Energy Fuels Coal Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

Energy Fuels Coal Incorporated operated the underground Southfield Mine in Colorado. MSHA alleged five significant and substantial violations involving electrical equipment, compressor housing, combustible coal dust, and a loose rib. Judge August F. Cetti vacated one electrical-equipment citation because the evidence did not establish a violation, and modified the remaining four citations to remove the significant and substantial designations while affirming them as non-S&S violations. The total civil penalty was set at $220.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.512, 30 C.F.R. § 75.1105, 30 C.F.R. § 75.400, and 30 C.F.R. § 75.202(a).
• Outcome: One citation was vacated. Four citations were modified to remove the significant and substantial findings and affirmed as modified. The total penalty was $220.
• Key point: The judge found the violations proven, but the evidence did not establish the reasonable likelihood of serious injury required for significant and substantial findings.

Full text (FMSHRC public release)

CCASE:
MSHA V. ENERGY FUELS
DDATE:
19921106
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                  1244 SPEER BOULEVARD #280
                    DENVER, CO 80204-3582
              (303) 844-5266/FAX (303) 844-5268

                      November 6, 1992

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 91-432
Petitioner : A.C. No. 05-03455-03592
:
v. : Southfield
:
ENERGY FUELS COAL INCORPORATED :
Respondent :

                           DECISION

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

Before: Judge Cetti

 This case is before me upon the petition for civil penalty

filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 C.F.R. 801 et
seq., the "Act," charging Energy Fuels Coal Incorporated (Energy
Fuels) with five "significant and substantial" (S&S) violations
of mandatory safety standards in 30 C.F.R. Part 75 entitled
"Mandatory Safety Standards - Underground Coal Mines."

 Energy Fuel filed a timely answer contesting the alleged

violations, the significant and substantial designation of the
alleged violations and the appropriateness of the proposed
penalties.

 The only witnesses called to testify for the Petitioner were

federal mine inspectors Donald Jordan and Melvin H. Shiveley.
The only witnesses called by Energy Fuels were Messrs. Gary
Carroll, the mine's Safety Supervisor, James W. Pushchak, the
mine's Maintenance Superintendent and Randy Acre, Manager of the
Southfield Mine. I

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I have considered the evidence presented and the record as a
whole, and find that a preponderance of the substantial, relia-
ble, and probative evidence along with the applicable law estab-
lishes the following Findings of Fact and Conclusions.

                Findings and Conclusions

  1. Respondent is the operator of the Southfield Mine loca-

ed at Fremont County, Colorado. The mine is an underground coal
mine.

 2. The operations and products of the Southfield Mine af-

fect commerce or the products of such mine enter commerce.
Accordingly, the mine and its operators are subject to the pro-
visions of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq. (the Act).

 3. As a result of an inspection by an authorized represen-

tative of the Secretary, Respondent was issued five citations,
pursuant to 104 of the Act (30 U.S.C. 814) and penalties were
proposed pursuant to 105 and 110 of the Act (30 U.S.C. 815
and 820). Each alleged violation was alleged to be a significant
and substantial (S&S) violation.

 4. Each citation number, date issued, provision or standard

allegedly violated, MSHA's proposed penalty and the penalty
assessed herein is as follows:

                                       Proposed    Penalty

Citation No. Date 30 C.F.R. Penalty Assessed

3242478      1/8/91      75.512            119     Vacated
3243302      1/9/91      75.1105           192      $100
3243303      1/9/91      75.512            119        80
3243304      1/15/91     75.400            168        20
3242437      1/2/91      75.202(a)         119        20

                                           TOTAL    $220

 5. With respect to Citation No. 3242478, the evidence is

insufficient to establish a violation of 30 C.F.R. 75.512.
There was no persuasive evidence that the 480 volt belt control
and starter box in question was not frequently examined, tested
and properly maintained to assure safe operating conditions. The
citation should be vacated and the proposed penalty set aside.

 6. With respect to Citation No. 3243302, the air compressor

was housed in an expanded metal housing with no fireproofing ma-
terial. It was not housed in a fireproof structure. There was a
104(a) non S&S violation of 30 C.F.R. 75.1105. The violation

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was not significant and substantial as there was no reasonable
likelihood that the hazard contributed to would result in an in-
jury or illness of a reasonable serious nature. The operator was
negligent. A civil penalty of $100 is appropriate.

 7. With respect to Citation No. 3243303, the Pinco 150 KVA

Power Center, that provided power to the belt drive that hauls
coal out of the mine, was not maintained in safe condition. This
was a 104(a) non S&S violation of 30 C.F.R. 75.512. The viola-
tion was not significant and substantial as there was no reason-
able likelihood that the hazard contributed to would result in an
injury or illness of a reasonably serious nature. An appropriate
penalty for this violation is $80.

 8. With respect to Citation No. 3243304, the preponderance

of the evidence established the existence of an accumulation of
combustible material within the meaning of the cited safety stan-
dard (30 C.F.R. 75.400) as interpreted by the Commission in Old
Ben Coal Co., 1 FMSHRC 1954 (December 1979) and Old Ben Coal Co.,
2 FMSHRC 2806. The violation was not significant and substantial
as there was no reasonable likelihood that the hazard contributed
to would result in an injury of a reasonable serious nature. A
civil penalty of $20 is appropriate.

 9. With respect to Citation No. 3242237, there was a non

S&S 104(a) violation of 30 C.F.R. 75.202(a). There was a
hazard related to a potential fall of a rib. There was no
negligence on the part of the operator. The likelihood that the
hazard contributed to would result in injury was remote. An
appropriate penalty under the facts and circumstances established
at the hearing is $20.

                           II

             DISCUSSION AND FURTHER FINDINGS

Citation No. 3242478

 Citation No. 3242437 alleges a "significant and substantial"

violation of the standard at 30 C.F.R. 75.512 and charges as
follows:

        The 480 volt belt control and starter box
      located at crosscut #56 of the west submains
      was not maintained in safe condition, in that
      the doors provided were not locked and could
      be opened by unauthorized personnel and
      expose themself [sic] to 480 volts.

 The cited safety standard 30 C.F.R.   75.512 provides as

follows:

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        75.512 Electric equipment; examination,
      testing and maintenance.

        All electric equipment shall be frequently
      examined, tested, and properly maintained by
      a qualified person to assure safe operating
      conditions. When a potentially dangerous
      condition is found on electric equipment,
      such equipment shall be removed from service
      until such condition is corrected. A record
      of such examinations shall be kept and made
      available to an authorized representative of
      the Secretary and to the miners in such mine.

  This belt control and starter box supplies power to the belt

motor. It sits on the mine floor on a set of metal skid bars and
consists of a box shaped cabinet, 36" by 60" and approximately 36
to 48 inches high. It has two metal doors on the front. On the
outside of the metal box is an "on-off" switch to stop and start
the belt. Inside the metal box is a breaker panel and wiring for
the power center. To access the breaker or the wiring, the doors
of the box have to be opened. There are no electrical parts
outside of the box and the only hazard which Inspector Shiveley
described was the possibility that an unauthorized person might
open the cabinet doors and inadvertently contact an energized
part.

 The only thing Inspector Shiveley observed that he felt was

unsafe was that the doors to the metal cabinet were ajar and not
locked so as to prevent an unauthorized person from touching any-
thing inside the cabinet. The only thing the inspector required
for abatement of the citation was to put a lock on the cabinet so
as to keep "unauthorized people" from getting inside the cabinet.
The inspector on cross examination admitted that the cited safety
standard does not restrict access to "authorized personnel" and
does not have any "locking out" requirement.

 Jim Pushchak, the Southfield Mine Maintenance Superintendent

and a certified electrician, testified on behalf of Energy Fuels.
Mr. Pushchak testified the control box was in safe operating
condition. It had no electrical problems and was maintained,
serviced and tested by qualified electricians pursuant to
30 C.F.R. 75.512.

 Only belt men and electricians have any reason to access

this power center. All of these miners are either certified
electricians or have been task trained, and know how to operate
the equipment and are aware of any hazards related to it. There
were no exposed electrical equipment on the exterior of the box,
and the only reason that a belt man opens the doors to this box
is to reset the breaker for the belt control. Mr. Pushchak
testified that if a person went inside the box to reset the

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breaker, the power inside the box would have been deenergized
except for the leads coming in on the line side into the top of
the main breaker. Therefore, exposure to electrical hazard was
negligible.

 Mr. Pushchak described the metal cabinet box as having metal

doors on the front that latch shut. He testified that since 1979
every belt drive in the mine has had this type of box. These
boxes are inspected frequently by personnel from the Southfield
Mine, and by the MSHA inspectors. Mr. Pushchak stated that in
the 12 years that these boxes were in use at the mine they have
never before had any complaint from any inspector that these
boxes constituted an unsafe condition. Energy Fuels had never
received any indication before this citation was written that it
was going to be required to lock this box.

 Inspector Shiveley`s application of the cited safety

standard to the facts of this case constitutes an impermissible
expansion of the plain meaning of the standard and thus
constitutes an im-permissible avoidance of the rulemaking
requirements of Section 101 of the Mine Act.

 In relation to the deference to be accorded an agency's in-

terpretation of a mandatory safety standard, the court is requir-
ed to give effect to the actual words and the plain objective
meaning of the regulations and is not bound by the agency's "hid-
den intentions and idiosyncratic interpretations." Western Fuels

• Utah, Inc., March 1989, 11 FMSHRC 278, 284.

  It is a basic tenant of administrative law that "a regula-
  tion cannot be applied in a manner that fails to inform a reason-
  ably prudent person of the conduct required." Secretary v.
  Garden Creek Pocahontas Company, 11 FMSHRC 2148, 2152, (1989)
  (citing Mathies Coal Company, 5 FMSHRC 300, 303 (1983). An agen-
  cy's failure to provide adequate and fair notice constitutes a
  denial of due process and renders any attempted enforcement ac-
  tion invalid. Gates and Fox Company, Inc. v. Occupational Safety
  and Health Review Commission, 790 F.2d 154, 156 (D.C. Cir. 1986).
  The rulemaking provisions of the Mine Act were intended to ensure
  sound standards and regulations and fair and adequate notice to
  regulated parties. Regulatory interpretations that extend beyond
  the clear language of the regulation and change the rights or
  duties of the parties constitute unenforceable amendments that
  are in avoidance of required rulemaking procedures. Garden Creek
  Pocahontas Company, supra.

  If the Secretary truly desires to require a cabinet housing
  a power center such as the one in question to be equipped with a
  lock and use it to lock out access by "unauthorized persons",
  then the Secretary must pursue this goal through notice-and-
  comment rulemaking. The Secretary should promulgate a standard
  to clearly and directly address not only the perceived hazard but

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also clearly inform the mine operator what he must do for compli-
ance.

 I credit the testimony of Mr. Pushchak. Based upon the

plain meaning of the cited section quoted above, the testimony of
Mr. Pushchak and the admissions made by Inspector Shiveley on
cross examination (all summarized above) I find that a prepon-
derance of the evidence presented at the hearing failed to estab-
lish a violation of 30 C.F.R. 75.512. Citation No. 3242478 and
its related proposed penalty are vacated.

Significant and Substantial Violations

 MSHA designated the four remaining citations significant and

substantial (S&S) violations. The term significant and substan-
tial is taken from Section 104(d)(1) of the Act, 30 U.S.C.
814(d)(1), which distinguishes as more serious in nature an
violation that "could significantly and substantially contribute
to the cause and effect of a ... mine safety or health hazard
..." It is well established that a violation is properly desig-
nated as S&S "if, based on 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 reason-
ably serious nature." National Gypsum, 3 FMSHRC at 825. In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
further 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.

6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary, 861 F2d
99, 104-05 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987)(approving 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).

 It is this third element of the Mathies formula that the

preponderance of the evidence presented fails to establish in
each of the four remaining citations discussed below.

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Citation No. 3243302

 Citation No. 3243302 alleges a "significant and substantial"

violation of the standard at 30 C.F.R. 75.1105 and charges as
follows:

        The 480 volt Sullair air compressor Serial
      No. 003-55609 located in crosscut #24 of the
      west submains, was not installed or
      maintained in a fireproof structure, in that the
      area surrounding the air compressor was
      designed of expanded metal, no fireproofing
      material was provided for roof or ribs in
      area. The air currents, when tested, were
      being coursed to the return.

 The safety standard 30 C.F.R.   75.1105 provides as follows:

        75.1105 Housing of underground transformer
      stations, battery-charging stations, substa-
      tions, compressor stations, shops, and per-
      manent pumps.

        Underground transformer stations, battery-
      charging stations, substations, compressor
      stations, shops and permanent pumps shall be
      housed in fireproof structures or areas. Air
      currents used to ventilate structures or
      areas enclosing electrical installations
      shall be coursed directly into the return.
      Other underground structures installed in a
      coal mine as the Secretary may prescribe
      shall be of fireproof construction.

 It is undisputed that the 480 volt air compressor was not

housed in a fireproof structure or area, and for this reason the
violation of 30 C.F.R. 75.1105 was conceded. The primary
issues remaining were whether the violation was S&S and the
appropriate penalty.

 The air compressor was a screw type compressor enclosed in

an expanded metal housing. There were electrical leads and oils
"involved in the unit." The potential hazard was that a fire
under some circumstances could occur within the compressor and
possibly ignite combustible material.

 The air compressor was located in a crosscut between a

return airway and an intake airway. Respondent asserts the open
ends of the crosscut were sealed off from the air courses. There
was undisputed evidence that air coming into the crosscut from
the intake side was restricted and minimized by a flame resistant
curtain. The return side of the crosscut was blocked off by a

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fireproof Kennedy stopping. A tube ran from a hole in the
Kennedy stopping to a place directly above the air compreessor.
All air from the crosscut, and any fumes or smoke, would be
coursed through the tube into the return airway and away from any
miners. There was no active mining at the time the violation was
observed and the citation written, and no one was outby the place
where the crosscut air was vented into the return. A smoke-test
performed by the inspector demonstrated that the air was being
properly vented into the return.

 The air compressor was located four to five feet from one

wall of the crosscut, eight to ten feet from another wall of the
crosscut and approximately one foot from the top of the crosscut.
The crosscut had been rock dusted as required by law. The air
compressor was resting on a rock floor, a naturally incombustible
surface.

 The inspector testified that the compressor was operating

and there was a "probability or possibility" that the conditions
observed could cause a fire. He put his hand on the coal 12
inches above the top of the compressor and found the coal was
warm. The inspector testified that he probably "could have left
it (his hand) there" without burning his hand. He did not take a
temperature reading of any thermostats installed on the compres-
sor.

 Mr. Jim Pushchak, the Maintenance Superintendent at the

Southfield Mine, accompanied Inspector Shiveley when this
citation was written. He observed the compressor and determined
that it was working properly and running as normal. The equip-
ment was in safe operating condition, was not emitting any smoke,
was not unduly hot and did not have any accumulation of combusti-
ble material on it.

 This particular compressor had been operating at this loca-

tion for over seven months with no problems. The mine has never
had any problems with the air compressor and it was still working
properly and safely on the date of the hearing, some 16 months
after the citation was written.

 One factor of considerable importance on the S&S issue was

that the compressor was equipped with an automatic fire extin-
guisher that was activated by heat. Once activated, it would
have completely extinguished any fire hazard in the crosscut by
covering the entire area with a fire dampening chemical.
Mr. Pushchak concluded his testimony with his opinion that under
all the facts surrounding the violation there was no reasonable
likelihood of a fire resulting from the violation.

 Upon careful evaluation of all the probative evidence I find

that the preponderance of the evidence presented did not

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establish a reasonable likelihood that the hazard contributed to
by the violation would result in an injury. There was no per-
suasive evidence of a confluence of factors that such an event
was reasonably likely. There existed a mere possibility that was
less than the reasonable likelihood required in Mathies for an
S&S finding.

 I find the operator was negligent to a moderate degree in

using over a long period of time an air compressor subject to
weekly examination, that did not comply with the fire proof
housing requirement of the cited standard. The violation was
serious. On consideration of all the statutory criteria in
110(i) of the Act I find that a civil penalty of $100 i
appropriate.

Citation No. 3243303

 Citation No. 3243303 alleges a "significant and substantial"

violation of the standard at 30 C.F.R. 75.512 and charges as
follows:

        The Pinco 150 KVA Power Center 4160/480
      volt, located in crosscut #2 of the 2 left 2
      west, was not maintained in safe condition,
      in that the 480 volt line side power lugs
      were exposed on the upper part of the 400 amp
      rating circuit breaker supplying power to the
      2 west beltdrive. Persons that are required
      to test and operate the circuit breaker would
      be exposed to the energized 480 volt lugs.

        75.512 Electric equipment; examination,
      testing and maintenance.

        All electric equipment shall be frequently
      examined, tested, and properly maintained by
      a qualified person to assure safe operating
      conditions. When a potentially dangerous
      condition is found on electric equipment,
      such equipment shall be removed from service
      until such condition is corrected. A record
      of such examinations shall be kept and made
      available to an authorized representative of
      the Secretary and to the miners in such mine.

 The power center in question provides power to a belt drive

that hauls coal out of the mine. It was located two or three
crosscuts from where the coal was being mined. It was housed in
a large box-shaped metal cabinet that sat on the mine floor. It
was 5 feet wide, 8 feet long and 3 feet high. In front, the
cabinet had a closed metal door. On the side it had a sign
warning that the power center had "dangerous, high voltage."

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Inside the metal cabinet is a circuit-breaker unit. This
unit is a small plastic box with a handle on the front. Inspec-
tor Shiveley testified the breaker box poses no hazard if you
operate it properly but could be dangerous if the miner "shoved"
the handle of the breaker up with the palm of his hand in such a
way that his fingers went up and over the top of the insulating
barrier (insulated backboard) rather than lifting up the handle
to deenergize it.

 The hazard according to the inspector were two uninsulated

exposed lugs located behind the insulated barrier inside the
circuit breaker unit. These lugs were attached to the bussing on
the primary 480 volt feed and were not insulated. A person
operating the handle located in front of the breaker by pushing
the breaker handle with the palm of his hand could get his
fingers over the top of the insulated barrier back board in such
a manner that his fingers could come in contact with the uninsu-
lated lugs. If this were to happen, the person would probably be
electrocuted.

 The Respondent presented evidence that there is no electri-

cal equipment exposed either on the outside of the power center
box, or on the outside of the inner breaker box. In order to
contact the metal lugs, a person would have to get down on his
knees, open the outer metal doors, and reach the inner breaker
box and push his fingers over the top of the insulating barrier.
The citation was abated by placing a few pieces of insulating
tape over the top on the insulated backboard so that the lugs
were no longer exposed to an inadvertent potential contact.

 I credit the testimony presented by Respondent which

established that it was not reasonably likely that the hazard
contributed to would result in an injury. The power center box
sat on the mine floor and was only 3 feet high so that a person
opening the cabinet door to reset the breakers would most likely
pull up on the breaker handle and rather than getting down close
to the floor level to push the handle with the palm of his hand
in such a manner as to push his fingers over the top of the insu-
lated barrier and contact the uninsulated lugs. Although the
hazard contributed to was not reasonably likely to result in
injury, there was a remote possibility that the hazard
contributed to could result in a serious injury. Since the
injury could be fatal, the violation was serious.

 Based upon the evidence presented, I find that there was a

violation of 30 C.F.R. 75.512. I further find, based upon the
particular facts surrounding the violation, that the preponder-
ance of the evidence does not establish a reasonable likelihood
that the hazard contributed to, would result in an injury. Thus
the evidence did not establish the third element required by the
Mathies criteria for an S&S finding.

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On careful consideration of all of the statutory criteria in
Section 110(i) of the Act, I find a civil penalty of $80 is an
appropriate civil penalty for this non S&S violation.

Citation No. 3243304

 Citation No. 3243304 alleges a "significant and substantial"

violation of the standard at 30 C.F.R. 75.400 and charges as
follows:

        Accumulation of combustible material, float
      coal dust was deposited along the rockdusted
      ribs and mine floor, in the last open
      crosscut #16+65 for a distance of 180' feet,
      the area in MMU0060, 2 west was dark gray to
      black.

 The cited safety standard 30 C.F.R.   75.400 provides as

follows:

        75.400 Accumulation of combustible ma-
      terials.

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

 Float coal dust is defined in 30 C.F.R.   75.400-1(b) as

follows:

      (b) The term "float coal dust" means the
      coal dust consisting of particles of coal
      that can pass a No. 200 sieve.

 Inspector Melvin Shiveley was the Secretary's only witness.

On January 15, 1991 when he inspected the Second West section of
the Southfield Mine he found that miners were actively mining
coal in the area. They were cutting coal with a continuous
miner. Inspector Shiveley observed that there was "float coal
dust" laying on the curtain and mine floor for a distance of
approximately 180 feet outby from the face. It was such a fine
layer of "float coal dust" that its depth was not measurable. He
observed white rock dust under the coal dust. The "float coal
dust" was black in color near the face to dark gray further away
from the face.

 On cross examination, Inspector Shiveley testified he did

not observe any coal dust in suspension and took no test to
determine whether the particles of dust could pass through a No.

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200 sieve. See 30 C.F.R. 75.400-1. The inspector agreed that
you need to stir up coal dust by another explosion to make coal
dust self explosive.

 On redirect examination, the inspector agreed with his

counsel that walking or moving equipment in the area where float
coal dust had settled would have stirred it up and put it in
suspension.

 The inspector testified that he took air readings and found

the volume of air was permissible and in compliance with the
Southfield Mine Ventilation Plan; that methane was not excessive
and that he found no electric equipment in the area that was not
in permissible condition.

 Coal is mined at the Southfield Mine in the conventional way

with a continuous miner and shuttle cars. There is no longwall
mining. The mining cycle begins with a continuous miner making a
cut of coal. The coal is then loaded and the continuous miner is
moved out of the section and a roof bolting machine is moved in.
The roof bolter installs roof bolts for permanent roof support.
The roof bolter is equipped with a rock dusting machine. After
bolting the roof, the roof bolter blows rock dust into the air so
that it will be carried by the mine's ventilation and deposited
outby the working face on top of any coal dust. This citation
was abated by having the roof bolting machine rock dust the area.
Respondent contends it would have done this as part of the normal
mining cycle had it been allowed to continue. Inspector Shiveley
visited the adjacent entry that was part of this same mining
cycle, where the roof bolting machine had just completed its
work. He found that this entry had been properly rock dusted as
part of the normal mining cycle.

 Inspector Shiveley acknowledged that it was not practical to

clean up or scrape up fine float coal dust; that the alternative
is to apply rock dust; and stated "once that rock dust is
applied, then you no longer consider that can be accumulation"
because the float coal dust is covered up with an uncombustible
material. (Tr. 96 line 8-25, Tr. 97 line 1-2).

 Inspector Shiveley conceded that the liberation of coal dust

is a "natural feature" and "an unavoidable consequence of min-
ing." He acknowledged that it is not possible to mine coal
without generating coal dust as part of the mining cycle. Coal
dust is liberated, suspended in the air, carried away as part of
the ventilation of the section and deposited outby the working
face during a normal mining cycle. Because the coal dust is
moist, most of the coal dust falls from the air near the working
face. Inspector Shiveley conceded that float coal dust is
combustible only if (1) the float coal dust is in suspension, (2)
there is an ignition source, and (3) there is an actual ignition
or an explosion.

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As pointed out in Respondent's brief, Inspector Shiveley
testified that the length of time that coal particles had been
present in the area was irrelevant and that, in his opinion, time
was not a factor in determining whether there was an accumulation
under 75.400.

      Q:   So in your opinion, it makes no difference how long
           the accumulation is there; isn't that correct?

      A:   Yes.

      Q:   Time is not a factor?

      A:   No, it isn't.

      Q:   Mr. Shiveley, you don't know how long this coal
           dust had been present on top of the rock dust, do
           you?

      A:   No, I don't.

(Tr. 105, line 24-25, Tr. 106 line 1-6).

 Energy Fuels presented the testimony of two witnesses, Jim

Pushchak and Randy Acre. It also introduced Respondent's Exhibit
R-2, a diagram that was helpful in describing the mining cycle,
the cited area and the surrounding entries, returns and
crosscuts.

  Mr. Pushchak testified substantially as follows: He has

worked at the Southfield Mine for twelve years and is familiar
with the mining cycle at the mine. He accompanied Inspector
Shiveley on this inspection and walked through the area that was
cited by Inspector Shiveley. Mr. Pushchak explained that the
dust in the area in the return that was closest to the working
face was black because that was where most of the coal dust
tended to settle after being blown away from the face. The
continuous mining machines were equipped with water sprays which
dampened the liberated coal dust. As a result, this dust is
heavier and is deposited near the working face. As one proceeded
further away from the face, there was less coal dust on the rock
dust because most of the coal dust had dropped closer to the
face.

 Mr. Pushchak described what was occurring in the mining cy-

cle when the citation was written. Using the diagram, Ex. R-2,
he explained the continuous miner had just finished cutting Cut
No. 3 in the main entry and had moved to the adjacent left entry
to begin Cut No. 4. As the continuous miner moved out of Cut No.
3, the roof bolting machine moved into Cut No. 3 to install
permanent roof support and then apply rock dust. The coal dust

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which lay on top of the rock dust outby the working face had been
generated as a result of Cut No. 3. The average amount of time
from the end of the cutting of coal to the application of rock
dust (with roof bolting having occurred in the interim) is 30
minutes. Cut No. 3, however, was a longer cut than the average
cut made on that shift. (Tr. 147 lines 12-16).

 It is generally conceded that it would not be possible to

mine coal without generating float coal dust. Energy Fuel con-
tends it would be hazardous to the health and safety of miners to
apply rock dust while mining was occurring. This could only be
done manually by miners standing just outby the working face.
Float coal dust would be generated by the mining, and some of it
would be deposited on the miners or it would be inhaled by them.
Therefore, Energy Fuel contends it is necessary to wait until
after the mining and the roof bolting have been completed before
rock dusting. Furthermore, it contends that until the mining is
actually completed and the coal dust settles, rock dusting would
not cover all of the coal dust in suspension.

 Randy Acre, the Mine Manager at the Southfield Mine, testi-

fied substantially as follows: He has been in the coal mining
business for 20 years. He is well acquainted with mining cycle
at the Southfield Mine. Coal dust is rendered harmless by
allowing it to settle on top of rock dust, and then applying an
alternate layer of rock dust on top of the coal dust which ren-
ders the coal dust incombustible.

 Mr. Acre testified that the continuous miner in this area

was equipped with special water sprays that force the wet coal
dust to settle in the return entries. The continuous miner is
equipped with a methane detection system that first provides a
warning, and then automatically shuts down the machine if the
amount of methane exceeds 2% per cubic meter.

 Mr. Acre confirmed that the mining cycle in this area

provided for immediate application of rock dust after the roof
bolter completes bolting the roof of the cut.

 The regulations assume that coal dust will be liberated as

part of the mining process, and requires the mine to "clean it
up" and not allow it to "accumulate." Inspector Shiveley testi-
fied that time was "irrelevant" in determining whether an accumu-
lation existed. Based on his observation, he was of the opinion
that an accumulation existed and that he was justified in issuing
the citation.

 In Utah Power & Light v. Secretary of Labor, 951 F.2d 292,

295 (10th Cir. 1991)(n. 11), the Tenth Circuit stated that 75.400
"prohibits permitting [coal dust] to accumulate; hence it must be
cleaned up with reasonable promptness, with all convenient

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speed." (Emphasis added). Thus, the length of time that
combustible material is present is relevant.

 As Energy Fuels points out in its post-hearing brief, the

logic of the Tenth Circuit ruling in apparent. If an operator is
not given a reasonable amount of time to clean up a by-product of
the mining cycle, then an operator could be cited as soon as any
coal dust is generated. This, however, is not what has happened
in this case. The cut in question was longer than the usual cut
being made on this shift and the mine manager conceded that one
hour may have elapsed after the roof bolter moved in and began
bolting the roof and the rock dusting of the cut began. (Tr. 157
line 20-25, Tr. 158 line 1-2).

 It is undisputed that Federal Coal Mine Inspector Shiveley

observed a fine layer of combustible coal dust deposited along
the ribs and mine floor in the last open crosscut for a distance
of 180 feet. Based upon his observations, Inspector Shiveley was
of the opinion that the coal dust he observed for a distance of
180 feet was an impermissible accumulation and cited it as such.
Based upon Inspector Shiveley`s observation, opinion and testi-
mony, I find that this rather extensive fine layer of coal dust
was an accumulation in violation of 30 C.F.R. 75.400. I also
credit the testimony of Messrs. Pushchak and Randy Acre that
established there was no reasonable likelihood that the hazard
contributed to would result in an event that would cause injury.
Since the preponderance of the evidence did not establish this
essential factor needed to support an S&S finding, I find that
the violation was a non S&S 104(a) violation.

 Considering all the statutory criteria in Section 110(i) of

the Act and the fact that the accumulation consisted of only a
fine layer of coal dust of rather recent origin, I find a penalty
of $20 is an appropriate penalty for this 104(a) non S&S
violation.

Citation No. 3242437

 Citation No. 3242437 alleges a "significant and substantial"

violation of the standard at 30 C.F.R. 75.202(a) and charges as
follows:

        A loose coal rib measuring about 6' x 10' x
      about one ft. in thickness, with at least a
      four inch space behind it, just inby crosscut
      #24 in the first right entry of the south
      mains (intake haulage) was leaning out in a
      hazardous position. This is the main travel-
      way in and out of the working section.

 The cited safety standard 30 C.F.R.   75.202(a) provides as

follows:

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75.202 Protection from falls of roof, face
and ribs.

           (a) The roof, face and ribs of areas where
         persons work or travel shall be supported or
         otherwise controlled to protect persons from
         hazards related to falls of the roof, face or
         ribs and coal or rock bursts.

    The primary issues presented are as follows:

 1. Did the Secretary sustain her burden of proving that

Energy Fuels violated 30 C.F.R. 75.202(a) as alleged in the
citation?

 2. If there was a violation, was the violation significant

and substantial?

 3. If there was a violation, what is the appropriate

penalty?

 Donald Jordan, Federal Mine Inspector, testified that on the

date of inspection, October 9, 1991, he was conducting a 103(i)
inspection which is required every five years. [30 U.S.C.
813(i)]. Inspector Jordan cited Energy Fuels for a violatio
of 30 C.F.R. 75.202(a) because he observed a rib just inby
crosscut 24 that "appeared to be a hazard." He stated that the
rib was "loose." Inspector Jordan looks for loose ribs whenever
he inspects a mine.

 Inspector Jordan was looking for loose ribs when he entered

the Southfield Mine on the morning that the citation was written,
but he did not observe that the rib he cited was "loose" or that
any rib was "leaning" when he entered the mine, even though he
traveled past the area that he later cited on his way back from
the working face.

 Inspector Jordan on his way out of the mine traveled the

same route he used to travel into the mine. As he traveled out
through the main travelway of the mine, he observed a rib that
had a crack on one side that "would possibly extend to the point
that it could hit someone." (Emphasis added). Inspector Jordan
had no idea how long the rib was in the condition that was noted
in his citation. He did not know whether any miner had passed by
this rib when it was loose, or whether any miner had observed the
rib and failed to scale it down. The pre-shift report did not
indicate that this rib had any crack in it. Inspector Jordan
testified on cross examination that he could not definitely say
whether the rib would have fallen naturally or whether it would
have remained indefinitely in the position that it was in when
the citation was written. However, when asked by his counsel on

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redirect examination if it is "likely" the rib would have fallen
on its own, he replied "Yes ma'am, I think it would have."

 Inspector Jordan stated that cracks in ribs are common in

coal mines and that rib hazards are controlled by scaling--or
prying--the rib down. Inspector Jordan inspected four to six
thousand feet of the mine on the day the citation was written and
did not observe any other cracked or loose ribs. The miners were
working approximately 1,500 to 2,000 feet away from the cited
area and Inspector Jordan did not observe any person standing, or
walking by this rib. Evidence was presented that a person who
was traveling in the area cited by Inspector Jordan would have
probably driven by this rib in one or two seconds.

 Gary Carroll, the Safety Supervisor at the Southfield Mine,

has worked in underground mines since 1974 and worked at the
Southfield Mine for over 10 years. He testified substantially as
follows:

 The roof at the Southfield Mine is controlled by permanent

and supplemental roof support. The ribs at the Southfield Mine
are controlled by maintaining a permissible width (18 to 20 feet)
in the entries and by scaling and barring down ribs that are
loose.

 On the day that the citation was written, Mr. Carroll rode

into the mine with Inspector Jordan on the mancar tractor,
driving down the center of the entry, as was normally the case.
Both he and Inspector Jordan were "looking around" as they went
into the mine to check for cracks and loose ribs. No cracks or
loose ribs were noticed as they entered the mine and none were
noticed during the inspection of the working face.

 When miners enter and leave the mine, they ride either in a

tractor, or in a trailer pulled by the tractor, that has metal
supports on the sides. On the date of the citation, the miners
were working approximately 1,500 to 2,000 feet from the cracked
rib.

 Cracks in ribs are common at the Southfield Mine. However,

a crack does not mean that a rib is loose. It is not possible to
tell simply by visual observation whether a rib is loose. The
Southfield Mine Roof Support Plan requires that loose ribs be
scaled down. Mr. Carroll routinely scales down ribs whenever he
observes a loose rib. The hazard of a loose rib is that a person
standing close to the rib could be injured if the rib fell
naturally.

 Mr. Carroll did not observe any crack in the rib as he

entered the mine. Like Inspector Jordan, he observed the crack
in the rib when he was leaving the mine. The crack was on one
side of the rib only, Mr. Carroll did not observe that the rib

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was leaning precariously. Mr. Carroll testified that the crack
was no more than four feet in height. He stated the entire coal
seam at this point in the mine has a maximum height of 5 to 5 1/2
feet.

 Mr. Carroll had difficulty prying loose the cracked portion

of the rib. It took three separate attempts to pry the piece of
coal away from the rib. On a scale of one to ten, with ten being
the most difficult rib to pry down, this rib was "between a six
and a seven" in difficulty. To Mr. Carroll, this meant that it
was "difficult to pry down." Mr. Carroll testified that the rib
was approximately four feet in height, six feet across at the
bottom and two feet across at the top after it was pried down.
After it was forcibly pried down, most of the coal fell within
two to three feet of the rib.

 Mr. Carroll testified that this crack in the rib posed no

hazard to any miner. The crack was approximately one-half mile
from the working face. It had been several years since there had
been any work in this area. In the twelve years that Mr. Carroll
had been at the mine, he has had to walk by this area only once.
On every other occasion, he drove or rode in a tractor by this
portion of the main travelway and would pass by the area within a
second or so. Energy Fuels has never had a rib fall in the tra-
velway that caused any injury in the twelve years that the mine
has been in existence.

 Respondent contends the Secretary failed to prove that

Energy Fuels had violated 30 C.F.R. 75.202(a) because she
produced no evidence to show that Energy Fuels was not supporting
or otherwise controlling the ribs to protect persons from hazards
related to rib falls. The undisputed testimony was that Energy
Fuels regularly inspects for loose ribs and when they are
noticed, bars them down.

 The standard states that ribs shall be supported or con-

trolled to protect people from hazards. Even though Inspector
Jordan viewed almost 5,000 feet of entryway during this inspec-
tion, he saw only one place where there was even a crack in a
rib. Inspector Jordan did not observe this rib which he said was
"obviously leaning" when he passed by it on his way into the
mine. Respondent contends that the only conclusion that can be
drawn is that the rib cracked after Inspector Jordan and Mr.
Carroll drove by it on their way into the mine. The Secretary
presented no evidence that the condition was known to Energy
Fuels and that Energy Fuels failed to take steps to control it.
I find that the evidence fails to establish that Energy Fuels was
negligent.

 With respect to the special significant and substantial

finding, the evidence fails to establish that, if the rib in
question were to fall, a chain of events would occur that would

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be reasonably likely to result in injury. Exposure to the hazard
of a falling rib would occur only when a miner is very close to
or in the immediate area of the falling rib.

 Furthermore, it took a considerable effort to pry down this

rib and the testimony of Inspector Jordan regarding this rib
posing a hazard was only that when it fell, it "might possibly
extend to the point where it could hit someone." It appears from
the evidence that such a possibility was remote.

 The evidence failed to establish a reasonable likelihood

that the hazard contributed to would result in injury.

 Based upon the evidence presented, I find that there was a

104(a) non S&S violation of 30 C.F.R. 75.202(a). However,
based upon the particular facts surrounding that violation, I
find that the preponderance of the evidence does not establish a
reasonable likelihood that the hazard contributed to, would
result in an injury.

 On careful consideration of all of the statutory criteria in

Section 110(i) of the Act, including the operators lack of negli-
gence, I assess a civil penalty of $20 for this non S&S
violation.

                           ORDER

 Based upon the above finding of fact and conclusions of law,

IT IS ORDERED that

 1.   Citation No. 3242478 is VACATED.

 2. Citation Nos. 3243302, 3243303, 3243304 and 3242436 ARE

MODIFIED to delete the significant and substantial finding and,
as modified, ARE AFFIRMED.

 3. Respondent Energy Fuels Coal Incorporated shall PAY to

the Secretary of Labor a penalty in the sum of $220 within 30
days of the date of this decision.

                             August F. Cetti
                             Administrative Law Judge

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Distribution:

Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Office Building, 1961 Stout
Street, Denver, CO 80294 (Certified Mail)

Phillip D. Barber, Esq., WELBORN, DUFFORD, BROWN & TOOLEY, P.C.,
1700 Broadway, Suite 1700, Denver, CO 80290-1701
(Certified Mail)

shMargaret A. Miller, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver, CO 80294
Phillip D. Barber, Esq.
WELBORN, DUFFORD, BROWN & TOOLEY, P.C.
1700 Broadway #1700
Denver, CO 80290-1701