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[DOCID: f:pn99132.wais]

 
MAPLE CREEK MINING INC.
June 21, 2000
PENN 99-132


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          June 21, 2000

SECRETARY OF LABOR,              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. PENN 99-132
                 Petitioner      :  A. C. No. 36-00970-04131
            v.                   :
                                 :  Maple Creek
MAPLE CREEK MINING INC.,         :
                 Respondent      :

                            DECISION

Appearances:  Mark V. Swirsky, Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia, Pennsylvania,
              for the Petitioner;
              Michael O. McKown, General Counsel, Maple Creek
              Mining, Inc., Bentleyville, Pennsylvania, for the
              Respondent.

Before:  Judge Feldman

     This proceeding concerns a petition for assessment of civil
penalty filed pursuant to section 110(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. � 820(a), by the
Secretary of Labor (the Secretary) against the respondent,
Maple Creek Mining, Inc. (Maple Creek).  The petition sought to
impose a $6,000 civil penalty for each of three 104(d)(2) Orders,
constituting a total civil penalty of $18,000.  104(d)(2) Order
No. 3657936 concerns Maple Creek's alleged failure to maintain a
belt structure in safe operating condition in violation of the
mandatory safety standard in 30 C.F.R. � 75.1725(a).  104(d)(2)
Order No. 3657937 cited Maple Creek for its alleged failure to
post a pertinent danger sign, as required by 30 C.F.R. � 75.363(a),
for the purpose of alerting miners to the hazardous conditions
cited in Order No. 3657936.  Finally, 104(d)(2) Order No.
3658016 cited Maple Creek for numerous areas of combustible
coal dust accumulations allegedly prohibited by the mandatory
safety standard in 30 C.F.R. � 75.400.[1]

     This matter was heard on April 4, 2000, in Morgantown,
West Virginia, at which time  Maple Creek stipulated that
it is a mine operator subject to the jurisdiction of the
Act.[2]  At the hearing, the parties proposed a
settlement agreement wherein Maple Creek agreed to pay
the $6,000 civil penalty proposed by the Secretary for
104(d)(2) Order No. 3657936, and to pay a reduced civil
penalty, from $6,000 to $5,000, in satisfaction of 104(d)
(2) Order No. 3657937.  The terms of the settlement
agreement, including Maple Creek's agreement to pay a
total civil penalty of $11,000 for the subject two
Orders, was approved on the record.  (Tr. 4-6).
Consequently, the remaining Order for disposition is
104(d)(2) Order No. 3658016 issued on October 29, 1998,
for impermissible combustible coal dust accumulations at
the New Eagle section of the Maple Creek Mine.  At the
hearing counsel for Maple Creek stipulated that the cited
accumulations constituted a violation of 30 C.F.R. �
75.400.  However, Maple Creek challenges both the
significant and substantial (S&S) designation of the
violation, and the Secretary's assertion that the
violation was attributable to its unwarrantable failure.

     I.  The Secretary's Case

     The Maple Creek Mine is a large, underground coal mine
located in western Pennsylvania.  (Tr. 199).  The New
Eagle Mine is a single unit mine that is directly adjacent,
although not physically connected, to the Maple Creek Mine.
The New Eagle Mine produces a low sulfur blend coal for the
Maple Creek Mine.  (Tr. 196).  The subject section of the
New Eagle Mine is a ten entry section.  (Tr. 203).

     On September 15, 1998, Mine Safety and Health
Administration (MSHA)  Inspector George Rantovich
inspected  the Maple Creek Mine.  Rantovich was
accompanied by MSHA Supervisory Inspector Robert W.
Newhouse of the Ruff Creek Field Office.  (Tr. 146).
Newhouse has 33 years of experience in the mining
industry and he has been employed by MSHA for almost 24
years. (Tr. 145). During the course of his inspection,
Rantovich observed loose coal, fine coal and float coal
dust accumulations on the mine floor, belt structure and
crosscuts in the No. 2 Mains.  The accumulations included
fine coal measuring 2 inches to 24 inches in depth that
was in close proximity and contacting the moving
tailrollers of the 1 East Mains conveyor belt.  Based on
his observations, Rantovich issued 104(d)(1) Order No.
3657357, not in issue in this proceeding, alleging a
violation of 30 C.F.R. � 75.400.  (Gov. Ex. 3; Joint
Stip. No. 11; Tr. 147).  Order No. 3657357 was issued to
John Parker, Maple Creek's assistant mine foreman and belt
foreman, at 11:05 a.m. on September 15, 1998.   At that
time, Rantovich and Newhouse spoke to Parker about the
importance of preventing accumulations, particularly
around the moving beltline. (Tr. 149, 165-166; Gov. Ex. 3).

     Upon completing the September 15, 1998, underground
inspection, Rantovich and Newhouse proceeded to the
surface to meet with Maple Creek officials.  Newhouse
testified that he told Mine Foreman Tony Bertovich and
Safety Director Richard Marcavitch that "the cleanup in
the [belt] area . . . was just terrible. . . . It was
just unacceptable.  You can't have accumulations of coal
like that in the mine.  With all the ignition sources we
have in there, it's just unheard of."  (Tr. 150, 166).

     Although Newhouse could not recall the exact date, he
testified that, several days after the September 15,
1998, inspection, he also had a conversation with Jerry
Taylor, Maple Creek's Corporate Safety Director, "about
the lack of cleanup and lack of attention paid . . ." to
the beltline areas.  (Tr. 151, 166)

     On a Saturday, approximately one to two weeks after
Newhouse's September 15, 1998, aboveground meeting with
Bertovich and Marcavitch, at the request of Maple Creek's
President,  Robert Murry, a meeting was held at the Maple
Creek Mine between MSHA officials and Maple Creek
officials.  Participants at the meeting included
Newhouse, the MSHA District Manager and Assistant
District Manager, and Murry, as well as all of Maple
Creek's department heads and supervisory employees.  (Tr.
152, 166-167).

     MSHA's Assessed Violation History Report reflects 50
citations were issued the previous year, from October 6, 1997,
through September 15, 1998, at the Maple Creek Mine for
impermissible coal dust accumulations.  (Gov. Ex. 7).  At
the meeting,  Newhouse talked about the large number of
violations of 30 C.F.R. � 75.400 at the mine and the need
for the operator to improve cleanup around the beltlines and
in the sections.  (Tr. 153-154).  The discussion of the need
for compliance with 30 C.F.R. � 75.400 was a major part of
the meeting. (Tr. 154).

     On October 29, 1998, MSHA Inspector Victor Patterson
conducted an inspection of the New Eagle section of the
Maple Creek Mine.  Patterson has been employed in the
mining industry for more than 30 years, and he has been a
coal mine inspector for more than eight years.  As a mine
inspector,  Patterson has a variety of training,
including specialized training regarding the hazards
associated with coal dust accumulations.  (Tr. 34-38).

     Patterson's inspection was in response to an employee
complaint alleging accumulations of coal, and a lack of
cleanup and rock dusting at the New Eagle section of the mine.
The complaint was sent by facsimile to the Ruff Creek Field
Office at 10:14 a.m. on October 28, 2000, the day before
Patterson's inspection. The complaint was filed pursuant to
Section 103(g) of the Act, 30 U.S.C. � 813(g).  (Tr. 39, 161).
Patterson was aware of Rantovich's 104(d) order that had been
issued the previous month for violative coal dust accumulations.
(Tr. 49).

     Patterson arrived at the mine at approximately 8:00 a.m.
on October 29, 1998.  (Tr. 40). Patterson proceeded to the
043 portal of the New Eagle section, arriving on the section at
9:15 a.m.  (Tr. 41).  Patterson was accompanied by mine foreman
Bertovich and union representative Larry Harper.  (Tr. 41).  Upon
arriving at the section, Patterson went to the belt tailpiece in
the No. 3 entry and observed accumulations of coal consisting of
fine, loose dry coal and float coal dust, black in color, beside
the belt tail on both sides. The accumulations were under the
belt tail rollers and immediately outby the belt tailpiece.  (Tr.
42).  With Harper's assistance, Patterson measured the
accumulations with a tape measure and determined them to
be  approximately 4 feet wide by 4 feet long and up to one foot
in depth.  (Tr. 45).  The first tail roller outby on the bottom
(return) of the belt was in contact with the accumulations.
(Tr. 43).  Patterson testified that he did not recall the
presence of  a feeder in line with the tailpiece.  (Tr. 126).
However, his contemporaneous notes reflect accumulations in
contact with the belt tail roller as well as along both sides
of the feeder.[3]  (Tr. 43; Gov. Ex. 5, pp. 3-4).

     The belt at the tailpiece appeared to be out of alignment
because it was rubbing against the belt structure.   (Tr.
52).  As a result, Patterson noted the belt structure was
too hot when touched.  (Tr. 42-43, 55, 127; Gov. Ex. 5,
p. 3).  Patterson testified he instructed Bertovich to
shut the belt down immediately after discovering the heat
produced from the belt structure.  (Tr. 51).  Given the
combustible accumulations in proximity to the roller,
Patterson considered the misaligned belt as an ignition
source.  (Tr. 42).  Patterson did not issue a separate
citation for the defective belt condition because he believed
the 30 C.F.R. � 75.400 violation cited in Order No. 3658016
was sufficient to encompass all of the hazards presented
at the belt.  (Tr. 59-60).

     In addition to the 4 feet by 4 feet accumulations in the
immediate vicinity of the return tail roller, there was
an accumulation of fine, loose coal and float coal dust
15 feet in length, up to four feet in height, and four
feet wide on both sides of the belt feeder.  (Tr. 43;
Gov. Ex. 5,  p. 4).[4]

     The accumulations observed by Mr. Patterson at the belt
line were dry, and they had not been rock dusted.[5]
Based on the extent of the accumulations in the vicinity
of the tailpiece,  Patterson concluded the accumulations
existed during the prior midnight shift of October 29,
1998. (Tr. 50).  At the time of  Patterson's arrival on
the section, no cleanup was taking place.  (Tr. 129).

     After observing the accumulations at the belt line,
Patterson proceeded to ascertain whether there were other
accumulations as the complaint received by MSHA suggested
the presence of accumulations throughout the section.
(Tr. 53).  In addition to the beltline accumulations,
Patterson proceeded to find eleven other areas of
accumulations.  Ten of these eleven other areas of
accumulations were cited in 104(d) Order No. 3658016.[6]
The nature and extent of these twelve areas of
accumulations are not in dispute and have been stipulated
to by Maple Creek.  (Joint Stip. Nos. 12(a) through
12(l)).

     The next accumulation observed by Patterson  (Identified
as Location No. 1 on Gov. Ex. 6) was in the 0 entry at survey
spad 2600 about 300 feet from the face.  (Joint Stip.  No. 12(a);
Tr. 55; Gov. Ex. 1, Gov. Ex. 6).  The  accumulation consisted
of fine, loose coal and float coal dust up to 24 inches
deep, three feet wide, and 54 feet in length.  The accumulated
coal was mostly dry, black in color, and it had not been rock
dusted.  If there were an ignition in the mine, the material in
this accumulation would help propagate a fire.  (Tr. 57).

     Patterson opined that there had been no mining in the
area for a "few days".  It appeared that the
accumulation had simply been left behind when the area
was mined.  (Tr. 55, 58; Gov. 5, p. 5).  In fact, Marcavitch,
Maple Creek's safety director, testified that mining in the
vicinity of spad 2600 had been completed a few weeks earlier.
(Tr. 215).

     The next accumulation Patterson observed was in the
Number 1 entry at the intersection with the Number 77
crosscut, 100 feet outby the face (identified as Location
No. 3A on Gov. Ex. 6).  The accumulation measured 18 feet by
18 feet and up to 18 inches deep. (Tr. 64-66).  The accumulation
did not result from recent mining as the continuous mining
machine was located at the other side of the section in the
Number 8 entry, and the face area had already been cleaned.
(Tr. 64-65). The accumulation consisted of loose, fine coal,
ground up coal, and coal dust.  It was dry, black in color,
and had not been rock dusted.  (Tr. 67).  The subject area
was one where mining equipment would travel during normal
mining operations, including the mining machine, shuttle
cars, bolting machines, and scoops.  (Tr. 66).  Ignition
sources were present such as electrical cables and the
mining equipment itself.  (Tr. 67).

     Patterson next noted an accumulation in the last open
crosscut from the No. 1 to the No. 2 entry, 18 inches by
18 inches along both ribs and 36 feet in length
(identified as Location No. 3B on Gov. Ex. 6).  Mr.
Patterson estimated this area had been mined two to three
shifts earlier.  (Tr. 68).  The accumulation consisted
of fine, loose coal and float coal dust.  It was dry,
black in color, and it was not rock dusted.  The subject
area was one where the continuous mining machine, shuttle
cars, bolting machines, and scoops would travel during
normal mining operations.  Ignition sources were present
such as electrical cables and the mining equipment itself.
(Tr. 72).

     Patterson also found an accumulation in crosscut 77 (the
last open crosscut) between the Number 2 and 3 entries,
68 feet outby the face (identified as Location No. 3C in
Gov. Ex. 6).   (Tr. 75).[7]   The accumulation measured
36 feet in length, 18 inches deep, and approximately
18 feet wide, along both ribs and occupying nearly the entire
crosscut.  (Tr. 73).  In addition, there was an additional
accumulation, located along the right rib from crosscut 77 to the
face, of fine, loose dry coal and float coal dust. The material
was dry, black in color, up to 18 inches deep, 18 inches wide,
and 68 feet in length.  (Gov Ex. 5, p. 7, Gov. Ex. 6; Tr. 76-77.)
Both of the accumulations described in this paragraph are
included within Location No. 3C.  The dry nature of the material
in accumulation 3C is representative of all 12 of the
accumulations cited by  Patterson with the exception of
Location Nos. 4 and 6 that were wet.  (Tr. 77-78).

     Patterson next encountered a lengthy accumulation in the
Number 3 entry, which had not been cleaned or scooped for
a distance of about 100 feet (identified as Location No.
4 on Gov. Ex. 6).  The accumulation extended up to 20
feet outby crosscut 77, the last open crosscut, and
consisted of loose, fine coal, up to 18 inches deep from
rib to rib.  (Gov Ex. 1, Gov. Ex. 5, p. 8; Tr. 78).
Patterson approximated the length of  this accumulation
by counting roof bolts which were put in on four foot
centers.  (Tr. 79; Gov Ex. 5, p.8).  The subject area was
one where mining equipment would travel during normal
mining operations.  Ignition sources were present such as
electrical cables and the mining equipment itself. (Tr.
72, 79).

     Patterson also noted accumulations in the Number 4 entry
up to 160 feet in length, 18 feet wide, and up to 12 inches
in depth (identified as Location No. 5 on Gov. Ex. 6).  This
accumulation was similar to the others cited by  Patterson,
except for the unusually long length.  (Tr. 83-84, 86).  In
this entry Maple Creek had scooped out the last 40 feet down
the middle of the entry (leaving material along the ribs),
but had left a 160 feet long area behind the partially
cleaned area that had not been cleaned at all. (Tr. 86-89;
Gov. Ex. 5, p. 9).

     Patterson next observed an accumulation in crosscut 77
between the No. 3 and No. 4 entries (identified as
Location No. 6 on Gov. Ex. 6).[8]  The accumulation
consisted of fine, loose coal and float coal dust, black
in color, up to 18 feet wide and 12 inches deep.  (Gov.
Ex 1, Gov. Ex. 5, p. 9).  Compared to the other eleven
accumulations cited by  Patterson, this accumulation was
unusually deep, up to three feet in depth along the ribs.
According to  Patterson, the area "was never cleaned up
whatsoever.  It was just left, otherwise there wouldn't
have been that much accumulation there."  (Tr. 91-92).

     There was also an accumulation located in the No. 5 entry
(identified as Location No. 7 on Gov. Ex. 6).  The
accumulation consisted of fine loose coal and float coal
dust, black in color, along both ribs.  It was 18 inches
deep, 18 inches wide, and up to 70 feet in length.  (Gov.
Ex.. 1, Gov. Ex. 5 at  p. 10, Gov. Ex. 6).  There was a
roof bolting machine and trailing cable in this area that
provided a potential ignition source.  (Tr. 92-93).
Although Patterson observed that cleaning in this entry
at survey spad 2950 had begun, the cleaning efforts were
occurring approximately two hours after Patterson's
arrival at the mine, and about forty-five minutes after
his arrival at the section.  (Tr. 93-94).

     Patterson proceeded to observe an accumulation in
crosscut 77 between entries 5 and 6 (identified as
Location No. 8 on Gov. Ex 6).  The accumulation consisted
of fine, loose coal and float coal dust, black in color.
The material was along both ribs and was up to 18 inches
deep, 18 inches wide, and 36 feet in length.  (Gov. Ex.
1, Gov. Ex.  5, p. 10, Gov. Ex. 6).

     The next accumulation was in the Number 6 entry, in by the
77 crosscut all the way to the face, a distance of about
100 feet (identified as Location No. 9 on Gov. Ex. 6) .
The accumulation was 12 inches deep along the ribs, and
consisted of loose, fine coal, and float coal dust, black
in color.  (Tr. 96-97; Gov. Ex  1, Gov. Ex. 5, p. 11,
Gov. Ex.  6).  There was an accumulation of coal and coal
dust up to four feet in depth along the right rib, which
was the deepest accumulation Mr. Patterson observed.
(Tr. 99).  An accumulation of this depth presents a
health hazard from dust inhalation as well as a fire and
an explosion hazard.  (Tr. 100).  Patterson also noted an
accumulation along the left rib of the 7 entry
(identified as Location No. 10 on Gov. Ex. 6) .  The
accumulation consisted of fine, loose coal and float coal
dust up to 18 inches deep and 40 feet in length.  (Tr. 97;
Gov. Ex. 1, Gov. Ex. 5, p. 12, Gov. Ex. 6).

     The next accumulation observed by Patterson was in the
No. 77 crosscut between the number 7 and 8 entries
(identified as Location No. 11 on Gov. Ex. 6).  The
accumulation consisted of fine, loose coal and float coal
dust, 12 inches deep along both ribs and up to 18 inches wide.
(Tr. 98; Gov. Ex. 1, Gov. Ex. 5, p. 12, Gov. Ex. 6).

     As with many of the other accumulations, accumulations
identified as Nos. 9, 10, and 11 occurred in areas where
mining equipment would be used during normal mining
operations.  (Tr. 101). These accumulations had the same
characteristics as nearly all the other accumulations--black
in color; fine, loose coal, and float coal dust.

     Although Maple Creek apparently did not have a written
cleanup plan, as a general  proposition, under a normal
mining cycle, mine operators clean to within the last 40
feet of the last cut at the face, rock dust, and maintain
the area.  (Tr. 109).  Although Patterson previously had
observed Maple Creek clean each entry as the face was
advanced, based on his observations on the morning of
October 29, 1998, Patterson concluded Maple Creek was
driving all ten entries before coming back to perform an
adequate cleanup.  Patterson opined such a practice is
hazardous and unacceptable.  (Tr. 137-138, 141).

     Patterson determined there were a total of 13 miners
working on the section at the time of the inspection who
were exposed to the violative coal dust accumulations
cited in 104(d) Order No. 3658016.   (Gov. Ex. 1; Tr.
101).

     Patterson testified that he made a gravity finding of
"significant and substantial" based on the following
factors: the amount and extent of the accumulations, the
locations, the heat source presented at the conveyor
belt, and the presence of mining equipment which would
move through the accumulation areas.  In particular,
Patterson considered the bit of the roofbolter drilling
into the roof as a potential source of sparking.
Furthermore, Patterson concluded the large amount of coal
dust itself posed a health hazard.  (Tr. 101-103, 130).

     With respect to the unwarrantable failure issue,
Patterson testified that he considered the violation
attributable to an unwarrantable failure for many
reasons.  As a threshold matter, Patterson concluded the
cited accumulations had existed "for a considerable
period of time" based on their locations extending a
considerable distance from the face.[9]  (Tr. 107).
Patterson believed the No. 2 through No. 7 entries had
been cut during the previous three shifts during which
time travel over the accumulations occurred as the faces
in each entry advanced.  (Tr. 66, 69, 107).

     In addition, face boss Greg Miller's initials were marked
on the date board in the 0 entry between the 75 and 76
crosscuts at 9:00 a.m., on October 29, 1998.  There was
also a date board at the tailpiece feeder of the conveyor
belt.  Despite the evidence of onshift examiners in the
vicinity of prohibited examinations, no efforts were made
to clean the accumulations until after Patterson arrived
on the section.  (Tr. 106, 222-223).  Based on Maple
Creek's admission that some of the accumulations existed
since at least the midnight shift, the accumulations
should have been noted and ordered to be cleaned by the
preshift examiner.  (Tr. 104-106, 130).

     Patterson considered Maple Creek's violation history,
Rantovich's order citing a 30 C.F.R. � 75.400 only six
weeks before citing similar accumulations in the vicinity
of the tailpiece, and repeated meetings with company
officials that placed Maple Creek on notice that greater
cleanup efforts were required, as additional evidence that
Maple Creek's conduct was unwarrantable. (Tr. 69, 106-107).

     As a final matter,  Patterson testified, notwithstanding
the eleven additional areas of accumulations, he would
have issued an unwarrantable failure order based solely
on the first accumulation observed at the tail of the
conveyor belt due to the extent of the accumulation and
its proximity to the belt roller and the hot belt
structure.   (Tr.108).

     Clete R. Stephan was called by the Secretary as an expert
witness.   (Tr. 173-174).  Stephan has been employed as a
mine engineer by MSHA for 23 years.  (Tr. 173; Gov. Ex.
8).  Stephan is one of only two certified mine fire and
explosion investigators in the United States.  (Tr. 173).
He has conducted 52 investigations of mine fires and
explosions.  (Tr. 173; Gov. Ex. 8).  He also has written 29
reports on fires and explosions, and he has conducted
extensive training classes on fire and explosion hazards
before government and industry groups. (Gov. Ex. 8).

     Stephan testified there are three prerequisites for  a
fire -- fuel, heat, and oxygen.  These three elements are
known as the "fire triangle."  (Tr. 175-176).  Stephan
testified that the oxygen required for a fire or
explosion is always present in a mine. (Tr. 177-178).
Fuel is also an ever present hazard in the form of coal
accumulations.  (Tr. 178, 180).  Ignition sources in an
underground mine include heat from hot belt rollers and
arcing from electrical cables on mining equipment.  (Tr.
178, 185-186).

     Stephan opined there was an enhanced danger of fire in
the cited areas because of the accumulations which
increased the exposure of fuel to potential ignition
sources.  (Tr. 179). Where there is an accumulation of
coal, air can flow through the loose material more
easily, thereby bringing additional oxygen to a fire and
feeding a flame.  (Tr. 186).  In a fire, any size
particle of coal can become involved.  (Tr. 185).  A hot
roller on a beltline, and movement of equipment through a
mining section, present ignition sources that accentuate
the hazard. (Tr. 185-186).

     In addition to the three elements for a fire, Stephan
testified two additional elements are necessary for an
explosion -- suspension of the fuel and confinement.
These five elements - -  fuel, heat, oxygen, suspension
and confinement - -  are known as the "explosion
pentagon". (Tr. 175-176).   Stephan explained that, by its very
nature, the underground mine environment provided the containment
necessary for an underground explosion.  (Tr. 187).

     With respect to the remaining element of suspension,
Stephan stated that the "relatively extensive" cited
accumulations "would make explosion propagation so much
easier because the fuel is readily available and can
easily be suspended and ignited."  (Tr. 189).  In this
regard, Stephan calculated that it would take
approximately ten cubic feet of coal dust to engulf the
entire New Eagle section inby the last open crosscut in
the flame of an explosion.  Stephan calculated that, by
considering only the top half-inch of the accumulations
cited by Patterson as material capable of suspension,
there was a potential for 350 cubic feet of coal dust
that could be put in suspension.   (Tr. 181-184).

     Finally,  Stephan testified, in the event of a fire or
explosion at the mine, fatal injuries would result to
people in the explosion zone.  He stated that anywhere
the explosion flame would travel, fatalities would likely
result because the explosion consumes all available
oxygen.  Even if people did not succumb to the heat of
the flame or the force of the explosion, they would die
from lack of oxygen and inhalation of the toxic products
of combustion.  (Tr. 189).  In Stephan's expert opinion,
the three elements necessary for a fire, and the five
elements necessary for an explosion, were present under
the conditions described in Patterson's 104(d) order.
(Tr. 175-178, 190).

     II.  Maple Creek's Case

     As previously noted, Maple Creek has stipulated that the
subject twelve areas of accumulations constitute a
violation of the mandatory safety standard in 30 C.F.R. �
75.400.  However, Maple Creek contests the "significant
and substantial" designation, as well as the Secretary's
assertion that the violation is attributable to its
unwarrantable failure.   (Tr. 194).

     Maple Creek called safety director Richard Marcavitch and
section foreman (face boss) Gregg Miller to testify on
its behalf.  Marcavitch did not arrive at the New Eagle
section until approximately 10:00 a.m. on October 29,
1998, about one hour after Patterson's inspection began.
(Tr. 201).  Marcavitch arrived on the section after
Patterson had instructed mine foreman Tony Bertovich to
de-energize the tailpiece because it was in close
proximity to coal dust accumulations around the tail
roller.  (Tr. 202).

     Marcavitch also did not have direct knowledge about when
cleanup of the cited accumulations would have occurred if
Patterson had not inspected the section.  (Tr. 235).  The
priority given to removing accumulations was determined
by Bertovich or Miller.   Bertovich did not testify, and
Miller did not testify concerning any cleanup activities
other than at the conveyor belt.  (Tr. 237, 279).

     Upon arriving on the section Marcavitch did travel to the
tailpiece because cleanup had already begun in that area.
(Tr. 202, 214).  Rather, Marcavitch proceeded to observe
accumulations already seen by Patterson in the zero
entry, in the No. 1 entry, in the two to one cut-through,
and in the No. 2 entry.  After observing the No. 2 entry,
Marcavitch joined Patterson and Bertovich who were
walking through the section together.  (Tr. 202).
The New Eagle section is a ten entry section.  Equipment
on the section consists of a Joy scrubber remote
continuous miner, two Fletcher twin boom roofbolters,
three shuttle cars, and three scoop tractors.  One scoop
is dedicated to hauling supplies from the surface to the
mine.  The remaining two scoops are kept on the section
for cleanup, with one in use and one on charge.  (Tr.
204).

     The mine cutting sequence is from the zero entry to the
No. 9 entry.  The length of cuts in each entry varies
from zero to as long as 40 feet.  (Tr. 205).  Marcavitch
testified that the New Eagle section has a 25 feet long
Stamler feeder attached to the tailpiece.  (Tr. 208).
Marcavitch approximated the last inby set of rollers was
four to five feet from the end of the tailpiece
structure.  (Tr. 212).   Marcavitch stated that coal
accumulations typically occur at the end of the tailpiece
where spillage occurs when coal is transferred from the
feeder to the somewhat lower conveyor belt.  (Tr.210,
212-213).  Marcavitch stated ". . . based on my
experience . . . when you have a problem with a feeder
being on [the tailpiece] your accumulations will show up
first directly underneath the tailpiece in contact with the
tailroller."  (Tr. 220).   Marcavitch conceded a malfunctioning
roller could be a source of heat.  (Tr. 220).   However, he
stated that his ". . . understanding was, what was warm was what
Mr. Patterson was saying was the structure [of the tailpiece]"
rather than the rollers.  (Tr. 213).

     Marcavitch , referring to the numerical designations on
the mine map admitted into evidence as Gov. Ex. 6,
testified about when each area where cited accumulations
were located was mined.  Marcavitch stated Location No. 1
was mined "a couple of weeks before;" Location Nos. 3,
3c, 4, 7, 9, and 10 on the midnight shift; Location No. 5
half-mined on the midnight shift and half-mined on the
previous afternoon shift.  (215-217).

     Marcavitch did not dispute that the accumulations cited
by Patterson existed at the time Miller performed his
onshift examination at 9:00 a.m. on October 29, 1998.
(Tr. 222-223).  Miller also performed the preshift
examination earlier that morning at 5:00 a.m.  (Tr. 215).
It is apparent that at least some of the accumulations
noted by Patterson existed at the time of Miller's
preshift examination.  There is no evidence of any
preshift or onshift examination notations alerting
personnel that cleanup efforts were required on the
section.

     Maple Creek's description of its mining-cleanup cycle was
equivocal.  Counsel for Maple Creek stated its cleanup
cycle began after all the entries inby the last open
crosscut had been mined and roof bolted.  (Tr. 228).
Marcavitch indicated that when areas of the section were
cleaned was "kind of a floating thing."  (Tr. 235).  He
testified, "[we clean up] as soon as [we] could get to
it.  It may be two or three entries . . . Depending on
what was going on with the section."  (Tr. 235).

     Marcavitch stated the section would have been cleaned
sooner if Maple Creek's scoops had not broken down.  One
scoop reportedly developed electrical problems on the
afternoon shift of October 28, 1998.  The second scoop
reportedly was taken out of service during the midnight
shift due to a broken bucket.  The remaining scoop
normally used to haul materials into the mine was
reportedly taken out of service during the day shift of
October 29, 1998, because of a battery problem.  (Tr.
237-243).  However, the thrust of Marcavitch's testimony
was that at all times during the several shifts preceding
Patterson's inspection at least one scoop (the haulage
scoop) was available for cleanup.

     In fact, Marcavitch conceded the reported scoop problems
were not the main reason for the lack of cleanup. Marcavitch
testified:

     The Court: Okay.  So what I'm trying to distinguish is
                whether or not the [cited accumulations] weren't
                cleaned up . . . because scoops weren't
                available, assuming that's a defense, or
                whether or not they weren't cleaned up because
                Maple Creek hadn't gotten to it yet?  It
                seems to me you're saying essentially
                they hadn't been cleaned up because Maple
                Creek just hadn't gotten to it yet; is that
                correct?.

    Marcavitch: I would say that would probably be a
                correct statement.
(Tr. 244).

     Marcavitch went on to explain that Maple Creek does not
place any priority on cleaning an entry once it has been
mined and roof bolted and the equipment has been removed
from the face in that entry until equipment returns to
take an additional cut.  (Tr. 257-260).

     Greg Miller testified that the spillage at the tailpiece
occurred after the feeder had been knocked off the
tailpiece by a shuttle car during the midnight shift.
(Tr. 265).  Miller testified that, prior to Patterson's
arrival on the section, the belt had been turned on and
off to remove the spillage.  Miller testified he could
not recall Patterson instructing Bertovich to shut the
belt down.  (Tr. 279).  Miller also testified he did not
see Patterson touch the belt structure to determine if it
was hot.  (Tr. 276).  As previously noted, Maple Creek
did not call upon Bertovich to testify.

     III.  Further Findings and Conclusions

     Maple Creek has stipulated to the fact of occurrence of
the violation of 30 C.F.R. � 75.400 cited in 104(d)(1)
Order No. 3657357.  The remaining issues of whether the
violation was properly characterized as S&S, and whether
it was unwarrantable will be discussed in turn.

          A.  Significant and Substantial

     A violation is properly designated as S&S in nature if,
based on the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard
contributed to by the violation will result in an injury
or an illness of a reasonably serious nature.  Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April
1981).  In Mathies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission explained:

     In order to establish that a violation of a mandatory
     safety standard is significant and substantial under
     National Gypsum, the Secretary of Labor must prove:
     (1) the underlying violation of a mandatory safety
     standard; (2) a discrete safety hazard--that is, a
     measure of danger to safety--contributed to by the
     violation; (3) a reasonable likelihood that the
     hazard contributed to [by the violation] will result
     in an injury; and (4) a reasonable likelihood that
     the injury in question will be of a reasonably
     serious nature.  6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).

     In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129,
(August 1985), the Commission explained its Mathies criteria
as follows:

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

     The Commission subsequently reasserted its prior determi-
nations that as part of any "S&S" finding, the Secretary must
prove the reasonable likelihood of an injury occurring as a result
of the hazard contributed to by the cited violative condition or
practice.  Peabody Coal Company, 17 FMSHRC 508 (April 1995); Jim
Walter Resources, Inc., 18 FMSHRC 508 (April 1996).

     Resolution of whether a particular violation of a
mandatory safety standard is S&S in nature must be made assuming
continued normal mining operations.  U.S. Steel Mining, 7 FMSHRC
1125, 1130 (August 1985).  Thus, consideration must be given to
both the time frame that a violative condition existed prior
to the issuance of citation, and the time that it would have
existed if normal mining operations had continued.  Bellefonte
Lime Co., 80 FMSHRC 1250 (November 1998); Halfway, Inc,
8 FMSHRC 8, 12 (January 1986).

     With regard to the first element of Mathies, Maple Creek
has stipulated that the numerous and extensive accumulations
that are cited in 104(d)(1) Order No. 3657357 constitute imper-
missible combustible accumulations prohibited by the mandatory
safety standard in 30 C.F.R. � 75.400.  Because coal dust
accumulations are combustible, if combustion were to occur,
i.e., fire or explosion, there is a reasonable likelihood that
miners would sustain serious injury.  Moreover, Stephan's
testimony concerning the propagation effects of widespread
accumulations clearly satisfies the second and fourth elements
of the Mathies test regarding a discrete safety hazard and
the potential for serious injury.

     The remaining criterion, a reasonable likelihood that the
combustion hazard caused by the violation will result in
serious injury, requires examining whether there was a
"confluence of factors" present based on the particular
facts surrounding the violation that would make a fire,
ignition or explosion reasonably likely.  Texasgulf,
Inc., 10 FMSHRC 498, 501 (April 1988).  Some of these
factors include the extent of the accumulations, possible
ignition sources, the presence of methane, and the type
of equipment in the area.  Enlow Fork Mining Co., 19
FMSHRC 5, 9 (January 1997) citing Utah Power & Light Co.,
12 FMSHRC 965, 970-71 (May 1990); Texasgulf Inc., 10
FMSHRC at 500-03.

     Stephan's testimony, as well as common sense, supports
the conclusion that there is a positive correlation
between the likelihood of injury resulting from the
presence of combustible accumulations in an underground
mine and the extensiveness of the accumulations.  In this
regard, Stephan's professional opinion that the
"relatively extensive" cited  accumulations "would make
explosion propagation so much easier because the fuel is
readily available and can easily be suspended and
ignited" is compelling.  (Tr. 189).  Likewise, Stephan's
calculations that the top half-inch of the accumulations
cited by Patterson provided a potential for 350 cubic
feet of coal dust that could be put in suspension, while
only ten cubic feet of coal dust was necessary to engulf
the entire New Eagle section inby the last open crosscut
in the flame of an explosion, illustrates the magnitude
of the danger posed by the cited extensive accumulations.
(Tr. 181-184).  Although there was no evidence of
significant levels of methane in the New Eagle section,
the extensive accumulations provided the fuel for fire,
or, for propagation of an explosion that had originated
in another area of the mine.

     Ignition sources in the form of malfunctioning electrical
mobile equipment, defective electrical cables, misaligned
belts and defective rollers, and heat generated by the
continuous miner bits during mining, are ever present
hazards in an underground mine.  While these sources of
ignition are frequently unforeseen, safety dictates that
reasonable efforts must be made to minimize sources of
fuel.  Disregarding, for the moment, the accumulations
around the hot belt structure, Maple Creek's failure to
minimize fuel sources by leaving accumulations in six
entries and several crosscuts exponentially added to the
likelihood of injury in this case.

     With regard to the tailpiece area in the No. 3 entry, I
credit Patterson's testimony, supported by his
contemporaneous notes, that the belt structure at the
tailpiece was hot, and that this structure and its
rollers were in close proximity to combustible
accumulations.  Moreover, as previously noted, Maple
Creek has stipulated to the cited accumulations in the
vicinity of the tailpiece.  Patterson's inability at
trial to recall whether there was a feeder in front of
the tailpiece has no material impact on his credibility,
or, on the considerable weight that should be accorded to
his testimony.

     In sum, when viewed in the context of continuing mining
operations, especially in view of Maple Creek's
demonstrated lack of commitment to promptly remove
accumulations, the evidence amply reflects that there was
a reasonable likelihood that the fire and propagation
hazard contributed to by the extensive accumulations in
this case will result in an event (a fire and/or
explosion) causing serious or fatal injury.  AMAX Coal
Company, 19 FMSHRC 846, 449 (May 1997) (a belt running in
coal is a "dangerous condition that poses the threat of
fire).  Consequently, the S&S nature of the subject
section 75.400 violation shall be affirmed.

          B.  Unwarrantable Failure

     The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. � 814(d), and refers
to more serious conduct by an operator in connection with
a violation.  In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure
is aggravated conduct constituting more than ordinary
negligence.  Id. at 2001. Unwarrantable failure is charac-
terized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable
care." Id. At 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc.
v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving the
Commission's unwarrantable failure test).

     The Commission has identified various factors in
determining whether a violation is unwarrantable,
including the extent of the violative condition, the
length of time that it has existed, whether the violation
is obvious, whether the operator has been placed on
notice that greater efforts are necessary for compliance,
and the operator's efforts in abating the violative
condition.  Windsor Coal Company, 21 FMSHRC at 1000;
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988); Kitt Energy Corp., 6 FMSHRC 1596 1603 (July 1984).
The Commission also considers whether "the violative
condition is obvious, or poses a high degree of danger."
Windsor Coal Company, 21 FMSHRC at 1000; BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (August 1992).

     Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that
they serve to put an operator on notice that greater
efforts are necessary for compliance with a standard.
Peabody, 14 FMSHRC at 1263-64.  Finally, warnings and
directives given at prior meetings between MSHA and mine
management also place the operator on notice that greater
efforts at compliance are necessary.  Amax Coal Co.,
19 FMSHRC at 851; Jim Walter Resources, 19 FMSHRC 480, 485-486
March 1997); Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1232 (June 1994); Enlow Fork Mining, 19 FMSHRC 9, 16,  (January
1997); Doss Fork Coal Co, 18 FMSHRC 122, 125 (February 1996).

     At the outset, I note that Maple Creek had a frequent
history of similar section 75.400 violations.  Moreover,
Maple Creek's meetings with MSHA personnel, attended by
assistant mine foreman and belt foreman John Parker, mine
foreman Tony Bertovich, safety director Richard
Marcavitch, corporate safety director Jerry Taylor, and
Robert Murry, Maple Creek's President, should have been a
stark reminder that greater efforts were required to
fulfill Maple Creek's obligation under section 75.400 to
not permit combustible accumulations to accumulate in
working sections.

     Despite being on notice, Maple Creek's has proffered
unconvincing and contradictory explanations for the
conditions observed by Patterson on October 29, 1998.
Although Maple Creek has attempted to attribute the
conditions observed by Patterson in its New Eagle section
to an unavailability of scoops, Marcavitch's testimony
reflects that at all times prior to Patterson's
inspection at least one scoop (the haulage scoop), and
sometimes two scoops, were available for cleaning.
Moreover, the Commission has held that the unavailability
of a scoop does not relieve an operator of its obligation
to shovel impermissible combustible accumulations.
Mullins & Sons, 16 FMSHRC at 195.  In this regard,
Newhouse testified that he previously had informed
Bertovich that Maple Creek was responsible for shoveling
accumulations in the event of inoperable scoops.  (Tr.
165).

     In addition, Maple Creek initially asserted that the
accumulations had not been cleaned because the mining
cycle had not been completed.  This explanation is
equally unavailing. Generally speaking, a mining cycle is
completed after an entry has been driven approximately
40 feet by the continuous miner and roof bolted, at which time
the equipment is withdrawn from the entry so that the entry can
be cleaned by scoop and rock dusted.  (Tr. 109, 137, 140-141,
216, 259).  See also Jim Walter Resources, 11 FMSHRC 21, 26
(January 1989).  However, when it became clear that the
accumulations, ranging up to 160 feet in length, located in the
full length of the No. 2 through No. 7 entries inby the last open
crosscut, had existed for more than one shift, Maple Creek's
definition of a mining cycle changed.  Maple Creek's latest
version of its cleanup cycle is that it does not clean an entry
that has been mined and roof-bolted until equipment returns to
that entry to take an additional cut.  (Tr. 257-260).  However,
this assertion does not explain accumulations varying from 70 to
160 feet in the No. 3, No. 4, No. 5 and  No. 6 entries.  (Tr.
140-141; Gov. Exs. 1, 6).  Rather, in the final analysis, Maple
Creek's cleanup policy appears to be as safety director
Marcavitch described it at trial - - that entries are left
uncleaned until Maple Creek "can get to it," and that there is no
time period "set in stone" for cleaning accumulations.   (Tr.
235, 257-258).  Such a lack of discipline is indicative of an
indifference that alone warrants a finding of an unwarrantable
failure.

     In short, Maple Creek's history of fifty section 75.400
violations in the year preceding the subject Order; Maple
Creek management's awareness, through its meetings with
MSHA officials, that greater compliance efforts were
necessary; the extensive and obviousness nature of the
accumulations; despite being on notice, the fact that the
accumulations were not removed during the normal mining
cycle but were allowed to exist for several shifts; and
the danger posed by combustible accumulations in
proximity to a hot belt structure; when viewed together,
warrant the conclusion that Maple Creek's conduct
evidenced an unwarrantable failure.

          IV.  Civil Penalty

     Section 110(i) of the Mine Act provides the statutory
criteria for determining the appropriate civil penalty to
be assessed.  Section 110(i) provides, in pertinent part,
in assessing civil penalties:

     the Commission shall consider the operator's history of
     previous violations, the appropriateness of such penalty
     to the size of the business of the operator charged,
     whether the operator was negligent, the effect on the
     operator's ability to continue in business, the gravity
     of the violation, and the demonstrated good faith of
     the person charged in attempting to achieve rapid
     compliance after notification of a violation.

     The parties have stipulated that Maple Creek is a large
operator with annual production in excess of two million
tons of coal at the time of the proposed assessment.
(Joint Stip. No. 8; Tr. 12).  The parties have also agreed that
payment of the $6,000 civil penalty proposed by the Secretary
will not affect Maple Creek's ability to continue in business.
(Joint Stip. No. 7). Maple Creek has provided no evidence of
significant mitigating circumstances that would warrant a
reduction in penalty.  As discussed above, the violation
is serious in gravity given the reasonable likelihood of
serious injury.  Moreover, Maple Creek's conduct was
unwarrantable when viewed in the context of its history
of similar violations, and prior notice that greater
efforts to achieve compliance with section 75.400 were
required.  Maple Creek's efforts to achieve abatement by
assigning ten employees to remove the cited accumulations for
five hours, only after mining operations were halted as a
consequence of the 104(d) order, does not provide a basis
for a reduction in penalty.  Accordingly, consistent with
the statutory penalty criteria, the $6,000 civil penalty
initially proposed by the Secretary shall be assessed for
104(d)(2) Order No. 3658016.


                              ORDER

     In view of the above, IT IS ORDERED that 104(d)(2) Order
No. 3658016 IS AFFIRMED, and Maple Creek Mining, Inc., shall pay
a $6,000 civil penalty in satisfaction of said order.

     IT IS FURTHER ORDERED, consistent with the parties'
settlement agreement, that 104(d)(2) Order Nos. 3657936 and
3657937 ARE AFFIRMED, and Maple Creek Mining, Inc., shall pay
a $6,000 civil penalty in satisfaction of 104(d)(2) Order No.
3657936, and a $5,000 civil penalty in satisfaction of 104(d)(2)
Order No. 3657937.

     ACCORDINGLY, IT IS FURTHER ORDERED that Maple Creek Mining,
Inc., shall pay a total civil penalty of $17,000 in satisfaction
of the three 104(d)(2) orders that are the subjects of this
proceeding.  Payment shall be made within 40 days of the date
of this decision.  Upon timely payment of the entire $17,000
civil penalty, IT IS ORDERED that this matter IS DISMISSED.


                                   Jerold Feldman
                                   Administrative Law Judge


Distribution:

Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Department
of Labor, Suite 630 East, The Curtis Center, 170 S. Independence
Mall West,  Philadelphia, PA 19106-3306 (Certified Mail)

Michael O. McKown, General Counsel, Maple Creek Mining, Inc.,
29525 Chagrin Blvd., Suite 111, Pepper Pike, OH 44122
(Certified Mail)


/mh


     [1]  Section 75.400 provides:

     Coal dust, including float coal dust deposited on rock-
     dusted surfaces, loose coal, and other combustible materials,
     shall be cleaned up and not be permitted to accumulate in
     active workings, or on diesel-powered and electric equipment
     therein.

     [2]  On May 31, 2000, the Secretary filed an unopposed
request to correct 12 errors in the hearing transcript.  The
Secretary's request is granted and the transcript is hereby
amended to reflect the subject corrections.

     [3]  Maple Creek safety director Richard Marcavitch's
testimony reflects Patterson's failure to recall if a feeder was
present is not a matter of evidentiary significance.  (Tr.
218-221).  Moreover, Maple Creek has stipulated to the cited
accumulations in proximity to the tail roller in the No. 3 entry.
(Joint Stip. 12(b)).

     [4]  The accumulations along the belt line in the vicinity of
the feeder are identified as Location No. 2 in the parties' Joint
Stipulation No. 12(b), as well as on the mine maps admitted as
Gov. Ex. 6 and Resp. Ex. 3.

     [5]  The operator had not rock dusted any of the 12
accumulations cited by the Secretary in this proceeding.   (Tr.
81, 101).

     [6]  Order No. 3658016 was amended at the hearing to include
an area of accumulations in the No. 77 crosscut between the No. 2
and 3 entries.  See fn. 6, infra.

     [7]  Location 3C was described in Patterson's notes and
appears on the mine map in Gov. Ex. 6.  However, it was not included
in the original order.  The order was amended without objection at
the beginning of the hearing to include this accumulation.  (Tr. 20).

     [8]  Although Maple Creek does not challenge the nature and
extent of the accumulation, it contends the accumulation was in
crosscut 77 between the No. 4 and No. 5 entries.  (Tr. 89).

     [9]  The Commission has determined the duration of
accumulations may be established through circumstantial evidence,
and that an inspector need not possess actual knowledge of the
length of time the accumulations existed.  Windsor Coal Company,
21 FMSHRC 997, 1002-1003 (September 1999).