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

 
LAFARGE CONSTRUCTION MATERIALS
October 30, 1998
LAKE 95-114-RM


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                           October 30, 1998

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       : Docket Nos. LAKE 95-114-RM
                                   :             LAKE 95-239-M
LAFARGE CONSTRUCTION               :             LAKE 96-28-M
  MATERIALS, and                   :
  THEODORE DRESS                   :


BEFORE:  Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
         Commissioners


                            DECISION

BY:  Jordan, Chairman; Marks, and Beatty, Commissioners

     These consolidated civil penalty proceedings, arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq. (1994) ("Mine Act" or "Act"), involve a citation issued
to Lafarge Construction Materials ("Lafarge") alleging an
unwarrantable and significant and substantial ("S&S") violation
of 30 C.F.R. � 56.16002(a)(1)[1] for failure to remove loose
materials before allowing a miner to enter a surge bin, and a
related allegation that Theodore Dress, a foreman for Lafarge, is
personally liable under section 110(c) of the Mine Act, 30 U.S.C.
� 820(c), for knowingly authorizing the violation.
Administrative Law Judge David F. Barbour concluded that Lafarge
violated section 56.16002(a)(1) and that the violation was S&S
and the result of unwarrantable failure.  18 FMSHRC 2199, 2208-10
(Dec. 1996) (ALJ).  He also concluded that Dress knowingly
authorized the violation by not taking additional steps to clear
the surge bin.  Id. at 2210-12.  For the reasons that follow, we
affirm the judge's findings of violation, unwarrantable failure,
and section 110(c) liability.

                               I.

                Factual and Procedural Background

     On July 15, 1994, Theodore Dress, a foreman at Lafarge's
Marblehead quarry in Ottawa County, Ohio, noticed sand leaking
through a hole in the discharge chute at the bottom of the quarry
surge bin.  18 FMSHRC at 2200-03.  The surge bin is a metal
structure measuring approximately 22 by 22 feet square and 13
feet high.  Id. at 2201-02; Tr. 92.  Crushed limestone, up to 10
inches in size, is deposited into the top of the surge bin.  18
FMSHRC at 2201.  The surge bin has mechanical vibrators that
shake the bin and cause the limestone to fall through openings in
the bottom of the bin into a discharge chute and onto a conveyor
belt below, where it is transported for further processing.  Id.
at 2201-02.  In addition, a hand bar is available that can be
used to manually scale the limestone inside the surge bin.  Id.
at 2203; Tr. 43, 105-06, 119-20.

     In order to repair the hole, Dress determined that a metal
patch needed to be welded over the hole from the inside of the
discharge chute.  18 FMSHRC at 2203.  In preparation for the
repair, Dress ordered that the vibrators be kept running until
electronic sensors indicated the surge bin was empty, and that
the vibrators be run for an additional 20 to 30 minutes to
dislodge any remaining loose materials.  Id.; Tr. 40, 97, 113.
Following the vibrating procedure and after the surge bin was
deenergized and locked out, Dress and Daniel Harder, the miner
assigned to do the repair, visually inspected the inside of the
surge bin from the discharge chute.  18 FMSHRC at 2203.  Both men
observed an inverted cone-shaped wall of hard-packed fines,[2]
known as the "dead bed," that had compacted around the openings
in the bottom of the bin.  Id. at 2202-03; Tr. 96, 107-08.  At
the top of the dead bed, which was about 6 to 8 feet high, was a
ridge that caused loose rock deposited inside it to slide down
through the openings into the discharge chute and loose rock
deposited outside it to accumulate along the sides of the surge
bin.  18 FMSHRC at 2202; Tr. 96.  Both men observed loose rocks
at the top of the dead bed, which they believed lay outside the
ridge and would not fall.  18 FMSHRC at 2203.  They did not use
the scaling bar to knock down this loose material, concluding
that it would be safe to enter the surge bin to perform the
repair.  Id.

     Harder climbed inside the surge bin and welded the metal
patch for approximately 45 minutes when he heard rocks begin to
fall around him.  Id. at 2204.  He crouched down and attempted to
exit the surge bin, but succeeded in getting only his head out of
the bottom opening because rocks had fallen around his back and
shoulders preventing him from getting all the way out.  Id.
Dress, who had remained outside the surge bin, helped Harder
remove some of the rocks and, after about 5 minutes, Harder was
freed.  Id.  Harder suffered minor cuts and bruises.  Id.; Tr.
36-37.

     While conducting a regular inspection at the Marblehead
quarry in October 1994, James Strickler, an inspector with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), learned of the accident and issued to Lafarge Citation
No. 4413670, pursuant to section 104(a) of the Mine Act, 30
U.S.C. � 814(a), alleging an S&S violation of section
56.16002(a)(1) for failure to remove loose materials before
entering the bin.  18 FMSHRC at 2204-05; Gov't Ex. 3.  Strickler
later modified the citation to allege, pursuant to section
104(d)(1) of the Mine Act, 30 U.S.C. � 814(d)(1), an
unwarrantable failure to comply with the standard.  18 FMSHRC at
2205; Gov't Ex. 3.  Subsequently, the Secretary proposed a civil
penalty assessment of $3,800 against Lafarge.  18 FMSHRC at 2210.
In addition, following a special investigation, the Secretary
proposed a civil penalty assessment of $3,000 against Dress,
pursuant to section 110(c) of the Mine Act, alleging that, by not
taking additional steps to clear the surge bin of loose
materials, he knowingly authorized the violation.  Id. at 2210-
12.  Lafarge and Dress challenged the proposed assessments.

     Following an evidentiary hearing, the judge concluded that
Lafarge violated section 56.16002(a)(1), that the violation was
S&S, and that it resulted from Lafarge's unwarrantable failure to
comply with the standard.  Id. at 2208-10.  Finding the language
of the standard clear, the judge determined that, although the
surge bin was equipped with mechanical devices and other
effective means to remove loose materials, Lafarge failed to
"operate the vibrators to eliminate all of the loose rock, and .
. . to ensure that the remaining loose rock was barred down prior
to Harder entering the bin . . . ."  Id. at 2206-07.  He further
determined that the activity of patching the hole constituted
"normal operations" within the meaning of the standard.  Id. at
2207-08.  The judge determined that the violation was the result
of unwarrantable failure because "no one at Lafarge knew enough
about emptying the bin to be certain that the procedures were
adequate" and "[t]he company should have required more," e.g., it
should have visually inspected the surge bin from above and used
the scaling bar to remove any loose material, regardless of how
long the vibrators had run.  Id. at 2209-10.  In addition, the
judge concluded that Dress knowingly authorized the violation
because he observed the loose materials yet failed to take
additional steps to clear the surge bin.  Id. at 2210-12.
Accordingly, the judge assessed civil penalties of $2,500 against
Lafarge and $500 against Dress.  Id. at 2210, 2212.  The
Commission granted the petition for discretionary review
subsequently filed by Lafarge and Dress challenging the judge's
conclusions.


**FOOTNOTES**

     [1]:  Section 56.16002 provides, in part:

               (a)   Bins,  hoppers,  silos, tanks, and
          surge   piles,   where  loose  unconsolidated
          materials are stored,  handled or transferred
          shall be-
               (1)  Equipped with mechanical devices or
          other effective means of  handling  materials
          so that during normal operations persons  are
          not  required to enter or work where they are
          exposed   to  entrapment  by  the  caving  or
          sliding of materials . . . .

     [2]:  "Fines" is  defined,  in part, as "[f]inely crushed or
powdered material, e.g., . . . crushed  rock, . . . as contrasted
with  the  coarser  fragments  .  .  .  ."   American  Geological
Institute, Dictionary of Mining, Mineral, and  Related  Terms 208
(2d ed. 1997).

                               II.

                           Disposition

     Lafarge and Dress (the "Contestants") argue that the judge
erred in concluding that the standard was violated.  L&D Br. at
5-13; L&D Reply Br. at 3-4.  The Contestants assert that the
surge bin was "equipped" with mechanical devices for handling
materials, and that the plain language of the standard does not
regulate how such devices are to be utilized nor specify that the
vibrators be run longer than 25 to 30 minutes or that the bin be
inspected from the top.  L&D Br. at 5-7, 9-12; L&D Reply Br. at
3-4, 6.  They also assert that patching the hole in the surge bin
does not constitute "normal operations," and thus the standard is
inapplicable.  L&D Br. at 7, 12-13.  In addition, the Contestants
argue that, by following the quarry's longstanding procedures of
clearing and inspecting the surge bin, which were consistent with
industry practice, Lafarge's actions did not amount to
unwarrantable failure.  Id. at 6-7, 14-19; L&D Reply Br. at 1-5.
They further argue that Dress' actions did not reflect a
disregard for safety or legal requirements, and so did not
constitute a knowing violation under section 110(c).  L&D Br. at
7, 20-24; L&D Reply Br. at 4-6.

     The Secretary responds that the judge properly concluded
that Lafarge violated the standard.  S. Br. at 1, 7-14.  She
asserts that her interpretation of the standard is entitled to
deference because it is consistent with the language and purpose
of the standard.  Id. at 8-9.  She also asserts that the standard
provided notice that devices with which surge bins are "equipped"
must be used in an effective manner to be considered an
"effective means of handling materials," and that repairing the
surge bin was part of "normal operations."  Id. at 10-13.  In
addition, the Secretary argues that substantial evidence supports
the judge's conclusions that the violation was the result of
unwarrantable failure and that Dress knowingly authorized,
ordered, or carried out the violation.  Id. at 1-2, 14-19.

     A.   Violation

     The parties disagree over the meaning of section
56.16002(a)(1).  The "language of a regulation . . . is the
starting point for its interpretation."  Dyer v. United States,
832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).  Where
the language of a regulatory provision is clear, the terms of
that provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning
or unless such a meaning would lead to absurd results.  See id.;
Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).  It is
only when the meaning is ambiguous that deference to the
Secretary's interpretation is accorded.  See Udall v. Tallman,
380 U.S. 1, 16-17 (1965) (reviewing body must "look to the
administrative construction of the regulation if the meaning of
the words is in doubt") (quoting Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 413-14 (1945)); Exportal Ltda. v. United
States, 902 F.2d 45, 50 (D.C. Cir. 1990) ("Deference . . . is not
in order if the rule's meaning is clear on its face.") (quoting
Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984)).
Here, we conclude that the language of section 56.16002(a)(1),
which requires surge bins to have "mechanical devices or other
effective means of handling materials," clearly requires that the
devices be used effectively.  As we explain below, we also
conclude that the plain language of the regulation supports the
Secretary's view that repairing the surge bin constitutes "normal
operations."

     We find unpersuasive the Contestants' argument that the
standard was not violated because the surge bin was "equipped"
with mechanical devices for handling materials.  Although the bin
was furnished with vibrators and a scaling bar to remove loose
rock, the record indicates that Lafarge failed to utilize these
devices effectively.  After Lafarge operated the vibrators for 25
to 30 minutes, Dress and Harder looked inside the bin and,
despite their observation of loose materials, they did not
continue to run the vibrators or use the scaling bar to clear the
loose materials before Harder entered the bin.[3]  18 FMSHRC at
2203; Tr. 16-18, 24, 27-28, 41, 43, 116-20.  We agree with the
judge that, "under the standard, both the means for achieving the
end and effective use of the means were required."  18 FMSHRC at
2207.  By employing the words "so that," the standard is clearly
designed to achieve a result, and that result cannot be achieved
unless the equipment is actually utilized properly.  In this
case, we conclude that the standard requires effective use of the
vibrators and scaling bar, and that Lafarge failed to effectively
use them to clear the loose materials before allowing Harder to
enter the bin.

     In addition, we reject the Contestants' argument that the
standard is inapplicable because the activity of patching the
hole in the surge bin does not constitute "normal operations."
The judge found that patching the hole constituted maintenance of
the surge bin and that maintenance is considered part of normal
operations.  Id. at 2205.  The Contestants also characterized the
work as a maintenance task.  See L&D Br. at 4 (referring to the
"welding maintenance task").  In fact, Dress characterized his
duties as overseeing maintenance and testified that maintenance
is part of normal operations at the quarry.  Tr. 56, 111-12; see
also Tr. 53 (referring to maintenance of the discharge chute
under the surge bin).  Thus, we conclude that patching the hole
is clearly covered by the phrase "normal operations" and that the
standard adequately expresses the Secretary's intention to reach
that activity.  From our conclusion that the meaning of the
standard is clear based on its plain language, it follows that
the standard provided the operator with adequate notice of its
requirements.  See Bluestone Coal Corp., 19 FMSHRC 1025, 1029
(June 1997) (holding that adequate notice provided by unambiguous
regulation).

     Based on the foregoing, we conclude that substantial
evidence[4] supports the judge's determination that Lafarge
violated section 56.16002(a)(1) by "expos[ing Harder] to
entrapment by the caving or sliding of materials" inside the
surge bin.  We therefore affirm the judge's finding of a
violation.

     B.   Unwarrantable Failure

     The unwarrantable failure terminology is taken from section
104(d) of the Mine Act, 30 U.S.C. � 814(d), and refers to more
serious conduct by an operator in connection with a violation.
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).
In addition, the Commission has relied upon the high degree of
danger posed by a violation to support an unwarrantable failure
finding.  See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44
(Aug. 1992) (finding unwarrantable failure where unsaddled beams
"presented a danger" to miners entering the area); Warren Steen
Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding
violation to be aggravated and unwarrantable based upon "common
knowledge that power lines are hazardous, and . . . that
precautions are required when working near power lines with heavy
equipment"); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988)
(finding unwarrantable failure where roof conditions were "highly
dangerous").  As we explain below, we conclude that substantial
evidence supports the judge's determination that Lafarge's
failure to effectively use the vibrators and scaling bar to
protect Harder from falling materials constituted a serious lack
of reasonable care sufficient to find an unwarrantable failure.

     We agree with the judge that the hazard posed by loose
materials falling from atop the surge bin was serious and thus
warranted heightened precautions by the operator.  18 FMSHRC at
2209.  As Lafarge's foreman, Dress was held to a high standard of
care in this matter.  E.g., Midwest Material Co., 19 FMSHRC 30,
35 (Jan. 1997).  The record indicates that Dress observed "loose
and general[] large rock" on top of the dead bed in the surge
bin.  Gov't Ex. 2 at 5.  In fact, it is undisputed that both
Dress and Harder observed loose rock in the bin.  The basis of
this unwarrantable failure charge, therefore, is their unfounded
conclusion that the rock was located where it would not cause
harm.[5]  Dress' observation of "loose and general large rock" on
top of the cone-shaped interior of the surge bin should have
served as a forceful warning that a dangerous situation existed.
He simply assumed, based on his belief that the rock was laying
outside the ridge, that it would not cause a perilous situation.
Instead, the mere presence of the rock should have prompted Dress
to take reasonable measures to ascertain whether it was actually
positioned so that it would do no harm and, if not, to make
efforts to remove the rock.

     Given the fact that the observation of the loose rock should
have generated extra precautions, and an inquiry as to whether
the rock presented a danger, our dissenting colleague's
insistence that the danger was not obvious (slip op. at 18)
misses the point:  the fact that the danger might not have been
immediately obvious did not absolve Dress of his duty to
investigate the situation.  If he had not hastily jumped to a
conclusion, but instead conducted the more thorough examination
that the presence of loose rock warranted, the danger would have
become quite apparent.  As the judge pointed out, Lafarge could
have taken further steps to ensure safety in this dangerous
situation, i.e., it could have required that the bin be viewed
from above and that a scaling bar be used to remove the loose
materials, but Lafarge failed to take those steps.  18 FMSHRC at
2209.  The judge correctly concluded that Dress' failure to
recognize the danger and to take further steps to clear the bin
reflected a "serious lack of reasonable care."[6]  Id. at 2209-
10.  In sum, we agree with the judge that Lafarge's procedures
were inadequate, and that Lafarge should have required more.  Id.

     We find unavailing the Contestants' argument that, by
following the quarry's longstanding procedures of clearing and
inspecting the surge bin, which were consistent with industry
practice, Lafarge's actions did not amount to unwarrantable
failure.  Regardless of the accuracy of this statement, we are
not inclined to permit Lafarge to disregard the clear
requirements of the standard, and substitute in its place a
questionable industry practice that does not satisfactorily
prevent the entrapment of miners.

     Commissioner Verheggen contends that we are not utilizing
the Commission's traditional  unwarrantable failure test.  Slip
op. at 17-18.  He faults us for focusing on the high degree of
danger posed by the violation and failing to question whether the
danger was obvious and whether the operator was on notice that
greater compliance efforts were required.  Id. at 17-19.
Contrary to our colleague's assertion, we are not departing from
the Commission's precedent setting forth the criteria for an
unwarrantable failure determination.  Rather, consistent with
prior Commission cases on unwarrantable failure, we are applying
only those factors that are relevant to the facts of this
case.[7]  Furthermore, the judge's analysis fully addressed these
factors when he found that, given the high degree of danger, the
operator should have been aware of the hazardous condition but
instead failed to take appropriate measures to remove the loose
rock poised above the miner.  18 FMSHRC at 2209; see Cyprus
Emerald Resources Corp., 20 FMSHRC 790, 813-15 (Aug. 1998)
(operator's awareness of significant and obvious danger supports
unwarrantable failure).  In addition, the judge's decision
clearly reflects his view that the danger was obvious.  18 FMSHRC
at 2209 ("Harder was required to work in the immediate presence
of loose rock").

     When violations have exposed miners to extremely dangerous
conditions, the Commission has not always relied on most of the
remaining factors.  A case in point is Midwest Material, in which
the Commission found unwarrantable an operator's extension of a
crane boom.  19 FMSHRC at 34-37.  As in the present case, the
Commission relied on the high degree of danger and the heightened
standard of care required of a foreman.  Id. at 34-35.  We
specifically rejected the judge's reliance on the short duration
of the violation and contrasted the high degree of danger
presented in that case with the cases involving coal
accumulations, stating:

          The judge's reliance on the relatively brief
          duration of the violative conduct was
          misplaced, in view of the high degree of
          danger posed by the hazardous condition and
          its obvious nature.  Given the extreme hazard
          created by [the foreman's] negligent conduct,
          that misconduct is readily distinguishable
          from other types of violations - such as
          those involving the accumulation of coal dust
          - where the degree of danger and the
          operator's responsibility for learning of and
          addressing the hazard may increase gradually
          over time.

Id. at 36.[8]  These principles apply with equal force to the
present violation.

     We also disagree with our dissenting colleague's emphasis on
the need to prove causation - in this case, how the rock fell.
Slip op. at 17 (speculating that rock fall may have been caused
by Harder's actions).  He cites to no Commission decisions, and
we know of none, where the Secretary was required to prove
causation of harm in a case involving unwarrantable failure.  The
aggravated conduct required for a finding of unwarrantable
failure is the kind of conduct that, like simple negligence,
results in a breach of duty.  See W. Page Keeton et al., Prosser
and Keeton on the Law of Torts � 30, at 164 (5th ed. 1984).  On
the other hand, causation is required in "a cause of action
founded upon negligence, from which liability for damages to
another's interests will follow."  Id. at 164-65.  Causation is
not at issue in an unwarrantable failure case in which the
relevant inquiry is simply whether aggravated conduct occurred,
not whether one entity harmed another.

     Based on the foregoing, we conclude that substantial
evidence supports the judge's determination that Lafarge
demonstrated a serious lack of reasonable care by failing to
clear the loose materials atop the surge bin to adequately
protect Harder.  Therefore, we affirm the judge's unwarrantable
failure holding.

     C.   Section 110(c) Liability

     Section 110(c) of the Mine Act provides that, whenever a
corporate operator violates a mandatory safety or health
standard, an agent of the corporate operator who knowingly
authorized, ordered, or carried out such violation shall be
subject to an individual civil penalty.  30 U.S.C. � 820(c).  The
proper inquiry for determining liability under section 110(c) is
whether the corporate agent knew or had reason to know of a
violative condition.  Kenny Richardson, 3 FMSHRC 8, 16 (Jan.
1981), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal
Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997).  To
establish section 110(c) liability, the Secretary must prove only
that an individual knowingly acted, not that the individual
knowingly violated the law.  Warren Steen Constr., Inc., 14
FMSHRC 1125, 1131 (July 1992) (citing United States v. Int'l
Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).  An individual
acts knowingly where he is "in a position to protect employee
safety and health [and] fails to act on the basis of information
that gives him knowledge or reason to know of the existence of a
violative condition."  Kenny Richardson, 3 FMSHRC at 16.  Section
110(c) liability is predicated on aggravated conduct constituting
more than ordinary negligence.  BethEnergy Mines, 14 FMSHRC at
1245.  Here, we


**FOOTNOTES**

     [3]:   We agree with the Contestants that the standard  does
not specify procedures  for clearing or inspecting the surge bin,
e.g., that the vibrators be run longer than 25 to 30 minutes, the
scaling bar be used to clear  loose  materials,  or  the  bin  be
inspected from above.  By his statements that Lafarge should have
required that the bin be inspected from above and that the bar be
used  to remove any loose material (18 FMSHRC at 2209, 2212), the
judge merely articulated the means that were available to Lafarge
for further action.

     [4]:   When  reviewing an administrative law judge's factual
determinations, the  Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
�  823(d)(2)(A)(ii)(I).    "Substantial  evidence"  means  "`such
relevant evidence as a reasonable  mind  might accept as adequate
to  support  [the judge's] conclusion.'" Rochester  &  Pittsburgh
Coal Co., 11 FMSHRC  2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [5]:  We believe  that our dissenting colleague places undue
weight on the judge's general  statement  that  rock  outside the
ridge of the dead bed "slid[e]s away from the openings  and  does
not  pose  a  hazard  to  anyone  working below."  Slip op. at 16
(quoting  18  FMSHRC  at  2202).   As the  dissent  acknowledges,
however, the judge also found that rock  inside  the ridge of the
dead bed "slid[e]s down through the opening."  Id.   Rock falling
inside the ridge was the rock that covered Harder, which  is  the
focus  of  this  inquiry.   The  falling of rock inside the ridge
supports  the judge's conclusion that  "patching  the  hole  from
inside the  bin potentially was a very dangerous job."  18 FMSHRC
at 2209.  The  judge  explained  his  finding  of  high danger as
follows:  "Any miner assigned to do the job was subject  to being
injured  or killed unless loose rock above the miner was removed.
This potential threat required heightened precautions on the part
of Lafarge  and  those  acting for it."  Id.  The fallen material
constitutes  substantial  evidence  in  support  of  the  judge's
finding of danger.

     [6]:  The judge's discussion  made  clear  that, contrary to
the  dissent's  claim  (slip  op. at 16), his analysis  went  far
beyond  the  mere  occurrence  of the  accident  to  support  his
unwarrantable failure finding.  See 18 FMSHRC at 2209-10.

     [7]:   We note that Commissioner  Verheggen  also  concludes
that three of  the factors are irrelevant in this case.  Slip op.
at 19 n.4.

     [8]:  See also, e.g., Cyprus Plateau Mining Corp., 16 FMSHRC
1604, 1608 (Aug. 1994) (holding unwarrantable, without discussion
of  obviousness,   extent,  duration,  or  abatement  efforts,  a
foreman's decision to  permit  use  of  shuttle  car with serious
brake problem) (citing Quinland Coals, 10 FMSHRC at 708-09).
conclude that substantial evidence supports the judge's
determination that Dress is liable under section 110(c) of the
Mine Act for knowingly authorizing, ordering, or carrying out the
violation.


     We agree with the judge's conclusion that Dress should have
taken additional steps to clear the surge bin.  18 FMSHRC at
2210-12.  In Kenny Richardson, the Commission stated that a
person has reason to know under section 110(c) "when he has such
information as would lead a person exercising reasonable care to
acquire knowledge of the fact in question or to infer its
existence."  3 FMSHRC at 16 (quoting United States v. Sweet
Briar, Inc., 92 F. Supp. 777, 780 (W.D.S.C. 1950)).  The record
establishes, and the Contestants do not dispute, that Dress had
actual knowledge of the loose materials atop the surge bin yet
failed to take measures that were available to remove the loose
materials before allowing Harder to enter the bin.  Instead,
Dress relied on his opinion that the materials would not fall.
This opinion was based on Dress' visual inspection of the bin
from the discharge chute.  The judge concluded that such
inspection did not give a sufficiently full perspective of what
remained in the bin and that "[i]nspection from above also was
necessary."  18 FMSHRC at 2209.  Under the circumstances, we
conclude that Dress had reason to know of the serious danger of
falling rock and that his belief that Harder could safely enter
the surge bin was unreasonable.  Cf. New Warwick Mining Co., 18
FMSHRC 1365, 1370-71 (Aug. 1996) (finding aggravated conduct
under unwarrantable failure analysis because operator's efforts
to achieve compliance with standard were unreasonable).  As
Lafarge's agent,[9] Dress was responsible for recognizing the
serious hazard posed by the loose materials and "it became
incumbent upon him to meet a standard of care proportionate with
the danger."  18 FMSHRC at 2211-12.  Instead, Dress relied on
procedures that the judge found "were wholly inadequate."  Id. at
2212.[10]

     With respect to the concerns of our dissenting colleagues,
we note that both Commissioners Riley and Verheggen refer to the
"judgment call" involved in assessing the safety of the surge
bin.  Slip op. at 13-14 & 20.  In this regard, Commissioner
Verheggen asserts that no "information" was available to provide
Dress with either actual knowledge or reason to know of the
violative condition.  Id. at 19.[11]  As we have stated, Dress
actually observed the loose rock from the vantage point of the
discharge chute and, subsequently, failed to view the bin from
above.  Such a view would have provided Dress with further
information to enable a better-informed "judgment call" regarding
the condition inside the surge bin.  Based on these facts, we
conclude that substantial evidence supports the judge's
determination that Dress demonstrated a "lapse of judgment" in
this case.  18 FMSHRC at 2212.

     In addition, Commissioner Verheggen asserts that the judge's
finding that Dress acted in good faith and with a degree of care
appropriate to the condition inside the surge bin militates
against finding section 110(c) liability.  Slip op. at 19.
Although Dress may have had a good faith belief that the surge
bin was safe, as we explained above, his belief was unreasonable.
An unreasonable belief that a practice is safe, even if held in
good faith, is not a defense to liability under section 110(c).
See Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (Aug. 1994)
(reasonable, good faith belief of mine manager served as a
defense to section 110(c) liability); cf. Cyprus Plateau, 16
FMSHRC at 1615-16 (unreasonable albeit good faith belief of
foreman was no defense to unwarrantable failure).  Moreover,
contrary to our colleague's assertion, the judge specifically
found that Dress failed to attain a proper standard of care.  See
18 FMSHRC at 2211-12 ("Rather than [meet a standard of care
proportionate to the danger], Dress relied on the usual
procedures . . . [that] were wholly inadequate.").

     Based on the foregoing, we conclude that substantial
evidence supports the judge's determination that Dress
demonstrated aggravated conduct by failing to clear the loose
materials atop the surge bin to adequately protect Harder.
Therefore, we affirm the judge's section 110(c) holding.


**FOOTNOTES**

     [9]:   There  is  no  dispute regarding Lafarge's  corporate
status and Dress' status as its agent.  18 FMSHRC at 2210.

     [10]:  We note that section  110(c) does not require that an
agent intend that someone will be hurt.   See Kenny Richardson, 3
FMSHRC at 15 (rejecting argument that willfulness  must  be shown
to establish personal liability under Coal Act).

     [11]:    Commissioner   Verheggen's  reliance  on  Inspector
Strickler's one time use of the  isolated phrase "judgment call,"
in  an  attempt  to  overturn the judge  (slip  op.  at  20),  is
inconsistent with the  precepts  of  substantial evidence review.
Under  section 113(d)(2)(A)(ii) of the  Mine  Act,  30  U.S.C.  �
823(d)(2)(A)(ii),  the  Commission  is  charged  with reviewing a
judge's  findings  to  determine  whether  substantial   evidence
supports them.  See Eastern Associated Coal Corp., 13 FMSHRC 178,
185  (Feb.  1991)  ("[t]he  Commission's  task  is  not a de novo
reweighing  of  somewhat conflicting evidence but a determination
of whether there is substantial evidence in the record to support
the judge's conclusions").


     In any event,  Inspector  Strickler claimed only "[t]hat's a
judgment call whether it's loose  or  not" and was not using that
phrase to refer to an overall assessment  of  the  bin's  safety.
Tr. 78.  And, as we have noted, in this case it is uncontroverted
that the material was loose, and the critical question was  where
the  material  was  located.   Moreover, the inspector emphasized
that Dress "should have made sure  that  there  wasn't  any loose
material  in that bin.  That's taking a little bit more time  and
more precaution.  . . .  [Dress should have] take[n] another pair
of eyes up at the top  of  the feeder and look down on it and see
if anything could be loose."  Tr. 82.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's findings of
violation, unwarrantable failure, and section 110(c) liability.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              Robert H. Beatty, Jr. Commissioner


     Commissioner Riley, concurring in part and dissenting in part:

     I concur with the opinion insofar as it affirms the judge's
determinations that Lafarge violated 30 C.F.R. � 56.16002(a)(1)
and that the violation was the result of Lafarge's unwarrantable
failure to comply with the standard.  Slip op. at 4-9.  I
respectfully dissent, however, from the majority's decision to affirm
the judge's determination that Theodore Dress is personally liable
under section 110(c) of the Mine Act, 30 U.S.C. � 820(c).  Slip op.
at 9-11.  I conclude that substantial evidence does not support
the judge's determination that Dress is liable under section
110(c).  18 FMSHRC 2199, 2210-12 (Dec. 1996) (ALJ).

     With respect to the underlying violation, the judge found,
and the Commission majority agrees, that Lafarge's actions constitute
more than ordinary negligence and indicate "a serious lack of
reasonable care," arguably the lowest threshold of aggravated
conduct necessary to support characterization of the violation
as unwarrantable.  Slip op. at 7, 9; 18 FMSHRC at 2210; see Emery
Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995).
Regarding individual liability, the judge emphatically stated:  
"It is certain that Dress did not intentionally violate the
standard."  18 FMSHRC at 2211. However, the judge further stated:
"[I]t also is clear that intent is not the issue."  Id.  Therefore,
the question before the Commission is whether Dress knew or should
have known of the violative condition (Kenny Richardson, 3
FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th
Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United
Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997)) in
order to have "knowingly acted" when he violated the standard
(Warren Steen Constr., Inc., 14  FMSHRC 1125, 1131 (July 1992)
(citing United States v. Int'l  Minerals & Chem. Corp., 402 U.S.
558, 563 (1971))).

     The record substantiates that Dress followed Lafarge's
supposedly industry standard procedures for inspecting the surge
bin prior to the repair work.  The judge found, and the Commission
majority agrees, that, industry standard or not, Lafarge's
procedures were insufficient in light of the potential for
entrapment, which actually occurred.  Slip op. at 7-8; 18
FMSHRC at 2209, 2212.  The judge also conceded "the company's
relative unfamiliarity with emptying the bin."  18 FMSHRC at
2210, 2212.  In fact, the judge went so far as to find:  "The
evidence leads inescapably to the conclusion that no one at Lafarge
knew enough about emptying the bin to be certain that the procedures
were adequate. . . .  The company should have required more."  Id. at
2209.  It is in this factual context that the Commission must
evaluate Dress' conduct.  Surely the Commission majority does not
intend to hold corporate agents automatically liable as individuals
for the unwarrantable violations of operators.  Are corporate agents
expected to possess greater experience and expertise than their
employers, as the judge and Commission majority would require
in the instant case?  "Knowing"  conduct arises not from a
presumption of omniscience, but is supposed to be viewed from the
perspective of a person exercising reasonable care under the
circumstances.  Kenny Richardson, 3 FMSHRC at 16 (quoting United States
v. Sweet Briar, Inc., 92 F. Supp. 777, 780 (W.D.S.C. 1950)).
Applying that principle here to what the judge describes as a "judgment
call" (18 FMSHRC at 2209) leads to the inescapable conclusion that
Dress could not have been expected to have knowingly acted in
violation of the standard.

     Accordingly, I would reverse the judge's section 110(c)
holding, which I believe lacks the requisite support in the record.


                              James C. Riley, Commissioner


     Commissioner Verheggen, concurring in part and dissenting in
part:

     I agree with my colleagues that the judge's finding of a
violation of section 56.16002(a)(1) is supported by substantial
evidence, and I concur in result with Part II.A of their opinion as
further explained below.  I disagree, however, with their
conclusion that the judge properly  found that the violation was
unwarrantable and that Theodore Dress was personally liable for it.
I therefore dissent from Parts II.B and II.C of the majority's 
opinion.

     1.   Violation

     I agree with my colleagues that Lafarge's repair activities
constituted "normal operations" as that phrase is used in
section 56.16002(a)(1), and were thus clearly covered by the
standard.  I disagree, however, with the basis for the
majority's finding of a violation.  They state that "the bin
was furnished  with vibrators and a scaling bar to remove
loose rock," and "conclude that the standard requires
effective use of" these devices.  Slip op. at 5.  They find
a violation because "Lafarge failed to effectively use
[these devices] to clear the loose materials before allowing
Harder to enter the bin."  Id.

     I find that Lafarge violated the standard on much narrower
grounds.  As my colleagues note, section 56.16002 "is
clearly designed to achieve a result."  Id.  Although they
fail to mention what that result is, I find the standard is
clearly intended to prevent miners from being "exposed to
entrapment by the caving or sliding of materials" in surge
bins such as that used by Lafarge, and in which "loose
unconsolidated materials are stored, handled or
transferred."  30 C.F.R. � 56.16002(a)(1).  Here, there is
no dispute that Harder was entrapped by a rock fall in the
surge bin.  18 FMSHRC 2199, 2204 (Dec. 1996) (ALJ).  In
light of this fact alone, I find that Lafarge violated the
standard, it being well established that operators are
liable without regard to fault for violations of the Mine
Act.  See, e.g., Asarco, Inc. v. FMSHRC, 868 F.2d 1195 (10th
Cir. 1989).

     2. Unwarrantable Failure

     In essence, the judge found that Lafarge had a heightened
duty of care because "patching the hole from inside the bin
potentially was a very dangerous job."  18 FMSHRC at 2209.
In support of his finding that Lafarge failed to meet its
duty of care, the judge observed that although the company
"relied on procedures normally used at the quarry to make
sure the bin was safe . . . [,] no one at Lafarge knew
enough about emptying the bin to be certain that the
procedures were adequate."  Id.  He concluded that Lafarge's
violation was unwarrantable insofar as "the company was
guilty of a serious lack of reasonable care" because it
"should have required more," such as requiring workers to
inspect the bin for loose material "from both below and
above," and to scale from above for loose material "no
matter how long the vibrators had run."  Id.

     I find the judge's analysis problematic for several reasons.
First, it is unclear from his decision what objective
criteria he used to conclude that Lafarge's conduct amounted
to "a serious lack of reasonable care."  Id.  In fact, the
only criteria he cites are Nelson's uncertainty regarding
"how long it took to clear the bin" and Inspector
Strickler's opinion that "[i]nspection [of the bin] from
above also was necessary."  Id.  I find these two factors
alone an insufficient basis on which to hold Lafarge
responsible for an unwarrantable failure to comply with
section 56.16002(a)(1), particularly when viewed in the
context of other findings made by the judge and the
testimony of Lafarge employees.

     Most of the facts of this case are undisputed.  The damage
to Lafarge's surge bin required that a repair be made inside
the bin.  Tr. 21.  Before making the repair, Lafarge
followed its standard practice of running the bin empty to
clear it of any loose material.  18 FMSHRC at 2203; Tr.
97-98.  Harder and Dress then visually examined the bin to
determine if any loose material remained.  18 FMSHRC at
2203; Tr. 23, 40-41; see also Tr. 98-99 (describing
operator's standard procedure "to check the bin for loose
material").  The judge noted that both men "concluded that
it was safe for Harder to patch the hole."  18 FMSHRC at
2203.  The judge also found that although Harder and Dress
saw some loose material, they determined that "the rock was
lying on the side of the dead bed away from the opening,"
and that they both believed it would not fall.  Id.

     Notably, there is no indication in the judge's opinion
that he discredited this testimony.  In fact, commenting
generally on the function of the dead bed, the judge agreed
with Harder and Dress that rock in the location where they
observed the loose material posed no hazard.  Specifically,
the judge found that "[r]ock on the sides of the ridges
opposite the openings slid[e]s away from the openings and
does not pose a hazard to anyone working below."  Id. at
2202 (emphasis added).  He further found that "[r]ock on the
other sides of the ridges slid[e]s down through the
openings" - and, presumably, could pose a significant hazard
to workers in the bin.  Id.  In view of these findings, I
believe that the critical question in this case is the
location from which the material fell on Harder.

     Unfortunately, the judge left this critical question
unanswered insofar as he failed to comment on Dress'
testimony that the loose material he observed "was on the
outside edge of the dead bed."  Tr. 41.  Instead, the judge
simply concluded that Lafarge's violation was unwarrantable
by virtue of the fact that Harder was trapped by falling
rock.  A more careful review of the record reveals that the
Secretary failed to adduce any evidence addressing the
question of the location from which the rocks fell.  This
holds true for her rebuttal case as well - she offered no
evidence to rebut Dress' testimony that the loose rock was
situated on what the judge found to be the safe side of the
dead bed.  See 18 FMSHRC at 2202.

     The record thus contains only evidence that any loose
material present was in a location from which the judge
found it would not pose a hazard.  I find that this
evidence, and the absence of any contrary evidence from the
Secretary, contradicts the judge's conclusion that the
violation was unwarrantable.  Indeed, I could affirm the
judge's conclusion only if I were to presume that the rock
that fell on Harder was on the hazardous side of the dead
bed, a presumption for which I can find no record
support.[1]

     Nor is there any evidence in the record concerning how 
the rock fall occurred - only that it occurred in the first
instance.  The closest the record comes to revealing the
cause of the accident is testimony by Dress that Harder
apparently climbed "off of the vibrator" up to a ledge, and
that this may have caused the material to fall.  Tr. 125-26.
Although the judge did not comment on this testimony in his
decision, it raises the possibility that Harder may have
jarred some rock loose when climbing up to the ledge.  If
true, this scenario would cast considerable doubt on the
judge's finding of unwarrantable failure, which rests
primarily on his conclusion that, in light of the high
degree of danger associated with working in the surge bin,
Lafarge did not do enough to ensure that there was no loose
rock in the bin before Harder entered it (18 FMSHRC at 2209-
10).  If Harder's actions caused the fall, however, there is
little Lafarge could have done to prevent the accident.  I
believe that the judge erred in failing to consider, and
make findings of fact concerning,  Dress' testimony
regarding whether Harder's actions might possibly have
caused the rock fall.

     Indeed, I find the judge's decision legally insufficient
because he failed to examine the various factors the
Commission has traditionally used in determining whether an
operator's conduct is unwarrantable.  These factors include
the extent of the violative condition, the length of time
that it has existed, whether the violation is obvious or
poses a high degree of danger, whether the operator has been
placed on notice that greater efforts are necessary for
compliance, the operator's efforts in abating the violative
condition, and the operator's knowledge of the existence of
the violation.  See Cyprus Emerald Resources Corp.,
20 FMSHRC 790, 813 (Aug. 1998); Midwest Material Co., 19
FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705,
709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603
(July 1984).

     Obviously, these factors need to be viewed in the context
of the factual circumstances of a particular case - some
factors may be irrelevant to a particular factual scenario.
But here, the judge did not go beyond examining the degree
of danger posed by Lafarge's violation - and erred as a
result.  The majority also fails to apply the Commission's
traditional unwarrantable failure test.  Instead, like the
judge, they collapse the test into a single dispositive
factor:  whether a "high degree of danger [is] posed by a
violation."  Slip op. at 6.  I find this approach at odds
with the Commission precedent, under which it is clear we
must look at a variety of factors when determining whether a
violation is unwarrantable.[2]  Moreover, I believe that the
"test" used by the judge and the majority hopelessly blurs
the distinction between gravity and the aggravated
negligence which the term "unwarrantable failure" describes.

     Examining factors other than the danger of the violation,
I find further reason to reverse the judge's unwarrantable
failure determination.  From the testimony of Dress and
Harder that they saw no danger when they inspected the bin,
for example, it follows that the danger here was anything
but obvious.[3]  Indeed, the judge acknowledged that had
Dress believed there was any danger, Dress would "never"
have assigned Harder to repair the bin.  18 FMSHRC at 2211.
And even the Secretary's key witness, Inspector Strickler,
conceded that any assessment of the condition of the bin
would have to have been based on "a judgment call."  Tr. 78.
It is clear from the record that no one at Lafarge actually
knew a violation existed.  Nor had the company been placed
on notice that greater efforts were necessary for
compliance.  In fact, the need to make repairs to surge bins
arose very infrequently (Tr. 34, 94-95), so the judge was
correct in noting "no one at Lafarge knew enough about
emptying the bin to be certain that the procedures were
adequate" (18 FMSHRC at 2209) - or, as the record amply
reveals, that the procedures were inadequate.  Based on the
unrebutted testimony of Harder and Dress that they believed
the bin was safe, testimony the judge recited in his
decision without disapproving it, Lafarge had no reason to
believe its procedures were inadequate.[4]  Accordingly, I
would reverse the judge's finding of unwarrantable failure.

     3. Section 110(c)

     I find the judge's conclusion that Dress was liable under
section 110(c) similarly lacking in record support or legal
foundation.  As the majority correctly states, section
110(c) liability arises when an individual "in a position to
protect employee 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," and that
such liability is predicated on aggravated conduct
constituting more than ordinary negligence.  Slip op. at 9.
Here, however, there was no "information" that would have
given Dress either actual knowledge or reason to know of the
existence of a violative condition in the surge bin.
Moreover, the record contains no evidence that Dress engaged
in any aggravated conduct - that he, for example, recklessly
disregarded an obvious hazard, or intentionally ordered
Harder to repair the bin knowing full well that a rock fall
was imminent, or was indifferent to Harder's safety.  Nor do
I find any evidence indicating he showed a serious lack of
reasonable care.

     To the contrary, the evidence - and more importantly, the
judge's findings - indicate that Dress acted in good faith
and with a degree of care appropriate to the conditions
apparently existing before the accident.  Indeed, the
conditions observed by both Harder and Dress posed no
apparent hazard.  They testified that some loose material
was present, but that it "was lying on the side of the dead
bed away from the opening" (18 FMSHRC at 2203), a position
from which the judge found rock "slid[e]s away from the
openings and does not pose a hazard to anyone working below"
(id. at 2202, emphasis added).  Moreover, the judge included
in his factual findings Dress' testimony that he did not
believe work in the bin posed any danger.  Id. at 2203.  The
judge also credited Harder's testimony "that Dress never
would assign [Harder] to do a job that Dress believed was
dangerous."  Id. at 2211.  In a similar vein, Harder
testified as follows after being examined and cross
examined:

          Could I just say one thing?  . . .  I'd just
          like to say on Ted's behalf that . . . I do
          not believe that . . . if he thought it was
          dangerous in there, I don't believe he would
          have ever sent me in there to do that job.

Tr. 37.

     But the most significant record evidence that contradicts
the Secretary's allegation that Dress' conduct was aggravated is
Inspector Strickler's remarkable statement that to assess the
safety of the bin would necessarily have involved "a judgment
call."  Tr. 78.  The term "judgment call" means "any subjective
or debatable determination[,] personal opinion or
interpretation."  Random House Dictionary of the English Language
1036 (2d ed. 1987).  In other words, a "judgment call" is a
determination on which reasonable minds might differ.  In support
of its affirming the judge's finding of section 110(c) liability,
the majority argues that Dress' "belief that Harder could safely
enter the surge bin was unreasonable."  Slip op. at 10.  Yet
Dress' belief was based on what the Secretary, through her
witness at trial, concedes was "a judgment call."  I fail to see
how Dress' conduct can be found unreasonable when it is a matter
on which even the Secretary concedes reasonable minds could
differ.  Nor do I believe that the majority's rationale is
supported by Commission precedent, under which more than mere
unreasonableness is required to support a finding of section
110(c) liability.

     Dress' reasonable, good faith belief that no hazard existed
in the surge bin is amply supported by the record, and leads me
to find the judge erred in finding section 110(c) liability.
Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (Aug. 1994).  Accordingly,
I would reverse the judge's finding.


                              Theodore F. Verheggen, Commissioner


Distribution


William K. Doran, Esq.
Heenan, Althen & Roles
1110 Vermont Avenue, N.W. Suite 400
Washington, D.C.  20005

Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1]:   The  majority  nevertheless  concludes  that  "[r]ock
falling inside the ridge was the rock that covered Harder."  Slip
op. at 7 n.5.  No citation to the record is offered in support of
this contention.  In fact, no such record evidence exists.

     [2]:  The cases on which  the  majority  bases  its test all
involved  more  than  just  danger  as  factors  contributing  to
findings   of   unwarrantable  failure.   See  Midwest  Material,
19 FMSHRC at 35 (finding "the obvious nature of the hazard" to be
"a further indication"  of  unwarrantable  failure in addition to
the  "extreme  danger" of the violation); Cyprus  Plateau  Mining
Corp., 16 FMSHRC  1604,  1608  (Aug. 1994) (unwarrantable finding
based  on  fact  the operator was "aware  of  the  shuttle  car's
serious brake problem  and  failed  to follow up appropriately by
remedying it"); BethEnergy Mines, Inc.,  14  FMSHRC 1232, 1243-44
(Aug. 1992) (operator "deliberate[ly]" removed  signs that warned
of dangerous roof conditions in violation of their own procedures
for  overriding  decisions to "danger off" areas);  Warren  Steen
Constr., Inc., 14  FMSHRC  1125, 1129-30 (July 1992) (considering
variety of aggravating factors, including fact that operator knew
and was specifically warned  that  work was taking place too near
power lines, and operator's inadequate  measures  taken  to guard
against  known  hazards  associated  with  power lines); Quinland
Coals,  10  FMSHRC  at 709 (finding unwarrantable  failure  based
primarily on "the extensive and obvious nature of the conditions,
the history of similar  roof  conditions,  and  [the  operator's]
admitted  knowledge of the conditions").  See also Rock  of  Ages
Corp., 20 FMSHRC  106,  115-16  (Feb.  1998) (considering various
factors in finding unwarrantable failure  in  addition to extreme
danger  associated  with  violation,  i.e.,  undetonated  pyrodex
explosives,  including  fact that a foreman's "discovery  of  the
four unexploded bags of pyrodex  should have alerted [him] to the
possibility of additional misfires,"  "the experimental nature of
the pyrodex blasting" at the operator's  quarry,  and  operator's
inability  to  explain  "its  negligence  and  the lack of safety
precautions").

     [3]:  The majority claims that "the judge's decision clearly
reflects his view that the danger was obvious."   Slip  op.  at 8
(citing  18  FMSHRC  at 2209).  In fact, he made no findings that
could support such an  inference  about  his views.  The majority
also  cites  a  Cyprus Emerald case for the proposition  that  an
"operator's awareness of . . . obvious danger supports" a finding
of unwarrantable  failure.   Id.  (citing  20  FMSHRC at 813-15).
Unlike  the  hazard  in  this  case, though, at issue  in  Cyprus
Emerald was a "very large refuse  pile  - estimated by MSHA to be
as much as 1 million tons," which the operator  had permitted "to
develop  over  18  years  without attention to commonly  accepted
engineering principles."  20 FMSHRC at 814.

     [4]:   Other  factors  traditionally   considered   by   the
Commission  that  do not appear to apply to this case include the
extent  of the violative  condition,  how  long  it  existed,  or
Lafarge's efforts to abate it.