Southern Ohio Coal Company

Read the official release (fmshrc.gov)

Plain-English summary

MSHA alleged that Southern Ohio Coal violated two electrical safety requirements at its Martinka No. 1 Mine and sought civil penalties. Judge George A. Koutras approved the parties' disposition of one citation and vacated it. He found that a mine-specific safeguard requiring short-circuit protection at 75 percent was not based on conditions peculiar to the mine and that existing standards already covered the electrical protection issue, so he vacated the safeguard and the citation based on it. The proposed civil penalties for the vacated citations were dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.508, 75.1403, 75.1001, and 75.1001-1
• Outcome: The safeguard and both citations were vacated, and the proposed civil penalties were dismissed.
• Key point: A safeguard must be tied to mine-specific hazards and cannot duplicate existing mandatory standards without a valid basis.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 90-198
PETITIONER A.C. No. 46-03805-03978
v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
RESPONDENT

                               DECISION

Appearances: Glenn M. Loos, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb &
Critchfield, Morgantown, West Virginia, for the
Respondent.

Before: Judge Koutras

                         Statement of the Case

 This proceeding concerns proposals for assessment of civil

penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking civil penalty assessments for
two alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations. The
respondent filed an answer contesting the alleged violations, and
pursuant to notice, a hearing was held in Morgantown, West
Virginia. The parties filed posthearing briefs, and I have
considered their arguments in the course of my adjudication of
this matter.

                                Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the standards as alleged in the proposal
for assessment of civil penalty, (2) whether the violations were
"significant and substantial," and (3) the appropriate civil
penalties that should be assessed based on the civil penalty
criteria found in section 110(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

              Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub. L.

95-164, 30 U.S.C. 801 et seq.

   2. Section 110(i) of the 1977 Act, 30 U.S.C.      820(i).

   3. Commission Rules, 20 C.F.R.   2700.1 et seq.

                                Discussion

 Section 104(a) "S&S" Citation No. 3118460, issued on March

14, 1990, by MSHA Inspector Virgil M. Brown, Jr., cites an
alleged violation of mandatory safety standard 30 C.F.R.
75.508, and the cited condition or practice is described as
follows:
The elect (sic) map of the DC trolley system is not
accurate in that trolley knife blade switches with
handles are used where dead block insulators are shown.

 Section 104(a) "S&S" Citation No. 3312067, issued on May 1,

1990, by MSHA Inspector Virgil M. Brown, Jr., cites an alleged
violation of mandatory safety standard 30 C.F.R. 75.1403, and
the cited condition or practice is described as follows:

        The short circuit protection for the trolley wire outby
        #30 block was not set properly and was not in
        compliance with the 75% safeguard. The 18 left rect.
        (sic) was set on 47/or 2834 amps. Load drop tests
        revealed that the rect. (sic) outby end should have
        been set on 37/or 2224 amps.

 In issuing the citation, Inspector Brown relied on a

previously issued safeguard Notice No. 2258189, dated November
14, 1983, and he included this information in the appropriate
places on the face of the May 1, 1990, citation.

                                Discussion

Citation No. 3118460

 After the completion of the testimony of Inspector Brown,

the petitioner's counsel was granted a short recess. He then
advised the court that the parties had settled the alleged
violation and that based on the testimony of the inspector, the
petitioner decided to vacate the citation. The respondent raised
no objection, and the petitioner's disposition of the alleged
violation was approved from the bench (Tr. 146-148).

Citation No. 3312067

Petitioner's Testimony and Evidence

 MSHA Inspector Virgil M. Brown, Jr., testified that he is an

electrical specialist with prior mine experience as a mine
manager, foreman, fire boss, and maintenance person, and that he
holds a bachelor's degree in mining engineering and has attended
the MSHA Academy at Beckley, West Virginia, which included 2
weeks of electrical training. He has also taken electrical
correspondence courses (Tr. 15-16). He confirmed that he
conducted an electrical inspection at the mine on May 1, 1990,
and that he inspected the short circuit protection for the DC
trolley system. He confirmed that he performed a load drop test,
and he explained the results of his test (Tr. 159-162). He also
identified exhibit P-8 as a copy of his inspection notes, exhibit
P-9 as a copy of the citation he issued, and exhibit P-10 as the
prior safeguard notice issued by Inspector Wayne Fetty on
November 14, 1983.

  Mr. Brown stated that the results of his load drop test

indicated that the fault protection for the circuit in question
was set "nearly at 100 percent setting or just a little bit below
100 percent setting," and he explained that the slight
discrepancy in the test results recorded in his notes and those
shown on the citation were due to the fact "that 37 is the
closest thumb wheel setting to that value, and, you're either
going to go 60 below this value or 60 above this value" (Tr.
161).

 Mr. Brown stated that the respondent had conducted prior

load drop tests on April 10, 1990, as reflected by exhibit P-11,
and he confirmed that he based his low negligence finding on the
fact that the respondent did not ignore the tests and was trying
to maintain the required circuit protection settings on their DC
trolley system (Tr. 165). He further confirmed that the
respondent was in violation of the previously issued safeguard
because the circuit protection setting was at 100 percent, rather
than the 75 percent required by the safeguard. If the setting
were over 100 percent there would have been a violation of
mandatory safety standard section 75.1001, rather than the
safeguard (Tr. 165).

 Mr. Brown explained what was required under the safeguard

issued by Inspector Fetty, and he believed that a trained
electrician who has worked around a DC trolley system would be
familiar with the requirements of the safeguard notice and the
load drop tests. Mr. Brown confirmed his belief that the
conditions he cited constituted a violation of the requirements
of the safeguard notice (Tr. 168).

 Mr. Brown stated that the hazards created by the cited

conditions included the probability and likelihood of a bolted
short circuit, and a fire caused by arcing which could ignite the

combustible materials used in the roof support system. He
explained that wooden header boards or planks are within inches
of the trolley wires, and that a prior fire had occurred in the
mine when a head board caught fire and he and Inspector Fetty
came upon a motorman trying to extinguish the fire over the motor
which had caused the fire (Tr. 50-51). He was aware of a trolley
wire which fell on another section and did not trip the circuit
breaker, indicating that it was not set appropriately. He was
also aware of approximately 22 accidents over a 7-year period
that resulted in 11 lost time injuries and 12 fatalities, as
reported in an MSHA study (Tr. 168-169). He believed that "the
situation and the mining methods and the settings that the
rectifiers are . . . its likely for a problem to occur that would
be S and S" (Tr. 169).

 Mr. Brown further explained how a fire could start as a

result of inadequate short circuit protection, and he indicated
that the 75 percent setting required by the safeguard notice came
from an MSHA report and studies which were done showing that
arcing faults could occur and not open any circuit interrupting
devices. He also explained the difference between an arcing fault
and a bolted fault, and he believed it was reasonably likely that
a fault would occur because of the metal overcast arches used for
roof support. He confirmed that he has observed at least three
occurrences, including a recent incident, where the insulation
was melted off the trolley wire. He believed that a bolted fault
would definitely trip if the circuit protection were set at 100
percent, but that an arcing fault would not trip and would remain
open until it was cleared or burned far enough so that the flame
path is extinguished or someone saw it and repaired it. He
confirmed that he has personally observed six or eight mine fires
caused by arcing faults, including one at the subject mine, over
the past 20 years (Tr. 171-177).

 Mr. Brown stated that the issuance of a "75 percent

safeguard notice" such as the one he relied on to support the
violation is not based on any MSHA district wide policy at mines
with trolley systems. He confirmed that he inspects five mines
with trolley systems and that the Martinka and Robinson Run mines
are the only ones with safeguard notices (Tr. 177). Mr. Brown
confirmed that he was familiar with the requirements of mandatory
safety standard section 75.1001 and 75.1001-(b), and he explained
his understanding of these regulations. He stated that if he
finds any short circuit protection settings over 100 percent, he
will cite section 75.1001, but if the setting is between 75 and
100 percent he will cite the safeguard notice (Tr. 179, 183-184).
He explained that the 100 percent setting requirement is based on
section 75.1001, and it is an industry standard based on the load
drop test. The 75 percent safeguards lower the mandatory 100
percent setting based on special mine conditions (Tr. 185-186).

  On cross-examination, Mr. Brown stated that he normally

selects a mine area which has advanced the furthest to conduct
his load drop tests because such an area would be the likely area
to be out of compliance or have a problem which the mine electrical
department would be aware of. He agreed that loose trolley wire
"fish plates" could cause the rectifier settings to be set at
less than the 2,224 amps required by the safeguard notice, and
that this does occur in a mine, and if it does, it would result
in a change in the load drop tests (Tr. 190). He confirmed that
the 22 accidents which he previously referred to did not occur at
the Martinka Mine, and he stated that "those were just separate
safeguards" (Tr. 191). He also confirmed that the melted trolley
wire guard fire caused by arcing was not a reportable fire
because it was extinguished in less than 30 minutes, and that he
was not personally aware of any reportable fires at the mine (Tr.
192).

 Referring to section 75.1001-1(b), Mr. Brown explained his

understanding of the testing and calibration language found in
that regulation (Tr. 192-195). He confirmed that under MSHA's
guidelines and policy manuals, it is appropriate for an inspector
to issue a safeguard to address specific conditions or problems
that have resulted in, or could result in, lost time accidents
(Tr. 195-196). He confirmed that any safeguard issued by an
inspector must go through the district manager in order to avoid
"blanket covering" mines, and that he was so instructed by a
supervisor during several meetings (Tr. 197). He confirmed that
mine safeguard notices are a matter of record in the uniform mine
file that he is required to review, and that such information can
be retrieved on a computer at the district or sub-district
office. However, he did not know how many safeguards have been
issued at the subject mine. He stated as follows with respect to
the safeguard he relied on in support of the citation (Tr.
200-201):

      Q. Mr. Brown, do you know the reason that safeguard
      2258189 which was issued by Inspector Wayne Fetty to
      Martinka Mine, do you know why it was issued?

      A. It was issued I guess after he did a look at the
      study that was done on the arcing faults and the ---
      after a study was done of what was there at that mine,
      of the conditions there as specific to that mine.

      Q. And you're just getting this information by reading
      the actual safeguard; is that correct?

      A. Out of the safeguard and the actual printout and I
      also talked with the inspector.

      Q. Mr. Brown, would you agree with the statement that a
      duly authorized representative of the Secretary such

      as yourself, may issue a safeguard if it addresses
      hazards related to the transportation of men and
      materials?

      A. Definitely. Yes, ma'am.

      Q. All right. And that a safeguard would be issued on
      a mine by mine basis?

      A. Mine by mine.

      Q. Due to a peculiar or particular circumstance at
      that particular mine?

      A. That's right.

 Mr. Brown stated that he has inspected approximately 45

mines in district three, and that approximately 10 percent of
them are trolley powered mines. He indicated that safeguards have
been issued at mines with large amp capacities, and these mines
are "more apt to have arcing faults and their settings would be
higher," and they have combustibles close to the trolley wire and
associated switching gear. He also indicated that the Martinka
Mine uses trolley haulage on the longwalls with rather large
motors that pull the trolleys on the trolley wire and that
"they're more apt to have a fault at Martinka" (Tr. 202).
Referring to the respondent's pre-trial discovery requests and
replies by the petitioner (exhibits R-2-A), Mr. Brown confirmed
that 11 of the 17 listed mines in his district have been issued
75 percent safeguard notices (Tr. 203-205).

 Mr. Brown confirmed that he did not cite a violation of

section 75.1001-1(b), "because it was in compliance with this as
far as the 100 percent setting goes" (Tr. 207). In response to a
question as to whether MSHA is holding the respondent to a higher
standard of care under section 75.1001, by requiring a safeguard
setting of 75 percent, Mr. Brown responded "I guess you can see
it as that if that's the way you want to look at it. I view it as
a violation of a safeguard" (Tr. 208). The parties stipulated
that at a 100 percent setting, the mine was within the "plus or
minus 15 percent" language found in section 75.1001-1(b) (Tr.
217). Mr. Brown confirmed that the difference between the 75
percent safeguard requirement and section 75.1001-1(b), is the
percentages (Tr. 218).

 Mr. Brown confirmed that he based his low negligence finding

on the fact that the respondent had performed the load drop test,
and he did not believe that there was any intent to place the
setting beyond 75 percent. He believed that the violation was an
oversight resulting from driving and advancing so far and that
"it just slipped by them" and "they were trying to do a good job"
(Tr. 219).

 On re-direct, and after further review of the listing of

mines with and without safeguard notices (exhibits R-2-A),
Mr. Brown stated that 23 of the mines listed do not have
safeguard notices, and that two do (Tr. 225-226).

 MSHA Inspector Edwin W. Fetty testified that he is an

electrical inspector, has worked for MSHA for 16 years, and has
25 years of mining experience. He has also attended the MSHA mine
academy and periodically assists in electrical retraining and
conducting mine hoisting classes. He is familiar with the subject
mine and was initially assigned there to conduct electrical
inspections when he was hired as an inspector. Based on a review
of his files, he confirmed that he conducted an electrical spot
inspection at the mine on November 14, 1983, and issued a section
104(a) Citation No. 2258188 at 11:00 a.m., after conducting a
voltage drop test at the diagonal track haulage switch in the 025
section. He also issued safeguard Notice No. 2258189 at 1:00 p.m.
that same day (exhibit P-10) (Tr. 227-231).

 Mr. Fetty stated that he issued the citation on November 14,

1983, after finding that a device on a 500 KW rectifier was set
at approximately 2,800 amps, which was 100 percent in excess of
the 1,700 amps required by section 75.1000-1. Mr. Fetty explained
that during a previous electrical spot inspection on September
22, 1983, he found the same condition in another area of the mine
and issued a section 104(a) citation. Upon his return to the mine
in November, 1983, and after finding the same condition existing
again, he decided that he was justified in issuing the safeguard
notice. He confirmed that due to problems involving accidents and
fatalities associated with trolley circuits and mine fires,
district manager Ron Keaton authorized the issuance of safeguard
notices, on a mine-by-mine basis, requiring settings of 75
percent in lieu of 100 percent. The specific conditions that
warranted the issuance of the safeguard were those stated in
Citation No. 2258188, namely, the setting of the breakers "in the
neighborhood of 100 percent above the compliance of 75.1000-1"
(Tr. 234).

 Mr. Fetty stated that at the time he issued the citation and

safeguard, he believed that an unplanned roof fall or a piece of
mining equipment contacting a trolley wire could cause an arcing
fault to occur and this could cause a mine fire, with resulting
smoke inhalation, asphyxiation, or burns. In those mine areas
where wooden boards are used above the trolley or feeder wires to
keep rock and debris from falling down on the track haulage, a
fire would be likely (Tr. 234). Mr. Fetty explained the
requirements of the safeguard notice which he issued as follows
at (Tr. 235-236):

      A. The way the safeguard is written it is required that
      the automatic circuit interrupting device

installed on a 300 volt DC track haulage system shall be provided
with devices to detect short circuits which are at least 75
percent of the minimum voltage short circuit current available as
determined by periodic voltage current load drop test.

      Q. Okay. In layman's terms, something that I'd
      understand, what does that require?

      A. That requires that you go out and put the amount of
      current on your DC trolley system and whatever your
      value is at 100 percent what is available, reduce it to
      75 percent of the available fault current.

      Q. Okay. Reduce what to 75 percent?

      A. The available fault current. Like if it was 1,000,
      reduce it down 25 percent of 1,000.

      Q. And what purpose does that serve?

      A. That would be an increase --- a better safety factor
      and should something happen it would detect and cause
      the device to trip quicker.

      Q. Okay. What device?

      A. The interrupting device on the trolley circuit.

      Q. Short circuit protection?

      A. Right.

      Q. Now, would you say the requirements of that
      safeguard are readily understandable to a person
      experienced on trolley systems?

      A. Someone that has been given proper training at the
      mine to go out and conduct and perform these required
      voltage drop tests, yes, but an average run-of-the-mine
      electrician, I would have to do it to say no.

 Mr. Fetty confirmed that he has reviewed the citation issued

by Inspector Brown and he agreed that the condition cited
violated the requirements of the contested safeguard notice (Tr.
237). He further confirmed that there are approximately 28 to 30
mines in his district that have trolley systems, and he guessed
that nine or 10 of these mines were covered by a 75 percent
safeguard. He stated that three of the safeguards which he issued
were issued at different times, but were based on basically the
same condition, and he explained the reasons for the safeguards
which were issued at the Consolidation Coal

Company's Loveridge No. 22 Mine, the Robinson Run No. 95 Mine,
and an Island Creek Coal Company mine (Tr. 238-240).

 Mr. Fetty stated that section 75.1001-1(b) requires the

testing of automatic circuit breaker devices at intervals not
exceeding 6 months, and also provides that the devices "be in
calibration to plus or minus 15 percent with the associated relay
to that circuit and if the authorized representative feels that
more tests are required" (Tr. 241). He did not believe that this
standard has any bearing on the safeguard, and he confirmed that
he issued the safeguard because it was justified in light of the
problems that he encountered (Tr. 241).

 On cross-examination, Mr. Fetty explained the problems he

had encountered at the mine with respect to section 75.1001-1 and
the trolley short circuit protection. He stated that "after
issuing the violations and running through that pattern that I
had ran through and reading and making more in-depth studies and
seeing what the conditions was, I figured that the 75 percent,
which I had permission to issue the safeguard, shouldn't be
reduced. It should be maintained at that setting" (Tr. 244). Mr.
Fetty stated that there is no "blanket coverage" for issuing
safeguards, but if anything is not spelled out under section
75.1403, an inspector must request permission from the district
manager to issue a safeguard under the "other safeguards"
language found in that section (Tr. 245). Mr. Fetty confirmed
that he was not familiar with all of the safeguard notice
guidelines set out in the National Gypsum case, but indicated
that prior to that decision, he encountered compliance problems
at the mine with respect to sections 75.1001, 75.516, and
energized trolley wires contacting wooden materials. Although
these problems did occur at other mines, they were more frequent
at the Martinka Mine (Tr. 248).

 Mr. Fetty confirmed that based on his review of MSHA

accident and fire reports concerning problems with trolley wires
he believed that a way to prevent these occurrences at the
subject mine would be to reduce the circuit protection from 100
percent to 75 percent, and even though accidents or fires may not
have occurred at the mine, he believed that the safeguard was a
preventive measure to preclude those events at the mine (Tr.
251). He believed that he was justified in issuing the safeguard
to gain a higher margin of safety by lowering the circuit
protection device by 25 percent and establishing a 75 percent
requirement (Tr. 253).

 Mr. Fetty stated that the 75 percent short circuit

protection setting was established from information he obtained
through district manager Keaton, and seminar materials and
information which he (Fetty) obtained. Mr. Fetty "guessed" that
the value setting of 75 percent was established by Mr. Keaton and
"whomever made the request to have the permission to issue the

safeguard on a mine by mine basis" (Tr. 256). Mr. Fetty confirmed
that those mines which do not have the 75 percent safeguard must
comply with sections 75.1001 and make the tests mandated by
section 75.1001-1(b) (Tr. 259). He also confirmed that the
respondent "learned to live with the 75 percent" safeguard with
additional feeder and ground wire, and he has inspected other
mines where the available fault current is maintained at 50
percent (Tr. 265). He further explained the establishment of a 75
percent value as follows (Tr. 266):

      A. Because the people in our meetings, my supervisor,
      other people, prudent engineers, which I'm not, I'm not
      an engineer, they felt that this safety factor of 25
      percent would greatly be in aid and assistance to the
      health and safety of the miners and to prevent fires in
      the coal mines and that's why they came up and went
      with the 75 percent.

 Mr. Fetty confirmed that section 75.1001 relates to the

circuit device trip setting margin of plus or minus 15 percent,
and that mines without the 75 percent safeguard must comply with
this section. He still believes that the safeguard which has been
in effect for 7 years is still valid because the conditions that
prompted him to issue it are still occurring at the mine (Tr.
269, 271-272). He further confirmed that there have been 14
violations of section 75.1001, issued at the mine since 1985, and
while he did not know the details, he indicated that they would
all pertain to trolley circuit short circuit and overcurrent for
various reasons (Tr. 273-274). He stated that these violations
could also have been issued under the safeguard notice if the
circuit setting was in excess of 100 percent and not in
compliance with the 75 percent requirement (Tr. 278).

 In response to further questions, Mr. Fetty confirmed that

he issued the safeguard notice in question as "a preventative
measure," as well as the previously stated mine conditions and
problems which he had encountered, and the information and
studies pertaining to trolley wire fires (Tr. 276-77, 281).

Respondent's Testimony and Evidence

 John R. Cooper testified that he has been employed with the

respondent for over 15 years, and has served at the Martinka Mine
for over 2 years as the general maintenance superintendent. His
duties include the maintenance of all mine equipment and support
systems for the mine, ventilation plans, the DC track trolley
system, and the safety of all equipment and mine personnel. He is
a magna cum laude graduate of the Ohio University, with a
Bachelor of Science degree in electrical engineering, and his
prior experience includes 3 years as an associate professor of
electrical engineering at the Decry Institute of Technology in
Columbus (Tr. 286).

  Mr. Cooper stated that he reviewed the citation issued by Mr.

Brown and discussed it with him briefly after it was issued. He
informed Mr. Brown of his belief that the violation was not "S&S"
because the actual rectifier setting was below the available
short circuit currents, and if a short circuit were to develop
any place on the line, the overcurrent devices would recognize
the fault condition and trip the circuit breaker offline, and
there would be no safety concern whatsoever. Since there was no
possibility or probability of any unsafe condition or injury, Mr.
Cooper did not believe that the "S&S" finding was justified (Tr.
287).

 Mr. Cooper stated that he did not discuss his belief that

the condition cited was not a violation under the 75 percent
safeguard notice with Mr. Brown, but that he always had a
question about it because it was "something new to me . . . that
I had inherited here at Martinka since I was transferred over"
(Tr. 288). He explained that in his prior 14 years experience at
the Meigs Division, no safeguards of the type issued by Mr. Brown
ever pertained to the DC track trolley system (Tr. 288). Mr.
Cooper did not believe that the safeguard was valid, and he
explained his reasons for this conclusion as follows at (Tr.
289-290):

      A. Well, there are many stipulations I understand that
      should be addressed or be satisfied before a safeguard
      is issued. I'm not fully familiar with all the legal
      stipulations of that but a lot of them have to do with
      being a mine specific type requirement which I was
      never clear on why that was --- this was a mine
      specific type situation. I really wasn't clear on where
      this 75 percent limitation was arbitrarily set and
      where that came from. I was never familiar with any
      policy memorandum issued from any of the MSHA districts
      or headquarters or division offices saying that this is
      something that should be done or what the guidelines
      were for issuing it. So I had a lot of questions really
      that were never answered why we had this safeguard
      saying that we could only set our protection to 75
      percent of the indicated value.

      Q. Did you ever try and find out from any of the MSHA
      people why the safeguard was issued?

      A. Not to any great length.

      Q. I mean, was that just because there wasn't a
      violation issued in connection with the safeguard or
      what was the reasoning?

      A. Well, the violation that was issued at the time, the
      one that we're discussing here, I believe is the

first time that this was issued under a safeguard condition and
not a 75.1001.

      Q. When you were a general maintenance superintendent
      at Martinka?

      A. That's correct. And so when this came up, that's
      when I started having the questions on where did this
      come from and why did we have it, what are we
      accomplishing by looking under the safeguard as opposed
      to what is set forth with that 75.1001.

 Mr. Cooper explained the operation of the DC trolley haulage

system and he confirmed that it is operated by "300 volts DC,
being conducted down a bare trolley wire conductor," and that the
"power is picked off by a sliding carb or shoe arrangement" (Tr.
291). The system is an underground mine railroad with large high
force power equipment which moves on rails and smaller personnel
carriers with lower horsepower requirements (Tr. 290). He
sketched out the system and stated that "the whole trick of the
system is keeping it properly protected so that if there's a
fault on the line, or short circuit, that the protection devices
in the rectifier will recognize that and open up under a fault
condition but yet will still allow you to have the proper amount
of power to operate these large horsepower pieces of equipment in
the mine" (Tr. 292).

 Mr. Cooper explained the electrical track system and he

stressed the concern with protecting the system or limiting the
current under a fault condition, and the importance of knowing
the resistance of each feedline on the system and the available
short circuit current that will flow so that the trip devices can
be set accordingly. He confirmed that circuit breakers are
located at every rectifier in the mine, and he explained how they
functioned. He explained that a bolted fault could occur if there
were a roof fault which took the trolley wire down onto the rail,
or a jackknifed piece of equipment into the wire could also be
touching the rail and creating a short circuit (Tr. 296).

 Mr. Cooper explained how a load drop test is conducted in

order to "set the thumb wheels on the rectifier" with the
appropriate overcurrent amps setting (Tr. 296-299). Referring to
the load drop tests conducted within a month prior to the
issuance of the citation by Mr. Brown, Mr. Cooper stated that the
load drop measured by the respondent was 3,779 amps, and the
rectifier was set at 2,834 amps. Mr. Brown's test showed a short
circuit of 2,965 amps, and a 75 percent setting would be 2,224
amps. Since Mr. Brown's test indicated an available fault current
of 2,965 amps, and since the respondent's system was set on 2,834
amps, Mr. Cooper concluded that the mine setting was under the
available short circuit current, and that any bolted fault would
have been recognized and the relay would have tripped

"as soon as we passed the 2,834" (Tr. 300). He confirmed that
certain factors could effect a load drop test by changes which
occur to the resistance of the system, and the resistance could
be affected by atmospheric conditions, the mechanical integrity
of the "fish plates" used to join the rails together, and the
electrical connections in these devices (Tr. 302).

 Mr. Cooper stated that during his years at the Meigs

Division, his standard practice and instructions to the
electrical department was to set the overcurrent protection at 15
percent below the indicated short circuit current values, and
that this was accepted by the local mine inspectors. This
instruction was in compliance with section 75.1001, and although
the standard allowed a plus or minus of 15 percent of indicated
value, his policy was to set the trip protection devices at the
lower side to insure a margin of safety in the event of any
loosened connections or if the system resistance increased (Tr.
304). He explained the computation for the trip device setting
made by the respondent, and he concluded that under the "worse
case scenario," at the setting of 2,834, which was in the middle
of the allowable setting under section 75.1001-1(b), the circuit
device would have tripped before reaching the 2,965 setting
established by Mr. Brown's test (Tr. 305).

 Mr. Cooper was of the opinion that the safeguard notice in

question is not valid because section 75.1001-1(b) establishes
the range of acceptable rectifier tripping settings for
overcurrent protection, and even without a safeguard, the thumb
wheel rectifier settings must comply with this standard. He did
not believe that there was any need for any additional 75 percent
setting and stated that "I don't know why 75 percent is some
magical number or where it came from" (Tr. 306). He confirmed
that the mandatory standard section in question provides for load
drop tests every 6 months to measure the system resistance, and
this is the only way to validly establish this. He confirmed that
he conducts such tests on a more frequent basis, and the trip
relay is set to trip within plus or minus 15 percent of the
indicated load drop value. He believed that the mine was in
compliance with section 75.1001-1(b) because the rectifier
settings were essentially at the mid-point of the regulatory
range, and it would have tripped at the same level. He did not
believe that any injury would have occurred because the rectifier
trip setting was at 2,834 amps (Tr. 306-309).

 Mr. Cooper confirmed that he was unaware of any injury or

illness to any miner attributable to the Martinka Mine trolley
system, or any reportable mine fire associated with the system
short circuit protection (Tr. 309). The cited condition was
abated "by setting our thumb wheeling setting to the 75 percent
setting of 2,965 amperes, which was the 2,224 . . . it was
immediately abated by reducing our trip current setting," which
then complied with the 75 percent safeguard. In his opinion, the

mine was already in compliance with section 75.1001-1(b) (Tr.
310).

 On cross-examination, Mr. Cooper confirmed that although

other safeguards were issued at the Meigs Mines, none of them
pertained to the 75 percent short circuit protection setting for
the trolley system. He further confirmed that he was not working
at the Martinka Mine when the 1983 safeguard notice was issued,
and he did not observe the conditions which prompted Mr. Fetty to
issue it (Tr. 311). He explained that an "arcing fault" could
occur where there is no "dead metal on metal contact" and current
is jumping across an air gap, creating a spark or an arc. Such an
event could occur on the trolley system by poor connections, or
by damaged or open "knifeblades," but he has seen very few actual
arcing faults. He confirmed that the trolley wire hangers have
faulted and grounded and could cause an arc for a brief period of
time. However, it is unlikely that such an arc would occur at the
roof because the wires are secured on insulators, but it could
occur on the hangers connected to metal arches and to the rail
(Tr. 312-313).

  Mr. Cooper stated that his "worse case scenario" testimony

pertained to voltage faults, and not arcing faults, and that it
is difficult to measure or simulate arcing faults. He confirmed
that wood is used for timbering and cribbing, but that the mine
roof is not generally beamed with wooden posts or timbers (Tr.
314).

 In response to further questions, Mr. Cooper stated that the

"overcurrent protection" referred to in section 75.1001, in this
case is the relay incorporated inside the rectifier and it senses
the current that is being pulled from the rectifier at all times.
After making a load drop test, an inspector would then take 75
percent of that result to establish the required tripping setting
pursuant to the safeguard notice. In the absence of the
safeguard, the setting could be plus or minus the results of the
load drop test formula (Tr. 315-317).

 Mr. Cooper stated that the "testing language" found in

section 75.1001-1(b), specifically the phrase "calibration of
such devices shall include adjustments of all associated relays
to plus or minus 15 percent" is intended to refer to the setting
of the rectifier trip device. If this phrase were interpreted to
apply only to the calibration of the testing device, there would
be no restrictions as to settings of the rectifier, in the
absence of a safeguard. Since section 75.1001, makes no reference
to any required specific setting, he has always understood
section 75.1001-1 to require a setting of plus or minus 15
percent of the indicated value, namely, the load drop results. He
agreed that subsection (a) of section 75.1001-1, only requires
circuit interrupting devices, and does not mention setting
percentages or how the devices are to be tested or set,

and that subsection (b) establishes the calibration frequency and
the degree to which the circuit interrupting devices will be set
or activated (Tr. 320).

MSHA's Arguments

 MSHA asserts that the plain wording of section 314(b) of the

Act evidences Congress' intent that MSHA inspectors have broad
authority to issue safeguards relative to the transportation of
men and materials. MSHA points out that the instant case does not
involve a "mine-by-mine" criteria-based safeguard such as those
provided for in section 75.1403-2 through 75.1403-11, and that
the safeguard issued by Inspector Fetty is based on the "other
safeguards may be required" language found in section
75.1403-1(a). MSHA maintains that the only specific limitation
placed by Congress on the "other safeguards" language found in
section 314(b) is that they address hazards relating to the
transportation of men and materials, and that an inspector's use
of such safeguards are not restricted to only those
transportation hazards which are mine-unique--i.e., hazards which
generally do not exists at other mines.

 MSHA takes the position that Judge Weisberger's decision in

Secretary of Labor v. Rochester & Pittsburgh Coal Co., 11 FMSHRC
2007 (October 1989), invalidating a safeguard notice because it
was not mine specific and not promulgated pursuant to the
rulemaking provisions found in section 101 of the Act is
incorrect. In support of this conclusion, MSHA argues that
section 314(b) does not require MSHA to engage in notice and
comment rulemaking before issuing a safeguard of general
applicability. By choosing not to place safeguards under section
101 rulemaking, and allowing an individual inspector to issue
safeguards on a mine-by-mine basis, MSHA concludes that Congress
made a deliberate choice in permitting a more informal, and
flexible, approach for identifying and remedying mine
transportation hazards. MSHA further concludes that to hold that
safeguards which address specific hazards at a mine are invalid
solely because similar hazards exist at other mines would be to
preclude an inspector from issuing safeguards designed to remedy
transportation hazards, no matter how obvious or dangerous the
hazard, and regardless of the lack of care exercised by the
operator, if that hazard exists at other mines. MSHA believes
that had Congress intended this result, it would not have written
section 314(b) as broadly as it did and it would have placed the
"other safeguards" provision where Judge Weisberger did in
Rochester & Pittsburgh Coal Co., i.e., in section 101.

 Citing the Commission's decision in Southern Ohio Coal Co.,

7 FMSHRC 509, 512 (April 1985), MSHA asserts that at most, a
safeguard need only identify the nature of the hazard at which it
is directed and the conduct required of the operator to remedy
the hazard. In the instant case, MSHA believes that the

safeguard notice issued by Inspector Fetty meets these
requirements in that it states that the hazard presented concerns
arcing faults which will not deenergize the circuit, and that the
conduct required of the operator is that all circuit interrupting
devices be set at 75% of the bolted short circuit current
available. MSHA further points out that both Inspector Fetty and
Brown testified that the language found in the safeguard notice
would be readily understandable to a trained electrician who is
knowledgeable of trolley systems.

 MSHA concludes that the conditions cited by Inspector Brown

clearly fit within even the narrowest construction of the
language of the safeguard issued by Inspector Fetty. MSHA points
out that Mr. Brown cited the respondent because the short circuit
protection for the trolley system outby the #30 block of the 18
Left Section was not in compliance with the 75% safeguard, and he
obviously felt that the safeguard applied to this situation.
Further, Mr. Fetty reviewed Mr. Brown's citation and agreed that
the conditions cited violated the requirements of the safeguard.
Under these circumstances, MSHA concludes that the safeguard was
validly issued and in force when Mr. Brown issued his citation,
and that they were both valid.

 MSHA asserts that Mr. Fetty's safeguard addresses mine

hazards specific to the Martinka No. 1 Mine and is valid even
under the strict test set forth in Rochester & Pittsburgh Coal
Co., supra. In support of this conclusion, MSHA points to the
testimony of Mr. Fetty concerning the conditions which he
observed at the mine when he issued the safeguard. MSHA asserts
that these conditions include combustible head coal and wooden
structures above the trolley wires, with little or no clearance
between the trolley wire and mine roof (Tr. 234, 280), grounded
metal support arches which are in close proximity to both the
trolley wire and the combustible materials over the trolley wire,
and combustible materials and metal arches contacting the trolley
wire at times due to roof falls, sagging roof, and accidents
involving the track haulage equipment (Tr. 255, 276). Mr. Fetty
also noted "an ongoing problem" regarding the trolley system
short circuit protection (Tr. 231-232, 243, 276).

 MSHA further asserts that Mr. Fetty testified that the

Martinka No. 1 Mine is the only mine in his area that has the
strata and roof conditions it has (Tr. 280), including head coal
and wooden structures in close proximity above the trolley wire
(Tr. 280-281). MSHA also makes reference to Mr. Fetty's testimony
concerning "unique repeated and frequent violations and other
problems" with the trolley system which he does not have at other
mines, the fact that he issued the safeguard in part because of a
violation concerning a "burnt up line switch", (Tr. 248, 233,
276), and his statement that he did not find this same
combination of conditions in any other mine he had inspected (Tr.
233, 248, 276-277).

MSHA maintains that the disputed safeguard does not "impose

general requirements of a variety well-suited to all or nearly
all coal mines . . . ", and that the evidence and testimony in
this case clearly shows that only a small percentage of coal
mines in MSHA District 3 have a safeguard similar to the one
issued by Inspector Fetty. MSHA points out that only 11 of the
approximately 130-140 mines in the district are under a safeguard
notice similar to the one issued by Mr. Fetty, and that the
respondent's own witness (Cooper) admitted that there are "many,
man mines in this country that do not operate under a safeguard
of this type" (Tr. 318-319). MSHA also points out that only 11 of
the approximately 28 to 30 mines in the district which utilize
trolley wire systems have a safeguard which was issued on a
mine-by-mine basis due to specific conditions noted at those
mines (Tr. 177-178, 201, 238-240). MSHA points to the fact that
these safeguards were issued over a large period of time,
beginning in 1983, and ending in 1990, and that the wide
disparity in dates tends to indicate that each safeguard was
issued due to particular circumstances arising in each mine.
Finally, based on these numbers, MSHA concludes that it seems
clear that no MSHA district wide policy exists requiring such a
safeguard at all mines or even at mines with trolley systems.

 MSHA maintains that the contested safeguard is not preempted

by mandatory safety standard section 75.1001-1(b), because the
safeguard and the standard refer to different concerns. MSHA
asserts that the safeguard requires that the short circuit
protection on the trolley system be set at 75% of the maximum
short circuit current available, while the regulation requires
that the "calibration of such devices shall include adjustment of
all associated relays to á - 15 percent of the indicated value".
In short, MSHA concludes that the safeguard refers to the value
at which the thumb wheel on the rectifiers must be set (or the
indicated value), and that section 75.1001-1, refers to the
calibration of the rectifier or the amount of mechanical error
allowed at that setting. Since the calibration refers to the
amount of error present in the setting mechanism of the rectifier
and has no affect on what setting is required by the safeguard,
MSHA concludes that the regulation does not preempt the
safeguard.

 MSHA concludes that the uncontradicted testimony of

Inspector Brown establishes that the respondent violated the
requirements of the safeguard when it allowed the short circuit
protection in question to be set at 100 percent of the maximum
short circuit current available. MSHA further concludes that the
violation was significant and substantial within the guidelines
established in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
In support of this conclusion, MSHA asserts that a discrete
safety hazard was contributed to by the violation in that the
failure to properly set the short circuit protection presented a
fire hazard (Tr. 169), and that the uncontradicted testimony of

Inspectors Brown and Fetty show that a reasonable likelihood
existed that a fire would occur at the Martinka No. 1 Mine in the
course of normal mining operations if this violation was left
uncorrected, and that this fire would result in reasonably
serious injuries to at least one miner.

 MSHA points out that Inspector Brown testified that an

arcing fault was likely to occur along the trolley wire between
the wire, the metal roof support arches, and the metal wire
hangers in close proximity near the roof of the mine (Tr. 57, 58,
167, 169, 173-174), and that such an arcing fault would not
deenergize the circuit with the rectifiers set at 100% (Tr. 172,
175). MSHA further points out that Inspectors Brown and Fetty
testified that flame or arc from the fault would likely ignite
the combustible materials including wood and head coal on the
roof of the Martinka No. 1 Mine, because the combustible
materials are in close proximity to, and at times even touching,
the trolley wire (Tr. 50-51, 57-58, 167, 169, 175, 202, 234,
280). Both inspectors also testified that the mine fire resulting
from this ignition is reasonably likely to result in serious
injuries, including burns and smoke inhalation, to at least one
miner (Tr. 58, 168-169, 234; Exhibit P-9).

Respondent's Arguments

 During the course of the hearing, the respondent argued that

existing mandatory safety standard section 75.1001, adequately
covers the short circuit hazard situation which prompted Mr.
Fetty to issue the disputed 1983 safeguard notice. The respondent
took the position that since an existing mandatory standard has
already been duly promulgated after rule-making pursuant to the
Act, MSHA is without authority to refine or modify the existing
standard by issuing a safeguard. Respondent maintained that by
requiring it to adhere to the safeguard, MSHA is attempting to
hold it to a higher standard than that required by the existing
applicable standard. Respondent asserted that in order to hold it
to a higher standard of care and compliance than that required by
the existing standard, MSHA must do so through rulemaking, rather
than simply issuing a safeguard that effectively imposes a
greater burden than that required by the existing standard (Tr.
208-212).

 The respondent further argued that since it was in

compliance with the existing standard as duly promulgated by
MSHA's rulemakers, MSHA should be preempted from enforcing the
safeguard issued by Mr. Fetty. Respondent argued that it has been
adversely affected by the safeguard because it is forced to deal
with two different requirements for maintaining short circuit
protection on its track trolley system. The respondent pointed
out that its rectifier thumb wheel settings were correctly fixed
pursuant to section 75.1001, since the settings fell within the
plus or minus 15 percent requirement found in

section 75.1001-1(b), and that its track equipment would not
"drop out" at this higher short circuit protection level.
However, by lowering the level to 75% pursuant to the safeguard,
the respondent pointed out that the equipment would "drop out"
(Tr. 264-265).

 In its post-hearing brief, the respondent argues that the

safeguard is invalid because section 75.1403 does not
specifically provide for short circuit protection on the cited DC
trolley system; that section 75.1000, which is found in Subpart K
of MSHA's mandatory regulatory standards, specifically
incorporates "Trolley Wires and Trolley Feeder Wires"; that the
safeguard is preempted by section 75.1001-1(b), which
specifically addresses trolley wire overcurrent protection; and
that the safeguard does to meet the guidelines discussed by chief
Judge Merlin in his decision of March 29, 1982, in United States
Steel Mining Co., Inc. 4 FMSHRC 526, 530 (March 1982).

 The respondent asserts that it is undisputed that on the day

Mr. Brown issued his citation, the mine's previous load drop test
was in compliance with the plus or minus fifteen percent of the
indicated value according to section 75.1001-1(b), and that the
trip setting was set lower than the fault current, and set safely
(Tr. 165, 308). The respondent points out that although Inspector
Brown agreed that the respondent was in compliance with section
75.1001, he nonetheless believed that the respondent was not in
compliance with the 75 percent safeguard, and issued the citation
for this reason (Tr. 165). The respondent asserts that according
to Mr. Brown's interpretation, sections 75.1001 and 75.1001-1(b),
refer to "the calibration of the interrupting device", but that
in the event the short circuit is over 100 percent Mr. Brown
would cite a violation of section 75.1001-1(b), rather than the
safeguard. Respondent points out that although Mr. Brown is an
electrical inspector he does not hold an electrical engineering
degree and interprets the standard on the basis of his MSHA
training.

 The respondent further points out that its electrical

engineering expert Cooper is a magna cum laude graduate in
electrical engineering, has taught this subject, and has 15 years
of experience in electrical engineering. Mr. Cooper was of the
opinion that section 75.1001-1(b), specifically addresses the DC
trolley system short circuit protection, and he confirmed that
during his 15-year tenure with the respondent it has been a
standard practice to set the overcurrent protection at minus 15
percent below the indicated short circuit current values in
compliance with section 75.1001-1(b). Mr. Cooper also testified
that section 75.1001-1(b), establishes the acceptable rectifier
tripping ranges for the coal mining industry. Under the
circumstances, he believed that the additional restriction
imposed by the arbitrary 75 percent safeguard is invalid and
preempted by section 75.1001-1(b).

Respondent maintains that MSHA has failed to establish that

the alleged violation was significant and substantial in that
Inspectors Fetty and Brown, as corroborated by Mr. Cooper, both
testified that there were no reportable mine fires at the mine,
nor were there any injuries or accidents relating to any such
fires.

 Respondent further argues that there is no substantive

evidence in this case to establish that the Martinka No. 1 Mine
has any mine-specific or peculiar hazards relating to the
transportation of men and materials, and that the alleged
conditions described by Inspector Fetty were not mine-specific to
the mine and were present in other mines. The respondent does not
dispute the fact that section 314(b) of the Act grants the
Secretary a unique authority to create what are in effect
mandatory safety standards on a mine-by-mine basis without
resorting to otherwise required rulemaking procedures. However,
in the instant case, respondent takes the position that the
conditions which MSHA claims justified the issuance of the
contested safeguard in question are specifically addressed by
mandatory safety standard 75.1001 and 75.1001-1(b), and are not
mine specific. Respondent further argues that the safeguard is of
general application and was not issued to minimize specific mine
hazards connected with the transportation of men and material and
that the safeguard may not serve to hold it to a higher standard
than that required by section 75.1001-1(b).
Findings and Conclusions

 30 C.F.R.   75.1403 repeats section 314(b) of the Act and

provides as follows: "other safeguards adequate, in the judgment
of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall
be provided".

      Section 75.1403-1 provides:

      (a) Sections 75.1403-2 through 75.1403-11 set out the
      criteria by which an authorized representative of the
      Secretary will be guided in requiring other safeguards
      on a mine-by-mine basis under section 75.1403. Other
      safeguards may be required.

      (b) The authorized representative of the Secretary
      shall in writing advise the operator of a specific
      safeguard which is required pursuant to section 75.1403
      and shall fix a time in which the operator shall
      provide and thereafter maintain such safeguard. If the
      safeguard is not provided within the time fixed and if
      it is not maintained thereafter, a notice shall be
      issued to the operator pursuant to section 104 of the
      Act.

(c) Nothing in the sections in the section 75.1403 series in this
Subpart O precludes the issuance of a withdrawal order because of
imminent danger.

 The Commission has examined the safeguard provisions found

in section 314(b) of the Act and 30 C.F.R. 75.1403, and has noted
with approval that the broad language of this provision
"manifests a legislative purpose to guard against all hazards
attendant upon haulage and transportation in coal mining". Jim
Walters Resources, Inc., 7 FMSHRC 493, 496 (April 1985). Although
the mandatory safety standards found in Title 30, Code of Federal
Regulations, normally are developed and promulgated in accordance
with section 101 of the Mine Act and the rule-making provisions
contained in the Administrative Procedure Act, 5 U.S.C. 551 et
seq., the Commission has observed that section 314(b) of the Act
grants the Secretary extraordinary authority to essentially
create mandatory safety standards on a mine-by-mine basis without
resorting to the normal rule-making procedures, and it has
approved the issuance of safeguards without rule-making for a
particular mine, Southern Ohio Coal Co., 7 FMSHRC 509 (april
1985). However, the Commission went on to state as follows at 7
FMSHRC 512:

      * * * We believe that in order to effectuate its
      purpose properly, the exercise of this unusually broad
      grant of regulatory power must be bounded by a rule of
      interpretation more restrained than that accorded
      promulgated standards. Thus, we hold that a safeguard
      notice must identify with specificity the nature of the
      hazard at which it is directed and the conduct required
      of the operator to remedy such hazard. We further hold
      that in interpreting a safeguard a narrow construction
      of the terms of the safeguard and its intended reach is
      required. See, e.g., Consolidation Coal Co.., 2 FMSHRC
      2021, 2035 (July 1980) (ALJ); Jim Walter Resources, 1
      FMSHRC 1317, 1327-28 (September 1979) (ALJ). See also
      Secretary's Brief to the commission at 11 n. 1.
      ("Accordingly, while the language of safeguard notices
      should be narrowly construed, the Secretary's issuance
      authority must be interpreted broadly").

 It seems clear to me from several Commission decisions that

adequately written safeguards are mandatory standards or
requirements which are enforceable on a mine-by-mine basis. See:
Southern Ohio Coal Company, 7 FMSHRC 509 (April 1985); U.S. Steel
Mining Company, Inc., 4 FMSHRC 526, 529-530 (March 1982); Jim
Walter Resources, Inc., 6 FMSHRC 1815 (July 1984); Mathies Coal
Company, 4 FMSHRC 1111 (June 1982); Jim Walter Resources, Inc., 8
FMSHRC 220 (February 1986).

 Several Commission Judges have invalidated citations and the

supporting safeguard notices on the ground that the safeguards

were of a general, rather than mine-specific, application. See:
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2007 (October 1989)
(Judge Weisberger); Southern Ohio Coal Company, 10 FMSHRC 1564
(November 1988) (Judge Weisberger); Beth Energy Mines, Inc., 11
FMSHRC 942 (May 1989) (Judge Melick); Southern Ohio Coal Company,
11 FMSHRC 1991 (October 1989) (Judge Maurer); Mettiki Coal
Corporation, 12 FMSHRC 92 (January 1990) (Judge Fauver); U.S.
Steel Mining company, Inc., 4 FMSHRC 526 (March 1982) (Chief
Judge Merlin). The "mine specific" issue in these cases is now
pending on appeal before the Commission for decision in the
October 1989 Rochester & Pittsburgh Coal Co., and Southern Ohio
Coal Company, decisions rendered by Judge Weisberger and Judge
Maurer.

 In the case at hand, the respondent is charged with a

violation of section 75.1403, for failing to adhere to the
requirements of a safeguard notice issued by Inspector Fetty on
November 14, 1983. The safeguard states as follows:

      The automatic circuit interrupting device installed on
      the 300 volt DC trolley track haulage system between
      the track haulage switch and spad station 20 á 00 was
      not set to deenergize the trolley system during arcing
      fault. This mine has head coal incorporating
      combustible material and the construction of steel roof
      support structure.

      All protecting circuit interrupting devices installed
      on the 300 volt DC trolley haulage system shall be
      provided with devices to detect short circuits which
      are at least 75 percent of the minimum bolted short
      circuit current available as determined by periodic
      voltage current (load drop) test.

 The safeguard in question required that the automatic

circuit interrupting devices installed on the mine 300 volt DC
trolley track haulage system to be provided with devices to
detect and interrupt short circuits which are at least 75 percent
of the minimum bolted short circuit current available as
determined by periodic voltage/current (load drop) tests.
Inspector Brown testified that he conducted a load drop test on
the cited trolley system circuit during the course of his
electrical inspection on May 1, 1990, and found that the fault
protection on one of the rectifier relays was set "nearly at 100
percent setting or just a little bit below 100 percent setting".
Since this circuit protection setting exceeded the 75%
requirement mandated by Mr. Fetty's previously issued safeguard
notice, Mr. Brown issued the citation.

 Mr. Fetty testified that as a result of accidents and

fatalities associated with mine fires on trolley circuits,
district manager Ronald Keaton authorized the issuance of

safeguards, on a mine-by-mine basis, requiring short circuit
protection settings at 75% of the settings required by section
75.1001. Mr. Fetty confirmed that when he issued the 1983
safeguard he relied in part on certain information and knowledge
which he obtained at safety seminars and conferences concerning
trolley wire system accidents and fires which occurred in mines
in general. He believed that a way to prevent these incidents at
the Martinka Mine was to reduce the short circuit protection
requirements found in section 75.1001-1 to 75 percent (Tr. 250,
254). He conceded that the reports of prior accidents and fires
which he had reviewed concerned incidents which had taken place
"country wide" in mines other than the Martinka Mine, and he was
not aware of any reportable mine fires at the Martinka Mine (Tr.
254).

 Mr. Fetty confirmed that he also based the safeguard in part

on the "numerous problems at that mine" with respect to section
75.1001-1 violations associated with short circuit protection for
the trolley service. He stated that during electrical spot
inspections which he conducted in September and November, 1983,
he found that certain rectifier short circuit devices were set at
approximately 100% above the settings required by mandatory
safety standard 30 C.F.R. 75.1001-1, and after issuing two
section 104(a) citations for these violations, he concluded that
he was justified in issuing the safeguard requiring all future
rectifier settings to be set at 75 percent. When asked why he
issued a safeguard when non-compliance was already addressed by
promulgated standard section 75.1001-1, Mr. Fetty responded as
follows (Tr. 266):

      A. Because the people in our meetings, my supervisor,
      other people, prudent engineers, which I'm not, I'm not
      an engineer, they felt that this safety factor of 25
      percent would greatly be in aid and assistance to the
      health and safety of the miners and to prevent fires in
      the coal mines and that's why they came up and went
      with the 75 percent.

 Mr. Fetty identified the prior violations of section

75.1001-1, as the specific "mine conditions" which prompted him
to issue the safeguard (Tr. 232-234). However, he conceded that
any continued non-compliance problems with respect to section
75.1001-1, could have been addressed by issuing section 104(d)(1)
and (d)(2) citations and orders (Tr. 252). In my view, simply
because an inspector finds repeated violations of a mandatory
safety standard does not ipso facto justify or warrant the
issuance of a safeguard. If this were the case, an inspector
could effectively amend any existing trolley wire standard found
in Subpart K of the regulations simply by issuing a safeguard
based on one or more prior violations of these standards.

 Mr. Fetty also believed that an unplanned roof fall or a

piece of mining equipment contacting a trolley wire were
additional "hazards" which could have occurred in the area where
he issued a citation at the same time the safeguard was issued
(Tr. 234). He believed that these conditions could result in a
mine fire and that the likely source of the fire would be the head
coal or wooden boards located above the trolley wire to keep rock
and other debris from falling on the track haulage. However, he
indicated that these wooden head boards would only be at "some
locations" and not throughout the mine (Tr. 234).

 Mr. Fetty also alluded to violations of other standards,

such as section 75.516, which prohibits energized trolley wire
contacting combustible wooden materials, as examples of other
"problems" he found at the mine at the time he issued the
safeguard. Although conceding that these "problems" occurred at
other mines, he believed that "they repeated and occurred more
frequently in those days at Martinka Mine more than they did
anywhere else", and he felt justified in issuing the safeguard
(Tr. 247-248; 253).

 Mr. Fetty agreed that roof falls, dislodged roof arches, and

DC trolley accidents have occurred at other mines, and he
conceded that he issued the safeguard as a preventive measure to
preclude such occurrences at the Martinka Mine (Tr. 249-251;
255). However, I find no credible evidence to establish the
existence of any roof falls, dislodged roof arches, or trolley
accidents affecting the transportation of men or equipment at the
Martinka Mine at the time the safeguard was issued. Indeed, Mr.
Fetty confirmed that his prior knowledge of any accidents or
other such incidents pertained to mines other than the Martinka
Mine (Tr. 251).

 Mr. Fetty alluded to one non-reportable fire which he and

Inspector Brown found when a motorman caused some combustibles to
ignite. Mr. Brown confirmed that the fire occurred two or three
years ago, well after the safeguard was issued by Mr. Fetty, and
that it was quickly extinguished and was not considered a
reportable fire (Tr. 169, 176, 192). Mr. Brown alluded to an
additional "hearsay fire" at the mine, but no evidence was
forthcoming to confirm or document this event. Further, although
Mr. Brown indicated that he has observed 6 or 8 mine fires caused
by arcing faults in the past 20 years, only one occurred at the
Martinka Mine, and it was the non-reportable one which he and Mr.
Fetty found (Tr. 176). Mr. Brown also mentioned an unspecified
study which reported 22 accidents over a seven-year period which
resulted in 11 or 12 lost time injuries and fatalities, but he
confirmed that none of these incidents occurred at the Martinka
Mine (Tr. 169, 191).

 Mr. Brown stated that MSHA's policy manual guidelines

authorize the issuance of a safeguard if an inspector "should

find they have a problem at that mine that specifically addresses
the conditions at the mine that have resulted or could result in
a lost time accident" (Tr. 195). Mr. Brown confirmed that the
safeguard in question came from an MSHA report which concluded
that arcing faults could occur and not open any circuit
interrupting devices (Tr. 172). However, the report was not
further identified or offered in evidence, and Mr. Brown
"guessed" that Mr. Fetty issued the safeguard after reviewing
"the study that was done on the arcing faults" (Tr. 200).

 Respondent's maintenance superintendent Cooper, a magna cum

laude graduate electrical engineer, was of the opinion that the
safeguard issued by Mr. Fetty is invalid because section
75.1001-1(b), properly and appropriately establishes a range of
acceptable rectifier settings for overcurrent protection on the
mine trolley system (Tr. 306). Mr. Cooper further testified that
during his 15 years of employment with the respondent he was not
aware of any reportable mine fires or injuries associated with
the short circuit protection on the trolley system (Tr. 309). He
confirmed that the trolley wires are supported by insulated belt
hangers suspended from metal hangers which are attached to metal
pipes anchored into the mine roof (Tr. 313). He also confirmed
that as a general practice wooden posts or timbers are not used
as beams to support the roof (Tr. 314).

 Mr. Cooper further testified that the respondent's Meigs No.

31 and 2 mines, which are also in the same district as the
Martinka Mine, and which have underground trolley systems, have
never been subject to the kind of safeguard issue by Mr. Fetty
and that those mines are subject to the load drop test and short
circuit protection requirements found in section 75.1001-1 (Tr.
310-311).

 I agree with the aforementioned decisions of the Commission

judges who concluded that a safeguard notice must be minespecific
and based on hazardous conditions peculiar or unique to the mine
where it is issued and enforced. On the facts of this case, and
after careful review of Inspector Fetty's testimony, I cannot
conclude that MSHA has established that the safeguard issued by
Mr. Fetty was based on any mine conditions or hazards peculiar to
the Martinka No. 1 Mine, or conditions that could not have been
addressed or remedied by reliance on other existing standards. I
am convinced that Mr. Fetty issued the safeguard as a general
preventive measure to address possible arcing faults which may or
may not occur, rather than to address any unique or inherently
hazardous mine conditions, and Mr. Fetty tacitly conceded that
this was the case.

 It seems obvious to me that Mr. Fetty was also influenced by

the fact that the Martinka Mine had received citations or
violations of sections 75.1001-1, and section 75.516, the
standards applicable to trolley wire short circuit protection and

power wires contacting combustible materials, and he admitted
that this was the case when he identified these violations as the
specific "mine conditions" which prompted him to issue the
safeguard. However, as noted earlier, I do not believe that such
prior violations can justify the issuance of a safeguard. Those
particular standards address the hazardous conditions which
resulted in the issuance of the violations, and coupled with the
civil penalty assessments which followed, provided an adequate
enforcement tool for MSHA. In addition, as Mr. Fetty readily
conceded, an inspector may also resort to the use of section
104(d) citations and orders in appropriate cases to deal with a
recidivist mine operator.

 In addition to the existing requirements found in sections

75.516, and 75.1001.1, I take note of the fact that section
75.1003 requires the insulation and guarding of trolley wires at
certain mine locations, and that sections 75.1003-1 and
75.1003-2, require certain precautions and procedures to prevent
equipment being moved along haulageways from contacting trolley
wires, and to insure that proper short circuit protection exists
on the associated automatic circuit interrupting devices. I also
take note of the fact that MSHA's Section 75.1003 Policy Manual
guidelines require trolley wires to be guarded with wood,
plastic, or other nonductive material.

 Mandatory safety standard 30 C.F.R.   75.1001 states as

follows: "Trolley wires and trolley feeder wires shall be
provided with overcurrent protection".

 Mandatory safety standard 30 C.F.R.   75.1001-1, states in

relevant part as follows:

      (a) Automatic circuit interrupting devices that will
      deenergize the affected circuit upon occurrence of a
      short circuit at any point in the system will meet the
      requirements of   75.1001.

      (b) Automatic circuit interrupting devices described in
      paragraph (a) of this section shall be tested and
      calibrated at intervals not to exceed six months.
      Testing of such devices shall include passing the
      necessary amount of electric current through the device
      to cause activation. Calibration of such devices shall
      include adjustment of all associated relays to %9E15
      percent of the indicated value. An authorized
      representative of the Secretary may require additional
      testing or calibration of these devices.

 I find merit in the respondent's contention that existing

mandatory section 75.1001-1, adequately covers the short circuit
protection requirements for the mine trolley wire system. Based
on the testimony of Inspectors Brown and Fetty, and the credible

testimony of respondent's witness Cooper, I conclude and find
that MSHA's contention that section 75.1001-1 and the safeguard
issued by Mr. Fetty address different concerns is not well taken
and it is rejected. Based on the evidence and testimony of the
witnesses, I conclude that section 75.1001-1, addresses short
circuit protection for trolley wires, and copies of some of the
prior citations issued for violations of this section
specifically refer to improper "thumbwheel" settings for the
cited trolley wire circuit interrupting devices (Exhibit R-2B).

 The parties stipulated that at the 100 percent short circuit

protection setting found by Inspector Brown, the respondent was
in compliance with the plus or minus 15 percent requirement found
in section 75.1001-1(b), but that it was not in compliance with
the 75 percent safeguard issued by Inspector Fetty (Tr. 217). Mr.
Fetty confirmed that those mines which do not have the safeguard
are required to comply with sections 75.1001 and 75.1001-1, and
he indicated that as long as a mine is in compliance with these
standards there is no reason for any safeguard (Tr. 259, 267).

 MSHA's section 75.1001-1 Program Policy Manual guidelines,

July 1, 1988, at page 88 contain the following statement:

      The setting of an automatic circuit-interrupting device
      should not exceed 75 percent of the minimum available
      short-circuit current in the protected circuit to
      compensate for inaccuracies in the setting and the
      voltage drop across arcing faults. This safety factor
      is consistent with accepted engineering practice;
      however, in determining whether a violation of this
      Section exists, the safety factor shall not be used.

 MSHA's section 75.1001-1, policy guidelines language with

respect to the 75 percent setting of an automatic
circuit-interrupting device is practically identical to the
language found in Mr. Fetty's safeguard notice. Although the
statement goes on to state that the 75 percent setting is a
safety factor consistent with accepted engineering practice, I
find the admonition that such a safety factor should not be used
in determining whether a violation exists to be inconsistent, and
it remains unexplained.

 In view of the foregoing findings and conclusions, I

conclude and find that the safeguard notice issued by Mr. Fetty
was not based on any mine specific conditions or hazards, and
that any transportation hazards associated with the trolley wires
which may have existed in the mine were adequately covered by
existing mandatory safety standard sections 75.1001 and
75.1001-1. Accordingly, I further conclude and find that the
safeguard is not valid and IT IS VACATED. Since I have concluded
that the safeguard is invalid, the citation issued by Inspector
Brown,

which is based on the safeguard, cannot stand, and it too IS
VACATED.

                                 ORDER

 On the basis of the foregoing findings and conclusions, IT

IS ORDERED THAT:

      1. Section 104(a) "S&S Citation No. 3118460, March 14,
      1990, citing an alleged violation of 30 C.F.R.   75.508
      IS VACATED.

      2. Section 75.1403 safeguard Notice No. 2258189, issued
      on November 14, 1983, IS VACATED.

      3. Section 104(a) "S&S" Citation No. 3312067, May 1,
      1990, citing an alleged violation of 30 C.F.R.
      75.1403, IS VACATED.

      4. MSHA's proposed civil penalty assessments for the
      citations which have been vacated ARE DISMISSED.

                                         George A. Koutras
                                         Administrative Law Judge