Original Sixteen to One Mine Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

Original Sixteen to One Mine operated an underground gold mine in California, and MSHA alleged 26 violations across three dockets. Ten citations were litigated after the Secretary vacated eight citations and the operator withdrew contests to eight others. Judge Michael E. Zielinski vacated one contested citation, affirmed the remaining contested citations and order, approved the settlements, and assessed $1,030 in penalties for the contested violations. The order also required $569 for the settled citations, with one citation modified to reflect low negligence.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.2, 57.11037, 57.11050(a), 57.11051(a), 57.3200, 57.6101(a), and 57.6161; 30 U.S.C. §§ 814(d), 815, 819(a), and 820(i)
• Outcome: One contested citation was vacated, the remaining contested citations and order were affirmed, and settlements totaling $569 were approved; $1,030 was assessed for the contested violations.
• Key point: The order split the result across three dockets, sustaining most contested violations while reducing the civil penalties and vacating one citation.

Full text (FMSHRC public release)

.
ORIGINAL SIXTEEN TO ONE MINE INCORPORATED
October 19, 2001
WEST 2000-63-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                    October 19, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-63-M
Petitioner : A.C. No. 04-01299-05536
v. :
: Docket No. WEST 2000-78-M
ORIGINAL SIXTEEN TO ONE MINE : A.C. No. 04-01299-05537
INCORPORATED, :
: Docket No. WEST 2000-195-M
Respondent : A.C. No. 04-01299-05538
:
: Original Sixteen to One

                         DECISION

Appearances: Christopher B. Wilkinson, Esq., Office of the
Solicitor, U.S. Department of Labor, San
Francisco, California, on behalf of Petitioner;
Michael M. Miller, President and Chief Operating
Officer, Original Sixteen to One Mine, Inc.,
Alleghany, California, on behalf of Respondent.

Before: Judge Zielinski

 These cases are  before  me  on  Petitions for Assessment of

Civil Penalty filed by the Secretary of Labor against Original
Sixteen to One Mine, Inc., pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977 (the "Act"). 30 U.S.C. � 815.
The petitions allege a total of 26 violations of mandatory safety
and health standards, as well as other regulatory provisions and
the Act itself. A hearing was held in Downieville, California on
January 17 and 18, 2001 and was continued and concluded on April
3, 2001, in Nevada City, California. Following receipt of the
transcript, the parties submitted briefs. The Secretary filed a
motion to strike portions of Respondent's brief, to which an
opposition was filed on September 24, 2001. That motion is
denied. At the commencement of the hearing, the parties advised
that the Secretary had elected to vacate eight of the citations
and that Respondent had withdrawn its contest of seven citations.
During the hearing, Respondent withdrew its contest as to one
additional citation. Consequently, ten citations were litigated,
for which the Secretary proposes total civil penalties of
$3,797.00.

 For  the  reasons  set  forth  below, I vacate one citation,

affirm nine citations and impose civil penalties totaling
$1,030.00.

Background

 The Original Sixteen to One Mine has been  in  operation for

over 100 years and is one of the oldest and most unique
underground mining operations in the country. The mining
operation generally follows veins of ore, which in the Alleghany
district have a moderate dip of 30 to 35 degrees. The rock
formations in the area are relatively stable and there is very
little timber used in the mine to support roofs or walls of
stopes. Because the moderate dip is generally below the angle of
repose of the muck, most of that broken rock does not have to be
removed from the mine. In areas where slopes are greater than 35
degrees ladders have been installed, generally constructed from 2
inch by 4 inch lumber, though some metal ladders are also in use.
The wood used for the ladders, like virtually all wood used in
the mine, deteriorates over time and there is considerable water
present which facilitates that process. There are many places in
the mine that old timbers have rotted away, but no ground fall
has resulted because of the stability of the surrounding
material. The gold produced by the mine is of such a high grade
that it is generally "hand sorted," i.e., the miners simply pick
up nuggets of gold and place them into a sack on their belts.

 By the time of the events here at  issue,  the mine had been

affected by adverse economics in the gold mining industry and had
scaled back its operations. On February 12, 1999, all 40 miners
then working were laid off. A group of 14 of them, however, went
back to work ostensibly as independent contractors, using the
mine's equipment, but generally supplying their own tools. They
determined where and how to mine and split the proceeds of their
efforts with the mine. By the summer of 1999, the group of
miners had dwindled to 6-7. That arrangement ended in October
1999, when some miners were re-hired by Original Sixteen to One.

 The relationship  between  the  Secretary's  Mine Safety and

Health Administration (MSHA) and Respondent, primarily through
its President, Michael M. Miller, has grown increasingly
antagonistic over recent years. Respondent cites the fact that
from 1985 to 1997, when its operations were some ten times as
large, a total of 83 citations had been issued at the mine.
Conversely, in the 1997-99 time frame, some 85 citations have
been issued. It has accused MSHA of conducting a "search and
destroy" mission in an attempt to overwhelm it. Respondent
issued subpoenas to the former Assistant Director of the
Department of Labor and two other officials to testify at the
hearing. Respondent hoped to illicit testimony regarding the
meaning of regulatory provisions and enforcement policies that
would explain what it viewed as excessive and arbitrary
government enforcement action. It also attempted to call as a
witness the member of the Secretary's Office of the Solicitor who
prosecuted the cases. The subject subpoenas were quashed, after
a telephonic hearing, on qualified immunity, privilege and
relevance grounds, with the caveat that if Respondent was able to
proffer admissible evidence essential to its defense that it
expected to obtain from a particular witness, the ruling would be
reconsidered. No such proffer was made. Other areas of concern
were explored by Respondent at the hearing, e.g., the experience,
training and other qualifications of the MSHA inspectors and
whether they were motivated to write additional citations to
secure advancement.[1]

 The citations and orders at issue in these  cases  arose out

of inspections conducted by two inspectors employed by MSHA,
Curtis Petty and Bruce Allard. One of Respondent's main
challenges to the alleged violations is that they, and related
gravity assessments, are based largely on subjective judgments
made by inspectors who lack relevant experience and training to
make such judgments, especially in the unique conditions
presented by Respondent's mine. Both Petty and Allard were
relatively new inspectors but both had fairly extensive mining
experience.

 Petty was certified as an "authorized representative" of the

Secretary, an MSHA inspector, around August of 1998. Like all
inspectors, he underwent extensive training at the National Mine
Health & Safety Academy, graduating in December of 1998.[2] He
also attended three week training courses in special and accident
investigation. He accompanied experienced inspectors on
inspections and, by the time he testified, had conducted several
investigations of mine accidents, including accidents that had
occurred at underground gold mines. He serves as one of twelve
MSHA members of the National Mine Rescue Team, attends training
with the team and assists in training mine operators. Prior to
becoming an inspector, Petty worked for eight years at the
Pegasus Gold Mine in Montana, serving as safety director for two
years. He also worked in a mine in Peru for three years.

 Allard  also  was trained at and graduated from the Academy.

He became an MSHA inspector in July of 1999, one month prior to
his inspection of Respondent's mine, his first inspection of an
underground mine as a certified MSHA inspector. He worked for
twenty two years at an underground gold mine in South Dakota
operated by Homestake Mining Co., including, seven years as a
hard rock miner and two years as a safety inspector. He served
on Homestake's mine rescue team for seventeen years, and
underwent yearly training for that position.

Independent Contractors

 One of Respondent's  defenses  is that it should not be held

responsible for violations that occurred while mining operations
were being conducted by the small group of independent
contractors. There is some question about the exact status of
the "independent contractors." Respondent apparently continued
to have men on-site and also continued to supply workmen's
compensation coverage for the independent contractors. None of
the independent contractors obtained permanent MSHA
identification numbers, as permitted under 30 C.F.R. Part 45, and
there is no evidence that other provisions of Part 45 were
formally complied with. In any event, it is clear that an
operator can be held "strictly liable for all violations of the
Act that occur on the mine site, whether committed by one of its
employees or an employee of one of its contractors. Mingo Logan
Coal Co., 19 FMSHRC 246, 249 (Feb. 1997) and cases cited therein.
Respondent's independent contractor defense must be rejected.

         Findings of Fact and Conclusions of Law

Citation No. 7969922

 Citation No. 7969922 was  issued by Inspector Petty on April

1, 1999, after inspecting the secondary escapeway. He observed
several conditions that he concluded constituted a violation of
30 C.F.R. � 57.11051(a), which requires that escape routes be
inspected at regular intervals "and maintained in safe,
travelable condition." The conditions he observed were noted on
the citation as:

 The secondary escapeway was not maintained as required.
 The fourth ladder from the 800 level had only one rail.
 The  next  ladder  did  not  project  3  feet above the
 landing.   Air/water  pipes travel along the  escapeway
 restricting access, requiring  a person to either belly
 crawl under them or climb over them.   The first ladder
 at the 2100 sub-level was not secured properly  (loose)
 and  the  last  ladder  below  the  2100  level was not
 secured properly as well.  The third ladder  above  the
 2200 level has a broken rail and the last ladder has  a
 broken   rung.    Several  ladders  were  not  properly
 equipped  with  landings.   In  the  event  of  a  mine
 emergency requiring  usage  of  the secondary escapeway
 miners  could be endangered trying  to  travel  through
 this section.  If the escapeway was used to evacuate an
 injured miner,  it  is  reasonably likely that at least
 one ladder would not support the weight of rescuers and
 victim. * * *

 Petty inspected the mine  with Mark Loving, a representative

of Respondent, and Jerry Hulsey, a fellow inspector who was a
large man, described as 6 feet 2 inches tall and weighing 285
pounds. The ladder with the broken rail actually cracked when
Hulsey was on it, which led to Petty's conclusion that at least
one ladder wouldn't bear the weight of a mine rescue team trying
to evacuate an injured miner. Problems with unsecured ladders,
such as one of those noted in the citation which was loosely
secured with one wrap of bailing wire, and defects such as broken
rungs, pose a higher risk of injury during an emergency.

 Petty concluded that the violation  was reasonably likely to

result in an injury expected to result in lost work days or
restricted duty, that the violation was S&S and that the
operator's negligence was high, amounting to an unwarrantable
failure to comply with a mandatory standard. He terminated the
citation on May 11, 1999, because the mine was not conducting
operations below the 800 level. He specified on the termination
document that: "If and when the mine proceeds to operate below
the 800 foot level, the secondary escapeway shall be renovated
and made compliant as per the original citation. Failure to do
so shall be recognized as aggravated conduct and appropriate
action shall follow."

 Petty based his determinations  on  his  training, both as a

miner and an inspector for MSHA, and his practical experience as
a miner and a member of the national mine rescue team. His
concerns about potential injuries were based upon his assessment
that miners who are forced to use a secondary escapeway because
of an emergency, e.g., a fire or ground fall, do so in a hurried
manner and do not exercise the care of miners making a normal
exit of a mine. The presence of smoke or dust can significantly
impair a miner's ability to follow a prescribed route, avoid
obstacles and use devices such as ladders. He was aware that
there were several potential sources of fire in the mine,
including electrical substations at different levels and a pump
powered by electricity at the 2200 level. In addition, he
considered difficulties that might be encountered by a mine
rescue team wearing self-contained breathing apparatus attempting
to enter the mine or transport an injured miner strapped into a
"Stokes" stretcher through the secondary escapeway. He had
traveled the secondary escapeway in 1998 and had pointed out many
of the same shortcomings at that time to Respondent's then safety
director and the mine manager, neither of whom were employed by
Respondent at the time of this inspection.

 Respondent's  chief  challenge to Petty's  observations  and

conclusions are to his qualifications and experience and lack of
familiarity with Respondent's mine and similar mines in the area.
Respondent argues, e.g., that evaluating the sufficiency of the
escapeway in the hypothetical situation of a mine rescue team
using self-contained breathing apparatus is unrealistic because
there has never been such a rescue required in the mines in that
district. It also challenges the scenario of fire and smoke
presence, because there are very few potential fire sources in
the mine and argues that the miners are all experienced and well-
trained and would not likely panic in the event that they had to
use the secondary escapeway. Respondent also contends that Petty
wrongly applied standards for travelways to this escapeway.
Based upon examinations of the escapeway made in preparation for
the hearing in this case, Respondent also asserts that its
ladderways and landings met all applicable requirements and that
all areas of the escapeway meet the minimum opening size
requirement of 24 inches by 24 inches and that any difficulty
that Hulsey had with tight quarters was due to his size, not a
deficiency in the escapeway.

 Respondent's objections to Petty's qualifications are easily

dispensed with. Petty was an experienced miner, having been
involved in safety issues for much of that time. He was
extensively trained prior to becoming an MSHA inspector and is
highly qualified in mine rescue techniques. It is clear that
Petty was easily qualified to make judgments and determinations
on the existence of violations and issues of gravity. The
Secretary argues that an experienced inspector's "interpretation
of the [regulatory] term `safe [and] travelable' is entitled to
deference," citing Martin v. OSHRC, 499 U.S. 144, 148-49 (1991)
and Energy West Mining Co., v. FMSHRC, 40 F.3d 457, 460-61
(D.D.Cir. 1994). The cases relied upon, however, address an
entirely different issue, i.e., the deference to be afforded the
Secretary's interpretation of an ambiguous regulatory provision.
No such issues are presented here. The Commission has held that
the judgment of an inspector is an "important element" in
determining whether a violation is significant and substantial.
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998);
Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984); Cement Div., Nat'l
Gypsum Co., 3 FMSHRC 822-825-26 (Apr. 1981); Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1999). Both Petty
and Allard had limited experience as inspectors at the time of
the inspections here at issue. However, they received
considerable training and had substantial experience in the
mining industry. Their conclusions are entitled to weight
appropriate to their experience and qualifications.

 I also reject Respondent's argument that, because the miners

were highly experienced, the "panic factor" should not be
considered in evaluating whether the escapeway was maintained in
a safe and travelable condition. The secondary escapeway would
be used as such only in the event of an emergency when the normal
travelway was inaccessible. There would certainly be an element
of urgency for miners using it and when evaluating the condition
of the escapeway, it would be unrealistic to fail to take into
consideration that miners may be hurrying, possibly with limited
vision because of smoke.

 Respondent's other arguments have more merit.  Petty did not

take measurements at critical points to determine the slope of
ladders or stopes or of the size of openings where he concluded
that passage was restricted. It appears that his concerns about
restricted passage were largely related to Hulsey's difficulty
because of his size and considerations of difficulties that a
rescue team might encounter while carrying a stretcher and
wearing self-contained breathing apparatus. Petty believed that
the minimum opening for an escapeway was 24 inches by 24
inches[3] While an opening that size would appear adequate to
allow expeditious passage by a miner under normal conditions, it
would pose a considerable restriction for a large man and it
would not be surprising that a miner or rescue team member would
have to remove a self-contained breathing apparatus from his back
to pass through such an opening.

 Miller  had  not  traveled the secondary escapeway in almost

ten years. On January 15, 2001, in preparation for the hearing,
he traveled a portion of it with two individuals, Jason Burke and
Ray Witkopp, who took measurements of slopes and openings in the
escapeway. Burke, a graduate engineer in the process of
obtaining his State of California license as a civil engineer,
had worked at Respondent's mine as a mine engineer doing mapping
and surveying from October 1996 to June of 1998. Witkopp, an
expert in the field of geology, has worked extensively with
Miller in identifying areas of the mine that are likely to
contain gold such that mining efforts can be more effectively
directed. They traveled the escapeway from the 1700 level to the
surface and used a Brunton compass, tape measure and laser
pointer to take measurements. They determined that the slopes of
the stopes and other portions of the escapeway ranged from nearly
horizontal to a maximum of 60 degrees. In every location where
the slope was greater than 35 degrees ladders were provided.
They had no difficulty negotiating pipes that crossed the
ladderways and similarly, found no areas with significantly
restricted openings. However, it is apparent that some pipes
present during Petty's inspection had been moved because Allard
visited the mine in October to, among other things, observe pipes
that had been moved.

 I  credit the testimony of Burke, Witkopp  and  Miller,  and

find that the measurements that they took as to slopes were
accurate. Those aspects of the escapeway would not change, even
over a period of many years. At least from the 1700 level to the
surface, ladders were provided on all slopes greater than 35
degrees and there were no slopes greater than 60 degrees.
Witkopp and Burke did not travel to portions of the escapeway
below the 1700 level and take similar measurements. The reason
that their travel was limited was not explained, although it
could have been because those areas were intended to be inactive.

 Respondent's  contention  that  Petty   improperly   applied

standards applicable to travelways to the secondary escapeway
also carries some force. The regulations contain relatively
specific provisions applicable to underground travelways.[4] See,
30 C.F.R. �� 57.11001-57.11041. Among them are 30 C.F.R. �
57.11006, which requires that ladders project 3 feet above
landings or that substantial handholds be provided, and �
57.11041, which requires that landings be provided every 30 feet
for ladders inclined more than 70 degrees. Similar provisions
are not found in the regulations governing escapeways. While
Petty did not issue citations for specific conditions that may
have been violations had they occurred in a travelway, he did
reference the more restrictive travelway regulations in
describing conditions that he determined made the escapeway less
safe.[5]

 Respondent contends, in  essence,  that  references  to such

conditions improperly graft regulations governing much more
frequently used travelway into those governing escapeways.
Accepting Respondent's argument, however, would lead to an absurd
result, i.e., that the existence of a regulation governing a
specific condition applicable to one area of a mine precludes an
inspector from considering similar conditions in enforcing more
general regulations applicable to another area. I hold that even
though a specific condition in the escapeway did not itself
violate a standard, e.g., the failure of a ladder to project 3
feet above a landing in the absence of substantial handholds,
such a condition could properly be taken into account in
evaluating whether the overall condition of the secondary
escapeway was safe and travelable. Petty did not cite Respondent
for violating a regulation applicable to travelways and it likely
would have been improper for him to have done so. As noted,
infra, Allard did cite such specific conditions in the escapeway
as violative of travelway regulations. The Secretary vacated
those citations.

 I am troubled by  one  of Petty's conclusions, however.  His

determination that "several ladders were not properly equipped
with landings" is problematic, because at least some of the areas
referred to were at or above the 1700 level, where the maximum
slope was no more than 60 degrees. Those ladders were not
inclined at or more than 70 degrees, so that landings every 30
feet would not have been required even for a travelway. Petty
was using the travelway regulation, at least for reference.
However, he did not take measurements of slopes or openings, and
was likely in error in estimating the slope of the ladders, which
is understandable in that environment. Allard apparently made a
similar error during his later inspection. While additional
landings may enhance safe travel in the escapeway, I will not
consider the absence of such landings in determining whether the
conditions violated the standard and, if so, whether the
violation was significant and substantial or the result of
Respondent's unwarrantable failure.[6]

 In an enforcement proceeding  under  the  Act, the Secretary

has the burden of proving an alleged violation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd.,
Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096
(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July
1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov.
1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).

 The conditions observed by Petty,  many  of  which  are  not

rebutted by competent evidence,[7] establish a violation of the
standard. I find that there were improperly secured ladders and
ladders with a broken and a missing rail and a broken rung. I
further find that air and water lines in one location did create
restrictions that would impede expeditious travel through the
escapeway and that handholds were not provided in some instances
where they would have reduced the risk of injury to a miner using
the escapeway. These conditions created a reasonable possibility
of an injury to miners using the escapeway. I also find that
Petty accurately evaluated the gravity factors when he concluded
that it was reasonably likely that an injury resulting in lost
work days or restricted duty could reasonably be expected in
light of the violation.

Significant and Substantial

 A "significant and substantial" (S&S) violation is described

in Section 104(d)(1) of the 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." A
violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

 In  Mathies  Coal Co, 6  FMSHRC  1,  3-4  (Jan.  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
 will   result  in  an  injury;  and  (4)  a  reasonable
 likelihood  that  the  injury  in question will be of a
 reasonably serious nature. (footnote omitted)

See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th
Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015, 2021
(Dec. 1987) (approving Mathies criteria).

 In  U.S.  Steel  Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.

1985), the Commission stated further as follows:

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

 This evaluation is made in terms of "continued normal mining

operations." U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The
question of whether a particular violation is significant and
substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).

 The Secretary's argument that the violation was S&S is based

upon Petty's determination that a miner was likely to be injured
while using the escapeway to leave the mine during an emergency
and that a rescue team member might be injured. However, it is
unlikely that the secondary escapeway would be used under normal
mining operations. There were very minimal mining operations
being conducted during the time frame that the citation was
issued and there was no evidence that any significant increase
was planned in the reasonably foreseeable future. While there
was some evidence that there were plans to do some active mining
in the area near the secondary escapeway there was also evidence
that future mining operations would be focused in the north end
of the mine, necessitating development of a secondary escapeway
in that area. Very few miners, no more than four, would have
used the escapeway in the event of an emergency. While it is
reasonably possible that a miner using the escapeway in an
emergency might sustain an injury from the unsafe condition, the
likelihood of an actual injury occurring under normal mining
conditions was remote. Moreover, the injury reasonably likely to
occur would not be serious, and would result from a slip or fall
partially down a slope of 30-60 degrees. The escapeway was
required to be inspected only "periodically," which would have
been infrequent in light of the extremely limited mining
operations being conducted in that area. A person qualified to
make such inspections would not be doing so under emergency
conditions.

 The deficiencies noted with respect to use of  the escapeway

by a mine rescue team were legitimate concerns. However, the
possibility of a mine rescue team having to enter the mine, even
without wearing self-contained breathing apparatus, is so remote
under the circumstances presented here, that the potential for
injury to a mine rescue team member has virtually no effect on
assessment of the risk or seriousness of injury. While there
was evidence that a fire had occurred in a mine that is now part
of the Original Sixteen to One Mine, that fire occurred some 50
years ago. The Secretary introduced no evidence of the
circumstances of the fire. I accept Miller's testimony that the
fire did not endanger miners, that no rescue or self-contained
breathing apparatus was used and that conditions that resulted in
that fire no longer exist in the mine.

 I find that  the Secretary has not met her burden of proving

a reasonable likelihood that the hazard contributed to by the
violation will result in an injury of a reasonably serious nature
and that the violation was not S&S.

Unwarrantable Failure

 In Windsor Coal Co., 21 FMSHRC 997, 1000  (Sept.  1999), the

Commission reiterated the law applicable to determining whether a
violation was the result of an unwarrantable failure.

      The  unwarrantable  failure  terminology  is taken
 from section 104(d) of the Act, 30 U.S.C. � 814(d), and
 refers  to  more  serious  conduct  by  an  operator in
 connection with a violation.  In Emery Mining  Corp., 9
 FMSHRC 1997 (Dec. 1987), the Commission determined that
 unwarrantable    failure    is    aggravated    conduct
 constituting  more  than  ordinary negligence.  Id.  at
 2001.  Unwarrantable failure  is  characterized by such
 conduct    as    "reckless   disregard,"   "intentional
 misconduct," "indifference,"  or  a  "serious  lack  of
 reasonable   care."    Id.   at  2003-04;  Rochester  &
 Pittsburgh Coal Co., 13 FMSHRC  189,  194  (Feb. 1991);
 see also Buck Creek Coal, Inc. v. FMSHRC, 52  F.3d 133,
 136    (7th    Cir.   1995)   (approving   Commission's
 unwarrantable  failure   test).    The  Commission  has
 recognized  that a number of factors  are  relevant  in
 determining whether  a  violation  is  the result of an
 operator's   unwarrantable   failure,   such   as   the
 extensiveness of the violative condition, the length of
 time  that  the  violative  condition  has existed, the
 operator's   efforts   to   eliminate   the   violative
 condition,  and whether an operator has been placed  on
 notice  that  greater   efforts   are   necessary   for
 compliance.   Mullins  &  Sons Coal Co., 16 FMSHRC 192,
 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
 (Aug. 1992).  The Commission also considers whether the
 violative condition is obvious,  or poses a high degree
 of  danger.  BethEnergy Mines, Inc.,  14  FMSHRC  1232,
 1243-44  (Aug.  1992)  (finding  unwarrantable  failure
 where  unsaddled  beams  "presented a danger" to miners
 entering area); Warren Steen  Constr.,  Inc., 14 FMSHRC
 1125,  1129  (July 1992) (finding violation  aggravated
 and unwarrantable based on "common knowledge that power
 lines are hazardous,  and  .  .  . that precautions are
 required  when  working  near  power lines  with  heavy
 equipment"); Quinland Coals, Inc.,  10  FMSHRC 705, 709
 (June 1988) (finding unwarrantable failure  where  roof
 conditions were "highly dangerous"); Kitt Energy Corp.,
 6 FMSHRC 1596, 1603 (July 1984) (conspicuous nature  of
 the violative condition supports  unwarrantable failure
 finding).

 The  Secretary's unwarrantable failure argument is based  on

the nature of the violation, its duration and prior notice to
Respondent. Relying on Faith Coal Co., 19 FMSHRC 1357, 1369
(Aug. 1997) and Jim Walter Resources, Inc., 19 FMSHRC 480, 488-89
(March 1997), the Secretary places particular emphasis on the
prior notice factor based upon her argument that the deficiencies
had been the subject of a citation issued in 1997 and had been
pointed out to mine management during an inspection in 1998.

 While  it  is true that a citation was issued  in  1997  for

failure to maintain the secondary escapeway in safe and
travelable condition, such a citation, based upon a number of
factors in a large area of the mine, many without reference to a
specific location, is less probative on the prior notice factor
than a prior citation citing a particular violation at a specific
location.[8] Here, it is not at all clear that the conditions
noted some two years earlier that resulted in the 1997 citation,
were the same as those observed by Petty. Petty did not testify
about the earlier citation and did not base his conclusion upon
it.[9]

 The  Secretary  also relies, however, on the fact that Petty

had pointed out some of his concerns to Respondent's previous
safety director during an inspection of the escapeway in 1998.
He specifically mentioned the air/water lines and restricted
access and was concerned about missing landings. He concluded
during his inspection that Respondent had done no work to remedy
the problems he had identified in 1998. While I credit Petty's
testimony to the extent that some of the conditions that he based
the citation on existed in 1998, it is not clear that many of the
particular conditions itemized on the citation existed in 1998.
Moreover, Petty's comment included a reference to missing
landings, which I have not relied on in determining that a
violation existed.

 I  do  not  find  that  the  violation  was attributable  to

Respondent's unwarrantable failure to comply with the standard.
The violation was based upon a number of factors, each of which,
standing by itself would not have amounted to a violation. There
is little evidence as to the duration of many of the conditions.
One, in fact, occurred during the inspection, when a rung or rail
cracked when Hulsey stepped on it. That area of the mine was
generally inactive and miners were present infrequently, at best.
It was required to be inspected only periodically when mining
operations that created a possibility of use of the secondary
escapeway were ongoing. The prior notice argument, for the
reasons noted above, does not carry enough weight in combination
with these factors to establish an unwarrantable failure here.
In that regard, I also note that the individuals that Petty
talked to in 1998 no longer worked for Respondent.

FOOTNOTES

 [1]: Although the litigation of these cases was difficult to

control, despite the issuance of a detailed supplemental
prehearing order requiring written proffers of lay and expert
testimony and the submission of witness' qualifications in
writing, it was conducted by the parties in a professional
manner. A limited exception, however, was Respondent's
characterization of the testimony and motivation of government
witnesses that prompted the Secretary to file a motion to strike
those references from the record. Respondent's position is that
the characterizations are supported by evidence in the record and
were not necessarily intended to connote criminal conduct. While
the motion will be denied, Respondent is urged to avoid such
controversial terminology, which does little to advance its
arguments.

 [2]: He  was  certified as an inspector prior to his  actual

graduation because he was given credit, based upon his
experience, and had attained the qualifications necessary for
that position.

 [3]: See, 30 C.F.R.  �  57.11037,  which specifies a minimum

opening of 24 inches by 24 inches for ladderways constructed
after November 15, 1979, in underground travelways.

 [4]: A  travelway  is  defined  in  the  regulations  as  "a

passage, walk or way regularly used and designated for persons to
go from one place to another." An escapeway is defined as "a
passageway by which persons may leave a mine." 30 C.F.R. � 57.2.

 [5]: Petty  testified that he viewed the specific conditions

as violations but determined to group "several violations"
together under the single citation he issued.

 [6]: Landings  would  serve a number of purposes, among them

limiting the length of a fall and providing a place to rest. The
travelway regulation evidences the Secretary's determination that
such risks are substantially reduced where ladders are sloped
less than 70 degrees.

 [7]: Respondent   contends   that   its   foreman   repaired

deficiencies in the escapeway. That, however, was clearly a
reference to abatement efforts, not repairs that were done prior
to Petty's inspection.

 [8]: See, e.g., Jim Walter Resources, Inc.,  19  FMSHRC 480,

488-89 (March 1997), a case cited by the Secretary, where the
issuance of an identical citation for the same problem at the
same location less than two weeks earlier, combined with two
other orders and an extensive history of similar violations,
mandated an unwarrantable failure finding.

 [9]: Respondent argues that it contested that citation, that

it has not yet been adjudicated and should not, therefore, be
considered. The Secretary contends that there is no record of a
contest. While there is some question as to the status of the
citation, the Commission held, in Jim Walter Resources, supra,
that a citation issued as close as two weeks previously, and
which obviously had not been adjudicated, was a proper element to
take into consideration in assessing whether a violation was the
result of an operator's unwarrantable failure. In any event, I
place no weight on the previous citation, for the reasons noted
above.

Citation No. 7969947

 This  citation  involves  Respondent's  compliance  with  30

C.F.R. part 49, which implements the Act's requirement in �
115(e) that every operator of an underground mine shall assure
the availability of mine rescue capability for purposes of
emergency rescue and recovery. Prior to 1998, Respondent's
operations were of sufficient size that it could supply its own
mine rescue teams. As financial difficulties overtook it,
however, Respondent was no longer able to supply its own teams to
satisfy the regulatory requirement. On September 22, 1998,
Respondent was issued a citation for failure to comply with the
Part 49 requirements. By May 6, 1999, Respondent had not come
into compliance and MSHA saw little effort from Respondent to do
so. On May 6, 1999, Petty issued a � 104(b) order to Respondent
directing Miller to withdraw all miners from the underground
operation. The order specified that: "This order will remain in
place until the operator has complied with the requirements under
CFR Part 49 and an MSHA inspector lifts said order." (emphasis
added). Petty terminated, or lifted, the order on May 7, 1999,
following receipt of a letter indicating that Toluene County
search and rescue teams would respond in the event of an
emergency. On May 12, 1999, however, Petty reinstated the order
because Respondent had not satisfied all of the requirements of
30 C.F.R. � 49.3, which governs alternative mine rescue
capabilities for small and remote mines. Respondent had not
submitted a satisfactory escape and evacuation plan, as required
by � 49.3(c)(5). The continuation sheet reinstating the order
listed seven specific documentary requirements that Respondent
had to satisfy and stated:

 The  order  to  withdraw  miners  from  the underground
 operation will remain outstanding until the  small  and
 remote mine rescue plan is sent to the western district
 office and is approved.

 Jonathan  Farrell,  the mine manager, promptly gathered  the

required documents and Respondent submitted the documents by
facsimile to MSHA's district office on or about May 13, 1999.
Miller had several conversations with the MSHA official
responsible for approving the documents, apparently Don Downs.
After a day or two of review, Downs had a conversation with
Miller and told him that the documents satisfied the regulatory
requirement. Miller then allowed the miners to resume
underground operations. The mine's operations were subsequently
featured in a television program.

 Petty  became  aware  of  the program and, since he had  not

lifted the reinstated order, concluded that Miller had resumed
operations in violation of the order. On June 1, 1999, he
traveled to the mine, ascertained that six miners were working
underground and issued Citation No. 7969947, which cited
Respondent for violating the order that had been "issued on May
12, 1999." He noted that an injury was unlikely to result from
the violation, which was not S&S, and concluded that the
operator's negligence was high, because of Miller's specific
knowledge of the May 12, 1999 order. Miller had told him that
MSHA district officials had allowed them to resume working
underground. Petty then returned to the office, somewhat upset,
where a meeting was held with involved MSHA officials, including
Downs. Petty was focused upon the language of the May 6 order
stating that only an MSHA inspector could lift it. He was
satisfied, at the conclusion of the meeting, that no MSHA
inspector had lifted the order.

 In  order  to  facilitate  Respondent's return to productive

work, Petty returned to the mine the next morning with Downs, who
reviewed Respondent's documentation in a meeting with Miller and
Farrell. Petty testified that initial portions of the June 2
discussion appeared to indicate that some aspects of the order's
requirements had not been satisfied. However, he did not remain
for the discussion, which pertained to Downs' field of expertise,
and did not know which, if any, of the itemized requirements of
the May 12, order had not been satisfied. Downs confirmed that
the documents provided by Respondent satisfied the Part 49
requirements and Petty terminated the order. During a break in
the meeting, when Petty was absent, Miller and Farrell confronted
Downs about his failure to admit to Petty that he had verbally
approved the documents that had been submitted and, in essence,
authorized the return to work. Downs was "embarrassed" by what
he understood to have been overstepping his authority in
essentially lifting the order.

 The Secretary argues that Respondent is chargeable with high

negligence because of its "intentional disregard of MSHA's
authority" evidenced by the fact that it "blatantly failed to get
an inspector's approval before sending miners back into the
mine." The Secretary's argument, however, erroneously refers to
the May 6, 1999 order, that was, in fact, terminated by Inspector
Petty on May 7, 1999. The modification, referred to as the order
"issued on May 12, 1999" in the citation, reinstated the previous
order but did not specify or require that it be lifted only by an
MSHA inspector. Rather it stated that the order would remain in
effect until the mine rescue plan had been approved by the
district office.

 Respondent  does  not contend that Downs specifically lifted

the order. Rather, Miller testified that he dealt with the MSHA
official that he was directed to deal with and assumed that that
person had the authority to approve the plans and documents that
he submitted in response to the May 12, 1999, modification. He
was told by that official that the documents satisfied the
itemized requirements of the May 12, 1999 modification and was
told something to the effect "you're good to go." He acted on
that statement and allowed the underground operation to resume
and further allowed the resumption of operations to be openly
broadcast on a television program. He further testified that no
additional documentation or information was submitted to MSHA
between 8:00 p.m. June 1, when the citation was issued, and 8:47
a.m. on June 2, when it was terminated after Downs verified to
Petty that the documents satisfied the requirements of the May
12, 1999, order.

 I accept Miller's testimony  on  these points.  He obviously

did not try to conceal the fact that miners were working
underground and believed in good faith that the requirements of
the May 12, 1999, order had been satisfied. He was, in fact,
correct. Downs, the MSHA district official responsible for
approving the mine rescue plan, had done so, and - by the terms
of the order itself - it no longer remained in effect.

 The Secretary argues that � 104(b) of the Act specifies that

only "an authorized representative of the Secretary [can
determine] that such violation has been abated." The Secretary
further asserts that Downs, who was not an inspector, could not
lift the order and that Downs, in fact, did not lift the order,
based upon a statement he allegedly made to Petty.

 These arguments miss  the  mark.  The Secretary, like Petty,

focused upon the original order's notation that only an MSHA
inspector could lift it. However, Petty lifted that order on May
7, 1999. While it is true that reinstated order, referred to as
the order "issued on May 12, 1999," in the citation, had not been
lifted by an inspector, until Petty did so on June 2, that order
did not contain a requirement that it be lifted by an inspector.
Rather, its effectiveness was conditioned upon approval of the
mine rescue plan by the district office, which occurred a day or
two after documentation had been submitted on May 13, 1999.
Consequently, the May 12 order, by its own terms, was no longer
effective.

 The Secretary has failed to carry her  burden  of  proof  on

Citation No. 7969947, and it will be vacated.

Order No. 7969514

 Order  No. 7969514 was written by Inspector Allard on August

27, 1999. It was one of ten alleged violations of mandatory
health and safety standards cited for conditions he observed
while inspecting the secondary escapeway and adjoining areas.
This order alleges a violation of 30 C.F.R. � 57.11051(a), a
failure to maintain the escapeway in a "safe [and] travelable
condition." The conditions that led him to issue the order,
barring access to "all areas of the underground mine affected by
the secondary escapeway," were noted on the order as:

 The secondary escapeway  from  the  surface to the 2200
 level   was   not  maintained  in  a  safe,  travelable
 condition.  Hazards  in the escapeway included but were
 not  limited  to the following:  there  were  only  two
 landings from the  surface  to the 1500 [level].  Below
 the second landing there was  a  steep  slope without a
 ladder or stairs that ended at a ladder which  did  not
 project  above  the  ground level.  Air and water pipes
 crossed over the ladder  restricting  access.   Several
 ladders  were  offset  from  the  ladders  below.  Some
 ladders  had  rotten and cracked rungs.  An area  below
 the 1500 level  did  not  have ladders, stairs or other
 means  of  making travel safe.   Loose  rock  had  been
 allowed to accumulate  behind  ladders  in  some areas.
 Several areas had restricted toe clearance.  There were
 several open, unguarded holes along the travel  ways on
 the 1700 level and the 2200 level.  The escapeway  must
 be  used  on  a  regular basis for inspection purposes.
 With continued use  of the escapeway in this condition,
 it is reasonably likely  that  serious  injuries  could
 occur.   The  operator  engaged  in  aggravated conduct
 constituting more than ordinary negligence in that [it]
 had been cited for this condition and  had not repaired
 the  escapeway  before  working  below  the 800  level.
 (Reference  citation  #  796922) This violation  is  an
 unwarrantable  failure  to  comply   with  a  mandatory
 standard.

 Allard issued separate orders or citations  for seven of the

specific conditions referred to above and also attributed them to
high negligence by the operator and concluded that all but one
was S&S. The standards alleged to have been violated, however,
were applicable to underground travelways, not to escapeways.
Those citations and orders were vacated by the Secretary. Allard
also took no measurements of slope angles or openings, at least
at the time he issued the citations.[10]

 Allard  concluded  that  it  was  reasonably  likely that an

injury would occur that would result in lost work days or
restricted duty and that one person was affected by the
violation. He further concluded that the violation was S&S and
was attributable to the unwarrantable failure of Respondent.

 These are  essentially  the  same conditions and/or types of

conditions, that Petty had cited on April 1, 1999. Respondent,
likewise, presented essentially no direct evidence that the
conditions noted by Allard did not exist as he observed them. I
find that Allard accurately described conditions that existed in
the escapeway at the time of his inspection. As noted
previously, I accept the testimony regarding the measurements
taken by Burke and Witkopp and find that they accurately describe
the slopes of the stopes from the 1700 level to the surface.

 I   find   that  the  overall  condition  of  the  secondary

escapeway, as in the case of the citation issued by Petty, was in
violation of the cited standard. As in that instance, while each
individual condition was not violative of any standard in itself,
the combination of conditions, each of which incrementally
increased the risk of injury, resulted in the escapeway not being
maintained in a safe and travelable condition.

Significant and Substantial

 For the same reasons that I found that the violation alleged

in Citation No. 7969922 was not S&S, I hold that the violation
alleged in this citation was not S&S. Allard, like Petty, was
concerned about landings that, as noted above, were not required,
even under the regulations governing travelways.

Unwarrantable Failure

 The  Secretary's  argument  on  unwarrantable  failure  with

respect to this violation is considerably stronger than that
advanced with respect to Citation No. 7969922. Here, many of the
same conditions that had been noted by Petty on April 1, 1999,
continued to exist. Petty had terminated that citation, allowing
the conditions to remain, on the specific condition that no work
be done below the 800 level. Respondent was specifically warned
that allowing work below the 800 level without making the
escapeway safe and travelable would amount to aggravated conduct.
Work was done below the 800 level, without any apparent effort to
address the inadequacies noted by Petty. Two miners had been
down to the 1500 level to change a pump and other miners had been
at the 1700 level attempting to locate ore deposits and marking
areas for future mining. Respondent characterizes this latter
effort as exploration or development and notes that a second
escapeway is not required during the exploration or development
of an ore body. 30 C.F.R. � 57.11050(a). While that work may
properly be characterized as exploration, it did not absolve
Respondent of the responsibility to maintain the escapeway, which
had been designated as an escapeway on Respondent's escape and
evacuation plans, safe and travelable. Respondent also protests
again that citations that it has contested and have not yet been
adjudicated should not be used against it in an unwarrantable
failure analysis. That argument is again rejected. I find,
based upon the nature and duration of the conditions and the
prior specific notice to Respondent, through Petty's 1998 survey
and April 1, 1999 citation, that efforts were needed to address
the conditions of the escapeway, that the violation was the
result of Respondent's unwarrantable failure.

Citation No. 7955049

 Citation  No.  7955049  was  issued  by Allard on August 26,

1999, as he inspected the secondary escapeway. He observed
conditions, as described on the citation as:

 A draw raise on the 1700 level by survey tag number 17-
 50 had a hang-up of material  which  could  fall to the
 travelway   below.   The  timbers  for  the  chute  and
 supports had  rotted  or  fallen  away.   The  adjacent
 travelway  is part of the secondary escapeway submitted
 to MSHA on 5/1999.   The area is not often used but was
 going to be used during the week of 8/30/1999.

 He  determined that the  conditions  violated  30  C.F.R.

� 57.3200,[11] that the conditions were unlikely to result in
an injury requiring lost work days or restricted duty, that
the violation was not S&S and that the operator's negligence
was moderate.

FOOTNOTES

 [10]: He later measured slopes  in  two areas and found that

they were essentially consistent with the measurements taken
prior to the hearing by Burke and Witkopp.

 [11]: 30 C.F.R. � 57.3200 states:

 Ground conditions that create a hazard to persons shall
 be taken down or supported  before other work or travel
 is permitted in the affected  area.   Until  corrective
 work  is  completed,  the  area shall be posted with  a
 warning  against  entry and, when  left  unattended,  a
 barrier  shall  be  installed  to  impede  unauthorized
 entry.


 Respondent's defense  to  this citation is that the material

did not present a hazard because it was cemented together and
that the area in question was not active. While the area may not
have been an active work area, the 1700 level had been designated
as part of the secondary escapeway on Respondent's escape and
evacuation plans. Respondent originally questioned the accuracy
of MSHA's plans which showed that area was part of the escapeway.
However, its plans also showed the area as being part of the
escapeway. There was also evidence that men had been working in
the area. Freshly painted markings on the walls indicated areas
where mining was to occur. I find that miners had recently been
in the area and that the area was part of the designated
secondary escapeway. I also find that the material presented a
hazard. Allard had observed rubble on the floor of the 1700
level that had fallen from the raise and he determined that there
was a possibility of additional material falling. Timbers had
rotted away, reducing support for the material. Respondent's
witnesses confirmed the presence of the fallen rubble and the
rotted timbers. Witkopp opined that material in the mine can
become cemented together and Billy Joe Van Meter, who accompanied
Allard, felt that the material was "pretty well cemented"
together. His judgment was based solely upon his visual
observations. There was no attempt to explain why additional
material would not fall, in light of the fact that some had
already fallen.

 I  find  that the conditions cited violated the standard and

that Allard correctly assessed the gravity and negligence
factors.

Citation No. 7969519

 Citation  No. 7969519 was  issued  by  Inspector  Allard  on

September 1, 1999, after he inspected the amalgamation/refinery
area of Respondent's mill. It alleged a violation of 30 C.F.R.
� 56.18002(a), which requires that a competent person designated
by the operator perform a workplace examination at least once
each shift and that conditions that may adversely affect
safety or health be corrected promptly. The conditions which
lead to the issuance of the citation were what Allard
described as high levels of mercury contamination on gloves,
tools and a handrail. In response to an inquiry, he was told
that Respondent did not test for mercury contamination and had
no equipment at the site to perform such tests. He concluded
that a person being unknowingly exposed to such contamination
could suffer serious illness and determined that it was
reasonably likely that a miner could suffer an illness resulting
in lost workdays or restricted duty. He concluded that the
violation was S&S. The degree of operator negligence was
assessed as "moderate" because, even though the exposure would
be infrequent, there had been a prior citation for mercury
contamination.

 Farrell was the only person handling mercury at the time and

he did not conduct tests for mercury contamination either daily
or prior to working in that area. MSHA's personnel had come to
the mine in the past and had done some testing and helped
establish proper procedures for handling mercury. The individual
who had worked in that area when the mine was operating with a
full crew had undergone blood testing on occasion and those tests
were negative for mercury, leading Farrell to conclude that
Respondent's procedures for handling mercury were appropriate.
Farrell conceded, however, that Respondent itself did not test
for mercury contamination in the amalgamation facility prior to
the issuance of the citation and he could have been unknowingly
exposed to excessive levels of mercury, e.g., that found inside
of the gloves that he would have used. Shortly thereafter,
Farrell began testing for mercury contamination.

 The   use   of  mercury,   a   toxic   substance,   in   the

amalgamation/refinery area dictates that appropriate steps be
taken to assure that miners working in that area are not exposed
to excessive levels of mercury. A proper workplace examination
of the area, per Allard, would include testing to ascertain
whether a miner would be exposed to mercury. Respondent was not
performing such testing prior to the issuance of the citation.
Consequently, the violation has been proven.

 I find, however, that the Secretary failed to prove that the

violation was S&S. The evidence introduced in support of that
allegation consisted of the test results and an anecdotal account
by Allard of a fellow inspector who had suffered an "extreme"
case of mercury poisoning. While it is beyond dispute that
exposure to mercury can result in serious illness, an assessment
of the risk of serious illness should be based upon some
quantitative evidence of the actual degree of exposure and the
length of time over which a person was exposed to it. The test
results established the concentrations of mercury at various
locations. However, the Secretary does not point to a standard
that demonstrates the degree to which those concentrations
exceeded allowable limits. More significantly, it is undisputed
that only one person, Farrell, worked in that fenced off, locked
and posted area and that he worked there on a "very irregular
basis" such that there was "little" or "infrequent" exposure. On
the facts presented here, it has not been established that
infrequent exposure to the levels of mercury present in the area
would be reasonably likely to result in a serious illness and the
Secretary's S&S designation cannot be sustained.

Citations No. 7969525 and No. 7969526

 Citations No'd. 7969525 and 7969526 were issued by Allard on

October 27, 1999, after he discovered explosives, blasting agents
and detonators stored in cardboard boxes in a dead-end drift at
the 1700 level of the mine. The materials had apparently been
left in that location when the miners were called out of the mine
and laid off on February 12, 1999. Since no ore extraction had
occurred in that area of the mine since that time, the materials
had lain, undisturbed, until discovered by Inspector Allard.
Citation No. 7969525 alleged a violation of 30 C.F.R. � 57.6161,
which provides:

 � 57.6161 Auxiliary facilities.

 (a)  Auxiliary   facilities  used  to  store  explosive
 material near work  places  shall  be  wooden, box-type
 containers equipped with covers or doors, or facilities
 constructed  or mined-out to provide equivalent  impact
 resistence and confinement.

 Citation No. 7969526,  cited  a  violation  of  30  C.F.R.

� 57.6302, which requires that explosives and blasting agents
"shall be kept separate from detonators until loading begins."
He based the alleged violation in the fact that a fifteen foot
piece of detonating cord was stored in the same box with 15
blasting caps. For each citation, Allard concluded that fatal
injuries affecting two miners were reasonably likely to occur and
also found the violations "Significant and Substantial." As
noted in the citations, those conclusions were based, in part, on
the fact that he observed "several large rocks on the floor [of
the drift] which had apparently fallen from the back rib." He
concluded that a large rock falling on the explosive materials
could result in an explosion. His assessment of the potential
for injury was based upon information that there had been a
proposal to locate a rescue chamber in the area, which was
adjacent to an area that may, in the future be designated as a
secondary escapeway and that miners were going to be working
there in the future. However, he rated the operator's negligence
as "Low" because area had not been mined since February of 1999.

 Respondent  does  not  dispute  the  accuracy   of  Allard's

observations. It does, however, challenge his determination that
a falling rock could cause an explosion, as well as his
assessment of the potential for injury based upon possible future
operations. Farrell testified that the explosives were very
stable and difficult to detonate, that he was familiar with all
reported fatal accidents in the district and had never heard of
an explosion caused by an impact to explosives. He further
testified that no-one had worked in that area of the mine since
February of 1999, that the area had been posted to prohibit entry
without authorization and that, while there had been proposals to
establish a secondary escapeway and refuge chamber, they were
made after the citations were issued and had never been approved.
As to the projection of miners' exposure in the event that future
mining operations were conducted in the area, Respondent relies
on its intentions to conduct a proper workplace examination
before any work would be done in an area of the mine and that all
defects and hazards would be corrected.

 That  Respondent  violated the provisions of the regulations

cited in the subject citations is apparent. The explosive
materials clearly were not stored in compliance with those
regulatory requirements. It is equally clear, however, that the
gravity determinations made by Allard were excessive and that the
violations were not S&S. On the basis of Allard's and Farrell's
testimony, I conclude that there was a possibility of an
explosion, though remote, due to falling rock. The possibility
of such an explosion injuring a miner was also quite remote.
While no miners had been working at extracting ore in that area
of the mine, there had been some exploration at the 1700 level
and miners had been down in the south end of the mine to replace
a pump. It is possible that, in the unlikely event of an
explosion caused by a falling rock, a miner could be in close
enough proximity to be injured as a result. Projections of
possible injuries based upon potential future mining operations,
where there has been no formal commitment to actually conduct
those operations and the conditions are of a nature that they
should be identified in a proper work place examination and
corrected prior to the actual commencement of mining efforts
directed at extraction of ore, cannot support the S&S designation
here. There is no reasonable likelihood that the hazard
contributed to would result in a serious injury. I find that the
inspector's assessment of the operator's negligence as "Low" was
accurate, that the possibility of injury was unlikely, that the
nature of a possible injury was lost work days or restricted duty
and that two miners would be affected.

Citations No. 7969532 and No. 7969533

 Citation No. 7969532 was written  by  Allard  on November 2,

1999, for an alleged violation of 30 C.F.R. � 57.6101(a), which
provides:

 �  57.6101  Areas  around  explosive  material  storage
 facilities

 (a)  Areas surrounding storage facilities for explosive
 material  shall  be clear of rubbish, brush, dry grass,
 and trees for 25 feet  in  all  directions, except that
 live trees 10 feet or taller need not be removed.

 He observed brush growing within 6 feet of the side and back

and dry grass within 6 feet of the back of the surface explosives
storage magazine. The grass was thin and short and the bushes
were green. The magazine was constructed of steel with an
internal wood liner. He determined that a fire in the area would
not be likely to spread to the magazine, but if it did, it could
present a hazard to persons fighting the fire. He assessed the
possibility of injury as "unlikely," but fatal to one miner if it
occurred and rated the operator's negligence as "moderate."

 Citation  No. 7969533 cited a violation of the same standard

based upon similar conditions existing around the blasting cap
storage magazine. In addition to dry grass and brush, including
a blackberry bush, there was a small tree, approximately 3 feet
in height, within 15 feet of that magazine. He assessed the
potential for a injury as "unlikely" and the operator's
negligence as "moderate."

 Respondent contends that there was no realistic  possibility

of a fire or any threat to the magazines because there was very
little potentially combustible material in the areas, that any
grass and brush that may have been there was sparse and wet due
to recent rainfall and that precipitation at that time of year
generally kept things from being combustible. While Farrell
testified that the areas were clear of combustible material, he
acknowledged that the broken rock that the magazines were
constructed upon did support a small amount of vegetation, Miller
too acknowledged that there was a small amount of grass in the
area, some dead and some growing, and that blackberry bushes grow
in the area, and both admitted the presence of the tree. The
standard is specific, the area within 25 feet of an explosive
storage magazine must be kept clear of brush and dry grass.
While the likelihood of a fire that could have threatened the
magazine may have been extremely low, the Secretary was not
required to prove a specific threat of fire. I find that brush
and dry grass was within 25 feet of the magazines and that a tree
less than 10 feet in height was within 25 feet of the blasting
cap storage facility. While, I agree with Respondent's
assessment that combustion was highly unlikely and that virtually
no threat was posed to the magazines, the presence of a 3 foot
tree evidences a failure to assure compliance with the standard
for at least a few months.

 Allard appropriately assessed  the  potential for injury for

both citations as "unlikely" and the operator's negligence as
"moderate." I disagree with his assessment that the injury that
might result from the violation cited in Citation No. 7969532
would have been fatal. The small amount of combustible material
in the vicinity of the steel cased magazine posed no threat to
ignite the contents of the magazine. The potential injury is
more accurately categorized as "no lost workdays."

Citation No. 7969536

 On November 3, 1999, Inspector  Allard  observed that copies

of citations that he had issued as early as October 27, 1999, and
served on Farrell on October 28, 1999, had not been posted on
the mine's bulletin board. He issued Citation No. 7969536,
alleging a violation of
� 109(a) of the Act, which provides, in pertinent part:

 A  copy  of  any  order,  citation, notice or  decision
 required by this Act to be  given  to an operator shall
 be delivered to the office of the affected  mine, and a
 copy shall be immediately posted on the bulletin  board
 of such mine by the operator or his agent.

 Respondent  does  not  dispute  that copies of the citations

were not posted on the bulletin board until November 3, 1999,
when this citation was issued. It contends that the "spirit" of
the Act was satisfied because each of the citations had been
discussed with the small crew of miners then working, such that
they were aware of the substance of the citations. While the
discussions may have served the notification purpose, at least in
part, they do not substitute for, or establish compliance with,
the Act. The violation was clearly proven and the gravity
factors appropriately assessed as no likelihood of injury.
Operator negligence was appropriately classified as moderate.

The Appropriate Civil Penalty

 The Original Sixteen to One Mine, is a small operation, with

19,546 hours worked in 1999 and 17,401 hours worked in 2000. The
evidence is somewhat inconsistent on Respondent's violation
history. The Secretary introduced a report showing that
Respondent had been issued a total of 157 violations over the
period January 1, 1990 to January 1, 2001, only 42 of which had
been paid. Many, including those at issue in these cases, had
not yet been adjudicated. The assessment control sheets
generally show that Respondent has been issued one violation for
every two inspection days in the 24 month period preceding these
violations. I find that Respondent has a relatively good history
of violations. Respondent introduced evidence of its financial
condition, financial statements for 1996, 1997, 1998 and 1999.
They show that Respondent has operated at a net loss for all of
those years, but retained assets of $2,013,884.00 at the end of
1999, including $308,420.00 in inventory. Included in that
inventory was a large gold nugget, referred to as the "whopper,"
which was exhibited at the hearing. That nugget contained some
141 ounces of gold, valued at approximately $40,000 at the time
of the hearing. Respondent did not argue in its brief that
payment of the proposed civil penalties would threaten its
ability to continue in business. In light of these facts, I find
that neither payment of the proposed civil penalties, nor payment
of the reduced civil penalties imposed by this decision, will
impair Respondent's ability to continue in business. I also find
that the civil penalties imposed below are appropriate to the
size of Respondent's business.

 The proposed civil penalty  for  Citation  No.  7969922  was

$400.00. The violation was sustained. However, the violation
was held to be neither S&S nor the result of Respondent's
unwarrantable failure. Taking into consideration all of the
factors required to be assessed under � 110(i) of the Act, I
impose a civil penalty of $100.00 for this violation.

 The  proposed  civil  penalty  for  Order  No.  7969514  was

$800.00. That violation, the result of Respondent's
unwarrantable failure, was sustained. However, I did not find
the violation to have been S&S. I impose a civil penalty of
$500.00 for that violation.

 The  proposed  civil  penalty  for Citation No. 7955049  was

$55.00. That violation was sustained in all respects and I
impose a civil penalty of $55.00.

 The proposed  civil  penalty  for  Citation  No. 7969519 was

$113.00. That violation was sustained. However, I did not find
the violation to have been S&S. I impose a civil penalty of
$100.00 for that violation.

 The proposed civil penalties  for Citations No'd 7969525 and

7969526 were $122.00 each. Those violations were sustained.
However, the gravity assessments were found to have been not as
serious as alleged in the citations and they were not found to be
S&S. I impose a civil penalty of $55.00 for each of those
violations.

 The proposed civil  penalties for Citations No'd 7969532 and

7969533 were $55.00 each. Those violations were sustained in
virtually all respects, the only exception being a slight
reduction in the gravity factor for No. 7969523. I impose a
civil penalty of $55.00 each for those violations.

 The  proposed  civil penalty for Citation  No.  7969536  was

$55.00. That violation was affirmed in all respects and I impose
a civil penalty of $55.00.

 The total of the  civil  penalties  imposed on the contested

citations and order is $1,030.00
Settlement

 As  noted  above,  at  the  commencement  of   the  hearing,

Respondent withdrew its contest as to Citation No. 7969507 in
Docket No. WEST 2000-63 and Citations No's. 7969524, 7969527,
7969528, 7969529, 7969530 (which it is proposed be modified to
reflect that the operator's negligence was "Low") and 7969534 in
Docket No. WEST 2000-195 and has agreed to pay the full amount of
the proposed penalties. During the hearing, Respondent also
withdrew its contest of Citation No. 7969537, in Docket No. WEST
2000-195. The parties have requested that the negotiated
resolution of the petitions as to those citations be approved as
a settlement. I have considered the representations and evidence
submitted and conclude that the proffered settlement is
appropriate under the criteria set forth in section 110(i) of the
Act.

                          ORDER

 The  Secretary's  motion  to  strike inappropriate matter is

DENIED.

 With  respect  to  the  citations  that  the  Secretary  has

vacated, Citations No's. 7955042, 7955043, 7955044, 7955045,
7955046, 7955048 and 7955050 in Docket No. WEST 2000-78, and
Citation No. 7955047 in Docket No. WEST 2000-195, the respective
petitions are hereby DISMISSED.

 With  respect  to  the citations as to which Respondent  has

withdrawn its contest, Citation No. 7969507 in Docket No. WEST
2000-63 and Citations No's. 7969524, 7969527, 7969528, 7969529,
7969530, 7969534 and 7969537 in Docket No. WEST 2000-195, the
motion for approval of settlement is GRANTED, and it is ORDERED
that Citation No. 7969530 is hereby modified to reflect that the
operator's negligence was "low," and that Respondent pay a total
civil penalty of $569.00 for the settled citations within 45
days.

 With  respect  to  the  contested  citations,  Citation  No.

7969947 is hereby VACATED and the petition is hereby DISMISSED.
The remaining citations and order are AFFIRMED and Respondent is
ORDERED to pay a total civil penalty of $1,030.00 for the
contested violations within 45 days.

                               Michael E. Zielinski
                               Administrative Law Judge

Distribution:

Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S.
Department of Labor,
71 Stevenson St., Suite 1110, San Francisco, CA 94105-2999
(Certified Mail)

Michael M. Miller, President, Original Sixteen to One Mine, Inc.,
P.O. Box 1621, Alleghany, CA 95910 (Certified Mail)

/mh