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

 
UNITED STATES STEEL MINING COMPANY, INC.
June 20, 1996
WEVA 92-783


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            June 20, 1996

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
              v.                 :    Docket No. WEVA 92-783
                                 :
UNITED STATES STEEL MINING       :
  COMPANY, INC.                  :


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


                               DECISION

BY:  Jordan, Chairman; Holen and Riley, Commissioners

     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" or "Act"), is before the  Commission for the third time and raises
the question of whether a violation by United States Steel Mining
Company ("U.S. Steel") of a trolley wire transportation safeguard
issued under 30 C.F.R. � 75.1403[2] was significant and substantial
("S&S").[3]  In the decision now before us, Administrative Law Judge
William Fauver concluded that the violation was S&S.  16 FMSHRC 1189
(May 1994) (ALJ).  The Commission granted U.S. Steel's petition for
discretionary review, which challenges the judge' s S &S determination.
For the reasons that follow, we affirm the judge's decision.

                                  I.

                  Factual and Procedural Background

     The facts of this case are fully set forth in the Commission's
first decision in this matter, 15 FMSHRC 2445 (December 1993), and
are summarized here.  Id. at 2445-46. On May 23, 1989, James Bowman,
an inspector with the Department of Labor's Mine Safety and Health
Administration ("MSHA"), issued U.S. Steel a safeguard notice at its
Gary No. 50 Mine, an underground coal mine in Wyoming County, West
Virginia.  Id.  The notice required that, to prevent de-energizing of
track equipment, all trolley wire be installed without excessive kinks,
bends, and twists.  Id. at 2446.  It also required that the trolley wire
be installed within a gauge where anti-swing devices could be used on
all equipment.  Id.  On February 4, 1992, MSHA Inspector Gerald Cook[4]
inspected the 5K track entry in a track-mounted jeep.  Id.  The trolley
pole disengaged and  caused the jeep to lose power 15 times.  Id.  Cook
determined that the causes of the trolley pole disconnections were kinks
in the wire and a wide gauge between the track and wire.  Id.  Inspector
Cook issued U.S. Steel a citation for violation of the safeguard and
designated the violation S&S.  Id.; Gov't Ex. 1.  U.S. Steel contested
the violation and proposed civil penalty. 15 FMSHRC at 2446.

     The judge rejected U.S. Steel's contention that the safeguard
was invalid and found that the cited conditions violated the safeguard.
15 FMSHRC 452, 457 (March 1993) (ALJ).  In concluding that the violation
was S&S, the judge stated that the test was "whether the violation presents
a substantial possibility of resulting in injury or disease . . . ."  Id.
at 456 (emphasis in original).  The Commission granted U.S. Steel's petition
for discretionary review, which challenged the judge's determinations that
the safeguard was valid and that the violation was S&S.

     The Commission affirmed the judge's ruling that the safeguard
was valid and that U.S. Steel violated it.  15 FMSHRC at 2447-48.  The
Commission concluded, however, that the judge erred in his S&S analysis
by applying a "substantial possibility" test.  Id. at 2448.  The Commission
remanded the case for proper application of the third element of the S&S
test set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), whether
there was a reasonable likelihood that the hazard contributed to would
result in an injury.   15 FMSHRC at 2448  (emphasis added).

     On remand, the judge determined that "reasonable likelihood," as
used in the third element of the Mathies test, does not mean proof that
an injury was "more probable than not."

16 FMSHRC 829, 831-32 (April 1994) (ALJ).  He certified this ruling
for review by the Commission.  Id. at 832-33.  The Commission denied
review and directed the judge to issue a final disposition pursuant to
its remand instructions.  16 FMSHRC 1043, 1044 (May 1994).

     In the decision on review, the judge rejected U.S. Steel's view
that "reasonable likelihood" means "more probable than not."  16 FMSHRC
at 1190.  He concluded that an S&S violation is not to be defined "in
terms of a percentage of probability."  Id. at 1190-91(citation omitted).
The judge concluded that violation of the safeguard was S&S, concluding
that the reliable evidence supported Inspector Cook's testimony that,
taken as a whole, the hazards presented by the violation made it reasonably
likely that serious injuries would result.  Id. at 1193.

                                 II.

                             Disposition

     U.S. Steel argues that, to satisfy the third Mathies element,
the Secretary must prove that it was "more probable . . . than not"
that the hazard contributed to by the violation will result in an injury.
PDR at 5.  U.S. Steel also argues that substantial evidence does not
support the judge' s S &S determination.  Id.  In its view, the
disconnection of a pole from the trolley wire does not contribute to a
"discrete safety hazard,"[5] and it was not reasonably likely that the
cited condition could result in an injury.  Id. at 5-6.

     The Secretary argues that the judge applied the "reasonable
likelihood" element of  Mathies and properly concluded the violation
was S&S.  S. Br. at 6-12.  He emphasizes that the Commission has never
held that "reasonable likelihood" requires a showing that it is "more
probable than not" that injury or illness will occur.  Id. at 7.  He
contends that such a construction is inconsistent with the Mine Act, its
legislative history, and Commission case law.  Id. at 7-12.  The Secretary
also argues that substantial evidence supports the judge's determination
that the violation was S&S.  Id. at 12-13.

     Under the Commission's test, 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. Cement Div., Nat'l Gypsum Co., 3

FMSHRC 822, 825-26 (April 1981).  In Mathies, 6 FMSHRC at 3-4, 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.

See also 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, 103-04 (5th Cir. 1988) (approving Mathies criteria).  An
evaluation of the reasonable likelihood of injury should be made
assuming continued normal mining operations.  U.S. Steel Mining
Co., 7 FMSHRC 1125, 1130 (August 1985).  The Secretary bears the
burden of proving that a violation is S&S.  See, e.g., Peabody
Coal Co., 17 FMSHRC 26, 28 (January 1995), citing Union Oil Co.
of Cal., 11 FMSHRC 289, 298-99 (March 1989).

         A.  Whether the Judge' s S &S Analysis Was Erroneous

     We agree with the judge that the third element of the Mathies
test does not require the Secretary to prove it was "more probable
than not" an injury would result.  See 16 FMSHRC at 1190-93.  The
legislative history of the Mine Act indicates Congress did not intend
that the most serious threat to miner health and safety, an imminent
danger, be defined in terms of "a percentage of probability."  S. Rep.
No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 626 (1978).  We do not find error in the judge's conclusion that, because
an S&S violation under the Mine Act is less serious than an imminent danger,
it is also not to be defined in terms of percentage of probability.  16
FMSHRC at 1191. Furthermore, Commission precedent has not equated "reasonable
likelihood" with probability greater than 50 percent.  A "more probable
than not" standard would require the Secretary, in order to prove a violation
is S&S, to prove it is likelier than not that the hazard at issue will result
in a reasonably serious injury.  We reject such a requirement.

     U.S. Steel relies on a judge's decision in Texasgulf, Inc., 9 FMSHRC
748, 759-61, 763 (April 1987) (ALJ), to the effect that "reasonably likely"
must be regarded as synonymous with "probable."  PDR at 5.  Although the
Commission affirmed the judges's determination that the violation was not
S&S, it did not endorse the judge's probability analysis.  Texasgulf, Inc.,
10 FMSHRC 498, 500-04 (April 1988).  The Commission specifically declined
to revisit the S&S test, as set forth in Nat'l Gypsum and Mathies.  Id.
at 500 n.4. 

     Accordingly, we conclude that the judge did not err when he found
that the term "reasonable likelihood" does not mean "more probable than
not."  16 FMSHRC at 1193.

B.  Whether Substantial Evidence Supports the Judge' s S &S Conclusion

     We conclude substantial evidence supports the judge's determination
that the violation was S&S.[6]  Inspector Cook cited 15 hazardous
locations.  Gov't Ex. 1.  The area in which the violation occurred was
lower in height than other areas of the mine and was uneven, with grades
and swags, increasing the likelihood of injuries resulting from a
disconnected trolley pole. 16 FMSHRC at 1193.  When a trolley pole
disengages, the vehicle is deenergized, resulting in an immediate loss
of lights, communication, and electrically powered brakes.  Id.  Much
of U.S. Steel's equipment has electrically powered brakes.  Tr. 15.
Although the operator represents that its vehicles have a hydraulic
brake backup system (PDR at 5), Inspector Cook testified that he had
never seen a jeep with hydraulic brakes stop after the trolley pole
disengaged.  Tr. 102-03. Inspector Bowman similarly testified that he
had issued many citations for failing hydraulic braking systems.  Tr.
122.  Further, a vehicle that lost its lights at a dip in the track
would not be seen by drivers of other vehicles. 16 FMSHRC at 1193.  A
vehicle without communication would be unable to report its location
to the dispatcher or request assistance.  See Tr. 127; PDR   at  5.

     In addition, disengaged trolley poles can dislodge or strike
rocks in the roof.  16 FMSHRC at 1193.  The rocks may strike miners
or cause sparks that could ignite methane.  Id.  See also Tr. 15,
58-59, 102.  Inspector Bowman testified that this mine liberated
approximately two million cubic feet of methane in a 24-hour period.
Tr. 16.  Moreover, the record indicates that disconnected trolley
poles, even with anti-swing devices, are capable of causing injury,
including breaking an arm, if a miner reaches out for the pole.
Tr. 112, 119; see also Tr. 15.

     We are unpersuaded by U.S. Steel's argument that an injury-
producing event is not reasonably likely because the vehicle is
deenergized for only 15 to 20 seconds until the operator replaces the
pole.  PDR at 5; Tr. 125.  Taken together, the loss of brakes, lights,
and communication for even 15 to 20 seconds support the judge's conclusion
that an injury was reasonably likely to occur.  We reject U.S. Steel's
argument that the violation was not S&S because Cook completed his
journey through the mine without taking action to eliminate the hazard.
PDR at 6.  Immediate abatement of a violation is only required when the
condition observed results in a withdrawal order.  Citations, on the
other hand, even those designated S&S, "fix a reasonable time for the
abatement of the violation." 30 U.S.C. � 814(a).  We also reject U.S.
Steel's contention that the Secretary failed to prove the violation was
S&S because he offered no evidence that anyone has ever been injured by
a pole equipped with an anti-swing device disengaging from a trolley wire.
PDR at 6.  The fact that injury has been avoided in the past or in
connection with a particular violation may be "fortunate, but not
determinative."  Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986).

                                 III.

                              Conclusion

     The judge did not err in applying the "reasonable likelihood"
test set forth in the third element of Mathies, and substantial evidence
in the record supports the judge's conclusion that the violation was
S&S.  Accordingly, we affirm the judge's determination that U.S. Steel's
violation was S&S.


                               Mary Lu Jordan, Chairman

                               Arlene Holen, Commissioner

                               James C. Riley, Commissioner


**FOOTNOTES**

     [1]:  Commissioner Doyle participated in the consideration
of this matter but resigned from the Commission before its final
disposition.

     [2]:  Section 75.1403, entitled "Other safeguards,"
provides:

          Other safeguards adequate, in the
     judgment of an authorized representative of
     the Secretary, to minimize hazards with
     respect to transportation of men and
     materials shall be provided.

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

     [4]:  Inspector Gerald Cook is incorrectly identified in
the transcript and by the judge as Earl Cook.  Compare Tr. 51-
52; 15 FMSHRC 452, 453 (March 1993) (ALJ); PDR at 2 (erroneous
references to Earl Cook) with Gov't Ex. 1 (citation signed by
Gerald Cook); S. Br. at 3 n.2 (noting erroneous references).
Earl Cook was the U.S. Steel official to whom Inspector Bowman
issued the notice to provide safeguard.  Tr. 22; Gov't Ex. 3.

     [5]:  U.S. Steel thus also argues that the violation is not
S&S because the Secretary failed to prove the second element of
the Mathies test, i.e., whether there was a safety hazard
contributed to by the violation.  Review of the second Mathies
element, however, is not before the Commission.  U.S. Steel did
not raise the second Mathies element in its first petition for
review in this matter and the Commission remanded the proceeding
to the judge only for proper application of the third element,
15 FMSHRC at 2448.  The judge's jurisdiction was therefore
limited to that issue.  See Ronny Boswell v. National Cement
Co., 15 FMSHRC 935, 937 (June 1993).

     [6]:  The Commission is bound by the substantial evidence
test when reviewing an administrative law judge's factual
determinations.  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 (November
1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938).  While we do not lightly overturn a judge's factual
findings and credibility resolutions, neither are we bound to
affirm such determinations if only slight or dubious evidence is
present to support them.  See, e.g., Krispy Kreme Doughnut Corp.
v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock
Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).  We
are guided by the settled principle that, in reviewing the whole
record, an appellate tribunal must also consider anything in the
record that "fairly detracts" from the weight of the evidence
that supports a challenged finding.  Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951).



Commissioner Marks, concurring in result:

     My colleagues have concluded that the violation in issue was
"significant and substantial," ("S&S").  I agree and concur in that
result.  However, I vigorously disagree with the majority's refusal
to consider the core issue, i.e., that there is a compelling need to
provide a clear, unambiguous interpretation of the statutory term
"significant and substantial."

     In reaching their conclusion, the majority has applied the
so-called "Mathies test," which is an amplification of the Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822 (April 1981) decision, wherein
the Commission enunciated its interpretation of S&S.  After careful
consideration of this matter I have concluded that the Commission
majority in both Nat'l Gypsum and Mathies Coal Co., 6 FMSHRC 1
(January 1984) erred, and that the time for re-examination of this
vital issue is long overdue.

     The procedural history of this U.S. Steel case is, in many
ways, illustrative and indicative of the chronic enforcement and
adjudicative quagmire that has been spawned  since the ill conceived
Nat'l Gypsum decision was issued. The violation in this case was
issued on February 4, 1992. Since that time, the case has been before
the judge and Commission three times!  In each instance the issue
related to the third element of the Mathies test which requires the
Secretary to prove that "a reasonable likelihood that the hazard
contributed to will result in an injury."  Mathies, 6 FMSHRC at 3-4.

     Because that phrase is manifestly ambiguous, and because U.S.
Steel argued for a different interpretation, the judge attempted to
set forth a clarifying interpretation of both the statutory language
and the Commission's decisions by posing "a practical and realistic
question, whether the violation presents a substantial possibility of
resulting in injury or disease, not a requirement that the Secretary
of Labor prove that it is more probable than not that injury or disease
will result." 15 FMSHRC 452, 456 (March 1993) (ALJ) (emphasis in
original) (citations omitted). U.S. Steel objected and filed a petition
for discretionary review, which was granted.  The Secretary, however,
considered the judge's formulation to be an attempt "to use more
familiar language that reflected the Commission's practical application
of the test."  S. Br. at 18.

     Clinging to the shopworn status quo, and apparently without
revisiting the merits of the underlying problem, i.e., that the
third Mathies element is seriously deficient, the Commission responded
by concluding that the judge erred, and by instructing him to apply
the "reasonable likelihood" Mathies standard.  15 FMSHRC 2445, 2448
(December 1993).

     On remand the judge determined that the parties continued to
be sharply divided in their interpretations of the third Mathies
element and that "[T]he Commission has not resolved this issue."
16 FMSHRC 829, 830 (April 1994) (ALJ).  He went further:

          The parties' conflict is understandable because the term
     `reasonable likelihood' may convey different meanings.  To
     U.S. Steel, the word `likelihood' governs, and the term
     `reasonable likelihood' means `more probable than not.'  To
     the Secretary, the word `reasonable' modifies `likelihood'
     to mean a reasonable potential, not `more probable than
     not.'

Id.  The judge then proceeded to analyze that issue and concluded
that "the term `reasonable likelihood' as used in the Mathies test
does not mean `more probable than not.'" Id. at 832.  Recognizing 
the importance of that ruling, the judge then took the unusual step
of certifying his ruling to the Commission for interlocutory review.
Id. at 832-33.

     Regrettably, the Commission declined yet another opportunity
to consider this important issue.  The Commission refused to grant
the review,[1] and directed the judge "to issue a final disposition,
on the existing record, pursuant to the Commission's previous remand
instructions."  16 FMSHRC 1043, 1044 (May 1994).

     On remand, the judge quickly complied, reiterating his previous
conclusions rejecting the  "more probable than not" formulation urged
by U.S. Steel and also concluding that the record supported the issuing
inspector's conclusion that "the hazards presented by this violation
made it reasonably likely that serious injuries would result."
16 FMSHRC 1189, 1193 (May 1994) (ALJ).

     Once again U.S. Steel sought discretionary review seeking a
ruling clarifying the meaning of the Commission's third Mathies
element.  U.S. Steel's arguments squarely raise the issue: what does
reasonable likelihood mean?  They urge a "more probable than not"
meaning.  PDR at 4-5.  The Secretary defends the judge's rejection
of the U.S. Steel argument. S. Br. at 6-7. Thus, the Commission is
again presented with the opportunity to better explain, and more
clearly interpret, the statutory term of "significant and substantial."
Unfortunately, my colleagues have opted not to confront the obvious,
which is, that the words used in the third Mathies element are not
serving our nation's miners, the regulated, or the regulators very
well.  The majority has chosen to narrowly dispose of the controversy
in this case and to pass on this opportunity to provide clear direction
to all potential litigants as well as to the Commission's judges who
have grappled with this issue since the Commission issued its two
decisions.

     Accordingly, I find it necessary to disassociate myself from
such a resolution.  In the past year-and-one-half, the Commission
has reviewed several cases that raised the very same  question:

     what  does reasonable likelihood mean?  Moreover, since
     Mathies issuance in 1984, approximately 47 Commission
     decisions involving S&S have been issued.[2]  Of those 47
     decisions, over  93% of the cases related to the third
     Mathies element.  It must be emphasized that this high
     level of litigation has resulted, not from confusion
     regarding the meaning of the statutory terms, but from the
     confusion created by the Commission's own terms which
     purport to set forth a framework for the uniform
     enforcement and adjudication of S&S violations.
     Notwithstanding the foregoing, in the twelve years that
     have passed since the issuance of Mathies, the Commission
     has responded by merely clutching to the same ineffective
     words.  That "strategy" has failed.  As such, I believe the
     reasonable and appropriate Commission response to this
     compelling indication of widespread confusion and
     uncertainty, is to end the pretense that no problem exists
     -- confront the problem and find language that interprets
     S&S in a clear, unambiguous way.

     To that end I continue to believe that the wisest course of
action would have been to defer decision in this case, and to have
invited the litigants, as well as industry and union intervenors to
fully brief and orally argue this vital issue with a view toward
crafting a clear interpretation of S&S.  Unfortunately, my colleagues
did not support that approach.  However, because the parties in this
action continue to dispute the meaning of the third Mathies element,
I render my present view on this issue. Notwithstanding the following,
however, I remain ready and willing to consider the differing views of
the aforementioned parties because I believe the S&S analysis can only
benefit from such varied input.

     As I indicted above, I have concluded that the Commission's
present interpretation of the statutory term "significant and
substantial" is wrong.  My conclusion is based on several factors,
not the least of which is the Mine Act itself and the compelling
legislative history.  Also of great assistance is the incisive and
prescient dissent of Commissioner A.E. Lawson in the Nat'l Gypsum case.

     Everyone agrees that the Act does not define the term "significant
and substantial."  Nor does the Act contain language that sets
limitations on the breadth of the violations that are to be considered
S&S, beyond the fact that Congress expressly stated that S&S violations
do not include conditions that have been determined by the Secretary
to constitute an imminent danger. 30 U.S.C. � 814(d)(1).  Also of
significance is the fact that the Act does not contain the disputed
language found in the Commission's third and forth Mathies test, that
requires the Secretary to prove that the violation in issue poses a
reasonable likelihood of serious injury.  That is a burden that the
Congress expressly rejected!

     Absent a determination that the meaning of S&S is clear on its
face, a determination I am unwilling to make, the primary basis for
determining Congressional intent includes an examination of the
legislative history.  In this case the evidence of that intent is
clear and convincing.  The S&S language in the Mine Act was taken
directly from section 104(c)(1) of the predecessor Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. � 801 et seq. (1976), which
had been the subject of important litigation before the Department of
the Interior's Board of Mine Operations Appeals ("Board").  That
litigation was expressly discussed in the Senate Committee Report
accompanying the Mine Act.  Thus, the intended meaning of S&S in the
Mine Act is readily available and precisely set forth:

          The Interior Board of Mine Operations Appeals has
     until recently taken an unnecessarily and improperly
     strict view of the `gravity test' and has required
     that the violation be so serious so as to very closely
     approach a situation of `imminent danger.'  Eastern
     Associated Coal Corporation, 3 IBMA 331 (1974).

     The Committee notes with approval that the Board of Mine
Operations Appeals has reinterpreted the `significant and substantial'
language in Alabama By- Products Corp., 7 IBMA 85, and ruled that only
notices for purely technical violations could not be issued under
Sec. 104(c)(1).  The Board there held that `an inspector need not find
a risk of serious bodily harm, let alone death' in order to issue a
notice under Section 104(c)(1).  The Board's holding in Alabama by-
Products Corporation is consistent with the Committee's intention that
the unwarranted failure citation is appropriately used for all violations,
whether or not they create a hazard which poses a danger to miners as
long as they are not of a purely technical nature.  The Committee assumes,
however, that when `technical' violations do pose a health or safety
danger to miners, and are the result of an `unwarranted failure' the
unwarranted failure notice will be issued.

S. Rep. No.181, 95th Cong., 1st Sess. 31 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 619 (1978) ("Legis. Hist.").

     In the referenced, overruled Eastern Associated Coal case, the
Board had concluded that violations designated S&S had to pose a
"probable risk of serious bodily harm or death."  3 IBMA at 334.
Subsequently, the Board reversed itself and concluded that the S&S
terms:

     when applied with due regard to their literal
     meanings, appear to bar issuance of notices under
     section 104(c)(1) in two categories of violations,
     namely, violations posing no risk of injury at all,
     that is to say, purely technical violations, and
     violations posing a source of any injury which has
     only a remote or speculative chance of coming to
     fruition.  A corollary of this proposition is that a
     notice of violation may be issued under section
     104(c)(1) without regard for the seriousness or
     gravity of the injury likely to result from the hazard
     posed by the violation, that is, an inspector need not
     find a risk of serious bodily harm, let alone of
     death.

Alabama By-Products, 7 IBMA at 94.  As indicated, that holding
was cited with approval in the Senate Committee Report.  Legis.
Hist. at 619.  The Alabama By-Products decision also contained
a separate opinion by Administrative Judge Howard J. Schellenberg,
Jr. wherein he concurred in result by expressly joining his colleagues
in concluding that the Board's prior interpretation of section 104(c),
as stated in Eastern Associated Coal, "was in error." 7 IBMA at 97.
He then indicated "I would have preferred to adopt as a guideline,
. . . that the pertinent phrase be interpreted to mean, `a reasonable
risk of danger to the safety or health of the miners.'"  Id.  His
comment is important, because it draws a bright line on what Alabama
By-Products did not hold!

     Thus, in citing with approval the Board's Alabama By-Products
holding, the task of determining Congressional intent regarding the
meaning of S&S became rather straightforward.  It clearly did not mean,
as urged by Judge Schellenberg, "a reasonable risk of danger to the
safety or health of the miners."  7 IBMA at 97.  Yet that is essentially
the formulation ultimately adopted by the majority in Nat'l Gypsum!

     Apart from the Commission's failure or refusal to follow
clear legislative direction, the Nat'l Gypsum interpretation of
S&S is based on misguided concerns that were, and continue to
be, unfounded.  The majority expressed its serious concern that
maintaining the Alabama By-Products interpretation of S&S, as
urged by the Secretary, would result in almost all violations
being charged as S&S.  Nat'l Gypsum, 3 FMSHRC at 825. Commissioner
Lawson dashed that concern by citing oral argument concessions
that indicated that only 62% of all coal mine violations cited
prior to consideration of the Nat'l Gypsum case were characterized
as S&S.  Id. at 835 (Lawson, A., dissenting).  During that time
period the Alabama By-Products S&S rule of construction was in
effect!

     The Nat'l Gypsum majority also expressed grave concern that
by maintaining the  Alabama By-Products S&S construction, future
enforcement under section 104(e) of the Mine Act, 30 U.S.C. �814(e),
would result in "continual shutdown" of the mines.  Id. at 826-27.
Commissioner Lawson exposed the hollowness of that concern by quoting
the Secretary's position regarding the "pattern" violation authority
under section 104(e):

     The Secretary hasn't issued a notice yet.  The
     Secretary hasn't issued a withdrawal order based on a
     notice of pattern yet.  We haven't got a case that
     presents that yet and I don't believe the Commission
     should engage in this unwarranted speculation that the
     National Gypsum invites you to do, that we will not be
     able to effectively administer the Act if this
     definition of significant and substantial is adopted.

Id. at 837 (Lawson, A., dissenting) (citations omitted).  Those words
were uttered approximately 16 years ago.  However,  they are no less
accurate today, as I am unaware of any section 104(e) enforcement, and
certainly have not seen any cases seeking review of a section 104(e)
violation.  But more to the point, is Commissioner Lawson's reaction
to the majority's unfounded apprehension that an  adverse effect upon
section 104(e) enforcement would result from a continuation of the
Alabama By-Products interpretation of S&S:

          What this demonstrates about the enforcement of
     section 104(e) of the Act may well raise one's
     eyebrows, but it can hardly be maintained, given this
     record, that any operator has reason to fear a 104(e)
     based closure of its mine.  The adoption of all-
     encompassing rules to be applied to cases not yet--
     perhaps never--to be before us is both judicially
     premature and the unwise rendering of a judgment in a
     vacuum, before any experience or factual context
     exists within which to make such a decision.  We
     should not promulgate rules for deciding non-existent
     cases which are not now and may never be before us.

Id. at 838 (Lawson, A., dissenting).

     Indeed, 15 years after those words were written, they continue
to have vitality.  That demonstration of solid judgment and impressive
20/20 forward vision, is only surpassed by Commissioner Lawson's
caution to the majority regarding the effects of their newly minted
interpretation of S&S:

     As a foundation for meaningful analysis, I can discern
     no improvement which will result from this alteration
     of the existing procedure, and no benefit accruing to
     either the inspector, the miner, or the mine operator.
     Unless the production of litigation is our goal, I
     confess that I can ascertain no purpose to this
     redefinition.

Id. at 839-40 (Lawson, A., dissenting).

       I am in total agreement with that insightful statement!

     The Commission's Nat'l Gypsum/ Mathies interpretation of S&S has
neither clarified nor facilitated a uniform application of S&S.  To
the contrary, the present ambiguity only serves to fuel a constant
stream of unnecessary litigation that results in a diminished level
of Congressionally mandated protection to our nation's miners and puts
an unacceptable financial strain on operators and the government.  The
recently decided Power Operating Co., 18 FMSHRC 303 (March 1996),
presents a vivid demonstration.

     In that case, the Secretary cited Power Operating Company ("Power")
for a violation of 30 C.F.R. � 77.1710(a) (1995)[3] and charged S&S.
18 FMSHRC at 304.  The Department of Labor's Mine Safety and Health
Administration ("MSHA") inspector observed a miner steam cleaning a rock
truck with a device (steam jenny) that delivers water under high pressure.
Id.  The miner was not wearing goggles, and his face was splattered with
black material that the inspector believed to be dirt and grease.  Id.
Power did not dispute the foregoing, but challenged the S&S charge.  Id.
The judge concluded the violation was not S&S. 16 FMSHRC 591, 607 (March
1994) (ALJ). Although he determined that an injury to the eye was reasonably
likely to occur, he concluded that "the record does not establish any
evidence regarding the level of severity of an injury occasioned by contact
of the materials with an eye. Id. The Secretary appealed and the Commission
ruled that the judge erred in failing to conclude that the injury to the eye
was reasonably likely to be serious. 18 FMSHRC at 306. The Commission
majority (myself included) relied upon testimony of the inspector, that had
not been considered by the judge, which set forth the inspector's opinion
as to the seriousness of the likely injury. Id. at 306-07. Although I had
no difficulty concluding that the facts of that case clearly established
a S&S violation, I do not believe that Congress ever intended or expected
that inspectors, judges or Commissioners possess medical skills and knowledge
sufficient to make such fine distinctiburdenoftheSecretary.[4]  In my opinion
that issue should never have been litigated -- it was not even a close call.
However, because the existing interpretation of S&S provides room for the
fly-specking myopia noted below, operators have effectively been encouraged
to do so.

     Interestingly, this precise problem was also anticipated by
Commissioner Lawson.[5]

     Enough is enough!  Fairness dictates that we in the Commission
better serve the interests of miners, mine operators and the Secretary
of Labor.  Therefore, I conclude that the interpretation of S&S, as
understood and applied prior to the Nat'l Gypsum decision, should be
restored.  It was a faithful implementation of clear Congressional
intent.[6]


                                   _______________________________
                                   Marc Lincoln Marks, Commissioner


**FOOTNOTES**

     [1]:  Although the Secretary opposed interlocutory review
on procedural grounds, he explicitly stated that he "agrees with
the judge that the legal issue presented is an important one."
S. Opp'n at 3.

     [2]:  Additionally, the number of S&S related petitions for
discretionary review filed during this time period, but denied,
is unknown because no record of denied petitions is maintained.

     [3]:  Section 77.1710(a) states:

          Protective clothing or equipment and face-shields
     or goggles shall be worn when welding, cutting, or
     working with molten metal or when other hazards to the
     eyes exist.

     [4]:   That all eye injuries are not ipso facto serious
is evidenced by the Secretary's own regulations for the reporting
of accidents, injuries, and illnesses set forth at 30 C.F.R.,
Part 50. Sections 50.20-3(a)(5)(i)&(ii) set forth the criteria
for differentiating, for purposes of eye injuries, between
first aid and medical treatment. First aid encompasses irrigation
of the eye, removal of foreign material not imbedded in the
eye, and the use of non-prescription eye medications.  30 C.F.R.
� 50.20-3(a)(5)(i). Medical treatment encompasses removal of
imbedded foreign objects, use of prescription medications, and
other professional treatment.  30 C.F.R. � 50.20-3 (a)(5)(ii).
First aid is characterized as `one-time treatment, and any
follow-up visit for observational purposes, of a minor injury'
(emphasis added).  30 C.F.R. �50.2(g).  It appears that the
potential injury here could well fall into the category of eye
injury characterized by the Secretary as minor (one requiring
only first aid) and which need not even be reported to MSHA
on its Mine Accident, Injury, and Illness Report Form 7000-1.
30 C.F.R. �� 50.2, 50.20.  Thus, I disagree with my colleagues
that the only possible conclusion is that forcibly propelled
`dirt, grease or hot water striking the eye is reasonably likely
to cause reasonably serious trauma.'  Slip op. at 4.

Power Operating, 18 FMSHRC at 308 (Doyle, J., dissenting).

     [5]:   The majority's tampering will add to the statute
words of limitation which will require every mine inspector
to make judgments, not only as to the `likelihood' of the
effects of the hazard, and the `reasonable[ness]' of that
`likelihood' but will as well demand medical predictions to
be made as to whether a hazard will result in an injury or
illness of a `reasonably serious' nature.  Must the inspector
henceforth determine, not only whether the roof is safe or
unsafe, but whether the unconscious miner who is the victim
of a roof fall has suffered `merely' a concussion, or a
fractured skull?  Would only the hazard in the latter case,
under the majority's rationale, be one which is significant
and substantial?

Nat'l Gypsum, 3 FMSHRC at 833 (Lawson, A., dissenting) (emphasis
supplied).

     [6]:  Notwithstanding this present conclusion, I restate that
I remain open to revisit this issue after it has been thoroughly
briefed and argued.