Green River Coal Company

Plain-English summary

Green River Coal Company faced four citations at its Green River Coal No. 9 Mine after a roof fall affected a belt conveyor area. Two roof-support citations were settled and affirmed, and a coal-dust accumulation citation was affirmed with its $1,000 proposed penalty reduced to $800. The judge vacated a travelway citation because the earlier safeguard notice concerned clearance restricted by roof-support timbers, while the later condition involved fallen and slippery rock, which was a materially different hazard. The total penalties for the three affirmed citations were $2,400.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.200, 75.400, and 75.1403(5)(g)
• Outcome: Citations 3227255, 3227256, and 3227257 were affirmed with total penalties of $2,400. Citation 3227259 was vacated.
• Key point: A safeguard notice must give clear notice of the specific hazard it covers and cannot be expanded to reach materially different conditions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GREEN RIVER COAL
DDATE:
19890424
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH Docket No. KENT 88-152
ADMINISTRATION (MSHA), A.C. No. 15-13469-03658
PETITIONER

         v.                               Green River Coal No. 9 Mine

GREEN RIVER COAL COMPANY,
RESPONDENT

                                DECISION

Appearances: Joseph B. Luckett, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
B. R. Paxton, Esq., Paxton & Kusch, Central
City, Kentucky, for the Respondent.

Before: Judge Koutras

                         Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking civil penalty assessments for four alleged
violations of certain mandatory safety standards found in Part
75, Title 30, Code of Federal Regulations. The respondent filed a
timely notice of contest and a hearing was conducted in
Owensboro, Kentucky. The parties were afforded an opportunity to
file posthearing arguments, but did not do so. However, I have
considered their oral arguments made during the hearing in my
adjudication of this matter.

                                 Issues

 The issues presented in this case are (1) whether the

conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act, and (3) whether the violations were
"significant and substantial." Additional issues raised

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by the parties are identified and disposed of in the course of
this decision.

         Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub. L.

95-164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.      820(i).

 3. Commission Rules, 29 C.F.R.   2700.1 et seq.

 The parties stipulated to the following (Exhibit P-1):

      1. The presiding judge has jurisdiction to hear and
      decide this case.

      2. The respondent employs approximately 200 workers,
      and produces over one million tons of coal per year.

      3. The civil penalty assessments in question will not
      affect the respondent's ability to continue in
      business.

      4. The respondent acted in good faith and timely abated
      the alleged violations.

      5. The respondent's history of previous violations for
      the 2-year period preceding March 21, 1988, is as
      indicated in MSHA's computer print-out (Exhibit P-2).

                           Discussion

 During a prehearing conference prior to the taking of

testimony, the parties informed me that they proposed to settle
Citation Nos. 3227255 and 3227256, and that the respondent agreed
to pay the full amount of the proposed civil penalty assessments,
and to withdraw its notice of contests with respect to these
citations. The proposed settlement was approved from the bench,
and my decision in this regard is affirmed. The citations are
affirmed as issued.

 With regard to Citation No. 3227257, respondent's counsel

confirmed that although the respondent does not dispute the fact
of violation, or the inspector's "S&S" finding, it does dispute
the appropriateness of the proposed civil penalty assessment.
Counsel also confirmed that the parties have discussed a
settlement of the case but that the petitioner's

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counsel would not agree to any reduction in the proposed civil
penalty assessment. Under the circumstances, evidence was taken
on this citation, and the parties were afforded an opportunity to
present arguments with regard to the appropriate civil penalty
assessment.

 With regard to Citation No. 3227259, respondent's counsel

confirmed that the respondent still desired to continue its
contest on this alleged violation, and testimony and evidence was
taken in this regard.

 All of the section 104(a) "S&S" Citations in this case were

issued by MSHA Inspector Jerrold Pyles on March 21, 1988. Mr.
Pyles issued an initial section 107(a) imminent danger order and
cited four alleged violations which are as follows:

 Citation No. 3226255, cites a violation of 30 C.F.R.

75.200, and the cited condition or practice is described as
follows:

      The inby and outby brows located at crosscut 6, on the
      5 D-belt, had not had additional support set where a
      roof fall had occurred, according to the rock loading
      plan on page 9 of roof-control plan dated Dec. 3, 1987.
      Also refer to page 6, art. 22 B and D.

 Citation No. 3227256, cites a violation of 30 C.F.R.

75.200, and the cited condition or practice is described as
follows:

      The timber plan, located in roof-control plan dated
      Dec. 3, 1987, on page 13 in sketch was not followed at
      crosscut 6 on the 5 D-belt. A roof fall had occurred in
      this area and there were no timbers from the beginning
      of fall (3 ft. outby crosscut) to end of fall, at end
      of intersection. Two bolts in cavity on either side of
      belt were not touching roof. Water was coming through
      top in this area.

 Citation No. 3227257, cites a violation of 30 C.F.R.

75.400, and the cited condition or practice is described as
follows:

      At cross cut No. 6 on the 5 D-belt where roof fall had
      occurred, grey shale had slid against belt and belt was
      running against it. Also a piece was lodged between
      bottom and top

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belt. Belt was also rubbing against a wooden
holy board used to prop belt rope up; there
were four frozen or stuck rollers in this area
(approximately 24 ft.) and belt line from tail-
piece to this area (approx. 540 ft.) had float
dust under and in crosscuts along the belt,
areas were light brown to black.

      Citation No. 3227259, cites a violation of 30 C.F.R.

75.1403(5)(g), and the condition or practice is described as
follows:

      A clear travelway of at least 24 inches was not
      provided on the 5 D-belt crosscut No. 6, in that rock
      had fallen down against belt due to a roof fall and had
      the travelway partially blocked to where a man or
      person would have to walked (sic) over the top of it.
      Area was wet and slippery on top of the grey shale.

 MSHA Inspector Jerrold Pyles testified as to his experience

and training, and he confirmed that he issued Citation No.
3227259 (exhibit P-8). He confirmed that a rock fall had
previously occurred at the No. 6 crosscut where the number 5
D-belt was located, and that the rock had slipped down on each
side of the belt partially blocking the travelway on each side of
the belt. Mr. Pyles identified exhibit P-5 as a copy of his notes
which include a sketch of the fall area.

 Mr. Pyles described the extent of the fall, and confirmed

that the rock covered both sides of the belt. He stated that the
rock was approximately 2 feet high and extended for a distance of
10 to 12 feet along both sides of the belt. He confirmed that the
area was wet, and although the rock was slippery in spots, there
was no standing water in the area. He also confirmed that most of
the rock fall had been loaded out, and that coal was being loaded
out on the belt.

 Mr. Pyles stated that he made a gravity finding of

"reasonably likely" because he believed that a belt examiner
walking the belt line for the purpose of examining the belt
pursuant to standard section 75.303, would have to walk over the
rock to examine the belt, and since the rock was slippery, the
examiner could fall into the belt if it were moving. If it were
not moving, the examiner could slip on the rock and suffer
injuries if he were to strike the belt. Mr. Pyles confirmed that
the shift started at 8:00 a.m., and that he issued the citation
at 10:00 a.m.

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Mr. Pyles stated that only the belt examiner would be exposed to
the hazard, and although he observed a man in the area, he did
not know what he was doing there. Mr. Pyles confirmed that in the
event of a slip off the rock, the examiner would likely suffer
serious injuries or bruises depending on whether the belt was
running or not, and that lost time would likely result from such
injuries.

 Mr. Pyles confirmed that he made a negligence finding of

"moderate" because the respondent had loaded out most of the rock
fall and was loading out coal on the belt. He believed that the
operator was aware of the condition, but conceded that the rock
in question could have slipped after the initial rock fall
occurred and was loaded out. Mr. Pyles confirmed that he based
his "S&S" finding on his belief that it was reasonably likely
that an accident would occur and that serious injuries would
follow.

 Mr. Pyles identified exhibit P-9, as a copy of a previous

safeguard notice he issued on January 21, 1987, citing mandatory
standard section 75.1403(5)(g), and he confirmed that he based
his citation on that safeguard notice. Mr. Pyles could not recall
the details concerning the conditions which prevailed at the time
of the safeguard notice, and he confirmed that no rock fall was
involved. He stated that once a safeguard notice is issued, it
becomes law for the mine, and in the event of a subsequent repeat
violation, a citation would be issued. He also confirmed that the
cited condition was corrected and the citation was terminated at
4:30 p.m., the same date that it was issued.

 On cross-examination, Mr. Pyles stated that although the

belt examiner could walk around the rock on either side of the
belt, and had enough room to shine his light on the belt, his
passage would be restricted and he would still be required to
walk over the slippery rock in order to adequately inspect the
belt. He conceded that the belt examiner had enough room to walk
around the belt to shine his light, and that he could get within
10 feet of the belt to observe it, and that by doing this, he
would be in a safe position.

 Mr. Pyles confirmed that the belt examiner would be looking

for fallen rocks, spillage, and stuck belt rollers, and that he
would also be required to shut the belt down in the event of a
hazardous condition. In order to adequately do his job in this
regard, the belt examiner would necessarily have to walk over the
slippery fallen rock.

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Mr. Pyles did not know when the rock slipped, and he agreed that
the cited condition could have occurred between the time the belt
examiner last walked and examined the belt and the time he
arrived on the scene. Mr. Pyles confirmed that pursuant to
section 75.303, belt conveyors are required to be examined at any
time during the shift and after coal production has started. Mr.
Pyles confirmed that he did not speak to the belt examiner or
examine the preshift books.

 Mr. Pyles confirmed that after the initial rock fall, enough

rock was removed to facilitate the reinstallation of the belt,
and he confirmed that he observed evidence of work being done to
correct the rock fall conditions. He also confirmed that the
prior roof and rock fall cavity had been re-bolted and the roof
re-supported. In the final analysis, it was his judgment that the
rock which had slipped restricted passage on either side of the
belt and it did not afford the belt examiner enough room to pass
through the area to adequately view and inspect the belt.

 Grover Fischbeck, respondent's former safety manager,

confirmed that he was with Inspector Pyles during the course of
his inspection, and that the citation was served on him. He
confirmed that an initial roof fall had occurred in the cited
area earlier in the week of March 21, 1988, and that the rock was
removed from the center of the crosscut down to the mine floor
level, and that rock was scaled down to clear out any remaining
loose rock. He also confirmed that the roof was fully supported,
and that he did not know when the rock which was present when he
and Mr. Pyles observed it during the inspection fell, and that
the last time the belt was "made" was during the last shift on
the day before the inspection.

 Mr. Fischbeck believed that the belt area in question could

have been visually inspected by the belt examiner safely by
walking up to edge of the belt where the rock had fallen and then
walking around the adjacent entry and viewing the belt from the
other side. If this were done, the belt examiner would not have
been exposed to any hazard.

 Mr. Fischbeck stated that while he and Mr. Pyles were in the

cited area, he observed belt examiner Hubert Hunt walk up to the
edge of the belt where the rock was located and observe the belt,
but that he did not speak to him at that time. Mr. Fischbeck
stated that he was surprised to find the rock when he and Mr.
Pyles arrived at the scene.

 Mr. Fischbeck confirmed that he was familiar with the prior

safeguard notice issued by Mr. Pyles and confirmed that

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it did not involve a rock or roof fall. He explained that the
installation of timbers in an area adjacent to a belt which had
been installed off-center restricted the adjacent walkway in such
a manner as to reduce the clearance to less than 24 inches, and
that additional rock had to be scaled down to further widen the
walkway to permit access for the belt examiner.

 On cross-examination, Mr. Fischbeck stated that the belts

are not usually examined unless they are in operation, and that
this is necessary in order to inspect the belts for hazards under
actual operational conditions. He confirmed that the rock had
slipped down from the side of the entry and was resting against
the belt, but that it was not uniformally 2 feet high along the
10 feet distance in which it was resting against the belt. He
estimated that the height of the rock ranged from 1-1/2 to 2
feet, and that the belt was 18 to 24 inches high off the mine
floor. He agreed that the rock caused some blockage of the
walkway and that it presented a stumbling hazard.

 Inspector Pyles confirmed that he issued Citation No.

3227257 (exhibit P-7), after observing loose coal and coal dust
ranging from zero to 8 inches on either side of the 5 D-belt. He
also observed that a piece of the shale rock which had slipped
against the belt was rubbing the belt top and bottom, and that
the belt was also rubbing against a roof support "header" or
"holy" wooden board which was being used to support a cable. The
rock had knocked the belt out of line against the board causing
it to touch and rub against the belt. He described the dimensions
of the board as 10 x 16 inches. Mr. Pyle also confirmed that he
observed four stuck belt rollers which were not turning within a
belt area of 24 feet, and float coal dust under the belt and in
the crosscuts for a distance of approximately 540 feet from the
belt tail piece to the area where the rock fall had occurred.

 Mr. Pyles stated that the belt was running, and he believed

that any friction caused by the belt rubbing against the rock and
board, and the stuck rollers which were not turning, were
potential ignition sources and could have ignited the float coal
dust. Although the area was wet, some of the float coal was on
top of the wet areas, but when he picked up a handful of the
float coal dust and squeezed it, it was dry and not damp. He also
confirmed that he did not otherwise "test" float coal dust
accumulations and simply observed it visually. He described the
float coal dust as "light brown to black" in color.

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Mr. Pyles confirmed that he made a gravity finding of "reasonably
likely," and he believed that in the event of a fire it was
reasonably likely that 12 miners working on the section would be
exposed to fire, smoke inhalation, and entrapment hazards. He
also confirmed that he based his "S&S" finding on the fact that
if mining were allowed to continue it was reasonably likely that
a fire would have occurred and exposed miners to the
aforementioned hazards.

 On cross-examination, Mr. Pyles stated that his principal

concern was the potential fire which could result from the
presence of the accumulations of loose coal and coal dust, and
the potential ignition sources which were present. He confirmed
that he observed no fire sensors on the belt, but conceded they
could have been present because each belt is normally provided
with a fire sensor system.

 Mr. Fischbeck testified that the board referred to by Mr.

Pyles was saturated with water and that no float coal dust or
other combustibles were present in the area where the board was
located. With regard to the belt rubbing against the rock, Mr.
Fischbeck believed that given the fact that it was a rock and not
coal, there was a low potential for any fire.

 Mr. Fischbeck identified exhibit P-12 as a copy of the most

recent fire boss examination records which he supplied, and he
stated that the examination record for March 21, makes no
reference to any hazardous conditions in the areas cited Mr.
Pyles. Although the records indicated that some areas needed to
be cleaned up and rock dusted on March 18 and 19, since these
conditions were not noted on the record for March 21, he assumed
they had been corrected and were not present on March 21.

 Mr. Fischbeck confirmed that Mr. Pyles took no samples of

the loose coal or coal dust, and that clean-up and rock dusting
is performed periodically on the section. He agreed that 12
miners were working on the section on the day of the inspection,
but that an alternative fire escape route was available to these
individuals through the intake air course.

 Mr. Fischbeck stated that his notes reflect that the area

cited by Mr. Pyles was damp and rock dusted. He stated that dry
coal dust is not uncommon, and agreed that the tail piece needed
to be shovelled because of some coal spillage, and that
shovelling is done periodically at that location.

 Mr. Fischbeck stated that fire detection sensors were in

place on the belt line, and that 2 inch fire hoses and water

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lines were available along the belt for use in the event of a
belt fire. The detection devices were located down the center of
the belt, and they were suspended from the roof.

                    Findings and Conclusions

Fact of Violations

Section 104(a) "S&S" Citation Nos. 3227255 and 3227256, 30
C.F.R. 75.200

 As previously noted, the parties agreed to settle these

violations, and the respondent conceded the fact of violations,
including the inspector's significant and substantial (S&S)
findings, and agreed to pay the proposed civil penalty
assessments in full. The proposed settlements have been approved,
and the citations and violations ARE AFFIRMED AS ISSUED.

Section 104(a) "S&S" Citation No. 3227257, 30 C.F.R. 75.400

 The respondent does not dispute the fact of violation or the

inspector's "S&S" finding, and only contests the reason-ableness
of the proposed civil penalty assessment of $1,000, for the
violation (Tr. 71). Under the circumstances, the citation and
violation ARE AFFIRMED, and my findings and conclusions
concerning the mitigation of the proposed civil penalty
assessment follow below.

 I take note of the respondent's answer to the citation and

its assertion that at the time of the inspection which led to the
issuance of the violation, the respondent was doing everything
humanly possible to expeditiously address the conditions caused
by the initial rock fall and that it was addressing the most
serious condition first. During oral argument at the hearing,
respondent's counsel confirmed that this was the case, and he
pointed out that all of the citations issued in this case arose
out of the same circumstances, and that the respondent has agreed
to pay the full amounts of the civil penalty assessments made for
the two violations which have been settled. Petitioner's counsel
asserted that in seeking a civil penalty assessment in the full
amount of $1,000 for the violation, he does not rely on the
narrative findings and conclusions of MSHA's "special assessment
officer," but does rely on the testimony of the inspector who
issued the citation (Tr. 73).

 It is clear that I am not bound by MSHA's proposed penalty

assessment, nor am I bound by the narrative findings of its

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Office of Assessments. I am free to make my own judgment as to
the reasonableness and appropriateness of any civil penalty
assessment based on the credible evidence and testimony adduced
by the parties, including any mitigating factors which I may
conclude warrant any adjustments in the proposed civil penalty
amount.

 As noted earlier, the respondent does not dispute the fact

of violation, or the existence of the conditions which prompted
the inspector to issue the violation. It has, however, presented
credible and probative evidence which in my view mitigates its
culpability, and the seriousness of the possible fire hazard
presented by the cited conditions.

 Respondent's former safety manager Grover Fischbeck

confirmed that the belt conveyor in question was equipped with
workable fire detection devices which would have alerted anyone
of any fire on the belt. He also confirmed that the belt was
provided with a 2-inch water line with fire hose outlets spaced
periodically throughout the belt line, and that fire hoses were
located at the working section, as well as the unit header, and
that all of the fire hoses and detection systems were operational
(Tr. 96-98). Inspector Pyles confirmed that the belt was
protected by fire suppression devices consisting of a "fire line"
equipped with fire sensor heads (Tr. 81). Although the inspector
noted that he did not particularly notice any of these devices,
he confirmed that they are normally provided on every belt in the
mine, and he agreed that the existence of these devices would be
relevant in any gravity determination. He conceded that he did
not issue any violation for the failure by the respondent to
provide any such fire fighting devices, and he agreed that they
could have been in place and operational (Tr. 81-82). With regard
to his initial imminent danger order which was issued in
conjunction with the issuance of the section 104(a) citation in
question, the inspector conceded that his gravity finding of
"reasonably likely" in connection with the citation would
indicate a degree of hazard less than a hazard that is
characterized as "imminent," and that the cited conditions
presented a possibility of a fire (Tr. 83-84).

 Although Mr. Fischbeck conceded that the board which was

rubbing against the belt was combustible, he also indicated that
it was saturated with water which was leaking from the roof, and
he considered the rock which was rubbing the belt as a low
potential fire source. According to Mr. Fischbeck's inspection
notes, the belt tailpiece was extremely wet, and the belt line
was damp in different areas, including the area where the fall
had occurred (Tr. 89). Mr. Fischbeck also

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pointed out that in the absence of any tests, or samples, it is
difficult to determine how much rock dust may be mixed in with
the coal dust, and that on the day of the inspection no rock dust
samples were taken (Tr. 89). Mr. Fischbeck also believed that in
the event of a fire, the miners could have escaped by an
alternate route (Tr. 91).

 Inspector Pyles confirmed that no rock dust samples were

taken, and although he indicated that he picked up a handfull of
float coal dust and squeezed it in his hand and no moisture came
out, he conceded that he only did this in one area (Tr. 102). He
also agreed with Mr. Fischbeck's testimony that the area was
damp, but indicated that the float dust he observed was lying on
top of the damp and wet areas (Tr. 100). Mr. Pyles also confirmed
that the four stuck belt rollers were not turning in any coal
accumulations, and that he did not issue any separate violation
for the stuck roller condition because there were not enough stuck
rollers to warrant another citation (Tr. 103).

 Having viewed the witnesses during the course of the

hearing, I consider Mr. Fischbeck to be a credible witness. His
testimony concerning the presence and availability of fire
detection and suppression devices on the belt line in question,
and his observations concerning the damp and wet conditions in
some of the areas in question mitigate the seriousness or gravity
connected with a potential fire hazard on the belt line in
question.

 I take note of the fact that Inspector Pyles made a

negligence finding of "moderate," and he confirmed that at the
time of the inspection most of the rock fall had been loaded out.
He conceded that the rock which slipped against the belt could
have slipped after the initial rock fall occurred and had been
loaded out, and that the sliding rock caused the movement of the
belt and could have caused some of the coal spillage (Tr. 101).
Mr. Pyles also confirmed that he saw evidence of work being done
to correct the rock fall conditions. This lends credence to the
respondent's assertion that it was attempting to correct the
conditions resulting from the initial fall of rock.

 Mr. Fischbeck testified that on the day of the inspection,

he was surprised to find that the rock had slipped against the
belt, and that when he spoke with the belt examiner that same day
after the inspection, the examiner advised him that the rock was
not there the day before (Tr. 57). The inspector confirmed that
he based his moderate negligence finding on the fact that his
examination of the belt examiner's reports

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reflected that some of the cited conditions had been noted in the
reports, and he concluded that the examiner should have been
aware of them. The examiner's reports (exhibit P-12), for March
18 to March 21, 1988, contains notations that certain areas of
the 5-D belt were "dirty" and were in need of rock dusting.
However, I find nothing to reflect the existence of any stuck
rollers or the belt rubbing against any rock or board.

 The belt examiner did not testify in this case, and

Inspector Pyles confirmed that he did not speak with him during
the course of his inspection. Mr. Fischbeck assumed that the
conditions noted in the belt examiner's reports had been
corrected because the subsequent reports made by the last person
to walk the belt did not note the existence of those conditions
(Tr. 92). I find no evidence to support any conclusion that the
conditions associated with the stuck rollers or the belt rubbing
against the rock were present for any extended period of time
prior to the inspection. Under all of these circumstances, I
conclude and find that the respondent's negligence is to some
degree mitigated.

Citation No. 3227259, 30 C.F.R. 75.1403-5(g)

 The inspector issued the citation after finding that a clear

travelway of at least 24 inches was not provided on the cited
belt conveyor (exhibit P-8). The cited mandatory criteria for
belt conveyors found in 30 C.F.R. 75.1403-5(g), provide as
follows:

      A clear travelway at least 24 inches wide should be
      provided on both sides of all belt conveyors installed
      after March 30, 1970. Where roof supports are installed
      within 24 inches of a belt conveyor, a clear travelway
      at least 24 inches wide should be provided on the side
      of such support farthest from the conveyor.

 In addition to the conditions observed by the inspector

which led him to conclude that a clear travelway was not
maintained in compliance with the cited standard, the inspector
cited and relied on a previously issued Safeguard Notice No.
2215634, which he served on the respondent at the same mine on
January 21, 1987 (Exhibit P-9). That notice was issued pursuant
to section 75.1403-5(g), and it states as follows:

      A clear travelway at least 24" wide was not provided on
      both sides of the 7B belt

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between xcuts Nos. 88 & 89. There was less
than 24" on one side of belt between roof
support (timbers) and rib nor between belt and
roof support. This is a notice to provide
safeguard.

 MSHA's regulatory authority for issuing safeguard notices

which subsequently become mandatory for the mine is found in
30 C.F.R. 75.1403, which is the statutory language found in
section 314(b), of the Act. It provides as follows:

      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.

      Section 75.1403-1 provides:

      (a) Sections 75.1403-2 through 75.1403-11 set out the
      criteria by which an authorized representative of the
      Secretary will be guided in requiring other safeguards
      on a mine-by-mine basis under section 75.1403. Other
      safeguards may be required.

      (b) The authorized representative of the Secretary
      shall in writing advise the operator of a specific
      safeguard which is required pursuant to section 75.1403
      and shall fix a time in which the operator shall
      provide and thereafter maintain such safeguard. If the
      safeguard is not provided within the time fixed and if
      it is not maintained thereafter, a notice shall be
      issued to the operator pursuant to section 104 of the
      Act.

      (c) Nothing in the sections in the section 75.1403
      series in this Subpart O precludes the issuance of a
      withdrawal order because of imminent danger.

 In Southern Ohio Coal Company (SOCCO), 7 FMSHRC 509 (April

1985), the Commission noted that the safeguard provisions of the
Act confer upon the Secretary "unique authority" to promulgate
the equivalent of mandatory safety standards without resort to
the otherwise formal rulemaking requirements of the Act. The
Commission held that a safeguard notice, unlike other ordinary
safety standards, must be strictly construed, and that the
safeguard must give the mine operator

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clear notice of the nature of the hazard and the conduct required
of the operator to stay in compliance.

 In SOCCO, an inspector issued a citation after finding water

10 inches in depth from rib to rib at a stopping located along a
belt conveyor. Because of the presence of the water, the
inspector believed that a clear travelway of 24 inches was not
provided along the conveyor belt as required by a previously
issued safeguard notice. The safeguard notice was issued after
the inspector found fallen rock and cement blocks at three
locations along a conveyor belt. Addressing the question as to
whether the safeguard notice referencing "fallen rock and cement
blocks at three locations," and requiring 24 inches of clearance
on both sides of the conveyor belt, should have put SOCCO on
notice that conditions such as the water described in the
citation fell within the safeguard's prohibitions, the Commission
concluded that it did not. In this regard, the Commission stated
as follows at 7 FMSHRC:

      Given the frequency of wet ground conditions in the
      mine, and the basic dissimilarity between such
      conditions and solid obstructions such as rocks and
      debris, we find that SOCCO was not given sufficient
      notice by the underlying safeguard notice issued in
      1978 that either wet conditions in general or the
      particular conditions cited in 1983 by the inspector in
      this case would violate the underlying safeguard
      notice's terms.

      We do not hold that a safeguard notice pertaining to
      hazardous conditions caused by wetness could not be
      issued. Conditions such as those cited by the inspector
      here, if hazardous, can just as readily be eliminated
      by issuance of safeguard notices specifically
      addressing such conditions. By taking this approach
      rather than bootstrapping dissimilar hazards into
      previously issued safeguard notices, the operator's
      right to notice of conditions that violate the law and
      subject it to penalties can be protected with no undue
      infringement of the Secretary's authority or loss of
      miner safety.

 In a footnote at 7 FMSHRC 512, the Commission made the

following observation: "The requirements of specificity and
narrow interpretation are not a license for the raising or
acceptance of purely semantic arguments . . . . We recognize

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that safeguards are written by inspectors in the field, not by a
team of lawyers."

 In the instant case, the contested citation was issued by

inspector Pyles after he found that the travelways on either side
of the number 5D conveyor belt for a distance of some 10 feet at
the location where the rock had slipped and fallen against the
belt did not provide clear access for the passage of a belt
examiner who was required to walk and examine the belt for
hazards. The inspector found that the travelways were partially
obstructed by the rock, and although he believed that the belt
examiner could still travel through both sides of the travelway
adjacent to the belt, he would have to walk over the top of the
fallen rock which he considered to be hazardous because of its
wet and slippery condition (Tr. 62). The inspector also believed
that the obstructed travelways would not allow the belt examiner
an opportunity to make an adequate close examination of the belt
because the examiner could not position himself at a point which
would have enabled him to see over the rock into the belt
location where the stuck rollers were found (Tr. 36-37, 65-66).
The inspector believed that any attempt by a belt examiner to
walk over the slippery rock which obstructed the belt travelways
would have exposed him to a possible fall with serious injuries,
and the possibility of his falling into the moving belt (Tr. 16).

 Mr. Fischbeck believed that the belt examiner could have

safely inspected the belt, but he conceded that given the 10 feet
area where the rock had slipped against the belt, the examiner
would not be able to walk the belt in its entirety (Tr. 46). Mr.
Fischbeck believed that the belt examiner could have safely
examined the belt by walking up to the area where the travelways
were obstructed by the rock, viewed the belt, and then walked
around the crosscut to the other side of the belt, and viewed it
from that position (Tr. 46, 50). Although Mr. Fischbeck believed
that the examiner could have visually inspected the belt from
these positions, he conceded that in one area of the belt the
rock, which he estimated was 18 inches to 2 feet thick, was
resting across the top of the belt (Tr. 53). He confirmed that
rock was on both sides of the belt, and that more of it was
located on the front or supply road side of the belt, than on the
back side (Tr. 56).

 Mr. Fischbeck agreed that the inspector issued the citation

because "there was some stumbling hazards" and that "there was
some obstructions in it" (Tr. 56-57). Mr. Fischbeck confirmed
that during the inspection he observed the belt examiner approach
the belt area where the rock had slipped, squat down, and then
proceed out the supply road to the other side of the

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belt (Tr. 54, 57). Although Mr. Fischbeck believed that the
procedure used by the belt examiner to examine the belt would
have provided him with a safe means of doing so, he conceded that
by doing it in this manner, the belt examiner "would not be
exposed to walking over the rock that had slid down to the belt"
(Tr. 46).

 After careful examination of all the testimony and evidence

presented with respect to this citation, I conclude and find that
the travelways along both sides of the belt conveyor for a
distance of approximately 10 feet where the rock had slipped and
fallen against the belt were obstructed and were not maintained
with a clearance of at least 24 inches wide. I also conclude and
find that the obstructed travelways would not allow the belt
examiner to make a complete and thorough inspection of the belt,
and that the wet and slippery rock conditions presented a hazard
to any belt examiner attempting to climb or walk over it,
particularly while the belt was running.

 Inspector Pyles believed that his previously issued

safeguard notice presented the same situation as that which was
present when he issued the citation in question, namely, the
obstruction of travelways along a belt conveyor (Tr. 20). Mr.
Pyles was of the opinion that regardless of the conditions which
may cause a belt travelway to be restricted, if a clear travelway
of at least 24-inches is not provided in accordance with the
safeguard notice, a violation is established (Tr. 63-64).

 The respondent's credible testimony by Mr. Fischbeck

reflects that the obstructed travelways which prompted the
issuance of the initial safeguard notice were the result of the
timbering of an area where the belt was out of line, and did not
involve any fallen or slipped rocks. The location of the belt
near the rib, coupled with the installation of roof timbers,
resulted in the restriction of the travelways which did not
provide for a clearance of at least 24 inches, and a jackhammer
had to be used to scale the rib to provide more clearance (Tr.
48-49). Inspector Pyles confirmed that this was in fact the case
(Tr. 64).

 During oral argument on the record, respondent's counsel

took the position that the citation should be dismissed because
the previously issued safeguard notice was based on timbering
conditions which did involve any rock falls or slips (Tr. 23,
43). Counsel asserted that the prior safeguard concerned
travelway conditions which were "man made," and that the rock
slip in connection with the contested citation was not such a

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condition (Tr. 50). In support of his argument, counsel cites the
decision of the late Judge Carlson in Mid-Continent Resources,
inc., 7 FMSHRC 1457 (September 1985). In that case an inspector
issued a safeguard notice pursuant to section 75.1403-5(g),
because coal sloughage obstructed a part of a 24-inch travelway
on one side of a belt. Upon a subsequent inspection, the
inspector found another 24-inch travelway on another belt
obstructed by coal sloughage, timber, and a 1-foot wide trench.
Responding to the same argument as that made by the respondent in
this case, and relying on the Commission's decision in Southern
Ohio Coal Company, supra, Judge Carlson concluded that the
citation was valid with respect to the coal sloughage, but
invalid with respect to the trench and timbers, and his reasoning
for these conclusions are stated as follows at 7 FMSHRC 1461:

      Under the Commission's reasoning in Southern Ohio, I am
      not convinced that either the shallow trench or the
      timbers in the 24-inch travelway were encompassed
      within the limits of the underlying notice to provide
      safeguards. The specification of "coal sloughage" in
      the original notice was broad enough to embrace the
      casual presence or accumulation of coal or similar
      solid objects in the travelway. It was not, however,
      broad enough to include a wholly dissimilar impediment
      to travel such as a shallow trench. The trench differed
      from such solid objects in much the same way as
      accumulated water in Southern Ohio differed from the
      rocks and construction debris which were covered by the
      previous safeguard.

      The status of the timbers which allegedly impinged on
      the walkway space is not so clear. Had the timbers been
      left on the floor to join the coal sloughage as
      tripping-and-falling hazards, they should logically be
      treated as a "similar" hazard covered by the underlying
      safeguard. The inspector's testimony, however,
      indicated that the timbers were not merely a loose
      impediment lying on the floor. Rather, they were
      upright timbers installed as a part of the roof control
      system (Tr. 29). The timbers therefore constituted what
      may be referred to as an essential part of the
      underground mine structure. In that sense they
      represented an abatement problem far different from the mere

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removal of random obstacles left on the travel-
way floor. They differed enough from the class
of objects akin to coal sloughage to remain
outside the reasonable scope of the inspector's
notice of safeguard.

 With regard to the assertion that the conveyor referred to

in the safeguard notices was at a location different from that
referred to in the citation, Judge Carlson found this difference
to be of no legal significance because the safeguard notice was
directed to all conveyors in the mine, and the evidence
established that both conveyors were of the sort covered by 30
C.F.R. 75.1403-5(g), 7 FMSHRC 1462.

 In the instant case, the safeguard notice issued by

Inspector Pyles on January 21, 1987, citing section 75.1403-5(g),
specifically addressed the lack of 24 inches of clearance on both
sides of a conveyor belt travelway which was restricted by roof
support timbers. The notice stated that thee was less than 24
inches on one side of the belt between the roof support and the
rib, and less than 24 inches on the other side between the belt
and the roof support. The second sentence of section
75.1403-5(g), provides as follows: "Where roof supports are
installed within 24 inches of a belt conveyor, a clear travelway
at least 24 inches wide should be provided on the side of such
support farthest from the conveyor."

 Inspector Pyles could not recall the circumstances under

which he issued the safeguard notice. However, he agreed with Mr.
Fischbeck's explanation that the notice was issued because the
installation of roof support timbers adjacent to the belt
travelways restricted the clearance on either side of the belt to
less than 24 inches. Inspector Pyles also agreed that the
safeguard notice did not involve any rock falls or slips.
Although he provided credible testimony with respect to the slip
and fall hazards associated with any attempt by a belt examiner
to climb over the wet and slippery rock which obstructed the belt
travelways on March 21, 1988, no testimony or evidence was
presented with respect to the hazards associated with a
restricted travelway caused by the installation of roof support
timbers close to a belt conveyor belt, or whether or not a belt
examiner would have been prevented from conducting his required
examination of the belt because of such a condition.

 Given the Commission's decision in Southern Ohio Coal

Company, supra, and the reasoning by Judge Carlson in
Mid-Continent Resources, Inc., supra, with which I agree, I
conclude and find that the conditions relied on by Inspector

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~703
Pyles in issuing the initial safeguard notice, conditions which
came about by the installation of roof timbers too close to a
belt conveyor which was out of line, and which required the use
of a jack hammer to shear off a rib to provide more clearance,
were different from the rock fall and slippage which restricted
the travelways cited by Mr. Pyles in his citation of March 21,
1988. In short, I conclude and find that the travelway impediment
caused by the installation of roof support timbers was dissimilar
from any impediment caused by the rock which had slipped and
fallen against the belt and that the safeguard notice relied on
by Inspector Pyles was not broad enough to encompass the
conditions cited in the citation. Under the circumstances, I
further conclude and find that Mr. Pyles' reliance on the
safeguard notice to support the citation was invalid, and that
the citation was improperly issued. Accordingly, the citation IS
VACATED.

 Based on the stipulations by the parties, I conclude and

find that the respondent is a medium-to-large size mine operator,
and that the civil penalty assessments for the violations which
have been affirmed will not adversely affect its ability to
continue in business. I also conclude and find that the
respondent acted in good faith in timely abating the violations
in question, and I affirm the inspector's moderate negligence
findings. I also conclude and find that the violations were
serious.

                      Civil Penalty Assessments

 I have approved settlements for two of the contested

citations, and the respondent has agreed to pay the full amount
of the proposed civil penalty assessments for the violations in
question, as follows:

Citation No. Date 30 C.F.R. Section Assessment

3227255 03/21/88 75.200 $800
3227256 03/21/88 75.200 $800

 With regard to Citation No. 3227257, concerning a violation

of 30 C.F.R. 75.400, because of the accumulations of float coal
dust along the cited belt conveyor line, the respondent admitted
to the fact of violation and did not dispute the inspector's
significant and substantial (S&S) finding with respect to the
cited conditions. Given the extent of the accumulations, which
have not been rebutted by the respondent, and the potential fire
hazard which existed on the belt line, and notwithstanding the
existence of fire detection and suppression devices which were on
the belt line, I nonetheless

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~704
agree with the inspector's S&S finding which has been conceded by
the respondent.

 Petitioner's Exhibit P-2 is a computer print-out detailing

the respondent's prior compliance record for the period March 21,
1986, through March 20, 1988, and the parties have stipulated
that this print-out reflects the respondent's history of prior
violations for the 2-year period prior to the issuance of the
citations in question in this case. The print-out reflects that
the respondent was issued 1,012 violations, 746 of which are S&S
violations. It also reflects that the respondent has paid
$128,007, in civil penalty assessments for 973 of the listed
violations.

 The aforementioned print-out also reflects that for the

2-year period in question, the respondent paid civil penalty
assessments for 167 prior violations of mandatory safety standard
30 C.F.R. 75.400. Although I have taken into consideration the
mitigating circumstances previously discussed with respect to the
citation, I conclude and find that for an operation of its size,
the respondent does not have a very good compliance record,
particularly with respect to section 75.400, which deals with
accumulations of coal dust and float coal dust. Accordingly, I
have also taken this into consideration in the following civil
penalty assessment which I have made for the citation in
question.

Citation No. Date 30 C.F.R. Section Assessment

3227257 03/21/88 75.400 $800

                             ORDER

 On the basis of the foregoing findings and conclusions IT IS

ORDERED THAT:

      1. Section 104(a) S&S Citation Nos. 3227255, 3227256,
      and 3227257 ARE AFFIRMED, and the respondent shall pay
      the aforementioned civil penalty assessments to the
      petitioner within thirty (30) days of the date of this
      decision and order.

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2. Section 104(a) "S&S" Citation No.
3227259, March 21, 1988, 30 C.F.R.
75.1403-5(g), IS VACATED.

                                George A. Koutras
                                Administrative Law Judge