Hiope Mining Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

MSHA alleged that Hiope Mining accumulated float coal dust and cut into a coal pillar before installing the required roof supports. The judge found that the dust violation was serious and resulted from unwarrantable failure, and assessed a $1,000 penalty. He found that the roof-control violation was established but that the unwarrantable-failure finding was not supported, so he modified the order to a section 104(a) citation and assessed a $400 penalty. The proceedings were dismissed after payment of the $1,400 total.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400; 30 C.F.R. § 75.220
• Outcome: The dust citation was affirmed with a $1,000 penalty; the roof-control order was modified to a section 104(a) citation with a $400 penalty.
• Key point: A roof-control violation may remain established even when the evidence does not support an unwarrantable-failure finding.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 89-68
PETITIONER A.C. No. 44-05748-03554

      v.                                 Docket No. VA 89-69
                                         A.C. No. 44-05748-03555

HIOPE MINING INCORPORATED,
RESPONDENT Mine No. 1

HIOPE MINING, INC., CONTEST PROCEEDINGS
CONTESTANT
Docket No. VA 89-35-R
v. Citation No. 2969642; 1/23/89

SECRETARY OF LABOR, Docket No. VA 89-36-R
MINE SAFETY AND HEALTH Order No. 2969654; 3/6/89
ADMINISTRATION (MSHA),
RESPONDENT Mine No. 1
Mine ID 44-05748

                           DECISIONS

Appearances: Robert S. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner/Respondent;
Daniel R. Bieger, Esq., Copeland, Molinary &
Bieger, Abingdon, Virginia, for the
Respondent/Contestant.

Before: Judge Koutras

              Statement of the Proceedings

 These consolidated proceedings concerns Notices of Contest

filed by the contestant (Hiope) pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(d),
challenging the captioned citation and order issued by MSHA mine
inspector Steven May. The civil penalty proceedings concern
proposals for assessment of civil penalties filed by MSHA seeking

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civil penalty assessments against Hiope for the alleged
violations stated in the citation and order. Hearings were held
in Kingsport, Tennessee, and the parties waived the filing of
posthearing briefs. However, I have considered their oral
arguments made on the record during the hearings in my
adjudication of these matters.

                          Issues

 The issues presented in these proceedings include the

following: (1) Whether Hiope violated the cited mandatory safety
standards; (2) whether the alleged violations were significant
and substantial (S&S); and (3) whether the alleged violations
cited in the contested section 104(d)(1) citation and order
resulted from an unwarrantable failure by Hiope to comply with
the cited standards.

 Assuming the violations are established, the question next

presented is the appropriate civil penalties to be assessed
pursuant to the civil penalty assessment found in section 110(i)
of the Act. Additional issues raised by the parties are
identified and disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

301, et seq

 2. Sections 110(a), 110(i), 104(d), and 105(d) of the Act.

 3. Mandatory safety standards 30 C.F.R.    75.400 and

75.220.

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

Stipulations

 The parties stipulated to the following (Tr. 10; Joint

Stipulation):

      1. Hiope is the owner and operator of the No. 1 Mine.

      2. The operations of the mine are subject to the
 jurisdiction of the Act.

      3. The Commission and its presiding Administrative Law
 Judge have jurisdiction in these matters.

      4. MSHA Inspector Steven May was acting in his official
 capacity as an authorized representative of

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the Secretary of Labor, when he issued the contested
citation and order.

        5. True copies of the citation and order were
   served on Hiope or its agent as required by the Act.
   Copies of the citation and order, exhibits G-1 and G-2,
   are authentic and may be admitted into evidence for the
   purpose of establishing their issuance and not for the
   purpose of establishing the accuracy of any statements
   asserted therein.

        6. The imposition of civil penalty assessments
   for the alleged violations in question will not
   adversely affect Hiope's ability to continue in
   business.

        7. The alleged violation stated in the section
   104(d)(1) citation was timely abated.

        8. MSHA's Proposed Assessment Data Sheet, exhibit
   G-4, accurately sets forth (a) the number of assessed
   non-single penalty violations charged to Hiope for the
   years 1986 through April, 1989, and (b) the number of
   inspection days per month during this time period.

        9. MSHA's Assessed Violations History Report,
   exhibit G-3, may be used in determining the appropriate
   civil penalty assessments for the alleged violations.

 The parties agreed that Hiope's annual coal mining

production was approximately 130,000 tons, that it employed
approximately 30 miners, and may be considered a small mine
operator (Tr. 5).

 The parties further stipulated that the technical procedural

requirements concerning the section 104(d)(1) citation and order
issued by Inspector May (the section 104(d) "chain") have been
met in these proceedings, and that there were no intervening
"clean inspections" during the intervening time period when the
supporting citation and subsequently issued order were issued by
Inspector May (Tr. 8).

                         Discussion

Docket Nos. VA 89-36-R and VA 89-69

 The section 104(d)(1) "S&S" Order No. 2969654, issued on

March 6, 1989, by MSHA Inspector Steven May, citing an alleged
violation of 30 C.F.R. 75.220, states as follows (exhibit G-2):

        Approximately 12 feet of coal was mined from the
   pillar split of the No. 1 pillar block on the 001-0

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section and a breaker line had not been established
across the 001-0 pillar section. The approved roof
control plan requires that all breakers (timbers) be
installed prior to any mining along the pillar line.

 The record reflects that the citation was issued at 11:06

a.m., and that Inspector May terminated it at 1:15 p.m., the same
day.

MSHA's Testimony and Evidence

 MSHA Inspector Steven May testified as to his background and

experience, and he confirmed that he has served as an inspector
for 7 years, previously worked for two coal mining companies, and
holds certificates as a mine foreman, electrician, and a state
mining inspector. He also confirmed that he conducted two
complete inspections of the Hiope No. 1 Mine in November, 1988,
and January, 1989. He stated that he was at the mine on March 6,
1989, for the purpose of giving a safety talk, and after
completing this talk he decided to conduct an inspection.
Referring to a sketch of the area which he made, exhibit G-15, he
explained that he proceeded inby the belt conveyor area for two
breaks where he gave his safety talk, and then went to the point
marked "C" on the sketch where he found a continuous-mining
machine "sumped up" in the block of coal (Tr. 18-23).

 Inspector May testified that he issued the violation because

mining had proceeded in the No. 1 pillar split without first
setting eight timber breaker posts in each entrance, and that the
failure by Hiope to first set these posts before commencing
mining violated its approved roof-control plan and constituted a
violation of section 75.200. He found the continuous-mining
machine advanced approximately 12 feet into the No. 1 pillar
block of coal, and no breaker posts were installed in this area.
He observed no supply of timbers on the section. He identified
the applicable roof-control plan, at page 9, exhibit G-16, and
explained the plan requirements for installing posts before the
No. 1 coal block is cut and taken. He also explained the mining
and roof bolting cycles which follow the taking of the number 1
coal block (Tr. 24, 29-35). He confirmed that he issued the
section 104(d)(1) order because "its something that the operator
known (sic) or should have known" (Tr. 24).

 Mr. May stated that the failure to follow the roof-control

plan presented a roof fall hazard, and by taking a cut of coal
without installing any roof support timbers, there was a danger
of a roof fall. In the event mining had continued and the entire
coal pillar were mined without any roof support timbers in place,
a roof fall was reasonably likely. He also believed that it was
highly likely that an injury would have occurred as a result of a
roof fall and that the continuous-mining operator would be

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exposed to disabling or fatal crushing injuries from such a fall
(Tr. 36-38).

 Mr. May confirmed that no mining was taking place, and no

coal was being cut at the time he observed the mining machine. He
also confirmed that the machine was not equipped with a canopy.
Since there was nothing supporting the roof where the machine cut
into the block of coal, he believed that the machine operator
would be exposed to a roof fall hazard in that the roof could
have broken out and fallen back beyond the end of the unsupported
coal block.

 Mr. May stated that he based his "high negligence" finding

on the fact that mine management had knowledge of its
roof-control plan and that it knew or should have known that
cutting coal from the pillar block in question without installing
the required roof support timbers was contrary to the plan. An
additional factor which prompted him to issue the order was the
fact that the continuous-miner operator Aaron Feeser was
instructed to go to the area and to take the first cut of coal
out of the coal block in question.

 Mr. May stated that he spoke with section foreman Curt

Armstrong when he issued the order but he could not recall
specifically asking him why the cut of coal had been made without
any roof support timbers. Mr. May confirmed that he observed no
roof support timbers stored on the section, and that the lack of
timbering presented a risk of a roof fall (Tr. 38-42).

 On cross-examination, Mr. May confirmed that his inspection

notes include a notation that if it were not for the fact that he
found the mining machine "sumped up" in the coal block, he would
not have issued the violation. He explained that regardless of
the presence of the continuous-miner machine, he would have still
issued the violation because of the fact that a cut was taken
from the block without first setting timbers. If that cut had not
been made, and no coal taken, he would not have issued it (Tr.
44). He confirmed that the "dots" shown at the top of exhibit
G-15, reflect that roof support timbers had been installed at the
locations shown. He also stated that in the event a
continuous-mining machine "accidentally" cuts into a coal block
the proper procedure is to stop mining and install roof support
timbers. He agreed that in this case, no further mining took
place after the machine cut into the coal block, and that
management proceeded to install the required timbers.

 Mr. May stated that 48 additional roof support timbers

should have been installed before the first coal cut was taken,
and confirmed that the coal block in question was the proper
block to begin the mining cycle, but that no mining was taking
place when he viewed the violative conditions.

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Mr. May stated that Mr. Armstrong told him that the miner had
accidentally cut into the coal block while Mr. Feeser was picking
up gob, but that his notes reflect that Mr. Feeser told him he
was told to cut into the coal block. Mr. May stated that he did
not believe the coal cut was taken accidentally because there
were two cuts of coal taken, and the mining machine had
penetrated the coal block for a distance of 12 feet.

 In response to further questions, Mr. May stated that given

the size of the cut made into the block, it would have taken 10
minutes to make that cut, and if Mr. Feeser were only cleaning up
gob, he would not have turned the machine into the block of coal.
Mr. May also confirmed that he did not measure the size of the
coal cuts made by Mr. Feeser, and that he estimated it by the
location of the machine head lights which were 12 feet into the
block. He also stated that Mr. Feeser told him that he had been
instructed to clean up the gob and to cut the block of coal (Tr.
42-76).

 Aaron Feeser testified that he was previously employed by

Hiope in early August, 1989, and had worked there for 4 years as
a roof bolter, scoop operator, and continuous-miner operator and
helper. He was also a member of the union mine safety committee
(Tr. 77-79).

 Mr. Feeser confirmed that on March 6, 1989, he was working

on the No. 1 section as a continuous-miner operator "getting
ready to start the pillar section," and that prior to the
inspector's safety talk "we had cleaned up a section and moved
the miner across the section and started mining" coal from the
first pillar block (Tr. 81). He stated that none of the pillars
had been mined at that time and that he had just started one
block and took approximately one-half of a cut of coal. He
described the "cut" as 12 feet deep and "maybe" 18 feet wide. He
observed no timbers set between the blocks. He confirmed that the
miner machine is 10 feet wide, and that in order to take an
18-foot wide cut, "we'd cut into the block of coal on one side
and back up and set it over and cut into the block again" (Tr.
82).

 Mr. Feeser stated that he operated the miner for

approximately 30 minutes cutting the pillar, and that mine
foreman Curt Armstrong instructed him "to take the miner across
the section and start the first block" (Tr. 82). He denied that
Mr. Armstrong told him to go and clean up gob at that location.
Mr. Feeser stated that there were "buggy men running buggies" in
the area, and he believed there were three men other than himself
in the area, and that Mr. Armstrong was on the section all
morning (Tr. 83).

 On cross-examination, Mr. Feeser stated that he was familiar

with the mine roof-control plan and knew the requirements for
setting timbers. He confirmed that during a meeting with Hiope's

~324
counsel (Daniel Bieger) at the mine office sometime in March,
1989, he told Mr. Bieger that he was cleaning up the gob and had
accidentally cut into the coal block (Tr. 86). He also confirmed
that he attended an informal conference at MSHA's Richlands,
Virginia office, and when asked whether he had stated at that
time that he had accidentally cut into the block while picking up
gob, Mr. Feeser stated as follows at (Tr. 86-87):

      Q. Okay. and you said the same thing to the informal
      conference man, that you accidentally cut into the
      block while you were picking up gob, didn't you?

      A. No.

      Q. You didn't tell them that when we were all sitting
      around the table, the same thing?

      A. No, not those words, I did not.

      Q. Okay. You told them that you were picking up gob,
      didn't you?

      A. I did.

      Q. And that you cut into the -- that you accidentally
      cut into the block?

      A. No.

      JUDGE KOUTRAS: What specifically do you remember
      telling them at the conference?

      THE WITNESS: I didn't tell them I accidentally cut
      into the block.

      JUDGE KOUTRAS: What did you tell them?

      THE WITNESS: They asked did I pick up gob? Yes, I
      did. Did I accidentally cut into the block? No, I did not.

      BY MR. BIEGER:

      Q. You didn't say -- you didn't tell them at the
      informal conference that you intentionally cut into the
      block?

      A. I wasn't asked.

      Q. Okay. And you didn't volunteer that?

      A. I wasn't asked.

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Mr. Feeser confirmed that subsequent to the informal conference
in question, he was laid off by Hiope and filed a grievance which
went to an arbitration hearing. However, during the grievance
process, he quit and went to work for his current employer. He
denied that he changed his testimony because of any disagreement
with Hiope in connection with this grievance (Tr. 93-94).

 Mr. Feeser confirmed that he stopped the miner into the cut

in the coal block when someone told him to "stop the miner" (Tr.
95). He stated that he was told to stop by "Curt (Armstrong) or
Danny (McGlothlin) or it might have been a buggy man" (Tr. 95).

 Mr. Feeser stated that he "sometimes" takes his safety

committeeman's position seriously and that he feels some
responsibility not to engage in unsafe practices (Tr. 96). He
confirmed that he had picked up gob with his miner machine, but
denied that he cut into the block while using the machine to push
the gob against the block (Tr. 97).

 Mr. Feeser stated that he spoke with Mr. May when the

citation was issued and that he informed Mr. May that he was told
to cut into the block by Mr. Armstrong (Tr. 98). When asked how
far he would have to go into the coal block if he were cleaning
up gob, he replied "maybe a foot" (Tr. 99). He stated that there
was no need to cut into the block for 10 or 12 feet in order to
pick up the gob, and when asked why he was told to stop mining,
he replied "they told me we had an inspector . . . to stop
mining, that we was going to set timbers" (Tr. 99). After
stopping mining, Mr. May came to the section to give his safety
talk and all operations stopped (Tr. 99).

 Mr. Feeser stated that he made no complaint to anyone that

he was "about to engage in an unsafe mining practice" and
conceded that it should have been his duty as a safety
committeeman to do so. He confirmed that at the time he spoke
with counsel Bieger in the mine office, Mr. Bieger did not "bully
or scare him" in any way (Tr. 100).

 Mr. Feeser stated that he did not know in advance that Mr.

May was coming to the mine to give a safety talk, and found out
about it "when he come" (Tr. 102). When he was told to stop
mining, he was not told that he was to stop because Mr. May was
going to make a safety talk, and was simply told "stop mining, we
had an inspector" (Tr. 102). He construed this to mean that the
inspector "was coming inside and everything better be right." He
confirmed that he knew the timbers were not set, and when asked
why he did not refuse to work without the timbers being
installed, he replied "I don't know. I was told to take the miner
across the section and start mining," and that he said nothing to
Mr. Armstrong (Tr. 103).

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Mr. Feeser stated that a "complete cut of coal" would have been
an area 20 feet by 20 feet, and that he took "half of one cut."
He explained that his machine initially penetrated the coal block
on one side for a distance of 6 feet deep, backed out, and then
made another "pass" back into the coal block for approximately a
10 to 12 foot distance, and that the ultimate cut was
approximately 18 feet wide (Tr. 105-107).

 Mr. Feeser stated that if the roof had fallen while he was

making the cuts he would have been in danger "if it would have
run through an intersection," and if the fall did not go through
the intersection, he would not have been in danger (Tr. 107). He
stated that no timbers were set before Mr. May came to the cited
location, and that Mr. May came to the area after completing his
safety talk. He stated that he simply left the mine machine
parked into the block of coal, that no one informed Mr. May that
it was there, and that he came to the face area as part of his
normal inspection routine (Tr. 109). Mr. Feeser confirmed that he
was laid off, and not discharged by Hiope, and that his lay off
had nothing to do with this case (Tr. 110).

 Inspector May was recalled by the Court, and he confirmed

that although he had previously visited the mine with other
inspectors, he had been assigned to the mine for regular
inspections 4-months prior to the time he issued the contested
citation in question. He confirmed that there were no prior roof
control violations at the face areas, and that the mine "didn't
usually get too many roof control violations," and that he had
not previously encountered a situation where coal was cut before
the timbers were installed. He stated that he did not accept the
assertion by Hiope that the block of coal had been cut
accidentally, and he decided to issue the unwarrantable failure
citation because he believed that Mr. Feeser was told to cut the
coal block. When asked why anyone would tell Mr. Feeser to cut
the coal in violation of the roof-control plan, Mr. May stated
"obviously, he didn't think I was coming to the mine," and that
it takes time to set all of the timbers, and "they'd go ahead and
run and mine that coal and be setting the timbers in the process"
(Tr. 113).

 Mr. May stated that his inspection notes reflect that Mr.

Armstrong told him that "by the time we get this row of pillars
pulled we'll have the timbers installed." Mr. May believed that
the timbers would have been installed eventually, but that the
roof-control plan requires them to be installed before any coal
is mined. He confirmed that he did not attend the MSHA violation
conference (Tr. 114). He confirmed that he has never had any
problems with Mr. Armstrong and considered him to be a fair
person (Tr. 119).

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Mr. May stated that after the citation was issued it took an hour
to obtain the timbers, and another hour or so to install them.
Mr. May stated that "anytime you pull a pillar there's a danger,"
and that if part of a coal pillar is pulled without first
installing timbers there would be a danger because there is no
way to get in to install timbers because one would have to be
working in an unsupported roof area, and once the pillar block is
split through, it is too late to install timbers (Tr. 120).

Hiope's Testimony and Evidence

 Curtis A. Armstrong stated that he has been employed by

Hiope as a section foreman for 4 years, has served as a section
foreman for 16 years, and has worked in underground mines for 21
years. He stated that on the day in question the pillar section
was just starting and he planned to begin the cycle of pulling
the pillars. He stated that he instructed Mr. Feeser to take the
miner machine to the pillar block of coal which was cited and
told him that "that was the block that we were supposed to
start." The gob, or loose debris, had been pushed up to the
pillar block and needed to be cleaned up (Tr. 124). He believed
that Mr. Feeser cut into the coal block when he was picking up
the gob, and turned the machine into the block "and it started
cutting." He denied that he told Mr. Feeser to start cutting the
block, and stated that when this occurred he was installing
curtains or checking the ventilation, and when he returned he
found that the block had been cut and he stopped Mr. Feeser from
further cutting (Tr. 126).

 Mr. Armstrong denied that he knew that Mr. May was at the

mine, and that he learned about his presence while in the process
of installing timbers. He stated that approximately 50 timbers
had already been installed that morning by the rest of the
section crew, and that after instructing Mr. Feeser to stop
cutting, he was to help set all of the required timbers before
any mining was started. Referring to Mr. May's diagram, Mr.
Armstrong explained where the timbers had already been installed,
and where he intended to continue installing additional timbers.
He denied that he intended to mine any blocks of coal without
installing the timbers (Tr. 128).

 Mr. Armstrong stated that the block of coal was cut at an

angle, and he estimated that a cut of approximately 10 feet was
taken, and since the miner was at an angle, the cut could end up
15 to 18 feet wide. He did not see the miner cutting into the
block, was not present when it was cutting, and he did not know
whether it went into the block of coal one or two times (Tr.
129). It was possible to have a wide cut with one pass of the
miner because it went in at an angle (Tr. 129).

 Mr. Armstrong stated that since the section was new and just

starting up, he has to know exactly where to begin starting to

~328
cut a block of coal once mining began, and that he instructed Mr.
Feeser to take the miner to the block of coal in question and
told him "This right here is the block that we will start"
according to the mining plan (Tr. 130). With regard to the
statement attributed to him by Inspector May, as reflected in his
notes, Mr. Armstrong recalled some conversation with Mr. May but
could not recall exactly what was said. He stated that he told
Mr. May that "he knew that these timbers would be set there
before this block was mined" (Tr. 131). He could not recall how
much time passed from the time he told Mr. Feeser to stop cutting
and Mr. May's arrival at the scene (Tr. 131). Everyone on the
section was installing timbers at the time and no coal was being
mined. No coal was mined after he told Mr. Feeser to stop
cutting, and by the time Mr. May arrived, no coal had been mined
(Tr. 132).

 Mr. Armstrong stated that timbers were stored underground

and that 60 timbers had been installed before Mr. May came to the
area. Approximately 48 additional timbers were subsequently
installed, and that a sufficient supply of timbers were readily
available for the entire timbering job (Tr. 134). Mr. Armstrong
confirmed that he was present in the mine office when Mr. Feeser
met with counsel Bieger, but he could not recall what was said,
and did not remember Mr. Feeser stating that he accidentally or
intentionally cut into the block of coal (Tr. 135).

 On cross-examination, Mr. Armstrong confirmed that he helped

install some of the timbers while Mr. Feeser was moving the miner
machine across the section, and that five or six men were on the
section installing timbers and hanging curtains, and one mechanic
was working on a shuttle car (Tr. 137). He estimated that it
would have taken an hour and a half to 2 hours to install all of
the timbers on the pillar line (Tr. 141). Given the fact that the
miner machine has cables and water lines, it would have taken Mr.
Feeser approximately 40 minutes to move the miner machine across
the section to the block, a distance of about 280 feet (Tr.
144-145). He confirmed that he saw the cut made by the machine
into the block of coal in question, and that it was approximately
10 feet in at the deepest penetration (Tr. 146).

  Mr. Armstrong stated that a "buggy" was parked near the coal

block in question and a mechanic was working on it when Mr. May
came to the area, and that the entire block of coal would not
have been mined out with the buggy parked in that location (Tr.
148). Mr. Armstrong did not dispute the fact that the
roof-control plan required that timbers be installed along the
area cited by Mr. May, and he did not believe that Mr. Feeser had
to penetrate the coal block as far as he did to pick up gob which
had been left over and pushed up against the coal block (Tr.
154).

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Danny W. McGlothlin, President, Hiope Mining, stated that he
works underground at the mine everyday overseeing the operation,
and that he was working at the mine when the citation was issued.
He stated that he did not tell anyone to cut into the block of
coal in question, and he explained that while he was underground
working "somebody hollered and said there was a mine inspector
outside." Mr. McGlothlin stated that he proceeded to the outside
to meet the inspector, and that it took him a half-hour to get to
the outside, and a half-hour to get back underground. Mr. May
wanted to give a safety talk, and all of the men were gathered up
for the talk (Tr. 156). Mr. May then informed him he wanted to
visit the faces, and after crawling to the area he saw the miner
machine and informed him that it was a violation of the
roof-control plan and that he was going to issue "a order over
it" (Tr. 157). Mr. McGlothlin confirmed that the buggy parked by
the block of coal in question had broken down on the previous
night shift, and he believed that Mr. May "had to crawl around
it" (Tr. 158).

 Mr. McGlothlin confirmed that he was present during the

meeting in the mine office with Mr. Feeser and Hiope's counsel
Bieger, and that Mr. Feeser stated that "he loaded up the loose
coal and proceeded into the block" (Tr. 160). Mr. McGlothlin
stated that "I can't recall for sure whether he said it was
accidental" (Tr. 160). He further stated that he attended the
MSHA informal conference, which he had requested, and that Mr.
Feeser was present at this conference and stated that he had
accidentally cut into the coal block. The statement was made to
Larry Werrell, the MSHA supervisor conducting the conference, in
response to a question from Mr. Werrell as to whether he had
accidentally cut into the coal (Tr. 162). Mr. McGlothlin further
explained Mr. Feeser's statement as follows at (Tr. 162-163):

      Q. And did he ask Mr. Feeser if he accidentally cut
      into it?

      A. Yes.

      Q. And he replied yes to that?

      A. He replied that he was cleaning up coal and cut
      into the block of coal. And we had done, you know,
      said accidentally, and Mr. Werrell or Mr. Bieger
      one said, "Is that accidentally?" and he said, "Yes."

      Q. But he never actually said, "I accidentally cut
      into the block," did he, or at least you don't remember
      him saying that?

      A. At one time he did say he accidentally cut into the
      block, I do remember that.

~330
Q. Okay. Replying to a question by somebody else?

      A. Yes.

 Mr. McGlothlin agreed that Inspector May could come to the

conclusion that the roof-control plan was violated when he saw
that the area where the coal was cut was not completely timbered.
He confirmed that the citation was served on him and that he
explained to Mr. May that they were in the process of installing
the bleeder timbers, that other timbers were brought in, and that
when they saw that the block of coal had been cut, "we ceased to
mine" (Tr. 164). He also stated that he told Mr. May that it
"made no sense" to bring him into the mine if he thought that a
(d) order violation had occurred, and that if they thought this
would occur, the timbers could have been brought in and set
before the inspector got there because "I had enough time, if I
felt like this was going to be a (d) order, to set the timbers"
(Tr. 164). Mr. McGlothlin confirmed that he did not speak to Mr.
Feeser that day because he was busy installing timbers. He
confirmed that he explained to Mr. May that Mr. Feeser "was told
to go up and clean up the loose coal and I figured he just cut
into it cleaning up the loose coal," and that Mr. May replied "I
have to write a (d) order" (Tr. 165).

 In response to further questions, Mr. McGlothlin stated that

the coal cut made by Mr. Feeser was made before he left the mine
to get Mr. May, and that the miner was in the same position when
he returned with Mr. May. He conceded that he knew at that time
that there was a roof control violation, but did not think about
it being a (d) order because timbers were being installed and he
did not realize that the miner machine "was in as much as it was"
(Tr. 167). He also conceded that even though he knew that the cut
taken was a potential violation, he said nothing to Mr. May about
it (Tr. 169).

 James C. McGlothlin, mine superintendent, confirmed that he

was not present when the block of coal was cut, but that he was
present during the meeting in the mine office to discuss the
matter, and he stated as follows in this regard (Tr. 173-175):

      Q. All right. Do you recall what Aaron Feeser said
      about how the block came to be cut into?

      A. Yes, sir, I do.

      Q. What did he say?

      A. Aaron said they'd cleaned up a section that morning
      and dumped a gob out against the block of coal. And
      they told him to take the miner over and clean up the
      loose coal. And said, "They done told me that the
      block actual we was going to start." Said, "I didn't

~331
try just to clean the block of coal or the gob up."
Said, "Whenever the miner started in the coal," said "I
didn't think it was going to matter because that was
the block that was going to come out."

      Q. Did he say whether he intended to cut in there or
      whether it was an accident?

      A. He told us that it was an accident that he cut that
      much. Said he just -- it went further than he thought.

      Q. All right. Were you also present at the informal
      conference?

      A. Yes, sir.

      Q. Did he testify similarly or differently at the
      informal conference?

      A. He said it was an accident. And I asked Mr. Feeser
      before we even had the meeting what happened because it
      aggravated me that it happened. And he said, "Well,"
      said, "Curt didn't tell me to do it." Said, "He come
      down and stopped me." Said, "I just cut a little more
      out of there than I did."

      Q. And after you had that conversation with him that's
      why we had the meeting, right?

      A. That's right.

 Inspector May was recalled, and he questioned Mr.

Armstrong's assertion that all of his crew, except for a
mechanic, were installing timbers, because someone had to haul
the coal cut by Mr. Feeser away from the face area in question.
He also did not believe that Mr. Danny McGlothlin would have
known how much coal Mr. Feeser cut because he was outby the
section when he came to bring him into the mine, and he may not
have known that the cut had been taken. Mr. May could not recall
whether the buggy which was parked near the coal block was down
for maintenance, but this would have made no difference since
there were other buggies available on the section (Tr. 181).

 Mr. May reiterated that he based his unwarrantable failure

finding on the fact that Hiope "knew or should have known" that
coal could not be cut before installing timbers, and that Mr.
Armstrong was required to check the section every 20 minutes and
should have stopped Mr. Feeser from cutting "prior to getting in
there as much as he did" (Tr. 182). Mr. May also considered Mr.
Feeser's statement that he was told by Mr. Armstrong to take the
cut, and Mr. Armstrong's statement which he recorded in his notes
that "By the time we get this block or these blocks mined,

~332
then we'll have our timbers set" (Tr. 183-184). Mr. May also
believed that "they were going to mine coal to the point they got
caught up with the timbers" (Tr. 187).

Docket Nos. VA 89-35-R and VA 89-68

 The section 104(d)(1) "S&S" Citation No. 2969642, issued on

January 23, 1989, by MSHA Inspector Steven May, citing an alleged
violation of 30 C.F.R. 75.400, states as follows (exhibit G-2):

 Float coal dust has been allowed to accumulate on
 previously rock dusted surfaces at the belt conveyor
 entry and connecting crosscuts beginning at the mine
 portal and extending to the 1st return overcast a
 distance of approximately 2,000þ (feet). This dust is
 very dry and is from 0" to 13" (inches) in depth.
 Citations were issued for the same condition on the
 last AAA inspection. This conveyor entry serves the
 001-0 section.

 The record reflects that Inspector May fixed the abatement

time as 7:00 a.m., January 24, 1989, but that on January 25,
1989, he extended the time for abatement to January 26, 1989,
because "float coal dust was cleaned from around the conveyor.
However, sufficient inert material was not applied to the
crosscuts to render float coal dust present inert. More time is
granted."

 On January 26, 1989, Inspector May extended the abatement

time further to January 30, 1989, after verifying that the mine
ran out of rock dust before the crosscuts were completely rock
dusted and Hiope experienced a problem in obtaining more rock
dust from the supplying quarry. He also noted that the mine was
down because a conveyor belt was being moved, and he granted
Hiope more time to completely abate the cited conditions. He
subsequently terminated the citation on January 30, 1989, at 3:00
p.m., after finding that the cited areas had been cleaned and the
float coal dust rendered inert by the application of rock dust.
MSHA's Testimony and Evidence

 MSHA Inspector Steven May confirmed that he conducted a

regular inspection of the mine on January 23, 1989, and issued
the citation after finding accumulations of float coal dust
ranging in depth from zero to 13 inches on previously rock dusted
surfaces along the mine belt conveyor entry and connecting
crosscuts from the mine portal to the first return overcast
(exhibit G-2). He explained that the belt travels through two
stoppings as it comes to the outside, and that the belt air
travels from the outside along the belt toward the face. He
stated that the accumulations were "worse" along the first 400
feet of the number

~333
one belt, and that he used a mine map to estimate the belt
conveyor distance.

 Mr. May stated that in order to reach the 001 section,

miners had to pass by the cited conveyor belt areas and that the
belt was required to be examined at least once each day during
the working shift, and if the mine works two shifts, it must be
examined twice a day. He stated that the accumulations were
deeper at the two stopping doors where the air would pick up the
dust from the belt and deposit it on the floor. He stated that
the float coal dust was black in color, and that he used a rule
to measure the 13-inch accumulations at three locations along the
belt conveyor. The belt and the accumulations were dry, and he
described the float coal as "black, fine, coal dust." He did not
consider the accumulated float coal dust to be spillage because
spillage would be "heavier and granular," and would be deposited
"straight down" from the belt conveyor.

 Mr. May stated that the float coal dust accumulations

constituted a fire and explosion hazard because they could be
placed in suspension and heat and ignition sources were present.
He described the ignition sources as the belt conveyor drive
motors, the conveyor belts and rollers, and electrical cables
which would be present along the conveyor belt system. He
considered the float coal dust to be combustible and that the
possibility of a fire is always present with float coal dust and
sources of ignition.

 Mr. May stated that the presence of the float coal dust

increased the likelihood of a fire, and that in the event of a
fire the hazard would be more severe because of the extent of the
accumulations. He believed that an accident was highly likely if
the conditions were allowed to continue without being corrected.
He did not consider the accumulations to be an imminent danger
because he saw no visible or readily available heat sources. He
observed one man inby at the No. 3 belt drive, and eight men were
on the section. He did not believe that mining was taking place,
and that in the event of a fire on the section it would travel
"up the belt" and towards the face area. He also believed that
the miners would be unable to escape a fire and would suffer
permanently disabling injuries.

 Mr. May stated that he based his high negligence finding on

the fact that the violation was repetitious, and that he had
issued prior coal and float coal accumulation violations of
section 75.400 during prior inspections of the same belt conveyor
area. He also confirmed that other inspectors had also issued
prior violations for the same conditions (exhibits G-6 through
G-14). Mr. May also considered the fact that management could
have discovered the accumulations by making the proper daily
shift examinations.

~334
Mr. May stated that the accumulations along the first 400 feet on
the No. 1 belt conveyor "possibly" accumulated over a period of 1
week, and that the area inby the No. 1 belt where the
accumulations were 2 inches deep took a month or so to
accumulate. In view of the amount of accumulated coal dust he
observed, he believed that they should have been detected and
reported by the preshift mine examiner.

 Mr. May drew a sketch of the belt conveyor system which

extended from the mine portal to the working face, and he
explained that the distances noted between the four belt sections
were approximations which he arrived at by reference to the scale
shown on the mine map which he reviewed. He estimated the
distance of the No. 1 belt as 400 feet, and the No. 2 belt as
1,600 feet (Tr. 13-46).

 Mr. May confirmed that he extended the abatement times after

returning to the mine and finding that the conditions were
partially abated and he verified the fact that Hiope was having a
problem with obtaining rock dust to complete the abatement work
and were making an effort to complete the job (Tr. 46-53). He
confirmed that he based his "S&S" finding on his belief that
there was a reasonable likelihood that an injury, with lost work
days or restricted duty, would occur (Tr. 53).

 On cross-examination, Mr. May stated that the individual he

observed at the No. 3 belt drive was there to maintain the belt.
Mr. May confirmed that he took no float coal dust samples, took
no pictures, and did not test the "combustibility" of the float
coal dust. He explained that he cannot test float coal dust, but
that he did feel it with his hand and kicked it around. He
observed no dust in the air and did not believe that coal was
being mined when he observed the conditions. He confirmed that he
did not tell management not to run any coal, and did not tell
them that "everything was so dangerous and so hazardous" that he
did not want any coal run. If he had thought this was the case,
he would have issued an imminent danger order. He confirmed that
the float coal dust was deposited on the previously rock dusted
areas in question (Tr. 53-58).

 Mr. May confirmed that dust is present wherever coal is

mined, and that during a previous inspection he required Hiope to
plaster some ventilation brattices to abate a citation which he
issued. He denied that this action on his part increased the air
flow over the belt and made any dust problem worse. He believed
that Hiope had installed some additional curtains on their own
inside the belt line to help slow down the air, and that he did
not object to this (Tr. 59).

 In response to further questions, Mr. May confirmed that he

spoke with Mr. McGlothlin over the phone about the citation and
that Mr. McGlothlin gave him no explanation with respect to the

~335
existence of the float coal dust and told him that he "would get
somebody to work on it" (Tr. 61). Mr. May confirmed that he
checked the shift book, and it reflected that the belts had been
"walked" and that the belts "had been made" the day before his
inspection (Tr. 62). He could not recall any notations in the
book confirming the existence of the float coal dust, and he
recalled looking at the book "for several days ahead." He
confirmed that all of the cited dust was float coal dust, black
in color, and that the areas were previously rock dusted to abate
a prior citation which he had issued. He further confirmed that
he is not required to take float coal dust samples, did not use a
sieve, and based his determination that it was float coal dust by
kicking it and observing it and that "it'll go out in front of
you when you step on it" (Tr. 65). He confirmed that the float
coal was dry and that none of it was wet, and he determined that
it was combustible by its black color (Tr. 65).

 Mr. May confirmed that the No. 2 and No. 4 belt drives were

equipped with water sprays, and that the No. 3 belt had a
chemical type spray (Tr. 66). He also confirmed that he found no
stuck belt rollers, or the belt out of line, and he considered
the ignition sources which were present to be potential sources
of ignition (Tr. 67). He believed that the eight people working
in the mine would be exposed to a hazard in the event of a belt
fire because it was the belt closest to the outside (Tr. 68). He
confirmed that the prior citations issued for float coal and
loose coal accumulations indicated to him that dust accumulations
were a problem in the mine (Tr. 69).

Hiope's Testimony and Evidence

 Mine Superintendent James C. McGlothlin, confirmed that he

is underground on a daily basis, and that he was present when
Inspector May conducted his inspection. He disputed Mr. May's
assertion that there was 2 to 13 inches of coal dust at the belt
line, but conceded that "right behind the brattices there might
have been 10 to 11 inches of coal dust" which he attributed to
the wind which pulling the dust through the brattices where the
belt travels through (Tr. 71). He described the coal as "grains .
. . big as your finger and it settles right beside the brattice
just like a snowstorm, just like a drift, whenever it gets to
where the air ain't hitting it, it lays down there" (Tr. 72). He
contended that the coal dust was 20 feet behind the brattice
where it was "probably from 8 to 12 inches," and indicated that
"it was coal" rather than float coal dust (Tr. 72).

 Mr. McGlothlin explained the steps taken by management to

control float coal dust, and stated that the belts are equipped
with sprays and fire hoses. He contended that the mine had never
been cited for a violation of its dust-control plan, but conceded
that there have been problems because of the air velocity going
through the restricted overcast which "throws a lot of air on the

~336
belt line" (Tr. 73). He contended that Mr. May and another
inspector required him to replaster the brattice line, and that
this holds all of the air on the belt, and that this occurred
before Mr. May became the "regular inspector" at the mine (Tr.
74). He further explained his efforts at dealing with the
problem. He confirmed that Mr. May told him that he was going to
issue an order because of the dust from the overcast area back
towards the outside of the mine, and that he assigned men to take
care of the problem immediately and stopped mining. He contended
that coal was being run on the belt at the time Mr. May observed
the conditions, and that Mr. May told him that he did not need to
stop running coal and that he would give him time to clean up the
belt. He stated that after the belt was cleaned, Mr. May refused
to go back into the mine to check it, and advised him that he
would return the next day (Tr. 78).

 In response to further questions, Mr. McGlothlin disputed

the inspector's contention that the float coal dust extended
2,000 feet along the belt line up to the overcast. He contended
that his mine maps reflect that the belt line is 1,100 feet up to
the overcast, and that the coal dust was "backed up about 20 feet
behind the . . . brattices where it was piled up from 8 to 13
inches. From the rest on back, it wasn't even enough to shovel.
All we could do to that was just put dust over it and make it
white" (Tr. 81). He conceded that the coal dust was black in
color, that at least 1,000 feet of the belt cited by Mr. May was
black, and it needed some rock dust (Tr. 82). He confirmed that
prior ventilation changes were made "to suit three different
inspectors," and that some of the changes were made "to try and
help us solve the problem" on a "tough belt line to control"
because of the amount of air (Tr. 83-84).

 Inspector May was recalled, and he confirmed that he

discussed the violation with Mr. McGlothlin, and that he
(McGlothlin) thought that a (d) order rather than a (d) citation
would be issued. Mr. May denied that he told Mr. McGlothlin that
he need not clean up the float coal dust immediately, and he
stated that no one told him that it had been cleaned up before he
left the mine (Tr. 94). Mr. May confirmed that he estimated the
2,000 feet belt line distance from the scale on the mine map, and
that "it looked like 2,000 feet," but "it may have been 1,000"
(Tr. 96). He confirmed that the depth of the material "ranged
from zero to 13 inches" along the entire length of the belt line
"and tapered out by the time you got to the overcast return" (Tr.
96).

 Danny McGlothlin, explained the efforts made to keep the

coal dust from accumulating on the belt line, the "continuous
problems" with ventilation on the belt, beginning in June, 1985,
and the efforts made by state and federal inspectors who have
suggested ways to control the ventilation (Tr. 103-106).

~337
Mr. McGlothlin stated that during a state mine inspection
conducted January 11-13, 1989, the No. 1 and No. 2 belt lines
were cited for loose coal and float coal dust accumulations, and
the lack of rock dusting, and that he was with the inspector when
the citations were issued. He confirmed that no float dust tests
were made at that time, and that all of the conditions were
corrected on January 13, 1989, 10 days before Mr. Mays issued the
contested citation in this case. Mr. McGlothlin did not believe
that the float coal dust cited by Inspector existed for a month
along portions of the cited belt because the state inspector "is
a strict inspector" (Tr. 107).

  Mr. McGlothlin stated that he has always tried to keep two

men assigned to the belt to keep it clean, and that the certified
man who has been assigned to the belt for 3 years "knows the
trouble spots, will not sign the books if the belt is not kept
up, and each day he cleans the belt." He explained further that
its impossible to keep the belt clean while coal is being run,
and that Hiope has done everything possible to try and correct
the problem, and that its recent efforts at cutting down on the
ventilation air velocity on the belt had helped. He believed that
management makes an attempt to keep the belt clean and did not
believe that its "entirely negligence and we don't try" (Tr.
109).

 When asked whether he and the state inspector went into and

looked at the crosscuts during the state inspection, Mr.
McGlothlin stated that "me and him crawled up No. 2 belt line on
the opposite side of the belt and came out the return side" (Tr.
110). When asked why the No. 2, No. 3, and No. 4 belts were cited
by the state inspector if there were problems on the No. 1 belt,
Mr. McGlothlin responded "when you spend a lot of time on one,
you kind of let the other one just get behind too" (Tr. 111).
Findings and Conclusions Docket Nos. VA 89-35-R and VA 89-68 Fact
of Violation - 30 C.F.R. 75.400

 Hiope is charged with a violation of mandatory safety

standard 75.400, for allowing float coal dust to accumulate on
previously rock dusted surfaces along the belt conveyor entry and
connecting crosscuts described by Inspector May. Section 75.400
provides as follows:

        Coal dust, including float coal dust deposited on
   rock-dusted surfaces, loose coal, and other combustible
   materials, shall be cleaned up and not be permitted to
   accumulate in active workings, or on electric equipment
   therein.

~338
In Old Ben Coal Company, 1 FMSHRC 1954, 1 BNA MSHC 2241, 1979 CCH
OSHD 24,084 (1979), the Commission held that "the language of the
standard, its legislative history, and the general purpose of the
Act all point to a holding that the standard is violated when an
accumulation of combustible materials exist," 1 FMSHRC at 1956.
At page 1957 of that decision, the Commission also stated that
section 75.400 is "directed at preventing accumulations in the
first instance, not at cleaning up the materials within a
reasonable period of time after they have accumulated." See also:
MSHA v. C.C.C. Pompey Coal Company, Inc., 2 FMSHRC 1195 (1980),
and 2 FMSHRC 2512 (1980).

 In Back Diamond Coal Company, 7 FMSHRC 1117, 1120 (August

1985), the Commission stated as follows:

   We have previously noted Congress' recognition that
   ignitions and explosions are major causes of death and
   injury to miners: "Congress included in the Act man-
   datory standards aimed at eliminating ignition and fuel
   sources for explosions and fires. [Section 75.400] is
   one of those standards." Old Ben Coal Co., 1 FMSHRC
   1954, 1957 (December 1979). We have further stated
   "[i]t is clear that those masses of combustible mate-
   rials which could cause or propagate a fire or explo-
   sion are what Congress intended to proscribe." Old Ben
   Coal Co., 2 FMSHRC 2806, 2808 (October 1980). The goal
   of reducing the hazard of fire or explosions in a mine
   by eliminating fuel sources is effected by prohibiting
   the accumulation of materials that could be the origi-
   nating sources of explosions or fires and by also
   prohibiting the accumulation of those materials that
   could feed explosions or fires originating elsewhere in
   a mine.

 I conclude and find that Inspector May's credible testimony

establishes the existence of float coal dust accumulations
deposited on previously rock dusted surfaces along a rather
extensive area of the cited belt conveyor in question. Mr. May's
confirmed that he measured the depth of the accumulations with a
rule at three locations and estimated the depth of the rest of
coal dust by observation. He visually observed the accumulations,
which he described as dry "black, fine, coal dust," and while he
did not test it with a sieve, he felt it with his hand and kicked
it around to confirm his visual observations that the black coal
dust was in fact float coal dust which he believed is
combustible.

 Although superintendent James McGlothlin disputed the

accuracy of Inspector May's estimate of the length of the
conveyor belt, the depths of some of the accumulations, and
believed that some of the accumulations were loose coal rather
than float

~339
coal dust, Mr. McGlothlin nonetheless confirmed that coal dust
was present behind the brattices where it was backed up for some
20 feet at depths ranging from 8 to 13 inches, and that the coal
dust which had accumulated along at least 1,000 feet of the belt
cited by Mr. May was black in color, needed rock dust, and had
not been cleaned.

 Danny McGlothlin took issue with Inspector May's estimate as

to how long the accumulations had existed prior to his
inspection, and I find nothing in his testimony to rebut the
inspector's testimony that the float coal accumulations did in
fact exist at the time Mr. Mays observed them.

 On the facts of this case, the fact that the inspector did

not sample the float coal dust is irrelevant to any determination
of a violation of section 75.400. The inspector's credible and
unrebutted testimony establishes the existence of a significant
amount of accumulated dry float coal dust which was black in
color over a rather extensive area, and I conclude and find that
the inspector's observations, coupled with his feeling and
kicking the float coal dust around is sufficient enough to
establish a violation. See: Kaiser Steel Corp., 3 IBMA 489
(1974); Pyro Mining Company, 7 FMSHRC 1415 (September 1985);
Helvetia Coal Company, 7 FMSHRC 1613 (October 1985).

 In view of the foregoing, I conclude and find that MSHA has

established by a preponderance of the evidence that the
accumulations of float coal dust as described by Inspector May
were allowed to accumulate and were not cleaned up as required by
section 75.400. Accordingly, the violation IS AFFIRMED. Docket
Nos. VA 89-36-R and VA 89-69 Fact of Violation - 30 C.F.R.
75.220

 Hiope is charged with a violation of mandatory safety

standard 30 C.F.R. 75.220, for failing to install roof support
timbers at the cited pillar block which had been cut by the
continuous-miner operator. Hiope's approved roof-control plan
required the installation of timbers at the cited pillar location
before any mining commenced, and Hiope does not dispute the fact
that the required roof support timbers were not installed as
required. Section 75.220 requires a mine operator to follow its
roof-control plan.

 The credible and unrebutted testimony of Inspector May

clearly supports a violation of section 75.220. Accordingly, the
violation IS AFFIRMED.

~340
Significant and Substantial Violations

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

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

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

      In order to establish that a violation of a man-
 datory safety standard is significant and substantial
 under National Gypsum the Secretary of Labor must
 prove: (1) the underlying violation of a mandatory
 safety standard; (2) a discrete safety hazard--that is,
 a measure of danger to safety-contributed to by the
 violation; (3) a reasonable likelihood that the hazard
 contributed to will result in an injury; and (4) a
 reasonable likelihood that the injury in question will
 be of a reasonably serious nature.

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

1129, the Commission stated further as follows:

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

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

~341
Violation of 30 C.F.R. 75.400

 The credible evidence adduced by MSHA establishes the

existence of the dry and black coal dust which was deposited on
top of previously rock dusted surfaces along the belt conveyor
system locations described by the inspector. These accumulations
ranged in depths of 0 to 13 inches, and they were located in belt
conveyor areas which included potential sources of ignition. The
inspector described these ignition sources as a belt conveyor
drive motor, the belts and rollers, and electrical cables. Since
miners travelled through the cited conveyor belt location and
worked on the section on a daily basis, and the belt was on an
intake air course, the inspector believed that in the event of a
belt fire, smoke would course through the area towards the
working face areas where miners would be working, and they would
be exposed to fire and smoke hazards, and possible entrapment. If
a fire were to occur, it would be reasonably likely that the
miners would be exposed to these hazards and suffer permanently
disabling injuries of a reasonably serious nature.

 I conclude and find that the inspector's credible testimony

establishes that the float coal dust accumulations in question,
which I believe one may assume were combustible, located in areas
where potential ignition sources were present, presented a
discrete fire and smoke hazard, and possibly an explosion hazard.
The inspector's belief that no coal was being mined or
transported on the belt at the time of his observations of the
float coal dust conditions was disputed by superintendent James
McGlothlin who believed that the belt conveyor was in operation.
If this were true, and the belt was running with coal, I believe
that the hazard presented by the existence of float coal dust
along a rather extended area of the belt conveyor, with potential
ignition sources present would be increased. Any frozen or stuck
belt roller, or malfunctions of the electrical cables or belt
drive motors would provide a ready source of heat or friction to
ignite the float coal dust and propagate a fire.

 The fact that the conveyor belt may not have been in

operation at the precise moment the inspector made his inspection
and observed the conditions does not affect the hazards which one
may reasonably conclude existed. In the normal course of mining
with the belt running, the miners working on the section would be
exposed to fire, smoke, and explosion hazards of a reasonably
serious nature. Under all of these circumstances, I conclude and
find that the violation was significant and substantial, and the
inspector's finding in this regard IS AFFIRMED.

Violation of 30 C.F.R. 75.220

 Hiope does not dispute the fact that the pillar coal block

was in fact cut, and that coal was removed from the block,
without first installing the roof support timbers required by the

~342
roof-control plan. I agree with the inspector's credible
testimony that there is always a danger of a roof fall where coal
pillars are mined without adequate roof support, and that the
increased stress placed on the roof by the lack of timbering
increases the likelihood of a roof fall.

 The inspector's unrebutted credible testimony establishes

that the taking of a cut of coal without first installing roof
support timbers exposed the continuous-miner operator to the
danger of a roof fall, and that in the event the miner operator
continued to cut the coal block without timbers being installed,
a roof fall was reasonably likely. If a roof fall had occurred, I
believe it was reasonably likely that the miner operator would
have sustained injuries of a reasonably serious nature.

 The fact that the continuous-miner operator may not have

been under unsupported roof while at the controls of his machine
does not lessen the hazard exposure. The inspector reasonably
concluded that the unsupported roof area in question could have
broken out and fallen back beyond the end of the unsupported coal
block while it was being cut, and exposed the miner operator to a
roof fall hazard. Indeed, in this case, the miner operator
believed that he would be exposed to a danger if the roof had
fallen and extended out through the pillar intersection.

 The Commission has taken note of the fact that mine roofs

are inherently dangerous and that even good roof can fall without
warning. Consolidation Coal Company, 6 FMSHRC 34, 37 (January
1984). It has also stressed the fact that roof falls remain the
leading cause of death in underground mines, Eastover Mining Co.,
4 FMSHRC 1207, 1211 & n. 8 (July 1982); Halfway Incorporated, 8
FMSHRC 8, 13 (January 1986); Consolidation Coal Company, supra.

 In the Consolidation Coal Company case, supra, the

Commission affirmed my "S&S" finding concerning an over-wide roof
bolting pattern which had existed along a supply track for a
period of 6-months, and stated that "[T]he fact that no one was
injured during that period does not ipso facto establish that
there was not a reasonable likelihood of a roof fall."

 In U.S. Steel Mining Company, Inc., 6 FMSHRC 1369, 1376 (May

1984), Judge Melick found that a hazardous roof condition was
significant and substantial notwithstanding testimony from a mine
foreman that it was unlikely that the roof would fall "right
away," and his belief that the condition was not unsafe because
he and the inspector were under the roof while taking certain
measurements. In R B J Coal Company, Inc., 8 FMSHRC 819, 820 (May
1986), Judge Melick cited Mathies Coal Company, 6 FMSHRC 1
(1984), in support of his finding that a hazardous roof condition
constituted a significant and substantial violation even in the
absence of an "immediate hazard."

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In Halfway Incorporated, supra, the Commission upheld a
significant and substantial finding concerning a roof area which
had not been supported with supplemental support, and ruled that
a reasonable likelihood of injury existed despite the fact that
miners were not directly exposed to the hazard at the precise
moment of the inspection. In that case, the Commission stated as
follows at 8 FMSHRC 12:

   [T]he fact that a miner may not be directly exposed to
   a safety hazard at the precise moment that an inspector
   issues a citation is not determinative of whether a
   reasonable likelihood for injury existed. The opera-
   tive time frame for making that determination must take
   into account not only the pendency of the violative
   condition prior to the citation, but also continued
   normal mining operations. National Gypsum, supra,
   3 FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC
   1573, 1574 (July 1984).

 In view of the foregoing findings and conclusion, I conclude

and find that the violation was significant and substantial, and
the inspector's finding in this regard IS AFFIRMED. The
Unwarrantable Failure Issues

 The governing definition of unwarrantable failure was

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:

   In light of the foregoing, we hold that an inspec-
   tor should find that a violation of any mandatory
   standard was caused by an unwarrantable failure to
   comply with such standard if he determines that the
   operator involved has failed to abate the conditions or
   practices constituting such violation, conditions or
   practices the operator knew or should have known
   existed or which it failed to abate because of a lack
   of due diligence, or because of indifference or lack of
   reasonable care.

 In several recent decisions concerning the interpretation

and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Energy 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). Referring to its prior holding in the Emery

~344
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010:

 We stated that whereas 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 that ordinary negligence, do
 unwarrantable failure sanctions assume their intended
 distinct place in the Act's enforcement scheme.

 In Emery Mining, the Commission explained the meaning of the

phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:

 We first determine the ordinary meaning of the
 phrase "unwarrantable failure." "Unwarrantable" is
 defined as "not justifiable" or "inexcusable."
 "Failure" is defined as "neglect of an assigned,
 expected, or appropriate action." Webster's Third New
 International Dictionary (Unabridged) 2514, 814 (1971)
 ("Webster's"). Comparatively, negligence is the
 failure to use such care as a reasonably prudent and
 careful person would use and is characterized by
 "inadvertence," "thoughtlessness," and "inattention."
 Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
 that is not justifiable and inexcusable is the result
 of more than inadvertence, thoughtlessness, or
 inattention. * * *

Violation of 30 C.F.R. 75.400

 MSHA argues that the violation resulted from a high degree

of negligence on the part of Hiope, and that due to the egregious
nature of the violation, MSHA concludes that it has established
that the violation resulted from Hiope's unwarrantable failure to
comply with the requirements of section 75.400. In support of its
conclusion, MSHA relies on the testimony of the inspector which
reflects his opinion that in some areas where the float coal dust
was up to 13 inches in depth, it could have accumulated over a
period of at least a week, and that in other areas where there
was less air, and where it had accumulated to depths of 2 inches,
it would have taken over a month for the float coal dust to
accumulate.

 MSHA asserts that since the belt line in question is subject

to at least one inspection a day, Hiope should have observed the
float coal dust conditions and cleaned them up. MSHA points out
that the mine had a history of coal dust accumulation problems
and similar prior violations were issued at the same belt area
for the same conditions as those cited by Inspector May, and that
Hiope's management acknowledged its awareness of the problem.

~345
waited until its rock dust supplies were exhausted before
ordering more (Tr. 120-122).

 Hiope denies that it has exhibited a high degree of

negligence with respect to the violation. It takes the position
that it cannot be held accountable "for every bit of float dust,"
and that it has attempted to control float coal dust and has done
everything that it has been asked to do to control it. Hiope
disputes the accuracy of the inspector's belief that the
accumulations had existed for a month, and it points to the fact
that a state mine inspection report reflects that as late as 10
days before the inspection, the state inspector found the cited
area to be "all clear" (Tr. 129-130).

 Hiope's witness, Danny McGlothlin disputed the inspector's

estimates that the float coal accumulations along the first 400
feet of the No. 1 belt had possibly accumulated over a period of
1 week, and that the area inby that location took possibly a
month for the float coal dust to accumulate. Mr. McGlothlin
stated that during a prior state inspection, the No. 1 belt was
cited for loose coal and float coal dust accumulations, and lack
of rock dust, during an inspection on January 11-13, 1989, and
that the accumulations were cleaned up on January 13, 1989,
10-days prior to the inspection by Mr. May. With regard to the
areas where Mr. May believed the accumulations existed for
possibly a month, Mr. McGlothlin's basis for disputing Mr. May's
belief was that the state inspector was "strict."

 Hiope did not offer the state mine inspection report that it

alluded to, and in my view, Mr. McGlothlin's testimony at best
reflects that the last time the conveyor belt was cleaned was
10-days prior to the inspection conducted by Inspector May on
January 23, 1989. I cannot conclude that this rebuts the
inspector's belief that the accumulations had probably existed
for at least a week. Indeed, Mr. McGlothlin's testimony
corroborates the inspector's testimony. Mr. McGlothlin's
characterization of the State inspector as "strict" falls short
of credible testimony rebutting the MSHA inspector's testimony
that the remaining float coal conditions accumulated over a
period of a month. Hiope does not dispute the fact that the cited
belt conveyor belt was not cleaned, and it presented no evidence
to establish when the belt was last cleaned up and rock dusted.

 With regard to Hiope's contention that it had difficulty

obtaining an adequate supply of rock dust, I reject this as a
defense. Although I do not dispute the difficulty which was
verified by the inspector, it is incumbent on Hiope to insure
that it maintains an adequate supply of rock dust to stay in
compliance with the requirements of the regulations. Further,
Hiope has not established that it could not obtain adequate

~346
supplies of rock dust from sources other than the quarry which
was experiencing a production problem.

 Hiope did not dispute the fact that prior violations were

issued by MSHA inspectors for violations of section 75.400
because of float coal dust and loose coal accumulations along the
same belt conveyor location. Copies of the previous violations
reflects that Inspector May issued two prior citations for
violations of section 75.400, because of float coal dust
accumulations on the No. 1 belt conveyor on March 14 and November
14, 1988 (exhibits G-6 and G-13). He also issued seven additional
citations for accumulations of dry loose coal and float coal dust
on the Nos. 2, 3, and 4 belts during March, May, and November,
1988 (exhibits G-7 through G-12, and G-14).

 After careful review of all of the testimony and evidence

adduced with respect to this violation, I conclude and find that
MSHA has established by a preponderance of the evidence that the
violation was indeed the result of Hiope's unwarrantable failure
to comply with the requirements of section 75.400. I take note of
Danny McGlothlin's tacit admission that he sometimes "got behind"
in insuring that the belts were cleaned up of accumulated float
coal dust accumulations. I conclude and find that the evidence
establishes that the float coal accumulations had existed for
some time prior to the inspection without any effort by Hiope to
clean them up. Coupled with the prior citations, which were
issued relatively close in time to the violation issued by
Inspector May on January 23, 1989, for identical float coal dust
conditions, I conclude and find that Hiope's failure to clean up
the accumulations constituted a serious lack of reasonable care
in failing to take any action to clean up the accumulations. I
further conclude and find that Hiope demonstrated indifference
and a lack of due diligence in failing to correct the cited
conditions, and that its failure to act demonstrated aggravated
conduct which clearly supports the inspector's unwarrantable
failure finding in this case. Accordingly, the inspector's
finding is affirmed, and the contested section 104(d)(1) citation
IS AFFIRMED.

Violation of 30 C.F.R. 75.220

 MSHA argues that the violation was the result of an

unwarrantable failure by Hiope because the continuous-miner
operator, Mr. Feeser, was instructed by his section foreman, Mr.
Armstrong, to begin cutting the coal pillar in question before
roof pillars were installed at that location.

 With regard to Mr. Feeser's testimony, and the question of

whether he changed his alleged prior statements that he cut into
the block of coal accidentally, MSHA asserts that at the time of
the inspection, Mr. Feeser told Inspector May that he was
instructed to take the continuous-mining machine across the

~347
section and start cutting, and that this prior statement by Mr.
Feeser is consistent with his testimony during the hearing (Tr.
123-125).

 Hiope argues that MSHA's conclusion that the violation

constituted an unwarrantable failure rests on continuous-miner
operator Feeser's testimony that he was instructed by foreman
Armstrong to take the continuous miner to the coal block in
question and to begin cutting the coal. However, Hiope contends
that Mr. Feeser's testimony has been discredited in that he has
given inconsistent testimony and did not completely admit or deny
that he had made previous statements that he had cut into the
block of coal accidentally, and Hiope's witnesses have attested
to the fact that Mr. Feeser has given inconsistent testimony.

 Hiope suggests that since Mr. Feeser was laid off by Hiope

and filed a grievance in the matter he is a biased witness whose
testimony is not credible. Further, Hiope asserts that it would
be "insane" for Hiope to mine the pillars without supporting the
roof, that it never intended to do so, and that the shuttle car
which was broken down would have been in the way of any mining.
Hiope concludes that MSHA's position is simply flawed (Tr.
127-129).

 Continuous-miner operator Feeser testified that section

foreman Armstrong instructed him to take the mining machine to
the cited pillar location and to "start the first block" of coal.
Mr. Armstrong confirmed that he instructed Mr. Feeser to take the
machine to that location, but he stated that he simply pointed
out to Mr. Feeser that the block of coal in question would be the
initial starting point to begin cutting once the mining cycle was
begun.

 Mr. Armstrong stated further that some coal gob or debris

left over from previous mining had been pushed up and against the
coal block in question and that it needed to be cleaned up. He
believed that Mr. Feeser cut into the coal block while cleaning
up the gob and turned his machine into the block and it started
cutting. He denied that he instructed Mr. Feeser to start cutting
and mining the block of coal in question, and his unrebutted
testimony establishes that when he observed that Mr. Feeser had
cut into the block, he instructed him to stop any further
cutting, and to help install all timbers before starting any
mining.

 Mr. Feeser, who was a safety committeeman, and who

acknowledged that he was familiar with the roof-control plan,
admitted that when he attended a meeting at the mine office, he
told Hiope's counsel that he had accidentally cut into the coal
block. Although he denied that Mr. Armstrong instructed him to
clean up the gob which was against the block, Mr. Feeser admitted
that during an informal violation conference with MSHA, he confirmed

~348
that he was in fact cleaning up the gob with his machine, and he
also confirmed that this was the case during his hearing
testimony.

 Mr. Feeser denied that he made any statement during the MSHA

conference that he had accidentally cut into the coal block while
cleaning up the gob. When pressed further on this question, he
stated that he was never asked a direct question as to whether or
not he accidentally cut into the coal block, and did not
volunteer any such information.

 During his direct testimony, Inspector May testified that

when he spoke with Mr. Armstrong at the time the order was
issued, he could not recall specifically asking Mr. Armstrong for
an explanation as to why the cut was made before any roof support
was installed. However, on cross-examination, Mr. May
acknowledged that Mr. Armstrong told him that Mr. Feeser had
accidentally cut into the coal block while cleaning the gob. Mr.
Armstrong could not recall what was said during his conversation
with Inspector May, and he acknowledged telling Mr. May that he
knew that the timbers would be set before the block of coal was
mined.

 Hiope's witness Danny McGlothlin, testified that he was

present during the meeting in the mine office after the order was
issued, and he confirmed that while he was not certain that Mr.
Feeser stated that the coal cut was accidental, Mr. Feeser
admitted that he loaded up the loose coal gob and "proceeded into
the block." Mr. McGlothlin further confirmed that he was present
during the informal MSHA conference, and that Mr. Feeser
acknowledged that he had accidentally cut into the coal block.
Mr. McGlothlin also confirmed that when it was discovered that
Mr. Feeser had cut into the coal block, all further mining
ceased.

 Mine Superintendent James McGlothlin confirmed that he was

also present at the meeting in the mine office after the order
was issued, and that Mr. Feeser admitted that he had accidentally
cut too much out of the block of coal while cleaning up the gob,
but that he did not think it would matter because the block of
coal was going to be mined out. Mr. McGlothlin stated further
that prior to the meeting, Mr. Feeser acknowledged to him that
Mr. Armstrong did not instruct him to begin the cut into the coal
block in question, and that Mr. Feeser stated "I just cut a
little more out of there than I did."

 Inspector May confirmed that Hiope had no prior roof control

violations at the face areas, and that he had not previously
encountered a situation where coal was cut before roof timbers
were installed. Mr. May further confirmed that he never had any
problems with section foreman Armstrong and considered him to be
a fair person.

~349
Inspector May confirmed that he based his unwarrantable failure
finding on Mr. Feeser's statement that Mr. Armstrong instructed
him to take the miner and proceed to cut the coal block, and on
Mr. Armstrong's statement, as reflected in his notes, that "by
the time we get this block or these blocks mined, then we'll have
our timbers set." Mr. May also believed that Hiope "knew or
should have known" that coal could not be cut before first
installing timbers, and that Mr. Armstrong should have stopped
Mr. Feeser from cutting as much as he did earlier because he was
required to check the section every 20 minutes.

 After careful review of all of the evidence and testimony in

this case, I cannot conclude that MSHA has established an
unwarrantable failure violation by a preponderance of the
credible evidence. I find that Hiope's testimony is more credible
than Mr. Feeser's with respect to the accidental cutting of the
block, and I believe and accept as credible Mr. Armstrong's
assertion that he did not instruct Mr. Feeser to cut the coal
block before the timbers were installed, and that he only
informed him where he was to start his cut once the timbers were
installed and the mining cycle has begun.

 I find Mr. Feeser's testimony and denials that he

accidentally cut into the coal block to be contradictory and
lacking in credibility. Mr. Feeser's initial admission and
acknowledgement that he had previously stated that he
accidentally cut into the block of coal was corroborated by Danny
and James McGlothlin, and I find them to be credible witnesses.

 I take note of the fact that Mr. Feeser was a member of the

safety committee and was aware of the roof-control plan
requirement for timbering before cutting any coal. Although he
denied that his lay off and grievance colored his testimony
against Hiope, I believe that Hiope's assertion that Mr. Feeser
was a biased witness has a ring of truth about it. I believe that
Mr. Feeser cut into the coal block while in the process of
cleaning up the gob, and that he cut more coal than he had
initially intended to take while cleaning up the gob, and stopped
cutting and left the machine sumped up into the coal block after
Mr. Armstrong observed what he had done and stopped him.

 After careful review of all of the testimony and evidence in

this case, I cannot conclude that MSHA has established by a
preponderance of the evidence that the cutting of the coal block
in question before adequate roof supports were installed resulted
from a lack of diligence, or from indifference amounting to
aggravated conduct. To the contrary, I find Mr. Armstrong's
testimony and explanation with respect to his instructions to the
continuous-miner operator to be believable and credible.
Accordingly, the inspector's unwarrantable failure finding IS VACATED,

~350
and the contested section 104(d)(1) order IS MODIFIED to a
section 104(a) citation, with special significant and substantial
(S&S) findings, and the citation is AFFIRMED AS MODIFIED.

Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Remain in Business

 The parties stipulated that Hiope is a small mine operator

and that the imposition of civil penalty assessments for the
violations in question will not adversely affect its ability to
continue in business. I adopt these stipulations as my findings
and conclusions on these issues. History of Prior Violations

 MSHA's computer print-out reflects that during the period

January 23, 1987 through January 22, 1989, Hiope paid civil
penalty assessments in the amount of $8,177, for 105 violations,
17 of which are for violations of section 75.400. Although
Inspector May testified that he was unaware of any prior roof
control violations concerning facts similar to those in this
case, the print-out reflects three prior violations of section
75.220 (exhibit G-3). A computerized MSHA "Proposed Data Sheet"
reflects that for a 4-year period encompassing 1986 through May
12, 1989, Hiope's mine was inspected a total of 185 days, and
that it received 152 assessed violations during these
inspections. Although Hiope's compliance record may not be
particularly good for an operation of its size, I cannot conclude
that it is such as to warrant any additional increases in the
civil penalties which I have assessed for the violations which
have been affirmed. Gravity

 For the reasons stated in my S&S findings with respect to

the violations which I have affirmed, I conclude and find that
both violations were serious. Negligence

 In view of my unwarrantable failure findings with respect to

the violation of section 75.400, I conclude and find that it
resulted from a high degree of negligence on the part of Hiope.
With respect to the violation of section 75.220, I conclude and
find that it resulted from Hiope's failure to exercise reasonable
care, and that this amounts to ordinary negligence.

Good Faith Compliance

 I conclude and find that Hiope exercised good faith

compliance in timely abating the conditions cited with respect to
both violations.

~351
Civil Penalty Assessments

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that the following civil penalty
assessments for the violations which I have affirmed are
reasonable and appropriate:

   Citation No.     Date       30 C.F.R. Section   Assessment

     2969654      03/06/89           75.220          $ 400
     2969642      01/23/89           75.400          $1,000

                             ORDER

 Hiope Mining, Inc., IS ORDERED to pay civil penalty

assessments in the amounts shown above within thirty (30) days of
the date of these decisions, and upon receipt of payment by the
petitioner, these proceedings are dismissed.

                                 George A. Koutras
                                 Administrative Law Judge