<DOC>
[DOCID: f:kt9990.wais]

 
LONE MOUNTAIN PROCESSING INC.
February 9, 2000
KENT 99-90


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041


                        February 9, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. KENT 99-90
               Petitioner       : A. C. No. 15-02263-03551
          v.                    :
                                : Darby Fork No. 1
LONE MOUNTAIN PROCESSING INC.,  :
               Respondent       :

                             DECISION

Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor,
             U.S. Department of Labor, Nashville, Tennessee, for 
             Petitioner;
             Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs,
             Lexington, Kentucky, and Anne Wathen O'Donnell, Esq.,
             Arch Coal, Inc., St. Louis, Missouri, for Respondent.

Before:      Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting  through her Mine
Safety and Health Administration (MSHA), against   Lone  Mountain
Processing,  Inc.,  pursuant  to  section 105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  �  815.   The  petition
alleges  a  violation  of  the  Secretary's  mandatory health and
safety standards and seeks a penalty of $655.00.   A  hearing was
held in Gate City, Virginia.  For the reasons set forth  below, I
modify the citation and assess a penalty of $1,000.00.

                            Background

     The Darby Fork No. 1 Mine is a large, underground coal  mine
operated  by  Lone  Mountain, a subsidiary of Arch Coal, Inc., in
Harlan County, Kentucky.   On October 10, 1998, a fatal roof fall
accident occurred at the mine.   Among  the  many  inspectors who
went  to the mine in the late night on October 10 and  the  early
morning  of  October  11, was MSHA Coal Mine Inspector William R.
Johnson.   Johnson's  assignment   was  not  to  investigate  the
accident, but to conduct a "spot" inspection  of  the rest of the
.002  unit  where  the  accident  occurred.   Since  the accident
happened in the No. 4 heading, he inspected the Nos. 1,  2  and 3
headings.

     As  a  result  of  his  inspection, Inspector Johnson issued
Citation   No.  7456174,  alleging   a   violation   of   section
75.207(c)(2)   of   the   Secretary's   regulations,  30  C.F.R.  
� 75.207(c)(2), in that:

          The  approved   pillar  plan  was  not  being
          followed on the .002  unit  inby  the  pillar
          line  because  the  roadway  leading from the
          solid pillar to the final stump  in the No. 2
          and  No.  3  headings,  had not been narrowed
          down to sixteen feet.  The  timbers  set  for
          the  roadway in the No. 2 heading were twenty
          feet apart.  The right side timbers needed to
          establish the sixteen foot roadway in the No.
          3 heading had not been installed.[1]

(Jt. Ex. 2.)

             Findings of Fact and Conclusions of Law

     Section 75.207(c)(2) provides, in pertinent part, that:

               Pillar  recovery  shall  be conducted in
          the   following   manner,   unless  otherwise
          specified in the roof control plan:

               . . . .

                 (c)   Before  mining is started  on  a
          final stump--

               . . . .

               (2)  Only one open  roadway, which shall
          not  exceed  16  feet wide, shall  lead  from
          solid pillars to the final stump of a pillar.

Concerning this citation, the company argues that, with regard to
the No. 2 heading, there was no violation at all, and with regard
to  the  No.  3,  the  violation  was  neither  "significant  and
substantial" nor an "unwarrantable  failure."   I  find  that the
Secretary  has failed to prove that there was a violation of  the
regulation in the No. 2 heading and that the violation in the No.
3 was not the result of an "unwarrantable failure" on the part of
the operator.

     It should  be  noted at the outset, that there is no dispute
that the Respondent was  conducting  pillar  recovery or that the
roadways in question led from a solid pillar to  the final stump.
Likewise, the parties agree that the company's roof  control plan
did not specify a different method of conducting pillar  recovery
from the regulation.

No. 2 Heading

     Inspector  Johnson  testified  that  he  determined that the
roadway in the No. 2 heading was 20 feet wide by standing against
the outby corner of the intersection of the No. 2 heading and the
crosscut,  and  running  his  tape  measure  along  the   ground,
diagonally  across  the  intersection,  until  it touched what he
believed to be the middle roadway post (the No.  3  timber).   He
stated that Brad Sears, the mine superintendent, was with him and
observed  the  measurement.  He further claimed that "I just told
him what I measured  and  what  I  found," and that Sears made no
response.  (Tr. 57.)

     On the other hand, Sears maintained  that  when Johnson took
the measurement, "I saw 16 feet and two inches is  what  I  saw."
(Tr.  342.)   He  further  declared that:  "The only thing that I
remember him saying that it looked like it may widen out.  No, he
didn't say anything about us  having  a  citation  or anything of
that nature."  (Tr. 344.)

     Gaither  Frazier, the mine manager, testified that  when  he
was informed by  the  mine's  safety manager that the company was
receiving a citation for the wide  roadways, he went to the No. 2
heading to measure the roadway.  He stated that:  "I lined myself
up best I could outby the corner and measured over to the timbers
on the left with a metal tape.  And I measured 16 feet two inches
. . . ."  (Tr. 375.)

     After taking this measurement,  he  went  and got some other
people and went back to the heading two or three  times  to  have
them  witness  his  measurement.  Among the people that he had go
with him were Sears,  Dale  Jackson  (a  fire-boss  at the mine),
Dennis   Cotton  (the  MSHA  inspector  conducting  the  fatality
investigation),  Gary  Harris (another MSHA inspector) and George
Johnson (a Kentucky mine inspector).  He asserted that every time
he measured the roadway,  it  was  sixteen  feet,  2  inches.  He
stated that after showing the measurement to Inspector Cotton, "I
came away from the thing feeling that he didn't think there was a
violation there."  (Tr. 379.)

     Sears  corroborated Frazier's testimony.  He said that  when
the company learned  that the Nos. 1 and 2 headings were included
in the violation, he went  back  to  the  headings  with Frazier,
Cotton and, possibly, Jackson because "we couldn't really see how
there  was  anything  wrong with it, you know, that it should  be
included."  (Tr. 347.)   He  related  that when they measured the
roadway in the No. 2 heading, it measured "16 feet or close to 16
feet."  (Tr. 348.)

     Inspector  Cotton, who apparently could  have  resolved  the
issue  one way or  another,  gave  testimony  that  can  only  be
described  as  evasive.   He  admitted accompanying the others to
witness the measurement of the  roadway  in the No. 2 heading and
he  admitted  that  he observed a measurement  of  16  feet,  but
claimed that he did not  know  what  the  measurement represented
because:

               I  wasn't  sure what they wanted  me  to
          observe, but I had  my  mind  on the accident
          scene.  As to the lead investigator, I have a
          lot of responsibility on me, and  I wanted to
          do that job to the best of my ability.  I had
          a  lot of people that --- my primary  concern
          was this accident scene, the area over there.

(Tr. 252.)  He  even  admitted  that  in  observing  the  16 feet
measurement he actually observed the numbers on the tape measure,
but  he  never  was specific as to exactly what he observed being
measured.[2]

     I find Inspector  Cotton's testimony distressing.  While his
reluctance to contradict  his  colleague  is understandable, such
reluctance  should not, and cannot, override  his  obligation  to
provide the hearing  with  the  facts,  as he observed them, in a
clear and concise manner.

     Operators are frequently reproached  in  decisions  for  not
having  brought  a  fact  or disagreement to the attention of the
inspector at the time of the  inspection, and then bringing it up
for the first time at the hearing.   Here  the company questioned
the  citation, made its own measurements and  then  attempted  to
bring  the  discrepancy  to MSHA's attention as soon as possible.
While the best course would  have  been  to bring it to Inspector
Johnson's  attention,  contacting  Inspector   Cotton   was   not
unreasonable.   Now  the Respondent, instead of having taken care
of the matter appropriately,  finds  that  its inspector witness'
testimony  has  become  more  imprecise  the nearer  the  hearing
gets.[3]

     If Inspector Cotton really was so involved  in  the accident
investigation  that he could not pay attention to anything  else,
he should have informed  the  company's  representatives  that he
could not go with them.  Once he agreed to accompany them, it was
his  duty  as  an  inspector  to give the matter his complete and
undivided attention, to ascertain exactly what he was being asked
to do, and to report the facts  as he observed them, "letting the
chips fall where they may."

     I  find that the Secretary has  failed  to  prove  that  the
roadway in  the  No.  2  heading  was more than 16 feet wide.  In
making this finding, I accept the testimony  of  the company over
that of Inspector Johnson.  I can think of no explanation for the
inspector's mistaken measurement, nor do I believe  that  he  has
been   deliberately  misleading.   However,  the  weight  of  the
evidence  supports  the  testimony of Frazier and Sears.  In this
regard, I note that Sears,  although  when he testified about the
width of the roadway was testifying on cross examination, was the
Secretary's witness.  Further, while Frazier  was  the  company's
witness,  he  ceased  working  for  Lone  Mountain  or any of its
related companies on June 7, 1999, and, thus, would not have been
under  any  apparent pressure to testify in the company's  favor.
Finally, vague  as  Inspector Cotton's testimony was, it tends to
corroborate the testimony  of Frazier and Sears, more than refute
it, and certainly adds nothing to Inspector Johnson's testimony.

     Consequently, I conclude  that  the  company did not violate
its approved pillar plan, or section 75.207(c)(2),  when  it  set
its  roadway  posts  in  the No. 2 heading.  The citation will be
modified accordingly.

No. 3 Heading

     As  noted above, the Respondent  agrees  that  none  of  the
required roadway  posts  had  been installed on the right side of
the roadway leading to the final stump in the No. 3 heading.  The
company  argues,  however,  that  this   violation   was  neither
"significant and substantial" nor an "unwarrantable failure."   I
find  that  the  violation  was  S&S,  but  not an "unwarrantable
failure."

     Significant and Substantial

     A "significant and substantial" (S&S) violation is described
in Section 104(d)(1) of the 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."   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."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co.,  6  FMSHRC  1,  3-4 (January 1984), the
Commission  set  out four criteria that have  to  be  met  for  a
violation to be S&S.   See  also Buck Creek Coal, Inc. v. FMSHRC,
52  F.3d  133,  135  (7th  Cir.  1995);  Austin  Power,  Inc.  v.
Secretary,  861 F.2d 99, 103-04 (5th  Cir.  1988),  aff'g  Austin
Power,  Inc.,  9  FMSHRC  2015,  2021  (December  1987)(approving
Mathies criteria).   Evaluation  of the criteria is made in terms
of "continued normal mining operations."   U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on  the  particular facts surrounding the violation.   Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (December 1987).

     In order  to  prove  that  a violation is S&S, the Secretary
must  establish:   (1)  the  underlying  violation  of  a  safety
standard; (2) a distinct 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 will be
of a reasonably serious nature.  Mathies, 6 FMSHRC at 3-4.

     Everyone agrees that the hazard created by failing to narrow
the  roadway  to 16 feet with timbers is an increased  danger  of
roof falls.  Nevertheless,  the  Respondent  argues  that in this
case there was no hazard created in the No. 3 heading because the
company  was  not  going  to mine the final stump.  If the  final
stump  had  not, in fact, been  mined,  this  might  be  a  valid
argument.  The  evidence  indicates,  however,  that not only was
this a dangerous area even if no mining were performed,  but also
that the company did mine at least part of the final stump.

     Ricky  Clark, the continuous miner operator, testified  that
he unilaterally  decided  not  to  set the roadway timbers on the
right side of the No. 26 pillar (final  stump) because he was not
going to mine the pillar.  He said that the bottom was bad and he
was afraid he would get the miner stuck.   He  admitted, however,
that he did mine two cars worth of coal, which he estimated to be
about two feet of the pillar, in the hopes that  it  would  cause
the roof to fall.

     Frazier  testified  that  when  he  observed the No. 26 cut,
after  the  citation  was issued, that:  "It  looked  short.   It
looked like maybe from the corner that probably ten feet may have
been  taken  out  of it."   (Tr.  383.)    Conversely,  Inspector
Johnson testified that  in  his  opinion  the entire cut had been
taken.  He based this on the fact that when  he  looked  into the
cut  he  could not see the back of it with his cap light and  the
fact that  if  all, or almost all, of the cut had not been taken,
he would not have been able to see into the No. 24 cut.  I credit
his testimony for the following reasons.

     Since the company's  defense  is  that the violation was not
S&S because the cut was not mined, its witnesses  would  not want
to  admit  that  it  had  been.   However, both Clark and Frazier
acknowledged some of it had been mined.  Therefore, the next best
defense  is  to  minimize the extent of  the  cut.   Since  Clark
decided not to place  the  roadway  posts  on  his  own,  without
consulting  or  informing  the  foreman,  it  was  clearly in his
interest  to  claim  that  only a few feet were mined.   But  his
testimony is contradicted by  Frazier, who admitted that at least
ten  feet  had  been cut.  Thus, the  Respondent's  own  evidence
supports a finding  that  a  minimum  of  ten  feet of the No. 26
pillar had been mined.

     Inspector Johnson's reasons for concluding  that  the No. 26
cut had been entirely made were logical.  Obviously, no one could
go in and accurately determine the exact depth of the cut.   When
comparing  the  inspector's  testimony with the company's obvious
interest in minimizing the amount  of  coal  taken,  I  find  the
Inspector's testimony to be more credible.

     Turning  to  whether  there  was  a reasonable likelihood of
injury, I note that pillar recovery is inherently dangerous under
the best of circumstances.  When the final pillar is removed, the
roof is supposed to fall.  Thus, mining the final stump is one of
the  more  dangerous,  if  not  the  most  dangerous,  activities
performed in underground coal mining.[4]  Moreover, in this case,
the best of circumstances did not exist.  The floor was "heaving"
so  badly that Clark wanted to get his continuous  miner  out  of
there.[5]   Yet,  instead  of  installing  the  roadway posts, he
attempted to mine coal from the No. 26 stump, which,  without the
roadway posts, made an unstable situation even worse.[6]

     I  have  little  difficulty  in  concluding  that a serious,
probably  fatal, injury was reasonably likely to occur  in  these
circumstances.   The  company was fortunate that it did not.  But
the fact that it did not, does not mean that a serious injury was
not reasonably likely.   As  the  Commission has long held:  "The
question of whether a violation is  S&S  must  be resolved on the
basis of conditions as they existed at the time  of the violation
and  as  they  might  have existed under continued normal  mining
operations.  Eastern Associated  Coal  Corp.,  13 FMSHRC 178, 183
(February  1991);  U.S.  Steel  Mining Co., 7 FMSHRC  1125,  1130
(August 1985)."  Manalapan Mining Co., Inc., 18 FMSHRC 1375, 1382
(August 1996).  Accordingly, I conclude  that  the  violation was
"significant and substantial."

     Unwarrantable Failure

     The  Commission  has  held  that  unwarrantable  failure  is
aggravated conduct constituting more than ordinary negligence  by
a  mine  operator  in  relation to a violation of the Act.  Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio   Coal   Co.,  9  FMSHRC   2007,   2010   (December   1987).
"Unwarrantable  failure  is  characterized  by  such  conduct  as
`reckless disregard,' `intentional misconduct,' `indifference' or
a   `serious  lack  of  reasonable  care.'  [Emery]  at  2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)."   Wyoming  Fuel  Co., 16 FMSHRC 1618, 1627 (August 1994);
see also Buck Creek Coal,  Inc.  v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).

     The Secretary's argument that  this  violation  involved  an
unwarrantable  failure  is  based on the theory that Ricky Clark,
the continuous miner operator,  was  a  de  facto supervisor.  If
Clark  were  a  supervisor,  the violation would  clearly  be  an
unwarrantable  failure, since he  intentionally  decided  not  to
install the roadway  posts  and  then  went  ahead and mined coal
anyway.  However, he was not a supervisor, de facto or otherwise.

     The Commission has long held that the negligence of a "rank-
and-file"  miner  cannot be imputed to the operator  for  penalty
assessment  purposes.   Fort  Scot  Fertilizer-Cullor,  Inc.,  17
FMSHRC 1112,  1116  (July  1995);  Western  Fuels-Utah,  Inc., 10
FMSHRC 256, 260-61 (March 1988); Southern Ohio Coal Co., 4 FMSHRC
1459,  1464  (August 1982) (SOCCO).  To determine whether such  a
miner was an agent  of  the  operator,  whose  negligence  can be
imputed  to  the  operator,  "the Commission examines whether the
miner was exercising managerial  or  supervisory responsibilities
at the time the negligent conduct occurred.   U.S. Coal, Inc., 17
FMSHRC 1684, 1688 (October 1995)."  Whayne Supply  Co., 19 FMSHRC
447, 451 (March 1997).

     It  is  the Secretary's position that the following  factors
made Clark a supervisor:   (1)  He  was certified as a foreman in
the state of Kentucky; (2) In his prior  employment he had worked
as a foreman for six years; (3) On occasion he had filled in as a
foreman for the Respondent; (4) He had authority to shut down the
mine if methane was encountered; (5) He had the authority to make
decisions  that  affected  the  safety of miners;  (6)  He  could
determine how much of a cut should  be  made  when  operating his
continuous miner; and (7) The foreman and he worked together  and
the foreman relied on him to make safety tests.

     In  Whayne Supply the Commission rejected a similar argument
by the Secretary  as  "lacking  legal  and  evidentiary  support"
because "[a]lthough the record evidence indicates that
.  .  .  was  a highly experienced repairperson who needed little
supervision and  helped less experienced employees, this does not
convert him into a supervisor, much less a manager."  Id.
The Commission further  found that there was no evidence that he 
"exercised any of the traditional indicia of supervisory 
responsibility such as  the  power to hire, discipline, transfer, 
or evaluate employees.   Nor  was  there any evidence that . . . 
`controlled' the  mine or a portion thereof;  rather  he  merely  
carried  out routine duties  involving the repair of Caterpillar 
machinery." Id.

     Likewise,  in this case there  is  no  evidence  that  Clark
exercised  any  of   the   traditional   indicia  of  supervisory
responsibility.  While the record demonstrates  that  he  was  an
experienced   continuous   miner   operator   who  needed  little
supervision, he did not "control" the mine or any part of it, but
merely carried out routine duties involving the  operation  of  a
continuous mining machine.  Among those routine duties were being
alert  for  methane  and  shutting  down  the  miner  when it was
encountered  and  determining how much of a cut to make,  or  not
make, based on the  conditions encountered.  There is no evidence
to support the Secretary's  claim  that  he  had the authority to
make decisions affecting the safety of other miners,  or  that he
had  any  more  authority  than  any  miner has when encountering
hazardous conditions.[7]

     Consequently, I conclude that Clark  was  not  a  supervisor
whose   aggravated  conduct  can  be  imputed  to  the  operator.
However, that does not end the inquiry because the Commission has
further  held   that:   "[W]here  a  rank-and-file  employee  has
violated  the  Act,  the  operator's  supervision,  training  and
disciplining of  its  employees  must be examined to determine if
the operator has taken reasonable  steps to prevent the rank-and-
file  miner's violative conduct."  SOCCO  at  1464.   While  this
standard  is  normally  applied  in  determining  the  operator's
negligence   for   penalty  purposes,  the  Commission  has  also
confirmed that it applies  in determining whether an operator can
be held responsible for an unwarrantable  failure.  Whayne Supply
at 452-53.

     Nonetheless,  the  Secretary  did not present  any  evidence
concerning Lone Mountain's supervision, training and disciplining
of its employees.  Nor is there sufficient evidence in the record
to make such a determination.  Since  the Secretary has failed to
show that the Respondent's supervision,  training  and discipline
of  its  employees was deficient, it must be concluded  that  the
company had  taken  reasonable  steps  to  prevent  the violative
conduct.

     Finally, it is uncontroverted that no supervisor was present
when the violation was committed.  Cf. Midwest Material  Co.,  19
FMSHRC  30,  35 (January 1997).  Accordingly, inasmuch as Clark's
negligence cannot  be  imputed  to  Lone Mountain and there is no
evidence  that  the  company  engaged in  aggravated  conduct,  I
conclude  that  the  violation  was   not   the   result   of  an
"unwarrantable    failure."    I   will   modify   the   citation
appropriately.

                     Civil Penalty Assessment

     The Secretary  has  proposed  a  penalty of $655.00 for this
violation.  However, it is the judge's independent responsibility
to determine the appropriate amount of penalty in accordance with
the six penalty criteria set out in section 110(i) of the Act, 30
U.S.C. � 820(i).  Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-
84 (April 1996).

     With  regard  to  the  penalty criteria,  the  parties  have
stipulated, and I so find, that  the  penalty  will not adversely
affect the company's ability to continue in business and that the
Darby Fork No. 1 Mine is a large-sized coal mine.   (Tr.  20-21.)
I also find that Lone Mountain is a large company.  (Jt. Ex.  6.)
Based  on the company's Assessed Violation History Report, I find
that the  company  has  a  relatively  good  history  of previous
violations.   (Jt.  Exs.  1  and  6.)   I  further  find that the
Respondent demonstrated good faith in attempting to achieve rapid
compliance after notification of the violation.

     Turning  to  the question of gravity, I find this  to  be  a
serious violation.   As  previously noted, pillaring is dangerous
under the best of circumstances and mining the final stump is the
most  dangerous  aspect of pillaring.   Mining  the  final  stump
without putting in  the  required  roadway  posts  is a situation
fraught with the gravest consequences.

     Notwithstanding   the   fact   that   the  miner  operator's
negligence cannot be imputed to the Respondent  and that there is
no  evidence that the operator engaged in aggravated  conduct,  I
find  that the operator was moderately negligent.  The inspectors
testified  that  while there is no requirement in the regulations
that the foreman be  present when the final stump is being mined,
it is good mining practice  for  him to be present to monitor the
mining and the roof conditions.  Indeed,  they maintained that in
their experience the foreman had always been  present  in  such a
situation.   In  this  case, the foreman was not present, but was
off on another matter.   It may be that the miner operator got to
the final stump sooner than  anticipated,  but  I  find  that the
company  was  not  blameless  in  not having someone in authority
present.

     Taking  all of the penalty criteria  into  consideration,  I
conclude that  a  penalty  of  $1,000.00  is appropriate for this
violation.

                              Order

     Citation No. 7456174 is MODIFIED by deleting  the words "No.
2" and the words "the timbers set for the roadway in  the  No.  2
heading  were also twenty feet apart" from section 8, by reducing
the level  of  negligence  from "high" to "moderate," by deleting
the "unwarrantable failure" designation and by making it a 104(a)
citation, 30 U.S.C. � 814(a), instead of a 104(d)(1) citation, 30
U.S.C. � 814(d)(1).  The citation is AFFIRMED as modified.


     Lone Mountain Processing,  Inc.,  is  ORDERED TO PAY a civil
penalty of $1,000.00 within 30 days of the date of this decision.


                              T. Todd Hodgdon
                              Administrative Law Judge


**FOOTNOTES**

     [1] This is an edited version of the text  of the citation.
It  originally  included  findings concerning the No.  1  heading
which were removed by a subsequent modification.  (Jt. Ex. 3.)

     [2] Cotton's colloquy  with  the  judge,  set  out  in  the
Appendix,  demonstrates  the  elusive  nature of his testimony on
this issue.

     [3]  He  evidently  was  more specific  when  he  gave  his
deposition.  (Tr. 304-05.)

     [4] The Secretary offered  into  evidence  accident reports
involving  two  fatal  roof  falls at mines that occurred  during
mining of the final stump.  Both  reports  concluded that failure
to  install  the  required  roadway  posts  contributed   to  the
accident.  (Govt. Ex. 2 & 3.)

     [5] Inspector Johnson testified that pressure from the roof
comes  down  through  the pillars and causes the bottom to "heave
up."  (Tr. 79.)

     [6] In fact, Clark  testified  that  the reason he mined in
the  No. 26 pillar was to try "to get that intersection  to  fall
where it wouldn't hurt us later on."  (Tr. 196.)

     [7]  This  claim  is  apparently  based  on  the  following
question and answer:

          Q.   Does  the  company  intrust you with the
          authority  to  make  decisions  which  effect
          [sic] the safety of miners?

          A.  I would think so.

(Tr. 194.)

                             Appendix

     Q.   Mr.  Cotton,  when  you went  up  to  review  this
     measurement,  did  they  tell   you   what   they  were
     measuring?

     . . . .

     A.  They said they were lined up with the timbers.

     Q.  Okay.

     A.  That's what I --- .

     Q.  And then what were they measuring?

     A.   They said they were going to measure over  to  the
     next row of timbers over here, sir.

     Q.  And  did  they  measure  over  to  the  next row of
     timbers?

     A.  I don't know for --- I mean, I didn't do  it, I was
     just standing there.

     Q.  You watched them do it?

     A.  As far as I know that's what --- they said they did
     that.

     Q.  Could you tell whether they were or not?

     A.   I  didn't --- I didn't check it myself[.]  I  just
     watched them do it.

     Q.  Yes.  But when I see somebody measuring something I
     could see  where  the  end  of  the tape measure is and
     where it's going to?

     A.   Well, like I said if it gets  into  this,  to  me,
     since  I didn't evaluate this area, this plan calls for
     timbers up in here.

     Q.  I want to know what they were measuring.

     A.  From  what  I understood that's what they said they
     were measuring and  I  believe I even told them which I
     didn't get to say on the  record  that was according to
     Mr.  Johnson  and  the  company  because   I  was  very
     concerned about coming back here.

     Q.   You  did  see the tape measure that said 16  feet;
     right?

     A.  It was some point down --- back in --- .

     Q.  Wherever it  was down there --- was it 16 feet from
     the timbers across the intersection to that?

     A.  To these over here?

     Q.  Yes.  Was it the red one?

     A.  Their 16 foot was in this area right here.

     Q.  But it wasn't to the timbers?

     A.  Like I said I  didn't  come over here and make sure
     that it was those timbers.  I just assume they did what
     they were saying they were doing.   And  like  I said I
     didn't know, I just --- .

(Tr. 318-22.)


Distribution:

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)

Anne Walthen O'Donnell, Esq., Arch Coal, Inc., City Place One,
Suite 300, St, Louis, MO 63141 (Certified Mail)

Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 250 West
Main Street, Suite 1700, Lexington, KY 40507 (Certified Mail)

/nj