Consolidation Coal Company

Plain-English summary

Consolidation Coal's Dilworth Mine was cited after miners connected high-voltage cables without a qualified person and after inspectors addressed fires, hot roof conditions, trolley-wire insulation, and combustible materials. Judge Avram Weisberger vacated the citation for connecting the cable because the activity was not electrical work under 30 C.F.R. § 75.511. He also dismissed most of the contested orders and citations, while affirming Order No. 3690658 and dismissing the related contest docket. The decision addressed multiple consolidated dockets and did not impose a new civil penalty in its order.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.153, 75.511, 75.516, and 75.516-1.
• Outcome: Citation No. 3702400 and most listed orders and citations were dismissed or vacated; Order No. 3690658 was affirmed.
• Key point: Connecting cable ends by hand was treated as a physical or mechanical act, not electrical work requiring a qualified person under Section 75.511.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. PENN 91-1302-R
: Order No. 3690652; 6/24/91
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. PENN 91-1304-R
ADMINISTRATION (MSHA), : Order No. 3702374; 7/2/91
Respondent :
: Docket No. PENN 91-1305-R
: Order No. 3690658; 7/3/91
:
: Dilworth Mine
:
: Mine ID 36-04281

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 91-1462
Petitioner : A.C. No. 36-04281-03740
v. :
: Dilworth Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                          DECISION

Appearances: Daniel Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Consolidation Coal Company.
Theresa Timilin, Esq., U.S. Department of
Labor, Office of the Solicitor, Philadelphia,
Pennsylvania, for the Secretary of Labor.

Before: Judge Weisberger

 These consolidated cases are before me based upon petitions

for assessment of a civil penalty filed by the Secretary of Labor
(Petitioner), alleging violations of various mandatory safety
standards. Pursuant to notice, the cases were heard in
Waynesboro, Pennsylvania, on October 28, 1992. George Rantovich,
Randy Cunningham, Ronald Gossard, Ronald Hixson, Marlon Whoolery,
James Samuel Conrad, Jr., and James W. Reed, testified for the
Petitioner. James Hunyady, John Burr, Patrick M. Wise, and
Robert Belesky, testified for Respondent.

 Respondent filed a Post-Hearing Brief on January 11, 1993.

Petitioner's Proposed Findings of Fact and Brief was filed on
February 4, 1993.

I. Citation No. 3702400

   A.   Introduction

 On June 5, 1991, on the 8-D Section during the evening

shift, Paul Checoski, the mechanic on the section, locked and
tagged the power center supplying power to a 7,200 volt cable.
The cable was then moved, and another cable was attached to it by
John Holonich, a roof bolter, and John Rerko, a miner operator.
Neither of these was a qualified person meeting the requirements
of 30 C.F.R. 75.153. In making the connection between the two
cables, threaded ends are screwed together by hand and then
tightened with a wrench if necessary. This is the only way for
the cables to be connected to one another.

 Randy C. Cunningham, a roof bolter, and Don Jones, a

foreman, neither of whom is qualified pursuant to Section 75.153
supra, connected the extended cable to the load center.
Cunningham indicated that when he made the connection to the load
center, he and Jones "might have wiped some dirt out" (Tr. 56),
but "it wasn't bad, it was just dry dirt." (Tr. 57) He also said
that the area was damp, and there were mud puddles at various
locations.

 Once the connections were made, and before the power was

restored, Cunningham asked Sam Basle, the section foreman,
whether the connection should be inspected by a qualified person
before the cable is energized. Basle checked with the
maintenance foreman, Cy Wilson. According to Cunningham, Basle
said that Wilson told him said that such an inspection is not
necessary. When the cable was energized after the connections
had been made, it functioned properly and there were no sparks.

 On June 19, 1991, George Rantovich, an MSHA inspector,

inspected the subject mine in response to Section 103(g)
complaint that had been received in the MSHA office on June 13,
or June 14, 1991. He issued a section 104(a) citation alleging a
violation of 30 C.F.R. 75.511 based on the incident that had
occurred on June 5, 1991. Specifically, the citation alleges as
follows: "Evidence indicates that on the 8-D section 72.00
cable, an examination by a qualified person was not conducted on
the additional cable connectors and plugs before the power was
restored on cable." [sic]

 30 C.F.R.   75.511, as pertinent, provides as follows: "No

electrical work shall be performed on low, medium, or high-
voltage distribution circuits or equipment, except by a qualified
person or by a person trained to perform electrical work and to

maintain electrical equipment under the direct supervision of a
qualified person."

 As his rationale for the issuance of the citation at issue,

Rantovich indicated that a person not qualified would not
recognize the dangers presented by the presence by mud and water
in the ends of the high voltage cables that had to be connected.
He indicated that should such mud and water be present and not
removed, there is a danger of an explosion causing injuries, once
the cables are connected and energized. Ronald J. Gossard, an
MSHA electrical supervisor corroborated Rantovich's testimony in
this regard. Respondent has not impeached or contradicted this
testimony.

 B.   Discussion

 The record is clear that the persons who connected the

extension to the cable, and the cable to the load center, were
not qualified as that term is defined in Section 75.153, supra,
nor were they performing this work under the direct supervision
of a qualified person. However, in order for the activities at
issue to be violative of Section 75.511 supra, they must fall
within the ambit of that section i.e., they must be "electrical
work". In this connection, Rantovich relied on the MSHA Program
Policy Manual ("PPM"), dated April 1, 1991, which defines
electrical work as "the work required to install or maintain
electric equipment or conductors". The PPM lists as examples of
work not required to be performed by a qualified person, inter
alia, the following: "inserting low-and-medium-voltage cable
couplers into receptacles or withdrawing low-and-medium-voltage
cable couplers from receptacles". Rantovich and Gossard, in
essence, argued that since coupling low and medium-voltage cables
are examples of work not requiring a qualified person, then
coupling a high voltage cable would be considered work requiring
a qualified person. Although weight is to be accorded the
Secretary's interpretation of her regulations, the interpretation
is not binding where it goes beyond the plain meaning of the
regulations especially, where the regulations, reiterate
statutory language. (See, King Knob Coal Co., 3 FMSHRC 1417,
1420, N.3, (1981)).

 Section 75.511 supra, contains the exact language found at

Section 305(f) of the Federal Coal Mine Health Safety Act of
1969, (P.L. 91-173), ("the 1969 Act"), which has been
incorporated in the Federal Mine Safety and Health Act of 1977
("the 1977 Act"). Both the parallel language in the Senate
version of the 1969 Act, S.2917, and the House Bill, H.R. 13950,
provided that, "no work" shall be performed on high voltage
circuit or equipment except by qualified persons." (emphasis
added) The House of Representative Conference Report
accompanying S. 2917 specifically qualified this provision by
providing that, "no electrical work", is to be performed except

by a qualified person. (H.R. Rep. No. 91-761, 91st Cong., 1st
Session, at 25, found in Legislative History of the Federal Mine
Health and Safety Act of 1969, ("Legislative History of the 1969
Act"), at 1479 (emphasis added). This language was continued and
enacted in Section 305(f) of the 1969 Act.

 Neither the 1969 Act, nor the 1977 Act, nor the Code of

Federal Regulations, defined the term "electrical work". Since
the word "electrical" was added by the Conference Report, supra
and enacted in Section 305(f) supra it must be concluded that it
was meant to limit or to modify the type of work required to be
performed by a qualified person or under his supervision. The
term "electric" or "electrical" is defined in Webster's Third New
International Dictionary, ("Websters") (1986), as "1a: of
relating to, or produced by electricity... ." The activities at
issue, connecting one end of the cable to another end by hand,
are clearly physical or mechanical acts and not "electrical"
work, although the activities are performed on electrical
equipment.(Footnote 1) See, U.S. Steel Mining Co., 13 FMSHRC
1451 (Judge Koutras) (1991); Consolidation Coal Co., 12 FMSHRC
2643 (Judge Weisberger) (1990).I thus find that the activities at
issue herein do not fall within the scope of section 75.511
supra, and hence the citation at issue is to be vacated.

 II.   Orders No. 3690652, 3690658, and 3702374, and
       Citation Nos. 3690660, 3690659, and 3702375

       A.   Order No. 3690652

             Findings of Fact and Discussion

 In the track haulage entry at Respondent's Dilworth Mine,

power is supplied to the trolley wire by way of a 600 volt dc
wire that is supported from the roof by being attached to wooden
planks (hangers) which are installed at 10 foot intervals, and
are bolted to the roof. An insulator attached by its top to the
plank, and by its bottom to the trolley wire, serves to insulate
the energized trolley wire from the wooden plank and the coal in
the roof.

 On June 24, 1991, Ronald Hixson, an MSHA inspector, while

inspecting the track haulage entry at approximately 10:30 a.m.,
observed flames on one of the planks close to the No. 8 crosscut.
The plank, was 2 to 3 inches thick, 14 inches long, and 10 inches
wide. He said that the flames were 1 to 3 inches in height, and
covered an 8 inch square area. He indicated that there were
three different areas where the plank had been burnt. Also, he

1To the extent that U.S. Steel Mining Co., Inc, 5 FMSHRC 1752
(Nov. 1983) (Judge Broderick) cited by Petitioner is inconsistent
with my decision, I choose not to follow it.

said that the roof was warm. Power was then removed from the
wire by a switching it off, and the flames went out.

 On June 24, 1991, the miners at the Dilworth mine were on

vacation, and accordingly there was no pre-shift examination of
the area in question. Hixson indicated in this regard that had
he not noticed the fire, it could have smoldered or developed
into a large fire, as a few hours could have elapsed before
someone entered the area. He noted the presence of combustible
materials such as the planks, and sloughage, and the presence of
heat in the roof. He indicated that, as a consequence, within
minutes there could have been a major fire, or explosion, had he
not immediately corrected the situation. He concluded that there
was an imminent danger, and an order was subsequently issued
under section 107 of the Federal Mine Safety and Health Act of
1977 ("the 1977 Act").

 Once the power was removed and the flames went out, the

trolley wire was removed from a clip which prevented electrical
contact between the trolley wire and the plank. Also, the area
of the roof that was warm was cooled with water. Subsequent to
these actions, Hixson left the underground area and, once outside
the mine, wrote and issued a section 107(a) withdrawal order
(Government Exhibit No. 4).(Footnote 2)

 Section 3(j) of the 1977 Act supra defines an imminent

danger as "...the existence of any condition or practice in a
coal or other mine which could reasonably be expected to cause
death or serious physical harm before such condition or practice
can be abated". (Emphasis added) It thus would appear that once
the conditions constituting an imminent danger have been dealt
with, and no longer constitute an imminent danger, the subsequent
issuance of an order under section 107, is not proper.

 The definition of imminent danger contained in Section 3(j)

of the 1977 Act, supra is the same as that contained in the Coal
Mine and Safety Act of 1969 ("the 1969 Act"), 30 U.S.C. 801
et seq. The Senate Report accompanying the 1969 Act states that
once an inspector finds that an imminent danger exists, "...he

2The following testimony of Hixson offers a possible explanation
why he did not write a withdrawal order at 10:30 a.m. when he
encountered the "situation" is as follows: "When we discovered
the flame, the initial reaction was to get it out to find out
exactly how much we -- how much of a problem we had. Probably in
that hour time period where we discussed what kind of a violation
or what kind of a citation that was going to be issued. But it
was not of primary concern at the time that we found the
situation." (Tr. 161).

would be required" to issue an order requiring the withdrawal of
workers from the section of the mine where the danger exists
"...until it is determined by an inspector that the condition no
longer exist." (S. Rep. No. 411, 91st Cong. 1st Sess. at 37
(1969)), reprinted in Legislative History of the 1969 Act, supra
at 163). To the same affect is the following language in the
Section by Section Analysis, of the Senate Report, supra, with
regard to the duration of the imminent danger order, "The order
remains in effect until the inspector determines that there is no
danger." (Legislative History supra at 215). The analysis
further states that, "The concept of an imminent danger as it has
evolved in this industry is that the situation is so serious that
miners must be removed from the danger forthwith when the danger
is discovered without waiting for any formal proceedings or
notice. The seriousness of the situation demands such immediate
action." (Legislative History, supra at 215).

 The House Report accompanying H.R 13950, the House version

of the Bill that became the 1969 Act, explains that subsection a
of Section 104 deals with the finding of an imminent danger by an
inspector and that "When this occurs, the representative will
determine the area where the danger exists and immediately issue
an order requiring the mine operator to withdraw all persons,
except those necessary to take corrective action from the
affected area until the danger is abated." (H.R. Rep. No. 91-
563, 91st Cong., 1st Sess., at 8, reprinted in Legislative
History, supra at 1038). (Emphasis added)

 Hence, in requiring inspectors to issue withdrawal orders in

the presence of an imminent danger, Congress clearly intended to
have miners immediately withdrawn once the dangerous condition is
discovered, and to remain withdrawn until there is no longer any
danger as determined by the inspector. Thus, to effectuate this
legislative intent, the withdrawal order should be issued during
the time the conditions constituting the imminent danger are in
existence. It does not serve any purpose to issue such an order
once the conditions are no longer an imminent danger. (See, Utah
Power and Light Co., 13 FMSHRC 1617 at 1621, wherein the
Commission, after analyzing the legislative history of withdrawal
orders for an imminent danger concluded as follows: "Thus, the
hazard to be protected against by the withdrawal order must be
impending so as to require the immediate withdrawal of miners.")
Hence, it is clear that once the danger has been abated and is no
longer in existence, the hazard is no longer impending, and as
such, the withdrawal of miners is no longer required.

 In the instant case, in the judgment of Hixson, an imminent

danger presented itself because there were flames on the wooden
plank, the roof was hot, combustible material such as coal
sloughage, and wooden planks were present, and the mine was
considered to be gassy. However, the imminent danger order was

not written (Footnote 3) and issued until Hixson was outside the
mine, power to the wire had been turned off, the fire had been
extinguished, and cold water had been poured on the hot area to
cool it.(Footnote 4) Since there was no longer any imminent
danger when the order was issued, it cannot be found to be
valid.(Footnote 5) (See, Consolidation Coal Co., supra.

      B.   Citation 3690660

 As a result of the conditions Hixson observed on June 24,

1991, he issued a section 104(a) citation alleging a violation of
30 C.F.R. 75.516 in that "...due to the breakdown of the
insulator or dampness in the 8-D haulage at No. 8-D crosscut a
proper insulator to insulate the 550 volt dc trolley wire from
the mine roof and wooden planks was not provided."

 30 C.F.R.   75.516 supra, as pertinent, provides that power

3Section 107(d) of the 1977 Act, supra provides, in essence, that
withdrawal orders shall be given "promptly" to the operator and
"...shall be in writing" (emphasis added). Section 107(c) of the
Act mandates that a withdrawal order "...shall contain a detailed
description of the conditions or practices which cause and
constitute an imminent danger and a description of the area of
coal or other mine from which persons must be withdrawn and
prohibited from entering." In the case at bar, the written order
issued pursuant to Section 107 supra, was not issued until Hixson
was outside the mine and there was no longer any imminent danger.

4In some circumstances a timely verbal order of withdrawal is
valid where it is subsequently committed to writing (See
Consolidation Coal Co., 14 FMSHRC 2066 (Judge Melick) (1992)).
However, the record does not convincingly establish that Hixson
issued a verbal withdrawal order at a time when the perceived
danger was in existence. On cross-examination, he indicated that
he did not tell Respondent's representatives that he was going to
issue a withdrawal order as he approached the burning hanger
(wooden plank). He also indicated, on cross-examination, that he
did not recall when he told Respondent's representative Patrick
Wise, who was present, that "this was a 107(a) situation and
people should be withdrawn" (Tr. 162).

5In Complainant's brief it is argued, in essence, that the
stipulation by the parties that the 107(a) order was properly
served on Respondent, establishes that Respondent was given
proper notice that there was an imminent danger. The key issue
is not whether Respondent was aware of a dangerous condition, but
rather, whether Complainant issued a withdrawal order during the
time when an imminent danger existed. As set forth above, the
record does not establish that the withdrawal order was timely
issued.

wires "shall be supported on well-insulated insulators and shall
not contact combustible material, roof, or ribs." 30 C.F.R.
75.516-1 defines the term "well-insulated" as follows: "well-
insulated insulators is interpreted to mean well-installed
insulators. .." Hixson explained that he issued the citation
alleging a violation of Section 75.516 supra, as the failure of
the insulation is a violation i.e., that the insulator did not
do what is was designed to do i.e., to keep the electricity in
the wire. Gossard testified that if the insulator fails,
electricity from the wire will then ground to the plank and roof,
causing heat, which could lead to combustion.

 Gossard also indicated that the trolley wires at

Respondent's mine were a 600 volt system, whereas the insulators
at issue were not designed specifically for use with a 600 volt
wire system. He said the insulators could be used with either a
300 or 600 volt wire system. He indicated, in essence, that
accordingly, when the insulators are used with a 600 volt system,
arcing is more likely to occur if the insulators are not
functioning properly. In essence, he recommended using an
insulator designed to be resistent to moisture in order minimize
the risk of arcing.

 Complainant cites the fact that combustion had occurred, (as

described in II(A) infra) as evidence that the hangers and
insulators failed to operate as designed. Complainant also
refers to Hixson's testimony which sets forth his opinion that
Section 75.516 supra is intended to prevent the hazards attendant
upon contact between power wires and combustible materials. In
this connection, Complainant argues that since combustion
occurred, electrical current from the trolley wires came in
contact with the combustible wooden plank. For the reasons that
follows I find Complainant's arguments to be without merit.

 Section 75.516 supra requires that wires such as the trolley

wires in issue shall be supported on "well-insulated insulators
and shall not contact combustible materials roof or ribs".
Hence, the plain language of Section 75.516 supra indicates that
this Section is violated only if, (1) the insulators are not
"well insulated" or (2) the trolley wires contact combustible
material, roof, or ribs.

      1.   Well-insulated insulators

 Section 75.516-1 defines well insulated insulators as

meaning, "well-installed insulators". At best, the evidence
herein tends to establish that the insulators did not serve their
intended purpose due perhaps to moisture. However, there is a
lack of evidence to base a conclusion that the insulators were
not "well-installed". There is no evidence in the record to base
a conclusion as to the manner in which the insulators were
installed. Indeed, the parties stipulated that the insulators at

issue were "well installed". (Tr. 115) Thus, I conclude that the
trolley wires were well insulated.

 2.   Trolley wires in contact with combustible material

 Also, Section 75.516 supra is violated if the trolley wire

comes in "contact" with combustible material, roof or ribs.
Section 75.516 supra contains the identical language that was set
forth in Section 305(k) supra of the 1969 Act and which was
incorporated in the 1977 Act. Neither the 1969 Act nor the
regulations clarify as to whether section 305(k) (Section 75.516
supra) intended to prohibit physical or electrical contact
between a trolley wire and combustible material. However,
enlightenment as to as to Congressional intent is found in the
legislative history of the 1969 Act. The Senate Report, in its
section by section analysis, indicates that section 206(g) of the
Senate Bill, whose language was reiterated in Section 305(k) of
the 1969 Act, requires that all power conductors be "not allowed
to touch combustible material, roof, or ribs." (Legislative
History, supra at 193). To the same affect, the House Report in
its analysis of Section 305(l) of the House Bill whose language
was reiterated in Section 305(k) of the 1969 Act, states that
Section 305(l) requires that all underground power conductors be
"not allowed to touch combustible materials, roof or ribs".
(Legislative History, supra, at 1079). Thus, I conclude that
Congress intended that trolley wires not touch combustible
material i.e. not come in physical contact with these materials .

 There is insufficient evidence before me to conclude that

the trolley wires were touching any combustible material. None
of the witnesses who were present at the time, Hixson, Marlan
Whoolery a union work-around, or Patrick M. Wise, Respondent's
safety escort, provided any description of the spatial
relationship of the wire to the combustible materials, roof, ribs
or plank. Hixson indicated that once the power was off and the
flames went out, he took the trolley wire out of the clip located
at the bottom of the insulator between the insulator and the
trolley wire (See Government Exhibit No. 5). This testimony does
not establish that the wire was touching the plank or other
combustible surfaces.

 Whoolery, indicated that when he observed the plank burning,

the hanger was no longer attached to the plank. After the power
was turned off, he removed the hanger from the wire. If the wire
was attached to the hanger, but the hanger was not attached to
the plank, I cannot conclude that the wire was in contact and
touching the plank or other combustible material.

 Therefore, for all the above reasons, it is concluded that

Petitioner has not established a violation herein of Section
75.516 supra as alleged.

      C.   Order No. 3690658

 On July 3, 1991, Hixson, upon entering the 7-D track entry,

observed smoke "billowing" from the base of a hanger (Tr. 149).
He said that he then had the power turned off. Hixson said that
the roof was extremely hot where the pipe hanger was attached to
the roof. According to Hixson, there was a one-foot distance
between the hanger and the roof. The hanger was attached to the
roof by a pipe which was not insulated. An insulator separated
the roof from the energized wire. Hixson said that the roof felt
hot for about two feet around the pipe. According to Hixson, the
roof consisted of coal, shale and rock, and sloughage was
present.

 After approximately an hour, the roof had cooled off, and

there was no longer any smoke observed. Whoolery, who was
present with Hixson, indicated that after the power was turned
off, he was not part of a conversation between Hixson and Wise
but heard "bits and pieces" and that "I think it was explained it
was a 107-A" (Tr. 187). According to Hixson, "right after the
power was removed", he told Respondent's personnel that he was
going to issue an imminent danger withdrawal order (Tr. 169).
Hixson issued a written imminent danger order outside the mine at
11:35 a.m., after a new hanger was installed to replace the one
that had become hot.

 The critical issue for determination is whether an imminent

danger still existed when Hixson issued a 107(a) withdrawal
order. The order was issued in writing at 11:35 a.m., outside
the mine, clearly after the condition constituting on imminent
danger was no longer in existence. The earliest that Hixson
orally informed Respondent that he was going to issue a
withdrawal order was after the power was removed from the mine
hanger. Once power was removed, the "heavy" smoking stopped, but
there was still smoking and "hot spots" (Tr.170). The roof was
"extremely" hot around the area where the pipe entered the roof
(Tr. 150). The order subsequently issued by Hixson cites the
following conditions as constituting the imminent danger: "A hot
hanger ... was found ... the hanger had gone to ground causing
the mine roof to become hot with a large amount of smoke. The
mine roof ... had coal in this area" [sic]. In his testimony,
Hixson explained that the presence of smoke indicated a fire, and
that he issued the 107(a) order because there was an
"uncontrolled" fire that had a potential for disaster (Tr.159).
Ron Gossard, an MSHA electrical supervisor testified, in essence,
that smoke indicates that combustion was taking place. According
to Gossard, the presence of smoke can lead to smoke inhalation,
exposure to carbon monoxide, and the impediment of exit from the
mine. He also indicated that the amount of heat in the coal roof
is dependent on the amount of current that passes into the coal
strata, as well as the passage of time. I accept his testimony
due to his expertise and experience. Hence, I find that even

though power had been turned off when Hixson orally advised
Respondent that he was going to issue a 107(a) order, there still
was a fire in the coal roof. Gossard opined that given the
combustion, the roof will fracture and "in all probability" drop
out of the main mine roof (Tr. 237). When this occurs, particles
of smoldering coal are exposed and "can very readily" burst into
flames (Tr. 237). This "could happen quickly" (Tr. 237) Gossard
also indicated that with the roof falling out, "there's a very
distinct possibility that when this roof fractures it will bring
a long section of trolley wire down with it" (Tr. 238). In this
event trolley wire contacting the rail will cause arcing.

 Within the framework of this testimony I affirm the oral

notification of withdrawal issued by Hixson when the power was
turned off, and subsequently committed to writing as Order No.
3690562.
D. Citation No. 3690659

 On July 3, 1991, in addition to the imminent danger order,

Hixson issued a Citation alleging a violation of Section 75.516
supra. According to Hixson, smoke was coming from the point
where the pipe hanger was attached to the roof. He did not
specifically indicate that the trolley wire was touching the
roof, or any other combustible material. Whoolery indicated that
there was a glow around the insulator, the plastic on the trolley
wire was smoldering, and that coal in the roof was burning. He
too did not specifically state that the trolley wire was touching
any combustible material. Neither Whoolery nor Hixson nor any
other witness or any other evidence has indicated the manner in
which the insulators were installed. I thus find that it has not
been established that the insulators were not well installed. It
also has not been established that the trolley wire was in
contact with any combustible material, roof or ribs. Thus, for
the reasons set forth above, II (B) infra, I conclude that it has
not been established that there was any violation of Section
75.516 supra, and thus Citation No. 3690659 must be dismissed.

      E.   Order No. 3702374

 On July 2, 1991, James Samuel Conrad, Jr., an MSHA

inspector, was at the subject mine to perform a methane spot
inspection. At approximately 8:45 a.m., in the track haulage
entry, he observed that the roof was smoldering and there was
smoke around the metal rod in the roof. He said the roof was
warm to touch for an approximately five foot radius around the
smoke. He said that the only obvious reason for this heat was
the failure of an insulator, as there was no other source to
generate smoke out of a hole where the metal rod had been placed
in the coal. He then cut off power to the trolley wire, removed
the insulator from the rod, and proceeded to pick down coal from
the roof. Water was applied for approximately 45 minutes to cool
the roof. Also the hanger was replaced.

 Conrad indicated that there was coal four inches into the

roof. In addition, he said that sloughage was present, and there
were wooden cribs in the intersection. He said that all these
items were combustible.

 James W. Reed, a union walk-around who was with Conrad, also

observed a "good bit" of smoke coming out of the coal in a 4 foot
wide area surrounding the pipe hanger (Tr. 224). He also said
that the slate was hot to the touch above the coal. He indicated
that the coal from the roof that had been "picked down" had
fallen to the ground. (Tr. 226) He said that this coal was still
"smoking" when it was on the ground (Tr.226). According to his
testimony, the coal was hosed down for about a little more than
10 minutes, and "it was cooled down pretty much and we felt we
had it pretty much in control" (Tr.227). [sic] He said that at
approximately 9:35 a.m., the situation was "under control and we
left...". (Tr. 229) Prior to that time, Conrad did not orally
advise Respondent of any withdrawal order.

 At about 10:35 a.m., after the imminently dangerous

conditions ceased to exist, Conrad told Respondent's
representative Robert Velesky, that he probably will issue a
section 107 order with regard to the hot hanger.

 At the end of the inspection at about 1:00 p.m., Conrad

issued a written imminent danger order indicating that the order
was issued 8:45 a.m., and terminated 9:35 a.m. In essence,
Conrad said he did not issue the order earlier, because "I was
more concerned with the facts of dealing with the condition at
hand. And I felt the paperwork was just a preliminary thing, a
follow-up." (Tr. 217) [sic]. He also indicated that he took
into consideration the fact that Hixson had previously issued a
107(a) order "on very similar circumstances". (Tr.217).

 I find that the evidence does not establish that the 107(a)

order was issued at a time when the conditions constituting an
imminent danger were still in existence. Therefore as explained
above, II(A) infra, I conclude that the Section 107(a) order was
not properly issued.

      F.   Citation No. 3702375

 On July 3, Conrad issued a citation citing the conditions

observed by him on July 2, and alleging a violation of 30 C.F.R.
75.516. In the citation he alleged that a "shorted ou
insulator that was supporting the energized trolley and feed wire
caused the roof coal in the immediate mine roof to catch fire."
However, there is no evidence in the record with regard to the
manner in which the insulators were installed. Specifically,
there is no evidence that the insulators were not well installed.
Also, there is no evidence that the trolley wire was touching the
roof or any other combustible material.

 Therefore, for the reasons set forth above, II(B) infra, I

find that it has not been established that there was a violation
of Section 75.316 supra. Accordingly the citation should be
dismissed.

                          ORDER

 It is hereby ORDERED that Order No. 3690658 be affirmed and

Notice of Contest Docket No. PENN 92-1305-R be DISMISSED. It is
further ORDERED that the following Orders and Citations be
DISMISSED: 3690652, 3690659, 3690660, 3702374, 3702375 and
3702400.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

Theresa C. Timilin, Esq., Office of the Solicitor, U. S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
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