Cyprus Cumberland Resources Corp.

Plain-English summary

MSHA alleged that Cyprus Cumberland Resources violated a haulage safeguard at the Cumberland Mine when a vehicle entered a signal block without confirming that the block was clear. The judge found that a communication failure violated the safeguard, but the evidence did not establish that the violation was significant and substantial or caused by unwarrantable failure. The judge modified the withdrawal order to a section 104(a) citation, deleted the S&S designation, and assessed a $100 penalty.

Decision snapshot

• Cited provision: 30 C.F.R. § 75.1403
• Outcome: The order was modified to a 104(a) citation, the S&S designation was deleted, and a $100 penalty was assessed.
• Key point: A haulage safeguard violation caused by a miscommunication was not S&S or unwarrantable on this record.

Full text (FMSHRC public release)

[DOCID: f:p95-75.wais]

CYPRUS CUMERLAND RESOURCES CORP.
May 7, 1996
PENN 95-75

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                      5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA  22041


                         May 7, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 95-75
Petitioner : A.C. No. 36-05018-04044
:
v. :
:
CYPRUS CUMBERLAND RESOURCES : Cumberland Mine
CORPORATION, :
Respondent :

                           DECISION

Appearances: Joseph T. Crawford, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for the
Petitioner; R. Henry Moore, Esq., Buchanan Ingersoll,
P.C., Pittsburgh, Pennsylvania, for the Respondent.

Before: Judge Feldman

 This matter is before me as a result of a petition for civil

penalty filed by the Secretary of Labor pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., (the Act). The petition seeks a civil penalty of
$2800.00 for an alleged violation of a notice to provide safeguard
that had been issued pursuant to section 75.1403, 30 C.F.R. � 75.1403.
The subject safeguard violation was designated as significant and
substantial, and allegedly was attributable to the unwarrantable
failure of Cyprus Cumberland Resources Corporation (Cumberland).

 This case was heard on the merits, in a trial of one full

day's duration, on February 28, 1996, in Washington, Pennsylvania.
The parties' posthearing briefs are of record. For the reasons
discussed below, the safeguard violation shall be affirmed. However,
the Secretary has failed to carry his burden of establishing that
the violation was properly characterized as significant and
substantial, or, attributable to the respondent's unwarrantable
failure. Consequently, a nominal civil penalty of $100.00 shall
be imposed.

Background

 Section 75.1403 authorizes a Mine Safety and Health

Administration (MSHA)Inspector to issue safeguards, that in the
inspector's judgement, are necessary to "minimize hazards with
respect to transportation of men and materials..." In 1980,
Cumberland voluntarily installed a signal block light system to
control traffic on its track haulage at the Cumberland Mine.
Under this system, a track section, of varying length, is
designated as a "block" by installation of a red light at each
end. The red light at both ends of the block can be turned on or
off from either end. The operator of a transport vehicle turns
on the block lights upon entering the block, and turns off the
block lights upon leaving the block. This signals would-be
operators seeking to enter a block whether the track in the block
is in use.

 Over the last 15 years, since the installation of

Cumberland's signal block system, MSHA has issued numerous
safeguards at the Cumberland Mine. These safeguards include a
safeguard requiring Cumberland to maintain its signal blocks, and
a safeguard requiring a distance of 300 feet between vehicles
traveling in the same block.

 Cumberland communicates information to personnel about its

haulage system by various methods including safety messages. On
September 27, 1993, Cumberland issued the following safety
message concerning use of its signal block system:

 1.   Stop before pulling onto the main line from
      any switch.  Make sure nothing is coming
      before pulling out.  Remember there may be
      more than one piece of equipment in a block
      light.  Just because a block light isn't on,
      doesn't give you the right-of-way. Don't just
      pull onto the haulage.  It's possible the
      power is off, the block light doesn't work or
      the operator of the on-coming vehicle missed
      the block light.  If a block light is on,
      wait for a reasonable length of time, then
      proceed with caution.

 2.   Block lights must be used by everyone as they
      travel the haulage.  If a light doesn't work, you
      should proceed with caution.  Report any lights
      that don't work.  (Ex. R-4).

 MSHA Supervisor Robert Newhouse and MSHA Inspector

Robert Santee testified the safety procedures outlined above
were acceptable to MSHA. Cumberland disciplines employees
who fail to follow proper haulage procedures.

Preliminary Findings

 On October 25, 1993, MSHA inspectors Frank Terrett and

Robert Santee were inspecting the Cumberland facility. On
that day, as Terrett was waiting to enter the mine in a mantrip,
a crew exiting the mine in their mantrip was traveling too
fast and bumped the vehicle in which Terrett was sitting. As
a result of this incident, Terrett issued a safeguard, not in
issue in this proceeding, requiring vehicles to be operated
at speeds consistent with the conditions and the equipment used.

 Later that day on October 25, 1993, Santee encountered a

signal block light that had apparently been left on after the
vehicle had left the block. Given this condition, and the
previous incident involving Terrett, Santee issued Safeguard
No. 3655478. This safeguard provided:

 The operator has installed signal block lights along the

track haulage at several different locations to be used by
track haulage equipment operators to assure such operators
that a clear road exists. The signal block lights installed for
the 60 Mains to "0" Butt switch were left on.

 This is a notice to provide safeguard requiring track haulage

equip. operators to use the block lights installed along supply
track haulage at the mine, to clear such lights (turn off after use)
in order to assure approaching haulage equipment a clear road exists
and also only 1 piece of haulage equipment shall be operated in the
same block light except trailing locomotives that are an integral
part of a trip may be operated the same block light. (Joint
Stip. 2)

 On November 1, 1993, after discussions between Cumberland

and MSHA, Santee, under the direction of his supervisor, modified
the safeguard as follows:

      Safeguard No. 3655478 is hereby modified to delete the
 wording on the last 4 lines in the body of this notice to
 provide safeguard beginning after the word "and" which is the
 8th word on line 9, and to be replaced with the following
 wording to read as: haulage equipment operating in the same
 block light, shall maintain a safe distance which will allow
 them to stop within the limits of visibility, but at no time
 shall they be closer than 300 feet.  Haulage equipment operating
 in the same block light shall communicate, by some means, to
 be assured the signal block light will be turned off after
 the last haulage equipment exits the last block.  (Id.)

 Thus, the modified safeguard removed the prohibition of more

than one vehicle in the same block, and, substituted the requirement
that vehicles in the same block must maintain a minimum distance of
300 feet. The modified safeguard also required operators of
equipment in the same block to communicate (by hand signals) to
ensure that the operator of the last vehicle turns off the block
light as he exits the block.[1]

 Cumberland transports material and miners in two different

varieties of battery powered mantrips called duckbills and crickets.
Generally speaking, mantrips are personnel carriers with covered
compartments on either end for passengers. Mantrips are operated
from a position between the two passenger compartments. Duckbills
are similar to mantrips except the cover for one of the compartments
is removed to enable supplies to be transported in the open end.
Crickets are small, slow-moving personnel carriers that hold four
persons. Duckbills are faster than crickets, but travel only 5 to 8
miles per hour.

 On July 14, 1994, maintenance foreman Doug Conklin and hourly

mechanic Mark Zuspan were entering the mine in a duckbill operated by
Zuspan. Zuspan was an experienced operator. He frequently used the
haulage track, and he was familiar with the signal block system.
Zuspan and Conklin traveled in the duckbill down the 57 Mains Haulage
to where the 55 North haulage turns to the left. The 1A block (first
block) on the 55 North haulage off the 57 Mains is 1,200 feet long.
There is a curvature in the track entering the 55 North haulage that
obscures visibility down the full length of the track. Conklin and
Zuspan testified that, as they approached the signal switch for the
1A block in the 55 North haulage, they observed the 1A block lights
were illuminated.

 A motor attached to two rockdust tanks and a trailing motor were

coming out of the 55 North haulage and about to enter the 57 Mains.
Conklin exited the duckbill to throw the track switch so Zuspan could
pull the duckbill past the 55 North haulage to permit the rockdust
cars to turn right on the 57 Mains to continue out of the mine. As
the dustcars passed the duckbill, Zuspan and the operator of the first
motor signaled to each other that they could "have" each others signal
block light. However, the operator of the second motor could not see
Zuspan's signal to the first motor operator due to a curvature in the
track. As Zuspan was moving his duckbill inby on the 57 Mains to clear
the way for the outby route of the dustcars, the second motor operator
apparently turned off the 1A block light. Both Zuspan and Conklin
lost sight of the 1A block because of Zuspan's maneuvering of the
duckbill and Conklin's switching of the track to allow the duckbill
to turn onto the 55 North haulage.

 During the interim period when the second motor operator

turned off the signal lights and Conklin had switched the 57 Mains
track back to the direction of the 55 North haulage, an inspection
party in a cricket turned on the signal lights as it entered the
1A block in the North haulage 1200 feet from the intersection
with the 57 Mains. The inspection party consisted of Inspector
Santee, Cumberland's representative Mike Konosky, and UMW
representative David Chipps. After Conklin reentered the duckbill,
Zuspan entered the 55 North haulage under the mistaken belief that
the lights activated by the inspection party were left on by the
dustcar motorman.

 As Zuspan came out of the curve at the beginning of the 1A Block,

he observed the lights from the inspection party's cricket at the other
end. The track was straight, visibility was good, and the cricket
was slow moving. Zuspan had plenty of time and pulled into the 55
North switch and waited for the cricket to pass. While Zuspan and
Conklin were waiting, Conklin exited the duckbill to check on a nearby
belt drive.

 The inspection party had also observed the duckbill from the other

end of the block. As they traveled down the 1A Block, Santee informed
Konosky that he was issuing a citation for violation of the signal
block safeguard. Santee testified that the first conversation he
had with Zuspan upon arriving at the 1A switch was about Zuspan's
assumption that the block lights had been left on by the motor crew.
(Tr. 99, 226). When Conklin returned from the belt drive, Santee
learned that Conklin was a foreman who had accompanied Zuspan in the
duckbill. Consequently, Santee informed Konosky that the citation
"just became an unwarrantable failure." (Tr. 238, Gov. Ex. 5, p.17-18).
Santee testified Conklin "confirmed" Zuspan's statement concerning
the block lights and the motor crew. (Tr. 99).

 As a result of Santee's observations and discussions with

Zuspan and Conklin, Santee issued 104(d)(2) Order No. 3672055
alleging the following safeguard violation:

 The ML204 motor being operated by Mark Zuspan under the
 supervision of Doug Conklin (Maint. Foreman) entered the
 signal block lights off 57 Main East Supply truck haulage
 onto 55 Face North signal track haulage between 1A junction
 as such lights had been turned on by the operator of the
 ML408 crickett which was traveling outby towards 57 Face
 North area 57 Main East junction.  The ML 204 motor entered
 such signal block light without assuring that a clear road
 exists and the Maint. [F]oreman is an acting agent of the
 operator.  There were 16 violations issued during the last
 inspection period from 04-01-94 to 06-30-94 of 30 CFR
 75.1403.  (G-1).

FOOTNOTES

[1]: Inspector Santee and MSHA Supervisory Inspector Robert
Newhouse testified that Cumberland's haulage car operators relied
on verbal communication or hand signals. MSHA does not require
the haulage vehicles to be equipped with two-way radios. (Tr.
74-75, 86, 112, 158-59).

Further Findings and Conclusions

a. The Validity of the Safeguard

 The threshold issue in this proceeding is whether Safeguard

No. 3655478 issued by Santee on October 25, 1993, as amended, is
valid. The Commission has noted that section 314(b) of the Act,
30 U.S.C. � 874(b), commits to the Secretary, through his MSHA
inspectors, broad discretion to issue safeguards, without operator
consultation, in order "to guard against all hazards attendant
upon haulage and transport[ation] in coal mining." Southern
Ohio Coal Company, 14 FMSHRC 1, 8 (January 1992); Jim Walter
Resources, Inc., 7 FMSHRC 493, 496 (April 1985).

 In order to issue a notice to provide safeguards, an

inspector must determine: (1) determine that there exists at the
mine an actual transportation hazard not covered by a mandatory
standard; (2) determine that a safeguard is necessary to correct
the hazardous condition; and (3) specify the corrective measures
that the safeguard should require. 14 FMSHRC at 8.

 In considering Cumberland's obligations to maintain and use

its block light system, it is axiomatic in analyzing culpability
that one who chooses to act, although there is no duty to act,
must act prudently to avoid exposing others to harm. Thus,
although Cumberland was not required to install its signal block
system, having elected to do so, Cumberland is resposible for
maintaining the system and ensuring that its personnel comply
with its block light safety procedures. Cumberland recognized
this responsibility in its September 27, 1993, safety message
which reminded its personnel that "[b]lock lights must be used
by everyone as they travel the haulage." (Ex. R-4).

 Santee's testimony that he observed a block light on when he

issued the subject safeguard on October 23, 1993, is uncontradicted.
Although the circumstances surrounding this condition are unknown,
this condition manifested a failure to adhere to Cumberland's
block light procedures. Thus, it was within Santee's discretion
to conclude that the failure to follow Cumberland's block light
safety policy posed a transportation hazard at the Cumberland
Mine, and, that a safeguard notice was necessary to ensure
compliance. As noted below the safeguard, as amended, adequately
set forth the corrective measures required. Consequently, I
conclude that Safeguard No. 3655478 was validly issued.

b. Fact of Violation

 The subject safeguard, as amended, established four things

that operators of haulage equipment must do. They are:

 1.   Equipment operators are to use the signal block lights
      installed along supply track haulage at the mine.

 2.   Equipment operators are to clear such lights (turn off
      after use) in order to assure approaching haulage
      equipment a clear road exists.

 3.   Haulage equipment operating in the same block light,
      shall maintain a safe distance which will allow them to
      stop within the limits of visibility, but at no time
      shall they be closer than 300 feet.

 4.   Haulage equipment operating in the same block light
      shall communicate, by some means, to be assured the
      signal block light will be turned off after the last
      haulage equipment leaves the light block.  (J-3)

 In applying the safeguard requirements to the facts in this

case, it is necessary to rule on the credibility of Zuspan and
Conklin concerning thier testimony that they mistakenly assumed
the dustcar motor operators had left the block lights on for
them. While self-serving exculpatory statements must be viewed
cautiously, such statements are entitled to greter weight if they
were made spontaneously to the on-site inspector rather than if
the explanation was first presented at trial.

 In this case, Santee's testimony revealed the testimony of

Zuspan and Conklin is entirely consistenet with the information
provided by them to Santee when the 104(d)(2) Order was issued on
July 14, 1994. Moreover, although given the opportunity at
trial, Santee did not refute the story related to him by Zuspan
and Conklin. In fact, Santee testified that, although he did not
recall seeing any motors in the 1A block, he had no reason to
doubt Zuspan's story. (Tr. 135-36). Accordingly, I conclude that
Zuspan maneuvered the duckbill into the 55 North haulage under
the mistaken belief that the block lights had been left on by the
dustcar motorman.

 Under this scenario, the first three requirements of the

safeguard were not violated in that the block lights were used,
they were turned off by the rear motorman, and, there was no
operation of vehicles in the same block within 300 feet of each
other (in the same direction). However, the Secretary has
prevailed in establishing a violation of the safeguard's fourth
requirement. By Zuspan and Conklin's own admissions, there was a
failure of communication between them and the dustcar motormen to
assure that there was no misunderstanding concerning the status
of the block lights as Zuspan's duckbill entered the 1A block of
the 55 North haulage. Consequently, the record supports the fact
of the violation of the safeguard in question.

c. Significant and Substantial

 A violation is properly designated as significant and

substantial (S&S) in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to [by the violation] will result in
an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1 (January 1984) the Commission
explained:

 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 [by
 the violation] will result in an injury; and (4) a reasonable
 likelihood that the injury in question will be of a reasonably
 serious nature.  6 FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
criteria).

 As noted above, it is crucial that resolution of whether a

particular violation is significant and substantial must be based
"on the particular facts surrounding the violation...." Texasgulf,
Inc., 10 FMSHRC 498, 501 (April 1988). With the exception of
respirable dust violations that are presumed to be S&S because of
the cumulative effects of respirable dust inhalation, issues
concerning S&S and unwarrantable failure must be decided on a case
by case basis. See Consolidation Coal Co., 8 FMSHRC 890, 898
(June 1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). In fact, the
Commission has recently rejected the concept of relying on
rebuttable preumptions to resolve questions of unwarrantable
failure. Peabody Coal Company, 18 FMSHRC , slip op. at 5
(April 19, 1996).

 Thus, although violations may appear to be S&S and/or

unwarrantable, an examination of the particular facts surrounding
the violation may preclude such characterizations. For example,
although mining a pillar in violation of a roof control plan
would ordinarily manifest an unwarrantable failure, the violation
is not unwarrantable where the facts of the particular violation
support the operator's contention that contact with the pillar by
the continuous miner operator was inadvertent. S & H Mining,
Inc., 18 FMSHRC 50 (January 1996) (ALJ).

 In the instant matter, this particular violation of the

safeguard did not occur because of a conscious, reckless, or even
careless, disregard of the operational block lights. Such
conduct surrounding a violation would justify an S&S designation,
particularly when viewed in the context of continued normal
mining operations. Halfway Incorporated, 4 FMSHRC 8, 12-13
(January 1986).

 Rather, this violation occurred because of Zuspan's mistaken

belief that the block light was left on intentionally by the
motorman that had just exited the block. Under such
circumstances, it was highly unlikely that a haulage vehicle
would be trailing closely behind the dustcars, and pose a hazard
to occupants in Zuspan's duckbill. In other words, Zuspan was
provided with cover by entering the 55 North haulage track
immediately after the dustcars exited the track.

 In the final analysis, the Secretary has the burden of

proving that a violation is S&S. Union Oil of Cal., 11 FMSHRC
289, 298-99 (March 1989). Given the 1200 foot length of straight
track in the 1A block immediately after the initial curve off the
55 Mains, the good visibility, the slow speed of haulage
vehicles, and the protection from other vehicles provided by the
exiting dustcars, the Secretary has failed to satisfy the third
element of Mathies that there was a reasonable liklihood that the
hazard contributed to by this violation would result in an
accident causing injury. Accordingly, the significant and
substantial designation shall be deleted.

d. Unwarrantable Failure

 Unwarrantable failure is "aggravated conduct, constituting

more than ordinary negligence, by a mine operator in relation to
a violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). In distinguishing aggravated conduct
from ordinary negligence, in Youghiogheny & Ohio the Commission
stated:

 We stated that whereas [ordinary] negligence is conduct
 that is `inadvertent,' `thoughtless,' or `inattentive,'
 unwarrantable conduct is conduct that is described as
 `not justifiable' or `inexcusable.'  Only by construing
 unwarrantable failure by a mine operator as aggravated
 conduct constituting more than ordinary negligence, do
 unwarrantable failure sanctions assume their intended
 distinct place in the Act's enforcement scheme.
 9 FMSHRC at 2010.

 Under the Act, an operator is liable for its employees'

violations of the Act and the mandatory standards. E.G., Western
Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March 1988), aff'd on
other grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8
FMSHRC 1632, 1634-36 (November 1986), aff'd, 868 F.2d 1195 (10th
Cir. 1989); Southern Ohio Coal Co., 4 FMSHRC 1459, 1462 (August
1982) ("SOCCO"). Once liability is determined, the negligent
actions of an operator's "agent"[2] are imputable to the operator
for the purpose of assessing civil penalties. Mettiki, 13 FMSHRC
at 772; R&P, 13 FMSHRC at 194-98; SOCCO,4 FMSHRC at 1463-64.
However, "[t]he conduct of a rank-and-file miner is not imputable
to the operator in determining negligence for penalty purposes."
Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July
1995) (citing SOCCO, 4 FMSHRC at 1464). "Rather, the operator's
supervision, training, and disciplining of [rank-and-file] miners
is relevant." Id. (citing SOCCO, 4 FMSHRC at 1464; Western
Fuels, 10 FMSHRC at 261).

 The evidence reflects Santee initially was inclined to issue

a 104(a) citation that did not charge Cumberland with an
unwarrantable failure. Significantly, Santee did not view
Zuspan's conduct as aggravated conduct. (Tr. 134-35). It was
only after Santee learned that Foreman Conklin accompanied Zuspan
in the duckbill that Santee charged the violation was
unwarrantable. (Tr. 138-40). As noted above, normally, Zuspan's
negligence, as a rank-and-file employee cannot not be imputed to
Cumberland even if Zuspan's conduct was aggravated conduct. Only
if Conklin engaged in aggravated conduct, or, if Conklin failed
to adequately supervise Zuspan, can the unwarrantable failure
charge be affirmed.

 In the first instance, the Secretary has failed to persuade

me that either Zuspan or Conklin's conduct manifested more than
ordinary negligence. As I noted at trial, it is difficult to
imagine what would motivate both Zuspan and Conklin to recklessly
or consciously turn on to a single track with block lights
reflecting that a vehicle was proceeding down the track in the
opposite direction. (See tr. 206-09).[3] The futility of two
vehicles heading in opposite directions on a single haulage track
supports Cumberland's assertion that this incident occurred
because of a misunderstanding between Zuspan and Conklin, and the
dustcar motormen. This misunderstanding, while unfortunate,
cannot be characterized as aggravated conduct. In addition,
Zuspan's failure to wait a reasonable period of time before
entering the block is not indicative of high negligence given his
mistaken belief that the block lights had been left on for him.

 Having concluded that there was a simple miscommunication,

the record does not reflect a lack of supervision, or training,
on the part of Conklin with respect to his oversight of Zuspan.
Santee also agreed that Zuspan's conduct was not attributable to
a lack of training. (Tr. 138). Although it is true that a
foreman is held to a higher standard of care given his management
role, a violation is not unwarrantable per se simply because it
occurred in the presence of supervisory personnel. See S&H
Mining, Inc., 17 FMSHRC 1918, 1923 (November 1995), citing
Youghiogheny & Ohio, 9 FMSHRC at 2011. Accordingly, Order No.
3672055 shall be modified to a 104(a) citation to reflect the
cited violation of the safeguard was not attributable to
Cumberland's unwarrantable failure.

e. Civil Penalty

 Section 110(i) of the Mine Act requires the consideration of

six penalty criteria in assessing the appropriate civil penalty.
30 U.S.C. � 820(i); see generally Sellersburg Stone Co., v.
FMSHRC, 736 F.2d 1147, 1150-51 (7th Cir. 1984). Significant
considerations among these statutory penalty criteria are the
gravity of the violation and the degree of the operator's
negligence.

 Having determined that it was unlikely, given the

circumstances of this case, that the hazard contributed to by the
instant safeguard violation would result in an injury related
accident, the gravity of the violation is most appropriately
characterized as non-serious. Although Order No. 3672055
specified the degree of Cumberland's negligence as "high", as
discussed above neither Zuspan nor Conklin's conduct was
indicative of more than ordinary, moderate negligence, and, there
is no basis for imputation of Zuspan's negligence to Cumberland.

FOOTNOTES

 [2]: Section 3(e) of the Mine Act defines "agent" as "any

person charged with responsibility for the operation of all or a
part of a . . . mine or the supervision of the miners in a . . .
mine . . . " 30 U.S.C. � 802(e).

 [3]: The Secretary conceded the only reason Zuspan and

Conklin would enter the block with the light on was if they
believed the light was left on for them and no other traffic was
coming in the opposite direction. (Tr. 208-09).

 The remaining criteria in section 110(i) are not particularly

meaningful in assessing the appropriate civil penalty in this matter.
The prior notice provided by a history of 16 safeguard violations
in the two year period preceding the issuance of the subject
citation is not material because this violation resulted from
a misunderstanding rather than a blatant disregard of the block
light procedures.

 Given the reduction in gravity from serious to non-serious,

and the reduction in negligence from high to no more than moderate,
consistent with the 110(i) penalty criteria, I am assessing a
civil penalty of $100.00 for modified 104(a) Citation No. 3672055.

                            ORDER

 Accordingly, 104(d)(2) Order No. 3672055 IS MODIFIED to a 104(a)

citation to reflect that the cited violation was not attributable
to Cypress Cumberland Resources Corporation's unwarrantable
failure. In addition, 104(a) Citation No. 3672055 IS FURTHER
MODIFIED to delete the significant and substantial designation.

 IT IS ORDERED that Cypress Cumberland Resources Corporation pay

a civil penalty of $100.00 in satisfaction of Citation No. 3672055.
Upon timely receipt of payment, this docket proceeding IS DISMISSED.

                            Jerold Feldman
                            Administrative Law Judge

Distribution:

Joseph T. Crawford, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified
Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant
Street, 20th Floor, Pittsburgh, PA 15219-1410 (Certified Mail)

/mca