.
NEWMONT GOLD COMPANY
October 28, 1997
WEST 95-434-M

          FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-3577/FAX 303-844-5268

                           October 28, 1997

SECRETARY OF LABOR,           :     CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :     Docket No. WEST 95-434-M
            Petitioner        :     A.C. No. 26-00500-05542
                              :
        v.                    :     Docket No. WEST 95-467-M
                              :     A.C. No. 26-00500-05543
                              :
NEWMONT GOLD COMPANY,         :     South Area - Gold Quarry
            Respondent        :

                                 DECISION

Appearances: Jeanne M. Colby, Esq., and Mark R. Malecki, Esq., Office
             of the Solicitor, U. S. Department of Labor, San Francisco,
             California and Arlington, Virginia, for Petitioner;
             Henry Chajet, Esq., and David Farber, Esq., Patton Boggs, 
             Washington, D.C., for Respondent.

Before:	Judge Manning

	These cases are before me on petitions for assessment of penalties 
filed by the Secretary of Labor, acting through the Mine Safety and 
Health Administration ("MSHA"), against Newmont Gold Company ("Newmont"),
pursuant to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.  815 and 820 (the "Mine Act").  The petitions
allege four violations of the Secretary's safety and health regulations.
A hearing was held in Elko, Nevada, and expert testimony was taken in
Falls Church, Virginia.  The parties presented testimony and documentary
evidence, and filed post-hearing briefs.

I.  FINDINGS OF FACT  

	A.		The Citations and Orders

	1.  On March 13, 1995, MSHA Inspector Michael Drussel issued Citation
No. 4140248 at the South Area - Gold Quarry (the "mine") in Eureka County,
Nevada, under section 104(a) of the Mine Act alleging a violation of 30
C.F.R.  56.20011.  The condition or practice section of the citation states:

          The old screen removed from the ZADRA was placed near the
		  containment area at the AARL building.  Visible mercury was 
          on the screen.  No warning signs were posted warning of the 
          hazard.

The inspector determined that it was unlikely that the alleged violation 
would cause an injury or illness and that it was not of a significant and 
substantial nature ("S&S").  He determined that the violation was caused 
by Newmont's moderate negligence.  The Secretary proposes a penalty of
$50.00 for the alleged violation.  Section 56.20011 provides as follows:

          Areas where health or safety hazards exist that are 
          not immediately obvious to employees shall be barricaded, or 
          warning signs shall be posted at all approaches.  Warning signs 
          shall be readily visible, legible, and display the nature of the 
          hazard and any protective action required.

	2.  On March 14, 1995, Inspector Drussel issued Citation No. 4140245
at the mine under section 104(d)(1) of the Mine Act alleging a violation
of 30 C.F.R.  56.20014.  The condition or practice section of the citation
states:

          The office in the AARL building contained mercury 
          vapor as measured with a Jerome mercury vapor analyzer.  The 
          average reading was 23.3 _g/m3.  The company routinely takes six 
          Jerome readings a day in this office as part of [its] mercury 
          monitoring program.  These readings showed mercury has been 
          present in this office.  Visible mercury was found on the 
          desktop on February 28, 1995.  The AARL operator was required to 
          use this office for eating his lunch.  No person shall be 
          allowed to consume food or beverages in any area exposed to a 
          toxic material.  This is an unwarrantable failure.

     The inspector determined that it was reasonably likely that the
alleged violation would cause an injury or illness and that it was S&S.
He determined that the violation was caused by Newmont's high negligence.
The Secretary proposes a penalty of $1,000.00 for the alleged violation.
Section 56.20014 provides as follows:

          No person shall be allowed to consume or store food or 
          beverages in a toilet room or in any area exposed to a toxic 
          material.

	3.  On March 14, 1995, Inspector Drussel issued Order No. 4140246 at
the mine under section 104(d)(1) of the Mine Act alleging a violation of
30 C.F.R.  56.20014.  The condition or practice section of the citation
states:

          The lunchroom for the ZADRA employees contained 
          mercury vapors as measured with a Jerome mercury vapor 
          analyzer.  The average reading was 22.2 _g/m3.  The company 
          routinely takes six Jerome readings a day in this lunchroom as 
          part of [its] mercury monitoring program.  These readings show 
          that mercury vapors have been present in this lunchroom.  The 
          ZADRA employees were required to use this lunchroom for eating 
          their lunch.  No person shall be allowed to consume food or 
          beverages in any area exposed to a toxic material.  This is an 
          unwarrantable failure.

     The inspector determined that it was reasonably likely that the
alleged violation would cause an injury or illness and that it was S&S.
He determined that the violation was caused by Newmont's high negligence. 
The Secretary proposes a penalty of $1,200.00 for the alleged violation.

	4.  On March 14, 1995, Inspector Drussel issued Order No. 4140247 at 
the mine under section 104(d)(1) of the Mine Act alleging a violation of
30 C.F.R.  56.20011.  The condition or practice section of the citation
states:

          The old scrubber removed from the AARL was cleaned 
          then tested for mercury contamination.  This scrubber was stored 
          at the boneyard.  Mercury contamination test results received in 
          November 1994 showed mercury contamination.  The scrubber was 
          not removed from the boneyard or marked of the hazard.  When the 
          scrubber was inspected to show visible mercury, Jerome readings 
          showed mercury vapors present.  This is an unwarrantable failure.

     The inspector determined that it was unlikely that the alleged 
violation would cause an injury or illness and that it was not S&S.  He 
determined that the violation was caused by Newmont's high negligence. 
The Secretary proposes a penalty of $1,500.00 for the alleged violation.

	B.		Background

	After gold-bearing rock is excavated at the mine, Newmont uses a complex
benefaction process to remove the gold from the host rock.  The procedure
used to separate the gold from the rock includes, among other things, a 
cyanide leach process.  As part of that process, carbon is impregnated
with gold solution and then sent through the "carbon-handling" area, which
consists of the AARL and ZADRA facilities.  In the AARL facility, gold is
chemically stripped from the carbon for further refining.  In the ZADRA 
facility, the carbon is sized for reuse.  Mercury is found in the
gold-bearing rock at the mine.  As a consequence, mercury is generated 
during the carbon-handling process.  The mercury that is present is 
elemental mercury.  Elemental mercury is commonly used in thermometers,
thermostats, and batteries.  It vaporizes quickly in warm conditions and,
as discussed below, is harmful in its vaporized form.  In contrast, organic 
mercury compounds are readily absorbed by dermal contact and through 
ingestion.  Organic mercury compounds and inorganic mercury salts are
not present at the mine and are not involved in these cases.  Except 
where I state otherwise, whenever I use the word "mercury" in this 
decision, I am referring to elemental mercury.

	II. SUMMARY OF THE PARTIES' ARGUMENTS

	A.  The Citation and Order Alleging Violations of Section 56.20014

		1.  The Secretary

	The Secretary argues that section 56.20014 is a performance standard 
that requires the Secretary to establish two elements to prove a violation.
First, she must establish that the area cited was a toilet room or a place 
where food or beverages were consumed.  Second, she must establish that the
cited area was "exposed to a toxic material."  She contends that there can
be no dispute that the cited offices were used as lunch and break rooms
where food and beverages were both consumed and stored.  She also contends
that these areas were exposed to mercury from the surrounding production 
areas.  The Secretary contends that Newmont's interpretation of the standard
to require the Secretary to prove that the toxic material was present in
sufficient quantities to present a clear health hazard is incorrect.  She
maintains that the Secretary is not required to show that the quantity of
mercury detected presented a hazardous dose level.  Similarly, she contends
that she is not required to establish that mercury presents a serious health
risk when ingested.  Rather, the Secretary argues that mercury is a toxic 
material as a matter of law.  She contends that mine operators "are obliged,
under the terms of this regulation, to take all reasonable steps to prevent
mercury exposure in eating and dining areas."  (S. Br. at 25).  The 
Secretary states that the standard is clear on its face.  She disagrees 
with Newmont's position that unless the term "toxic material" is interpreted
to have a dose level component, the standard is impermissibly vague and 
violates Newmont's due process rights.

	The Secretary also argues that Newmont's failure to prevent its
employees from eating in areas exposed to a toxic material demonstrates
its unwarrantable failure to comply with the standard.  She contends that
Newmont had been aware of the conditions cited by the inspector for six 
years and did nothing to correct the conditions.  She points to the fact
that in 1992 Newmont improved the lunchroom at its refinery at the mine 
after determining that employees were eating and consuming beverages in 
areas that were exposed to mercury vapors.  The Secretary also contends
that Newmont's defense that it was not in violation of the standard so 
long as mercury vapor did not exceed the threshold limit value ("TLV") 
for mercury, incorporated by the Secretary through 30 C.F.R. 56.5001,
is inherently unreasonable.  The Secretary also relies on complaints 
made by miners to Newmont managers about the presence of mercury in the
AARL and ZADRA offices (the "offices") to establish aggravated conduct.
The Secretary seeks to increase the penalty for these alleged violations
to $5,000 each.

		2.  Newmont

	Newmont argues that to establish a prima facie case, the Secretary must
prove that the mercury alleged to be present in the offices when food and
beverages were consumed was a toxic material.  It contends that the record 
establishes that the elemental mercury at issue in these cases was not a
toxic material because it was not present in such quantities to present a
health hazard.  Newmont maintains that there is no dermal contact risk 
associated with elemental mercury.  In addition, its states that ingestion 
of elemental mercury, at least at the levels present in the offices, does
not present a health hazard.  Newmont contends that inhalation of mercury 
vapor is the only exposure route of concern for elemental mercury.  MSHA
has a specific regulation addressing mercury vapor at section 56.5001.  
Under that regulation, the average permissible dose of mercury vapor that
MSHA allows miners to be exposed to over a working shift is 50 micrograms
(_g).[1]  Newmont contends that unless the amount of mercury vapor in the
offices exceeds 50 micrograms, a health hazard is not present and the rooms
have not been exposed to a toxic material as that term is used in the 
standard.

	Newmont also contends that the Secretary's interpretation of section 
56.20014 is arbitrary, capricious, and contrary to law.  First, it contends
that the Secretary failed to distinguish between the health risks associated
with elemental mercury and the risks posed by other forms of mercury. 
Second, it argues that basic toxicology and industrial hygiene provide that
the dosage of a substance determines whether it poses a health hazard.  This
is, because all substances are toxic to the human body at a given dosage
level, a substance cannot be considered to be a toxic material unless the
dose at which miners are exposed is taken into consideration.  It believes 
that unless the Secretary establishes that the mercury detected by Inspector
Drussel presented a significant risk of harm to employees, the citation and 
order must be vacated.

	Finally, Newmont argues that the Secretary's prior inconsistent 
interpretation of the standard and prior inconsistent actions of her
inspectors, precludes giving her present interpretation any deference.
It contends that it was not provided with fair warning of the conduct that
was prohibited by the standard because a reasonably prudent person familiar 
with the mining industry and the protective purposes of the Secretary's
standards would not have known that the presence of mercury vapor below 
the TLV violated the standard.

	B.  The Citation and Order Alleging Violations of Section 56.20011

		1.  The Secretary

	The Secretary argues that Newmont violated the standard when it placed
a contaminated discarded mercury scrubber from the AARL in a boneyard
without providing a barricade or warning.  She contends that it also 
violated the standard when it placed a dewatering screen from the AARL 
in a containment area without providing a barricade or warning.  She 
contends that the cited equipment contained mercury that presented a 
health hazard.  The Secretary maintains that both pieces of equipment 
were in open areas where employees could come in contact with them. 
Finally, the Secretary contends that Newmont's violation with respect 
to the scrubber was the result of its aggravated conduct because it was
aware of the hazard and did nothing to prevent employees from being exposed 
to the hazard.

		2.  Newmont

	Newmont makes many of the same arguments with respect to this citation
and order as it did with respect to the alleged violations of section 
56.20014.  It contends that the Secretary did not establish that the cited 
equipment presented a health or safety hazard within the meaning of the
standard.  Newmont argues that the citation and order were issued because
of a "potential" hazard rather than because a hazard existed.  Further,
Newmont argues that, after the citation and order were issued, it monitored
for mercury vapor at the scrubber and screen and the results were well below
the TLV.  Finally, it argues that the Secretary did not provide reasonable
notice that a bead of mercury on a piece of equipment would require a
warning sign or a barricade.

III. DISCUSSION WITH FURTHER FINDINGS
AND CONCLUSIONS OF LAW

	A.  The Citation and Order Alleging Violations of Section 56.20014

	1.  Introduction

	The cited standard is quite brief.  For purposes of theses proceedings
it provides that no person shall be allowed to consume or store food or
beverages in any area exposed to a toxic material.  Although Newmont 
introduced evidence designed to raise questions as to whether food or 
beverages were in fact stored or consumed in the offices on or about
March 14, 1995, I find that the overwhelming evidence establishes that
they were.  Whether miners were encouraged by Newmont to take their meal
breaks in other areas, or that consuming or storing food and beverages in
the offices was not officially sanctioned by Newmont is irrelevant.  The
evidence shows that miners were not prohibited from drinking beverages,
eating food, or storing beverages and food in the offices.  The standard 
states that "no person shall be allowed to" consume food or beverages in
an area exposed to a toxic material or to store food or beverages in such
area.  The record demonstrates that Newmont allowed such activities in the
offices.

	The issue then is whether the offices were areas "exposed to a toxic
material," as that phrase is used in the standard.  There is no question
that mercury vapor was present in the offices.  Newmont's own records show
that mercury vapor was present.  (Ex. S-112).  Newmont took mercury vapor
samples six times a day in the offices using a Jerome monitor. The question
is whether the presence of mercury vapor establishes that the area was 
exposed to a toxic material.  The Secretary maintains that the evidence 
establishes that mercury is a toxic material at any dosage level.  She 
states that mercury is a universally recognized poisonous substance. She
believes that there is no known universally safe level for exposure to 
mercury and she rejects Newmont's contention that at certain dose levels
mercury is not toxic to humans.  She states that the dose level at which 
mercury is safe for all persons has not been definitively determined. 
Consequently, she believes that mercury must be presumed to be a toxic 
material at any dose that is detectable by standard industrial hygiene 
instruments.  She further argues:

     	MSHA asserts mercury to be a "toxic material" as a matter of 
     law.  Mine operators are obliged, under the terms of this regulation, 
     to take all reasonable steps necessary to prevent mercury exposure in 
     eating or dining areas.

(S. Br. at 25).  Accordingly, the Secretary contends that because she
demonstrated that mercury vapor was present in a detectable amount in 
each office and that mercury is a toxic material, she established violations
of section 56.20014.

	Newmont strongly disagrees with the Secretary's interpretation of the
standard.   As stated above, Newmont contends that the Secretary must
establish that the mercury vapor that was detected by Inspector Drussel
on March 14 was a toxic material.  It maintains that the 23.3 _g/m3 and 
22.2 _g/m3 readings obtained by Inspector Drussel show that a toxic material
was not present because at that dose mercury is not toxic.  Newmont 
characterizes the Secretary's interpretation as a "zero tolerance policy."
It contends that under this interpretation, the Secretary can issue a
citation in the offices if an inspector detects any level of mercury that
can be measured with a Jerome monitor.  Newmont argues that this 
interpretation is inherently unreasonable.

	Mercury can potentially enter the human body by three routes: through
the skin, through the digestive tract, and through inhalation.  In order
to understand the issues raised in this case it is important to consider
the relative risks posed by these three potential routes of entry.  I
discuss each in turn below.

		a.  Risks Posed by the Inhalation of Mercury

	The inhalation of mercury fumes can present significant health risks.
About 80% of all inhaled mercury vapor is absorbed into the human body
through the lungs.  If a person is exposed to mercury fumes at the TLV,
he will absorb about 400 micrograms of mercury during an 8-hour shift. 

		b.  Risks Posed by Dermal Contact with Mercury

	I find that dermal contact with elemental mercury does not pose as 
significant a health risk.  Very little mercury is absorbed through the
skin.  The dermal absorption rate is only 2.2% of the inhalation rate
and only about 50% of the mercury that is absorbed into the skin enters 
the body.  The rest stays in the skin and is sloughed off.  I credit the
evidence presented by Newmont that only about .8 percent of any mercury
exposed to the skin is actually absorbed into the body.

		c.  Risks Posed by the Ingestion of Mercury

	It is clear that ingestion of mercury in the quantities that would be
possible in the offices does not present a health risk to miners.  The 
ingestion rate for mercury is between .01 and .001 of a percent.  If a 
miner ate a sandwich that contained a bead of mercury, only a negligible 
amount of mercury would remain in his body.  I agree with Newmont's evidence
that such an event is "toxicologically irrelevant."  It is highly unlikely 
that anyone would get mercury poisoning by eating small amounts of mercury,
even over a period of time.

		d.  Conclusions

	I conclude that inhalation is the primary exposure route for elemental 
mercury that is of concern in these cases.  Of course, mercury vapor can 
enter the offices in a number of ways.  It can come in through the doors 
and the ventilation systems.  In addition, miners can get beads of liquid 
mercury on their clothing.  If mercury is on a miner's clothing or boots,
the mercury can contaminate an otherwise clean environment.

	2.  Did Newmont Violate Section 56.20014?

	There is no dispute that mercury is a toxic material if it is detected
at levels above 50 _g/m3 over a working shift.  The issue is whether mercury
is a toxic material, as that term is used in the standard,  if it is 
detected at levels significantly less than that, around 22 to 24 _g/m3. 
The Secretary maintains that the TLV is irrelevant in this case because all
she needs to prove is that the offices were exposed to a toxic material. 
She argues that mercury is a toxic material at all detectable levels because 
hich mercury is assuredly safe for all persons (including female miners of
childbearing age) has not been determined."  (S. Br. at 25).

	Newmont argues that a material is toxic if it is poisonous to humans. 
A toxic material is a poisonous material.  It contends that any material is
poisonous to humans if the exposure is sufficient.  Thus, it maintains that
one must consider the dose when determining if a material is toxic.  Without
taking the dose into consideration, everything is toxic and the term "toxic
material" becomes meaningless.  It argues that it is the dose that makes 
the poison.  It relies on the testimony of its expert witnesses in making
this argument.  It also points to the fact that dental amalgams (fillings)
are widely reported to produce between 3 and 29 _gs of mercury vapor within 
a person's mouth, 24 hours a day, 365 days a year.  Such fillings are not 
considered to be hazardous to humans.  Because Inspector Drussel detected 
low levels of mercury vapor in the offices, Newmont contends that no health
risk was posed and a toxic material was not present.

	The Secretary argues that the offices were exposed to a toxic material
because Newmont failed to adequately assure that liquid mercury and mercury
vapors would not enter into and remain in the offices.  She contends that
because of Newmont's deficient industrial hygiene practices, Newmont exposed
the two offices to ambient mercury vapor and liquid mercury originating
from the production areas.  She points to the fact that during the years
proceeding March 1995,  Newmont did not have in place an industrial hygiene
protocol to keep the offices clean.  For example, miners would enter the
offices without removing or washing their boots or personal protective 
equipment, which could be contaminated with mercury from the plant.  
Another example relied upon by the Secretary was the fact that the offices
were not adequately ventilated so that air containing mercury vapor would
enter the offices from the plant.  As proof of this constant contamination,
the Secretary relies on Newmont's mercury monitoring results for the 
offices.

	Although the parties presented extensive evidence at the hearing, the 
dispute primarily concerns the interpretation of the standard.  Each side
presented evidence to support its interpretation.  Thus, it is important
to carefully consider the legal issues raised to support the conflicting
interpretations. 

	I find that detectable levels of mercury vapor were frequently present
in the subject offices in the year preceding March 1995.  (Ex. S-112). 
Mercury vapor was generally present in the offices during the first three 
months of 1995 in the range of 8 to 30 _g/m3, but occasionally higher 
readings were obtained.  There were several readings between 50 and 60 _g/m3
and one in excess of 300 _g/m3 because the AARL office had not been recently
cleaned.  (Ex. S-112 at 2880 and 2940).  Newmont contends that Jerome 
mercury monitors do not provide accurate measurements to assess personal 
exposures, but only provides a rough measure of potential mercury vapor
sources.

	Jerome monitors take an instantaneous reading. Even if several readings
are taken, they may not represent the TLV because the readings are not 
time-weighted over the shift.  I agree with Newmont that a person can obtain
a wide range of Jerome readings in a single room over a period of a few 
minutes, even when the instrument is properly calibrated and used.  The 
record also shows that certain chemicals used in the plants can cause a 
Jerome monitor to detect the presence of mercury.  In this instance, 
however, the record contains hundreds of Jerome readings taken in the 
offices over a long period of time.  Accordingly, I find that I can properly
conclude that mercury vapor was present in the offices on a consistent
basis, but that the amount of such vapor was almost always below the TLV.
Even in those instances where readings above 50 _g/m3 were made, the TLV 
may not have been exceeded because the readings were not time- weighted.

		a.  Plain Meaning of Standard

	Because the Secretary asserts that mercury is a toxic material as a
matter of law, she argues that she is not required to establish that 
mercury was present at hazardous levels the time the citations were issued. 
She interprets section 56.20014 to presume that a hazard exists when
detectable mercury vapor is found.  She contends that the plain meaning 
of the words in the standard supports her interpretation.  In addition,
she states that the standard must be interpreted so as to "effectuate its
purposes."  (S. Br. at 26).  In the alternative, the Secretary argues that
the Commission should defer to her reasonable interpretation of the 
standard.

	I find that the plain language of the standard does not automatically
lead to the Secretary's interpretation.  The concept of an area being 
"exposed to a toxic material" is somewhat ambiguous.  In addition, the
purpose of the standard is not entirely clear.  Newmont interprets the 
standard to apply only to ingestion hazards.  It believes that the standard
is designed to keep food and beverages from becoming contaminated with 
toxic substances.  Accordingly, I give Newmont's arguments the benefit of 
the doubt and reject the Secretary's position that the plain language of
the standard precludes any interpretation of the standard other than her
own interpretation.

		b.  Deference

	It is well established that an agency's interpretation of its own
regulations should be given "deference ... unless it is plainly wrong" 
and so long as it is "logically consistent with the language of the 
regulation and ... serves a permissible regulatory function."  General 
Electric Co. V EPA, 53 F.3d 1324, 1327 (D.C. Cir 1995)(citations omitted);
Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 234 (February 1997).  In 
addition, the legislative history of the Mine Act states that "the 
Secretary's interpretations of the law and regulations shall be given 
weight by both the Commission and the courts."  S. Rep. No. 181, 95th
Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History 
of the Federal Mine Safety and Health Act of 1977 at 637 (1978). 

	Newmont contends that no deference is owed the Secretary's interpretation
because her interpretation of this standard has been inconsistent. 
Newmont relies on a number of factors in making this argument.  First,
it states that Inspector Drussel inspected these offices on many occasions;
he knew or had reason to know that a low level of mercury vapor was 
generally present, and he drank coffee in the offices.  Second, it states 
that the Secretary's prior written interpretation of the standard does not
support her present interpretation.  Third, it maintains that the 
Secretary's interpretation of an identical standard under OSHA is 
inconsistent with her interpretation under MSHA.  Finally, it states 
that the Secretary does not consistently apply her interpretation.

	I find that although the Secretary's policies have not always been
clearly enunciated, her policies have been sufficiently consistent to 
consider the application of deference.  Inspector Drussel admitted that
prior to March 1995, he knew that miners ate in the offices.  (Tr. 1185). 
He admitted that prior to March 1995, he believed that the offices were in
compliance with MSHA standards.  Id.  He also admitted that prior to March
1995, be believed that the "action level" for mercury vapor was 50 _g/m3 
for personal samples.  Finally, Inspector Drussel testified that prior to 
March 1995, he knew that mercury vapor was in the AARL office and he 
personally drank coffee in that office, but he did not issue any citations
for violating section 56.20014.  (Tr. 1202-03).  From this testimony, 
Newmont concludes that the Secretary did not consider mercury vapor at
levels below 50 _g/m3 to present a hazard in areas where food or beverages
are consumed and did not believe that the conditions in Newmont's offices
violated the standard.  Newmont contends that this shows that the
Secretary's prior interpretation of the standard is inconsistent with
her present interpretation.

	Newmont has stretched Inspector Drussel's testimony beyond recognition.
The fact that one inspector drank coffee in an area in which mercury vapor
was present does not indicate that the Secretary has changed her 
nterpretation of the standard.  From this testimony, it appears that the
local MSHA office relied on personal samples taken in accordance with
section 56.5001 when testing for mercury.  At most, it shows that MSHA was
not enforcing section 56.20014 at the Newmont facility.  An agency's failure
to strictly enforce a particular standard cannot be the basis for finding 
that its prior interpretations of the standard were inconsistent.  As I 
stated at the hearing, an MSHA inspector's failure to issue any citations
at a mine does not establish that the Secretary has determined that the mine
operator is in compliance with all MSHA safety and health regulations.  The
fact that previous citations had not been issued cannot be the basis for 
rejecting deference to the Secretary's interpretation.

	Newmont also relies on a prior written interpretation issued by the
Secretary.  In 1981, the Secretary issued a Metal and Nonmetal Mine Safety
and Health Inspection and Investigation Manual ("I & I Manual").  For 
section 56.20-14, the old section number for the standard, the I & I Manual
states:  "The purpose of this mandatory standard is to ensure that foods
or beverages are not stored or consumed in areas where toxic materials or
unsanitary conditions could contaminate the food and cause illness."  (Ex.
R-59A at 66-S-4).  Newmont contends that the I & I Manual shows that the
standard has previously been interpreted as a food contamination standard,
not an airborne contaminant standard.  It argues that this interpretation 
is entirely inconsistent with the position that the Secretary is taking in
this case.  

	In July 1988, the Secretary issued MSHA's Program Policy Manual (the 
"Manual"), which superseded the I & I Manual.  The Manual does not contain
any interpretation of the standard at issue and states on the cover page 
that it "includes all policies currently in effect which were issued prior
to July 1, 1988."  Paul Balanger, one of the drafters of the Manual,
testified that any applications contained in the old I & I Manual that
were not applicable or were deemed unnecessary were not included in the 
new Manual.  (Tr. 1421-1422).  Thus, to the extent that the I & I Manual
included an inconsistent interpretation, it was deleted about seven years 
prior to the date the citation and order were issued.

	The introduction for the section of the  I & I Manual discussing
mandatory standards states:

           	The following application of standards is to assist 
          inspectors in determining the intent and purpose of the given 
          standard.  They do not have the force of law and do not 
          supersede or override the standards themselves, and are subject 
          to policy change.

(Ex. R-59A at 66-A-1).  Thus, the I & I Manual specifically provided that 
the applications were not binding, did not override the language of the
standard, and could change over time.

	Although I find that there is some tension between the application set
forth in the I & I Manual and the Secretary's present interpretation of 
section 56.20014, it is not so inconsistent as to hold that the Secretary's 
interpretation in this case is not entitled to any deference.  In the cases
cited by Newmont to support its position, the agency in question had a 
history of prior inconsistent enforcement, the agency changed procedures
through an internal staff memorandum that had been established by
regulation, or the agency refused to adhere to the precedent of its own 
internal review board even though it followed such precedent in previous 
and subsequent cases that were very similar.

	In this case, MSHA issued a policy statement in 1981 that was revoked
in 1988 that generally indicated that the focus of the standard was to
prevent the contamination of food.  There has not been any showing of prior
inconsistent enforcement.  If there is any inconsistency, it is that the 
agency did not direct its resources to the enforcement of the cited standard
until recently. 

	Newmont also relies on the Secretary's enforcement of the same standard
under OSHA.  It points to the analogous regulation of the Department of
Labor's Occupational Safety and Health Administration ("OSHA") that defines
"toxic material" to mean a material that is present in a concentration that
exceeds the TLV or, in the absence of an applicable standard, "which is of
such toxicity so as to constitute a recognized hazard that is causing or is
likely to cause death or serious physical harm."  (N. Br. at 27, quoting 29
C.F.R.  1910.141(a)(2)(viii)).  Thus, the Secretary limits OSHA's similar
standard, at 29 C.F.R.  1910.141(g)(2), to situations where mercury is 
detected above the TLV.  If  mercury is detected in eating or drinking areas
at levels below the TLV, the equivalent OSHA standard is not violated.

	The Commission and the courts owe deference to the Secretary, not to 
the Assistant Secretary for Mine Safety and Health or to his staff.  Thus, 
Newmont's argument has some appeal.  I find, however, that there are some 
important differences between the underlying OSHA and MSHA statutes. Under 
the OSHA statute, a safety or health standard must be "reasonably necessary 
or appropriate to provide safe or healthful employment and places of
employment."  29 U.S.C.  652(8).  The Supreme Court has interpreted this
requirement to mean that the Secretary, when promulgating a health standard,
must determine that the standard is "reasonably necessary and appropriate 
to remedy a significant risk of material health impairment."  Industrial
Union Dep't v. American Petroleum Inst., 448 U.S. 607, 639 (1980).  The
Mine Act does not include such a requirement.  The Secretary is not 
required to establish during rulemaking that a proposed MSHA standard is 
necessary to "remedy a significant risk."  Id.  Under the Mine Act, the
Secretary is authorized to promulgate standards "as may be appropriate ...
for the protection of life and prevention of injuries...."  30 U.S.C.
 811(a); National Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d
520, 527 (D.C. Cir. 1997).  The Secretary of the Interior originally 
promulgated section 56.20014, under the Federal Metal and Nonmetal Mine 
Safety Act, using the OSHA standard as a starting point.  He did not 
incorporate the OSHA definition of "hazardous material" in the standard.
Accordingly, I find that the Secretary's different interpretation of a 
similar standard under the OSHA statute is grounded in that statute and
should not be the basis for refusing to defer to the Secretary's 
interpretation of the standard in this case.

	Finally, Newmont contends that deference is not owed the Secretary's 
interpretation of the standard because she does not consistently apply
this interpretation.  Newmont provides examples of inconsistent enforcement.
Oxygen and carbon dioxide, for example, are hazardous at high doses, yet
MSHA does not issue citations if oxygen or carbon dioxide are detected in
a lunchroom.  Silica dust is another example.  It is well documented that
silica presents a health hazard, yet MSHA does not cite mine operators if 
silica dust is detected in a lunchroom at levels below the TLV.  Newmont
asserts that the Secretary is enforcing the standard on an arbitrary and
ad hoc basis.  The Secretary contends that she is not required to apply
the standard to all other toxic materials in the same manner as mercury.
She states that "MSHA's consistency of application from substance to 
substance is based on a decision-making process that will look to factors
such as the nature of the material, its physical properties, warning 
properties, paths of exposure, feasibility of detection and control,
and the standard of care."  (S. Reply Br. at 26).  She also states that
she will "rationally apply the regulation to these other substances in
other environments on the basis of the nature of the toxic material, 
including its health effects and routes of absorption, the nature of the
environment and feasibility of detection and control, as well as the 
recognized levels and types of control mandated by reasonably prudent
industrial hygiene and occupational health practice."  (S. Br. at 35).

	I agree with the Secretary that the fact that she does not enforce 
section 56.20014 with respect to silica dust, for example, in the same 
way that she enforces the standard with respect to mercury is not important
when considering deference.  There are many reasons why the Secretary may
not be as stringent with silica dust in lunchrooms including, but not
limited to, the impracticality of controlling low levels of silica dust
at mines.  It appears to me that the Secretary is concerned that Newmont
was not doing all that it could to eliminate elemental mercury in the 
offices.  She believes that Newmont was not following recognized industrial
hygiene practices with respect to the control of mercury in the offices.
Her interpretation is entitled to deference even though she may not 
interpret the standard as stringently with respect to other toxic materials.

	In conclusion, I find that Newmont has not presented sufficient reason
to not apply the concept of deference to the Secretary's interpretation
of section 56.20014.  In addition, I find that the Secretary's 
interpretation is reasonable and consistent with the purpose of the
Mine Act.  The prevention of occupational illness is one of the fundamental
purposes of the Mine Act.  Consolidation Coal Co., 8 FMSHRC 890, 895 (June
1986).  Standards under the Mine Act are broadly interpreted to achieve the
goal of protecting the safety and health of miners.  Section 56.20014 does 
not contain a dose level and there is no implication that the term 
"hazardous material" only applies if the material is detected at a level 
above the TLV.  Thus, I conclude that the Secretary's interpretation of
the standard is reasonable.  Newmont is not contending that reducing the 
level of mercury to detectable levels was technically or economically 
infeasible.  The record makes clear that significant reductions in mercury 
vapor levels can be obtained using available industrial hygiene practices. 
Other gold mines in northeast Nevada have successfully implemented these 
practices at their lunchrooms.  Such practices include, for example, 
separating offices and control rooms from eating areas, locating changing 
rooms and boot washes adjacent to eating areas, and establishing positive
pressure ventilation systems for eating areas.  Newmont had previously 
instituted some of these measures for the lunchroom at its refinery and 
instituted such measures to abate the citation and order at issue here.

	It is important to keep in mind that the Mine Act is a strict liability
statute.  Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989).  When a 
violation of a standard occurs, the "operator is automatically assessed a
civil penalty."  (Id. at 1197).  The Mine Act imposes no general requirement
that a violation of a standard create a safety or health hazard in order 
for the citation to be valid.  Allied Products Co., 666 F.2d 890, 892-93
(5th Cir. 1982).  Thus, if a condition violates a standard, a citation is
proper.  Newmont's argument that the Secretary's interpretation is
unreasonable and not entitled to deference because she failed to demonstrate
that the health of miners was directly affected is misplaced.  I find that
the Secretary established that the cited offices had been exposed to a 
toxic material as that term is used in the standard.

	3.  Would a Reasonably Prudent Person Have Reason to Know that Section
56.20014 Applied when Mercury is Detected at Levels Below the TLV?

	As stated above, the plain language of the standard does not 
automatically lead to the interpretation that the Secretary advanced in
this proceeding.  I held that the Secretary's interpretation is entitled 
to deference, however, because it is reasonable and consistent with the
purposes of the Mine Act.  A final and distinct inquiry is whether the 
Secretary provided mine operators with sufficient notice of the requirements
of the standard.  Would a person of ordinary intelligence know what was 
required by the standard or would he have to guess at its meaning?

	The language of section 56.20014 is "simple and brief in order to be
	broadly adaptable to myriad circumstances."  Kerr-McGee Corp., 3 FMSHRC
	2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC 2128,
	2130 (December 1992).  Such broadly written standards must afford notice
	of what is required or proscribed.  U.S. Steel Corp., 5 FMSHRC 3, 4 
	(January 1983).  In "order to afford adequate notice and pass 
	constitutional muster, a mandatory [health] standard cannot be 'so
	incomplete, vague, indefinite, or uncertain that [persons] of common
	intelligence must necessarily guess at its meaning and differ as to 
	its application'" Ideal Cement Co., 12 FMSHRC 2409, 2416 (November
	1990)(citation omitted).  A standard must "give a person of ordinary
	intelligence a reasonable opportunity to know what is prohibited, so
	that he may act accordingly."  Lanham Coal Co., 13 FMSHRC 1341, 1343
	(September 1991). 

          	When faced with a challenge that a safety standard 
          failed to provide adequate notice of prohibited or required 
          conduct, the Commission has applied an objective standard, i.e., 
          the reasonably prudent person test.  The Commission recently 
          summarized this test as "whether a reasonably prudent person 
          familiar with the mining industry and the protective purposes of 
          the standard would have recognized the specific prohibition or 
          requirement of the standard."

Id. (citations omitted).  To put it another way, a safety standard cannot
be construed to mean what the Secretary intended but did not adequately
express.  "The Secretary, as enforcer of the Act, has the responsibility
to state with ascertainable certainty what is meant by the standard he has 
promulgated."  Diamond Roofing Co. V. OSHRC, 528 F.2d 645, 649 (5th Cir.
1976). 

	Newmont argues that the Secretary failed to provide notice to mine 
operators that the safety standard applies when mercury is present 	in 
levels below the TLV.  Newmont argues that based on MSHA's past enforcement 
actions, prior policy statements, and the Secretary's interpretation of the
similar OSHA standard, a reasonably prudent person would agree with 
Newmont's interpretation.  Newmont relies on the I & I Manual, discussed 
above, arguing that the only written guidance the Secretary has issued is
contrary to her current interpretation.  Newmont argues that the mining 
industry reasonably believed that the section 56.20014 was a food 
contamination standard and that mercury vapor below the TLV was never
an issue with MSHA inspectors. It states that no policy statements were 
issued and no public announcements were made by the MSHA concerning its
"new" interpretation of the standard.  

	Newmont also relies on the testimony of a number of witnesses.  First,
it points to the testimony of Margie Zalesak, MSHA's chief of health, that
the Secretary's interpretation of the standard with respect to lunchrooms
was never specifically communicated to the mining community.  (Tr. 2758).
Newmont argues that Ms. Zalesak could not articulate how MSHA exercises
its enforcement discretion under the standard.  (Tr. 2770-71).   Michael
Simmons, who was a foreman in the carbon-handling area at the time the
citation and order were issued, testified on behalf of the Secretary.  He 
testified that at the time the citation and order were issued he believed
that the mine was in compliance with MSHA standards, as long as mercury
vapor in the offices was kept below the TLV.  (Tr. 1018-19).  Dennis J.
Tobin, MSHA's manager of the Elko, Nevada, field office, testified that
he had always thought in terms of the TLV and had not thought about 
applying section 56.20014 to levels below the TLV.  (Tobin Dep. at
21-22).[2]   Mr. Tobin further testified that if a mine operator were 
to ask him what the word "toxic" means in section 56.20014, he would 
refer to the TLV book.  (Id. at 54-55).  Inspector Drussel testified that,
in March 1995, his application of the "lunch room standard" changed. 
(Tr. 1203).  Newmont contends that this change was made without any advance
notice to Newmont or the mining community in general.

	Thomas H. Koenning, chief of the toxic materials division of MSHA's
Denver Safety and Health Technology Center ("Denver Tech"), testified that
MSHA would not normally cite a work area where mercury was detected below
the TLV because such levels are generally considered to be safe.  (Koenning
Dep. at 67).  Galen Trabant, an industrial hygienist with Denver Tech,
testified that the MSHA standard for mercury is 50 _g/m3 and that he is not
aware of any other MSHA standard for mercury exposure.  (Trabant Dep. at
23).  Mr. Trabant visited the South Area Gold Quarry on March 28, 1995,
along with other MSHA officials and conducted a mercury health hazard
survey, as described in the Denver Tech report.  (Ex. R-4).

	The Secretary approaches the notice issue from a different direction. 
She contends that Newmont knew that mercury vapor was present in the 
offices.   She believes that she established that Newmont had "subjective
knowledge that it needed to take effective steps to remedy mercury
exposures in lunchrooms."  (S. Br. At 36).  The Secretary points to steps
Newmont took in 1992 to clean up an eating area in its refinery.  She 
states that the fact that Newmont implemented the measures required by 
the standard at the refinery shows that it knew what the standard required.
For example, a change area was provided at the lunchroom in the refinery 
and employees are required to remove coveralls and personal protective 
equipment before entering the lunchroom.  The Secretary also states that 
although Newmont's industrial hygienist advised employees not to eat or 
drink in "any mercury exposure area," Newmont failed to provide an area 
for miners in carbon-handling where they could follow the industrial 
hygienist's advice.  (Ex. S-127 p. 1).

	The Secretary also relies on a memorandum sent to Kim Redding, a miner
at the facility, on March 2, 1995, from Frank Hanagarne, who was manager
of carbon-handling and the refinery.  (Ex. S-127 pp. 46-49).  In that memo,
Mr. Hanagarne discussed measures that Newmont uses to control employee 
exposure to mercury.  Under the heading "Personal Hygiene," Mr. Hanagarne 
stated that the company is "concerned about the lack of a separate clean
area for a lunch room for the workers."  (Id.  at 48).  He went on to 
explain that Newmont purchased a trailer for this purpose and that it
would be installed as soon as other necessary work was completed.  The 
Secretary maintains that this memo shows that mine management knew that 
the offices were exposed to mercury, were "potentially contaminated," and
knew that remedial steps were necessary.  (S. Br. at 37).   The Secretary 
also contends that Newmont was put on notice of the requirements of the 
standard when, at an August 1994 meeting, Mr. Redding claimed that the
offices violated section 56.20014 and read the standard aloud to
management.  (Tr. 377, 491-92, 920-21).  

	In addition, the Secretary relies on a NIOSH criteria document that
"indicates that food and beverages should not be consumed in mercury work
areas."  ( S. Br. at 38; Ex. R-6 appendix III, Art. 7(a)).  She also relies 
on the material safety data sheet for mercury that states: "Do not eat, 
drink, or smoke in any work area."  (Tr. 2628).  In conclusion, the 
Secretary maintains that the text of the section 56.20014 and the factors
set forth above provided more than enough notice of the requirements of the
standard.

	The Secretary's argument that Newmont had subjective knowledge of the
requirements of the standard is not well taken.  The fact that Newmont took 
actions to improve the lunchroom for the refinery, that internal memoranda
stated that managers were concerned about the lack of a clean lunchroom, or
that Newmont was in the process of installing a trailer for use as a 
lunchroom does not establish that Newmont had knowledge of the Secretary's 
interpretation of section 56.20014.  In Lanham, a citation was issued for
the failure of an independent contractor to wear a safety line while placing
a tarp over the bed of a haul truck.  There is no dispute that a reasonably
prudent person would see a danger of falling when standing on the top of a
haulage truck unrolling a tarp.  Indeed, in that case the driver of the 
truck fell about ten feet to his death while unrolling the tarp.  The issue
in that case was whether a reasonably prudent person would know that the 
safety standard required the use of safety belts and lines when placing a
tarp on a truck.  The MSHA inspector testified that he had never observed 
a safety belt or line being used on a truck and had not previously 
"considered the standard applicable to the tarping of trucks."  13 FMSHRC 
1343.

	The issue under the reasonably prudent person test in the present case
is not whether Newmont was on notice that mercury is hazardous or that
mercury was present in the offices.  The issue is whether a reasonably
prudent person would have reason to know that mercury vapor in a range of 
22 to 24 _g/m3 was a toxic material that was prohibited in an area where
food or beverages are consumed or stored.  An agency provides notice of the 
meaning of the standard through the language of the standard itself, written
interpretations that it has issued, prior enforcement actions, and other
actions it has taken that shed light on its interpretation.  Although this
is a close issue, I find by a preponderance of the evidence that a 
reasonably prudent person with knowledge of the mining industry and the
protective purposes of the standard would have recognized that beads of
liquid mercury and mercury vapor in the range of 22 to 24 _g/m3 were
prohibited where food or beverages were stored or consumed under the
standard.

	First, the language of the standard itself indicates that areas where
food or beverages are consumed require more stringent controls against 
toxic materials than work areas at a mine.  If, as argued by Newmont, only
substances above the TLV were prohibited in eating areas, then the 
regulation is redundant.  The same standard of care would be required in
lunchrooms as in the plant itself.  If mercury is not a hazardous material,
as that term is used in the standard, unless it is present in a quantity or
dose greater than the established TLV, then section 56.20014 serves no 
purpose with respect to areas where people eat and store food and beverages.
Such a reading does not square with the purposes of the Mine Act or the
language of the standard when read in conjunction with section 56.5001.
Construing sections 56.5001 and .20014 harmoniously, a reasonably prudent
person would conclude that areas where persons eat or store food cannot 
be exposed to toxic materials, including mercury, even if the TLV were not
exceeded.  That is, section 56.20014 should not be construed to incorporate
the TLV for mercury as a floor below which exposure is permitted under the
standard.  Such a person would realize that section 56.20014 is more 
stringent than section 56.5001 where food is stored and eaten.  

	The mercury readings obtained by Inspector Drussel were not a rare
excursion above the norm; his readings were consistent with the readings
that had been taken in the offices by Newmont for the previous year.  In 
addition, the bead of mercury that was noted was not such an unusual event
as to constitute an aberration.  A reasonably prudent person would recognize 
that mercury is a toxic material.  The fact that Inspector Drussel may not
have detected a quantity of mercury that is universally considered to be a
harmful dose at the time of his inspection does not change that fact.  I
find that a reasonably prudent person would interpret the standard to
require an operator to reduce the amount of mercury in eating and drinking
areas to levels that are as low as can reasonably be obtained.  As stated
above, existing technology allows mine operators to reduce the amount of
mercury in eating areas to levels that are significantly below that measured
by Inspector Drussel.  The standard gives sufficient notice to reasonable 
persons that mine operators are required to take steps to prevent eating 
areas from being exposed to mercury, at least in the quantities detected 
by the inspector.

	Newmont's argument that MSHA's prior inconsistencies were misleading 
is not well taken.  Although I recognize that the  I & I Manual was 
relied upon by the metal mining industry for a number of years, a 
reasonably prudent person would not rely on an interpretive manual in
1995 that was explicitly superseded in 1988.  An interpretative manual 
is generally not binding on the Secretary when it is in effect, and it 
is unreasonable to rely on such a manual six years after it has been 
replaced.

	In addition, the testimony cited by Newmont does not support its 
argument.  Ms. Zalesak simply stated that MSHA had not issued a policy 
letter with respect to section 56.20014.  The Secretary is not under a
duty to issue interpretative bulletins for safety and health standards.
The testimony of Mr. Tobin must be read in context.  At the time of the
inspection, Mr. Tobin worked in a different MSHA district where mercury
contamination was not an issue.  He stated that he had not read the 
subject standard prior to becoming a field office supervisor in Nevada
and was not experienced with mercury issues.  (Tobin Dep. at 24, 50).
A reasonably prudent person under the Commission's test is someone who
is familiar with the subject matter at hand, not a person who has not
thought about the issue.

	Mr. Simmons testified that although he believed the mine was in 
compliance as long as the TLV was not exceeded, he had his "own suspicions,
but ... kept his mouth shut."  (Tr. 1020).  Mr. Simmons questioned in his
own mind whether the conditions in the offices created a hazard.  Finally,
the testimony of MSHA personnel from Denver Tech does not support Newmont's
position.  They testified about section 56.5001 and the TLV.  They did not
state that unless the TLV is violated, there can be no violation of section
56.20014.

	Inspector Drussel testified that he had not applied section 56.20014 to
the cited offices prior to March 1995.  (Tr. 1203).  Prior to the time of
his inspection, he did not believe that readings below the TLV violated the
standard.  (Tr. 1205-06).  As with Mr. Tobin, he had not previously 
considered whether section 56.20014 should be applied to mercury vapor in
eating areas.  MSHA's failure to enforce a standard does not establish MSHA 
policy that can be relied upon by a reasonably prudent person.  A mine
operator cannot reasonably rely on the lack of enforcement by MSHA to 
establish that a standard was not violated.

	I believe that this case presents a different situation than in Lanham.
In that case, the only testimony on the issue was from the MSHA inspector.
He testified that he had never cited an operator for failing to tie off when
tarping a truck and that "he had never observed safety belts or  lines used
in such situations in more than 40 years of mining experience."  13 FMSHRC 
1710-11(ALJ on remand).  The issue was whether a reasonably prudent "person
would have recognized that attaching a tarp to a truck without utilizing
safety belts and lines was prohibited by the regulation."  Id. at 1711. 
Based on the evidence, the judge determined that the "practice of using 
safety belts and lines while tarping trucks is rarely if ever followed in
the coal industry."  Id. at 1712.   In the present case, on the other hand,
the record contains at least some evidence that other gold mine operators
provided a separate eating area for its employees that was kept as free of
mercury as was reasonably possible.  (Tr. 160-63, 1533, 1542-45).  The
testimony cited by Newmont establishes than Inspector Drussel, had not
previously considered how to apply the standard to Newmont's offices when
mercury was present at levels below the TLV.  He did not testify that he 
had previously thought about the issue and determined that the standard 
was not violated in such circumstances.   Moreover, neither Inspector 
Drussel nor any other witness testified that metal mines rarely, if ever,
provide clean lunchrooms for employees.

	As stated above, I find that the mining industry was provided with 
sufficient notice of the requirements of section 56.20014.  I believe,
however, that the issue is a close one and that MSHA could and should have
done a better job of communicating the standard's requirements to the 
mining community for the benefit of miners.  The failure to provide such 
guidance unnecessarily delayed the day when all mines provide clean 
lunchrooms for miners.  I have taken Newmont's arguments into consideration
when evaluating the unwarrantable failure allegations and the negligence 
criterion of section 110(i), as discussed below.

	4.  Were the Violations of a Significant and Substantial Nature?

	An S&S violation is described in section 104(d)(1) of the Mine Act as 
a violation "of such nature as could significantly and substantially 
contribute to the cause and effect of a ... 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.  National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a 
four-part test for analyzing S&S issues.  Evaluation of the criteria is 
made assuming "continued normal mining operations."  U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984).  The question of whether a particular
violation is S&S must be based on the particular facts surrounding the 
violation.  Texasgulf, Inc., 10 FMSHRC 498 (April 1988).  

	In order to establish that the violations are S&S, the Secretary must
establish:  (1) the underlying violation of the health standard; (2) a 
discrete health hazard, a measure of danger to health, contributed to by 
the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an illness; and (4) a reasonable likelihood that the illness
in question will be of a reasonably serious nature. Consolidation Coal Co.,
8 FMSHRC 890, 897 (June 1986).  

	I find that the Secretary established the first two elements of the
Commission's S&S test, but did not establish the third element.  Under
the third element, the Secretary must establish that it is reasonably 
likely that the hazard contributed to by the violation will result in an 
illness, but is not required to show that it is more probable than not 
that an illness will result from the violation.  U.S. Steel Mining Co., 
18 FMSHRC 862, 865 (June 1996).  In support of her position, the Secretary
argues that Congress unambiguously declared itself in favor of preventing
disability from any occupationally related disease.  She contends that "the
evidence supports the conclusion that the failure to control mercury 
exposures in the two break areas, if allowed to continue, assuming normal
continued mining operations, could reasonably be expected to cause
mercury-related illness."  (S. Br. at 41).   The Secretary relies on the
level of mercury that was present in the offices in the weeks prior to
March 14, 1995, the reports of beads of liquid mercury in the offices,
and the lack of precautions to prevent employees from bringing contaminated
clothing and personal protective equipment into the offices. The Secretary
also relies on a different TLV for mercury that has not been adopted by 
MSHA.  

	I agree that the elimination of occupational illnesses is one of the 
key goals of the Mine Act.  Nevertheless, there has not been any showing 
that the exposures resulting from the violations contributed to any mercury
related illness.  It is important to put the violations into context. 
Newmont violated section 56.20014 because it permitted employees to eat,
drink, and store food and beverages in an area exposed to a toxic material.
The fact that mercury was present in the offices was a violation only 
because of the presence of food and beverages.  The testimony established
that employees spent a significant amount of time in the offices, not
because they were eating or drinking beverages, but because their work
required them to be in the offices.  If Newmont had established a separate
lunchroom in 1994, the employees' exposure to mercury would not have been
significantly reduced at the time of the inspection.  Employees would only 
be in the lunchroom while eating lunch and perhaps during breaks.[3]

	Assuming continued normal mining operations, employees would be working
in the offices and the plants throughout the day and would be exposed to
mercury vapor at about the same levels as detected by Inspector Drussel and 
measured by Newmont.  There is nothing in the record to indicate that 
employees would have changed their behavior in the offices if food and 
beverages had been prohibited in the offices.  They would have taken off
their personal protective equipment, including respirators, upon entering 
the offices and worked at the desks and control panels.  It is also highly 
likely that employees would have taken breaks in the offices, even though 
they could not eat or drink.  Thus, employees would have been exposed to 
the same levels of mercury, except during their lunch break, without 
violating MSHA standards.  The Secretary's witnesses were concerned about 
the exposures in the offices because employees take off  their protective 
equipment and let "down their guard" when they eat and consume beverages.
(Tr. 2370-71, 2377-78).  But, as stated above, I find that these concerns
would have existed in the offices whether or not Newmont violated section 
56.20014.  (Tr. 3109-10).  Newmont abated the violations by establishing a
separate lunchroom in a trailer adjacent to the AARL building.  The issue
is whether the two violations were S&S, not whether exposures to 24 _g/m3 
of mercury are S&S in the abstract.  There has been no showing that food 
or beverages were being contaminated with mercury and it is highly unlikely
that anyone would become ill by ingesting small amounts of mercury. 

	The Secretary sought to establish the S&S nature of the violations by
introducing evidence of the medical records of Kim Redding.  I held that
such records were not admissible, because they are not relevant.  Even if
I assume that Kim Redding suffered from a mercury- related illness, I cannot
relate such an illness back to the violations at issue.  Mr. Redding spent a
considerable amount of time in the plants where his exposure to mercury was 
generally greater.  He also spent a considerable amount of time in the 
offices.  As stated above, he would have spent about the same amount of
time in the offices even if the standard were not violated.  Prior to
mid-1994, Newmont employees were not required to use respirators while in 
the plant, so Mr. Redding was exposed to mercury vapor throughout the 
working day, even when he was not in the offices.

	The Secretary also relies on the TLV established by the American
Conference of Governmental Industrial Hygienists ("ACGIH") for mercury in 
1996.  This TLV has not been adopted by MSHA.  The 1996 TLV is 25 _g/m3 
for an eight-hour shift.  In early 1995, the employees in the Carbon-Handling
Department were working 12-hour shifts.  The Secretary argues that for a 
12-hour shift, the 1996 TLV should be 16.5 _g/m3 because each shift is 50
percent longer. 

	I reject the Secretary's argument for several reasons.  First, as stated
above, employees spend the vast majority of their time in the offices
working, not eating or drinking.  If Newmont had previously established 
a separate lunchroom, the employees' exposure to mercury vapor would not
have been significantly different.  The Secretary did not establish a 
connection between the violations and the exposure.  Second, the Secretary 
has not adopted the 1996 TLV for mercury.  The Secretary cannot contend that
the health of an employee is protected throughout the plant including areas
where personal protective equipment is not generally worn so long as he is 
not exposed to more than 50 _g/m3 over an eight-hour period, but that any 
exposure above 25 _g/m3 in an area where food or beverages are consumed
creates a significant and substantial health hazard.[4]  If food or 
beverages are not consumed or stored in the offices, the Secretary allows
employees to be exposed to up to 50 _g/m3.  Thus, if I accept the 
Secretary's argument, employees can be legally exposed to levels of mercury
in the plants that are reasonably likely to result in an illness.  Under
the Secretary's regulatory scheme not only are such exposures not S&S, they 
are not even violations.  If the Secretary believes that a miner's health 
is endangered if he is exposed to more than 25 _g/m3 of mercury vapor over
an eight-hour shift, she should amend section 56.5001 through rulemaking. 

	Finally, Newmont established by a preponderance of the evidence that it
had in place a mercury medical monitoring program to protect the health of
all employees.  Newmont established this program in mid-1994 under the 
supervision Dr. James Craner, an occupational health physician, and Dr.
David Hogle, a local physician.  The program was designed to monitor the
mercury levels in Newmont employees.  Employees in the carbon-handling 
department were given annual physical examinations to test for possible 
toxic effects of mercury and submitted 24-hour urine samples.  The samples
were analyzed for mercury content using a Biological Exposure Index ("BEI").  The BEI is a well-recognized method, developed by the ACGIH, of measuring the exposure of an individual to a hazardous substance such as mercury.  It takes into consideration all exposure routes, not just inhalation of mercury vapor.  Dr. Melissa McDairmid, an associate professor of medicine at the University of Maryland and former chief medical officer with OSHA, testified on behalf of the Secretary.  (Tr. 2269-70).  She testified that the BEI is a better indicator of individual exposure to a toxic substance than determining an individual's exposure through the TLV for that substance because it "measures exactly what got into the worker."  (Tr. 2313).  The BEI for mercury is 35 micrograms per gram of creatinine in the urine.  Newmont set its internal standard at 20 micrograms for an extra measure of protection.  Dr. McDairmid testified that 20 micrograms is a well-recognized cut-off point for mercury.  (Tr. 2347-48).  In 1994 and 1995, no employee exceeded 30 micrograms while eight employees tested between 20 and 30 micrograms in 1994, and 2 employees tested in that range in 1995.  (Ex. R-6 p. 7).  Of course, this procedure measured mercury exposure from throughout the plants, not just from the offices.

	Newmont also collected weekly urine samples from carbon-handling 
employees.  These samples were not analyzed using the BEI in micrograms
per gram of creatinine in the urine.  Instead, mercury levels were measured 
in parts per billion.  This measurement does not take into consideration 
such factors as the weight of the individual, the amount of liquid consumed,
and the individual's age.  (Tr. 2348-51).  Without correcting for creatinine,
outside factors can influence the reading and significantly skew the results
plus or minus 30%.  (Tr. 3001-04).   Nevertheless, such measurements provide
a rough indication of an individual's mercury intake, at least if enough 
samples are taken over a period of time.  Several individuals had readings
above 35 micrograms.  (Tr. 2356-57; Ex. S-206).  If a group of individuals
consistently provides samples at that level over a period of time and these 
samples are confirmed by samples that are corrected for creatinine, it is
reasonably likely that some of the group will develop health problems. 
(Tr. 2358-59).  These high readings, however, could have been caused by
mercury exposure in areas of the AARL and ZADRA facilities where employees
may be legally exposed to up to 50 _g/m3 of mercury vapor.   There is no
evidence to tie these readings to the offices, much less to exposure caused
by the consumption or storage of food and beverages.

	Dr. Jonathan B. Borak, associate clinical professor of internal medicine
at Yale University, testified on behalf of Newmont.  Dr. Borak teaches 
occupational medicine and is involved in developing practice standards in 
occupational medicine.  He reviewed the medical monitoring program in place
in Newmont and concluded that the program was a "very specific and complete
protocol" and it  "exceeded the standard of care."  (Tr.  2999-3001, 
3083-85).  I credit Dr. Borak's testimony in this regard.  While Newmont's
program did not guarantee that no employee would be overexposed to mercury,
it reduced the risk of overexposure.

	Dr. McDairmid testified that one cannot determine an exposure limit,
whether by TLV or BEI, "below which you can reliably guarantee that no one 
will suffer abnormal health consequences."  (Tr. 2309).  She further stated
that "it is very difficult to choose a specific exposure level and be able
to say with surety that no [employees] will suffer health consequences if 
they are exposed below that concentration."  (Tr. 2308, 2467-68).  Such 
concerns cannot be the basis for an S&S finding in this case because they 
are too vague and undefined.  There has been no showing that the violations
in these cases presented a reasonable likelihood that the hazard contributed
to by the violations will result in an illness, assuming continued mining
operations. 

	4.  Were the Violations the Result of Newmont's Unwarrantable Failure?

	The Commission has held that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987).  Unwarrantable failure is characterized by such 
conduct as "reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991).  The Commission
has held that "a number of factors are relevant in determining whether a 
violation is the result of an operator's unwarrantable failure, such as 
the extensiveness of the violation, the length of time that the violative
condition has existed, the operator's efforts to eliminate the violative
condition, and whether an operator has been placed on notice that greater
efforts are necessary for compliance."  Mullins and Sons Coal Co., Inc.,
16 FMSHRC 192, 195 (February 1994)(citation omitted).

	The Secretary argues that Newmont knew that mercury vapor was present
in the offices for at least four years prior to the date the citation and
order were issued.  Newmont's "failure to remove employees from the hazard
of exposure to mercury, a well-recognized toxic material, in view of the 
long history of exposure in the cited areas, was unjustifiable."  (S. Br.
at 46).  She also argues that Newmont had been warned of the violation.  
For example, the Secretary refers to a memorandum of a former industrial
hygienist for the company warning that drawing air into the AARL office 
from the plant "could potentially increase the mercury exposure" for
employees in the office.  (Ex. S-127 p. 3).  The Secretary also relies on
the changes made at the refinery lunchroom in 1992 and the complaints made 
by employees.  The Secretary also maintains that Newmont's reliance on the
TLV was misplaced and that, in any event, some of the Jerome readings in 
the offices were above the TLV.  

	I have no difficultly in concluding that the Secretary did not meet her
burden of proving that these violations were the result of Newmont's 
unwarrantable failure.  In reaching this conclusion, I have relied on a 
number of factors.  First, for the reasons set forth above in discussing
the reasonably prudent person test, I find that the Secretary made little
effort to advise the mining industry of the requirements of section 
56.20014.  The Secretary had not been enforcing this standard with respect
to mercury at gold mines.  Newmont's mine had been inspected on a number
of occasions and MSHA inspectors had been in the subject offices. Inspector
Drussel, for example, testified that he had not applied the provisions of
the standard to the offices prior to 1995, because he did not believe that
readings below the TLV violated the standard.  (Tr. 1203-06).  Although I
found that the mining industry was provided with sufficient notice of the
terms of the standard to meet the reasonably prudent person test, I hold 
that the evidence discussed with respect to that issue is relevant here.
I find that such evidence helps to establish that Newmont's failure to keep
the level of mercury in the offices below that detected by Inspector 
Drussel was not the result of its reckless disregard or indifference to 
the requirements of the standard or a serious lack of reasonable care.

	Second, Newmont relied, to a large extent, on its medical evaluation
program to make sure that employees were not over-exposed to mercury.  
Rather that separately focusing on the offices, Newmont took into 
consideration employee exposure to mercury from all sources. This program
is described in detail above.  While Newmont's program was not perfect, 
it demonstrates that Newmont was concerned about employee exposure to 
mercury, at least since mid-1994. 

	Third, the Secretary's argument that some of the Jerome readings in 
the offices "exceeded the TLV" is misplaced.  The fact that Jerome readings
above 50 _g/m3 are detected does not indicate that the TLV was exceeded
because Jerome readings are not time-weighted.  In addition, the citation
and order charge that certain specified amounts of mercury vapor were 
detected in the offices.  Although the historic readings kept by Newmont
help validate Inspector Drussel's measurements and establish a history of
mercury vapor in the offices, I base my decision in this case on the 
conditions described in the citation and order.  Newmont has never been
cited for a violation of the TLV for mercury anywhere in its carbon-handling
operations.  It established a respirator program in mid-1994 to protect 
employees in the AARL and ZADRA plants.  Although this is not an important
factor in my decision, it establishes that Newmont was not indifferent to
mercury exposure.

	Fourth, Newmont was in the process of installing a trailer outside the
AARL building in March 1995 to be used for storing and consuming food and
beverages.  The trailer was not being used at the time of the inspection 
because water and power lines needed to be connected.  The trailer was used
to abate the citation on the day the citation and order were issued.

	I conclude that the Secretary did not establish that the violations were
caused by Newmont's aggravated conduct.  Although the violations had existed
for a considerable length of time, there were mitigating notice issues, as 
discussed above.  Newmont had been making considerable efforts to monitor 
and control mercury exposure throughout the carbon-handling department
without focusing specifically on the offices.  Finally, Newmont had not 
been put on notice that greater efforts were necessary beyond what it was
in the process of implementing at the time of the MSHA inspection. Although
a case could be made that Newmont was not doing enough prior to August 1994,
the record makes clear that it was making significant improvements in the 
fall of that year and in the first quarter of 1995.

	I find that the Secretary established, however, that the violations were
caused by Newmont's moderate negligence.  First, I agree with the Secretary
that, given the presence of food and beverages in the offices, Newmont was 
not doing enough to control the entry of mercury into the offices. Standard
industrial hygiene practices require that when employees enter eating areas
certain "housekeeping" precautions be taken.  Personal protective equipment 
and any contaminated clothing should be removed prior to entering the eating
area.  Employees should be able to clean their boots and wash their hands 
prior to entry.  In addition, the eating area should be designed so that it
can be easily kept clean.  Michael Lynham, an industrial hygienist with
Denver Tech, described an optimal program for constructing and maintaining 
a clean lunch area.  (Tr. 2047-65; Exs. S-20 & S-25).  Although section 
56.20014 does not necessarily require a program as elaborate as the one 
described by Mr. Lynham, I find that Newmont could have been doing more
to control mercury in the offices due to the fact that food and beverages 
were there.

	Second, general principles of industrial hygiene provide that individuals
should not eat or drink in the presence of mercury.  The material safety 
data sheet and the NIOSH criteria document for mercury state that employees
should not eat or drink in any mercury work area.  (Tr. 2628; Ex. R-6 
appendix III, Art. 7(a)).  Moreover, MSHA developed a health hazard 
information card for mercury entitled "Working with Mercury."  (Ex. S-76).
This card states, on the back, that "[f]ood should not be stored, dispensed,
or eaten in any place that might be contaminated with mercury." (Id.; see 
also 2631-34)  While these sources relate to all forms of mercury, not just
elemental mercury, they help to establish that Newmont's failure to provide
a cleaner area for eating and storing food was the result of its moderate 
negligence.

	B.  The Citation and Order Alleging Violations of Section 56.20011

	1.  Introduction

	The boneyard where the scrubber was stored is in remote areas of the 
mine property.  Employees are not generally in the boneyard unless they are
looking for a piece of equipment that may be of use.  A piece of equipment
may be removed from this area for reuse from time-to-time or parts from the
equipment may be removed.  In some instances, a torch may be used on the 
equipment to remove a piece.  Thus, the boneyard was used as a salvage yard 
on an occasional basis.

	At the time of the inspection, the boneyard was enclosed with a berm and
was equipped with a gate.  The gate was not locked and there were no warning
signs indicating that mercury was present or could be present in the area. 
Inspector Drussel observed beads of mercury inside the pontoons of the 
scrubber.  (Tr. 1137-40; Ex. S-5).  He took a mercury reading with his 
Jerome meter at a hole in the pontoon and obtained a reading of 145 _g/m3. 
(Tr. 1142-43; Ex. S- 3 p. 8).  He took another reading of 514 _g/m3.  Id. 
The scrubber had been originally used in the AARL and was placed on a leach
pad for cleaning several months before the MSHA inspection.  Baseline
testing for mercury was conducted by Newmont's industrial hygiene department
and readings around 3 _g/m3 were obtained.  (Tr. 1786; Harmon Dep. 113;
Ex. R-28).  The scrubber leaked mercury while it was at the leach pad. 
(Ex. S-126 "Investigation Report" dated 8/4/94).   Newmont cleaned the 
scrubber and also engaged an independent contractor to clean the scrubber 
at some point after that occurrence but before it was moved to the boneyard.
(Tr. 954-56, 979)  Wipe samples of the scrubber were taken for analysis in
October 1994.  (Tr. 1151-53; 614, Ex. S-110 pp 1-7).   The scrubber was 
moved to the boneyard prior to Inspector Drussel's inspection on March 14,
1995.  The inspector issued Order No. 4140246 under section 104(d)(1) of 
the Mine Act alleging a non-S&S violation of section 56.20011.  The 
condition was abated by moving the scrubber to a different location and 
labeling it as a hazard.

	On the previous day, Inspector Drussel saw an old dewatering screen from
the ZADRA facility near the AARL building.  The screen was next to the ball
storage area for the ball mills.  He observed beads of mercury on the 
screen.  (Tr. 941, 1114).  He did not take any samples for mercury.  
(Tr. 1246-47).  The area was not posted or barricaded.  Inspector Drussel
issued Citation No. 4140248 under section 104(a) of the Mine Act alleging
a non-S&S violation of section 56.20011. The condition was abated by moving
the screen to a different location and labeling it as a hazard. 

	2.  Did Newmont Violate Section 56.20011?

	The cited standard provides, as relevant here, that areas "where health
or safety hazards exist that are not immediately obvious to employees shall
be barricaded, or warning signs shall be posted at all approaches."  Newmont
contends that it did not violate this standard because the Secretary's
witnesses only testified that the scrubber and screen presented a "potential
hazard" to employees.  Newmont contends that the language of the standard 
makes clear that an actual hazard must exist.  In addition, it points to the
Secretary's Program Policy Manual, which provides that the standard applies
to areas where "health or safety hazards exist but are not obvious." 
Newmont maintains that any mercury on the scrubber or screen did not pose
a hazard to anyone in those areas.  As proof of its argument, Newmont refers
to the sampling done at the scrubber and screen by its safety director after
the order was issued.  Devices used to measure an employee's exposure to
mercury were hung directly above the equipment for a full eight-hour shift,
as if someone were standing above each piece for an entire shift.  In both 
instances the results were below the TLV for mercury.  

	I find that the Secretary established a violation in each instance. 
Newmont's argument that tries to draw a distinction between a hazard and 
a "potential" hazard is without merit.  A potential hazard is simply a
hazard that may cause harm.  Any hazard will fit that definition.  If a
wooden box filled with explosives were present in the boneyard, it would
present a potential hazard.  Such a box could sit there for 20 years and 
not harm anyone, or someone could be killed the day after it is put there.
The issue is whether the scrubber and screen presented a health hazard that
was not immediately obvious.  I find that the mercury on this equipment 
presented a hazard to employees.  (Tr. 2691-99).  An employee trying to
move the equipment, for example, could get mercury on his hands or clothing.
As a consequence, the employee could breathe the mercury fumes for a 
considerable length of time.  If this exposure is the employee's only 
exposure to mercury, it is highly unlikely that he will be harmed in any
way.  Employees at the mine, however, are exposed to mercury vapor from
many sources so such an exposure would add to their total body burden. 
The fact that, at the time of the inspection, the mercury on the screen 
had formed an amalgam is not controlling.  In addition, I find that the 
hazard presented by the mercury vapor, which cannot be seen or smelled, 
was not immediately obvious.

	The Secretary interprets the phrase "health or safety hazard" in the
standard broadly for the protection of miners.  Given the purposes of the
Mine Act, the Secretary's interpretation is reasonable.  She is not required
to establish that the alleged hazard created an imminent danger or that the
hazard was likely to cause an employee immediate harm.  As stated with 
respect to the violations of section 56.20014, I concluded that mercury
vapor is a toxic material.  I incorporate my analysis of those violations
here and conclude that the mercury observed by Inspector Drussel created 
a health hazard for employees.  As with the section 56.20014 violations, 
I find that the Secretary is not required to show that mercury vapor
violated the TLV in order to establish a violation of section 56.20011. 
I believe that the regulation is rather clear on its face and I defer to
the Secretary's interpretation, in any event.  I also conclude that section
56.20011 does not present the notice issues that were presented by section 
56.20014.  I find that the language of the standard provides a reasonably 
prudent person with sufficient notice of its requirements.  In addition, the
Program Policy Manual makes clear that storage facilities and dumps commonly
contain toxic substances such as acids, gases, dusts, and radiation that 
create imperceptible health hazards.  A reasonably prudent person would 
recognize that equipment in the boneyard that had mercury on its surfaces
presented a hazard that was not immediately obvious.

	I find that these violations were not serious.  It was unlikely that
anyone would be harmed by the mercury on the screen and scrubber because
of their location, the small quantity of mercury present, and the low 
levels of fumes emitted.  It must be remembered that Inspector Drussel 
took his Jerome readings at the scrubber next to a hole that had been cut
into the pontoons so the readings were much higher than what an employee
would likely be exposed to if he were working on or around the scrubber.
Inspector Drussel determined that the violations were not S&S.

	3.  Was the violation in the Boneyard the Result of Newmont's 
Unwarrantable Failure?

	The Secretary contends that the scrubber violation was caused by
Newmont's unwarrantable failure because she believes that Newmont was 
aware of the hazard created by the scrubber but did nothing to prevent
employees from being exposed.  The Secretary relies to a large extent 
on conditions that existed when the scrubber was still at the leach pad,
such as the report that mercury was leaking from the scrubber in August
1994.  (Ex. S-126 "Investigation Report" dated 8/4/94).  The Secretary
contends that this report demonstrates that Newmont knew that the scrubber
created a hazard and that it needed to be posted.  The Secretary points to
the testimony of a Newmont supervisor that he wanted the scrubber to be
encased in concrete.  (Sawyer Dep. at 182-83).  The Secretary also maintains
that the wipe samples that were taken after the scrubber was cleaned by a
contractor indicated that mercury was still present.  

	I find that the Secretary did not establish that this violation was
caused by Newmont's unwarrantable failure to comply with section 56.20011.
First, the condition of the scrubber in August 1994 is of little relevance.
While it might have been a good idea to encase the scrubber in concrete, the
fact that Newmont did not do so does not establish its unwarrantable 
failure.  Instead, Newmont attempted to clean the scrubber.  When testing 
indicated that mercury residue was still present on the scrubber, Newmont
had a contractor clean the scrubber more thoroughly before it was moved to
the boneyard.  (Tr. 979, 1043-45, 1635-36, 1784-87; Ex. R-28). 

	The Secretary states that a conversation between Inspector Drussel and 
Newmont officials demonstrates that Newmont was aware that the scrubber 
still contained a significant amount of mercury after it was cleaned a
second time.  (Tr. 1151-52, 614; Ex S-110 pp 1-7).  This evidence is too 
imprecise to make an unwarrantable failure finding.  The record does not 
reveal when the scrubber was cleaned by the contractor or when it was moved 
to the boneyard.  The exhibit is not of much help because I am unable to
interpret it or determine when the samples were taken in relation to the 
events at issue.  It is not clear to me that Newmont management knew that 
the scrubber contained significant amounts of mercury when it was moved to 
the boneyard.  The Secretary bears the burden of proof on this issue.   
I find that the Secretary established that both violations of section 
56.20011 were the result of Newmont's moderate negligence.

IV.  APPROPRIATE CIVIL PENALTIES

	Section 110(i) of the Mine Act sets forth six criteria to be considered
in determining appropriate civil penalties.  I find that Newmont was issued
about 58 citations and orders in the 24 months preceding March 14, 1995.  
(Tr. 1500-07; Ex. S-2).  I also find that Newmont is a large gold mine 
operator.  I further find that the penalties assessed in this decision will
have no effect on Newmont's ability to continue in business and that all of
the violations alleged in the citations and orders were quickly abated in
good faith.  I find that the gravity of the section 56.10014 violations was
low for the same reasons that I found that the violations were not S&S, as
set forth above.  I find that Newmont's negligence with respect to these 
violations was moderate for the reasons set forth in the unwarrantable 
failure discussion, set forth above.  I find that the gravity of the section
56.20011 violations to be low, as acknowledged by Inspector Drussel.  I
also find that Newmont's negligence with respect to these violations was
moderate.  Based on the penalty criteria, I find that the penalties set
forth below are appropriate for the violations.

V.  ORDER

	The parties presented a great deal of evidence in these cases.  Because
of the size of the record, I could not discuss in this decision all of the 
testimony and exhibits that were admitted into evidence.  Any evidence in
the record that is not consistent with my findings and conclusions in these
cases is hereby rejected.  The parties also presented a large number of
motions in these cases.  These motions were made in writing or were 
presented orally at the hearing.  Such motions were made prior to the
hearing, during the hearing, and after the hearing.  I ruled on the vast
majority of these motions.  Any motions that were not granted or otherwise 
ruled upon are hereby denied.

	Based on my findings and conclusions set forth above and the criteria in
section 110(i) of the Mine Act, 30 U.S.C.  820(i), I enter the following 
order:

	1.  Citation No. 4140245 - This citation is affirmed, but is modified
	to a section 104(a) citation.  The S&S and unwarrantable failure 
	determinations are deleted, the gravity is found to be low, and the 
	violation is found to have been caused by Newmont's moderate negligence.
	A penalty of $600.00 is assessed for this violation of 30 C.F.R. 
	 56.20014.	2.  Order No. 4140246 - This order is affirmed, but is
	modified to a section 104(a) citation.  The S&S and unwarrantable 
	failure determinations are deleted, the gravity is found to be low,
	and the violation is found to have been caused by Newmont's moderate 
	negligence.  A penalty of $600.00 is assessed for this violation of 
	30 C.F.R.  56.20014.

	3.  Order No. 4140247 - This order is affirmed, but is modified to a
	section 104(a) citation.  The unwarrantable failure designation is 
	deleted and the violation is found to have been caused by Newmont's
	moderate negligence.  A penalty of $300.00 is assessed for this 
	violation of 30 C.F.R.  56.20011. 

	4.  Citation No. 4140248 - This citation is affirmed and a penalty
	of $300.00 is assessed for  this violation of 30 C.F.R.  56.20011.

	Accordingly, the citations and orders set forth above are hereby 
AFFIRMED, as modified in this decision, and Newmont Gold Company is 
ORDERED TO PAY the Secretary of Labor the sum of $1,800.00 within 30 days 
of the date of this decision.

						Richard W. Manning
						Administrative Law Judge

Distribution:

Jeanne Colby, Esq., Office of the Solicitor, U.S. Department of Labor,
71 Stevenson St., Suite 1110, San Francisco, CA 94105-2999 
(Certified Mail)

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203-1954  (Certified Mail)

Henry Chajet, Esq., and David Farber, Esq., Patton Boggs, 2550 M Street,
NW, Washington,  DC 20037-1350  (Certified Mail)

RWM

**FOOTNOTES**

[1] 	  The TLV for mercury under section 56.5001 is 0.05 milligrams per
cubic meter of air (mg/m3).  Since Inspector Drussel measured mercury vapor
in micrograms, I also use micrograms throughout this decision.  50 
micrograms (_g ) is equal to 0.05 milligrams (mg).

[2] 	  At the hearing, upon joint motion of the parties, the deposition
transcripts of a number of individuals were admitted into evidence in lieu
of testimony.

[3] 	  I can safely assume that Newmont would not allow its employees 
to spend lengthy periods of time in a separate lunch room away from the 
plants and offices.  Employers require employees to remain at their duty 
stations except during established breaks.  In addition, the Secretary 
established that Newmont required its carbon-handling employees to remain
in the offices or the plants at all times while the plants were running.

[4] 	  Although Newmont took a large number of mercury readings in the
offices, these readings are not a time-weighted average.  Thus, a high 
mercury reading may be an abnormal, short-term, excursion that would not
be reflected in a time-weighted mercury reading.