<DOC>
[DOCID: f:con9457.wais]

 
CONSOLIDATION COAL COMPANY
September 16, 1998
WEVA 94-57


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                      WASHINGTON,  D.C.   20006


                          September 16, 1998

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :       Docket No. WEVA 94-57
                                :
CONSOLIDATION COAL COMPANY      :
                                :

BEFORE:  Jordan, Chairman; Marks, Riley, and Verheggen,
         Commissioners[1]

                            DECISION

BY:  Jordan, Chairman; Marks, and Riley, Commissioners

     In this civil penalty proceeding, arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq. (1994) ("Mine Act"), the Secretary of Labor has
sought review of Administrative Law Judge David
Barbour's determination that a violation of 30 C.F.R.
� 75.1101-23(a)[2] by Consolidation Coal Company
("Consol") was not significant and substantial
("S&S").[3]  18 FMSHRC 1189 (July 1996) (ALJ).  The
Commission granted the Secretary's petition for
discretionary review.  For the reasons that follow, we
vacate the judge's S&S determination, and remand for
further consideration.

                                I.

                 Factual and Procedural Background

     Consol engages in longwall mining at the Blacksville 
No. 2 Mine, an underground coal mine in Monongalia County,
West Virginia.  18 FMSHRC at 1190, 1191.  On March 15,
1993, there were two fire detection systems in the belt
entry of the 16-M longwall section of the mine:  a heat
sensor system, and a carbon monoxide ("CO") detector
system.  Id. at 1194.  A CO sensor was installed at the
belt drive, another at the regulator, and one every
1000 feet along the beltline toward the face, which was
approximately 40 blocks[4] from the mouth of the
section.  Tr. 30-31, 63-65, 350-52; Gov't Ex. 2.  The
CO monitoring system on the 16-M section was partially
installed, in that a final sensor and an outstation had
yet to be installed.  18 FMSHRC at 1195, 1208-09.

     The 16-M beltline was ventilated by two splits of air.
Tr. 966-68.  One air current flowed outby from the longwall
face, down the beltline until it entered the return at
the regulator.  Tr. 72-73, 967.  The other air current
flowed from the transfer point inby through a box
check,[5] over the belt drive, through a second box
check, and into the regulator.  Gov't Ex. 3; Tr. 72-73,
966-67.  The 17-M longwall section was inby the 16-M
section in terms of ventilation.  18 FMSHRC at 1216.

     On March 15, 1993, Danny Ammons, a miner in charge of
the  16-M belt transfer area, traveled to the belt tailpiece
to take slack out of the belt.  Id. at 1202.  When he
stepped through the first of two airlock doors located
at the box check near the belt drive, he noticed smoke
and haze around the belt.  Id. at 1203.  When he opened
the second door, he observed more smoke and a sudden
flare of flames.  Id.  Ammons called the tipple to
report the fire.  Id.

     After receiving Ammons' call, the miner at the tipple
reported the fire to Gary Kennedy, who was in charge of
the 16-M headgate, and to Kenny Stewart, the mine's
dispatcher.  Id. at 1196, 1201-02.  While Kennedy was
speaking with the tipple man, the heat sensor alarm at
the tailpiece activated, confirming the occurrence of
the fire on the beltline.  Id. at 1196.  Kennedy turned
off the alarm, disconnected the power at the longwall
face, and telephoned Ronald Griffin, the shieldman on
the section, and informed him that there was a fire on
the belt drive and to assemble the crew members at the
headgate.  Id. at 1197, 1198-99.

     Dispatcher Stewart activated flashing lights above the
mine telephones in the 16-M and 17-M sections, and contacted
Mine Superintendent John Straface, and Assistant
Superintendent Samuel McLaughlin, among others, and
informed them of the fire.  Id. at 1190, 1202, 1223.
Superintendent Straface ordered Robert Welch, a foreman
who was coordinating with the dispatcher, to take
charge of the situation.  Id. at 1190, 1217, 1220.
Welch told the dispatcher to turn on other emergency
lights and to send a water car to the area.  Id. at
1218.  Assistant Superintendent McLaughlin traveled to
the site of the fire.  Id. at 1222-23.

     At approximately the time that Ammons had discovered 
smoke and flames on the beltline, Tim Nester, the 16-M
foreman, noticed the 16-M belt slowing and coming to a
stop.  Id. at 1204.  About the time that the belt
stopped, Nester observed smoke coming through the box
check near the regulator, and down the return to the
regulator.  Id.  He then saw Ammons, and the two
traveled down the track entry and back to the box check
near the belt drive.  Tr. 313-15.  Nester and Ammons
put on self rescue devices and walked through the set
of airlock doors in the box check.  18 FMSHRC at 1203,
1204.  Nester and Ammons observed that one of the
sprays of the fire suppression system was spraying
water and that there were no flames.[6]  Id.  Nester
walked up the left side of the belt to the box check
near the regulator, walked through the box check,
looked up the belt, crossed the belt, walked through
the door on the other side, and walked back to the belt
drive. 18 FMSHRC at 1204; Tr. 316-17.  Nester called
Mine Superintendent Straface and told him that the fire
was out and that "everything was okay." 18 FMSHRC at
1204.

     Meanwhile, after receiving Headgateman Kennedy's call,
Shieldman Griffin, Shear Operator Harold Zupper, Jr.,
and Harold McClure, the shear operator's helper, left
the face and met Kennedy at the headgate.  Id. at 1197,
1199, 1201.  Kennedy and the crew members discussed the
route they would take to evacuate.  Id. at 1197.
Kennedy noticed that Gerald Freeland, the 16-M longwall
coordinator, was missing, and Kennedy left to go find
him.  Id. at 1197, 1199; Tr. 162.  During this time,
Foreman Welch spoke with the crew members by telephone,
instructing them to gather together.  18 FMSHRC at
1199, 1230.  Zupper telephoned Welch to inform him of
the route that they would be taking to evacuate.  Id.
at 1199, 1200; Tr. 221-22.  Welch informed him that the
fire was out, and that the crew should stay together on
the section.  18 FMSHRC at 1199-1201, 1219.  The crew
remained on the 16-M section and did not evacuate the
mine.  Id. at 1199, 1200.  In addition, miners were not
evacuated from the 17-M section of the mine.  Id. at
1230.

     On March 17, miner representatives informed Spencer 
Shriver, an inspector with the Department of Labor's Mine
Safety and Health Administration ("MSHA"), of the
circumstances surrounding the fire.  Id. at 1206.
Inspector Shriver relayed the information to Richard
McDorman, an MSHA inspector who regularly inspected the
mine.  Id. at 1210.  Inspectors Shriver and McDorman
investigated the incident.  Id.  As a result of the
investigation, the inspectors issued four orders,
including the order alleging an S&S and unwarrantable
violation of section 75.1101-23(a) for Consol's failure
to evacuate miners from the 16-M and 17-M sections of
the mine after the beltline fire.  Id. at 1190.  In
addition, a special investigation of the fire resulted
in the issuance of orders under section 110(c) of the
Mine Act, 30 U.S.C. � 820(c), to Foreman Welch,
Superintendent Straface, and Assistant Superintendent
McLaughlin for their conduct related to the alleged
violation of section 75.1101-23(a).  Id. at 1190-91.

     Consol, Welch, Straface, and McLaughlin challenged the
orders and the matter proceeded to hearing before Judge
Barbour.  Id. at 1191.  At the hearing, the parties
settled three of the four orders issued to Consol,
leaving at issue only the order alleging a violation of
section 75.1101-23(a).  Id. at 1244-45.  In addition,
the Secretary moved to dismiss the section 110(c)
allegations against McLaughlin, and the judge granted
the motion.  Id. at 1238-39.

     As to the remaining orders, the judge concluded that
Consol had violated section 75.1101-23(a), that the
violation was not S&S, although it was caused by Consol's
unwarrantable failure, and that Welch and Straface were
individually liable for the violation.  Id. at 1229-37,
1239-44.  The judge based his S&S determination on his
finding that the Secretary had failed to prove that
there was a reasonable likelihood that the three
hazards contributed to by the violation, that is, fire
intensification, fire rekindling, and suffocation by
smoke and fumes, would result in injury.  Id. at 1233-
34.  The judge first reasoned that it was not
reasonably likely that the fire at the belt drive would
intensify if normal mining conditions had continued
because the fire was either out when the miners on the
16-M and 17-M sections had not been withdrawn or was
extinguished shortly thereafter.  Id. at 1233.  Second,
he explained that, even if the fire had rekindled up
the belt, it was not reasonably likely that the fire
would result in injury because there were heat sensors
and CO monitors along that belt that would have
detected the presence of another fire, and made its
rapid extinguishment likely.  Id.  Finally, the judge
concluded that, given the mine's ventilation system, it
was not reasonably likely that the smoke and fumes
would have gone to the face, suffocating miners.  Id.
at 1233-34.  Although he concluded that the violation
was not S&S, the judge determined that it was very
serious and assessed a civil penalty of $4,000, rather
than the penalty of $5,000 proposed by the Secretary.
Id. at 1238.

     The Secretary filed a petition for discretionary 
review, challenging the judge's S&S determination, which
the Commission granted.

**FOOTNOTES**

     [1]:   Commissioner  Beatty recused himself from this matter
and took no part in its consideration.

     [2]:  Section 75.1101-23(a) provides in part:

               Each operator  of  an  underground  coal
          mine   shall   adopt   a   program   for  the
          instruction of all miners in the location and
          use  of fire fighting equipment, location  of
          escapeways,  exits,  and  routes of travel to
          the surface, and proper evacuation procedures
          to be followed in the event of an emergency.

30 C.F.R. � 75.1101.23(a).

     [3]:  The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C.
� 814(d)(1), which distinguishes as more  serious  any  violation
that  "could  significantly  and substantially contribute to  the
cause and effect of a . . . mine safety or health hazard."

     [4]:  One block is equivalent  to  approximately  90  to 100
feet.  Tr. 176-77, 273.

     [5]:   A  box  check  is  a stopping containing doors and an
opening for the belt, which restricts air flow.  Tr. 36.

     [6]:  The exact duration of  the  fire  is disputed.  Ammons
estimated that the fire lasted for approximately  three  minutes.
Tr.  296;  see also Tr. 690, 840-41(Consol's witnesses' testimony
regarding the  brief  duration  of  the fire).  Inspector Shriver
testified that the CO monitor print-out  indicated that there had
been enough CO to activate the alarm from  11 to 17 minutes.  Tr.
375,  416-17.  Consol's expert, Donald Mitchell,  testified  that
the fire  was  of  a  short duration, lasting approximately three
minutes, and explained  that the high CO reading was a by-product
of the wetness of the wood,  belting  and coal in the area of the
fire, and the CO collecting at a point  in  the ceiling above the
belt  where  the  airflow was restricted and the  CO  sensor  was
located.  Tr. 961-62, 981-88, 1017-1019.

                               II.

                               Disposition

     The Secretary argues that the judge erred in finding 
that Consol's violation of section 75.1101-23(a) was not
S&S.  First, she contends that the judge failed to
apply the correct legal standard for determining
whether a violation is S&S.[7]  S. Br. at 9-13.
Specifically, the Secretary asserts that the judge
erred in relying upon his finding that the fire was
extinguished quickly, and that the correct question was
not whether the fire was in fact extinguished quickly
but, whether in all of the circumstances, it was
reasonably likely that it would be extinguished
quickly.  Id. at 11-13.  Second, the Secretary argues
that the judge erred by failing to address or
inadequately addressing material evidence that
established the violation as S&S, and erred by relying
upon evidence relating to the fire detection, fire
suppression, and ventilation systems which the court in
Buck Creek Coal Co. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995), determined was improper for consideration.
Id. at 13-19.  The Secretary requests that the
Commission vacate the judge's S&S determination and
remand for analysis of all relevant evidence under the
correct standard.  Id. at 19.

     Consol responds that the judge correctly determined
that the violation was not S&S.  C. Br. at 10.  It argues
that the judge was correct in considering the rapid
extinguishment of the fire because the failure to
evacuate after a brief fire did not pose the hazards
associated with active fires of greater duration and
intensity.  Id. at 13-14.  In addition, Consol contends
that the judge addressed all material evidence and that
the Secretary is, in effect, requesting that the
Commission reweigh the evidence.  Id. at 9, 20, 24.  It
asserts that Buck Creek is distinguishable from the
present case and that the judge did not err in
considering the existence of the safety measures in
place.  Id. at 15-16.  Accordingly, Consol requests
that the Commission affirm the judge's S&S
determination.  Id. at 24-25.

     In assessing the reasonable likelihood of injury to
miners who had not been evacuated from the mine, the judge
considered, among other things, the risk of harm posed
by the potential of the extinguished fire to rekindle a
new fire along the belt line.  The judge concluded that
there was no risk of injury because, even if burning
embers from the original fire had rekindled a fire
further up the belt line, the heat sensors and CO
monitors along that belt would have detected the
presence of another fire and made its rapid
extinguishment likely.  18 FMSHRC at 1233.


**FOOTNOTES**

     [7]:   In  her  petition   for   discretionary  review,  the
Secretary argues that when a violation  causes  conditions  which
have  the  potential  for  resulting  in catastrophic results for
miners, the Secretary's burden for establishing the likelihood of
injury should be substantially less.  PDR  at  10.  The Secretary
did not address this argument in her brief.  Accordingly, because
the Secretary abandoned the argument, we need not  reach it.  RNS
Servs., Inc., 18 FMSHRC 523, 526 n.6 (Apr. 1996).


     Assuming arguendo that a judge may properly consider
a mine's fire detection and fire suppression system as
factors mitigating the hazards associated with a mine
fire, the judge erred when he relied on the systems
here to discount the likelihood of harm from a
rekindling fire.  In reaching his conclusion the judge
ignored evidence that the heat sensor system, which
activates the fire suppression system and had been
damaged during the fire, had been turned off after the
fire and had not been turned on until the midnight
shift on March 16.  Tr. 68, 378-79, 507, 1010-12.  In
addition, the judge failed to address testimony that
the CO sensor at the regulator had been placed at an
incorrect location so that it would have failed to
detect any fire between the belt drive area and the
regulator inby the belt drive area.  Tr. 354, 356, 378,
434-35, 483.  The judge also failed to address evidence
that there had been a programming error with the CO
sensor located at the belt drive so that there may have
been no CO monitoring at the belt drive between March
15 and March 23.  Tr. 379-81, 387, 424-26, 432-33.

     In light of this evidence, it was unreasonable for
the judge to conclude that the presence of these systems
eliminated the risk of harm from a fire that might
rekindle up the belt line.  We therefore vacate the
judge's S&S determination and remand for the judge to
reconsider whether there was a reasonable likelihood
that the hazard of rekindling a fire would result in
injury.

     On remand, the judge shall set forth his findings on
the likelihood of rekindling occurring outby the belt
drive, where the belt had been damaged (Tr. 297, 746-
47, 868-69) and the direction in which the belt had
been moving (Tr. 59-61; Gov't Ex. 3, 5; 18 FMSHRC at
1193).  In addition, the judge shall not consider
evidence of Consol's fire detection and fire
suppression systems as factors mitigating the
hazard.[8]


**FOOTNOTES**

     [8]:   In light of our disposition of this issue,  we do not
address  the  Secretary's  argument that the court's decision  in
Buck  Creek,  52  F.3d  at  135,  precludes  a  judge  from  ever
considering   evidence   of  a  mine's   fire   detection,   fire
suppression,  and  ventilation   systems   in   making   an   S&S
determination.  S. Br. at 17-19.  Furthermore, as there was not a
majority of Commissioners who either agreed or disagreed with any
of  the  other  points  of  error raised by the Secretary in this
appeal, with one minor exception,  we do not address them.  As to
that exception, we conclude that the judge did not err in failing
to rely upon evidence of fires at other mines.


                               III.

                            Conclusion

     For the foregoing reasons, we vacate the judge's
determination that Consol's violation of section
75.1101-23(a) was not S&S and remand for further
consideration consistent with this decision.


                                   Mary Lu Jordan, Chairman
                                   
                                   Marc Lincoln Marks, Commissioner
                                   
                                   James C. Riley, Commissioner


Commissioner Verheggen, dissenting:

     I disagree with the result my colleagues reach.  Rather
than order a remand as they do, I would affirm as supported 
by substantial evidence the judge's determination that
Consol's violation of section 75.1101-23(a) was not S&S. 
I therefore dissent.

     1.   Rapid extinguishment of the fire

     I disagree with the Secretary's argument that the 
judge erred in relying upon his finding that the fire was
extinguished quickly in making his S&S determination.  See
S. Br. at 11-13; PDR at 12.  In Lion Mining, the Commission
held that "an S&S determination must be based on the
particular facts surrounding the violation."  18 FMSHRC 695,
699 (May 1996).  Here, the violation at issue was the
failure to evacuate miners in accordance with the mine's
evacuation plan after the belt entry fire had ignited and
been extinguished.  Rapid extinguishment of the fire was one
of the particular facts surrounding the violation that had
an important bearing on the likelihood that injury was
reasonably likely to result to miners remaining in the mine.

     2. Fire detection, fire suppression, and ventilation systems

     Citing the Buck Creek decision of the Seventh Circuit 
(52 F.3d at 135), and Commission cases following it, the
Secretary argues that the judge erred in relying upon the
presence of fire detection, fire suppression, and
ventilation systems as support for his conclusion that the
violation was not S&S.  S. Br. at 13-19.  I find Buck Creek
and its progeny distinguishable, however, because those
decisions involved accumulations where the focus is on
whether a confluence of factors exists to create an ignition
or explosion in the first instance.  See Buck Creek, 52 F.3d
at 134; Amax Coal Co., 18 FMSHRC 1355, 1359 n.8 (Aug. 1996);
Amax Coal Co., 19 FMSHRC 846, 849-50 (May 1997).  The focus
here, however, where an evacuation violation is at issue, is
on the reasonable likelihood of injury to miners who had not
been evacuated from the mine after an ignition had occurred
and been extinguished.  The mine's fire detection, fire
suppression, and ventilation systems are clearly relevant to
such a determination because they could affect whether a
secondary fire would be of a limited nature and readily
contained, and whether smoke and fumes would migrate to
miners remaining in the mine.

     3. Consideration of material evidence

     The Secretary also argues that the judge erred by failing
to address or by inadequately addressing material evidence that
she asserts proved that the violation was S&S.  S. Br. at
13-17.  Specifically, she points to evidence relating to
fires at other mines where miners had not been evacuated,
and the hazards of fire intensification, suffocation from
smoke and fumes, and fire rekindling.  Id.  I begin by
noting that "[i]t would be inappropriate for the Commission
to reweigh the evidence in [any] case or to enter de novo
findings based on an independent evaluation of the record."
Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993).  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).  In
this case, I find that, in general, the judge properly
weighed the evidence, and that, more importantly, his S&S
determination is amply supported by the record.

     I agree with my colleagues "that the judge did not err
in failing to rely upon evidence of fires at other mines."
Slip op. at 6 n.8.  Contrary to the Secretary's assertions,
the judge considered evidence regarding fires at other mines
where miners had not been evacuated.  See 18 FMSHRC at 1196,
1210-11.  Nor did he err in declining to give this evidence
any weight when making his S&S determination because the
Secretary failed to demonstrate the similarity in
circumstances between those fires and the fire here.  For
instance, MSHA Inspector Raymond Strahin testified that
during the fire at the Marianna Mine, the fire suppression
devices were not operational and the fire burned out of
control.  Tr. 50-51, 89-90.  In contrast, here there can be
no dispute that the fire never approached being out of
control.  See Tr. 981-82 (testimony of Donald Mitchell,
Consol's expert, that here, "there was hardly any fire," and
what fire there was was of short duration and low
intensity).  The fire at the Blacksville One mine also
differed markedly from the fire at issue here.  The
Blacksville One fire ignited in a track entry, rather than a
belt entry, which would have affected the manner in which
smoke migrated to areas where miners remained.  Tr. 53-55,
95; see C. Br. at 19 n.6.

     I also find that the judge did not err by failing to
address the Secretary's evidence regarding the possibility
of the fire intensifying.  Such evidence regarding the
potential nature of the fire was irrelevant to the judge's
determination in view of his finding that "[t]he fire either
was out when the miners on the 16-M and 17-M [sections] were
not withdrawn or was extinguished shortly thereafter."  18
FMSHRC at 1233.  Nor do I find in error the manner in which
the judge addressed evidence regarding the effect of the
mine's ventilation on the smoke and fumes resulting from the
fire.  Contrary to the Secretary's assertions, the judge
made direct reference to MSHA Supervisory Engineer Harry
Verakis' testimony that smoke and gases could have leaked
into adjacent entries.  Id. at 1212-13.  The judge
specifically discredited such testimony, however, and
credited the testimony of Inspector McDorman and Consol's
expert, Donald Mitchell, that the ventilation system would
have carried smoke and toxic fumes away from the section and
out the return.  Id. at 1234.  In addition, although the
judge did not directly refer to MSHA Supervisory Engineer
Verakis' testimony that, given the velocity of air at the
belt transfer point, the fire in this case had the potential
to reverse airflow, allowing smoke to roll back against the
flow of ventilation (S. Br. at 15), the judge indirectly
referred to such testimony and rejected it in view of
Mitchell's contrary testimony that smoke would not have
reversed and moved from the belt entry to the face barring a
fire of major intensity lasting up to 10 hours.  18 FMSHRC
at 1234; Tr. 971-73.  The Secretary has provided no basis
for overturning the judge's credibility determination.  See
Metric Constructors, Inc., 6 FMSHRC 226, 232 (Feb. 1984)
(when judge's finding rests on credibility determination,
Commission will not substitute its judgment for that of
judge absent clear indication of error), aff'd, 766 F.2d 469
(11th Cir. 1985).

     My colleagues direct the judge "to reconsider whether there
was a reasonable likelihood that the hazard of rekindling a
fire would result in injury," and to make findings on the
likelihood of rekindling occurring outby the belt drive.
Slip op. at 6.  I have reviewed the record, however, and
find that the Secretary failed to establish either that the
fire rekindled or that there was any likelihood of the fire
rekindling.  She did not, for instance, establish the
existence of any combination of combustible materials and
incendiary materials left from the fire (i.e., an ignition
source).  Indeed, there is no evidence in the record that
any incendiary materials were present in the general
vicinity of where the fire occurred after it had been
extinguished.  Moreover, the belt shut down soon after the
fire started (18 FMSHRC at 1204; Tr. 138, 272), and there is
no evidence that any incendiary materials were transported
out by the area of the fire before the belt stopped.

     Even had the fire rekindled, I find no evidence in 
the record that any persons were outside the area where
firefighting took place who could have been endangered.  In
light of the judge's findings with respect to the mine's
ventilation, only persons in entries ventilated with return
air outby the area of the fire would have been endangered by
rekindling, yet the Secretary introduced no evidence that
any miners were in such areas.

     I agree with my colleagues that the judge erred by basing
his finding regarding rekindling solely on the presence of
heat sensors and CO monitors.  See 18 FMSHRC at 1233; slip
op. at 6.  This finding is clearly erroneous since the
record indicates that neither the heat sensor system nor any
CO monitors would have detected rekindling.[1]  Slip op. at
6.  I find the judge's error harmless, however, in light of
the Secretary's failure to adduce any evidence, as noted
above, that rekindling could have occurred in the first
instance.

     Accordingly, I would affirm the judge's finding that
Consol's violation of the cited standard was not S&S, and
thus dissent from my colleagues' remand order.


                              Theodore F. Verheggen, Commissioner

Distribution

Robin Rosenbluth, Esq.
Office of the Solicitor 
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Stephen D. Williams, Esq.
Steptoe and Johnson
P.O. Box 2190
Clarksburg, WV  26302

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


**FOOTNOTES**

     [1]:   The record is unclear, however,  as  to  whether  the
mine's fire suppression  system  was  also  inoperable  after the
initial  fire.   See  Tr.  1011  (describing the mine's sprinkler
system as controlled by a type of  "sensor that is not too unlike
a thermo-tech sensor except it is a  far  more  rapid  responding
device");  Tr.  280  (Ammon's  testimony  that  he  replaced fire
sensors  on  sprinklers  after  the  fire);  Tr.  400,  408  (the
sprinkler system was fully operational two days after the fire).