FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
             601 New Jersey Avenue, N.W., Suite 9500 
                       Washington, DC 20001
                                 
                        January 31, 2003

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :                        
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 2002-46
               Petitioner          :    A. C. No. 46-01271-03852
                                :
          v.                    :
                                :  
EASTERN ASSOCIATED COAL CORP.,     :    Harris No. 1                  
               Respondent          :

                             DECISION

Appearances:   Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
               Virginia, for Petitioner;
          R. Henry Moore, Esq., Buchanan Ingersoll, PC, Pittsburgh, Pennsylvania, for
          Respondent.

Before:   Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil Penalty brought by the Secretary 
of Labor, acting through her Mine Safety and Health Administration (MSHA), against Eastern
Associated Coal Corporation, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C.  815.  The petition alleges four violations of the Secretary's mandatory health and
safety standards, one violation of the Secretary's mandatory training regulations and seeks a penalty of
$1,473.00.  A hearing was held in Charleston, West Virginia.  For the reasons set forth below, I
vacate three citations, affirm the other two and assess a civil penalty of $874.00.

                            Background

     Eastern Associated Coal Corporation operates the Harris No. 1 Mine, an underground coal
mine in Boone County, West Virginia.  The mine produces 3.9 million tons of coal per year.

     In October 2001, Eastern was planning to use the No. 4 entry in the mine's 4 East section to
set up the face conveyor and shield for a longwall mining machine.  To do this, it was necessary that the
entry be 24 feet wide.  However, because of a roof fall in the entry one crosscut outby, the entry had
been narrowed to 18 feet and longer roof bolts had been installed in the roof.  Because the roof was
determined to be layered and had cracks in it, the company decided to have polyurethane grout
injected into the roof as additional support before widening the entry to the necessary 24 feet.

     The Respondent hired ESS/Micon, a company that specializes in injecting the roof grout, to
perform that function for it.  At about 5:10 a.m., during the midnight shift on October 17, 2001, two
Micon employees, Joe Deoskey and Tyler Pawich, were "gluing" the roof when two pieces of the roof
fell and struck Pawich.  The first, smaller piece hit him in the head, stunning him and knocking him to the
ground.  Then, a larger piece landed on his right knee, crushing it and pinning him to the ground. 
Pawich received emergency treatment and was transported from the mine.

     Two MSHA inspectors, David Sturgill and T. L. Workman, began conducting an investigation
of the accident around 10:00 a.m. on the 17th.  After viewing the accident scene and  interviewing
witnesses, the five citations being contested in this proceeding were issued.

             Findings of Fact and Conclusions of Law

Citation No. 7195725

     This citation charges a violation of section 75.211(d), 30 C.F.R.  75.211(d), in that:  

               During an [sic] non-fatal accident investigation it was
          determined that a proper tool was not used for taking down loose
          rib/roof materials.  Bars provided for taking down loose material shall
          be of a length and design that will allow the removal of loose material
          from a position that will not expose the person performing this work to
          injury from falling material.

(Govt. Ex. 4.)  Section 75.211(d) provides that:

               A bar for taking down loose material shall be available in the
          working place or on all face equipment except haulage equipment. 
          Bars provided for taking down loose material shall be of a length and
          design that will allow the removal of loose material from a position that
          will not expose the person performing this work to injury from falling
          material.

     The evidence on this citation is undisputed.  Joe Deoskey, the senior Micon employee, admitted
that he scaled down loose roof and rib with a piece of drill steel.  He said that he did not look for a
scale bar nor did he ask any Eastern employee for one.  Eastern miners testified that there was a scale
bar on the roof bolting machine in the No. 3 entry.  They also testified that one was available on the
continuous miner on the section and at the tailpiece.

     The regulation requires that the bar be available in the working place or on the face equipment. 
The bar was clearly available on the face equipment.  That is all the regulation requires.  It does not
prohibit using a drill steel to scale loose rocks.  If Deoskey had bothered to try to obtain a scale bar he
would have been able to.  Consequently, I conclude that the Respondent complied with this regulation
and will vacate the citation.

Citation No. 7195727

     This citation alleges a violation of section 75.360(f), 30 C.F.R.  75.360(f), stating that:

               A proper pre-shift examination for the MMU 064-0 section
          was not conducted and recorded for the evening shift of 10-16-2001
          for the oncoming midnight shift working 10-17-2001.
               Several hazardous conditions were discovered during an [sic]
          non fatal accident investigation, that were obvious.
               The approved roof control plan was not complied with during
          the grouting of the mine roof by employees of contractor ESS/Micon
          QK5[.] Supplemental supports were not installed within a 15 foot
          radius of holes already grouted and current holes being grouted at time
          of accident, sag devices were not used as per the plan[,] page 30[,]
          Part E[,] No. 1, 2, and 3.
               A kettle bottom measuring 10 inches by 10 inches of
          undetermined thickness was present in the No. 4 entry just outby left of
          half crib without additional support being installed.

(Govt. Ex. 2.)

     Section 75.360(f) requires that:

               A record of the results of each preshift examination, including a
          record of hazardous conditions and their locations found by the
          examiner during each examination and the results and locations of air
          and methane measurements, shall be made on the surface before any
          persons, other than certified persons conducting examinations required
          by this subpart, enter any underground area of the mine.

     This citation was issued based on the inspectors' view of the entry some 11 hours after the
preshift examination was completed and after the accident had occurred.  They did not interview the
miner who conducted the preshift examination.  (Tr. 211, 272.)  They also apparently did not question
any other miners concerning the condition of the No. 4 entry during the preshift examination.  (Tr. 133.) 
The evidence does not support the inspectors' conclusion that what they observed sometime after
10:00 a.m. on the 17th was present during the preshift examination on the evening of the 16th.

     Everyone agrees that grouting was performed during the midnight shift on October 16 and
during the midnight shift on October 17 and that it was not performed during the morning or afternoon
shifts on October 16.  The Respondent's Roof Control Plan requires that temporary roof supports be
installed on five foot centers within a minimum radius of 15 feet around the injection hole during
injection and for at least one hour after completion of injection.  (Govt. Ex. 6, p.30.)  Since no injecting
was going on at the time that the preshift examination was performed, and more than one hour had
elapsed since the completion of the last injection on the previous midnight shift, the failure to have
temporary roof supports installed was not a violation of the plan and their absence was not an obvious
hazard.

     Similarly, the plan calls for the installation of at least two sag devices "during injection."  (Govt.
Ex. 6, p.30.)  As no injection was being performed during the preshift examination, not having sag
devices was neither a violation of the plan nor their absence an obvious hazard.

     Whether the kettle bottom was an obvious hazard is problematical.  Inspector Sturgill testified
that "[i]t wasn't easy to see."  (Tr. 45.)  Inspector Workman did not notice it until he was advised to
watch out for it.  (Tr. 168, 373-74.)  This testimony is all the more significant because at the time the
inspectors were in the area, the accident had occurred and they were looking at the roof to see where
the fall had happened.

     Donnie Stafford, the section foreman who performed the preshift examination, testified that he
visually examined the roof in the No. 4 entry.  He stated: 

          I looked at the roof in there.  I didn't see anything abnormal that hadn't
          been there, you know, the previous times that I had been in there and I
          saw no need to   I didn't see anything.

          Q.  Did you see any kettle bottoms by that half crib that was in the
          center of the entry?

          A.  No, I did not.

          Q.  What would you have done if you had seen a kettle bottom?

          A.  Well, I'd either brung [sic] a bolt crew over there and put a bolt in
          it or dangered the entry off so somebody else would.

(Tr. 270-71.)  Ed Laxton, who performed an on-shift examination of the No. 4 entry at about 12.45
a.m., testified that "the roof conditions looked pretty good.  There was some cracking at the right-hand
rib.  I did not observe anything hazardous, no kettle bottoms, nothing like that."  (Tr. 232.)
                                                  
     Finally, Deoskey testified that he observed the kettle bottom while drilling injection holes before
the accident.  He said that the kettle bottom "was obvious because I was up there to drill a hole.  When
I went up to drill a hole, I looked on the right and it was there.  If I wouldn't have drilled a hole there, I
probably wouldn't have seen it."  (Govt. Ex. 16 at 45.)  He later appeared to state that if one were
performing a preshift exam the kettle bottom would have been easy to see.  (Govt. Ex. 16 at 45-6.)  It
is not clear, however, whether he meant that it was easy to see from where he was up drilling a hole, or
whether he meant it was easy to see from the floor.  If he meant the latter, then his testimony is
inconsistent and cannot be reconciled.  Deoskey's testimony is further impeached by his statement that
he told Pawich to look out for the kettle bottom.  (Govt. Ex. 16 at 24.)  Pawich claimed that while he
had heard of kettle bottoms, he had never seen one and did not know if there was a kettle bottom in the
No. 4 entry.  (Govt. Ex. 15 at 22.)
     
     The state of the evidence, then, is that no one saw the kettle bottom until Deoskey did when he
was on a ladder drilling a hole right next to it.  However, his testimony cannot be relied upon as to
whether it was obvious or not.  Since there is no direct evidence to contradict Stafford's and Laxton's
claims that they did not observe a kettle bottom, I conclude that if it was present during the preshift
examination, it was not, based on the inspectors' observations a half day later, immediately obvious.

     Perhaps realizing the weakness of the case as set out in the citation, the Secretary now argues
that there were adverse roof conditions, specifically cracks, broken top, loose and hanging roof, loose
rib, and water running out of the roof, which should have been reported by the preshift examiner. 
Disregarding the questionable practice of the government expressly detailing specific "obvious
hazardous conditions" in a citation and then ambushing the Respondent with additional allegations at the
hearing, I find that the Secretary has not proved that these were obvious hazards that should have been
discovered.

     Inspector Sturgill testified that on arriving at the No. 4 entry he "observed water coming from
the top, a rib roll, which is where the rib was pulled out I found out later, cribs in the area, water on the
bottom, a half crib was constructed."  (Tr. 44.)  He later added that there were cracks in the roof.   (Tr.
50.)  Inspector Workman testified that there was "loose roof" which had not been scaled down.  (Tr.
180.)

     In considering these allegations, it must be kept in mind that the roof in the No. 4 entry had
been extensively roof bolted and had four cribs providing additional support.  (Resp. Ex. 21.)  
Inspector Workman testified in describing the roof conditions that he observed in the No. 4 entry on
November 15: "They looked just about like they did when I was there before.  I mean they had some
little breakage here and there, but, just as I said, they had already put additional bolts in, and that's
what the law says, when it's encountered, then additional support shall be installed."  (Tr. 156
emphasis added.)  Clearly, the company was installing additional support as needed. There is nothing to
suggest that by the next day the roof top was drastically different than the one Workman saw on the
15th.  

     In addition, it appears that much of the water coming out of the roof, was either on one side or
coming out around the roof bolts.  The two examiners were aware of the water, but did not consider it
a hazard.  (Tr. 254, 275-76.)  In this connection, Inspector Sturgill agreed that water coming out of the
roof is not always something that has to be recorded in the preshift book.  (Tr. 112.)

     Further, the Secretary does not contend that the cribs were a hazard.  The rib roll "was loose
rock encountered there and they pulled it so it wouldn't be a falling hazard."  (Tr. 48.)  Therefore, the
roll itself was not a hazard.

     Finally, as noted above, the conditions in the No. 4 entry that were observed by the inspectors
were those that existed after a roof fall.  Thus, the conclusion that the same conditions were present
during the preshift examination is conjectural at best.  Furthermore, if these conditions were so
obviously hazardous, it is curious that they were not listed in the citation, or the inspectors' notes. 
(Govt. Exs. 9 & 10.) , Ultimately, I find it very significant that the inspectors participated in the
investigation in the No. 4 entry with their entourage of company employees without requiring that any
roof be scaled down, that any additional support be installed, or indeed, that the entry be "dangered
off."

     For these reasons, I find that the evidence does not support the allegation that an improper
preshift examination was performed.  Accordingly, I conclude that section 75.360(f) was not violated
and will vacate the citation.

Citation No. 7195726

     This citation charges a violation of section 75.362(a)(1) because:

               A proper on-shift examination for the MMU 064-0 section was
          not conducted and recorded for the midnight shift of 10-17-2001.
               Several hazardous conditions were discovered during a non
          fatal accident investigation, that were obvious.
               The approved roof control plan was not complied with during
          the grouting of the mine roof by employees of contractor ESS/Micon
          QK5[.]  Supplemental supports were not installed within a 15 foot
          radius of holes already grouted and current holes being grouted at the
          time of the accident, sag devices were not used as per the plan[,] page
          30[,] Part E[,] No. 1, 2, and 3.
               A kettle bottom measuring 10 inches by 10 inches of
          undetermined thickness was present in the No. 4 entry just outby left of
          half crib without additional support being installed.
               The on-shift examiner stated that he walked to Tyler's [sic]
          position (14' to 16' outby the face area), but did not proceed on to the
          face in the #4 entry.
               On-shift examiners are required to go all the way to the face in
          performing the exam.
               The on-shift exam was also in violation of 75.362(d), because
          no methane reading was taken at the face.  Further the on-shift
          examiner's report did not have any methane readings or air readings,
          and it said "section idle" even though people were working on the
          section.

(Govt. Ex. 1.)

     Section 75.362(a)(1) requires that:

               At least once during each shift, or more often if necessary for
          safety, a certified person designated by the operator shall conduct an
          on-shift examination of each section where anyone is assigned to work
          during the shift . . . .  The certified person shall check for hazardous
          conditions, test for methane and oxygen deficiency, and determine if the
          air is moving in its proper direction.

     Except for substituting "on-shift" for "preshift" and the date and time of the examination, the first
four paragraphs of this citation are identical to the previous citation.  For many of the same reasons, the
Secretary has also failed to prove this citation.

     Laxton, the certified person performing the on-shift, examination, testified that he performed an
examination of the No. 4 entry at about 12:45 a.m.  He stated that Deoskey and Pawich were not
present in the entry at that time, but were in the dinner hole.  (Tr. 230.)  They had not started to work,
because they asked Laxton to get some drill bits for them.  (Tr. 230.)  No grouting had been done since
the midnight shift on the day before.

     In these circumstances, there was no requirement in the Roof Control Plan that supplemental
supports or sag devices be installed.  Thus, their absence was not a hazardous condition.   

     For the same reasons that the kettle bottom, and the other embellishments added by the
Secretary during the trial, were not obvious hazardous conditions that should have been recorded with
regard to the previous citation, I conclude that they were not obvious hazardous conditions that should
have been recorded with regard to this citation.

     At the hearing, the Secretary also asserted that the on-shift exam was not proper because
Laxton did not go all the way to the face of the No. 4 entry when performing the exam.  As the
Respondent correctly notes, there is nothing in section 75.362(a)(1) that requires going to the face.  
Section 75.362(c)(3), 30 C.F.R.  75.362(c)(3), requires that the velocity of air at each end of the
longwall or shortwall face be checked.  However, since coal was not being mined in the No. 4 entry
and had not been for at least a week, there were no mining machines of any type in the entry and,
therefore, no longwall or shortwall face to go to.  Otherwise, there is nothing in any section of 75.362,
except section 75.362(d)(2), 30 C.F.R.  75.352(d)(2), that even mentions the face.  Although
apparently relied on by the Secretary, section 75.362(d)(2) is not applicable to this situation. 

     In the first place, section 75.362(d) is required in addition to and not as part of the on-shift
examination.  In the second place, it only comes into play when electrical equipment is being used in the
working place.  If such equipment is being used, then section 75.362(d)(2) requires that methane tests
be made at the face.  "Working place" is "[t]he area of a coal mine inby the last open crosscut."  30
C.F.R.  75.2.  The only equipment being used to grout the roof was a glue pump which, according to
the mine map, was located outby the last open crosscut.  (Resp. Ex. 21.)  Therefore, even if section
75.362(d)(2) were part of the on-shift examination requirement, it was not required in this case because
no electrical equipment was being used in the working place.

     Laxton testified that he did test for methane in the No. 4 entry in "the place most likely that
methane would be, farthest away from the curtain, closest to the top" and that he received a reading of
"zero."  (Tr. 229, 250.)  He said that he did not observe any hazardous conditions.  (Tr. 232.)  He
stated that he determined that the air was moving in the proper direction.  (Tr. 251.)  He was never
asked whether he tested for oxygen deficiency, however, since there is no evidence that he did not and
since he was an experienced examiner, I will assume that he did.  In short, Laxton did everything
required of him by section 75.362(a)(1).  In fact, except for contending that Laxton did not take a
methane reading at the face, the Secretary's main thrust on this citation is that his findings were not
properly recorded.

     Unfortunately, nowhere in section 75.362 is there a requirement that the results of an on-site
examination be recorded.  Section 75.363(b), 30 C.F.R.  75.363(b), requires that a "record shall be
made of any hazardous condition . . . in a book maintained for this purpose on the surface . . ." 
(Emphasis added.)  It further states that: "This record shall not be required for shifts when no hazardous
conditions are found or for hazardous conditions found during the preshift or weekly examinations . . . ." 
Inasmuch as Laxton found no hazardous conditions, he was not required to make any report.  

     In sum, it appears that a proper on-shift examination was conducted for the MMU 064-0
section.  It further appears that since no hazards were found, particularly the ones alleged by the
Secretary, nothing had to be recorded in the on-shift book.  Consequently, I conclude that the
Respondent did not violate section 75.362(a)(1) and will vacate the citation.

Citation No. 3568565

     This citation asserts a violation of section 75.220(a)(1), 30 C.F.R.  75.220(a)(1), because:

               During a non-fatal accident investigation it was determined that
          the Approved Roof Control Plan for this mine dated February 20,
          2001 was not complied with on the MMU 064 East Mains Section in
          the No. 4 entry where a non-fatal accident occurred on 10-17-2001. 
          Loose, mine roof was present beginning 12' outby spad 30223 and
          extending inby for a distance of 30' and had not been scaled down. 
          Adequate temporary supports were not installed on 5' centers with a
          minimum radius of 15' around the hole being injected, and roof sag
          devices were not installed around the No. 5 hole being injected with
          grout material.  See page No. 30 Part E No. 1, 2, 3 of approved roof
          control plan.

(Govt. Ex. 5.)  Section 75.220(a)(1) requires that: "Each mine operator shall develop 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.  Additional measures shall be taken to protect persons if
unusual hazards are encountered."

     There is no dispute that the Micon employees did not install temporary supports or sag devices
while injecting the roof with grouting material.  This would appear to be a violation of the roof control
plan as cited.  Nonetheless, the Respondent argues that the sections in the plan concerning grouting
were "improperly imposed" on Eastern and, therefore, cannot serve as a basis for the alleged violation. 
(Resp. Br. at 39.)  Specifically, the company argues that the grouting provisions are neither mine
specific nor the result of good faith negotiations.  The facts, however, indicate that Eastern did not try to
negotiate the provisions with MSHA as to whether they applied to the specific requirements of the
Harris Mine, or on any other basis, but instead acquiesced in including them in the plan.

     The five pages in the Roof Control Plan were originally included at the direction of MSHA. 
Inspector Workman told Eastern that grouting could not be performed at the mine unless it was
covered in the roof or ventilation control plan.  (Tr. 218.)  Danny Spratt, the manager for safety and
training, asked him how they could get such provisions in the plan and he told them he had a copy of
some that he would fax to them.  (Tr. 337.)  On receiving the faxed the provisions, Eastern's
management looked them over, then typed them up, put on a cover letter and had the plan approved by
MSHA on May 11, 2001.  (Govt. Ex. 6, p.2, Tr. 337.)  No negotiations were had with MSHA over
the provisions.  

     The company now claims that it did not object to the provisions because it needed the grouting
being done at the time to be completed so the longwall could be moved.  Even if that is true, it does not
explain why Eastern did not object to them later.  In fact, it was not until the yearly review of the plan,
apparently in January or February 2002, that the company revisited the provisions.  (Tr. 338.)  Even
then, the Respondent did not try to renegotiate or object to the provisions, instead they proposed "to
condense those five pages into two pages."  (Tr. 338.)  Danny Spratt and others met with the MSHA
Assistant District Manager and "had quite a lengthy meeting and the results of that meeting, our plan
was not changed."  (Tr. 338.)

     The Commission has stated, with regard to the negotiating of roof control and ventilation plans,
that:

               The requirement that the Secretary approve an operator's mine
          ventilation plan does not mean that the operator has no option but to
          acquiesce to the Secretary's desires regarding the contents of the plan. 
          Legitimate disagreements as to the proper course of action are bound
          to occur.  In attempting to resolve such differences, the Secretary and
          an operator must negotiate in good faith and for a reasonable period
          concerning a disputed provision.  Where such good faith negotiation
          has taken place, and the operator and the Secretary remain at odds
          over a plan provision, review of the dispute may be obtained by the
          operator's refusal to adopt the disputed provision, thus triggering
          litigation before the Commission.

Carbon County Coal Co., 7 FMSHRC 1367, 1371 (September 1985)(emphasis added) (citation
omitted).

     Here, Eastern did not attempt to negotiate the grouting requirements when they were originally
included in its plan.  Nor did it raise the issue after completing the grouting which it maintains prevented
it from challenging the provisions initially.  Further, there is no evidence that it raised the issue after
receiving the instant citation in November, 2001.  When it did finally get around to raising it, the
company did so not by objecting to the provisions, but by proposing to "condense" the provisions. 
After one meeting, the company assented to continue including the five pages in its plan.  Thus, it
appears that what little negotiations there were resulted in the two parties agreeing.  Certainly, there is
no evidence that the company tried to take the matter to the district manager or to anyone else in the
MSHA hierarchy.  Nor did Eastern refuse to adopt the provisions to trigger litigation before the
Commission.

     Consequently, I find that while the company now claims that the grouting requirements were
imposed on it, in fact it put up little or no fight, instead agreeing to the inclusion of the provisions in its
roof control plan.  Since the grouting provisions were not imposed upon the Respondent, it was
required by section 75.220(a)(1) to comply with their requirements and to insure that others working in
the mine did also.  By not doing so, the company violated section 75.220(a)(1).

     Significant and Substantial

     The Inspector found this violation to be "significant and substantial."  A "significant and
substantial" (S&S) violation is described in Section 104(d)(1) of the Act, 30 U.S.C.  814(d)(1), 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."  A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature."  Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set out four criteria that
have to be met for a violation to be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 
Evaluation of the criteria is made in terms of "continued normal mining operations."  U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.  Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987).

     In order to prove that a violation is S&S, the Secretary must establish:  (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious nature.  Mathies, 6 FMSHRC at
3-4.

     Applying the Mathies criteria, I make the following findings.  The violation of section
75.220(a)(1), by not installing temporary roof supports and sag devices during grouting, created the
distinct safety hazard of a roof fall.  In view of the fact that the grouting was being performed to shore
up a weak roof and the fact that the injection of the grouting material put the roof under additional
pressure until the grout "set up," a roof fall resulting in a injury to someone standing under the affected
roof was reasonably likely to occur.  Finally, the resulting injury was likely to be of a reasonably serious
nature, such as a crushed knee.  Clearly, the failure to use temporary roof supports and sag devices
was a significant contributing cause to the accident, making it "significant and substantial."  Walker
Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997).  Accordingly, I so find.

Citation No. 7195722     

     This citation alleges a violation of section 48.11 of the Secretary's mandatory training
requirements, 30 C.F.R.  48.11, because: "At an AFB investigation it has been determined that Tyler
Pawich and Joe Deoskey, Micon employees, contracting for Eastern Associated Coal Corp., Harris
No. 1 Mine, had not been properly trained in the General Safety Precautions and Guidelines for
Polyurethane Grouting for roof Strata and Rib consolidation of the approved Roof Control Plan." 
(Govt. Ex. 3.)  Section 48.11 requires that:

               (a) Operators shall provide to those miners, as defined in
           48.2(a)(2) (Definition of miner) of this subpart A, a training program
          before such miners commence their work duties.  This training program
          shall include the following instruction, which is applicable to the duties
          of such miners:
               (1) Hazard recognition and avoidance;
               (2) Emergency and evacuation procedures;
               (3) Health and safety standards, safety rules, and safe working
          procedures;
               (4) Use of self-rescue and respiratory devices, with self-
          contained self-rescue device training that includes complete donning
          procedures in which each person assumes a donning position, opens
          the device, activates the device, inserts the mouthpiece or simulates this
          task while explaining proper insertion of the mouthpiece, and puts on
          the nose clip; and
               (5) Such other instruction as may be required by the District
          Manager based on circumstances and conditions at the mine.

Section 48.2(a)(2), 30 C.F.R.  48.2(a)(2), states that a miner is, "for the purposes of  48.11
(Hazard training) of this subpart A, any person working in an underground mine, including any delivery,
office, or scientific worker or occasional, short-term maintenance or service worker contracted by the
operator . . . ."

     It is the Secretary's position that paragraphs (a)(1) and (a)(3) of section 48.11 required that the
hazard training given Pawich and Deoskey include pages 29 through 34 of Eastern's Roof Control
Plan.  Those pages are entitled "General Safety Precautions and Guidelines for Polyurethane Grouting
for Roof Strata and Rib Consolidation" and cover such topics as:  Notification of Use, Training,
Personal Protection, Roof Control, Equipment, Storage and Handling, Injection Process, Ventilation,
Fire Protection, Spills and Disposal.  (Govt. Ex. 6, pp. 29-34.)  On the other hand, the Respondent
argues that training on these subjects would be task training, not hazard training.  The Secretary has the
better argument on this issue.

     While some of the guidelines may sound like the types of things covered in task training, training
concerning the guidelines would not be covered by section 48.7, 30 C.F.R.  48.7, which governs task
training.  In the first place, task training is only required for those newly assigned to work as "mobile
equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and
ground control machine operators, and those in blasting operations."  Id.  In the second place, section
48.7(e), 30 C.F.R.  48.7(e), states that "[a]ll training and supervised practice and operation required
by this section shall be given by a qualified trainer, or a supervisor experienced in the assigned tasks, or
other person experienced in the assigned tasks."  The Respondent always hires a specialist to perform
roof grouting.  Thus, the company has no one in a position to perform the task training and, indeed,
knows less about the task of roof grouting than do the experts hired to do it.

     The type of training given to employees of independent contractors such as Micon, depends on
the frequency or length of their time in the mine.  Section 48.2(a)(1), 30 C.F.R.  48.2(a)(1), includes
in its definition of miner, "a maintenance or service worker contracted for by the operator to work at
the mine for frequent or extended periods."  If such a miner is at the mine frequently or for extended
periods, he would receive "Experienced miner training" under section 48.6, 30 C.F.R.  48.6, the first
time he came to the mine.  That training would include health and safety aspects of the tasks to
which the experienced miner is assigned.  30 C.F.R.  48.6(a)(11).

     However, if the employee of an independent contractor is only at the mine infrequently, for
short periods of time, the only training he receives is hazard training under section 48.11.  Nonetheless,
section 48.11 clearly requires training in health and safety standards, safety rules and safe working
procedures, which are applicable to the miner's duties.  Thus, it is reasonable to expect that when an
operator has safety provisions in its roof control plan which specifically apply to the task that the
contract employee is going to be performing, the operator will go over those provisions during hazard
training.  While not all of the guidelines in the roof control plan involved health and safety aspects of
roof grouting, enough of them do that the training comes within section 48.11(a)(3) of the regulation.

     It is undisputed that the Respondent did not provide such training to Deoskey and Pawich. 
Operators have the overall compliance responsibility for insuring that independent contractors comply
with the standards and regulations applicable to the work being performed by them in the operator's
mine.  Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1996); Mingo Logan
Coal Co., 19 FMSHRC 246, 250 (February 1997).  Proper hazard training would have fulfilled that
obligation.   Accordingly, I conclude that the Respondent violated the regulation by not doing so.

     Significant and Substantial

     I find that the "significant and substantial" designation is not applicable to this violation.  As
section 104(d)(1) clearly states, only violations of "mandatory health or safety standard[s]" can be
S&S.  Section 3(l) of the Act, 30 U.S.C.  802(l), defines "mandatory health or safety standard" as
"the interim mandatory health or safety standards established by titles II or III of the Act, and the
standards promulgated pursuant to title I of this Act."  Mandatory health and safety training is not
included in either title II or III of the Act, nor is it included in the Secretary's mandatory health and
safety standards promulgated pursuant to title I of the Act, which are clearly labeled as such.  
30 C.F.R. Parts K, M and O.  Since this citation is not a violation of a mandatory health or safety
standard, it cannot be S&S.  Cyprus Cumberland Resources v. FMSHRC, 195 F.3d 42, 45 (D.C.
Cir. 1999).  

     Therefore, I conclude that the violation was not "significant and substantial."  The citation will
be modified accordingly.

                     Civil Penalty Assessment
     
     The Secretary has proposed penalties of $874.00 for the two violations I have found that the
company committed.  However, it is the judge's independent responsibility to determine the
appropriate amount of penalty in accordance with the six penalty criteria set out in section 110(i) of the
Act, 30 U.S.C.  820(i).  Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984);
Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996). 

     In connection with these criteria the parties have stipulated that the Harris No. 1 Mine produces
3.9 million tons of coal a year and that Eastern and its affiliated companies produce 149 million tons of
coal a year.  (Jt. Ex. 1.)  Therefore, I find that the mine is a very large mine and Eastern a very large
company.

     The parties have also stipulated that in the previous 24 month period the Harris mine had 119
assessed violations during 438 inspection days.  (Jt. Ex. 1.)  In addition, Inspector Sturgill testified that:
"This company is a very good company, a very safety conscious company."  (Tr. 60.)  And Inspector
Workman said that the company had "always worked with me every way they can to eliminate
accidents" and "I just wish we had a lot more like them to work with."  (Tr. 188.)  I find that this
indicates that the operator has a very good history of previous violations.

     I further find based on the absence of any evidence to the contrary, that payment of the
proposed penalty will not adversely affect Eastern's ability to remain in business and that the operator
demonstrated good faith in attempting to achieve rapid compliance after notification of the violations.

     In view of the serious knee injury sustained by Pawich, I find that the gravity of both violations
was fairly serious.

     Finally, I agree with the conclusions of the inspectors that the company was moderately
negligent in committing these two violations.

     Taking all of these factors into consideration, I conclude that the penalties of $475.00 for
Citation No. 7195722 and $399.00 for Citation No. 3568565, proposed by the Secretary, are
appropriate.

                              Order

     In view of the above, Citation Nos. 7195725, 7195726 and 7195727 are VACATED,
Citation No. 7195722 is MODIFIED by deleting the "significant and substantial" designation and is
AFFIRMED as modified and Citation No. 3568565 is AFFIRMED.  Eastern Association Coal
Corporation is ORDERED TO PAY a civil penalty of $874.00 within 30 days of the date of this
decision. 

                                                            
                                        T. Todd Hodgdon
                                        Administrative Law Judge
                                   
                                   
Distribution: (Certified Mail)

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd
Floor West, Arlington, VA 22209-2247

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219 

/hs