<DOC>
[DOCID: f:k97-77r.wais]

 
CLARK ELKHORN COAL COMPANY
March 18, 1998
KENT 97-77-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          March 18, 1998

CLARK ELKHORN COAL COMPANY,     : CONTEST PROCEEDINGS
               Contestant       :
           v.                   : Docket No. KENT 97-77-R
                                : Citation No. 4495292; 11-26-96
SECRETARY OF LABOR,             :
     MINE SAFETY AND HEALTH     :    Sunset Mine No. 1
     ADMINISTRATION,            :    Mine ID: 15-11905
               Respondent       :
                                : Docket No.  Kent 97-176-R
                                : Citation No. 4224867; 03/12/97
                                :
                                : Ratliff Mine No. 110
                                :    Mine ID 15-16121

                             DECISION

Appearances:  William C. Miller, Esq., Jackson & Kelly,
              Charleston, West Virginia, for  the Contestant;
              Thomas A. Grooms, Esq.,  Office of the Solicitor,
              U. S. Department of Labor, Nashville, Tennessee
              for Respondent.

Before: Judge Barbour

     These contest proceedings arise  under section 105(d) of the
Federal Mine Safety and Health Act of 1977  (Mine Act or Act) (30
U.S.C.   815(d))  and involve two citations issued  pursuant  to
section 104(a) of the  Act  (30  U.S.C.  814(a)).  Each citation
alleges Clark Elkhorn Coal Company  (Clark  Elkhorn)  violated  a
mandatory  safety  standard  for  underground  coal mines.  Clark
Elkhorn  contested the validity of the citations,  the  Secretary
answered,  the  matters  were  assigned to me, and I consolidated
them for hearing and decision.   Upon the parties' joint  motion,
the proceedings were continued pending the decision of Commission
Administrative Law Judge William Fauver  in  Apex Minerals, Inc.,
19 FMSHRC 796  (April 1977).[1]  The parties hoped  the  decision
would provide them with a basis to resolve their differences.  It
did  not, and the  hearing  was  rescheduled.   At  the  hearing,
counsels   announced  the  Secretary  had  vacated  the  citation
contested in  Docket  No.  KENT  97-77-R  and  Clark  Elkhorn had
withdrawn  its  contest (see Joint Exh. 1; Tr. 8).[2]  Thus,  the
only issue at trial  was the validity of Citation No. 4224867, as
contested in Docket No. KENT 97-176-R.

                    DOCKET NO.  KENT 97-176-R
                           THE CITATION

     Citation No.               Date          30 C.F.R. 
       4224867                 3/12/97        75.1711-2

     The citation states:

               The mine operator has failed to seal all
          mine  openings.   There  are  three  openings
          located on Rockhouse Fork and there are seven
          openings on Greasy Creek that are not sealed.
          All these  openings  are . . . interconnected
          with  the mine.  The mine  was  abandoned  on
          November 20, 1996 (Gov. Exh. 1).[3]


**FOOTNOTES**

     [1]: Apex, involved two mines, Mine No. 4 and adjacent Mine
No. 7.  In the past  both mines had been operated by Eastern Coal
Corporation.  Apex Minerals,  Inc.  (Apex)  purchased  the mining
rights to Mine No. 4 and applied to MSHA to operate the mine.  At
that  time, Mine No. 7 and Mine No. 4 were connected underground.
Mine No.  7  mine  had  been  used as part of a bleeder system to
ventilate Mine No. 4, but Mine No. 7 long had been shut down when
Apex took over Mine No. 4.

     Once  Apex  was in control of  Mine  No.  4,  it  completely
separated the two  mines  by installing underground seals between
them.   Subsequently, water  burst from a surface opening of Mine
No. 7, and MSHA cited Apex for  a violation of 30 C.F.R.  75.334
(b)(2),  a mandatory safety standard  requiring,  in  part,  that
worked-out areas be sealed.  Apex contested the citation, arguing
that after  the  underground seals were installed, Mine No. 7 was
not a part of Mine  No.  4  and  Apex was not responsible for the
outburst or for failing to seal the opening.

     Judge  Fauver agreed.  He stated  the  construction  of  the
underground seals  raised "the legal issue whether a mine that is
connected  underground   with  another  mine  may  seal  off  its
connection  and  thereby  become   a   separate   mine   with  no
responsibility  for  the adjoining mine" (19 FMSHRC at 801).   He
concluded Apex had a "legal  right  to seal off its mining rights
boundary   and   thereby   become   a   separate   mine   without
responsibility or liability for conditions  in . . . Mine  No. 7"
(19 FMSHRC at 803).  The Secretary did not appeal the decision.

     [2]:  I  accepted the withdrawal and advised the parties  I
would dismiss Docket No. KENT 97-77-R in this decision (Tr. 9) .

     [3]: The Secretary  gave  the company until April 14, 1997,
to  abate  the alleged violation.   Subsequently,  the  Secretary
agreed to extend  the  time  at  least until this decision issued
(Tr. 113).


                          THE STANDARDS

30 C.F.R.  75.1711 states:

               [T]he opening of any  coal  mine that is
          declared   inactive . . . or  is  permanently
          closed, or abandoned  for  more than 90 days,
          shall be sealed by the operator  in  a manner
          prescribed by the Secretary.

Section 75.1711-2 implements section 75.1711, and  specifies  the
manner in which slope or drift mine openings shall be sealed.  It
requires  they  be "sealed with solid, substantial, incombustible
material, such as  concrete  blocks . . . or . . . be  completely
filled  with  incombustible  material for . . .  at least 25 feet
into such openings."

                            THE ISSUES

     The fundamental issues are  whether  the cited openings were
part of a mine that was abandoned by Clark  Elkhorn for more than
90 days;  and,  if  so,  whether  the  openings  were  sealed  or
completely filled as required.  As in Apex, the key  to resolving
the issues is to determine whether works that had been  connected
underground  were  part  of  the  single  mine  after  they  were
separated by the installation of underground seals.

                           THE EVIDENCE

     MSHA  Inspector  Douglas  Looney  was  the Secretary's first
witness.  He testified the com-pany abandoned the Ratliff No. 110
Mine in late 1996.  (The mine is located in MSHA District 6.)  On
March 12, 1997, more than 90 days after the mine  was  abandoned,
Looney  went  to  the  mine  "to  check all openings within [its]
boundaries" (Tr. 15).  At the mine,  he met with John Swiney, the
mine  operations  manager.   Looney  advised   Sweeney  that  he,
Looney, needed to travel to all of the mine openings to determine
if  they  had  been  sealed  in accordance with section 75.1711-2
(Id.).  Looney and Swiney traveled together.  As Looney described
it,  "we . . . [rode] in a vehicle  to  a  certain  point.   Then
we . . .   park[ed] the vehicle, [got] out and walk[ed] up on the
mountain to where the old openings were" (Tr. 16).

     Looney  identified  a  copy of the Ratliff No. 110 Mine map.
For all intents and purposes  it  was the same as the map he used
when  conducting the inspection  (Gov. Exh. 2;  Tr. 18-19).   The
map showed  the  mine's  ventilation  system  (Tr. 19).   It also
showed  two different and adjoining mined areas.  Looney believed
the Ratliff No. 110 Mine consisted of these two areas.  One area,
the "old  works,"  had been developed and mined several years ago
by a company other than  Clark Elkhorn.  The other area, the "new
works,"  had been developed  and  mined  relatively  recently  by
Clark Elkhorn.

     Originally,  the  two  areas  had  been  completely separate
mines.  However, when retreat mining began in the  new works, the
company chose to cut into the adjacent old mine and  to  use  the
old  works  as  part  of a bleeder system ventilating the retreat
mining.  Return air from the new works circulated through the old
works and exhausted through  several  of  the openings of the old
mine (Tr. 45).  Before the company cut into  the old workings, it
obtained approval from MSHA (Tr. 38-39).

     The old works had constituted a drift mine, and the old mine
openings were parallel to, or practically level  with,  the  coal
seam  (Tr. 46).    The  company  tested  the effectiveness of the
bleeder system at some of the old openings  (Tr. 21, 23-25).  The
company  referred  to  these  openings  as evaluation  points  or
"EPs."[4]

     Clark Elkhorn was not required to cut  into the old works in
that there were alternative ways to establish  the bleeder system
(Tr. 25).   However,  it  was  safer  to  use the old  works  for
ventilation and to evaluate the bleeder system  from  the surface
EPs (Tr. 39).    It was also cheaper.  Indeed, according to Clark
Elkhorn's  Safety  Coordinator Roger Cantrell, because of  safety
considerations, MSHA encouraged the use of surface EPs (Tr. 103).
Looney  agreed it was  "fairly  common"  in  District  6  to  use
adjacent  old  works  as  part  of  a  mine's  ventilation system
(Tr. 38-39).

     There  came  a  time,  however,  when  the company  finished
retreat  mining  and no longer needed to use the  old  works  for
ventilation.  The  company  therefore installed underground seals
between the new and old works  (Tr. 31, 45;  see  Gov. Exh. 2  at
yellow  line  labeled "Underground Seals J.S.").  The underground
seals completely  separated  the  old and new works and nothing -
neither  miners, nor equipment, nor  air -  could  pass  between.
Functionally,   it   was   as   though  the  old  mine  had  been
reconstituted.   Once  the seals were  installed,  Clark  Elkhorn
stopped using the surface  openings  as  evaluation  points  (see
Tr. 32, 101).

     In  Looney's  opinion,  even  though  the  underground seals
completely  separated  the  new  and  old  works,  Clark  Elkhorn
remained  responsible  for the old works (Tr. 32.).  He  believed
the new and old works together  constituted one mine (Tr. 32-33).
He stated, "I see [the old works]  as  just a continuation of the
mine" (Tr. 41).  In other words, Clark Elkhorn's  use  of the old
works  and of their openings made the old works a permanent  part
of the Ratliff No. 110 Mine.

     With regard to the openings he inspected on March 12, Looney
acknowledge  he  and Swiney did not travel to all of the openings
of  the  old mine because  of  "time  restraints"  (Tr. 27,  28).
Therefore,  Looney testified specifically about two openings, EP1
and EP2.  Both  were  on  the  Greasy Creek side of the mine (see
Gov. Exh. 2; Tr. 21, 25).   EP1  was  partially  filled with dirt
and debris.  Ventilation pipes (18 inch corrugated plastic pipes)
protruded out of the opening through the dirt (Tr. 21, 36).   The
pipes, which were 10 to 12 feet long, also extended back from the
opening,  through  the  dirt,  and into the atmosphere of the old
works (Tr. 64).  The "fill" that partially closed the opening did
not  extend  from the mouth of the  opening  into  the  mine  for
25 feet as required  by  section 75.1711-2.  EP2 also had 18 inch
ventilation  pipes protruding  from  the  dirt  and  debris  that
partially closed  the opening.[5]    EP2 also had "fill" that did
not extend 25 feet into the mine (See Gov Exh 2; Tr. 26, 36-37).

     Looney believed  that  to  comply with section 75.1711-2 the
company should have packed  dirt or other fill from the mouths of
the  openings  at least 25 feet into  the  old  works.   He  also
believed the ends  of  the  ventilation  pipes  should  have been
sealed  or guarded (Tr. 36-37, 47).  Looney acknowledged to  seal
or properly  fill  some  of  the  openings  it  might  have  been
necessary  to  alter  the  surface  of  the land (Tr. 44, 46).[6]
Looney did not know if the company had "surface  rights"  to make
necessary  alterations,  nor  did  he consider whether or not the
company  had such rights when he issued  the  citation  (Tr. 44).
Looney also thought he and Swiney visited openings other than EP1
and EP2 that  had  not  been  used  as  EPs and that had not been
sealed as required, but Looney could not  specify on the mine map
where these other openings were (Tr. 27, 29).

     In Looney's opinion the company's failure  to comply was not
a hazard to underground miners.  The only persons endangered were
those  who,  for  whatever reasons, might try to crawl  into  the
openings (Tr. 42, 48).   Looney  considered this unlikely because
the openings were "pretty much in isolated areas" (Tr. 46).

     Looney  testified,  the  company   was  at  most  moderately
negligent in failing to seal the openings  (Tr. 42-43).    He did
not  know  of  anyone who told the company it was responsible for
sealing the openings  prior to him issuing the citation (Tr. 45).
Nevertheless, the citation  was  not  unique.   Looney  stated he
issued  similar  citations  for  similar conditions, although  he
could not recall when, where, or their number (Tr. 40-41).

     Swiney,  who testified for Clark  Elkhorn,  worked  for  the
company for 23 years.   He  explained  the  Ratliff  No. 110 Mine
started  operating  in  1987  and  the  old  works were  then  in
existence (Tr. 52, 61).  (According to Cantrell,  the  old  works
were cut "in the 40s or 50s, maybe early 60s" (Tr. 103).)  Swiney
testified the company submitted to MSHA plans to cut into the old
works  and  establish  the  EPs  for the bleeder system (Tr. 52).
The plans were approved, but prior


**FOOTNOTES**

     [4]: When asked to describe the tests conducted at the EPs,
Looney stated, "They made methane  tests,  [and]  determine[d] if
air was moving in the proper course and velocity and oxygen tests
and  stuff like that" (Tr. 22).  The tests were conducted  weekly
(Tr. 23, 49-50).

     [5]:  According  to Swiney, the pipes extended out from the
openings so miners did not have to go under overhanging highwalls
to  evaluate  the  bleeder   system  ventilation.   Rather,  they
conducted the bleeder system tests  at the outby end of the pipes
(Tr. 62).

     [6]: Cantrell asserted the company  would have had to build
roads  to  get  needed  personnel  and  materials  to  the  sites
(Tr. 105).
to  cutting  into  the  works no one from MSHA  told  Swiney  the
company would have to seal  the  openings  to the old works.  Nor
could he recall hearing of a situation where an operator had been
required to seal such openings (Tr. 53).


     As  best  Swiney  could  remember,  the  underground   seals
separating  the  new  and  old  works  were  constructed  in 1995
(Tr. 54).   Before constructing the seals, it was again necessary
to  receive MSHA's  approval.   Nothing  in  the  submission  the
company made to MSHA to obtain approval indicated the company was
going  to  seal  the surface openings after the underground seals
were constructed; nor was the company advised it would have to do
so (Tr. 54-55).

     As opposed to  Swiney,  Cantrell testified he was aware MSHA
believed the openings would have  to  be  sealed.   It was during
"the  latter  part  of  `95  or first part of `96'" that Cantrell
"encountered MSHA saying that  [it]  would require EPs where we'd
used  old  mines to be sealed" (Tr. 100).   Cantrell  recalled  a
person from  the  MSHA  ventilation  department  "started talking
about  the  EP would have to be sealed" (Tr. 105).[7]   This  was
after the company had cut into the old works (Tr. 108).  However,
no  one  from  MSHA  indicated  sections  75.1711  and  75.1711-2
required the openings to be sealed (Tr. 102).

     MSHA Inspector  Thomas Griffith, who was called as a witness
by Clark Elkhorn, has  been  employed by MSHA for 22 or 23 years,
the past 8 as a District 6 specialist  in  coal mine ventilation.
As  a  ventilation  specialist  he is responsible  for  reviewing
operators' ventilation plans (Tr.  76).   If an operator is going
to use old works as part of a ventilation system,  MSHA  has  not
required  the  operator's  ventilation  map  to indicate that the
surface openings of the old works will be sealed (Tr. 78, 80-81).
Griffith  could not recall ever telling anyone  at  Clark Elkhorn
the openings  had  to  be  sealed  (Tr. 82).   On the other hand,
"three and four and five year[s] ago" he  advised  several  other
companies  that  section 75.1711-2  required  the sealing of such
openings,  but he only gave the advice to operators  whose  mines
liberated high volumes of methane (Tr. 81-82, 93).

     William  Simpkins,  a  former MSHA ventilation specialist in
District 6, also testified for  Clark  Elkhorn.   When he retired
from MSHA in September 1994, he had been a ventilation specialist
for 16 years (Tr. 110).  Simpkins could not remember any time the
agency  used  section 75.1711  to  require  an operator  to  seal
openings in old works when the openings had been  used as part of
another mine's ventilation system (Tr. 111).


**FOOTNOTES**

     [7]: Q.  So you were on notice as of the last  part  of `95
or early `96 that MSHA was               changing its policy,  is
that correct?

        A.  That's the first time I heard of those EP's had to be
sealed (Tr. 106).


                    RESOLUTION OF THE CONTEST

     In  resolving  the  question  of  whether  Clark Elkhorn was
properly cited for a violation of section 75.1711-2, heed must be
paid  first to the wording of sections 75.1711 and  75.1711-2  in
order to  determine  what  was  required  of the company.  If the
language  is  clear,  the standards' terms must  be  enforced  as
written.  (Island Creek  Coal  Co.,  20 FMSHRC  ____,  Docket No.
KENT 95-214,  slip op. 5 (January 30, 1997).  If the language  is
not clear, if it  is  ambiguous,  deference  must be given to the
Secretary's interpretation of the regulations (Island Creek, slip
op. 5-6; citing to Energy West Mining Co. v. FMSHRC, 40 F.3D 457,
463  (D.C. Cir. 1994); Secretary of Labor v. Western  Fuels-Utah,
Inc.,  900 F.2d 318, 321 (D.C. Cir. 1990)).  While at first blush
the requirement  to  defer  seems  to ordain the Secretary always
will   prevail,  the  requirement  comes   with   a   concomitant
responsibility that offers a constitutionally-based protection to
the operator.   The  Secretary  must  afford  fair  notice of her
interpretation.   If  she does not, the operator cannot  be  held
liable (General Electric  Company v. E.P.A., 53 F.3d, 1324, 1328-
29 (D.C. Cir. 1995); Island Creek, slip op. 11).

      THE SECRETARY'S INTERPRETATION OF SECTION 75.1711-2

     To  establish  noncompliance  with  section  75.1711-2,  the
Secretary must prove  the  existence  of openings "required to be
sealed     under     75.1711."     Section 75.1711,     restates
section 317(k)  of  the  Act  (30 USC  877(k)) in requiring "the
opening of any coal mine that is . . . abandoned  for  more  than
90 days,  [to]  be  sealed . . . in  a  manner  prescribed by the
Secretary."  Looney's testimony regarding the openings at EP1 and
EP2  was  detailed.  He described how he and Swiney  visited  the
openings, how  the  openings  had 18 inch, open-ended ventilation
pipes  protruding  through  the  dirt,   how  the  dirt  did  not
completely close the openings, and how the  "fill" did not extend
25 feet  back  into  the  mine  (Tr. 23, 26,   36-37, 47, 49-50).
There  is  no dispute the Ratliff No. 110 Mine was  abandoned  on
November 20,  1996  (Gov. Exh. 1,  4).   There also is no dispute
Looney  visited  the  mine  more  than 90 days  later.   Looney's
testimony amply demonstrates, and I find, that at the time of the
visit, EP1 and EP2 were not "sealed . . . in  a manner prescribed
by  the  Secretary"  (30 C.F.R.   75.1711) in that  neither  was
"sealed with solid incombustible material"  or "completely filled
with incombustible material for a distance of  at  least 25 feet"
(30 C.F.R.  75.1711-2).

     In  contrast  to the detailed descriptions of EP1  and  EP2,
Looney's testimony regarding  the other openings of the old works
was  not  sufficiently  precise  to   allow  findings  concerning
compliance with the standard.  Although he initially testified he
went  to  the  mine to "check all openings  within  [the  mine's]
boundaries" (Tr. 15),  Looney  modified  his  testimony from "all
openings," to the openings he and Swiney could  see on the day of
the  inspection,  and  agreed  they  did not see them  all  (Id.,
Tr. 28,   see  also  Tr. 48).   Further,  when   cross   examined
concerning  the  ten  openings  he  listed  specifically  on  the
citation, he stated "it could have been one or two less than ten"
(Tr. 43).   Finally,  although   he  stated  "according  to [his]
notes" (Tr. 27) other openings not used as EPs  were in violation
of  section 75.1711-2,  the  notes were not introduced and Looney
provided no further description of the "other openings."

     Despite these deficiencies,  proof  EP1  and  EP2  were  not
"sealed  with  solid incombustible material" or "completely filed
with incombustible  material for . . . at least 25" is sufficient
to establish noncomplicance  with section 75.1711-2, provided EP1
and EP2 were "openings of a coal mine declared abandoned for more
than 90 days" (30 C.F.R.  75.1711);  in  other  words,  provided
they were openings of the Ratliff No. 110 Mine.

     Section  3(h)(2) of the Act defines "coal mine" as "an  area
of  land  and  all   structures,  facilities,  machinery,  tools,
equipment,  shafts,  slopes,   tunnels,  excavations,  and  other
property, real or personal, placed  upon,  under,  or  above  the
surface of such land by any person, used in, or to be used in, or
resulting  from,  the work of extracting in such area . . . coal"
(30  U.S.C.   802(h)(2)).    Section 318(l)   includes   in  the
definition  of  "coal  mine," "areas of adjoining mines connected
underground"  (30 U.S.C.    878(l)),   and  this  definition  is
repeated in the regulations (30 C.F.R,  75.2).   When uncut coal
and rock physically separated the works of the old  mine from the
new works it is certain the old and new works were not "connected
underground"  and the openings of the old mine were not  part  of
the Ratliff No. 110  Mine.   Just  as  certain, when the coal and
rock were cut through and the old works  were  joined  to the new
works  as  part of the ventilation system for the new works,  the
old    works    became    "shafts,    slopes,    tunnels,    [or]
excavations . . . used  in  the  work  of extracting . . . coal."
They  were "connected underground," and they  were  part  of  the
Ratliff No. 110 Mine.

     When  the old works again were physically separated from the
new works -  albeit  by underground seals, not by coal and rock -
and the openings no longer  were  used  for any purpose connected
with the new works, did the openings continue to be a part of the
"coal  mine"  the company subsequently abandoned?   The  Act  and
regulations are ambiguous.

     The definitions  of  "coal  mine"  can  be read as including
openings previously "used in . . . or resulting  from the work of
extracting . . . coal"   because  the  statutory  and  regulatory
definitions of "mine" never  have  been  interpreted  only on the
basis  of present use.  Clark Elkhorn made the openings  part  of
the ventilation  system  of  the Ratliff No. 110 Mine, controlled
the openings, and used them to  mine  coal.   In  so  doing,  the
company   assumed   responsibility   for  the  openings.   It  is
reasonable  to read the statutory and regulatory  definitions  to
prohibit Clark Elkhorn from abandoning this responsibility simply
because it chose  physically  to  wall-off  the openings from the
rest of the mine, and it is reasonable to conclude the  statutory
and regulatory definitions do not permit a company to segment its
responsibility   by   making   "shafts,  slopes,  tunnels,   [or]
excavations"  parts  of  the mine when  it  suits  the  company's
convenience and by disowning them when it does not.

     On the other hand, it  is  equally  reasonable  to  read the
definitions  of  "coal  mine"  in  section 318(l)  of the Act and
section 75.2 of the regulations to warrant Clark Elkhorn's belief
the openings were not parts of the mine it abandoned .  As noted,
the Act and regulations define "coal mine" as including "areas of
adjoining   mines  connected  underground"  (emphasis  supplied).
"Connected" is  defined  as  being  "joined  or  linked together"
(Webster's  Third  New International Dictionary (1986)  at  480).
The underground seals  physically  severed all that had joined or
linked the old and new works (Tr. 32,  55, 82, 100-101, 107-108).
Once the underground seals were in place,  Clark  Elkhorn, or any
company in its position, reasonably and in good faith  could have
concluded  the  adjacent  old  works  no  longer  were "connected
underground" with the new works and no longer were  a part of the
of the Ratliff No. 110 Mine.[8]

     As I have stated, where both the Secretary and Clark Elkhorn
could  have  read  the Act and the regulations and in good  faith
reached reasonable but  opposite conclusions, I must defer to the
interpretation of the Secretary  unless  it is "plainly erroneous
or inconsistent with the regulation" (Hazardous  Waste  Treatment
Council   v.  Reilly,  938 F.2d 1390, 1395 (D.C. Cir. 1991);  see
also, Island Creek, slip op. at 5-6).  I would be remiss if I did
not recognize that ultimately  what is at stake is responsibility
for compliance at mines whose original  operators  have  departed
leaving  potentially  hazardous  conditions  in  their wake.  The
Secretary's  interpretation  assigns  responsibility   for  those
conditions  and in so doing furthers the overall purpose  of  the
Act.  Because the Secretary's interpretation of the regulation is
not plainly erroneous  or  inconsistent  with  the  Act  and  its
purpose, it is permissible and is affirmed.

                           FAIR NOTICE

       Where affirmance of the Secretary's interpretation means a
civil  penalty  may  be  assessed   against  the  operator  for a
violation  of  the  regulation, due process requires the operator
receive fair notice of  what  the Secretary believes is required.
In   this   way,   due  process  "prevents . . . deference   from
validating the application  of  a  regulation  that fails to give
fair  warning  of  the  conduct  it . . . requires" and  prevents
regulation by fiat (Gates & Fox Co. v.  OSHRC,  790  F.2d 154,156
(D.C. Cir. 1986)).

     Just  as  an operator faces an uphill battle in proving  the
Secretary has invoked  an arbitrary and capricious interpretation
when the relevant statutory and regulatory language lacks clarity
(General Electric Co., 53  F.3d.  At  1327), so too the Secretary
faces  an uphill battle in proving fair  notice  when  she  lacks
evidence   of   a   clear   and   direct   announcement   of  her
interpretation.  In this way, the doctrines of deference and fair
notice balance one another and require the Secretary's actions to
be reflected by rational, principled, and clear decision making.

     The testimony reveals significant lapses by the Secretary in
meeting her obligation to provide fair notice. The agency,  which
approved  the  bleeder  system and the company's plan to cut into
the old works, had ample  warning the company intended to use the
openings as part of its ventilation  system  (Tr. 39, 54-55,  99-
100).   Yet,  there is no evidence that either prior to or during
the  approval process  MSHA  advised  the  company  it  would  be
responsible  under sections 75.1711 and 75.1711-2 for sealing the
openings if the company installed underground seals and abandoned
the Ratliff No. 110  Mine (Tr. 45, 82, 99).  And this was so even
though the practice of  using  adjacent  old  works  as  part  of
bleeder  systems  was "fairly common" in MSHA District 6 (Tr. 38-
39, see also Tr. 79).   It  is certain as well the lack of notice
was not because MSHA believed  Clark  Elkhorn  voluntarily  would
seal the openings.  The company never mislead MSHA in this regard
(Tr. 73-74, 80-81).

     I conclude there simply was no clearly defined and applied
MSHA  policy  in  District  6,  or  elsewhere,  interpreting
sections 75.1711  and  75.1711-2  to  require the sealing of
openings like those at issue.[9]  Looney testified he issued
other citations for similar conditions,  but  he  could  not
recall  where,  when,  or  the number of citations he issued
(see Tr. 40-41).  Griffith testified  "3 and 4 and 5 year[s]
ago" he advised several companies that openings in mines the
companies cut into had to be sealed, but  he  agreed  he did
not  so advise Clark Elkhorn (Tr. 82).  Further, he admitted
whether  or not he gave such advise depended upon the volume
of  methane  liberated  at  the  mine,  a  condition  wholly
extraneous to sections 75.1711 and 75.1711-2 (Tr. 82-83).

     I fully recognize Roger Cantrell testified he knew during
"the latter  part of `95 or first  part  of  `96"  (Tr. 100),
MSHA  would require openings of the old works to be  sealed.
(This was  after  the  underground  seals  were in place and
before  Clark Elkhorn abandoned the Ratliff No.  110  Mine).
The question  is  whether the safety coordinator's knowledge
constituted  fair  notice,   and  I  conclude  it  did  not.
Critically, the record does not  reveal whether Cantrell was
told  the  requirement  to  seal  the  openings  related  to
sections 75.1711  and 75.1711-2.  As is evident  from  Judge
Fauver's decision in Apex, the agency has been casting about
for  a  standard  to "cure"  the  problem  of  the  unsealed
openings of old works.   What  Cantrell  was told might have
related  to  section 77.334(b)(2)  (the  standard  cited  in
Apex),  to sections 75.1711 and  75.1711-2,  to  some  other
standard, or no standard.

     Here, where the Secretary offered no  evidence  of  any
consistently   applied   policy   with   regard   to  MSHA's
interpretation  of  the  cited  standard, or indeed, of  any
standard;  where the "best" she could  do  was  offer  vague
testimony the  cited  standard  was  used  before in similar
situations,   but   not   with   regard   to  Clark  Elkhorn
(noticeable, the citations were not introduced),  and where,
in  at  least some situations use of the standard was  based
upon a wholly  extraneous  condition  (Tr. 40-41,  81-82), I
cannot find the Secretary provided Clark Elkhorn fair notice
of  what  was  required.  (Compare U. S. v. Hoechst Celavesc
Corp., 128 F.3d,  216, 227, 228 (4th Cir. 1997) (letter from
regional  office  advising   regulated   party  of  agency's
interpretation of regulation establishes fair  notice)).[10]
Therefore,  I  conclude  the  Secretary  may not hold  Clark
Elkhorn responsible under section 75.1711-2  for  failing to
seal EP1 and EP2.

                              ORDER

     Citation  No. 4495292 has been vacated by MSHA, and Clark
Elkhorn has withdrawn its  contest.  Docket No. KENT 97-77-R
is DISMISSED.

     Because Clark Elkhorn may not be held responsible for the
violation charged in Citation No. 44224867,  Clark Elkhorn's
contest is GRANTED, the citation is VACATED, and  Docket No.
KENT 97-176-R is DISMISSED.


                                David Barbour
                                Administrative Law Judge


                                Distribution:

                                William  Miller,  Esq, Jackson  &
                                Kelly, 1600 Laidley  Tower, P. O.
                                Box  553,  Charleston,  WV  25322
                                (Certified Mail)

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

                                dcp


**FOOTNOTES**

     [8]:  The  Secretary  argues  Clark  Elkhorn   should  have
concluded from 30 C.F.R.  75.335,
"that  it  was  not  the  Secretary's  intent  for there to be  a
disconnection of the worked-out areas from active  workings  when
seals  are  constructed"  (see Sec. Br. 10, see also Sec. Br. 8).
Sections 75.334 and 75.335  require,  in  part,  the insertion of
pipes through underground seals to allow sampling for atmospheric
gases  and  water  in  worked-out  areas  behind the seals.   The
Secretary reasons if the old, worked out areas  were  a  separate
mine over which Clark Elkhorn had no responsibility, insertion of
the  pipes  into the worked-out areas would constitute a trespass
by  Clark  Elkhorn,   something  the  Secretary  could  not  have
intended.

     This argument is too  convoluted to accept.  It is much more
likely Clark Elkhorn, or any operator in its position, would have
concluded  sections 75.334 and  75.335  had  no  bearing  on  the
meaning of "adjoining  mines  connected  underground," but rather
presupposed a situation where a single operator  mined  both  the
worked-out  areas  behind  the seals and the active areas outside
the seals and where the inby and outby areas always were parts of
a single mine.

     [9]:  The obscurity of  MSHA's  policy  on  the  question is
exemplified by the only comment  regarding section 75.1711 in the
agency's  Program  Policy  Manual.  The comment provides guidance
concerning the timing of sealing activities, but does not address
the circumstances under which  adjacent  old works are considered
part of a mine that has been closed or abandoned:

     "Work  to seal inactive or permanently  closed  mines  shall
commence promptly  after ventilation is discontinued and shall be
carried out with reasonable diligence . . . .  For the purpose of
this standard, a mine or opening to a mine is inactive, closed or
permanently abandoned  when  ventilation by means of the mine fan
or fans is intentionally discontinued" (Department of Labor, Mine
Safety and Health Administration,  v.  Program  Policy Manual 140
(4/1/96)).

     [10]: There are may ways the Secretary may choose to afford
operators fair notice of her interpretation; written notification
being  one,  but  whatever method she chooses, it must  meet  the
standard -  not met  here  -  of  providing  a  clear  and direct
announcement of her interpretation.


     Given  the  lack of a consistent application of the standard
in  the  District  to require the sealing    of   openings    under
circumstances   like   those   at issue,  and  given  the  lack  of
apparent  pre-citation contact by MSHA with Clark Elkhorn to advise
the   company   section   75.1711 required sealing of the openings,
the   issue    is   whether   "by reviewing  the regulation  ...  a
regulated party  acting  in  good faith  would be able to identify,
with  "ascertainable   certainty" the standards by which the agency
expects parties to conform"  (See Diamond Roofing Co. V. OSHRC, 528
F.2d  645,  649  (5th Cir. 1976). For,  as  Judge  Tatle  observed,
when an agency provides  no  pre-enforcement  warning, and uses  a
citation as an  initial means for announcing      a      particular
interpretation  of  a regulation, "[W]e must ask ourselves  whether
the regulated party received,  or should  have  received, notice of
the  agency's  interpretation  in  the most obvious way  of all: by
reading the regulations" (General  Elec. Co. 53 F.3d at 1329).   

     In  my  view, it should not.  Rather, I conclude that  Clark
Elkhorn,  or  any  other operator who   read   the   Act  and   the
Secretary's regulations  in  good faith    could   have   concluded
sealing of  the  surface openings was  not required.  In  restating
section   317(k)   of   the  Act, section   75.1711  requires   the
sealing of  the  openings of "any coal mine ... that  is  abandoned
for more than 90 days."  The Act, as noted defines, "coal mine"  in
pertinent  part  as  "an  area of land   and   all  shafs,  slopes,
tunnels, [or]excavations ... used in  the  work of  extracting  ...
coal."    While  this  definition clearly would  have  brought  the
openings  within the requirements of section  75.1711  prior to the
underground seals being in place, once they were in place  and  the
old works were separated form the new   works,   were  the  surface
openings that had  been  used for ventilation purposes part  of the
mine that had been abandoned?

     Moreover, and as Judge Fauver pointed out, this conclsion could
 have  been  bolstered by the fact the  PPM  states   the   original
 operator of the old works  may be held  liable  for its failure  to
 seal   openings  after   it   has abandoned  them  (Apex, 19 FMSHRC
 at 802 (quoting I PPM.Sec. 105 at 20)).   Therefore,   I   conclude
 Clark  Elkhorn  reasonably  could have  believed it was not subject
 to 75.1711  and therefore was not required to comply  with  section
 75.1711-2.

     Accordingly, while, in my view, MSHA's interpretation of the
regulation     is    permissible, because  MSHA  did   not  provide
Clark  Elkhorn with fair  warning of   what    it    believed   the
regulations required  and because Clark  Elkhorn  reasonably  could
have believed it was not under an obligation to comply, MSHA cannot
impose administrative  and  civil penalty  sanctions on the company
in this instance.

                              ORDER

     Citation No. 4495292 has been vacated  by  MSHA.,  and Clark
Elkhorn    has    withdrawn   its contest.  Therefore,  Docket  No.
KENT 97-77-R is DISMISSED.

     Because  I  have  concluded  Citation  No.  44224867 was not
validly   issued,   it   too   is VACATED, Clark Elkhorn's  contest
is  GRANTED, and Docket No.  KENT 97-176-R is DISMISSED.

     The parties agree Clark Elkhorn  abandoned  the Ratliff  No.
110  Mine  on November  20,  1996 They also agree  that one hundred
and  twelve days after  the  mine was abandoned,  openings  to what
formerly  had  been considered  a part of the mine were found to be
improperly sealed,  that  is, the openings   were  not   closed  as
required  by  section  75.1711-2. They do not  agree whether at the
time of the alleged violation the openings were  to the Ratliff No.
110  Mine, or whether  they  were openings to another coal mine for
which   Clark   Elkhorn   had  no responsibility?       If      the
improperly  sealed  openings were to  the Ratliff No. 110  Mine,  a
violation    of    the   standard occurred,  but  in  that  case  a
second  question upon  which  the parties disagree is whether Clark
Elkhorn is  excused  of liability for  the  violation  because  the
standard     was    impermissibly interpreted and  applied  by MSHA
(see e.g. Tr. 12)?

     Such  a  map  is not required to carry markings for evaluation
points, and, in fact, the closure map Looney carried  with him when
he inspected the subject openings did not carry them (Tr.  31; Gov.
Exh.  3).   The Secretary offered into  evidence   a  copy  of  the
closure map Looney carried during the inspection, and Looney marked
the openings he inspected  on the map  (Gov.  Exh.  3;  Tr. 35-36).
These openings were the  same  as the  evaluation  points  shown on
Gov. Exh. 2.

     The  testimony establishes the Secretary, through MSHA,  did
not notify Clark Elkhorn prior to issuing the citation that she was
going  to require the openings be sealed,  and  this was so despite
the fact

     Because   MSHA   viewed  the  old  and  the  new  works   as
constituting   a   single   mine, Griffith    understood    section
75.1711   did   not  require  the sealing  of the surface  openings
in the old works until the entire mine (old  works  plus new works)
was  "declared  inactive  or  the ventilation  has  been   removed"
from the entire mine (Tr. 90, see also Tr. 91).