Energy Fuels Coal, Inc.

Plain-English summary

Energy Fuels Coal was cited for shutting down its main fan when the mine was idle, using a PVC pipe in a ventilation control, and a related condition involving the approved ventilation plan. Judge Michael A. Lasher, Jr. approved a settlement modifying one citation's affected-person count from seven to one, and he affirmed that citation as modified. He affirmed the three remaining citations after finding that the operator had to follow its approved ventilation plan and that the PVC pipe created a violation. The total civil penalty was $194.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.316 and 30 C.F.R. § 75.300-3(a), among the provisions discussed in the decision.
• Outcome: One citation was modified and affirmed, three citations were affirmed, and $194 in penalties was assessed.
• Key point: An operator must follow its approved ventilation plan, including the plan's main-fan and incombustible-material requirements, unless an applicable variance or exception applies.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ENERGY FUELS COAL
DDATE:
19900406
TTEXT:

Page 2

~706
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 89-217
PETITIONER A.C. No. 05-03771-03516

      v.                            Raton Creek Mine No. 1

ENERGY FUELS COAL, INC.,
RESPONDENT

                         DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Respondent.

Before: Judge Lasher

 This proceeding was initiated by the filing of a Proposal

for Penalty by Petitioner on June 12, 1989, pursuant to Sections
105 and 110 of the Federal Mine Safety and Health Amendments Act
of 1977, 30 U.S.C. Section 801 et seq.

 At the outset of hearing on September 14, 19891 the

parties announced their settlement of one of the four Citations
(T. 5, 6) and such was approved from the bench (T. 6). Pursuant
to the agreement, Respondent is to pay MSHA's administratively
assessed penalty of $74 in full for Citation No. 2931286, and
Petitioner agrees to the modification of paragraph 10 D on the
face of the Citation to reflect that the "Number of Persons"
affected by the violation is "1" rather than "7". My bench
decision affirming this settlement is here affirmed.

 Citations numbered 2873899, 2873900 and 2931204 remain for

resolution.

Page 3

~707
CITATIONS 2873899 and 2873900

 MSHA seeks penalties of but $20.00 each for these two

Citations.

 These two related non-"Significant and Substantial"

citations were issued when Respondent turned off the main fan at
the subject mine on three separate weekends when it was idle and
miners were not working in the mine. Maintenance was not being
performed on these occasions (T. 45) which occurred on a total of
6 days in February, 1989. During the pertinent period, Respondent
had 15 miners who were working during the week on one shift daily
(T. 55). After receiving the Citations, Respondent kept the mine
fans running at all times and in the following month (March,
1989) applied to MSHA for a variance from the standard (T. 36,
46, 55). While the subject mine had methane at a detectable level
(T. 46), a lethal or toxic level had never been detected (T. 45).
On the three weekends in question no miners were working (T. 45)
and all power to the mine was shut off (T. 42)

 Turning first to Citation 2873900, it alleges a violation of

30 C.F.R. 75.316 which requires mine operators to adopt a
"ventilation system and methane and dust control plan" approved
by the Secretary of Labor. Section 75.316 thus provides:

      A ventilation system an methane
      and dust control plan and revisions
      thereof suitable to the conditions and
      the mining system of the coal mine
      and approved by the Secretary shall
      be adopted by the operator and set out
      in printed form on or before June 28,
      1970. The plan shall show the type
      and location of mechanical ventilation
      equipment installed and operated in
      the mine, such additional or improved
      equipment as the Secretary may re-
      quire, the quantity and velocity of
      air reaching each working face, and
      such other information as the Secre-
      tary may require. Such plan shall be
      reviewed by the operator and the Secre-
      tary at least every 6 months.

The subject plan is Exhibit B attached to Court Exhibit 2 in the
"Exhibits" File.

Page 4

~708
Once adopted and approved, such plans are enforceable as
mandatory safety standards. Petitioner alleges that Respondent
violated Paragraph II E (2) of the Plan, pertaining to "Main Fan
Operation", which provides:

      All main fan installations shall meet the
      criteria found in 30 C.F.R.   75.300-2 and
      30 C.F.R.   75.300-3, unless a variance is
      granted by the (MSHA) District Manager."
                              (Emphasis supplied)

 The C.F.R. Section referred to in the adopted and approved

Plan, 30 C.F.R. 75.300-3(a), (the preface to which, 30 C.F.R.
75.300-1, sets out the pertinent "criteria by which . . .
District Managers will be guided in approving main fan
installation and operation . . . ") provides:

           (a) All main fans should be kept in
         continuous operation except in the event of:

             (1) Scheduled maintenance or adjust-
         ments on idle days when all men other than
         those performing evaluation or adjustments
         are withdrawn from the mine and the mine
         power is cut off.

             (2) Uncontrolled stoppage or fan
         failure.

             (3) Other stoppages, when written
         permission is obtained from an authorized
         representative of the Secretary.
                               (Emphasis supplied)

 The second Citation, #2873899, alleges a violation of 30

C.F.R. 75.3002 which requires the mechanical ventilation
equipment to be inspected daily and for this inspection to be
recorded daily. The safety director for Energy Fuels, Keith Hill,
conceded that inspections were not performed when the main fan
was not in operation (T. 46).

Page 5

~709
Respondent contends, with respect to Citation No. 2873900, that
the approved Plan does not require that the fans be kept in
continuous operation. This of course directly contradicts the
express language of 30 C.F.R. 75.300-3(a) which provides that
all "main fans should be kept in continuous operation" except for
the three exceptions noted above.

 Without citing authority therefor, Respondent contends that

use of the word "should" rather than "shall" in the quoted
provision indicates the standard is "advisory" rather than
"mandatory."

 There is, by virtue of a recent descent decision of the Mine

Health and Safety Review Commission, Secretary of Labor v. Utah
Power & Light Company, 11 FMSHRC 1926 (October, 1989) authority
for the general proposition asserted by Respondent that use of
the word "should" in a regulatory or statutory requirement
normally indicates the non-mandatory nature of such a provision.
Thus the Commission held:

         "The Secretary's argument is undercut also by the
   use of the term "should" in the wording of the criteria,
   a term that normally signals the non-mandatory nature
   of a regulation. See generally, Jim Walter Resources,
   Inc., 3 FMSHRC 2488 (November 1981). The Commission
   has emphasized that when assessing the nature of a regu-
   lation the essential question is whether the standard
   as written imposes a mandatory duty upon operators.
   For instance, the Commission has found that even the
   inadvertent use of the word "should" instead of "shall"
   could be overcome as an indicia of a regulation's non-
   mandatory nature where the regulatory history of the
   standard made clear that the standard imposes a manda-
   tory duty on mine operators. See Kennecott Minerals Co.,
   Utah Copper Division, 7 FMSHRC 1328, 1332 (September
   1985). The standard at issue, however, was neither
   proposed as mandatory nor promulgated with a mandatory
   designation. Compare Kennecott Minerals Co., supra.
   Rather, as the judge properly observed, the standard
   simply purports to set forth criteria by which MSHA's
   District Managers will be guided in approving escape-
   ways, without imposing a commensurate mandatory duty
   on mine operators to seek such approval. 10 FMSHRC
   at 23."

 It is concluded, however, that Respondent's argument lacks

merit. To be first noted is that plans addressing particular
safety areas in mines, such as ventilation and roof control
plans, are, once approved, mandatory inasmuch as violations of

Page 6

~710
such plans constitute violations of the Mine Act. Once adopted by
the mine operator and approved by MSHA, the provisions of
ventilation plans are enforceable as mandatory safety standards.
Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976);
Utah Power and Light, supra.

 In determining the nature of the standard here, if the

question were confined to evaluating the language of the
regulation (30 C.F.R. 75.300-3) only, the Respondent's position
would be tenable, since such regulation uses the word "should"
and there is little else to go on in this record as to
interpretation of the regulation. However, the standard consists
of two parts, the Plan itself and the regulation it incorporates.
The regulation is simply a subject of reference contained in
Paragraph II E (2) of the subject Plan, and that Paragraph, upon
which the minds of the parties to the Plan met (Respondent in
adopting it and MSHA in approving it) provides a clearly mandate
that all main fan installations "shall" meet the criteria found
in 30 C.F.R. 300-3, unless a variance is granted by MSHA. Here
the use of the mandatory word "shall" in the Plan clearly
overrides the word "should" in the referenced material and I
conclude Respondent formulated and agreed to a regulatory
requirement - to keep the fans in continuous operation - thus
making the standard mandatory in nature. Significantly,
Respondent, following the requirements of this standard after the
violation in question and seeking to invoke one of its
exceptions, sought permission (a variance) from MSHA and was
refused (T. 18, 19, 35).

 Respondent also contends that MSHA denial of such permission

(a variance) for it to de-energize its fans during "off hours"
was arbitrary. This argument is found irrelevant to the issues in
this proceeding. To begin with, the two Citations in issue here
were issued in February, 1989, and as Respondent points out it
did not apply for permission (a variance) until after the
Citations were issued, i.e. in March, 1989. Such permission was
withheld.3 Further, under Paragraph II E (2) of the Plan the
main fan installation shall meet the regulatory standard
specified "unless a variance is granted . . . " No variance was
ever granted. It is thus concluded that Respondent's allegation
of after-the-violation arbitrariness by MSHA is not germane to
the issue of whether the violation charged did occur. (T. 34-36,
37, 53).

Page 7

~711
The violation charged in Citation No. 2873900 is thus found to
have occurred. This violation was not designated by the issuing
Inspector as being "Significant and Substantial", presumably
since there was no indication that the hazard contemplated by the
infraction was reasonably likely to have occurred. Nevertheless,
the hazard posed by the violation could have resulted in serious
consequences. Thus, William Knepp, an MSHA ventilation expert,
testified:

   Q. And during certain idle days when the mine is not
      producing, is there a need to have ventilation?

   A. I think that the danger would be on the start-up,
      and dependent on how long the fan was down. With-
      out the ventilation you could have buildup of
      methane or black damp . . . . "
                                       (T. 21)

   *                        *                         *

   A. . . . I think the real danger comes when mine
      examiners have to reenter the mines after the
      fans are restarted."
                                            (T. 24)

 Mr. Knepp also described the mine as being "low gassy" (T.

28); re-emphasized the concern for the welfare of the preshift
examiner whose job, he said, is made "much more difficult and
more hazardous after a fan has been shut off for several days"
(T. 25); and described the risk involved to the examiner of
"running into bad air, or high methane concentrations" (T. 32).

 Having determined that a violation occurred by Respondent's

failure to keep the fans running continuously (including over
weekends) without a variance we now turn to Citation No. 2873899
which alleges a violation for Respondent's failure to examine
such equipment on the weekends the fans were turned off.

 Respondent admits (Brief, page 1) that the "record book does

not contain entries for examinations on the indicated days for
the reason that the fan was properly idle and daily examination
of idle fans was not required by 75.300." Respondent contends
that William Knepp, the MSHA ventilation expert, testified "that
when a fan is not running the requirement of 30 C.F.R.
75.300-4(a) for daily examination of main fans does not apply
(Brief, pgs. 1 and 2). In support of this representation,
Respondent relies on a partial excerpt of Mr. Knepp's testimony
(T. 22, lines 12-17), to wit:

        "We just assume that the mandatory standard is
         no longer applicable if the fan is not running."

Page 8

~712
Taking this portion of testimony out of context somewhat
misrepresentative since it fails to reveal that it occurred
during a line of questions based on the hypothetical situation
where a "variance" had been granted. Seen in toto, the testimony
in this connection (adduced on cross-examination by Respondent's
counsel), appears as follows:

   Q. Does the -- in the instances where you have
      granted variances and allowed the mine fans
      to be shut off, do you also require that the
      man power to the mine be shut off?

   A. Yes.

   Q. And in those instances, do you require that a
      daily examination of the ventilation equipment
      occur?

   A. No.

   Q. So when the mine fans are permissable shut off,
      you don't require an examination on a daily basis
      of those fans?

   A. Correct. That issue really isn't addressed.
      I guess we do it by -- we've never had a problem
      with it. We just assume that that mandatory
      standard is no longer applicable if the fan is
      not running."
                        (T. 22) (emphasis supplied)

 I thus find no merit in Respondent's argument. It having

been conceded that the daily examinations required by the
regulation cited, 30 C.F.R. 75.300, were not conducted or
recorded and it further appearing that the fans were required to
have been kept running on the days in question since no variance
had been granted, the violation is found to have occurred as
charged.

                    CITATION NO. 2931204

 This Section 104(a) "Significant and Substantial" Citation

was issued on January 25, 1989, by MSHA Inspector Melvin H.
Shively, and alleges a violation of 30 C.F.R. 75.316, to wit:

        The operator was not complying with approved
        Ventilation Methane, Dust. Control Plan dated
        July 8, 1988, in that page 2, Item F Ventilating
        controls shall be of incombustible material.

        At cross cut #3 of the primary intake, Electri-
        cal installation was being vented to the return
        through 12" inch P.U.C. Plastic pipe, through
        permanent stopping."

Page 9

~713
Item F, Page 2 of the ventilation plan (herein Plan) which MSHA
alleges was violated, provides:

      "All ventilating controls such as stoppings,
       overcasts, undercasts, doors, regulators, etc.
       shall be of substantial and incombustible
       construction to all possible and practical
       extent, installed in a workmanlike manner and
       maintained in the condition to serve the pur-
       pose for which they were intended."

 Respondent used a PVC pipe 12 inches in diameter at cross

Cut No. 3 of the primary intake of the Raton Creek Mine to vent
the electrical installation there through a permanent stopping
into the return air course. (T. 59-62).

 The PVC pipe in question was plastic and not made of an

incombustible material (Stipulation No. 7, Court Ex. 1, T. 63,
64, 89, 108).

 Respondent contends that the PVC pipe in question is not a

"ventilating control" within the meaning of Item F, page 2 of the
Plan since it does not fit generically into the types of such
controls actually enumerated in Item F as examples of such
controls since such examples are of "major" controls. Respondent
also contends that the "Secretary" failed to prove that the PVC
pipe was not "incombustible".4 Finally, Respondent alleges
that since PVC pipe was in extensive use in underground mines
when Item F of the Plan was approved by MSHA, that the Secretary
should promulgate a rule under prescribed rulemaking procedures
prohibiting use of PVC pipe rather than amending the regulatory
standards by issuing a 104(a) citation5

Page 10

~714
According to MSHA Inspector Melvin H. Shively, the electrical
installation was located in the primary air course "just outby"
the ventilation control where the 12-inch plastic PVC pipe was
located (T. 59). The PVC pipe ran approximately 65 feet from the
permanent electrical installation to the return air course of the
mine (T. 62, 83) and ran through the middle of the permanent
stopping (T. 61, 62).

 The purpose of the PVC pipe in question was to meet the mine

operator's obligation (T. 59, 64, 65) under the mandatory
standards (T. 109) to ventilate the permanent electrical
installation directly (T. 111) to the return air course (should a
fire in the electrical installation create smoke) by directing
smoke to the return and thus avoid contamination of other areas
of the mine (T. 59-60, 80, 83, 108-109).

  The PVC pipe is a "very large piece of plastic pipe"

established "inside or along with the other construction" of the
stopping (ventilation control). According to the Inspector, it is
established "right in the center of the stopping" and "is used to
direct the currents that pass over" the electrical installation
through to the air return. (T. 60, 61, 85, 96). The PVC pipe is
not part of the "construction" or "integrity" of the stopping (T.
73, 74, 77, 78, 103). Nevertheless, should the PVC pipe burn or
melt, the hole in the stopping would become enlarged, and "all
the smoke that is built up" and "the fire" would enter to the
other side of the stopping and contaminate two airways (T. 66-67,
103, 106). Thus, although not part of the actual "construction"
of the stopping (T. 106) it appears that the PVC pipe once
installed becomes part of the stopping (T. 61-63), 66, 74, 93,
106).

 Inspector Shively explained the stopping/pipe mechanism in

the following manner:

   "Q. And your citation refers to this plastic pipe through
       permanent stopping. Please explain what you mean by
       that.

    A. A permanent ventilation control is a device that is
       built out of incombustible material, blocks and such.
       It will be there permanently in that mine, or in that
       airway. And what it is, what it is set up for is to
       direct the currents through to the working section,
       and -- that is it, just to direct the air currents to
       the working section.

Page 11

~715
Q. Since I have never seen this particular mine, will
you describe what a stopping looks like, and how that
plastic pipe is related to it?

   A. You have an opening between two entries, so now you
      have to establish some type of device to prevent that
      air flow from being mixed between the two. So you
      build a device with cinder blocks, concrete blocks
      out of noncombustible material.

   *                        *                          *

   Q. And does this plastic pipe go right through this
      stopping through the wall?

   A. It was constructed right in the middle of it.

   Q. Okay. So there is a hole in the stopping for the
      pipe to go through.

   A. The stopping was built around the pipe.
                                                (T. 61-62)

 The subject PVC pipe was, when cited, an "overcast", again

according to William P. Knepp, whose actual title was MSHA
supervisory mining engineer in charge of ventilation (at
pertinent times) and who was Staff Assistant to the District
Manager at the time of hearing (T. 83, 86, 92). "Overcast" is
defined as "an enclosed airway to permit one air current to pass
over another one without interruption. They should be built of
incombustible material such as concrete, tile, stone, or brick."
A Dictionary of Mining, Mineral and Related Terms, (U.S.
Department of the Interior, 1968).

 On this subject, Mr. Knepp convincingly testified as

follows:

 "Yes, it definitely is. It is used as an overcast in this

particular case. It overcasts the belt entry and takes the intake
air that is passing over the electrical installation, overcasts
the air in the bell entry into the return. So it is used as an
overcast in this particular case." (T. 83).

       *                        *                          *

 "They were using it as an overcast, in this case. To take

the air that passed over the electrical installation to comply

Page 12

~716
with the law. Which, I assume, they were in compliance with that
part of the standard. They were taking the air and ventilating it
directly into the return air current. So the PVC pipe acted as an
overcast it would direct the air directly into the air current,
or into the return air course." (T. 86).

 Respondent's Safety Director, Keith Hill, conceded that

there was no other ventilation control in place which would take
air away from the electrical installation other than the PVC pipe
(T. 109-110) and that the purpose of the PVC pipe was to "direct"
the air (T. 106-110).

 It is also clearly established in the record that metal pipe

was a reasonable and viable alternative to the use of PVC pipe in
the ventilation application under discussion (T. 81, 98-99, 107,
113-114, 116).

 The hazard posed by the combustible PVC pipe was credibly

described by the MSHA witness as follows:

      "To begin with, if the condition exists,
 or happens, I should say if the condition happens, now
 we have got to direct the air currents out of the
 mine, and not to the area of the mine that the people
 are working in. And that is the intent there I think,
 that if the plastic pipe, if a condition did come
 about, that the plastic pipe would melt away or burn
 away, now we've contaminated possibly the primary
 escapeway, also the secondary escapeway for that mine,
 and the basic location of this electrical installa-
 tion, being that it is only three breaks inby the
 main portal of the mine, we could have a smoked mine
 pretty bad." (T. 65)

 It is concluded from the preponderance of the reliable

evidence that if a fire occurred in the electrical installation,
the PVC pipe would melt down and burn which in turn would open up
a "hole through that stopping" which would result in the
contamination of two escapeways (T. 65-67, 84, 85, 93). Such
occurrence could cause fatalities to miners (T. 67-68, 86, 89,
95) from smoke inhalation.

 In October or November, 1987, Inspector Shively discussed

the subject of the combustibility of the PVC pipe with Mr. Keith
Hill, indicating that all "areas that were being ventilated with
plastic pipe . . . needed to be changed and metal pipe put in
place" (T. 70-71).

Page 13

~717
Ultimate Findings and Conclusions.

 The approved ventilation control plan refers to and requires

"incombustible construction" of overcasts and stoppings "to all
possible and practical extent" (T. 63).

 The combustible plastic PVC in question was a control

(overcast) used for ventilating the mine and, as such, is a
ventilating control within the reasonable meaning of Item F, at
page 2 of the approved ventilation Plan. Further, the pipe was an
integral part of the stopping in the area and such stopping is a
ventilation control within the reasonable meaning of Item F, at
page 2 of the Plan which requires again, that such controls be
"of substantial and incombustible construction to all possible
and practical extent."

 The purpose of the PVC pipe was to meet Respondent's

obligation to ventilate the permanent electrical installation to
the return air course should a fire in the electrical
installation create smoke by directing the smoke to the return -
thus avoiding contamination of other areas of the mine.

 Use of the PVC pipe, since it was not incombustible and it

was a ventilation control, constituted a violation of the Plan
and a resultant violation of 30 C.F.R. 75. 316.6

Penalty Assessment

General

 The parties stipulated (Ct. Ex. 1; Ex. P-1; T.4) that

Respondent is engaged in mining and selling of bituminous coal
and is a large mine operator; that Respondent, with a history of
6 violations, proceeded in good faith to promptly abate the
violations involved, and that the proposed penalties would not
affect Respondent's ability to continue in business.

Page 14

~718
A. Citation Nos. 2873899 and 2873900

 As to both violations involved, it is found that

Respondent's explanation for its failure to adhere to the
standards was extremely thin and that as a minimum the violations
occurred as a result of its negligence. It is also concluded with
respect to Citation No. 2873900, that in view of the danger
created by it, it was quite serious in nature. Considering the
other criteria involved, a penalty of $50.00 is assessed for this
violation. The violation described in Citation No. 2873899 is
incidental to that in Citation No. 2373900 and involves
non-feasance in discharging an inspection and a record-keeping
obligation. It is not found to be serious and the $20 penalty
sought by Petitioner is found appropriate and here assessed.

B. Citation No. 2931204

 Respondent established that it did not install the PVC pipe

but that such was in place in 1982 when it "bought" the mine (T.
108); that it had not received any prior directive or
instructions from MSHA to discontinue use of the PVC pipe (T. 92,
96, 104-105); and that PVC pipe has in the past been in common
use throughout the mine (T. 104-106).7 Based on these
findings, and the generality of the inspector's testimony
concerning prior notification to the mine operator, it is
concluded that negligence was not involved in this violation. The
violation is found to be moderately serious in view of the fact
that there was the potential for making escapeways unsafe for
travel and resultant fatalities. In consideration of all the
above assessment factors a penalty of $50.00 is found appropriate
and here assessed.

Page 15

~719
ORDER

 Citation No. 2931286 is MODIFIED to amend Paragraph 10 D

thereof to reflect that the "Number of Persons" affected by the
violation is "1" rather than "7", and is otherwise AFFIRMED.

 Citations numbered 2873899, 2873900 and 2931204 are

AFFIRMED.

 Respondent, if it has not previously done so, shall pay the

Secretary of Labor within 30 days from the date of issuance of
this decision the sum of $ 194 representing the total civil
penalties above assessed.

                            Michael A. Lasher, Jr.
                            Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. This matter was consolidated for hearing with two other

penalty dockets, WEST 89-148 and WEST 89-149.

   2. 30 C.F.R.   75.300 provides:

      All coal mines shall be ventilated by mechanical

ventilation equipment installed and operated in a manner approved
by an authorized representative of the Secretary and such
equipment shall be examined daily and a record shall be kept of
such examination.
(Emphasis added)

 3. There is no evidence that Respondent, after the variance

was denied, ever filed a petition for modification of the
standard with the Department of Labor. In any event, there is,
contrary to Respondent's assertion, substantial persuasive
evidence in this record that MSHA's denial of a variance was
based on strong safety rationale and not arbitrary.

 4. This defense is rejected since the parties stipulated

that the PVC pipe in question was not made of an incombustible
material. Further, the record independently establishes
combustibility (T. 70, 83, 84).

 5. This defense is rejected since it is concluded on the

basis of this record that PVC pipe is combustible and that such
is prohibited by the Plan for use in construction of ventilating
controls. The salient question is whether the PVC pipe in
question is such a control or part of such control.

 6. As previously noted, once such a plan is approved and

adopted its provisions are enforceable at the mine as mandatory
standards. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C.
Cir., 1976).

 7. Although Respondent contended that it once (in 1985-1986)

had MSHA "permission" to use PVC pipe for ventilation purposes

Page 16

due to the fact that such was shown in a drawing attached to a
ventilation plan, it appeared that such drawing was not
incorporated in the Respondent's current approved ventilation
Plan (T. 104-112).