<DOC>
[DOCID: f:kt2001136.wais]
 
WILLIAMS BROTHERS COAL CO., INC.
KENT 2001-136
January 17, 2002
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                        January 17, 2002
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         : Docket No. KENT 2001-136
          Petitioner             : A.C. No. 15-16666-03547
                                 :
                 v.              : Docket No. KENT 2001-137
                                 : A.C. No. 15-16666-03548
WILLIAMS BROTHERS COAL CO., INC.,:
          Respondent             : No. 3 Mine
                             DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the
             Solicitor, U.S. Department of Labor, Nashville,
             Tennessee, for the Petitioner;
             Hufford Williams, President, William Brothers Coal
             Company  Incorporated,  Mouthcard, Kentucky, for
             the Respondent.
Before: Judge Feldman
     This proceeding concerns petitions for assessment of civil
penalty filed pursuant to section 110(a) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C.  820(a),
by  the  Secretary  of  Labor  (the  Secretary),  against  the
respondent,   Williams   Brothers   Coal   Company   Incorporated
(Williams).   The petitions seek to impose a total civil  penalty
of $923.00 for  ten  alleged  violations  of the mandatory safety
standards  in  30  C.F.R. Part 75 of the Secretary's  regulations
governing underground  coal  mines.   Three  of  the  ten alleged
violative  conditions  were  characterized  as  significant   and
substantial  (S&S)  in  nature.[1]   These  matters were heard on
August 28, 2001, in Pineville, Kentucky.
     At  the beginning of the hearing, the parties  were  advised
that I would  defer  my  ruling  on  the  citations pending post-
hearing briefs, or, issue a bench decision  if the parties waived
their  right  to file post-hearing briefs.  Williams  waived  the
filing of post-hearing  briefs.   The Secretary waived the filing
of post-hearing briefs with respect  to Citation Nos. 7368778 and
7368080.  Consequently, these two citations were disposed of by a
bench decision.
     This written decision formalizes  the  bench decision issued
for  Citation  No.  7368778 and   7368080.  At the  hearing,  the
Secretary moved to vacate  Citation  No.  4509739.  The Secretary
elected  to  file  briefs  with  respect to the  remaining  seven
citations.  The Secretary's brief  has  been  considered  in  the
disposition of these matters.
     I.  Pertinent Case Law and Penalty Criteria
     This   decision  applies  the  Commission's  standards  with
respect  to  what   constitutes  a  significant  and  substantial
violation.  A violation  is  properly designated as S&S in nature
if,  based on the particular facts  surrounding  that  violation,
there  exists a reasonable likelihood that the hazard contributed
to by the  violation  will result in an injury or an illness of a
reasonably serious nature.   Cement  Division, National Gypsum, 3
FMSHRC 822, 825 (April 1981).  In Mathies  Coal  Co.,  6 FMSHRC 1
(January 1984), the Commission explained:
     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 [by the violation]  will  result  in  an
     injury; and (4) a reasonable likelihood that the injury
     in question will be of a reasonably serious nature.
6 FMSHRC at 3-4; see also Austin Power Co. v. Secretary, 861 F.2d
99,  104-05  (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987) (approving Mathies criteria).
     In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(August 1985),  the  Commission explained its Mathies criteria 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.,  Inc.,  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  Co., Inc., 6 FMSHRC 1866,
     1868 (August 1984).  (Emphasis in original).
     The   Commission   subsequently   reasserted    its    prior
determinations  that  as part of any "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).
     With respect  to  the imposition of penalties, this decision
applies the statutory civil penalty criteria in section 110(i) of
the Act, 30 U.S.C.  820(i),  to  determine the appropriate civil
penalty to be assessed.  In this regard, section 110(i) provides,
in pertinent part:
     The Commission shall consider the operator's history of
     previous  violations,  the  appropriateness   of   such
     penalty  to  the  size  of the business of the operator
     charged, whether the operator was negligent, the effect
     on the operator's ability  to continue in business, the
     gravity  of the violation, and  the  demonstrated  good
     faith of the  person  charged  in attempting to achieve
     rapid compliance after notification of a violation.
     Applying the general statutory penalty criteria, Williams
is a small mine operator with 11 employees that is subject to
the jurisdiction of the Mine Act. (Gov. Ex. 1; Tr. 20).
Williams has a  good compliance history in that the vast
majority of violative conditions  cited  during the two year
period preceding the issuance of the citations in issue were
designated as non-S&S. (Gov.  Ex.  3;  Tr. 21-24).  It is not
contended that the $923.00 civil penalty initially proposed by
the Secretary will negatively impact Williams' ability to
continue in business.  (Gov. Ex. 1). Finally, Williams abated
the cited conditions in a timely manner.
               II.  Findings and Conclusions
          A.  Docket No. KENT 2001-137
               1.  Citation No. 7368778
     Mine Safety and  Health  Administration  Inspector  Danny P.
Curry conducted a routine AAA inspection of Williams' No.  3 Mine
facility  on  October  26,  2000.   Curry  was accompanied by his
supervisor,  Ken  Murray,  and  Williams'  Mine  foreman,   Terry
Williams.   The  inspection  party   traveled the No. 3 beltline.
The  No.  3 Mine is a low seam mine with  entry  heights  ranging
between approximately  35 to 37 inches.  (Tr. 40).  The mandatory
safety standard in section  75.1100-2(b),  30  C.F.R.   75.1100-
2(b), governing the location of fire fighting equipment  at  belt
conveyors requires fire hose outlets along each belt conveyor  at
a minimum of 300-foot intervals and at tailpieces.  Although fire
hose outlets were installed at 300-foot intervals, Curry
noted  there  was  no  fire  hose  outlet  at  the No. 3 conveyor
tailpiece as required by section 75.1100-2(b).   The closest fire
hose outlet was approximately 50 feet outby the No.  3 tailpiece.
(Gov.  5;  Tr.  36).   Consequently,  Curry  issued Citation  No.
7368778  for  a  non-S&S  violation  of  this  mandatory   safety
standard.[2]  (Gov. Ex. 4).  Although Curry was concerned that  a
lack  of  a  tailpiece water outlet would inhibit the capacity to
fight a fire caused  by  over-heated  bearings  at the tailpiece,
Curry did not consider the cited condition to be a serious hazard
because  there  were  adequate fire hose outlets along  the  full
length of the beltline.   The  Secretary  proposed a $55.00 civil
penalty for this violation.
     On cross examination, Curry conceded that he did not measure
the distance from the tailpiece to the closest  hose  outlet  and
that  the distance may have been closer to 40 feet.  (Tr. 47-48).
Curry also  conceded  there  may  have been a water deluge system
that sprayed water at the point where  the  No. 4 beltline dumped
onto  the  No. 3 tailpiece.  (Tr. 46, 50-52).   Hufford  Williams
testified that  the  fire  deluge  system  is  heat activated and
serves  as  a sprinkler system in the event of a tailpiece  fire.
In addition,  Williams opined that it is safer and more effective
to locate the tailpiece  hose  outlet  a short distance away from
the tailpiece so that the hose connection can be safely made away
from the heat of a fire, and so that the  hose  can  be  extended
from the outlet to a safe distance from the fire location.   (Tr.
57-59).   In  this regard, Williams testified that fire hoses are
as long as 500 feet in length.  (Tr. 58).
     As previously  noted,  the  parties  waived  their filing of
post-hearing   briefs  with  respect  to  Citation  No.  7368778.
Consequently, the  following  is  the edited version of the bench
decision issued at the hearing:
     The Mine Act is a strict liability statute.  Thus, mine
     operators are liable without regard  to  fault.  Sewell
     Coal  Co.  v.  FMSHRC,  686 F. 2d 1066, 1071 (4th  Cir.
     1982); Allied Products Co.  v.  FMSHRC,  666  F.2d 890,
     893-94  (5th  Cir. 1982); Western Fuels-Utah, Inc.,  10
     FMSHRC  256,  260-61   (March  1988),  aff'd  on  other
     grounds, 870 F.2d 711 (D.C. Cir. 1989); Asarco, Inc., 8
     FMSHRC 1632, 1634-36 (November  1986),  aff'd, 868 F.2d
     1195 (10th Cir. 1989).
     In this instance, Williams concedes that  there  was no
     water hose outlet at the No. 3  tailpiece  as required
     by  section  75.1100-2(b).  Thus,  the  Secretary  has
     demonstrated  the  fact  of  occurrence of  the  cited
     violation.  However, while it is true that the water
     deluge system does not satisfy the cited mandatory
     safety standard, the heat activated water sprinkler
     system is a mitigating  factor.  It is also noteworthy
     that  Williams  had complied with the 300-foot interval
     for water outlets along the beltline that resulted in
     an outlet within 40 to  50 feet of the tailpiece.
     Finally,  although  the  standard literally requires  a
     fire hose outlet "at the tailpiece,"  it  is clear that
     section  75.1100-2(b)  contemplates  that  the   outlet
     should be located within a reasonably short distance of
     the  tailpiece  to allow firefighters to safely connect
     the fire hose as  well  as  to  permit  the  hose to be
     extended  and  positioned to safely extinguish a  fire.
     While the closest water outlet located approximately 40
     feet away from the  tailpiece  does not strictly comply
     with the "at the tailpiece" terms  of  section 75.1100-
     2(b),   the   negligence  associated  with  the   cited
     condition is, at best, minimal.  Accordingly, given the
     strict liability  nature  of the Mine Act's enforcement
     scheme, a civil penalty of  $30.00 shall be imposed for
     Citation No. 7368778.
(Tr. 67-71).
          B.  Docket No. KENT 2001-136
               1.  Citation No. 7368744
     During the course of a routine  AAA  inspection of Williams'
No.  3  Mine on April 25, 2000, Curry observed  the  No.  3  belt
conveyor  that  is  located  in  the  No. 5 entry.  The waterline
servicing the No. 3 belt was located in  the No. 6 entry parallel
to the No. 3 belt.  Curry noted that two fire  valve outlets were
located at 300-foot intervals at the waterline in the No. 6 entry
approximately  60 feet from the No. 3 belt in the  No.  5  entry.
(Gov. Ex. 7).  The  mandatory safety standard in section 75.1100-
2(b) requires water valves  to be installed at 300-foot intervals
along the beltline.  Section  75.1100-2(b) further specifies that
"[w]aterlines  may  be  installed  in  entries  adjacent  to  the
conveyor entry belt as long  as the outlets project into the belt
conveyor entry."
     As a result of his observations  that these two water valves
did not project from the waterline in the  No.  6  entry into the
No. 5 belt entry, Curry issued Citation No. 7368744 citing a non-
S&S  violation  of  section  75.1100-2(b).  (Gov. Ex. 6).   Curry
testified the location of the  water  valves in an adjacent entry
would make it difficult for beltmen to  connect  a  fire  hose to
extinguish a belt fire because of the low seam conditions.   (Tr.
78).   However, Curry designated the violation as non-S&S because
". . . the  [No. 3] beltline was well-cleaned, rock dusted, [and]
the entire area  was damp, which reduced the likelihood of a fire
occurring."  (Tr. 79).
     Curry attributed  the  violation to Williams' high degree of
negligence because a similar citation had been issued in December
1999 for the same failure to  extend 23 water valves into the No.
5 belt entry.  (Tr. 103-04).  Abatement of that citation was held
in  abeyance pending Williams' petition  for  modification.   The
petition for modification was still pending, and the abatement of
the December  1999  citation  was  suspended,  when  Curry issued
Citation No. 7368744  on April 25, 2000, for two additional water 
valves that were installed  off  the waterline in the No. 6 entry
as the No. 3  belt  advanced.  Despite  the pending  modification 
petition, and  the abeyance of the abatement  for  the  previous  
citation, Curry established April  28,  2000,  as the abatement 
for the Citation No. 7368744. (Tr. 92-93).  Citation No. 7368744 
was terminated  on May 1, 2000, after the two water outlets were 
extended into the No. 3 belt entry. (Gov. Ex. 22). The Secretary 
seeks  to  impose  a  $200.00 civil  penalty  for Citation No.
7368744.
     On  cross examination, Curry admitted  discussing  Williams'
water outlet locations with Roy Compton, MSHA's Assistant 
District Manager in District 6 Pikeville,  after  the December 
1999 citation was written. Curry testified  Compton instructed  
him  to  indefinitely  extend  the abatement date  for the 
December 1999 citation until the petition for modification  was  
decided.   (Tr.  82-83; 132-33).  However, Compton was replaced 
by Acting District Manager Anthony Webb who, shortly before 
Curry's April 2000 inspection,  directed Curry "to take  some  
action"  to  ensure  that the water valves  would  be extended  
into the belt entry because  "the  petition  [was]  not going to 
be  approved." (Tr. 93). Consequently, Curry issued Citation No.
7368744 on April 25, 2000.   Although  the Secretary could not 
provide the date the petition for modification for the 23 water  
outlets was denied, it was ultimately denied after Citation
No. 7368744 was terminated on May 1, 2000,  after the subject 
two water outlets were extended into the No. 3 belt entry. (Gov.
Ex. 22; Tr. 150-54).
     The Secretary, relying on C F &I Steel Corp., 5 FMSHRC 1376,
1378  (July  1983)  (ALJ),  asserts that a pending  petition  for
modification does not preclude  the  Secretary from enforcing the
subject mandatory safety standard.  In  C  F  &  I, Judge Carlson
noted that, in the absence of an application for temporary relief
filed pursuant to section 44.16, 30 C.F.R.  44.16,  there  is no
administrative suspension of enforcement pending resolution of  a
petition for modification.  Id.
     However,  unlike C F & I, in this instance, it is undisputed
that Hufford Williams  was  informed by MSHA's assistant district
manager Compton that Compton  had  decided to suspend enforcement
of section 75.1100-2(b) pending the  outcome  of the modification
petition.      Although  the  Secretary  contends  that   Compton
afforded Hufford  Williams  "personal favoritism,"  it is neither
contended nor shown that Compton's  suspension of the enforcement
of section 75.1100-2(b) was ultra vires.  (Tr. 132-55).  In fact,
suspension  of  abatement was understandable  given  the  non-S&S
nature of the cited  violative  condition.   Williams  relied  on
Compton's determination.
     Along  comes  Webb,  Compton's  successor,  who is no longer
willing  to  permit  Williams  to continue installing  the  water
valves  at the waterline in the No.  6  entry.   However,  equity
dictates  that Williams had a right to rely on Compton's decision
to withhold  enforcement  pending  a decision on the modification
petition  when Williams installed the  two  cited  water  valves.
These valves had to be installed as the beltline advanced.  These
two water valves were installed in the identical manner as the 23
previously  installed  water valves that were permitted to remain
under Compton's watch during the pendency of the petition.
     In the final analysis, Compton told Hufford Williams that it
was  permissible  to continue  installing  hose  outlets  at  the
waterline  in the No.  6  entry  until  MSHA  advised  otherwise.
Without advising  otherwise, Curry issued Citation No. 7368744 on
April 25, 2000.
     Webb's  decision   to,   in  effect,  retroactively  reverse
Compton's  decision  by reinstating  the  abatement  requirements
despite the continuing  pendency  of  the  modification petition,
constituted an abuse of discretion.  While, at the hearing, I was
initially inclined to affirm the citation and  reduce  the degree
of  negligence  based  on Hufford Williams' reliance on Compton's
directive, after further  deliberation,  I  have  concluded  that
Webb's  abuse  of  discretion  warrants  vacating  the  citation.
Accordingly, Citation No. 7368744 shall be vacated.
               2.  Citation No. 4509735
       At  the  hearing,  Hufford  Williams  stipulated  that the
approved  roof control plan for the No. 3 Mine generally required
the maximum  width  of crosscut entries to be 20 feet.  (Tr. 164-
65).  When such entries exceeded 20 feet in width additional roof
support consisting of  additional  roof  bolts  and  conventional
supports  was required.  (Tr. 163-64).  However, additional  roof
support in  areas more than 20 feet wide does not negate the fact
that the roof control plan has been violated.  (Tr. 166-67).
     MSHA Inspector  Jerry Bellamy, accompanied by MSHA Inspector
Michael Pruitt, inspected  Williams'  No.  3  Mine  on August 29,
2000.  Bellamy and Pruitt measured the last open crosscut between
the No. 1 and No. 2 entries and determined it was 21  to  23 feet
wide over a distance extending approximately 40 feet.  (Gov. Exs.
8,  23;  Tr. 165-66).  Consequently, Bellamy issued Citation  No.
4509735 citing a violation of section 75.220, 30 C.F.R.  75.220,
that requires  each  mine  operator  to  follow its approved roof
control plan.  (Gov. Ex. 8).  Bellamy characterized the violation
as  S&S  because there was a hazard of a sudden  roof  fall  that
could result  in  serious or fatal injuries.  (Tr. 166).  Bellamy
attributed the violation  to  a  moderate  degree  of  negligence
because   he  did  not  observe  any  additional  roof  bolts  or
additional  support.   The  Secretary  seeks  to  impose  a civil
penalty of $131.00 for Citation No. 4509735.
     Hufford Williams stipulated to the fact of the occurrence of
the violation admitting that the crosscut was mistakenly cut  too
wide.  (Tr. 231-32).  On cross-examination, Bellamy conceded that
the  cited  area  was the last break in the crosscut that had not
been scooped or rock  dusted.   Pruitt  gave  permission to Terry
Williams  to  scoop the area so that the floor could  be  cleaned
before timbers were set.  (Tr. 186).
     As noted Williams  has  stipulated  to  the fact of the roof
control plan violation.  Turning to the S&S issue,  it  is  clear
that it is reasonably likely that the additional stress caused by
the  additional  3  feet  of  width  that  exceeded  the  maximum
permissible 20 feet would have resulted in a roof fall within the
context  of continued mining operations.  In the event of a  roof
fall, it is  also  reasonably  likely  that  serious injury would
occur.  Thus the Secretary has demonstrated that it is reasonably
likely  that  the  hazard contributed to by the violation,  i.e.,
inadequately supported  roof,  will  result  in an event, i.e., a
roof  fall,  causing  serious  injury.   Accordingly,   the   S&S
designation in Citation No. 4509735 shall be affirmed.
     With  respect  to  Williams'  degree  of negligence, it is a
mitigating  factor  that Williams was prevented  from  installing
additional timbers because  the  last  break  in the crosscut had
just been completed and the crosscut had not been  scooped clean.
Consequently, the negligence attributable to Williams  is reduced
from  moderate  to  low.   Although  the gravity of the violation
remains serious given its S&S nature,  the  $131.00 civil penalty
proposed  by  the  Secretary  for Citation No. 4509735  shall  be
reduced to $75.00 in recognition  of  the reduction in the degree
of negligence.
               3.  Citation No. 4509739
     The  Secretary initially sought to  impose  a  $55.00  civil
penalty for  Citation No. 4509739.  However, the Secretary agreed
to vacate Citation No. 4509739 at the hearing.  (Tr. 538). The 
citation was  vacated  because  of  confusion  concerning the
method of determining which side  of  a return stopping was the 
positive pressure  side  that required plastering or mortared
jointing pursuant  to  the  mandatory  safety standard in section
75.333(e)(1)(i), 30 C.F.R.  75.333(e)(1)(i).
               4.  Citation No. 7368080
     During  the  course  of  his  August  30,  2000,  inspection
inspector Bellamy noted the weekly  examiner  had  failed to take 
methane and  oxygen  level readings at the #1 evaluation point  
(#1  E.P.)  in  the  bleeder designated  in  Williams'  approved 
ventilation plan because the roof in the vicinity was unsupported 
and the area was inaccessible.   (Gov.  Ex.  13).   Consequently, 
Bellamy  issued Citation  No.  7368080 citing a non-S&S violation 
of section 75.364,  30  C.F.R.   75.364,  that  requires  weekly 
methane examinations  of worked out areas.  (Gov. Ex. 12).  The 
violation was attributed  to  Williams' moderate degree of 
negligence.  The Secretary  proposes a  $55.00  civil  penalty  
for  Citation  No. 7368080.
     At  the   hearing,  Hufford  Williams  stipulated  that  the
location of the  #1  E.P.  specified  in the approved ventilation
plan was inaccessible.  (Tr. 303).  Williams  explained  that  he
didn't  realize  that the area in the vicinity of the #1 E.P. had
not been roof-bolted because the coal seam was extremely low when
he agreed to designate  the  area  as  an evaluation point.  (Tr.
306-08).  Williams admitted he did not file  to modify the mine's
ventilation  plan  by  designating a new evaluation  point  until
after Citation No. 7368080 was issued.  (314-15).
     The parties waived  briefing  on this citation.  Inasmuch as
Williams admits the fact of the violation,  a  bench decision was
issued affirming the citation as issued.  (Tr. 315-16).   A civil
penalty of $55.00 shall be assessed for Citation No. 7368080.
               5.  Citation No. 7368081
     Bellamy  observed  the bleeder system during his August  30,
2000, inspection.  Bellamy  noted  five separate areas, or rooms,
in the bleeder that were not roof-bolted  or otherwise supported.
(Gov. Ex. 14-A).  However, Bellamy testified that one of the five
areas  was  in fact roof-bolted.  (Tr. 332).   These  unsupported
rooms were in the farthest areas of penetration. Section 75.220  
requires  a  mine operator to follow its approved roof  control 
plan.  The roof control  plan  required  all  mined areas to  be  
roof-bolted unless they were dangered-off.  Bellamy testified 
these  rooms  should have been roof-bolted because they may have 
required ventilation  curtains  to  be  hung  in  them. Bellamy  
stated  there  was nothing to prevent someone from going back 
under these areas with  the exception of three small timbers
with no danger board on them.  (Tr. 335).
     Bellamy testified the proper  way  to  prevent  miners  from
going  under  these  unsupported areas was to block the entrances
with cribs and timbers  and  to hang a proper danger board.  As a
result of his observations, Bellamy  issued  Citation No. 7368081
citing  an  S&S  violation  of  section 75.220.  (Gov.  Ex.  15).
Bellamy attributed the violation  to Williams' moderate degree of
negligence.  Following a Manager's  Safety and Health Conference,
the citation was ultimately modified  to  a non-S&S violation and
Williams' negligence was lowered from moderate to low.  (Gov. Ex.
15, p.2).  The citation was abated after the  subject unsupported
rooms  were  dangered-off.   (Tr. 339).  The Secretary  seeks  to
impose a $55.00 civil penalty.
     At the hearing the Secretary  attempted  to distance herself
from  Gerald  McMasters,  the  MSHA  Conference  and   Litigation
Specialist  who  was responsible for deleting the S&S designation
and reducing the degree of Williams' negligence.  The Secretary's
belated motion, proffered  at the hearing, to modify the citation
back to S&S and to increase  Williams  degree  of  negligence was
denied.  (Tr. 342-46).
     Hufford   Williams   testified   that   the  coal  seam  was
approximately  32 inches high with an eight inch  layer  of  jack
rock on top.  Ordinarily, the jack rock is removed with the coal.
However, in these  remote  areas of deepest penetration that were
not required to be traversed,  the  coal  was removed leaving the
jack rock on the roof.  In these areas the  jack  rock had fallen
to  the floor leaving the unsupported area with approximately  24
inches in height.  Williams testified that since these areas were
already  inaccessible,  further  actions  to danger the areas off
were not required.  In essence, Williams disputed the Secretary's
interpretation of the roof control plan that all mined areas must
be roof-bolted even if they are inaccessible.
     Under the Mine Act's statutory scheme,  the  Commission  and
its  judges  are  required to accord deference to the Secretary's
interpretations  of   the   law   and  regulations  provided  the
interpretations  are reasonable.  Sec'y  of  Labor  v.  Cannelton
Indus., Inc., 867  F.  2d 1432, 1435 (D.C. Cir. 1989).  Here, the
dispositive question is  whether  the  Secretary's application of
the broad terms of a roof control plan in a low seam coal mine to
require all mined areas to be roof-bolted, even if the very small
dimensions of some areas render them physically  inaccessible, is
reasonable.
     In  applying  broad  regulatory  provisions, the  Commission
looks to whether "a   reasonably   prudent  person  familiar with 
the factual circumstances  surrounding  the  allegedly hazardous 
condition, including  any facts  peculiar to the mining industry,
would recognize  a  hazard  warranting  corrective action within  
the purview of the applicable regulation."  Alabama  By-Products
Corp.,  4  FMSHRC   2128,   2129   (December  1982).   Given  the
circumstances  of  this case, the Secretary's  interpretation  is
counter-intuitive.    Attempting   to   roof   bolt   very   low,
inaccessible  areas  that  are in danger of collapse exposes roof
bolting personnel to unnecessary hazards.
     Consequently, it is unreasonable  to  conclude that Williams
should have recognized that MSHA required inaccessible  areas  to
be  roof-bolted  under the roof control plan.  This conclusion is
consistent with the  MSHA's Safety and Health Conference official
who  deleted the S&S designation  in  apparent  recognition  that
these  unsupported  areas  were  not  hazardous  in view of their
inaccessibility.   Accordingly,  Citation  No. 7368081  shall  be
vacated.
               6.  Citation No. 7368085
     Bellamy and Pruitt traveled the full lengt  of the intake
primary  escapeway  on  August  30,  2000.  The  escapeway is 
approximately 38 inches in height.  Bellamy noted there was a 
water accumulation of  approximately  six inches deep for a
distance of approximately 120 feet stretching from the No. 3 
head drive  to  outby the fan. Bellamy also noted approximately 
six inches of fallen  draw  rock from the No. 3 head all the 
way out to the surface, a distance of approximately  2,000  
feet.   (Tr.  413-15).   As a result of his observations,  
Bellamy  issued  Citation  No.  7368085  citing  a  violation  
of  the  mandatory  safety standard in section 75.380(d)(1), 
30 C.F.R.  75.380 (d)(1). (Gov.  Ex.  16).  This mandatory  
safety standard requires, in pertinent part, that each
escapeway must  be  "maintained  in  a  safe  condition to 
always assure passage of anyone, including disabled persons[.]"
Although the  violation  was  designated  as S&S in nature,  
Citation  No. 7368085 was subsequently modified  to delete 
the S&S designation. (Gov.  Ex.  16,  p.2).  The Secretary 
proposed  a  $55.00  civil penalty for Citation No. 7368085.
     Although Hufford Williams asserts the water accumulation was
40 feet in length rather than  the  120  feet alleged by Bellamy,
Williams  does  not  deny that the primary intake  escapeway  was
cluttered  with fallen  draw  rock.   In  this  regard,  Williams
admitted:
     The secondary  escapeway  is  a  neutral  entry that we
     travel beside the belt.  If I had a man injured, that's
     the  way I'd bring him out, the secondary escapeway  on
     the  battery-powered  personnel  carrier.   I  wouldn't
     bring  him down the intake.  Matter of fact, I have had
     a couple  of men with minor injuries and that's the way
     we bring them down the neutral entry.
(Tr. 416).
     With  respect   to  whether  the  facts  support  the  cited
violation, the Commission  has  determined  that  the language in
section  75.380(d)(1)  is  "plain  and  unambiguous" in  that  it
imposes on an operator an obligation to maintain  escapeways that
pass  the general functional test of "passability."   Utah  Power
and Light,  11 FMSHRC 1926, 1930 (October 1989).  In this regard,
escapeways must  be  passable  for  everyone,  including disabled
persons.   In this case, Williams has conceded that  the  neutral
secondary escapeway  rather than the primary escapeway was relied
upon to remove injured  personnel.   Consequently,  the Secretary
has  satisfied  her  burden of demonstrating a violation  of  the
cited mandatory standard. Accordingly, Citation No. 7368085 shall 
be affirmed  and  Williams shall pay the $55.00 civil penalty 
initially proposed by the Secretary.
               7.  Citation No. 7368086
     Inspector Bellamy examined the weekly  examination  book  on
August  31,  2000.   Section  75.364(h),  30  C.F.R.  75.364(h),
requires  that  at  the  completion of any shift during  which  a
portion of the weekly examination  is  conducted,  all  hazardous
conditions  found  during  the  examination,  and  the corrective
actions,  taken must be recorded in the examination book  by  the
examiner.   Bellamy  examined the record book to determine if the
hazardous conditions he  observed the previous day were recorded.
Bellamy  determined  the rooms  of  deepest  penetration  in  the
bleeder that were unsupported  and not dangered-off that were the
subject of Citation No. 7368081 were not noted in  the  book. In 
addition,  Bellamy noted that mined out rooms in  excess  of  20 
feet that lacked line curtains as required  by section 75.333(g), 
30 C.F.R.  75.333(g), were  not  recorded  in  the  examination  
book. To maintain adequate ventilation, in the absence  of a 
crosscut, section 75.333(g) requires  line curtains in a room  
where  mining  has  been discontinued and the room extends more 
than 20 feet from the inby  rib.  (Tr. 438-39). Bellamy   had   
issued  a  citation  for  the  section  75.333(g) violations the 
previous  day  that  was not contested by Williams and is not in 
issue in these matters.
     Based on Bellamy's examination of  the  weekly  record book,
Bellamy issued Citation No.  7368086 citing a non-S&S violation 
of the weekly examination requirements  in  section  75.364(h). 
(Gov. Ex. 17). The cited violation was attributable to Williams' 
moderate negligence.  The Secretary  seeks  to impose  a $55.00 
civil  penalty  for  this citation.
     In defense of the citation, Hufford  Williams testified that
the  weekly  examiner  did  not believe the conditions  cited  by
Bellamy were hazardous with the exception of two rooms which were
driven 21 and 22 feet without  curtains.   As  previously  noted,
Williams  stated he did not contest the citation concerning these
two rooms and  that  the civil penalty for that citation had been
paid.
     Having vacated Citation No. 7368081 in this decision because
the unsupported rooms were not hazardous in that they were remote
and inaccessible, the  weekly  examiner  was  not  obliged  under
section  75.364(h)  to  note  the  conditions in the record book.
However, the lack of the requisite curtains  specified in section
75.333(g),  which  Williams  candidly  concedes was  a  violative
condition requiring corrective action, does  provide  an adequate
basis   for   establishing   a   section   75.364(h)   violation.
Consequently, Citation No. 7368086 shall be affirmed and Williams
shall  pay  the  $55.00  civil penalty initially proposed by  the
Secretary.
               8.  Citation No. 7368775
     Inspector Curry inspected  the  No.  3  Mine  on October 19,
2000.  Curry traveled the No. 001 MMU and noted that the No. 3 
right crosscut was being cut from  the  No.  4  to  the No. 3
entry.  In driving the crosscut, Williams had left a large  area
of roof into the No. 3 entry that was left unsupported.  (Gov.  
Ex. 19).   Curry was concerned that Williams  had  failed  to 
post a physical  warning  device  or  a physical barrier at the 
last row of bolts in the No. 3 entry that would  have prevented 
a miner's  exposure  to  this  newly  mined section  of  
unsupported roof.  (Tr. 449-51, 457-58, 465, 468-70, 474-78).   
At the  time  Curry  observed  this  condition,  the continuous
miner was mining  in  the  No.  4  entry  and the roof bolting  
machine  was  in  the  No.  5  entry rather than in  the
vicinity of the unsupported area in the No.  3  entry.  (Tr. 456,
463, 465).
     As a result of his observations, Curry issued  Citation  No.
7368775  citing  a  violation of the mandatory safety standard in
section  75.208, 30 C.F.R.    75.208,  that  requires  "[e]xcept
during the  installation  of  roof supports, the end of permanent
roof support shall be posted with a readily visible warning, or a
physical  barrier  .  .  .  to  impede  travel  beyond  permanent
support."   (Gov. Ex. 18).  Curry  attributed  the  violation  to
Williams' moderate  degree  of  negligence.  Curry considered the
violation to be S&S because of the  extended  period  of time the
roof had been left unsupported and because of the likelihood of a
miner's  exposure  to  a roof fall.  (Tr. 466-69).  The Secretary
seeks to impose a $131.00 civil penalty for Citation No. 7368775.
     In defense of the citation,  Hufford  Williams  disputed the
unsupported roof condition described by Curry.  However, Williams
admitted  that  he  had  no  first  hand  knowledge of the mining
sequence  in  issue.  (486-87).  Relying on the  account  of  the
events given to him by his foreman, who did not testify, Williams
contends  the  last  break  in  the  crosscut  penetrated  the
No.   3   entry   that   was   already   roof-bolted.   (494-95).
Alternatively,  Williams   asserts   the   "except   during   the
installation  of  roof  supports"  exception to the dangering-off
requirement  in  section 75.208 applies  because  the  continuous
miner had just finished his cut when Curry interrupted the mining
cycle before the continuous  miner  could  back  out to allow the
roof bolter to pass into the crosscut.  (Tr. 481-83).
     In  resolving  the  fact  of the violation question,  it  is
significant  that  Curry  is  the  only   person  with  firsthand
knowledge who testified.  Thus, Hufford Williams'  assertion that
the  break  in the crosscut in the No. 3 entry was already  roof-
bolted cannot  be credited.  With respect to Williams alternative
argument that Curry interrupted the roof bolting mining sequence,
Curry credibly testified  that the roof bolter was bolting in the
No. 5 entry while the continuous  miner  was  mining in the No. 4
entry.  (Tr. 485).  Thus, Curry testified that  the  area  beyond
permanent roof support was left unmarked for a period of 20 to 25
minutes  based  on  the activities of the continuous miner in the
No.  4 entry.  (Tr. 484-85).   Consequently,  the  Secretary  has
demonstrated  the  fact of occurrence of the cited section 75.208
violation.
     With respect to the S&S issue applying the Mathies criteria,
it is apparent that  the  cited  violation,  i.e., the failure to
post   warnings   to  prevent  travel  under  unsupported   roof,
contributes to the  discrete  safety hazard of a miner's exposure
to unsupported roof.  It is also  obvious,  that  if  a roof fall
were  to  occur,  serious,  if  not  fatal  injuries, will occur.
Finally,  an  S&S  finding  also requires a finding  that  it  is
reasonably likely that the hazard  contributed  to will result in
an event, i.e., a roof fall, in which there is a  serious injury.
U.S.  Steel,  6  FMSHRC  at  1836.   Given  the  fact  that   the
unsupported  roof  area  was  located in an active mine area with
miners present, the Secretary has  demonstrated the S&S nature of
the  violation  in  that  a serious, if  not  fatal,  injury  was
reasonably likely to occur.
     Williams' violation of  section 75.208 is serious in gravity
and is attributable to no more  than moderate negligence inasmuch
as the mining cycle had not been  completed  and  the roof bolter
was  in  the  vicinity  of  the  unsupported  area.  Accordingly,
Citation No. 7368775 shall be affirmed and Williams shall pay the
$131.00 civil penalty sought to be imposed by the Secretary.
               9.  Citation No. 7368777
     Section   75.1722(b),  30  C.F.R.    75.1722(b),   of   the
Secretary's mandatory  safety  standards  requires that guards at
conveyor drives must extend a distance sufficient  to  prevent  a
person from reaching behind the guard and becoming caught between
the belt and the pulley.  Inspector Curry observed the No. 4 belt
conveyor  on  October 26, 2000.  Curry noted that, although there
was adequate guarding  of  the  drive  sprockets  and  the  power
roller, the guard did not extend in front of the discharge roller
which  measured  approximately 20 inches by 20 inches.  (Gov. Ex.
21, p.3).  As a consequence,  Curry  issued  Citation No. 7368777
citing an S&S violation of the provisions of section  75.1722(b).
(Gov.  Ex.  20).   Curry  considered  the violation to be S&S  in
nature because a beltman or a pre-shift  examiner  could  contact
the exposed discharge roller and sustain serious injury.  In this
regard,  Curry  explained  that  low  seam  coal   increased  the
likelihood  of  contact  with  the  unguarded  roller  because  a
potential  victim would be at face level with the exposed roller.
(Tr. 519, 527-28).   The  violation  was  attributed to Williams'
moderate degree of negligence.  The Secretary  seeks  to impose a
civil penalty of 131.00 for Citation No. 7368777.
     Once  again Hufford Williams candidly conceded that  he  did
not actually  see  the  cited  condition.   However, based on the
information provided to him by his foreman, Williams admitted the
guard did not extend sufficiently to cover the end of the roller.
(Tr. 524-26).  Consequently, Williams stipulated  to  the fact of
the violation and only contests the S&S designation.  (Tr.  523).
Williams  contends  that  low  seam  coal  minimizes  the risk of
inadvertent  contact  through  stumbling because miners crawl  or
work from their knees.  (Tr. 523-24).
     As noted, a violation is properly  designated as significant
and  substantial  if  it  is reasonably likely  that  the  hazard
contributed to by the violation  will result in an event in which
there is serious injury.  The commission  has  emphasized that 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,  6  FMSHRC  at  1868.    (Emphasis  in  original).  Curry
testified that belt personnel are in proximity to the beltline on
a  daily  basis.  The beltline is also  examined  by  the  weekly
examiner.
     With regard  to the conflicting testimony concerning whether
low seam coal increases  the  risk  of contact and injury, I note
that the confines of low entries limits  maneuverability  and the
freedom  of  movement.   Under  such circumstances, erring on the
side of caution, I find that an unguarded roller operating in low
seam coal increases the likelihood  of  inadvertent  contact  and
serious  injury.   Consequently,  on  balance,  the Secretary has
satisfied  her  burden of demonstrating that the cited  violative
condition was S&S in nature and serious in gravity.
     With regard  to  the  issue of negligence, I note that it is
undisputed that the conveyor  was  guarded although the guard was
approximately 20 inches too short.   In view of the fact that the
conveyor  was  almost  guarded  in its entirety,  the  degree  of
negligence  attributable  to  Williams   shall  be  reduced  from
moderate  to  low.  Accordingly, Citation No.  7368777  shall  be
affirmed and Williams  shall pay a $100.00 civil penalty for this
citation in recognition  of  a  reduction  in Williams' degree of
negligence.
                              ORDER
     Consistent with this Decision, IT IS ORDERED  that  Citation
No. 7368778 in Docket No. KENT 2001-137 IS AFFIRMED.
     IT  IS  FURTHER ORDERED that Citation Nos. 4509735, 7368080,
7368085, 7368086, 7368775 and 7368777 in Docket No. KENT 2001-136
ARE AFFIRMED.
     IT IS FURTHER  ORDERED  that  Citation Nos. 7368744, 4509739
and 7368081 in Docket No. KENT 2001-136 ARE VACATED.
      IT IS FURTHER ORDERED that Williams  Bothers  Coal  Company
Incorporated  shall  pay  a  total  civil  penalty  of $501.00 in
satisfaction of Citation Nos. 7368778, 4509735, 7368080, 7368085,
7368086, 7368775 and 7368777.  Payment is to be made  to the Mine
Safety  and Health Administration within 40 days of the  date  of
this Decision.   Upon timely receipt of payment, Docket Nos. KENT
2001-136 and KENT 2001-137 ARE DISMISSED.
                               Jerold Feldman
                               Administrative Law Judge
Distribution:
J.  Phillip  Giannikas,  Esq.,  Office  of  the  Solicitor,  U.S.
Department  of  Labor,  2002  Richard  Jones  Rd.,  Suite  B-201,
Nashville, TN 37215 (Certified Mail)
Hufford Williams,  Williams  Brothers  Coal  Company,  Inc.,  258
Cantrell Road,
Mouthcard, KY 41548 (Certified Mail)
 /hs
**FOOTNOTES**
     [1]: A  violation  is  properly  designated as significant
and substantial "if based upon the particular facts surrounding
that violation, there  exists a reasonable likelihood that the
hazard contributed to [by  that  violation] will result in an 
injury or illness of a reasonably serious nature."  National 
Gypsum  Co., 3 FMSHRC 822, 825 (April 1981).
     [2]:  Curry  erroneously  cited  the  No. 4 conveyor
tailpiece instead  of  the No. 3 tailpiece in Citation No.  
7368778. At the hearing the Secretary made an unopposed motion 
to amend the citation to reflect the  No. 3 tailpiece.  The 
Secretary's motion was granted because Terry Williams had 
accompanied Curry during the inspection and Williams does not 
contend  that  it  was  surprised or otherwise prejudiced by
the Secretary's amendment. (Tr. 32-35).