LJ'S Coal Corporation

Plain-English summary

LJ'S Coal Corporation faced consolidated proceedings involving roof control, accident reporting, fire suppression, dust-control planning, roadway berms, and underground electrical safety at its No. 3 and No. 4 Mines. Judge Avram Weisberger found several serious and significant-and-substantial violations, including an unguarded belt tail roller, unsupported roof conditions, and missing electrical grounding and protection equipment. He dismissed one fire-suppression order, amended two other enforcement actions to remove their significant-and-substantial designations, and assessed $6,970 for the violations that were established. The decision addressed four related dockets and several citations and orders.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.1722, 75.900, 75.901, 75.902, 75.1100-3, 75.316, and 77.1605(k)
• Outcome: One order was dismissed, two enforcement actions were amended to non-significant-and-substantial violations, and $6,970 in civil penalties was assessed for the violations found.
• Key point: The judge treated each condition separately, distinguishing proven hazards from allegations that lacked enough evidence to establish a violation or significant-and-substantial status.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA), v. LJ'S COAL
DDATE:
19910814
TTEXT:

                 Federal Mine Safety and Health Review Commission
                        Office of Administrative Law Judges
                          2 Skyline, 10th Floor
                            503 Leesburg Pike
                      Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 90-356
PETITIONER A. C. No. 15-16477-03526
v.
Docket No. KENT 90-399
LJ'S COAL CORPORATION, A. C. No. 15-16477-03528
RESPONDENT
Docket No. KENT 90-400
A.C. No. 15-16637-03529

                                   No. 3 Mine

                                   Docket No. KENT 90-401
                                   A.C. No. 16-16637-03505

                                   No. 4 Mine

                                DECISION

Appearances: W. F. Taylor, Esq., Office of the Solicitor, U. S.
Department of Labor, Nashville, Tennessee for the
Petitioner;
Carl E. McAfee, Esq., LJ's Coal Corporation,
St. Charles, Virginia, for the Respondent.

Before: Judge Weisberger

Statement of the Case

 These cases are before me based upon petitions for

assessment of civil penalty filed by the Secretary (Petitioner),
alleging violations of various mandatory standards set forth in
Volume 30 of the Code of Federal Regulations. Pursuant to a
notice of hearing, issued on November 16, 1990, these cases were
scheduled for hearing on December 18, 1990. On December 11, 1990,
a message was received from counsel for Petitioner, indicating
that the parties settled these cases. On January 14, 1991,
Petitioner filed a joint motion to approve settlement. On January
18, 1991, in a conference call I initiated between counsel for
both parties, it was explained that, inasmuch as the motion did
not contain sufficient facts to support the proposed settlements,
it could not be granted. On February 4, 1991, the parties filed a
supplement to the motion to approve settlement. On February 25,
1991, an order was issued denying the motion to

approve settlement on the ground that neither the motion nor the
supplement provided any facts in support of the appropriateness
of the proposed penalties. Subsequent to notice, these cases were
scheduled for hearing, and were subsequently heard in Tazewell,
Tennessee, on June 18, and 19, 1991. Robert W. Rhea, Robert E.
Jones, and Elijah Myers, testified for Petitioner. The operator
(Respondent) did not call any witnesses, nor did it offer any
documentary evidence.

Findings of Fact and Discussion

                       I. Docket No. KENT 91-356

Order No. 3377046

 On January 18, 1990, a section 104(d)(1) order was issued to

Respondent, alleging a violation of a mandatory standard at its
No. 3 Mine. There were no intervening clean inspections between
January 18, 1990 and March 8, 1990.

 On March 8, 1990, Robert W. Rhea, an MSHA Inspector,

inspected the belt at the 001 section at Respondent's No. 3 Mine.
He testified that there was no guard on the tail piece of the
roller. According to Rhea, the roller in question is 24 inches in
diameter and holds the belt down to the tail piece. He indicated
that production was in process, and a scoop was dumping coal on
the belt when he arrived. He observed a metal structure against a
rib. The section foreman, Dwayne Nicely, informed him that this
structure was the guard.

 Rhea observed one employee breaking rock with a sledge

hammer approximately 10 feet from the tail roller. He indicated
that the height of the coal seam, being between 42 and 48 inches,
and the fact that the floor in the area in question contained
loose coal and rock, made it difficult to move around. In
essence, it was his opinion that a person working in the area
might come in contact with the moving roller, causing a serious
injury. Rhea issued a section 104(d)(1) order, alleging a
violation of 30 C.F.R. 75.1722.

 As pertinent, section 75.1722, supra, provides that, in

essence, exposed moving machine parts which may be contacted by
persons and which may cause injury shall be guarded, and that
guards shall be securely in place while the machinery is being
operated.

 Respondent did not proffer any witnesses or documentary

evidence. Based upon the testimony of Rhea, I conclude that the
tail roller in question, was not guarded, and this condition
exposed moving parts that might be contacted by persons working
in the area, especially considering the low height of the seam,

and the uneven surface of the floor. Accordingly, it has been
established that Respondent violated section 75.1722, supra.

 According to Rhea, any loose clothing, gloves, tools, or

battery light cord, worn by a miner, coming in contact with the
unguarded belt, would cause the miner to be pulled into the
roller, causing dismemberment or death. Considering the proximity
of the miners working in the area to the unguarded tail roller,
and the low height of the roof, and the surface of the floor
containing loose coal and rocks, I conclude that it has been
established that there was a reasonable likelihood of a hazard of
contact with the moving tail roller, and a reasonable likelihood
that such a hazard would have resulted in an injury of a
reasonably serious nature. Hence, I conclude that it has been
established that the violation herein was significant and
substantial. (See, Mathies Coal Company, 6 FMSHRC 1, 3-4 (1984)).

 According to Rhea, on "numerous occasions," he had cited the

same violation and discussed it with the section foreman, Dwayne
Nicely (Tr. 37, 38). He said that during two or three inspections
between January 18, 1990, and March 8, 1990, he talked with
Nicely about the guarding of the tail piece. He indicated that
when he issued the citation on March 8, 1990, he asked a miner at
the tail roller whether he was aware of the roller and whether he
thought that it needed a guarding, and the miner indicated in the
affirmative and stated that the guarding was at the rib. Hence, I
find that Respondent was aware of the need for the guarding at
the location in issue, and was also aware that the guarding was
not in place. There are no facts to explain why Respondent did
not replace the guard. I conclude thus that the violation
resulted from Respondent's aggravated conduct. Accordingly, I
find that the violation herein to be the result of Respondent's
unwarrantable failure. (See, Emery Mining Corp., 9 FMSHRC 1997
(1987)).

 Considering the gravity of the violation, and its degree of

negligence, as testified to my Rhea, and considering the
remaining statutory factors, I conclude that a penalty herein of
$800 is appropriate.

b. Citation No. 3377047

 Rhea testified, in essence, that on March 8, 1990, he

observed a cavity in the roof of the last open crosscut in the
No. 3 entry. He described the cavity as 20 to 30 feet wide, 20 to
30 feet long, and approximately 20 feet in depth. He said that
such a cavity was evidence that a rock fall had occurred.
According to Rhea, Nicely indicated to him that a roof fall had
occurred that week i.e., the week of March 8th, which had
entrapped a roof bolting mahcine. Rhea said that Nicely told him
that the roof fall had not been reported. Rhea issued a citation
alleging a violation of 30 C.F.R. 50.10 which in essence

requires an operator to "immediately" contact MSHA "if an
accident occurs." 30 C.F.R. 50.2(h)(a) defines accident, as
pertinent, as ". . . an unplanned roof or rib fall in active
workings that impairs ventilation or impedes passage;" "active
workings" is a term defined in 30 C.F.R. 75.2(g)(4) as "any
place in a coal mine where miners are normally required to work
or travel".

 Based on the testimony of Rhea that has not been rebutted or

impeached, I find that a roof fall had occurred which was not
reported. There is no evidence that this roof fall was planned,
and since it entrapped a roof-bolting machine, I conclude that it
occurred in a area where miners were required to work and did
impede passage. Accordingly, since this roof fall had not been
reported, I conclude that Respondent did violate section 50.10,
supra.

 Taking into account the significant amount of the rock fall

as evidenced by the cavity in the roof observed by Rhea, and the
fact that Respondent had knowledge of the roof fall as evidenced
by Nicely's statement to Rhea that efforts had been made to
remove a bolter entrapped by the roof fall, and the fact that no
evidence was adduced by Respondent in order to mitigate its
negligence, I conclude that the level of its negligence in regard
to the violation herein was high. Rhea testified to the hazards
miners were exposed to occasioned by their having to work to
retrieve the entrapped bolter under an area without roof
supports. However, Petitioner did not adduce evidence through
Rhea or any other witness or document, with regard to the gravity
of the violation herein, i.e., failure to report a roof fall as
opposed to hazards attendant upon the roof fall itself. I find
that a penalty of $400 is appropriate for the violation.

         c. Orders Nos. 3377049, 3277050, 3377051, and 3377052

  According to Rhea, when he examined the No. 1 entry on March

8, 1990, he observed hillseams approximately 50 to 75 feet from
the coal face, and covering an area of the roof of approximately
30 by 25 feet. Rhea stated that the width of the hill seam varied
from a "crack," to, up to 3 to 4 inches (Tr. 128). In this
connection, he said that three of the hillseams were 3 to 4
inches wide. Rhea defined hillseams as vertical fractures in the
roof.

 According to Rhea, the area in question was supported only

by bolts. There were no cross bars, steel straps, or cribs. Rhea
issued an order alleging a violation of the roof control plan
("the plan").

 In the No. 2 entry Rhea observed more than two hillseams in

the last open crosscut. He said they were approximately the same
type and width as those he testified to in the No. 1 entry,

(Order No. 3377049, infra). He indicated that the only roof
supports were roof bolts.

 Rhea also observed an area of a hillseam 8 feet wide by 20

feet in the No. 2 entry that was totally unsupported. This area
was located one crosscut inby the section dumping point, and was
100 feet outby the hillseams he had observed at the last open
crosscut.

 Rhea said he also observed hill seams in the No. 4 entry

inby the last open crosscut, and their condition was the same as
in entries one and two. Rhea issued separate orders for failure
to follow the roof plan in entries 1, 2,(Footnote 1) and 4
respectively.

 Paragraph 3 of page 5 of the plan (Government Exhibit 5),

specifically provides that when "hillseams" are encountered,
cross beams or steel straps are to be used. Inasmuch as Rhea's
testimony that there were no beams or straps in areas of
hillseams, has not been impeached or rebutted, I conclude that
Respondent herein did violate its roof-control plan in entries 1,
2, and 4.

 According to the uncontradicted testimony of Rhea, all

haulage has to go through the area in question in order to get to
the face, and, hence, miners are required to travel in the area
in question. He said that there was a danger of a roof failure
where the hillseams intersect, and an injury was reasonably
likely to occur, considering the fact that there was a roof fall
in the No. 3 entry, and the fact that the hillseams were
"numerous," (Tr. 123) and the fact that the roof conditions
stretched across the last open crosscut. Rhea also said that the
combination of hillseams across all the entries increased the
danger of a roof fall especially considering that only 50 feet
separated the entries. Should a roof fall occur, there would be a
reasonable likelihood of a injury of a reasonable serious nature
due to the fact that, at a any one time, according to Rhea, four
miners are present in the area. Inasmuch as Rhea's testimony has
not been contradicted or rebutted I conclude, that it establishes
that the violations herein are significant and substantial (See,
Mathies, supra).

 Rhea indicated that the hillseams were obvious and that

water was dripping out of them. Rhea related that he discussed
the condition with Nicely who indicated that he was aware of what
was required in the ventilation plan, and acknowledged that he
had hillseam problems in all areas of the section. Rhea testified
that Nicely was sure the section was going to be moved within the
next few days, due to the massive roof fall that had occurred in
entry No. 3 over the weekend. There is no evidence,

however, that Respondent abandoned these entries and that they
were no longer working sections. Taking into account the extent
of the hillseams, their width, and the fact that water was
dripping out of them, I conclude that Respondent was negligent to
a high degree in not having complied the terms its roof plan,
requiring the provision of additional support to the area in
question. This is especially true inasmuch as Respondent did not
adduce any facts which would tend to mitigate its negligence. Due
to the fact that the hillseams were not supported in the fashion
required by the roof control plan, which could result in a roof
fall causing serious injuries to miners, I conclude that the
violations herein were of a high level of gravity. I find that a
penalty of $800 is proper for each violation found herein.
(Footnote 2)

d. Citation No. 3391846

 MSHA Inspector Robert E. Jones, testified that on March 20,

1990, he inspected the elevated roadway, on the surface of
Respondent's No. 3 Mine. He testified that this roadway, which is
the only access to the mine, is 6 miles in length, and that 3
miles of this road, go up a steep grade which he estimated as
being more than 15 percent "in places" (Tr. 209). He said that he
observed truck traffic on the road.

 Jones testified that he observed no berms at "intermittent"

(Tr. 213) locations. He said that in narrow places where the road
had been washed out, there were no berms or guard rails. He said
that the road bed is flat, and that as it travels up to the mine
there is a ditch on the right side of the road, and a "outer bank
or the hill side" on the left side that slopes down (Tr. 217).
Jones issued a citation alleging a violation of 30 C.F.R.
77.1605(k), which provides as pertinent, that berms or guards
shall be provided on the outer bank of elevated roadways. Based
on Jones' testimony that had been neither rebutted nor
contradicted, I find that Respondent herein did violate section
77.1605(k), supra.

 Essentially, according to Jones, as a consequence of the

lack of berms, an accident is reasonably likely to occur due to
the grade of the road and its steep banks. He said that if a
truck left the roadway due to the absence of berms, and went over
the side of the hill, "there wouldn't be any hope" (Tr. 215). In
this connection he indicated that he also took into account the
width of the road bed which he indicated averaged about 15 feet,
but that in some it was not more than 10 to 12 feet wide.

 Jones, in his testimony, did not specifically indicate the

location of the areas that did not have a berm. Nor did he
describe their location with reference to any drop off from the
roadway. Nor did his testimony specify the extent and length of
any area in the roadway that did not have a berm. Accordingly, I
conclude that it has not been established that the violation
herein was significant and substantial.

 Taking into account that the violation herein might lead to

a truck running off road and seriously injuring personnel inside,
I find that the violation was of a moderate level of gravity. I
find Respondent slightly negligent in that Rhea conceded that
Respondent did a good job with the berm and that due to the
weather the berms are hard to maintain, although "it could be
done" (Tr. 219). I conclude that a penalty of $100 is appropriate
for this violation.

                      II. Docket No. KENT 90-399

a. Order No. 3377161

 On April 12, 1990, Jones issued Order No. 3377161 alleging,

in essence, that the deluge water spray system on the No. 2 belt
would not operate properly when tested, and hence was in
violation of section 75.1100-3 which provides that all
firefighting equipment shall be maintained in a usable and
operative condition. (Footnote 3)

 The system at issue contains sprays located approximately 8

feet apart, which are activated only by exposure to heat, and can
only be tested in that fashion. Water pressure is supplied by way
of a pump which is located outside the mine.

 Jones indicated that a plug, 1-inch in diameter, had been

removed from the bar connecting the spray system "together", (Tr.
236) and water was coming out of the hole where the plug had been
removed. Jones concluded that accordingly, pressure was weakened
all along the line. However, on cross-examination, Jones
indicated that there was pressure in the system. He conceded that
the only way to know whether the system works, is to open the
valve at the end of the 50 foot line. He indicated that he did
not open this valve, nor were the sprays tested by applying heat.

 Hence, although it is possible that as a consequence of the

plug having being removed there was weakened pressure, I find
that it has not been established that the system was in an

inoperative condition and was not usable. Hence, I conclude that
it has not been established that the Respondent herein violated
section 75.1100-3.

b. Citation No. 3377351

 Jones testified, in essence, that an update of Respondent's

dust-control plan was due to be submitted April 6, 1990. He said
but that the MSHA mine file for the subject mine was checked by
him on May 30, 1990, and the record did not indicate that such a
plan was submitted. Respondent did not assert or adduce any
evidence that such a plan was submitted.

 30 C.F.R.   75.316, provides that a dust-control plan ". . .

shall be reviewed by the operator and the Secretary at least
every 6 months." On the record before me, I conclude that the
operator did not submit an updated plan at the 6-month due date.
Accordingly, it was not possible for the Secretary to review such
a plan with the operator, and hence, the operator herein violated
section 75.316.

 Jones indicated, however, that Respondent herein did have a

valid plan with projections extending 6-months beyond May, 1990
and that the plan indicated good ventilation. Also on
cross-examination, it was elicited that at the date the citation
was issued, Respondent was in the process of mining out, and that
on June 22, 1990, the mine was sealed. Taking these factors into
account, I conclude that a penalty of $20 is appropriate for this
violation.

            III. Docket No. KENT 90-400 (Order No. 3376874)

 In the 001 section of Respondent's No. 3 Mine, coal is

removed by way of pillar extraction. The sequence in which coal
is mined by taking a 10 by 20 foot cut out of a 40 by 40 foot
pillar, is illustrated in Government Exhibit 16. According to
Rhea, an operator using such a system is permitted to either cut
in sequences from right to left as illustrated on Government
Exhibit 16, or from left to right. The roof-control plan, (the
plan") states that, "all pillars will be mined from the same
direction" (Government Exhibit 5, page 13). The plan illustrates
two parallel rows, each containing four breaker pillars, along
with four posts in a diagonal line, all to be placed in the last
open crosscut, outby the left split of a pillar that is being
mined. In this connection, the plan provides as follows "breaker
timbers to be installed before mining of corresponding mining
sequence number." (Exhibit P.13, supra).

 On April 17, 1990, when the section was inspected by Rhea,

production was in process, the first in the series of cuts had
already been taken from the four pillars in the section, and
breaker timbers had been installed outby the left sided split of

blocks one and four as depicted in the plan (Exhibit 5, page 13,
supra). There were no breaker timbers installed in the last open
crosscut outby the left side split of pillars one and three in
the position depicted in the plan, i.e., outby the left side
split with the row of timbers furthest to the left in a line with
the left side of the left split. However, the same number of post
called for in the plan, had been installed in the last open
crosscut, outby the right split of pillars one and three,
respectively. Rhea also observed haulage traffic going in an
outby direction, down entries two and four.

 Rhea issued an order alleging a violation of the plan, ". .

. in that the No. 1 & 2 pillar block (sic) and the No. 4 & 5
pillar blocks were being mined from one roadway." In this
connection, the order further alleges, with regard to the plan,
that it ". . . stipulates in sketch No. 8, page 13, that one
pillar split shall be mined from one roadway only."

 Page 13 of the plan (Exhibit 5, supra) does not contain any

language specifically stipulating that a split shall be mined
from one roadway only. Indeed there is no language specifically
relating mining from a pillar to any specific roadway. The only
language in the plan with regard to the direction in which the
pillars are to be mined consists of the stipulation on Page 13,
supra, that the pillars can be mined from either side and that
"all pillars will be mined from the same direction." (Emphasis
added) Rhea indicated the path to be taken by a miner, in cutting
pillars one, two, three, and four, going from right to left, and
utilizing breaker timbers as illustrated in the plan (see the
arrows on Government Exhibit 16). However, he did not testify to
having observed the direction in which all of the pillars were
cut. Indeed, he did not testify to having observed the direction
in which any of the pillars were being cut. Also, his testimony
did not set forth any explanation which would tend to indicate
that, by virtue of the placement of post in the areas observed
outby blocks one and three, as opposed to their placement in the
area depicted in the plan, all pillars would then be mined not
from the same direction.

 According to sketch 8, of the plan (Exhibit 5 supra) the

breaker timbers that are to be installed, are to be placed in the
last open crosscut, outby the left side split. As observed by
Rhea, only the timbers set at pillars two and four were in the
area illustrated on the plan, and the timbers installed at
pillars one and three were outby the right side split rather than
the left. Accordingly, I conclude that Respondent did violate the
plan as alleged.

 According to Rhea, the breaker timbers placed by Respondent

at the pillars one and three, did not provide "maximum" (Tr. 349)
support especially in the intersections between pillars one and
two, and three and four, respectively. According to Rhea, the

lack of support in an intersection results in a weakened roof,
and a greater danger of roof fall in the intersection. There is
no allegation by Petitioner that the breaker timbers installed by
Respondent were improperly installed, or were of a lesser
quantity or covered a lesser area than that stipulated to by the
ventilation plan. It also would appear that the pillars installed
by Respondent, outby the right split of pillar No. 1 provided
support to the intersection between the last open crosscut and
Entry No. 5. Similarly, it would appear that the timbers
installed outby the right split of pillar No. 3 provided
additional support to the intersection between the last open
crosscut and Entry No. 3. I thus find the evidence insufficient
to establish that the violation was significant and substantial.

 Rhea indicated in essence that in a discussion with Nicely,

he asked him if he understood the plan and he said "absolutely."
(Tr. 338). Rhea said that he asked Nicely why he pulled the
breaker timbers from the No. 2 and No. 4 entries, and Nicely told
him that he (Nicely) had stored or dumped loose materials
consisting of rocks, mud and coal in the No. 1 and No. 5 entries.
Accordingly, Rhea's testimony indicates that Respondent's action
in not following the plan was taken intentionally, and in spite
of its understanding of the requirements of the plan. Respondent
did not adduce any testimony or documentary evidence to mitigate
its negligence, or to contradict or impeach Rhea's testimony.
Accordingly, I find that the violation herein was as a result of
Respondent's unwarrantable failure (See, Emery supra).

 Inasmuch as Rhea's testimony has indicated that failure to

provide maximum roof support can lead to a roof fall, and since
the intersection between the last open crosscut, and entries two
and four had not received the maximum support stipulated by the
plan, I conclude that the gravity of the violation is moderately
high. Further, I find that Respondent's negligence was high, and
that a penalty of $950 is appropriate for this violation.

                      IV. Docket No. KENT 90-401

 On April 30, 1990, Elijah Myers, an MSHA electrical

specialist inspected the electrical systems of Respondent's No. 4
Mine. He inspected a 480-volt three-phase generator and observed
that there was neither a ground field nor a grounding resistor
installed. He observed that although there was a neutral wire, it
ended when the lead came out of the generator. He said that it
was "very evident" (Tr. 385) that a cable from the bolter was
attached to a wire from the generator. He also said that a ground
wire did not go to the roof bolter, and a pilot wire was not
hooked up going to the bolter. Myers issued Citation No. 3384008,
alleging a violation of 30 C.F.R. 75.901.

 Section 75.901, supra, provides in essence, that "Low and

medium voltage three phase alternating current circuits used

underground shall contain either a direct or derived neutral
which shall be grounded through a suitable resistor at the power
center, and a grounding circuit, . . . . " Myers testified that
the three phase circuit herein, was being used to power a
roof-bolting machine, and there was no grounding i.e., neither a
ground field nor a ground resistor was provided. This testimony
was not inpeached or contradicted. Accordingly, I conclude that
Respondent herein did violate section 75.901, supra.

 According to Myers, the absence of a ground field leads to a

hazard of electrocution, inasmuch as the amount of current is not
dissipated, and accordingly, a person coming in contact with the
bolter, could contact 277 volts and be electrocuted. I hence find
the violation to be significant and substantial (See, Mathies,
supra).

 Myers indicated that Gary Williams, Respondent's certified

electrical person, told him that he had operated the roof-bolting
machine and had installed the generator. According to Myers
Williams said he knew that the generator was not installed right,
and, "knew all this stuff had to be on it." (Tr. 389). This
testimony has been neither rebutted nor impeached. I thus find
Respondent to have been highly negligent in connection with the
violation herein. Further, considering the gravity of this
violation, as contributing to the hazard of an electrocution, I
find that a penalty of $500 is appropriate.

 Inasmuch as there was no breaker observed by Myers, he also

issued a section 104(a) citation, alleging a violation of 30
C.F.R. 75.900, which in essence, provides for the protection by
circuit breakers of power circuits serving three phase
alternating current equipment. Myers' testimony that a circuit
breaker was not present, was not contradicted or impeached.
Hence, it must be concluded that Respondent did violate section
75.900 supra.

 Myers explained that in the absence of a circuit breaker, in

the event of a overload, power would continue to flow, creating a
danger of electrocution. He indicated that if the roof bolter
would run over the cable, it would short out and put 277 volts on
of the frame of the bolter. He said that if the bolter would be
touched, the one touching it would be electrocuted. I conclude
that the violation was significant and substantial. The
appropriate penalty for this violation, considering its gravity,
and the negligence of the Respondent as set forth above, infra,
is $500.

 The testimony of Myers, which was not impeached or

contradicted, establishes that a ground monitor, to monitor the
ground wire to make sure it was not separated or broken, was not
in existence. Hence, I find that the citation in this regard
issued by Myers, alleging a violation of 30 C.F.R. 75.902, was

properly issued, as it has been established that there was no
fail safe ground check in violation of section 75.902, supra.
Essentially, for the reasons I set forth above, infra, I conclude
that the violation herein was significant and substantial.
Considering the gravity of this violation and the Respondent's
negligence as set forth above, infra, I conclude that a penalty
of $500 is appropriate.

                                 ORDER

 It is ORDERED that:

 (1) Citation No. 3391846 and Order No. 3376874 be amended to

reflect the fact that the violations set forth therein are not
significant and substantial.

 (2) Order No. 3377161 be DISMISSED.

 (3) Respondent pay within 30 days of the date of this

decision $6,970 as a civil penalty for the violations found
herein.

                                   Avram Weisberger
                                   Administrative Law Judge

Footnotes start here:-

 1. Two locations separated by approximately 100 feet.

 2. The cited violative conditions were in four distinct

separate areas, and hence four citatinos were properly issued.

 3. The order, which on its face alleges a violation of

section 75.1101, was modified on April 3, 1990, to show instead a
violation of section 75.1100-3, supra.