Harlan Cumberland Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

Harlan Cumberland Coal Company faced civil-penalty proceedings involving five dockets and multiple alleged safety violations. The parties settled some citations, while Judge Roy J. Maurer decided the remaining disputes. The judge affirmed many citations, vacated some citations for insufficient proof, modified one citation to remove the significant-and-substantial finding, and approved the settlements. The final orders required the company to pay specified penalties in each docket, including amounts already paid or reduced through settlement.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.400; 30 C.F.R. § 75.330; 30 C.F.R. § 75.220; 30 C.F.R. § 75.370(a)(1); 30 C.F.R. § 75.310(b)(1); 30 C.F.R. § 75.603; 30 C.F.R. § 75.520; 30 C.F.R. § 75.202(a); 30 C.F.R. § 75.1106-5(a); 30 C.F.R. § 75.1101-1; 30 C.F.R. § 75.1103-5(a)(2); 30 C.F.R. § 75.523; 30 C.F.R. § 75.342(a)(4); 30 C.F.R. § 75.700; 30 C.F.R. § 75.1100-2; 30 C.F.R. § 75.512; 30 U.S.C. § 814(d)(1); 30 U.S.C. § 820(i); 29 C.F.R. § 2700.31
• Outcome: The judge approved settlements, affirmed and modified several citations, vacated others, and ordered penalties totaling the amounts stated in the five docket-specific orders.
• Key point: The disposition was mixed across the consolidated dockets, with proof, gravity, and settlement terms determining the result for each citation.

Full text (FMSHRC public release)

.
HARLAN CUMBERLAND COAL COMPANY
August 4, 1995
KENT 94-267

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA  22041


                        August 4, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-267
Petitioner : A. C. No. 15-07201-03628
:
v. : Docket No. KENT 94-309
: A. C. No. 15-07201-03630
HARLAN CUMBERLAND COAL COMPANY, :
Respondent : C-2 Mine
:
: Docket No. KENT 94-822
: A. C. No. 15-08414-03619
:
: Docket No. KENT 94-844
: A. C. No. 15-08414-03620
:
: Docket No. KENT 94-845
: A. C. No. 15-08414-03621
:
: H-1 Mine

                           DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary; H. Kent Hendrickson, Esq.,
Rice and Hendrickson, Harlan, Kentucky, for
Respondent.

Before: Judge Maurer

 In these consolidated cases, the Secretary of Labor

(Secretary) has filed petitions for assessment of civil
penalties, alleging violations by the Harlan Cumberland
Coal Company (Harlan Cumberland) of various and sundry
mandatory standards set forth in Title 30 of the Code
of Federal Regulations. Pursuant to notice, these cases were
heard before me on February 22-23, 1995, in London, Kentucky.
The parties filed posthearing briefs and proposed findings
of fact and conclusions of law on June 28, 1995, which
I have duly considered in writing this decision.

 During the course of the trial of these cases, the

parties discussed and negotiated settlements concerning some
of the citations contained in these five dockets. I will
deal with and dispose of these settled citations in
this decision as well as decide the remaining issues
concerning the still contested citations, in order, by
docket number.

 In addition to the arguments presented on the record in

support of the proposed settlements, the parties also
presented information concerning the six statutory
civil penalty criteria found in section 110(i) of the
Act. After careful review and consideration of the
pleadings, arguments, and submissions in support of the
proposed settlements, and pursuant to Commission
Rule 31, 29 C.F.R. § 2700.31, I rendered bench
decisions approving the proposed settlements. Upon
further review of the entire record, I conclude and
find that the settlement dispositions which have been
previously approved are reasonable and in the public
interest, and my bench decisions are herein reaffirmed.

Docket No. KENT 94-267

 The parties have agreed to settle five of the six

citations included in this docket as follows:

                           30 C.F.R.

CITATION NO. DATE SECTION ASSESSMENT SETTLEMENT

3835289 7/30/93 75.400 $ 412 $ 350
3835291 7/30/93 75.400 412 350
4040231 8/13/93 75.330 147 124
4040189 9/28/93 75.220 147 124
4040190 9/28/93 75.400 204 173

 One citation remains to be decided in this docket which was

tried before me and was subsequently briefed by the parties.
Citation No. 3835295, issued on July 30, 1993, by MSHA Inspector
Larry L. Bush, alleges a violation of the standard found at
30 C.F.R. § 75.370(a)(1) and charges as follows:

 The operator has made a major ventilation change by
 shutting down the Louellen side fan and taking it out
 of service without prior approval from MSHA to do so.

 This citation has an unbelievably long and tortured history,

beginning even before November 18, 1992, when MSHA Inspector
Robert Rhea issued an earlier citation, Citation No. 2996273, to
this operator. Inspector Rhea issued this earlier citation for a
violation of 30 C.F.R. § 75.310(b)(1) because the respondent was
operating the No. 2 mine fan (the Louellen side fan) from a power
circuit inside the mine rather than from an independent power
circuit as required by the mandatory standard.

 For many years before this, the respondent had operated this

extra fan on the Louellen side under a waiver from the MSHA
District Manager based on the permissive language in a now
repealed mandatory standard (30 C.F.R. § 75.300-2(c)(1)). The
use of the word "should" in that standard rather than "shall" was
interpreted by MSHA to allow the District Manager to exempt
operators from the requirement that they have an independent
circuit for electrically powered mine fans.

 In 1992, new regulations went into effect making independent

power circuits for mine fans mandatory rather then permissive.
On September 2, 1992, respondent applied for a modification of
this new standard to allow it to continue providing power to its
No. 2 mine fan from a power circuit inside the mine just as it
had done under waiver since 1984. While this request was
pending, Inspector Rhea issued Citation No. 2996273 on
November 18, 1992, for a violation of the new standard, 30 C.F.R.
§ 75.310(b)(1). However, taking note of the pending Petition for
Modification, the abatement of the citation was continually
extended, eventually up to July 1, 1993.

 On July 8, 1993, MSHA denied Harlan Cumberland's Petition

for Modification. Respondent at that point then had 30 days
within which to file an appeal (that is, request a formal hearing
at the Department of Labor) of that denial.

 Meanwhile, back at the Harlan Field Office, Inspector Rhea

became aware that the modification petition had been denied and
he was informed by Mr. Clyde Bennett, the General Manager of
Harlan Cumberland Coal Company, that an appeal was going to be
filed. Rhea also states that at some point Mr. Bennett later
informed him that the appeal was going to be withdrawn. Harlan
Cumberland disputes this and in fact did file a timely appeal on
July 28, 1993, 2 days before the citation at bar was issued by
Inspector Bush.

 In any event, Rhea, assuming that Harlan Cumberland was not

going to pursue the modification petition any further, sent
Inspector Bush out to terminate Citation No. 2996273.

 This citation could have been abated by either shutting down

the No. 2 mine fan (the option taken) or installing a generator
or running a power line in from outside.

 When Bush arrived at the mine on July 30, 1993, the No. 2

mine fan had been shut down. He therefore terminated Citation
No. 2996273. But one thing leads to another. The abatement of
Citation No. 2996273 was in its turn a violation of 30 C.F.R.
§ 75.370(a)(1) and the cause for the issuance of Citation
No. 3835295, the citation at bar. The shutting down of the
auxiliary fan was a major ventilation change done without the
prior approval of the District Manager.

 The violation itself is straightforward.  The inspector

simply found that a major change in ventilation had taken place
because of the shutdown of the fan without the approval of the
District Manager, period.

 The point of contention concerning this citation turns on

what really amounts to a matter of courtesy or perhaps it could
be called "custom and practice". The operator's position is that
the citation at bar should not have been issued and the earlier
citation should have been extended rather than terminated, until
such time as the Petition for Modification was finally decided.
Inspector Bush himself allows that he would not have issued the
citation at bar had he known an appeal had been taken from the
initial denial of the operator's petition. But he did not know,
and no one at the mine bothered to tell him. If he had known, he
testified that he would have just extended the abatement period
for Citation No. 2996273, with the No. 2 fan still running, as it
had since 1984.

 The Secretary makes the excellent point in his brief that

with the appeal being mailed from Gray's Knob, Kentucky, on
July 28, 1993, it is highly unlikely that anyone at MSHA had
notice of the appeal until after the issuance of the citation at
bar on July 30, 1993.

 This citation was eventually abated by the installation of a

temporary generator and, later, a permanent power line.

 In the final analysis, I find a simple violation of the

cited standard is proven as charged.

 As for the factual disputes in the testimony about who said

what to whom, I do not find that Bush or Rhea at any time ordered
the No. 2 fan shut down, although there undoubtedly was some
discussion about that option as well as the company's option to
continue to pursue their Petition for Modification. I also find
that neither Bush nor Rhea was aware of the company's appeal as
of July 30, 1993, the date the citation at bar was written. Had
either of them understood that an appeal was pending, the
citation would not have been issued as a matter of courtesy to
the operator or the existing "custom and practice" of that
office.

 Nonetheless, the citation was in fact issued, it does state

a violation, and I am going to affirm it herein.

 After consideration of all the statutory criteria in section

110(i) of the Act, I find a civil penalty of $300 to be
appropriate.

Docket No. KENT 94-309

 The parties have agreed to settle four of the eleven

citations included in this docket as follows:

                        30 C.F.R.

CITATION NO. DATE SECTION ASSESSMENT SETTLEMENT

4040315 10/13/93 75.1101-1 $ 157 $ 120
4040316 10/19/93 75.1103-5(a)(2) 147 110
4040319 10/19/93 75.523 147 110
4040320 10/19/93 75.342(a)(4) 157 120

 Seven citations remain to be decided in this docket which

were tried before me and were subsequently briefed by the
parties.

 Citation Nos. 4248531 and 4248533 were issued by MSHA

Inspector Lloyd Sizemore on July 29, 1993. Both allege nearly
identical violations of 30 C.F.R. § 75.603, which standard
provides, in relevant part, that "[t]railing cables or hand
cables which have exposed wires. . . shall not be used."

 Harlan Cumberland admits the violations of 30 C.F.R.

§ 75.603 (see proposed findings), but disputes the "significant
and substantial" special findings in each citation.

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l). A violation is properly
designated significant and substantial "if based upon 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 Division, National Gypsum Co., 3 FMSHRC 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129 (August 1985), the Commission stated further as follows:

 We have explained further that the third element of the
 Mathies formula "requires that the Secretary establish
 a reasonable likelihood that the hazard contributed to
 will result in an event in which there is an injury."
 U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
 1984).  We have emphasized that, in accordance with the
 language of section 104(d)(1), it is the contribution
 of a violation to the cause and effect of a hazard that
 must be significant and substantial.  U. S. Steel
 Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
 1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
 1574-75 (July 1984).

 The trailing cables in question were providing power to the

two shuttle cars noted in the citations (GX-7 and GX-9). These
shuttle cars move coal from the mine to the dumping point and are
continuously powered by these trailing cables.

 Inspector Sizemore observed exposed conductor wires in both

of these cables. He testified that he could see approximately
1 inch of the exposed copper wire conductor in each of these two
cables. These cables carry 277 volts which Sizemore opined would
cause death or permanent disability from electrical shock if
contacted by a miner.

 The company's position on these citations is that the cables

are on an automatic reel and are only occasionally manipulated by
hand. Also, Mr. Eddie Sergent testified on behalf of the
respondent that there are many safety features incorporated into
the cable to knock the power off the circuit if a short occurred.
He also contradicted the inspector's opinion regarding the
likelihood of someone being injured by the condition of these
cables as described by the inspector. Sergent testified that
miners do not normally handle these cables when the power is on,
but he conceded that someone could be injured if he touched an
exposed conductor on the cable.

 It seems to me, however, that having miners working in close

proximity to an electrical hazard that might not be immediately
obvious to the casual observer, even if these cables are only
occasionally manipulated by hand is an accident waiting to
happen. It is reasonably likely in my opinion that on one of
those "occasions," a miner could be reasonably expected to
contact the exposed wire and be electrocuted. Therefore, I
conclude that there was a reasonable likelihood that the hazard
contributed to by the violation herein would result in at least
an injury-producing event. Accordingly, I find that it has been
established that the violations found herein were "significant
and substantial" and serious.

 Upon careful consideration of all of the statutory criteria

in section 110(i) of the Act, I assess a civil penalty of $1200
for each violation, or $2400 for the two.

 Citation No. 4248534 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R. § 75.520 and charges
as follows:

 The start switch on the No. 2 off standard side 21 SC
 Joy shuttle car, will not return to the position that
 allows the holding circuit to be activated.  The switch
 stays in the start position therefore when the cable is
 energized the car will start.  This car is located on
 the No. 4 section.  This citation is being issued as a
 contributing factor to imminent danger withdrawal order
 No. 4248532.  Therefore no abatement is set.  Order
 dated 07-29-93.

 After starting the motor, the start switch is supposed to

spring back to the neutral mode. The basic problem here was
the start switch would not return to the neutral mode once
it was activated. This created two separate potential
problems: First, if it was already energized and for some
reason the shuttle car operator could not hear the car
running, he could unintentionally start the car moving if he
accidentally hit the foot switch, which essentially
functions like the gas pedal on an automobile. Secondly, in
an emergency situation where the shuttle car operator had
some reason to use the panic bar or deenergization device to
stop the shuttle car, the car would start up again on its
own when the panic bar was released.

 I find the violation to be proven as charged.  The citation

was terminated upon the repair of the start switch, which
brought it into compliance with the mandatory standard. I
therefore will affirm the citation, as modified herein.

 I agree with the operator on the issue of gravity and the

"significant and substantial" special finding. These
shuttle cars have an auto-braking system installed that even
Inspector Sizemore agrees would also have to be
unintentionally released to allow the car to move. To
recap, two completely separate, independent and
unintentional actions would have to be taken, that is,
release the auto-brake lever and press the tram foot switch
in order to allow the shuttle car to move. In my opinion,
too many independent conditions have to co-exist for the car
to unintentionally move. It is possible, but that is not
enough to carry the Secretary's burden of proof on "S&S".
Accordingly, Citation No. 4248534 will be affirmed as a non
"S&S" citation and assessed a civil penalty of $400 in
accordance with section 110(i) of the Act.

 Citation Nos. 4040061, 4040439, and 4040440 were all issued

by Inspector Bush on August 30, 1993. All allege violations
of 30 C.F.R. § 75.220 in the No. 1 and 2 left rooms off the
No. 7 belt main off the 6th right panel.

 Inspector Bush identified these three cited areas of the

mine where he found adverse roof conditions, which according
to the operator's extended cut plan, required the respondent
to limit the depth of the cut to a "distance compatible with
the prevailing conditions." That phraseology "prevailing
conditions" is the bone of contention here.

 Harlan Cumberland's extended cut plan allows extended cuts

up to 32 feet, but when adverse roof conditions are
encountered, they must limit their cuts in accordance with
prevailing conditions. This is a very subjective call, and
as the respondent points out in its brief, the foreman on
the scene has to make it, subject to an MSHA inspector's
later disagreement. And, of course, in case of a
disagreement, the inspector's opinion prevails, and the
citation issues.

 In connection with the area cited in Citation No. 4040061,

Inspector Bush observed heavy rib sloughage, heavy crushing
action on the pillars, rib rolls and the mine floor heaving.
With regard to the area cited in Citation No. 4040440, Bush
testified that there was heavy roof sloughage, stretch
cracks and the roof was loaded up with pressure. With
regard to Citation No. 4040439, Bush testified that like the
other two areas, there were adverse roof conditions which in
his opinion precluded the taking of deep cuts in this area
of the mine.

 The crux of these violations are that Bush measured these

deep cuts as 27 feet (Citation No. 4040061), 25 feet
(Citation No. 4040439) and 31 feet (Citation No. 4040440)
whereas he believes the prevailing conditions were such that
the operator should have limited the cuts to 20 feet in each
of the three instances. Whether the company gets a
violation or not is entirely dependent on whether or not the
inspector believes adverse conditions exist. Although
initially the operator has discretion under the plan to cut
up to 32 feet, if the inspector subsequently disagrees, the
operator is issued a citation for violating its roof control
plan as happened here.

 In this case, the respondent produced expert testimony on

the basic underlying issue of whether or not there were adverse
conditions extant in these areas which testimony I find
somewhat persuasive, at least on the issue of the quantum of
negligence the respondent is properly chargeable with.

 Mr. Kenneth B. Miracle testified that he has worked 40 years

in underground coal mines, including 3 years as an inspector
for MSHA's predecessor agency, MESA. I found him to be an
expert in roof control, and allowed him to state his opinion
on the ultimate issue in this controversy, i.e., whether the
conditions were so adverse so as to preclude the extended
cuts that were taken. He personally viewed the areas in
question and was convinced that these areas were safely minable.
His findings contrasted with and contradicted Bush in several
important respects concerning the state of the floor and the
ribs in the cited areas.

 I am nevertheless going to go along with Inspector Bush's

finding that the operator was in violation of its Roof
Control Plan because sufficiently adverse conditions existed
in the cited areas that should have alerted them to the
requirement to cease taking extended cuts. I am also going
to find as a fact that taking deep cuts in the face of these
conditions exposed the miners working and traveling in these
panels to the hazards of roof and rib falls because these
deep cuts increased the pressure on the roof and pillars
which, in turn, increased the likelihood of rib rolls which
could reasonably be expected to lead to injuries to the
miners working in these areas. If the sloughing of the mine
roof or ribs had continued unabated, it is reasonably likely
that a serious injury would have occurred. I therefore am
going to affirm the three aforementioned citations as "S&S"
citations.

 In assessing a civil penalty for these violations, however,

I find only "moderate" negligence vice "high" negligence
involved. I do not believe there is any evidence in this
record of "high" negligence. Rather, I find that the
conflicting expert opinions of whether or not the prevailing
conditions were adverse in the cited areas demonstrates the
closeness and subjectiveness of this call, and it is a
judgement call made at the operator's peril, with little or
no objective criteria to rely on. After
considering all the statuary criteria in section 110(i) of
the Act, I assess a civil penalty of $500 for each
violation, or $1500 for the three.

 Section 104(d)(1) Citation No. 4040438 (GX-13), issued

August 30, 1993, alleges a violation of the standard found
at 30 C.F.R. § 75.220 and charges as follows:

 Evidence indicates that the operator had in use a roof
 drill on 004 section and did use this drill in heights
 exceeding the ATRS reach.  The maximum extended reach
 of the ATRS is 94 inches and areas were measured at
 107, 110, 105 inches from floor to roof, thus roof
 bolting was done in unsupported roof inby support.

 The ATRS (Automated Temporary Roof Support) system is a

hydraulic roof support system physically attached to the roof
bolter and its purpose is to provide roof support while the bolt
machine operator and his helper install roof bolts. This is
accomplished when hydraulic jacks set a bar, 9 to 11 feet long
and 8 to 10 inches wide, under pressure against the mine roof
while bolting takes place.

 As Inspector Bush explained, the ATRS mechanism must be

pressed against the mine roof in order to function as it was
designed. If it is not under pressure against the roof, it
essentially leaves the miners under unsupported roof.

 Bush's testimony as to what he observed and the basis for

his conclusion that there was in fact, a violation of the cited
standard is as follows in pertinent part (Tr. 205-206):

 Q.  All right.  What seam height did you measure in
 government Exhibit 13?

 A.  I measured heights at 107, 110 and 105.

 Q.  All right.  And how high is the extended reach of
 the ARTS system?

 A.  I had the bolter operator extend it as far out as
 it would  go and it would only expand to 94 inches.

 Q.  Did you measure that?

 A.  Yes, I did.

 Q.  So, what was the obvious conclusion from that
 measurement?

 A.  Any places they bolted--any cut places that the
 miner had just cut they would have technically, or
 basically be under unsupported roof while bolting.

 Q.  And did Mr. Shuler tell you that they had in fact bolted

some places that were higher than 94 inches?

 A.  Yes, he did.

 Q.  Is that the basis for your issuing the D1 citation?

 A.  Yes, sir.

 Q.  Based on his knowledge?

 A.  Yes, sir.

 Basically, Bush measured three places that had been bolted,

found that those floor to ceiling measurements were 107,
110, and 105 inches, respectively, and that since each
measurement exceeded the 94 inch reach of the ATRS, he
deduced that there must have been a violation. He also
deduced that no temporary supports had been used.

 Anticipating the operator's defense, Bush was questioned

about the use of temporary supports as follows (Tr. 207-
208):

 Q.  Now, when you questioned Mr. Shuler about the use

of this 94 inch ATRS system in areas that were higher
than that, did you ask--did he indicate to you in any
way that they had set temporary supports in that area?

 A.  No, sir.  He did not.

 Q.  And you conclude they had not?

 A.  Yes, sir.

 Q.  And that's why you issued the citation?

 A.  Yes, sir.

 But on cross-examination, it was also brought out he had not

asked Shuler anything about temporary supports either
(Tr. 208):

 Q.  Did you ask him specifically if he had used

temporary support? You said you concluded that he
hadn't, but did you ask him?

 A.  It's my memory, if it serves me correctly, there was no

temporary supports on the roof.

 Q.  I mean, did you ask Mr. Shuler had he used any?

 A.  No. sir.  But there was no temporary supports on

the drill.

 I agree with the respondent that Bush's rationale for

issuing this citation, gleaned from his own trial testimony, is
all based on an assumption or deductive reasoning at best, that
an ATRS violation must have occurred at the three points he
measured. He arrived at this conclusion because: (a) the
operator had in fact bolted some places that were higher than
94 inches and (b) Shuler volunteered nothing to him about the
use of temporary roof supports during the bolting process.
Clearly, he did not witness a violation, he assumed it, or to
cast it in a somewhat better light, deduced it from Shuler's
silence.

 The fact that Bush saw no temporary supports on the drill on

August 30, 1993, really adds nothing to the inquiry since no
evidence of when the suspected violative drilling took place was
introduced into the record. Not only could Bush not remember
where he made the three measurements, he made them at places that
had already been bolted, adding confusion to when the roof
bolting had taken place.

 The respondent, on the other hand, did produce credible

evidence of its general practice to use steel screw jacks if the
ATRS system cannot reach the ceiling, i.e., when roof heights
exceed the reach of the ATRS, as here. The Secretary has made no
showing in rebuttal that this general practice was not followed
whenever and wherever the bolting was performed at the three
places Bush measured.

 Accordingly, I find that the Secretary has failed to carry

his burden of proof with regard to this citation and it will be
vacated herein.

Docket No. KENT 94-822

 The parties have agreed to settle three of the five

citations included in this docket as follows:

                       30 C.F.R.

CITATION NO. DATE SECTION ASSESSMENT SETTLEMENT

3835491 11/18/93 75.400 $ 178 $ 178
3835492 11/18/93 75.700 168 168
3835495 11/18/93 75.1100-2 178 178

 Citation No. 3835490 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R § 77.205(e) and charges
as follows:

 The inclined steps leading from ground to drive level on

surface did not have side rails or guards to prevent falling from
side. Steps are approximately 5 ft high.

 Inspector Bush testified that this stairway was

approximately 5 feet high and steep, being more like a ladder
than a stairway. He testified that these steps went almost
straight up and did not have toe boards to prevent a person's
foot from slipping between the steps.

 Bush further testified that this mine was classified by MSHA

as being in BE status, that is, nonproducing, but some persons
were working. He stated that he found Mr. Bill Shuler, the mine
foreman and one other miner inside the mine working on the belt
entry setting timbers. He also observed footprints on this
stairway and a well-used pathway from the top of the stairway to
the mandoor going into the belt entry where he found Shuler and
the other miner working within 100 to 150 feet of this portal.

 The stairway was not covered and was exposed to the weather,

causing a further slipping hazard. Bush opined that a miner
could suffer an injury to his back, neck, arms or legs if he fell
from this unguarded stairway. He recounted a tale of a disabling
back injury that had occurred to a friend of his who fell on his
own self-rescuer.

 Bush served the citation on Bill Shuler, whom he believed

had probably travelled into the mine by way of these steps on the
date he issued this citation. Shuler told Bush that he (Shuler)
would have to get the construction crew back to the mine site to
install the handrails.

 The operator's defense is that the steps were simply still

under construction. They were not yet complete, but Mr. Sergent,
who testified for the operator, was unable to state how long the
steps had set there without the handrails.

 The operator also argues that the likelihood of an injury is

remote because of the limited exposure of miners to the hazard.
But I note that whether the footprints and foot traffic are
attributable to the construction crew or the miners, the risk of
injury is not reduced and the gravity remains the same. Any
person, miner or construction worker, using these steps is
exposed to the serious slip and fall hazard presented.

 Accordingly, I am going to affirm the citation as issued and

assess a civil penalty of $168, as proposed by the Secretary.

 Citation No. 3835496 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R § 75.1106-5(a) and
charges as follows:

 The oxygen gauge located at No. 4 belt tailpiece was

damaged and cutting pressure could not be determined.

 At trial, Inspector Bush was unable to recall the nature of

the damage to the pressure gauge which allegedly caused it to be
inoperative. Consultation with his notes failed to shed any
light on the subject. All he could testify to was that the
oxygen gauge was somehow damaged and cutting pressure could not
be determined. But that is the allegation contained in the
citation, almost word for word, not the proof of the facts to
support that allegation. I pointed out to the witness and
counsel for the Secretary at the hearing, that this citation and
these factual matters have now been contested by the respondent
and they are entitled to factual proofs of these allegations.

 It boils down to the proposition that the Secretary was

proving the fact of the violation by the fact that Inspector Bush
issued the citation. He told us that he does not issue frivolous
citations. If it is not a violation, he would not issue a
citation. Learning that provided little comfort for the
respondent and they moved to vacate the citation. That motion is
granted for failure of proof and Citation No. 3835496 will be
vacated herein.

Docket No. KENT 94-844

 The parties have agreed to settle six of the nine citations

included in this docket as follows:

                       30 C.F.R.

CITATION NO. DATE SECTION ASSESSMENT SETTLEMENT

3835498 11/23/93 75.370(a) $ 168 $ 168
3835500 11/23/93 75.370(a) 168 168
4257801 11/23/93 75.370(a) 168 168
4257802 11/23/93 75.370(a) 168 168
4257803 11/23/93 75.370(a) 168 168
4257804 11/23/93 75.370(a) 168 168

 Three citations remain to be decided in this docket which

were tried before me and were subsequently briefed by the
parties.

 Citation No. 3835497 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R § 75.202(a) and charges
as follows:

 There is an area of loose broken roof approximately
 20 ft X 20 ft 4 crosscuts inby the No. 3 belt power
 center in the intake air course.

 Although the roof was bolted, it had broken at an angle up

over the bolts so that the roof bolts were exposed. You could
see the bolts above the roof that had separated. The hazard was
the loose broken roof itself and the fact that its located in the
intake air course, which is the main escapeway. Because it is
the primary escapeway for the mine, it has to be examined at
least weekly when men are working at the mine. Furthermore,
there were pumps and seals located inby the area of this roof and
when miners are working underground, a preshift examination would
have to be performed daily.

 At the time this citation was written, the mine was in a BE

status, that is, it was not producing coal, but two men were
working underground nevertheless.

 The violative condition is unrebutted in the record.  The

operator instead has focused on the likelihood of exposure to
this roof fall hazard that its two miners working underground
would have faced. According to Bush, this mine has a history of
bad roof conditions and he testified that if this condition had
not been abated, the roof would have collapsed. He went on to
state that if such a collapse occurred with a miner in the
immediate area, he would have expected the injury to be at least
of a disabling nature depending on the amount of material which
fell out of the roof.

 While the miners exposed to the hazard created by this

broken and loose roof may have been limited in number, it
nevertheless subjected them to a serious likelihood of injury.
Accordingly, I am going to affirm this citation as issued and
assess the proposed civil penalty amount of $220.

 Citation No. 3835499 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R. § 75.202(a) and
charges as follows:

 There is an area of unsupported roof in the entry
 leading to the No. 2 and 3 seal.  Area is approximately
 20 ft. long and 10 ft wide.

 This was a completely bare area of the roof, that is, one

lacking any kind of roof support. The cribs which had been
installed earlier down the middle of the entry, were rotten and
deteriorating.

 This was also an area through which the miner examining the

No. 2 and 3 seals would have had to travel to make his
examination, and this roof hazard subjected him to at least a
reasonably likely threat of death or serious injury from roof
fall.

 Accordingly, I find the violation proven as charged, will

affirm the citation as written and assess a civil penalty in the
amount of $220, as originally proposed by the Secretary.

 Citation No. 4257806 alleges a "significant and substantial"

violation of the standard found at 30 C.F.R § 75.400 and charges
as follows:

 The power center, 4160 V.A.C., located at the start of
 the slope to fan had accumulation of float coal dust
 inside the power center and on the electrical
 components therein.

 Inspector Bush testified that he observed a heavy

concentration of float coal dust inside this power center which
was black in color and covered the component parts of the power
center, including the connecting leads, fuses, and insulators.
He further stated that the power center was turned on when he
observed the float coal dust and that it had various pieces of
electrical equipment connected to it, including a battery charger
and a conveyor belt power junction box.

 Inspector Bush also described the various ignition sources

in the power center which in his opinion could cause this float
coal dust accumulation to explode or burn. He named the
transformers, bus bar, and input/output cables. He also
testified that there are electrical arcing sources of ignition as
well as heat sources inside this power center and he stated that
the turning on and off of the power center can produce electrical
arcing which would ignite or cause this float coal dust to burn.
Miners working in the vicinity of this power center or inby would
be exposed to fire and/or smoke inhalation hazards as well as a
potential explosion of this float coal dust. Bush described an
incident at another mine where a power center had caught fire and
burned for two hours, emitting smoke and fumes to such an extent
that caused the mine to be evacuated, and the miners to suffer
respiratory damage.

 I conclude that the Secretary has established an "S&S"

violation of the cited standard. The inspector described a heavy
concentration of black float coal dust inside this power center
which contained a variety of ignition sources. If this condition
went unabated, I find it would be reasonably likely, in the face
of continuing use, that an explosion or fire would occur,
resulting in at least serious injury to the miners working near-
by or inby this power center.

 Upon careful consideration of all of the statutory criteria

contained in section 110(i) of the Act, I find a civil penalty of
$168, as originally proposed by the Secretary, to be appropriate,
reasonable, and in the public interest.

Docket No. KENT 94-845

 The parties have agreed to settle both of the citations

contained in this docket on the following terms:

                       30 C.F.R.

CITATION NO. DATE SECTION ASSESSMENT SETTLEMENT

3835488 11/18/93 75.512 $ 178 $ 89
4257805 11/23/93 75.202(a) 987 400*

 *  Citation modified to delete "S&S" special findings.

 **  The section 104(b) order issued in conjunction  with this

citation, Order No. 3164779 is also vacated as a part of this
settlement.

 Accordingly, I enter the following:


                            ORDER

Docket No. KENT 94-267

 1.  Citation Nos. 3835289, 3835291, 4040231, 4040189,

4040190, and 3835295 ARE AFFIRMED.

                2.  Respondent IS ORDERED TO PAY the assessed civil

penalties of $1421 to the Secretary of Labor within 30 days
of this decision. Upon receipt of payment, this case IS DISMISSED.

Docket No. KENT 94-309

 1.  Citation Nos. 4040315, 404316, 4040319, 4040320,

4248531, 4248533, 4040061, 4040439, 4040440* ARE AFFIRMED.

 *  Modified negligence finding from "high" to "moderate".

 2.  Citation No. 4248534 IS AFFIRMED as a non "S&S" citation.

 3.  Citation No. 4040438 IS VACATED.

 4.  Respondent IS ORDERED TO PAY the assessed civil penalties

of $4760 to the Secretary of Labor within 30 days of this decision.
Upon receipt of payment, this case IS DISMISSED.

Docket No. KENT 94-822

 1.  Citation Nos. 3835491, 3835492, 3835495, and

3835490 ARE AFFIRMED.

 2.  Citation No. 3835496 IS VACATED.

 3.  Respondent IS ORDERED TO PAY the assessed civil penalties

of $692 to the Secretary of Labor within 30 days of this
decision. Upon receipt of payment, this case IS DISMISSED.

Docket No. KENT 94-844

 1.  Citation Nos. 3835498, 3835500, 4257801, 4257802,

4257803, 4257804, 3835497, 3835499, and 4257806 ARE AFFIRMED.

 2.  Respondent IS ASSESSED civil penalties of $1616, and

having already paid $1008 of this penalty to the Secretary
of Labor previously, IS ORDERED TO PAY the remaining $608 to
the Secretary of Labor within 30 days of this decision. Upon
receipt of payment, this case IS DISMISSED.

Docket No. KENT 94-845

 1.  Citation No. 4257805 IS AFFIRMED.  The section 104(b)

order issued in conjunction with this citation, Order No.
3164779 IS VACATED.

 2.  Citation No. 3835488 IS AFFIRMED as a non "S&S"

citation.

 3.  Respondent IS ORDERED TO PAY the assessed civil

penalties of $489 to the Secretary of Labor within 30 days of
this decision. Upon receipt of payment, this case IS DISMISSED.

                             Roy J. Maurer
                             Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
372215-2862 (Certified Mail)

H. Kent Hendrickson, Esq., Rice & Hendrickson, P. O. Box 980,
Harlan, KY 40831 (Certified Mail)

/dcp