<DOC>
[DOCID: f:k97-14m.wais]

 
M. A. WALKER COMPANY, INC.
June 27, 1997
KENT 97-14-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


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


                          June 27, 1997

SECRETARY OF LABOR,              :     CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH           :
ADMINISTRATION  (MSHA),          :     Docket No. KENT 97-14-M
               Petitioner        :     A. C. No. 15-00112-05547
          v.                     :
                                 :
M. A. WALKER COMPANY, INC.,      :
               Respondent        :     Clover Bottom Underground


                              DECISION

Appearances: Donna   Sonner,   Esq., Office  of  the Solicitor, U.S.
             Department   of  Labor, Nashville, Tennessee, for the
             Petitioner;
             Lyle  A.  Walker,  President, M.A. Walker Company Inc.,
             McKee, Kentucky, pro se, for the Respondent.

Before: Judge Koutras

                      Statement of the Case

     This  is  a  civil  penalty  proceeding   initiated  by  the
petitioner against the respondent pursuant to Section  110(a)  of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a),
seeking a penalty assessment of $987, for an alleged violation of
mandatory safety standard
30  C.F.R.    57.4761,  as  stated  in a section 104(a) citation
served on the respondent on March 27, 1996.

     The respondent filed a timely answer  contesting the alleged
violation,  and  a  hearing  was held in London,  Kentucky.   The
petitioner filed posthearing arguments,  but  the  respondent did
not.

         Applicable Statutory and Regulatory Provisions

     1.  The Federal Mine Safety and Health Act of 1977,  Pub. L.
         95-164, 30 U.S.C.  801 et seq.

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

     3.  Commission Rules, 29 C.F.R.  2700.1 et seq.

                              Issues

     The  issues  presented  in  this  case  are  (1) whether the
condition  or  practice  cited  by  the  inspector constitutes  a
violation of the cited mandatory safety standard, (2) whether the
alleged violation is "Significant and Substantial" (S&S), and (3)
the appropriate civil penalty to be assessed  for  the violation,
taking  into account the civil penalty assessment criteria  found
in section  110(i)  of  the Act.  Additional issues raised by the
parties are identified and  disposed  of  in  the  course of this
decision.

                           Stipulations

     The parties stipulated to the following (Tr. 6-8):

     1.    The   Commission   and   presiding   judge   have
     jurisdiction  in  this  matter  and the inspectors were
     authorized to inspect the subject mine.

     2.  The mine is a crushed limestone operation employing
     approximately
     25 miners, and had an annual production  of 27,939 man-hours
     worked or production tons.

.    3.  The size of the mine is small, and the overall size
     of all of the respondent's mining operations is medium.

     4.   The  section 104(b) order issued for non-abatement
     of the alleged  violation  is  still in effect, and the
     section 104(a) citation has not been terminated.

                            Discussion

     Section 104(a) "S&S" Citation No.  4304716,  March 27, 1996,
cites an alleged violation of mandatory safety standard 30 C.F.R.
  57.4761,  and the cited condition or practice is described  as
follows:

     There were  no measures taken to confine or prevent the
     spread of toxic  gases  from  a fire that originates in
     the   underground  shop  where  maintenance   work   is
     routinely done on mobile equipment.

     The inspector fixed the initial abatement time as 8:00 p.m.,
on May 1, 1996.   On  May  2,  1996, he extended the abatement to
July  1,  1996,  and noted that "a  sprinkling  system  is  being
designed and planned  for  the  shop.   More  time  is needed for
installation".

     On  July  22,  1996,  the inspector issued a section  104(b)
order, and it states as follows:

         No  apparent  progress   is   being   made  in  the
     underground  shop  to  install  a  means to confine  or
     prevent  the  spread of toxic gases from  a  fire  that
     originates in the shop.  The underground shop is hereby
     ordered  withdrawn  from  service  until  the  shop  is
     equipped with a means to confine or prevent toxic gases
     from a fire in the shop from spreading to other working
     areas in the  mine,  and  an MSHA inspector can observe
     the means installed to control the hazard.

               Petitioner's Testimony and Evidence

     MSHA Inspector Donald Baker,  testified  that he has over 25
years  of  mining  experience,  including  serving  as   a   mine
superintendent,  and  has  served  as  a  mine inspector for five
years.   He  was  assigned  to inspect the respondent's  mine  in
September 1995, before his regular  mine  inspection,  and  while
updating  some  information on the mine map with the respondent's
safety director,  he  noticed  an  underground  area marked "shop
area"  (Exhibit G-1).  He explained the requirements  of  section
57.4761  to the safety director, and informed him that if in fact
the area was  used  as  a  shop  he needed to comply with section
57.4761 and submit a new map with  proper information (Tr. 30-32,
41).

     Mr.  Baker stated that he went to  the  shop  area  when  he
issued the  citation  on March 27, 1996, and confirmed that it is
located in the area shown  on  the  map (Tr. 38).   He identified
exhibit  G-2,  as  the  mine map requirements  submitted  by  the
respondent indicating the location
of the shop (Tr. 39-40).

     Mr. Baker stated that  after  his  initial  contact with the
safety  director  in  September  1995,  he  visited the  mine  in
December  1995, on a regular inspection, and again  went  to  the
shop area and  observed  a  truck  parked  in  the shop.  He also
observed  a small air compressor, permanent lighting,  electrical
outlet banks  in the area, oxygen and acetylene tanks, and pieces
of scrap metal  that  appeared to have been cut off by oxygen and
acetylene torches.  He  concluded  that  the area was a shop, and
informed safety director Karl Riley that he  would have to comply
with section 57.4761, but did not issue a citation  at  that time
(Tr.  42).   He  also informed superintendent Donny Colbin later,
and they discussed  the  installation of doors in order to comply
with the regulation (Tr. 42-43).

     Mr. Baker stated that  he  next returned to the shop area in
March, 1996, for an inspection and no shop changes had been made,
and he observed the same type of  equipment  that  the  found  in
December.  He activated a smoke tube that creates a puff of smoke
and  found  that  it  trailed  the  air from the shop area to the
working face.  After concluding that  the area was indeed a shop,
he issued the citation (Tr. 44-45, Exhibit G-3).

     Mr.  Baker explained that he issued  the  citation  for  the
following reasons (Tr. 46):

     A.  Well,  there  were no controls.  After I determined
     it was a shop, there  were  no controls put in place to
     control   carbon  monoxide  or  chemical   smoke   from
     materials in  the  shop.   They  were all available and
     present.   You've  got  oil.  You've  got  electricity.
     You've got evidence of torch work.  You've got tires on
     equipment.   You've got hydraulic  hoses.   You've  got
     fabric that's in the cabs of the vehicles.

     Q.  So it was your opinion that these materials posed a
     safety hazard?

     A.  Yes, it was.

     Q.  And what type of safety hazard was posed?

     A.  A fire could  erupt  and spread carbon monoxide out
     into the working place, or  thick  heavy chemical smoke
     from  rubber  products  and  oil, and people  could  be
     asphyxiated by it.

     Mr. Baker confirmed that he made  a  determination  that the
violation  was  significant and substantial because the air  flow
from the shop area  traveled directly to the working face when he
activated the smoke tube,  and  it was extremely likely that this
would lead to an injury or illness  while regular maintenance was
being done with all of the materials that were available, and "it
could  happen at anytime" (Tr. 47).  He  further  concluded  that
"there could  have  been  asphyxiation by smoke, or inhalation of
carbon monoxide could cause death" (Tr. 47-48).
He believed five people in  the  area could have been affected by
the cited condition (Tr. 48).

     Mr. Baker confirmed that he found  moderate negligence based
on his belief that the violation was not deliberate, and that the
respondent may not have realized that it  needed  to comply after
working  the area for a number of years.  He did not  speak  with
Mr. Walker,  the  operator,  at that time (Tr. 48-49).  Mr. Baker
further stated that "at the time  I  didn't  think  it  was  high
negligence" (Tr. 50).

     Mr.  Baker  stated that he extended the abatement time after
he was told during  a  subsequent  inspection that the respondent
had requested a representative of a  fire  suppression company to
look the area over to determine what needed to be done to achieve
compliance.   When  he  next returned for an inspection  in  July
1996, Mr. Baker found that  nothing  further had been done in the
shop  area,  and he spoke to Mr. Walker  at  that  time  and  was
informed "that  the cost was absolutely too much, and he couldn't
do it" (Tr. 52).   After  discussing  other  alternative  ways to
comply   with   the   regulation,  Mr.  Walker  made  no  further
commitment,  and  Mr.  Baker  issued  the  section  104(b)  order
(Exhibit G-4).  Mr. Baker  stated  that  the alternate compliance
methods discussed with Mr. Baker included bulkhead doors, routing
the shop air to direct exhaust ventilation,  or  fire suppression
with  an  alternate escapeway, all of which are provided  for  in
section 57.4761  (Tr.  52-53).   The  order was served on foreman
Allen Rose on July 22, 1996 (Tr. 54-55).

     Mr.  Baker stated that the mine is  "naturally  ventilated",
but there are three six-foot mine fans that "just circulates what
air is there.   It  does  nothing  to  increase  the  quality  or
quantity  of  natural  ventilation"  (Tr. 56).  The mine does not
emit methane, but there is "respirable  dust  or total dust", but
no quartz is involved (Tr. 57).  He explained the  effect  of the
mine ventilation as follows at (Tr. 58-59):

     A.   Well,  it just moves from one area to another.  If
     you're having  a  problem here with dust and you've got
     the ventilation, it  will  bring  it  out.   But that's
     basically,  you know, about all it does, just moves  it
     around from the working personnel.

     JUDGE  KOUTRAS:   You   mean  the  ventilation  doesn't
     ventilate the underground mine areas?

     A.  No, sir.  It's like setting  a fan on a stool right
     here in this room.  It's not positive.   All it's doing
     is just moving stuff around.

     JUDGE   KOUTRAS:   What  takes  out  all  the  airborne
     contaminants that contain respirable dust?

     A.  They generally try  to keep them down with water or move
     them out of the way from  this  area  they're working.  They
     just go in the mine and work through the circled area.  They
     can  be  mining in one area and the ventilation  will  maybe
     move the dust  away from them if it gets too bad, or keep it
     down, you know, so to speak.

               *      *       *        *

     A.   The only requirement  is,  maintain  19.5  oxygen.
     That's  the  only  requirement and they do this by just
     generally flooding the  mine  openings, several opening
     in the mine, and air just comes in naturally.

     JUDGE  KOUTRAS:  And  have  they  generally   been   in
     compliance with that requirement?

     A.  Yes.

     Mr.  Baker  believed  that  the  fans  in  question were not
     adequate  to control a fire because they are  inside  and do
     not provide mechanically induced mine ventilation.  In order
     to comply with the standard, the ventilation air would  have
     to  be forced in with a fan, and in the event of a fire, the
     ventilation  could  be  reversed  to  pull  the smoke to the
     outside.   He  believed  the fans in question would  not  be
     strong enough to handle this  situation   and  "wouldn't  do
     anything  other than just blow it in a different direction,"
     and the fans were not ventilated to the outside (Tr. 60).

     In response to several bench questions.  Mr. Baker confirmed
     that a fire  extinguisher  "was  probably around on vehicles
     and maybe the old storage area, "  but  with the presence of
     electricity, welding and cutting torches  and  all the other
     stuff around could ignite and cause a fire" and if a fire is
     burning,  carbon  monoxide  could flow out of the area  (Tr.
     61).   He believed that a fire  could  happen  at  any  time
     during regular  work (Tr. 62).  He confirmed that he did not
     discuss the shop area with the inspector who conducted prior
     inspections, did  not  determine  why  the shop area had not
     been cited during prior inspections, and  had  no  knowledge
     that  the  mine  had been cited for any prior violations  of
     section 57.4761 (Tr.  63).   He  also  confirmed that he had
     never  previously  cited any other mines for  violations  of
     this standard (Tr. 64).

     On cross-examination,  Mr.  Baker  confirmed  that the green
     arrows  shown  on  the  mine  map  are primary and secondary
     escapeways  that go by the shop area,  and  they  constitute
     alternative routes that can be used to travel to the outside
     surface area.   One  escapeway  would  be  construed to be a
     primary escape route, and the other would be  an alternative
     route (Tr. 66-68).

     Mr. Baker stated that the mine fans are marked in red on the
     mine  map,  and that he has observed them in operation.   He
     confirmed that the fan in the lower bottom area shown on the
     map has a direct  vent  to  the  outside and that in a "very
     minute fashion" would help exhaust the  air in that area. He
     explained that the red marking simply  denotes where the fan
     is located and "it's like setting a fan here and pointing it
     at a door 75 feet away, and is not boxed  in like a bulkhead
     positive ventilation fan" (Tr. 69).  He confirmed that there
     is no prohibition against using a variable  pitch  mine  fan
     (Tr. 69).  He further explained as follows at (Tr. 69-70):

     Q.   And is that vent there, is that not something that
     mine operators  put  in  to vent their mines other than
     the mine openings?

     A.  This is to help vent, but it's --- it's very --- it
     helps very minutely.

     Q.  What do you base that minutely on?

     A.   Well,  it's --- again,  I'd  have  to  ---  to  be
     simplistic, I have to try ---.  It's like setting a fan
     right here and  blowing  out  an  opening  over  there.
     You're  only  going  to  get a very small volume of air
     from behind you and if you'll  notice where this fan is
     located,  it's near the crusher,  which  leads  to  the
     outside.  So  in  my  estimation,  this  fan is drawing
     mostly fresh air from the outside and just  circulating
     it right back around.

     Q.  Did you verify that?

     A.  With a smoke tube, yes.  I smoked the area and seen
     where  it  was  going.  I walked up behind the fan  and
     took the smoke out.

     Mr. Baker confirmed  that the fans were in operation when he
was in the mine, that the air  quality  and  oxygen  content  was
good,  and  he never experienced any failed air samples (Tr. 71).
He would not  dispute  that  the  mine  area where work was being
performed was 27 feet high and 50 feet wide.  He did not know the
total air volume in the worked out areas  (Tr.  75).   He did not
believe  that a relative air volume to any potential fire  hazard
has any relevance to an underground shop fire emitting toxic gas.
He confirmed  that  everyone  has  a  self  rescuer  of  one hour
duration to wear in the event of a fire.  The shop area is  1,200
feet from the outside and it would not take more than an hour  to
put  on  a  self rescuer (Tr. 76).  He observed people walking in
and out of the mine, and he walked in (Tr. 79-80).

     Mr. Baker  stated  that  surface  shops are required to have
fire extinguishers around flammable materials,  and  he  observed
fire extinguishers in the underground fuel and oil tank areas  as
required  by  the  regulations.  He  confirmed that he was not an
engineer, has taken courses in mine ventilation,  but  has had no
formal training concerning the physical properties reaction  when
a fire ignites (Tr. 82-83).

     Mr.  Baker  stated  that  some of the unhealthy and somewhat
toxic  smoke  from  underground blasting  is  dissipated  to  the
outside through the mine  natural  ventilation  system, and if it
did not escape at all, it would accumulate to intolerable  levels
if it took a circular motion.  He confirmed that after an area is
shot  it  is  watered  down  and he did not believe that smoke or
toxic fumes are emitted in harmful  quantities  and  that "in the
natural  ventilation  process,  some  of  the stuff is eventually
going to get to the outside" (Tr. 89-92).

     On re-direct examination, Mr. Baker stated  that the fans in
question were not adequate to carry smoke out of the  mine in the
event  of  fire,  and  were not capable of mechanical ventilation
reversal.  He reiterated  that  the  mine is ventilated naturally
and not mechanically (Tr. 93).  He confirmed  that  the shop area
had  a  small ten pound hand-held fire extinguisher, and  another
one was at the oil drum storage area (Tr. 96).

     Mr.  Baker  stated  that gases released during blasting pose
different hazards than a fire  in  the shop area and in the event
of toxic gases released in a shop fire, some of the gas would not
be visible and a miner might be overcome  by  the fumes before he
could  put  on his self-rescuer.  Blasting produces  mostly  dust
that is watered  down,  and  very  little blast smoke, and a shop
fire  would release carbon monoxide and  chemicals  from  burning
vehicle  rubber  and  fabrics.   Further,  blasting  is  a normal
planned occurrence (Tr. 98-99).

     In  response  to  further  questions,  Mr. Baker stated that
during his conversations with mine management  prior  to  issuing
the citation, no one ever suggested that any existing underground
fan  system  would  comply  with  section  57.4761 (Tr. 100).  He
further explained the presence of shop area ignition sources such
as hydraulic oil and greases, welding torches, and batteries,
and  the pieces of cut metal indicated that welding  and  cutting
equipment had been used
(Tr. 100-103).

     MSHA  Inspector  Donald  L.  Walker,  testified  that he has
35 years  of  prior mining experience working in limestone,  iron
ore, uranium, and  silica sand mines.  He was assigned to inspect
the respondent's mine  in  September  1996,  and  Inspector Baker
advised him of the outstanding section 104(b) order affecting the
shop  area.  When he conducted his inspection in December,  1996,
the order  was  still  in  effect  and  nothing  had been done to
correct the cited shop area conditions.  The mine  safety  person
told  him  that the shop area would no longer be used and that  a
truck had been purchased to service the equipment.  He observed a
compressor,  stored  oxygen and acetylene tanks, used oil storage
tanks, permanent lighting  fixtures  and  extensions, and a truck
was hooked up to a battery charger.  He returned  to  the mine in
January,  1997,  and  the  shop had not been cleaned out, and  he
observed the same conditions  that existed during his prior visit
(Tr. 109-111).

     On cross-examination, Mr.  Walker confirmed that when he had
occasion to take air samples, the  results were good and the mine
has no history of bad air.  He attributed this to the natural air
flow, and when he was at the mine on  prior occasions, there were
no fans in the shop area.  He surmised  that the equipment was in
excellent  shape,  and  the ventilation was  adequate  enough  to
maintain the air at an acceptable  quality level.  However, "dead
spots" may be found in mine headings  and the shop area (Tr. 113-
115).  He did not sample the air quality  or air flow at the time
of his inspection (Tr. 117).  To the best of  his  knowledge, the
mine has never been cited for any violations of the  air  quality
standards (Tr. 121).

     In response to certain bench questions, Inspector Walker was
of the opinion that the mine fan in question that was located  on
the  floor  could  not control the air so that it would flow down
the drifts or around  the  beams,  and  that it was "just sitting
there blowing --- it's just circulating" (Tr. 127).  He confirmed
that the underground mine is ventilated by  a  natural  air flow,
and that this has MSHA's approval.  He stated that "the oxygen is
above the standard that's safe"
 (Tr. 128).

     Mr.  Walker  suggested  that  the  approved natural air flow
method  of ventilating the mine does not include  the  shop  area
because "most  times it does not, because there's no fans in that
area, and that shop  is  in  the back over where it's deadheaded"
(Tr.  128).  He further stated  that  section  57.4761,  requires
different  ventilation  for  the  shop  area,  and  he was of the
opinion  that  the three fans in question were not sufficient  to
route the shop air directly to an exhaust system.  (Tr. 128).  He
further believed that the mine has no exhaust ventilation system,
and explained further at (Tr. 129-130):

     JUDGE KOUTRAS:  What are these three fans considered to
     be?   Are  these  ways   of  ventilating  the  mine  as
     suggested by Mr. Walker?

     A. There's no way that those  three particular fans can
     ventilate the mine, he would have to put brattice cloth
     or put bulkheads in certain areas  or  certain  drifts.
     That's  the  only  way he can control it.  In a natural
     ventilation, it takes its own course.

     JUDGE KOUTRAS: You're  saying  they  don't have that in
     this mine?

     A.   They have natural ventilation that  goes  whatever
     direction the natural ventilation allows.

     JUDGE  KOUTRAS:  I assume reversal ventilation means or
     implies that there needs to be a mechanical ventilation
     system in place that  can be reversed in case of a fire
     in the shop; is that what that means?

     A.  Yes, sir.

     JUDGE  KOUTRAS:  And  you're  saying  that  there's  no
     mechanical ventilation system in this mine?

     A.  Not a mechanical, no, sir.

     Inspector Walker further  explained  that  the three fans in
     question   did   not  constitute  a  mechanical  ventilation
     reversal system pursuant to section 57.4761(c), because they
     were not bulkheaded so that the opening was only through the
     fan opening, and they  were  not  installed  or  equipped to
     operate  in  reverse to pull or push air in and out  of  the
     mine.  He stated  that  although  some  of  the  natural air
     circulated by the fans circulated through the shop area, the
     mine  does not have a structured ventilation exhaust  system
     per se  as  provided for in section 57.4761(b), and that any
     air that flows  through  the mine does so naturally.  He did
     not dispute the fact that  the mine has never been cited for
     "bad air" (Tr. 136-142).

     In response to mine operator Walker's assertion that the red
     arrows on the mine map depicting  the  location  of the fans
     and the flow of air generated by those fans, indicates  that
     the  air would travel down the escapeways shown by the green
     and black  arrows  to the fan shown at the bottom of the map
     where it is exhausted  out  of  the  mine,  Inspector Walker
     conceded that some of the air may possibly exhaust,  but the
     rest of it would circulate through the area where the fan is
     blowing.   He  confirmed  that  the  fans  were  intended to
     circulate  the  air  in  the  immediate area where they  are
     located.  He believed the shop  area  was  150 feet long and
     100 or 150 feet wide and did not believe that  one fan could
     ventilate that area (Tr. 142-146).  He did not know  why the
     mine  had  not previously been cited for a violation at  the
     shop area (Tr. 148).

     In response  to  bench  questions, mine operator Lyle Walker
     stated  that  the  shop  has   been   in   existence   since
     approximately  1972  or  1973.   He  further stated that the
     actual shop area is smaller than the area  designated on the
     mine in blue, and he circled and marked the "actual shop" on
     the map" (Tr. 151).  Inspector Walker stated that he assumed
     that  the  entire  area  circled in blue was the  shop  area
     because of the presence of  parked  and  junked equipment in
     the area.  He confirmed that if the entire  area was used as
     a "parking lot" with no maintenance work being


     performed, it would not be a shop area. The "shop"  that  he
     observed  was  back  in the area where he observed the truck
     with a battery charger  attached  to  it,  and  not  in  the
     "immediate shop area" (Tr. 154).

               Respondent's Testimony and Evidence

     Lyle  A.  Walker,  respondent's president, testified that he
     has been in the crushed  limestone business since May, 1968,
     and developed both of his  mines  (Clover  Bottom and Indian
     Creek).    He  graduated  in  civil  engineering  from   the
     University of  Kentucky,  and  implemented  the  ventilation
     systems   for  his  mines.   Prior  to  serving  as  company
     president,  he  participated  in  MSHA  inspections  and  is
     familiar  with the process.  His current safety director and
     superintendent  have  received  MSHA training and schooling.
     Since   he   has   been  in  business,  he   has   protested
     approximately 10 violations,  and  has fully cooperated with
     MSHA.   However,  in  this case he takes  exception  to  any
     suggestion that he does  not  adequately ventilate his mines
     to properly ensure the safety of  his  employees  (Tr.  157-
     160).

     Mr. Walker stated that mine ventilation cannot be segregated
     from  the general mine area, "and that means that you either
     have a  ventilation  system  for the mine which incorporates
     any  areas in it, or you don't  have  one"  (Tr.  160).   He
     pointed  out that on a day-to-day basis the mine air quality
     is good, and  that  he  has always complied with MSHA's fire
     suppression  requirements  for  mobile  equipment  and  shop
     areas.  He believed that he had adequate mine ventilation to
     address MSHA's risk concerns (Tr. 162).

     Mr. Walker stated  that  there  are three underground eight-
     foot  in  diameter variable pitch fans  in  place  that  are
     specifically designed to ventilate mines, and the fan blades
     can be changed  for  lower  air  volumes or air reversal and
     they have always been adequate to  ventilate  the  mine.  He
     explained  that his safety director was of the opinion  that
     the inspector  wanted  a bulkhead door or a fire suppression
     system for the shop area,  and he accordingly solicited bids
     for a fire suppression system.

     Mr. Walker disagreed with the  need  for  a fire suppression
     system  because  he  believed that the mine ventilation  was
     adequate to ventilate  a  fire.   He pointed out that if the
     air was not being exhausted to the  outside  by  the fans he
     would  not have been able to maintain the acceptable  levels
     of air quality  over  the  years  (Tr.  165-166). He further
     explained as follows at
     (Tr. 165):

     It was also based on the knowledge of physics that when
     the  fire  does  burn, it automatically draws  pressure
     from the outside to  the inside to feed the consumption
     of the oxygen that's taking  place with the fire.  It's
     a proven fact that if you have an underground fire, you
     will draw air from whatever source  you  can  which  is
     normally  the  outside  and  it  will  create  its  own
     ventilation  system,  regardless of all of our fans and
     most mines have always  been  and  we've found it to be
     most effective to exhaust to the outside.

     Mr.  Walker  stated  that  the  cited  shop   has  not  been
dismantled,  and  it  was  his  understanding that work could  be
performed  on  his  equipment  on  a  random  basis,  but  if  he
designated a shop area, he was told it  would have to comply with
the regulation.  He did not believe that parking equipment in the
area,  or storing parts and equipment, constituted  a  shop.   He
confirmed  that  he  purchased  a mechanics's truck and crane for
$14,000, that can be used to service  and repair his equipment on
location.  He also confirmed that the shop  has been in existence
since early 1972 (Tr. 169-173).

     Mr. Walker stated that trucks are still  parked in the cited
shop  area,  but  the  truck  that  he  has  purchased   does  no
maintenance work in that area, and it is used as a "mobile truck"
(Tr. 174).
He has always believed that he has been in compliance because  of
the  "good  air"  in the shop area, and that he should be able to
maintain the shop (Tr. 175).

     Inspector Baker was called in rebuttal by the petitioner and
he testified that an  approved ventilation system is not required
for a limestone mine, but  it must have "approved quality of air,
oxygen". He described the three  mine  fans  in  question  as  "a
freestanding  fan with no positive direction of ventilation" (Tr.
177).  He did not  believe  the  fans were adequate to handle the
ventilation in the event of a fire  in  the shop, but stated that
"the   ventilation   system  was  adequate  for   normal   mining
conditions" (Tr. 177).   He  confirmed that at the time he issued
the citation, the cited area was  in  use  as a shop, and that he
"observed the normal shop stuff where routine  maintenance  would
be taking place" (Tr. 178).

     Mr. Baker agreed that the smaller area marked on the map  by
Mr.  Lyle  Walker in the course of the hearing was the shop area,
and he explained as follows at (Tr. 179-181):

     A.  No. I agree.  But I maintain that they probably ---
     by this whole area that they probably have done routine
     maintenance  work  in  this area because they had broke
     down vehicles they parked and waiting for service.

     JUDGE KOUTRAS: You assume  that someone had gone out to
     where  these  vehicles were parked,  actually  did  the
     maintenance work there?

     A.  Yes. This is  the  shop and garage area, so I would
     contend that they would  be  brought to this area to be
     worked  on.   Now,  as  far  as  the   electrical,  the
     permanent lighting, the air compressor, the tanks, this
     is  true.  This is where they were in the  actual  shop
     area that they marked.  This is true.

     JUDGE  KOUTRAS:  So for purposes of this standard where
     it says, in an underground shop?

     A.  Yes.

     JUDGE  KOUTRAS:  What,   in   your   opinion,   is  the
     underground shop?  Would it be the area that's circled,
     or the entire blue area?

     A.   Well,  for  purposes,  I would say this particular
     area contained everything like  a  shop,  but  the area
     around  it  was  for  parking  vehicles  to be fixed or
     whatever - at a later date.

     Mr. Baker stated that the three mine fans in question do not
meet  the mechanical ventilation reversal alternative  method  of
compliance  found  in section 57.4761(c), because they provide no
control for fan reversal  of the natural ventilation, and the fan
"just circulates what air is  in  there"  (Tr.  182).  He further
stated that the fans do not constitute an exhaust  system for the
shop air as an alternative compliance method pursuant  to section
57.4761(b), because there was no way to directly blow air  to  an
exhaust  system, and in a natural ventilation system, pressure is
the determining factor and the air may go in different directions
(Tr. 184).

     Mr. Baker  confirmed  that  even  though  the  natural  mine
ventilation has maintained the air quality in compliance with the
standards,  a  separate  system of air ventilation is required if
there is a clearly defined  shop  area  where maintenance work is
taking place.  He further explained as follows at (Tr. 186-187):

     BY ATTORNEY SONNER:

     Q.  Now, to clarify, the reason you  feel  they need an
     additional   system   is   that   because  the  natural
     ventilation  system  that's  in  place   would  not  be
     sufficient to move the toxic gases out quickly  in  the
     event of a fire?

     A.   There's  no way to direct it quickly.  Like I say,
     it just circulates, so it would blow smoke wherever the
     pressures sent it.  There's no direct way to get it out
     of the mine.

     Mr. Baker confirmed  that  when  he made his smoke tube test
and followed the smoke past the two fans  shown at the top of the
mine map, the smoke swept the faces and then  circled  around and
went  back  to  the  face  area  toward  the  shop and it did not
dissipate (Tr. 188).

     Mr. Baker stated that in order for the variable pitched fans
described by mine operator Walker to be reversed,  someone  would
have to be at the controls to reverse them, and if they are to be
used  for  that  purpose  they  must  be  manned at all times, or
accessible from some other location.  The fans  in  question were
not  accessible  from  another  location, and assuming they  were
reversed, they were not capable of  moving  gases  rapidly out of
the mine (Tr. 189-190).

                      Petitioner's Arguments

     The  petitioner  states  that in September, 1995,  Inspector
baker was at the mine updating  information  on the mine map when
he  found  an  area  marked  "shop"  on  the map.  The  inspector
informed the respondent's safety director  at  that  time that if
the  respondent  intend  to use the area as a shop, it needed  to
comply with the requirement  for  controlling  toxic gases in the
event  of  a shop fire, and the inspector explained  all  of  the
alternative  ways of complying with section 57.4761 to the safety
director.

     The petitioner  states  that  Mr.  Baker  was in the mine in
December 1995 on a regular inspection, and was in  the designated
shop area and observed a truck parked in this area,  a  small air
compressor,  and  permanent lighting.  He also observed banks  of
electrical outlets, oxygen/acetylene tanks, and various pieces of
metal that "looked  like  it had been cut off by oxygen/acetylene
torches,   scrap."   He  informed   the   safety   director   and
superintendent  that  the  evidence  indicated it was a shop, and
that they would have to comply with 30  C.F.R.   57.4761, and he
explained  all  the  alternatives.   Mr.  Baker did not  issue  a
citation at that time.

     The petitioner further states that Mr.  Baker  was  again in
the mine on March 27, 1996 for a regular inspection, and found no
changes in the shop area.  He observed the same type of equipment
and  same  conditions, and a loader (Tr. 43).  At this time,  Mr.
Baker used a  smoke  tube  to  test the air flow.  He started the
smoke trail in the shop area and  it went "right up into the face
where . . . they're working" (Tr. 44).   After  determining  that
the area was being used as a shop, Mr. Baker issued the citation,
and concluded that there were no ventilation controls in place to
control carbon monoxide or chemical smoke released from materials
in the shop in the event of a fire.

     In  support  of  the violation, the petitioner relies on the
testimony of Inspector Baker who testified that the fans utilized
by the respondent were  not  adequate  to  control  a  shop  fire
because  the air is not forced underground, and the existing fans
would not  be  strong  enough to do anything other than just blow
smoke into a different area.  The fans were not exhausted  to the
outside.  Petitioner states that  Mr.  Baker  confirmed  that the
mine  is ventilated naturally and not mechanically, and the  fans
that were  in  place  were  not capable of mechanical ventilation
reversal.  There were no mine  fans  for mechanically ventilating
the mine by bringing in air ventilation  from  the  outside,  and
there was no fan capability for reversing the fans to carry smoke
straight  to  the  outside  and  allow people to escape any fire.
Petitioner maintains that at no time  during Mr. Baker's two mine
visits prior to issuing the citation did  the mine superintendent
or safety director suggest that there was an existing underground
fan system that would comply with the cited standard.

     The petitioner rejects the respondent's  suggestion that the
three fans that were in place constituted a method of routing the
mine  air  directly to an exhaust system or were  a  reversal  of
mechanical  ventilation  and  were  therefore  in  compliance  in
section 57.4761.  The petitioner's position is that the shop area
required  a different  kind  of  ventilation,  and  the  fans  in
question cannot be considered an adequate ventilation system that
was in place in the event of a shop fire.  Although the inspector
believed  that   the   fans   were  adequate  for  normal  mining
conditions, they were "free-standing"  with no positive direction
of  ventilation,  and  there  was  no control  over  the  natural
ventilation.

     Although  the  respondent was in  compliance  with  the  air
quality standards through  its  natural  ventilation  system, the
petitioner  maintains  that  section 57.4761, requires a separate
ventilation  system  if  there  is   an  underground  shop  where
maintenance work is taking place.  In support of this conclusion,
the petitioner asserts that a natural  ventilation  system simply
circulates  the  air  and would blow smoke wherever the  pressure
sent it, with no direct way to
get it out of the mine.

     The petitioner notes  that  when  Inspector Baker tested the
air  flow with a smoke tube, the smoke did  not  exhaust  and  he
followed  it  to  the working face by the two fans, and commented
that "it has a tendency  to  just  drift  around toward the three
openings to the outside" and to "just travel in a circle".  After
the smoke swept the faces, it circled back  to  the  shop and did
not dissipate.  Mr. Baker concluded that the shop exhaust air was
not routed to an exhaust system.

     The   petitioner   states   that  the  respondent's  belated
contention that the free-standing fans were an alternative method
of compliance with section 57.4761 is contradicted by the failure
of  its  safety  director or mine superintendent  to  suggest  to
Inspector Baker on  two  occasions  that the fans' purpose was to
comply  with that standard.  Further,  when  the  section  104(b)
order was  issued  the  respondent did not raise this argument at
that time and attempted  to  gain extra time in order to pursue a
fire  suppression system in order  to  abate  the  citation,  and
requested  a cost estimate from a contractor for the installation
of the system.   Petitioner  concludes that the respondent is now
trying to rely on the use of the  fans in question to justify its
position after-the-fact.

     The petitioner further relies  on the testimony of Inspector
Donald Walker, who had 35 years of mining  experience,  including
work as a maintenance foreman and superintendent, and work  in  a
limestone  mine.  Inspector Walker inspected the mine in December
1996, when the section 104(b) order issued by Inspector Baker was
still in effect.   Petitioner points out that Mr. Walker observed
a compressor, oxygen  and  acetylene  tanks,  used oil, extension
fixtures, and permanent lighting in the shop area,  as  well as a
truck parked there with a battery charger on it, and agreed  that
the  fans  utilized  by the respondent were used to circulate the
air.

     The petitioner cites  the testimony of Inspector Walker that
the ventilation requirements  for underground shop areas found in
section  57.4761, are separate from  the  required  general  mine
ventilation  scheme,  and  that  the shop area requires different
ventilation.  Inspector Walker believed  that the three fans that
were in use were not sufficient to route the shop air directly to
an  exhaust  system,  and  in  his  opinion,  the   mine  had  no
ventilation exhaust system.

     The  petitioner  further cites Inspector Walker's  testimony
that the mine openings  are  fifty  feet, and that since the fans
are approximately six feet, there was  no  way to control the air
to travel down the drifts or around the beams,  and  that the air
"was  just  sitting there blowing --- it's just circulating"  and
that the fans were "really not strong enough" to push the air all
the way out of the mine (Tr. 126-127; 138; 156).

     The petitioner acknowledges that some of the air would leave
the mine through  the  escapeways,  but that the rest of it would
circulate through the area in which the  fan  was  blowing.   The
petitioner  concludes  that the fans are intended to circulate in
the immediate area where  they  are located, and that in order to
route the air to a "natural" exhaust  system  utilizing fans, the
mine  would  have to have bulkheads or have the roadways  blocked
off to control or direct the air in one direction.

     Finally,   the   petitioner  asserts  that  section  57.4761
requires  that  one  of the  four  alternative   measures  listed
therein shall be taken  to prevent the spread of toxic gases from
a fire originating in an  underground  shop.  Since none of these
measures were in place or taken by the respondent, the petitioner
concludes that it has established a violation.  In support of its
conclusion,  the  petitioner states that the  free-standing  fans
utilized by the respondent for air circulation were inadequate to
prevent the spread  of  gases  in the event of a fire and did not
comport  with  the  requirements  for   "mechanical   ventilation
reversal"  enumerated  in  the  regulations.   The fans were  not
capable  of  "rapid air reversal" as required by the  regulation,
and they were  not provided with a second independent power cable
or set of conductors from the surface.  The mine shop air was not
routed to an exhaust  system,  and  Inspector  Baker  verified by
means of a smoke tube that the air flowed from the shop  directly
into the working face.

                      Respondent's Arguments

     As   noted   earlier,   the  respondent  did  not  file  any
posthearing arguments in this matter.  However, I have considered
Mr. Lyle's Walker's  arguments  made  on the record in the course
of the hearing in my adjudication of this matter.

     Mr. Walker was of the opinion that  without  the ventilation
provided by the three fans that were in place the air  quality in
the mine would significantly deteriorate.  He contended  that the
fans  exhausted  the  air  to the outside, and believed that they
were sufficient to take care  of  any  shop  fire.   He  took the
position  that  based  on 30 years of experience ventilating  his
mines  with  the same type  of  fans,  they  were  sufficient  to
maintain the air quality in compliance with MSHA's standards.  If
he had to depend  only on natural ventilation, he would be unable
to maintain the required  air quality.  He insisted that the fans
"are the mechanical means that  we've always used to maintain our
air quality" (Tr. 130-135).

     When reminded of the fact that  when inspector Baker, on two
occasions,  discussed  the matter with his  safety  director  and
superintendent, they never suggested that the fans were installed
to comply with section 57.4761, Mr. Walker stated that "there was
talk of bulkhead doors and  other  fire  suppression systems that
seemed to be the answer that somebody wanted  to hear" (Tr. 133).
In response to a question of why he would seek  an estimate for a
fire  suppression system that cost $85,000, if he  believed  that
the three  fans in question were in fact the mechanical means for
ventilating  the  shop  area  in compliance with section 57.4761,
Mr. Walker responded as follows at (Tr. 135):

     Because my superintendent  thought  that's what the man
     wanted  to  hear and get.  My superintendent,  I'll  be
     perfectly blunt with you.  If an inspector tells him to
     go jump off the  cliff,  he'll  go  jump off the cliff.
     And sometimes I have to take exception to that.

     Mr. Walker believed the fans that were  in place were either
substitutes  for, equal to, or were in fact a method  of  routing
the mine air directly  to  an  exhaust  system  or  a reversal of
mechanical  ventilation (Tr. 123).  He stated that he  has  never
had any trouble  ventilating  the  mine,  and  in  the  course of
questioning  Inspector  Baker,  Mr. Walker suggested that if  the
existing  mine  ventilation  was adequate  to  remove  any  smoke
resulting from underground blasting  from the mine, it would also
be adequate to remove any toxic smoke  or fumes that might result
from any shop fire  (Tr. 88-92).

     Mr. Walker stated that except for flammable  materials  that
might  be on any mobile equipment, or flammable liquids in a shop
or service area, there are few sources of ignition in a limestone
mine.  He  stated  that the variable pitched fans in question are
specifically designed to ventilate the mine, and he believed they
were adequate to ventilate  the  shop  area  (Tr.  163,  165). He
further stated as follows at (Tr. 165-166):

     It was also based on the knowledge of physics that when
     the  fire  does  burn,  it automatically draws pressure
     from the outside to the inside  to feed the consumption
     of the oxygen that's taking place  with the fire.  It's
     a proven fact that it you have an underground fire, you
     withdraw  air  from whatever source you  can  which  is
     normally  the  outside  and  it  will  create  its  own
     ventilation system,  regardless  of all of our fans and
     most mines have always been and we've  found  it  to be
     most effective to exhaust to the outside.

     Now  if  they  did not exhaust to the outside and never
     did  over the years,  our  air  quality  would  not  be
     acceptable.   And  we can turn those fans off and prove
     that the natural ventilation  is  nowhere sufficient to
     ventilate either mine. * * * *

     But if the ventilation system was not adequate or if it
     was  not  operating properly, we couldn't  operate  the
     mine.  So based on that criteria, I felt like when they
     cited us and looking at the other criteria for being in
     compliance,  that  after reviewing our mine ventilation
     system, I felt like we were in compliance.


     Finally, Mr. Walker  expressed his opinion that although the
     inspector was "well-intentioned" in issuing the citation, he
     nevertheless based it  on  incorrect facts and "a completely
     wrong set of criteria for what they've cited" (Tr. 204).

                     Findings and Conclusions

     Fact of Violation

     The  respondent is charged with  a  violation  of  mandatory
     safety standard 30 C.F.R.
      57.4761,  for  failing  to  take  measures  to  confine or
     prevent the spread of toxic gases in the event of a  fire in
     the   underground  maintenance  shop.   The  cited  standard
     provides in relevant part as follows:

      57.4761 Underground shops.

     To confine  or prevent the spread of toxic gases from a
     fire  originating   in   an   underground   shop  where
     maintenance work is routinely done on mobile equipment,
     one  of the following measures shall be taken:  use  of
     control  doors  or  bulkheads, routing of the mine shop
     air  directly  to  an  exhaust   system,   reversal  of
     mechanical  ventilation,  or  use of an automatic  fire
     suppression  system in conjunction  with  an  alternate
     escape route.   The alternative used shall at all times
     provide at least  the  same degree of safety as control
     doors or bulkheads. (Emphasis Added).

     Subsections (a) through  (d)  of  the regulation provide the
specific  requirements  that must be followed  for  each  of  the
enumerated methods that may  be  used  as a means of confining or
preventing  the spread of toxic gases from  an  underground  shop
fire.

     Inspector  Baker identified the cited shop area as the large
area that is labeled "shop/garage area", and encircled in blue on
a copy of a section  of the mine map submitted to MSHA in 1994 by
the respondent.  The inspector  confirmed  that he made the color
copy  from the original map on file at his MSHA  office,  and  he
confirmed  that  he visited the area underground and the shop was
where it is shown on the map (Tr. 33-38).

     Mine operator  Lyle  Walker did not deny the existence of an
underground shop, nor did he  deny the existence of the equipment
and materials that were observed  and described by the inspectors
when  they visited the area, or the  fact  that  maintenance  and
repair  work  was performed in the shop area.  Indeed, Mr. Walker
confirmed that  the  shop has been in use since 1972 or 1973, and
he circled and labeled  an  area  on  the  mine map (Exhibit G-1)
where he believed the shop was located (Tr. 150-151).

     Mr.  Walker disputed the purported size  of  the  shop  area
shown on the  map,  and suggested that his safety director was in
error if he in fact described  the  entire area encircled in blue
as the
actual shop area.  Mr. Walker stated  that  the  actual shop area
where  work was performed was much smaller and that  the  greater
area was used to park vehicles awaiting maintenance.

     The  cited section 57.4761, on its face, requires compliance
in order to  confine  or prevent the spread of toxic gases from a
fire originating in an underground shop where maintenance work is
routinely  done on mobile  equipment.   In  the  absence  of  any
credible evidence  that maintenance was actually performed in the
"parking area", I conclude  and  find  that  the  requirements of
section 57.4761, apply only to the actual shop area where vehicle
maintenance is routinely performed.

     Inspector Baker agreed that the smaller area marked  on  the
map  by Mr. Walker was the shop area that contained the permanent
electrical and lighting equipment, air compressor, and tanks, and
that the  remaining  area  was  used  to  park  vehicles awaiting
maintenance. In response to a question as to whether  or  not the
shop was in fact the entire blue area shown on the map,
Mr.  Baker  stated  "I  would  say this particular area contained
everything like a shop, but the  area  around  it was for parking
vehicles  to  be fixed or whatever - at a later date"  (Tr.  180-
181).
Mr. Baker further  agreed  that  the area marked by Mr. Walker on
the  map  was the shop area containing  all  of  the  repair  and
maintenance  equipment  (Tr. 179).  Mr. Baker simply assumed that
maintenance work was done  on  the vehicles parked in the "garage
area" (Tr. 180).

     I  conclude  and  find that the  actual  "shop"  covered  by
section 57.4761, was not as large as the area marked in blue, and
was probably the actual  size  of  the area marked by Mr. Walker,
and confirmed by inspector Baker.  In  any  event,  regardless of
the  size  of  the  shop  area, I find that the credible evidence
adduced  by  the  petitioner  establishes  the  existence  of  an
underground shop that was subject  to the requirements of section
57.4761, when the citation was issued in this case.

     The record reflects that Inspector Baker issued the citation
after concluding that in the event of  a  fire in the underground
shop area, none of the means enumerated in  section 57.4761, were
in place or available to confine or prevent the  spread  of toxic
gases resulting from a shop fire.

     Section  57.4761,  requires  that one of the four enumerated
measures be taken to confine or prevent the spread of toxic gases
from a fire in the shop.  I find no evidence that the underground
shop  area was provided with doors or  bulkheads  to  confine  or
prevent the spread of toxic gases in the event of a shop fire.

     Although  the  underground  mine  area had designated escape
routes,  I  find  that  there was no automatic  fire  suppression
system in place or available in the shop area that could be
used  in  conjunction  with   an  escape  route.   I  reject  the
respondent's  suggestion  that  a   portable   fire  extinguisher
constitutes  an  automatic  fire  suppression system  within  the
meaning of the standard.

     With regard to the existence of  any  mechanical ventilation
reversal system, I find that section 57.4761(c)(1)  requires  the
existence of a main mine fan that provides a mechanical means for
ventilating  the mine.  If the main fan is located underground it
must comply with the following:

     (i) The cable  or conductors supplying power to the fan
     shall be routed  through areas free of fire hazards; or
     (ii) The main fan  shall  be  equipped  with  a second,
     independent  power cable or set of conductors from  the
     surface.   The  power  cable  or  conductors  shall  be
     located so that an underground fire disrupting power in
     one cable or  set  of  conductors  will  not affect the
     other;  or  (iii) A second fan capable of accomplishing
     ventilation reversal  shall be available for use in the
     event of failure of the main fan;

     (2)  Provide  rapid air reversal  that  allows  persons
     underground time  to  exit  in  fresh air by the second
     escapeway or find a place of refuge; and

     (3) Be done according to predetermined  conditions  and
     procedures.

     Inspector  Baker,  who  has  25  years of mining experience,
including work as a mine superintendent,  testified that the mine
is naturally ventilated, rather than mechanically ventilated, and
that the required air quality is maintained  through  natural air
ventilation  that  is induced through several mine openings  that
allow air to enter the  mine  naturally  rather  than through any
mechanically operated main fan.  He believed that the ventilating
air needed to be forced into the mine with a fan capable of being
reversed to pull the air and smoke out in the event of a fire.

     Mr.  Baker  was  of the opinion that the three free-standing
fans that were in operation  at  the  locations shown on the mine
map  were  not  "boxed  in"  or  bulkheaded to  provide  positive
ventilation, and that they simply blew the air around the general
vicinity of the fan locations and did not constitute a mechanical
ventilation   reversal   system   in  compliance   with   section
57.4761(c).   He  believed  that  section   57.4761,  requires  a
separate and distinct ventilation system for  an underground shop
area where maintenance work is performed on mobile  equipment  in
order to confine or prevent the spread of toxic gases from a shop
fire.

     Inspector  Walker,  who  has  35 years of mining experience,
including work experience in limestone mining, was of the opinion
that  the  three  free-standing  mine fans  on  the  floor  where
inadequate to control the natural  air  currents  ventilating the
mine in order to direct it down the drifts and around  the beams,
and  that the three fans were simply blowing and circulating  the
air around the immediate area where they were located.  Inspector
Walker  did  not  believe  that  the three floor fans in question
constituted   a  mechanical  ventilation   reversal   system   in
compliance  with   section  57.4761(c),  because  they  were  not
bulkheaded or equipped  and  installed  to  operate in reverse in
order to push or pull air in or out of the mine.

     Respondent's representative Lyle Walker, a civil engineering
college  graduate,  with  some  30  years  of mining  experience,
disagreed with the inspectors, and he relied on the fact that the
air   quality   of  the  mine  has  always  been  within   MSHA's
requirements and  that he has never been cited for a violation in
this regard.  He was  of  the opinion that the three mine fans in
question  met  the  requirements   for   mechanical   ventilation
reversal.   He  testified  that  each  of the fans was 8-feet  in
diameter with variable pitch fan blades  that were capable of air
reversal,  and  that  the  fans  have  always  been  adequate  to
ventilate the mine.

     After  careful  consideration  of  all of the testimony  and
evidence in this case, I find the testimony  of the inspectors to
be  credible,  and  supports their opinion that the  three  free-
standing  fans  in  question  did  not  constitute  a  mechanical
ventilation reversal  system  that  was  in  compliance  with the
criteria   stated   in   section   57.4761(c)(1).   Although  the
inspectors were not shown to be ventilation  experts, taking into
account their many years of mining experience,  including work as
a  mine  superintendent  (Baker),  and  work in a limestone  mine
(Walker),  I  find  them  to be credible and  knowledgeable  with
respect o the requirements of section 57.4761.

     Although respondent Lyle  Walker  has  a  civil  engineering
college  education,  he  did not quality himself as a ventilation
expert.   Although  I  find  him   to   be   an  experienced  and
knowledgeable  mine  operator,  I  conclude  and  find  that  the
evidence  and  testimony  adduced  by the petitioner through  its
inspectors is credible and reasonably  plausible  in establishing
the absence of a mechanical ventilation reversal system  pursuant
to section 57.4761, when the citation was issued.

     Finally,  for  these same reasons, I conclude and find  that
the petitioner has established  the absence of an air ventilation
exhaust system in place and capable  of  routing the air from the
mine shop directly to a mine exhaust system  in  the  event  of a
shop fire.  Inspector Baker's credible smoke tube test of the air
in  the shop area established that the  air ventilating that area
went  directly  to  the working face and circled back to the shop
area  and was not exhausted  to  the  outside.   Inspector  Baker
concluded that the localized fans were not ventilating the air to
the outside  and  he  found  that they were inadequate to exhaust
toxic gases out of the shop area in the event of fire.

     Inspector Walker testified  credibly  that  the  three free-
standing fans that were in place were not structured or installed
so as to enable them to exhaust any toxic gases from a  shop fire
directly  out  of  the mine.  Although Mr. Walker indicated  that
some of the natural  air  ventilation  traveled  through the shop
area,  he  indicated that the shop was located in a  "deadheaded"
area where there are no fans, and that the mine had no structured
ventilation exhaust system in compliance with section 57.4761(b).

     Respondent  Lyle  Walker's assertion that the absence of any
prior  air  quality  violations,   and  the  fact  that  the  air
ventilating the mine has always been  in  compliance  with MSHA's
air  quality  standards,  is  proof  that the mine has an exhaust
system  in  place  in  compliance  with  section  57.4761(b),  is
rejected.   Notwithstanding  the mine's "clean  air"  history,  I
cannot conclude

that the respondent had a distinct or separate ventilation system
in  place for routing any mine  shop  exhaust  air  directly  and
completely out of the mine through a clearly defined mine exhaust
system in the event of a fire in the shop area.

     Inspector  Baker  agreed that given the mine history of good
natural air ventilation,  one  could  conclude  that  the mine is
adequately  ventilated under normal mining conditions.   However,
he further testified  credibly  that  a shop fire is not a normal
mining condition, and that an additional  ventilating  system  is
required  because  the natural air ventilation is insufficient to
quickly remove toxic  gases  from the mine in the event of a shop
fire.

     Based on the foregoing findings  and conclusions, I conclude
and  find  that  the petitioner has established  a  violation  of
section 57.4761, by  a preponderance of the credible evidence and
testimony  adduced in support  of  its  case.   Accordingly,  the
contested citation IS AFFIRMED.

              Significant and Substantial Violation

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

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

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

     See  also Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-
     04 (5th Cir. 1988), aff'g
     9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

     The question of whether any particular violation is S&S must
     be based  on the particular facts surrounding the violation,
     including the  nature  of  the  mine  involved, Secretary of
     Labor  v.  Texasgulf,  Inc.,  10  FMSHRC 498  (April  1988);
     Youghiogheny & Ohio Coal Company,
     9 FMSHRC 2007 (December 1987).  Further,  any  determination
     of the significant nature of a

     violation  must  be made in the context of continued  normal
     mining operations.  Natural Gypsum, supra, 3 FMSHRC 327, 329
     (March 1985).  Halfway,  Incorporated,  8  FMSHRC 8 (January
     1986),

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

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

     The Commission reasserted its  prior  determinations that as
     part  of  his "S&S" finding, the Secretary  must  prove  the
     reasonable  likelihood of an injury occurring as a result of
     the hazard contributed  to  by the cited violative condition
     or  practice.  Peabody Coal Company,  17 FMSHRC  508  (April
     1995);  Jim  Walter  Resources,  Inc.,  18 FMSHRC 508 (April
     1996).

     The  respondent  does  not  dispute  the  existence   of  an
     underground  shop,  nor does it dispute the fact that mobile
     equipment repair and maintenance work did in fact take place
     in the shop.  Further,  the  respondent has not rebutted the
     credible testimony of Inspector  Baker  with  respect to his
     observations  of  oil, electrical outlets, hydraulic  hoses,
     rubber tired mobile equipment with fabric covered seats, and
     evidence that a torch  had been used to cut metal materials,
     and the observations by  Inspector Walker of the presence of
     a compressor, stored oxygen  and  acetylene  tanks, used oil
     storage  tanks, and lighting and extension fixtures  in  the
     shop.

     Both of the  inspectors  expressed  their  concern  that the
     maintenance and repair work taking place in the shop  in the
     presence  of  flammable  materials  and  potential  ignition
     sources posed a safety hazard in the event a fire erupted in
     the shop and spread toxic gases or smoke from the shop  area
     to the working face.  Inspector Baker, whose smoke tube test
     established  that  the  air  in  the  proximity  of the shop
     coursed  the  smoke  directly  to the working face and  then
     simply circulated back to the shop  area, was concerned that
     toxic gases resulting from a shop fire,  which  he  believed
     could  happen  at  any  time in the normal course of mining,
     would follow the same route  to  the  working  face.  In the
     absence  of  any  existing  means  of exhausting such  gases
     directly out of the mine, or the use  of  any  of  the other
     regulatory alternatives to confine ro prevent the spread  of
     toxic  gases from a shop fire, Inspector Baker believed that
     the miners working at the face would be exposed to hazardous
     levels of  carbon  monoxide or other toxic chemical smoke or
     gases, as well as the hazard of possible asphyxiation before
     they were aware of the  gases or before they could use their
     self rescuers.


     Although Inspector Baker  agreed  that  underground blasting
     results in smoke and toxic fumes that are dissipated through
     the natural air ventilation, he pointed out  that  they  are
     not  released  in harmful quantiities, and consist primarily
     of dust.  He distinguished  blasting  from a shop fire which
     he believed would likely release carbon monoxide and harmful
     chemicals  from  burning  vehicle  tires  and   seat  fabric
     materials.  He further pointed out that blasting is a normal
     and planned event, and that a shop fire could occur  at  any
     time.

     I  have  concluded  that a violation of section 57.4761, has
     been established.  I  further  conclude  and  find that  the
     intent  of  the  standard is to provide a way to confine  or
     prevent the spread of toxic gases from a fire originating in
     an underground shop.   Accordingly,   I  conclude  that  any
     determination  as  to  whether  or  not  a violation of this
     standard is "significant and substantial"  must  necessarily
     and logically be made in the context of the existence  of  a
     shop  fire, or the assumption that such a fire will occur in
     the normal  and  routine  course of shop maintenance work in
     the presence of flammable materials  and  ready  sources  of
     ignition  such  as those described by the inspectors.  To do
     otherwise,  in  my  opinion,  would  render  the  regulation
     meaningless.

     I conclude and find  that  the  failure by the respondent to
     provide any of the required precautionary  methods  found in
     section  57.4761, to confine or prevent the spread of  toxic
     gases from a shop fire presented a discrete hazard to miners
     at the working  face  areas  in that such gases would likely
     travel directly to those locations  as  shown  by  Inspector
     Baker's  credible and unrebutted smoke tube test, and  would
     expose the  miners to any toxic gas hazard.  If this were to
     occur in the  normal course of mining operations, I conclude
     and find that it  would  be reasonably likely that any miner
     exposed  to such toxic gases  would  suffer  injuries  of  a
     reasonably  serious  nature,  including asphyxiation.  Under
     the  circumstances,  the  inspector's   "S&S"   finding   IS
     AFFIRMED.

     I  reject  the  respondent's  suggestion  that  any affected
     miners could use their self rescue devices and exit the mine
     quickly  before  any  toxic  gases  reach them.  As credibly
     stated by Inspector Baker, toxic gases may not give advanced
     warnings, and miners could be overcome before they could use
     their self rescuers.

     I  have  rejected the respondent's suggestion  that  a  shop
     portable fire  extinguisher  qualifies as an "automatic fire
     suppression system" pursuant to  section  57.4761.  Further,
     although  a portable fire extinguisher may be  available  to
     deal with a  small localized shop fire, I accept as credible
     the inspector's  belief  that such a device is inadequate to
     deal with a "raging" shop fire that it is out of control.

                   History of Prior Violations

     Petitioner's Exhibit G-6,  is  a  computer  print-out of the
     respondent's history of paid violations for the period March
     27,  1994,  to  March  26,  1996.  The information  provided
     reflects that the respondent  paid  penalty  assessments  of
     $1,469,  for  19 of the 20 prior violations noted in section
     104(a) citations.   Eight of the prior violations are listed
     as non-"S&S" single penalty  citations,  and  there  are  no
     prior  violations  of  section 57.4761.  I conclude and find
     that respondent's prior  compliance  record does not warrant
     any  additional increase in the penalty  assessment  that  I
     have made  for  the violation that has been affirmed in this
     case.

     Size of Business  and  Effect of Civil Penalty Assessment on
     the Respondent's Ability to Continue in Business

     I conclude and find that the respondent in a small-to-medium
     sized  mine  operator,  and   absent  any  evidence  to  the
     contrary,  I  further conclude and  find  that  the  penalty
     assessment that  I  have  made  for  the  violation will not
     adversely  affect  the respondent's ability to  continue  in
     business.

                             Gravity

     Based on my "S&S" findings,  I  conclude  and  find that the
     cited violation was serious.

                           Negligence

     In  its  post  hearing  brief,  the petitioner asserts  that
     although Inspector Baker found that  the level of negligence
     for the violation was moderate, he would  have found that it
     was "high" based on information he obtained later.  Included
     with  the  brief  is  a  motion to amend the section  104(a)
     citation  to  a  section  104(d)   "unwarrantable   failure"
     citation,  and  to  increase  the  level of negligence  from
     moderate  to  "high".   In support of these  arguments,  the
     petitioner states as follows at pgs. 15-17, of its brief:

     Inspector Baker told the  superintendent and the safety
     director  about  the  safety   violative  condition  in
     October  and  December  1995,   prior  to  issuing  the
     citation in March 1996 (Tr. 31-33; 41-43).

     The  testimony  at  the  hearing establishes  that  the
     operator,   his   safety   director,   and   the   mine
     superintendent knew of the violative condition prior to
     the issuance of the citation,  and  that  the  operator
     refused  to  correct it because of the expense involved
     (Tr. 55).  The operator admitted that the looked at the
     regulations
     (Tr. 162).  Based  on the knowledge of the operator and
     the operator's representatives prior to the issuance of
     the  citation  and  the  operator's  negative  attitude
     toward  abatement  of  the   violation  (Tr.  50),  the
     Secretary  requests  that the level  of  negligence  be
     amended to "high" and  that  the citation be amended to
     reflect issuance pursuant to Section  104(d),  in  that
     there was an "unwarrantable failure" to comply with the
     regulatory requirements.

     Inspector Baker testified that when he initially visited the
mine  in  October, 1995, he spoke with the safety director  about
the means used  to control any toxic gases in the shop area,  and
"they really didn't  seem  to know what I was talking about" (Tr.
33).  Mr. Baker further explained  that  he  advised  the  safety
director  about  the  requirements  of  section  57.4761, and the
alternatives,  and informed him that if the area was  in  fact  a
shop, he would have  to  comply.   He  confirmed  that the safety
director informed him that "they really didn't consider  it to be
a shop at that time" (Tr. 33).

     Mr.  Baker  testified  that he next returned to the mine  in
December, 1995, for a regular  inspection, and after visiting the
area, he concluded that it was indeed a shop.   He stated that he
spoke  with safety director Karl  Riley,  and  later  spoke  with
superintendent  Donny  Colbin, and informed them that they needed
to comply with section 57.4761.  However, the inspector confirmed
that  he did not issue a  citation  at  that  time  because  "I'm
thinking maybe there's still some doubt that this is a shop" (Tr.
42; Emphasis added).

     Mr. Baker stated that Mr. Riley and Mr. Colbin then informed
him that  they  had  discussed  the  installation of some control
doors or bulkheads, and that they would try to see how to install
them.  Mr. Baker then stated " I don't  care what you do, but you
need  to  do  something  to comply with the standard  and  that's
generally the way we left it" (Tr. 42).

     Based on all of this  testimony  with  respect  to Inspector
Baker's  initial  visits  in October and December 1995, I  cannot
conclude that he reached any  definitive  opinion  or  conclusion
that a violative condition actually existed at that time.   If he
had,  he  should  have issued a citation.  He admitted that there
was some doubt, and  Mr.  Riley  apparently  informed  him of his
opinion that the area was not a shop.

     The  burden  of  proof  here  is  on the petitioner.  I note
however, that the respondent's safety director and superintendent
did not testify, and they were not summoned  by the petitioner to
testify under oath, subject to cross-examination.   Based  on the
inspector's  testimony,  I  can  only conclude that he spoke with
these  individuals and generally discussed  the  requirements  of
section  57.4761,  and  he  never  spoke  with mine operator Lyle
Walker  at  any  time  during  his  initial  visits.   Under  the
circumstances, I find no credible evidentiary  basis  to  support
any  reasonable  conclusion  that  these  initial mine visits and
discussions establish any calculated or aggravated conduct by any
of these mine management individuals, or credible support for the
petitioner's assertion that they knew of the  violative condition
prior to the issuance of the citation on March 27, 1996.

     Inspector Baker further testified that when he next returned
to the mine for his March 27, inspection, he issued  the citation
after determining that no shop changes had been made,  and  after
making a "smoke tube" test which indicated that the smoke trailed
to  the  working  face.  He confirmed that the did not speak with
Lyle Walker at that  time.   Thus,  in  the  course of three mine
visits, the inspector never spoke with Mr. Walker.

     Mr.  Baker  further  testified  that  when  he   issued  his
citation,  he found moderate negligence based on his belief  that
the violation was not deliberate.  Indeed, he stated that "at the
time I didn't  think it was high negligence" (Tr. 50).  Mr. Baker
further conceded  that  the respondent may not have realized that
it needed to comply after working the area for a number of years
 (Tr. 48), and he specifically  testified  in  the  present tense
that  "I  still  don't  think that they really thought that  they
should have to comply with  the  law",  and "I don't know whether
they  realized  it, so I just went ahead and  made  it  moderate,
because, you know, I didn't think at that time it was deliberate"
(Tr. 49).

     Inspector Baker  confirmed  that  he  extended the abatement
time during a subsequent inspector after "they"  (  I  assume the
safety  director  and  superintendent)  informed him that a  fire
suppression company representative "was going to look it over and
see  what  it would take to bring them in compliance",  and  they
needed more time (Tr. 51).

     Inspector  Baker next returned to the mine on July 22, 1996,
and met with Lyle  Walker for the first time.  He stated that Mr.
Walker informed him  that the fire suppression company had indeed
come to the mine and that  the  cost for a suppression system was
"absolutely too much, that he couldn't  do  it"  (Tr.  52).  They
also discussed the use of bulkhead doors or exhausting or routing
the shop air to direct exhaust ventilation, and the use  of  fire
suppression  in  conjunction with an alternate escapeway (Tr. 52-
53).  Mr. Baker did not state that Lyle Walker refused to comply,
but that he simply  "didn't  commit  to either way" (Tr. 52).  In
view of Mr. Walker's failure to make any commitment at that time,
Mr. Baker issued the section 104(b) order
(Tr. 52-55).    The  petitioner  characterizes   this   as   "the
operator's negative attitude" toward compliance.

     The petitioner  further  states  that  Lyle Walker "admitted
that  he  had looked at the regulations (Tr. 162)."   Mr.  Walker
confirmed that  he  reviewed  the standard after the citation was
issued, and he believed the mine  was  adequately  ventilated  to
meet  the  required  ventilation  alternative  (Tr. 162-165).  He
stated  that  he  inquired  about  the  installation  of  a  fire
suppression system because his superintendent was of the  opinion
that  the  inspector wanted it.  Mr. Walker produced a copy of  a
July 10, 1996,  proposal  for  the  installation  of  a sprinkler
system at a cost of $85,432, and a June 7, 1996, letter  from the
sprinkler company confirming its search for a system to meet  the
respondent's  needs  (Exhibit  R-1).   Mr.  Walker confirmed that
additional people were called, and the names  and  phone  numbers
are  listed  on  the June 7, letter (Tr. 164).  He further stated
that "I never did really understand why we were being cited under
the circumstances as I knew them" (Tr. 125).

     Mr.  Walker  pointed   out  that  his  safety  director  and
superintendent have received  MSHA  training,  and  that  he  has
always  fully  cooperated  with  MSHA  and has formally protested
approximately 10 violations over the many  years that he has been
in business.  He stated that he took exception to the inspector's
interpretation of section 57.4761, and considered  it "a judgment
call" that he disagreed with (Tr. 159).  He further  explained as
follows at (Tr. 167).

     I would like to think that I have reasonable grounds to
     think there might be circumstances that might prove our
     case.  So based on that fact, that's why I protested  it.
     And there were conversations, I don't  deny them, about fire
     suppression systems and everything else.

     The record reflects that the shop was in use since 1972, but
     it was never cited for a violation of section 57.4761, until
     Inspector Baker cited it on March 27, 1996.  The inspectors,
     and the petitioner's  counsel  did  to know why the shop had
     never  previously  been cited (Tr. 148-149).   Although  the
     absence of any prior  violations  is no excuse or defense to
     the citation, I can understand why  mine operator Walker was
     somewhat agitated over a price tag of $85,432, to
     install  an extensive fire suppression  system  to  abate  a
     condition that had never before been cited by any inspector,
     and  a condition  that  I  find  he  could  have  reasonably
     concluded was not a violation.

     Based on the foregoing, and after a careful review of all of
     the testimony in this case, the petitioner's suggestion that
     the  violation   was   the   result   of   the  respondent's
     unwarrantable failure to comply with the cited  standard  IS
     REJECTED.   I  am  not  persuaded  that the testimony of the
     inspectors supports the petitioner's  position,  nor  have I
     found  any  "information later obtained", by inspector Baker
     to support his  contention  that  he would have found "high"
     negligence based on this information.   I  conclude and find
     that Inspector Baker's initial "moderate" negligence finding
     was  appropriately  based  on  the respondent's  failure  to
     exercise  reasonable  care,  and  that  initial  finding  IS
     AFFIRMED.

     The petitioner's posthearing motion  to  amend  the  section
     104(a)   citation  to  a  section  104(d)(1),  unwarrantable
     failure violation  IS  DENIED as untimely and lacking in any
     credible or reliable evidentiary  support.   Further, I have
     serious   due  process  and  fair  notice  reservations   in
     connection   with   the   proposed   posthearing  amendment,
     particularly  in  light  of  this  relatively   small   mine
     operator's pro se non-lawyer status.

                      Good Faith Compliance

     The  parties  have  not  addressed the merits of the section
     104(b) withdrawal order issued by Inspector Baker, and there
     is  no  evidence that the respondent  timely  contested  the
     order  pursuant  to  Commission  Rule  20(a),  29  C.F.R.  
     2700.20(a).   The  record  reflects  that the proposed civil
     penalty  assessment took into account the  issuance  of  the
     order in the context of good faith abatement, one of the six
     statutory  penalty  criteria  found in section 110(i) of the
     Act.  I conclude that the validity  of the uncontested order
     is  not  in  issue in this case.  However,  in  assessing  a
     penalty in this  case,  I  have  considered the respondent's
     abatement efforts in the context of good faith compliance.

     The respondent's assertion that it  could not install a fire
     suppression  system  because  the  $85,000,  price  tag  was
     unreasonably high, is no defense to the violation.  Although
     I recognize the economic impact of such  an expenditure on a
     relatively   small   mine   operator,  the  respondent   has
     apparently opted to spend approximately $12,000 to $15,000 ,
     to purchase a mobile maintenance  truck  for  servicing  its
     mobile  equipment  "on  location" where they may be working,
     rather than in the shop.   The  respondent has at least made
     an  effort  to  mitigate the hazard  of  working  on  mobile
     equipment in the  shop,  as  well at reducing its compliance
     costs.

     I  have considered the fact that  the  respondent  initially
     made  an  effort  at  timely  compliance when it pursued the
     installation of an automatic fire  suppression  system, only
     to  abandon it when it learned of the high costs of  such  a
     system.    However,   considering   the  fact  that  a  fire
     suppression   system   is   only   one  of  the   regulatory
     alternatives,  I  find that the respondent  was  obliged  to
     timely  pursue  the  other   alternatives,   or  to  request
     additional time to do so when he discussed the  matter  with
     Inspector  Baker  before he issued the section 104(b) order.
     However, the respondent  did  not  do  so  at that time, and
     according  to the unrebutted and credible testimony  of  Mr.
     Baker, respondent  Lyle  Walker did not commit to taking any
     remedial  measures.   Under   the  circumstances,  I  cannot
     conclude that the respondent made  a  good  faith compliance
     effort subsequent to the issuance of the order.

     I  take  note of the fact that the section 104(b)  order  is
     still in effect  and  the  citation has not been terminated.
     Further, according to Inspector  Walker, during a mine visit
     in  January, 1997, he found that the  shop  was  not  closed
     down,  and  he  observed some of the same equipment that had
     previously been there (Tr. 109-111).  The respondent did not
     believe that it was  obligated  to  dismantle  the  shop and
     remove  all of the equipment, as long as it did not use  the
     shop for  maintenance work on its mobile equipment.  This is
     a matter that  I  believe is best left to the petitioner and
     the respondent to resolve.

                     Civil Penalty Assessment

     On the basis of the  foregoing findings and conclusions, and
     my de novo consideration  of  the  civil  penalty assessment
     criteria found in section 110(i) of the Act,  I conclude and
     find that a civil penalty assessment of $1,200 is reasonable
     for the violation that I have affirmed in this matter.

                              ORDER

     In view of the foregoing, IT IS ORDERED as follows:

     1.   Section  104(a) "S&S" citation No. 4304716,  March
     27, 1996, 30 C.F.R.
       57.4761, IS AFFIRMED.

     2.  The petitioner's motion to amend the section 104(a)
     citation to a section 104(d)(1) "unwarrantable failure"
     citation IS DENIED.

     3.   The  petitioner's  request  for  a  civil  penalty
     assessment of $3,000, IS DENIED.




     4.  The respondent shall pay a civil penalty assessment
     of $1,200 for  the violation.  Payment is to be made to
     MSHA within thirty  (30)  days  of  the  date  of  this
     decision  and  order, and upon receipt of payment, this
     matter IS DISMISSED.





                                   George A. Koutras
                                   Administrative Law Judge

Distribution:

Donna Sonner, Esq., Office  of  the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite  B-201,  Nashville, TN 37215
(Certified Mail)

Lyle A. Walker, President, M. A. Walker Company,  Inc.,  P.O. Box
143, McKee, KY 40447 (Certified Mail)

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