C.W. Mining Company

Plain-English summary

C.W. Mining operated the Bear Canyon No. 1 underground coal mine in Utah without an approved roof-control plan after MSHA revoked the mine's prior plan during a dispute over revisions. The judge found that the Secretary proved a violation of the requirement to develop and follow an approved roof-control plan. The judge found that the operator and MSHA had negotiated in good faith, but that the current plan was suitable for the mine's changing roof conditions and safer because it required full bolting on 20-foot cycles. The citation was affirmed, and C.W. Mining was ordered to pay a $20 civil penalty within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.220(a)(1), 30 C.F.R. § 75.223(d), 30 U.S.C. § 862(a)
• Outcome: Citation No. 3582718 and the $20 proposed penalty were affirmed.
• Key point: The judge found that the operator's old roof-control plan was no longer suitable and that the revised plan was suitable for the mine's conditions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. C.W. MINING
DDATE:
19930624
TTEXT:

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

                           June 24, 1993

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 92-204
Petitioner : A.C. No. 42-01697-03637
:
v. : Bear Canyon No. 1
:
C.W. MINING COMPANY :
Respondent :

                             DECISION

Appearances: Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before: Judge Cetti

 This civil penalty proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq., (1988)
("Mine Act" or "Act"). The Secretary of Labor issued a citation
to C.W. Mining Company (C.W. Mining) alleging a violation of 30
C.F.R. 75.220(a)(1) (1991) (Footnote 1) for operating a mine
without an approved roof control plan.

 It is C.W. Mining's contention that there was no violation

of 30 C.F.R. 75.220(a)(1), that the mine's old roof control
plan was improperly revoked, that MSHA did not negotiate in good
faith, that the mine's old roof control plan was adequate, more
suitable and a safer roof control plan than the new current plan,
that the current roof control plan was submitted by the operator
to the MSHA district manager for approval under protest and for
these reasons the citation charging the operator for operating
the mine without an approved roof control plan should be vacated.

1 30 C.F.R. 75.220(a)(1) (1991), provides as follows:

          Each mine operator shall develop and follow a roof
        control plan, approved by the District Manager, that
        is suitable to the prevailing geological conditions,
        and the mining system to be used at the mine.
        Additional measures shall be taken to protect persons
        if unusual hazards are encountered.


                         SYNOPSIS

 With the safety of the miners, my evaluation of the evidence

and the established applicable law in mind, I find on careful
review of the record that within the framework of the evidence
presented, MSHA has carried its burden of proof on the critical
central issues in this case and conclude the violation of 30
C.F.R. 75.220(a)(1) was established.

                       STIPULATIONS

 At the hearing the parties entered into the following

stipulations, which I accept.

 1. C.W. Mining Company is engaged in mining and selling of

bituminous coal in the United States and its mining operations
affect interstate commerce.

  2. C.W. Mining Company is the owner and operator of Bear

Canyon No. 1 Mine, MSHA I.D. No. 42-01697 an underground coal
mine.

 3. C.W. Mining Company is subject to the jurisdiction of

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801
et seq. ("the Act").

 4.   The Administrative Law Judge has jurisdiction in this

matter.

 5. The subject citations and orders were properly served by

duly authorized representatives of the Secretary upon agents of
C.W. Mining Company on the dates and places stated therein, and
may be admitted into evidence for the purpose of establishing
their issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

 6. The exhibits to be offered by C.W. Mining Company and

the Secretary are stipulated to be authentic but no stipulation
is made as to their relevance or the truth of the matters
asserted therein.

 7. The proposed penalty will not affect C.W. Mining

Company's ability to continue business.

 8. C.W. Mining Company is a medium size mine operator with

551,084 tons of production in 1990.

 9. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citation.

                            I

 C.W. Mining is the owner and operator of the Bear Canyon No.

1 Mine (Footnote 2) in Huntington, Utah. The Bear Canyon Mine is
an under-ground coal mine required by the Mine Act to operate
under an approved roof control plan. At all times prior to
October 23, 1991, the date the citation in question was issued,
C.W. Mining operated the Bear Canyon Mine under a roof control
plan approved by the Secretary of Labor. In June 1991, when its
roof control plan came up for its six-month review as provided by
30 C.F.R. 75.223(d), (Footnote 3) MSHA proposed certain
revisions of the plan that C.W. Mining found unacceptable. The
parties communicated for several months particularly with respect
to the two primary differences in the old plan and the new
current plan. The two primary differences between the old plan
and the new or current approved roof control plan are (1) the
distance that the miners can mine before permanent roof bolts are
installed and (2) the manner and sequence of the steps taken in
pulling (extracting) pillars.

 Under the old plan the operator was allowed to advance 120

feet where adequate top coal was available to provide temporary
roof support between 120 foot bolting cycles. Only where adverse
roof conditions were encountered or where insufficient top coal
existed, was the operator required by the old plan to roof bolt
every 20 feet and not allow miners inby the last row of roof
bolts.

  Under the new current plan, top coal irrespective of its

thickness and strength cannot be used as temporary roof support
and Respondent must be on a 20 foot bolting cycle at all times,
regardless of the condition or the amount of the top coal. With
respect to extracting pillars under the old plan, roof bolting
the splits was not required when adequate top coal was available
for support. Under the current plan, all pillar splits are
required to be roof bolted, regardless of good or bad roof
conditions and the required fender cut sequence is different than
the sequence under the old plan. (Tr. 54, 88-89, 531, 601-602,
604).

2 This mine is also referred to by its former name the "Coop Mine" in the
exhibits and the transcript of testimony.

3 30 C.F.R. 75.223(d) provides:

        (d) The roof control plan for each mine shall be
      reviewed every six months by an authorized representa-
      tive of the Secretary. This review shall take into
      consideration any falls of the roof, face and ribs and
      the adequacy of the support systems used at the time.

 Under the new current plan miners always work under a fully

bolted roof. This follows from the fact that C.W. Mining under
the current plan is limited to 20 foot cuts with a 20 foot roof
bolting cycle. It is undisputed that 20 feet is the maximum
distance Respondents' continuous miners is able to travel under
remote control.

                           II

         BRIEF PROCEDURAL AND FACTUAL HISTORY OF
            NEGOTIATIONS LEADING TO APPROVAL
              OF CURRENT ROOF CONTROL PLAN

 In 1988 the regulations concerning roof support in 30

C.F.R., subpart C were revised. Section 30 C.F.R. 75.220(f) as
revised mandated that existing roof control plans that conflict
with the revised regulations meet the requirements of the revised
roof regulations by September 28, 1988. C.W. Mining's president,
superintendent and engineering consultant met with District 9
roof control specialist in early January 1989 and the roof con-
trol plan was reviewed and revised. This old plan was approved
by the district manager on January 26, 1989. Thereafter, the
roof control plan was reviewed by MSHA every six months and on
each review was found to be adequate until August 9, 1991, when
MSHA informed the operator that the roof control plan was inade-
quate. (Tr. 522-524). This is the same plan that was later
rescinded by MSHA on October 23, 1991. The citation in question
was issued the same day the plan was revoked when mining opera-
tions continued without an approved roof control plan. MSHA gave
the operator several extensions to abate the citation to permit
uninterrupted production until the citation was abated on
November 4, 1991.

 Abatement was accomplished by C.W. Mining submitting under

protest the current plan which was approved November 4, 1991 by
the MSHA district manager.

 The sequence of the Bishop type negotiations in this case

for a suitable roof control plan can be summarized as follows:

 June 29, 1991, C.W. Mining sent to the MSHA District 9

Manager for the six months review its 22 page roof control plan
for Bear Canyon #1 Mine last approved March 5, 1990. In the
letter transmitting the plan C.W. Mining stated that it did not
feel any changes were needed at that time. (Govt. Ex. 2).

 August 9, 1991, MSHA sent a five page letter to C.W. Mining

stating that on review by MSHA personnel the plan was found to be
inadequate. The letter listed 30 "necessary" changes in the
pillar section of the roof control plan and 10 "necessary"
changes in the development section of the roof control plan.
(Govt. Ex. 3). MSHA requested C.W. Mining to submit a new plan

by August 26, 1991 addressing the 40 concerns MSHA set forth in
the letter.

 August 22, 1991, C.W. Mining sent a letter to MSHA stating

that the roof control systems set forth in the plan submitted for
review had been used at the mine for 30 years and there had been
no uncontrolled roof falls during that time. C.W. Mining once
again asked that the submitted plan be approved with no change.
The letter did not otherwise respond to the 40 concerns MSHA
listed in its letter of August 9, 1991.

 September 9, 1991, MSHA sent a second letter to MSHA (Govt.

Ex. 6) requesting that C.W. Mining respond to and comply with
MSHA's letter of August 9, 1991. This letter also informed C.W.
Mining that if an acceptable plan was not received by the due
date, September 30, 1991, that the plan may be rescinded and that
any further mining activity would result in the issuance of a
citation charging a violation of 30 C.F.R. 75.220.

 It is the Secretary's contention that as of September 9,

1991, all the requirements of the Bishop decision were fulfilled.
MSHA nevertheless agreed to extend the deadline so that a face-
to-face discussion could be held with C.W. Mining concerning the
reasons that the roof control plan had to be revised. The due
date was extended to September 24, 1991.

 On September 24, 1991, a face-to-face meeting of mine man-

agement and MSHA was held in Price, Utah. Present at the meeting
in Price included the following:

      Bill Stoddard - President of C.W. Mining
      Ken Defa      - Superintendent of Bear Canyon No. 1
                      Mine
      Jerry Taylor - MSHA District Engineering Coordinator
                      (Acting District Manager
      William Ponceroff - MSHA District Roof Control
                           Supervisor
      Tony Gabossi - MSHA Acting Subdistrict Manager
      Bill Ledford - MSHA Field Office Supervisor

 At the meeting the need for full roof bolting was discussed

in detail as well as other requested changes addressed in MSHA's
second disapproval letter dated September 9, 1991.

 On October 4, 1991, the district manager sent a follow-up

letter to C.W. Mining recapping the discussion and agreement
reached at the September 24, 1991, face-to-face meeting. The
letter concludes as follows:

      During a phone conversation with William
      Ponceroff, District Roof Control Supervisor,
      on September 30, 1991, Mr. Bill Stoddard,

      President, C.W. Mining Co., agreed to submit
      an acceptable plan within two weeks. It is
      agreeable to extend the deadline for the
      submittal of an acceptable roof control plan
      to October 11, 1991.

      As discussed in the meeting held on Sep-
      tember 24, 1991, deadlines for ending the
      review process have been extended too many
      times. C.W. Mining Co. must make the nec-
      essary revisions and submit an acceptable
      roof control plan by October 11, 1991, or the
      currently approved roof control plan will be
      rescinded. Any further mining activities
      without an approved plan would be a violation
      of 30 CFR 75.220.

      Be advised that the requirements for the
      Bishop decision and Program Policy Letter No.
      P89-V3 (copy attached) have been fulfilled.
      C.W. Mining Co. must have an acceptable roof
      control plan ready for submittal in order to
      prevent loss of production. The company may
      then contest the provisions of the roof
      control plan on the basis of a technical
      citation.

      If you have any questions. please contact
      this office at (303) 231-5462.

      Sincerely,

      /s/ William A. Holgate

 October 12, 1991, C.W. Mining submitted a "new revised" roof

control plan (Govt. Ex. 12) which MSHA found unacceptable and
rejected.

 October 22, 1991, MSHA faxed to C.W. Mining 16 reasons why

it found the "new revised" roof control plan unacceptable.
(Govt. Ex. 13). The hard copy of the same date, October 22,
1991, in addition to specifying the reason the plan was
unacceptable again recapped the history of negotiation and
concluded as follows:

      This requested revision is necessary to
      formulate a plan suitable to the present
      conditions and mining systems at the mine,
      and to ensure the health and safety of the
      miners when future mining occurs. Since all
      negotiations concerning the development of an
      acceptable roof control plan, in accordance

      with 30 CFR 75.220, remain at an impasse, the
      currently approved roof control plan is re-
      scinded. Any further mining activities with-
      out an approved plan is a violation of 30 CFR
      75.220.

      If you have any questions, please contact
      this office at (303) 231-5462.

 On October 23, 1991, the date that the old roof plan was

revoked and the citation issued for violation of 30 C.F.R.
75.220, C.W. Mining submitted another revised roof control plan
that was similar to the current approved plan. In its trans-
mitted letter, C.W. Mining stated as follows:

        Under protest we do agree to the enclosed
      plan as dictated by your office. We still
      believe the original roof control plan is
      just as safe, and in pillar extraction your
      system is less safe because it puts our
      people in the pillar splits where they are
      exposed to sloughing ribs and possible injury
      while bolting. It also forces us to extract
      more than one pillar at a time and will cause
      the pillars to load up and be more apt to
      cause out bursts.

        We also feel more comfortable with the
      pillar extraction sequence we have used for
      over 30 yrs. with no serious accidents or
      injures (sic) related to roof problems. We
      found it works better and has proven to be
      safer than other systems we have tried, in-
      cluding the system Mr. Ponceroff is forcing
      us to use.

 In rebuttal to the C.W. Mining claim that MSHA dictated the

new plan, counsel for the Secretary points to Mr. Ponceroff's
testimony at the hearing as follows:

      We did not dictate this plan. We approve
      plans, we don't say what goes in them. As
      long as they comply with statutory provisions
      and good mining principle as determined by
      the district and the representative of techs
      and the mining industry as a whole in rela-
      tion to site specific instances in that mine,
      we approve them. [TR 95]

 On October 29, 1991, the Mine Superintendent, Ken Defa,

after a telephone conversation with Mr. Ponceroff, MSHA Super-
visory Roof Control Specialist, sent MSHA revised plans concern-

ing the pillar extraction sequence that Mr. Ponceroff had
requested. (Govt. Ex. 16).

 October 30, 1991, the District Manager sent the mine opera-

tor, Mr. Stoddard, six detailed specific reasons the submitted
roof control plan remained unacceptable. In response to the
District Manager's letter, C.W. Mining that same day (October 30,
1991), faxed the six revisions to the plan that were specifically
requested by the District Manager. (Govt. Ex. 19).

 November 4, 1991, the MSHA District Manager approved the

revised C.W. Mining roof control plan.

 November 25, 1991, the District Manager corrected an inad-

vertent error on page 15 of the approved plan and reissued a new
copy of the entire approved plan consisting of 18 pages. The
approved plan included the disputed 20 foot roof bolting cycle
and the new disputed pillar extraction procedure and fender cut
sequence. (Govt. Ex. 35-A).

                           III

                 DISCUSSION AND FINDINGS

 Preliminarily it should be noted that in Dole, 870 F.2d 662

at 667 the court stated "[t]he specific contents of any indivi-
dual mine [roof control] plan are determined through consultation
between the mine operator and the [MSHA] district manager." In
Peabody Cole Company, 15 FMSHRC 389 (March 1993) the Commission
held that "both the Secretary and the operator are required to
enter into good faith discussions and consultation over mine
plans." The Commission in Peabody, supra, further explained this
process and quoted their decision in Carlson County, 7 FMSHRC 137
as follows:

        The requirement that the Secretary approve
      an operator's mine ventilation plan does not
      mean that an operator has no option but to
      acquiesce to the Secretary's desires regard-
      ing the contents of the plan. Legitimate
      disagreements as to the proper course of
      action are bound to occur. In attempting to
      resolve such differences, the Secretary and
      an operator must negotiate in good faith and
      for a reasonable period concerning a disputed
      provision. Where such good faith negotiation
      has taken place, and the operator and the
      Secretary remain at odds over a plan provi-
      sion, review of the dispute may be obtained
      by the operator's refusal to adopt the dis-
      puted provision, thus triggering litigation

        before the Commission. 7 FMSHRC at 1371
        (citation omitted)(emphasis added).

 Section 302(a) of the Mine Act mandates each operator to

carry out on a continuing basis a program to improve the roof
control system of each mine as follows:

          Sec. 302. (a) Each operator shall undertake
        to carry out on a continuing basis a program
        to improve the roof control system of each
        coal mine and the means and measures to
        accomplish such system. The roof and ribs of
        all active underground roadways, travelways
        and working places shall be supported or
        otherwise controlled adequately to protect
        persons from falls of the roof or ribs. A
        roof control plan and revisions thereof
        suitable to the roof conditions and mining
        system of each coal mine and approved by the
        Secretary shall be adopted and set out in
        printed form within sixty days after the
        operative date of this title. The plan shall
        show the type of support and spacing approved
        by the Secretary. (Emphasis added).

30 U.S.C. 862(a)

 Upon review of the exhibits referenced above, the testimony

of the witnesses and the records as a whole I find that both the
operator and the Secretary negotiated in good faith and for a
reasonable period of time over their legitimate differences.
Nevertheless, the parties were unable to resolve their differ-
ences. Consequently, in order to continue production after
revocation of the old plan the operator under protest submitted
the revised current approved plan.

 Although the operator and the Secretary in an attempt to

resolve their legitimate differences negotiated in good faith and
for a reasonable period of time, they remained at odds. In Dole
supra the Court of Appeals at page 669 footnote 10 (Footnote 4)
states that

4 Dole supra at footnote 10. We note that while the mine operator
had a role to play in developing plan contents, MSHA always
retained final responsibility for deciding what had to be included
in the plan. In 1977 Congress "caution[ed] that while the
operator proposes a plan and is entitled, as are the miners and
representatives of miners to further consultation with the
Secretary over revisions, the Secretary must independently
exercise his judgment with respect to the content of such plans in
connection with his final approval of the plan." S. Rep. No. 95-
181, 95th Cong., 1st Sess. 25 (1977),

while the mine operator had a role to play in developing plan contents, MSHA
always retained final responsibility for deciding what had to be included in
the plan.

                           IV

        MSHA'S REASONS FOR REVOCATION OF OLD PLAN

 The reasons why the MSHA District Manager revoked the old roof control

plan are summarized by MSHA in its Post-Hearing Brief, page 6 and 7, as
follows:

      The roof control plan was revoked for several reasons:

      1. Under the old plan, men were allowed to work and
      travel under unsupported roof. Mining experience has
      shown that traveling under unsupported roof is the
      most hazardous conduct in mining. Roof falls are the
      largest cause of fatalities in underground mines
      today. Statistics show that persons are killed by
      going under unsupported roof. [TR 34-37; 126-127].

      2. Under the old plan, C.W. Mining was only required
      to bolt when it believed that it was necessary, yet it
      is too difficult to know when it might be necessary to
      fully bolt. The transitional areas between good roof
      and bad roof can only be determined under the old plan
      by human judgment. Offset in the roof observed by Mr.
      Ponceroff indicates that the company was not
      successful in determining when the conditions were
      bad. They must be aware of the conditions, before
      someone goes under them, not after. The only way to
      avoid that is to fully bolt. [TR 40-44; 83-84].

      3. Transitional areas between good roof and bad roof
      can only be determined under the old plan, by human
      judgment and the violation history at this mine shows
      that numerous citations and orders existed for failure
      to follow the roof control plan. Also preshift, and
      on shift violations were issued for failure to
      properly examine the mine roof, and an imminent danger
      order for a bad roof has been issued at this mine,
      further indi-

U.S.Code Cong.&Admin. News 1977, p.3425.

cating the unwillingness of the operator to keep the roof in good
condition.

      4. The operator maintained that 1 to 3 feet
      of top coal was the primary roof support at
      this mine. However, roof bolts were being
      installed systematically throughout all
      development sections. Hence the mine has
      agreed that the roof is bad in many
      locations.

      5. Conditions of the mine observed by
      inspectors, District 9 specialists and MSHA
      technical support indicate that it is an
      extremely unsafe practice for the miners to
      work under roof that is not supported, since
      it is uncertain what a miner may encounter.
      All sections of the roof must be bolted
      before anyone goes under the roof.

      6. History of Violations - roof falls at this
      mine. (Exhibit Nos. 1 and 4).

      7. C.W. Mining had a particularized history
      of violations of its own Roof Control Plan.
      (Exhibit 25).

      Based upon all of the information provided by
      the on site inspectors, the visits made by
      Technology Center experts, the history of
      this mine and the newly revised roof control
      regulations, Mr. Ponceroff recommended that
      changes be made in the old roof control plan.
      Those changes primarily related to a system
      of full-bolting. That is a system where the
      area is bolted before any miner is required
      to work or travel under the roof. The result
      of the recommendation was that C.W. Mining
      would be limited to 20 foot cuts with its
      continuous miner, since that is the distance
      that the equipment can travel under remote
      control. Under the old system, the miner
      operator could go under the roof in areas
      just cut, without supporting, and could
      develop a distance of more than 100 feet.
      Under the new plan with full bolting, the
      distance is reduced to 20 feet.

                      *   *   *   *   *

        The Commission has taken note of the fact
      that mine roofs are inherently dangerous and

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

                            V

 Respondent presented considerable evidence to support its

contention that its old roof control plan last approved by the
District Manager on March 5, 1990, was adequate and appropriate
for the particular conditions at the mine and therefore should
not have been revoked. Respondent presented the testimony not
only of its officials and employees but also the testimony of
three federal coal mine inspectors to this effect. These MSHA
coal mine inspectors were quite familiar with the particular
conditions at the mine. Their testimony supports Respondent's
contention that in most areas of the mine top coal was of ade-
quate thickness and strength to be used as temporary roof support
for the 120 foot cuts and bolting cycles used under the old plan.
Evidence was also presented that a 20 foot full roof bolting
cycle was used by C.W. Mining under the old plan when adverse
roof conditions were encountered. The mine inspectors called by
Respondent also testified that the pillar extraction procedure
under the old roof control plan was safe and even safer than the
pillar extraction procedure under the current approved roof
control plan.

                           VI

 Respondent's expert witness Dr. Krishma Sinha, a geological

engineer, based upon the tests he performed and his computer ana-
lysis of the results he obtained, testified that there was no
added safety benefit in requiring roof bolts to be installed in
20 foot cycles over 120 foot cycles. Dr. Sinha's testimony was
not persuasive. He did not take or supervise the taking of sam-
ples used in his analysis. He did not know who took the samples
or even what part of the mine from where the samples were alleg-
edly taken. (Tr. 993). He took neither tensile nor sheer
strength tests. (Tr. 995). He assumed the material to be homo-
geneous. (Tr. 999). Mr. Ropchan the mining engineer employed by
the MSHA Technology Center testified this assumption was a fatal
miscalculation. Mr. Ropchan stated that Mr. Sinha's computer
analysis failed to consider the joints and fractures of the coal.
(Tr. 996-998, 1091).

 The Secretary in support of his position presented the tes-

timony of M. Terry Hoch, the mining engineer who heads the Roof
Control Division of the MSHA Safety and Health Technology Center

in Pittsburg (Tr. 381, Govt. Ex. 27); Jerry Davidson, a geologist
employed by the MSHA Safety and Health Technology Center and
David Ropchan, a mining engineer for the MSHA Safety and Health
Technology Center since 1971. (Tr. 315). All of these experts
visited the mine in question and made visual observations of the
mine conditions.

 David Ropchan testified that the method of pillar extraction

used under the old plan was more dangerous than pillar extraction
under the current plan since the old plan opened up more ground
and thus exposed the miners to more unsupported roof. He stated
that stress on the roof increases with the square of the span of
the roof and when the roof span increases, tensil stress is
greatly increased. (Tr. 1088-1089).

 Jerry Davidson, the MSHA geologist, testified he did not

consider pillar extraction under the old plan a safe way to
extract pillars "because under the old plan a lot of ground (is)
opened up" and practically no ground support was installed. Thus
under the old plan the continuous miner operator, his helper and
the shuttle car operator and possibly the section foreman would
be exposed to a greater hazard of roof falls than under the
current plan which involves "opening up" less ground.

 Mr. Hoch who heads the MSHA Technology Roof Control Division

testified that District 9, where the mine in question is located,
was the only district that still has a roof control plan that
permitted miners to travel under an unsupported coal roof or a
roof supported only by head (top) coal. (Tr. 393-394). He ex-
plained that a coal roof cannot be a sole means of support
because as a material, it is inconsistent, it is jointed, has
cleats and, most importantly, can and will fall. (Tr. 448-449).

 Mr. Hoch stated that the primary thrust of the 1988 revised

roof control regulations was to "incorporate new technologies so
that miners would not be required to work or travel in areas
where roof was not supported. He stated that head or top coal
can "mask" roof problems so you can't see hazards such as joints
and fractures. He also stated that coal left on the roof can
enhance the resistance to absorption of humidity increasing the
dangers of roof falls.

 Based on the testimony of the experts from the Safety and

Health Technology Center and the undisputed fact that the opera-
tor was encountering changing adverse roof conditions in the mine
that all parties agree required a 20 foot roof bolting cycle, I
find that the new current roof control plan is suitable for the
mine in question and is mine specific. It is not necessary or
appropriate in this case to reach the question of whether the use
of top coal alone to support the roof is proscribed by the pre-
sent roof control regulations.

 Respondent argues that its witness should be credited since

its witnesses were more familiar over a longer period of time
with the particular conditions at the mine and spent more time
observing the mine in operation rather than MSHA's witnesses who
were less familiar with the mine and who spent less time observ-
ing and examining the conditions of the mine. The Commission in
Cyprus Tonopah Mining Corp., 15 FMSHRC 367 at 372 (March 1993)
quotes from its earlier decision Asarco, Inc., 14 FMSHRC 941, at
949 (June 1992) as follows:

    The Commission has recognized that:

         [e]xpert witnesses testify to offer their
         scientific opinions on technical matters to
         the trier of fact. If the opinions of expert
         witnesses conflict in a proceeding, the judge
         must determine which opinion to credit, based
         on such factors as the credentials of the
         expert and the scientific bases for the
         expert's opinion.

 Based upon their superior credentials I credit the opinion

of the Secretary's Safety and Health Technology Center experts.
Based upon their testimony and the undisputed fact that there
were changing adverse roof conditions in the mine that required
full roof bolting on 20 foot cycles, I find that the old roof
plan was no longer suitable to the conditions of the mine in
question and was properly revoked. On the same basis I also find
the current approved roof control plan is suitable to the
conditions of the Bear Canyon No. 1 Mine as contemplated by 30
C.F.R. 75.220(a)(1) and section 302(a) of the Mine Act.

 Consistent with the above findings and conclusions I find

the violation of 30 C.F.R. 75.220(a)(1) as charged in the
citation was established. The violation is technical nature.
Consequently the $20 penalty MSHA proposes is appropriate.

                             ORDER

 1. Citation No. 3582718 and the MSHA proposed $20 penalty

are affirmed.

 2. Respondent shall pay a civil penalty of $20 to the

Secretary of Labor within 30 days of this decision and upon
receipt of payment, this proceeding is dismissed.

                                     August F. Cetti
                                     Administrative Law Judge

Distribution:

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

Carl E. Kingston, Esq., 3212 South State Street, P.O. Box 15809,
Salt Lake City, Utah 84115 (Certified Mail)
[illegible]