.
DUMBARTON QUARRY ASSOCIATES
October 13, 1999
WEST 98-32-RM


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                        October 13, 1999

 DUMBARTON QUARRY ASSOCIATES,    :  CONTEST PROCEEDINGS
                 Contestant      :
                                 :  Docket No. WEST 98-32-RM
                                 :  Citation   No.   7709068;
                                 :  10/31/97
           v.                    :  Dumbarton Quarry
                                 :
                                 :  Docket No. WEST 98-69-RM
 SECRETARY OF LABOR,             :  Citation   No.   7709045;
    MINE SAFETY AND HEALTH       :  10/28/97
    ADMINISTRATION (MSHA),       :  La Vista Quarry
                 Respondent      :
                                 :  Docket No. WEST 98-70-RM
                                 :  Citation   No.   7709046;
                                 :  10/28/97
                                 :  La Vista Quarry
                                 :
 SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
   MINE SAFETY AND HEALTH        :
   ADMINISTRATION (MSHA),        :  Docket No. WEST 98-246-M
                Petitioner       :  A.C. No. 04-00097-05526
                                 :  La Vista Quarry
           v.                    :
                                 :  Docket No. WEST 99-88-M
 DUMBARTON QUARRY ASSOCIATES,    :  A.C. No. 04-02380-05537
                Respondent       :  Dumbarton Quarry

                              DECISION

 Appearances: Steven R. DeSmith, Esq., Office of the Solicitor,
              U.S. Department of Labor, San Francisco, California, 
              for the Secretary of Labor; 
              David W. Donnell, Esq., Peterson Law Corporation, 
              Rocklin, California, for Dumbarton Quarry 
              Associates.

 Before:  Judge Manning

      These  cases  are before me on notices of contest  filed  by
 Dumbarton  Quarry  Associates  ("Dumbarton")  and  petitions  for
 assessment of civil  penalty  filed  by  the  Secretary of Labor,
 acting   through   the  Mine  Safety  and  Health  Administration
 ("MSHA"), pursuant to  sections  105  and 110 of the Federal Mine
 Safety and Health Act of 1977, 30 U.S.C.  ��  815  and  820  (the
 "Mine  Act").   A  hearing  was  held  in Oakland, California, on
 September 14, 1999.

           I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

      The Dumbarton Quarry and the La Vista Quarry are operated by
 Dumbarton in Alameda County, California.   In  October  1997 MSHA
 Inspector  James  Goodale  inspected  both quarries.  During  the
 inspection, he issued a number of citations  and orders including
 the three at issue in these proceedings.

      A.  Dumbarton Quarry

      On  October  31,  1997,  Inspector  Goodale  inspected   the
 Dumbarton  Quarry.   During his inspection he issued Citation No.
 7709068 alleging a violation  of  30  C.F.R.  �  56.18002(a),  as
 follows:

           An  adequate examination of work places [was]
           not being  conducted  by  the  mine operator.
           Several  violations  were  cited relating  to
           examining work areas.

      Inspector Goodale determined that  the  violation  was  of a
 significant and substantial nature ("S&S") and was the result  of
 Dumbarton's  moderate  negligence.  Section 56.18002(a) provides,
 in part, that a "competent  person  designated  by  the  operator
 shall  examine  each  working place at least once each shift  for
 conditions which may adversely  affect  safety  or  health."  The
 standard   further  states  that  the  operator  "shall  promptly
 initiate appropriate  action  to  correct  such  condition."  The
 Secretary proposes a penalty of $267 for this alleged violation.

      During his inspection, Inspector Goodale inspected  both the
 pit   and  the  crushing  plant.  Inspector  Goodale  noted  that
 equipment  in the pit was in excellent condition.  (Tr. 52).   He
 testified that he observed a number of violations at the crushing
 plant.   (Tr.  52-64).   He  issued  seven  citations  for  these
 violations.    (Ex.  G-4).   He  testified  that  each  of  these
 violations was obvious.   (Tr.  64).  The inspector believed that
 these   violations  could  have  been   prevented   if   adequate
 examinations of the workplaces were conducted.  Id.  He concluded
 that these violations would not have existed if adequate on-shift
 examinations  were  conducted  because  the  violations were very
 obvious.  He issued the citation on that basis.

      The citations that Inspector Goodale relied  upon to support
 this citation allege violations of various safety standards.  The
 inspector  issued  two S&S citations alleging violations  of   30
 C.F.R. � 56.12025.   In  each  case,  the  citation  states  that
 electrical  extension  cords  being used in the crusher area were
 not  grounded.   (Tr.  58-60,  63-64).   He  was  concerned  that
 ungrounded electrical circuits created  a  shock hazard.  He also
 issued  two  citations  alleging  violations of  the  Secretary's
 guarding standard at section 56.14107(a).   The  other  citations
 allege  violations  of  sections  56.12008  (fittings  for  power
 wires),   56.16005   (securing  gas  cylinders),  and  56.4603(b)
 (closure of valves).   (Ex.  G-4).   Only  the  two violations of
 section  56.12025  were  designated  as  S&S  by  the  inspector.
 Dumbarton  paid  the penalties proposed by the Secretary for  all
 seven of these citations.

      Inspector Goodale  testified  that Dumbarton kept records of
 its examinations of working places.   The  records indicated that
 "everything  was okay" throughout the crusher  area.   (Tr.  68).
 The inspector  stated  that  he  issued  the citation because the
 examinations were not adequate under the safety  standard.   (Tr.
 67-68).   He  determined  that  the citation was S&S based on the
 fact that two of the citations he issued in the crusher area were
 S&S.  (Tr. 66).

      Dumbarton  maintains that Citation  No.  7709068  should  be
 vacated and, in the  alternative, that it should be modified to a
 non-S&S citation.  It  argues  that  the citations relied upon by
 the inspector to establish that the examinations  were inadequate
 did not cite conditions that adversely affected safety  or health
 and the conditions were not obvious, in any event, including  the
 two S&S citations.  (Tr. 153).  Citation No. 7709064 alleges that
 the  ground  lug  was missing from the plug of an extension cord.
 Dumbarton argues that the only way for an examiner to detect such
 a condition would be to remove and inspect each plug at the mine.
 It contends that the  on-shift  examiner  is not required to take
 such an action during his inspection.  Further,  it  argues  that
 there  is  no  evidence  concerning  how  long this condition had
 existed.  (Tr. 154).  It believes that the  lug could have broken
 off the plug the day before the inspection.

      Dumbarton  argues  that  the guarding violation  alleged  in
 Citation No. 7709061 is not obvious because a gate was present to
 protect persons from contacting  the  pinch  point.   It contends
 that  a  reasonable  person  could assume that this gate complied
 with the safety standard.  (Tr.  154-55;  Ex.  G-5).  It believes
 that  because  the alleged guarding violation did  not  create  a
 safety hazard to  employees,  the  examiner's failure to note the
 condition does not violate section 56.18002(a).

      In  order  to determine whether a  violation  occurred,  the
 requirements of the  standard  must  be examined.  The Commission
 has identified three requirements of section 56.18002 as follows:
 (1) ... workplace examinations are mandated  for  the  purpose of
 identifying   workplace   safety   or  health  hazards;  (2)  the
 examinations must be made by a competent person; and (3) a record
 of the examinations must be kept by  the  operator."  FMC Wyoming
 Corp., 11 FMSHRC 1622, 1628 (September 1988).  The record-keeping
 requirement is set forth in subsection (b)  of the standard.  The
 Secretary  defined  a  competent person as "a person  having  the
 abilities and experience  that  fully  qualify him to perform the
 duty to which he is assigned."  30 C.F.R. � 56.2.

      There  is  no  dispute  that  the citations  issued  by  the
 inspector used to support the instant  citation  were  issued  in
 "working  places,"  as  that  term  in  defined  in section 56.2.
 Inspector  Goodale  also  admitted  that Dumbarton had  conducted
 examinations of the working places.  He examined the records kept
 by Dumbarton that "indicated that they had done their examination
 of workplaces; they'd checked off that  they'd  done  it."   (Tr.
 67).   He  testified that he issued the citation despite the fact
 that  examinations  were  being  made  and  recorded  because  he
 believed  that  the examinations were inadequate.  (Tr. 68).  The
 identity of the individual  who performed the examinations is not
 disclosed in the record.

      The  Secretary did not introduce  any  evidence  as  to  the
 competency of Dumbarton's examiner.  The Commission held that the
 term "competent  person" within the meaning of the standard "must
 contemplate a person  capable  of  recognizing  hazards  that are
 known  by  the  operator  to  be  present in the work area or the
 presence of which is predictable in  view of a reasonably prudent
 person familiar with the mining industry."  FMC Wyoming 1629.  In
 FMC Wyoming, the Commission determined  that the examiner was not
 competent  because he had no training or experience  in  asbestos
 recognition  and  was assigned to examine areas in which asbestos
 was being removed without  his  knowledge.   In the present case,
 there is no evidence that Dumbarton's examiner  was  not familiar
 with  and  could  not recognize safety hazards that are typically
 present in a quarry and crusher environment.

      In the present  case,  the  Secretary  attempts  to  prove a
 violation  by showing that the examiner was not competent or,  if
 competent,  his   examinations   were  inadequate  because  seven
 citations alleging safety hazards were issued in the crusher area
 during the MSHA inspection.  There  have  not been any Commission
 or administrative law judge decisions that  address this issue in
 a  comprehensive  way.   In  most cases, the Secretary  presented
 direct proof that the examinations were not conducted or that the
 examinations were not recorded.   Former  Commission Judge Arthur
 Amchan  vacated  a  citation  alleging  a  violation  of  section
 56.18002(a)  where  testimony  established  that   the   required
 examinations  were  done.   Judge  Amchan concluded that the fact
 that the MSHA inspector "found a number  of  violative conditions
 may be the result of [the operator's] belief that  the conditions
 cited  were  not  violations,  rather  than an   indication  that
 workplace  examinations  were  not  performed."   Higman  Sand  &
 Gravel, Inc. 18 FMSHRC 951, 962-63 (June 1996).

      The Secretary's Program Policy Manual  on  section  56.18002
 provides, in part:

           Evidence  that  a  previous shift examination
           was not conducted or  that  prompt corrective
           action  was  not  taken  will  result   in  a
           citation  for  violation of �� 56/57.18002(a)
           or   (c).    This   evidence    may   include
           information which demonstrates that safety or
           health  hazards existed prior to the  working
           shift in which they were found.  Although the
           presence   of   hazards   covered   by  other
           standards  may  indicate  a failure to comply
           with this standard, MSHA does  not  intend to
           cite  ��  56/57.18002 automatically when  the
           Agency  finds   an   imminent   danger  or  a
           violation of another standard.

 (Program     Policy     Manual,    Volume    IV,    Subpart     Q
 <http://www.msha.gov/regs/complian/ppm/pmvol4e.htm#77>). Although
 the  language  of  this  manual is not binding  on  the Secre-
 tary, I note that it indicates that evidence in support of a
 violation "may include information which demonstrates that safety
 or health hazards existed prior to the  working  shift  in  which
 they  are  found."   (Emphasis  added).   In  this case, the only
 evidence  presented  to support the violation is  the  fact  that
 Inspector Goodale issued seven citations during his inspection of
 the crusher area.

      I  find that many  of  the  conditions  cited  by  Inspector
 Goodale were  either not obvious or they arguably did not present
 serious safety  hazards.    Because  Dumbarton paid the penalties
 for  the  underlying  citations,  I assume  that  the  conditions
 described therein existed and that they violated the cited safety
 standards.  In Citation No. 7709061, a gate was used in lieu of a
 guard at a tail pulley.  The gate was  not locked at the time the
 citation  was  issued, but a lock was present.   (Ex.  G-5).   An
 examiner might have concluded that this condition did not present
 a safety hazard,  especially if the gate was locked.  In Citation
 No.  7709064, the grounding  prong  on  the  plug  of  the  cited
 extension cord was plugged into a wall socket.  The violation was
 not obvious.   I  credit Inspector Goodale's testimony concerning
 the  nature  of  the  other   five  violations.   The  conditions
 described in these five citations  should  have  been recorded by
 the examiner because they presented obvious safety hazards.

      Although I appreciate Inspector Goodale's concern  that  the
 examinations  were  not  discovering  safety problems, I find the
 fact  that  five  citations  were  issued citing  visible  safety
 problems is too slender of a reed on which to hang a violation of
 section 56.18002(a) in this case.  The  examinations  were  being
 made  and  recorded.  There has been no showing that the examiner
 was not competent.   Moreover,  it  is  not  uncommon for an MSHA
 inspector  to  issue  multiple  citations  at  a mine  that  cite
 conditions  which  should  have  been detected by the  operator's
 examiner.  Citations under section  56.18002  are  generally  not
 issued  under  such  circumstances.  The Secretary may be able to
 establish a violation  of  the  safety  standard  by proving that
 obvious  conditions  were  not  being  corrected.  In this  case,
 however, I find that such proof is insufficient  to  establish  a
 violation.  Accordingly, Citation No. 7709068 is VACATED.


      B.  La Vista Quarry

           1.  Citation No. 7709045

      On  October  28,  1997,  Inspector  Goodale inspected the La
 Vista  Quarry.   During  his  inspection he issued  Citation  No.
 7709045 alleging a violation of 30 C.F.R. � 56.11001, as follows:

           Safe access was not provided  on the elevated
           platform leading to the 5100 Symons  crusher.
           A  buildup  of  spilled materials, old parts,
           belting, etc. [was] observed [on] the walkway
           where an employee  must travel daily to check
           the crusher for plug-ups.   The  walkway  was
           approximately  five  foot above ground level,
           if any more materials  would  accumulate, the
           handrails   provided  would  be  ineffective.
           This condition  was  recorded and reported to
           the General Manager on  the  back of the time
           cards.   The  time cards were reviewed.   The
           General  Manager  stated  he  neglected  this
           condition, didn't think it was serious enough
           to correct right away.

      Inspector Goodale  determined  that  the  violation was of a
 significant and substantial nature ("S&S") and was  the result of
 Dumbarton's  high  negligence.   He  issued  the  citation  under
 section 104(d)(1) because he believed that the violation  was the
 result of the operator's unwarrantable failure.  Section 56.11001
 provides  that  a  "[s]afe  means of access shall be provided and
 maintained  to all working places."   The  Secretary  proposes  a
 penalty of $400 for this alleged violation.

      Inspector   Goodale   testified  that  he  observed  spilled
 material, belting, and some old parts along the elevated platform
 leading to the Symons crusher  at  the  crushing plant.  (Tr. 19-
 20).   He  determined  that  it was heavily traveled  because  he
 observed footprints in the material.   The  inspector stated that
 the platform is the sole travelway to the Symons  crusher.   (Tr.
 22).   He  also  stated  that  the  examiner would be required to
 travel   through   this   area  when  conducting   his   on-shift
 examination.  The elevated platform is shown on a photograph that
 he took during his inspection.  (Ex. G-2, p. 1).

      Inspector Goodale considered  the  accumulated  material  to
 present a tripping and stumbling hazard.  He also stated that the
 accumulations  create  a  slipping  hazard.  The inspector stated
 that  because  the accumulations of spilled  material  were  very
 fine, they would become extremely slippery when wet.

      Inspector Goodale asked the miners' representative about the
 material present  along  the  elevated  platform.   The inspector
 testified  that  the  representative told him that the conditions
 existed for some time and  that  the plant operator was reporting
 the condition to the quarry manager  on  the  back  of  his  time
 cards.  (Tr. 24).

      Following his inspection, Inspector Goodale asked Rick Case,
 the  quarry manager, about the accumulation of material along the
 elevated  platform  and  asked  to  see  the  records of on-shift
 examinations   that  are  required  to  be  kept  under   section
 56.18002(b).  The  inspector  determined  that Dumbarton complied
 with the record-keeping requirements of that  section  by  having
 the examiner report safety problems on the back of his time card.
 (Tr.  29-30).  Inspector Goodale reviewed the time cards for  the
 plant operator  and  saw  that  he  reported  the spillage on the
 elevated platform on the back of his time card  for  at least the
 previous three or four days.  (Tr. 31).

      Inspector Goodale testified that he asked Mr. Case about the
 spillage and that Mr. Case told him that he regularly reviews the
 plant  operator's time cards, that he was aware of the  spillage,
 and that  he  did  not take steps to have the spillage cleaned up
 because he did not consider it to be a serious problem.  (Tr. 32-
 33,  91).    The inspector  issued  the  citation  as  a  section
 104(d)(1) unwarrantable failure citation largely because Mr. Case
 knew of the conditions  and  did not take any steps to remove the
 accumulations.  He determined  that the violation was S&S because
 he  believed  that  there was a reasonable  likelihood  that  the
 hazard presented would  result  in  a serious injury.  (Tr. 40-1,
 83-84, 93-94).

      Robert McCarrick, General Manager  for  Dumbarton, testified
 that employees are instructed to report serious  safety  concerns
 directly  to  the  quarry  manager either in person or via radio.
 (Tr. 105-06).  He also stated  that  employees  are authorized to
 shut down an area at the quarry in order to correct  a  hazardous
 condition.    In  addition,  he  testified  that  regular  safety
 meetings are held  at  the  quarry  at  which employees can raise
 safety concerns.

      Rick Case testified that he was not  aware  that there was a
 significant  spill on the elevated platform at the  time  of  the
 inspection.  (Tr. 114).   He stated that the notation on the time
 cards indicated  that  there  were  "some  rocks  and  spills  on
 catwalks  and  walkways."   Id.   He stated that there are always
 some  spills  on the walkways when the  crusher  is  running  and
 employees go around  and clean them up.  (Tr. 115).  He testified
 that he interpreted the  notations  on the time cards to indicate
 that there was some spillage, but the  notations  did  not  state
 that  there  was  a major spill or that a hazardous condition was
 present.  (Tr. 115-16).   Mr. Case testified that, given the size
 of the spill, the crusher operator  should  have  taken  steps to
 have  it cleaned up or, at a minimum, directly notify him of  the
 hazard.  (Tr. 115-17).   Finally, Mr. Case testified that he does
 not believe  that  there  were old belts or parts in the spillage
 and that the inspector was  only  seeing shadows in the spillage.
 (Tr. 120, 124).

      I find that the Secretary established  a  violation  of  the
 safety  standard.   A safe means of access to the crusher was not
 maintained.  The elevated  platform  was  used  as a travelway to
 gain access to the crusher, which is a working place as that term
 is defined in section 56.2.  Employees must travel to the crusher
 from time to time.  Indeed, the inspector observed  foot-  prints
 in  the  area.   The spilled material prevented safe travel.  The
 fact that conveyor  belts  or  other  old parts may not have been
 present does not lessen the violation.

      I  also  find  that  the  Secretary  established   that  the
 violation  was  S&S.   An  S&S  violation is described in section
 104(d)(1) of the Mine Act as a violation "of such nature as could
 significantly  and  substantially contribute  to  the  cause  and
 effect of a ... mine  safety  or  health hazard."  A violation is
 properly  designated  S&S  "if based upon  the  particular  facts
 surrounding that violation,  there exists a reasonable likelihood
 that  the hazard contributed to  will  result  in  an  injury  or
 illness  of a reasonably serious nature."  National Gypsum Co., 3
 FMSHRC 822,  825  (April 1981).  In Mathies Coal Co., 6 FMSHRC 1,
 3-4 (January 1984),  the  Commission set out a four-part test for
 analyzing  S&S  issues.   Evaluation  of  the  criteria  is  made
 assuming "continued normal mining operations."  U.S. Steel Mining
 Co., 6 FMSHRC 1573, 1574 (July  1984).  The question of whether a
 particular violation is S&S must be based on the particular facts
 surrounding the violation.  Texasgulf, Inc., 10 FMSHRC 498 (April
 1988).

      The Secretary must establish:   (1) the underlying violation
 of the safety standard; (2) a discrete  safety  hazard, a measure
 of  danger  to  safety,  contributed to by the violation;  (3)  a
 reasonable likelihood that  the hazard contributed to will result
 in an injury; and (4) a reasonable  likelihood that the injury in
 question will be of a reasonably serious  nature.   The Secretary
 is not required to show that it is more probable than not that an
 injury will result from the violation.  U.S. Steel Mining Co., 18
 FMSHRC 862, 865 (June 1996).

      There  was  a  violation  of  the standard and a measure  of
 danger to safety contributed to by the  violation.   The issue is
 whether  there  was  a  reasonable  likelihood  that  the  hazard
 contributed  to  by  the violation would result in an injury.   I
 find that the Secretary established that an injury was reasonably
 likely in this instance  and  that  such  an injury would be of a
 reasonably serious nature.

      The violation presented a significant  tripping,  stumbling,
 and slipping hazard.  The presence of handrails along the edge of
 the elevated platform made it less likely that anyone would  fall
 off  the  platform  as  a  result  of  the  hazard  but, assuming
 continued mining operations, more spillage could have  created  a
 falling hazard.  Without considering the potential fall hazard, I
 find  that  it  was  reasonably  likely  that someone would trip,
 stumble, or slip on the accumulated fine material  and  suffer  a
 reasonably serious injury such as a twisted ankle, torn ligament,
 or  dislocation  of  a  knee,  assuming  continued  normal mining
 operations.   The  violation  was serious because a lost  workday
 injury was reasonably likely.

      The Commission held that unwarrantable failure is aggravated
 conduct constituting more than ordinary negligence.  Emery Mining
 Corp.,  9  FMSHRC  1997,  2004  (December  1987).   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, 193-94  (February  1991).   The  Commission
 stated that  "a  number  of  factors  are relevant in determining
 whether a violation is the result of an  operator's unwarrantable
 failure, such as the extensiveness of the  violation,  the length
 of  time that the violative condition has existed, the operator's
 efforts  to  eliminate  the  violative  condition, and whether an
 operator  has  been  placed  on notice that greater  efforts  are
 necessary for compliance."  Mullins  and  Sons Coal Co., Inc., 16
 FMSHRC 192, 195 (February 1994)(citation omitted).

      I  find  that  the violation was the result  of  Dumbarton's
 unwarrantable failure  to  comply  with  the standard because its
 failure to clean up the spilled material on the elevated platform
 constituted a serious lack of reasonable care.   The accumulation
 of  spilled  material was extensive, it had been present  for  at
 least a few days,  and  no  effort  had  been  made to remove it.
 Dumbarton  argues  that  Mr.  Case  was not at fault  because  he
 reasonably  believed  that the accumulation  did  not  present  a
 significant  hazard.  The  issue,  however,  is  not  Mr.  Case's
 conduct,  but  whether  Dumbarton  exhibited  aggravated  conduct
 constituting more than ordinary conduct.  A significant amount of
 spilled material was present on top of the elevated platform that
 created an obvious  hazard  to  anyone  walking through the area.
 The spillage was duly noted on the crusher operator's time cards,
 as  was  the custom at the mine.  The examiner's  notations  were
 being ignored,  either  because  Mr. Case was not giving them due
 regard  or because the crusher operator  did  not  emphasize  the
 hazard in his notes sufficiently.

      Mr.  Case  was  a management employee.  Although the crusher
 operator  was not a management  employee,  he  was  an  agent  of
 Dumbarton  for  the  purpose  of  conducting  and  recording  the
 required on-shift  examinations  so  his actions and mistakes are
 fully imputable to Dumbarton.  Rochester & Pittsburgh Coal Co. 13
 FMSHRC 189, 194-96 (February 1991).
 Thus, between the two of them, Dumbarton  had  been put on notice
 that  greater  efforts were necessary to provide and  maintain  a
 safe means of access  to  the crusher.  There is no evidence that
 the area was being cleaned  up  on  a  regular basis and that new
 spills  were  occurring.   Although  I  would   not   necessarily
 characterize   Dumbarton's conduct with respect to this  spillage
 as exhibiting "reckless  disregard," "intentional misconduct," or
 "indifference" to the hazard  present, I find that it constituted
 a serious lack of reasonable care.   Consequently,  Citation  No.
 7709045 is AFFIRMED as issued.

           2.  Order No. 7709046

      On  October  28,  1997,  Inspector  Goodale issued Order No.
 7709046 alleging a violation of 30 C.F.R. � 56.11001, as follows:

           Safe access was not provided on  the elevated
           platform  around the 5100 Symons crusher.   A
           buildup  of  spilled  materials,  old  parts,
           belting, etc.  [was]  observed on the walkway
           where an employee must  travel daily to check
           the crusher.  The walkway  was  approximately
           nine  feet  above ground level, if  any  more
           materials  would  accumulate,  the  handrails
           provided   would    be   ineffective.    This
           condition was recorded  and  reported  to the
           General  Manager  on  the  back  of  the time
           cards.   The  time cards were reviewed.   The
           General  Manager  stated  he  neglected  this
           condition, didn't think it was serious enough
           to correct right away.

      Inspector Goodale  determined that the violation was S&S and
 was the result of Dumbarton's  high  negligence.   He  issued the
 order  under  section  104(d)(1)  because  he  believed  that the
 violation was the result of the operator's unwarrantable failure.
 The  Secretary  proposes  a  penalty  of  $400  for  this alleged
 violation.

      The conditions cited by the inspector in this order are very
 similar to the conditions in the previous citation.  The  spilled
 material in this case was on the deck above the area cited in the
 previous  citation  and the accumulation was immediately adjacent
 to the crusher.  (Ex.  G-2, p. 2).  The parties offered testimony
 and argument with respect  to  this  alleged  violation  that was
 entirely consistent with that offered for Citation No. 7709045.

      Dumbarton  contends  that  this  condition  should have been
 included  in  the  original  citation  since  there  is only  one
 travelway  to  the  crusher.   I  hold  that  it  was  within the
 Secretary's  discretion  to issue separate citations because  the
 cited  conditions  were  on  two   different   decks.   Dumbarton
 questions whether Inspector Goodale really knew whether there was
 a  hazardous accumulation of spilled material because  the  cited
 area  was  nine  feet off the ground and he did not travel to the
 deck to inspect it.   The  inspector testified that it would have
 been hazardous for him to travel  to  the  deck  and I credit his
 testimony that he could see enough to establish that  safe access
 was  not provided to the crusher.  The same hazards were  present
 on this  deck  as  on the elevated platform cited in the previous
 citation.  In addition, this deck was higher off the ground.

      For the reasons  discussed above with respect to Citation No
 7709045, I find that the Secretary established a violation of the
 safety standard, the violation  was S&S, and it was the result of
 Dumbarton's unwarrantable failure  to  comply  with the standard.
 Consequently, Order No. 7709046 is AFFIRMED as issued.


                II.  APPROPRIATE CIVIL PENALTIES

      Section 110(i) of the Mine Act sets out six  criteria  to be
 considered in determining appropriate civil penalties.  Because I
 vacated  the citation issued at the Dumbarton Quarry, I have only
 considered  the  information provided by the parties with respect
 to the La Vista Quarry.   I find that no citations were issued at
 the quarry during the two years  prior  to this inspection.  (Tr.
 9).  The quarry is a relatively small- to  medium-sized  facility
 that  worked  about 36,700 manhours and employed about 12 miners.
 (Tr. 9, 122).  Dumbarton as a whole worked about 83,900 manhours.
 The violations  were rapidly abated in good faith.  The penalties
 assessed in this  decision  will  not  have  an adverse effect on
 Dumbarton's ability to continue in business.   My  findings  with
 regard  to  gravity and negligence are set forth above.  Based on
 the penalty criteria,  I  find that the penalties set forth below
 are appropriate.


                           III.  ORDER

      Based on the criteria  in section 110(i) of the Mine Act, 30
 U.S.C. � 820(i), I assess the following civil penalties:

      Citation/Order  No.           30 C.F.R. �    Penalty

                          WEST 98-246-M

        7709045                     56.11001       $400.00
        7709046                     56.11001        400.00

                          WEST 99-88-M

        7709068                     56.18002(a)    Vacated

      Accordingly, Citation No.  7709068  is  VACATED; Dumbarton's
 notice of contest in WEST 98-32-RM is GRANTED;  and  WEST 99-88-M
 is  DISMISSED.   Citation  No. 7709045 and Order No. 7709046  are
 AFFIRMED as written; Dumbarton's  notices  of contest in WEST 98-
 69-RM  and  WEST  98-70-RM  are  DISMISSED; and Dumbarton  Quarry
 Associates is ORDERED TO PAY the Secretary  of  Labor  the sum of
 $800.00  within  30  days  of  the  date  of this decision.  Upon
 payment of the penalty, WEST 98-246-M is DISMISSED.


                                 Richard W. Manning
                                 Administrative Law Judge


 Distribution:

 Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department
 of Labor, 71 Stevenson St., Suite 1110, San  Francisco, CA 94105-
 2999  (Certified Mail)

 David  W.  Donnell, Esq., Peterson Law Corporation,  3300  Sunset
 Boulevard, Suite  110,  Sunset  Whitney Ranch, Rocklin, CA  95677
 (Certified Mail)

 /RWM