.
CONSOLIDATION COAL COMPANY
July 19, 1996
WEVA 94-57


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            July 19, 1996

SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. WEVA 94-57
               Petitioner          :  A.C. No. 46-01968-04121
          v.                       :
                                   :  Blacksville No. 2 Mine
CONSOLIDATION COAL COMPANY,        :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. WEVA 94-366
               Petitioner          :  A.C. No. 46-01968-04149 A
          v.                       :
                                   :  Blacksville No. 2 Mine
SAMUEL J. MCLAUGHLIN, employed by  :
  CONSOLIDATION COAL COMPANY,      :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. WEVA 94-368
               Petitioner          :  A.C. No. 46-01968-04148 A
          v.                       :
                                   :  Blacksville No. 2 Mine
J.T. STRAFACE, employed by         :
  CONSOLIDATION COAL COMPANY,      :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. WEVA 94-384
               Petitioner          :  A.C. No. 46-01968-04150 A
                                   :
          v.                       :  Blacksville No. 2 Mine
                                   :
ROBERT WELCH, employed by          :
  CONSOLIDATION COAL COMPANY,      :
               Respondent          :


                             DECISION

Appearances:  James  B. Crawford,  Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia, for
              the Petitioner;
              Elizabeth S. Chamberlin, Esq., Consol Incorporated,
              Pittsburgh, Pennsylvania, for Consolidation Coal
              Company;
              Stephen D. Williams, Esq., Steptoe & Johnson,
              Clarksburg, West Virginia, for Consolidation
              Coal Company.

Before:  Judge Barbour

     These are civil penalty proceedings brought by the Secretary
of Labor (Secretary)  pursuant  to sections 105(d) and 110(c) of
the Federal Mine Safety  and  Health Act  of  1977  (Mine  Act 
or  Act)  (30 U.S.C.  815(d) and 820(c)).  In Docket No. WEVA
94-57 the Secretary alleges that Consolidation  Coal Company 
(Consol) violated four mandatory safety standards for underground
coal mines at its Blacksville  No. 2   Mine,  an  underground 
bituminous  coal  mine located  in Monongalia County, West
Virginia. The Secretary further alleges that all of the violations
were significant and substantial (S&S) contributions to mine 
safety hazards and were  the result of Consol's unwarrantable
failure to comply with the standards.

     In Docket Nos. WEVA 94-366, WEVA 94-368 and WEVA 94-384, the
Secretary  alleges  respectively  that  the mine's superintendent,
J.T. Straface, its assistant superintendent, Samuel J. McLaughlin,
and its foreman, Robert Welch, "knowingly" violated one of the 
mandatory safety standards alleged in Docket No. WEVA 94-57 (30 
U.S.C.  75.1101-23(a)) and that each individual is liable 
personally for a civil penalty.

     Consol and the individuals deny the alleged  violations. In
addition, the individuals assert that if the violation with which
they are charged  did  occur, they did not knowingly violate it.

     Pursuant  to  notice,  a  hearing was conducted in Fairmont,
West  Virginia, at  which  the  parties  presented testimony, 
documentary evidence and oral argument. During the course of
the hearing  Consol  and  the  Secretary agreed to settle three 
of the alleged violations. Counsels explained  the  settlements 
on  the  record and I approved them (Tr. 1048-1053). I will 
confirm the approvals at the close of this decision.

                   GENERAL BACKGROUND AND ISSUES

     On March 15, 1993, a fire occurred in the belt drive area
of the 16-M longwall section  of  the  mine.   The Secretary
contends that Consol violated 75.1101-23-(a) in that it did
not withdraw persons affected  by  the fire  outby  affected 
areas  as required  by  the   mine's  adopted  and  approved
program of evacuation procedures.

     The principal issues with regard  to  Consol are whether the
alleged violation occurred, whether  it  was S&S, whether it was
unwarrantable, and, if a violation is found,  the  amount of any
civil penalty that must be assessed in light of  the  statutory 
civil penalty  criteria set forth in section  110(i) of the Act
(30 U.S.C. 820(i)).

     The principal issues with regard to each individual are
whether the alleged violation occurred, whether the individual
knowingly  authorized, ordered, or carried  it out, and, if so,
the amount of any civil penalty that must be assessed taking
into account the applicable statutory civil penalty criteria.

                           STIPULATIONS

     The parties stipulated as follows:

          1.   The  Blacksville   [No.   2]   Mine  extracts
          minerals  and  has  products  which  enter  and/or
          affect  commerce,  [and]  is  thereby  under   the
          jurisdiction of the [Mine Act].

          2.   [Consol] is a mine operator, as defined under
          Section  3(h)  of  the Mine Act, [and] is a[n] ...
          operator of the Blacksville [No. 2] Mine.

          3.   [T]he   Administrative    Law    Judge    has
          jurisdiction ... under Section 105 of Mine Act.

          4.   [T]he  assessment of the [c]ivil penalties in
          this proceeding  will  not  affect  the operator's
          ability to continue in business and the individual
          agents  have  the ability to pay their  respective
          assessed penalties.

          5.    [Consol]  is  a large mine operator.  At its
          [m]ine  it employs approximately  440  underground
          miners and  approximately  76  surface  miners  on
          three production shifts (Tr. 11-12).

                THE SECRETARY'S POSITION AT TRIAL

     Counsel for the Secretary contended the evidence would 
show that on March 15, 1993, Consol violated its approved and
adopted program of evacuation  procedures in that it did not
withdraw miners off the 16-M longwall  section  when  a fire
occurred  at  the  section's  belt drive area.  Further, the
named individuals knew about the  fire,  but  did nothing to
insure that the affected miners were evacuated. (Tr. 15-16)

                    CONSOL'S POSITION AT TRIAL

     Counsel for Consol maintained that the fire was discovered
by  the  belt  transfer  man.   He reported it to the tipple
operator, who reported it to the dispatcher.  The dispatcher
immediately  began notifying the affected  crews  and  other
mine personnel.  The fire lasted for only a few minutes.  By
the time the 16-M  section  crew  was  ready to evacuate the
section, the fire was out.

     The  charged  individuals  did  nothing wrong. The mine
foreman,  Welch,  told the crew not to evacuate because  the
fire was out  (Tr.  17-18).   The  assistant superintendent,
McLaughlin, did not even reach the belt  drive  until  after
the  fire  was  extinguished.  The superintendent, Straface,
immediately  implemented   the  mine  evacuation  plan  upon
learning  of  the fire. Only after  the  fire  was  out  was
implementation of the plan stopped (Tr. 18-19).

     There was no violation of section 75.1101-23(a)(1), there
was no unwarrantable failure on Consol's  part,  and none of
the  individuals  knowingly ordered, authorized, or  carried
out a violation (Tr. 20).

                          THE TESTIMONY
                         RAYMOND STRAHIN

     Raymond Strahin,  a federal coal mine inspector for the last
19 years, is a mine ventilation specialist.   As such, he reviews
operators'  ventilation  plans  and  fire  fighting   and   fires
evacuation  programs  and recommends to the MSHA district manager
that the programs be approve or disapprove (Tr. 23).

     Strahin described  the  ventilation system of the 16-M long-
wall section as consisting of  four entries, two of which carried
intake air and two of which carried  return  air.  The belt entry
was  the  closest  entry  to the longwall face (Tr.  31-32).   It
carried return air from the  face.   The  air  flowed  outby  and
turned  into  a crosscut.  The belt did not turn at the crosscut,
but continued straight  down the belt entry to the belt drive and
the transfer point.  At the  transfer point, the belt dumped onto
the mother belt.  From the transfer  point  and belt drive to the
crosscut leading to the regulator, the belt entry  carried intake
air.   At  the  crosscut,  the return air from the longwall  face
mixed with the intake air from  the transfer point and belt drive
and the mingled air passed through  a regulator and into the main
return. (Tr. 71-72)

     In Strahin's opinion, if the fire  at  the  belt  drive  had
spread,  it  would have moved toward the face until it got to the
point where the  air  from  the transfer point mixed with the air
coming down the belt entry.  From there, the fire and smoke would
have moved toward the regulator  (Tr.  71-72,74,97-98).  However,
if enough time passed and the fire developed  unchecked, the fire
and  smoke could have intensified and traveled toward  the  face.
Strahin  observed  that  the course of a fire cannot be predicted
always (Tr. 107).  The first  ten  minutes  are  crucial  to  its
control.  After that, it can burn out of control (Tr. 75).

     Strahin  estimated  that  on March 15, 1993, the velocity of
the air in the belt entry ranged  from 100 feet per minute to 300
feet per minute, the larger figure  being  the velocity closer to
the  regulator  and the lower figure being the  velocity  at  the
transfer point (Tr.  37-38).   However,  Strahin  agreed that the
velocity  of the air traveling from the transfer point  over  the
belt drive and to the regulator could have been as low as 75 feet
per minute (Tr. 78).

     Strahin  also agreed that air pressure in the belt entry was
lower than in the  track  entry.   For  this reason if air leaked
between the belt and track entries, the leaked  air  would travel
from  the  track  entry into the belt entry (Tr. 94).  Therefore,
smoke in the belt entry  most likely would stay in the belt entry
and travel out the return (Tr. 94).

     There was a box check  in  a  portion of the belt entry that
was  ventilated  by  intake  air. (Tr. 36)   The  box  check  was
constructed of cinder blocks.  There was an opening in the center
of the blocks for the belt.  In addition, there was a door on the
side to provide access to the  belt  (Tr.  75-76).  The box check
restricted and slowed the velocity of the air  that flowed toward
the face (Tr. 36-37, 75).

     Strahin  testified  that on March 15, 1993, there  were  two
types of fire detection systems in place on the 16-M section belt
entry, a heat sensor system  and  a carbon monoxide (CO) detector
system (Tr. 41).  The heat sensors  were suspended from the roof,
a foot or two over the belt, and were  installed  every  125 feet
along the belt entry, from the longwall tailgate outby (Tr.  65).
There  was an alarm box for the heat sensors near the face at the
stage loader.   The  alarm was used to alert the longwall crew if
the heat sensors were activated (Tr. 101).

     On March 15, most  of  the  CO detector system was installed
and functioning.  The CO sensors were hung about half way between
the  belt  and the roof (Tr. 80).  There  was  an  alarm  on  the
surface that  sounded  when  the CO reaching a certain level (Tr.
42-43, 110, 111).

     Although the CO detector  system  was  almost  completely in
place,  Consol was relying primarily on the heat sensor's  system
(Tr. 42).   Consol  could  not  rely  officially on the CO sensor
system until a petition for modification  allowing  its  use  was
approved  and  took  affect (Tr. 43).  Consol had applied for the
modification and Strahin investigated Consol's petition (Tr. 77).

     Strahin identified  the  approved  and  adopted  program  of
evacuation  that  was  in  effect  on  March  15,  (Gov. Exh. 4).
Strahin  had  reviewed  the program and recommended to  the  MSHA
district manager that the  agency  approve  it  (Tr. 82).  It was
approved as written by Consol (Tr. 83).

     Part  II.A.&B.  of  the program applied to the  fire  sensor
system.  Part II.A.&B. was  "In  effect  until  implementation of
Petition for Modification, Docket No. M-90-155-C)"  (Gov.  Exh. 4
at  4).   Part  II.C.  of  the  program applied to the CO monitor
system.   Part  II.C.  was  "In effect  after  implementation  of
Petition for Modification, Docket No. M-90-155-C" (Gov. Exh. 4 at
5).  Strahin did not believe  that  the petition for modification
was implemented on March 15 (Tr. 84-85).   Therefore, he believed
that the portion of the program relating to  fire  alarm  systems
under   which   Consol  was  operating  when  the  fire  occurred
"probably" was the  part  for the fire sensor system, and not the
part for the CO monitor system. (Gov. Exh. 4 at 4-5; Tr.86).

     As Strahin interpreted  Part  II.A.&B.,  when  a fire sensor
alarm went off, persons in the affected area were required  to be
"immediately  withdrawn  to  a  location outby the affected area"
(Tr.  45;  Gov. Exh. 4 II.A.2.at 4).   Further,  if  a  fire  was
confirmed but  an alarm was not activated the plan still required
affected miners  to  be evacuated (Tr. 106).  Strahin stated that
no matter how the fire  was  brought  to  Consol's attention, the
plan had to be followed and affected miners  had  to be evacuated
outby the fire (Tr. 71, 112-113, see also Tr. 46, 50).

     Strahin also testified concerning a portion of  the  program
which  stated  in  the  event of a fire, one of the duties of the
longwall foreman was to notify all personnel on the section about
the fire and to see that  they  were  outby it and were accounted
for (Gov. Exh. 4 VII B.1.a.-b. at 7-8;  Tr.  47).  Strahin agreed
that notification was one of the most important things to be done
in   a  fire  situation.   Normally,  miners  were  notified   by
telephone. They were alerted to come to the telephone by a visual
or audible  signal  (Tr. 91-92).  On the M-16 section, the signal
was  a  flashing  light.    It  was  normally  activated  by  the
dispatcher (Tr. 92).

     Finally, Strahin testified  that  he had investigated a fire
that occurred at the belt drive in another  mine.   A  10  to  15
minute  delay in notifying the crew after the fire was discovered
contributed  to  some  of  the  crew  suffering  smoke inhalation
injuries (Tr. 51-52).  In another fire at a different  mine,  the
crew  had  become  separated and miners had died as a result.  In
Strahin's view, that  was  why  it  was important the miners on a
section be gathered together and be evacuated  together  (Tr. 87-
88).

                           GARY KENNEDY

     Gary  Kennedy  was  the  day  shift headgate man on the 16-M
section.   With  him  were  Harold Zupper,  Harold  McClure,  Ron
Griffin, Richard Talkie and Marvin Fischer.

     Kennedy stated that on March  15,  he  was  working  at  the
headgate, about 5,000 feet from the belt transfer point (Tr. 120-
121,205).   Around  12:30 p.m., he received a telephone call from
the tipple man.  The  tipple man told Kennedy that the belt drive
was on fire.  Although  Kennedy  did  not know at the time, Danny
Ammons, who was working at the belt transfer,  had  reported  the
fire to the tipple man (Tr. 138).

     Kennedy  had  suspected  a problem at the belt drive because
the belt had quite running shortly  before the tipple man called.
There was a fire suppression system at  the belt drive that, when
activated, stopped the belt and sprayed it  with  water.  Kennedy
speculated  that  the  fire  suppression system had shut down the
belt (Tr. 154, see also Tr.67).

     While Kennedy was talking to the tipple man, the heat sensor
system alarm at the tail piece  started to beep and the red light
on the alarm stated to flash (Tr.  121-122).   Activation  of the
alarm confirmed there was a fire on the belt line (Tr. 122).

     Kennedy testified that he had been trained to respond to  an
alarm by going to an intake air entry and moving to a point outby
the   fire   area   (Tr.  136).   Kennedy  shut  off  the  alarm,
disconnected the power  at  the  longwall  face,  and  called the
miners along the face on the face telephone system (Tr. 123, 125,
141).

     There  were  two  telephone  systems  at  the  headgate, one
connected the longwall face with the belt transfer point  and the
tipple.   The other connected the headgate with points along  the
face.  In addition  to  these  two  systems,  a  telephone system
connecting  the  longwall  section to all parts of the  mine  was
located in the track heading  by  the  dinner hole (Tr. 148).  To
notify the crew of something, the mine dispatcher  either  called
on  the  mine system or called the tipple operator, who, in turn,
called the crew (Tr. 149).

     Kennedy  told the miners to assemble at the headgate because
there  was an emergency  (Tr.  123).   Tim  Nester,  the  section
foreman, was not in the face area.  He previously had walked down
the belt entry to conduct a preshift examination of the belt
(Tr. 131-132).  However, Zupper, McClure, and Griffin appeared
at  the headgate.   Freeland,  the  longwall  coordinator  and  a
management  employee,  was  missing.  Kennedy asked where he was.
Zupper said that Freeland had  gone  down  the  tailgate entry to
check spad readings.  Kennedy stated that he would  go  and  find
Freeland  and  that he and Freeland would walk outby the fire via
the tailgate entry.   Zupper stated that the other members of the
crew would exit via the intake escapeway, on the tailgate side of
the longwall (Tr. 125, 142).

     Kennedy found Freeland  at the tailgate end of the longwall.
(Tr.126)  He told Freeland that  there  was  a  fire  at the belt
drive  transfer.   Each  man  picked up a self rescue device  and
together they proceeded down the  tailgate  entry, through a door
at the crib line and out the track entry (Tr. 127, 143).  Kennedy
believed  that  while  he  and Freeland was walking  out  of  the
section, the rest of the crew also was walking out via the intake
escapeway (Tr. 128)

      It took about 20 to 25  minutes for Kennedy and Freeland to
reach the mouth of the 16-M section  (Tr.  129, 143). Once there,
Kennedy  and  Freeland walked to the site of the  fire.   Several
jeeps were parked  in the area.  Tim Nester was there and someone
told Nester to take Kennedy and Freeland back to the 16-M section
because the fire was out (Tr. 131-132).

     Kennedy looked at the fire site.  He saw McLaughlin "kind of
like kneeling down"  (Tr. 131).  According to Kennedy, McLaughlin
had "a little red hose  like  he was washing off the bottom belt"
(Id., 157-158).  In addition to  Nester  and  McLaughlin, Kennedy
saw Ammons in the area (Tr. 131).

     Kennedy  did  not see any hot coals, steam,  or  smoke  (Tr.
150).  Ammons told Kennedy  that  when  he opened the door to the
belt drive, he saw the fire blazing and went  to the telephone to
report the fire.  When he returned to the belt  drive,  the  fire
had  been  extinguished  by the fire suppression system (Tr. 151-
152).

     Kennedy stated he noticed  a  charred  smell  and  could see
where  the  belt  had  "burned"  (Tr.  132).  The bottom belt was
"blistered"  and  "melted"  (Tr. 153-154).  Kennedy  agreed  that
given the ventilation system  of the longwall, any smoke produced
by a fire would have moved away  from  the  face and the longwall
section crew (Tr. 146).

     Kennedy,  Freeland  and  Nester  took  a jeep  back  to  the
longwall section.  When they reached the section,  they found the
other crew members there.  Kennedy was surprised because  when he
left the section the crew was getting ready to evacuate (Tr. 133-
134).

     Kennedy  and  the  crew  discussed  the  fire  and  Consol's
response.   As  the  crew  was  talking  about what had happened,
Zupper stated that it was Welch who told him the fire was out and
that the crew should stay on the section.

     Kennedy  recalled  someone saying the situation  could  have
been similar to one at another  mine  where  miners were told the
fire was out and were sent back to their section  only  to perish
subsequently because the fire was not out (Tr. 133).

                          RONALD GRIFFIN

     Ronald Griffin, the shield man on the 16-M longwall section,
testified  that  on  March 15, he was working at the face pulling
shields when he received  a telephone call from Kennedy.  Kennedy
told  him  there was a fire at  the  belt  drive  (Tr.160,  172).
Zupper and McClure  also  were  working  at  the face.  The three
miners   left   the   face  together  (Tr.  172).   They   walked
approximately 300 feet,  past  the  headgate  and  into the track
entry  where  Griffin saw the strobe light blinking by  the  mine
telephone.  He  picked  up  the  telephone  and Welch told him to
gather the crew and to stay there (Tr. 161-162,  174).   At  this
time  Zupper, McClure, and Talkie were in the vicinity (Tr. 178).
Nester was "down the belt" (Tr. 175).

     Griffin  went back to the face area and told the rest of the
crew what Welch  had  said Tr. 160-162, 173, 177).  After Kennedy
left to look for Freeland,  Zupper  went to the mine telephone to
advise  management  that the rest of the  crew  was  leaving  the
section by walking down  the  intake.  Griffin stated that he did
not know with whom Zupper spoke,  but  that the group was held up
leaving  while Zupper was on the phone.   According  to  Griffin,
after he hung up, Zupper advised the group that the fire was out,
and the group remained on the section. (Tr. 163-164, 180).

     Griffin  stated  that if miners were not assigned to fight a
fire, they were trained  to  evacuate  by  walking down an intake
entry  and proceeding outby the fire.  The group  discussed  this
and talked  about  what they should have done (Tr. 167, 181).  In
Griffin's opinion, "[w]e  should  have  just gone ahead and taken
off.  We shouldn't have even looked back,  we shouldn't even have
been on the phone.  We should have just went  ahead  outby"  (Tr.
181).
                        HAROLD ZUPPER, JR.

     Harold Zupper, Jr., the day shift shear operator on the 16-M
section,  was  working  at  the  face  with  McClure on March 15.
Shortly after noon, Kennedy called Zupper on the  face  telephone
system and told him there was a fire at the belt drive (Tr.  185,
198).   Zupper  and  McClure  walked off the face and the two met
Kennedy at the headgate (Tr. 199).  The belt was not running (Tr.
209).

     Zupper told Kennedy that Freeland and Nester were not at the
face (Tr. 200).  Zupper suggested  to Kennedy that he try to find
Freeland while the rest of the crew evacuated the section
(Tr. 185).

     Zupper, Talkie, and Griffin discussed the situation with the
rest of the crew.  Ultimately, the crew decided to take the track
entry out, because the track entry was on fresh air and a vehicle
was there that they could ride.  The crew started down the entry.
After a few minutes, McClure suggested  they  go  back, telephone
the dispatcher, and tell him the route that they were taking (Tr.
186, 191, 203).

     Zupper and McClure went back to the mine telephone.   On his
way  to the telephone, Zupper heard mine superintendent  Straface
paging mine foreman Welch over the telephone pager unit (Tr. 189-
190, 204).   Up  to  this  time  Zupper  had not spoken to Welch,
Straface, or McLaughlin, and he had no idea  what  they  had been
doing (Tr. 205).

     Zupper  got on the telephone and spoke with Welch, who  told
him that the fire  was  out  (Tr.  186).   Welch  stated the crew
should  stay  together  on  the  section  (Tr. 186-187).   Zupper
believed  that  Welch was at the dump, approximately  five  miles
from the 16-M section  (Tr.  188-189).   After  receiving Welch's
instruction, the crew remained on the section (Tr. 189).

     A short time later, Nester arrived.  Zupper  thought  Nester
was  surprised  that  the crew was still on the section (Tr. 189,
212).  However, Zupper  did not know whether Nester was aware the
crew had been informed that the fire was out (Tr. 212).

     Zupper had worked with  Welch  for 25 years and trusted him.
When Welch told Zupper the fire was out, Zupper did not doubt it.
He did not feel that his safety was in  any  way  endangered (Tr.
207-208).  Nevertheless, the crew discussed the fire and Consol's
response  to  it.   They  specifically talked about another  mine
where the crew had remained  on the section and died because they
mistakenly thought the fire was out (Tr. 194, 213, 216).

     Zupper agreed that on March  15, the air that ventilated the
belt  was  traveling away from the face.   Therefore,  any  smoke
along the beltline  would  not  have  moved  toward the face (Tr.
211).   Although  Zupper  thought  the  crew  should   have  been
evacuated  outby  the  fire,  he never complained to Welch or  to
Nester about the incident (Tr. 212, 214-215).

                          HAROLD McCLURE

     Harold McClure, the day shift shearer operator's helper, was
working at the face with Zupper on March 15 (Tr. 219).  McClure's
testimony regarding how he learned of the fire and the subsequent
actions  of the crew mirrored Zupper's  (Tr.  220-222).   McClure
stated that  he  was  unaware  of  to  whom  Zupper  spoke on the
telephone  and that he did not know who told Zupper to  have  the
crew stay on the section (Tr. 222).

     McClure  stated  the  miners were concerned about whether or
not the fire really was out  when they subsequently discussed the
incident  (Tr.225).   As  McClure  understood  the  approved  and
adopted program, even if a fire was out, the crew was supposed to
evacuate (Tr. 227).

                       RICHARD ALLEN TALKIE

     Richard Allen Talkie, the day shift longwall mechanic on
the 16-M section, was  working at the longwall face on March
15 (Tr. 229-230).  Talkie's  testimony  about how he learned
of  the  fire  and  the  subsequent  actions  of   the  crew
essentially  was the same as Zupper's and McClure's,  except
that Talkie did  not  believe the crew actually started down
the  intake  entry  (Tr.  220-222).   Rather,  according  to
Talkie, before the crew could  begin  to evacuate, they were
told by Zupper to stay put, that the fire  was under control
(Tr. 231, 235).

     With regard to damage caused by the fire, Talkie stated that
he  was told by a beltman, whose name he could  not  recall, that
30 feet  of  the  belt was scorched and blistered.  However,
Talkie did not see the belt (Tr. 237).

                         KENNETH STEWART

     Kenneth Stewart was the dispatcher at the mine.  As the
dispatcher,   one   of   his   duties   was   to  coordinate
communication  with mine personnel in the event  of  a  mine
emergency (Tr. 239).   If  the  emergency was a fire, he was
supposed to get miners outby the  fire as safely and quickly
as possible (Tr. 240).

     Stewart explained that in the dispatcher shanty where he
worked there  were  three different telephone systems -- the
mine telephone, the trolley telephone and the city telephone
(Tr. 252).  To communicate  with  management  personnel  and
miners,    Stewart  used  the  mine telephone system and the
trolley system (Tr. 241).

     Stewart testified that the March 15 fire was reported to 
him by the tipple man. Stewart tried to page the 16-M section
by using the mine telephone system.  As  Stewart  put it, he
"hollered at the section a couple of times" (Tr. 243,  253).
When he did not receive an answer, he turned on the flashing
light located above the mine telephone.  He also activated a
similar  light  on the 17-M section (Tr. 254).  In addition,
Stewart called McLaughlin  over  the  trolley  telephone and
told him about the fire.  Stewart estimated that  McLaughlin
was about a mile and a half to two miles away from  the 16-M
section.   McLaughlin got in a jeep and headed for the  fire
(Tr. 249-250).

     Stewart then called Straface and told him there was a fire
in the mine.  (At this  time,  Straface  was  in  either the
superintendent's   office  or  the  mine  foreman's  office.
Stewart was not sure  which.)   Straface  got  on  the  mine
telephone  and  Stewart heard him "holler" at Welch, who was
at  the  dumping  point,  near  the  bottom  of  the  shaft.
Stewart stated that  he  did  not  know if Straface realized
Stewart was still on the line and was listening (Tr. 246).

     According to Stewart, Straface asked  Welch what was going
on.   Welch replied that Stewart was  handling  the  situation.
Straface  told  Welch  to  take  over  (Tr.  247).   Stewart
understood    this to mean he was supposed "to get the  hell
off the phone"  (Id.).   Stewart  was  upset  and would have
"punched  [Straface]  in  the  mouth"  if he could,  because
Straface  "was  taking over my job" (Tr. 264-265).   Stewart
did not know if the  crew  was ever evacuated outby the belt
drive area (Tr. 250-251).

                           DANNY AMMONS

     Danny Ammons was in charge of the belt transfer area of
the 16-M section. His duties required him to check  the belt
tailpiece  from  time  to  time  (Tr.  268).   Early  in the
afternoon of March 15, Ammons received a telephone call from
Kennedy, who asked Ammons to take the slack out of the  belt
at  the tailpiece.  To do this, Ammons had to go to the belt
drive  area (Tr.269).  To reach the tailpiece, Ammons walked
along the belt entry, crossed an overcast and proceeded to a
second overcast.   At  the  overcast  there  was  an airlock
within  a set of doors.  Ammons went through the first  door
and entered  the air lock.  The belt ran through the airlock
(Tr. 292).  He  noticed smoke and haze around the belt.  The
belt had quit running  and  Ammons  speculated  that  it was
slipping  on  its  rollers  and  the  resulting friction was
producing  the smoke or haze (Tr. 284-285).   Ammons  opened
the second door  and  saw  more  smoke.   Almost at the same
time,  there  was  a sudden flare of flames.   According  to
Ammons,  "[i]t exploded  like  gasoline  would"  (Tr.  272).
Although the fire could have been in existence before Ammons
opened the second door (Tr. 304), he speculated that when he
opened it, a bust of oxygen caused the fire to intensify and
flames to erupt (Tr. 295).

     Ammons returned to the belt transfer area and called the
tipple to report the fire.  He was  not  sure  with  whom  he
spoke  (Tr. 273).  Ammons asked the person at the tipple  to
notify the  dispatcher  and  "whoever  else  they  needed to
notify" (Tr. 274).

     Returning to the fire, Ammons traveled up the track entry.
He reached a  door leading to the belt entry.  Ammons  opened
the door and noticed  smoke that extended from the roof half
way to the floor.  He also  saw the legs of a person walking
through the smoke.  It was Nester (Tr. 275-276, 300).

     Accompanied by Nestor, Ammons retraced his steps to the
air lock doors. Ammons and Nester put on self rescue devices
and  entered the air lock (Tr. 278).  One of the  sprays  of
the fire suppression system was on and the fire was out (Tr.
279, 291,  304).   Ammons  estimated that only a few minutes
had elapsed since he first saw the fire (Tr. 296).

     Ammons and Nester did not go  too  close to the site of 
the fire because it was wet. While they waited,  miners  and
management personnel  arrived  (Tr.  285).   McLaughlin  was
among  the  management  personnel  (Tr. 285).  Freeland  and
Kennedy also were present (Tr. 286).   As  Ammons  recalled,
McLaughlin took a hose and started spraying "some hot  coals
and stuff" (Tr. 286).

     Ammons noticed some badly scorched brattice  boards  and 
about 40 feet of blistering on the bottom of the belt (Tr. 287,
297).  Ammons believed  that  if the fire suppression  system
sprays had not activated, the fire  would have gotten out of
control (Tr. 289).

     Ammons stayed in the area for about an hour. He and other
miners  kept  checking the coal under the belt to make  sure
that there was  no  heat  and  that the fire did not restart
(Tr. 309).

     Ammons stated that as part of the fire training he received
at the mine, he knew that miners were  supposed  to evacuate
to  an  area  outby  the  fire  (Tr.  289).   Regarding  the
direction  in which the smoke from the fire traveled, Ammons
agreed that it went through the regulator and out the return
(Tr. 301).

                          TIMOTHY NESTER

     Timothy Nester, the foreman of the  16-M  section,  was
conducting  a preshift examination of the belt line on March
15  (Tr. 731).  As he approached a point inby the regulator,
he noticed the  belt  slowing, and then it stopped (Tr. 718-
719).  About the same time,  Nester saw smoke coming through
the box check and traveling toward  the  regulator.   Nester
prepared  to leave the entry and was about to do so when  he
saw Ammons (Tr. 313-314, 720).

     He and Ammons walked to a door that lead to the belt drive
area.  When they opened  the  door, Nester saw layered smoke
and water spraying but no open  flames  (Tr. 315, 721, 723).
They checked both sides of the belt to determine  the extent
of the problem (Tr. 316), but they did not examine  the belt
all  of  the  way  to  the  longwall face (Tr. 729).  Nester
estimated that five to fifteen  minutes  passed before other
miners,  including McLaughlin, arrived (Tr.  319).    Nester
called Straface (Tr. 319).  Straface wanted to know what the
situation  was.   Ammons told Straface that the fire was out
and that "everything was okay" (Tr. 320, 725).

     Nester had to leave the belt drive area to make the call,
and when he returned he saw Kennedy  and  Freeland.   Nester
asked  Kennedy  where  the  other  longwall miners were, and
Kennedy  stated  that  he did not know  (Tr.  321).   Nester
assumed the other crew members  had  evacuated  the  section
(Tr. 322).

     Subsequently, Nester, Kennedy, and Freeland went back to 
the longwall section where they found  the other miners (Tr.
323).  Nester stated that although he was  surprised  to see
the crew, he would not have been "if I knew when and at what
time they knew the fire was out" (Tr.322).

     Nester stated that if he had been on the longwall section
and had been notified of the fire, he would have immediately
evacuated the crew.  He was trained to follow this procedure
(Tr. 323-324).  He stated,  "[i]f  we know where the fire is
located  [our responsibility] is to get  outby  that  point"
(Tr. 324-325).   However,  if  he  was notified subsequently
that the fire was out and if the crew  was not yet outby, he
would not have evacuated them (Tr. 324).

                          MICHAEL AYERS

     Michael  Ayers was the president of the union  local  and  a
member of the mine safety committee.  He did not work at the mine
on March 15.  When he came to work on March 16, Zupper complained
to him that there  had  been  a  fire  on  March 15, and that the
longwall crew had been stopped from evacuating.   Ayers testified
that the crew was concerned because the fire fighting  evacuation
program  required  miners "to evacuate and go outby" the fire  if
they received a fire  signal  at  the headgate (Tr. 327; see also
Tr.  329).   In addition, the crew was  supposed  to  notify  the
dispatcher that they were leaving, advise the dispatcher how many
miners were in  the  group,  and state the route they were taking
(Tr. 329).

     According to Ayers, on March  15, the fire sensor system was
the primary means of fire detection and the CO monitor system was
secondary, but Consol's miners were  trained to respond to either
system (Tr. 329).

                          MARVIN FISCHER

     Marvin Fischer did electrical and mechanical work on the day
shift.   As part of his job, Fischer worked  on  the  CO  monitor
system (Tr. 347).  Fischer stated that there was a CO sensor
over the belt drive so that the air coming across the drive would
"hit" the  sensor  (Tr.  351,  357,  359).   The  next sensor was
located  at the regulator, approximately 100 feet from  the  belt
drive (Id.).  Given the location of the sensors, Fischer believed
that if there was a fire at the belt drive, the CO monitor system
would have  detected  it and triggered an audible alarm at the CO
monitor system station, which was located in the main mine office
building, adjacent to the  offices  of  mine management officials
(Tr. 351-353).  In his opinion people in those offices would have
heard the alarm (Tr. 354).

                         SPENCER SHRIVER

     Spencer Shriver is an electrical engineer  and  an MSHA mine
inspector.  Shriver conducts electrical inspections, as  well  as
evaluates  petitions  for  modification  of  standards.   Shriver
learned of the March 15 fire on March 17, when he was told  about
it by miners' representatives. (Tr. 362-363).

     Shriver  went  to  the  mine  office to check the CO monitor
system  print-out.   At  the  office  Shriver  encountered  Elmer
Brooks, the mine's maintenance supervisor,  who told Shriver that
he  had  heard the CO system alarm on March 15,  had  called  the
dispatcher, and had told the dispatcher there was a fire alarm on
the 16-M belt drive (Tr. 364, 375-376).  Brooks also told Shriver
that the audible  alarm  was  confirmed by the CO system computer
print-out (Id.).

     When Shriver looked at that print-out, it showed that a fire
warning indeed had been given.  (The  system gives a warning when
CO  reaches a level between 10 and 15 parts  per  million.)   The
print-out showed a reading of 11 parts per million, which, in a
few seconds, rose much higher (Tr. 365).)

     Later  that  day,  Shriver  spoke with Danny Ammons.  Ammons
told Shriver how he discovered the  fire.   Shriver's description
of what Ammons said essentially tracked Ammon's testimony.

     Shriver also spoke with Kennedy about the  fire.   Shriver's
description  of  what  he  was told by Kennedy followed Kennedy's
testimony.  Similarly, Shriver's  description of what Zupper told
him  paralleled  Zupper's testimony (Tr.  369,  451,  453,  497),
except that Zupper did not want to identify to Shriver the person
who directed the crew  to stay on the section.  He would not tell
Shriver whether the person  was from management or was a rank and
file miner (Tr. 373).

     Nevertheless, Shriver came  to  believe  that  Welch was the
person who had directed the crew to stay.  Shriver's  belief  was
based on a conversation he overheard.  On March 24, 1993, another
MSHA inspector asks Welch if Welch knew who told the crew to stay
on  the section and Shriver heard Welch reply that he, Welch, did
(Tr. 385).

     Shriver described the conversation this way:

          We  were  in a small room where the inspectors put
          their gear  on,  and I had heard some mention that
          the person who had  called  the  section  and told
          them  to  stay  there  was  Mr.  Welch, but he was
          pretty highly regarded by the rank and file people
          and they didn't want to name him.

          *              *              *              *

          I wondered how we could determine who did call the
          people and ... Welch was standing  in the doorway.
          And [the other inspector] says, very  easily.   He
          says,  hey, Bob who called the 16-M section during
          the fire the other day and told them not to leave.
          And ... Welch said, well, I did (Tr. 457).

     Shriver also maintained that subsequent to this conversation
Welch again specifically  stated  that  he  told the crew to
stay on the section (Tr. 471-472).  Shriver therefore was of
the  opinion  that  Welch knowingly ordered, authorized,  or
carried out a  violation  of  the  evacuation  program  (Tr.
502).

     Shriver was asked his views about whether or not McLaughlin
knowingly  failed  to withdraw the  affected  miners.  Shriver
acknowledged that he did not speak with McLaughlin regarding
his  response to the  fire.   Shriver  did  not  know  where
McLaughlin  was  when the fire occurred, or if McLaughin had
given any orders regarding  the fire (Tr. 414-415).  Nor did
he know when McLaughlin first  reached  the site of the fire
(Tr.  470-471,  490).   When  he  was asked if  he  believed
McLaughlin knowingly ordered, authorized, or carried out the
violation  alleged,  he replied, "I really  don't  have  any
information that would indicate that he did" (Tr. 501).

     With regard to Straface, Shriver stated that he did not
know for sure where Straface was when the fire occurred, but
he  assumed  that  Straface  was  not  underground.  Shriver
recalled Straface describing  what the company did regarding
the fire and stating that he was  prepared  to  bring  water
cars to the scene (Tr. 415).  This indicated to Shriver that
Straface knew about the fire (Tr. 473).

     In a later meeting with MSHA  that involved Shriver and
Straface,  Shriver  remembered  Straface   saying  that  the
company  had  made a mistake.  Shriver interpreted  this  to
mean that Straface   conceded  Consol  should have evacuated
the miners from the section (Tr. 473-474,502).   However, he
also  agreed that he did not ask Straface what he meant  and
that during  the meeting Straface argued vehemently that the
company had done nothing wrong (Tr. 491-492).

     Shriver testified that  after  nterviewing  the  miners
regarding the incident, he saw  MSHA Inspector McDorman, who
told Shriver that MSHA had learned  enough to justify citing
Consol  for a violation of section 75.1101-23  in  an  order
issued pursuant  to  section  104(d)(2)  of  the  Act.   The
violation  consisted  of  "having  a  fire  and  failing  to
evacuate  the  crew"  (Tr.  369-370).  (McDorman  issued the
order,  and  Shriver reviewed its contents and countersigned
it (Gov. Exh. 6; Tr. 370-371, 405).)

     Shriver believed that Consol violated Part II.A.2. of the
fire  evacuation  program, which stated  if  a  fire  sensor
system alarm occurred, persons in the affected area would be
notified and would  be  immediately  withdrawn to a location
outby the affected area (Gov. Exh. 4 at  4; Tr. 377).  Based
upon what Kennedy told him, Shriver concluded  that the fire
sensor system alarm had indeed gone off on the 16-M  section
(Tr.  377).   Shriver  was  asked  what  he  understood "the
affected  area"  to be.  He responded that it was  the  16-M
belt drive, since  that  was  the  area involved in the fire
(Tr. 376).

     With regard to Part II.C. of the program, the part relating
to the CO monitor system, Shriver maintained that Consol was
required to follow it (Tr. 472-473).  Shriver stated:

          At the time I assumed that [Part II.C.] did apply,
          since ... as I recall, ... [The CO monitor system]
          ... had been ... partially installed for ...
          at least a year ... the only thing they  had  left
          to  ... install ... was the final sensor up at the
          section  ...  and a[n] ... out station.  So in all
          intents and purposes,  the  system  was  installed
          (Tr. 447-448).

     Shriver also stated that as he understood the program, once
a foreman or any management person knew there was a fire  on
a  section,  the person's first responsibility was to insure
the crew was evacuated outby the affected area (Tr. 481).

          [A]s I read  the  plan,  on  belts, whether it's a
          fire  sensor  alarm or CO monitor  alarm  ...  the
          plans calls to  immediately withdraw the people to
          a location outby the affected area.

          *              *              *              *

          If [the fire is]  of a sufficient magnitude to set
          off one of these alarms,  then  the way I read it,
          the  crew  should  be  withdrawn  ...   .    [T]he
          potential hazard of a fire out of control and  the
          rapidity with which fire can get out of control, I
          think  that's  what  causes  these  plans to be so
          demanding  in getting the people off the  sections
          and then figuring out what's wrong (Tr. 499-500).

     It did not matter whether the fire lasted five seconds or
fifteen minutes, the crew had to be evacuated (Tr. 500-501).

     Regarding Consol's  negligence in allegedly violating the
program,  Shriver  agreed with McDorman that it was  "high."
Management officials  knew of the fire yet directed the crew
to remain on the section (Tr. 373).

     Shriver believed the alleged violation  was  caused  by
Consol's unwarrantable failure because  "management ... told
the people to stay on the section even after  a  clear  fire
alarm had been sounded" (Tr. 404).  Later, Shriver was asked
if   during   the   investigation  he  learned  whether  any
management person at  the  mine  actually knew that the fire
alarm system had activated.  Shriver  responded,  "[n]ot the
point sensor fire alarm, no" (Tr. 411).

     Shriver  described the alleged violation as  "extremely
serious and  potentially  disastrous"  (Tr. 387). Consol had
experienced  past  fires  at  its  mines  and  one,  at  the
Blacksville No. 1 Mine, had resulted in fatalities (Tr. 386-
387).   He stated that the decision not to evacuate  because
the fire  was out was "fraught with great danger" (Tr. 387).
He explained,  "[w]hen  that  decision had been made, no one
had really walked the belt to see  if  any  burning material
had been carried back into ... the belt entry  and  possibly
started another fire" (Tr. 387).

                         RICHARD McDORMAN

     Richard McDorman was the regular inspector for MSHA  at
the  Blacksville No. 2 Mine.  In that capacity, he inspected
all areas of the mine. McDorman was not at the mine on March 
15, but he went on March 17. Shriver was also at the mine that
day.  When Shriver told McDorman he had received a complaint
about a fire at the belt drive, the two inspectors  began an
investigation (Tr. 505-506).

     While he was still above ground, McDorman looked at the
on-shift  examination book for March 15.  The book contained
no reference  to  a  fire  (McDorman  subsequently  issued a
citation  for  failing to report a "hazardous condition"  in
the book (Tr. 508).)

     McDorman then went underground to the 16-M section to talk
with the crew.  Zupper told McDorman  there had been a  fire,
and he described how he learned of the  fire  and the crew's
response to the fire.  McDorman's description of what Zupper
told  him essentially paralleled Zupper's testimony,  except
that Zupper  would not tell McDorman the name of the foreman
who told the crew  to  remain  on  the section (Tr. 509-510,
535-536).

     McDorman stated that he and Shriver jointly issued  the
contested order to Consol  for  violating  its fire fighting
and  evacuation  program (Tr. 511; Gov. Exh. 6A).   McDorman
indicated in the body  of  the  order that five persons were
affected by the alleged violation  because  he believed that
number was not evacuated (Tr. 513).  Further,  he  found the
alleged  violation  was  S&S  because  he knew of other belt
fires in mines and of the results of those fires (Tr. 517).

     Regarding the gravity of the alleged violation, he thought
the  miners were subjected to the hazards of  entrapment,  of
smoke inhalation, and of CO poisoning.  Fires at other mines
had resulted  in  miners  dying from these causes (Tr. 515).
Failing to evacuate affected personnel was dangerous because
if the fire had gotten out  of  control, and intensified, it
could have disrupted normal ventilation and smoke could have
reached the face (Tr. 582-583, 590).   Finally,  because  of
Zupper's  statement  that  a  foreman  said not to evacuate,
McDorman found that mine management was  highly negligent in
failing  to  get  the  crew outby the fire (Tr.516,525,571).
Mine  management  was responsible  for  following  its  fire
fighting and evacuation plan (Tr. 521-522).

     Subsequent to issuing the contested order, McDorman and
Shriver  modified  it  in  several  respects.   One  of  the
modifications  indicated  that  the  alleged  violation also
included a failure to withdraw the crew on the  17-M section
(Gov.  Exh.  6A  at 4).  McDorman explained that the  escape
route for that section  traveled  outby the 16-M belt drive.
Because the crew on the 17-M section was inby the fire, they
should have left the section and moved  outby  the fire (Tr.
518).   Another  modification changed the number of  persons
affected by the alleged  violation  from  five to ten -- the
number of miners working on both sections (Gov.  Exh.  6A at
4; Tr. 519-520).

     McDorman believed that Consol violated Part II.A.2. of the
program, the part concerning  the  steps  Consol had  to  take
when the fire sensor alarm system was activated (Gov. Exh. 4
II A.2. at 4).  Under Part II.A.2., persons  in the affected
area  were  required  to  be  notified and to be immediately
withdrawn  to  a  location  outby the  area  (Tr.  522-523).
However, McDorman stated that  he  would have charged Consol
with a violation even if the fire sensor  alarm had not been
activated, provided management had known there  was  a  fire
(Tr. 537).

     McDorman did not know if the  petition for modification
allowing reliance on the CO monitor  system  was implemented
on  or  before  March  15  (Tr.  555-556).  Nonetheless,  he
believed Consol also violated the  CO monitor system part of
the program, because a CO alarm sounded,  but  the  crew was
not withdrawn (Gov. Exh. 4 Part II.C.; Tr. 523).

     Finally, McDorman believed Consol violated the part of the
program that  concerned  the  duties of the  longwall  section
personnel (Gov. Exh. 4 VII.B. at 8).  Specifically, McDorman
referenced section VII B.1.b.,  which required management to
"[s]ee  that all [longwall section]  personnel  are  on  the
outby side  of the fire and [are] accounted for" (Gov't Exh.
4 at 8; Tr. 584).   McDorman  stated the requirement applied
whether the fire was at the face  or  was  outby the section
(Id.).  (However, later he appeared to agree  that this part
of the plan was more applicable when of a fire  occurred  in
the face area (Tr. 554-555).)

     With regard to McLaughlin's involvement with  the fire,
McDorman  stated  that he had no knowledge regarding whether
McLaughlin knowingly ordered, authorized, or carried out the
violation (Tr. 587).   With  regard  to Welch's involvement,
the only thing McDorman knew was that  Welch told Griffin to
get  the crew together and stay together  (Tr.  562).   With
regard to Straface's involvement, Stewart told McDorman that
Straface  was  on  the  mine telephone and that he prevented
Stewart  from  doing  his job  (Tr.  563).   McDorman  never
discussed Stewart's comments with Straface (Tr. 566).

                         HARRY C. VERAKIS

     Harry C. Verakis is an MSHA supervisory engineer. He also
has worked for MSHA as a supervisory physical scientist (Tr.
595-597).  Part of Verakis' work  for  MSHA has involved the
study of conveyor belt fires.  He has participated  in  both
large  and  small  scale  studies  to determine what happens
during such fires (Tr. 594-595).  Verakis  is  the author of
"Reducing the Fire Hazard of Mine Conveyor Belts,"  a  paper
that  he  presented  at a mine ventilation symposium in 1991
(Gov. Exh. 8; Tr. 598).

     Verakis testified that the studies in which he participated
revealed that an entry air  velocity  of 300  feet  per  minute
is  the  optimum for flame  propagation (Tr.  606).   Verakis
agreed that  on  the 16-M section there was a lower velocity
of air at the belt  transfer  point.   However,  rather than
reduce  the  hazard, Verakis believed the velocity gave  the
fire a better  chance  to  intensify (Tr. 610).  In Verakis'
opinion,  if the fire was "fairly  intense"  it  could  have
moved from the belt drive, up the entry, and toward the face
(Tr. 638).

     An additional hazard from the fire was  that smoke  and 
toxic gases could have leaked into the track entry and moved
toward  the  face  (Tr. 612-614).  However, Verakis admitted
that the pressure differential between the track heading and
the belt heading could  have  affected whether the smoke and
fumes reached the face and that  he  did  not  know what the
pressure differential was (Tr. 634-635).

     In  Verakis opinion, many variables dictated  a  fire's
development    and    because    of    a   fire's   inherent
unpredictability, miners always should be  evacuated outby a
fire (Tr. 613).

     Verakis  estimated  that  the  March 15  fire  produced
temperatures  of  "at  least  a couple of  thousand  degrees
Fahrenheit," temperatures sufficient  to  cause the conveyor
belt,  brattice  material, and boards to burn.   He  further
noted that these materials give off toxic fumes as they burn
(Tr. 621-622).  Verakis  later  agreed,  however,  that  the
conveyor  belt  could  have  become  blistered  by  the heat
without catching fire, and that he did not know if the  belt
actually had burned (Tr. 641-642).

     In explaining the sudden burst of flames that Ammons saw
upon opening the door at the belt  drive,  Verakis testified
that  there  could  have  been  a  flashover caused  by  the
friction of the belt rubbing against  the  belt  drive drum.
The rubbing could have loosened rubber and fabric  particles
from the belt and these particles, when mixed with the  coal
dust  that  usually is present at the belt drive, could have
ignited suddenly. (Tr. 1034-1035).

                           CRAIG YANAK

     Craig Yanak, who testified on Consol's  behalf, was the
company's  regional  supervisor  for dust and noise control.
Part of his duties involved the gathering of information for
fire fighting and evacuation programs.   He  was extensively
involved  in  the  development  of  the  fire  fighting  and
evacuation program that was in effect on March 15  (Tr. 676-
677).   With  regard to the part of the program relating  to
the fire sensor system (Part II. A.&B.) Yanak agreed that it
was supposed to  remain  in  effect  until  the petition for
modification was implemented.  After implementation  of  the
petition,  the  provisions  relating  to the CO system (Part
II.C.) were supposed to take effect.

     Yanak identified a letter  from  Consol  to MSHA  dated
September   15,   1994,   which   stated   that  Consol  was
implementing the petition for modification effective that date
(Exh. R. 3; Tr.  678-679).   This  letter  was  acknowledged 
by the MSHA district manager on September 26, 1994  (Resp. Exh.
4; Tr. 681-682). Therefore, in Yanak's view, on March 15, 1993,
Consol was not operating under  Part  II.C. of the plan (Tr.
679-681).

     Yanak explained the structure of the approved and adopted
program  by  stating  that  there were only two parts  of  the
program whose effect was conditioned upon a timetable:

          [W]e have two system here that we're addressing
     [in the plan].  One of them is a ...[fire] sensor
      system.  And one part is a CO monitoring system.

          *         *         *         *

          Either one or the other  is going to be in effect.
     One   will  be  in effect  prior  to the implementation
     [of the petition for modification]. The other would be 
     in effect after the implementation. But all other parts
     of the plan [are] in effect regardless of whether its 
     implemented or not implemented (Tr. 684).

                          ROBERT CHURCH

     Robert Church, who testified  for  Consol, was the company's
regional  safety  inspector.   Church  investigated and reported 
on the March 15 fire.  According to Church, he determined  from 
speaking  with  the people  who  were present at the belt transfer
area that  the fire lasted from one and one-half to two minutes. 
It  resulted  in the blistering of the belt in one area and the
charring of  two  brattice  boards.   Because of the damage, the
belt had to be spliced.  Also, the grooves on the drive rollers
were slightly damaged (Tr. 692-693, 707).

     Church testified that the CO sensor  printout  indicated  CO
rising from 11 parts per million to a much higher level in a matter
of seconds (Tr. 693).  In addition, the CO monitor  system gave an
audible warning. He determined that Elmer Brooks, the maintenance
supervisor, heard the warning and Church believed  that Straface 
heard it as well.  Straface's office was located  about  20 feet
from the alarm (Tr. 705).  Stewart was notified of the CO monitor
alarm,  but he already knew about the fire (Tr. 693).

     Church  believed  that  Stewart   was   in  the  process of
evacuating the mine and getting water  cars to the area when the
fire  was extinguished (Tr. 694). Straface told Church that all
of  this occurred within three to five minutes (Id, 796).

     Church  accompanied  Shriver  during   Shriver's  March  17,
investigation of the fire.  Church  did not recall what he told
Shriver about the fire (Tr. 708).

     In Church's opinion, the miner's were not evacuated because:

          [T]he fire was extinguished prior to everyone even
          being  notified  there was a fire.  And  once  the
          fire was extinguished  and  we  were assured there
          were no further problems, we [saw]  no  reason  to
          continue with the evacuation (Tr. 711).

     According to Church, the fact that miners were not withdrawn
under  these  circumstances  was  consistent with the policy then
in effect at the mine (Tr. 712).

                           JOHN SWEETER

     John Sweeter, a day shift foreman, testified for Consol.
On March 15, he was outby the face on  the 17-M section when 
a member of the crew told him Stewart was on  the  telephone
yelling "something about a fire" (Tr. 735).  Sweeter and the
miner ran to the telephone and Stewart called the dispatcher
who advised Sweeter  that  there was a fire at the 16-M belt
drive.  Stewart told Sweeter  he  was  notifying  others  in
addition to Sweeter and that he had water cars coming to the
scene  (Tr.  736).   Sweeter sent the miner back to the 17-M
section crew with instructions  to tell them of the fire, to
get the crew together, and to have  them go to the telephone
and contact the dispatcher (Id.).

     Sweeter got in a jeep and headed for the 16-M belt drive.
On the way, he called Stewart on the trolley phone to tell him
he was going to the scene of the fire, and Stewart  told him
the  fire  was out (Tr. 737, 751).  (Sweeter estimated  that
perhaps two minutes elapsed between the time he first called
the dispatcher  and  the  time  he was told the fire was out
(Tr. 738, 745).)

     When Sweeter reached the belt drive  he  observed blistering
on the belt, but Sweeter did not recall how much of the belt was
affected  (Tr.  746-747).   He also noticed  that  some boards
were charred (Tr. 746).

     Sweeter confirmed that the 17-M section was inby the 16-M
section  in  terms  of ventilation.  He stated that  if  there
was  a  fire  at  the  16-M  section,  "and  it's  still  in
progress," it would have  been  prudent to withdraw the crew
on the 17-M section outby the fire  (Tr.  749,  see also Tr.
748-749).   He stated he did not know if the 17-M  crew  was
withdrawn (Tr. 749-750).

                           CHARLES BANE

     Charles Bane, the company's regional manager of safety,
testified  for  Consol.   He  was  in  charge  of  safety at
Consol's  northern West Virginia mines.  His duties included
the development of safety plans and policies for the company
and he oversaw the  Company's  compliance  with  federal  and
state rules  and  regulations (Tr. 753).  Bane helped develop
and submit to MSHA  the  mine's program of evacuation (Gov. Exh.
4; Tr. 756-757, 761).

     Blane described Consol's  policy respecting Part II.A.&B.
of the program.  He explained  that  when  the  cause of a fire
sensor  alarm  was unknown, Consol treated the situation  as
though there was a fire (Tr. 767).  He stated, "[i]f we have
an alarm and we  don't  know  the reason for it -- we assume
that with the fire alarm we have  a fire ... [W]e respond to
those alarms" (Tr. 765, 774 ).

     He further explained, in effect, that if  an alarm  was
activated and Consol knew first-hand that there was no fire,
(for example, Consol knew  the  alarm was a mistake); or, if
an alarm was activated and Consol  knew  that although there
had been a fire, it was extinguished, Consol  would consider
that  information  and  not require miners to evacuate  (Tr.
779-780).  This was what  he  intended  when  he  wrote  the
program (Tr. 780).  According to Bane, the program contained
an  underlying  and  unstated  assumption that for Consol to
take action under the program there  had  to be an "ongoing"
fire.

     Counsel for the Secretary questioned Bane about this:

          Q.   [T]hroughout this plan there is one  emphasis
          and that  is  when  a  fire  is discovered and its
          location known, the responsible  foreman and those
          that  have  the  responsibility are to  get  their
          people outby the fire; is that not correct?

          A.  I don't think  anybody would deny that.  If we
          have  an ongoing fire,  yes,  sir,  we  would  get
          everybody
          outby as soon as possible

          Q.  It  doesn't  say  anything  in  here  about an
          ongoing fire, it's just a fire.

          A.I  don't  think anybody would deny that.  If  we
          have an ongoing  fire,  yes,  sir,  we  would  get
          everybody outby as soon as possible.

          *              *              *              *

          Q.  Outby the fire?

          A.If it continues to burn, yes, sir (Tr. 789-790)

     Bane  summarized  why,  in Consol's view, it did not violate
the program: "[T]he fire  was put out before the people ever got 
gathered.  So [at] that  point,  there  was  no longer a fire, so
then there's not an evacuation process" (Tr. 794).

     Finally,  as  the  author of the plan, Bane maintained  that
Part VII applied only if the fire occurred on the section (Tr. 786).
That was  why certain assignments were specified in Part VII for
various  miners  of  the  section  crew (Tr. 787).

                           ROBERT WELCH

     Welch testified on behalf of and himself Consol.  He  stated
that  on  March  15, he was working near the bottom of the portal
shaft, at the dumping  shanty.   This  is  the  area where miners
entered and left the mine and where coal was lifted from the mine
(Tr.  809).   Welch's  duties  that  day  were  to  monitor   and
coordinate with the dispatcher, Stewart, the availability of mine
cars that shuttled coal from the longwall sections (Tr. 810).  At
the  dumping shanty Welch communicated throughout the mine and to
the surface  by  using the mine telephone.  He also had access to
the trolley radio telephone system (Tr. 811-812).

     Shortly after  noon,  Welch heard a signal that sounded when
the dispatcher set off emergency  warning lights somewhere in the
mine (Tr. 813-814).  Welch immediately  thought  something  major
had  gone  wrong.   He  picked up the telephone and listened.  He
heard nothing.  He paged  the  dispatcher  and asked him what had
happened.  Steward responded that there was  a  fire  at the 16-M
belt drive. (Tr. 815)

     Welch testified that he told Stewart to turn other emergency
lights  on  and  to  send  a  water  car to the area.  Welch also
advised Stewart that he would stay on  the  line  and when miners
responded to the lights he would tell them about the fire and let
Stewart know which miners had responded (Tr. 815).

     The first person with whom Welch spoke was either Griffin or
Zupper;  Welch could not recall which.  He told the  person  that
there was a fire at the belt drive and that the person should get
everyone on the section together and call back (Tr. 817).  It was
important  to  gather  the  crew  so  that  its members would not
separate and go in different directions.

     Not more than five minutes later, Griffin  called Welch (Tr.
820,  841).   Welch  asked  Griffin if everyone on the  crew  was
together.  Griffin responded,  "no,  not  yet,"  and  Welch again
stated  that  everyone  should  be  brought together and then  he
should be called back (Tr. 820).   Welch was asked by counsel for
the  Secretary  why he did not tell the  crew  to  evacuate.   He
replied, "the least  you  put  on to a person in a situation like
this ... the better off you are" (Tr. 840).

     In the meantime, Stewart activated emergency lights in other
sections  of the mine, and other  crews  began  to  come  on  the
telephone line  and  ask what had happened.  Welch testified that
he and Stewart responded  to  the  inquiries by telling the other
miners to stand by, that there was a problem (Tr. 821).

     Also, Straface called Welch.  According  to  Welch, Straface
asked what was being done with respect to the problem  (Tr.  857-
858).   Welch  advised  Straface  that he and Stewart "had things
under control" (Tr. 849).  Welch maintained  that  at the time he
spoke with Staface, he was taking the steps necessary to evacuate
the 16-M crew, in that he had notified them of the situation  and
advised them to prepare to evacuate (Tr. 851).

     Before  Welch  heard  again  from  the  miners  on  the 16-M
section,  the tipple operator stated over the telephone that  the
fire was out.   Shortly  thereafter, there was a second call over
the  line.  It was either Nester  or  Ammons.   Whomever  it  was
confirmed that the fire was extinguished (Tr. 823).

     Subsequently,  Zupper  called.   He  told Welch the crew was
with him and that they were ready to leave  the  section.   Welch
replied,  "[t]he  fire  is  out  ...  just  stay in fresh air and
monitor the telephone" (Tr. 823, 841).  Welch  testified  he  was
satisfied  that  the  crew was no longer in danger.  Welch stated
the only reason he did  not tell the crew to evacuate was because
he believed the fire was out (Tr. 825-826).  He also stated that,
although he could have ordered  the  crew  to  evacuate outby the
site  of  the  fire, he was concerned about the miners'  physical
condition and the  possibility that if they had to move at a fast
pace one or more of  them  might have had a heart attack and that
he  would  have  caused  it (Tr.  823-824,  843).   At  no  point
subsequent to the fire did  any  member of the crew complain that
Welch  had  not ordered them to evacuate  the  section;  nor  did
Stewart complain (Tr. 827-828).

     Welch did  not  ask  anyone  about the extent of the fire or
about its effect on the ventilation  of the longwall section.  If
the fire had created a problem with the  ventilation  he was sure
he  would  have  been  notified  by Stewart or by someone on  the
section (Tr. 844-845).

     From  his  position  in the dumping  shanty,  Welch  had  no
knowledge as to whether or  not a heat sensor system alarm and/or
a CO monitor system alarm was activated (Tr. 826).

     Welch also testified that at the time of the fire McLaughlin
was in another part of the mine,  a  good  distance away from the
16-M belt drive.  After Welch heard Stewart tell McLaughlin there
was a fire on the belt drive, he heard McLaughlin respond that he
wanted to go to the fires site (Tr. 829).  While  McLaughlin  was
in  route,  Welch  heard  McLaughlin  call Stewart and ask if the
water cars were on their way (Tr. 830).  A short time later Welch
heard Stewart tell McLaughlin that the  fire was out.  McLaughlin
replied that he still wanted to go to the  area.   The last thing
Welch heard was McLaughlin stating he was at the belt  drive (Tr.
831).

                          JOHN STRAFACE

     Straface   testified   on  behalf  of  himself  and  Consol.
According to Straface, he first  became  aware of the fire on the
16-M section when Stewart notified him over  the  telephone  (Tr.
860).   Straface  called  Welch at the dumper shanty and asked if
Welch  knew anything about the  situation.   Welch  replied  that
Steward had told him the same thing (Tr. 860-861).

     Straface  stated that he assumed the worst.  As a result, he
wanted the full mine evacuation plan to be implemented (Tr. 861).
As Straface recalled,  he  was  told  either by Welch or Stewart,
that  the  16-M  section  and  the 17-M section  crews  had  been
notified of the fire and Straface  requested that the entire mine
be notified (Tr. 861-862, 904).  Further, Straface asked if water
cars were on the way to the belt drive and was told that had been
taken care of.  Straface stated that  he  put  Welch in charge of
monitoring the situation and taking care of the  evacuation  (Tr.
863).   Straface denied that he ever told Stewart to stay off the
mine phone system (Tr. 864).

     On cross-examination,  Straface  stated that he did not give
specific instructions to Welch or anyone else concerning the 16-M
section  or  any  other  section, rather, his  instructions  were
simply "to initiate the evacuation" (Tr. 889).

     According to Straface,  McLaughlin called him on the trolley
telephone, and wanted to know  if water cars were on their way to
the  belt drive.  Straface told McLaughlin  that  everything  was
taken care of and to go to the fire (tr. 891).

     After that, Straface monitored the mine telephone system "on
and off" (Tr. 888).  At one point he overheard Welch tell someone
from the  16-M  crew  to  get the crew together and to call back.
Straface did not disagree with  this (Tr. 894-895).  Straface did
not talk to the crew; he did not  interrupt  to say that once the
crew got together they should go outby the fire.  He just assumed
it would happen (Tr. 865, 890).)

     A short while later, he overheard Ammons  tell  someone that
the  fire was out.  Straface believed that Ammons was talking  to
Stewart  (Tr. 865, 888).  Straface stated that he wanted to speak
with Nester in order to verify the fire was extinguished.  Nester
called him  and  stated  that the fire was out, that there was no
longer a problem, and that everything had been taken care of (Tr.
865).  Later, he also overheard  a  conversation  in  which Welch
told someone from the crew that the fire was out and to  stay  by
the phone (Tr. 866).  Straface did not say anything.  He believed
that  Welch  had  given the crew the right instructions (Tr. 867,
895-896).

     Straface went  underground  about  30  to  45  minutes after
learning that the fire was out (Tr. 868).  When he arrived at the
belt  drive, Straface observed damage to the belt.  Approximately
40 to 50  feet  outby  the belt drive, the belt was blistered and
some of the rubber had "bubbled  up" (Tr. 868-869).  In addition,
there was damage to some wooden boards used for guarding (Id.).

     Subsequent  to  the  fire,  Stewart   spoke  with  Straface.
Stewart was upset that his duties had been taken  away.  Straface
stated:

          He  felt  that  ... he was not given the right  to
     direct the underground  communication and traveling.  I
     told  [Stewart]  that  I think  that  he  did  his  job
     properly and that I did my job properly.  That if there
     was a problem underground  and  I was available, that I
     was going to help him and monitor  what he did and if I
     didn't  think  what  he  was doing was right,  I  would
     change it.  If I felt what  he  was  doing  was proper,
     that  would  be fine.  But I was in charge of the  coal
     mine, I would be ultimately responsible for the results
     of the incident and if it was going to be done right or
     wrong, I wanted  to  ...  [know] about it, I'd make the
     decision (Tr. 876).

     Straface denied that he ever  told  Stewart  to stay off the
telephone (Tr. 876).  He asserted that he asked Welch  to monitor
the situation because:

          There  are  other  people  working  in  the [mine]
     besides the people on the production section.  And
     it's very difficult for one person to try to find
     150 people.  So it would seem proper to have more  than
     one  person  trying to ... make sure that everybody was
     evacuated and that we didn't leave somebody on the belt
     line shoveling  the  belt  somewhere .... I just wanted
     more than one person to monitor what was going on
     (Tr. 885-886).

     During cross-examination Straface was asked why the affected
miners were not evacuated outby the fire, and he replied:

          They didn't evacuate because the fire was out ....
     It  was  a  timing  situation that  by  the  time  they
     gathered, [and] they called and notified that they were
     gathered and leaving, the fire was out (Tr. 882).

     Straface believed there  was not a violation of the approved
and adopted program of evacuation procedures because:

          [I]f there's a fire,  we  evacuate.  If there's an
     unknown  situation,  if  there's a  fire  alarm  that's
     unknown, we evacuate.  If  the situation becomes known,
     you react to the known (Tr. 902).

Here, he had know that the fire was out.

                        SAMUEL McLAUGHLIN

     McLaughlin testified that he  became  aware of the fire when
he was on the other side of the mine.  A miner  said that Stewart
was  trying  to  reach him on the trolley telephone.   McLaughlin
went to his jeep to speak with Stewart and Stewart told him there
was a fire on the 16-M belt drive.  McLaughlin jumped in the jeep
and asked Stewart  for  clearance  to  travel to the 16-M section
(Tr. 907).  McLaughlin estimated that he  was approximately 15 to
25 minutes away from the section (Tr. 908).

     At a main junction, McLaughlin left the jeep to throw a rail
switch.  A mine telephone was near the switch.  McLaughlin picked
up  the  telephone and "hollered" for the dispatcher.   Straface,
not Stewart,  came  on  the telephone and McLaughlin asked if the
crews had been notified of the fire and if water cars were ready.
Straface responded that these things had been taken care of
(Tr. 909).

     McLaughlin resumed his  trip  to  the  section.   Before  he
reached the belt drive, Stewart came on the trolley telephone and
told McLaughin to take his time, that the fire was out (Tr. 910).

     Once  at the belt drive, McLaughlin got out of the jeep near
an  overcast.    Nester  and  several  other  mines  were  there.
McLaughlin did not  ask  where the crew from the 16-M section was
(Tr. 926-927).  Nor did he ask if the belt had been patrolled for
fire from the point of the  fire  inby  to the longwall face (Tr.
927).  McLaughlin entered the belt drive area.  The sprinkler was
off and there was no smoke.  However, when he approached the belt
drive he could smell charred wood (Tr. 916).

     After  his  examination  of  the belt and  the  belt  drive,
McLaughlin went to the telephone by  the  belt transfer area.  He
called Straface and told him about the damage (Tr. 920).

     McLaughlin was asked by counsel for the Secretary whether he
agreed that the fire evacuation program required  "people  to  be
withdrawn ... out by that fire immediately" once a fire was known
to exist.  McLaughlin replied it did (Tr. 930).

                            JOHN LEVO

     John Levo, the ventilation foreman at the mine, testified on
behalf  of  Consol.   Levo  stated  that on March 15, he was with
McLaughlin, on the other side of the  mine,  when  Stewart called
and stated that he wanted to talk to McLaughlin because there was
a fire on the 16-M section.  Levo got McLaughlin and they left in
a  jeep for the section (Tr. 934).  At the point where  a  switch
had  to  be  thrown,  McLaughlin  got  out of the jeep and called
someone on a telephone.  Levo did not hear  the conversation (Tr.
935).

     Levo and McLaughlin resumed their travel.   Along  the  way,
Stewart  called  over  the  trolley telephone and stated that the
fire was out, that there was  no  emergency, but that they should
continue on to the section (Tr. 936).

     It took approximately 20 to 25 minutes to reach the section.
Once  there, McLaughlin left the jeep  and  walked  to  the  belt
drive.  Levo parked the jeep and he too walked to the belt drive.
Levo did  not  observe anything that was flaming, or smouldering,
or hot (Tr. 937).   The  area  was  wet from the fire suppression
system (Tr. 955).
                         DONALD MITCHELL

     Donald   Mitchell,   a   self-employed   mining   consultant
specializing in ventilation, mine  fires,  and  mine  explosions,
testified   on  behalf  of  Consol  (Tr.  956).   Mitchell  is  a
recognized authority  on  mine  fires  and  at  the  time  of the
hearing,  he  was completing the third edition of a book entitled
Mine Fires.  Mitchell  described  the  book as a "best seller" in
the  mining  industry  (Tr.  961).   In  addition,  Mitchell  was
instrumental  in  introducing CO monitor systems  to  the  United
States.  Mitchell was  permitted  to  testify  as  an expert with
respect  to mine fires, mine ventilation, and CO monitor  systems
(Tr. 961-962).

     Mitchell described the air pressure differential between the
16-M section  track  entry  and  the 16-M section belt entry (Tr.
967).  He stated that at the overcast,  the  track entry pressure
was  six-tenths of an inch higher than the belt  entry  pressure.
Along  the  rest of the belt entry, the track entry pressure also
was higher.   The  difference  measured between four-tenths of an
inch to three-tenths of an inch.   Mitchell believed the pressure
differential dictated how smoke would travel.

     According to Mitchell, it was virtually impossible for smoke
to  pass  from  the  belt to the track entry  and  to  the  face.
Because of the difference  in the pressure, if air leaked between
two entries it would flow from  the  track  entry  into  the belt
entry, not the other way around.  Therefore, smoke would stay  in
the  belt  entry  and would exhaust through the regulator and the
return.

     The only way smoke  could  travel to the face was if massive
roof falls stopped ventilation in  the  belt  entry.   Then,  the
smoke would have no place to go but back into the track entry and
up  the entry to the face (Tr. 970, 973).  However, in Mitchell's
opinion,  it would take a fire of significant intensity and of up
to ten hours  duration  to cause such roof falls (Tr. 970, 1031).
Mitchell did not believe  that  on March 15, the crew on the 16-M
longwall section was in any danger from smoke or CO (Tr.970).

     In  Mitchell's  opinion the March  15  fire  was  of  a  low
intensity  (Tr.  985,  1016).   He  estimated  that  it  produced
temperatures of more than  200  F  but  of less than 380 F, the
temperature  at  which conveyor belting ignites  (Tr.  977).   An
intense fire would  have  left more evidence than bubbling on the
belt and charring on the brattice boards (Tr. 1017).

     Mitchell believed the  fire  was  caused  by friction at the
belt drive when the belt slipped around the drum  (Tr. 992, 993).
This  raised the temperature on part of the belt to  above  280,
and the  belt  bubbled  (Tr.  992).  In his view, the only things
that actually burned were the brattice  boards.   They were white
pine,  which, according to Mitchell, burns at the relatively  low
temperature  of  200  (Tr.  992-993).   The wood, being the most
ignitable substance in the area, was smouldering  and when Ammons
opened the door, the increased air caused the boards  to flare up
(Tr. 993-995).


                    RESOLUTION OF THE ISSUES
                      DOCKET NO. WEVA 94-57
                     THE CONTESTED VIOLATION

              ORDER NO.      DATE       30 C.F.R.

               3118640      3/17/93   75.1101-23(a)


     The order states, in pertinent part:

          The fire fighting plan and evacuation plan was
          not  followed  at  16M section on 3-15-93.  A fire
          occurred at the 16M belt drive at approximately
          13:15 hrs.  Mine management  did  not  assure that
          those   persons   ...  in  the  affected  area  be
          immediately  with-drawn  outby  ...  the  affected
          area.  The ... workers
          did not leave  the section ....  This presents the
          hazard   of  entrapment   due   to   fire,   smoke
          inhalation,   and/or  carbon  monoxide  poisoning.
          Management is responsible  for  insuring  that the
          provisions  of  this plan be complied with and  in
          this case did not  insure  that  16M  Section  was
          evacuated.  Gov. Exh. 6A at 1).

                           THE STANDARD

     Section 75.1101-23(a) requires an operator of an underground
coal  mine  to  "adopt a program for the instruction of  all miners
in ... proper  evacuation  procedures to be followed in the event
of an emergency".  The  standard also requires the program  to be
approved by the MSHA  district  manager.   In addition,  section 
75.1101-23(a)(1)(i)  requires  that  the approved  program include
"a specific fire ... evacuation plan designed to  acquaint  miners 
... with procedures for ... [e]vacuation of all miners not required
for fire fighting activities[.]"

     The  standard  is one of several that require an operator
to adopt and the Secretary  to approve safety-related plans and 
programs (see e.g. 30 C.F.R.    75.200  (mine  roof control
plans),  30  C.F.R.  75.370 (ventilation plans), 30  C.F.R.
75.1702 (smoking prevention programs)).

     It is an axiom  of  mine  safety  law that the provisions
of such required plans and programs, once adopted and approved,
are  enforceable  as  though  they  are   mandatory   safety
standards  (see,  Zeigler  Coal  Co. v. Kleppe, 536 F.2d 389
(D.C. Cir. 1976) (provisions of ventilation plan enforceable
as mandatory standards); Zeigler Coal  Company,  2  IBMA 216
(1973)  (provisions  of  roof  control  plan  enforceable as
mandatory standards)).  Thus, once an evacuation program has
been  adopted  by  an operator and approved by the  district
manager pursuant to  section  75.1101-23(a), the operator is
required to comply with its provisions  and  the  provisions
are enforceable as mandatory safety standards.

                  INTERPRETATION OF THE PROGRAM

     The Commission has made it clear  that when determining
whether  there  has  been  compliance with an  approved  and
adopted program, a judge must  look  at  the  words  of  the
program  as  written.   However,  the judge may not read the
words in isolation so as to render  any  part of the program
meaningless  or  superfluous.   Rather,  the  words   of   a
particular provision must be interpreted consistent with the
program  as  a  whole and consistent with program's purpose.
("It is well established  that  the  provisions  of the same
document must be read and interpreted consistently with each
other  and  that  effect  must  be  given to each part of  a
document   to   avoid   making   any  word  meaningless   or
superfluous"  (Mettiki  Coal Corporation,  13  FMSHRC  3,  7
(January 1991); see also  Shamrock  Coal  Company,  5 FMSHRC
845, 848-849 (May 1983)).

     Moreover, although the Secretary's approval is required
for a program to take effect, the program is  first and last 
the operator's. The  operator  drafts it  and  the  operator
implements it.   The  operator's  duty of authorship carries
with it a  concomitant duty of precision.   Therefore,  as a
general rule, the author-operator will not be heard to argue
that   imprecise   wording  or  drafting  permits  a  result
inconsistent  with the  overall  safety  objectives  of  the
program.

                RELEVANT PARTS OF CONSOL'S PROGRAM

     The subject program implemented the regulation by setting
forth  evacuation  procedures  miners  and  management  were
required  to  follow  upon  the activation of a fire  sensor
system alarm (Gov. Exh. 4 II.A.&B. at 4); upon activation of
the CO monitor system (Id. II.C. at 5); and by setting forth
fire fighting and evacuation  procedures  that were required
to be followed by specified mine personnel in the event of a
fire (Id. III - VII at 5-8).  The efficacy of the provisions
relating to the fire sensor system and the CO monitor system
was  conditioned  upon  implementation of the  petition  for
modification that authorized  reliance  upon  the CO monitor
system.   The fire sensor system provisions were  to  be  in
effect until  implementation  of  the  petition,  and the CO
monitor  system  provisions  were  to  be  in  effect  after
implementation.

     There was confusion  among  the  Secretary's  witnesses
regarding  whether  Consol  was   required   to  follow  the
provisions  relating to the CO monitor system on  March  15.
Inspector  McDorman   did  not  know  if  the  petition  for
modification had been implemented on or before March 15, and
therefore he could not  say  whether  Consol was required to
follow Part II.C. (Tr. 555-556). Inspector  Strahin  thought
that Consol "probably" was not required to follow Part II.C.
(Tr.  84-86).   On  the other hand, Inspector Shriver stated
that for "all intents  and purposes, the [CO monitor] system
was  installed"  and  Consol   should   have   followed  the
requirements relating to that system (Tr. 446-448).

     Similar confusion was not evidenced by Consol. Yanak stated
categorically  that  Consol was not  required  to follow  Part
II.C. because  the petition  for  modification  had  not been
implemented.  Yanak pointed to a letter dated September  15,
1994,  in  which  he  advised  the MSHA district manager, on
behalf  of  Straface,  that  the CO  monitoring  system  was
"installed  and  in  operation"  in   compliance   with  the
petition.   He  also  noted the district manager's September
26, 1994, acknowledgment  of  the  letter (Resp. Exhs. 3 and
4).

     Just as an operator cannot be heard to argue that imprecise
or poorly drafted language permits a result at odds  with  the
overall safety objectives of a required  program,  so  MSHA,
cannot be heard to argue that clear language it has approved
does  not  mean  what  it  says.   The  program specifically
conditioned  the  effectiveness  of its fire  sensor  system
requirements and of its CO monitor  system requirements upon
the   implementation  of  the  petition  for   modification.
Therefore,   both   parts   cannot   have   been  in  effect
simultaneously  (see Tr. 684).  Yanak's testimony  that  the
MSHA district manager's  response of September 26, 1994, was
an acknowledgment by MSHA  that  Consol  had implemented the
petition  for modification on September 15,  1994,  was  not
refuted by  the  Secretary (Tr. 682).  Given this, and given
the fact that Yanak's  interpretation  of  the  letters  was
eminently  reasonable,  I find that in fact the petition for
modification  was implemented  within  the  meaning  of  the
program on September 15, 1994.

     Therefore, I conclude that on March 15, 1993, Consol was
required  to  comply  with  the  provisions of  the  program
relating  to  the  fire  sensor  system  and  not  with  the
provisions relating to the CO monitoring  system.   Further,
since no other parts of the program were conditioned  upon a
subsequent  event, I conclude all of the rest of the program
was in effect on the date of the fire.

     CONSOL'S GENERAL AND SPECIFIC DUTIES TO EVACUATE MINERS

     Having considered the program then in effect, I conclude
further  that  on  March  15,  Consol had both  general  and
specific  duties  to  withdraw affected  miners  to  a  safe
location outby the fire  immediately  upon indication of the
existence of a fire.

     Several provisions in the program implied  the  general
requirement.   Part  II.A.1.  required  the   withdrawal  of
persons in affected areas, except those needed  to fight the
fire,  when  the fire sensor system alarm was activated  and
upon the positive  identification  of  a fire.  Part II.B.2.
required the withdrawal of affected miners  to  a  safe area
when  the  fire  sensor  system trouble alarm was activated,
even before the existence  of  a  fire  was confirmed.  Part
III.A.1. and Part III.A.5. required the dispatcher  or other
responsible  person to alert all personnel inby the fire  to
the fire's location  and  to  proceed with their evacuation.
Part VII.A.1. required continuous  miner  section foremen to
see that all section personnel were on the  outby  side of a
fire and Part VII.B.1.b. placed the same duty on the foremen
of  longwall  sections.   (Consol's  argument that part  VII
applied only if a fire was located on a section, is based on
a much too restrictive reading of the  program.  Under it, a
section foreman would have no duty to remove his or her crew
from  harms  way  if a fire occurred immediately  outby  the
section, a result that  clearly  is  at odds with the safety
purposes of the program.)

     When these provisions are read together, it is clear to me
that the overall intent of the program was to remove  miners
inby  a  fire,  or  inby a suspected fire, from the affected
area to a safe location  outby.  This overall intent implied
a  duty  to  act in order to  further  the  purpose  of  the
program--the protection  of  miners from the various hazards
that can attend entrapment by  fire.   Consol's general duty
is consistent with this purpose.

     In addition to the general duty to evacuate affected miners
inby a fire, the program imposed upon  Consol  the  specific
duties referenced above, the most pertinent of which was the
duty  to  "immediately  withdraw  to  a  location  outby the
affected  area"  all  persons  in  the  affected  area  upon
activation  of  a  fire  sensor  system  alarm  (Gov. Exh. 4
II.A.2. at 4).

                      THE FACT OF VIOLATION

     The parties agree there was a fire at the 16-M belt drive
on March 15, and I credit the testimony of Kennedy that he knew
of  the  fire  both from being advised orally by the  tipple
operator and by  the  activation  of  the fire sensor system
alarm  (Tr.  121-122).   I  note especially  that  Kennedy's
testimony the alarm activated  was  consistent  with what he
told  Shriver  within  days  of the incident (Tr. 377,  410,
451).   It  is  also clear that mine  management--especially
Straface, Welch,  and  Sweeter--found  out  about  the  fire
within minutes of the tipple operator learning of it.

     I further credit the consistent testimony  of  Zupper  and
the other  embers of the crew that they gathered and were ready
to exit  outby  the  fire,  as  they  had been trained to  do
(Tr.125, 126, 142, 144).   I find that  in so doing the crew
was  preparing  to  withdraw  "outby the affected  area"  in
conformance with the program.

     Consol did not dispute Talkie's testimony that the crew's
evacuation was halted by instructions from Zupper (Tr. 235).
Nor  did  it  dispute that Zupper's instructions came  as  a
result of a directive  from  Welch that the crew should stay
on the section because the fire  was  out  (Tr. 186-187).  I
note,   as  well,  that  Zupper's  version  of  events   was
essentially  consistent  with  Welch's own testimony of what
happened (Tr. 823, 841).  I also  believe  Welch's testimony
that prior to telling Zupper not to evacuate  the  crew,  he
twice  spoke with Griffin over the telephone but that he did
not instruct  Griffin,  or  anyone  else for that matter, to
evacuate outby the affected area (Tr. 820).

     Nor were the miners on the 16-M Section the only ones not
withdrawn from an affected area.   The facts establish  that
the  crew of the 17-M section was not withdrawn as required.
McDorman  stated  his  belief that the 17-M section was inby
the 16-M belt drive and  therefore  was  an area affected by
the fire (Tr. 518).  He testified that he  amended the order
to  include  the  17-M  section after talking to  Ayers  and
determining that the 17-M  section  crew  was  not evacuated
(Tr.518;  Gov.  Exh.  6A  at  4).   Consol did not challenge
McDorman's belief.   Moreover, Sweeter  agreed  that  at the
time  the  fire  started, the 17-M section was inby the 16-M
section in terms of ventilation (Tr 748-749).

     The existence of the fire, the fact that crew members of
16-M and 17-M sections were in affected areas inby the fire,
the fact that the  fire  sensor  alarm  sounded  on the 16-M
section,  the  fact  that mine management knew there  was  a
fire, and the fact that  miners  on  both  sections were not
evacuated  outby the affected areas, establish  that  Consol
violated  its  general  duty  immediately  to  withdraw  the
affected miners  of  the  16-M  and  17-M sections to a safe
location outby upon indication of the  existence  of  a fire
and its specific duty under Part II.A.2. to withdraw the 16-
M section miners outby when the fire sensor alarm activated.
Therefore,  I conclude that Consol violated the standard  as
charged.

     In finding the violation, I reject Consol's  contention 
that extinguishing the fire negated its duty to evacuate the
crews.   The program could have but did not state  that  any
member of  mine management could halt or otherwise cancel an
evacuation because  a  fire  had been extinguished and, as I
have  observed,  the  program  was   first   and   last  the
operator's. (See Gov. Exh. 4 V.A. (by implication permitting
mine  superintendent not to evacuate entire mine if fire  is
controlled.))

     Moreover, I am persuaded that denying such a defense to
Consol best effectuates the overall  purpose  of  the  plan.
The  miners  were  aware  of a fire at another mine that had
rekindled and cost miners their lives (Tr. 133,194,213,216.)
They were rightly concerned  about being caught in a similar
situation.  As Shriver noted,  the  fact  that  the fire was
extinguished  did not mean that potential ignition  sources,
which could have  started another fire, had not been carried
inby the immediate  area  of  the fire  (Tr. 387).  Prudence
mandated that those in the  affected  areas be evacuated and
that  areas  inby  the  fire be thoroughly  examined  before
miners were permitted to return to their duties.

     Finally, I recognize that Charles Bane testified he intended
the withdrawal requirements  of  the  program  to apply only
when there was an "active fire" (Tr. 789).  I also recognize
that he did not state as much in the program.  If there were
proposed  provisions of a program in dispute, the  Secretary
had the duty  to  negotiate  in good faith with the operator
(Jim Walter Resources, Inc., 9  FMSHRC  at  907).   But, the
Secretary  could  not  have  been expected to negotiate over
things Consol intended but did  not  state.   If  Consol now
wishes  its  program to include a provision allowing  it  to
halt, or not to initiate, the evacuation of miners if a fire
is extinguished,  it  should  include  such a provision in a
revised program and submit it to MSHA for approval.

                         S&S AND GRAVITY

     A S&S violation is described in section 104(d)(1) of the
Mine   Act   as   a  violation  "of  such  nature  as  could
significantly and substantially  contribute to the cause and
effect  of  a coal or other mine safety  or  health  hazard"
(30 C.F.R.  814(d)(1)).  A violation is properly designated
S&S, "if, based  upon  the  particular facts surrounding the
violation  there  exists a reasonable  likelihood  that  the
hazard contributed to will result in an injury or illness of
a  reasonably serious  nature.   Cement  Division,  National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies  Coal  Co, 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S" as
follows:

          In order to establish that a violation of
     a mandatory safety standard is significant and
     substantial under National Gypsum the Secretary
     of Labor must prove:  (1) the underlying violation
     of a mandatory safety standard; (2) a discrete
     safety hazard -- that is, a measure of danger to
     safety contributed to be the violation, (3) a
     reasonable likelihood that the hazard contributed
     to will result in an injury; and (4) a reasonable
     likelihood that the injury in question will be of
     a reasonably serious nature.

     See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-105
(5th Cir. 1988) (approving Mathies criteria).

     In United States Steel Mining Company,  Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated as follows:

          We  have explained further that the third  element
     of the Mathies  formula  "requires  that  the Secretary
     establish  a  reasonable  likelihood  that  the  hazard
     contributed  to will result in an event in which  there
     is an injury."   U.S.  Steel Mining Co., 6 FMSHRC 1834,
     1836  (August  1984).   We  have  emphasized  that,  in
     accordance with the language  of  section 104(d)(1), it
     is the contribution of a violation  to  the  cause  and
     effect  of  a  hazard  that  must  be  significant  and
     substantial.   U.S.  Steel  Mining  Co., Inc., 6 FMSHRC
     1866, 1868 (August 1984); U.S. Steel  Mining Co., Inc.,
     6 FMSHRC 1573,1574-75 (July 1984).

     The question of whether any particular violation is S&S must
be  based  on  the  particular  facts surrounding  the  violation
(Secretary  of Labor v. Texasgulf,  Inc.,  10 FMSHRC  498  (April
1988); Youghiogheny  & Ohio Coal Company, 9 FMSHRC 2007 (December
1987)).  Further, any  determination  of  the  S&S  nature  of  a
violation  must be made in the context of continued normal mining
operations (National  Gypsum,  3  FMSHRC  327,  329 (March 1981);
Halfway, Incorporated, 8 FMSHRC 8 (January 1986).

     The Secretary has established that there was  a violation of
the mandatory safety standard.  Further, he has established  that
the violation contributed to a discrete safety hazard.  There was
a  fire  at the belt drive and the miners on the 16-M section and
the 17-M section  were  not  withdrawn  outby the fire.  McDorman
accurately described the hazard contributed  to by the failure to
withdraw the miners.  There was the danger that  the  fire  would
intensify  and  would  block  the miners escape, or that smoke or
toxic fumes from the fire would be carried inby and suffocate the
miners before they could remove themselves from danger (Tr. 515).
In addition, there was an added  hazard  that  after the fire was
extinguished  at the belt drive, no one fully examined  the  belt
line to determine  if  ignition  sources  had  been  carried inby
(Tr.387).   Failing  to evacuate the miners obviously contributed
to the hazard they faced.

     Thus,  the Secretary  proved  three  of  the  four  elements
necessary to establish the S&S nature of the violation.  However,
he failed to  establish  that  there  was a reasonable likelihood
that the hazard contributed to would have resulted in an injury.

     The fire either was out when the miners on the 16-M and 17-M
were  not  withdrawn  or  was  extinguished  shortly  thereafter.
Because  the  fire  was  extinguished  so  quickly,  it  was  not
reasonably likely that the  fire  at  the  belt  drive would have
intensified had normal mining operations continued.

     Further, even if the fire was rekindled up the  belt, it was
not reasonably likely that the fire would have resulted in injury
because  there were heat sensors and CO monitors along  the  belt
that again  would have detected the presence of another fire, and
made its rapid  extinguishment  likely.  Thus any fire was likely
to be of short duration and not of major intensity.

     Further, given the ventilation system, it was not reasonably
likely that the smoke and fumes would  have  gone  to the face of
either  section.   McDorman  agreed  that the ventilation  system
normally would have carried smoke and  toxic  fumes away from the
section  and  out the return (Tr. 582-583, 590).   Mitchell,  who
essentially concurred  with McDorman, persuasively and more fully
explained that the air pressure  differential  between  the track
entry  and  the belt entry made it very unlikely that smoke  ever
would have traveled  from  the belt entry to the faces, barring a
fire of "major intensity" and  of  up  to  10 hours duration (Tr.
970, 973, 1031).  (Verakis' contrary opinion (Tr. 612, 613, 614),
was undercut when he agreed the pressure differential between the
track and belt entries could have affected the  ability  of smoke
and  fumes to move into the track entry and that he did not  know
what the  pressure differential was (Tr. 634-635).)  Therefore, I
conclude that  an examination of the particular facts surrounding
the violation of section 75.1101-23(a) precludes finding that the
violation was S&S in nature.

     However, those  same  facts  do  not  preclude  finding  the
violation  was very serious.  It is not incongruous for a non-S&S
violation to  be  serious in nature.  I note Chief Administrative
Law Judge Paul Merlin's  admonition  that  the  term "S&S" is not
synonymous with the concept of gravity (Consolidation  Coal  Co.,
10  FMSHRC  1702,  1704  (December  1988)) and Administrative Law
Judge  William  Fauver's careful explanation  of  the  difference
between the two concepts  (Harlan  Cumberland Coal Co., 12 FMSHRC
134, 140-141 (January 1990).  As Judge Fauver stated:

          [Some violations] are serious  because  the safety
     and health standard involved is an important protection
     for   the  miners.   Important  safety  ...  or  health
     standards  are  such, if they are routinely violated or
     trivialized substantial  harm  would  be likely at some
     time,  even  if the likelihood that a single  violation
     will cause harm may be remote or even slight....  Other
     mine safety ... violations are serious because they may
     combine with other  conditions  to  set the stage for a
     mine accident or disaster (12 FMSHRC at 141).

     To  state  that  the  standard Consol violated  involved  an
"important protection for the miners" is profoundly to understate
the matter.  The evacuation  of  the  miners could have meant the
difference between life and death.  It  was  possible an ignition
source could have been carried elsewhere in the mine, and in such
a  situation,  Consol's failure could have set the  stage  for  a
major  disaster.    Or,  to  put  the  matter  another  way,  all
possibility of a disaster could have been prevented if Consol had
complied with its program's withdrawal requirements and thus with
the standard.  For these  reason I conclude that Consol's failure
in this regard was very serious.

               UNWARRANTABLE FAILURE AND NEGLIGENCE

     Unwarrantable failure  is  "aggravated conduct, constituting
more than ordinary negligence, by a miner operator in relation to
a violation of the Act" (Emery Mining  Corporation, 9 FMSHRC 1997
(December 1987)); Youghiogheny & Ohio Coal  Co.,  9  FMSHRC  2007
(December  1987).  Unwarrantable failure is characterized by such
conduct  as  "reckless   disregard,"   "intentional  misconduct,"
"indifference" or a "serious lack of reasonable  care"  (Emery  9
FMSHRC  at,  2003-04).  Moreover, the Commission has examined the
conduct of supervisory  personnel  in  determining  unwarrantable
failure  and  recognized  that a heightened standard of  care  is
required of such individuals  (See Youghiogheny 9 FMSHRC at 2010-
11; Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992)).

     I have concluded that under its  approved  and  adopted
program,  Consol  had  both  general   and  specific  duties
immediately to withdraw affected miners  upon  indication of
the existence of a fire, that is, once it knew or had reason
to believe there was a fire.  Consol only could "know" about
the   fire   through   its   officials,   and  the  evidence
overwhelming  establishes  they  knew about the  fire,  knew
miners were affected, and in the face  of  their  knowledge,
deliberately failed to order the miners outby.

     When evaluating Consol's knowledge, I do not  attribute 
much importance to Shriver's statement that he did not learn
during  his  investigation  that  management personnel  were
aware the fire system alarm had been  activated.   Nor  do I
find  compelling  Welch's  testimony  that  he  did not know
whether  or  not  a fire sensor system alarm activated  (Tr.
414, 826).  Whether  or  not management personnel, including
Welch, actually knew that  the  alarm  went  off,  they knew
through other means of the existence of the fire.

     For example, Welch knew of the fire because Steward told
him as much (Tr. 815). Once he knew, the program required that
he  give  priority to the withdrawal the miners.  Yet,  Welch
did not immediately  insist  the  miners evacuated outby the
fire.   Rather,  according  to his own  testimony,  he  told
Stewart to turn on the alarm light and to send water cars to
the  area  (Tr. 820).  In substituting  his  priorities  for
those of the  approved  program,  Welch,  and through Welch,
Consol,   exhibited   an   intentional  disregard   of   the
requirements of the program  as  it applied to the miners on
the 16-M section.

     Further, before Welch was told the fire was extinguished,
he twice spoke with Griffin. He did not advise  Griffin  that
the  miners on the 16-M section should move outby  the  fire
(Tr. 535,  562,  817, 820).  Instead, Welch concentrated his
instructions to the  crew  on  the  need to gather together.
Although all of the witness who were  asked  agreed  it  was
important  for the miners to exit as a group (see, e.g., Tr.
87-88, 209,  329), Welch also had a responsibility on behalf
of  Consol  to instruct  the  crew  to  evacuate  outby  the
affected area, and he did not meet that responsibility.  His
excuse, that  "the  least you put on a person in a situation
like this ... the better  off your are," is really no excuse
(Tr.  840);  and  his professed  concern  about  the  crew's
physical condition and putting too much strain on the hearts
of the crew members  by ordering an evacuation is simply not
credible (Tr. 823-824; 843).

     Like Welch, Straface also knew of the fire. Straface found
out about it from Stewart and  from  the  CO  monitor  system
alarm.   Straface  assumed  responsibility from Stewart  for
coordinating management's response  to  the  fire, something
one  might  well expect of a mine superintendent.   Straface
testified that he "assumed the worst" and that he wanted the
entire mine notified  and  the full evacuation plan put into
effect (Tr. 861).  However, although he knew of the fire and
took full responsible for the  company's reaction to it, and
although he knew that there were  miners  inby  the fire, he
never ordered the miners to evacuate the affected areas.

     Straface's  failure,  like Welch's, was inexcusable. As
highly placed supervisory personnel, both had  a  heightened
standard  of  care  with regard to miners who were inby  the
fire.  By failing to  order the miners to leave the affected
area, they, and therefore  Consol,  exhibited a serious lack
of  reasonable  care  toward  the miners  and  unwarrantably
failed to comply with the adopted and proved program.

     Unwarrantable failure likewise was exhibited toward the
miners on the 17-M  section.   Straface  clearly  knew  that
there  were  miners  on  the  17-M  section,  yet he did not
inquire  whether  they were evacuated.  Further,  day  shift
foreman Sweeter, who  was outby the face of the 17-M section
knew of the fire, yet did  not order, or even discuss, their
evacuation (Tr. 736, 748-750).   In  view  of  the program's
withdrawal  requirements  and the fundamental importance  of
the requirements to miners' safety, these lapses represented
more than ordinary negligence.

     Virtually all of the Consol  personnel  who  testified,
attempted  to excuse their failure to  comply  by  asserting
there was a policy at the mine that required an ongoing fire
for miners to evacuate, (Tr. 709-710, 711-712, 790).  I have
rejected this  excuse,  and  given the fact that the program
does not address this "policy"  and given the program's many
references  to  withdrawal  when  a  fire   is  signaled  or
confirmed,  I  conclude  that this is not a situation  where
Consol exhibited a reasonable,  good  faith belief it was in
compliance with its program, and hence did not unwarrantably
fail to comply (see Southern Ohio Coal  Co.,  13 FMSHRC 912,
919 (June 1991), citing Utah Power and Light Co.,  12 FMSHRC
965,  972  (May 1990).  In other words, Consol did not  show
that it believed  leaving  the crew in the affected area was
the "safest method of comply[ing]"  with  the  mandate  that
they be removed (Southern Ohio Coal Co.,13 FMSHRC at 919).

     Finally, because unwarrantable failure is more than ordinary
negligence, in unwarrantably failing to meet its obligations
under  section  75.1101-23(a),  Consol  acted negligently as
well.

                  HISTORY OF PREVIOUS VIOLATIONS

     A  computer  printout of the assessed violations at the
Blacksville No. 2 Mine for the 24  months  prior to the date
of  the  subject  violation  indicates that a total  of  907
violations  were  cited and that  one  was  a  violation  of
section 75.1101-23 (Gov. Exh. 1).  While the total number of
violations  is  large,  the  number  of  violations  of  the
standard at issue  is  small.   The  Secretary did not argue
that  the  history of previous violations  was  such  as  to
increase any penalty otherwise assessed, and I conclude that
it should not  (Tr.  658-661).  However, because the overall
number of previous violations is large, I also conclude that
the history is not such as to decrease any penalty otherwise
assessed.

                               SIZE

     The parties stipulated  that Consol is a large operator 
(Tr. 12).  Accordingly, the  penalty   assessed   should  be
commensurate with its size.

                 ABILITY TO CONTINUE IN BUSINESS

     Consol did not argue that the amount of any penalty assessed
would adversely effect its  ability to continue in business, and 
I conclude that it will not.

                       GOOD FAITH ABATEMENT

     The violation was abated when the provisions of the approved
and adopted program were discussed  with  all of the foremen and 
miners (Gov. Exh 6a).  In the context of  the violation, the 
discussion constituted good faith abatement.

                     CIVIL PENALTY ASSESSMENT

     The  Secretary  proposed a civil penalty of $5,000  for  the
     alleged violation.   Having  considered  the statutory civil
     penalty criteria, and in view of the fact that the violation
     was not S&S but was nonetheless very serious  and was caused
     by  Consol's  unwarrantable  failure to comply, I  assess  a
     civil penalty of $4,000.

                      INDIVIDUAL CIVIL PENALTIES
                        DOCKET NO. WEVA 94-366

        ORDER NO.      DATE      30 C.F.R.   PROPOSED PENALTY

        3118640       3/17/93   75.1101-23        $4,500

     The  Secretary alleged that McLaughlin, as assistant mine
superintendent, was aware of the requirements of the  program
and  that  a  fire  occurred,  yet  failed  to  withdraw the
affected  miners.  However, after considering the  testimony
offered at  the  hearing, the Secretary moved to dismiss the
section   110(c)  allegations   against   McLaughlin.    The
Secretary stated:

          Although  McLaughlin  did  not  insure that miners
          were withdrawn from section 16-M  outby  the fire,
          the evidence adduced at trial is insubstantial  to
          indicate  that  ...  McLaughlin participated in or
          was in a position to know  of ... Welch's order to
          the 16-M section crew to stay on the section after
          the fire had been identified.   Thus, the evidence
          adduced at trial indicates that ... McLaughlin had
          little  reason  to know whether or  not  the  MSHA
          approved mine an evacuation plan had been violated
          (Motion to Dismiss 2-3).

     McLaughlin and Consol did not oppose the motion.

     The case is the Secretary's  to bring and the Secretary's
to prosecute. I do not question  the  Secretary's judgement in
this regard.  Indeed, I note that two of the Secretary's key
witnesses, inspectors Shriver and McDorman,  testified  they
found   no   evidence  that  caused  them  to  believe  that
McLaughlin knowingly  violated  section  75.1101-23(a)  (Tr.
507, 587).

     The motion is GRANTED.

                        DOCKET NO. WEVA 94-368

        ORDER NO.      DATE      30 C.F.R.   PROPOSED PENALTY

         3118640      3/17/93   75.1101-23        $5,000

     The Secretary alleged that Straface, as mine superintendent,
was  aware  of  the requirements of the program and that the fire 
occurred, yet failed to withdraw the affected miners.

                        KNOWING VIOLATION

     The Commission has stated the meaning of "knowingly" as used
in section 110(c)of the Act as follows:

               "[K]nowingly"  ...  does  not  have  any
               meaning  of bad faith or evil purpose or
               criminal intent.   Its meaning is rather
               that  used  in contract  law,  where  it
               means knowing  or having reason to know.
               A person has reason  to know when he has
               such information as would  lead a person
               exercising  reasonable  care to  acquire
               knowledge of the fact in  question or to
               infer its existence.

92  F. Supp. at 780. We believe this interpretation is consistent
with  both the statutory language and  the remedial intent of the
... Act.  If a person in  a  position  to  protect employee safety
and  health  fails to act on the basis of information that gives 
him knowledge or reason to know  of  the existence of a violative
condition, he has acted  knowingly and in a manner contrary to the
remedial nature of the statute (Kenny Richardson,  3 FMSHRC 8, 16 
(January 1981), aff'd,  689 F.2d 623 (6th  Cir.  1982).) (quoting
U.S. v. Sweet Briar, Inc., 92 F. Supp. 777 (W.D.S.C. 1950)).

     In addition, the Commission has held that to violate section 
110(c), the corporate agent's conduct must be "aggravated", i.e.,
it must involve more than ordinary negligence.  Wyoming Fuel Co.,
16  FMSHRC 1618, 1630 (August 1994); Beth Energy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992).

     Welch's  testimony  establishes  that before  the  fire  was
extinguished, Straface  knew  of  the  fire,  called  Welch  and 
inquired what was being done about it.

          Judge: [P]lease tell me when the conversation with
          ...  Straface  occurred  in  the chronology of the
          telephone  conversations  that you've  had  around
          this [fire] incident?

          Welch:[T]he lights had already  went off and I had
          called ... Stewart and talked to  him. Stewart was
          lining  up  motors  to  move  his water  cars  and
          everything getting into position.  And sometime in
          that period,... Straface called and asked what was
          going on.

          Judge: He called you directly?

          Welch: Yes, sir.  But he had already talked to the
          dispatcher.

               *              *              *

          Judge:   And   at   any   point  during   the
          conversation, did ... Straface  ask  you what
          the problem was on the section?

          Welch: No, sir, he knew what the problem  was
          ... .

          Judge: He knew there was a fire?

          Welch: Yes, sir. (Tr.857-858)

     Welch's  testimony  was  thoroughly  persuasive, and indeed,
Straface confirmed  that  he first heard of the fire from Stewart 
(Tr. 860).

     Straface's position is that upon learning  of  the  fire  he
requested  that the entire mine be notified of the fire and that
he  wanted  a full evacuation plan of the mine to be implemented 
(Tr. 861-863).  He also asked whether or not water cars were  
being brought to the scene (Tr. 863, 890).  I take Straface at his
word.  I also accept as  fact that Straface did  not  specifically
instruct anyone  concerning  the  evacuation of any section (Tr.
889), that he overheard Welch  tell  the  miners to get together 
and that he did not interrupt or try  to speak with  the  crew to
advise them that  once they were together they  should evacuate 
(Tr. 980). Straface simply assumed that they would leave  the 
section (Tr. 980).   I  further  accept  as  a fact that Welch  
told Straface  that  he  and  Stewart  "had   things   under
control",  that they were "taking care of the problem", and that
Straface assumed this was true (Tr. 849).

     I find, however, that Straface's assumptions were not enough
to relieve Straface  of  personal  liability.  Straface was the 
superintendent.  As Straface recognized, he was responsible for 
all that went on in  the mine.  ("I was in  charge  of  the  coal
mine. I would be  ultimately responsible for the results of the
incident and if it was going to be done right or wrong, I wanted
to ... [know] about it, I'd make the decision" (Tr. 876).)

     Despite his assertion that he wanted to know the facts so he
could  "make  the  decision", Straface did not take the initiative
required. He failed  to make the critical and necessary inquiries
regarding whether  or  not  the crews  had left the sections.
Consequently, he did not intervene  to  make  certain  they  did.
As the superintendent, Straface had an especially high standard of
care to the company  for whom he worked and to the miners who 
worked for him. That standard meant he was responsible ultimately
to make certain there was full  compliance  with  the program. 
Straface totally failed to meet the standard.   In view of the 
potential dangers  presented  by the situation -- dangers that
fortunately were not  realized  -- Straface's lack of a proactive
response to the fire and his passive monitoring of the responses
of others represented aggravated conduct--or put more accurately,
represented an aggravated lack of conduct--and lead to his knowing
violation of the cited standard.

     This is not to say that Straface intentionally disregarded
the program. However, an intentional violation is not necessary
to establish a "knowing" violation. It is enough that prior to 
being advised the  fire  was  out, Straface  knew  that there 
was a fire, knew miners were inby the fire yet  took  no  action
to make certain the miners were withdrawn (Kenny Richardson, 
3  FMSHRC  at 16).)

     In  addition,  after  Straface  was  informed  the  fire was
extinguished, he heard Welch instruct the crew to stay where they
were. He did not correct Welch because he believed Welch gave the
crew the right instruction (Tr. 867, 895-896). Straface was wrong,
and his high duty of  care  extended to a correct understanding 
and implementation of the program.  The requirements of the program 
were not murky, convoluted, or ambiguous with regard to withdrawal
in the event of a fire. The program did not  contain a provision
that withdrawal need not be carried out if the fire was extinguished.
By failing to make certain  the  program  was  complied with as  
written,  Straface  exhibited  more  than  an ordinary disregard
of the care he owned the company and the miners.

     I therefore  conclude  that  Straface  knowingly  violated
section 75.1101-23(a) and is personally liable pursuant to section
110(c) of the Act.

                     CIVIL PENALTY ASSESSMENT

     This was a very serious violation, and Straface exhibited
more than ordinary negligence in failing to insure the affected
miners  were  withdrawn as required.  However, the Secretary 
proposed that both Straface and Consol pay the same  penalty
for violating section 75.1101-23(a).  I  find  the  proposal 
totally  incongruous. Straface is an individual, Consol is a
large company. I have assessed Consol a penalty of $4,000.
I conclude that Straface should pay a civil penalty of  $500.
In reaching this conclusion, I note there is no suggestion
Straface has a history of knowing violations of the Act
and regulations.

                        DOCKET NO.WEVA 94-384

          ORDER NO.    DATE      30 C.F.R.   PROPOSED PENALTY

           3118640    3/17/93    75.1101-23        $3,500

     The Secretary alleged that Welch, as mine foreman, was aware
of  the  requirements  of  the  program and that a fire occurred,
yet failed to withdraw the affected miners.

                        KNOWING VIOLATION

     Welch knew of the fire, and of the fact  that the affected
miners were not evacuated outby the affected area.  He twice  
instructed  the miners to gather and to call him back once they 
were assembled (Tr. 817, 820), yet Welch said nothing to the 
miners  about evacuating outby the affected area, because, as he
stated, "the  least you put on a person in a situation like this
... the better off you are" (Tr. 840).

     I  conclude that Welch knowingly violated the standard when
in the face of certain knowledge of a fire he failed to insure 
that  there  was  compliance  with  the general requirement of 
the program that all miners inby the fire be evacuated. Moreover,
when Welch learned the fire was extinguished and he purposefully
told the miners  to  stay  on  the section,  he  also  knowingly
violated the program. The program did not contain a provision  
allowing  the  withdrawal  of miners  to  be
halted or canceled if the fire was extinguished.

     Welch, as mine foreman, had almost as high a duty of care to
his  employer and to those who worked for  him  as  did Straface.
Welch's failure to make certain the program was enforced was more
than ordinary negligence. As I have found with regard to Straface,
the wording of the program was not obscure,  and  it  was not for
Welch to imply into the program preconditions  to evacuation the
program did not state. I cannot find that Welch had a reasonable
belief that failing to make certain the miners left the affected
area was permitted under the program.

     Further,  in the face of the potential danger to the miners,
dangers  that  included  the  possibility that ignition sources 
could have been carried inby prior to the fire being extinguished,
his excuses for  failing  to insure withdrawal -- his reluctance 
"to put too much"  on  the crew  and his fears that evacuation
would be a physical strain -- were patently unconvincing (Tr. 840,
823-824, 843).

     I therefore  conclude  that Welch knowingly violated Section
75.1101-23(a)  and is  personally  liable  pursuant  to section 
110(c)of the Act.

                     CIVIL PENALTY ASSESSMENT

     This was a very serious  violation, and Welch exhibited more
than  ordinary negligence  in  failing  to  insure  the affected
miners  were  withdrawn outby the affected areas. The Secretary
proposed that Welch pay a  civil penalty of  $3,500.  As with the
proposal for Straface, I  find  it incongruous that the Secretary
proposed Consol pay  a penalty of $5,000 and that the individual
mine foreman pay a penalty of $3,500.

     While Welch knowingly  violated  the standard, and while his
duty of care was high, it was not quite as high as the superintendent's.
Consequently,  I conclude that Welch should pay a civil penalty of 
$400.  In  reaching this conclusion,  I  note  that there is no
suggestion  that Welch has a history of  knowing  violations of the 
Act and regulations.

                        SETTLED VIOLATIONS
                      DOCKET NO. WEVA 94-57

  ORDER NO.     DATE     30  C.F.R.    PROPOSED PENALTY    SETTLEMENT

   3122444     4/22/93     75.400            $5,000          $4,000

     (The  parties  agreed  for  the  purposes  of  litigation
efficiency  to  reduce  the  penalty  by  $1,000.  The findings 
set  forth  in the order remain the same (Tr. 1053).)

  ORDER NO.     DATE      30 C.F.R.    PROPOSED PENALTY   SETTLEMENT
   3122447     4/26/93   75.370(a)(1)        5,000          $2,000

     (The Secretary agreed to modify the  negligence finding from
high to moderate and to modify the  order to a citation issued 
pursuant to section 104(a) of the Act (Tr. 1050-1051).)

  ORDER NO.     DATE     30 C.F.R.    PROPOSED PENALTY    SETTLEMENT

   3122415     5/19/93   75.360(g)         $9,500             $0

     (The Secretary stated that after taking deposition testimony
and reviewing further information regarding the allegations, he 
concluded that there was insufficient evidence to establish  the
alleged  violation.  The Secretary moved to vacate the order and
the motion was granted  (Tr.  1051-1052).)

     Each of the settlements was approved on the record.  Because
I continue to believe the  settlements are reasonable and in the
public interest, the approvals are CONFIRMED.

                                ORDER

                        DOCKET NO. WEVA 94-57

                ORDER NO.        DATE        30 C.F.R.

                 3118640        3/17/93    75.1101-23(a)

     The Secretary is ORDERED to  delete  the  S&S finding and to
modify the order accordingly. Consol is ORDERED  to pay  a  civil
penalty  of $4,000 within 30 days of the date of this decision.

   ORDER NO.     DATE     30 C.F.R.    PROPOSED PENALTY    SETTLEMENT

    3122444     4/22/93    75.400           $5,000           $4,000

     Consol is ORDERED to pay a civil penalty of $4,000 within 30
days of the date of this decision.

  ORDER NO.     DATE      30 C.F.R.    PROPOSED PENALTY    SETTLEMENT
   3122447     4/26/93   75.370(a)(1)       $5,000           $2,000

     The  Secretary  is  ORDERED to modify the negligence finding
          from high to moderate  and  to  modify  the  order to a
          citation issued pursuant to section 104(a) of  the Act.
          Consol  is  ORDERED  to  pay  a civil penalty of $2,000
          within 30 days of the date of this decision.

      ORDER NO.   DATE   30 C.F.R.   PROPOSED PENALTY
      3122415     5/19/93 75.360(g)        $9,500

     The Secretary is ORDERED to vacate the order.

                      DOCKET NO. WEVA 94-366

      ORDER NO.                DATE     30 C.F.R.      PROPOSED PENALTY
      3118640                 3/17/93   75.1101-23          $4,500

     Docket No. WEVA 94-366 is DISMISSED.

                      DOCKET NO.WEVA 94-368

                                           PROPOSED  ASSESSED
       ORDER NO.    DATE      30 C.F.R.     PENALTY   PENALTY

        3118640    3/17/93   75.1101-23      $5,000    $500

     Straface is ORDERED to pay a civil penalty of $500 within 30
days of the date of this decision.

                      DOCKET NO.WEVA 94-384

                                           PROPOSED  ASSESSED
       ORDER NO.    DATE      30 C.F.R.     PENALTY   PENALTY

        3118640    3/17/93   75.1101-23      $3,500     $400

     Welch is ORDERED to pay a civil penalty of $400 within
30 days of the date of this decision.

     Upon  receipt  of payments and modification and vacation  of
the orders, Docket Nos. WEVA 94-57, WEVA 94-368, WEVA 94-384 are 
DISMISSED.


                              David F. Barbour
                              Administrative Law Judge


Distribution:

James  B. Crawford, Esq., 
Office of the Solicitor,
U.S. Dept. of Labor,  
4015 Wilson Blvd., Suite 400,
Arlington, VA 22203
(Certified Mail)

Elizabeth S. Chamberlin, Esq.,
Consol Inc., 
1800 Washington Road,
Pittsburgh, PA 15241 
(Certified Mail)

Stephen D. Williams, Esq.,
Steptoe & Johnson, 
6th  Floor, P.O. Box 2190, 
Bank One Center,
Clarksburg, WV 26302 
(Certified Mail)

nt