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

 
ROCK OF AGES CORPORATION
February 24, 1998
YORK 94-76-RM


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                      WASHINGTON, D.C. 20006


                         February 24, 1998

SECRETARY OF LABOR,            :
 MINE SAFETY AND HEALTH        :
 ADMINISTRATION (MSHA)         :
                               :
     v.                        :   Docket Nos. YORK 94-76-RM
                               :            through 94-83-RM
ROCK OF AGES CORPORATION       :


BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
        Commissioners[1]


                         DECISION

BY THE COMMISSION:

     This consolidated contest and civil penalty proceeding,
arising under the Federal Mine Safety and Health Act of 1977
("Mine Act" or "Act"), 30 U.S.C. � 801 et seq. (1994),
involves citations issued by the Mine Safety and Health
Administration ("MSHA") against Rock of Ages Corporation
("ROA").  The citations at issue arose from an investigation
into a fatal accident at ROA's Smith Quarry and involve 30
C.F.R. Part 56, Subpart E, which governs the use and
handling of explosives at surface metal/nonmetal mines.
Administrative Law Judge Jerold Feldman upheld the citations
and assessed penalties totaling $180,000.  17 FMSHRC 1925
(November 1995) (ALJ).  The Commission granted the petition
for review filed by ROA in which it challenges the judge's
decision that ROA violated the Mine Act as charged in the
citations and that its violations were due to its
unwarrantable failure.  In addition, ROA challenges the
penalty assessment and contends that it did not receive a
fair trial because the judge was biased against ROA and its
counsel.  For the reasons that follow, we affirm the judge's
findings of violations and determinations of
unwarrantability; we reject ROA's allegations of bias; and
we vacate the penalty assessments and remand them for
further consideration.

                               I.

                Factual and Procedural Background

     A.   How Granite is Quarried

     ROA is a granite-quarrying company with twelve quarries and
over 300 employees.  17 FMSHRC at 1927; Tr. II 453.[2]  The Smith
Quarry, where the fatal accident occurred, is a massive granite
formation where granite is quarried through the removal of large
benches in the shape of cubes.  17 FMSHRC at 1927.  A typical
bench is 40 feet wide, 35 feet deep and 16 feet high.  Id. at
1929.

     In the beginning of the quarrying process, an automatic
torch is used to burn a channel or seam, approximately 6 inches
wide, around the top of a bench to separate the bench for
blasting and quarrying.  Id.  The channel burning begins at the
front face on top of a bench, proceeds across one side, across
the back, across the opposite side, and ends back at the front
face.  Id. Burning the channels on the bench takes approximately
15 days.  Id.  After the channels are burned, a series of holes
are drilled horizontally at intervals along the bottom of the
base of the bench.  Id. at 1930.  The holes are approximately 1
7/8 inches in diameter and 32 feet long.  The horizontal "lift"
or detonation holes are completed after about 26 days into
quarrying the bench.  Id.  Next, a series of vertical holes are
drilled every 5 1/2 feet in the top of the bench to within about
1 foot of the horizontal lift holes.  Id.  The vertical holes are
completed after about 34 days into the quarrying process.  Id.

     The bench is separated from the quarry floor by detonating
explosives loaded into the horizontal lift holes.  Id.  Not all
the holes are loaded and different loading patterns - explosives
in every third or fourth hole - are used.  Id.  With the
exception of seven pyrodex shots from February to July 1993, ROA
used seismic cord, which is a continuous rope-like cord of
blasting material, placed in various lift holes, connected to a
trunk line and detonated by blasting caps.  Id.  Following a
detonation, the powderman, his assistant and a foreman go to the
face of the bench to evaluate the success of the lift and check
for any misfires.  Id.  They look for proper cracking from lift
hole to lift hole, signs of discoloration from blast residue, and
any evidence of non-detonated blasting materials.  Id.  The
greatest danger with undetonated seismic cord arises when it
breaks as it is being unrolled and pushed into the lift holes;
however, the powderman generally can detect such a break because
the roll of cord usually stops before reaching the back of the
bench.  Id. at 1931. The blasting process occurs after 35 days
into quarrying the bench.  Id. at 1930.

     After the detonation, the bench is further divided by
driving shims and wedges into the vertical holes drilled at 5 1/2
foot intervals on top of the bench.  Id.  Slabs are split off
from the main bench by a front-end loader with a boom.  Id.  As
each slab is removed, new stone is exposed and the powderman
conducts a further examination of the newly exposed area.  Id. at
1930-31.  When a lift is clean, the top half of the hole becomes
part of the lifted bench, and the bottom half becomes the top of
the bench to be quarried on the next level below.  Id. at 1927.
If the lift is not clean, "caprock," or a layer of rock over the
lift hole, may remain in place on the surface after the bench is
removed with the lift hole intact, sometimes with undetonated
explosives inside.  Id. at 1927-28.  Similar to caprock,
"underbreak" occurs when the rock underneath the lift holes
cracks, leaving lift holes intact that are removed as the
vertical slabs of the bench are quarried.  Tr. II 528-29.

     The slabs are split into smaller pieces of granite that are
transported from the bench to a loading area where they are
lifted by a derrick out of the quarry.  17 FMSHRC at 1931.  This
process is repeated until the entire bench is removed, a process
that takes about 10 to 12 days after the blasting.  Id.  In all,
the entire bench is quarried in a period of about 47 days from
the initial channel burning.  Id.  After the bench has been
removed, the surface is cleaned and scraped with a loader and
examined further.  Tr.  II 843-45.  The granite surface
underneath the removed bench then becomes the top of the bench
that will be quarried in future years as the level of the quarry
descends.

     B.   The Use of Pyrodex as an Explosive

     Beginning in 1986, ROA tested the use of pyrodex as a
substitute for seismic cord.  17 FMSHRC at 1932.  The Hodgdon
Powder Company manufactures pyrodex, which has the same chemical
ingredients as black powder plus additional binders and burn rate
modifiers.  Id. at 1931.  Pyrodex is generally referred to as a
"replica" of black powder and is classified as a Class B
explosive by the United States Department of Transportation
("DOT"), while black powder is a Class A explosive.[3]  Id. at
1931, 1932.  Black powder is a detonating explosive, while
pyrodex is a propellant explosive.  Id. at 1931.  A propellant
explosive generates gas and energy as it burns; a detonating
explosive generates gas, energy and shock when it detonates.  Id.
at 1931-32.  Pyrodex is regarded as having superior qualities in
blasting rock without radial fracturing, which causes more waste.
Id. at 1932.

      ROA performed several test detonations with pyrodex in
1986, but decided against further use of it because of the labor
needed to pressurize the hole in which the pyrodex was used.  Id.
Pressurization, which could be accomplished through stemming the
collar of the lift hole with rags or paper, was essential for
proper lift.  Id.  Pressurization also channeled gas and energy
to the back of the hole to ensure that other bags of pyrodex in
the middle and rear of the hole would ignite following ignition
of pyrodex in the front of the hole, which was accomplished with
an electric "squib," sometimes referred to as a match.  Id.  A
further test detonation in 1987 did not adequately split the
granite bench, and ROA ceased experimenting with pyrodex.  Id.
Hodgdon Vice President Glenn Barrett supervised the test firings
in 1986 and 1987.  Id.

     In January 1993, ROA informed Hodgdon that it was interested
in resuming use of  pyrodex as an explosive.  Id. 1933.  Hodgdon
Vice President Barrett sent ROA information concerning the use
and handling of pyrodex.  Id.  Barrett recommended that pyrodex
be used by spacing several bags of it in a pressurized 30 to 40-
foot lift hole without using any connecting detonating cord.  Id.
The bag of pyrodex in the front of the lift hole was ignited by
using the electric squib.  Id.  Succeeding bags were ignited by
the first detonation if there were no obstructions in the hole.
Id.

     From February to May 1993, ROA used pyrodex at the Smith
Quarry and a second quarry.  Id.  Because ROA did not generally
use pyrodex in quarrying, it prepared detailed blasting reports,
specifying the location and dimensions of the bench at which
pyrodex was used, the number and loading sequence of bags of
pyrodex in each lift hole, and the number and location of lift
holes that were loaded.  Id. at 1933-34.  On June 22, 1993, the
pertinent report indicates that the 42-foot bench had 80 lift
holes that were 37 feet deep and spaced at 6-inch intervals
across the face.  Id. at 1934.  Four bags of pyrodex were placed
in each fourth hole.[4]  Id. One bag was placed in the front of
each hole, one in the middle, and two in the back, approximately
32 to 37 feet away from the mouth of the hole.  Id.; Ex. R-7.
Neither blast foreman Earl Kelty nor powderman Bud Reynolds
pressurized the lift holes in which pyrodex was used.  Tr. I 588-
89.  Following the blast, Kelty and Reynolds inspected the bench
and reported their observations of the condition of the bench in
the blast report.  17 FMSHRC at 1934.  Other blast reports
indicated significant variation in the number and sequence of
lift holes loaded and the number of bags of pyrodex loaded into
each hole.  See Ex. R-7.

     C.   Eventsz Surrounding the Fatal Accident

     Around July 1, 1993, derrick operator Earnest Batchelder was
loading blocks of granite to be lifted out of the quarry when he
saw four unexploded bags of pyrodex that were shaken loose and
hanging from one of the blocks.  17 FMSHRC at 1934.  There were
no detonators attached to the bags.  Id. at 1935.  He reported
the presence of the bags to Foreman Kelty.  Id.  Subsequently,
Kelty noted on the report for the June 22, 1993 pyrodex blast
that four bags of pyrodex had failed to detonate.  Id.; Ex. R- 7.
However, Kelty did not conduct any further search to check for
the presence of more undetonated pyrodex.  17 FMSHRC at 1935-36.
MSHA Inspector Donald Fowler testified without contradiction that
he questioned Kelty during the investigation into the accident as
to why he did not follow up on the discovery of the undetonated
bags of pyrodex and Kelty responded that he "forgot."  Id.; Tr. I
586-87.

     On May 20, 1994, channel burner operator Michael Bassett had
completed a channel on the side of a bench and was initiating the
burning of a channel at the rear of the bench.  17 FMSHRC at
1936.  Unbeknownst to Bassett, his torch passed within two feet
of a lift hole with two bags of unexploded pyrodex that remained
from the detonation and quarrying of the bench directly above the
new bench.  Id.  His torch then passed over three empty holes.
Id. at 1937.  Just before 11:00 a.m., Bassett's torch ignited two
unexploded bags of pyrodex as he passed over another lift hole.
Id. at 1936-37.  Bassett was thrown 10 feet into the air and
killed instantly.  Id. at 1936.

     A subsequent search for more unexploded pyrodex on the bench
where the accident occurred revealed seven more lift holes, each
with two bags.  Id. at 1937.  A total of 22 bags of pyrodex were
discovered - the four bags uncovered in 1993, the four bags that
Bassett encountered on the day of the accident, and the 14
additional bags uncovered after the accident.[5]  Id.  Based on
the loading sequence of the lift holes and the loading pattern
within the holes, MSHA concluded that the accident location was
at the base of a removed bench where ROA had used pyrodex on June
22, 1993.  Id.  The 22 misfires represented 26 percent of the 84
bags of pyrodex loaded into the lift holes for the June 22
detonation.  Id.

     Following its accident investigation, MSHA issued four
citations against ROA.  Id. at 1928.  MSHA charged ROA with
violating 30 C.F.R. � 56.6311(b), for permitting work other than
work necessary to remove a misfire in the blast area; 30 C.F.R. �
56.6306(g), for permitting work to resume prior to an adequate
post-blast inspection following the June 22, 1993 detonation; 30
C.F.R. � 56.6904, for permitting an open flame within 50 feet of
explosive material; and 30 C.F.R. � 56.6300(a), for inadequately
training blasting personnel.  Id. at 1928-29.  MSHA alleged that
the violations were significant and substantial ("S&S")[6] in
nature and a result of ROA's unwarrantable failure.

     D.   Judge's Decision

     Following an eight-day hearing, the judge issued his
decision in which he affirmed the four citations and determined
that the violations were S&S and occurred as a result of ROA's
unwarrantable failure.  17 FMSHRC 1938-54.  The judge assessed
penalties totaling $180,000 based on the four violations and
special findings.  Id. at 1954.

                               II.

                           Disposition

     A. Whether Pyrodex Misfires Are Governed by Part 56 Regulations

     Before the judge, ROA argued that pyrodex was not an
explosive and, therefore, not covered by the Part 56 regulations.
17 FMSHRC at 1938; ROA Post-Trial Br. at 9-11.  ROA has abandoned
this argument on review, contending instead that, because pyrodex
burns rather than detonates, it does not fit within the
definition of "misfire" in 30 C.F.R. � 56.6000.[7]  ROA Br. at
26-27 n. 21.  In response, the Secretary contends that pyrodex is
an explosive under DOT regulations, 49 C.F.R. � 173.88 (1996),
and to interpret the misfire regulations to exclude pyrodex would
defeat their purpose.  S. Br. at 47 n. 19.  The Secretary argues
that the regulatory history of the Part 56 regulations
demonstrates her intent to include all explosives that fail to
perform as planned.  Id. at 47-48.

     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.  Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
1987); see also Utah Power & Light Co., 11 FMSHRC 1926, 1930
(October 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(August 1993).  If, however, a regulation is ambiguous, courts
have deferred to the Secretary's reasonable interpretation of it.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994); accord Secretary of Labor v. Western Fuels-Utah, Inc., 900
F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation is `of
controlling weight unless it is plainly erroneous or inconsistent
with the regulation'") (quoting Bowles v. Seminole Rock Co., 325
U.S. 410, 414 (1945)).  The Secretary's interpretation of a
regulation is reasonable where it is "logically consistent with
the language of the regulation[s] and . . . serves a permissible
regulatory function."  General Elec. Co. v. EPA, 53 F.3d 1324,
1327 (D.C. Cir. 1995) (alteration in original) (quoting Rollins
Environmental Services, Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir.
1991).  The Commission's review, like the courts', involves an
examination of whether the Secretary's interpretation is
reasonable.  Energy West, 40 F.3d at 463 (citing Secretary of
Labor on behalf of Bushnell v. Cannelton Indus., Inc., 867 F.2d
1432, 1439 (D.C. Cir. 1989)); see also Consolidation Coal Co., 14
FMSHRC 956, 969 (June 1992).

     Because the regulation at issue here is ambiguous, we defer
to the Secretary's reasonable interpretation.  The Secretary
correctly notes that the regulatory definition of explosives
includes pyrodex.  The MSHA regulations defining "explosives"
incorporate by reference regulations issued by DOT and its
classification of explosives.  30 C.F.R. � 56.6000.  These DOT
regulations clearly include propellants as explosives.  49 C.F.R.
� 173.59.

     Although ROA concedes that pyrodex is an explosive, it
nonetheless argues that because pyrodex burns rather than
detonates, the definition of misfire does not include pyrodex.
ROA Br. at 26 n. 21.  This interpretation, however, would create
glaring inconsistencies in the regulations - pyrodex would be
covered for some purposes of the MSHA regulations but not for
others.  Further, the regulatory history of the definition of
"misfire" at 30 C.F.R. � 56.6000 indicates that the choice of the
word "detonate" was not intended to carry with it any technical
meaning but was substituted for the word "explode" to maintain
"consistency" in terminology.  See 56 Fed. Reg. 2070, 2073
(1991).

     Failing to interpret the regulations to include pyrodex
would defeat the Mine Act's purpose of enhancing miner safety
through the regulations.  See Emery Mining Corp. v. Secretary  of
Labor, 744 F.2d 1411, 1414 (10th Cir. 1984).  For these reasons,
we affirm the judge's determination that pyrodex misfires are
covered by the Secretary's Part 56 regulations.

     B.   Section 56.6311(b)[8]

     1.   Violation

     ROA argues that it complied with subsection (b) when it
properly disposed of the four misfires located by derrick
operator Batchelder, noting that it was not cited under
subsection (a) of the standard for failing to properly examine
the blast site.  ROA Br. at 27-28.  ROA further argues that the
judge misinterpreted the language of the regulation by requiring
it to seek and remove misfires throughout the bench removal
process.  Id. at 28-29.  ROA contends that the judge's
interpretation and application of the regulation in requiring ROA
to search for further misfires once the four misfires were found
is contrary to the plain language of the regulation.  Id. at 29-
32.  Finally, ROA concludes that, because the citation was not
based upon any work performed at the quarry prior to the disposal
of the four bags of pyrodex discovered by Batchelder, the
citation must be vacated.  Id. at 32.

     The Secretary responds that the judge correctly accepted her
interpretation of section 56.6311(b) that operators must properly
handle and dispose of misfires about which they know or should
know.  S. Br. at 48.  The Secretary further contends that the
standard must be read in its entirety because the obligation to
properly handle a misfire does not arise unless there has been an
examination for misfires.  Id. at 47-50 n. 19.  Finally, the
Secretary argues that her interpretation is consistent with the
regulatory history and the protective purposes of the Act and
that it would defeat the purposes of the Act and the standard if
ROA were only required to dispose of known misfires when it has
reason to believe there are other misfires.  Id. at 50-51.

     The judge held that ROA violated the standard when it did
not make a reasonable effort to locate and remove misfires at the
quarry after Batchelder's discovery of the four bags of pyrodex.
17 FMSHRC at 1948.  We agree with the judge that ROA violated the
standard, but for reasons different than those relied on by the
judge.

     The "language of a regulation . . . is the starting point
for its interpretation."  Dyer v. United States, 832 F.2d at 1066
(citing Consumer Product 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.  Id.; Utah Power & Light Co., 11 FMSHRC
at 1930; Consolidation Coal, 15 FMSHRC at 1557.

     The citation at issue charged ROA with violating section
56.6311(b) by permitting "work not necessary to remove a misfire
and protect the safety of miners" on the accident bench.
Citation No. 4282251.  The clear language of the standard
restricts the work that can be performed in an area containing
misfires.  Barrett was killed while he was burning a channel when
his torch made contact with unexploded bags of pyrodex.  Channel
burning does not constitute work "necessary to remove a misfire
or protect the safety of miners," and therefore cannot be carried
out in an area that contains misfires.  Thus, ROA's authorization
of Bassett's channel burning violated the plain terms of the
regulation.

     ROA argues that the standard only applies "where a misfire
has been found."  ROA Br. at 32.  The operator further contends
that it fully complied with the standard because Kelty's
inspection of the blast site immediately after the June 22
detonation disclosed no misfires,[9] and ROA properly disposed of
the misfires that Batchelder subsequently found on July 1.  Id.
However these contentions are without merit.  As the Commission
has previously stated, "[t]he Mine Act is a strict liability
statute and an operator may be held liable for violations without
regard to fault."  Wyoming Fuel Co., 16 FMSHRC 19, 21 (January
1994).  The standard prohibits all but a specific category of
work in areas containing misfires.  ROA's interpretative gloss on
the standard - that it only applies once a misfire has been found
-  is contrary to the clear language of the standard.[10]
Whether or not ROA knew or had reason to know about the presence
of the misfires at the accident bench, the prohibition applied to
Bassett's activity.

      2.   Unwarrantable Failure[11]

      The unwarrantable failure terminology is taken from section
104(d) of the 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 (December 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 (February
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 (August 1992) (finding unwarrantable failure where
unsaddled beams "presented a danger" to miners entering area);
Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992)
(finding violation 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").

     We agree with the judge that the violation of the standard
was the result of ROA's unwarrantable failure.  See 17 FMSHRC at
1948-49.  The discovery of the four unexploded bags of pyrodex
should have alerted foreman Kelty to the possibility of
additional misfires, particularly in light of the experimental
nature of the pyrodex blasting.  As a supervisor, Kelty had to
appreciate that any pyrodex misfires would pose an extreme danger
to the miners in the area.  As the judge noted (17 FMSHRC at
1948), unexploded bags of pyrodex would not lie harmlessly under
piles of rock but would eventually be exposed as benches were
removed and pose a hazard as channel burning resumed.  As a
supervisor, Kelty is held to a high standard of care.  Midwest
Material Co., 19 FMSHRC 30, 35 (January 1997).  We agree with the
judge that Kelty's failure to order any meaningful search for
unexploded pyrodex, such as probing caprock at the blast site,
"evidenced a callous disregard for the hazards associated with
misfires."  17 FMSHRC at 1948; see also Midwest Material Co., 19
FMSHRC at 35 (foreman's negligent conduct in the face of obvious
hazard indicates serious lack of reasonable care).  Finally,
ROA's failure to provide any explanation for its negligence and
the lack of safety precautions that resulted in this fatal
accident supports an unwarrantable failure determination.
Midwest Material Co., 19 FMSHRC at 35.  In short, the record
evidence overwhelmingly supports the judge's determination that
ROA's violation was the result of a lack of reasonable care
greater than ordinary negligence serious enough to constitute
aggravated conduct.

     C.   Section 56.6306(g)[12]

     1.   Violation

     The judge affirmed the citation charging a violation of
section 56.6306(g) for exposing miners to hazardous
conditions, because a qualified person failed to inspect the
blast site.  17 FMSHRC at 1949-50.  The judge rejected ROA's
argument that the regulation did not apply to areas blasted
before January 31, 1994, the effective date of the
regulation.  Id. at 1950.  The judge also rejected ROA's
argument that it had already "resumed work" at the blast
site in 1993 when it continued to quarry the June 22, 1993
bench.  The judge held that resumption of work is a
"continuing process" and that ROA did not escape liability
by resuming work prior to implementation of the standard.
Id.

     ROA's main argument is that the provision did not go into
effect until January 31, 1994, well after the June 22, 1993
pyrodex blast, and that the standard may not be applied
retroactively.  ROA Br. at 32.  ROA further argues that the
provision only requires a single post-blast examination and
that the judge interpreted it to require multiple
examinations for a blast that occurred well before the
effective date of the standard.  Id. at 32-34.  ROA contends
that the standard fails to inform a "reasonably prudent
quarry operator" that it applies to events prior to its
effective date.  Id. at 35.  ROA argues that, even if the
standard is applied retroactively, it resumed work after the
1993 blast, following a properly conducted post-blast
inspection.  Id. at 35-38.

     The Secretary responds that the violative conduct occurred
at the time of the fatal accident on May 20, 1994, after the
effective date of section 56.6306, when ROA failed to
conduct an adequate post-blast examination.  S. Br. at 53.
The Secretary contends that ROA's interpretation of the
regulation is contrary to its history and purpose.  Id. at
53-54.  The Secretary further argues that in the context of
granite quarrying, section 56.6306(g) requires continuing
inspections for misfires as new rock is exposed.  Id. at 54.
The Secretary notes that the preamble to section 56.6306(g)
explained that the subsection requires "post-blast
examinations to minimize hazards to persons who will perform
subsequent work in the area."  Id. at 55 (citing 55 Fed.
Reg. 69,596, 69,603 (1993)).  The Secretary contends that
the duty to inspect included a duty to probe lift holes
under caprock.  Id. at 57.

     Section 56.6306(g) was issued in January 1991, along with
other regulations dealing with explosives at surface
metal/nonmetal mines.  The preamble to the 1991 Federal
Register publication stated:

          Paragraph (g) is a new provision requiring
          post-blast examinations to minimize hazards
          to persons who will perform subsequent work
          in the area. . . . Trained and experienced
          persons conduct these examinations and would
          address all the potential hazards present at
          a blast area including ground conditions
          [and] undetonated explosives . . . .

56 Fed. Reg. at 2081.[13]

     If, as in this instance, a standard is ambiguous, we defer
to the Secretary's reasonable interpretation of the regulation.
See cases cited slip op. at 6.  Contrary to ROA's argument, there
is nothing in the plain language of the regulation that requires
only a single inspection at a blast site.  To the extent ROA
relies on the reference in the rule to "a . . .  post-blast
examination" (ROA Br. at 32), the regulation is either silent or
ambiguous on the issue of what may trigger the inspection.  The
preamble cited by the Secretary is fully consistent with her
reading of the regulation that multiple inspections might be
necessary depending on the hazards and the people in the area
performing subsequent work.  See also Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).

     As the judge held, "the concept of resumption of work is a
continuing process."  17 FMSHRC at 1950.  Indeed, it is apparent
from the practice at ROA's quarry that inspections in blast areas
were an ongoing process.  See id. at 1931.  Thus, ROA's argument
that resumption of work occurred only once while quarrying a
bench and that, for the accident bench, it occurred in 1993
following the blast at the bench, is contrary to the record.  As
ROA noted in its post-trial brief to the judge:

               After the immediate post-blast
          examination, the nature of the ROA quarrying
          process necessarily produces subsequent
          examinations of the bench.  As Mr. Murray
          explained, lines are split and toppled away
          from the blasted bench.  This process exposes
          new stone as each line is removed.  The ROA
          powdermen perform a safety inspection before
          each line is toppled.  Then, after each new
          line is exposed, the powdermen examine the
          freshly exposed stone for misfires and other
          safety hazards in the same manner as they did
          the face.

ROA Post-Trial Br. at 22.  See also PDR at 7 n. 11; 17 FMSHRC at
1947.  This process was repeated when removal of the bench was
completed, the floor of the bench was completely exposed, and
preparation for quarrying on the top of the adjacent bench was
begun.  See generally Tr. II 841-45 (testimony of ROA witness
Bolio).[14]

     In short, ROA's practice belies the interpretation of
section 56.6306(g) it urges before the Commission - that the
regulation only requires one examination before work resumes on
the bench following a blast.  Application of the regulation to
require ongoing examinations of the quarry floor, especially
prior to resumption of channel burning on the adjacent bench, is
reasonable.[15]  The operative events to which the regulation
applies are not, therefore, the June 1993 blast and subsequent
inspection by foreman Kelty and Reynolds.  Rather, ROA had an
ongoing obligation to inspect the blast site as new granite was
exposed during the quarrying process.  Thus,  ROA's retroactivity
argument fails.

     2.   Unwarrantable Failure

     We agree with the judge that the violation was the result of
ROA's unwarrantable failure.  See 17 FMSHRC at 1950.  In light of
the discovery of the four unexploded bags of pyrodex in 1993,
Kelty's failure to probe the caprock for more misfires evidenced
a disregard for the hazards associated with misfires in the
presence of torch flames. The danger of misfires was evident from
the fact that they would eventually be uncovered as benches were
removed in the quarrying process.  This obvious danger supports
the judge's unwarrantable failure determination.  See BethEnergy
Mines, 14 FMSHRC at 1243-44.  The discovery of 40 bags of pyrodex
after the fatal explosion further indicates the inadequacy of
ROA's efforts to ensure that misfires were not present before
miners resumed work on benches after detonations.  Substantial
evidence supports the judge's findings.  Accordingly, we affirm
the judge's unwarrantable failure determination with respect to
this violation.

     D.   Section 56.6904[16]

     1.   Violation

     The judge affirmed the citation charging a violation of
section 56.6904, which prohibits the use of an open flame within
50 feet of explosive material.  17 FMSHRC at 1951-52.  The judge
found that ROA had constructive knowledge of the likelihood of
the existence of unexploded pyrodex once derrick operator
Batchelder discovered the four bags of pyrodex.  Id.  He further
found that ROA had actual knowledge of the placement of the
explosives and location of the bench from which those unexploded
bags came.  Id. at 1951. Thus, the judge concluded that
permitting the use of the channel burning torch in light of that
actual and constructive knowledge established a violation of the
standard.  Id. at 1952.

     ROA argues that the phrase "shall not be permitted" requires
knowledge on the part of the operator before a violation can be
established.  ROA Br. at 38.  ROA contends that, because it was
not aware of the location of any misfire, the citation must be
vacated.  Id. at 39-40.  ROA further argues that the record does
not support a finding of constructive knowledge of misfires.  Id.
at 40-41.  ROA also contends that application of section 56.6904
has been limited to storage or placement of explosives, not
misfires.  Id. at 38-39.

     In response, the Secretary contends that, as used in the
regulation, the term "permit" does not require that the operator
know that flames are being used within 50 feet of explosives.  S.
Br. at 58-59.  Even if it did, the Secretary continues, knowledge
includes constructive knowledge, deliberate ignorance, and
reckless disregard.  Id.  Lastly, the Secretary notes that MSHA
should not be estopped from citing a mine operator for having an
open flame within 50 feet of a misfire because it has not applied
the regulation in that circumstance before.  Id. at 60 n. 25.

     We agree with the Secretary that the regulation does not
require actual knowledge on the part of the operator.  Such an
interpretation of the standard would undermine the strict
liability principles of the Mine Act.  See generally Western
Fuels-Utah, Inc., 10 FMSHRC 256 (March 1988).  We note that other
more commonly cited standards use the word "permitted" (see 30
C.F.R. � 75.400 ("Coal dust . . . and other combustible
materials, shall be cleaned up and not be permitted to accumulate
in active workings, or on electric equipment therein.")), and the
Commission has not held knowledge to be a prerequisite to finding
a violation of those regulations.

     Chairman Jordan and Commissioner Marks would affirm the
judge's determination that ROA violated the standard and that the
violation was the result of ROA's unwarrantable failure.
Commissioner Riley and Commissioner Verheggen would reverse the
judge's determination that there was a violation.  Under
Pennsylvania Electric Co., 12 FMSHRC 1562, 1562-63 (August 1990),
aff'd on other grounds, 969 F.2d 1501 (3rd Cir. 1992), the effect
of a tie vote is to allow the judge's decision to stand as if
affirmed.[17]

     E.   Section 56.6300(a)[18]

     1.   Violation

     The judge found that ROA violated section 56.6300(a) when it
permitted miners who were not properly trained and experienced in
the use of pyrodex to direct the June 22, 1993 blast.  17 FMSHRC
at 1952-54.  The judge relied on the 26 percent misfire rate of
the June 22 detonation and foreman Kelty's failure to take any
meaningful action following Batchelder's discovery of the four
bags of unexploded pyrodex.  Id. at 1953.  The judge further held
that the violation was due to ROA's unwarrantable failure in
light of its apparent failure to follow proper loading procedures
for pyrodex.  Id.  In addition, the judge noted the lack of
training of ROA personnel during the six years after the initial
use of pyrodex in 1986.  Id. at 1954.  Finally, in upholding the
unwarrantable failure designation, the judge noted that it was
the absence of a competent inspection following the discovery of
the misfires that led to Bassett's death, rather than problems
related to the loading procedures of pyrodex.  Id. at 1954.

     ROA argues that it satisfied the training requirement of the
regulation because its employees were trained in "explosives."
ROA Br. at 41-42.  Further, ROA argues that its employees were
trained in the use of pyrodex as a result of the visits of Dean
Barrett, vice president of Hodgdon Powder.  Id. at 42.  According
to ROA, section 56.6300(a) does not  require retraining.  Id. at
43.  Finally, ROA contends that the existence of misfires and an
accident does not prove the training violation.  Id. at 44.

     The Secretary counters that the regulation requires training
in the particular explosive used at the mine, not simply training
in handling any explosive.  S. Br. at 61-62.  The Secretary
relies on the language of the preamble to support her contention
that training in the specific explosive in use is required.  Id.
at 62-63.  According to the Secretary, the record evidence
supports the judge's finding that neither foreman Kelty nor
powderman Reynolds were trained by Barrett in the use of pyrodex.
Id. at 63-64.  The Secretary further contends that neither were
trained to look for misfires.  Id. at 64-65.

     The judge concluded that the standard requires that blasting
personnel be trained and experienced in the "particular explosive
being used."  17 FMSHRC at 1952.  We agree.  The preamble to the
standard in the Federal Register illustrates the Secretary's
intent to require training in explosives actually utilized by
employees:

          The training and experience needed to
          supervise or direct blasting operations in
          today's mines where the technology is
          continually changing and may exceed the
          training provided to miners who simply handle
          explosives under a supervisor's direction.
          As new explosive materials are introduced at
          the mine, the persons directing the blasting
          operations must be trained in the safe
          handling and use of the products. . . .
          These new products may create hazards in
          storage, transportation, loading, blast hook-
          up, blast area security,  firing and post
          blast examinations.  Training must address
          these areas where appropriate.

56 Fed. Reg. at 2079.  We agree with the Secretary that, in order
to avoid "absurd results" (see Consolidation Coal, 15 FMSHRC at
1557), the standard must be interpreted to require that
individuals handling explosives be trained in the type of
explosives they are actually utilizing.  This is demonstrated
here where ROA employees, who were trained and experienced in the
use of black powder, were clearly ill prepared to properly handle
and dispose of pyrodex.  ROA's insistence that general training
in explosives suffices to meet the standard's requirements is
antithetical to the Mine Act's goal of protecting miner safety.
See Freemen Coal Mining Co. v. Interior Board of Mine Operations
Appeals, 504 F.2d 741, 744 (7th Cir. 1974).

     Moreover, the record shows that Hodgdon Vice President Dean
Barrett did not recall that Kelty or Reynolds were present in
1986 or 1987 during the experimental testing of pyrodex.[19]  17
FMSHRC at 1953.  Nor was there any evidence that anyone at ROA
had been trained during the six-year interval between the test
firings and the resumed use of pyrodex in 1993.  Id. at 1953-54.
Further, as the Secretary points out (S. Br. at 64), Barrett
testified without contradiction that, during the 1986-87
experimental blasts, he did not participate with anyone at ROA in
a post-blast examination.  Tr. I 177-78.  Finally, the judge
relied on the 26 percent misfire rate of pyrodex, and foreman
Kelty's failure to engage in a further search for additional
misfires after Batchelder's discovery of the four bags, as strong
circumstantial evidence of inadequate training in light of the
sequential ignition process.[20]  17 FMSHRC at 1952-53, 1954.  On
this record, substantial evidence supports the judge's findings
that Kelty and Reynolds had not been adequately trained in the
use and handling of pyrodex.  Accordingly, we affirm the judge's
finding of violation.

     2.   Unwarrantable Failure

     We also agree with the judge that the violation was the
result of ROA's unwarrantable failure.  Even if Kelty and
Reynolds were present at the 1986-87 test firings of pyrodex, it
is apparent from the testimony of Barrett that no one from ROA
was trained in how to conduct a post-blast examination.  As MSHA
Inspector Fowler testified, Reynolds stated during the accident
investigation that he did not know how to search for a pyrodex
misfire.  17 FMSHRC at 1953.  Kelty clearly failed to understand
the significance of the sequential ignition process, as evidenced
by his lack of followup after Batchelder's discovery of the
misfires.  Substantial evidence supports the judge's
determination.  Therefore, we affirm the judge's ruling that
ROA's failure to adequately train employees using pyrodex, given
the extreme consequences of misfires in the presence of a
channel-burning torch, was an unwarrantable failure to
comply.[21]

     F.   Whether the ALJ Denied ROA Due Process

     ROA argues that the judge was biased against ROA.  ROA Br.
at 57-62.  ROA contends that the judge's decision itself
evidenced a lack of impartiality, noting several of the
judge's characterizations of ROA's position.  Id. at 58.
ROA asserts that the judge exhibited bias in the hearing and
cites 15 instances of conduct that, according to ROA,
support a finding of bias.  Id. at 58-62.  In response, the
Secretary argues that ROA has not pointed to any direct
evidence of bias but rather asks the Commission to infer
bias from rulings of the judge.  S. Br. at 77.  The
Secretary contends that the judge's actions in sustaining
objections, questioning witnesses, and making findings
adverse to ROA are insufficient to support a finding of
bias.  Id. at 78-80.  The Secretary also notes that the
judge made many rulings during the hearing favorable to ROA
and that ROA's counsel engaged in provocative conduct at the
hearing.  Id. at 80-81.

     When reviewing matters involving a judge's conduct of trial,
the Commission is governed by the abuse of discretion
standard.  See, e.g., In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1843-44, 1853,
1864 (November 1995), appeal docketed sub nom. Secretary of
Labor v. Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir.
Dec. 28, 1995); Big Horn Calcium Co., 12 FMSHRC 1493, 1496
(August 1990).  With regard to the judge's role at trial,
the Commission has stated, "a judge is an active participant
in the adjudicatory process and has a duty to conduct
proceedings in an orderly manner so as to elicit the truth
and obtain a just result."  Secretary on behalf of Clarke v.
T.P. Mining, Inc., 7 FMSHRC 989, 993 (July 1985).  In
reversing a judge's sua sponte post-hearing joinder of a
party, the Commission held, "[t]he role of the Commission
and its judges is to adjudicate, not to litigate cases - a
procedural axiom followed by this Commission from its
formation."  Lonnie Jones v. D&R Contractors, 8 FMSHRC 1045,
1053 (July 1986).

     Addressing allegations of judicial bias that deprived a
party of a fair trial, one court has noted that a judge "has
the prerogative to interrogate witnesses, and the duty to do
so where necessary to clarify testimony, but the judge must
maintain an air of impartiality."  Deary v. City of
Gloucester, 9 F.3d 191, 195 (1st Cir. 1993); see also
Canterbury Coal Co., 1 FMSHRC 1311, 1312-13 (September
1979).[22]

     We have reviewed the judge's decision and the transcript of
the hearing, particularly the transcript pages cited in
ROA's brief.  We conclude that the judge's actions were well
within the bounds of his proper role in conducting the
trial.  See Liteky v. United States, 510 U.S. 540 (1994)
(judicial rulings, routine trial administration efforts, and
ordinary admonishments to counsel and witnesses inadequate
grounds for disqualification); see also T.P. Mining, 7
FMSHRC at 993 ("A judge is an active participant in the
adjudicatory process  . . . .").  None of  the cited pages,
either individually or cumulatively, indicate that the
judged harbored bias towards ROA or its counsel.[23]  Cf.
United States v. Donato, 99 F.3d 426, 434-39 (D.C. Cir.
1996) (jury conviction set aside for several reasons,
including judge's prejudicial comments to defendant and
"near constant criticism of defendant's counsel").

     Accordingly, we reject ROA's argument that the judge's
decision or his conduct of the trial require reversal due to
the judge's lack of impartiality.

     F.   Penalties

     Commission judges are accorded broad discretion in assessing
civil penalties under the Mine Act.  Westmoreland Coal Co., 8
FMSHRC 491, 492 (April 1986).  Such discretion is not unbounded,
however, and must reflect proper consideration of the penalty
criteria set forth in section 110(i) of the Act.[24]  Id. (citing
Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd,
736 F.2d 1147 (7th Cir. 1984)).  In reviewing a judge's penalty
assessment, the Commission must determine whether the judge's
findings with regard to the penalty criteria are supported by
substantial evidence.  The judge must make "[f]indings of fact on
each of the criteria [to] not only provide the operator with the
required notice as to the basis upon which it is being assessed a
particular penalty, but also provide the Commission and the
courts . . . with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge
are appropriate, excessive, or insufficient."  Sellersburg, 5
FMSHRC at 292-93.

     It does not appear that the judge considered all of the
statutory criteria in determining an appropriate penalty for
ROA's violations.  The judge did not separately discuss facts
relating to any of the criteria.  Rather, the judge referred only
to the extremely high negligence and serious gravity associated
with each of the violations.  17 FMSHRC at 1949, 1950, 1952,
1954.  This  does not satisfy the requirements the Commission set
out in Sellersburg.

     Accordingly, we vacate the judge's penalty assessment and
remand for entry of detailed findings as to each of the six
section 110(i) criteria, and assessment of an appropriate
penalty.

                               III.

                            Conclusion

     For the foregoing reasons,[25] we affirm the judge's
findings of violation and his determinations of unwarrantable
failure, but vacate the penalty assessment and remand it for
further consideration.


                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner

                                   James C. Riley, Commissioner
                                   
                                   Theodore F. Verheggen, Commissioner


Distribution


Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Henry Chajet, Esq.
Patton Boggs, LLP
2550 M Street, N.W.
Washington, D.C.  20037

Harry Tuggle, Esq.
United Steelworkers of America
Health & Safety Department
Five Gateway Center
Pittsburgh, PA  15222

David Gomo
c/o United Steelworkers of
America
Amalgamated Local #4
P.O. Box 584
Barre, VT  05641

David Gomo
Union Stewart & Safety
Committeeman
United Steelworkers of America
P.O. Box 482
Barre, VT  05641

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


**FOOTNOTES**

     [1]:   Commissioner Beatty assumed office after his case had
been considered  at  a  decisional  meeting.   A new Commissioner
possesses  legal authority to participate in pending  cases,  but
such participation  is  discretionary.   Mid-Continent Resources,
Inc., 16 FMSHRC 1218, 1218 n. 2 (June 1994).   In the interest of
efficient decision making, Commissioner Beatty has elected not to
participate in this matter.

     [2]:   "Tr. I" references are to the consecutively  numbered
transcript volumes  from the first four days of hearing conducted
on January 10-13, 1995,  and  "Tr.  II"  references  are  to  the
consecutively  numbered  transcript  volumes from the second four
days  of  hearing  conducted  on  April  25-28,  1995.   Exhibits
designated with the letter "R" are those introduced into evidence
by the Secretary, and exhibits designated with the letter "C" are
those introduced by ROA.

     [3]:   "Explosive"  is defined in 30 C.F.R.  �  56.6000,  as
"[a]ny substance classified  as an explosive by the Department of
Transportation . . . . "

     [4]:  The loading pattern  began  with  the first and fourth
holes and then went to each fourth hole thereafter,  resulting in
a sequential loading pattern of 1, 4, 8, 12, 16, 20, 24, 28, etc.
17 FMSHRC at 1934.  The judge based this finding on ROA's initial
accident   report  (Ex.  R-8),  testimony,  and  other  exhibits,
including a  diagram,  Ex.  R-10, drawn by ROA foreman Earl Kelty
indicating the loading pattern  and  bags  of  unexploded pyrodex
located after the accident.  Id. at 1939-41 & n 5.

     [5]:  In addition, following the accident,  18 other pyrodex
misfires were found at other blast sites at Smith Quarry and at a
second quarry where pyrodex was tested, yielding a  total  of  40
unexploded bags of pyrodex.  See 17 FMSHRC at 1941.

     [6]:  The S&S terminology is taken from section 104(d)(1) of
the  Act,  30  U.S.C.  �  814(d)(1),  which distinguishes as more
serious any violation that "could significantly and substantially
contribute to the cause and effect of a  .  .  .  mine  safety or
health hazard."

     [7]:   Part 30 C.F.R. � 56.6000 defines "misfire" as  "[t]he
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."

     [8]:  Section 56.6311 provides:

                      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.

     [9]:  Substantial evidence supports the judge's finding that
the  June  22,  1993  blast site was the location  of  the  fatal
accident, 17 FMSHRC at  1939-43.   Particularly compelling is the
blast report for that site, Ex. R-7,  concluding  that  the  four
misfires   Batchelder   found  originated  from  that  site.   In
addition, the accident report which ROA submitted to MSHA, Ex. R-
8, identified the accident  bench  as the location of the June 22
blast.  We also note that the loading  pattern  of pyrodex within
the lift holes and the loading sequence of the lift  holes at the
June 22 blast site and the accident bench indicate that the blast
site and the accident bench were the same.

       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  (November  1989)  (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [10]:  In  support  of  its argument that section 56.6311(b)
should be read to only apply to  "found"  misfires,  ROA  asserts
that  the  present language of section 56.6311 was taken from  30
C.F.R. � 56.6106  (1990),  which  provided,  in  pertinent  part:
"undetonated explosives . . . found shall be disposed of safely."
ROA  Br.  at  30  (citing  56  Fed.  Reg. at 2081).  However, ROA
ignores  language  in  the  preamble which  stated  that  section
56.6311  was  also  based on a second  regulation,  30  C.F.R.  �
56.6168 (1990) (Handling of Misfires), which prohibited work in a
blast area where there  were  misfires without reference to those
"found" or any other words of limitation.   See  56  Fed. Reg. at
2082.  Faced with the differing language of these two predecessor
provisions, we find it more persuasive that the Secretary drafted
section 56.6311(b) and the reference to misfires with no limiting
language.  Similarly, in the regulatory preamble to the standard,
the Secretary rejected a more restrictive reference to  the areas
affected  by  misfires  ("blast  site")  and  opted for a broader
reference ("affected area") in the standard.  Id.   See  also id.
("The   final   standard  retains  `affected  areas'  because  an
accidental detonation  during  the removal of a misfire is likely
to affect an area larger than the blast site.").

     [11]:  We note that ROA raised  in  its PDR only the judge's
determination  of unwarrantability with regard  to  the  standard
limiting  the  handling  of  explosives  to  miners  trained  and
experienced  in  the   handling   of   explosives,  30  C.F.R.  �
56.6300(a).   See  ROA  PDR  at 10,  29.  Petitioner  failed  to
specifically  raise the judge's  unwarrantability  determinations
with regard to  the three other violations.  ROA raised generally
the judge's conclusions  regarding ROA's negligence.  Id. at 5, 
7.  We address the unwarrantability determinations with regard to
these three violations that  ROA  has  addressed  in  its  brief,
because   those   arguments   are  sufficiently  related  to  the
negligence issue in the PDR.    However,  we  admonish petitioner
and counsel to adhere to the requirements of the Mine Act and the
Commission's procedural rules.  See 30 U.S.C.
� 823(d)(2)(A)(iii); 29 C.F.R. � 2700.70(d) and (f).

     [12]:  Section 56.6306 states,

               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  with the
          ability   and   experience   to  perform  the
          examination.

     [13]: MSHA stayed the effective date  of several of the regulations,
including  section 56.6306(g), in order to reopen the rulemaking record. 
The  stay  was  extended on several occasions,  and on December 30, 1993,
MSHA published the revised regulations with an effective date of January 31,
1994. See 58 Fed.Reg. 69,596 (1993). The final rule lacked any substantive 
changes but was "edited for clarity."  Id. at 69,603-04.

     [14]:   Testimony  to  the  contrary, that a post-blast  examination
was a  single inspection immediately after the  blast, was elicited from
ROA's expert witness in response to a leading  question from ROA counsel.
Tr. II 892.

     [15]:  ROA's notice argument (ROA Br. at 35), that the regulation
would not inform "a reasonably prudent  person"   of   its  requirements
is undermined by its own conduct - ROA performed numerous inspections
after  the  blast.   See  ROA  Br. at 34 n. 28.   Thus, the Secretary's
interpretation  is  consistent  with industry practice  and  ROA  was 
on  notice  of the requirements of the  regulation. See Ideal Cement Co.,
12 FMSHRC 2409, 2416 (November 1990).

     [16]:  Section 56.6904 provides:

               Smoking 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.

     [17]:  Chairman Jordan and Commissioner Marks conclude  that
the  plain  language  of  the regulation reaches ROA's conduct at
issue - permitting an open  flame  within  50  feet of unexploded
pyrodex.  Furthermore, they do not view the reference to barriers
as restricting application of the regulation solely to storage or
transportation  of  explosives.   The  standard is located  in  a
section of the regulations entitled "General Requirements-Surface
and  Underground"  and  is  not  found in the  "storage"  section
(sections  57.6100-57.6133)  nor in  the  transportation  section
(sections  57.6200-57.6205).  Chairman  Jordan  and  Commissioner
Marks also agree with the judge that the violation was the result
of  ROA's  unwarrantable  failure.   As  the  judge  noted,  once
Batchhelder  discovered the four misfires from the June 22, 1993,
blast site, ROA  was  aware  of  the  likelihood of the continued
existence of unexploded pyrodex.  17 FMSHRC at 1951-52.  Allowing
Bassett's use of the channel burner with  its open flame near the
old  blast  site  in  light  of  the  previous discovery  of  the
unexploded pyrodex evinces a serious lack of reasonable care that
well  supports  an  unwarrantable  failure   determination.   See
Midwest Material Co., 19 FMSHRC at 35.

     Commissioners Riley and Verheggen  would reverse the judge's
finding  of  a  violation because they find that section  56.6904
clearly does not  apply  to the conduct at issue.  Dyer, 832 F.2d
at 1066.  There appears to  be  nothing  in  the  language of the
standard or its regulatory history which supports the Secretary's
interpretation that would have the standard address the hazard of
unexploded  misfires.   Regulations  discussed  earlier,  section
56.6311(b) (handling of misfires) and section 56.6306(g) (loading
and blasting), fully address the problem of allowing Bassett back
onto the bench to work with a torch in the presence of unexploded
pyrodex.   In  Title  III  of  the  Mine  Act,  which applies  to
underground coal mines, the standard that is analogous to section
56.6904  is  clearly  aimed  at  the  safe storage of explosives,
rather  than  the  proper handling of misfires.   See  30  U.S.C.
� 873(g).  Similarly,  it  is  more  reasonable  to interpret the
reference   in   section  56.6904  to  "permanent  noncombustible
barriers"  as  referring   to   storage   or   transportation  of
explosives,  but  not  to  misfires.   Commissioners   Riley  and
Verheggen  thus  conclude that the Secretary's interpretation  of
section 56.6904 is unreasonable.  Accordingly, they would reverse
the judge's finding of a violation.

     [18]:  Section 56.6300 provides:

                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.

     [19]:  Neither Kelty or Reynolds testified at the hearing.

     [20]:  ROA argues  that  Barrett's  instructions for loading
pyrodex  were  flawed, which was the reason  for  the  fatal
misfire.   See  ROA   Br.   at  43.   However,  it  is  more
significant  that  there was an  absence  of  any  training,
particularly  in  conducting  post-blast  inspections,  than
whether all of the  information  concerning  the handling of
pyrodex was completely accurate.

     [21]: Commissioner Riley dissents on the issue of
unwarrantability, offering the following rationale:

               [T]he  Secretary   and   the  Commission
          interpret  the words "unwarrantable  failure"
          to   require  a   culpability   determination
          similar  to gross negligence or recklessness.
          . . .  Citing the Restatement (2d) of Torts �
          283 (1965),  the  Secretary  argues that this
          negligence-based definition of "unwarrantable
          failure"     requires    consideration     of
          surrounding circumstances.   ("[T]he standard
          of conduct to which [the actor]  must conform
          to  avoid  being  negligent  is  that  of   a
          reasonable  man  under  the  circumstances.")
          (emphasis added).

 Secretary of Labor v. FMSHRC, 111 F.3d. 913, 919-920. (D.C. Cir.
1997) (citations omitted) (alteration in original).

        For almost a century hardy souls  around  Barre,  Vermont
have been carving a living and a legend out of the granite of the
Green Mountains.   For  Rock  of  Ages to continue to fulfill its
historic  role,  it  must  remain  profitable  in  a  competitive
industry.  Realizing this, the miners at ROA also have the United
Steelworkers of America ("USWA") to  help  them  secure  adequate
wages,  promote  safe working conditions, and otherwise look  out
for  their  interests.    While   such   relationships   can   be
adversarial,   enlightened   labor  relations  have  become  more
consultive and cooperative.

        Working  together,  ROA  and   the   USWA  developed  and
administered a joint training program.  The program  has operated
successfully  for  a  number  of  years  and  would  seem to have
achieved a measure of  respect.  Even the MSHA inspector, on site
for several of the pyrodex blasts, was trained in the handling of
explosives as an employee of ROA.  In retrospect we know that, in
fact,  nobody  had  been adequately trained to guard against  the
particular threat that  turned  parts  of  the quarry into a mine
field.   Procedures  that  had  proven  adequate   for  primacord
blasting  were  found to be insufficient to detect and  eliminate
numerous pyrodex misfires.

       Surely someone  should have discovered deficiencies in the
post  blast  inspection  procedure  which  with  the  benefit  of
hindsight seem glaring.  In  fact,  up  until  the  day  of  this
accident,  neither  the  operator, the union, the workers or MSHA
believed they had any reason to question the adequacy of training
for anyone responsible for  the  post  blast  inspection  regime.
Unfortunately, even the discovery of unexploded ordinance did not
seem  to awaken those involved to the heightened danger posed  by
ROA's experiment  with  pyrodex.  Under the circumstances, in the
absence of proper instruction  from  the manufacturer on the safe
use  of pyrodex as well as the lack of  intervention  from  MSHA,
which   was  on  site  and  aware  of  the  use  of  experimental
explosives,   I   am  unable  to  characterize  the  now  obvious
deficiencies in ROA's training program as unwarrantable failure.

     [22]:  In Canterbury,  the  Commission reversed the decision
of  an  administrative  law  judge  and  remanded  the  case  for
reassignment  to a new judge after concluding  that  the  judge's
conduct at the  hearing was an abuse of discretion.  While noting
"the considerable  leeway  afforded  administrative law judges in
regulating the course of a hearing and  in  developing a complete
and  adequate record," the Commission concluded  that  the  judge
interjected   himself   in  the  proceedings  "so  often  and  so
extensively that [the parties]  were  denied  the  opportunity to
develop their case."  1 FMSHRC at 1312-13.

     [23]:   We  note that ROA did not allege bias of  the  judge
until after it lost  the  case  and petitioned the Commission for
review.  See ROA Post-Trial Br. at 8 n. 2.

     [24]:   Section  110(i)  sets  forth   six  criteria  to  be
considered in the assessment of penalties under the Act:

          [1]   the   operator's  history  of  previous
          violations, [2]  the  appropriateness of such
          penalty to the size of  the  business  of the
          operator  charged,  [3]  whether the operator
          was   negligent,  [4]  the  effect   on   the
          operator's  ability  to continue in business,
          [5] the gravity of the violation, and [6] the
          demonstrated good faith of the person charged
          in  attempting  to achieve  rapid  compliance
          after notification of a violation.

     [25]:  Following the Commission's October 10, 1997 Order in which
it  denied the Motion to Participate in Oral  Argument  by David Gomo,
he submitted a written Oral Argument Statement to the Commission on 
October 17, which he requested  the Commission to accept. We have
considered Mr. Gomo's request, and we deny it. We have not considered 
the statement in our deliberations in this matter.