<DOC>
[DOCID: f:w-95-254.wais]

 
BASIN RESOURCES INCORPORATED,
October 28, 1996
WEST 95-254


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268


                        October 28, 1996

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. WEST 95-254
               Petitioner     :    A.C. No. 05-02820-03735
                              :
          v.                  :    Docket No. WEST 95-255
                              :    A.C. No. 05-02820-03737
BASIN RESOURCES INCORPORATED, :
               Respondent     :    Golden Eagle Mine

                             DECISION

Appearances:  Kristi Floyd, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Andrew Volin, Esq., Sherman & Howard, Denver,
              Colorado, for Respondent.

Before:  Judge Manning

     These cases are before me on petitions for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Basin
Resources, Incorporated ("Basin Resources"), pursuant to sections
105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C.  815 and 820.  The petitions allege 11 violations of the
Secretary's safety regulations.  For the reasons set forth below,
I affirm four of the citations and vacate the remaining citations
and orders.

     A hearing was held in Denver, Colorado.  The parties
presented testimony and documentary evidence, and filed post-
hearing briefs.

                               I.

     DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

     At the time the citations and orders were issued, Basin
Resources operated the Golden Eagle Mine in Las Animas County,
Colorado.  The mine is now closed.  The mine was an underground
mine that used the longwall method to extract coal.

     Section 110(i) of the Mine Act, 30 U.S.C.  820(i), sets out
six criteria to be considered in determining appropriate civil
penalties.  I find that Basin Resources was issued 726 citations
and orders in the 24 months preceding January 3, 1995.  (Ex.
G-1).  I also find that Basin Resources was a medium-to-large
operator at the time the citation was issued.  The mine is no
longer operating and Basin Resources has been unable to sell the
mine.  Its unaudited balance sheet for April 30, 1996, shows that
shareholders' equity was minus about 23 million dollars and its
income statement for the year ending April 30, 1995, shows a net
loss of $325,000.  (Ex. R-A).  I have taken its financial condi-
tion into consideration in assessing penalties and I find that
the civil penalties assessed in this decision would not have
affected its ability to continue in business.  The citations and
orders were abated in good faith.  The Secretary has not alleged
that Basin Resources failed to timely abate the citations.

      A.   Tailgate for the Third Left Longwall Section

     On October 27, 1994, Inspector Cord Cristando of the
     Department of Labor's Mine Safety and Health Administration
     ("MSHA") inspected the third left longwall section of the
     mine.  He entered the longwall section through the headgate
     entries, inspected the longwall face and entered the
     tailgate entries just outby the last shield of the longwall
     near crosscut 16.  (Ex. R-T).  Inspector Cristando was
     accompanied by a union represen-tative and Tom Sciacca, the
     company representative. The section foreman on the afternoon
     shift was Frank Holley.

     When Inspector Cristando entered the tailgate entries, the
     conditions he observed led him to believe that the roof was
     not supported.  (Tr. 82-83).  He stated that the floor was
     heaving and that it appeared to him that the "tailgate was
     impassable, not travelable."  Id.  He testified that the
     tailgate entry was not "safe to be travelable."  (Tr. 85).
     He described the conditions, as follows:

          Bolts were hanging from the mine roof,
          bearing plates were not secured against the
          mine roof, cribs were rolled out, kicked out,
          not against the mine roof.  It was very
          obvious that [the roof] wasn't supported.  I
          could see that no miner would be able to get
          out underneath it in [the] condition it was
          [in].

(Tr. 86).  Inspector Cristando asked Mr. Holley how long the
conditions had existed.  Mr. Holley replied that it started on
the 26th at the end of his shift around 10 p.m.  (Tr. 87).

     Inspector Cristando decided that he wanted to look at the
conditions in the tailgate from the outby side.  He traveled back
through the longwall face, down the intake entries, and into the
tailgate entries from the returns.  He was accompanied by the
miners' representative and Mr. Sciacca.  Inspector Cristando was
able to travel about 30 feet inby crosscut 15 before the condi-
tions started to deteriorate.  (Tr. 87).  He had to zig-zag
between cribs and the rib.  (Tr. 92-93).  Inspector Cristando
believed that the longwall was putting pressure on the area so
that the conditions had become "considerably worse."  (Tr. 88).
Inspector Cristando testified that the conditions he observed in
the tailgate entry made the entry "a real risky area to be in."
(Tr. 95).  Inspector Cristando observed danger tape that had been
placed in the area "as a warning sign to let people know that
there was some unsafe top."  (Tr. 89).  He did not observe any
danger tape on the longwall side of the tailgate entry.

     As a result of these conditions, Inspector Cristando issued
three citations under section 104(a) of the Mine Act and three
orders of withdrawal under section 104(d)(2).  Each citation and
order is discussed below.

1.   Order No. 3849438

     Order No. 3849438 alleges a violation of 30 C.F.R.
 75.220(a)(1).[1]  The order states that the approved roof
control plan was not followed because the "longwall foreman
detected ground failure in the tailgate entry that prevented
travel out of the longwall tailgate and did not notify the
MSHA Field Office Supervisor" or "implement the longwall
tailgate travelway block- age plan."  In the order, the
inspector indicated that the alleged violation was
significant and substantial ("S&S") and was caused by Basin
Resources' unwarrantable failure to comply with the roof
control plan.  The applicable portion of the roof con- trol
plan states that Basin Resources must take certain steps
"[w]hen a ground failure is detected in the tailgate entry
that prevents travel out of the longwall tailgate ... ."
(Ex. G-4).  The Secretary proposed a penalty of $9,950.

     Basin Resources contends that a blockage did not exist in
the tailgate entry, that the conditions observed by the
inspector had just occurred, and that Mr. Holley did not
know about these conditions.  Accordingly, it maintains that
the Secretary did not establish a violation or that any
violation was the result of its unwarrantable failure.
Basin Resources states that Inspector Cristando's actions at
the mine were inconsistent with his testi- mony.  It argues
that Inspector Cristando did not determine that the area was
blocked until after he inspected the tailgate entry from the
outby side.  Basin Resources states that the conditions
could not have been "obvious" if it took Inspector Cristando
more than three hours to determine whether a violation
existed.  It also maintains that Inspector Cristando's
testimony was incon-sistent and should not be credited.

     Mr. Holley testified that at the time of Inspector
Cristando's inspection he did not believe that the tailgate
entry was blocked.  (Tr. 332-33).  He stated that there were
"roof falls off and on throughout the tailgate" and that the
longwall crews "would danger the roof falls off and reroute
[the] escape- way around the roof fall."  (Tr. 333).  Mr.
Holley testified that when Inspector Cristando asked him
about the condition of the tailgate, the inspector was
standing in the entry but that he was standing underneath
the longwall shields, three shields from the tailage end of
the longwall.  (Tr. 334; EX. R-T).  Mr. Holley does not deny
that the inspector asked him if he was aware of the
conditions in the tailgate and how long the conditions had
existed.  Id.  Mr. Holley stated that he replied that he was
aware of the condition because he believed that Inspector
Cristando was referring to the general roof conditions in
the ribboned-off areas, not to a blockage of the entire
tailgate entry.  (Tr. 335).  He testified that the inspector
did not use the terms "tailgate blockage"  or "blockage"
during their conversation.  Id.

     The fact that a tailgate entry is blocked does not in and of
itself establish a violation of the roof control plan.  As
stated above, the plan provides that Basin Resources must
take a number of steps when a "ground failure is detected in
the tailgate entry that prevents travel out of the longwall
tailgate."  (Ex. G-4) (emphasis added).  Thus, if Basin
Resources detects a ground failure that prevents travel out
of the longwall tailgate  entries, it must take the steps
set forth in the roof control plan.  See Blue Diamond Coal
Co., 12 FMSHRC 2565, 2567-71 (December 1990) (ALJ).

     In order to meet its burden of proof under the subject
provision of the roof control plan, the Secretary must
establish that a blockage existed and the mine operator knew
or should have known about the blockage and did not
implement the steps set forth in the roof control plan.  If
the Secretary cannot prove that the operator had actual
knowledge of the blockage, the Secretary can prove a
violation by showing that the operator was negligent in
failing to detect the blockage.  In this case, the Secretary
did not establish that Basin Resources detected a ground
failure of such a magnitude that it prevented travel out of
the longwall tailgate.  In other words, the Secretary did
not prove that Basin Resources knew or should have known
that the ground failure in the tailgate entry blocked the
entry in such a manner as to prevent such travel.

     The Secretary tried to establish actual knowledge of a
blockage through the conversation that occurred between
Inspector Cristando and Mr. Holley.  I credit Mr. Holley's
testimony that he was not aware of any blockage at the time
of the inspection.  Inspector Cristando walked out into the
tailgate entry and looked down the entry in the direction of
the returns.  Mr. Holley stayed underneath the longwall
shields and could not see down the subject entry because he
was about 15 feet from the end of the longwall machine.
According to Inspector Cristando's own testi- mony, he asked
Mr. Holley how long "the condition existed like this."  (Tr.
86-87).   The inspector testified that Mr. Holley replied
that "it started ... the night before, on the 26th."  Id.
Inspector Cristando did not ask Mr. Holley if he was aware
that the entry was blocked or that travel down the entry was
not possible.  Indeed, Inspector Cristando admitted on
cross-exami-nation that he was not sure that the tailgate
entry was blocked at the time of this conversation.  (Tr.
142-44).  Inspector Cristando's testimony establishes that
he concluded that the entry was blocked about three hours
later after he traveled to the outby side of the area and
observed the conditions from about 30 feet inby crosscut 15.
Id.  Yet, Inspector Cristando testi- fied on direct
examination that the blockage was "obvious" at the time he
first observed the area when he stepped out from under the
longwall shields.  Although I appreciate Inspector
Cristando's caution in not making a determination that the
entry was blocked until he observed the area from the other
side, I find that his inquiry of Mr. Holley was insufficient
to establish that Mr. Holley knew that the entry was
blocked.  Asking Mr. Holley whether he was aware of the
"condition" of the entry without describing what he meant or
inviting Mr. Holley to step out into the entry did not
establish knowledge of the blockage.

     I credit Mr. Holley's testimony that he did not
understand that Inspector Cristando was asking whether he
was aware that the entry was blocked.  Mr. Holley credibly
testified that he inter-preted Inspector Cristando's inquiry
to mean whether he was aware that the roof was taking weight
and that certain areas of the roof had fallen.  It was not
disputed that the area in the tail-gate entry immediately
outby the longwall takes a significant amount of weight
during the mining process as a result of frontal abutment
pressure and that the roof is often unstable in these areas.
It is clear that Mr. Holley was aware that the roof was not
stable, but the record does not establish that he had knowl-
edge that the entry was blocked so that miners could not
travel down the tailgate entry in the event of an emergency.

     In addition, the record does not establish that Basin
Resources was negligent in failing to detect any blockage.
First, there is a dispute as to whether the tailgate entry
was blocked on October 27.  Mr. Sciacca, who accompanied the
inspector, testified that the tailgate entry was not
blocked.

     (Tr. 380).  He stated that although "it was tight
through there, and there was sloughage through there, rib
sloughage," he did not think "there was ever a blockage."
Id.  Second, Mr. Holley took the necessary precautions to
make sure the longwall section was safe.  The record does
not contain sufficient evidence for me to make a
determination that he or anyone else was negligent in
failing to detect the alleged blockage.  Mr. Holley had last
been in the tailgate entry during his previous shift on
October 26 between 3 and 4 p.m. and he did not observe any
blockage at that time.  (Tr. 346).  He testified that Basin
Resources' procedure was to monitor the tailgate entry,
ribbon off areas where the roof had deteriorated, and
reroute the escapeway as necessary.  (Tr. 347-48).  During
his shift on October 26, two employees told him that there
had been a "cave" in the tailgate entry.  (Tr. 349-50; Ex.
G-5).  Mr. Holley looked at the entry and determined that
the conditions were the same as they had been at the start
of the shift.  (Tr. 350, 354).  He did not detect any
blockage.

     At the start of his shift on October 27, Mr. Holley
reviewed the preshift examination report that was made by
Larry Sandoval at the end of the previous shift.
(Tr. 338, 351). This report did not indicate that there
were any hazards in the tailgate Entry.  In addition, the
air readings taken along the longwall as shown on this report
were satisfactory in that they did not indicate a major roof
fall or blockage in the tailgate entry.  (Tr. 339, 351-52).
Although the air flow had varied during the shifts immediately
preceding Mr. Holley's shift on October 27, the measurements
did not show an interruption that he felt was consistent with
blockage.  (Tr. 149, 339, 351-52; Ex. Q, R).  Rich Cordova,
a fire boss, was in the tailgate entry at about
4 a.m. on October 27.  He observed that there was "some
blockage" in the entry but that miners could get around it
and that air was passing through the area.  (Ex. R-J, R-H,
dated 10/27 4 a.m.;Tr. 220-21, 301-03).  He stated that there
were no roof problems in areas where he traveled except between
some of the cribs that had been dangered off.  (Ex. R-J).

     Finally, during the period between the start of Mr. Holley's
shift on October 26 and the start of his shift on October
27, the longwall was producing coal and the longwall would
have retreated about 45 feet.  (Tr. 353).  The area observed
by Inspector Cristando on October 27 was different from that
observed by Mr. Holley on October 26.  Inspector Cristando
testified that he could see about 18 to 20 feet down the entry.
(Tr.408).  The Secretary is attempting to infer that because
Inspector Cristando saw a blockage on the evening of October
27, that blockage must have existed since at least 10 p.m.
the previous day because Mr. Holley said he was aware of roof
problems at that time. I cannot accept the Secretary's inference
for two reasons.First, Mr. Holley did not tell Inspector
Cristando that he was aware

     that the entry was blocked.  Second, given that one can
only see about 20 feet down the entry and the longwall
would haveadvanced about 40 feet, the area of the tailgate
that Mr.Holley observed on October 26 was a completely different
area.  Mr. Holley testi-fied that all areas of bad top had
been dangered off when he observed the entry on October 26.
Inspector Cristando testified that Basin Resources generally
does a good job of ribboning-off bad areas and that he
observed dangered-off areas on previous inspections along
the tailgate entry in places that had been mined through on
October 27.  (Tr. 154-55).  Thus, the Secretary cannot
dispute Mr. Holley's testimony that the hazardous areas were
dangered off on October 26.[2]  The Secretary's inference is
too speculative and is not supported by credible evidence;
the blockage could have occurred at any time during Mr.
Holley's October 27 shift.[3]

     Based on this evidence and the record as a whole, I
conclude that the Secretary did not establish that the alleged
blockage existed prior to the time that Inspector Cristando
discovered it. I also find that Mr. Holley did not have any
knowledge of this blockage prior to the time Inspector
Cristando discovered it.  In addition, I find that the
Secretary did not establish that Basin Resources was
negligent in not detecting the blockage at an earlier time.

2. Order No. 3849440

     Order No. 3849440 alleges a violation of 30 C.F.R.
 75.360(b)(3).[4]  The order states that an inadequate
preshift examination was performed for the oncoming
afternoon shift on

     October 26, 1994.  The order states that the longwall
foreman told the inspector that "he observed the tailgate
blockage, but took no action to correct the hazardous
condition."  The order alleges that inadequate preshift
examinations were conducted in all of the subsequent shifts
until the condition was detected by the inspector.  In the
order, the inspector indicated that the alleged violation
was S&S and was caused by Basin Resources' unwarrantable
failure to comply with the safety standard.  The Secretary
proposed a penalty of $9,500.

     As I held with respect to Order No. 3849438 above, the
Secretary did not establish that the blockage existed prior
to the time that Inspector Cristando discovered it.  In
addition, the assertion in the order that Mr. Holley told
Inspector Cristando that he observed the tailgate blockage
is not supported by the evidence.  Inspector Cristando asked
whether Mr. Holley was aware of the conditions in the
tailgate entry without pro-viding any explanation of what he
was referring to or asking Mr. Holley to observe the conditions
firsthand.  Such a conver-sation is too limited and unfocused to
show that Mr. Holley had knowledge of the blockage.

     The basis for the Secretary's contention that the preshift
examinations were inadequate is the brief conversation
between Inspector Cristando and Mr. Holley and the
assumption that the blockage must have existed for some
period of time.  Neither the conversation nor the
Secretary's assumptions establish a viola-tion.  It could be
argued that the preshift examination for the oncoming
afternoon shift of October 27 must have been inadequate in
any event because Inspector Cristando discovered the
condition at 7:55 p.m. and the shift started at 3 p.m.
While it is pos-sible the hazardous conditions existed at
the time of this pre-shift, there is no proof that such
conditions existed at that time.  Roof conditions in the
tailgate can deteriorate rapidly.

3. Citation No. 3848272

     Citation No. 3848272 alleges a violation of 30 C.F.R.
 75.360(g).[5]  The citation states that a hazardous
condition was observed on the afternoon shift of October 26
and on subsequent shifts, but no record of the hazard was
entered into the book provided for that purpose.  The
alleged hazard was "roof failure--unsafe roof in the
tailgate of the longwall."   In the citation, the inspector
indicated that the alleged violation was S&S and that Basin
Resources' negligence was moderate.  The Secretary proposed
a penalty of $1,298.

     Although the wording of the citation is different from the
order, they both relate to the same conditions and Inspector
Cristando's conversation with Mr. Holley.  Based on his
brief conversation, Inspector Cristando concluded that the
blockage had existed for at least 24 hours and that this
hazardous condition was not recorded in the preshift
examination book.  As stated above, on October 26, Mr.
Holley was aware that there were areas in the tailgate entry
where the roof was not supported and that these areas were
ribboned off with danger tape to keep miners out of those
areas.  The individual conducting the preshift examina- tion
is not required to travel the length of the tailgate
entry.[6]  Rather, the examiner measures air flow, checks
for methane, and looks for hazardous conditions.  During
this examination, the examiner is required to enter the
tailgate entry just off the longwall face.  There is
insufficient evidence to show that the examiners entered
this area, saw the blockage or areas of unsafe roof that
were not dangered off, and failed to record the hazard.  In
addition, the longwall was in production during this period,
so the area in the tailgate entry that the preshift
examiners observed would have been different from that
observed by Inspector Cristando.

4. Order No. 3849138

     Order No. 3849138 alleges a violation of 30 C.F.R.
 75.362(a)(1).[7]  The order states that an inadequate on-
shift examination was performed during the afternoon shift
on October 26, 1994.  The order states that the longwall
foreman told the inspector that "he observed the tailgate
blockage or roof fail-ure, but took no corrective action to
correct the condition."  The order alleges that inadequate
on-shift examinations were conducted in all of the
subsequent shifts before the afternoon shift of October 27.
In the order, the inspector indicated that the alleged
violation was S&S and was caused by Basin Resources'
unwarrantable failure to comply with the safety standard.
The Secretary proposed a penalty of $9,500.

     As stated above, the Secretary did not establish that the
blockage existed prior to the time that Inspector Cristando
discovered it or that Mr. Holley knew of the blockage on
October 26.  There is no dispute that there were areas that had
been dangered off in the tailgate entry.  Some of these areas had
been mined through by the time Inspector Cristando examined
the area on the afternoon shift of October 27.  The areas of
the tailgate inspected by Inspector Cristando on that shift
were not the same areas that the on-shift examiners observed
on preceding shifts because the longwall had advanced.
There is insufficient proof that the cited hazardous
conditions existed in those areas at the time of the on-
shift examinations.  Basin Resources was not required to
have completed the on-shift exam for the afternoon shift of
October 27 at the time of Inspector Cristando's inspection.
(Tr. 120).

5. Citation No. 3848271

     Citation No. 3848271 alleges a violation of 30 C.F.R.
 75.362(g).[8]  The citation states that a hazardous
condition was observed on the afternoon shift of October 26,
and on subsequent shifts but no record of the hazard was
entered into the book provided for that purpose.  The
alleged hazard was "roof failure--unsafe roof" in the
tailgate of the longwall.  In the citation, the inspector
indicated that the alleged violation was S&S and that Basin
Resources' negligence was moderate.  The Secretary proposed
a penalty of $1,298.

     Based on a brief and confused conversation with
Mr. Holley, Inspector Cristando concluded that the blockage
in the tailgate had existed for at least 24 hours and that this
hazardous condi-tion was not recorded in the on-shift
examination book.  For the reasons stated above, the
Secretary did not meet his burden of proof.  The individual
conducting the on-shift examination is not required to
travel the length of the tailgate entry.  The exam-iner
measures air flow, checks for methane, and looks for haz-
ardous conditions.  During this examination, the examiner is
required to enter the tailgate entry just off the longwall
face.  There is insufficient evidence to show that the
examiners entered this area, saw the blockage or areas of
unsafe roof that were not dangered off, and failed to record
the hazard.  The longwall was in production during this
period, so the area in the tailgate entry that the on-shift
examiners observed was different from that observed by
Inspector Cristando.

6. Citation No. 3849439

     Citation No. 3849439 alleges a violation of 30 C.F.R.
 75.202(a).[9]  The citation states that the mine roof in
the tailgate entry between crosscuts 15 and 16 was not
supported or controlled to protect persons from hazards of
falling roof.  The citation states:

          The fully grouted 8 ft roof bolt bearing
          plates were 2 to 3 feet from the existing
          mine roof.  The supplemental supports, 3 X 3
          ft cribs on five foot centers were knocked
          out in places due to the roof deterioration,
          rib sloughage, and floor heaving for a
          distance of approximately 60 ft.

In the citation, the inspector indicated that the alleged
violation was S&S and that Basin Resources' negligence was
moderate.  The Secretary proposed a penalty of $506.

     This citation is based on conditions observed by Inspector
Cristando during his inspection.  It is not based on speculation
as to what the conditions were like 24 hours earlier in a area
that had been mined through and it was not based on a brief con-
versation with Mr. Holley.  At the time Inspector Cristando
observed the conditions, some of the areas with bad roof were
dangered off, but some areas were not.  There was no evidence
that at any time during the existence of the dangerous roof con-
ditions any miner worked or traveled in the cited area.  Nor did
the job duties generally require miners to enter the affected
area.

     In Cyprus Empire Corp., 12 FMSHRC 911, 917 (May 1990), the
Commission held that when a mine operator dangers-off an area of
bad roof in a tailgate entry and there is no showing that miners
worked, traveled or were required to enter this area, a violation
of this safety standard is not established.  I find that the Com-
mission's holding is not applicable to the facts of this case.
The entire entry was not dangered-off, only some areas were.  The
inspector observed areas of dangerous roof that were not dan-
gered-off.  Miners were required to enter the area a few times a
week to check rock dust lines.  (Tr. 358-59).  In addition, the
area was a designated escapeway.  Thus, I find that the Secretary
established a violation.

     I also find that the Secretary established that the viola-
tion was S&S.  The four elements of the Mathies test were met.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).  The third
element, whether there was a reasonable likelihood that the
hazard contributed to will result in an injury, presents the
closest question.  It is likely that the area of bad roof would
have been mined through assuming continued mining operations.
Nevertheless, it is not disputed that miners had to enter the
area at least a few times a week.  In addition, an emergency
could occur at any time requiring the evacuation of miners.
Although the tailgate entry was not the primary escapeway, it was
a designated escapeway.  Accordingly, I find that the Secretary
established that it was reasonably likely that the hazard con-
tributed to would result in an injury.  Based on the penalty
criteria, I assess a civil penalty of $506 for this violation.

B.   Other Citations and Orders

1. Order No. 3848330

The Secretary agreed to vacate this order at the hearing.

2. Citation No. 3849271

     Citation No. 3849271 alleges a violation of 30 C.F.R.
 75.1722(a).[10]  The citation states that a guard was not
provided for the head roller of the F.C.T. continuous
haulage machine.  The citation states that it was about 7
inches from the edge of the machine to the pinch point and
that the area of exposure was about 30 inches.  In the
citation, the inspector indicated that the alleged violation
was S&S and that Basin Resources' negligence was moderate.
The Secretary proposed a penalty of $506.

     I find that the Secretary established a violation.  There
is no dispute that the conditions described by Inspector Melvin
Shiveley existed.  Basin Resources argues that the evidence
shows that the equipment was new and was delivered to the
mine in the same condition.  It further maintains that an
MSHA supervisor inspected the equipment and did not issue a
citation for failing to guard this area.  Finally, it argues
that the equipment was operated by remote control and there
were no controls near the

     unguarded area.  I find that these factors relate to the
gravity of the violation and the negligence of the operator
and not to the fact of violation.

     Inspector Shiveley testified that the unguarded head
roller was about 36 inches from the ground and that the operator
and a miner helper would normally work in the area.  (Tr.
25, 52).  In addition, he testified that the unguarded area
was adjacent to a travelway.  (Tr. 26).  Inspector Shiveley
testified that he believes that if the condition were left
unabated someone could get clothing or tools caught in the
pinch point.  (Tr. 27).  He stated that a serious injury
would result in such an event.  Based on this evidence, I
find that the Secretary established that the violation was
S&S.  There was a reasonable likelihood that the hazard
contributed to would result in an injury of a reasonably
serious nature.

     Basin Resources produced evidence that MSHA Field Office
Supervisor Larry Ramey inspected this equipment a few days
before this inspection and did not issue any citations.
(Tr. 209-15; Ex. R-B).  I credit this evidence and find that
Basin Resources' negligence was low with respect to this
citation.  Based on the penalty criteria, I assess a civil
penalty of $150 for this violation.

3. Citation No. 3849319

     Citation No. 3849319 alleges a violation of 30 C.F.R.
 75.511.[11]  The citation states that electrical work was
being performed on an Eimco roof-bolter lighting system and
the bolter was not locked or tagged out at the power center.
In the cita-tion, the inspector indicated that the alleged
violation was S&S and that Basin Resources' negligence was
moderate.  The Secretary proposed a penalty of $506.

     I find that the Secretary established a violation.  There is
no dispute that the roof bolter was not locked out or tagged
out.  Instead, the miners turned off the bolter at the
circuit breaker and one of them stayed at the breaker to
make sure that no one energized it.  (Tr. 215-16).  The
miners were changing a light bulb on the breaker, which on
this particular piece of equipment requires that the wires
be exposed.  (Tr. 32).

     Basin Resources contends that this violation was of a tech-
nical nature and was not S&S.  It states that the power was
disconnected at the breaker, the breaker was being watched
by a miner, and it was not reasonably likely that anyone
would be injured.  Although this is a close case, I find
that the Sec-retary established that the violation was S&S.
The purpose of the safety standard is to prevent electrical
components from becoming energized when they are being
worked on.  In this case, electrical contacts on wires were
exposed when the light bulb was changed.  Assuming that this
practice continued, it is reasonably likely that the hazard
contributed to would result in an injury.  The miner
"guarding" the circuit breaker could become distracted or he
could be called to attend to other duties.  In addition, it
is possible for the breaker to malfunction and not de-
energize the circuit.  An injury would be of a reasonably
serious nature.  I find that Basin Resources' negligence was
moderate.  Based on the penalty criteria, I assess a civil
penalty of $250 for this violation.

4. Citation No. 3849284

     Citation No. 3849284 alleges a violation of 30 C.F.R.
 75.202(a).[12]  The citation states that the "mine roof
was not supported or controlled inby the main roof slope in
that wooden planking was cracked and loose above the track
entry."  The citation alleges that loose roof material was
observed on the wooden planks and that the area is the main
travelway into and out of the mine.  In the citation, the
inspector indicated that the alleged violation was S&S and
that Basin Resources' negli-gence was moderate.  The
Secretary proposed a penalty of $595.

     The parties offered conflicting testimony about the cited
conditions.  Inspector Shiveley testified that planking had
been installed on steel beams along the roof to prevent
loose material from falling into the travelway.  He
testified that the planking was "old, deteriorated, and
cracked."  (Tr. 40).  He stated that some had broken and he
could see the rubble sitting on them, sticking out of the
cracks.  (Tr. 40, 58).  He further said that the planks were
"bowed down" because of the weight of the rock.   The planks
were not broken, they were just bowed and cracked.
(Tr. 60).  He believed that this rubble could fall and
injure

     someone.  (Tr. 40).  Inspector Shiveley did not know if
there were roof bolts in the area.  (Tr. 57).  He estimated that
the planks were three inches thick and about ten inches
wide.  (Tr. 59).  There was a small opening between each
plank through which Inspector Shiveley could see the loose
rubble.  (Tr. 77).

     Mr. Sciacca testified that the roof was supported by roof
bolts in the area cited by Inspector Shiveley.  (Tr. 382).
He stated that the roof was also supported by steel I-beams.
The I-beams were on four-foot centers and each was supported by
two timbers.  (Tr. 382; Ex. R-U).  Mr. Sciacca stated that
the planks were bowed and cracked a little, but not enough
to present a safety problem.  (Tr. 384).  He testified that
the cracks in the planks were not serious enough to allow
loose material to fall into the travelway.  The planks were
installed "skin-to-skin" so
there were no gaps between the planks.  Id.  He stated that
when the citation was abated, the workers were unable to rip
the planks down, "[y]ou couldn't get them out of there."
Id.  To abate the citation, Basin Resources installed new
planks under the existing ones.

     A violation has not been established.  I credit the tes-
timony of Mr. Sciacca that the planks were not sufficiently
cracked to present a hazard.  In order for rock or other
debris to fall, the planks would have to break completely
through or a gap in the planks would have to be created.  I
also credit his testimony that the planks were closely
abutted and that the roof was bolted.  He was present when
the citation was abated and the workers were unable to force
the planks down.  I find that the condition of the planks
did not present a hazard of falling material.

5. Citation No. 3849285

     Citation No. 3849285 also alleges a violation of 30 C.F.R.
 75.202(a).  The citation states that a loose coal rib was
present in the third north mains that was not supported or
con-trolled.  It states that the loose rib measured three by
four feet and was six to eight inches thick.  The rib was at
a parking area for the crew.  In the citation, the inspector
indicated that the alleged violation was S&S and that Basin
Resources' negli-gence was moderate.  The Secretary proposed
a penalty of $506.

     Basin Resources does not dispute the fact of violation or
that the violation was S&S.  It argues that the it was only
slightly negligent and that the penalty is too high.  It
states that the loose rib was obvious and that a scaling bar
was nearby.  Basin Resources states that the miners on the
crew "chose not to

     take responsibility to correct it."  (B.R. Br. at 18).  It
offered evidence that miners sometimes failed to correct
hazardous conditions and called MSHA instead.  It maintains
that the negligence of the miners should not be imputed to Basin
Resources.

     It is impossible for me to evaluate Basin Resources' negli-
gence defense.  There was no showing that miners
purposefully failed to support or take down the loose rib in
this instance.  Accordingly, I find that the violation was
caused by Basin Resources' moderate negligence.  Based on
the penalty criteria,
I assess a civil penalty of $250 for this violation.

                               II.

                    CIVIL PENALTY ASSESSMENTS

Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C.  820(i), I assess the following civil penalties as
dis-cussed above:

Citation or  Assessed

Order No. 30 C.F.R.   Penalty

WEST 95-254

3848330 75.370(a)(1)   vacated
3849271 75.1722(a)     $150.00
3849319 75.511         $250.00

WEST 95-255

3848271 75.362(g)      vacated
3848272 75.360(g)      vacated
3849138 75.362(a)(1)   vacated
3849438 75.220(a)(1)   vacated
3849439 75.202(a)      $506.00
3849440 75.360(b)(3)   vacated
3849284 75.202(a)      vacated
3849285 75.202(a)      $250.00

                              III.

                              ORDER

Accordingly, the citations and orders listed above are
VACATED or AFFIRMED as indicated above, and Basin Resources,
Inc. is ORDERED TO PAY the Secretary of Labor the sum of
$1,156.00 within 40 days of the date of this decision.


                                Richard W. Manning
                                Administrative Law Judge


Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street,
Suite 3000, Denver, CO 80202
(Certified Mail)

RWM


**FOOTNOTES**

   As  pertinent  here,  the  safety  standard requires each mine
operator to follow the roof control plan  approved  by  the  MSHA
District Manager.

   In  his brief, the Secretary argues that Inspector Cristando's
inference  is  supported  by  information  he obtained from other
production  foremen,  the  preshift and on-shift  examiners,  and
miners working in the area.  I find that the record on this issue
does  not  corroborate  the  inspector's  inference  because  the
evidence on this issue is ambiguous.

  Based on the testimony of Inspector  Cristando, I find that the
tailgate entries were blocked at the time of his inspection so as
to  prevent  safe  travel out of the longwall  tailgate  entries.
Accordingly, I reject Mr. Sciacca's opinion to the contrary.

   As  pertinent  here,  the  safety  standard  requires  that  a
certified person conduct  a  preshift  examination  for hazardous
conditions in each working section.

  As pertinent here, the safety standard requires that  a  record
of  hazardous conditions and their location found by the preshift
examiner be recorded in a book kept for such purposes.

  A certified person is required to examine the tailgate entry in
its entirety  for  hazardous  conditions  on  a weekly basis.  30
C.F.R.    364(b)(3).  There is no showing that the  most  recent
weekly examination  was  not completed because the tailgate entry
was blocked.

   As  pertinent  here,  the  safety  standard  requires  that  a
certified person conduct an on-shift  examination  for  hazardous
conditions in each working section.

   As pertinent here, the safety standard requires that a  record
of hazardous  conditions and their location found by the on-shift
examiner be recorded in a book kept for such purposes.

  As relevant here,  this  safety standard requires that the roof
of areas where persons work  or  travel be supported or otherwise
controlled to protect persons from  hazards  related  to falls of
roof.

   The relevant part of the safety standard provides that  gears,
sprockets, chains, pulleys, flywheels, and similar exposed moving
machine  parts which may be contacted by and injure persons shall
be guarded.

  The relevant  part  of  the  safety  standard  provides that no
electrical  work  shall  be  performed  on  equipment  until  the
disconnecting device has been locked and suitably tagged  by  the
persons who will perform such work.

   As  relevant here, this safety standard requires that the roof
of areas  where  persons work or travel be supported or otherwise
controlled to protect  persons  from  hazards related to falls of
roof.

 KRISTI FLOYD ESQ OFFICE OF THE SOLICITOR U S DEPARTMENT OF LABOR
1999 BROADWAY #1600 DENVER CO 80202-5716 ANDREW VOLIN ESQ
SHERMAN & HOWARD 633 17TH ST #3000 DENVER CO 80202