<DOC>
[DOCID: f:y9476rm-2.wais]

 
ROCK OF AGES CORPORATION
November 3, 1995
YORK 94-76-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           November 3, 1995

ROCK OF AGES CORPORATION,     : CONTEST PROCEEDINGS
               Contestant     :
            v.                : Docket No. YORK 94-76-RM
                              : Citation No. 4282251; 5/20/94
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      : Docket No. YORK 94-77-RM
  ADMINISTRATION (MSHA),      : Order No. 4282252; 5/20/94
               Respondent     :
                              : Docket No. YORK 94-78-RM
                              : Order No. 4282253; 5/20/94
                              :
                              : Docket No. YORK 94-79-RM
                              : Order No. 4282254; 5/20/94
                              :
                              : Docket No. YORK 94-80-RM
                              : Order No. 4282255; 5/20/94
                              :
                              : Docket No. YORK 94-81-RM
                              : Order No. 4282256; 5/20/94
                              :
                              : Docket No. YORK 94-82-RM
                              : Order No. 4282257; 5/20/94
                              :
                              : Docket No. YORK 94-83-RM
                              : Order No. 4282258; 5/20/94
                              :
                              : Rock Of Ages Lite Side
                              : Mine ID 43-00024
                              :
SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      : Docket No. YORK 95-55-M
               Petitioner     : A.C. No. 43-00024-05518
          v.                  :
                              : Rock of Ages Lite Side
ROCK OF AGES QUARRIES, INC.,  :
  A/K/A ROCK OF AGES CORP.,   :
               Respondent     :
                               DECISION

Appearances:  Henry Chajet, Esq., Patton Boggs, L.L.P., 
              Washington, D.C., and M. Shane Edgington, Esq.,
              Patton Boggs, L.L.P., Denver, Colorado, for
              the Contestant/Respondent;
              David L. Baskin, Esq., Office of the Solicitor,
              U.S. Department of Labor, Boston, Massachusetts,
              for the Respondent/Petitioner.

Before:  Judge Feldman

     These consolidated contest and civil penalty proceedings
are before me as a result of a petition for civil penalty 
filed by the Secretary of Labor pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977 (the Act), 30 
U.S.C. � 801 et seq.  These  proceedings  concern a 104(d)(1)
citation and seven 104(d)(1) orders  that  were issued  as a
result of the Mine Safety and Health Administration's (MSHA's)
accident investigation of the May 20, 1994, death of Michael 
Bassett, a Rock of Ages (ROA) quarryman.  Bassett, a channel
burner  operator  at  ROA's  Smith  Quarry  in  Graniteville,
Vermont, was killed when his torch ignited pyrodex blasting
material.[1]

     Prior to the  hearing, the  Secretary  moved  to  vacate
Order Nos. 4282252, 4282253, 4282254 and 4282258. The petition
seeks a total civil penalty of $135,000 for remaining 104(d)(1)
Citation No. 4282251 and 104(d)(1) Orders Nos. 4282255, 4282256
and 4282257.

     The hearing was conducted from January 10 through January 
13, 1995, in Boston, Massachusetts, and, from April 25 through 
April 28, 1995, in Montpelier, Vermont. On July 28 and October 
19, 1995, ROA filed unopposed Motions to Correct a total of 
approximately 540 errors in the transcript of these proceedings.
However,  ROA  has  not  alleged  any  significant  substantive 
transcript errors in its post-trial brief. I find the transcript
to be substantially accurate, particularly with respect to the 
transcript  pages  referenced  in  this  decision.  Accordingly, 
ROA's Motions to Correct are granted with the exception of any
requested corrections that are substantively inconsistent with
the transcript pages discussed and cited herein.

     ROA is a granite manufacturing company that is subject to
the Act.  ROA is a large operator in that it has approximately
300 employees and annually produces approximately 1.2 million
cubic feet of granite.  (Tr.II at 453-55; ROA Proposed Findins
at p.2).[2]  The parties' post-hearing briefs and replies are
of record.

      Statement of the Case

     ROA's Smith Quarry is a solid massive  granite  formation 
where blocks of stone, called benches, are removed by quarrying
in a downward, fairly  cubicle fashion.  Thus,  the base  of a
quarried (removed)  bench becomes the top of the  bench to be
quarried below.  A typical bench is approximately 40 feet wide,
35 feet deep and 16 feet high.

     Benches are separated by a channel burner operator who
proceeds with a torch up one side of the bench, along the
back, and then down the other side to create the bench.  After
channels are burned to separate the bench on the sides and in
the rear, the bench is separated from the quarry floor by
blasting material that is loaded into lift holes drilled every
six inches along the base of the bench at its face.

     Typical lift holes are 1-7/8 inches in diameter and
approximately 32 feet long.  When a lift (blast) is clean, the
top half of the lift hole becomes part of the lifted bench,
while the lower half of the hole remains at the surface at the
top of the next bench to be quarried.  If the lift is not
clean, caprock may remain in place at the surface after the
bench is removed with the lift hole intact and the possibility
of explosives inside.

     ROA routinely used a continuous charge of primacord or
seismic cord as its lift hole blasting agent prior to 1993. 
Beginning in February 1993, ROA departed from its usual blasting
procedure and substituted pyrodex bags for blasting cord in
several shots in February through July 1993.  The pyrodex bags
were separated at the front, middle and rear of the loaded
lift holes without any connecting ignition or detonating
agents.  The blast procedure contemplated that the flame and
heat from each of the pyrodex bags at the mouth (front or
collar) of each loaded lift hole would ignite the center and
rear bags in sequence.

     On Friday, May 20, 1994, channel burner operator Bassett
was killed when his torch ignited pyrodex concealed in caprock
as a result of misfires that occurred in June 1993.  Bassett
had been burning a channel at the rear of the bench being
quarried.  Quarry operations were suspended immediately after
Bassett's death, at which time the post-accident investigation
revealed, in addition to the fatal charge, two bags of unexploded
pyrodex within two feet of Bassett's torch path.  Ultimately,
MSHA determined there were a total of 22 bags of unexploded
pyrodex in the vicinity of the previously quarried June 22,
1993, "death bench."  A total of 40 unexploded pyrodex bags,
including those found in the "death bench," were found in
ROA's Adams and Smith Quarries which are in the Barre complex.

     MSHA Inspector Edward Blow arrived at the Smith Quarry on
the afternoon of May 20, 1994, to secure the scene and open 
the investigation.  Steven Luzik, who is the Chief of MSHA's
Engineering and Testing Division at the Technical Support
Center in Tridelphia, West Virginia, Supervisory Inspectors
Donald Fowler and Michael Music, and Inspector Guy Constant
conducted the accident investigation from Monday, May 23,
1994, through the closeout conference on June 29, 1994.

     As a result of MSHA's accident investigation, the Secretary
seeks to impose penalties on ROA  for four  alleged violations
of mandatory safety standards in Subpart E of Part 56, 30 C.F.R.
Part 56, which govern hazards associated with explosives. Namely,
ROA was cited for an  inadequate  June  22,  1993,  post-blast 
inspection in violation of 30 C.F.R. � 56.6306(g); permitting
work other than work necessary to remove a misfire in the
affected blast area in violation of 30 C.F.R. � 56.6311(b);
permitting an open flame within 50 feet of explosive material
in violation of 30 C.F.R. � 56.6904; and inadequately trained
blasting personnel in violation of 30 C.F.R. � 56.6300(a).


**FOOTNOTES**

     [1]: The Smith Quarry is a component of Rock of Ages' Lite
Side Quarry which is the subject mine site in this proceeding.

     [2]: Transcript references are cited as "Tr.I" and "Tr.II"
for the first and second phases of the trial, respectively.


     At the hearing the Secretary called Glenn Dean Barrett 
of the Hodgdon Powder Company, ROA's pyrodex supplier, and
investigating officials Blow, Luzik, Fowler and Music.  ROA
relied upon the testimony of its Chief Engineer, Donald Murray,
and ROA employees David Gomo, a channel burner operator, and 
Arnold Bolio, a front-end loader operator.  ROA also called
Dr. Chapman Young, a specialist in Geophysics and Material
Science Engineering, as an expert witness.  However, ROA did
not call Earnest Batchelder, the derrick operator who found
the critical four pyrodex misfires on or about July 1, 1993,
Richard "Bud" Reynolds, the powderman who loaded those
misfires, and Earl Kelty, the foreman who supervised Reynolds.

      Background

     ROA is a granite quarry manufacturing company with
approximately 300 employees.  The Smith Quarry, the site of
the accident, is a solid massive formation in the Barre
complex and has approximately 50 to 75 quarrymen.  Quarrying
proceeds in a fairly cubical fashion.  The walls stay fairly
straight.  The quarry size remains relatively constant as the
process proceeds downward, it does not taper.  There are
typically from five to seven levels of operation at the
quarry.  At these levels, a total of approximately a dozen
benches (individual blocks of stone) are being worked at any
given time.

     The first step in the stone removal process is the channel
burning operation.  The channel burner operates the channel
burning torch which creates thermal stresses causing the stone
to break off.  The channel burner proceeds up one side of the
bench, along the back and then down the other side to create a
channel, approximately six inches wide, on the sides and rear
of the bench.  Benches vary in size.  A typical bench is
approximately 40 feet wide, 35 feet in depth and 16 feet in
height.  (Ex. C-2).  The channel burning process is completed
in approximately 15 days.

     After channel burning, lift holes are drilled at the base 
of the bench. The lift holes are about 1-7/8 inches in diameter,
are drilled approximately six inches on center, and proceed
from the base of the open face back into the bench, stopping
about one foot from the channel in the back of the bench.  The
drill holes are approximately one foot from the base of the
quarry floor.  The lift hole drilling process is completed by
the 26th day of the bench quarrying process.

     After the lift holes are drilled, a line of vertical holes 
are drilled every 5-1/2 feet in the top of the bench to create
vertical slabs of stone.  The vertical holes are drilled four
inches apart and are drilled down to within a foot of the lift
holes, but they do not intersect.  The vertical drill holes
eventually create slabs that are about 5-1/2 feet in width. The
vertical holes are completed approximately 34 days into the
process.

     After all the holes are drilled, some, but not all, of the
lift holes in the bench are loaded by the powderman and his
assistant using various loading patterns.  For example, every
third or fourth lift hole may be loaded with explosives.  With
the exception of approximately seven pyrodex shots that
occurred from February to July 1993, ROA used seismic cord
which is continuous detonating cord placed in various lift
holes connected by a trunk line ignited by blasting caps.
Following the blast, the powderman, his assistant and the
foreman go to the face of the bench to conduct an examination
for a successful lift and to look for any evidence of a
misfire.

     In conducting a post-blast examination, the powdermen look
for: (1) proper cracking from lift hole to lift hole; (2) signs 
of discoloration  from  blast  residue  on  loaded  holes;  and
(3) any  indication  of  non-initiated  blasting  materials  or
other abnormalities.  They also observe the top  of  the  bench
to see  if  the  bench  shifted  in  the  blast.  The  blasting
process is completed approximately 35 days into the process.

     After blasting, the bench is quarried by separating slabs
approximately 5-1/2 feet in width, by jack hammering a series of
shims and wedges into the vertical holes in the top of the
bench.  The 5-1/2 foot slabs are then split from the bench by a
front-end loader with a tipping boom used to topple each line
down.  As each line is toppled, fresh stone is exposed beneath
and behind the line.  The powdermen and quarrymen then examine
this newly exposed stone in the same manner they examined the
face.

     The toppled slabs are split into smaller blocks 5'6" by 
5'6" by the height of the bench. These smaller blocks are then
transported by the front-end loader to an area underneath one
of the derricks where the block is hoisted out of the quarry.
The process of splitting off slabs and reducing the slabs to
smaller blocks is repeated until the entire bench is quarried.
During this 10 to 12 day period following blasting during
which the stone is removed, i.e., the post-blast inspection
period, the quarrymen continue to examine the freshly exposed
stone for misfires or other safety hazards.  (See Tr.II at 15-
16).  The entire bench is removed approximately 10 to 12 days
after the blast and 47 days after the initiation of channel
burning work on the bench.

                   Findings of Fact and Conclusions

     As noted above, ROA routinely used primacord or seismic
cord as the blasting agent at the Smith Quarry. Seismic cord is
unlikely to misfire if the blasting caps and trunk line ignite
at the mouth of the loaded lift holes and detonate the cord
because it is a continuous cord of blasting material.  The
greatest concern is the potential for a break in the seismic
cord by a sharp piece of rock when the cord is unrolled and
shoved into the lift hole.  A break in the cord can usually
be detected by the powderman because the cord would stop
unrolling before it approached the rear of the bench. (Tr.I
at 233).

     The Hodgdon Powder Company is a manufacturer of pyrodex.
Pyrodex is often referred to "as a replica of black powder"
and is similar to black powder in ingredients. (Tr. I at 128).
Black powder is a mixture of charcoal, sulfur and potassium 
nitrate. Pyrodex has all of the ingredients of black powder 
plus potassium perchlorate and binders and burning rate 
modifiers.

     Pyrodex is a propellant explosive as contrasted with 
black powder which is a detonating explosive.  A propellant
explosive burns generating gas and energy.  A detonating
explosive generates gas and energy as well as shock energy
through detonation.  (Tr.I at 132).  The Department of
Transportation (DOT) classifies black powder as a Class A
Explosive and pyrodex as a Class B Explosive. (Tr.I at 128).

     In 1986, ROA was contacted by Glenn Dean Barrett,
Vice-President of the Hodgdon Powder Company.  Barrett
encouraged ROA to use pyrodex as an alternative to seismic
cord or other black powder blasting agents.  Barrett stressed
that pyrodex would have rock fracturing properties that were
beneficial to the quarrying process because it could split
dimensional stone without radial fracture.  (Tr. I at 144).
Barrett visited ROA's Adams, Smith, and Rock of Ages quarries,
where he performed a total of four pyrodex test shots with
Ernie Silly (phonetic) of the Rock of Ages Quarry, Jumbo
Harris, foreman of the Adams Quarry, and an individual
identified as "JR", foreman of the Smith Quarry.  Barrett did
not recall meeting Richard "Bud" Reynolds or Earl Kelty, the
powderman and foreman, respectively, who conducted pyrodex
shots in 1993 at the Smith Quarry.  (Tr.I at 136, 149).

     Barrett testified that he stressed the need for stemming
lift hole collars with paper or rags to ensure the holes were
pressurized and gas tight.  Pressurization would ensure proper
lift because there would be no loss of gas energy.  (Tr.I at
141, 147).  Although the pyrodex bag placed at the mouth of
the lift hole is ignited by an electric squib, pressure
creating a flow channel is also essential to ignition of bags
placed in the middle and rear of the lift holes as these bags
are not connected by any fuse or other ignition device. (Tr.I
at 142). Ultimately, ROA Quarry Superintendent Larry Beede
informed Barrett that ROA was not interested in pyrodex
because the stemming process required to pressurize the lift
holes was too labor intensive. (Tr.I at 147-48).

     Barrett participated in a subsequent pyrodex test shot at
the Smith Quarry in 1987, at which time he also did not recall
meeting Reynolds or Kelty.  (Tr.I at 149).  This shot was used
to demonstrate a mechanical plug that addressed ROA's concerns
about  manual  stemming.  However,  the  test  shot  did  not
adequately  split  the  rock.  Consequently,  Beede  informed
Barrett that ROA was no longer interested in using pyrodex.
(Tr.I at 149-50).

     In January  1993, Barrett  was  advised  by  Beede and
Controller Paul Hutchins that ROA was interested in resuming
their experimentation with pyrodex.  (Tr.I at 150).  Barrett
sent ROA information concerning the proper pyrodex pre-blast,
blasting and post-blasting  procedures.  The information
addressed hole cleaning and testing, loading patterns, blast
initiation and hygroscopicity (pyrodex's water absorption
qualities that interferes with ignition).

     With respect to his views on proper loading, at trial, 
Barrett was reluctant to admit that he had recommended that the
pyrodex bags be spaced in the lift holes, claiming that bags
were touching each other in the 1987 test shot.  (Tr.I at 171-
72).  However, Barrett ultimately conceded on cross-
examination that he believed pyrodex bags spaced throughout a
30 to 40 foot lift hole could be ignited by a single squib at
the outermost bag, provided there were no obstructions in the
lift hole.  (Tr.I at 174-77, 186).  In fact, Barrett stated he
has not advised pyrodex users to cease spacing pyrodex bags in
lift holes despite Bassett's fatality.  (Tr.I at 176).
Finally, Barrett's paper on "Splitting Granite Using Pyrodex"
presented to the Society of Explosive Engineers in February
1987, and provided to ROA in January 1993, notes that "powder
had to be placed in more than one section of the hole."  (Ex.
R-4, at p.3)  In summary, the evidence reflects  Barrett's
recommended blasting procedure involved the placement of
separated pyrodex bags in pressurized lift holes that were
unconnected by any detonating cord or other ignition device.
During the period February through July 1993, ROA used
separated bags of pyrodex in several blasts at its Smith and
Adams Quarries by using an electric squib to ignite the
outermost bag in each loaded lift hole.  (Tr.I at 593-94).
ROA had been operating the quarry for over 90 years.  (Tr.II
at 458).  However, these were the only production uses of
pyrodex as a blasting agent.  Consequently, ROA Chief Engineer
Donald Murray, Engineer Doug Goldsmith and Foreman Kelty
informed MSHA accident investigators Fowler and Constant that
pyrodex blasting reports were kept because these pyrodex shots
were experimental rather than routine. (Tr.I at 564, 569, 593).
The blasting reports detailed the bench's quarry section 
location and dimensions, and identified the loading pattern 
by identifying the lift hole loading pattern and the number 
and spacing of pyrodex bags in each loaded hole. (See Ex. R-7).

     Although blasting reports were made for each pyrodex shot,
ROA Chief Engineer Donald Murray claimed blasting reports for
three pyrodex shots at the Smith Quarry could not be located.
Murray has characterized these "missing report" pyrodex blast
sites  as  "possible  pyrodex  shots"  based  on  witness 
recollections, none of whom were called by ROA at the hearing.
(Ex. C-10 at p.4; see also n.4, infra).  The existing reports
detail pyrodex shots on February 5, 1993 at the U-1 Section of
the Smith Quarry, shots on May 7, May 10 (or May 12), and June
22, 1993, at the U-13 Section  of  the  Smith  Quarry  (where 
Bassett was ultimately killed), and a shot on July 29, 1993,
at the Adams Quarry. (Exs. R-7, R-24, Tr.II at 638-50).

     The June 22, 1993, blasting report reflects that 80 lift
holes, 37 feet in length, were drilled approximately 6 inches
apart at the base of the bench's 42 foot face.  (Ex. R-7).
The report further reflects powderman Richard "Bud" Reynolds,
under the supervision of Foreman Earl Kelty, loaded a total of
52 pounds of pyrodex in 84 bags by placing four bags in each
of 21 holes.  (Tr.I at 567-68).  The four bags in each loaded
hole consisted of one bag at the mouth of the hole, one bag in
the center of the hole, and two bags at the rear.  The rear
bags were placed approximately 32 to 37 feet from the hole's
mouth.  The loading pattern was every fourth hole, i.e., holes
1-4-8-12-16-20-24-28-32-36-40-44-48-52-56-60-64-68-72-76-80).
(Exs. R-7, R-10; Tr.I at 569, 577-78).

     Kelty and Reynolds examined the bench after the blast.
They noted the bench was "tight in front" and that the "back 
lifted good."  (Ex. R-7).  Fowler testified that "tight in 
front" meant the bench did not separate or move as anticipated.
(Tr.I at 582, 638).  On or about July 1, 1993, approximately
seven to ten days following the June 22, 1993, shot, derrick
operator Earnest Batchelder found three or four bags of pyrodex 
that had shaken loose from blocks of granite lifted from the 
quarry floor. (Ex. C-10 at p.5). Batchelder did not observe any
matches or detonators with the bags.  (Ex. R-19).  The pyrodex
misfires were reported to Kelty.  Foreman Kelty noted that
"4 bags [of] powder did not go off" on the June 22, 1993,
blasting report. (Ex. R-7; Tr.I at 579-80).

     Murray testified for ROA that Kelty ordered Reynolds to
wash out the lift holes after Batchelder's find.  However, on
cross-examination, Murray admitted he did not know whether the
holes were first washed in July 1993, after the bags were
found by Batchelder, or after Bassett's fatality.  (Tr.II at
544-45, 564-65).  Inspector Fowler also testified on the
extent of Kelty's efforts to find more misfires.  Fowler
testified he interviewed Kelty on June 1, 1994, shortly after
Bassett's death, in the presence of Murray and ROA Engineer
Doug Goldsmith.  Fowler testified:

     Q:  Did you ask [Kelty] whether four bags of powder had
     been found?

     A:  Yes.

     Q:  And did he respond?

     A:  Yes, he did.

     Q:  What did he say?

     A:  He said yes, that he was aware of four bags that
     had been found.

     Q:  And what did you say to him then?

     A:  Well, the question was to Mr. Kelty is, if he was aware
     of four bags of explosives that was not detonated in the
     6/22/93 shot, why didn't you follow up on those four bags,
     the bags that was (sic) not detonated.

     Q:  And did he respond?

     A:  He did.

     Q:  And what did he say?

     A:  He shrugged his shoulders and said, I forgot.

     Q:  And what did Mr. Goldsmith do at that point?

     A:  Dropped his pencil.  He was sitting directly across
     from him.  (Tr.I at 586-87).

   Fowler also testified that Quarry Superintendent Larry Beede
apparently was also aware, prior to Bassett's death, that pyrodex
misfires had been found.  (Tr.I at 601-04).  Neither Kelty,
Reynolds, Goldsmith nor Beede were called by ROA as witnesses.
Murray testified but he did not rebut Fowler's testimony concerning
Fowler's June 1 Kelty interview.  While the evidence concerning the
washing of holes is equivocal, ROA presented no evidence of any
significant efforts to find additional misfires, such as probing
under caprock, following the discovery of the June 22, 1993,
misfires.  However, Murray testified ROA was able to find a total
of 40 pyrodex misfires shortly after Bassett's May 20, 1994, death.
(Tr.II at 526, 562).

     The temperature of a channel burner torch is approximately
4,200 to 4,400 degrees Fahrenheit.  (Tr.I at 208).  The
ignition temperature of pyrodex is between 750 and 800 degrees
Fahrenheit.  (Tr.I at 187).  On May 22, 1994, Bassett was
channel burning a bench in the U-13 Section.  The bench was
approximately 30 feet wide by 35 feet in depth by 18 feet in
height.  Channels had been cut on the east and west sides 
of the bench.  The channel on the north (rear) side of the 
bench had been cut approximately 16 feet in length.  At
approximately 10:58 a.m. witnesses stated Bassett was thrown
approximately 10 feet in the air and killed instantly when his
channel burner apparently intersected pyrodex bags at the rear
of the bench approximately 16 feet from the northwest corner.
(Tr.I at 624, 625).  ROA stipulated, for the purposes of these
proceedings, "that its more likely than not that the cause of
the fatality was ignition of Pyrodex bag(s) causing a fatal
injury to Mr. Bassett."  (Tr.I at 428).  In any event, as
noted below, Bassett's torch passed within two feet, but
missed, two misfired bags of pyrodex just minutes before he
was killed.

     As indicated, MSHA Investigator Luzik determined Bassett's
torch passed within two feet of two bags of unexploded pyrodex
encapsulated in caprock only minutes before Bassett's torch
tip came within one foot of the fatal explosive material.
(Tr.I at 433-34, 541, 688).  The proximity of the channel
burned by Bassett to these unexploded bags is clearly depicted
in photographs proffered by the Secretary. (See Ex. R5-C, R5-D,
and R5-E).  There were three unloaded holes between the
fatal lift hole and the two misfired bags, as depicted in
photograph R5-D.  At trial, Luzik explained he arbitrarily
labeled these lift holes as Hole Nos. 1 through 5 in
photograph R5-D, with the fatal hole as Hole No. 1,
intervening unloaded holes as Hole Nos. 2, 3 and 4, and, the
hole containing the two misfires as Hole No. 5.[3]  (Tr.I at
455-56, 681).  Luzik testified the June 22, 1993, blasting
report was the only report that corresponded to the three
unloaded holes between every loaded hole loading pattern found
at the death scene.   (Tr.I at 688-89).  The two bags found in
the rear of the hole also conformed to the June 22, 1993,
loading pattern. (Ex. R-7).

     Further investigation of the fatal U-13 bench site revealed
14 additional bags of unexploded pyrodex comprised of two bags
in the rear of each of seven lift holes.  It is undisputed that
several of the seven misfired holes had three unloaded holes
between them entirely consistent with the June 22, 1993,
loading pattern.  (See Ex. R-10).  These 14 misfires, when
combined with the four misfires found by Batchelder, the two
misfires discovered by Luzik near the explosion, and the two
bags believed to have caused the explosion, resulted in a
total of 22 misfires.  Thus, the 22 misfires of the 84 pyrodex
bags loaded in the June 22, 1993, shot represent a misfire 
rate of 26 percent.

                      Further Findings of Fact
                       and Conclusions of Law

     a. Pyrodex Misfires are Governed
        by Section 56, Subpart E

     As a threshold matter, in an exercise in futility, ROA argues
that pyrodex is not an explosive regulated by Part 56, Subpart
E, because it is a propellant that ignites or deflagrates, as
distinguished from blasting agents such as black powder, or
seismic cord, that detonate.  In this regard ROA relies on the
definition of "misfire" in section 56.6000:

     The complete or partial failure of explosive material to
     detonate as planned.  The term also is used to describe the
     explosive material itself that has failed to detonate
     (emphasis added).

     The plain language of the definition section of 56.6000
defines "an explosive" or "explosive material" as any
substance classified as an explosive by the Department of
Transportation (DOT) in DOT regulations 49 C.F.R. �� 173.53,
173.88 and 173.100.  Section 173.88 of the DOT regulations
defines liquid or solid propellant explosives that function by
rapid combustion rather than detonation as Class B Explosives.
Thus, it is indisputable that propellants such as pyrodex are
"explosives" and "explosive material" under section 56.6000.

     Regulations and statutes must be interpreted to harmonize
rather than conflict with their intended purpose.  See Emery
Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414
(10th Cir. 1984).  Here, it is obvious the word "misfire"
in section 56.6000 refers to any explosive material that
has failed to perform and thereby remains hazardous.
Consequently, this provision must reasonably be interpreted to
include a misfire of any explosive that has failed to detonate
or ignite.  Thus, it is  clear the 40 bags of unignited
pyrodex found at the Smith and Adams Quarries immediately
after Bassett's death are properly characterized as section
56.6000 misfires.  Any other interpretation is ludicrous for
it would exempt pyrodex misfires from Part 56 even though
pyrodex is a Part 56 explosive.

     b. The June 22, 1993, Blast Site
        is the Site of the Fatality

     The appearance of a quarry changes as benches are removed and
quarrying progresses to lower levels.  Therefore, ROA contends
"it [is] difficult to determine each location where pyrodex
had been used and to correlate that location with a written
shot report."  (Ex. C-10 at p.3).  Thus, ROA argues that the
Secretary has not established that the June 22, 1993, pyrodex
blast was the site of Bassett's fatal accident.[4]  While, as
discussed below, the Secretary has satisfied his burden of
proof that June 22, 1993, misfires were the proximate cause of
Bassett's death, resolution of this issue is not material to
the disposition of important issues in this case, such as the
adequacy of ROA's efforts to find and remove misfires.  For if
ROA had exercised reasonable prudence following the discovery
of four misfires shortly after the last documented Section U-
13 pyrodex shot on June 22, 1993, regardless of whether this
blast was the site of Bassett's fatality one year later, at
least 22 misfires would have been found.  Discovery of these
22 misfires would have alerted ROA, given the potential use of
torches in a virtual mine field, to thoroughly inspect the
Smith and Adams Quarries for the additional 18 misfires that
were found.  In so doing, Bassett would probably be alive
today.

     Turning to the issue of the accident site location, the
June 22, 1993, blasting report conclusively establishes that
Bassett was killed by a June 22, 1993, misfire.  At the
outset,  this conclusion is consistent with ROA's own initial
accident investigation.  (See R-8).  However, in an effort to
refute its own initial accident findings to minimize the
significance of the discovered misfires, ROA now attempts to
change the facts by portraying the plain meaning of the l-4-8-
12 loading pattern on the June 22, 1993, blasting report as
indicative of a 1-4-8-12-15-19-23-27-30-etc., loading pattern
(repeating the pattern of only two unloaded holes between Hole
Nos. 1 and 4).  (See Tr.I at 1050-1051, 1057).

     ROA's interpretation of the June 22, 1993, loading pattern
is frivolous because:  (1) ROA's claim was rejected by
Investigators Luzik, Fowler and Constant, who concluded, based
on information provided by ROA, that the June 22, 1993,
blasting report established loaded holes 16-20-24-etc.,
followed loaded hole 12 (see, e.g., Tr.II at 105-07); (2)
ROA's purported irregular loading pattern of alternating
configurations of two or three unloaded holes defeats the
purpose of pyrodex's intended goal of creating even splitting
and avoiding radial cracking; (3) ROA's claim of different 
numbers of unloaded holes at the same blast site is inconsistent
with all other blast reports which show a constant number of 
unloaded holes between loaded holes at each pyrodex shot 
(Ex. R-7); (4) ROA's purported loading pattern as illustrated 
in Ex. R-10A results in Hole No. 75, rather than Hole No. 80,
as the last loaded hole; and (5) ROA's alleged exculpatory 
loading pattern is belied by ROA's own May 25, 1994, initial 
accident report wherein it concluded that,"[the fatal] 
undetonated explosive material must have  been remaining from 
[the] lift blast conducted in June of 1993 ...."  (Ex R-8, p.2).

     As if this were not enough, the 14 bags found at the rear
of seven different lift holes at the "death bench" included
several loaded holes separated by three unloaded holes, which
is entirely consistent with the June 22, 1993, loading pattern
and inconsistent with all other blasting reports.  (See Ex. R-
10; See also n.4, supra).  In this regard, Murray could not
explain why Kelty, who supervised the loading of the June 22,
1993, blast site, would draw the diagram, admitted as Ex. R-10,
reflecting a June 22 loading pattern of every forth hole at the
fatal accident site.[5]  (See Ex. R-10; Tr.II 663-66). Thus,
the purported loading pattern advanced by ROA at trial is
insupportable as it is inconsistent with all of the
information and documentation concerning the June 22, 1993,
loading pattern provided to MSHA officials by ROA during the
course of the accident investigation. ROA's assertion 
that the pressure of the explosion in each lift hole
makes it difficult to determine the original
location of misfired bags found at the rear of lift holes is
unconvincing.  Since the pyrodex bags are spaced to ignite in
sequence in extremely small lift holes approximately 1-7/8
inches in diameter, bags found at the rear of holes must have
been loaded the furthest distance from the mouth of the lift
hole.  Therefore, the sets of two bags found at the rear of
eight lift holes at the accident site (seven lift holes plus
the presumed ignition of two bags at the blast lift hole) are
consistent with the June 22, 1993, loading pattern.

     ROA's contention that the bags discovered by Batchelder 
were in intact lift holes indicating underbreak (lift with 
intact lift holes) that was not present at the accident site
is equally unconvincing.  Luzik's accident scene photographs
depict pyrodex concealed under caprock.  Given the 40 misfires
found after the fatal accident, it is apparent that many of
the misfires remained in intact lift holes on the surface.
ROA's assertion that the entire June 22, 1993, bench lifted
with intact lift holes is speculative and unsupported by the
facts.

     Finally, an admission is any oral or written statement,
or conduct, of a party, or his representative, which is
inconsistent with respect to the claim of that party with
respect to some fact relevant to the issues at trial.
Jerome Prince, Richardson On Evidence, � 218 (10th ed. 1973).
Admissions are entitled to great weight if they were made
understandably and deliberately; if they are of pure fact
within the knowledge of the party; if they were made under
conditions and circumstances conducive to veracity; and if
they are not overborne by other facts in evidence. Id. at
� 229.

     ROA's May 25, 1994, accident report finding that Bassett's
fatality occurred at the site of the June 22, 1993, misfires
is a probative admission worthy of great weight.  This finding
was based on ROA's own blasting reports as well as facts
personally known to ROA blasting personnel.  This finding is
presumptively truthful because ROA would have no reason to lie
given this admission's damaging nature.  As a final matter,
this admission is supported by the accident investigators'
observations of the two misfires near Bassett's body as well
as the 14 additional misfires subsequently found by ROA nearby
in seven lift holes.

     ROA now seeks to distance itself from the admissions made
in its initial May 25, 1994, accident report.  Thus, ROA has
issued a "revised" February 17, 1995, accident report in which
ROA attempts to move the fatal accident site from the June 22,
1993, blast location to some other unspecified location in the
U-13 section of the Smith Quarry, based on blasting reports
that no longer exist for "possible pyrodex shots" that might
have occurred. (Ex. C-10).  ROA's revised accident report is
self-serving, speculative, undocumented, and of little
probative value.  (See Exs. R-8, C-10 at p.4; and n.4, supra).
It is also noteworthy this revised accident report was first
provided to MSHA on February 27, 1995, more than one month
after the initial trial phase in these proceedings. (Tr. 
561-62).


  **FOOTNOTES**

     [3]: ROA misstates Luzik's testimony "that he found pyrodex
in the fifth hole at the accident site."  (ROA br. at p.14).  The
rear channel had been burned 16 feet when Bassett was killed.
Luzik testified he arbitrarily labeled the fatal blast lift
hole as Hole No. 1, followed by three intervening unloaded
Hole Nos. 2, 3 and 4, and two misfires in the next loaded hole
labeled Hole No. 5.  This is the equivalent of Hole No. 16 being
loaded, with intervening Holes Nos. 17, 18 and 19 unloaded, and
Hole No. 20 the next loaded hole, which is consistent with the
June 22, 1993, loading pattern.

     [4]: ROA, in its brief, at p.3, n.6, citing Tr.II at 308-
310, alleges it was denied due process because the Court placed
the burden on ROA to demonstrate the June 22, 1993, pyrodex shot
was not the site of the fatal accident.  A fair reading of these
transcript pages reflects that, given the overwhelming evidence
presented by the Secretary demonstrating the June 22, 1993,
pyrodex shot as the site of Bassett's fatality, the Court ruled
the burden would shift to ROA to show where the accident
occurred, particularly if ROA, despite its previous admissions,
was now relying on purported blasting reports that no longer
exist.  It is fundamental that the burden to rebut shifts to the
operator when the Secretary presents prima facie evidence.

     [5]: Ex. R-10 is a diagram prepared by Kelty depicting the
accident bench as the June 22, 1993, blast site showing the
location of the 14 misfired pyrodex bags and a loading pattern of
every fourth hole corresponding to "[the] holes loaded in 6/93."
This diagram was given to Inspector Fowler by ROA Engineer
Goldsmith who obtained it from Murray.  (Tr.I at 827-28).  This
exhibit was marked for identification on January 12, 1995, at
which time ROA's counsel requested postponement of admission
until Murray could authenticate the document.  (Tr.I at 829-30).
Murray authenticated the exhibit on April 27, 1995.  (Tr.II 656-
57, 663-66).  However, Ex. R-10 was never formally admitted.


     While I am mindful that MSHA's investigation revealed the
accident bench is 10 feet shorter in width than the June 22,
1993, bench, the accident bench is only two feet shorter,
35 feet as compared to 37 feet, in depth.  (Tr.I at 685-87).
With respect to the relatively small difference in depth,
Murray conceded on cross-examination the dimensions of benches
change slightly with depth.  (See Ex. R-6, p.3; Tr.II at 566).
With respect to the 10 foot variation in width, it must be
noted that the MSHA investigators had no reason to take
precise measurements as ROA officials Kelty, Murray, and
Goldsmith, as well as union representative Price Lewis, had
all agreed the fatal site was the June 22, 1993, blast.  (See,
e.g., Tr.I at 816-19).  Therefore, the apparent variation in
bench width is far outweighed by the other evidence of record.
Thus, the Secretary has established the June 22, 1993, blast
site was the scene of Bassett's May 20, 1994, fatality.  (See
Ex. R-8, p.2).

     c.  The Applicable Significant and Substantial
         and Unwarrantable Failure Standards

     A violation is properly designated as significant and
substantial if there is "a reasonable likelihood that the
hazard contributed to will result in an event in which there
is [a serious] injury."  U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984).  In addressing the significant and
substantial question, the Commission has noted the likelihood
of injury must be evaluated in the context of an individual's
continued exposure during the course of continued normal
mining operations to the hazard created by the violation.
Halfway, Inc., 8 FMSHRC 8, 12 (August 1986); U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (August 1985); U.S. Steel Mining 
Company, 6 FMSHRC 1573, 1574 (July 1984).

     Here, continued normal mining operations involved the 
routine channel burning process.  It is evident, as illustrated
by the tragic events of this case, that the hazard contributed
to by the alleged violations, i.e., a flame in close proximity
to misfires, resulted in a fatal event, i.e., an explosion.
Consequently, the alleged violations in these proceedings, if
established by the Secretary, were properly characterized as
significant and substantial in nature.

     Unwarrantable failure is "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation
to a violation of the Act."  Emery Mining Corporation, 9 FMSHRC 
1997 (December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 
2007 (December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988).  In distinguishing aggravated
conduct from ordinary negligence, in Youghiogheny & Ohio the
Commission stated:

     We stated that whereas [ordinary] negligence is conduct
     that is `inadvertent,' `thoughtless,' or `inattentive,'
     unwarrantable conduct is conduct that is described as `not
     justifiable' or `inexcusable.'  Only by construing
     unwarrantable failure by a mine operator as aggravated
     conduct constituting more than ordinary negligence, do
     unwarrantable failure sanctions assume their intended
     distinct place in the Act's enforcement scheme.
     9 FMSHRC at 2010.

                  Ultimate Findings and Conclusions

     In addressing the matters in issue, there is one relevant
and crucial fact concerning the quarry process. Blasting material
is always placed in or near the first and last lift hole, as
well as near the rear of all loaded lift holes, to ensure
separation of the bench from the granite formation.  The
channel burner operator tracks the placement of the previously
positioned blasting material when he torches the sides and
rear of the next lower bench.  Consequently, it is of
paramount importance to make every reasonable effort to
discover and remove all potential misfires in order to
minimize, if not avoid, the catastrophic events that occurred
in this case. If the likelihood of misfired pyrodex was
apparent, but overlooked or ignored, the Secretary must
prevail.

     ROA, in its brief, argues that negligence is not relevant
to the question of fact of the violation. Therefore, ROA asserts
"substantial errors of law" were committed when the Court
stated at trial that a fundamental issue in these proceedings
was whether ROA knew or should have known misfires were
present at the accident site.[6]  (ROA br. at p.8, n.2).  ROA
misses the point.  Although operators are strictly liable for
their violative conduct, the requisite precautions necessary
to satisfy the mandatory safety standards pertaining to post-
blast hazards are dependent upon whether there were any signs
of potential misfires at the blast site.  ROA's apparent
failure to take any meaningful action to find additional
misfires after four misfires were discovered is material to
the fact of occurrence of each of the cited standards, i.e.,
inadequate examination for misfires, resumption of work in a
blast site, open flames near explosive material, and,
inadequate training.

     a. Citation No. 4282251
        30 C.F.R. � 56.6311(b)

     As a result of MSHA's accident investigation, ROA was
issued 104(d)(1) Citation No. 4282251 for an alleged violation
of the mandatory safety standard in section 56.6311(b), 30
C.F.R. � 56.6311(b).  Section 56.6311 provides:

     � 56.6311  Handling of misfires

     (a) Faces and muck piles shall be examined for misfires
     after each blasting operation.

     (b) Only work necessary to remove a misfire and protect the
     safety of miners engaged in the removal shall be permitted
     in the affected area until the misfire is disposed of in a
     safe manner.

     (c) When a misfire cannot be disposed of safely, each
     approach to the area affected by the misfire shall be
     posted with a warning sign at a conspicuous location to
     prohibit entry, and the condition shall be reported
     immediately to mine management.

     (d) Misfires occurring during the shift shall be reported
     to mine management not later than the end of the shift.

     ROA argues that it properly disposed of the four misfired 
bags of pyrodex found by Batchelder and noted by Kelty on the
June 22, 1993, blasting report.  Consequently, ROA asserts the
Secretary has failed to demonstrate a violation of this cited
mandatory standard.  However, this mandatory standard, when
read in its entirety and in conjunction with subsection (a),
requires adequate post-blast inspection procedures for the
purpose of finding and disposing of misfires.  Surely, a
perfunctory post-blast inspection that results in the discovery 
and proper disposal of one misfire, while overlooking numerous 
other misfires, would not satisfy this mandatory safety standard.

      In applying the provisions of section 56.6311, it is
important to note the Commission has recognized that mandatory
safety standards must be broadly adaptable to a myriad
of circumstances.  Kerr McGee Corp., 3 FMSHRC 2496, 2497
(November 1981).  Consequently, resolution of the fact of
occurrence issue requires an analysis of whether an adequate
post-blast granite quarry inspection occurred.  Thus, the
adequacy of ROA's efforts to find and remove misfires at the
June 22, 1993, shot must be viewed in the context of
distinguishing granite quarry operations from blasts at muck
piles or blasts for the purpose of extracting crushed stone.
(Tr.II at 15-16).

     ROA's assertion that the plain meaning of section 56.6306(g)
"clearly requires a single post blast examination" for granite
quarry operations is mindless, and, inconsistent with ROA's
proposed findings and conclusions.  (ROA br. at 19).  Granite
quarrying involves the removal, during an approximate ten day
period, of multi-ton benches with potential explosives
concealed in the middle and rear of lift holes.  Even ROA, in
its findings and conclusions, admits the post-blast inspection
period consists of a series of examinations by powdermen and
quarrymen for misfires, just as they examined the face, as new
stone is exposed after each line in the bench is toppled and
removed during the ten day bench removal period.  (See ROA
Proposed Findings at p.4, Finding Nos. 24, 30, and 31; Tr.II
at 15-16).  Thus, Batchelder's discovery, seven to ten days
after the June 22, 1993, shot, when the face of the bench was 
retreating as each slab line was toppled by the front-end 
loader and hoisted by the derrick operator, occurred during 
the post-blast inspection period.

     Having determined ROA had an obligation to seek and remove
misfires throughout the bench removal process, we turn to the
dispositive question of whether ROA knew or should have known,
through the exercise of reasonable prudence, of the undisputed
systematic incomplete ignition (40 unexploded bags) of its
non-routine, experimental pyrodex shots performed from
February through July 1993.[7]  Assuming, arguendo, that ROA
had no cause for concern after viewing and examining the
pyrodex blasted benches prior to Batchelder's discovery, ROA
certainly was on notice one week after the June 22, 1993,
blast when four pyrodex misfires were noted by Kelty.

     To determine the significance of these four misfires, it is
helpful to revisit the pyrodex blasting procedures.  These
procedures called for sequential ignition of spaced bags of
pyrodex, without any connecting ignition sources, from bags
with  electric squibs placed in the mouth of lift holes.
Batchelder, in a written statement, reported he did not find
any electric matches or squibs in the bags he discovered
during the removal of the June 22, 1993, bench.  Thus, it is
reasonable to assume that these bags were not front lift hole
bags.  Therefore, they could have come from the center of the
hole if they were from four separate holes.  This would
reflect eight additional misfires (two bags in the rear of
each of these four holes).  Alternatively, the four discovered
bags could have come from the rear of two holes.  The failure 
of these two pair of rear bags to be ignited by the middle bags 
should have alerted a reasonably prudent person familiar with 
pyrodex blasting of a potential for systematic failure of rear
bag ignition as well as a possible failure of middle bag ignition.

     Thus, it is clear that the discovery of four pyrodex
misfires either ensured the existence of additional misfires, 
or, at the very least, was a significant indication of the 
potential for a systematic failure of rear bag ignition. With 
respect to washing of lift holes, ROA failed to call Kelty or
Reynolds to testify regarding whether they had washed down the
lift holes. In any event, even ROA expert witness Chapman Young
opined that washing holes after bags had been found is not an
adequate response when misfires are suspected but the exact
location of the misfires is unknown.  In such instances, Young
stated it is prudent to "probe [the holes] in some fashion to
investigate them" if the misfire locations are unknown.
(Tr.II 972-73).

     In the absence of any meaningful efforts to search for
and remove additional misfires prior to Bassett's death, ROA
failed to perform the "work necessary to remove misfires" as
required by section 56.6311(b). The Secretary, therefore, has
established the fact of occurrence of the cited significant
and substantial violation.

     With respect to the question of unwarrantable failure, it
is important to note any potential misfires would not harmlessly
remain under tons of rock.  On the contrary, these misfires
would be exposed on the surface as the bench is removed.
Significantly, 40 misfired bags were found after Bassett's
death.  Kelty's failure to take any meaningful action to probe
caprock in search of the apparent likelihood of additional
misfires, particularly in view of the channel burning quarrying
process, evidenced a callous disregard for the hazards associated
with misfires in the presence torch flames.  Such conduct is
imputable to ROA and clearly constitutes the requisite
aggravated conduct to sustain the Secretary's unwarrantable
failure charge.  See Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194-98 (February 1991).

     Finally, ROA's attempt to mitigate its negligence by 
asserting Bassett did not adequately clean and check the 
vicinity of the accident prior to channel burning is unavailing.
(See, e.g., Tr.II at 893-94).  In this regard, the Commission 
has stated that a requirement that employees work cautiously 
"does not lessen the responsibility of operators under the Mine 
Act, to prevent unsafe conditions."  Eagle Nest Incorporated,
14 FMSHRC 1119 (July 1992).

     Accordingly, 104(d)(1) Citation No. 4282251 is affirmed.
Given the large size of the operator, the extremely high
degree of negligence, the grave consequences of the violation,
and, the absence of any significant mitigating factors, the
maximum civil penalty of $50,000 is assessed for Citation No.
4282251.

     b. Order No. 4282255
        30 C.F.R. � 56.6306(b)

     The accident investigation resulted in the issuance
of 104(d)(1) Order No. 4282255 for an alleged significant
and substantial violation of section 56.6306(g), 30 C.F.R.
� 56.6306(g).  The effective date of this mandatory standard
was  January 31, 1994.  58 Fed. Reg. 69596 (1993).  Section
56.6306(g) provides:

     � 56.6306  Loading and blasting

     * * * * * *

     (g) No work shall resume in the blast area until a post-
blast examination addressing potential blast-related hazards 
has been conducted by a person having abilities and experience 
that fully qualify the person to perform the duty assigned 
(emphasis added).

     The violation of section 56.6311 for failing to adequately
perform a post-blast inspection and remove misfires is
distinguishable from a violation of 56.6306(g).  Section
56.6311 concerns creating a hazardous condition by failing to
adequately search for and remove misfires.  Section 56.6306(g)
concerns exposing personnel to the hazardous condition created
by the violation of 56.6311.  Bassett would not have died had
he not resumed work on May 20, 1994, at the June 22, 1993, U-
13 blast site.

     ROA argues that Order No. 4282255 must be vacated because 
it is an impermissible retroactive application of a standard 
that became effective at least seven months after ROA's last
pyrodex shot in July 1993.  In response, the Secretary asserts
the cited violation occurred on May 20, 1994, when Bassett was
assigned to continue channel burning operations in the absence
of an adequate  post-blast examination that addressed potential 
blasting hazards.

     The essence of ROA's contention is that the resumption 
of work prohibition in potentially unsafe blasting areas does
not apply to areas that were blasted prior to January, 31,
1994, the effective date of section 56.6306.  The limited
applicability of this important mandatory standard would
result in the anomalous situation where a channel burner
operator's life could be put at risk with impunity simply
because of the date of the hazardous misfire.  Such an
interpretation cannot be reconciled with the intent of the
mandatory safety standard.

     In addition, ROA argues that it already resumed work at
the blast site when it continued to quarry the June 22, 1993,
bench. However, the concept of resumption of work is a
continuing process.  An operator cannot escape liability under
section 56.6306(g) simply because it "resumed work" prior to
the implementation of this standard.

     Nor is ROA prejudiced by the obligation to ensure a safe
workplace, particularly one in which torches are used near
potential misfires.  Rather, ROA is responsible for knowing
about and implementing this mandatory safety precaution as of
its effective date on January 31, 1994.  Thus, when ROA
assigned Bassett to channel burn on May 20, 1994, it did so at
its own risk. Accordingly, 104(d)(1) Order No. 4282255 is
affirmed. In view of the extremely high negligence and serious 
gravity  associated with this violation as discussed above, a
civil penalty of $40,000 is imposed for violation of this 
mandatory safety standard.

     c. Order No. 4282256
        30 C.F.R. � 56.6904

     As a result of Bassett's fatality, ROA was cited for violation
of section 56.6904, 30 C.F.R. � 56.6904.  This safety standard
provides:

     � 56.6904  Smoke and open flames

     Smoking and use of open flames shall not be permitted
     within 50 feet of explosive material except when separated
     by permanent noncombustible barriers.  This standard does
     not apply to devices designed to ignite safety fuse or to
     heating devices which do not create a fire or explosion
     hazard.

     ROA argues the application of this standard requires 
actual knowledge of both the location and existence of 
explosive material.  (ROA br. at 26)  It is clear this
mandatory standard requires actual knowledge of the location 
of the explosive material because it prohibits conduct, i.e., 
use of an open flame, within a defined 50 foot area. It is also
clear that ROA had actual knowledge of the exact location of
the pyrodex explosive material by lift hole number, and
placement location within each loaded lift hole.  In fact,
ROA's blasting reports were "road maps" documenting the
location of each pyrodex bag.

     Finally, it is evident that ROA had actual knowledge that
the channel burner operator would be burning in close proximity 
to the area where pyrodex bags had been placed at the rear of
lift holes.  In fact, ROA's own witness, channel burner operator
David Gomo, admitted the greatest danger is channel burning
the rear channel, which intersects the previously loaded lift
holes, because pyrodex bags were always placed near the back
of these holes to ensure bench separation in the rear.  (Tr.II
at 832-34).

     Having actual knowledge of the placement of this explosive
material and the fact that a torch flame would ultimately be
used within several feet of its placement, ROA now seeks to
escape liability because it ignored the signs of a potential
systematic ignition failure in the rear of the lift holes.
However, the misfires, discovered by Batchelder and noted by
Kelty, provided ROA with constructive knowledge of the
likelihood of the continued existence of the loaded explosive
material.  Thus, ROA's actual knowledge of the location of the
subject explosives and the use of torch flames nearby, coupled
with its constructive knowledge of the explosive's continued
existence provides a basis for liability under section
56.6904.

     Simply put, having closed its eyes to this potentially
extremely hazardous condition, ROA cannot hide behind its lack
of awareness.  Accordingly, Order No. 4282256 is affirmed.
The extremely high negligence and serious gravity associated
with this violation warrants the imposition of a $40,000 civil
penalty.

     d. Order No. 4282257
        30 C.F.R. � 56.6300(a)

     Finally, ROA was cited for a violation of the mandatory
standard in section 56.6300(a), 30 C.F.R. � 56.6300(a), which
provides:

     � 56.6300(a) Control of blasting operations

          (a) Only persons trained and experienced in the
          handling and use of explosive material shall
          direct blasting operations and related
          activities.

          (b) Trainees and inexperienced persons shall work
          only in the immediate presence of persons trained
          and experienced in the handling and use of
          explosive material (emphasis added).

     As a threshold matter, ROA seeks to have it both ways.  
On the one hand, ROA argues that propellant explosives such as
pyrodex should not be governed by Part 56 because they are
different from detonating explosives. On the other hand, ROA
asserts Kelty and Reynolds' experience with detonating
explosives qualifies them to use propellant explosives.
Obviously, the  "experienced in the handling and use of
explosive material" language contained in section 56.6000(a)
must not be broadly construed.  Rather, the standard requires
blasting personnel to be trained and experienced in the
particular explosive being used. One need look no further than
ROA's 26 percent June 22, 1993, misfire rate to conclude that
Kelty and Reynolds were not properly trained in the use of
pyrodex.

     Significantly, in addition to requiring expertise in "
blasting operations", the 56.6000(a) standard also requires 
training in "related activities" such as post-blast inspections 
and misfire removal.  Kelty's failure to take any meaningful
action to determine if other misfires occurred after the four
bags were found by Batchelder, given the sequential ignition
process, alone establishes inadequate training in "related"
post-blast activities.  Consequently, the evidence clearly
supports the fact of occurrence of a significant and
substantial violation of the cited mandatory safety standard.

     With respect to whether this training violation is
attributable to ROA's unwarrantable failure, ROA blames its
numerous misfires on the instructions provided to it by
Barrett of the Hodgdon Powder Company during his four test
shots in 1986 and one test shot in 1987.  For example, ROA
geophysics expert, Chapman Young, maintains Barrett's spaced
loading procedure was flawed because microscopic moisture in a
lift hole would prevent sequential ignition.  Consequently,
ROA argues Barrett did not adequately warn it about the
effects of moisture on the ignition process.  In contrast,
Barrett attributes the systematic ignition failure to ROA's
improper use of stemming to pressurize the holes.

     Resolution of whether Barrett's pyrodex loading procedure
was flawed is unnecessary for disposition of the unwarrantable
failure issue.  Regardless of the efficacy of Barrett's
instructions, there is evidence that Barrett's instructions
were not followed.  Inspector Fowler testified that he
questioned both Kelty and Reynolds in the presence of Murray
about whether the June 22, 1993, lift holes were pressurized.
Neither Kelty nor Reynolds recalled pressurizing the holes.
(Tr.I at 588-89).

     Moreover, it is not clear whether Kelty or Reynolds were
trained by Barrett.  Barrett did not recall ever meeting them.
Neither Kelty nor Reynolds testified.  What is clear is that
ROA personnel received no meaningful training in the use of
pyrodex during the approximate six year period between
Barrett's last 1987 test shot and ROA's use of pyrodex
beginning in February 1993.  ROA seeks to minimize this six
year hiatus in pyrodex training as unnecessary "refresher
training."  (Tr.II at 346; ROA br. at p.15).  I view this six
year lack of interim training as evidence of an inexcusable
and cavalier use of pyrodex explosives by inexperienced and
inadequately trained individuals.

     Finally, Kelty's failure to order any meaningful searches
for additional misfires after four pyrodex bags were found 
during the bench removal process, given the separated charge
sequential ignition blasting procedure, is further evidence of
a grievous lack of training justifying the Secretary's
unwarrantable failure charge. Significantly, despite the efficacy
of Barrett's loading procedure, Bassett's death could have been
prevented if post-blast inspection procedures had been
competently conducted.  Accordingly, 104(d)(1) Order No.
4282257 is affirmed.  The extremely high negligence exhibited
by ROA's failure to properly train its blasting personnel in
the use of pyrodex and the significance of sequential
misfires, as well as the serious gravity that resulted from
this lack of training, justifies the imposition of the maximum
statutory civil penalty of $50,000.

      ORDER

     In view of the above, the Secretary's motion to vacate
104(d)(1) Order Nos. 4282252, 4282253, 4282254 and 4282258
IS GRANTED.  Consequently, Rock of Age's contests in related
Docket Nos. YORK 94-77-RM, YORK 94-78-RM, YORK 94-79-RM and
YORK 94-83-RM, ARE GRANTED.

     IT IS ORDERED that 104(d)(1) Citation No. 4282251, and,
104(d)(1) Order Nos. 4282255, 4282256 and 4282257 ARE
AFFIRMED.  Consequently, Rock of Ages Corporation's contests
in related Docket Nos. YORK 94-76-RM, YORK 94-80-RM, YORK 94-
81-RM and
YORK 94-82-RM, ARE DENIED.


**FOOTNOTES**

     [6]: ROA also contends the Court interfered with its right
to present its case because the Court refused to allow "relevant
cross-examination intended to rebut MSHA's case."  (ROA br. at
p.8, n.2).  While the extensive eight day transcript in this
proceeding reflects ROA was given every opportunity to present
its case, this allegation must be briefly addressed.  As stated
on the record, ROA's right to present its case must be balanced
by the Court's responsibility to regulate the course of the
hearing under Commission Rule 55, 29 C.F.R. � 2700.55, in order
to ensure a fair and accurate record.  (See Tr.I at 970-75; see
also Tr.I at 963, Tr.II at 247).  In this regard, the Court
stated, although it "repeatedly permitted the [contestant] to
pursue lines of questioning [it] deem[ed] to be irrelevant, there
comes a time when the Court must limit the cross-examination to
issues that are pertinent to this proceeding."  (Tr.I at 972-73).

     [7]: ROA objects to the characterization of these five
documented (by blasting reports) pyrodex shots as non-routine or
experimental.  However, these blasts are the only documented
production uses of pyrodex by ROA in its 90 year history.  (See
Tr.I at 592-94).


     IT IS FURTHER ORDERED that Rock of Ages Corporation pay a
total civil penalty of $180,000 within 30 days of the date of
this decision in satisfaction of the 104(d)(1) Citation and
Orders affirmed herein.  Upon timely receipt of payment, the
civil penalty matter in Docket No. York 95-55-M IS DISMISSED.


                              Jerold Feldman
                              Administrative Law Judge


Distribution:

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington, D.C., 20037-1350 (Certified Mail)

M. Shane Edgington, Esq., Patton Boggs, L.L.P., 1660 Lincoln 
Street, Suite 1975, Denver, CO 80264
(Certified Mail)

David L. Baskin, Esq., Office of the Solicitor, U.S. Department 
of Labor, One Congress Street, 11th Floor, P.O. Box 8396,
Boston, MA 02114 (Certified Mail)

/rb