Shannopin Mining Company

Plain-English summary

Shannopin Mining was cited after an inspector found a shuttle car with a forward-leaning canopy and two broken welds. Judge George A. Koutras found that MSHA did not prove the canopy was unsafe under 30 C.F.R. § 75.1725(a), so he vacated the contested citation and denied its penalty. The parties settled three other citations, and the judge approved reduced penalties of $168, $50, and $227. The settled citations were to be paid within 30 days, after which the proceeding would be dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(a), 75.1710, 75.1710-1, 77.1102, and 75.220(a)(1)
• Outcome: Citation No. 3702139 was vacated, three other citations were settled for reduced penalties, and the proceeding was to be dismissed after payment.
• Key point: A visible canopy tilt and broken welds do not establish an unsafe operating condition without reliable evidence that the equipment was unsafe or required immediate removal from service.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. SHANNOPIN MINING
DDATE:
19920720
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 SKYLINE, 10TH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 91-1398
PETITIONER A.C. No. 36-00907-03763
v.
Shannopin Mine
SHANNOPIN MINING COMPANY,
RESPONDENT

                               DECISION

Appearances: Theresa C. Timlin, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Shannopin Mining Company,
Barnesboro, Pennsylvania, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed 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 Parts 75 and 77, Title 30, Code of Federal Regulations.
The respondent filed an answer contesting the alleged violations,
and a hearing was held in Washington, Pennsylvania. Three of the
violations were settled, and testimony and evidence was received
with respect to the remaining violation. The parties filed
posthearing briefs, and I have considered their respective
arguments in my adjudication of this matter.

            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.   30 C.F.R.    75.1725(a).

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

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Issues

 The issues presented are (1) whether the cited conditions or

practices constitute a violation of the cited standard; (2)
whether the alleged violation was significant and substantial
(S&S); and (3) the appropriate civil penalty to be assessed for
the violation taking into account the civil penalty assessment
criteria found in section 110(i) of the Act.
Stipulations

 The parties stipulated to the following (Tr. 6; Exhibit

(ALJ-1):

    1.    The Shannopin Mine is owned and operated by the
          respondent and it is subject to the jurisdiction of the
          Act.

    2.    The presiding judge has jurisdiction in this
          proceeding.

    3.    The citation and termination in this case were
          properly served by a duly authorized representative of
          the Secretary of Labor upon an agent of the respondent
          at the date and place stated therein and may be
          admitted into evidence for the purpose of establishing
          that they were issued.

     4.   The parties stipulated to the authenticity of their
          exhibits but not to the relevance or the truth of the
          matters asserted therein.

     5.   The alleged violation was abated in a timely
          fashion.

     6.   The respondent's history of assessed violations for
          the two year period prior to the issuance of the
          subject citation was 764.

     7.   The imposition of the proposed civil penalty will
          have no affect on the respondent's ability to remain in
          business.

     8.   The respondent's annual coal production is
          approximately 1,246,799 tons.

                               Discussion

 The parties decided to settle three of the contested

citations and they filed a motion pursuant to Commission Rule 30,
29 C.F.R. 2700.30(c), seeking approval of their proposed
settlements. Testimony and evidence was received with respect to
the following citation which the parties were unable to resolve
by settlement (Exhibit P-A).

 Section 104(a) "S&S" Citation No. 3702139, issued on May 24,

1991, by MSHA Inspector Ronald E. Hixson cites an alleged

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violation of mandatory safety standard 30 C.F.R. 75.1725(a),
and the cited condition or practice is described as follows:

      Shuttle car serial No. 6024 located in the 2 West
      section was not being maintained in safe operating
      condition. The canopy was bent forward and there were 2
      broken welds where the standards were previously
      attached to the shuttle car. The shuttle car was
      immediately removed from service. There were 4
      citations issued under 75.1725(a) during the inspection
      period 10/2/90 to 2/5/91.

Petitioner's Testimony and Evidence

 MSHA Inspector Ronald E. Hixson testified as to his

experience and training and he confirmed that he conducted a mine
inspection on May 24, 1991, and that he issued the contested
citation after finding that the cited shuttle car canopy was
damaged. Mr. Hixson stated that the canopy appeared to be
striking the mine roof or some other object in the mine, and he
observed two broken welds on the inside standards or legs that
support the canopy and the canopy was leaning in a forward
position. He believed that there was a danger for anyone to
operate the car in that condition. The car was available for
operation and it was not locked out or tagged. If a piece of
equipment is not safe, it should be locked and tagged out, or as
a minimum, tagged out. The car was located in the working section
and he had requested the section foreman to have someone tram the
car down the intake escapeway so that he could examine it for
permissibility. The power was off when Mr. Hixson examined the
machine (Tr. 7-13).

 Mr. Hixson identified a copy of his inspection notes,

including a sketch of the canopy, and he confirmed that it was
supported by four legs, or standards, one in each corner. He
stated that the two broken welds were located on the two legs
closest to the inside of the car and that the canopy was leaning
in a forward direction towards the front of the car. The
standards were approximately 24 to 30 inches long, and they are
welded to the frame of the car to provide support for the canopy.
The broken welds were approximately "a couple of inches off" the
bottom of the standards. He found nothing wrong with the welds at
the base of the standards and at the canopy roof. If the welds
were intact the canopy would be "in a straight up and down
position". However, with the broken and damaged welds, the canopy
was pushed forward. He took no measurements and did not know the
degree of lean of the canopy, but "it was clearly visible to the
naked eye" (Tr. 13-18).

 Mr. Hixson confirmed that he cited a violation of section

75.1725 (a), but could have cited a violation of

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section 75.1710. However, he decided that section 75.1725(a) was
more appropriate because he was concerned about someone operating
the machine and he wanted to take it out of service. He believed
that the broken welds rendered the machine unsafe because the
canopy was obviously striking something very hard and he feared
that the canopy might fall into the operator's compartment and
injure the operator. He was also concerned that the canopy would
not withstand the pressure that it was designed and certified to
take in the event of a roof fall. The fact that the mine has a
lot of reportable roof falls which have occurred above the roof
support anchorage zone added to his concern that the canopy was
not in a safe condition. He identified copies of MSHA Form
7000-1, submitted by the respondent during the period March 14,
1991 to March 11, 1992, reporting roof falls in the 1, 2, and 3
West sections of the mine, and he identified the areas where the
falls occurred on a mine map used in the course of the hearing
(Tr. 19-24; Exhibit P-D).

 Mr. Hixson stated that he based his "significant and

substantial" hazard finding on the following (Tr. 25-26):

      A. I've got a canopy that's damaged through striking
      something very hard. I've got a situation where a
      canopy could fall on somebody and hurt them, of which
      it has happened in the past.

      I've got a situation where I've got a canopy that is
      supposed to withstand so many pounds of pressure in a
      vertical position, and now I have one leaning in, not
      totally horizontal, but it's leaning forward and the
      standards are not straight up and down. And I have no
      idea to know now whether it can withstand the pressures
      that the certified engineer certified it will
      withstand.

 Mr. Hixson stated that his "S&S" hazard finding was also

influenced by the fact that he did not know who might be
operating the shuttle car at any given time. Although an operator
who was aware of the fact that the damaged canopy was striking
the roof might avoid that particular route of travel, someone
assigned to drive that machine who was not aware of the tramming
route of travel or that the canopy was striking the roof might
take a hazardous route causing enough additional damage which
might result in the collapse of the canopy. If the damaged canopy
collapsed and fell on the machine operator, it was reasonably
likely that he would be injured. In the event of a roof fall, and
the canopy did not hold the roof material, the operator could be
killed (Tr. 26-27). Mr. Hixson was aware of past incidents where
a canopy has collapsed and injured an operator, but not at the
respondent's mine (Tr. 28-29; Exhibit P-E).

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Mr. Hixson confirmed that he found a moderate degree of
negligence and that he based this finding on the fact that the
canopy was going to be repaired on an idle shift or over the
weekend (Tr. 29). However, he also believed that the canopy was
unsafe and that it should have been repaired immediately. A new
canopy was installed and the citation was terminated (Tr. 30).

 On cross-examination, Mr. Hixson confirmed that he opted to

cite a violation of section 75.1725 rather than 75.1710, because
he believed that the shuttle car was unsafe to operate and that
it would have endangered anyone who operated the car if he had
not taken it out of service. He did not believed that citing
section 75.1725 was contrary to the MSHA policy manual
instructions that section 75.1725 is only to be cited if no other
regulation applies. He did not believe that section 75.1710, was
applicable because the canopy, as originally installed, was
proper, and that section does not address canopy maintenance (Tr.
31-32).

 Mr. Hixson confirmed that he did not issue an imminent

danger order because he observed no one under the canopy and the
car was parked in the cross cut. In support of his "reasonably
likely and fatal" injury gravity finding, Mr. Hixson explained
that since the damaged canopy was striking something very hard,
he believed that it could happen again and that further damage
could cause it to topple in on the operator. Further, with the
two broken welds and the canopy leaning, he did not know whether
it would withstand or hold the weight as it was originally
certified by an engineer. Although he believed that he was
qualified to determine if the canopy was unsafe at the time he
observed it, he was not qualified at that time to determine
whether or not it would withstand 1800 pounds (Tr. 32-33).

 Mr. Hixson confirmed that he made no measurements, and he

estimated that the roof of the canopy would be three to five
inches above the head of the operator, but that this would depend
on the particular operator. The average mining height in the 2
West section averaged six to seven feet and he had no trouble
walking anywhere in the section (Tr. 32-33).

 Mr. Hixson explained his understanding of the meaning of

"reasonably likely to occur" as follows: ". . . the continued
presence of the situation, it's reasonably likely that it could
occur. . . that if I continue to let it run that there's the
possibility that somebody could be hurt" (Tr. 33). He further
explained that the 2 West section was a relatively new section,
and that the large number of falls in the 1, 2, and 3 West
sections led him to believe that "If you plot the falls across
there, the likelihood of a fall occurring is reasonably likely to
occur in that area. That's a large number of falls for an area of
that size" (Tr. 34).

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Mr. Hixson agreed that a person walking next to the shuttle
car and the miner helper are not required to have a canopy over
their heads, but that section 75.1710, requires that face haulage
equipment have a canopy for the operator. He pointed out,
however, that most fall problems occur inby the last open
crosscut where equipment operators spend most of their day at the
edge of unsupported roof and that the regulations were written to
provide them with as much protection as possible since they are
disturbing the roof and causing most of the vibration (Tr.
35-36).

 Mr. Hixson conceded that he had no way of testing the canopy

underground as an engineer would to determine whether it was
sufficient to hold its certified load. He stated that the canopy
is designed to hold a vertical load rather than a horizontal
load, and he believed that the broken welds on two of the canopy
legs affected the integrity of the canopy. If the welds were
intact, the legs would have been straight up and down, and they
would not have been damaged even if the canopy struck the roof.
He stated that the canopy was leaning forward, and although he
could not state where the legs were bent, he believed that
"something had to be bent" since the canopy was tilting forward
(Tr. 38).

 Mr. Hixson confirmed that he assumed that the canopy

involved in the accident at another mine operation (Exhibit P-E)
was a substantial canopy. He agreed that a new canopy which is
perfectly intact could fall on someone. He did not know whether
the two shuttle cars were similar, but believed that the mining
conditions were likely similar (Tr. 41). He confirmed that one
"canopy save" occurred at the Shannopin Mine when a miner
operator was covered up and had to be dug out, but he was not
aware of any rock falls on shuttle car canopies, and would only
know about such an incident if it is a reportable fall or someone
is entrapped (Tr. 42).

 Mr. Hixson stated that he detected no problems with the

welds on the legs of the canopy where they attached to the
shuttle car. The welds were covered with paint and he had no idea
what was under the paint. He did not know whether the damaged
canopy would sustain any kind of load and stated that "possibly
one more hit and it could come down" (Tr. 43). However, he
believed that the canopy would have deflected smaller pieces of
rock that might cause injuries (Tr. 43-44). He confirmed that
after observing the broken welds and the canopy leaning, he
concluded that it would not do the job that it was engineered to
do. He also confirmed that he did not grab and try to shake the
two legs with the broken welds, and that the welds were
completely broken and not simply cracked. Based on the condition
of the canopy, he concluded that "it had to be striking something
on the mine roof or some other piece of equipment fairly hard".
He was not certain whether the welds were part of

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the canopy installation or the support, but confirmed that the
welds hold the standards in an upright position. The purpose of
the canopy is to protect the operator from rock falls or falling
materials (Tr. 45-50). Mr. Hixson confirmed that he did not
determine how long the damaged canopy condition had existed and
that he did not seek out the person who operated the car on the
prior shift (Tr. 52).

Respondent's Testimony and Evidence

 Joseph K. Caldwell, respondent's safety director, testified

that he was very familiar with the roof conditions at the mine.
He confirmed that roof falls have occurred "in a certain way",
and that 90 percent of the falls have occurred when everyone on
the section has moved 10 to 15 rooms inby. Several weeks might
pass before the roof deteriorates, sags, and then eventually
falls out. He described the overall roof conditions as "good,
decent" (Tr. 53-54).

 Mr. Caldwell agreed with the inspector's description of the

overall construction of the canopy. It was his understanding that
the base of the canopy legs were substantially welded, and that
approximately 18 inches up the legs the welds were broken on the
braces. He stated that the canopy legs fit inside the standards
and that the broken welds were on the standards (Tr. 54-56).

 On cross-examination, Mr. Caldwell confirmed that he did not

accompany the inspector during his inspection on May 24, 1991,
was not present when he examined the shuttle car and the canopy,
and that he did not examine the car or the canopy that day (Tr.
59-60). A new canopy was immediately installed to abate the
citation, but Mr. Caldwell did not inspect the damaged canopy
after it was replaced. He agreed that a canopy with two support
legs or standards in a bent condition could present a problem.
However, based on his knowledge of a canopy that is substantially
constructed, and the fact that everything else was basically
intact, he did not believe it was unsafe (Tr. 61-62). He stated
that there are bolts that fasten the legs to the canopy and that
"there is a certain degree of play in the bolt where it's
attached to the standard" and that it "could appear to be bent
looking" (Tr. 64).

 Inspector Hixson was recalled, and he confirmed that he did

not measure to determine how far forward the two standards with
the broken welds were bent but that "it was obvious to the eye
whenever I first glanced at it that it was damaged . . . and
that's when I discovered that the welds were broken" (Tr. 64-65).
He agreed that a canopy does have "some inherent play" and that

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there is a slight tilt. In such a situation he would not cite it.
However, if he "feels that it's been damaged by being struck or
that there's a problem, then I'm going to look a lot closer" (Tr.
64).

 Mr. Hixson was of the opinion that the intent of section

75.1725 is to insure that the equipment is safe for anyone who
operates it, but it does not require that equipment be maintained
exactly as it was when it was placed in operation underground. He
was not aware of any canopy testing conducted underground, or any
MSHA studies concerning damaged canopies, or canopies with broken
welds. His understanding of section 75.1710, is that it requires
an engineer to subject a canopy ready for use to certain load
pressures stated in the regulation (Tr. 69).
MSHA's Arguments

 With regard to the application of the canopy regulations

found at 30 C.F.R. 75.1710 and 75.1710-1, MSHA takes the
position that these regulations address only the conditions under
which canopies are required, and the initial configuration
required so that a canopy may be certified as "substantially
constructed". MSHA states that the parties are in agreement that
canopies are required in the respondent's mine and that the
canopy installed on the cited shuttle car was initially certified
as substantially constructed.

 MSHA asserts that no cases have construed section 75.1710

and 75.1710-1 to impose a requirement that operators maintain
cabs or canopies, and that in general, the case law discussing
violations of 75.1710 or 75.1710-1 have addressed whether
canopies are required either in a particular mine, Eastover
Mining Co., 4 FMSHRC 1207 (July 1982); or on a particular piece
of equipment, Peabody Coal Co., 11 FMSHRC 4 (January 1989);
Sewell Coal Co., 5 FMSHRC 2026 (December 1983); or whether
operating a piece of equipment without a canopy is a significant
and substantial violation, Youghiogheny & Ohio Coal Co., 10
FMSHRC 603 (May 1988).

 MSHA confirms that its 1990 Program Policy Manual, Volume V,

Part 75, pg. 158, instructs that section 75.1725(a) "in no way
affects enforcement of other mandatory safety standards and
should be used only where such condition is not covered by any
other regulation". MSHA concludes that since the cited condition
is not covered by any other regulation the inspector
appropriately cited a violation of section 75.1725(a), and that
the issue presented in this case is whether or not the shuttle
car canopy, "which had sustained extensive damage", was in a safe
operating condition.

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MSHA acknowledges that in order to establish a violation of
section 75.1725(a), it must establish the equipment's use or
availability for use. (Explosive Technologies International,
Inc., 14 FMSHRC 59, 64-65 (January 1992). However, MSHA asserts
that a violation can occur even if the equipment is not in actual
use at the time the citation is issued, Explosive Technologies
International, Inc., 14 FMSHRC at 65, citing Mountain Parkway
Stone, Inc., 12 FMSHRC 960, 962-963 (May 1990). In the instant
case, MSHA relies on the inspector's testimony that the shuttle
car was located on a working section and was available for
operation as it was not locked out or tagged out and that the car
operator trammed it down the intake escapeway so that the
inspector could inspect it.

 Citing Peabody Coal Company, 1 FMSHRC 1494, 1495 (October

1979), MSHA asserts that section 75.1725(a) required the
respondent to maintain the shuttle car canopy in safe operating
condition and to remove the unsafe canopy or car from service.
MSHA concludes that derogation of either duty constitutes a
violation of the cited section. Citing Consolidation Coal
Company, 11 FMSHRC 2279, 2282 (November 1989), quoting Webster's
Third New International Dictionary, 1986 Edition, MSHA points
omit that "safe" has been defined as "free from damage, danger or
injury, secure . . . " MSHA asserts that section 75.1725(a) is a
recognized broad safety standard aimed at preventing hazardous
conditions as well as correcting them, that it is not necessary
for the hazard to fully materialize before remedial action is
required, and that if unsafe equipment is operated, a violation
exists whether or not the operator knew of the unsafe condition.
Secretary v. Alabama By-Products, 4 FMSHRC 2128, 2131 (December
1982); Peabody Coal Company, supra at 1 FMSHRC 1495; Peabody Coal
Company, 2 FMSHRC 1683, 1684 (June 1980).

 Relying on the Commission's decision in the Alabama

By-Products case, supra, at 4 FMSHRC 2129, MSHA points out that
the standard for determining whether machinery is in "safe
operating condition" is "whether a reasonably prudent person
familiar with the factual circumstances surrounding the alleged
hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation". MSHA also cites
Secretary v. Ideal Cement Co., 13 FMSHRC 1346, 1348 (September
1991), a case in which the "reasonably prudent person" test was
applied to an alleged violation of 30 C.F.R. 56.9002, requiring
that equipment defects affecting safety be corrected before
equipment is used.

 MSHA maintains that the respondent violated section

75.1725(a) by its failure to maintain the canopy in a safe
operating condition. MSHA concludes that the inspector was
correct in his conclusion that a violation existed based upon the
results of his investigation. In support of this conclusion,

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MSHA relies on the testimony of the inspector that the canopy was
leaning forward, its legs were bent, and that the welds which
held the inner legs upright were completely broken. MSHA points
out that the respondent presented no testimony disputing the
inspector's factual testimony regarding the condition of the
canopy at the time of the issuance of the citation, but instead,
presented only the testimony of Safety Director Joseph Caldwell,
who did not view the canopy either before or after the issuance
of the citation.

 Although Mr. Caldwell was of the opinion that the broken

welds were not on the canopy legs but on the standards attached
to the shuttle car, which the canopy legs fit inside of, MSHA
asserts that if these "standards" (which Mr. Caldwell suggests
were not a part of the canopy but were attached to the shuttle
car) were bent, simply putting a new canopy on would not solve
the problem because the canopy would still be leaning forward.
Alternatively, if the canopy legs were bent, as the inspector
testified, and the welds held the legs to the frame of the
shuttle car, MSHA concludes that placing a new canopy with
straight legs on the shuttle car and rewelding the legs, would
alleviate the problem. MSHA asserts that there is no dispute that
the violation was abated by replacing the old canopy with a new
one and no attempt was made to correct the problem by simply
repairing the broken welds. MSHA points out that Mr. Caldwell
admitted that the damage to the canopy involved the "integrity of
the structure" which the respondent's maintenance employees will
not attempt to repair (Tr. 63).

 MSHA believes that it is clear that given the factual

circumstances surrounding the damaged canopy, including the
history of roof falls peculiar to the mine, a reasonably prudent
person should have recognized the danger of allowing a shuttle
car with a visibly leaning canopy to continue to operate. In
support of this conclusion, MSHA asserts that the inspector
recognized two possible hazards in allowing the shuttle car to
continue in use. One hazard was that the canopy would not be able
to protect the shuttle car operator in the event of a roof fall.
The inspector testified that the canopy is designed to hold a
vertical load, and when it is leaning, and the legs are bent, he
believed that it was questionable that the canopy would be able
to withstand the pressures it is designed and certified to take.

 MSHA further points out that the inspector was aware that

the mine had a significant history of roof falls, particularly in
the West sections of the mine, where the shuttle car was
operating. MSHA concludes that a reasonably prudent person,
familiar with the significant history of roof falls in the Mine,
should have recognized that the visibly leaning canopy with
broken welds where the canopy legs should have been attached to
the frame of the shuttle car was unsafe and presented a hazard
that warranted

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corrective action. MSHA further concludes that the condition of
the canopy itself presented a hazard, in that the canopy was
likely to collapse in on the operator of the shuttle car. MSHA
believes that this was not a situation where the canopy shuttle
car had scratches or minor dents from striking the roof or
deflecting falling objects, but rather, the shuttle car had
become damaged by striking something particularly hard and that
hitting the mine roof would cause further damage to the shuttle
car, which could be enough to cause it to collapse.

 Finally, MSHA asserts that it is clear that a reasonably

prudent person, familiar with the fact that a canopy on a shuttle
car is obviously leaning; that the ability of the canopy to
withstand the amount of pressure which it is certified to
withstand in the event of a roof fall is seriously compromised by
its leaning position; that although canopies are designed to
withstand some damage from bumping the mine roof, the extent or
degree of this canopy's decline, as well as the bent legs on this
canopy, indicated that the canopy had stricken something hard,
most likely area(s) of the roof; that operators of face equipment
such as shuttle cars are more frequently exposed to unstable roof
and roof falls; and that there was a significant history of roof
falls in the West section of Shannopin Mine; would recognize a
hazard warranting immediate corrective action.
Respondent's Arguments

 The respondent asserts that MSHA has failed to prove that

the condition of the cited canopy in question caused the shuttle
car to be in an unsafe operating condition, and that it has no
proof to support the alleged violative conditions described in
the citation. In support of its argument, the respondent
maintains that MSHA's case rests primarily, if not solely, on the
inspector's visual examination that the canopy was leaning and
two welds were broken. The respondent relies on the frequent
admissions by the inspector (Tr. 26, 32, 37), that he did not
know whether the canopy would withstand the pressures it was
required to withstand, and it concludes that these admissions
alone support a conclusion that MSHA has failed to prove the
shuttle car was in an unsafe operating condition.

 The respondent states that a close look at the evidence in

this case shows that the inspector's allegations in the citation
have no reasonable foundation. In support of its conclusion, the
respondent points out that the canopy legs fit into additional
legs or standards which were welded onto the shuttle car, and
that these additional legs or standards were intact and there
were no defects where the legs of the canopy were attached to the
canopy itself (Tr. 17, 43, 55, Gov't Exh. B). Conceding that
there were two broken welds on the inner two legs of the canopy,
the respondent points out that the welds on the outer legs were
intact and that the inspector was not aware of the purpose of the

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broken welds and admitted that the tilt on the canopy posed no
problem (Tr. 15, 17, 65). Respondent further asserts that the
canopy could not have been tilted to any great degree because the
two outside welds were intact indicating that there was very
little tilt to the canopy.

 The respondent points out that Mr. Caldwell and the

inspector confirmed that there is some "play" in the canopy where
the leg fits into the standard (Tr. 64-65). Respondent asserts
that the canopy legs, placed in the standards, provided the
required support for the legs. Respondent suggests that the welds
were apparently only an attempt to eliminate some of the play or
looseness where the legs fit into the standards, even though the
play itself did not present a hazard (Tr. 64, 65). Respondent
also suggests that the welds may have been applied to prohibit
adjustment of the canopy, given the fact that it had been
scraping the roof at some time in the past. Respondent asserts
that the evidence indicates that the welds were not even
necessary to maintain the canopy, and it submits that a complete
absence of all four welds where the canopy legs entered the
standards would have no significant impact on the integrity of
the canopy. The respondent further concludes that the evidence
fails to show that the inspector's basis for issuing the
citation, the tilt in the canopy and the two broke welds,
rendered the equipment unsafe.

 The respondent argues further that the fact that the

inspector did not issue a citation alleging a violation of 30
C.F.R. 75.1710, which requires the shuttle car to be provided
with a substantially constructed canopy, indicates that the
shuttle car was provided with a substantially constructed canopy.
In support of this argument, the respondent cites MSHA's policy
manual under section 75.1725, which states that "This section in
no way affects enforcement of other mandatory safety standards
and should only be used where such condition is not covered by
any other regulation". The respondent concludes that since the
essence of the alleged violation is that the canopy was not
substantially constructed, the inspector, according to the MSHA
manual, should have cited section 75.1710 rather than the "catch
all" section 75.1725(a). The respondent further concludes that
the inspector's explanation that section 75.1725(a) is the
appropriate standard is contradictory and unsupportive of his
position, and since he stated that section 75.1710 did not apply,
this indicates that the canopy was substantially constructed.
Finally, since the inspector indicated that section 75.1710 does
not address maintenance, and that maintenance of the canopy was
adequate at the time (Tr. 31), respondent concludes that the
inspector was concerned that the canopy may be unsafe at a future
time, hardly a basis for issuing a citation for the present
condition.

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Findings and Conclusions

Fact of Violation. Citation No. 3702139.

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 75.1725(a), which states as follows:

      Mobile and stationary machinery and equipment shall be
      maintained in safe operating condition and machinery or
      equipment in unsafe condition shall be removed from
      service immediately.

 In construing an identical mandatory safety standard

applicable to surface coal mines (30 C.F.R. 77.404(a)), the
Commission in Peabody Coal Company, 1 FMSHRC 1494, 1495 (October
1979), held that the regulation imposes two duties upon an
operator: (1) to maintain machinery and equipment in safe
operating condition, and (2) to remove unsafe equipment from
service. The Commission concluded that derogation of either duty
constitutes a violation.

 In Alabama-By-Products Corporation, 4 FMSHRC 2128, 2129

(December 1982), the Commission upheld a violation of section
75.1725(a), and stated as follows:

      [I]n deciding whether machinery or equipment is in safe
      or unsafe operating condition, we conclude that the
      alleged violative condition is appropriately measured
      against the standard of whether a reasonably prudent
      person familiar with the factual circumstances
      surrounding the allegedly hazardous condition,
      including any facts peculiar to the mining industry,
      would recognize a hazard warranting corrective action
      within the purview of the applicable regulation.

 Section 75.1710 authorizes the Secretary to require

substantially constructed canopies on shuttle cars in order to
protect the car operator from roof falls and from rib and face
rolls. Section 75.1710-1 requires shuttle cars to be equipped
with "substantially constructed" canopies located and installed
in such a manner to protect the car operator from roof, face, and
rib falls or rolls. Pursuant to section 75.1710-1(d), a canopy is
considered to be "substantially constructed" if a registered
engineer certifies that the canopy has the minimum structural
capacity "to support elastically: (1) A dead weight load of
18,000 pounds, or (2) 15 p.s.i. distributed uniformly over the
plan view are of the structure, whichever is lesser".

 MSHA's policy manual interpretation of section 75.1725,

cites examples of equipment defects which "could indicate that
such machinery and equipment is not maintained in safe operating

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condition", and it states that a violation of section 75.1725
"would exist if such defects render the equipment or machinery
unsafe to operate" (Emphasis added).

 The parties are in agreement that canopies are required for

shuttle cars operating in the respondent's mine and that the
canopy in question was initially certified as substantially
constructed when it was installed on the shuttle car in question.
MSHA's position is that sections 75.1710 and 75.1710-1 only
address the mining conditions under which canopies may be
required, and the initial configuration required of a canopy
before it may be certified as "substantially constructed". MSHA
believes that these regulations impose no obligation or
requirement on a mine operator to maintain the canopy in a
"substantially constructed" condition after it is initially
certified and installed on a shuttle car.

 I take note of the fact that MSHA's canopy safety standards

do not include any requirements that canopies be maintained in a
"substantially constructed" condition so as to continually meet
the minimum structural criteria found in section 75.1710(d). In
short, once a canopy is certified as capable of withstanding
certain structural pressures to which it may be exposed in the
event of a roof fall, there is no specific canopy standard to
insure that a canopy which has been subjected to "wear and tear"
in the actual mining environment has not been rendered less than
"substantially constructed" after the passage of time. In the
absence of such a canopy standard, an inspector necessarily must
rely on a general "catch all" subjective standard such as section
75.1725(a), to determine whether or not an otherwise seemingly
"substantially constructed" canopy is nonetheless in "unsafe
condition" requiring its immediate removal from service. The
inspector must also rely on a policy instruction which contains
no guidance as to how one may make and support a determination
that a particular piece of equipment is unsafe solely because of
the presence of a damaged part.

 The record in this case suggests that the inspector was

rather unsure as to which regulatory standard to cite (Tr.
67-68). On direct examination, he testified that he had
violations of both section 75.1710 and section 75.1725(a), but
opted to cite section 75.1725(a), because he wanted to take the
shuttle car out of service (Tr. 18). Although his inspection
notes (Exhibit G-B), reflect that the canopy "was not being
maintained safe", he testified that he considered the maintenance
of the canopy as "adequate at the time", and that section 75.1710
did not apply (Tr. 30-31). I find the inspector's belief that an
adequately maintained canopy is at the same time unsafe to be
rather contradictory.

 The respondent's arguments that the inspector should have

cited section 75.1710, rather than section 75.1725(a), and that

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his failure to cite section 75.1710, or to follow MSHA's manual
instructions supports its contention that the canopy was
substantially constructed and that the citation should be vacated
on these grounds ARE REJECTED. In upholding a violation of
section 75.1725(a), the Commission in Alabama By-Products
Corporation, 4 FMSHRC 2128, 2132 (December 1982), held that
MSHA's policy manual instructions are not officially promulgated
rules binding upon the Commission and that the failure of the
inspector to follow such instructions did not invalidate the
citation.

 The respondent's further suggestion that an inspector's

concern that a canopy may be unsafe at some future time may not
support a citation for its present condition is not persuasive
and it is likewise REJECTED. In upholding a Commission Judge's
decision affirming a violation of section 75.1725(a), the U.S.
Tenth Circuit in Mid-Continent Coal and Colke Company v. FMSHRC
and Secretary of Labor, September 24, 1981, 2 BNA MSHC 1450,
observed that "It is clear that Congress intended the Mine Act to
both remedy existing dangerous conditions and prevent dangerous
situations from developing". See also: Alabama By-Products
Corporation, 4 FMSHRC 2128, 2131 holding that ". . . . upon
observing the defective equipment in issue, it was not necessary
for the inspector to wait until the feared hazard fully
materialized before directing remedial action".

 The respondent in this case is charged with an alleged

violation of section 75.1725(a), and the fact that the inspector
opted to cite that regulatory standard, rather than another one
is irrelevant. The selection of an appropriate standard to cite
is within the discretion of the inspector, and he assumes the
risk and possibility that he may not prevail when called upon to
prove an alleged violation at trial. In the case at hand, the
issue is whether or not the condition of the canopy, as observed
by the inspector, rendered it unsafe for immediate and continued
use within the meaning of section 75.1725(a), and whether there
is a preponderance of credible probative evidence to support the
inspector's belief that a tilted canopy with two broken welds was
ipso facto unsafe. The burden of proof lies with MSHA, and "the
fact of unsafeness, rather than the reason for the unsafeness, is
relevant", Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8, 14
(January 1981), affirmed by the Sixth Circuit at 689 F.2d 632
(1982), Cert. denied, No. 82-1433, May 16, 1983. A lack of
reliable and substantial evidence of an actual equipment defect
affecting safety justifies the dismissal of a citation, B.K.S.
Mining Co., Inc., 2 FMSHRC 998 (April 1980), final Commission
order June 9, 1980. Both of these cases concerned alleged
violations of 30 C.F.R. 77.404(a), a surface mining standard
containing language identical to section 75.1725(a).

 In this case, the inspector primarily relied on two factors

in concluding that the canopy was unsafe, namely, the tilt in the

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canopy and the two broken welds. MSHA maintains that the ability
of the canopy to withstand the amount of pressure which it is
certified to withstand in the event of a roof fall is seriously
compromised by its leaning position. However, on the evidence
presented in this case, I cannot conclude that the tilt or lean
observed by the inspector proves that the canopy was in an unsafe
condition requiring its immediate removal from service. The
inspector did not speak with anyone who may have operated the
shuttle car while coal was being produced, nor did he ascertain
when the car was last inspected or how long the condition in
question may have existed. Further, although the inspector
testified that he had taken a college class in "strengths and
materials" and a physics class, that he "knew the equipment", and
that a canopy is designed to hold a vertical load rather than a
horizontal load (Tr. 37), there is no evidence that he had any
particular engineering expertise.

 The inspector candidly admitted that he had no idea whether

the canopy would withstand the weight that it was certified to
hold in the event of a roof fall and that he was not qualified to
determine whether or not the canopy could "withstand the 1800
pounds or not" (Tr. 26, 32-33). (I take note that section
75.1710-1(d) requires a certified canopy weight load capacity of
18,000 pounds). Further, the inspector acknowledged that he took
no measurements, and did not know the degree of lean of the
canopy (Tr. 64). He also agreed that a canopy does have "some
inherent play" and slight tilt, and that in such a situation, he
would not cite it unless he "feels that it's been damaged by
being struck or that there's a problem" (Tr. 65). He confirmed
that he did not grab the support posts where the welds were
located and attempt to shake them, and he indicated that even if
he had done so, the canopy posts do have some "play" in them (Tr.
45). He could not say whether or not the support posts would have
moved freely if he attempted to shake them with his hands, and he
found no need to make this "hand test" (Tr. 46).

 Contrary to MSHA's assertions that the canopy legs were

bent, and that two of the welds which held the inner legs upright
were completely broken, the citation, as written, fails to
describe any bent legs or standards, nor does it state that the
broken welds were located where the legs or standards attached
directly to the canopy or the shuttle car. The citation states
that the 2 broken welds were located where the standards were
previously attached to the shuttle car. Although the inspector's
notes include a notation that "the standards were bent forward",
the diagram of the canopy made by the inspector does not depict
any bent legs, and when he was asked to locate the bent legs on
the diagram, he could not do so (Tr. 38). When asked whether or
not the legs were bent, the inspector replied that "the legs were
bent"; "the legs were leaning, the canopy itself was leaning
forward"; "something had to be bent, for the canopy to be tilting
forward" (Tr. 38). The inspector initially believed that the

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canopy legs and standards were one and the same (Tr. 14), whereas
the more credible and unrebutted testimony of Mr. Caldwell
reflects that the canopy legs actually fit into the standards
which were welded onto the shuttle car frame (Tr. 55-57).

 Although it is true that Mr. Caldwell was not with the

inspector during his inspection because he was not at the mine,
and he did not view the canopy when it was cited or shortly
thereafter when it was taken out of service, Mr. Caldwell
nonetheless based his testimony on his knowledge of the shuttle
cars and canopies, his observation of similar canopies before and
after the citation, and the inspector's drawing of the cited
canopy in question (Tr. 56-57). He also testified that he had
previously seen the same canopy many times, and as late as "a
couple of days" prior to the inspection in question (Tr. 60). It
was Mr. Caldwell's understanding that the broken welds were on a
piece of bracing material approximately 18 inches from the base
of the standard, but that the base of the canopy legs were
substantially welded (Tr. 54-55). I taken note of the fact that
Mr. Caldwell has been employed by the respondent for 17 years,
and his mining experience includes work as a safety inspector,
section foreman, and the operation of shuttle cars, roof bolters,
and continuous mining machines, and I find him to be a credible
witness.

 The inspector testified that the broken welds he observed

were not at the point where the legs are welded directly to the
canopy top and serve to support it, or at the base of the
standards (Tr. 16). This testimony lends some credence to Mr.
Caldwell's belief that the two broken welds may have been at one
of the brace locations, rather than on the legs themselves. The
inspector also testified that he found nothing wrong with any of
the welds at the roof of the canopy where the legs are attached
to support the canopy, or at the base of the supporting standards
which were securely welded to the frame of the shuttle car and
which served to support or house the canopy legs (Tr. 17, 43). He
believed that the canopy would deflect smaller pieces or rock
that might cause injuries (Tr. 17, 43).

 MSHA's assertion that the cited canopy "had substantial

extensive damage" is not supported by the evidence. The fact that
the canopy top showed evidence that it was probably scraping the
mine roof, standing alone, does not support a finding of
"extensive damage", and the inspector acknowledged that it was
not unusual to see evidence of roof scrapes on a canopy top (Tr.
48-49). At most, the evidence reflects the presence of two broken
weld spots at a location up from the base of the two front canopy
legs which were located inside of the four standards which were
securely welded to the shuttle car frame. Under these
circumstances, and after careful review and consideration of all
of the testimony and evidence presented in this case, I cannot
conclude that MSHA has proved that the cited canopy was unsafe,

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or that the condition of the canopy, as observed by the
inspector, rendered it unsafe and requiring its immediate removal
from service. In short, I cannot conclude that MSHA's evidence
that the canopy was unsafe, a conclusion which in the final
analysis is based on the inspector's observation of a forward
tilt in a canopy which has inherent "play", and two broken weld
spots up the side of two of the canopy legs which are otherwise
substantially welded to the base of the canopy, and which are
inside support standards which are securely welded to the frame
of the shuttle car, would lead a reasonably prudent person
familiar with those circumstances to conclude that the canopy was
unsafe and should have been immediately removed from service. In
the absence of such proof, I conclude and find that a violation
of section 75.1725(a), has not been established and that the
contested citation should be vacated.

 As noted earlier, the parties agreed to settle the three

remaining contested citations in this proceeding, and the
petitioner filed a motion pursuant to Commission Rule 30, 29
C.F.R. 2700.30, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:
30 C.F.R.
Citation No. Date Section Assessment Settlement

   3702086    5/13/91    77.1102        $227            $168
   3702038    5/16/91    77.1102        $227            $50
   3702134    5/16/91    75.220(a)(1)   $350            $227

 In support of the proposed settlement dispositions of the

three citations in question, the petitioner has submitted
information pertaining to the six statutory civil penalty
criteria found in section 110(i) of the Act. The petitioner also
submitted a full discussion and disclosure regarding the facts
and circumstances surrounding the issuance of the citations, and
a reasonable justification for the reduction of the original
proposed civil penalty assessments. After careful review and
consideration of the arguments in support of the motion to
approve the proposed settlement, I conclude and find that the
proposed settlement is reasonable and in the public interest.
Accordingly, pursuant to 29 C.F.R. 2700.30, the motion IS
GRANTED, and the settlement IS APPROVED.

                             ORDER

 IT IS ORDERED THAT:

1) The contested section 104(a) "S&S" Citation No.
3702139, May 24, 1991, citing an alleged violation of
mandatory safety standard 30 C.F.R.   75.1725(a), IS
VACATED, and the petitioner's proposed civil penalty
assessment is DENIED AND DISMISSED.

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2) The respondent shall pay civil penalty assessments in
the settlement amounts shown above in satisfaction of the
violations in question. Payment is to be made to MSHA
within thirty (30) days of this decision and order, and
upon receipt of payment, this proceeding is dismissed.

                             George A. Koutras
                             Administrative Law Judge