<DOC>
[DOCID: f:pn2000181.wais]
 
RAG CUMBERLAND RESOURCES, LP
November 28, 2001
PENN 2000-181-R
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                        November 28, 2001
RAG CUMBERLAND RESOURCES, LP,  : CONTEST PROCEEDINGS
               Contestant      :
          v.                   : Docket No. PENN 2000-181-R
                               : Citation No. 3657290; 7/6/2000
SECRETARY OF LABOR,            :
     MINE SAFETY AND HEALTH    : Docket No. PENN 2000-182-R
     ADMINISTRATION (MSHA),    : Citation No. 3657291; 7/6/2000
               Respondent      :
                               : Docket No. PENN 2000-183-R
                               : Order No. 7076284; 7/6/2000
                               :
                               : Docket No. PENN 2000-207-R
                               : Order No. 2840951; 8/2/2000
                               :
                               : Docket No. PENN 2000-208-R
                               : Order No. 2840952; 8/2/2000
                               :
                               : Docket No. PENN 2000-209-R
                               :   Order No. 3657297; 7/20/2000
                               :
                               : Docket No. PENN 2000-210-R
                               : Order No. 7078294; 7/20/2000
                               :
                               : Cumberland Mine
                               : Mine ID 36-05018
                               :
SECRETARY OF LABOR,            : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH      :
   ADMINISTRATION (MSHA),      : Docket No. PENN 2001-63-A
               Petitioner      : A.C. No. 36-05018-04200
          v.                   :
                               :
RAG CUMBERLAND RESOURCES LP,   :
               Respondent      : Cumberland Mine
                             DECISION
Appearances: R.  Henry  Moore,  Esq.,  Buchanan Ingersoll,
             Pittsburgh, Pennsylvania, for the Contestant/
             Respondent;
             Susan M. Jordan, Esq., Donald K. Neely, Esq.,
             Office of the Solicitor, U.S. Department of Labor,
             Philadelphia, Pennsylvania, for the Respondent/
             Petitioner.
Before: Judge Feldman
     These  consolidated contest and  civil  penalty  proceedings
arise under the  Federal  Mine  Safety and Health Act of 1977, 30
U.S.C.  801 et seq. (1994) ("Mine  Act").   These  matters  also
concern a compensation case in Docket No. PENN-2000-204-C brought
pursuant  to  section  111,  30  U.S.C.  821, by the United Mine
Workers  of  America  (UMWA)  on  behalf  of  its  members.   The
compensation case was stayed on January  30,  2001,  pending  the
outcome  of  these  proceedings.   The  consolidated  hearing was
conducted  in   Fairmont,  West  Virginia, in two sessions,  from
April 3 through April 6, 2001, and  from July 24 through July 25,
2001.   After  the  hearing  recess in April  2001,  the  parties
resolved several of the contested citations.
     On  June  26, 2001, I approved  a  settlement  agreement  in
Docket No. PENN  2001-94  wherein  Rag  Cumberland  Resources  LP
(Cumberland)  agreed  to pay a reduced civil penalty for Citation
Nos. 2840951 and 2840952.   These  citations  are the subjects of
the contests in Docket Nos. PENN 2000-207-R and  PENN 2000-208-R.
Consequently,  Cumberland has moved to withdraw its  contests  in
Docket Nos. PENN 2000- 207-R and PENN 2000-208-R.
     The Secretary moved to vacate Order Nos. 3657294 and 3657297
on March 29 and July 2, 2001, respectively. These orders are the
subjects of the contests in Docket Nos. PENN 2000-209-R and Penn
2000-210-R. Consequently, Cumberland has moved to withdraw its 
contests in Docket  Nos.  PENN  2000- 209-R and PENN 2000-210-R.
     The remaining contested citations and order  in  Docket Nos.
PENN 200-181-R, PENN  2000-182-R  and  PENN 200-183-R, consist 
of 104(a) Citation No. 3657290 and related 107(a) imminent  
danger Order No. 7076284, and, 104(d)(1) Citation No. 3657291.  
Docket No. PENN 2001-63-A is the civil penalty case dealing  
with  Citation Nos. 3657290, 3657291 and Order No. 7076284.[1]  
These citations concern bleeder conditions at the Cumberland 
Mine during the afternoon  shift on July 5, 2000. The imminent 
danger order withdrew mine personnel who went into the bleeder 
entries during the early morning hours on July 6, 2000, to make
ventilation changes. The specific area of the bleeder system 
that is in issue  is  the eastern perimeter located behind the 
gob that remained after a  number of longwall panels had been
mined.  The parties have filed thorough  post  hearing briefs
and reply briefs that have been considered in the disposition 
of these matters.
     I.  Statement of the Case
     The explosive methane range  of an air-methane mixture is 5%
to  15%.   As  a  general  proposition,  The  Secretary's  safety
regulations  require  that  methane   concentrations  in  bleeder
entries shall not exceed 2%.[2]  These  matters concern continued
longwall operations during the afternoon  shift  on July 5, 2000,
after several 3.6% methane readings were obtained at the
surface of the No. 1 exhaust fan shaft that was used to ventilate
the eastern perimeter bleeders. 104(a) Citation No. 3657290 
alleges a significant and substantial (S&S)  violation  of  the  
provisions of 30 C.F.R.  75.334(b)(1) that require bleeder 
systems to dilute and move methane  from  worked-out  areas away 
from active workings. 104(d)(1)  Citation  No.  3657291 cites an
S&S  violation  of  30 C.F.R.   75.363(a)  that  is  attributed 
to Cumberland's unwarrantable failure. Section 75.363(a) requires 
all personnel, except those specified  in  section 104(c) of the 
Mine Act, 30 U.S.C.  814(c), to be withdrawn from mine areas 
where  there are hazardous  conditions  that  pose  an  imminent  
danger. Section 104(c) of the Mine Act, however, permits persons 
designated by the  mine operator  to  correct  conditions  that  
constitute  an imminent danger.
     As noted, the explosive range of methane is a 5% to 15% air-
methane  mixture.   Concentrations  below  5%  are  not explosive
because they lack adequate methane.  Concentrations above 15% are
not  explosive because they lack adequate oxygen.  The  Secretary
asserts  the  3.6%  methane  reading  at the surface of the No. 1
shaft  was  indicative of potential explosive  concentrations  of
methane in the travelable bleeders that were not being adequately
ventilated away  from the working face.  Cumberland contends that
the 3.6% methane at the shaft was representative of approximately
3.6% methane in the  travelable  bleeder  entries,  and, that the
methane  in  the bleeder was being carried away from the  working
areas.
     Significantly,  despite repeatedly obtaining abnormally high
methane readings of 3.6%  at  the  surface  of the No. 1 shaft as
early as 3:30 p.m. on July 5, 2000, Cumberland  continued  normal
longwall operations until midnight without determining if methane
concentrations in the underground bleeder were approaching the 5%
explosive  range.   It  would have taken several hours for a mine
examiner to travel the eastern  perimeter  bleeder  entry to take
the necessary methane concentration readings.  (Tr. 490-91).
     The  dispositive  question  is  not, as Cumberland suggests,
whether the Secretary has   met   her  burden  of  demonstrating 
methane bleeder concentrations were in the explosive range on 
July  5. (C. Reply Br.  at  2). Although  the  burden  of  proof  
rests with the Secretary,  the  Secretary's  prima facie burden 
of demonstrating the cited violations occurred is  satisfied  by 
establishing that there   was   a  malfunction  in  the  bleeder 
system. Having established a malfunction,  the  focus  shifts to 
whether 3.6% methane  exiting  from  the bleeder at the surface 
should have alerted  a  reasonably  prudent person that  
underground  bleeder readings were required to  ensure  that 
methane  adequately  was being diluted and carried away from 
active workings.
     As  discussed below, the Secretary, relying on the bleeder's
ventilation  design,  as  well as comparisons of previous methane
readings at the shaft and in the travelable bleeder, has provided
a reasonable basis for concluding  that  the 3.6% methane exiting
the bleeder at the surface was indicative  of potential explosive
levels   of   methane   in  the  bleeder  below.   In   contrast,
Cumberland's assertion that  the  3.6%  readings at the No. 1 fan
were not indicative of explosive levels of methane in the bleeder
entries is conjecture that could have been resolved if Cumberland
had taken underground bleeder readings before  continuing  active
mining.   Having  failed  to do so, Cumberland's defense that the
bleeder conditions on July  5  did  not require the suspension of
normal longwall operations because they were not hazardous is not
supported by the evidence.
     Consequently, Citation Nos. 3657290  and  3657291  shall  be
affirmed. However, as  discussed  below,  107(a)  imminent danger 
Order No. 7076284, issued after midnight on July  6,  2000,  when 
Cumberland already  had  removed  all  mine personnel, except  
those  persons designated under section 104(c) of the Mine Act to 
correct  the  hazardous  condition,  shall  be vacated.
     II.  Background
          A.  The Bleeder System
     The  Cumberland Mine is classified as a "gassy mine" because
it liberates approximately 12 million  cubic  feet of methane per 
day. As a gassy mine, the Cumberland Mine is subject to increased 
Mine Safety and Health Administration (MSHA) inspections pursuant 
to  section  103(i) of the Mine Act, 30 U.S.C.  823(i).[3]  (Tr. 
868-69, 1492). These matters concern a set of bleeder  entries on 
the eastern perimeter of a number of longwall gobs at Longwall  
Section  42.   (Ex.  R-5).[4]  The  longwall  gobs  are  all 
interconnected  and  air  flows  within  and  between  them. The  
term "gob", as used in this  decision, is  the  area  where  coal
has been  extracted  from  successive longwall panels, as well as
from the development entries  between the mined-out panels, where
the roof has collapsed as a consequence of the mining cycle.
     The active longwall panel  on  July 5, 2000, was the 90 butt
longwall panel that is located at the  northern  end  of the gob.
Id.  At the western perimeter of the gob there is a set  of mains
entries.   Id.   The  southern perimeter of the gob is formed  by
another set of bleeder  entries  known  as the 1B Right bleeders.
Id.  The split of air from the 1B Right bleeders  meets the split
of air from the eastern perimeter bleeders at the bottom  of  the
No.  1 bleeder shaft.  Id.  The No. 1 bleeder shaft is a vertical
shaft measuring approximately 600 feet deep from its base in the
southeastern  corner  of the bleeder system to the surface.  (Tr.
494-95; Ex. R-5).  At the surface of  the  shaft  is  a  bleeder  
exhaust fan. The No. 1 bleeder shaft is used solely to transport 
a  diluted  air-methane  mixture  from  the  bleeder  entries 
underground to the surface and out of the mine.
     As   a   general   proposition,   the  gob  liberates   high
concentrations of methane that must be safely diluted and carried
away  from  working  places  where there are  potential  ignition
sources.  Thus, methane concentrations in the gob vary from 0% to
100%.  As previously noted, methane  levels  in excess of 15% are
not explosive because they lack sufficient oxygen.  Bleeder entry
systems are designed to dilute methane liberated  from the gob in
a   controlled   fashion.    The   Secretary's  mandatory  safety
regulations require that methane concentrations  shall not exceed
2.0% in a bleeder split of air to be measured before  that  split
of air joins another split of air. 30  C.F.R.    75.323(e).  
There  are no other limits on methane concentrations in bleeders 
in the Secretary's  regulations.  (Tr. 818).    However,  MSHA  
has an informal, unwritten  policy  that methane concentrations 
below  4.5%  in  bleeder  entries do not constitute an imminent 
danger.  (Tr. 269, 402, 405, 419).
     At  Cumberland's longwall section, prior to beginning mining
of the 90 butt panel on June  6, 2000,  methane  liberated  from  
the  gob  into  eastern perimeter  was  diluted  from  fresh air
traveling in a southerly direction to the  No. 1 Bleeder shaft.
Upon  commencement  of mining of the 90 butt panel, the No. 2A 
Bleeder shaft and exhaust fan, located in the northeastern
corner of the eastern  perimeter of the bleeder system, became
operational.  (Ex. R-5).  Thus, as of June 6, 2000, methane from 
the gob in the eastern perimeter bleeder  entries  was  diluted 
by fresh air that  was  split  and directed to the surface  by 
either the No. 1 Bleeder shaft or the No. 2A Bleeder shaft. (Tr.
188-89, 1121, 1553).
     As of June 6, 2000, air  principally entered the bleeders at
the northern end from the headgate  of  the 90 butt panel through
entries known as the No. 1 and No. 2 sweeteners,  as well as from
the  tailgate  (also  known  as  the  82 butt entries) through  a
regulator known as "Fred's Hole."  (Tr. 1956-62).  As air travels
through  the No. 1 and No. 2 sweeteners  and  Fred's  Hole  in  a
southerly  direction  in the eastern bleeders, it is split near a
location in the vicinity  of  bleeder evaluation points (BEPs) 18
and 18A. (Tr. 192-4; Ex. R-5).   BEPs  are  locations where there
are   regulators that control the amount of methane  exiting  the
gob into  the  bleeder  entries where the methane is diluted with
fresh  air and carried to  the  surface.   (Tr.  1687).   In  the
vicinity  of   BEPs 18 and 18A, some of this bleeder air is split
and directed to the No. 2A bleeder shaft and some of the air goes
to the No. 1 bleeder shaft.  In essence, these two bleeder shafts
compete for the  air  traversing  through  the  eastern perimeter
bleeders.  (Tr. 1689-90).
     As air travels through the eastern bleeders, air from the
gob is vented into the bleeders at  various  BEP  locations  
designated  by numbers in descending order from north to south, 
specifically BEP Nos. 21, 20, 18, 18A, 8,  7 and 6.  (Ex. R-5). 
As noted, at these  locations  the  air coming  out  of the gob 
through  regulators  into  the bleeder contains  higher levels
of methane. It is the function of the bleeder system to dilute 
these high methane levels with fresh air coursing the bleeder 
entries.
     Between  June  6  and  July  5,  2000,  BEPs 6, 7 and 8 were
adjusted to their most closed positions, although  air  continued
to  come  out of them.  (Tr. 1671-72, 1676, 1910-11).  Cumberland
maintains they  were closed because the methane released from the
gob at these locations  was  creating  lowered  oxygen  levels in
areas  of  the  eastern  bleeders  where miners were required  to
travel  to pump water from the bleeder.   (Tr.   1723-24,  1912).
Although  the  BEP  locations  were  approved  by  MSHA under the
ventilation plan, Cumberland maintains MSHA approval  for closing
the  regulators  was  not  required  because their closures  were
merely adjustments performed within the operator's discretion.[5]
(Tr.  902, 1672-73, 1808).  During this  period  Cumberland  also
installed check curtains in entries across from BEP 22 to BEP 18.
(654-55,  982).   The  closure  of  BEPs  6,  7  and  8,  and the
installation  of  check  curtains from BEP 22 to BEP 18 prior  to
July  5,  2000,  reduced the  rate  of  methane  that  was  being
liberated  into  the   eastern  perimeter  entries,  consequently
reducing the methane concentrations  in  the  No.  1  shaft.  The
Secretary  asserts  these  actions  bottled up methane in the gob
rather than properly ventilating methane  from  the gob.  In this
regard,  the  Secretary  contends that such actions,  over  time,
could result in an accumulation of unliberated methane that would
eventually back-up from the  bleeder  system  into working areas.
(Tr. 621-24, 631, 762, 765, 780, 977,981-82, 992,  1732, 1734-35,
2016-18).
     In addition to the methane concentrations exiting the gob at
the BEPs along the eastern perimeter, methane also is  ventilated
from the southeast corner of the gob at locations in the vicinity
of  what  were  formally BEPs 3 and 4.  (Ex. R-5).  The southeast
corner of the gob  is  the area of lowest pressure because of its
proximity to the No. 1 fan.   Consequently,  Cumberland  contends
methane  from  this  area  tends  to  travel more easily into the
bleeders and out the No. 1 shaft to the  surface.   (Tr. 899-900,
1800-01, 1819).  There are also openings from the gob into the 1B
Right bleeders in the southern perimeter.  (Ex. R-5).
     There were water accumulations in the eastern bleeders south
of BEP 5A.  Although Cumberland had set up a pumping system, this
area of the bleeder remained inaccessible.  Because of elevations
in the mine floor, it was not expected that  water  levels  would
rise  to  the  roof  completely  blocking air to the No. 1 shaft.
Since June 6, 2000, the water levels south of BEP 5A had remained
relatively constant  in  that the water gauge at  the  No. 1 fan, 
that measures fan resistance  evidencing  a possible blockage  of  
the  bleeders,  remained  fairly constant. However,   Cumberland  
noted that the water gauge at  the  No.  1 bleeder fan had begun 
to  rise  in  the  days  preceding  July 5 reflecting a possible
increase in the accumulated water in the  vicinity  of  BEP  5A.  
(Tr. 1970).
          B.  Ventilation of the Longwall on July 5, 2000
     As  previously noted,  the  90  butt  longwall panel began
retreat mining on June 6, 2000. It had retreated  approximately  
1500  feet by July 5, 2000.  The longwall  face was ventilated 
by coursing intake air down the headgate entries and directing 
the air across the longwall face. After sweeping  the  face, the 
air traveled along the edge of the gob in the tailgate entry,  
and  into  the  No. 2 entry of the 82 butt where some of the air 
traveled inby back  into  the bleeders through  Fred's Hole, and 
some of the air traveled outby  in  the No. 2 entry  of the 82 
butt.  (Ex. R-5).  Initially, the tailgate (the No. 1 entry of  
82 butt) was an intake entry that joined the air sweeping the  
face  at  the  tailgate  and  traveled into the bleeder system 
through Fred's Hole or back out through  the No. 2 entry of the 
82 butt to the Mains on the western perimeter.   Id. Although  
air  enters Fred's Hole to ventilate the bleeders, Fred Hole is 
actually  located  in  the  gob  rather  than  in  a  bleeder
entry.  (Tr. 1751, 1904-05).
     On  July  3,  2000,  a  problem  developed  with the face
ventilation on the longwall after air  velocities  at the face 
had dropped.  This occurred  because the resistance in  the No. 
2  entry  of  82  butt had increased because of roof falls
associated with the retreat of the 90 butt panel. The resistance 
to  the return air flow resulted in a diminution of air flowing 
across  the  face. (Tr. 1120, 1125, 1554, 1557-58). Consequently, 
an air change was made on July  3, 2000, to change the longwall 
tailgate air in the No. 1 entry of 82 butt from intake  air to 
return air.  (Tr. 1118, 1120, 1554, 1558-59).  The air change 
resulted in increased air flow across the longwall face. After 
the air change,  the velocity of air at Fred's Hole was 49,000 
cfm. (Tr. 1903, 1987-88).
     The  longwall  face  ventilation  is  designed to maintain
pressure  on  the  gob  immediately behind the longwall  shields.
This prevents  methane  from  the  gob  immediately  behind  the
shields from coming out into  the longwall face.  (Tr. 1173).  At
the  end  of the face the air is  split.   Some  of  the  air  is
directed toward  the  bleeder and the remaining air exits out the
tailgate as return air.   The  area  at the end of the face where
the air is split is known as a "T-split."   (Tr.  1802, 1834-36).
A  properly functioning T-split, in conjunction with  a  properly
functioning bleeder system, maintains pressure differentials that
are intended to prevent methane from the gob from backing up into
the working face.  (Tr. 1835-37).
          C.  Events of July 5 and July 6, 2000
     During  the day shift on July 5, 2000, MSHA Inspector Ronald
Hixson was at  the  Cumberland  Mine to participate in an ongoing
MSHA inspection.  Hixson reviewed the weekly examination books in
the mine office.  The normal methane  concentration  at the No. 1
bleeder  shaft  was  approximately  1.6%.  (Tr. 183-85).   Hixson
noticed that the methane readings at the No. 1 bleeder fan had 
been higher than normal during the previous two weeks.  For 
example, the examination book entries reflected normal readings
of 1.6% on May 18; 1.6% on May 24;  1.6%  on  May 30;  and  1.4%  
on  June  6.  (Tr. 183-85; Ex. G-7).  More recent readings were 
consistently  higher  in  the  1.8%  to 1.9% range. There was a 
1.8% reading on June 14; a 1.9% reading  on  June  22,  a  1.89% 
reading on June 30;  and  a  1.9%  reading  on  July  3,  2000.  
(Ex. G-7).
     At  approximately  12 noon on July 5, Hixson traveled to the
No.  1  bleeder  fan with Michael  Konosky,  Cumberland's  safety
representative.  Konosky  took  readings with his Exotector.  The
results  indicated  methane  was  exiting   the   fan   shaft  at
concentrations  from  1.8%  to  2.2%.   Hixson also took a bottle
sample of air for laboratory analysis.  The  results,  which were
not  known until July 13, showed 3.6% methane.  (Tr. 212-13;  Ex.
G-2).  Hixson left the mine at approximately 1:30 p.m. on July 5.
At the time of Hixson's departure, he had no knowledge of bleeder
shaft  methane  readings above the 1.8% to 2.2% range.  (Tr. 206,
207-09, 469).
     To ensure proper  functioning  of  the  bleeder  system, the
exhaust fans are monitored by water gauge pressure readings.  The
water  gauge  measures  the degree of resistance caused by  water
accumulations that block  bleeder entries.  As water levels rise,
resistance in the bleeder system  rises causing the bleeder shaft
fan  to  exert  more  pressure  (work  harder)  to  overcome
the resistance.  Since the water gauge  at the No. 1 fan had been
rising, Fred Evans, Cumberland's mine foreman, convened a meeting
on the morning of  July 5, 2000, to discuss  the  increase in fan
pressure.  (Tr.  1132, 1562-63, 1970).  Evans was concerned  that
the increase in pressure could cause too much methane to be drawn
out  of  the  gob  at  too  fast  a  rate,  thus  increasing  the
concentration  of  methane   in  the  bleeder.   Evans  was  also
concerned that the water pumps  in the eastern perimeter south of
BEP 5A may not have been working  properly.  In addition to water
accumulations, a high water gauge reading  could  indicate  other
causes  of  increased  resistance  in  the  gob  areas behind the
longwall  face  or  in  the  tailgate entry of the 82 butt.  (Tr.
1795).
     As a result of the meeting, Evans dispatched Jason Hustus, a
Cumberland engineer, to the No.  1  shaft  to  obtain  a  methane
reading.  At approximately 3:30 p.m. on July 5 Hustus obtained  a
methane  reading  of  3.6%  at  the No. 1 shaft.  Evans knew that
Hixson and Konosky had obtained a  1.8% methane reading of at the
No. 1 shaft earlier that same morning.   Evans  asked  Hustus  to
recalibrate his methane detector and sent Hustus back for another
reading.  Once again Hustus obtained a reading of 3.6%.
     Evans  informed  Gary  DuBois,  manager  of engineering, and
Robert  Bohach,  manager of safety, of Hustus' methane  readings.
At approximately 6:00  p.m.  DuBois  and Bohach went to the No. 1
shaft  and  took  several methane readings  of  3.6%.   (1137-38,
1778).  Concerned,  they  went  to the 32-1 surface gob vent hole
that  is  located  in  close  proximity  to  the  No.  1  shaft.
(Ex. R-5).  Gob bore holes are drilled  from the surface into the
strata above longwall panels to vent methane  directly  from  the
gob  to  the surface.  Dubois and Bohach determined the bore hole
was closed.   They  opened  the surface hole and methane began to
flow out.  They tried to start  a  pump that was connected to the
bore hole, but it was not operating.   They  notified  a  surface
electrician to repair it.
     After  opening the bore hole, Dubois and Bohach returned  to
the No. 1 shaft  where  they once again obtained readings of 3.6%
methane.  (Tr. 1142, 1568,  1779).  Dubois and Bohach returned to
the  portal to discuss what they  believed  was  the  appropriate
course  of action.  They felt the high methane at the No. 1 shaft
was caused  by  the high water gauge reading that resulted in too
much methane being  pulled  out of the southeastern corner of the
gob.  They decided that changes to the No. 1 fan blade setting as
well as air changes underground had to be made.  Changing the fan
blade  would reduce the pressure  the  fan  was  pulling  on  the
bleeder  entries.  A change in the fan pressure would require air
changes  underground,   such   as   opening  the  sweeteners,  to
compensate for the reduced air pressure.
     There are methane sensors on the  longwall  shearer,  at the
tailgate and at midface.   The sensors on the shearer momentarily
de-energize  the  shearer  if  levels  of methane exceed 1%.  The
sensors at the tailgate and at midface shut  down  power  on  the
face  if methane exceeding 1% is detected.  If methane was baking
up from the gob, it usually would first be detectible at the face
in the vicinity of the tailgate.
     There were approximately 100 miners working underground with
approximately 12 miners on the longwall section during the 
afternoon shift that began at  4:00 p.m. on July 5, 2000.  Among 
the miners working at the longwall  was  Timothy  W.  Hroblak, 
who  is  a  UMWA safety committeeman.   Hroblak has been employed 
at the Cumberland  Mine since May 1979.   (Tr.  105). Hroblak 
testified that beginning at approximately 7:00 p.m., there were 
intermittent power shut downs triggered by the methane sensor at 
the tailgate.  (Tr. 109).  The face crew could not determine the 
cause of the problem as the 1% methane  detected by the sensor 
would   dissipate  within  a  few minutes after  which  power 
could be restored.  (Tr. 109, 111-12, 149, 155).  Hroblak went 
to the face and took several methane and air velocity reading 
that were all within normal limits below 1%. (Tr. 111-12 150, 
151-52, 155, 375-76). Given the normal methane and air velocity 
readings at the face during the afternoon shift, Dubois and 
Bohach decided  to make the ventilation adjustments at the start 
of the midnight shift since section 75.324, 30 C.F.R.  75.324,
requires  keeping all  personnel,  except  those  making
ventilation air changes, from going underground.
     At approximately  8 p.m. on July 5, during the middle of the
shift, the miners on the  longwall  were advised that there would
be no "hot seat" changes because the  midnight crew would be kept
out of the mine so that air changes could  be made.  A "hot seat"
change requires an afternoon shift member to  remain  at his work
station  until  he  is  relieved  by  an  arriving midnight shift
employee.  (Tr. 110, 113-15, 117, 1162).
     Dubois and Bohach continued to monitor the conditions at the
No. 1 fan as normal longwall operations continued.   For example,
Dubois obtained 3.6% methane readings at the No. 1 shaft at 7:30 
p.m. and 10:30 p.m. (Tr. 1784, 1827-28). Dubois and Bohach 
decided  they  would  withdraw  miners from the mine if methane  
levels at the No. 1 fan rose above  4%. They based their decision
on MSHA's informal policy of not considering methane levels of 
less than 4.5% to be an imminent danger; on the fact that a 4% 
concentration  provided a 1% margin of error below explosive 
levels; on the fact that  methane  readings at the face were 
within normal limits despite several tailgate sensor shut downs; 
and  the  fact  that  the  distance  from  the  bottom  of  the
number of the No. 1 shaft to the  working  section was over 9,000
feet.  (Tr. 1150, 1152, 1158-59, 1351, 1790, 1826, 1829, 1893-96,
1953).
     At  midnight,  at  the  end of the July 5,  2000,  afternoon
shift, Dubois and Bohach had a meeting with mine safety committee
members who were exiting the mine, or who were arriving for work.
(Tr. 117, 1160-61).  They told  the  committeemen that there were
problems  at  the  No.  1  bleeder  fan.  The  committeemen  were
informed, for the first time, that Cumberland  had  obtained 3.6%
methane readings at the No. 1 bleeder shaft as early as 7:00 p.m.
Hroblak  and  other committeemen became upset that normal  mining
had continued.   Hroblak  believed  the amount of methane exiting
the   bleeder   shaft   was   approximately  half   the   methane
concentrations at BEP 5A because  the  amount  of methane exiting
the fan was diluted by air from the 1B right bleeder entry in the
southern  perimeter.   (Tr.  127).   Thus, Hroblak  believed  the
amount of methane in the bleeder  eastern perimeter entries could
have been in the explosive range between  5%  and  7%.  (Tr. 127-
28).  Hroblak stated that, had he known of the conditions  at the
surface  of the bleeder shaft, he would have exercised his rights
as a union  safety  committee  member by immediately  withdrawing
all  hourly  personnel  from the mine.   (Tr.  128,  139).   Upon
leaving  the  mine,  at  approximately   12   midnight,   Hroblak
telephoned inspector Hixson to report the conditions at the mine.
(Tr. 123-24, 226-27, 1160, 1161-62).
      Consistent with the provisions of section 75.324, the  July
6,  2000,  midnight  shift  was  not  permitted to enter the mine
because of the ventilation changes that  were  to be made.  Power
to the mine was de-energized and management personnel and several
hourly employees entered the mine to begin corrective action. The 
hourly  employees  were used  as runners to relay communications 
from the bleeder entries to a telephone located in a headgate 
entry of the 90 butt panel.  (233, 1851, 1899, Ex. R-5).
     On  the  surface, Dubois went to the No. 1 bleeder shaft and
changed the louvers at the main fan and the back-up fan to reduce
the amount of pressure  the  fan was pulling.  He also tested the
back-up  diesel generator.  Adjusting  the  louvers,  which  took
approximately 15 to 20 minutes,  was completed at approximately 
1:00 a.m.  (Tr. 1161, 1163-64, 1787,  1789-90,  1845).   Before  
leaving  the No. 1 fan Dubois obtained another methane reading of 
3.6%. (Tr.  1789).   Dubois assigned a foreman to remain at the 
No. 1 shaft to continue monitoring the methane concentrations.
     To evaluate  the  bleeder  conditions, Cumberland management
personnel Roger Peelor and Robert Kimutis traveled to BEP 5A, the
farthest point inby the travelable  bleeders,  to measure the air
flow and methane before air changes were made.  (Tr.1582).   It
took approximately 1-1/2  hours  to  walk  to  BEP  5A.   (Tr.  
1691-92, 1703).  Peelor testified he took methane readings at 
approximately 1:30 a.m. at BEP  5A that ranged from 3.6% to 3.8% 
methane. (Tr. 1682, 1690-91). Peelor and Kimutis then adjusted 
the regulators at the No. 2A bleeder shaft to direct more air 
towards the No. 1 shaft.  (Tr . 1574, 1683).  This involved 
sliding the regulator doors by hand about one inch towards a more 
closed position that resulted in an approximate 8,000 cfm change 
in the air flow.  (Tr. 1574, 1710-11, 1901).
     Peelor and Kimutis  also  changed  the openings at the No. 2
and No. 3 sweeteners by knocking out blocks  that  controlled the
flow  of  air  into  the bleeders.  (Tr. 1709).  The blocks  were
removed gradually while air at the longwall face was monitored to
ensure  adequate  air  velocity  was  maintained.   Once  it  was
determined  that  ventilation  of  the  face  was  not  adversely
affected, the sweeteners  were  opened further and the opening at
Fred's Hole was restricted.
(Tr. 1709, 1899-1900).
     Opening the sweeteners permitted  more  fresh  intake air to
flow into the eastern perimeter bleeders.  (Tr. 1166-67, 1574-75,
1577, 1689-90, 1693-94, 1962, 1982).  Adjusting the regulator  at
the base of the No. 2A bleeder shaft decreased the air going into
that shaft and increased the  air  flow  to  the  No.  1 shaft.  
(Tr. 1578, 1595, 1693-94, 1982).  Restricting the regulator  at 
Fred's  Hole  reduced  the amount of  methane  coming into the  
bleeder  system  at  that location,  diverting  more methane to 
the southeast corner of the gob.  (Tr. 1167-68, 1692, 1714).  
The regulator at Fred's Hole is normally closed once the  active  
longwall  panel had retreated a distance of approximately 2,000 
feet. (Tr. 1500-02, 1906).
     At  approximately  1:30  a.m.,  Hixson, in response  to  the
information provided by Hroblak,  arrived  at the Cumberland Mine
while the air changes were in progress.  (Tr. 229, 1179).  Hixson
met  Bohach  on the surface.  Bohach told Hixson  that  the  last
reading at the  No.  1 fan was 3.6% and that men were underground
making air changes.  (Tr.  234-35,  490).   Methane readings were
being  telephoned to Bohach in the mine office  every  15  to  20
minutes by employees stationed at the fan. Shortly after  Hixson 
arrived at the mine, methane levels at the No. 1 fan reportedly  
had  risen from 3.6% to 3.8%. (Tr. 231, 240, 1176, 1333-34).  A 
subsequent reading taken at the fan between 2:30 and 2:45 a.m. 
was  reported  to Bohach as having increased to 4.2%.  Bohach 
informed Hixson of the reading. (Tr. 240, 491, 1334, 1777).
     Hixson telephoned his supervisor Robert Newhouse to discuss
the bleeder shaft methane concentrations.  (Tr. 240, 385 711).  
Newhouse telephoned Acting  District  Manager Kevin Stricklin.  
After evaluating  the situation, Hixson was  directed to issue 
an imminent danger order that would require Cumberland to 
immediately stop its air changes and remove everyone from  the  
mine.  (Tr. 385, 388, 711-12).  At approximately 3:10 a.m., 
Hixson verbally issued a 107(a) imminent danger withdrawal 
order requiring  everyone,  including personnel making air 
changes, to leave the mine and vacate  the No. 1 shaft area  
until  the  methane conditions had stabilized.   (Tr.  239,
1335,  1778;  Ex.  G-3).  Hixson  was  concerned  that  methane
conditions were rising despite the fact that longwall operations
had been suspended and no methane  was  being  generated  off 
the longwall face.  (Tr. 534-35).
     After   the  imminent  danger  order  was  verbally  issued,
readings at the fan dropped from 4.2% to 3.8%.  (Tr. 1179, 1430).
The next fan reading was taken at approximately 6:00 a.m. on July 
6 by MSHA inspectors after the mine had ceased operations for 
over six hours.  The methane exiting the fan at that time was
2.8%.  (Tr. 1186).  It  took  more than two hours for the miners
underground  to  arrive at the surface  because  of  the  lengthy
distance to be traveled. (Tr. 490-91). The last men underground 
exited the mine at 6:30 a.m.  (Tr. 266).
     Imminent Danger Order  No.  7076284 was formally written and
served on Cumberland by Hixson at approximately 9:00 a.m. on the  
morning of July 6. (Tr. 239; Ex. G-3, p.1). The imminent danger 
order was modified at 2:00 p.m.  on  July  6, 2000,  to  allow  
teams  of  company  and  MSHA  personnel  to go underground   to 
evaluate the bleeder conditions. Methane concentrations exiting 
the fan had declined to 2.1% at that time. (Tr.  1190-91;  Ex.
G-3, p.3).  The  imminent  danger  order  was modified again at 
9:30 p.m. on July 6 to allow Cumberland to make additional 
ventilation adjustments underground. (Ex. G-3, p.4).
     Citation No. 3657290  citing  an  alleged  significant  and
substantial  (S&S)  violation of the mandatory safety standard in
section 75.323(e) was issued to Cumberland by Hixson at 4:30 p.m.
on   July   6.    Section   75.323(e)   requires   that   methane
concentrations in a bleeder split of air, before that split joins
another split of air, shall not  exceed  2.0%.  Although Citation
No.  3657290  attributed  the  cited  violation  to  Cumberland's
reckless disregard, the citation was issued  under section 104(a)
of  the Mine Act, 30 U.S.C.  814(a), and it did  not  allege  an
unwarrantable failure.  (Ex. G-4).
     Citation  No.  3657290  was  modified  on  July  7, 2000, to
substitute section 75.334(b)(1), 30 C.F.R.  75.334(b)(1), as the
violated   mandatory   safety   standard.   Section  75.334(b)(1)
requires bleeder systems to dilute  and move methane-air mixtures
away from active workings and into a  return  air  course, or, to
the  surface  of  the  mine.   Simply  put,  section 75.334(b)(1)
requires bleeder systems to function properly.
     Finally, 104(d)(1) Citation No. 3657291 was issued by Hixson
at 6:00 p.m. on July 6 citing an S&S violation  of the provisions
of   section 75.363(a), 30 C.F.R.  75.363(a), that  specify,  if
conditions  pose  an  imminent  danger, all persons, except those
referred to in section 104(c) of the Mine Act (persons designated
by the operator to correct the condition),  immediately  must  be
withdrawn from the mine.  The cited violation was attributable to
Cumberland's unwarrantable failure.
     III.  Findings and Conclusions
          A.  104(a) Citation No. 3657290
               1.  Fact of Violation
     As  a threshold matter, in defense of the subject citations,
Cumberland  asserts the 2% methane limit in bleeder splits of air
in  section  75.323(e)  does  not  apply  to  a  bleeder  shaft.
(C. Br. at 23-27).   Thus, Cumberland seeks to undermine Citation
No.  3657290,  issued on  July  6,  2000,  because  the  citation
initially alleged  a  violation  of  section  75.323(e).  Section
75.323 provides:
          (e)  Bleeders  and  other return air courses.
          The concentration of  methane  in  a  bleeder
          split  of  air immediately before the air  in
          the split joins another split of air, or in a
          return course  other  than  as  described  in
          paragraphs (c) and (d) of this section, shall
          not exceed 2.0 percent.
     The  Secretary's  mandatory  standard  in  section 75.323(e)
addresses the method of obtaining representative methane readings
in  components  of  bleeder  systems  to ensure the air  coursing
through the bleeder contains not more than 2% methane.  Thus, not
surprisingly,   the   standard  requires  methane   concentration
measurements  to  be  taken   in   splits   of   air  before  the
concentration  of  methane in these splits of air is  diluted  or
otherwise altered by  an  additional split of air.  As Cumberland
states in its posthearing brief,  "[t]he  air  from  the 1B Right
bleeders meets the air from the eastern perimeter bleeders at the
bottom of the No. 1 bleeder shaft, a shaft from the surface  used
solely  to  transport  air  from  the  bleeder entries out of the
mine."   (C. Br. at p.2).
     To obtain accurate methane concentrations in 1B Right, and
in the eastern perimeter of  the  bleeder,  it  is  clear  that 
section 75.323(e) requires methane readings to be taken in both
1B Right and the eastern perimeter before these two splits of air
meet.  When these splits meet, they  feed  a new split of air --
the  No.  1  bleeder  shaft.  The  only  method  of  obtaining  a
representative methane sample in the bleeder shaft is  to measure
the  methane  concentration  before  the  air  in the shaft joins
another split of air - - the atmosphere.  Moreover, it reasonably
can  be  argued  that  the No. 1 bleeder shaft is a  "return  air
course" as contemplated by section 75.323(e).
     Accordingly, I am not  persuaded  by  Cumberland's assertion
that the 3.6% to 4.2% methane concentrations in the shaft on July
5  and  July  6 are irrelevant, or otherwise entitled  to  little
evidentiary weight,  because  such readings are not prohibited by
section  75.323(e),  the only regulation  concerning  permissible
methane levels in bleeders.   On the contrary, it is difficult to
understand Cumberland's contention  that  the 2% limit in section
75.323(e) is inapplicable because it was on  actual  notice  that
section  75.323(e)  does  in  fact  apply  to  bleeder  shafts.
In  this  regard, Cumberland was previously cited on December 20,
1996, in Citation No. 7013734, for an excess of 2% methane in the
No. 1 bleeder  shaft.   (Ex. R-6).  The citation was issued after
several bottle samples revealed  methane of 2.2%, 2.84%, and 2.7%
at the surface of the No. 1 shaft.   The  citation was terminated
on October 23, 1997, after Cumberland  made  numerous adjustments
to its bleeder system over a ten month period,  when  methane  in
the  shaft had been reduced from 2.5% to 1.7%.  (Ex. R-6, p.2-7).
Finally, the fact that the Secretary's mandatory safety standards
impose  a  2%  methane  limit  in bleeder shafts was acknowledged
succinctly by Roger Peelor, Cumberland's  Senior Mining Engineer,
when he testified that operating with 3.6%  methane  in a bleeder
shaft is prohibited because "[i]t's the law."  (Tr. 1726).
     In an apparent effort to avoid Cumberland's assertion that a
bleeder shaft is not "a  split  of  air"  as  contemplated  by 
section 75.323(e),  the Secretary modified Citation No. 3657290 
on July 7, 2000, to reflect  an  alleged violation of section 
75.334(b)(1).
Citation No. 3657290 states:
          The  ventilation and bleeder system used  for
          the longwall section and active gob failed to
          properly  remove  methane as required.  There
          was  3.6%  to  4.2%  methane   being  coursed
          through the No. 1 Bleeder shaft.  The methane
          concentration at 6:30 p.m. on 7/5/00  at  the
          fan  was  3.6%.   The  Company failed to make
          corrections immediately.   They  allowed  the
          afternoon shift to continue to work until the
          end  of  their production shift.  The persons
          exited  the   mine  and  corrections  started
          around 12 midnight.   The  split exceeded the
          2% limit.
(Ex.  G-4,  p.1).  The  July 7 citation modification  added the
following additional conditions:
     . . . . It has been determined that the bleeder system
          for  the  longwall is not  functioning  properly
          for the following reasons:
            1. Methane exceeding 2.0% has been detected 
               exhausting from the No. 1 bleeder fan.
            2. Water has accumulated to the point that the 
               airflow in the bleeder system has been 
               obstructed.
            3. BEP 6 BEP 7 have been closed without prior
               approval.
            4. Low oxygen levels have been found in the 
               travelable bleeder entry.
(Ex. G-4, p.3).
     Section 75.334(b)(1) provides:
          During pillar recovery a bleeder system shall
          be used to control  the  air  passing through
          the  area  and continuously dilute  and  move
          methane-air  mixtures  and other gases, dusts
          and fumes from the worked-out  area away from
          active workings and into a return  air course
          or to the surface of the mine.
(Emphasis added).
     In applying section 75.334(b)(1) to the facts  of this case,
we start with the longstanding proposition that the "language  of
a regulation . . . is the starting point for its interpretation."
Dyer   v.   United  States,  832  F.  2d  1062,  1066  (9th  Cir.
1987)(citing  Consumer  Prod. Safety Comm'n v. GTE Sylvania, Inc,
447 U.S. 102, 108 (1980)).   Where  the  language of a regulatory
provision is clear, the terms of that provision  must be enforced
as  they  are  written unless the regulator clearly intended  the
words to have a  different  meaning  or unless such meaning would
lead to absurd results.  Utah Power &  Light Co., 11 FMSHRC 1926,
1930 (Oct. 1989); Consolidation Coal Co.,  15  FMSHRC  1555, 1557
(Aug. 1993).  The plain language of section 75.334(b)(1) requires
that  bleeder  systems both continuously dilute and move methane-
air mixtures away from active workings.
     Notwithstanding the question of whether there is a 1:1 ratio
between methane  in  the  No.  1 shaft and methane in the eastern
perimeter bleeder, the undisputed  facts  support  the conclusion
that methane in the bleeder was not being adequately  diluted and
carried  away  from  the  working face.  Cumberland concedes  the
rising  water  gauge  at  the  No.  1  shaft  was  indicative  of
restrictive air flow caused by water  accumulations  located inby
BEP  5A,  increased resistance caused by an increase in  the  gob
area, and/or  deteriorating  conditions in the tailgate of the 90
butt  panel  caused  by the panel's  retreat.   (C.  Br.  at  7).
Indicia of restrictive  air  flow support the conclusion that the
bleeder was not functioning properly.
     Moreover, Cumberland's actions in this case reflect that the
bleeder system was malfunctioning.   Namely,  before MSHA arrived
at the mine, Cumberland took numerous methane readings during the
afternoon shift at  the  No.  1  fan;  Cumberland  initiated  air 
changes at  the start of the next shift on midnight  July  6;  
Cumberland adjusted the louvers on surface at the  No.  1 fan; 
Cumberland adjusted the regulator at the base of the No. 2A  
bleeder  shaft; Cumberland closed the regulator at Fred's  Hole;  
and  Cumberland  opened  the  regulators  on  two sweeteners. In 
addition, in view  of the restrictive air flow in the  bleeder,  
activation  of  the  tailgate  sensor  on  several occasions  
during  the  July  5  afternoon  shift  is  a  further indication 
that methane was migrating  back from the gob towards the working 
face.  In short, the evidence in this  case  provides an  ample  
basis  for concluding that Cumberland's bleeder system was not 
adequately  diluting  and  coursing  methane  through the bleeder 
system.   Accordingly,  the Secretary has satisfied  her burden 
of demonstrating a violation of section 75.334(b)(1).
               2.  Significant and Substantial
     In  its Posthearing Brief, Cumberland  has  elected  not  to
further argue  the S&S designation in Citation No. 3657290 if the
cited violation  of section 75.334(b)(1) is affirmed.  (C. Br. at
p.19, n.8).
     A  violation  is  properly  designated  as  significant  and
substantial  in  nature   if,   based  on  the  particular  facts
surrounding the violation, there  exists  a reasonable likelihood
that the hazard contributed to by the violation will  result  in 
an  injury  or  an  illness  of  a  reasonably  serious  nature.
Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981).
The issue of whether a particular violation of a mandatory safety
standard is S&S in nature must be resolved  by assuming continued
normal mining operations.  U.S. Steel Mining, 7 FMSHRC 1125, 1130
(Aug. 1985).  Consideration should be given to  both the time the
violative  condition existed before the citation was  issued  and
the time it  would  have  existed if normal mining operations had
continued.  Bellefonte Lime  Co.,  20  FMSHRC  1250  (Nov. 1998);
Halfway, Inc., 8 FMSHRC 12 (Jan. 1986).
     The Secretary presented significant evidence to support  her
S&S   designation   concerning  the  hazards  associated  with  a
malfunctioning bleeder  system in proximity to potential ignition
sources  generated  during   active  longwall  operations.   When
bleeder systems malfunction, methane  can  build  to  5%  to  15%
explosive  levels.  These explosive levels of methane can back up
through the tailgate into the working face where sparks generated
during the coal  extraction  process  are  not  uncommon.   It is
reasonably  likely  that  an explosion at the longwall face would
result in serious or fatal injuries.
     Cumberland  asserts  there   is   a  1:1  ratio  of  methane
concentrations  between  the No. 1 shaft and  travelable  eastern
perimeter bleeders.  The Secretary  asserts  the  ratio is 1:2 in
the  No.  1 shaft as compared to the BEP 5A area of the  bleeder.
Cumberland  did  not  take actual methane readings in the bleeder
entries on July 5, 2000.   Thus, at best, Cumberland contends the
3.6% methane at the shaft's  surface  was  representative  of the
methane  concentrations  in  the  eastern  bleeder.  Cumberland's
weekly examination records reflect that methane concentrations at
the  shaft  were  rising  in the weeks preceding  July  5,  2000.
Rising methane concentrations  are  an indication that methane is
not being effectively diluted and moved away from working places.
In this regard, Peelor testified that the mine cannot continue to
operate with 3.6% methane at the shaft  not  only because "[i]t's
the law" but also because "there are hazards involved with that .
. . [w]ith methane, you have a potential fuel.   If  you allow it
to go unchecked, it can go into the explosive range."   (Tr.1725-
28).   Thus,  it  is  apparent  that  the abnormally high methane
readings  in  the  No.  1  shaft  were indicative  of  a  serious
explosive hazard.  Accordingly the  S&S  designation  in Citation
No. 3657290 shall be affirmed.
               3.  Negligence
     The Secretary attributes the improperly functioning  bleeder
system   to   Cumberland's  reckless  disregard.   The  Secretary
contends that to address its rising methane concentrations in the
bleeder, Cumberland  closed  BEPs 6 and 7 in an effort to "bottle
up" the methane in the gob by  impeding  it from flowing into the
bleeders.  Cumberland asserts it closed the  BEPs  to improve the
oxygen  levels in the travelable bleeder entries.  The  Secretary
acknowledged  there  were  low levels of oxygen in the travelable
bleeders in her July 7 modification  of  Citation  No.   3657290.
(Ex. G-4, p.3).
     Although the closing of BEPS 6 and 7 may have constituted  a
modification  of Cumberland's ventilation plan that required MSHA
approval, Cumberland  was  not  cited  for  failing to follow its
approved  ventilation plan.  Therefore, Cumberland's  failure  to
consult MSHA  before  closing  BEPs  6  and  7,  when  viewed  in
isolation, is not relevant to the issue of Cumberland's degree of
culpability   with   respect   to   the   violation   of  section
75.334(b)(1).  The closure of these BEPs is relevant to the issue
of  negligence  if  the Secretary can demonstrate the closure  of
these regulators contributed to the high methane in the bleeders.
     In determining the  degree of negligence to be attributed to
Cumberland with respect to  its ineffective bleeder system, it is
noteworthy  that  the July 5 bleeder  problems  occurred  shortly
after the July 3 air  change that converted the intake air in the
No. 2 tailgate entry to return air. It is reasonable to conclude 
that this adjustment, that was taken to  maintain  proper  air   
velocity  along  the  longwall  face, ultimately necessitated 
additional  bleeder  adjustments, such as opening  sweeteners,  
to  increase  the  fresh air  flow  to  the bleeders.  Bleeder 
systems by nature require  ongoing  monitoring and  adjustment  
after significant ventilation changes are  made. In view of the 
recent conversion of the No. 2 tailgate entry from intake to 
return air,  it  is  not  surprising  that  the  bleeder's
ventilation system required additional  adjustments.   Thus,  the
Secretary   has  not  established,  by  a  preponderance  of  the
evidence, that  Cumberland's  closure  of  two  BEP  sites  was a
significant cause of the bleeder malfunction.  In this regard, it
is  noteworthy  that  methane  readings  in  the No. 1 shaft were
within  normal range in the days preceding July  5,  2000,  after
BEPs 6 and 7 had been closed.  The record, therefore, supports no
more than  a  moderate  degree  of  negligence  rather  than  the
recklessness alleged by the Secretary.
               4.  Civil Penalty
     The  Secretary  has  proposed  a  $6,000  civil  penalty for
Citation   No.   3657290.    The  parties  have  stipulated  that
Cumberland  is  a  large  operator  with  a  favorable  violation
history, that it abated the  cited violations in a timely manner,
and that payment of the proposed  penalties  will  not impair its
ability to continue in business.  Although the cited violation of
section 75.334(b)(1) is serious in gravity, the reduction  in the
degree  of  negligence  attributable  to Cumberland from reckless
disregard  to  moderate  warrants  a moderate  reduction  in  the
proposed civil penalty.  Accordingly,  a  $5,000  civil  shall be
imposed for Citation No. 3657290.
          B.  104(d)(1) Citation No. 3657291
                         1.  Fact of Violation
     Citation No. 3657291, issued by Hixson, cites a violation of
the  mandatory  safety  standard  in  section  75.363(a)  that is
attributed  to Cumberland's unwarrantable failure.  Citation  No.
3657291 states:
          An  accumulation  of  methane was detected at
          the No. 1 bleeder shaft.   The methane ranged
          from 3.2 to 3.6% as detected  at 6:30 p.m. on
          7/5/00.   The company failed to  correct  the
          condition  immediately.    The  company  also
          failed to remove [all persons  except]  those
          persons referred to in section 104(c) of  the
          Act.    The  men  were  allowed  to  continue
          working their  production  shift  until 11:30
          p.m.   It  was after the men exited the  mine
          that corrections  were  started.  The methane
          was detected by a certified mine official.[6]
     Section 75.363(a), the cited mandatory standard, provides:
          Any  hazardous condition found  by  the  mine
          foreman or equivalent mine official, or other
          certified  persons designated by the operator
          for the purpose  of  conducting  examinations
          under this subpart D, shall be posted  with a
          conspicuous danger sign where anyone entering
          the  areas would pass.  A hazardous condition
          shall  be  corrected  immediately or the area
          shall  remain  posted  until   the  hazardous
          condition  is  corrected.  If  the  condition
          creates  an imminent danger, everyone  except
          those referred  to  in  Section 104(c) of the
          Act shall be withdrawn from the area affected
          to a safe area until the  hazardous condition
          is corrected.  Only persons designated by the
          operator to correct or evaluate the condition
          may enter the posted area.
(Emphasis added).
     Section 75.363(a) has two components.   This safety standard
requires hazardous conditions to be corrected  immediately  or to
be  dangered-off,  and,  if  the  hazard  constitutes an imminent
danger,  everyone except those persons designated  under  section
104(c) of  the  Mine  Act shall be removed from the affected area
where  the imminent danger  exists.   In  this  case  it  is  not
feasible  to  use  a  danger-off  sign  because hazardous bleeder
conditions effect the entire mine.  Thus, the question is whether
the  bleeder conditions during the afternoon  shift  of  July  5,
2000,  could  be  properly characterized as a hazard that must be
corrected immediately because it constituted an imminent danger.
     Analyzing  whether   the   bleeder   conditions  on  July  5
constituted  an  imminent  danger  is a matter  of  degree.   For
example, as previously noted, on December  20,  1996, MSHA issued
to  Cumberland  Citation No. 7013734 for a violation  of  section
75.323(e) for methane  in  the  subject  No.  1  bleeder shaft in
excess of 2.0% methane.  (Ex. R-6, p.1).  The citation was issued
after several bottle samples revealed methane of 2.2%, 2.84%, and
2.7%.  The bleeder violation, which was attributed  to a moderate
degree  of  negligence,  was  designated  as non-S&S.  After  six
extensions of the abatement termination date,  the  citation  was
terminated  10  months later on October 23, 1997, when methane in
the shaft had been  reduced from 2.5% to 1.7%.  (Ex. R-6, p.2-7).
Although the December 1996 bleeder shaft condition was designated
as non-S&S, I note that the 2.8% methane in the shaft in December
1996 is 28.5% less than  the  3.6% methane at the shaft's surface
on July 5, 2000.
     Although there was 3.6% methane  in the shaft, we will never
know  the methane concentrations at BEP  5A  during  the  July  5
afternoon shift because Cumberland did not obtain any readings in
the travelable  bleeder  entries.   Resolution  of  the  imminent
danger  question  must  be  viewed in the context of whether 3.6%
methane  in the shaft should have  alerted  a  person  exercising
reasonable  care  to  acquire additional knowledge of the fact in
question  (taking  readings   to   determine  whether  there  was
explosive  methane  in  the  bleeder entries)  or  to  infer  its
existence.  See Kenny Richardson,  3  FMSHRC  8,  16  (Jan. 1981)
(quoting United States v. Sweet Briar, Inc., 92 F. Supp. 777, 780
(W.D.S.C. 1950).
     Although  there  is  no  official  MSHA policy, as a general
proposition, MSHA considers methane levels  in bleeder entries of
4.5% or more to be an imminent danger.  (Tr.  820-21;  Ex.  R-3).
At  the  hearing, Cumberland conceded it would have withdrawn all
personnel  from  the  mine  if  the methane readings at the No. 1
shaft rose above 4%.  (Tr. 1794, 1829, 1953).  Thus, the question
is whether Cumberland should have believed there was a reasonable
possibility of  explosive methane in the travelable bleeders.
     MSHA ventilation expert John Urosek testified that an excess
of 2% methane exiting the bleeder  fan  "tells  you  there  is  a
problem with the bleeder system."  (Tr. 1029). The methane levels
in  the  No.  1  shaft  during the afternoon shift on July 5 were
consistently at 3.6%.  The  methane  spiked  to  between 3.8% and
4.2% in the early morning hours of July 6.  The Secretary asserts
these amounts of methane exiting a bleeder shaft were  unheard of
except in emergency situations.  (Tr. 1725-28).  Urosek testified
he  had never known of these levels of methane exiting a  bleeder
fan in an operating coal mine.  (Tr. 1009).  Even Peelor admitted
he could not recall working in a mine when there was 4.2% methane
in the bleeder shaft.  (1725).
     BEP  5A  is  located inby in the eastern perimeter more than
one mile from the active  longwall face.  (Tr. 1803-04, Ex. R-5).
Abnormally high  concentrations  of  methane  at  BEP  5A  is  an 
indication  that  methane  from  the  gob  is  migrating  back
toward  the  working  face rather than being diluted and  carried
away to the surface.  The  Secretary's witnesses contend there is
an approximate 2:1 ratio between  the  methane  at BEP 5A and the
methane at the No. 1 shaft. (Tr. 562, 681-82, 714, 719, 721, 724). 
Their conclusion is based on both the design  and  operation  of
Cumberland's  bleeder  system,   as   well   as   comparisons  of 
contemporaneous BEP 5A and No. 1 shaft methane results.
     With  respect  to the bleeder design, the eastern  perimeter
vents  the  greatest  concentrations  of  methane  consisting  of
methane that is liberated  during  active  mining  of the 90 butt
panel. (Tr.  305).  Air traveling down the 1B Right entry (the 
southern perimeter)  joins  and dilutes the air from the eastern 
perimeter before it enters the  No.  1  bleeder  shaft.  (Tr. 
497-98).  The Secretary's assertion that the 1B Right air dilutes 
the eastern perimeter  air  is  supported by Cumberland's weekly  
examination records.  For example,  during  the period June 14, 
2000, through June 30, 2000, methane at BEP 5A  was  3.5%,  while 
methane in 1B Right for the same period averaged only .6%.  (Tr. 
558-59,  562; Ex. G-7).   Given the 3.6% methane at the No. 1 
shaft on July  5, after  the  eastern  perimeter  air was mixed 
and diluted with 1B Right air, the Secretary argues that it is 
likely that methane in the  eastern  perimeter outby BEP 5A  in  
the  direction  of  the longwall face,  beyond where air currents
strongly travel towards the fan, exceeded the 5% explosive range 
for methane.  (Tr. 242,-43, 496-98, 505, 564, 714, 719, 721, 724, 
1024).
     A comparison  of  BEP  5A  and  No. 1 bleeder shaft readings
support  the  Secretary's  claimed  2:1  ratio.    For   example,
Cumberland's  weekly  examination records reflect average methane
concentrations of 3.5%  at  BEP 5A, and 1.8% at the No. 1 bleeder
fan, during the period June 14,  2000,  through  June  30,  2000.
(Tr. 558-59, 562; Ex. G-7).
     Cumberland maintains there is a 1:1 ratio of methane at  the
No.  1  shaft  and BEP 5A.  Cumberland bases its conclusion on an
uncorroborated BEP  5A methane reading of 3.8% by Roger Peelor at
approximately 1:30 a.m.  on  July 26 2000, that is similar to the
3.6%  methane  obtained  at the fan.   However,  other  pairs  of
methane readings do not support  Cumberland's  claimed 1:1 ratio.
For example, when the first team of MSHA and Cumberland personnel
went underground during the morning of July 6, 2000,  methane  at
BEP  5A  was  2.6%  while  methane  at  the  No. 1 shaft was 2.2%
methane.   (Tr.  1049-50;  Ex.  G-3).   Using the July  6,  2000,
readings as an example, the BEP 5A methane  is  18%  greater than
the concentration at the fan.  Using this ratio, the 3.6% methane
at the No. 1 fan on July 5 would be indicative of  4.25%  at  BEP
5A.  Significantly, 4.25% methane in the bleeders is greater than
the  4.0%  that  Cumberland  admitted  would  justify withdrawing
personnel from the mine.
     While it is not clear whether or not methane levels actually
exceeded 4.5% in the bleeders, it is clear that  3.6%  at the fan
was   significant   enough  to  raise  serious  concerns.   Thus,
Cumberland should have  obtained bleeder readings to ensure there
were no explosive levels  of  methane.   In the absence of actual
readings, Cumberland was obliged to err on  the  side  of caution
and  infer  the existence of a hazardous condition that warranted
the immediate  removal  of  all personnel except those designated
under  section  104(c) of the Mine  Act  who  were  necessary  to
evaluate and correct the potentially dangerous bleeder condition.
Accordingly the Secretary has demonstrated the fact of occurrence
of a section 75.363(a) violation.
               2.  Significant and Substantial
     As previously  noted,  Cumberland has elected not to further
argue the S&S designation in  Citation  No.  3657291 if the cited
violation of section 75.363(a) is affirmed.  (C.  Br. p.19, n.8).
Having found that the bleeder conditions on July 5 constituted an
imminent  danger  because  there  was a reasonable likelihood  of
explosive levels of methane in the  bleeder  system during active
longwall mining it is clear that the S&S criteria  have been met.
Consequently, the Secretary's S&S designation shall be affirmed.
               3.  Negligence
     The Secretary attributes Cumberland's violation  of  section
75.363(a)  to  an  unwarrantable failure.  The term unwarrantable
failure is taken from section 104(d) of the Mine Act, 30 U.S.C. 
814(d), and refers to  more  serious  conduct  by  an operator in
connection  with  a violation.  In Emery Mining Corp.,  9  FMSHRC
1997 (Dec. 1987), the  Commission  determined  that unwarrantable
failure  is  aggravated conduct constituting more  than  ordinary
negligence.  Id. at 2001.  Unwarrantable failure is characterized
by   such   conduct   as   "reckless   disregard,"   "intentional
misconduct,"  "indifference,"  or  a  "serious lack of reasonable
care."   Id.  at  2003-04; Rochester & Pittsburgh  Coal  Co.,  13
FMSHRC 189, 194 (Feb.  1991);  see  also  Buck Creek Coal, Inc.v.
MSHA  52  F.3d  13,  136  (7th Cir. 1995)(approving  Commission's
unwarrantable failure test).
     Whether  conduct  is  "aggravated"   in   the   context   of
unwarrantable  failure  is determined by looking at all the facts
and circumstances of each  case  to  see  if  aggravating factors
exist  such as the operator's knowledge of the existence  of  the
violation,  the  length of time the violation existed, the extent
of the violative condition,  and whether the violation is obvious
or  poses  a  high  degree of danger.   All  relevant  facts  and
circumstances must be  examined  to  determine  if the operator's
conduct  is  aggravated,  and  whether  mitigating  circumstances
exist.   Eagle  Energy  Inc.,  23  FMSHRC  829,  834  (Aug. 2001)
(citations omitted).
     As  early  as  the  morning  of  July  5,  2000, Fred Evans,
Cumberland's  mine  foreman,  knew there were problems  with  the
bleeder system based on the rising  water  gauge  at  the  No.  1
bleeder  shaft.   Despite evidence of abnormally high readings of
3.6% methane at the  shaft  obtained  by  Hustus at approximately
3:30  p.m.,  as well as several additional 3.6%  methane  results
obtained by Dubois  and Bohach beginning at 6:30 p.m., Cumberland
allowed longwall operations  to  continue and the miners were not
advised of the potential hazard until  the  end  of  their shift.
The  fact  that  the methane sensor at the tailgate was activated
during the afternoon shift on July 5 was an additional indication
that the bleeder system  was  not effectively moving methane away
from the working place.
     Moreover, the violation posed  a very high degree of danger.
There was a significant possibility that  rising  methane  levels
inby BEP 5A could accumulate in the bleeder system and back up to
the  longwall  face  if  the  bleeder  problem  was not corrected
immediately.   (Tr.  127,  998-99,  1024).   Potential   ignition
sources  at  the  longwall face included sparks generated by  the
longwall shearers.   (Tr.127,  1001,  1024-25).   There were also
numerous pieces of electrical equipment located in the face area.
(Tr.  1024).   In the event of an ignition, the explosion  likely
would have  caused  fatalities  given  the  enormous  quantity of
explosive methane that could accumulate in the eastern  perimeter
bleeder that was more than 9,000 feet in length.
     In short, it is clear that the violation was obvious, rather
than  undetected,  given  the  repeated  abnormally  high methane
readings  in  the  bleeder  shaft.  The violation was allowed  to
continue to exist for an extended  period  of time throughout the
July  5  afternoon shift.  Finally, the violation  was  extremely
dangerous.   Additionally,  Cumberland's  failure to disclose the
bleeder problem to its hourly employees is  a  further indication
that  its conduct was unjustified.  In sum, Cumberland's  conduct
on July  5,  2000,  is  a classic case of the aggravating factors
that are the hallmarks of an unwarrantable failure.  Accordingly,
the Secretary has demonstrated  that  Cumberland's  violation  of
section 75.363(a) was unwarrantable.
               4.  Civil Penalty
     The  Secretary  has  proposed  a civil penalty of $5,000 for
104(d)(1) Citation No. 3657291.  However,  Commission judges make
de novo findings with respect to the penalty  criteria in section
110(i) of the Mine Act, 30 U.S.C.  820(i), based  on  the record
in  adjudicatory  proceedings,  and  they  are  not  bound by the
Secretary's proposed civil penalties.  Sellersburg Stone  Co.,  5
FMSHRC  287,  291  (March  1983),  aff'd, 736 F.2d 1147 (7th Cir.
1984).
     As  previously  noted,  the  parties  have  stipulated  that
Cumberland is a large operator; that it has a favorable violation
history; that it abated the cited violations  in a timely manner;
and that payment of the proposed civil penalties  will not impair
its  ability  to  continue  in business.  With   respect  to  the
seriousness of the gravity of  the  violation,  it  is clear that
Cumberland was worried about the bleeder's safety during the July
5 afternoon shift.  Its degree of concern is demonstrated  by the
actions  of  Evans  who  repeatedly  directed  Hustus, Bohach and
DuBois to obtain additional methane readings at  the  No.  1  fan
after Hustus' initial 3.6% reading at approximately 3:30 p.m.  In
fact,  Evans  apparently  could  not  believe  the  high  methane
concentrations  first  detected  by  Hustus because Evans ordered
Hustus to recalibrate his methane detector before Hustus was sent
back to the shaft to obtain additional readings.
     Despite  continued  high  levels  of   methane  exiting  the
bleeder,  Cumberland's safety concerns were not  communicated  to
the miners  who continued to work the longwall.  MSHA ventilation
expert Urosek  testified  he had never known of methane levels in
the 3.6% range exiting a bleeder shaft in an operating coal mine.
(Tr. 1009).  Peelor admitted  he  could  not  recall working in a
mine   when   there   was  4.2%  in  a  bleeder  shaft.   (1725).
Consequently, it is understandable that Hroblak testified that he
would have exercised his rights as a UMWA safety committeeman and
withdrawn all hourly personnel  from  the  mine  if  he had known
there  was  3.6%  methane in the bleeder shaft.  (Tr. 128,  139).
Under these circumstances,  it is clear that Cumberland's failure
to disclose the abnormally high  methane  concentrations  exiting
the  bleeder  to  the  safety  committeemen enabled Cumberland to
complete  the  afternoon production  shift  without  interruption
before making the necessary ventilation changes in the bleeder.
     A fundamental  purpose  of the Mine Act is to encourage mine
operators ". . . with the assistance  of  the miners" to identify
and eliminate unsafe conditions and practices in the Nation's  
mines.   30 U.S.C.  801(e).  This  statutory  goal  is thwarted 
if mine operators  are  not  dissuaded  from withholding safety  
related information from miners to avoid production  shut downs.  
Thus,  Cumberland's  failure  to disclose the bleeder conditions  
during  the  afternoon  shift  on  July  5,  2000,  is  an
aggravating factor that warrants an increase in civil penalty.
     Finally,  with  regard  to  negligence,  the   totality   of
circumstances   evidencing   Cumberland's   failure   to  suspend
production  despite  its  knowledge  of the potentially hazardous
bleeder conditions demonstrates Cumberland's violation of section
section  75.363(a)  is  attributable  to a   reckless  disregard.
Accordingly,  a civil penalty of $10,000  shall  be  imposed  for
104(d)(1) Citation No. 3657291.
          C.  107(a) Imminent Danger Order No. 7076284
     Imminent Danger  Order  No.  7076284, was verbally issued by
Hixson at 3:30 a.m.  The order withdrew  all  personnel  who were
then  underground  to  make  air  changes  to  alleviate the high
methane concentrations in the bleeder.  Order No.  7076284, which
was  formally  issued  in writing at 6:30 a.m. on July  6,  2000,
states:
          This imminent danger order is being issued to
          the mine due to  methane  that is exiting the
          mine  through the No. 1 bleeder  shaft.   The
          methane  detected  measured  from  3.2% to as
          high as 4.2%.  All persons including  persons
          involved  in  the  air change must be removed
          from the underground  portions  of  the mine.
          The sampling of the No. 1 bleeder shaft  must
          be done from a remote location.
     Order No. 7076284 was issued pursuant to section 107(a) of
the Mine Act, 30 U.S.C.  817(a).  Section 107(a) in pertinent
part, provides:
          If  upon any inspection or investigation of a
          coal  or  other mine which is subject to this
          Act,  an  authorized  representative  of  the
          Secretary  finds   that  an  imminent  danger
          exists, such representative  shall  determine
          the   extent   of   the  area  of  such  mine
          throughout which the danger exists, and issue
          an order requiring the  operator of such mine
          to cause all persons, except  those  referred
          to  in section 104(c), to be withdrawn  from,
          and to be prohibited from entering, such area
          until  an  authorized  representative  of the
          Secretary   determines   that  such  imminent
          danger and the conditions  or practices which
          caused such imminent danger no longer exist.
(Emphasis added).
     Section 104(c) of the Mine Act, 30 U.S.C.  814(c), concerns
persons designated by the operator or  the  Secretary who are not
subject   to  withdrawal  orders.   Specifically,   section   104
provides, in pertinent part:
     (c) The  following  persons shall not be required to be
     withdrawn from, or prohibited  from  entering, any area
     of  the coal or other mine subject to an  order  issued
     under this section:
          (1) any person whose presence in such area is
          necessary, in the judgment of the operator or
          an    authorized    representative   of   the
          Secretary,   to   eliminate   the   condition
          described in the order[.]
(Emphasis added).
     As an initial matter, there  is an apparent inconsistency in
the Secretary's prosecution of  104(d)(1)  Citation  No.  3657291
that,  by  its  terms,  cited  Cumberland for not withdrawing all
personnel  except  those 104(c) persons  who  were  necessary  to
correct the cited hazardous  condition, and imminent danger Order
No. 7076284 that withdrew the same persons Citation
No.  3657291  would  have allowed  underground.   Obviously,  had
Hixson arrived at the  Cumberland  Mine prior to midnight on July
5, 2000, when longwall operations continued  despite high bleeder
shaft  methane  readings,  Hixson  would have been  justified  in
issuing a 107(a) imminent danger order  suspending  normal mining
operations  and  withdrawing  all  personnel from the mine.   The
issue  here, however, is the propriety  of  a  107(a)  withdrawal
order issued  after  all  persons  involved  in active mining had
already been withdrawn, and only those persons  designated by the
operator under section 104(c)(1) of the Mine Act  to  correct the
potential hazard were underground.
     Resolution of this issue requires analysis of the  statutory
provisions  of  section  107(a).   The first inquiry in statutory
construction  is "whether Congress has  directly  spoken  to  the
precise question  in  issue."   Chevron  U.S.A.  Inc.  v. Natural
Resources  Defense  Council,  Inc.,  467  U.S.  837,  842 (1984);
Thunder  Basin Coal Co., 18 FMSHRC 582, 584 (April 1996).   If  a
statute is  clear  and  unambiguous,  effect must be given to its
language.  Chevron, 467 U.S. at 842-43; accord Energy West Mining
Co. V. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).
     Here, section 107(a) explicitly exempts  104(c) persons from
imminent danger orders.  Section 104(c) delegates  the  authority
to either the judgment of the operator, or, to the Secretary,  to
determine  when and who to send into the mine to correct hazards.
By its terms,  section  104(c)  does  not require the operator to
secure  the  Secretary's  approval  before  it  designates  those
persons it deems necessary to evaluate  and  correct  a dangerous
condition.
     Although  the statute grants the operator the discretion  to
exempt  persons  necessary   to  evaluate  or  correct  hazardous
conditions from the Secretary's  withdrawal  orders, the operator
may not abuse its discretion by sending persons  into  mines  who
themselves  are  unnecessarily  exposed to unacceptable levels of
danger.  Thus, the focus shifts to  whether Cumberland abused its
discretion after midnight on July 6, 2000, when it sent a team of
ten men, comprised of seven management employees and three hourly
miners,  to  evaluate  the bleeder system  and  make  ventilation
changes.
     At the time Hixson  withdrew  air-change  personnel  at 3:30
a.m.  he reasonably concluded there was a substantial probability
of explosive  methane  levels in the travelable bleeders based on
shaft  readings  ranging  from   3.6%  to  4.2%  methane.   Thus,
determining whether Cumberland abused its discretion when it sent
personnel underground requires an  analysis  of potential sources
of ignition.  The ignition sources are limited  to  those present
in the bleeder system as Cumberland had already suspended  active
mining and de-energized the longwall section.
     As  a  preliminary  matter,  the  Secretary  asserted at the
hearing  that  a  stray  bullet  hitting  the  No.  1  shaft,  or
lightening   striking  the  shaft,  were  ignition  sources  that
warranted the  107(a)  withdrawal  order.   These assertions were
dismissed at the hearing because such sources  of ignition, while
possible,  are  highly  improbable, and do not pose  an  imminent
threat.
     The Secretary relies  on the possibility of a roof fall as a
potential source of ignition.   Although  an  unanticipated  roof
fall  can  occur  at  any  time, the operative time period is the
several hours personnel were  underground  to  implement  the air
changes.   To demonstrate Cumberland abused its 104(c) discretion
requires a showing  of  some degree of imminence.  The Commission
has noted that the word "imminent"  is  defined as "ready to take
place," "near at hand," "menacingly near,"  or "impending."  Utah
Power & Light Co., 13 FMSHRC 1627 (October 1991).   The Secretary
has failed to identify any specific roof conditions that  were in
danger  of  imminent  collapse.   General speculation that a roof
fall may occur before the air changes  can  be completed is not a
basis for concluding that Cumberland abused its  discretion  when
it sent  personnel underground to make ventilation changes.
     The Secretary also relies on potential sparks from doors  on
regulators,  from  tools to remove concrete block, and from bolts
from spad guns, as potential  ignition  sources.  In response, in
its  Reply  Brief,  Cumberland  relies  on a September  9,  1996,
memorandum  from  Raymond  A.  Mazzoni,  a  mechanical   engineer
assigned  to  MSHA's Roof Control Division, concerning laboratory
analysis of cable  bolt  sparks  as  a  possible methane ignition
source.  In the memorandum Mazzoni concluded ". . . the risk of a
methane ignition from cable bolt sparks was  very  remote."   (C.
Reply   Br.  at  22).   This  conclusion  was  drawn  from  tests
demonstrating  the  spark  temperature  from a cable bolt was too
low, the particle size was too small, and  the  duration  of  the
spark was too short, to ignite methane.
     To  clarify the September 9, 1996, memorandum, the Secretary
proffered  a November 8, 2001, signed declaration by Mazzoni that
cable bolts  are distinguishable from roof bolts because they are
made of flexible  strands  of cold-drawn steel rather than solid,
hot-rolled  steel  bars.[7]   Thus,  the  Secretary  asserts  the
memorandum's conclusion, that the  ignition  potential  for cable
bolts is remote, does not apply to roof bolts.  In any event, the
Secretary does not contend that roof bolting was occurring in the
bleeders  during  the  air  changes.  In the final analysis,  the
Secretary has not shown that  the  ignition  potential  of a bolt
being  installed  by  a  spad  gun  is  greater than the ignition
potential created by installation of a cable bolt.
     As  noted,  the  operative period for considering  potential
ignition sources is the period necessary to make the air changes.
While  sparks  are  common  at  the  face  during  normal  mining
operations, speculation  that  a rare occurrence, such as a spark
from opening a door or a regulator,  or, a spark generated from a
spad gun, may occur in the bleeder during  an air change does not
support  the conclusion that there was an impending  threat.   In
this regard, I credit the testimony of Peelor and Dubois that, in
their experience,  they  had  never  seen  sparks  generated from
moving  regulator  doors  or  hanging curtains or moving  blocks.
(Tr. 1696, 1699, 1810 1853).  Moreover, miners making air changes
in  areas  with explosive concentrations  of  methane  are  on  a
heightened state of alert to avoid actions that potentially could
create ignition sources.
     Thus, the  Secretary  has  not  shown  more  than  a  remote
likelihood  of  ignition  sources  in  the bleeder entries in the
early morning hours of July 6, 2000, when  air changes were being
made.  Consequently, the Secretary has not shown  that Cumberland
abused the discretion committed to it by section 107(a)  when  it
sent  persons underground to evaluate and correct the potentially
hazardous bleeder conditions.
     In  reaching  this  conclusion,  I recognize the Secretary's
belief that it would have been more prudent to wait until methane
conditions at the fan shaft had improved  before  initiating  the
air  changes.   In  hindsight, the bleeder methane dissipated and
the Secretary's belief  proved  to  be  correct.   However,  when
viewed  prospectively, delaying implementation of the air changes
ultimately   could   have   increased   the   risk   if   methane
concentrations in the bleeder had continued to rise.
     In   the  final  analysis,  Cumberland's  decision  to  send
personnel underground  to  make air changes in its bleeder system
after  midnight on July 6, 2000,  when  active  mining  had  been
suspended  and  all  other  personnel had been withdrawn from the
mine, was within the scope of  its authority under section 107(a)
of the Mine Act.  The evidence does  not  reflect that Cumberland
abused its authority.  Accordingly, 107(a)  imminent danger Order
No. 7076284 shall be vacated.
                              ORDER
     1.  Cumberland's request to withdraw its  contests in Docket
Nos.  PENN  2000-207-R  and  PENN  2000-208-R  because   of   its
settlement  of  Citation  Nos.  2840951 and 2840952 in Docket No.
PENN 2001-94 IS GRANTED.  ACCORDINGLY,  the  contests  in  Docket
Nos. PENN 2000-207-R and PENN 2000-208-R ARE DISMISSED.
     2.  The Secretary's request to vacate Order Nos. 3657294 and
3657297  IS  GRANTED.   ACCORDINGLY,  the contest proceedings  in
Docket Nos. PENN 2000-209-R and Penn 2000-210-R ARE DISMISSED.
     3.  In view of the above, IT IS ORDERED that 104(a) Citation
No. 3657290 IS MODIFIED to reflect the cited violation  was  
attributable  to Cumberland's   moderate   degree  of negligence.
ACCORDINGLY, Citation No. 3657290 IS AFFIRMED as  modified  and 
the contest in Docket No. PENN 2000-181-R IS DENIED.
     4.   IT  IS  FURTHER  ORDERED  that  104(d)(1) Citation  No.
3657291 IS AFFIRMED. ACCORDINGLY, the contest in Docket No. PENN 
2000-182-R IS DENIED.
     5.  IT IS FURTHER ORDERED that 107(a)  Order  No. 7076284 IS
VACATED. ACCORDINGLY,  the  contest  in  Docket  No.  PENN  
2000-183-R  IS GRANTED.
     6.   IT IS FURTHER ORDERED that RAG CUMBERLAND RESOURCES  LP
SHALL PAY a  civil  penalty  of  $15,000.00  is  satisfaction  of
Citation  Nos. 3657290 and 3657291.  Payment is to be made within
40 days of  the  date  of  this decision.  Upon timely receipt of
payment, the civil penalty proceeding in Docket No. PENN 2001-63-
A IS DISMISSED.
                                 Jerold Feldman
                                 Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301
Grant St., 20th Fl., Pittsburgh, PA 15219-1410 (Certified Mail)
Susan  Jordan,  Esq.,  Donald  K.  Neely,  Esq.,  Office of 
the Solicitor, U.S. Department of Labor, The  Curtis Center, 
Suite 630E, 170 S.  Independence  Mall  West, Philadelphia, 
PA  19106-3306 (Certified Mail)
Judy Rivlin,  Esq.,  United  Mine  Workers  of  America, 8315 
Lee Highway, Fairfax, VA 22031-2215 (Certified Mail)
/hs
**FOOTNOTES**
     [1]: At Cumberland's request, on July 31, 2001, Chief 
Judge Barbour severed contested Citation Nos. 3657290 and 
3657291 from unrelated citations in Docket  No. PENN 2001-63 
and placed these contested  citations in Docket No. PENN 
2001-63-A to facilitate resolution of the issues in these 
proceedings.
     [2]: The  provisions of section 75.323(e), 30 C.F.R. 
 75.323(e), the mandatory safety  standard  governing methane
levels in bleeders, specifies that methane concentrations, 
determined by readings taken in a split of air immediately 
before that split  joins another split of air, shall not 
exceed a 2.0 percent.
      [3]: Under Section 103(i),  gassy  mines  are subject 
to a minimum of one spot inspection every five working days 
at irregular intervals.
     [4]: Cumberland and government exhibits will be designated 
as "R" and "G", respectively.
     [5]:  As discussed infra, while adjustments  to  regulators  
may  not require MSHA  approval, the  closing  of regulators that, 
in effect, void MSHA's  approved  BEP  locations,  may constitute  
a  modification  of  the ventilation plan that requires MSHA 
approval.   Cumberland  has  not  been charged with a violation of 
its approved ventilation plan.
     [6]:  Hixson  testified  that  he  inadvertently  omitted  
the  above bracketed  words  "all persons except" when he issued 
Citation No. 3657290. (Tr. 310-12).  Cumberland  does  not  claim 
that this clerical error in the citation misled or otherwise 
prejudiced it in its preparation for trial.
     [7]: The September 9, 1996, memorandum,  which  was not 
introduced by Cumberland at trial, was considered over the 
objections  of  the Secretary. However, the Secretary was provided 
with the opportunity to respond  to the memorandum. The  Secretary 
did so by offering Mazzoni's November 8, 2001, declaration.