<DOC>
[DOCID: f:k96-171.wais]

 
BLACK STAR MINING COMPANY, INCORPORATED
July 29, 1996
KENT 96-171


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          July 29, 1996

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :    Docket No. KENT 96-171
               Petitioner       :    A. C. No. 15-17487-03525
                                :
          v.                    :
                                :    No. 3 Mine
BLACK STAR MINING COMPANY,      :
INCORPORATED,                   :
               Respondent       :

                            DECISION

Appearances:  Thomas A. Grooms, Esq., U.S. Department of
              Labor, Office of the Solicitor, Nashville,
              Tenneesee, and James C. Hager, Conference and
              Litigation Representive, Mine Safety and Health
              Administration, Phelps, Kentucky, for the
              Petitioner; Milford Compton, Owner, Black Star
              Mining Company, Inc., Phelps, Kentucky, for the Respondent.

Before:  Judge Weisberger

                      Statement of the Case

     This case is before me based upon a Petition for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner) alleging
violations by Black Star Mining Company, Inc., (Respondent) of various
mandatory safety standards.  Pursuant to notice, the case was heard in
Paintsville, Kentucky on June 27, 1996.

                 Findings of Fact and Discussion

I.   Citation No. 4234310.

     At the hearing, a motion was made to approve the settlement
that the parties had reached regarding this citation.  Respondent
has agreed to pay $50, the full amount of the proposed penalty.
Based upon the documentation in the file, and the assertions of
the Secretary, I conclude that the proposed settlement is
appropriate considering the factors set forth in Section 110(i)
of the Federal Mine Safety and Health Act of 1977 ("the Act").
Accordingly, the settlement is approved, and the motion is
granted.

II.  Citation No. 4506332.

     At the hearing, a motion was made to approve a settlement
that the parties had agreed to regarding this citation.
Initially, the Secretary had sought a penalty of $690.  The
parties have agreed to settle this matter for $363.  I have
considered the representations made at the hearing in support of
the motion, as well as the documentation in the file of this
case.  I conclude that the settlement is appropriate within the
terms of the Act, and accordingly the motion is granted.

III. Citation No. 4006727.

     A. Violation of 30 C.F.R. � 202(a)

     On January 26, 1996, MSHA inspector Larry Little inspected
     the No. 5 entry at Respondent's No. 3 Mine.  At a point
     approximately sixty-five feet inby survey spad No. 563,
     Little inserted a stratascope up into the roof of the mine
     through a one inch diameter test hole that had been bored up
     into the mine roof.  Utilizing the mirrors of the
     stratascope, Little observed horizontal cracks, or
     separations, at three different levels.  He indicated that a
     crack twelve inches above the bottom surface of the roof was
     a quarter inch wide.  Another crack twenty-five inches above
     the bottom surface of the roof was between an eighth and a
     quarter inch wide.  A crack seventy-two inches above the
     bottom surface of the roof was approximately one inch wide.
     The only roof support in the area was a series of seventy-
     two inch resin bolts that were on four foot centers.  Little
     opined that there was inadequate support to support the
     cracks that were located seventy-two inches above the bottom
     of the roof.  He indicated that the separations that he saw
     have a tendency to cause the roof to fall.  In this
     connection, he noted that on January 12, 1996 and on January
     16, 1996, roof falls had occurred in two areas approximately
     200 to 300 feet outby the area in question.

     Little issued a citation alleging a violation of 30 C.F.R.
     � 75.211(c).  At the hearing, Petitioner moved to amend the
     citation to allege a violation instead of 30 C.F.R. �
     75.202(a).  This motion was not objected to by Respondent,
     and accordingly was granted.

     30 C.F.R. � 75.202(a) provides as follows: "The roof, face
     and ribs of areas where persons work or travel shall be
     supported or otherwise controlled to protect persons from
     hazards related to falls of the roof, face or ribs and coal
     or rock bursts."

     Little conceded that Respondent provided for more roof
     support in the area in question than called for in its roof
     control plan.[1]  Specifically, Little indicated although
     the roof control plan allows the entries to be twenty feet
     wide in the area in question, Respondent narrowed the
     entries[2] which resulted in a larger area of coal pillars
     providing additional support.  The same result was obtained
     by lengthening the distance between the centers of crosscuts
     to one-hundred feet.  Also, Respondent had initially bolted
     the area with forty-two inch rods, but then provided
     additional support with the use of seventy-two inch resin
     bolts.  In general, these bolts bond the levels of strata in
     the roof to form a beam which strengthens roof support.
     Also, the resin in the bolts seeps into any cracks in the
     roof to provide further binding of the strata.

     Respondent did not impeach or contradict the testimony of
     Little regarding the presence of cracks at three different
     levels in the roof.  Although the seventy-two inch bolts
     would likely bind the strata between the bottom of the roof
     up into the roof to a point seventy-two inches above the
     bottom of the roof, it would appear not to have any binding
     affect on roof strata more than seventy-two inches above the
     bottom of the roof.   Little opined that there was
     inadequate support for the crack that was located at a point
     seventy-two inches above the bottom of the roof.  This
     opinion was not specifically contradicted by Compton.  Also,
     although there were no visible signs of problems with the
     roof in the cited area such as pressure on the plates of the
     bolts, ribs falling off, floor heaving, or the roof flaking,
     Respondent did not specifically impeach or contradict
     Little's testimony that the separations or cracks that he
     saw do have a tendency to cause the roof to fall.  In this
     connection, I note that two weeks prior to the date at issue
     a roof fall had occurred, and another roof fall had occurred
     ten days prior to the date in question.  Both of these roof
     falls were located approximately 250 to 300 feet from the
     cited area.

     Based on all the above, I conclude that it has been
     established that the roof in question was not sufficiently
     controlled to protect persons from hazards related to falls
     of the roof.  I find, based upon the uncontradicted
     testimony of Little, that persons work in the area cited.  I
     thus find that it has been established that Respondent did
     violate Section 75.202(a), supra.

     B.  Significant and Substantial

     According to Little, the violation at issue was significant
     and substantial.  A "significant and substantial" 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 coal
     or other mine safety or health hazard."  30 C.F.R. �
     814(d)(1).  A violation is properly designated significant
     and substantial "if, based upon the particular facts
     surrounding the violation there exists a reasonable
     likelihood that the hazard contributed to will result in an
     injury or illness of a reasonably serious nature."  Cement
     Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
     1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
     Commission explained its interpretation of the term
     "significant and substantial" as follows:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary of
     Labor must prove:  (1) the underlying violation of a
     mandatory safety standard; (2) a discrete safety
     hazard--that is, 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.

     In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:

          We have explained further that the third element
     of the Mathies formula "requires that the Secretary
     establish a reasonable likelihood that the hazard
     contributed to will result in an event in which there
     is an injury."  U.S. Steel Mining Co., 6 FMSHRC 1834,
     1836 (August 1984).  We have emphasized that, in
     accordance with the language of section 104(d)(1), it
     is the contribution of a violation to the cause and
     effect of a hazard that must be significant and
     substantial.  U.S. Steel Mining Company, Inc., 6 FMSHRC
     1866, 1868 (August 1984); U.S. Steel Mining Company,
     Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

     In essence, as discussed above, the first two elements set
forth in Mathies, supra, have been met.  Petitioner must now
establish the third element of Mathies, supra, i.e., the
reasonable likelihood of an injury producing event.
Specifically, Petitioner must establish that a roof fall was
reasonably likely to have occurred.  Respondent had experienced
two roof falls in a two week period prior to the date at issue,
in areas approximately four crosscuts outby the cited area.
However, the areas that experienced the two roof falls were
supported by only forty-two inch rods, whereas the cited area was
supported by seventy-two inch resin bolts.  Also, the areas that
experienced the roof falls were significantly closer to the
weakest area of the roof, ie., the area under the thinnest
portion of overburden or the center of a hollow.  In contrast,
the cited area was located under overburden that was
approximately 300 feet thick.  Petitioner did not introduce the
testimony of any eyewitnesses who had observed the previous roof
falls and resulting cavities in the roof.  Nor did Petitioner
introduce the testimony of any persons who investigated these
falls.  Instead, Petitioner relied upon the reports of these
falls (Plaintiff's Exhibits No. 3 and No. 4), but did not proffer
the testimony of the persons who prepared these reports.  I thus
assign very little probative weight to the factual statements in
these reports concerning the "thickness" of the roof falls.

     In further analyzing the likelihood of a roof fall, I note,
as set forth above, the lack of visible signs of problems with
the roof, the use of seventy-two inch resin bolts, the high ratio
of solid roof to cracks, and the presence of additional support
provided by increased areas of coal pillars resulting from
narrower entries, and increased distance between crosscut
centers.  Within the context of this evidence, I find that it has
not been established that an injury producing event, i.e., a roof
fall was reasonably likely to have occurred.  I thus conclude
that the violation was not significant and substantial.

     C.  Civil Penalty

     Accordingly to Little, Respondent's foreman had informed him
     on the date in issue that it had planned to install eight
     foot bolts on the third shift in the area cited.  However,
     this person was not called by Petitioner to testify.

     The cracks noted by Little could only have been observed
     with the use of a stratascope.  There is no evidence that
     Respondent had knowledge of these cracks, or had seen them
     prior to the issuance of the citation.  Since there were no
     visible signs of problems with the roof, there is no
     evidence that Respondent reasonably should have known of the
     presence of such cracks or separations.  I thus find that it
     has not been established that Respondent was negligent
     regarding the violative conditions.  Although a roof fall is
     a serious condition, any penalty to be assessed should be
     mitigated by the lack of any negligence on the part of
     Respondent.  Considering the remaining factors in Section
     110(i) of the Act, as stipulated to by the parties, I find
     that a penalty of $50 is appropriate for this violation.

                              ORDER

      It is ORDERED that, within 30 days of this decision,
       Respondent shall pay $463 as a total civil penalty.






                                Avram Weisberger
                                Administrative Law Judge


Distribution:

Thomas Grooms, Esq., U.S. Department of Labor, MSHA, 2002
Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)

James C. Hager, Conference & Litigation Representative,
U.S. Department of Labor, MSHA, 39789 State Highway 194E,
Phelps, KY 41553 (Certified Mail)

Milford Compton, Black Star Mining Co., Inc., P.O. Box 443,
Phelps, KY 41553 (Certified Mail)

/ml


**FOOTNOTES**


     [1]:The roof control plan would be the best evidence of its
various provisions, but it was not offered in evidence.

     [2]:I accept the uncontradicted testimony of Milford
Compton, Respondent's President, that the entries in the area in
question were seventeen feet wide.  Compton indicated, in support
of this testimony, that he had measured these entries the day
after the citation was issued.