstrated good  faith  in
abating the violation.  (Tr. 5-6.)  I  note  from  the  pleadings
that  the  New Britain Quarry and Mill is a small to medium  size
operation and  that  Tilcon  is  a medium size company.  Since no
evidence  has been presented to show  that  payment  of  a  civil
penalty would  adversely  affect  Tilcon's  ability  to  stay  in
business, I find that payment of a penalty will not so affect the
company.   Id.  at  1153  n.14.  Finally, while the violation had
serious consequences, the negligence  on  the part of the company
was   no   more   than   moderate.   Taking  all  of  this   into
consideration,  I  conclude   that   a   penalty  of  $400.00  is
appropriate.

                              ORDER

     The civil penalty petition concerning  Citation  No. 4079378
and  the  civil penalty petitions against Edward Sakl and  Joseph
DonAroma are  DISMISSED.   Citation  No. 4079379 is MODIFIED to a
Section  104(a),  30 U.S.C. � 814(a), citation  by  deleting  the
"unwarrantable failure"  designation  and  reducing the degree of
negligence to "moderate" and is AFFIRMED as modified.

     Tilcon Connecticut, Inc. is ORDERED TO  PAY  a civil penalty
of  $400.00  within  30  days  of the date of this decision.   On
receipt of payment, this proceeding is DISMISSED.


                                T. Todd Hodgdon
                                Administrative Law Judge


Distribution:

Robert A. Cohen, Esq., Office of  the  Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA  22003
(Certified Mail)

Michael  T. Heenan, Esq., Smith, Heenan &  Althen,  1110  Vermont
Avenue, NW., Suite 400, Washington, DC  20005 (Certified Mail)

/lt


**FOOTNOTES**

     [1]:  In  the  cover  letter  to  his brief, counsel for the
Secretary  stated  that  "the  Secretary  has  decided  that  the
evidence does not support a violation of 30  CFR  56.14105  . . .
and   will   vacate  Section  104(d)(1)  Citation  No.  4079378."
Therefore, that  citation  is  no  longer  before  me.  The civil
penalty petitions concerning it will be dismissed in the order at
the close of this decision.

     [2]: The citation was an order when issued, however, because
the  citation  preceding it has been vacated by the Secretary  it
becomes a citation.   See  infra  n.3  for the chain of 104(d)(1)
citations and orders.

     [3]: Section 104(d)(1) provides:

          If, upon any inspection of a coal  or  other mine,
     an  authorized  representative  of the Secretary  finds
     that there has been a violation of any mandatory health
     or safety standard, and if he also  finds  that,  while
     the  conditions  created by such violation do not cause
     imminent danger, such  violation  is  of such nature as
     could significantly and substantially contribute to the
     cause  and  effect  of a coal or other mine  safety  or
     health hazard, and if  he  finds  such  violation to be
     caused by an unwarrantable failure of such  operator to
     comply  with such mandatory health or safety standards,
     he shall  include such finding in any citation given to
     the operator  under  this  Act.   If,  during  the same
     inspection  or  any subsequent inspection of such  mine
     within 90 days after  the issuance of such citation, an
     authorized  representative   of   the  Secretary  finds
     another  violation of any mandatory  health  or  safety
     standard and  finds such violation to be also caused by
     an unwarrantable failure of such operator to so comply,
     he  shall  forthwith   issue  an  order  requiring  the
     operator to cause all persons  in  the area affected by
     such  violation, except those persons  referred  to  in
     subsection   (c)  to  be  withdrawn  from,  and  to  be
     prohibited from entering, such area until an authorized
     representative  of  the  Secretary determines that such
     violation has been abated.

     [4]: The Respondents argue  that  the second definition
covers  its  "system,"  however,  the examples  of  the second 
meaning  given  in the dictionary,  "installing  himself  in  the 
big  chair   before   the  fire"  and "installed  his  sister  as
secretary,"  refute   that suggestion.

     [5]:  The  Program Policy Manual was not offered at the
hearing.  Counsel  for the Secretary has attached it to his brief
and requested  that  judicial notice be taken of  it.  The 
Respondents have not  objected,  nor  does there  appear  to  be
any  reason why it should not be taken.  Accordingly, I will take
judicial notice of the manual and consider it.

     [6]:  Section  110(c)  provides   that   "[w]henever  a
corporate  operator  violates  a  mandatory  health  or safety 
standard . . . any director, officer or agent of such  corporation 
who knowingly authorized, ordered  or carried  out  such  violation 
. . . shall be subject to the same civil penalties . . . that may
be imposed upon a person under subsections (a) and (d)."

     [7]:  Every witness,  except Moreno, testified that the
chute door was commonly  replaced while standing on the catwalk,
frequently while  the  belt  was  running.  In view  of this and
Moreno's lawsuit against the  company for  his injuries, I find
that  his  self-serving testimony on this point is not credible.