<DOC>
[DOCID: f:arch98.wais]

 
ARCH OF KENTUCKY
December 18, 1998
KENT 97-197


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                          December 18, 1998

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
            v.                     :  Docket No. KENT 97-197
                                   :
ARCH OF KENTUCKY                   :

BEFORE:  Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
         Commissioners


                            DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act").  At issue is the decision by Administrative Law
Judge Avram Weisberger that Arch of Kentucky ("Arch") violated 30
C.F.R. � 75.1403-6(b)(3)[1] by failing to adequately maintain the
sanding devices on a mantrip.  20 FMSHRC 73, 75-78 (Jan. 1998)
(ALJ).  The Commission granted Arch's petition for discretionary
review challenging the judge's determinations that it violated
section 75.1403-6(b)(3) and that the alleged violation was
significant and substantial ("S&S").  For the reasons that
follow, we affirm the judge's decision.

                               I.

                Factual and Procedural Background

     Arch operates the No. 37 mine, an underground coal mine in
Lynch, Kentucky.  Id. at 74.  Just after midnight on February 4,
1997, eight miners, at the end of their shift, boarded the No. 14
mantrip at the L-15 section of the mine.  Id.; Tr. 156; Pet. Ex.
1 at 1.  The mantrip traveled on steel tracks.  Tr. 25.  Miners
Kenneth Russell, Kenneth Bolling, Vass Mellon, and William Carter
sat in the outby passenger compartment facing the direction of
travel.  20 FMSHRC at 74; Jt. Ex. 2.  Miners Otis Holcomb,
Charlie Walker, Bill Toliver, and Billy Boggs sat in the inby
passenger compartment facing the rear of the mantrip.  20 FMSHRC
at 74; Jt. Ex. 2.  Tony Cox, the mantrip operator, sat in a
compartment in the middle of the mantrip between and above the
two passenger compartments.  Jt. Exs. 2 & 3.  Plexiglas windows
in the outby compartment allowed passengers to look forward in
the direction of travel and allowed some of them, if they turned
in their seats, to see the seated operator from his shoulder
level and above.  Tr. 27, 37, 61, 183-84.

     The No. 14 mantrip had a hand-controlled service brake to
slow or stop the vehicle and a hand-controlled parking brake.
Tr. 178-79.  It also had sanders to provide traction to slow the
mantrip, to prevent it from sliding on wet tracks, and to help it
climb steep grades.  20 FMSHRC at 74.  When activated, a sander
released sand through a 2-inch opening onto the surface of the
tracks in front of the wheels.  Tr. 112.  The mantrip had four
sanders, one located above each wheel, that were controlled by
the operator using hand levers.  20 FMSHRC at 74; Jt. Ex. 3.  One
lever operated the two outby sanders and the other lever operated
the two inby sanders.  Tr. 139-40, 193.

     As the No. 14 mantrip traveled out of the mine on February
4, it entered a dip under an overcast.[2]  20 FMSHRC at 74.  It
was not able to climb out of the dip even though Cox attempted to
activate the sanders.  Id.  He reversed the mantrip and
successfully passed through the dip on his second attempt.  Id.
The mantrip continued its outby journey and, as it rounded a bend
in the tracks, Cox and the passengers in the outby compartment
saw the light of an approaching battery locomotive.  Id.; Tr. 40,
58, 73, 96.  Cox applied the brakes but the mantrip began to
slide on the wet tracks and collided with the locomotive.  20
FMSHRC at 74; Tr. 91-92.

     As a result of the collision, Russell suffered a fractured
lower leg, Carter received spinal injuries, and Bolling suffered
a fractured ankle and two injured vertebrae.  Tr. 41, 62-63, 93;
Pet. Ex. 1 at 6.  Immediately after the accident, Cox ran inby
for help and encountered another mantrip about to make its second
attempt to pass through the dip going outby.  Pet. Ex. 1 at 1;
Tr. 105.  The passengers on the mantrip included Shelby Brewer,
an MSHA inspector, who was at the mine taking dust samples.  20
FMSHRC at 74; Tr. 102, 104-05.  Inspector Brewer ran forward to
the accident scene and then rode the No. 14 mantrip outby as it
took the injured miners approximately 1000 feet to the mine
portal.  20 FMSHRC at 74; Tr. 106.

     Approximately 20 minutes after the accident, Inspector
Brewer and Bob Anderson, a miner's representative, examined the
No. 14 mantrip on the surface.  20 FMSHRC at 74.  Anderson
operated a sander lever but no sand was released.  Id.  Inspector
Brewer inspected the sander boxes and found they were half full
and the sand inside was compacted.  Id.  According to Inspector
Brewer, the sand in a sander box has to be dry and loose in order
to release through the 2-inch opening and fall on the track.  Id.
at 74-75; Tr. 112.  Anderson tagged out the mantrip and moved it
to the mine's repair shop.  Tr. 107.  Inspector Brewer told James
Vicini, Arch's safety manager, that he might issue a citation to
Arch because the sanders on the mantrip were not working.  Tr.
161.

     On the night of the accident, Vicini started an accident
investigation which lasted three or four weeks.  Tr. 159-60, 171.
He recorded the results of the investigation in an accident
report (the "Arch report").  Pet. Ex. 1.  On the morning of
February 4, William Johnson, an MSHA inspector and accident
investigator, arrived at the mine and spoke to Vicini and some
miners, including Cox, about the accident.  Tr. 117-18, 122.  At
approximately 10:00 a.m., Johnson examined one outby sander and
one inby sander on the No. 14 mantrip and found that the sander
boxes were half full and the sand inside was compacted.  20
FMSHRC at 75.  On February 21, Johnson issued Citation No.
4581310 to Arch, alleging an S&S violation of section 75.1403-
6(b)(3).  Jt. Ex. 5.  Citation No. 4581310 charges that "the
sanding device provided on the No. 14 Brookville diesel
track-mounted self-propelled personnel carrier was not working
when the No. 14 mantrip collided with the No. 25 battery powered
track-mounted motor."  Id.  Arch contested the citation and the
matter proceeded to hearing before Judge Weisberger.

     The judge held that Arch was responsible for an S&S
violation of section 75.1403-6(b)(3).  20 FMSHRC at 75-78.  Based
on the eyewitness testimony of the miners in the outby passenger
compartment of the mantrip and on the supporting testimony of the
MSHA inspectors, he concluded that the sanders did not function
properly prior to the accident.  Id. at 75-76.  The judge did not
assign significant weight to the hearsay testimony of Vicini that
Cox told him that the sanders were working when he came out of
the dip, in part because Arch did not call Cox to testify and did
not indicate that he was not available to testify.  Id.  The
judge dismissed as too speculative Arch's claim that the sanders
became compacted after the accident due to exposure to water.
Id. at 75.  He also dismissed, for lack of any supporting
evidence, Arch's claim that the mantrip had been inspected before
the accident and found to be in working order.  Id.

     The judge assessed Arch a penalty of $1019, finding the
gravity of the violation relatively high and the operator's
negligence moderate.  Id. at 78.  Arch subsequently filed a
petition for discretionary review, challenging the judge's
decision.

                               II.

                           Disposition

     Arch contends that the judge's findings that it violated
section 75.1403-6(b)(3) and that the violation was S&S are not
supported by substantial evidence.  A. Br. at 1.  It claims that
the judge erred in relying on the testimony of the miners and
MSHA inspectors about the condition of the sanders.  Id. at 8-11.
According to Arch, the judge committed prejudicial error by (1)
failing to accord sufficient weight to Vicini's hearsay testimony
about Cox's out-of-court statements, (2) disregarding the Arch
report which it claims fell within an exception to the hearsay
rule, and (3) preventing Arch from questioning Inspector Johnson
during cross-examination about what Cox told him concerning his
use of the sanders before the accident.  Id. at 7, 11-15; A.
Reply Br. at 6-8.  Arch contends that the judge did not
adequately weigh evidence that the sanders functioned properly
immediately before the shift on which the accident occurred.  A.
Br. at 9-10; A. Reply Br. at 5.  It also argues that the judge
erred when he concluded the alleged violation was S&S because the
Secretary failed to prove that (1) the violation occurred, (2)
its contribution to the danger of a collision was "significant
and substantial," and (3) it caused the collision.  A. Br. at 17-
19; A. Reply Br. at 8-9.

     The Secretary responds that the judge's decision is
supported by substantial evidence.  S. Br. at 9, 24.  She
contends that the eyewitness testimony of four miners and the
testimony of two MSHA inspectors indicate that the sanders were
not working properly prior to the accident.  Id. at 9-14.  She
argues that the judge correctly found that Vicini's testimony
about what Cox told him was hearsay testimony and correctly gave
it less weight than the eyewitness testimony of the miners.  Id.
at 16-18.  The Secretary asserts that there is no evidence to
support Arch's claims that the sand became compacted after the
accident.  Id. at 14-15.  She contends that the judge was right
to disallow Arch's question on cross-examination to Inspector
Johnson, concerning what Cox had told him about the sanders,
because it had already been testified to by other witnesses and
because it went beyond the scope of the Secretary's direct
examination.  Id. at 20-21.  Furthermore, she argues that even if
the judge did err in disallowing the question, it only amounted
to harmless error.  Id. at 19-22.  The Secretary also argues that
the judge did not err when he found Arch's violation to be S&S,
and asserts that proof that the violation caused the collision
was not required to show that the violation was S&S.  Id. at 22-
23.

     A.   Violation

     At issue in this case is whether the judge's conclusion that
the sanding device on Arch's mantrip was not functioning when the
mantrip collided with a locomotive (20 FMSHRC at 75-76) is
supported by substantial evidence.[3]  We conclude that it is.

     Both post-accident inspections of the sanders indicated they
were not working properly.  Although Arch claims that no one
inspected the mantrip until 10 hours after the accident (A. Br.
at 5, 7), Inspector Brewer testified that he inspected the
vehicle approximately 20 minutes after the accident.  20 FMSHRC
at 74.  He found that the sander boxes were half full, the sand
inside was compacted, and the sand "looked like it hadn't been
running" through the opening.  Tr. 108.  When Inspector Johnson
inspected the mantrip later that morning, he found similar
conditions.  Tr. 124.[4]

     In crediting the testimony of Brewer and Johnson, the judge
rejected as too speculative Arch's claims that the sand in the
sanders may have become compacted after the accident from
exposure to rain or when the mantrip drove through a water hole
at the mine portal.  20 FMSHRC at 75.  Inspector Brewer testified
that the small water hole at the mine portal had been "pumped
down" when the mantrip drove through it and that it should not
have affected the sanders.  Tr. 110.  The record also contains no
evidence that the mantrip was exposed to rain during the 20
minutes it was on the surface before it was inspected by
Inspector Brewer or, if it had rained during that time, that the
rain had entered the sander boxes.  Tr. 109.  Inspector Brewer
testified that the tops of the sanders were covered with lids.
Id.[5]  The judge also rejected Arch's argument that the sanders
on the No. 14 mantrip had been inspected just before the shift on
which the accident occurred and had been found to be functioning
properly.  20 FMSHRC at 75; Tr. 195-97.  The judge reasoned that
Arch provided no evidence based on personal knowledge concerning
the pre-shift condition of the mantrip.  20 FMSHRC at 75.

     The judge also based his conclusion that the sanders were
not maintained in working order on his findings that Cox
attempted to use the sanders in the dip but they did not work.
Id. at 75-76.  Russell testified that, as the mantrip was
attempting to pass through the dip, he called to Cox to use the
sanders and he saw Cox operating the sander lever.  Tr. 21-22,
26-27, 29.  Russell said that he heard "a clunking sound, just
metal against metal" coming from directly behind him where the
sanders were located in the mantrip, and he inferred from this
sound that Cox had activated the sanders.  Tr. 27-28.  He
testified that the sanders were not effective because their
activation did not create traction and the mantrip slid backwards
into the dip.  Tr. 20, 22, 28-29.

     Bolling testified that some of the miners on the mantrip
called to Cox to use the sanders when they were trying to get
through the dip and that Cox replied, "I am, I am, I am."  Tr.
59.  Bolling said he saw Cox using the sander lever but, in his
opinion, the sanders were not operational because they did not
provide any traction.  Tr. 59-60.  Carter claimed that, as a
passenger on a mantrip, he knew if the sanders were being
operated because they were located immediately behind the
passengers' compartment and he could hear them being activated.
Tr. 89.  He also claimed to know when the sanders were being
activated because he could tell if the sand from the sanders was
producing traction between the wheels and the tracks.  Tr. 86.
Carter said that, when the mantrip tried to pass through the dip,
it "just slid back down" even though he could hear Cox activating
the sanders.  Tr. 88-89.  However, he also testified that it
usually took a mantrip two or three attempts to get through the
dip.  Tr. 88.

     We also note that Russell claimed the mantrip began to slide
on the wet tracks on the bend just before the accident.  Tr. 36-
37.  Although he saw Cox using the sanders, he inferred that they
were not working because he did not feel any traction and the
mantrip did not slow down.  Tr. 37, 39-40.  He claimed that Cox
locked the brakes but the mantrip continued to slide until it
collided with the locomotive.  Tr. 37.

     Bolling testified that the mantrip started to slide just
before the accident and did not slow down before the collision.
Tr. 61.  He said that he heard someone tell Cox to activate the
sanders and he heard Cox reply that he was activating them.  Tr.
62.  He also saw Cox operating the controls but could not tell if
he was specifically operating the sanders.  Tr. 61-62.  Mellon
claimed that the mantrip began to slide just before the accident.
Tr. 73.  Instead of slowing down, he said the mantrip continued
to speed up, as if the sanders were not working, until it hit the
locomotive.  Tr. 73-74.

     Carter claimed that, just before the accident, Cox applied
the brakes and the mantrip began to slide.  Tr. 91.  He believed
that Cox then activated the sanders because they were immediately
behind him and he could hear the "metal to metal" sound they made
when they were activated.  Tr. 91-93.  He stated that he did not
know if the activated sanders released any sand onto the tracks.
Tr. 91.  However, he claimed that the mantrip did not slow down
as it should have done if sand was falling on the tracks and
providing traction.  Tr. 91-92.

     Arch offered contrary evidence that the sanders did lay down
sand in the dip, and that Cox did not have time to apply them
thereafter.  Vicini testified that Cox told him that he activated
the sanders and "laid sand down" while traveling through the dip.
Tr. 168-69.  According to Vicini, Cox claimed that the sanders
worked at the dip because he heard the "kind of squeal" that he
believed occurs when sand from the sanders causes traction
between the wheels and the tracks.  Tr. 169; Pet. Ex. 1 at 8.
Vicini testified that Cox told him that, at the bend immediately
before the accident, he applied the brakes but did not have time
to use the sanders.[6]  Tr. 186, 202.  Vicini also said that when
he asked Cox, Walker, Holcomb, and Tolliver about the sanders
shortly after the accident, none of them told him that the
sanders had failed to work.  20 FMSHRC at 75-76; A. Br. at 8.

     In crediting the Secretary's evidence over Vicini's
testimony on behalf of Arch, the judge noted:

          Vicini indicated that he had interviewed
          [several] miners who   were passengers in the
          mantrip at issue, and that none of them
          told him that the sanders did not operate.
          . . .  They told him       that the track was
          slick.  However, Arch did not proffer the
          testimony of any of these miners, nor did it
          indicate that any         of them were not
          available.  I thus do not accord much weight
          to this hearsay testimony of Vicini.  On the
          other hand, I observed the demeanor of
          Carter, Bolling, and Russell and found their
          testimony credible . . . .

20 FMSHRC at 76.  The judge also noted that Arch did not call Cox
or the other miners interviewed by Vicini, or indicate that they
were unavailable to testify.  Id.

     We do not find Arch's evidence of sufficient weight to
overturn the judge's conclusion that the testimony of the
Secretary's witnesses was more credible than Cox's.  In reaching
this conclusion, we are guided by the principle that a judge's
credibility determinations are entitled to great weight.  Farmer
v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn
Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).  We conclude
that Arch has not offered "compelling reasons to take the
`extraordinary step' of reversing the judge's credibility
determination."  See Fort Scott Fertilizer-Cullor, Inc., 19
FMSHRC 1511, 1516 (Sept. 1997) (quoting Hall v. Clinchfield Coal
Co., 8 FMSHRC 1624, 1629 (Nov. 1986)).

     Arch also argues that the judge erred by failing to address
in his decision Cox's statements recounted by Vicini in the Arch
report, which the operator contends falls within the business
records exception to the hearsay rule.  A. Br. at 11-12.  We
note, however, that hearsay rule exceptions are largely
irrelevant in a Commission proceeding, in which hearsay evidence
is admissible.[7]  29 C.F.R. � 2700.63(a); Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1135-36 (May 1984).  In fact, the
judge admitted the report into evidence (Pet. Ex. 1), it having
been offered by the Secretary for the purposes of cross-examining
Vicini, the author of the report - whose testimony regarding
Cox's statements to him about the sanders the judge expressly
discredited.  20 FMSHRC at 75-76.  We find that the judge also
implicitly discredited the report (see Fort Scott, 19 FMSHRC at
1516 (recognizing implicit credibility finding of judge)), and
justifiably omitted it from his analysis.

     We agree with Arch (A. Br. at 12-16), however, that the
judge erred during the hearing by sustaining an objection by the
Secretary to the following question posed by Arch's counsel to
Inspector Johnson on cross-examination: "When you talked to Mr.
Cox, isn't it true that he told you that he had used the sanding
device shortly before the accident?"  Tr. 143.  The Secretary
objected to the question on the grounds that it was hearsay and
that it was covered by the informer's privilege.  Id.  The
judge's reasons for sustaining the objection were (1) the actions
of Cox had already been testified to by other witnesses, (2) the
question did not relate to anything that Inspector Johnson said
on direct examination, and (3) Cox's answer to the question
"appears to be covered by informer's privilege."  Tr. 144.

     Contrary to the judge's ruling, the question put to
Inspector Johnson was worded broadly enough to encompass actions
by Cox that were not testified to by the previous witnesses.  Nor
do we agree with the judge that the question did not relate to
matters testified to on direct examination.  Inspector Johnson
was asked on direct if he talked to anyone at the mine during his
inspection.  He answered: "I talked with the - both the men [sic]
that was operating the mantrip  and the gentleman that was
operating the [locomotive]."  Tr. 122.  This opened the door to
Arch's later question on cross-examination concerning part of
that conversation.  See United States v. Hitchmon, 609 F.2d 1098,
1100-01 (5th Cir. 1979) (holding that trial judge improperly
restricted cross-examination of subject matter raised on direct
examination).

     Finally, we conclude that the question on cross-examination
was not covered by the informer's privilege.  This privilege is
codified in Commission Procedural Rule 61, which states that "[a]
judge shall not, except in extraordinary circumstances, disclose
or order a person to disclose to an operator or his agent the
name of an informant who is a miner."  29 C.F.R.            �
2700.61.  The privilege also protects the content of a
communication if its disclosure would tend to reveal the identity
of the informer.  Asarco, Inc., 12 FMSHRC 2548, 2554 (Dec. 1990).
The informer's privilege, however, does not apply to the question
on cross-examination because the operator already knew Cox's
identity and that he had communicated with the inspector about
the accident.  Tr. 122, 142, 185; see Roviaro v. United States,
353 U.S. 53, 60 (1957) (holding that privilege does not apply if
informer's identity is known); Secretary of Labor on behalf of
Gregory v. Thunder Basin Coal Co., 15 FMSHRC 2228, 2236 (Nov.
1993) (finding that informer privilege may be waived if person's
identity as informer is known).

     Although the judge erred when he sustained the objection, we
conclude that his error was harmless.  First, Vicini subsequently
testified to what Cox said he did with the sanders at the bend
immediately before the accident.  Tr. 186, 201-02.  Moreover, we
do not believe that Cox's out-of-court statements to Johnson
could have overcome the credited testimony of Carter, Bolling,
and Russell concerning Cox's use of the sanders, together with
evidence about the condition of the sanders observed after the
accident.

     In sum, we conclude that, based on the testimony of the two
MSHA inspectors that the sanders were not functioning properly
before the accident, and the evidence provided by the four miners
concerning what took place prior to the accident, the record as a
whole contains substantial evidence to support of the judge's
decision that Arch violated section 75.1403-6(b)(3) in the manner
alleged.

     B.   Significant & Substantial

     The "significant and substantial" terminology is taken 
from section 104(d) of the Mine Act, 30 U.S.C. � 814(d), and
refers to more serious violations.  A violation is S&S if,
based on 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.  See Cement Div., Nat'l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).  In Mathies Coal Co., 6
FMSHRC 1 (Jan. 1984), the Commission further 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 will result in an injury; and
          (4) a reasonable likelihood that the injury
          in question will be of a reasonably serious
          nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).[8]

     We have already held that substantial evidence supports the
judge's decision that Arch violated section 75.1403-6(b)(3).  We
reject Arch's argument that, because the judge only examined
whether the violation contributed to the hazard of a collision
but failed to examine whether its contribution was "significant
and substantial," the judge erred in analyzing the second
element.  A. Br. at 18.  In fact, the judge's careful delineation
of the four Mathies elements, including his finding that the
failure to properly maintain the sanders may have led to reduced
traction and thereby contributed to the hazard of a collision,
resulted in his ultimate conclusion that the violation
significantly and substantially contributed to a hazard.

     We also reject Arch's contention that, because the judge did
not find that the violation caused the collision, he erred in
determining that the second Mathies element was satisfied.  Id.
at 18-19.  Under Commission precedent, the Secretary does not
have to show that a violation caused an accident in order to
prove that the violation is S&S.  See Youghiogheny & Ohio Coal
Co., 9 FMSHRC 673, 678 (Apr. 1987) ("In order to establish the
significant and substantial nature of the violation, the
Secretary need not prove that the hazard contributed to actually
will result in an injury causing event.").  Finally, insofar as
Arch's causation argument can be understood to challenge the
judge's determination that the third Mathies element was
established, we conclude that, based on Arch's failure to
maintain the sanders and the mantrip's frequent trips on tracks
with downgrades and curves, substantial evidence supports the
judge's finding that a reasonable likelihood existed that the
failure to maintain the sanders would result in an injury.  20
FMSHRC at 78.


**FOOTNOTES**

     [1]:  Section 75.1403-6(b)(3) provides, in pertinent part,
that "each track-mounted self-propelled personnel carrier should
. . . [b]e equipped with properly installed and well-maintained
sanding devices."

     [2]:  An overcast is defined as "[a]n enclosed airway that
permits an air current to pass over another one without
interruption."  American Geological Institute, Dictionary of
Mining, Mineral, and Related Terms 384 (2d ed. 1997).

     [3]:  When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
� 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'"  Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  In reviewing the
whole record, an appellate tribunal must consider anything in the
record that "fairly detracts" from the weight of the evidence
that supports a challenged finding.  Midwest Material Co., 19
FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).  So long as substantial evidence
supports the judge's findings, the Commission does not substitute
"a competing view of the facts for the view the ALJ reasonably
reached," even where some record evidence supports that competing
view.  Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86,
92 (D.C. Cir. 1983).

     [4]:  We note that both inspectors had extensive experience
both in the mining industry and with MSHA.  Tr. 99-100, 119.  We
also note that Inspector Johnson had a working knowledge of
mantrip sanders and had special training in accident
investigation.  Tr. 117-18, 120-21.

     [5]:  Arch also argues that, because the sander boxes were
found to be half full of sand after the collision, the other half
of the sand must have been used on the tracks before the
accident.  A. Br. at 9-10.  However, there is nothing in the
record from which such as inference could be drawn, such as
evidence that the sander boxes were more than half full with sand
when the mantrip began its outby trip just after midnight on
February 4, or evidence that sand was found on the tracks after
the accident.

     [6]:  The Arch report contains no information as to whether
or not Cox used the sanders at the bend just before the
collision.  Pet. Ex. 1.

     [7]:  Therefore, we need not reach the operator's contention
that the Arch report falls within the business records hearsay
exception.

     [8]:  Commissioner Marks agrees that this violation is S&S.
However, for the reasons set forth in his concurring opinions in
United States Steel Mining Co., 18 FMSHRC 862, 868-75 (June
1996), and Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 240 (Feb.
1997), he continues to urge that the ambiguous language of the
Commission's Mathies test, 6 FMSHRC at 3-4, be replaced with a
clear test that is consistent with Congressional intent.  On
February 5, 1998, MSHA issued a lengthy Interpretative Bulletin,
setting forth a new agency interpretation of S&S and announcing
that MSHA would challenge the Commission's narrow interpretation
of S&S.  63 Fed. Reg. 6012 (1998).  However, on April 23, 1998,
MSHA suspended that Interpretive Bulletin with little
explanation.  Id. at 20,217.  Commissioner Marks is curious as to
MSHA's change in position on the S&S question and requests, as he
has done so on numerous occasions, that the Secretary promptly
advise him on this important issue.


                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's decision
that Arch violated section 75.1403-6(b)(3) and that the violation
was S&S.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution

Marco M. Rajkovich, Esq.
Robert I. Cusick, Esq.
Melanie J. Kilpatrick, Esq.
Wyatt, Tarrant & Combs
250 West Main Street, Suite 1700
Lexington, KY 40507

Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041