<DOC>
[DOCID: f:pn94333.wais]

 
TANOMA MINING COMPANY
April 5, 1995
PENN 94-333


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            April 5, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       :  Docket No. PENN 94-333
               Petitioner       :  A.C. No. 36-06967-03832
                                :
           v.                   :  Tanoma Mine
                                :
TANOMA MINING COMPANY,          :
               Respondent       :

                               DECISION

Appearances:  Susan M. Jordan, Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia,
              Pennsylvania, for the Petitioner; Joseph A. Yuhas,
              Esq., Barnesboro, Pennsylvania, for the Respondent.

Before:  Judge Koutras

                        Statement of the Case

     This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. � 820(a) seeking a civil penalty assessment of
$3,000 for an alleged violation of mandatory safety standard
30 C.F.R. � 75.325(b).  A hearing was held in Indiana,
Pennsylvania, and the parties filed posthearing briefs which I
have considered in my adjudication of this matter.

                                Issues

     The issues presented in this proceeding are (1) whether the
condition or practice cited by the inspector constituted a
violation of the cited mandatory safety standard, (2) whether
the violation was "significant and substantial," (3) whether
the violation resulted from the respondent's "unwarrantable
failure" to comply with the cited standard, and (4)  the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found
in section 110(i) of the Act.  Additional issues raised  by the
parties are identified and disposed of in the course of this
decision.

            Applicable Statutory and Regulatory Provisions

     1.  The Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq.

     2.  Commission Rules, 29 C.F.R. � 2700.1, et seq.

     3.  Mandatory safety standard 30 C.F.R. � 75.325(b).

                             Stipulations

     The parties stipulated to the following (Exhibit G-8):

     1.  The Tanoma Mine is owned and operated by the respondent,
and it is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.

     2.  The presiding Administrative Law Judge has jurisdiction
over the proceeding pursuant to section 105 of the Act.

     3.  Section 104(d)(2) "S&S" Order No. 3955721, and its two
modifications and termination were properly served by a duly
authorized representative of the Secretary of Labor upon an
agent of the respondent at the dates, times, and places
stated therein, and may be admitted into evidence for the
purpose of establishing their issuance.

     4.  The parties stipulate to the authenticity of their
exhibits but not to the relevance or the truth of the
matters asserted therein.

     5.  The alleged violation was abated immediately after
issuance of the order.

     6.  The total annual production of the Tanoma Mine is
approximately 600,000 tons of coal, making it a medium-sized
mine.  The respondent, Tanoma Mining Company, Inc., is
considered a small-sized operator.

     7.  The computer printout (Exhibit G-7), reflecting the
respondent's history of violations is an authentic copy and
may be admitted as a business record of the mine Safety and
Health Administration.

     8.  Tanoma Mine had a history of 653 assessed violations in
the 24-month period from October 12, 1991 to October 12,
1993.

     9.  The imposition of the proposed civil penalty will have
no effect on the respondent's ability to remain in business.

     10.  There was no intervening clean inspection between Order
No. 3955721 and previously issued section 104(d)(1)
citations or orders.

     11.  The check that was part of the permanent stopping line
in the first crosscut between L1 and L2 had been taken down
by the respondent to facilitate the transportation of coal
to the belt feeder.

     12.  Coal had been mine in L3 during the midnight shift on
October 12, 1993 while the check was down.

     13.  There was not sufficient air movement in the crosscut
between L1 and L2 on October 12, 1993 to turn the vanes of
the anemometer at the time the MSHA inspector took his
reading.

     14.  There was methane in the amount of 0.1 percent detected
in the last open crosscut between L1 and L2 on October 12,
1993.

     15.  On October 12, 1993, Tanoma Mine was on a 10-day section
103(i) spot inspection program for methane liberation over
500,000 cubic feet per 24-hour period.

                              Discussion

     Section 104(d)(2) "S&S" Order No. 3955721, issued at
10:05 a.m., on October 12, 1993, cites an alleged violation
of 30 C.F.R. � 75.325(b), and the cited condition or
practice is described as follows:

          When checked with an approved annometer (sic)
     the air in the last open crosscut located
     between L1 and L2 entries could not be measured
     due to the lack of air.  The air in the last
     open crosscut could not be measured with an
     annometer (sic) due to the next crosscut outby
     being open.  Evidence in the form of tracks and
     a discussion with the mine foreman indicate the
     second crosscut back had been open to
     accommodate transportation of coal on the
     previous shift.  The section was not producing
     coal on this shift, and when checked the
     methane in the last open was 0.1 ch4.  This
     condition was present in the main C, left side
     section 007.  The faces of L1 and L2 entries
     were in approximately 10 feet.

                 Petitioner's Testimony and Evidence

     MSHA Inspector Lewis E. Kish testified that he has served in
that capacity for  16 years and he described his duties and
training, including 8 years of mining experience in private
industry (Tr. 17-20).  He confirmed that he inspected the mine
on October 12, 1993, and issued the violation in question
because he found an insufficient amount of air in the last
open crosscut in violation of mandatory safety section
75.325(b) (Exhibit G-1, Tr. 21-23).  He reviewed a map of
the Main C mine area and confirmed that it accurately depicted
the development of the section on the day of his inspection
(Exhibit G-2; r. 24-25).

     Mr. Kish stated that he inspected the faces on the right
side of the section and  then proceeded to inspect across the
faces of the left side and took an air reading in the last open
crosscut, and he marked the location between the L1 and L2
entries with a red "X" on the map (Tr. 27).  He stated that he
used an approved and calibrated hand held anemometer that
measures the velocity of air passing through the moveable
vanes of  the instrument but he obtained no reading because
the velocity of air was less than 50 revolutions per minute
and the vanes would not turn.  He took the measurement at
 the last cut-through in the line of pillars where permanent
stoppings were installed between the intake and return air
(Tr. 28).

     Mr. Kish stated that he informed foreman Ed Stine, who was
with him, that the air movement was not sufficient to turn the
anemometer in the last open crosscut, and Mr. Stine stated that
he knew there was no air in the last open crosscut because a
curtain was down in the next crosscut outby and that this was
normal because coal was hauled through the crosscut (Tr. 29).

     Mr. Kish stated that he checked for methane at the same
location where he made his air test and found one-tenth of
one percent (Tr. 30).  He then informed Mr. Stine that he
would issue an order, and they proceeded to the area where
the curtain was down and he marked the location with a black
circle on the map (Tr. 30).  He observed a check curtain
that appeared to have been purposely placed against the left
rib and he observed equipment tracks through that crosscut
(Tr. 31).  He further stated as follows at (Tr. 31-32):

     A.  Mr. Stine told me that this was a normal
     procedure for them to run coal through this
     crosscut, that they had been doing it rather
     than installing a run through check curtain,
     which is a curtain installed with slits in it
     0to permit travel of equipment through this area
     without adversely effecting the ventilation.

     Q.  Did Mr. Stine indicate to you at all when
     coal had last been mined or run through there?

     A.  Yes, he indicated that coal had been run
     through that shift prior, which would have been
     on the midnight shift.

     Q.  The midnight shift of October 12th?

     A.  Yes.

     Mr. Kish stated that the check curtain was reinstalled
within 2 to 3 minutes and he took a methane test and found
none present, and another check with his anemometer
indicated there was sufficient air in excess of 15,000 cfm
(Tr. 33).  He confirmed that no mining was going on while he
was on the section, and that it was a maintenance shift.
However, mining would normally again resume on the afternoon
second shift
(Tr. 34).

     Mr. Kish confirmed that he took notes regarding the
violation (Exhibit G-3), and that he cited section
75.325(b), because it requires 9,000 cfm of air in the last
open crosscut regardless of whether the unit is in
production or not.  He explained why he believed that his
air reading was made in the last open crosscut (Tr. 35-36).

     Mr. Kish stated that Mr. Stine did not indicate to him that
the location where he checked the air and methane was not in
the last open crosscut and the preshift exam-ination book
indicated that the preshift examiner made an air reading at
the last open crosscut between the L1 and L2 entries, as he
did, and recorded 15,120 cfm of air.  Since the location of
the crosscut was shown as L1 to L2, Mr. Kish assumed that
was the correct place to take the air readings (Tr.38).

     Mr. Kish stated that he reviewed the preshift and onshift
mine examiner reports for October 12, 1993, and the air
readings on both reports for the last open crosscut is shown
as 15,120 cfm (Exhibits G-5 and G-5).  The mine examiner
stated that these air readings were taken at crosscuts L1
and L2, and Mr. Kish believed that these air readings were
for the last open crosscut "because that's where the last
open crosscut is located" and the operator "would have no
reason to take an air reading at that location if it was not
the last open crosscut" (Tr. 62).  He stated that these air
readings were taken between 5:00 and 6:00 a.m., and he was
of the opinion that the check curtain was down at that time
because "once that machine was moved over to the right side,
I see no reason why they would have reinstalled it and taken
it back down.  It doesn't make sense" (Tr. 61-62).

     On cross-examination, Mr. Kish referred to the mine map
(Exhibit G-2), and stated that for some purposes of the Mine
Act, the last open crosscut extends from the R3 entry to the
L3 entry, and "that is the line of last open crosscut
across, yes" (Tr. 72).  For purposes of the definition of
"working place area inby the last open crosscut," that
entire area would be the last open crosscut (Tr. 72).  The
cited "last open crosscut" at issue in this case is a
particular location in that area that is given for an air
measurement, and on the day the order was issued there were
two last open crosscuts for purposes of air measurement in
the main C section.  The "gist" of the violation is that the
last open crosscut on the left side did not have 9,000 cfm
of air.  In his opinion, the location for the air
measurement was the areas between the L1 and L2 entries (Tr.
73).

     Mr. Kish stated that if the respondent's use of the check
curtain in question to ventilate the main C section was part
of its approved ventilation plan there would still be a
violation of section 75.325(b) "because a statutory
provision cannot be superseded with a plan that will
undermine that statutory provision" (Tr. 74).  He confirmed
that the location of the last open crosscut for air
measurement purposes can change when the miner is in the L3
entry, and in that case, the last open crosscut would be
between the L2 and L3 entries (Tr. 74).

     Mr. Kish confirmed that there are two MMU (mechanized
mining units) sections shown on the mine map, and he identified
them as the 001 and 007 that coincide with the continuous
mining machine.  He believed this was the only mine area that had
two MMU's.  He further stated that other mine sections were
ventilated the same as the main C section with a double
split of air, but they were continuous haulage sections that
loaded on bridge conveyors and did not use shuttle cars (Tr.
77-78).

     Mr. Kish stated that he did not know the volume of air
passing thru the 6-1/2 x 19 foot cited crosscut area where he
took his air reading and he did not check the air direction
because he did not have a chemical smoke tester with him.
Although he could have checked the air direction by emitting
dust from his gloves, he did not do so (Tr. 80).  He stated
that the L2 entry was a return, and confirmed that the two
checks located between the L2 and L3 entries outby the last
open cross-cut as shown on the map were in compliance with
the ventilation plan (Tr. 82).

     Mr. Kish confirmed that there is no requirement that
9,000 cfm's of air be main-tained in the entire last open
crosscut from R3 to L3, and that the applicable 9,000 cfm
pursuant to section 75.325(b), would only be at a specific
location in that area (Tr. 89).

     On further redirect, Mr. Kish confirmed that regulatory
section 75.360(c)(1), states where the location of the last
open crosscut is in relation to the taking of an air
measurement during the preshift examination.  The regulation
states that the last open crosscut "is the crosscut in the line
pillars containing the permanent stoppings that separate
intake air courses and the return air courses."  He
identified this location as the area marked with an "x" in
the yellow area shown on map Exhibit G-2 (Tr. 92).

     Mr. Kish testified about alternate methods of ventilating
the face areas, and he stated that the air passing through
the last open crosscut between L1 and L2 was insufficient,
but he did not know if there was positive air movement (Tr.
93-98).  He stated that in the split system of ventilation
in use there are two crosscut locations where the air must
be measured and where 9,000 cubic feet of air must be
maintained (Tr. 99).

     On further cross-examination, Mr. Kish identified Exhibit
R6, at pgs. 49 and 50, as an MSHA "question and answer"
document compiled to clarify and interpret the new November,
1992 ventilation regulations.  He stated that the document
reflects that the definition of "last open crosscut" for
purposes of an air reading was not changed.  He confirmed
that there was such a definition in the old regulations but
did not know where that might have been (Tr. 101-103).

     Inspector Kish confirmed that he initially issued the order
as a non-"S&S" violation, but modified his finding to "S&S"
the following day after having "second thoughts about the
circumstances involved."  He stated that "in hindsight, I
figured that it was S&S, and I also checked with the
supervisor to see what his feelings were on it and he agreed
with it" (Tr. 40).

     Mr. Kish stated that in making his "S&S" determination he
considered the fact that the mine was on a 10-day section
103(i) spot inspection cycle for at least 2 years because it
liberated 500,000 to a million cubic feet in a 24-hour
period, and that production equip-ment would be passing
through the cited area during normal production and he
believed this presented an ignition hazard because of the
methane accumulation (Tr. 40).  He further stated as follows
at (Tr. 40-41):

     Q.  Did you believe that a methane accumulation
     in the explosive range was reasonably likely?

     A.  Yes, I did.

     Q.  Why?

     A.  Because this air in the last open crosscut,
     there was a minimal amount of air passing
     through this area.

    *    *    *    *    *    *    *

     A.  Because of the equipment passing through
     that area, also.

     Q.  But my question right now is about the
                    methane accumulation?

     A.  Okay.  The methane accumulation --- there
     was an accumulation of one-tenth of one
     percent, which was diluted and carried out when
     we did re-install the check the next crosscut
     outby.  Therefore, I have to say that an
     accumulation was possible to continue growing
     in that area had there not been sufficient
     ventilation to render a dilutant.

     Mr. Kish stated that the mine had a prior methane ignition
in 1985.  The approximate methane liberation for the C main
section at the time of inspection was 18,000, and although
0.1 methane was detected, he believed it was likely that
methane would continue to accumulate because "this is a
virginal area of the mine, there's nothing mined out around
it.  So it would be assumable that you would either maintain
that or possibly go up in methane" (Tr. 45-46).

     Mr. Kish believed that a methane ignition was reasonably
likely to occur "if the conditions were left go" because of
equipment such as scoops, shuttle cars, roof bolters, and
continuous miners normally passed through and operated in
the area.  The scoops were used as part of the clean-up
cycle and when the metal bucket is pressurized against the
rock-based mine floor sparks can be created.  Other
potential ignition sources included the mining machine and
shuttle cars used in cleaning up and loading rock,
permissibility equipment faults that may occur, and roof
sparks generated by the roof bolter bits when drilling into
the roof (Tr 47-57).  Mr. Kish confirmed that in his
experience, he was aware of permissibility problems and
violations connected with shuttle cars and scoops (Tr. 55,
58).

     Mr. Kish stated that he never examined any of the mining
equipment used in the cited area prior to his inspection,
but that a week later during an inspection he found
permissibility violations on the shuttle car, scoop, and
roof bolter.  He did not know whether these violations
existed during his October 12, 1993, inspection (Tr. 59).
He believed that three people were exposed to the cited
hazard, and they would likely be the miner operator, helper,
and shuttle car operator (Tr. 59-60).

     Mr. Kish confirmed that at the time he issued the order he
was aware that the mine was on a 103(i) spot inspection
cycle and that equipment traveled through to the L1 to L2
areas.  When asked if his supervisor told him to modify the
order to "S&S" the next day, Mr. Kish responded "not that
I'm aware of.  I don't recall that" (Tr. 77).  He explained
his initial non-"S&S" determination as follows at (Tr. 76):

     A.  Mainly because I wanted to be fair with the company.
     Basically, I didn't have the time to investigate that ---
     I really didn't know at that time for positively what was
     really scrambled in my head at that time.  If anything, I
     was more lenient.  Like I say, I don't like to wham the
     company.  But then on reviewing it again, it just was too
     overwhelming for me to let go as a non S&S.

     Mr. Kish stated that the explosive range of methane is 5 to
15 percent and that the two MMU's on the cited section were
liberating 18,000 cubic feet of methane per 24-hour period
(Tr. 48).  He confirmed that he cited no equipment
permissibility violations on the section at the time of his
inspection and he believed that during the course of mining
at the L3 face there would not have been any problem with
air quantities at the face.  The L3 face would have been the
face that was mined on October 12, and even if one were to
assume that the check curtain was down, there would still be
sufficient air to ventilate the L3 working face (Tr. 85).

     Mr. Kish did not believe that any mining was taking place on
the left side of the section between 5:00 a.m. and 6:00
a.m., or that the air reading at the crosscut between
L1 and L2, was over 15,000 cfm's because there was no reason
to reinstall or take down the curtain once it was installed,
and Mr. Stine told him  the curtain was taken down while the
area was mined (Tr. 121).  Mr. Kish could not state that
preshift examiner McGary fabricated the air readings
recorded in his report  (Tr. 125).

     Inspector Kish stated that there were a number of reasons
for his unwarrantable failure finding, including previously
issued citations for having less than 9,000 cfm of air in a
last open crosscut, and foreman Stine's "directness" in
telling him that it was "a normal practice" to move the
curtain to facilitate coal haulage through the area (Tr.
60).  Mr. Kish stated that it was not possible to maintain
9,000 cubic feet of air in the last open crosscut when the
air is short cutting through the outby crosscut (Tr. 61).

     Mr. Kish confirmed that he was aware of the previously
issued citations of section 75.325(b) at the time he issued
his order "mainly through conversations with our inspectors
out in the field offices and overhearing them talk about
them" (Tr. 65).  He reviewed MSHA's records for copies of
the prior citations after he issued the order
(Exhibit G-6).

      Mr. Kish confirmed that foreman Stine did not hesitate
or in any way try to cover up the fact that the curtain was
removed while mining, and that he indicated that this was
normal loading procedure on the left side (Tr. 86).  Mr.
Kish stated that the prior citations were "a large factor"
in his unwarrantable failure determination, as well as his
belief that Mr. Stine should have been aware that 9,000
cfm's of air was required in the last open crosscut (Tr.
87).  Mr. Kish confirmed that his belief in this regard was
based on the assumption that the L1 to L2 area was the last
open crosscut (Tr. 87).  He believed that
one prior citation not included among those in Exhibit G-6,
was issued on the main C section.  He further stated that
there is no prohibition against simultaneous preshift and
onshift examinations (Tr. 90).  He subsequently confirmed
that prior Citation No. 3955590, for only 5,832 cfm of air
thru the last open crosscut between the belt and track entry
was issued on the left side of the C main section, but was
subsequently modified to reflect it was issued on the right
side (Exhibit G-6; Tr. 100).

     In response to bench questions, Mr. Kish stated that based
on the 15,120 and 14,320, air readings recorded in the
preshift report and examination book the ventilation curtain
in question would have had to been up.  He confirmed that
foreman Stine told him that it was a practice to take the
curtain down, and although this purported admission is not
recorded in his notes, he reiterated that Mr. Stine stated
that it was a practice to take the curtain down to allow the
shuttle car to haul through the crosscut (Tr. 109-110).

                 Respondent's Testimony and Evidence

     Walter McGary testified that he has 20 years of mining
experience and has served as a supervisor at the mine for
the past 10 years and holds mine examiner and assistant mine
examiner's papers.  He was the section foreman on the main C
section on the third shift from 11:00 a.m., October 11,
1993, to 7:00 a.m., October 12, 1993.  He confirmed that the
section map (Exhibit G-2), represents the section as he
remembered it at that time (Tr. 127).

     Mr. McGary explained the mining that was taking place on
October 12.  After completing mining on L3 left side, the
shuttle cars moved to the right side and the roof bolter
moved to the left side to bolt the L3 area, and the crew had
problems "getting the machines squared around."  He returned
to the right side to check on a rock that had rolled out of
the rib and hit one of the men.  While he was being
transported out, the roof bolters from the left side
informed him that the bolter was stuck and could not be
moved.  The check curtain was taken down to allow a shuttle
car to go in and pull out the bolter, but the shuttle car
operator forgot to put the curtain back up, and by the time
the bolter was taken out of the area "it was quitting time
and we man tripped out" (Tr. 128-130).

     Mr. McGary confirmed that the check curtain was down when
the L3 entry was being mined, and he stated as follows at
(Tr. 131):

     Q.  And why did you mine with that check out?

     A.  In order to run two shuttle cars, we run
     one in the top side and one on the bottom side
     and we took it down.  Once we were done mining,
     we come back out and we put that check back up
     to take care of our areas.

     Q.  Are you permitted to mine in that fashion?

     A.  I never thought any other way.  I was
     always mining that way.  I've mined that way
     with other Federal inspectors in there with me
     and there was nothing said about it.

     Q.  The same way you would be mining on the L3
     entry on that particular day?

     A.  The same way I was mining on the left side,
     yes.

     Mr. McGary stated that the production report for October 12,
reflects that he was loading coal in L3 from 2:05 to 3:30
a.m.  He left the section at 6:30 a.m., and no one was there
when he left.  Mr. Stine and Mr. Kish were never in the
section during his shift (Exhibit R-2; Tr. 133).

     Mr. McGary stated that his preshift report for October 12,
1993, reflects that he measured 15,120 cfm of air "on my
last open crosscut which was taken between L1 and L2"
(Exhibit R-3, Tr. 134).  He took the reading between 5:00
and 6:00 with an anemometer and "the check was up down
below" because it is always put back up when mining is
finished and when mining and the equipment moved from the
left side to the right side, the check curtain goes back up
again (Tr. 134).  He found no methane at the faces or at the
last open crosscut (Tr. 135).

     On cross-examination, Mr. McGary explained the location of
the bottom and top crosscut routes, and he stated that the
top crosscut route from L2 to L1 on map Exhibit G-2, passes
through the crosscut where the curtain was down (Tr. 138).
He stated that shuttle car operator Andy Scott put the check
curtain back up at 3:30 a.m. when the L3 mining was
completed and he knew this because his air reading in the
last open crosscut showed 15,120 cfm of air.  He did not
personally see Mr. Scott put the curtain up, but he would
not have obtained the air reading if it were down.  He
confirmed that except for taking the curtain down while
mining is taking place, it always remains up so that
adequate air readings may be taken in the last open
crosscut, L1 to L2 (Tr. 139-140).

     Mr. McGary reiterated why the curtain was taken down during
his shift, and he explained the route of travel for the
shuttle car that went to the L3 area to pull out the roof
bolter (Tr. 140-144).

     Mr. McGary stated that when he took his air reading at
crosscut L1 to L2, as recorded in his preshift report,
(Exhibit G-4), he considered that location to be the last
open crosscut, and he agreed that 9,000 cfm of air is
required to be maintained in the last open crosscut (Tr. 145).
He denied that he may have taken his air reading in the
crosscut between L2 and L3 because there was equipment
in that area (Tr. 145-147).

     Mr. McGary stated that he only learned that the violation
was a (d)(2) order "a couple of weeks ago," and that the
only discussion he had with Mr. Kish was after the violation
was issued when he told him that "I didn't think that I did
anything wrong."
He further stated as follows at (Tr. 148-149):

     Q.  Do you recall telling Mr. Kish that the
     mine was going to install run through checks on
     the section now?

     A.  No.  I told Mr. Kish that the way we run
     that is so we wouldn't have to operate with run
     through checks.  But after that violation we
     had to use run through checks or else not run
     through it after that.  But prior to that, we
     didn't have to use run through checks.

     Q.  You never brought to Mr. Kish's attention
     the allegations that the shuttle car operator
     had put the check back up and then taken it
     back down; did you?

     A.  I don't recall.  I don't know if I did or I
     didn't.  I honestly couldn't.  But I'm telling
     you that I did so what --- would that have any
     bearing on Mr. Kish?

     Q.  Thank you, sir.  You've answered my
     question.  Thank you.

     Mr. McGary stated that shuttle car operator Scott never
indicated to him that after the check curtain had been
reinstalled he took it down again.  He stated that Mr. Scott
"told me on the way going out that he forgot to put the
check back up" (Tr. 150).

     When asked in response to a further question by the
petitioner's counsel if he ever informed foreman Stine or
anyone else that Mr. Scott forgot to put the check curtain
back up, Mr. McGary stated as follows at (Tr. 159):

     A.  No, I did not.  There was so much confusion
     outside with him being hurt and I was talking
     to the State inspector at the time and he
     asking me questions.  I never got around to
     him.

     Thomas Nalisnick testified that he has been employed by  the
respondent for 12 years and has served as its chief mining
engineer since 1988.  His duties include the submission of
ventilation and roof control plans, and the drawing of mine
maps and projections.  He holds a B.S. degree in mining
engineering and is a professional engineer.  He is personally
involved with the submission of mine plans to MSHA and deals
directly with the District Two office in connection with the
development and submission of ventilation plans (Tr. 159-
161).

     Mr. Nalisnick identified Exhibit R-4 as a typical face print
that "roughly" shows the mining method used on the main C
section on October 12, 1993, and he confirmed that this was
part of the approved plan in effect that day (Tr. 163).  He
believed that the mining of the L3 entry, with the check
curtain down one crosscut outby the last open crosscut
between the L1 and L2 entries presented no problem and that
the plan permitted mining and ventilating in that fashion
(Tr. 163).  He agreed that not all of the 15,000 cfm of air
would travel up the L2 entry, through the crosscut L2 to L3,
and to the working face, and he explained the air direction
and mining method (Tr. 164-166).  He stated that the mining
method was safer because it eliminates the "run through"
check curtains while still diluting gases.

     Mr. Nalisnick identified Exhibit R-5, as a letter dated
December 13, 1993, to him from MSHA District Manager Joseph
J. Garcia relating to ventilation drawing Exhibit R-4 (Tr.
167).  Mr. Nalisnick stated that he spoke with MSHA's
district ventilation representative Zilko on December 8,
1993, and he explained as follows at (Tr. 167-168).

     A.  Actually, I talked to Mr. Zilko on December
     8th.  We had our first conversation.  He called
     me up and he was told that we had to reevaluate
     our main C face ventilation with these check
     curtains and that.  And we discussed it and we
     both agreed that the best way is the way we
     have it worded now since the main ventilation
     is more not typical or there's more variables
     in the main ventilation.  You want to have some
     flexibility in moving the canvases.  You just
     can't make a plan and say, these canvasses will
     be right here.  It's not practical and I think
     it's ---.

     Mr. Nalisnick believed that the mining conducted on the
midnight shift on October 12, and the ventilation method used
at that time, was in compliance with the ventilation plan
and regulations and that the section was being ventilated
(Tr. 186).

     On cross-examination, Mr. Nalisnick stated that the
L2 location on map Exhibit R-1 is a projected return air
course and that the designated stoppings are for the purpose
of separating the intake from the return.  He confirmed that
it was necessary to take the check curtain down across the
crosscut between L1 and L2 so that a shuttle car would not
have to go through a run-through check.  He confirmed that
the purpose of the typical face ventilation print, Exhibit
R-4, is to minimize the need for run-through checks, but he
acknowledged that under the type of mining in question there
was no need for run-through checks (Tr. 190-192).

     Mr. Nalisnick confirmed that L1 and L2 are working places,
and that the ventilation method used on the section at the
time of the inspection was the safest way of doing it
(Tr. 193).  Mr. Nalisnick stated as follows with respect to
the December 13, 1993, letter from Mr. Garcia (Exhibit R-5;
Tr. 194-195):

     Q.  Looking at the letter that you received on
     the 13th of December, I point you to the third
     paragraph.  It's a one-sentence paragraph.
     Would you read that sentence aloud, please?

     A.  The location of the stopping line is used
     to determine the quantity of air in the last
     open crosscut.  Reference 30 C.F.R. ��
     75.325(b) and 75.360(c)(1).

     Q.  And do you happen to know what these two
     sections of the regulations are, sir?

     A.  75.325(b) I know for sure and 360(c)(1) I'm
     not quite positive on that.

     Q.  Would it surprise you if I told you that
     the 75.325(c) points out the need for
     maintaining --- or 325(b), excuse me, points
     out the need for maintaining 9,000 cfm in the
     last open crosscut and the 75.360(c)(1)
     designates where the last  open crosscut is and
     that, in fact, on that map there under
     75.360(c)(1) it is between L1 and L2?

     A. If you're going by the definition of
     stopping lines, I would assume that's where the
     law states its at.

                        Petitioner's Arguments

     The petitioner argues that the cited section 75.325(b),
requires at least 9,000 cubic feet of air per minute at the
last open crosscut in any pair or set of developing entries,
and that the term "last open crosscut," for purposes of air
readings is defined by sections 75.360(c)(1) and
75.362(c)(1),  as "the crosscut in the line of pillars
containing the permanent stoppings that separate the intake
air courses and the return air courses."

     The petitioner asserts that the location where Inspector
Kish took his air reading between the L1 and L2 entries was
the last open crosscut and proper location for determining
compliance with section 75.325(b).  In further support of
its argument, the petitioner points out that the
respondent's preshift and onshift examination books showed
that air readings were taken at that same location by
section foreman McGary, that Mr. McGary acknowledged that
the last open crosscut between the L1 and L2 entries was the
location where 9,000 cubic feet of air per minute was
required, and that mine foreman Stine, who was with Mr. Kish
during his inspection, never indicated that the area
between the L1 and L2 entries was not the prior location
for taking an air reading.

                        Respondent's Arguments

     The respondent argues that the phrase "last open crosscut"
has several meanings, and for  permissibility purposes, the
entire width of the section from the R-3 entry to the
L3 entry could be considered the last open crosscut for
purposes of defining a working place area inby the last open
crosscut.  In the instant case, the respondent asserts that
it is undisputed that the "last open crosscut" for purposes
of taking an air reading pursuant to section 75.325(b), is a
point within that line of crosscuts, and that the critical
issue is the location of that point in the Main C left side
at the time of the inspection on October 12, 1993.

     The respondent takes the position that the L1 to L2 crosscut
area identified and cited by the inspector is not necessarily
the last open crosscut, and that for purposes of an air
measurement pursuant to section 75.325(b), the L2 to
L3 area can also be the last open crosscut.  In support of
this argument, the respondent relies on the inspector's
acknowledgment that it was possible for the last open
crosscut location to change to the area between L2 and L3
when the mining machine is in L3, and that the stopping line
as shown in Exhibit G-2, does not always separate the intake
air courses from the return air courses.

     The respondent argues that Inspector Kish failed to consider
the following language in the November 9, 1992, Ventilation
Questions and Answers, published by MSHA to interpret
section 75.325 (Exhibit R-6):  "Section 75.325(b) does not
require that previously accepted development systems be
abandoned, does not require new or additional vent-ilation
controls, and does not require additional or duplicative
locations where 9,000 cfm must be maintained."

     The respondent argues that this language clearly grand-
fathers all existing, approved ventilation plans that were
in effect in August of 1992, when section 75.325, became
effective, and that it had a plan provision that became a
part of its 1982 plan that was updated in 1989 and is part
of its currently approved plan.  That provision, which
depicts the mining system in place in the Main C section on
October 12, 1993, and shows checks directing air to the
working faces, states as follows (Exhibit R-4):  "The
location of these checks may vary, so as to provide positive
ventilation to all working places and minimize the need for
run through checks, depending on the place being mined."

     The respondent maintains that it has always construed this
plan provision to permit it to take down the check curtain
that was taken down while mining the L3 entry, and that this
was obviously the opinion of many other MSHA inspectors who
have observed the section foreman ventilate in this manner
while mining the Main C section, and never indicated that
taking the curtain down to eliminate the use of a run through
check was a violation of the plan or section 75.325(b).

     The respondent states that as a result of the order issued
in this case, the afore-mentioned ventilation plan provision
and mining procedure was revisited by its Chief Engineer
Nalisnick and MSHA district office ventilation
representative Zilko, and the plan provision was not changed
and is still a part of its approved plan.

     The respondent points out that even though foreman Stine and
McGary readily admitted that the L3 entry would have been
mined with the check removed, the respondent was not cited
for violating its plan because taking down the check while
mining is the L3 entry was not a plan violation.  The
respondent further points out that the undisputed result of
removing the check is that the majority of the air would
move over one crosscut and travel through the L2 to L3
crosscut rather than the L1 to L2 crosscut,
and if that crosscut remained the last open crosscut for
purposes of an air measurement pursuant to section
75.325(b), it would never be in compliance while mining the
L3 entry.  The respondent concludes that the proper location
for the last open crosscut air reading pursuant to section
75.325(b), while the check is removed, is the L2 to L3
crosscut, and it is undisputed that it had well over the
required 9,000 cfm of air at that location.

     Relying on the inspector's agreement that the L2 to L3
crosscut can be the last open crosscut, and that the
location of the last open crosscut for taking an air reading
can change, the respondent argues that if the check is up,
the proper air reading location is the L1 to L2 crosscut,
and if the check is down, the proper air reading location is
the L2 to L3 crosscut.  The respondent concedes that its
ventilation plan does not permit less than
 9,000 cfm in the last open crosscut.  However, it believes
that its plan does permit the location for an air reading to
move, and that MSHA recognized this fact in its previously
cited ventilation "questions and answers."

     The respondent concludes that since the L2 to L3 area was
the last open crosscut while the check curtain was down, and
that it had more than the required 9,000 cfm of air, the
petitioner has failed to prove a violation of section
75.325(b).

                       Findings and Conclusions

Fact of Violation

     The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. � 75.325(b), which provides as follows:

� 75.325  Air quantity.

    *    *    *    *    *    *    *

          (b)  In bituminous and lignite mines, the
     quantity of air reaching the last open crosscut
     of each set of entries or rooms on each working
     section and the quantity of air reaching the
     intake end of a pillar line shall be at least
     9,000 cubic feet per minute unless a greater
     quantity is required to be specified in the
     approved ventilation plan.  This minimum also
     applies to sections which are not operating but
     are capable of producing coal by simply
     energizing the equipment on the section.

     In Secretary of Labor v. Peabody Coal Company, 11 FMSHRC 4,
(1989), the Commission stated in regard to the term "last
open crosscut" that:

          Although 'last open crosscut' is not defined in
     the Mine Act or the Secretary's regulations, the Act and
     regulations contain repeated references to the
     term.  [Footnote reference omitted.]  As noted,
     a 'crosscut' is a passageway or opening driven
     across entries for ventilation and haulage purposes.
     In general, the last open crosscut thus refers to the
     last (most inby) open passageway between entries in a
     working section of a coal mine.  [Footnote reference
     omitted.]  The last open crosscut "is an area rather than
     a point or line . . . ."  Henry Clay Mining
     Co., 3 IBMA 360, 361 (1974).

     Sections 75.360(c)(1), and 75.362(c)(1) covering preshift
and onshift examinations, requires the persons conducting
the examination to determine the volume of air at the
following areas if anyone is scheduled to work in the areas
during the oncoming shift:

          (1)  In the last open crosscut of each set of
     entries or rooms on each working section . . .
     .  The last open crosscut is the crosscut in
     the line of pillars containing the permanent
     stoppings that separate the intake air courses
     and the return air courses.

     The evidence establishes that Inspector Kish arrived at the
Main C section at approximately 9:00 a.m., on October 12,
1993, and accompanied by mine foreman Edward Stine, started
his inspection in the right side, taking air readings
between the R2 and R3 entries, and then proceeding to the left
side where he continued across  the faces until he reached a
location that he believed was the last open crosscut between
the L1 and L2 entries.  He marked the location with a red
"X" on a mine sketch of the area (Exhibit T-2), and his
inspection notes reflect that he reached that location at
10:05 a.m.  (Exhibit G-3).

     After reaching the cited crosscut location, Mr. Kish tested
for methane with his hand-held methane detector and found
0.1 percent methane.  He then took an air reading with an
anemometer at that same location and could not get a reading
because the anemometer vanes would not turn.  Since the
anemometer was calibrated to measure a minimum of 50 cubic
feet of air per minute, Mr. Kish concluded that the air
current was less than that.  His inspection notes state that
"veins in anemometer will not turn.  No air movement."
Under these circumstances, Mr. Kish cited a violation of
section 75.325(b), which requires that a minimum of 9,000
cubic feet of air per minute be maintained at the last open
crosscut of each set of entries or rooms on each working
section and the intake end of a pillar.

     Mr. Kish concluded that the cited location was the last open
crosscut as described by the regulation because it was the
last cut through in the line of pillars where permanent
stoppings were installed between the intake and return air
(Tr. 28, 35-36).  He also relied on the preshift and onshift
examination records of examiner Walt McGary who recorded air
readings at the L1 and L2 crosscut, and he confirmed that
mine foreman Stine did not deny that the cited location was
in fact the last open crosscut (Exhibits G-4, G-5; Tr. 36-
37).  Mr. Kish further confirmed that preshift and onshift
air readings are required to be taken at the last open
crosscut, and since Mr. McGary noted his readings at the L1
and L2 crosscut, he (Kish) assumed that this was the correct
location to take the required air reading (Tr. 38).

     Mine foreman Stine did not testify in this case.  Mine
examiner Walter McGary, who was the third shift section
foreman on October 12, 1993, agreed that the mine map sketch
(Exhibit G-2), was an accurate representation of the section
on that day.  He also confirmed his air reading at the "last
open crosscut which was taken between  L1 and L2" (Tr. 134).
He further referred to that location at L1 to L2 as the
"last open crosscut"  (Tr. 139), and agreed that when he made
his air reading he considered that location to be the last
open crosscut and that 9,000 cubic feet of air per minute
was required at that location  (Tr. 144-145).

     Respondent's chief mining engineer Thomas Nalisnick
confirmed that locations L1 and L2 were working places, and
he "assumed" that the cited location between L1 and L2 was
the last open crosscut pursuant to section 75.360(c)(1),
where 9,000 cubic feet of air per minute must be maintained
pursuant to the cited section 75.325(b) (Tr. 194-195).

     After careful review and consideration of all of the
credible evidence and testimony in this case, including the
arguments advanced by the parties in support of their
respective positions, I conclude that the petitioner's
position is correct and that its credible testimony and
evidence supports a violation of section 75.325(b).

     As noted earlier, section 75.325(b) requires a mine operator
to maintain at least 9,000 cubic feet of air per minute at
the last open crosscut of a working section.  This minimum
amount of air quantity is required even though the section
is not operating but is capable of coal production by simply
energizing the equipment.  In this case, even though the
section was not in production at the time of the inspection,
it was in a "production-ready" mode within the language of
the regulation that clearly applies in this case.

     Having viewed Inspector Kish in the course of his testimony,
and considering his 16 years of inspector experience and 8 years
of experience in the private coal mining sector, including
employment as a state certified mine examiner and assistant
mine foreman, I find him to be a credible witness with respect
to the interpretation and application of the requirements
found in section 75.325(b).

     It appears to be undisputed in this case that the lack of
perceptible air movement at the cited crosscut location was
the result of a ventilation curtain located outby being taken
down to allow for shuttle cars to move through the crosscut.
The curtain was not re-installed at the end of the production
shift, but the air was immediately restored by re-hanging the
curtain to abate the violation on the ensuing maintenance shift.

     The critical issue here is whether or not Inspector Kish
took his supporting air reading at the proper crosscut
location where 9,000 cfm of air was required to be main-
tained.  For compliance purposes pursuant to section
75.325(b), the definition of the "last open crosscut"
location for air readings by the preshift and onshift mine
examiners to insure at least 9,000 cfm of air at that
location is found in sections 75.360(c)(1) and 75.362(c)(1),
which define the term "last open crosscut" as "the crosscut
in the line of pillars containing the permanent stoppings
that separate the intake air courses and the return air
courses."

     Inspector Kish was most specific in pin-pointing and
defining the location of the "last open crosscut" area where
he took his air reading and where he believed 9,000 cfm of
air was required to be maintained in order to comply with
section 75.325(b).  I find his testimony to be credible with
respect to the line of stoppings between the pillars located
between the L-1 and L-2 entries on the left side of the
section separating the intake and return air courses, and I
conclude that his explanations are in accord with the afore-
mentioned regulatory definition of "last open crosscut" for
purposes of compliance with section 75.325(b).

     I also find support for Mr. Kish's determination in the
testimony of mine examiner McGary, including his examination
reports, which support Mr. Kish's location of the L1 and L2
crosscut location, and Mr. Kish's unrebutted testimony that
foreman Stine did not object or voice any difference of
opinion with respect to the proper place for taking an
air reading.  I further find no credible or probative
testimony by respondent's engineer Nalisnick that persuades
me that Inspector Kish was incorrect in his determination of
the critical "last open crosscut" issue in this case.

     The respondent's reliance on its ventilation plan as a
defense to the violation is rejected.  I also reject its
"estoppel" theory that numerous MSHA inspectors approved
of its method of mining which resulted in the violation in
this case.  I have, however, considered these arguments in
my findings and conclusions regarding the inspector's
"unwarrantable failure" finding.

     I conclude and find that the evidence adduced by the
petitioner in this case supports a violation of section
75.325(b), and the inspector's finding and citation in this
regard IS AFFIRMED.

Significant and Substantial Violation

     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 be 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 (Augus t 1984); U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

     The question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation, including the nature of
the mine involved, Secretary of Labor v. Texasgulf, Inc.,
10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 2007 (December 1987).  Further, any
determination of the significant nature of a violation must
be made in  the context of continued normal mining
operations.

     Inspector Kish initially determined that it was unlikely
that the violation would result in an injury or illness, or
any lost workdays, and he concluded that the violation was
non-"S&S."  However, "in hindsight" and after having "second
thoughts about the circumstances involved," he modified his
finding to "S&S" the next day after consulting with his
supervisor who agreed with his re-evaluation.

     In making his revised "S&S" determination, Mr. Kish stated
that he considered the fact that the mine was on a 10-day
103(i) spot inspection cycle because of methane liberation,
and that the equipment passing through the cited area
presented an ignition hazard because of methane
accumulation.  He admitted that he was aware of these facts
when he made his initial non-"S&S" finding, and denied that
his supervisor ordered him to modify his finding to "S&S."
He commented that he was trying to be fair with the respondent,
but did not have time to investigate "what was really scrambled
in my head at that time."  After reflection, he concluded that
"it was too overwhelming for me to let go as a non-"S&S."

     Confirming the fact that he detected only 0.1 percent
methane at the cited crosscut, and that the main C section
was liberating an estimated 18,000 cubic feet of methane at
the time of his inspection, Mr. Kish pointed out that the
methane he detected was diluted and carried out after the
check curtain in question was re-installed.

     Mr. Kish expressed concern that with the check curtain down
during the resumption of mining, there would be insufficient
ventilation at the cited crosscut areas to dilute any
accumulated methane.  Since that location was in a virgin
coal area, with little mining around it, he believed that in
the normal course of mining, methane would continue to
accumulate in the absence of ventilation, and that a methane
ignition was reasonably likely because of the potential
ignition sources from the scoop, bolter and continuous miner
that would be operating in the cited area once normal mining
operations were continued.  He believed that an equipment
permissibility problem or sparks from the scoop bucket
striking the mine floor, or from the roof bolter drilling
into the roof, could spark a methane ignition, and that the
scoop, miner,  and roof bolter operators would be at risk
and exposed to a methane explosion hazard.

     The petitioner argues that a violation of section 75.325(b)
has been established, and that the safety hazard contributed
to was a methane accumulation and ignition, and that a
methane accumulation in an active working place where
potential ignition sources exist present a "measure of
danger" to the safety of miners.

     The petitioner asserts that there was a reasonable
likelihood that methane would have accumulated and become
ignited had the condition continued to exist.  Conceding
that the methane level detected by the inspector was clearly
not yet in the explosive range, the petitioner finds it
significant that methane was detected in measurable amounts,
even though no mining was taking place, and there was no
measurable amount of air going through the cited area to
dilute the methane which was beginning to accumulate.

     The petitioner further points out that the mine was on a 10-
day section 103(i) spot inspection cycle because of high
methane production levels.  The petitioner argues that
methane is unpredictable and can be encountered at any time,
and that this concerned the inspector because the main C
section was "virgin" mining territory where methane can be
more unpredictable and more likely.  Under the
circumstances, the petitioner concludes that continued
liberation and accumulation of methane was reasonably
likely, and that the respondent's chief engineer, Nalisnick,
confirmed the inspector's concerns in this regard (Tr. 192-
193).

     The petitioner asserts that a continuous miner, roof bolter,
shuttle car, and scoop were on the left side of the section,
and were the most likely potential ignition sources working
or traveling through the face areas because such equipment
"can be faulty through defects or problems with
permissibility."  The petitioner suggests that sparks
generated by hot bits of the ripper type mining machine
would have ignited any explosive amounts of methane
accumulations, particularly in an area where a large rock
had fallen and needed to be broken up and removed before
further mining could be done at the mouth of the L2 to L3
entries.

     The petitioner further asserts that the roof bolting machine
also presented a potential ignition source while drilling
and it points out that it was located in the last open
crosscut between the L2 and L3 entries when the violation
was issued and was at the face of the L3 entry at the end of
the last shift.

     The petitioner believes that the shuttle cars presented
potential ignition sources in the event of trailing cable
defects and that the scoop buckets which cleaned up the
floors could create sparks which would ignite any methane.
The petitioner believes that all of the mining equipment on
the section could have caused an ignition through a per-
missibility problem, and states that the inspector had
observed permissibility defects in his past experience.
Although the inspector did not examine the equipment in
question when he issued the violation, he did so at a later
time and found permissibility violations on the roof bolter,
scoop and a shuttle car.

     The petitioner concludes that in the event of a methane
ignition, it was reasonably likely that there would have
been very serious injuries to the miners on the section
resulting from an explosion or fire.  Given the
unpredictable and constant threat of methane and the fact
that there were potential ignition sources in the area, the
petitioner further concludes that the likelihood of a
methane ignition was reasonable on the day of
the inspection, and that in the event of an explosion,
serious injuries would have resulted.

     The respondent points out that the inspector made an initial
finding of non-"S&S," but modified the order to "S&S" the
next day after consulting his supervisor.  The respondent
suggests that the inspector was told by his supervisor to
modify the order to "S&S,"  even though the supervisor had
no opportunity to observe and evaluate the conditions.
Further, the respondent points out that the facts relied on
by the inspector to justify his modification of the order to
"S&S" were known to him when he made his initial non-"S&S"
finding.

     The respondent asserts that there is no evidence that a
reasonably serious injury was reasonably likely to occur
during the course of normal mining operations.  In support
of this conclusion, the respondent argues that only 0.1
percent methane was detected in the cited crosscut, which
was well below the combustible range of 5 to 15 percent, and
that no equipment was operating in the area at that time.
The respondent concludes that there
was no possibility of methane being ignited by equipment,
and that in the context of continued mining operations,
there was no reasonable likelihood of methane accumulating
to explosive levels and being ignited by equipment.

     The respondent points out that the L2 to L3 area was not an
area of concern, and that there was sufficient air volume
and no detectable methane in that area.  The respondent
asserts that even though the inspector's anemometer vanes
would not turn when he measured the cited crosscut, he did
not deny the existence of air movement and
chief engineer Nalisnick believed that even with the check
curtain down, crosscut L2 to L3 would have more than the
minimum amount of air, and the other areas would receive
enough air to dilute any methane (Tr. 185-186).

     The respondent maintains that the only requirement for air
volume in the cited crosscut area would be the amount
sufficient to dilute and render harmless any liberated
methane, and concludes that the 0.1 percent found by the
inspector is ample evidence of this.

     The respondent asserts that under normal mining conditions,
the check curtain is replaced when mining is completed in
the L3 entry, and that this results in the majority of the
air being directed again through the L1 to L2 crosscut and
results in undetectable levels of methane.  The respondent
suggests that the inspector observed "a worst case scenario"
because the check curtain was left down for as much as five
hours after the shuttle car operator forgot to replace it
after it was taken down to facilitate the removal of an
inoperative roof bolter.  Even though the check curtain
remained down much longer than normal during mining, the
respondent asserts that methane had not accumulated to any
levels even approaching explosive ranges, and the facts show
that methane was being diluted and carried away, rather than
accumulating.

     The respondent argues that the inspector's assertion that
the mine liberates between 500,000 and one-million cfm of
methane in a 24-hour period does not support his S&S finding
because the cited main C section only liberated 18,000 cfm
in a 24-hour period (Tr. 45), and liberates very little
methane as compared to the overall mine.

     The respondent believes that the inspector's permissibility
violation concerns are based on pure speculation, and it
points out that no permissibility violations were cited, and
that in the course of continued mining operations,
permissibility checks are made on a weekly basis.  Further,
the respondent states that there is no evidence of any
methane ignitions originating at the continuous miner or at
any place because of a scoop bucket spark, and it views
these events as speculative.

     After careful review and consideration of all of the
evidence adduced in this case, including the arguments
advanced by the parties, I conclude that the petitioner has
the better part of the argument and has established by a
preponderance of the credible evidence that the violation
was significant and substantial (S&S).

     I have concluded that a violation of section 75.325(b) has
been established.  I further conclude and find that the
failure by the respondent to maintain the required air
ventilation at the cited crosscut location would reasonably
likely result in a continued build-up and accumulation of
methane were mining to continue on the ensuing shift, and
that this condition presented a discrete hazard of a methane
ignition, fire or explosion, and exposed at least three
miners who would be working at the cited location to these
hazards.

     Although it is true that the methane level of 0.1 percent
detected by the inspector at the cited crosscut was well
below the explosive range, I find credible and unrebutted
his testimony that the area was a virgin coal area where
methane emissions are unpredictable.  Without adequate
ventilation to remove and/or dilute such methane, and in the
presence of potential ignition sources, such as scoops, roof
bolters and continuous mining machines operating during the
normal mining cycle, I conclude and find it was reasonably
likely that a methane ignition, fire, and possibly an
explosion, would occur.  This is particularly true in this
case where it is unrebutted that the respondent routinely
took down the check curtain and someone forgot to re-install
it before leaving the area at the end of the shift.  Since
the curtain was left down between shifts, it is just as
likely as not that it may not be re-installed before the
oncoming shift resumed production, and any accumulation of
methane would still be present and would present a
potentially serious ignition and explosion hazard.

     The respondent's reliance on the fact that the L2 to L3 area
was not a problem, and its suggestion that some of the air
at that location would somehow find its way to the cited
crosscut area and provide adequate ventilation to sweep away
any methane from that area is rejected as speculative and
unsubstantiated.  I also reject the respondent's suggestion
that the 0.1 percent methane found by the inspector when he
issued the violation proves that there was sufficient air to
dilute methane and that the air that was present complied
with the requirements of section 75.325(b).  It is
undisputed that the methane reading by the inspector was
taken when no mining was taking place, and I do not find his
concern that the lack of the minimum required ventilation
would allow the methane to continue to accumulate unabated
to be unreasonable.

     I further conclude and find that if a methane ignition were
to occur and result in a fire or explosion, it would be
reasonably likely that the miners working in or around the
cited crosscut location would suffer injuries of a
reasonably serious nature, including fatal injuries,
depending on the severity of those events.  Under all of the
aforementioned circumstances, I conclude and find that the
violation in question was significant and substantial (S&S),
and the inspector's finding in this regard IS AFFIRMED.

Unwarrantable Failure Violation

     The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977),
decided under the 1969 Act, and it held, in pertinent part,
as follows at 295-96:

          In light of the foregoing, we hold that an inspector
     should find that a violation of any mandatory standard
     was caused by an unwarrantable failure to comply with
     such standard if he determines that the operator
     involved has failed to abate the conditions or practices
     constituting such violation, conditions or practices the
     operator knew or should have known existed or which it
     failed to abate because of a lack of due diligence, or
     because of indifference or lack of reasonable care.

     In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the
Commission further refined and explained this term, and
concluded that it means "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in
relation to a violation of the Act."  Energy Mining
Corporation, 9 FMSHRC 1997 (December 1987); Youghiogheny &
Ohio Coal Company, 9 FMSHRC 2007 (December 1987); Secretary
of Labor v. Rushton Mining Company, 10 FMSHRC 249 (March 1988).
Referring to its prior holding in the Emery Mining case, the
Commission stated as follows in Youghiogheny & Ohio, at 9
FMSHRC 2010:

     We stated that whereas negligence is conduct that it
'inadvertent,' 'thoughtless' or 'inattentive,' unwarrantable
conduct is conduct that is described as 'not justifiable' or '
inexcusable.'  Only by construing unwarrantable failure by a
mine operator as aggravated conduct constituting more than
ordinary negligence, do unwarrantable failure sanctions assume
their intended distinct place in the Act's enforcement
scheme.

     In Emery Mining, the Commission explained the meaning of
the phrase "unwarrantable failure" as follows at 9 FMSRHC
2001:

     We first determine the ordinary meaning of the phrase
'unwarrantable failure.'  'Unwarrantable' is defined as 'not
justifiable' or 'inexcusable.'  'Failure" is defined as 'neglect
or an assigned, 'expected, or appropriate action.'  Webster's
Third New International Dictionary (Unabridged), 2514, 814 (1971)
('Webster's').  Comparatively, negligence is the failure to use
such care as a reasonably  prudent and careful person would
use and is characterized by  'inadvertence,' 'thoughtless,' and
'inattention.'   Black's Law Dictionary, 930-11 (5th ed.
 1979).  Conduct that is not justifiable and inexcusable is
the result of  more than inadvertence, thoughtlessness,
or inattention.  ***

     Although Inspector Kish alluded to "a number of reasons" in
support of his unwarrantable failure finding, he
admitted that the prior citations were "a large factor"
in his determination.  He also relied on his belief
that foreman Stine should have been aware that 9,000
cfm of air was required in the last open crosscut, and
Mr. Stine's candid admission that check curtains are
taken down as a normal and routine practice to permit
the passage of equipment.

     With regard to Mr. Kish's belief that foreman Stine was
aware of the requirement for 9,000 cfm of air at the last open
crosscut, Mr. Kish qualified his testimony when he
stated that his belief was based on the assumption that
the L1 and L2 area was in fact the last open crosscut.

     With regard to the prior citations relied on by Mr. Kish, he
admitted that at the time he issued the order, he had
no personal knowledge that they had in fact been issued
and was aware of them only through overhearing
conversations by other field office inspectors.  More
importantly, he admitted that he found records of these
citations after he issued the order in this case.
Further, although Mr. Kish alluded to another prior
citation that was issued on the main C section, that
citation was not produced and it is not in evidence in
this case.  Mr. Kish also confirmed that one of the
prior citations issued on the left side of the C main
section was later modified to cite the right side.

     Although the issuance of prior violations of section
75.325(b) may be a relevant factor in any
"unwarrantable failure" determination, the weight to be
ascribed to these prior events must be based on
credible, relevant, and probative facts.  In the
instant case, it is undisputed that the lack of perceptible
air movement at the cited crosscut in question and the
failure to maintain the required 9,000 cfm of air at
the cited crosscut were the direct result of the taking
down of the ventilation check curtain one crosscut
outby.  However, there is no evidence that the failure
to maintain 9,000 cfm in connection with the five prior
violations relied on by the petitioner to support the
inspector's unwarrantable failure finding involved the
deliberate removal of any ventilation check curtains.
I take note of the fact that all of these prior
violations were issued as section 104(a) citations,
with "low" negligence findings in two instances and
"moderate" negligence findings in three instances.
Further, two of the prior citations were terminated
after the existing check curtains were tightened, one was
terminated after the existing check curtain was repaired,
one was terminated after a new curtain was apparently
installed, and there is no indication as to what was done
to restore the air with respect to the remaining citation.

     The record reflects that the five prior citations were
issued in February, March, April, and August 1993.  I
find it rather inconsistent that none of the inspectors
who issued these series of section 104(a) citations did
not considered the later ones to constitute "aggravated
conduct" based on the issuance of the earlier ones.

     Mr. Kish conceded that even if the respondent's use of the
check curtain in question to ventilate the main C
section  was part of its approved ventilation plan, the
respondent cannot rely on a plan provision that undermines
regulatory section 75.325(b).  However, since the
requirement for maintaining 9,000 cfm of air at the
last open crosscut depends on that precise location at any
given time, and given the definitional language found in
regulatory sections 75.360(c)(1) and 75.362(c)(1), Inspector
Kish's testimony that the location of the last open crosscut
can change from circumstance to circumstance, and
MSHA's additional references to regulatory sections
75.333(b)(1) and 75.371(f), in determining the
locations for maintaining 9,000 cfm of air, I find
merit in the respondent's suggestion that the requirements
of section 75.325(b), are less than crystal clear.

     I take note of the last sentence of the following
explanatory answer stated on page 49 of MSHA's
"Ventilation Questions and Answers," November 9, 1992,
cited and relied on by the respondent in this case
(Exhibit R-6):

          Section 75.325(b) does not require that previously
     accepted development systems be abandoned, does not
     require new or additional ventilation controls, and
     does not require additional or duplicative locations
     where 9,000 cfm must be  maintained.

     I also take note of the last sentence of the paragraph that
follows on page 50, that states as follows:

     Where hybrid or unusual room development systems are used or
where confusion may exist regarding the examination location,
the mine ventilation plan may specify a location under
75.371(f).  (Emphasis added)

     I conclude and find that respondent's simultaneous mining of
the left and right areas of the C main section presented a
rather unusual mining situation at the time of the
inspection.  Mr. Kish admitted as much when he confirmed
that a split ventilation system was in use, that the cited
area was the only mine area where two mechanized mining
units were in use,  and that the location of the last open
crosscut for air measurement purposes can change depending
on the location of the continuous miner.  Under these
circum-stances, I conclude and find that the respondent was
not unreasonable in believing or relying on MSHA's
"Questions and Answer" advise that it need not abandon its
previously accepted mine development system and that
additional ventilation controls would not be required.

     Citing the "reasons" set forth in section IIB, page 7, of
her posthearing brief, petitioner's counsel contends, at
page 16, that "the respondent was not permitted to remove
the ventilation curtain without some other ventilation
control."  Aside from the apparent recognition that the
curtain could possibly be removed under certain conditions,
such as additional controls, I find nothing in the cited
arguments that constitute any "reasons" alluded to by
counsel.

     Section foreman McGary confirmed that 9,000 cfm of air was
required to be maintained in the last open crosscut.  He
also readily admitted that the check curtain outby the cited
crosscut was taken down to facilitate the passage of
equipment, and he explained that it was taken down in this
case by the shuttle care operator when he traveled through
the area to remove a roof bolting machine, and that he forgot
to re-install it after the bolter was removed and the working
shift had ended.

     Mr. McGary also confirmed that check curtains were routinely
taken down when the shuttle cars were moving through the
curtain areas, and they were always re-hung when mining was
completed.  He found nothing wrong with this practice, and
stated that he has always mined in this fashion while in the
presence of other inspectors who did not question the
practice.  He also believed that the mining procedure he was
following was proper in that it eliminated the need to use
"run-through" check curtains.  These types of curtains
apparently remain in place while equipment passes through
them through openings in the curtain.

     Respondent's chief engineer Nalisnick, whose duties included
the submission of mine ventilation plans to MSHA, and
personal contacts with MSHA's district ventilation
personnel, believed that the respondent's approved plan
permitted mining with the outby check curtain down one
crosscut outby the cited crosscut in this case.  He believed
the method of mining followed by Mr. McGary was safer
because it eliminated the need for "run- through" check
curtains, provided more flexibility for the moving of
curtains, and was more practical given the variables in the
main ventilation system.

     With regard to Mr. Nalisnick's understanding that 9,000 cfm
of air was required to be maintained at the "last open
crosscut" pursuant to section 75.325(b), and as determined
by section 75.360(c)(i), Mr. Nalisnick assumed that this is
what is required if one considered the definition of
stopping lines.

     In reply to the petitioner's assertion that the respondent's
admission that the check curtain would be down while mining
the L entry indicates aggravated conduct or an ignorance of
the requirement for 9,000 cfm of air in the last open
crosscut, the respondent argues that the inspector did not
issue a citation for a plan violation and that he was
obliged to do so if he believed that was the case.
Respondent suggests that no ventilation plan violation was
issued because it was permitted to take the curtain down
under its plan.  With respect to the petitioner's suggestion
that foreman Stine did not known that the regulation
required 9,000 cfm of air in the last open crosscut, the
respondent maintains that there is no dispute as to the
amount of air required, and that the only dispute is to the
location where the air is to be measured.

     I find nothing in the respondent's ventilation plan
(Exhibit R-4) that clearly and directly states that
ventilation check curtains may be taken down while mining is
in progress.  The plan language relied on by the respondent
states as follows:

     The location of the checks may vary, so as to provide
positive ventilation to all working places and minimize the
need for run through checks depending on the place being mined.

     The petitioner has not rebutted the fact that this plan
provision was in effect at the time the violation was
issued.  In addition, the petitioner has not rebutted Mr.
Nalisnick's testimony that he spoke with a MSHA district
ventilation representative after the violation was issued
and was advised that its use of ventilation check curtains
needed to be re-evaluated.  Although Mr. Nalisnick conceded
that there was no need for run-through check curtains and
undercuts the respondent's argument that the taking down
of the curtain was  to preclude the use of run-through checks,
the unrebutted testimony is that the ventilation plan was not
changed, and  is indeed still in effect.

     Although I have concluded that the plan language does not
specifically authorize the taking down of check curtains, it
does state that the location of check curtains may vary in
order to minimize the need for run-through checks, depending
on the place being mined.  When this plan provision is read
together with MSHA's "Question and Answer" advise, I cannot
conclude that the respondent's belief that the taking down
of the curtain was not prohibited is implausible or incredible.

     I further find that the December 13, 1993, letter to
Mr. Nalisnick from MSHA's district manager Joseph G. Garcia,
which acknowledges in relevant part that "it has come to our
attention that there has been a misunderstanding concerning
the installation of check curtains" lends support to the
respondent's suggestion that it was reasonable for it
to conclude that it was authorized to take down the outby
check curtain for the stated reasons, and seriously
undercuts the petitioner's "aggravated conduct" argument.  I
take particular note of the fact that while the district
manager's letter further stated that a revised plan print
statement was necessary to correct the condition to insure
that the proper stopping line location be used pursuant to
sections 75.325(b) and 75.360(c)(1), there is no evidence
that this was done.  In the absence of a revised plan
provision, the Garcia letter permits the respondent to
continue following its approved face ventilation plan.

     I conclude and find that the credible evidence in this case
supports the respondent's assertion that it had a good faith
belief that it was in compliance with the requirements
of section 75.325(b), and that a reasonable misunderstanding
existed with respect to the proper use of its check
curtains.  Under the circumstances, and based on the afore-
mentioned findings and conclusions, I cannot conclude that
the petitioner has established that the violation was  the
result of "aggravated conduct" amounting to an unwarrantable
failure.   Accordingly, the section 104(d)(2) order IS
MODIFIED to a section 104(a) citation.

     Although I have modified the order, it should be clear to
the respondent that if it continues to mine with a check
curtain down, it again runs the risk of being out of
compliance if it results in less than 9,000 cfm of air at
the last open crosscut determined by the prevailing facts
at any particular point in time.  In short, I reject the
respondent's reliance on its ventilation plan provision
as a defense to the violation of section 75.325(b),
since the evidence in this case clearly
establishes that it did not maintain 9,000 cfm of air at the
cited crosscut location.  I have, however, accepted as
credible the respondent's reliance on the plan, and MSHA's
recognition that there was a misunderstanding concerning the
use of check curtains, in mitigation of the respondent's
negligence, and supports its argument of no aggravated
conduct amounting to an unwarrantable failure.

Size of Business and Effect of Civil Penalty Assessment on
the Respondent's Ability to Continue in Business

     The parties stipulated that the respondent is a small
operator and that payment of the civil penalty assessment
for the violation in question will not adversely affect the
respondent's ability to continue in business.  I adopt these
stipulations as my findings on these issues.

History of Prior Violations

     MSHA's computer printout for the subject mine for the period
October 12, 1991 through October 12, 1993, reflects that the
respondent paid civil penalty assessments for 588
violations.  For an operator of its size, I cannot conclude
that the respondent has a particularly good compliance
record, particularly with respect to past ventilation and
permissibility violations.  I have taken this into account
in the penalty assessment that I have made for the violation
that has been affirmed.

Good Faith Compliance

     The record reflects that the required air ventilation was
restored within minutes of the issuance of the order after
Inspector Kish and foreman Stine re-installed the
ventilation curtain that had been taken down, and the order
was terminated 15 minutes after it was issued.  I conclude
and find that the cited condition was rapidly abated by the
respondent in good faith.

Gravity

     Based on my "S&S" findings and conclusions, I conclude and
find that the violation that I have affirmed was serious.

Negligence

     I conclude and find that the violation of section 75.325(b)
was the result of the respondent's failure to exercise
reasonable care amounting to a moderate degree of
negligence.

Civil Penalty Assessment

     On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that
a civil penalty assessment of $1,600 is reasonable and
appropriate in this case.

                                ORDER

     In view of the foregoing, IT IS ORDERED AS FOLLOWS:

     1.  Section 104(d)(2) "S&S" Order No. 3955721, October 12,
1993, 30 C.F.R. 75.325(b),  IS MODIFIED to a section 104(a)
"S&S" citation, and as modified, IT IS AFFIRMED.

     2.  The respondent IS ORDERED to pay a civil penalty
assessment in the amount of $1,600 for the violation in
question.  Payment is to be made to MSHA within thirty (30)
days of the date of this decision and order, and upon
receipt of payment, this matter is dismissed.


                                 George A. Koutras
                                 Administrative Law Judge


Distribution:

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104  (Certified Mail)

Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, Barnesboro, PA
15714 (Certified Mail)


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