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[DOCID: f:k96-254.wais]

 
HARLAN CUMBERLAND COAL COMPANY
May 30, 1997
KENT 96-254

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                           May 30, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :    Docket No. KENT 96-254
               Petitioner       :    A. C. No.  15-07201-03681
          v.                    :
                                :    Docket No. KENT 96-320
HARLAN CUMBERLAND COAL          :    A. C. No.  15-07201-03683
     COMPANY,                   :
               Respondent       :    Docket No. KENT 96-321
                                :    A. C. No.  15-07201-03684
                                :
                                :    Docket No. KENT 96-322
                                :    A. C. No.  15-07201-03685
                                :
                                :    Docket No. KENT 96-333
                                :    A. C. No.  15-07201-03686
                                :
                                :    Mine C-2

                             DECISION

Appearances:   Joseph B. Luckett, Esq. U. S. Department of Labor,
               Nashville, Tennessee, for the Secretary;
               H. Kent  Hendrickson, Esq., Rice & Hendrickson, Harlan,
               Kentucky, for the Respondent.

Before:  Judge Barbour

     These proceedings  concern  petitions  for the assessment of
civil  penalties filed by the Secretary of Labor  (Secretary)  on
behalf of  her  Mine  Safety  and  Health  Administration  (MSHA)
against  Harlan  Cumberland  Coal Company (Harlan or the company)
pursuant to sections 105(d) and 110(a) of the Federal Mine Safety
and Health Act of 1977 (Mine Act  or  Act)  (30 U.S.C.  815(d),
820(a)).   The  Secretary  alleges  that Harlan violated  various
mandatory safety standards for underground  coal  mines  and that
several  of  the  violations  were  significant  and  substantial
contributions  to  mine safety standards (S&S violations).   (The
standards are found in Title 30 C.F.R. Part 75.)

     Harlan generally  denied  that  it  violated  the standards,
challenged  the  Secretary's  S&S assertions,  and contested  the
amounts of the proposed penalties.

     The mine involved is Mine C-2, a bituminous underground coal
mine located in Harlan County,  Kentucky.   The  proceedings were
heard in Harlan, Kentucky.  At the commencement of  the  hearing,
counsel  for  the  Secretary  read  into  the record stipulations
agreeable  to  the parties (Tr. 14-16).  Counsel  also  announced
that the parties had settle many of the violations (Tr. 8).   The
settlements were explained on the record, and I will approve them
at the close of this decision (Tr. 8-13, 221-224).

                           STIPULATIONS

     The parties stipulated as follows:

     1.  Harlan  mines and produces coal that enters into and has
an effect upon interstate commerce;

     2.  Harlan is  subject  to  the jurisdiction of the Act, and
the Administrative Law Judge  has the authority to hear the cases
and issue a decision;

     3.  A reasonable penalty will not affect Harlan's ability to
continue in business;

     4.   During February 29, 1995, through  February  29,  1996,
Harlan  produced 569,727 tons of coal, and the mine produced
411,803 tons  of coal.  Further, from June 30, 1995, through
June 30, 1996, Harlan produced 691,172 tons of coal, and the
mine produced 520,277 tons of coal.

     5.  Harlan exhibited  good  faith  in  abating  the  alleged
violations (see Tr. 14-16).

     In  addition  to the stipulations, counsel for the Secretary
 stated without  contradiction that there are  58  employees  at
 the mine and that  Harlan  employs  approximately  80  miners.
 He characterized  the size of the company  as  "at  the lower
 end of the large size companies" (Tr. 15).  Finally, counsel
 characterized   Harlan's   applicable  history  of  previous
 violations as medium in size (Tr. 225; see Gov. Exh. P-73).

                       CONTESTED CITATIONS

                           KENT 96-254

Citation         Date          30 C.R.F.       Proposed Penalty

4243656        3/11/96          75.202(a)             $309

     Citation No. 4243656 states:

          The  intake  roadway has  areas  of  loose  broken
          drawrock along  the  roadway at several locations.
          The intake roadway is  also the mantrip and supply
          access [roadway] (Gov. Exh. P-5).

     In addition to alleging a violation  of  the  standard,  the
citation includes an S&S finding.

     Section  75.202(a)  requires  in part that "[t]he roof, face
and ribs ... where persons work or travel shall be supported or 
otherwise  controlled  to protect  person  from  hazards
related to falls of the roof, face or ribs."

     Larry  Bush, an MSHA roof and  ventilation  specialist, who
inspected  Mine C-2  for the last 5 years, testified for the
Secretary (Tr. 20).  He  stated that during an inspection on
March 11, 1996, he traveled  along  the  main intake roadway
and  observed  that the roof contained areas  of  loose  and
hanging drawrock  (Tr.  29, see also Tr. 21).  (He described
drawrock as "rock that's  just  above  the coal seam between
the  coal  seam ... and the immediate roof  ...  [and  that]
tends  to  separate  from  the  main  roof"  (Tr. 21).   The
roadway, which  is  approximately  2 miles long, was used by
the  miners  when  they entered the mine  and  was  used  to
transport supplies into  the  mine.  It also was used as the
mine's main escapeway.

     The roof above the roadway was supported by roof bolts. In
addition,  at various locations, steel  straps  supplemented
the roof bolts.  According to Eddie Sargent, Harlan's safety
director, the  straps were approximately 13-14 feet long and
8 inches wide.  They were perpendicular to the ribs (Tr. 34-
35), and they were  bolted  into  the roof (Tr. 35).  Harlan
routinely  used  them because, according  to  Sargent,   the
drawrock  would  have  presented  "a  pretty  bad  situation
without them" (Tr. 36).

     Sargent did not see the cited conditions but was told by the
mine superintendent,  Louis  Blevins, that the "drawrock was
lying  on  straps  ...  and  it  was  supported"  (Tr.  37).
Although  Bush  agreed that some of  the  hanging  rock  was
supported by the  straps,  he  still  believed  the  hanging
drawrock  would  fall.  "[O]nce  the rock is actually broken
loose, it do[es]n't mean its going  to  ... stay right there
over  the  strap.  [E]ventually,  it  will  fall"  (Tr. 30).
Moreover,  the drawrock that was not hanging on  the  straps
could fall at  almost  any  time.  "Because the drawrock ...
was loose ... [i]t was going  to  fall  ...  within  a short
period of time," he stated (Tr. 23).

     The  height of the roof averaged between 5 and 7 feet. The
pieces  of  drawrock  that were loose and that Bush believed
would fall ranged from  an  inch  thick to a foot thick (Tr.
22, 24).  In Bush's opinion, if the  drawrock fell and hit a
miner, the resulting injuries would range  from  serious  to
fatal (Tr. 22-23).

     Supplies  were  transported  along  the roadway two or three
times a day.  Also, the roadway had to  be preshift examined
(Tr. 23,  39).  Sometimes the preshift examiner  walked  the
roadway and  sometimes he or she rode in a vehicle (Tr. 39).
Further, the mantrip  passed  under  the roof as miners were
brought  to the active sections (Tr. 28-29).   Although  all
mobile equipment  at  the  mine  had  canopies (Tr. 31, 39),
Sargent agreed that if the equipment broke  down, the miners
might have to get out and walk (Tr. 40).

     Bush believed that a preshift examiner should  have seen the
hanging  drawrock  and  should have made sure it was  pulled
down (Tr. 23).  As Bush stated,  "When it's observed ... the
condition should be taken care of immediately" (Tr. 27).

     To terminate the condition, Harlan  pulled down the drawrock
(Tr. 25).

                          THE VIOLATION

     I credit Bush's testimony that at various  points along the
subject  roadway the drawrock was hanging and ready to  fall
(Tr. 29).   Sargent did not view the area, and his testimony
cannot overcome  Bush's  first  hand  observations.   I also
credit Bush's testimony that miners traveled under the cited
roof.   The Secretary conclusively has established that  the
cited roof  was  not  supported  or  otherwise controlled to
protect miners who traveled under it from roof fall hazards.
The violation existed as charged.

                         S&S and GRAVITY

     A violation properly is designated S&S, "if, based on 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  reasonable  serious
nature" (Cement Division,  National Gypsum Co., 3 FMSHRC 825
(April 1981)).  There are four  things  the  Secretary  must
prove to sustain an S&S finding:

               (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 reasonable serious
          nature  (Mathies  Coal  Co.,  6 FMSHRC 1, 3-4
          (January 1984); see also  Austin Power Co. v.
          Secretary,  861,  F.2d 99, 104-105  (5th Cir.
          1988) (approving Mathies criteria).

Here, the Secretary has proven all four.

     There was a violation of  section 75.202(a).   The violation
resulted  in  a  discrete  safety  hazard in that the failure  to
support or otherwise control the roof at various points above the
roadway subjected miners traveling beneath  the  roof  to  injury
from  falling  drawrock. While it is true that many of the miners
who traveled the  entry did so in vehicles equipped with canopies
and  that  these  canopies   undoubtedly   offered   considerable
protection  from  such  falls,  Sargent  confirmed  that preshift
examiners at times walked the roadway and that if equipment broke
down other personnel had to walk as well (Tr. 39-40).

     Given  the  fact that the cited drawrock was "hanging,"  and
loose, Bush believed  that  it  would  fall  (Tr. 23).   I accept
Bush's  testimony  in  this  regard.  Moreover, I agree with Bush
that  a miner struck by falling  draw  rock  would  be  seriously
injured  or  even  killed, particularly when some of the drawrock
was a foot thick (Tr. 24).   Considering  the number of times the
roadway was traveled, or could have been traveled if it needed to
be  used as an escapeway, and considering the  condition  of  the
drawrock, I conclude that it was reasonably likely that as mining
continued a miner would be struck and seriously injured or killed
by falling rock.  Therefore, I find that the violation was S&S.

     In  addition  to  being S&S, the violation was very serious.
It  long  has  been held that  the  gravity  of  a  violation  is
determined by analyzing  the  potential  hazard  to the safety of
miners  and  the probability of the hazard occurring  (Robert  G.
Lawson Coal Co.,  1 IBMA 115,  120  (May  1972)).   The potential
hazard was serious injury or worse due to falling rock.   Because
the  drawrock  was  hanging  and  would  fall  and because miners
traveled  on foot under the rock, it was probable  that  a  miner
would be hit, injured, or killed by the falling rock.

                            NEGLIGENCE

     Negligence  is  the failure to exercise the care required by
the  circumstances.   Because  the  condition  of  the  roof  was
visually obvious, Bush  believed  that  the  foreman  and/or  the
preshift examiner should have seen the unsupported roof and taken
corrective   action  (Tr. 23).   I  agree.   The  evidence  fully
supports Buch's  opinion that the condition was obvious (Tr. 27).
In failing to correct the problem, the company failed to exercise
the care required.

Citation       Date           30 C.R.F.     Proposed Penalty

4243658       3/11/96        75.380(d)(1)          $288

     Citation No. 4243658 states in part:

          The  004  section  intake  has  water  accumulated
          across both intake entries too deep to travel thru
          or carry an injured person if needed (Gov. Exh. P-
          7).

     In addition  to  alleging  a  violation of the standard, the
citation includes an S&S finding.

     Section   75.380(d)(1)   requires   that    escapeways    be
"[m]aintained  in  a safe condition to always assure passage
of anyone, including disabled persons."

     According to Bush, on March 11, 1996, the mine's main intake
entries had water in  them, and the  water  was  deep  enough  to
impede miners who might  have  to travel or  carry  an  injured
miner  through the entries. The entries  were  part  of  the
escapeway  for  the  004 Section, an active section that was
being  mined  (Tr. 41, 45, 49).    Although   there  was  an
alternate escapeway and although the alternate escapeway had
no  water  in  it  (Tr. 48),  the  intake escapeway was  the
primary escapeway, and it provided the  quickest  and safest
way to the surface (Tr. 48, 50-51).

     The  water  was  in  a  "dip,"  about a mile from the portal
(Tr. 45, 47).   It  was not unusual  for  water  to  collect
there, and in the past,  it  had  been pumped out.  However,
March 11   was   a   Monday,   and   Blevins,   the   mine's
superintendent, told Bush the pumps had  not  worked  on the
weekend.

     Bush walked along the rib at one side of the entry. The
water   reached   the   top   of  his   boots,   making   it
14 to 16 inches deep (Tr. 42, 48).  Bush did not go into the
middle of the entry, but he estimated  that  there the water
was  18 inches  to  2 feet  deep  (Tr. 42, 48).   Bush  also
estimated that the water extended for approximately  80 feet
(Tr. 42).

     Bush  believed  it  was  reasonably  likely  the water would
hinder the exit of miners using the escapeway, including any
miners who were transporting an injured miner on a stretcher
(Tr. 43).  The water could cause the miners, especially  the
stretcher  bearers,  to slow their egress, to slip and fall,
and to drop the stretcher (Tr. 44-45).

     In Bush's opinion the  violation  was  due  to the company's
negligence.   The   superintendent  knew the pumps  had  not
worked  over  the  weekend,  yet he had taken  no  steps  to
correct the situation on Monday (Tr. 43-44).

     To terminate the citation, Harlan  got the pumps running and
pumped down the water (Tr. 45).

                          THE VIOLATION

     The testimony establishes that the primary escapeway for the
004 Section was not maintained in a safe condition to assure
that anyone could pass through it.   Although  the escapeway
was not blocked - Bush walked along the side of the entry to
get through, and I infer that other miners could  have  done
this too - it is clear that the passage of miners would have
been  hindered by the water.  I accept Bush's testimony that
the water came to the top of his boots near the sides of the
entry and  his estimate that the water was 18 to 2 feet deep
in the middle  of  the  entry.  Harlan offered absolutely no
testimony to the contrary.  It is a simple fact that walking
through this much water creates  a  slipping  and  stumbling
hazard and slows down anyone trying to get through it.

     Chief Administrative Law Judge Paul Merlin has observed that
section 75.380(d)(1)  imposes a general obligation for  safe
escapeways and in order to determine whether this obligation
has been satisfied, each case must be examined and judged on
its facts (Jim Walter Resources,  Inc., 16 FMSHRC 1264, 1268
(June 1994).  Because a delayed exit is an unsafe exit  this
general requirement means that the  passage of miners not be
impeded so as to hinder and slow even  one miner's exit from
the  mine.  Because the water in the cited  escapeway  would
have hindered  and slowed those miners who had to go through
it, I find that the violation existed as charged.

                         S&S and GRAVITY

     The hazard contributed  to  by  the  violation  was  that of
inhibiting the evacuation of miners trying to leave the mine
due to an emergency.  It is apparent to me that there  was a
reasonably  likelihood such a delay would result in injuries
of a reasonably serious nature when viewed in the context of
continuing   mining   operations   and   of   an   emergency
necessitating   use   of  the  escapeway.   Indeed,  if  the
emergency were a fire or  an  explosion,  the  delay  easily
could  have  resulted  in  serious  injuries or even deaths.
Moreover, even if miners were not injured  by the effects of
the  fire  or explosion there was a reasonble  likeihood  of
slipping or  falling  injuries  (see Consolidation Coal Co.,
16 FMSHRC 1286, 1293 (June 1994)  (ALJ Feldman)).  Thus, the
third element of the Mathies test was established.

     The  other three elements of Mathies also were satisfied,
given  there  was  a  violation,  that it contributed to the
hazards  set  forth above, and that serious  injuries, even
deaths, could have resulted.

     The fact that miners could have used a secondary escapeway,
does not undermine the S&S nature of the violation.  As Bush
pointed out, the primary  escapeway  was  the quickest, most
direct way to exit the mine (Tr. 49, 50-51).   It  was  also
the  route miners were trained to use.  I cannot assume that
in the  event  of  an  emergency, miners would have diverted
their escape to the secondary  escapeway  rather than travel
through the water.

     The  violation also was serious.  In an emergency, a rapid
exit from  the  mine  can  mean life or death for the  miners
involved.  Anything that impedes  the  rapidity of a miner's
escape can have serious consequences.

                            NEGLIGENCE

     Bush's testimony that the superintendent told him the pumps
did not work all weekend, and his testimony  that  the  company
made no attempt to get the pumps working, was not  refuted  by
Harlan.   The company should have known that  with the pumps
not working, water would collect in the "dip".   After  all,
that is why the pumps were there.  The company either should
have  corrected  the  situation  or  should have been in the
process of correcting it.  It did neither.  I therefore find
that  Harlan  failed  to exhibit the care  required  by  the
circumstances and was negligent.

   Citation       Date           30 C.R.F.      Proposed Penalty

    4243659     3/11/96           75.202(a)           $309

     Citation No. 4243659 states:

          The 004 section has  loose[,]  broken  ribs across
          the  section  at  several locations where men  are
          required to work & travel (Gov. Exh. P-8).

     In addition to alleging  a  violation  of  the standard, the
citation includes an S&S finding.

      The requirements of section 75.202(a) are set forth above.

     When Bush inspected the 004 Section on March 11, 1996, he
observed "[l]oose, broken ribs across the section at  several
locations  where  persons  were required to work and travel"
(Tr. 53).  Some of the loose  and broken ribs were sloughing
into the entry (Tr. 60).

     A rib is the wall of a pillar that is left after mining. On
the 004 Section, the ribs were between 5 and 7 feet  high  and
60 feet  long  (Tr. 54).   The  pillars  and  ribs   provided
support for the roof (Id.).  The  areas  where Bush believed
the  pillars  were loose and broken were areas  where  mines
worked (Id.).

     Bush recalled in particular that two crosscuts out by the
face there was a pillar where the weight  of  the  overburden
had  caused the rib to fracture (Tr. 55-56).  The overburden
had pushed the rib outward toward the entry (Id.).

     In this particular pillar there was a 12 to 15 inch thick
band of rock lying between the  coal  seam and the  immediate
roof.  Bush believed that when the fractured part of the rib
rolled into the entry, the rock would tend  to roll out with
the coal.  The rock could cause injuries even  more  serious
than those caused by the rolling coal (Tr. 55-57).

     To Bush, the cracks in the ribs meant that the ribs could
roll at any time  (Tr. 58).   He  explained  that when a rib
gave  way,  it  would,  "just  roll  out  ... just collapse"
(Tr. 59).  He stated, "It was not if.  It was ... a question
of when" they were going to roll (Id.; see also Tr. 62).  He
also  noted  that  at  the  mine  the  company had  constant
problems with the ribs and roof due to the  pressure  put on
them  by  the overburden (Tr. 59).  He believed three miners
had been injured previously by rib rolls at the mine (Id.).

     Bush saw two miners working in the areas of the loose ribs.
One was the section foreman (Tr. 58).  They were within 3 to
4 feet of the ribs  and  were  in  danger if the ribs rolled
(Tr. 64).  In addition, eight to ten  miners  worked  on the
section  (Tr. 58).  In Bush's view, during the shift all  of
them would have to travel in the areas where the faulty ribs
were located  (Id.).   If  any of the miners were hit by the
rolling  ribs,  their  injuries   could   range  from  minor
abrasions,  to broken bones, to fatalities (Id.).

     Bush believed that Harlan was negligent in allowing the rib
conditions to exist.  The foreman was on the section and the
section was producing coal when the conditions were observed
and cited.  The foreman should have seen the  conditions and
taken  steps  to  correct  them (Tr. 57).  In addition,  the
section  was  required  to  be preshift  examined,  and  the
conditions should have been noted  and corrected as a result
of that examination.

     The company's safety director, Sargent, testified that the
company was in the process of retreat mining and  this  caused
more  weight  to  bear down on the ribs than otherwise would
have been the case  (Tr. 66).   To Sargent the cracks in the
ribs  indicated  the  ribs  were  under  increased  pressure
(Tr. 67).   Given  these  conditions,   the   sloughing  and
cracking of the ribs was normal.  In Sargent's view, part of
effective rib control required letting the ribs  slough  and
allowing  the  sloughed  material to build up at the base of
the ribs.  This butressed the ribs (Id.).

     Sargent stated the danger was not from the  ribs rolling
 (Tr. 68),  but from outbursts of coal caused by the  pillars
 "exploding"  under  the  pressure  (Tr. 67).   Although  the
 cracks  did  not  necessarily  indicate  a coal outburst was
 imminent,  if one did occur, the rib material  could  strike
 and injure a miner (Tr. 67-68).

     The condition was corrected when the loose, broken ribs were
pulled down (Tr. 60).

                          THE VIOLATION

     The Secretary bears the burden of proof. In the context of
this alleged violation  of  section  75.202(a), the  Secretary
must establish that miners worked  or  traveled in the cited
areas   and  that  the  cited  ribs  were  not  sufficiently
supported  so  as  to  protect  the miners from rib rolls or
outbursts.  The company did not offer  the  testimony of any
witness  who  was  with Bush during his inspection  and  who
observed the conditions.  Bush was a credible witness, and I
accept his uncontroverted  description  of the cited ribs as
being  loose (meaning fractured) and as sloughing  into  the
entries   (Tr. 53-54,  55, 60).  I also accept his testimony
that during the course of  the  inspection  he  observed two
miners  working in the area, one being the section  foreman,
as well as his testimony that all of the section crew had to
travel in the area of the cited ribs at some time during the
shift (Tr. 55, 58).

     Bush believed that the rock that was layered between the
coal seam and the immediate roof  in  one  of the cited ribs
was likely to travel further into the entry  when  the  ribs
rolled  (Tr. 55).   This  tesimony was not disputed, nor was
his opinion that if the coal  or rock hit a miner working or
traveling in the vicinity of the rib, the miner could suffer
abrasions, broken bones, or even be killed (Tr. 56).

     The parties generally agreed that the overburden was putting
increased pressure on the roof  and  ribs  (Tr. 59, 66), and
that  when  retreat mining was underway, more  pressure  was
exerted on the  ribs than might otherwise have been the case
(Tr. 66).   It is  logical  that  this  pressure  caused the
fractures  and sloughing Bush observed.  It is also  logical
that given the  pressure,  the  cracked  and  sloughing ribs
would  have rolled out at any time and that the  roll  would
have injured  a  miner working or traveling in the immediate
vicinity of the roll (Tr. 58).

     For these reasons, I conclude that the record amply supports
finding  that  the  miners   on  the  004 section  were  not
protected from injuries related  to  rib rolls, and that the
violation existed as charged.

                         S&S AND GRAVITY

     The violation contributed to the hazard  that members of the
section crew would suffer abrasions, broken  bones, or  worse
from being struck by coal and/or rock.  Given  the continued
pressure  on  the  ribs  and their fractured state,  I  have
concluded the ribs would have  rolled  at  any  time.  Also,
given  Bush's  unrefutted  testimony  that  two miners  were
working in the immediate vicinity of one of the  cited  ribs
when  the  violation  was  first observed, and his testimony
that as mining continued all section crew members would have
worked  or traveled in the vicinity  of  the  ribs,  it  was
reasonably  likely  the  rolling coal and/or rock would have
stuck  and injured miners (Tr. 68).   Obviously,  abrasions,
broken bones,  or  worse are injures of a reasonably serious
nature.  Therefore, I conclude the violation was S&S.

     In  addition,  the combination  ofthe likelihood of the
injuries and the  potential degree of the injuries resulting
from  the  violation  meant  that  the  violation  was  very
serious.

                            NEGLIGENCE

     I  have accepted Bush's testimony that he observed  the
section  foreman working in the immediate vicinity of one of
the cited  ribs  (Tr. 57).   Even  though  the  cracking and
sloughing was readily visible, the foreman had done (and was
doing)  nothing  to  correct  the  situation.   His  failure
represented  a  lack  of care required by the circumstances,
and it is attributable to Harlan.

     In addition, I infer from the extensiveness of the cited
conditions that they had been in existence for some time and
should   have  been  observed  and  noted  by  the  preshift
examiner.    Therefore,  the  conditions  should  have  been
corrected or have been in the process of being corrected.

     For both of these  reasons,  I  find  that  the  company was
negligent in allowing the violation to exist.

    Citation     Date         30 C.R.F.      Proposed Penalty

     4243921    3/11/96         75.220             $431

     Citation No. 4243921 states in part:

          The approved roof control plan was not followed on
          the  005 M.M.U.  A row of pillars was mined and  4
          of the pillars were cut in one direction and 2 cut
          in the  opposite  direction  in the same row.  The
          plan stipulates that [the] sequence of mining stay
          the same in each row (Gov. Exh. P-12).

     In addition to alleging a violation  of  the  standard,  the
citation includes an S&S finding.

     Section  75.220  requires in part that "[e]ach mine operator
shall develope and  follow  a roof control plan, approved by
the District Manager, that is  suitable  to  the  prevailing
geological conditions, and the mining system to be  used  at
the mine."

     Bush explained that on March 11,  1996,  the 005 M.M.U.
Section was in the process of retreat mining.   He described
retreat  mining  as  requiring the "full extraction  of  the
pillars that were left  from  advance mining" (Tr. 71).  The
approved sequence for the extraction  of the pillars was set
forth in the mine roof control plan (Gov. Exh. P-10).  Under
that sequence, a cut was made in the middle  of  the  pillar
(the  key  cut)  and  the  roof was supported by roof bolts.
Then, a second cut was made  from  the  middle  on the other
side of the pillar and the pillar was split in two.

     The two poritons of the pillar are the "wings". Each wing
was  then cut in a series of three cuts, one wing at a time.
However,  a  small  triangular portion of each wing was left
standing.  (Tr. 72-73;  Gov.  Exh. 10 at 135 (on the exhibit
designated as page 24, Drawing No. 15)).

     The pillars on the section were square and measured 70 feet
by 70 feet.  They were located on  centers  of approximately
90 feet,    making   the   entries   between   the   pillars
approximately  20 feet  wide  (Tr. 74; Gov. Exh. P-11).  The
pillars were in rows of six.

     On March 11, Bush was concerned with the row closest to the
gob -- the most inby row (see Gov.  Exh. P-11).   When  Bush
arrived on the section, the two pillars on the furthest left
when  facing the gob (pillars 1 and 3 on Gov. Exh. P-11) had
been mined  completely, as had the two on the farthest right
when facing the  gob  (pillars 4  and  2  on Gov. Exh. P-11)
(Tr. 76-77).   The two middle pillars (pillars 6  and  7  on
Gov.  Exh. P-11)   were   being   mined  (Tr. 74-75).   Bush
determined that the key cuts in pillars 1  and  3  had  been
made from right to left when facing the gob and that the key
cuts  in  pillars 4  and 2 had been made from left to right.
Bush observed that pillars 6  and  7 were being cut straight
ahead toward the gob (Tr. 75; Gov. Exh. P-11).

     As Bush understood the plan, because the key cuts in the
first  pillars had been cut from right to left, the rest  of
the key  cuts  were  required  to be cut from right to left.
(Bush stated, "[H]owever you attack  the  first  pillar, you
have to follow that sequence in that row all the way  across
....  [Y]ou're  supposed  to mine [the pillar line] the same
way  all  the  way  across"  (Tr. 81,   see  also  Tr. 82)).
According to Bush, Harlan's failure to cut the two right and
the two middle pillars in the same direction as the two left
pillars violated a provision in the plan which stated, "More
than two pillars may be worked in cycle,  provided  that the
same  sequence of recovery and support is followed" (Tr. 89,
see also Tr. 91-92; Gov. Exh. 10 at 136).

     Bush acknowleged, however, that the roof  control  plan
allowed  deviation  from  the cutting sequence.  A provision
entitled "Additional Safety  Precautions  For Retreat Mining
(Pillaring)" stated, "The standard cut sequence as indicated
may  be  deviated  from  where  adverse conditions  make  it
impractical to attack a pillar in  the  locations indicated"
(Gov. Exh. 10 at 116 (on the exhibit designated  as page 7);
Tr. 83-84).    Bush  stated  that  although  this  provision
allowed the company in the presence of adverse conditions to
change the direction  in  the  way  the pillars were "keyed"
(Tr. 86),  if  such  a  deviation was made,  it  had  to  be
followed consistently all  of  the  way  across  the  row of
pillars.   ("[They  can  attack  the pillar from a different
direction if conditions warrant, but  they  have  to  follow
that sequence all the way across" (Tr. 84)).

     Although Bush stated that he observed no adverse conditions
that warranted  deviation  from  the  standard  cut sequence
(Tr. 85),  he   agreed that he did not know what the  actual
roof conditions were when pillars 1, 3,  4 and 2 were mined,
because he was not then present on the section.  Nor, did he
know what the conditions  were  when  mining  was started on
pillars 6  and   7, because, when he arrived on the  section
mining had commenced (Tr. 86).

     Bush believed that cutting the pillars in the same row in
different directions could  cause the weight  distribution  of
the roof to shift and could lead  to  hazardous  roof  falls
(Tr. 76,  79).  Such  a deviation from the roof control plan
could also lead to some  of the pillars being crushed or the
wings being crushed while  miners  worked  on them (Tr. 76).
The  miners  most  endangered  were  the  continuous  mining
machine operator, his helper, and the shuttle  car operator,
all of whom were engaged in mining the number 6 and 7 pillars
when Bush reached the section (Tr. 78). Bush noted that 1 month
prior  to  March 11,  a  continuous  miner operator had been
trapped twice by roof falls while mining pillars (Tr. 79).

     Bush believed the company was negligent in failing to follow
the  plan  because the section foreman was  responsible  for
knowing what  the roof control plan required and should have
known how the pillars were cut (Tr. 78).

     The alleged violation  was abated when the continuous mining
machine was pulled back from pillars 6 and 7 and the company
abandoned them (Tr. 80).

     Blevins,  the  mine  superintendent, testified that  he
accompanied  Bush  to  the  section.  Blevins confirmed that
when he and Bush arrived on the  section the crew was in the
process  of mining the center pillars.   Some  of  the  roof
between pillars 6  and  7  had  fallen,  and  the  crew  had
installed roof bolts between the pillars.  The crew also had
installed  two  lines of breaker posts at the "lower end" of
the entry between  pillars 6  and  7  because of the adverse
roof conditions between the pillars (Tr. 94).   In  Blevin's
view,  the key cuts in pillars 6 and 7 had to be taken  from
the pillars'  sides  furthest  from the gob because of these
breaker posts (Tr. 95).

     In addition, Blevins maintained that the key cuts in the two
pillars on the left (pillars 1 and  3)  were made from right
to left because there was a swag on the far left side of the
section.  He also maintained that the key  cuts  in  the two
pillars  on the right (pillars 4 and 2) were made from  left
to right because  of a similar swag on the right side of the
section.  The swags prevented the key cuts in the two groups
of pillars from being  mined  in the same direction (Tr. 96-
97).  (A "swag" is defined as a "subsidence ... of the roof"
(US. Department of the Interior,  A  Dictionary  of  Mining,
Mineral, and Related Terms (1968) at 1109.)

                          THE VIOLATION

     It  is  a  fundamental principle of mine safety law that
provisions of a plan required to be  adopted by  the operator
and  approved by the Secretary are enforceable as  mandatory
standards  (see,  Zeigler  Coal  Co. v. Kleppe, 536 F.2d 398
(D.C.   Cir 1976)   (enforcement  of  ventilation   plans)).
Section 75.220  requires  the  operator  to  adopt  and  the
Secretary to approve  such  a  plan.  Thus,  the question of
whether there was a violation of the standard is resolved by
compairing  the  factual  situation  in  the  mine with  the
requirements of the adopted and approved plan.

     Bush determined that the key cuts were taken from right to
left in pillars 1 and 3 and from  left to right in  pillars  4
and  2 (Tr. 76-77).  In addition, he determined that the key
cuts in  pillars  6 and  7 were taken straight ahead, toward
the gob (Tr. 75-77).  Blevins   did  not  disagree with Bush
about the direction in which the pillars were  cut (Tr. 95).
Therefore, I find that the key cuts were mined as  described
by Bush.

     Under the roof control plan, whether one pillar was mined at
a time (a one pillar cycle) or whether two pillars are mined
in  sequence  (a  two pillar cycle), Harlan was required  to
follow "the same sequence  of  recovery  and  support" (Gov.
Exh. 11 at 135, 136).  To Bush, this meant taking
cuts  from  the  pillars  in  the  same  direction (Tr. 81).
Bush's  interpretation conforms to both the  words  and  the
diagrams  of  the  plan, and I conclude he was correct (Gov.
Exh. 11 at 135, 136).

     Since the cuts in the pillars were not made in the direction
of the first key cut  --  i.e.,  from right to left - Harlan
violated  the  plan, unless Harlan can  establish  the  plan
contained an applicable exception to the requirment.

     As previously noted, the  plan contained a provision titled
"Additional    Safety    Precautions    for   Retreat   Mining
(Pillaring)."  The complete provision stated:

          The  standard  cut  sequence as indicated  may  be
          deviated  from where adverse  conditions  make  it
          impractical  to  attack  a pillar in the locations
          indicated.  Such deviation is permitted only where
          equivalent pillar support  is  maintained  in  the
          alternate  method (Gov. Exh. 11 at 116 (designated
          page 7 on exhibit)).

     Blevins maintained  that  roof  conditions between pillars 6
and 7  and the resulting roof support  (the  breaker  posts)
between  the  two  pillars prevented mining the key cut from
right to left (Tr. 94-95).  He also testified that a swag on
the far right side of  the  entry  prevented  mining the key
cuts  on  pillars 4  and 2  from  right to left (Tr. 96-97).
Bush candidly admitted that he did  not know what the actual
roof conditions were when pillars 1, 3, 4, and 2, were mined
and  that  he  did  not know what the conditions  were  when
mining  started  on  pillars 6  and 7  (Tr. 86).   I  accept
Blevins testimony regarding  the  presence  of  the  breaker
posts and the swags.

     However, given these roof conditions, Harlan did not prove
the exception applied.   First,  while  the swag and the low
roof caused by the swag on the right side of the section may
have prevented pillars 4 and 2 from being  cut from right to
left, there is no reason apparent why pillar No. 7 could not
have  been  cut  from  right  to  left.   The  adverse  roof
conditions  and  the  breaker posts were between the  middle
pillars, not on their right.   Second,  the exception states
that  "deviation  is permitted only where equivalent  pillar
support is maintained"  (Gov.  Exh. 11  at 116).   In  other
words,  Harlan  also  had  to show that it maintained pillar
support  equivalent  to  the  support   provided   by   full
compliance.    Harlan   did   not   introduce  any  evidence
concerning this critical condition.   Because, I cannot find
that  Harlan  has  established  the  applicability   of  the
exception,  I  conclude  that  the  company violated section
75.220.

                         S&S AND GRAVITY

     The Secretary did not establish a reasonble  likelihood that
the  hazard contributed to would result in an injury.   Bush
was asked  why he believed an accident was reasonably likely
and he responded  "Because  ... mining ... off-sequence like
that  causes  ...  irregular weight  distributions  and  can
cause, could cause roof  falls and subject people to serious
and even fatal injuries" (Tr. 78).   This  minimal testimony
was  too tentative ("can cause, could cause")  to  establish
reasonable   likelihood,    and   there  was  no  additional
testimony offered by the Secretary  regarding  "likelihood."
Further, although Bush testified that some roof  in the area
of the
005 MMU Section had fallen twice within a month during prior
pillar  recovery  operations,  he did not link the falls  to
deviations in the sequence of recovery,  and  there  is  not
basis to assume that such was the case.

     Despite the lack of proof regarding the inspector's S&S
finding, the Secretary established  the  violation  was very
serious.   The  parties agreed some of the roof between  the
middle pillars had  fallen  in a way not contemplated in the
plan (Tr. 78, 96).  This created  an  adverse roof condition
in the middle of the pillar line.  There  is  no  indication
that  the mining sequence Harmon was using provided  support
equivalent  to  that  provided  by the plan.  During retreat
mining  the  roof  is  supposed  to  fall   in  a  carefully
controlled  and  predictable  way.   When  the plan  is  not
followed,  control  and  predictability  are  lost.   Pillar
recovery  is  dangerous  under  the  best  of circumstances.
Failure  to follow the approved plan for recovery  makes  it
even more  so,  as evidenced by the falls between the middle
pillars.

                            NEGLIGENCE

     Bush believed Harlan was negligent because the  section
foreman,  who  was  responsible  for  knowing  what the roof
control  plan  required, should have made certain  that  the
plan was followed  (Tr. 78).   Bush  was right.  The foreman
was   responsible   for   compliance.    When    there   was
noncompliance  and  when there was not an acceptable  excuse
for the noncompliance  (as  in the case of pillar No. 7, for
example),  the foreman, and through the foreman the company,
did not meet the standard of care required.

     Citation     Date      30 C.R.F.       Proposed Penalty

     42433726   2/27/96    75.1106-3(a)(2)          $288

     Citation No. 4243726 states:

          The  oxygen & acetelene tanks located in the No. 2
          entry  outby  the 004 MMU last open cross cut were
          not secured in  an  upright position (Gov. Exh. P-
          3).

     In addition to alleging a  violation  of  the  standard, the
citation includes an S&S finding.

     Section 75.1106-3(a)(2) requires in part that "[l]iquified
and  nonliquified  compressed  gas  cylinders  stored  in  an
underground  coal mine shall be [p]laced securely in storage
areas designated  ... for such purpose, and where the height
of the coalbed permits,  in  an upright position ... secured
against being accidentally tipped over."

     MSHA inspector Rober Clay testified that on February 27,
1996, during  an  inspection of the 004 MMU Section,  he saw
one oxygen tank and  one  acetylene tank leaning against the
rib of a coal pillar, in an  active  roadway,  approximately
300 feet  outby the face of the section (Tr. 100-101,  104).
(Clay did not  know  if  any oxzgen or acetelyne remained in
the tanks (Tr. 104)).

     According to Clay, the tanks should  have  been  stored
securely in an upright position  to  prevent them from being
damaged by falling rocks or mobile equipment.   The  roadway
was  used  by "very large equipment" (diesel scoops, battery
scoops, diesel personnel carriers).  He described the diesel
scoops as being  "big  as  an  automobile"  and  the battery
powered  scoops as being 25 feet long and 10 feet wide.   He
also  explained  that  the  diesel  scoops  and  the  diesel
personnel   carriers  provided  their  operators  with  very
limited visibility (Tr. 103).

     Tracks on the mine floor indicated to Clay that equipment
had come within 12 inches of  the  tanks  (Tr. 105).  If the
tanks  had  been hit and punctured, any gas they  contained,
could have become  very  volatile  and  could  have exploded
(Tr. 101, 102).   If  the  acetylene  and ozygen mixed,  the
explosion could have been even more violent.   In fact, Clay
maintained  that two miners had been killed in an  explosion
caused by the  puncturing  of  tanks  identical to the cited
tanks  (Tr. 102, 103).   Clay had seen a  tank  rupture  and
produce a "very violent expolsion  and  fire"  at  the  mine
(Tr. 103).

     Clay was asked why he found the alleged violation to be S&S,
and  he  replied  it was because serious burns or fatalities
likely would occur as the result of damage to the tanks.  He
graphically described  what happened when one tank exploded,
"[A] miner was literally  blown  to  bits.  There were very,
very few body parts left intact" (Tr. 103).

     The citation was issued after the section had been both
preshift examined  and onshift examined.  In addition, there
was a foreman on the  section.   Further, according to Clay,
everyone who worked on the section  had  traveled  past  the
tanks  during  the  course of the shift (Tr. 101-102).  Even
though  the tanks were  in  plain  view,  they  had not been
placed upright and secured.

     The condition was corrected when the tanks were tied upright
(Tr. 103).

                          THE VIOLATION

     The standard requires compressed gas cylinders, such as
those  cited  by  Clay,  to be placed in designated  storage
areas and secured against accidentally tipping over.  Harlan
did not dispute Clay's testimony  that  the  cylinders  were
leaning  against  the  rib, as Clay put it, "like a chair...
against a wall" (Tr. 104).   The  cylinders were not secured
against  accidentally tipping over,  and  I  find  that  the
violation  existed  as  charged.  Clay testified that he did
not  know  whether  the  cylinders   contained  oxygene  and
acetylene, but this lack of knowledge does not impact on the
violation.  The standard makes no distinction  between empty
or full cylinders.

START HERE

                         S&S AND GRAVITY

     Clay's   testimony  regarding  the  hazards  posed  by   the
     violation  was  compelling.   Acetelyne and ozygen tanks are
     indeed potentially very hazardous,  and  I  agree  with Clay
     that were both to rupture at the same time, the hazard would
     be compounded (Tr. 102-103).  The fact that mining equipment
     passed within 1 foot of the tanks, and the fact that on some
     of   the   equipment,  the  driver's  field  of  vision  was
     restricted,  in my opinion made it reasonably likely that as
     mining continued  on  the section, the tanks would have been
     knocked over, punctured and
     a "very violent explosion  and  fire"  would  have  resulted
     (Tr. 103).   Since  one  of  the  pieces  of  equipment that
     regularly  passed  by the tanks was a mantrip, it  was  also
     reasonably likely that  the  explosion  and  fire would have
     resulted in serious injuries or death to one or  more miners
     (Tr. 103).  Accordingly, I conclude Clay was correct when he
     found  that  the  violation was S&S (see, U.S. Steel  Mining
     Co., Inc., 6 FMSHRC 2305, 2306-10 (October 1984); U.S. Steel
     Mining Co., Inc., 6 FMSHRC 1834, 1838-40 (August 1984)).

     In addition, this was  a  serious  violation.  The inspector
     compellingly  testified  about  what  could  happen  if  the
     unsecured  tanks  were  knocked  over  and  punctured.   The
     explosion and fire the inspector described could  have  been
     catastrophic to those in the immediate vicinity of the tanks
     (Tr. 103).

                            NEGLIGENCE

     The  area had been preshift and onshift examined.  A foreman
     was working  on  the  section  (Tr. 102).  The tanks were in
     plain view.  The visually obvious condition should have been
     noticed  and corrected.  In allowing  the  tanks  to  remain
     leaning  against  the  rib,  Harlan  negligently  failed  to
     exercise the care required of it.

      KENT 96-320

Citation                 Date                          30          C.R.F. 
Proposed Penalty

4244151        4/28/96                                  75.202(a)
                                             $252

     Citation No. 4244151 states:

          A    loose   inadequately   supported   coal   rib
          approximately  3  [feet]  high, 5 [feet] long & 14
          [inches]  thick  was  observed   on  the  9  Right
          Section[,] No. 3 entry. The rib was  on the corner
          of the No. 3 Entry on 9 Right (Gov. Exh. P-15).

     (The  citation describes the dimensions of the  rib  as  "3'
     high, 5"  long & 14" thick".  Clay's testimony confirms that
     "5"" is a typographical  error  and  that  he meant to write
     "5'" (Tr. 122).)

     In  addition  to  alleging a violation of the standard,  the
     citation includes an S&S finding.

     The requirements of section 75.202(a) are set forth above.

     Clay arrived at the  9 Right Section, No. 3 Entry during the
     third shift, a service  shift.   Mining  equipment was being
     moved on the section to prepare the area for  the day shift.
     Three or four miners were working (Tr. 121-122).

     Clay  noticed  that a pillar on the section had a  fractured
     rib (Tr. 122, 125-126).   The  fracture  had caused  part of
     the rib to pull away from the rest of the  pillar (Tr. 122).
     (Clay described the part as 3 feet high by 5 feet long by 14
     inches thick, or as "approximately the size
     of  a  file cabinet" (Tr. 124)).  The part was  leaning  out
     from the  rib  toward the roadway.  Clay could see rock dust
     behind the fracture (Tr. 122, 124).  The rock dust indicated
     to Clay that the  rib  had been fractured for some time, but
     he agreed that ribs can  fracture at any time, especially in
     an  area  where  the  pillars   have   not  yet  been  mined
     (Tr. 124, 128).

     The rib was coal, but Clay noticed that  the  fractured part
     of the rib had a vein of rock running through it.   The rock
     added  weight  to  the  leaning  part  of  the rib, and Clay
     believed it was going to fall into the entry (Tr. 122).

     When it fell, Clay feared it would seriously  injure or kill
     a  passing  miner  (Tr.  123).   Because  preparations  were
     underway to move the section, there was much activity in the
     immediate area of the fracture, and Clay cautioned  a  miner
     who  was  walking by the fractured rib to walk in the middle
     of the entry (Tr. 124).

     Clay explained that in a 24-four hour period, the area where
     the loose rib  was located had to be preshift examined three
     times.  Further,  it  had to be onshift examined during each
     of the three shifts.  The fractured rib was obvious.

     The condition was abated  when the loose rib was pulled down
     (Tr. 125).

                          THE VIOLATION

     Clay's testimony that miners both worked and traveled in the
     area of the fractured rib was  not  disputed,  nor  was  his
     description  of  the  fractured rib's size, composition, and
     condition.  I credit his  testimony and his opinion that the
     fractured rib would have fallen  into  the entry and injured
     or  killed  any miner unlucky enough to be  passing  by.   I
     conclude that  the  cited rib was not supported or otherwise
     controlled to protect  miners and that the violation existed
     as charged.

                         S&S AND GRAVITY

     The violation was both S&S  and  very  serious.   The hazard
     contributed  to  by  the violation was that the inadequately
     supported rib would fall into the entry and seriously injure
     or kill a passing miner.   The  fact that the fractured part
     of  the rib was leaning into the entry,  the  fact  that  it
     carried  the  added weight of a rock vein, and the fact that
     miners worked on  the section who frequently passed the rib,
     made  it reasonable  likely  that  as  mining  continued  an
     accident  would  occur.   Further,  given  the  size  of the
     fractured  rib,  I  agree  with  Clay  that at the least the
     resulting injuries would have been of a  reasonably  serious
     nature.

     The  gravity  of  the  violation was attested to by the fact
     that the rib was more than  just  loose, it was leaning into
     the entry, a fact from which I infer  that  it  was  getting
     ready to fall.  When a rib part that was the size of a  file
     cabinet  was  ready to topple on passing miners, the failure
     to support or otherwise  to control the rib was very serious
     indeed.

                            NEGLIGENCE

     Clay's testimony established  the  inadequately supported or
     otherwise controlled rib was due to  the preshift examiner's
     failure to exercise the care required  by  the circumstances
     and  thus was due to Harlan's negligence.  The  presence  of
     rock dust behind the fracture permits the inference that the
     fracture  was  is  in existence at least at the beginning of
     the shift during which
     Clay found it. (No rock  dusting  was  done  on  the service
     shift.)  The preshift examination for the service  shift had
     been   conducted  and  the  preshift  examiner  should  have
     detected the condition and have had it corrected.

     Citation        Date                       30       C.R.F. 
     Proposed Penalty

     4244150                  4/29/96                                     75.202
               $252

     Citation No. 4244150 states:

          Loose   inadequately   supported  coal  ribs  were
          observed at various locations on the 004 MMU where
          men normally work and travel (Gov. Exh. P-23).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S finding.

     The requirements of section 75.202(a) are set forth above.

     Clay was conducting an inspection, on April 29, 1996, on the
     004   MMU  Section  when  he  observed  loose,  inadequately
     supported  coal  ribs  at  various  locations  where  miners
     normally  worked  and traveled.  He described one area where
     he saw the ribs as  "[i]n the last open crosscut" (Tr. 135).
     This including an area  "near  the  ratio feeder on the belt
     line" (Tr. 130).  Clay especially remembered  the loose  rib
     by the ratio feeder because the roadway narrowed  there from
     18 or 20 feet to 6 feet, and miners had to travel right past
     the  rib (Id.).  He also saw some loose ribs outby the  last
     open crosscut (Tr. 135).

     All of  the  loose  ribs  were within 300 feet of each other
     (Tr. 135).   Some, but not  all,  of  the ribs had rock dust
     behind  where  they  had  fractured (Tr. 136).   Because  of
     weight from the overburden,  some  of  the ribs had begun to
     separate from the pillars and the separated  portions of the
     ribs were leaning out toward the roadway (Tr. 131, 134).  In
     addition,  some  of  the  ribs  contained  a  vein  of  rock
     (Tr. 131).

     Harlan's  safety  director,  Sargent,  took  issue  with the
     number  of  ribs  that were fractured and leaning.  Sargent,
     who did not accompany  Clay  on  April 29  (Tr. 138), stated
     that  Harlan routinely pulled down such ribs  (Tr. 137-138),
     although  "[y]ou  might find one occasionally that needs [to
     be taken] down" (Tr. 137).  He believed if the ribs had been
     of the number and condition  described  by  Clay, they would
     have  been  detected  by  the  preshift  examiner  and   the
     situation would have been corrected (Tr. 138).

     Clay  inspected  the  section during the early morning hours
     when the maitenance shift was underway.  Work was being done
     on the section, including  the area containing the ribs, and
     the  area  therefore had to be  both  preshift  and  onshift
     examined (Tr. 130-131, 132).  Clay did not know how long the
     ribs had been in the condition in which he observed them.

     Should the ribs  have fallen on a miner, a broken foot, leg,
     or even a fatality  could  have resulted.  Separation of the
     ribs  from  the  pillars indicated  to  Clay  that  "massive
     weight" was being  exerted on the pillars.  In addition, the
     rock in the ribs indicated  that the separating ribs weighed
     more than if they were comprised  solely  of coal (Tr. 131).
     The fact that the ribs were beginning to separate  from  the
     pillars and were leaning into the entry, or, as Clay put it,
     were  "pitching  out," in Clay's opinion made it likely that
     the ribs would fall (Tr. 131).

     The ribs were pulled down to abate the condition (Tr. 132).

                          THE VIOLATION

     I credit Clay's testimony  regarding  the  presence  of  the
     loose ribs.  Harlan did not present any testimony by persons
     with  first-hand  knowlege  of the conditions on the section
     (see, Tr. 138).

     I also credit Clay's testimony  that  the ribs had fractured
     to the extent that they were leaning into  the  roadway  and
     that  "massive  weight"  on  the pillars was causing them to
     fracture  and lean (Tr. 131).   Harlan  did  not  offer  any
     evidence to  dispute  this,  nor  did  it  offer anything to
     suggest that Clay's description of and explanation  for  the
     fractured ribs was other than accurate.

     It  is  clear from the testimony that miners were working on
     the section  when  Clay  observed  the  ribs and that miners
     worked and traveled in the immediate vicinity  of  the  ribs
     during the shift (Tr. 130-131, 135).  I agree with Clay that
     the ribs could have fallen, and if they struck a miner, that
     a serious injury or worse could have resulted.

     Given  all  of  this, the conclusion is inescapable that the
     cited ribs were not  supported  or  otherwise  controlled to
     protect  the  miners  from  rib falls.  In other words,  the
     conclusion is inescapable that  Harlan violated the standard
     as charged.

                         S&S AND GRAVITY

     The violation was both S&S and very  serious.  The violation
     created a danger that miners would be  injured by a rib fall
     -  a  hazard that otherwise should not have  existed.   That
     such an  injury  was  reasonably  likely  was established by
     Clay's unrefuted testimony regarding the massive weight that
     was pressing down on the pillars (Tr. 131), by the fact that
     the weight had caused the pillars to fracture  and  the ribs
     to separate and lean into the roadway (Tr. 131, 134), and by
     the fact that during the course of continuing mining  on the
     section, miners would travel
     and work in close proximity to the ribs.  In this regard,  I
     note expecially Clay's testimony regarding the area near the
     ratio  feeder  where  miners  could  not  help but travel in
     harm's  way (Tr. 130-135).  Finally, Clay accurately  stated
     that rib  fall  injuries  could range from broken bones to a
     fatality, all of which are  reasonably  serious results (Tr.
     131).

     The widespread nature of the violation, extending  as it did
     for 300 feet, increased the likelihood of injury.  This, and
     the type of injuries the violation could have caused,  leads
     me to conclude that the violation was very serious.

                            NEGLIGENCE

     Clay  testified  without  contradiction  that  some  of  the
     fractured  ribs had rock dust in areas where they had pulled
     away from the  pillars (Tr. 136).  I infer from this that at
     least those ribs  were in violation of the standard prior to
     the April 29 maitenance  shift.  Their condition should have
     been  noted by the preshift  examiner  for  that  shift  and
     reasonable  care  required  the  fractured ribs to be pulled
     down.   They  were  not, nor was there  any  indication  the
     company intended to correct  the  situation.   Therefore,  I
     conclude that Harlan negligently failed to exercise the care
     required by the circumstances.

     Citation        Date                       30       C.R.F. 
     Proposed Penalty

     4250669                5/8/96                      75.604(b)
               $252

     Citation No. 4250669 states:

          A premanent splice  in the 2 AWG, 480 VAC trailing
          cable  extending  to  and   serving  the  004  MMU
          Fletcher roof bolter would not exclude moisture as
          required.  The splice is approximately  150 [feet]
          from  the  machine  itself.   The cable is handled
          frequently (Gov. Exh. P-26).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S.

     Section  75.604(b)  requires in part that "permanent splices
     in training cables ... shall
     be ... [e]ffectively  insulated  and sealed so as to exclude
     moisture."

     Clay noticed, on May 8, 1996, during  an  inspection  of the
     004 MMU  Section,  the  trailing cable to the section's roof
     bolting machine contained a defective permanent splice.  The
     ends of the splice had not  been  taped  (Tr. 107, 110), and
     Clay could "see down into the splice" (Tr. 107).  The splice
     was damp and there was water on the section (Tr. 109, 110).

     The  trailing  cable  was  handled  frequently   by  miners.
     Several times during the mining cycle it was picked  up  and
     suspended  from  the  ceiling to allow the continuous mining
     machine to travel under it (Tr. 109, 110).  To lift and move
     the cable, miners used their hands rather than hot sticks or
     ropes or other devices (Tr. 112).)

     The  cable  carried 480 volts  of  electricity,  which  Clay
     described  as   "five  times  enough  current  to  cause  an
     electrocution" (Tr. 109).  Clay felt that a miner who picked
     up the cable and  touched  the  open  splice could receive a
     serious electrical burn (Id.).  In fact,  because  there was
     water on the section, and because the splice was damp,  Clay
     believed  it  more  likely  that  the  miner would be killed
     (Tr. 110).

     In  Clay's opinion, Harlan was negligent  because  the  roof
     bolting  machine  had to be examined on a weekly and monthly
     basis.  Further, the  cable was lying in an area that had to
     be  examined by both the  preshift  and  onshift  examiners.
     Clay  maintained  that  the  open  splice was "very obvious"
     (Tr. 110,  see also Tr. 110-111).  The  splice  appeared  to
     Clay to have  been "open for a while," Clay guessed for more
     than 24 hours (Tr. 112).

     The condition was  abated  when  the ends of the splice were
     taped (Tr. 111).

                          THE VIOLATION

     Section  75.604(b) requires permanent  splices  on  trailing
     cables to  be  "effectively  insulated  and  sealed so as to
     exclude moisture".  Clay's testimony regarding the condition
     of the splice was not challenged, and I find that it was not
     taped at the ends, was open, and damp.  As such,  the splice
     did not conform to the requirements of the standard, and the
     violation existed as charged.

                         S&S AND GRAVITY

     The  violation  was  both  S&S  and  very  serious.   I have
     accepted  Clay's  unrefutted  testimony that the open splice
     was damp.  I have also accepted his testimony that there was
     water on the section and miners  frequently  picked  up  the
     cable.   As  mining  continued the cable would be picked up,
     and rehung again and again.  In view of this, and in view of
     the fact that this would  have  been done on a section where
     water was present, I conclude that  it was reasonably likely
     that a miner would have been injured  seriously.   Indeed, a
     serious  injury was the "best" that could have been expected
     under  the  circumstances.   These  factors  are  more  than
     enoungh  to  support  the  inspector's S&S finding (see, ABM
     Coal Co., Inc. 16 FMSHRC 2345, 2352 (Hodgdon, ALJ)).

     The violation was very serious because it presented the very
     real likelihood that a miner  would  be  electrocuted  while
     handling the cable.

                            NEGLIGENCE

     Clay  testified  without  dispute  the violation was readily
     visible.  From the appearance of the  splice,  Clay believed
     it had been open for at least 24 hours.  Clay's  opinion was
     a reasonable inference, and I credit it.

     Given  the  fact  that  the  defective  splice  was visually
     obvious,  it  should  have  been  detected  at least by  the
     preshift examiner prior to Clay's arrival in  the  area, and
     perhaps  by  the onshift examiner as well.  Had the preshift
     examiner exercised  the care required, the splice would have
     been repaired or the  cable  would  have  been  removed from
     service before Clay observed the violation.  The  failure of
     the  examiner  is attributable to the company and represents
     negligence on Harlan's part.

     Citation       Date                       30        C.R.F. 
     Proposed Penalty

     4250670                 5/8/96                        75.517
               $252

     Citation No. 4250670 states in part:

          The 2 AWG, 480 VAC trailing cable extending to and
          serving the 004 MMU Fletcher twin head roof bolter
          was  not  adequately insulated and fully protected
          where the outer  jacket  of  the  cable  has  been
          ruptured  and  the energized power conductors were
          visible.    The   cable's    damaged    area    is
          approximately  250  [feet]  from  the machine & is
          frequently handled (Gov. Exh. P-27).

     In  addition  to alleging a violation of the  standard,  the
     citation includes an S&S finding.

     Section 75.517 requires in part that "power cables ... shall
     be insulated adequately and fully protected."

     During an inspection  of the 004 MMU Section, Clay noticed a
     rupture in the outer jacket  of  the  trailing  cable of the
     section's   roof   bolting  machine.   Clay  could  see  the
     insulated power conductors  inside the jacket (Tr. 141). The
     ruptured area was about 250 feet  from  the machine, and was
     readily  visible  (Id.).   Mining  was  in progress  on  the
     section (Tr. 151).

     The jacket was designed to protect the conductors (Tr. 147).
     Clay believed that in order for the jacket  to be torn open,
     some sort of extensive force had been applied  to the cable.
     He stated, "[A]t some point in time, this [cable]  ... had a
     heck  of  a  lick  on it" (Tr. 143).  Clay also believed  it
     likely that the same  force  that  ruptured  the  jacket did
     internal damage to the conductors (Tr. 145).  He maintained,
     that  the  cable could not be ruptured without damaging  the
     conductors (Tr. 152).  He noted that if even a small portion
     of a conducter were damaged to the point of being exposed it
     could conduct  enoungh  electricity  to  electrocute a miner
     (Id.).

     The cable was moved by hand to the sides of  the  entries so
     that  mobile  equipment could pass by (Tr. 148).  Therefore,
     as mining continued  the cable was being handled constantly.
     It  was  also  dragged through  wet  areas  of  the  section
     (Tr. 143).  Clay  feared that miners who picked up the cable
     would be seriously burned or electrocuted (Tr. 143).

     Clay found the breech  in  the  cable  around  7:00  p.m.  A
     foreman   was   in  the  area.   Miners  also  were  present
     (Tr. 149).   Clay  admitted  he  did not know when the cable
     had ruptured and he agreed the condition  could  have  "just
     happened" (Tr. 151).

     The  condition  was  corrected  when  the  ruptured area was
     patched (Tr. 149).

                          THE VIOLATION

     Clay's testimony that the cable's outer jacket  was ruptured
     and the interior insulated conductors were exposed,  was not
     refutted.   A  cable  with  an  opening  in its outer jacket
     through which its interior insulated conductors  are exposed
     is  not  a fully protected cable. The outer jacket not  only
     protects the  conductors  inside the cable, it provides them
     with insulation additional to the insulation with which each
     conductor  is  wrapped.   Therefore,   when  the  jacket  is
     ruptured, the cable is not insulated as  designed.  In other
     words, it is not "adequately insulated" as  required  by the
     standard  (see, Beech Fork Processing, Inc., 16 FMSHRC 1346,
     1354 (Hodgdon, ALJ)).

                         S&S AND GRAVITY

     The violation  was  both  S&S  and  very  serious.   I  have
     accepted  Clay's  testimony  that  the  rupture  exposed the
     cable's  interior  conductors (Tr. 141).  I also accept  his
     testimony that mining  was in progress, and as it continued,
     miners working on the section  would  have  to manually move
     the  cable  to  the side of the entry to allow equipment  to
     pass (Tr. 148).

     I  recognize that  the  Secretary  presented  no  conclusive
     evidence that anything was wrong with the conductors or with
     their  interior  insulation.   Nonetheless,  I  conclude the
     violation  was S&S.  I agree with Clay that whatever  caused
     the cable to  rupture  probably  did so with such force that
     the  interior  conductors  were  damaged  and  presented  an
     immediate shock hazard (Tr. 152).   I  note Clay's testimony
     that a small strand of a conductor, sticking  through  a pin
     size  hole  in  the  conductor's  insulation,  was enough to
     electrocute a miner (Tr. 145).

     I  also  conclude   it was reasonably likely that as  mining
     continued a miner would  pick  up the cable and be seriously
     injured or electrocuted.  In reaching  this conclusion, I am
     congnizant that Commission Judge Avram Weisberger  has  held
     that  a violation of the standard was not S&S when there was
     no evidence  of  defects  in  any  of  the  inner conductors
     (Harlan  Cumberland Coal Co., 18 FMSHRC 1447,  1454  (August
     1996)).  However, I read the Commission's decision in
     U.S. Steel  Mining Co., Inc. as recognizing that a defect in
     the outer jacket  weakens  the  protection  afforded  by the
     inner  insulation  to the extend that it is reasonbly likely
     the  defect  will contribute  to  a  miner  being  seriously
     injured or electrocuted  as  mining continues (7 FMSHRC 1573
     (July 1984)).

     The violation was very serious because it presented the very
     real likelihood that a miner would  be  seriously  burned or
     electrocuted when handling the cable.

                            NEGLIGENCE

     The  testimony  does  not  support  finding  that Harlan was
     negligent.   While the violation was visually obvious,  Clay
     did not testify regarding evidence suggesting the jacket had
     ruptured during  previous  shifts,  or was ruptured when the
     preshif  or  onshift examinations were  conducted   for  the
     shift during which  he  found  the  condition.    Rather, he
     agreed that the break in the cable's jacket could have "just
     happened"  (Tr.   151).   I cannot find that Harlan knew  or
     should have known of the cable's condition.

           KENT 96-321

          Citation      Date                     30      C.R.F. 
          Proposed Penalty

          4250624                  5/14/96           75.604(b)                   $252

     Citation No. 4250624 states:

          A permanent splice  approximatley  300 [feet] from
          the  machine  would not exclude moisture  at  this
          location  in  the   2/0  995  VAC  trailing  cable
          extending  to  and  serving   the   005   MMU  ...
          continuous  miner  ...  located in the No. 3 entry
          (Gov. Exh. P-36).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S finding.

     The requirements of section 75.604(b) are set forth above.

     Clay  inspected  a  continuous mining machine on the 005 MMU
     Section.  The power to  the  machine was disconnected and he
     inspected  the  machine's  trailing   cable.   Approximately
     300 feet from the machine, he came upon  a  permanent splice
     that  was open.  Clay could see into the splice.   He  could
     see the  interior  conductors.   It was obvious to Clay that
     the splice would not exclude moisture (Tr. 113-115).

     The  cable  carried 995 volts of electricity,  voltage  Clay
     dscribed  as "very  lethal"  (Tr. 116,  see  also  Tr. 114).
     Because the splice was open, water -  an excellent conductor
     of electricity  -  could  get  into the cable and around the
     conductors (Tr. 115).  There was  water  in  the section and
     some  of  the  cable  was  lying  in  water.  Moreover,  the
     continous  mining  machine  itself was provided  with  water
     (Tr. 115).

     Clay testified that during the  shift, the cable was handled
     frequently by miners - at least,  100  times  a  shift.  The
     miners pulled the cable to the side of the roadway to get it
     out  of  the  way  of passing equipment (Tr. 115-116,  117).
     Given the number of  times  the  cable  was  handled,   Clay
     believed  a  miner  would  be  electrocuteed  because of the
     defective splice (Tr. 116-117).

     The  splice had been properly taped, but the tape  had  worn
     away.   Clay  estimated the splice had been open to moisture
     "for a couple of  shifts  at  least" (Tr. 119).  Because the
     defective  splice  was visually obvious,  Clay  thought  the
     preshift  examiners  should   have  detected  the  condition
     (Tr. 117).  He also observed that  the  equipment  had to be
     examined by a certified electrician on a weekly basis (Id.).

     The  condition  was  abated  when additional insulation  was
     applied to the spliced area and when both ends of the splice
     were taped (Tr. 118).

                          THE VIOLATION

     Clay's testimony that the splice  on  the trailing cable was
     open and he could see into the splice was  not disputed.  An
     open  splice  is  not  effectively insulated and  sealed  to
     exclude moisture.  The violation existed as charged.

                         S&S AND GRAVITY

     The  violation was both S&S  and  very  serious.   I  accept
     Clay's  unrefutted  testimony  that  there  was water on the
     section  and  parts  of  the  cable  were  lying  in   water
     (Tr. 115).   I  also  accept  his  testimony that during the
     course of a shift,  miners frequently  pulled  the  cable to
     the  side  of  the roadway (Tr. 115-116, 117).  There is  no
     dispute that the  cable carried 995 volts of electricity and
     Harlan did not contest  Clay's description of the voltage as
     "very lethal" (Tr. 116).

     Whether or not the open splice  became  wet, it posed a very
     dangerous shock hazard to miners.  The presence  of water on
     the section intensified that hazard, and the fact  that  the
     cable  was  handled  at  least  a 100 times a shift, as Clay
     testified  (Tr. 117),  made  it reasonably  likely  that  as
     mining continued on the section,  a  miner  would be severly
     shocked or electrocuted.

     In addition, the condition of the splice, the  "very lethal"
     voltage  carried by the cable, and the fact that  the  cable
     was  handled  frequently  meant  this  was  a  very  serious
     violation.

                            NEGLIGENCE

     The defective splice was readily visible.  The tape had worn
     away.   I  credit Clay's estimate, based upon the appearance
     of the splice,  that  the slice had been in violation of the
     standard for at least two shifts (Tr. 119).  I conclude that
     had the preshift examiners  exercised the care required, the
     defective nature of the splice  would have been detected and
     the splice would have been repaired  or the cable would have
     been  taken out of service.  The examiners  were  negligent,
     and their negligence is attributable to Harlan.

     Citation        Date                       30       C.R.F. 
     Proposed Penalty

     4250672                  5/18/96                                     75.400
               $252

     Citation No. 4250672 states:

          Combustible  material  in  the  form of float coal
          dust has acumulated in and on the  energized power
          conductors  of  the 150 KVA 4,160 VAC  line  power
          center located outby  the  004 MMU tailpiece (Gov.
          Exh. P-30).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S finding.

     Section 75.400 requires in part that "[c]oal dust, including
     float coal dust ... shall be cleaned up and not be permitted
     to  accumulate  in active workings, or on electric equipment
     therein."

     Clay conducted an inspection of the power center for the 004
     MMU Section.  The power center was located approximately 500
     feet out by the section's  tail piece.  The power lines into
     the  center  carried  4,160 volts   of   electricity.    Two
     transformers  in  the  center  "stepped down" the voltage to
     make it useable by mining equipment (Tr. 153-154).

     Clay shone a flashlight through  a window in the side of the
     power center.  Clay saw black float  coal dust in and on the
     energized  conductors  of the center (Tr. 153,  155).   Clay
     believed the presence of  the  float  coal  dust  created an
     explosion and fire hazard.  He noted that there were exposed
     conductors  inside  the  power  center,  that the conductors
     could  arc,  and  that  an electrical arc could  provide  an
     ignition  source  for the float  coal  dust  (Tr. 154).   In
     addition, there were  circuit  breakers  on the transformers
     and they too could arc and ignite the dust  (Tr. 157,  160).
     He also noted that when the transformers "stepped down"  the
     voltage  the  transformers  generated  a  great deal of heat
     (Tr. 154-155).   This  heat as well could ignite  the  float
     coal  dust  (Tr. 155).  He  described  float  coal  dust  as
     extremely combustible (Tr. 160).

     If the float  coal  dust  ignited  there was the possibility
     that miners could be burned in the resulting  explosion  and
     fire  (Tr. 156).   Clay believed that 10 to 12 people worked
     inby the power center.  This constituted a normal production
     shift at the mine (Id.).   All of the miners inby the center
     were endangered by the violation.

     Clay thought the float coal  dust  entered  the power center
     through the center's ventilation louvers (Tr. 158-159).   In
     Clay's  opinion,  it  "took some time[,] ... more than ... a
     shift  or  two[,]  for  th[e]   float  dust  to  accumulate"
     (Tr. 159).   Therefore, the accumulation  should  have  been
     detected and eliminated (Tr. 157, see also Tr. 158).

     The condition was abated by removing the dust (Tr. 158).

                          THE VIOLATION

     The  standard specifically  prohibits  the  accumulation  of
     float  coal dust on electrical equipment in active workings.
     Clay's unrebutted  testimony establishes the presence of the
     cited dust on the conductors  in the power center - in other
     words,  on  the electrical equipment.   Clay  testified  the
     power center is moved as mining progresses (Tr. 160).  To do
     this miners must work around the power center.  I infer from
     this that the  power  center  was in an active working.  The
     violation existed as charged.

                         S&S AND GRAVITY

               The  violation was both  S&S  and  very  serious.   As  Clay
testified, float coal  dust  is  extremely combustible (Tr. 154).
Moreover, I credit his testimony that  electrical  arcing  inside
the  power  center  was  not uncommon and the transformers in the
power center generated a great  deal  of  heat  (Tr. 157,160).  I
find, the arcing and heat provided potential ignition sources for
the float coal dust (Tr. 157, 160).

     An  explosion  and/or  fire at the power center  would  have
subjected miners working around the center to injury due to burns
or to smoke inhalation.  I conclude  that  given  the presence of
the arcing, the heat, and the extreme combustability of the float
coal dust, it was reasonably likely that as mining  continued the
dust  would  have  ignited,  and  miners would have been injured.
Commission  Administrative Law Judge  Jerold  Feldman has said it
best,  "to  allow  combustible  materials  to accumulate  on  [or
adjacent to] potential ignition sources is a very bad idea" (Amax
Coal  Co.,  18 FMSHRC 1868,  1871 (October 1996)  (Feldman,  ALJ)
(appeal pending D.C. Cir. No. 1487)).

     Obviously, the consequences  to  a  miner who suffered burns
due  to the resulting explosion and/or fire,  would  be  serious,
perhaps even catastrophic.  This was a very serious violation.

                            NEGLIGENCE

     Clay   was  the  only  person  to  testify  who  viewed  the
accumulated float  coal  dust.   He  noted both the amount of the
coal dust and its dark black color (Tr. 153-155).   Therefore,  I
credit  his  belief  that it took more than one or two shifts for
the dust to accumulate (Tr. 160).

     However, the testimony  falls short of establishing Harlan's
negligence, because Clay only  testified that the power center is
required to be examined weekly and  monthly  (Tr. 157), and there
is  no  basis  to  infer the accumulation was present  when  such
examinations were conducted, or that the propensity of float coal
dust to accumulate in  the  power  center was such that the power
center should have been examined more  frequently.   Therefore, I
find  that  Harlan  was  not negligent in allowing the prohibited
accumulation to exist.

Citation       Date                          30          C.R.F. 
Proposed Penalty

4250623        5/13/96            75.1713-7(b)            $252

     Citation No. 4250623 states:

          The 004 MMU first aid kit was inadequate  in  that
          the  required  2 cloth blankets were missing (Gov.
          Exh. P-35).

     In addition to alleging  a  violation  of  the standard, the
     citation includes an S&S finding.

     Section 75.1713-7(b) requires in part that among  the  first
     aid equipment keep underground are "[t]wo cloth blankets".

     Clay  testified  that  the  required  cloth  blanks were not
     present  on the 004 MMU Section.  He maintained  that  cloth
     blanks are  especially important underground, where they can
     provide warmth in a very cool environment (Tr. 163).  In the
     event a miner  is  injured,  and  needs  to  be  carried  by
     stretcher,  one  blanket  can  provide  insulation  over the
     miner's  body  and  the other can furnish insulation between
     the  miner's  body and  the  aluminum  stretcher  (Tr. 164).
     (Most stretchers  are  made of aluuminum and are cold to the
     touch (Tr. 163).)  In Clay's  opinion, the retention of body
     heat is important because it can keep the injured miner from
     going into severe shock (Tr. 164).

     The first-aid equipment is required to be examined weekly by
     the section foreman (Tr. 163).

     The  condition was abated when two  blankets  were  provided
     (Tr. 165).

                          THE VIOLATION

     The parties  stipulated that two cloth blanks were not among
the first-aid supplies  kept  on the 004 MMU Section and that the
violation existed as charged (Tr. 162).

                         S&S AND GRAVITY

     The  violation  was  not  S&S  and  was  not  serious.   The
inspector's S&S finding is defective in that it does not meet the
third element of the Mathies test.   It was not reasonably likely
that the hazard contributed to (the loss  of  body heat following
an injury) would result in another injury.  There  are simply too
many variables to allow a contrary conclusion - for  example,  it
would  be  critical  to  know the type of injury sustained by the
miner.   Did  it require him  or  her  to  be  transported  on  a
stretcher, and  if  so, was it an injury that might induce shock?
How far was the injured  miner  from the portal?  Of what was the
stretcher constructed?  (With regard  to  the latter unknown, the
standard does not require all strethers to be made of aluminum).

     Nor was the violation serious.  The lack  of  blankets  need
not  lead  to  an  injured  miner  going into shock.  While it is
undeniably true that an injured miner may require protection from
the cold, and while the required blankets are the most convenient
way  to  provide the production, there  are  alternatives  -  for
example, the outer garments of other miners and/or the cloth used
to direct ventilation in the mine.

                            NEGLIGENCE

     Also,  the  testimony falls short of establishing negligence
on Harlan's part.   Clay  testified  that the first-aid equipment
must be examined weekly but did not offer  an  opinion  as to how
long  the  blankets  had  been  missing  or  whether  any special
circumstances  in  the  mine put Harlan on notice that it  should
have checked more frequently  to  make  certain the blankets were
present (Tr. 163).

Citation       Date                          30          C.R.F. 
Proposed Penalty

4250628        5/14/96                                     75.518
               $252

     Citation No. 4250628 states:

          Adequate  overload protection was not provided for
          the twin head Fletcher roof bolter on the 005 MMU.
          The instantaneous  unit in the 480 VAC three phase
          breaker is a 6/12.  The instantaneous unit was set
          on 11 and is required  to be set on 6 as this is a
          3 AWG cable (Gov. Exh. P-40).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S finding.

     Section 75.518  requires  in part that "[a]utomatic circuit-
     breaking devices ... of the  correct type and capacity shall
     be installed so as to protect  all  electrical equipment and
     circuits against short circuit and overloads."  In addition,
     it  requires,  "[t]hree-phase  motors  on   all   electrical
     equipment  [to]  be  provided with overload protection  that
     will deenergize all three phases in the event that any phase
     is overloaded."

     Clay testified that electrical  circuits  providing power to
     underground  equipment  are  required to have  overload  and
     short  circuit  protection to protect  miners  who  operate,
     handle,  and  work   on   the  equipment  (Tr. 167).   While
     conducting an inspection of  the 005 MMU Section, Clay found
     that  the  trip  setting  on  the circuit  breaker  for  the
     480 volt, three-phase cable to  the roof bolting machine was
     incorrectly  set  at  almost  twice  the  allowable  setting
     (Tr. 167-168).

     Clay explained that to determine whether  a  circuit breaker
     is  of  the  correct capacity, it is necessary to  refer  to
     30 C.F.R.  75.601,  and  in particular to section 75.601-1,
     which  contains  a  schedule that  sets  forth  the  maximum
     allowable  instantaneous   settings   for  circuit  breakers
     providing  short  circuit  protection  for  trailing  cables
     (Tr. 170).   If  the  setting  of a circuit  breaker  for  a
     trailing  cable is too high according  to  the  schedule  in
     section 75.601-1, section 75.518 is violated (Tr. 172).

     Here, the dial  on  the  circuit  breaker  had  didgets that
     equaled  200 amps  each.   The  trailing  cable  had an  AWG
     (average wire gauge) of 3 (Tr. 177).  Under the schedule  in
     section 75.601-1,   the   cable's  circuit  breaker  maximum
     allowable instantaneous setting  was 600, or didget 3 on the
     dial (Tr. 178-179, 180).  However,  Clay found that the dial
     was  set at a didget that equaled 1100 amps,  almost  double
     that allowed (Tr. 181-182).

     The danger presented by having the circuit breaker set at 11
     was that  "[t]he  cable  would  actually burn up" before the
     breaker could de-energize the electricity  (Tr. 172).   (The
     transcript  frequentlty  misquotes Clay and others as saying
     "reenergize" rather than "de-energize".)   Although Clay saw
     one  person  in the vicinity of the trailing cable  when  he
     cited the condition,  he  noted  that seven miners worked on
     the 005 MMU Section, and he believed  that all of the miners
     in the vicinity of the cable would be subject  to electrical
     burns  and/or   smoke  and  fumes  if the cable caught  fire
     (Id.).  He also believed that miners  working inby the cable
     would be endangered by smoke carried inby (Tr. 173-174).

       Clay  thought  that  in  the  context of continued  mining
     operations, a fire was reasonably  likely.   The  longer the
     cable  was in operation, the hotter it became.  In addition,
     there were  several  splices  in the cable which would raise
     the level of heat.  The cable sometimes  was used constantly
     on two shifts and at times on a third shift  as well.  Thus,
     there  was  "an excessive amount of heat" generated  by  the
     cable (Tr. 173).

     Clay acknowleged,  however, that he did not test the cable's
     ground  fault  protection,   and   he  agreed  that  if  the
     protection  was working properly, it  would  deenergize  the
     cable  should   the  cable  suffer  an  electrical  overload
     (Tr. 176).  Nonetheless,  he  maintained  that  even  if the
     cable  was  deenergized,  there could still be a fire before
     the electricity was cut off (Tr. 183).

     The  cable,  the  circuit breaker,  and  the  settings  were
     required to be examined on a weekly and monthly basis.  Clay
     maintained that the  examiners  "found  no  problem  and did
     nothing about [the high setting]", despite the fact that the
     setting was visually obvious to anyone who read the dials at
     the circuit breaker (Tr. 174).

     Normally,  when  the shift began, the foreman or a certified
     electrician  put in  the  circuit  breaker.   Either  person
     easily should  have observed the dials.  When Clay found the
     condition, the shift  was  2 or 3 hours  old and the foreman
     was on the section (Tr. 175).

     The  violation was abated by resetting the  circuit  breaker
     (Tr. 175).

                          THE VIOLATION

     Section 75.518 codifies section 305(m) of the Act (30 U.S.C.
      865(m)).   Section 305 contains two general provisions for
     all  electrical   equipment.   First,  that  all  electrical
     equipment and circuits  be protected from short circuits and
     overloads by automatic circuit-breaking  devices  or  fuses.
     Second,  that three-phase motors on all electrical equipment
     be provided  with  overload  protection that will deenergize
     all of the phases in the event any phase is overloaded.

     Section 306  of  the  Act contains  provisions  specifically
     related    to    trailing    cables    (30 U.S.C.     866).
     Section 306(b)  requires  short   circuit   protection   for
     trailing  cables  to  be  provided  by  circuit breakers "of
     adequate     current-interrupting    capacity"    (30 U.S.C.
      866(b)).  Mandatory  safety  standard  30 C.F.R.   75.601
     codifies  section 306(b) Act, and section 75.601-1 specifics
     the maximum  allowble  instantaneous  settings  for trailing
     cable circuit breakers.

     Harlan  did  not  dispute Clay's testimony that the  circuit
     breaker exceeded the  allowable setting, and I find this was
     the case (Tr. 167-168).   However, Harlan maintained that it
     did not violate section 75.518,  the  standard Clay chose to
     cite, and I agree.  The problem is that  Clay  did  not cite
     Harlan  for a violation of section 75.601-1.  Therefore,  in
     order to  find  a  violation,  I must accept the Secretary's
     argument  that  the  facts  also encompass  a  violation  of
     section 75.518.  They do not.

     Clay  cited  section 75.518 because  he  believed  that  its
     second sentence  required  the trailing cable to be provided
     with protection that would deenergize the cable in the event
     of an overload (Tr. 170).  The  second  sentence  of section
     75.518  pertains  to  "[three-phase  motors  on all electric
     equipment."  It was not the three-phase motor  of  the  roof
     bolting  machine  about which Clay was concerned, but rather
     the trailing cable,  a  part  of  the equipment regulated by
     section 75.601.  When trailing cables have a separate status
     in the Act and the regulations,
     violations of the requirements relating  to  trailing cables
     should  be  cited  under such regulations.   The  violations
     should not be subsumed  under  a more general provision.  In
     other   words,   the   phrase   "three-phase    motors"   in
     section 75.518  does  not  include the trailing cables  that
     provide electricity to those  motors.   (In  this  regard, I
     note previous decisions of the Commission's judges upholding
     citations  of  section 75.601-1 when, as here, short circuit
     protection has been  improperly  set  for  a  trailing cable
     providing  power to mining equipment (Ramblin Coal  Company,
     Inc.,  14 FMSHRC 1025,   1026   (ALJ Fauver);   C.W.  Mining
     Company, 12 FMSHRC 804, 862 (April 1990) (ALJ Morris)).

     For  these  reasons,  I conclude that the evidence does  not
     support finding a violation of section 75.518.

     Citation       Date                       30        C.R.F. 
     Proposed Penalty

     4250629                  5/14/96                      75.518
               $252

     Citation No. 4250629 states:

          Adequate overload protection  was not provided for
          the off standard 10 SC Joy shuttle  car in use and
          located on the 005 MMU.  The trailing  cable  is a
          No.  4 AWG.  The instantaneous unit in the 480 VAC
          three  phase breaker is a 5/10.  The instantaneous
          unit was  set  on 687 amps.  The maximum allowable
          setting for a cable  this  size  is 500 amps (Gov.
          Exh. LP-41).

     In  addition to alleging a violation of  the  standard,  the
     citation includes an S&S finding.

     The requirements of section 75.518 are set forth above.

     On May 14,  1996,  Clay  inspected  the  short  circuit  and
     overload  protection  for  the trailing cable of the shuttle
     car used on the 005 MMU Section.   The  trailing  cable size
     was  4 AWG,  and the maximum allowable trip setting for  the
     circuit  breaker   was   500 amps.   The  trip  setting  was
     687 amps, or "187 amps more  than the maximum allowable amp"
     (Tr. 185).

                          THE VIOLATION

     As  with  the  previous alleged violation,  I  conclude  the
     Secretary did not  prove  a violation of the cited standard.
     The  circuit breaker for the  shuttle  car  on  the  005 MMU
     Section    was   set   above   the   amperage   allowed   by
     section 75.601-1,  but this did not equate to a violation of
     section 75.518.

     Citation        Date                       30        C.R.F.
     Proposed Penalty

     4250631                  5/16/96            75.804(b)                  $252

     Counsel for Harlan objected that the condition stated in the
citation did not constitute a violation of section 75.804(b).  In
response, the Secretary  moved  to  vacate  the  citation because
"there  [was]  no  violation"  (Tr. 192).   I granted the  motion
(Id.).

Citation       Date                          30          C.R.F. 
Proposed Penalty

4250632        5/16/96            75.1720(a)                $267

     Citation No. 4250632 states:

          Safety glasses were not being utilized  in the No.
          1  entry  of the 005 MMU where a danger of  flying
          particles was present.  Resin type roof bolts were
          being installed and no eye protection was observed
          in use (Gov. Exh. P-44).

     In addition to alleging  a  violation  of  the standard, the
     citation includes an S&S finding.

     Section 75.1720(a)  requires that miners regularly  employed
     in the active workings  of  an  underground  coal  mine wear
     "face-shields  or  goggles when welding, cutting, or working
     with molten metal or  when  other  hazards to the eyes exist
     from flying particles."

     Clay testified that on May 16, 1996, during an inspection of
     the  005 MMU  Section,  he observed a roof  bolting  machine
     operator.   The operator was  not  wearing  eye  protection,
     (Tr. 194).

     Following this  testimony,  there  was  an  off  the  record
     discussion  after  which  counsel for Harlan agreed that the
     company  would pay the proposed  penalty.   I  accepted  the
     agreement (Tr. 194).

                           KENT 96-322

     Citation       Date                       30        C.R.F. 
     Proposed Penalty

     4250646                5/21/96                     75.202(a)
               $252

     Citation No. 4250646 states:

          Dislodged  roof supports in the form of previously
          installed cribs  were observed in the intersection
          of the No. 49 cross  cut of the main intake. [One]
          crib has been torn completely down and [four] have
          been damaged  [and] kicked
          around  where they are  no  longer  serving  their
          purpose.   Drawrock  is  present and the mine roof
          shows  evidence  of  taking  excessive  weight  by
          cutters down the rib line (Gov. Exh. P-49).

     In addition to alleging a violation  of  the  standard,  the
     citation includes an S&S finding.

     The requirements of section 75.202(a) are set forth above.

     Clay  testified  that  on  May 21,  1996,  he  conducted  an
     inspection  of  the  mine.  He was at the No. 49 crosscut of
     the  mine's  main intake  entry  when  he  observed  several
     dislodged cribs.  Although this area is approximately a mile
     and a half from  active  mining, Clay described the entry as
     "one of the ... most-traveled entries in and out of the coal
     mine" (Tr. 196).   Clay saw  people  traveling  through  the
     area.   The  entry  also  was  part  of  the  mine's primary
     escapeway (Tr. 195-196).

     Harlan's  safety  diretor, Sargent, did not agree  that  the
     entry was traveled  frequently.   He  testified  that at the
     time  the  condition  was found by Clay, the entry was  only
     traveled  when  it was examined,  which  was  once  a  week.
     According to Sargent,  miners  did  not  enter and leave the
     mine  through  this  part of the entry.  Rather,  there  was
     another area of the mine  where  miners  entered and went to
     the active working sections (Tr. 201).

     As Clay recalled, the roof in the area showed  signs that it
     was   under   pressure   from   excessive  weight.   At  the
     intersection,  where the pillar met  the  roof,  there  were
     cracks, or "cutters",  in  the  roof.  The cutters varied in
     length.  One was 8 to 10 feet long  (Tr. 196-197).  The roof
     had been bolted and four cribs had been installed (Tr. 196).
     Generally, cribs are installed when adverse  roof conditions
     are encounter (Tr. 199).  Clay looked and saw  that  none of
     the  cribs  was  contacting  the  roof.  In other words, the
     cribs were no longer supporting the roof (Tr. 196-197).

     Clay  believed the cribs had been hit  and  knocked  out  of
     position  by  a  large  piece of mobile equipment (Tr. 197).
     However, he did not know  when  this  had happened (Tr. 199-
     200).

     Clay  testified  that  the  area had previously  experienced
     adverse roof conditions, which  was  why  the cribs had been
     installed.  Moreover, the cutters indicated to Clay that the
     roof  was  under  increased  pressure  (Tr. 197-198).   Clay
     feared pieces of the roof would fall and  injure  miners and
     that  the  injuries  would  range from serious fractures  to
     fatalities (Tr. 198).

     Sargent testified that cribs are also installed to deter bad
     floor conditions, such as bottom heaving (Tr. 202).  Sargent
     was asked whether he knew if  the  bottom was heaving in the
     area of the cribs.  He did not respond  directly  but rather
     answered  that  the  mine  "ha[d]  a  lot of heaving bottom"
     (Id.).  Although Sargent maintained the  cribs  had  been in
     place "for a while" (Tr. 200), he did not know if they  were
     installed  to  counter  the  roof  conditions  Clay observed
     (Tr. 200-201).

     The   condition   was   terminated   when   the  cribs  were
     reconstructed (Tr. 199).
                          THE VIOLATION

     The  violation  existed as charged.  Clay's contention  that
     cutters ran along  the rib line where the top of the rib and
     the roof intersected  and  that  this indicated the roof was
     "taking excessive weight" (Gov. Exh. P-49)  was  not refuted
     (Tr. 196-197).  Indeed, Sargent was candid in stating he did
     not  know  if  the  cutters were present or if the roof  was
     under pressure (Tr. 200-201).

     Although Sargent testified,  and  I  find, that cribs can be
     installed  both to provide additional roof  support  and  to
     prevent bottom  heaving,  he  was  not  resposive when asked
     directly  if  the  bottom  was  heaving  in the  area  cited
     (Tr. 202).  Given the presence of the cutters,  I  infer the
     cribs  were  installed  to provide needed additional support
     for the roof at the intersection  of  the  main intake entry
     and  the  No   49 crosscut.  Further, since Harlan  did  not
     dispute the fact  that  the cribs did not touch the roof and
     thus  did  not  provide  any  of  the  necessary  additional
     support, I conclude the roof  was  not  supported adequately
     and that the failure to properly support  the roof created a
     roof  fall  hazard  for  miners  traveling in the  immediate
     vicinity of the cribs.

     It  is  clear  that at least the weekly  examiner  regularly
     traveled through  the area (Tr. 198, 201).  It also is clear
     that Clay saw miners  traveling  through  the area (Tr  195-
     196).   Clay  did  not know when the cribs became  dislodged
     from the roof and thus  did  not know how long the condition
     had existed (Tr. 199-200).  However,  the  miners  Clay  saw
     traveling  through  the  area certainly did so when the roof
     was inadequately supported,  and  I  conclude  they at least
     were subjected to hazards relating to falls of the  roof and
     that the roof was in violation of section 75.202(a).

                         S&S AND GRAVITY

     The  violation  was  both  S&S  and  very  serious.   I have
     credited   Clay's   testimony  that  the  cutters  indicated
     increased pressure on the roof (Tr. 197-198).  I also credit
     his fear that pieces  of  the  roof would fall and seriously
     injure or kill miners in the area  (Tr. 198).   The presence
     of the cribs and the cutters testified as eloquently as Clay
     to  the  instablility of the roof.  The fact that pieces  of
     the roof were  not  falling at the time of the inspection is
     not dispositive of the  S&S  nature of the violation as long
     as a miner could be at risk during  the  course of continued
     mining operations (see, Halfway Incorporated, 8 FMSHRC 8, 12
     (January 1986)).

     The  area  in  which  the  cribs  were located was  examined
     periodically.  It is reasonable to  conclude  that given the
     increased pressure on the roof, as mining continued  and the
     examiner  passed  the  area,  pieces  of the roof would have
     fallen.  Also, it is reasonable to conclude that the exposed
     examiner would have sustained a serious,  if  not  a  fatal,
     injury.

     The  Commission  has  noted  that  mine roofs are inherently
     dangerous and that even good roof can  fall  without warning
     (Consolidation Coal Company) 6 FMSHRC 34, 37 (January 1984).
     It  also  has stressed the fact that roof falls  remain  the
     leading cause of death in underground mines
     (Halfway, Incorporated,  8 FMSHRC at 13;  Roof  Mining  Co.,
     4 FMSHRC 1207,  1211,  n.8  (July  1982)).   The  failure to
     support  the  roof  in  an  area  where a miner periodically
     traveled and where the roof was under  increasing  pressure,
     produced a situation that easily could have lead to  serious
     injury  or death and constitued a very serious violation  of
     the cited standard.

                            NEGLIGENCE

     Although  the  violation was visually obvious, the Secretary
failed to show how mine managment knew or should have know of the
violative conditions,  and  without  such a showing I cannot find
the company failed to exercise the care required of it.  Clay did
not  know when the cribs were dislodged,  nor  did  he  offer  an
opinion  in this regard (Tr. 199-200).  The testimony established
the  cited  area  was  examined  on  a  weekly  basis.   It  also
established that Clay saw two miners traveling in the cited area,
from which  I  can  infer  the  area  was  preshift examined (see
30 C.F.R.  360).  However, without more evidence  on the issue I
cannot assume the violation existed when these examinations  were
made.

Citation       Date                          30           C.R.F.
Proposed Penalty

4250649        5/21/96            75.202(a)                  $252

     Citation No. 4250649 states:

          The mine roof is inadequately supported at several
          locations  thoughout the intake roadway leading to
          the  mine  fan.   Several  pieces  of  rock,  some
          36"x36" [and]  3  to 5 inches thick have separated
          from the immediate  mine  roof [and] were observed
          hanging down at various locations  (Gov.  Exh.  P-
          50).

     In  addition  to  alleging  a violation of the standard, the
     citation includes an S&S finding.

          The requirements of section  75.202(a)  are  set  forth
     above.

     Clay testified that on May 21, 1996, while he was inspecting
     the intake roadway leading to the main mine fan, he observed
     separated  and hanging drawrock.  As best Clay could recall,
     the rock was  located approximately 1,500 to 2,000 feet from
     the fan (Tr. 203-204).   One  of  the pieces of hanging rock
     was 36 by 36 inches square and 3 to 5 inches thick.

     The  roof  was  composed  of  laminated   shale.   The  area
     containing the hanging rock was located outby the fan.  Clay
     believed  the  velocity of the air the fan was moving  along
     the roadway, along  with periodic changes in the atmospheric
     pressure, caused the  drawrock  to  separate  from  the roof
     (Tr. 204).

     Clay  believed  miners worked and traveled through the  area
     and  therefore  the   roadway  had  been  preshift  examined
     (Tr. 204-205).  He testified  that there was a water hole in
     the roadway and that Sargent told  him  a  miner had been in
     the  area pumping water from the hole (Tr. 205).   The  area
     had to be preshift examined before the miner could travel to
     the water  hole.  Clay  also  believed  that  the  area  was
     examined weekly (Tr. 205).

     Clay  feared  for the safety of miners who exmained the area
     and who checked  the  pump.   They  were  endangered  by the
     hanging  drawrock.   He  noted  that  the  entry ranged from
     4 to 9 feet high, and that the greater the distance the rock
     fell, the more serious the injury if the rock struck someone
     (Tr. 204).   A  miner could suffer a broken neck,  back,  or
     worse, particularly  if  the  miner was hit by the rock that
     measured approximately 3 feet square (Tr. 205-206).

     Sargent agreed that if miners had  worked in or had traveled
     through the area, it had to be preshift  examined.  However,
     he believed the area was not being preshift  examined at the
     time the condition was cited.  This was because  to  get  to
     the water pump and to turn it on, a miner did not go into or
     through  the  cited  area.  The miner could turn the pump on
     and check on it from another  entry (Tr. 208-209).  For this
     reason, the area was not being  regularly preshift examined.
     Rather, it was being examined weekly (Tr. 208).

     According  to  Sargent,  the cited area  had  been  examined
     3 days before Clay found the  conditions,  and  it  was  not
     scheduled to be examined again for another 4 days (Tr. 209).

     The  condition  was  corrected  when the drawrock was pulled
     down (Tr. 206).

                          THE VIOLATION

     The standard requires the Secretary  to  prove  that  miners
     were required to work or travel in or through the cited area
     and  that  the  roof was not supported adequately to protect
     the miners from roof  fall  injuries.  Because the Secretary
     has  not  proved  miners  were exposed  to  the  cited  roof
     conditions, I conclude there  is inadequate proof to support
     a violation.

     Clay's belief that miners worked  and  traveled in the cited
     area was based upon his belief that the  miner  who attended
     the water pump worked and traveled there and the area had to
     be   preshift   examined  (Tr. 205-206).   However,  Sargent
     maintained that miners who traveled to the pump did not have
     to work or travel  the  area  but  could get to the pump and
     attend  it via another entry (Tr. 208-209).   The  Secretary
     did not dispute  that  this  was  in  fact  the  case, and I
     credit  Sargent's  testimony.   I  therefore  conclude   the
     Secretary  did  not prove that miners who worked at the pump
     ever were in the  the cited area.  It follows from this that
     the Secretary also did not prove that a preshift examination
     was required in the  cited  area and therefore that preshift
     examiners must have traveled there.

     Sargent testified without dispute that the area was examined
     weekly and that it was examined 3 days before Clay found the
     conditions (Tr. 208-209).  Clay  was  not  asked  whether he
     believed  the  roof conditions he observed existed when  the
     weekly examiner  traveled  through the area and I can find a
     sufficient  basis in the record  to  infer  they  did.   The
     factors that  caused the roof to deteriorate were not static
     and neither was the state of the roof.

     Citation       Date                       30        C.R.F. 
     Proposed Penalty

     4250653                 5/21/96                    75.202(a)
               $252

     Citation No. 4250653 states:

          The mine roof is not  adequately  supported in the
          return entry where the 1st right panel is located.
          Broken  drawrock  is present and 4 dislodged  roof
          supports in the form  of  timbers.   This  area is
          required to be examined weekly (Gov. Exh. P-52).

     In  addition  to  alleging a violation of the standard,  the
     citation includes an S&S finding.

     The requirements of section 75.202(a) are set forth above.

     Clay testified that during an inspection on May 28, 1996, he
     observed four dislodged and broken roof timbers in the first
     right  panel  of  the  immediate  main  return  entry.   The
     involved area measured between 20 and 30 feet (Tr. 211-212).
     The area was required  to  be  examined weekly, and from the
     dates and initials of previous examinations,  Clay  believed
     the  weekly  examiner  had  been  in  the  area  within  the
     preceeding week (Id.).

     To  Clay,  the  broken timbers indicated that "there [was] a
     problem with the ... roof"  (Tr. 212).  Clay also observed a
     cutter in the same  area.   It  extended down the right-hand
     rib from where the coal pillar and  the  roof came together.
     The  cutter  indicated  the  the roof was "taking  excessive
     weight"  (Id.).  (There were other  cutters,  as  well,  and
     although Clay  did  not  mention any of the other cutters in
     the body of the citation,  he  testified  he remembered that
     they were present (Tr. 215, see also Tr. 217)).   Clay noted
     there  was  extensive retreat mining inby the area and  that
     this caused excessive  weight  to  be  applied  to the roof,
     which  in  turn  caused the dislodging and breaking  of  the
     timbers (Tr. 213-214).

     Even though the roof  was  bolted, Clay believed it was in a
     dangerous condition.  He explained  that  timbers  were  set
     every 4 feet and the presence of four disloged timbers meant
     that  16 feet of roof - roof that had cutters in it - needed
     support.   For  Clay,  the  cutters  were  "pretty  much  an
     indicator of a pending roof failure" (Tr. 216).

     Clay  saw posted dates and initials indicating that the area
     was examined  weekly  (Tr. 213).  In his view, the condition
     of the roof made it reasonably  likely the examiner would be
     injured or even killed by falling roof (Tr. 213).

     Because the area had been examined weekly and the conditions
     were visually obvious (Tr. 214),  Clay  believed the company
     was negligent in allowing the conditions to exist (Tr. 215).

     Sargent  agreed  that  the  general area had  been  examined
     weekly, but he maintained that  no  person  traveled through
     the  particular  area cited.  Rather, the general  area  was
     evaluated  from  a  different   location  in  another  entry
     (Tr. 218-219).  He testified that  the cited area was not an
     active part of the mine, although air  coursed  through  the
     area to ventilate other parts of the mine
     (Tr. 119-220).   Miners had no reason to be in the area.  He
     stated, "We don't  evaluate  anything  right there, anything
     whatsoever.   We have no reason to be there.   We've  got  a
     checkboard hung  at a different location and that's where we
     evaluate" (Tr. 221).

     The condition was  corrected  when  a danger sign was posted
     and travel was prohibited in the area (Tr. 214).

                          THE VIOLATION

     The  standard  is  applicable only "where  persons  work  or
     travel."  Clay's belief that the area was traveled was based
     upon seeing the posted  dates  and  initials (Tr. 211, 213).
     Clay  did  not  explain  exactly  where  the  postings  were
     located,  nor  did he testify regarding any  other  evidence
     leading him to believe the area was one where persons worked
     or traveled.

     Sargent on the other  hand,  maintained  that the cited area
     was not in an active part of the mine.  He  was adamant that
     miners did not work or travel in the area because miners had
     no reason to be there (Tr. 118-120).  The dates and initials
     were not located in an area where the examiners  would  have
     been required to travel under the cited roof (Tr. 221).  The
     Secretary   did   not   discredit  this  part  of  Sargent's
     testimony, and, as I have  noted, did not offer testimony to
     indicate that Clay's belief  in  the  active  nature  of the
     entry  was  based  on  more than the dates and initials Clay
     observed.

     Given Sargent's unrebutted  testimony  regarding the lack of
     work  or  travel  in  the  cited  area  and the  paucity  of
     testimony from Clay on the issue, I conclude  the  Secretary
     has not established that Harlan violated section 75.202(a).

      APPROVAL OF SETTLEMENTS AND CIVIL PENALTY ASSESSMENTS

                      DOCKET NO. KENT 96-254

                           SETTLEMENTS

     Citation        Date                      30        C.R.F. 
     Proposed Penalty          Settlement

     4243458             2/20/96                75.370(a)(1)                $288
                                                      $288
4243727       2/27/96               75.380(d)(1)             $288
                                                      $288
4243657       3/11/96              75.400                    $309
                                                      $  50*
4243660   3/11/96           75.202(a)             $793    $309
4243897   3/27/96           75.517                $288    $288

* The Secretary has agreed to modify the citation by deleting the
S&S finding (Tr. 8).

     These settlements were explained on the record, and they are
APPROVED (Tr. 8, 69).

                  CONTESTED CITATION ASSESSMENTS

Citation  Date                            30             C.R.F. 
Proposed Penalty          Assessment

42433726            2/27/96              75.1106-3(a)(2)               $288
                                                          $400

     The  violation  was  serious  and the company was negligent.
Given  the  company's  size  "at  the lower  end  of  large  size
companies" (Tr. 15), its "medium" history  of previous violations
(Tr. 225), its good faith abatement (Tr. 15), and the fact that a
"reasonable" penalty will not affect its ability  to  continue in
business  (Tr. 14),  I  conclude  that  a significant penalty  is
appropriate.

Citation  Date                            30              C.R.F.
Proposed Penalty          Assessment

4243656             3/11/96                75.202(a)                   $309
                                                     $550

     The   violation   was  very  serious  and  the  company  was
negligent.  Given these  factors  and  the civil penalty criteria
set  forth  above,  I  conclude  that  a significant  penalty  is
appropriate.

Citation  Date                             30             C.R.F.
Proposed Penalty          Assessment

4243658             3/11/96               75.380(d)(1)                 $288
                                                           $250

     The violation, although serious, was not  as  serious as the
Secretary  alleged.   The  company  was  negligent.  Given  these
factors  and  the  civil  penalty  criteria set  forth  above,  I
conclude that a penalty somewhat less  than  that proposed by the
Secretary is appropriate.

Citation  Date                            30             C.R.F. 
Proposed Penalty          Assessment

4243659   3/11/96              75.202(a)                     $309
                                             $550

     The   violation   was  very  serious  and  the  company  was
negligent.  Given these  facctors  and the civil penalty criteria
set  forth  above,  I  conclude  that  a significant  penalty  is
appropriate.

Citation  Date                            30             C.R.F. 
Proposed Penalty          Assessment

4243921   3/11/96                                          75.220
                                                       $431
                                                          $550

     The   violation   was  very  serious  and  the  company  was
negligent.  Given this and  the  civil penalty criteria set forth
above, I conclude that a significant penalty is appropriate.

                      DOCKET NO. KENT 96-320

                           SETTLEMENTS

Citation  Date                            30             C.R.F. 
Proposed Penalty          Settlement

4244152             4/28/96                 75.333(b)(3)               $252
                                                     $  50*
4244153     4/28/96             75.333(c)(2)                 $252
                                                          $  50*
4244154     4/28/96             75.400                       $252
                                                     $  50*
4244155     4/28/96             75.333                       $252
                                                     $    0**
4244147     4/29/96             75.333(b)(3)                 $252
                                                          $  50*
4244148     4/29/96             75.333(b)(2)                 $252
                                                          $  50*
4244149     4/29/96             75.400                       $252
                                                     $252
4244157     5/1/96               75.1104                     $267
                                                          $  50*
4250661     5/2/96              75.370(a)(1)                 $252
                                                          $ 50*

  * The Secretary  has agreed to modify the citations by deleting
the S&S findings (Tr. 8-10).

** The Secretary has agreed to vacate the citation on the grounds
that it is duplicative of Citation No. 4244152 (Tr. 9).

               These settlements were explained on the record, and they are
APPROVED (Tr. 8-10).
                  CONTESTED CITATION ASSESSMENTS

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4244151     4/28/96             75.202(a)                    $252
                                                          $550

     The   violation   was  very  serious  and  the  company  was
negligent.  Given these  factors  and  the civil penalty criteria
set  forth  above,  I  conclude  that  a significant  penalty  is
appropriate.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4244150     4/29/96             75.202                       $252
                                                          $550

     The   violation   was  very  serious  and  the  company  was
negligent.  Given these  factors  and  the civil penalty criteria
set  forth  above,  I  conclude  that  a significant  penalty  is
appropriate.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250669     5/8/96               75.604(b)                   $252
                                                          $550

     The  violation  was  very  serious   and   the  company  was
negligent.   Given  these factors and the civil penalty  criteria
set  forth  above,  I conclude  that  a  significant  penalty  is
appropriate.

Citation  Date                            30              C.R.F.
Proposed Penalty          Assessment

4250670     5/8/96               75.517                      $252
                                                          $300

     The  violation  was  very  serious,  but the company was not
negligent.   Given these factors and the civil  penalty  criteria
set forth above,  I  conclude  that a civil penalty slightly more
than that proposed by the Secretary is appropriate.

                      DOCKET NO. KENT 96-321
                           SETTLEMENTS

Citation  Date                       30          C.R.F.         
Proposed Penalty          Settlement

4250671   5/8/96                75.514                       $252
                                                     $252
4250673             5/8/96                75.340(a)                    $252
                                                     $  50*
4250674   5/8/96                75.1107-16(b)                $252
                                                          $252
4250675   5/8/96                75.1107                      $252
                                                     $252
4250676   5/8/96                75.804(b)                    $252
                                                     $252
4250625   5/14/96               75.514                       $252
                                                     $252
4250626   5/14/96              75.400                        $252
                                                     $252
4250627   5/14/96             75.503                         $252
                                                                $
                                                            50*
4250630   5/15/96               75.333(b)(5)                 $252
                                                          $252

* The Secretary has agreed to modify  the  citations  by deleting
the S&S findings (Tr. 10-11).

     These settlements were explained on the record, and they are
APPROVED (Tr. 10-11).

                  CONTESTED CITATION ASSESSMENTS

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250672      5/18/96             75.400                      $252
                                             $300

     The violation  was  very  serious,  but  the company was not
negligent.   Given  these factors and the civil penalty  criteria
set forth above, I conclude  that  a  civil penalty slightly more
than that proposed by the Secretary is appropriate.

Citation  Date                       30         C.R.F.          
Proposed Penalty          Assessment

4250623     5/13/96             75.1713-7(b)                 $252
                                                                $
                                                            50

     The  violation  was  not  serious  and  the  company was not
negligent.   Given  these factors and the civil penalty  criteria
set forth above, I conclude  that  a  minimal  civil  penalty  is
appropriate.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250624     5/14/96            75.604(b)                     $252
                                                               $550

     The  violation  was  very  serious   and   the  company  was
negligent.   Given  these factors and the civil penalty  criteria
set  forth  above,  I conclude  that  a  significant  penalty  is
appropriate.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250628     5/14/96             75.518                       $252
                                                          $  0

     There was no violation of the cited standard.

     Citation       Date                    30      C.R.F.      
     Proposed Penalty          Assessment

     4250629    5/14/96           75.518                     $252
                                                          $  0

     There was no violation of the cited standard.

     Citation      Date                     30      C.R.F.      
     Proposed Penalty          Assessment

     4250631    5/16/96           75.804(b)                  $252
                                                          $  0

     A motion to vacate the citation was granted (Tr. 192).

     Citation      Date                    30       C.R.F.      
     Proposed Penalty          Assessment

     4250632    5/16/96          75.1720(a)                  $267
                                                          $267

     The company  agreed  to  pay  in  full  the proposed penalty
(Tr. 194).

                      DOCKET NO. KENT 96-322
                           SETTLEMENTS

Citation  Date                        30         C.R.F.         
Proposed Penalty          Settlement

4250633      5/16/96            75.402                       $252
                                                     $    0**
4250634     5/16/96             75.370(a)(1)                 $252
                                                     $252
4250635      5/16/96             75.400                      $252
                                                     $  50*
4250650        5/16/96         75.360(a)(3)                  $252
                                                     $252
4250654        5/28/96         75.370(a)(1)                  $252
                                                     $  50
4250655       5/28/96          75.370(a)(1)                  $252
                                                       $  50*
4250656       5/28/96         75.370(a)(1)                   $252
                                                       $  50*
4250657        5/28/96         75.370(a)(1)                  $252
                                                       $  50*

  * The Secretary  has agreed to modify the citations by deleting
the S&S findings (Tr. 11-12).)

** The Secretary has agreed to vacate the citation on the grounds
that the proof will  not  establish  a  violation of the standard
(Tr. 11).)

     These settlements were explained on the record, and they are
APPROVED (Tr. 11, 221-222).

                  CONTESTED CITATION ASSESSMENTS

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250646     5/21/96            75.202(a)                     $252
                                                     $300

     The  violation  was  very  serious,  but the company was not
negligent.  Given this and the civil penalty  criteria  set forth
above,  I conclude that a penalty slighly more than that proposed
by the Secretary is appropriate.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250649     5/21/96            75.202(a)                     $252
                                                     $0

     There was no violation of the cited standard.

Citation  Date                        30         C.R.F.         
Proposed Penalty          Assessment

4250653     5/21/96            75.202(a)                     $252
                                                     $  0

     There was no violation of the cited standard.

      DOCKET NO. KENT 96-333

                           SETTLEMENTS

     Citation       Date                    30      C.R.F.      
     Proposed Penalty          Settlement

     4250658  5/29/96            75.1722(b)                  $252
                                                          $252
4250709   6/3/96                75.1722(a)                   $252
                                                          $177
4250710   6/3/96               75.202(a)                     $252
                                                          $252
4250712   6/3/96                75.400                       $252
                                                     $  50*
4250713   6/3/96               75.400                        $252
                                                     $252
4250715   6/4/96                75.202(a)                    $252
                                                          $252
4250717   6/5/96               75.220                        $252
                                                     $177
4250718   6/5/96                75.370(a)(1)                 $267
                                                                $
                                                            50*
4250719   6/5/96                75.370(a)(1)                 $267
                                                               $267
4250726   6/10/96              75.1725(a)                    $252
                                                               $252
4250727   6/10/96              75.1103-9(a)(1)               $252
                                                                $
                                                            50*
4250729   6/10/96              75.364(a)(2)(iii)             $252
                                                                $
                                                            0**
4250730   6/10/96              75.400                        $252
                                                          $252
4250731   6/10/96              75.1101-1(b)                  $252
                                                                $
                                                            50*

   * The Secretary has agreed to modify the citations by deleting
the S&S findings (Tr. 12-13).)

** The Secretary has agreed to vacate the citation on the grounds
that  the  proof  will  not establish a violation of the standard
(Tr. 13).

     These settlements were explained on the record, and they are
APPROVED (Tr. 12-13, 222-224).

                              ORDER

     It is ORDERED that within  30  days  of  the  date  of  this
decision, Harlan pay civil penalties as follows:

     Docket No. KENT 96-254 - $ 3,523
     Docket No. KENT 96-320 - $ 2,552
     Docket No. KENT 96-321 - $ 3,031
     Docket No. KENT 96-322 - $ 1,054
     Docket No. KENT 96-333 - $ 2,333

     Total amount due:                 $12,493

     It  is  further  ORDERED  that  within  the same 30 days the
     Secretary shall modify and vacate the relevant  citations as
     set forth above.

     Upon payment of the penalties and modification and  vacation
     of the citations, these proceedings are DISMISSED.

                                David Barbour
                                Administrative Law Judge
                                (703) 756-5232

                                Distribution:

                                Joseph  B.  Luckett, Esq., Office
                                of   the   Solicitor,    U.    S.
                                Department of Labor, 2002 Richard
                                Jones    Road,    Suite    B-201,
                                Nashville,      TN     37215-2862
                                (Certified Mail)

                                H. Kent Hendrickson, Esq., Rice &
                                Hendrickson,  P.  O.   Box   980,
                                Harlan, KY 40831 (Certified Mail)

                                dcp