<DOC>
[DOCID: f:w-93-343.wais]
C.W. MINING COMPANY
February 22, 1995
WEST 93-343
           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                  (303) 844-3912/FAX (303) 844-5268
                          February 22, 1995
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEST 93-343
                 Petitioner     :  A.C. No. 42-01697-03648
                                :
                                :  Docket No. WEST 93-344
           v.                   :  A.C. No. 42-01697-03649
                                :
                                :  Docket No. WEST 93-399
                                :  A.C. No. 42-01697-03654
C.W. MINING COMPANY,            :
                 Respondent     :  Docket No. WEST 93-491
                                :  A.C. No. 42-01697-03655
                                :
                                :  Docket No. WEST 93-517
                                :  A.C. No. 42-01697-03656
                                :
                                :  Bear Canyon No. 1
                               DECISION
Appearances:  Tambra Leonard, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado,
              for Petitioner; Carl E. Kingston, Esq., Salt
              Lake City, Utah, for Respondent.
Before:  Judge Morris
     The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSHA"), charges Respondent C.W. Mining
Company ("CWM") with violating safety regulations promulgated
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
 801, et seq. (the "Act").
     After a hearing on the merits was held in Salt Lake City,
Utah, the parties submitted post-trial briefs.
                      SETTLEMENTS IN WEST 93-343
     The parties reached an amicable settlement as to certain
citations and a motion to approve a partial settlement and order
payment was filed.
     The settlement motion is formalized in this decision.
     The agreement provides, in part, as follows:
     Citation Nos. 3582877, 3582905, and 3582919:  There is
insufficient evidence to support these citations, and the
Secretary moved for their dismissal.
     Citation No. 3582910:  The operator stipulates to this
violation and agrees to pay the proposed penalty of $50.00.
     Citation No. 3582904:  The operator stipulates that this
violation occurred and that it was "significant and
substantial"; the Secretary further determined that the
negligence of the oper- ator was less than originally
assessed.  The amended penalty is $345.00.
     I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.  It should be
approved and such approval is formalized in the Order of
this decision.
                             Stipulation
     In connection with the issues, the parties further
stipulated as follows:
     1. CWM is engaged in mining and selling bituminous coal
in the United States and its mining operations affect
interstate commerce.
     2. CWM is the owner and operator of Bear Canyon No. 1
Mine, MSHA I.D. No. 42-01697.
     3. CWM is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (the
"Act").
     4. The Administrative Law Judge has jurisdiction in this
matter.
     5. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevance of any
statements asserted therein.
     6. The exhibits to be offered by Respondent and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters
asserted therein.
     7. The proposed penalties will not affect CWM's ability to
continue in business.
     8. The operator demonstrated good faith in abating the
violations.
     9. CWM is a small mine operator with 353,377 tons of
production in 1992.
                   FURTHER CITATIONS IN WEST 93-343
                         Citation No. 3582908
     The above citation, issued under Section 104(a) of the
Act, alleges a violation of 30 C.F.R.  75.316.[1]
The citation reads as follows:
          The current approved (Oct. 18, 1990) ventilation
          system for methane and dust control plan was not
          being complied with on the north mains [MMU 002]
          working section.
          The water spray system on the continuous miner was
          not maintained.  When tested, 10 of the 28 water
          sprays did not function, exceeding the approved
          90 percent that must be operative.  [Page 9, Item 5.]
          The machine was not in use but available for
          use.
                              Discussion
     CWM asserts as a preliminary matter that Citation No.
3582908 should be vacated because the cited code ( 75.316) was
not in effect at the time of the inspection.
     CWM states that Citation No. 3582908 alleges the company
violated 30 C.F.R.  75.316.  The citation was issued on
October 29, 1992.  However, the July 1, 1992, edition of 30 C.F.R.
parts 1 to 199, skips from  75.313 to  75.321 (pages 517-518).
There was no  75.316.  The next edition, which was revised as of
July 1, 1993, skips from  75.315 to  75.320 (pp. 541-542).
There still was no  75.316.
     CWM correctly states the changes in the Code of Federal
Regulations in 1992.  Section 75.316 no longer appeared as such.
However, it was still a requirement as it had been recodified in
Section 75.370 (pp. 531, 1992 C.F.R.).  Ventilation plans were
required.
     CWM had a ventilation plan and was fairly apprised of the
ventilation requirements imposed by  75.370.  In sum, citing an
incorrect regulation does not vitiate otherwise valid citations.
Accordingly, the preliminary motion to vacate Citation No.
3582908 is again DENIED.
            Additional Evidence as to Citation No. 3582908
     Inspector Gibson testified the methane and dust control plan
for the continuous miner was not maintained.  Upon being tested,
it was found that 10 of the 28 water sprays failed to function.
This failure rate exceeded the permitted ratio.  After testing
the equipment, Inspector Gibson circled the plugged sprays in red
on Exhibit P-7.  He further explained the importance of the spray
system.  It serves to control respirable dust, to cool the
cutting bits on the rotating drum, and to aid in preventing
a coal dust or methane ignition.  (Tr. 40, 41).
     On the merits, CWM states there was no violation of the plan
because the machine was out of service and not available for use.
On this credibility issue I credit Inspector Gibson's testimony
that the equipment was available for use.  It is uncontroverted
that the miner was parked in a crosscut on the working section
and it was not tagged out.
     A dispute between the witnesses exists as to whether the
continuous miner's power and lights were on and whether the panel
covers were off (i.e., was the machine energized?).  On this
issue I credit Inspector Gibson's conclusion because it was
supported by his inspection notes recorded that day.
     Further, the evidence is also confirmed by the statements
made to the Inspector by Mine Foreman Defa.  Mr. Defa asked the
Inspector to check permissibility on the miner while the roof
drill was being repaired.  Once the roof drill was repaired and
supports installed, they could cut through the crosscuts.
Obviously, the continuous miner was to be used for this effort.
(Tr. 35, 36).
     The Secretary's evidence establishes a violation. CWM's
evidence is insufficient to support a contrary view.
     Citation No. 3582908 should be affirmed and a civil
penalty assessed.
                           Civil Penalties
     Section 110(i) of the Act authorizes the Commission to
assess civil penalties.  The evidence relating to certain of the
criteria are common to all the citations here.  These include the
appropriateness of the penalties to the size of the business of
the operator charged.  The assessed penalties in these cases are
also appropriate in relation to CWM's coal production in 1991.
     Further, the assessed penalties will not affect CWM's
ability to continue in business.
     Finally, CWM is entitled to statutory good faith for
attempting to achieve rapid compliance after notification of a
          violation.
     The remaining criteria of prior history, negligence, and
gravity will be considered as they relate to the individual
citations.
     Concerning Citation No. 3582908, the operator's history
indicates there were 14 prior violations under former Section
75.316 in the previous two years.
     The operator's negligence is considered "moderate" because
the operator did not know that certain sprays were not
functioning.  (Tr. 47).  However, a routine check would have
disclosed the defective sprays.
     The gravity should be rated "moderate."  However, the
Inspector did not find this violation was "significant and
substantial."
     Considering all the statutory criteria, I conclude that
the proposed penalty of $50.00 is appropriate.
                         Citation No. 3582909
     The above citation, issued under Section 104(a) of the
Act, alleged a violation of  75.1107-16(b).  The Secretary
moved to amend the citation to allege a violation of
 75.1100-3.[2]   The motion to amend was granted over CWM's
objection.
     The citation reads as follows:
          The water-type fire suppression system being used
     on the Lee Norse continuous miner in the north mains
     working section was not being maintained.  When tested,
     three of the fire nozzles did not function.
          The continuous miner was not being used but was
     available for use.  The section was very wet.
                           Threshold Issues
     CWM renews its objection to the Secretary's amendment to his
citation.
     Cyprus Empire, 12 FMSHRC 911, 916 (May 1990), was cited as
authority for permitting such an amendment.  However, CWM asserts
Cyprus is not controlling because Cyprus admitted it was not
prejudiced by the amendment.
     In arguing its position, CWM asserts it was prejudiced
because the evidence to establish a violation of  75.1100-16(B)
was substantially different from that required under  75.1100-3.
     CWM's arguments are without merit.  The underlying facts did
not change; the change was in the Secretary's legal theory of the
case.  No prejudice has been demonstrated by the operator.
     It is well established that leave to amend "shall be freely
given when justice so requires."  Foman v. Davis, 371 U.S. 178,
182, 82 S.Ct. 227, 9 L.Ed. 222 (1962); Rule 15(a), FRCP.
     On the merits involving Citation 3582909, CWM further argues
the continuous miner had been removed from service.  However,
this is a renewal of the argument made in connection with
Citation No. 3582908.  The same continuous miner was involved
and the same ruling is appropriate.
     The evidence shows that when Inspector Gibson inspected the
continuous miner, he also inspected the fire suppression system
and observed that three fire nozzles were "either partly working
or not working at all."  (Tr. 53).
     At the hearing, Inspector Gibson explained that the fire
suppression system on the continuous miner is used "to sequester
the fire or put the fire out and/or hopefully prevent it from
spreading beyond the machine to the coal ribs, coal floor."  (Tr.
53).  Further, "[t]he nozzles are located at locations [on the
miner] that would produce heat, such as the electrical control
boxes, main controller."  If three of the fire nozzles are
plugged up, a fire hazard may result and a fire could occur on
the machine.  (Tr. 54)
     Inspector Gibson observed accumulations on the machine
around the tram motor, the cutter control box and in the front
compartment.  The accumulations were six inches deep in places.
In addition, the inoperative nozzles were near the equipment with
the accumulations covering it.  Further, the tram motor and
cutter control motors would also have been running hotter with
accumulations of coal dust covering them.  In addition, water
from dust suppression system was not flowing due to the plugged
nozzles.  (Tr. 54-59).
     On the credible evidence, Citation No. 3582909 should be
affirmed and a civil penalty assessed.
                         Civil Penalties
     The assessed violation history report indicates no prior
violations of Section 75.1100-3 occurred during the two years
prior to this citation.  (Ex. P-1).
     The operator's negligence was moderate because the miner
was available for use, but it was not in use.  (Tr. 61).
     Concerning gravity, the MSHA Inspector did not find this
violation to be of a "significant and substantial" nature.  The
gravity appears to be low.
     Considering all of the statutory penalty criteria, a civil
penalty of $50 is appropriate for Citation 3582909.
                        Docket No WEST 93-344
                         Citation No. 3852372
     The above citation, issued under Section 104(a) of the Act,
alleges a violation of  75.1702.[3]
     The citation reads as follows:
          The weekly examination for smoker articles
          was made in the bleeder section kitchen on
          1/03/93.  The check was not made before
          miners entered the mine.
          There were no violations indicated on the
          report conducted in the kitchen.
      Paragraph 2 of the operator's smoking prohibition program
(Ex. P-14) provides:
          All persons entering the mine shall be subject to a
          systematic search for smoking articles.  The searches
          shall be conducted at least weekly, at irregular
          intervals not to exceed seven (7) days.
                              Discussion
     According to MSHA Inspector Marietti, the check for the
smoking materials must be made at the portal or in the proximity
to where the miners are "entering" the mine.  (Tr. 112).  This
analysis is based on the Inspector's experience with smoker's
checks at the mines he has worked in, his knowledge of how the
checks are conducted at other mines, and MSHA's policy.  (Tr. 99,
102, 110).
     Mr. Defa, CWM's foreman, explained why the check is
occasionally made in the kitchen area.  This is the first place
workers go when they enter the underground area.  If a miner wanted
to hide or conceal his smoker's articles and he knew that the
checks were always made on the surface, he could hide them on the
mantrip before the check, remove them when he exited the mantrip
at the kitchen area, and have them underground without detection.
By changing the time and location of the checks, the operator
discourages such attempts and more fully conforms to the
requirement of the law, which is to make certain that no one carries
such articles underground.  By conducting the checks at the first
point the miners reach underground, in the event a miner did take
such articles underground either by mistake or design, the
articles could be removed before an opportunity to use them would
arise.
     Mr. Defa's testimony that other MSHA inspectors agreed
with CWM's interpretation of the regulation and of its own
plan, is supported by CWM's lack of violations.  Further, no
citation has ever been issued to CWM for conducting the
searches at the kitchen area.  (Tr. 108, 518).
     CWM's reasons for conducting searches in the kitchen are
commendable.  However, this case requires a ruling on the
issues as presented.  CWM's program, as noted above, simply
states that all persons entering the mine shall be subject
to the search.
     The regulations do not define the term "enter."  However,
the common meaning of "enter" is 1. "to go or come in; 2. to
come or gain admission into a group; join.  Webster's New
Collegiate Dictionary, 1979 at 377.
     This ordinary meaning of "enter" causes the Judge to
conclude that examination for smoker articles should be made
where the workers "enter" the mine.  Examinations for such
articles at such places as the kitchen are laudable but they
do not comply with the smoking prohibition program.
     Citation No. 3852372 should be affirmed and a penalty
ssessed.
                            Civil Penalty
     The assessed violation history report indicates there were
no prior violations of the cited section in the two-year
period prior to the issuance of this citation.
     The operator's negligence was "low" because most of the
smoker's checks were made on the surface and none of the
underground checks produced any smoker's articles.  (Tr.
106).
     The Inspector did not consider this violation to be of a
"significant and substantial" nature.  The operator's
gravity should be considered "low."
     A civil penalty of $10.00 is appropriate.
                        Docket No. WEST 93-399
               Citation Nos. 3852375, 3852376, 3852377
     These citations, issued under Section 104(a) of the Act,
allege violations of three separate but related regulations.
All of the citations relate to a bathhouse trailer fire on
December 26, 1992.
     The violations are for a failure to report, failure to
preserve evidence, and failure to file an MSHA form.
                         Citation No. 3852375
     This citation alleges CWM violated 30 C.F.R.  50.10. [4]
     The citation reads:
          The mine experienced a reportable mine fire
          on 12/26/92 between 1 a.m. and 2 a.m.  A
          bathhouse trailer on the surface burnt [sic]
          to the ground and partially burnt [sic] an
          adjacent wall and electrical system in the
          shop.
          The mine operator did not immediately or did
          they ever notify MSHA until they applied for
          bathhouse waiver received in District 9 on
          January 4, 1993.
                         Citation No. 3852376
     This citation alleges a violation of 30 C.F.R.  50.12.[5]
     The citation reads:
          The mine experienced a mine fire on December
          26, between 12:01 and 1 a.m.  The fire com-
          pletely destroyed a bathhouse trailer and did
          extensive damage to an adjacent shop wall and
          electrical equipment mounted on it.  The
          trailer was scooped into a pile about 50 feet
          from accident site and the damaged electrical
          equipment was taken down and discarded.
                         Citation No. 3852377
     This citation alleges a violation of 30 C.F.R.  50.20-1.[6]
     The citation reads:
          There was no MSHA Accident Form 7000-1 sub-
          mitted within 10 days for a trailer bathhouse
          fire that occurred on December 26, 1992, be-
          tween 12:01 a.m. and 1 a.m.
                      Discussion of the Evidence
     The central issue is whether a reportable fire occurred.
If the fire was reportable, then the operator must immediately
notify MSHA, preserve the evidence, and submit a Form 7000-1
report to MSHA.
     In order to resolve the issues, it is necessary to consider
the uncontroverted evidence and the definition of an "accident"
as defined in 30 C.F.R.  50.2.
     The uncontroverted evidence shows that a fire occurred on
December 26, 1992.  CWM did not immediately notify MSHA of the
fire, did not preserve the evidence, nor did it submit a Form
7000-1 to MSHA.  (Tr. 116, 117, 126).
     MSHA has no policy other than the text of Section 50.10
(supra, concerning notification).  (Tr. 117).
     MSHA Inspector Marietti estimated the fire burned for more
than 30 minutes considering the appearance and extent of the
remains.  He also volunteered it had been "quite a blaze."  (Tr.
126).
                          Further Discussion
     CWM contends that this was not a "mine" fire, in view of the
definition of a mine as contained in 30 C.F.R.  50.2.  Specific-
ally, CWM states the showerhouse was used by employees to shower
and change clothes.  Since it was not used to extract coal from
its natural deposit or used in the milling of coal, or in prepar-
ing the coal therefore the showerhouse was not a "mine."
     CWM's position lacks merit; it has long been held that a
"coal or other mine" is not limited to an area of land from which
minerals are extracted but, as is noted, it also includes facili-
ties, equipment, machines, tools, and other property used in the
extraction of minerals from their natural deposits and in the
milling or preparation of the minerals.  See, e.g., Donovan v.
Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984); Oliver M.
Elam, Jr., Co., 4 FMSHRC 5 (January 1982).  In determining cover-
age, it is necessary to give effect to Congress's clear intention
in the Mine Act, discerned from "text, structure, and legislative
history."  Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989).  Congress determined to regulate all mining
activity.  The Senate Committee stated that "what is considered
to be a mine and to be regulated under this Act [shall] be given
the broadest possible interpretation, and ... doubts [shall] be
resolved in favor of inclusion of a facility within the coverage
of the Act."  S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong. 2d Sess., Legislative History of the Fed-
eral Mine Safety and Health Act of 1977, at 602 (1978).
     This broad interpretation has been adopted by the courts.
See, e.g., Carolina Stalite Co., supra at 1554.  The definition
of "coal or other mine" has been applied to a broad variety of
facilities that are not "an area of land from which minerals are
extracted."  See, e.g., Harman Mining Corp. v. FMSHRC, 671 F.2d
794 (4th Cir. 1981) (operator loaded previously extracted and
prepared coal onto railroad cars for transportation); Stoudt's
Ferry, 602 F.2d 589 (3d Cir. 1979) (operator separated sand and
gravel from material that has been dredged from a river by the
Commonwealth of Pennsylvania); Carolina Stalite, supra at 1547
(D.C. Cir. 1984) (operator heated previously mined slate in a
rotary kiln to create a lightweight material used in making
concrete blocks.
     CWM also asserts the three citations should be vacated be-
cause they are all premised on the requirement of an "accident"
as defined in Section 50.2.  This section reads, in part, that
an (h) accident means (6) an unplanned mine fire not extinguished
within 30 minutes of discovery.  (Tr. 118).  CWM contends this
fire occurred on a holiday; it was not observed until it was
cold.  Therefore, it fails to meet the definition contained in
(h)(6).
     On this issue, I credit the testimony of Inspector Marietti.
He testified the bathhouse, one wall of the shop on the outside
and the inside, all of the wiring on the wall, and the electrical
components had burned.  (Tr. 118, 119).  (Exhibit P-8 contains
the investigation concerning the fire.)
     The electrical panel conduit and wire on the inside wall
were "wiped out."  (Tr. 122-124).
     That portion of the definition in (h)(6) reciting the ele-
ment of "not extinguished within 30 minutes" is merely a measure
of the intensity of the fire.  That intensity is established by
the Inspector's opinion that the fire was "quite a blaze" and his
opinion that it would have burned for longer than 30 minutes.
(Tr. 126).  Further, the fire would have taken longer than 30
minutes to extinguish due to the operator's primitive fire-fight-
ing equipment.  In addition, the closest volunteer fire depart-
ment was in Huntington, Utah, nine miles away.  (Tr. 128-130,
161).
     A fire that burns longer than 30 minutes is a large fire and
serious enough to call for an MSHA investigation.  To say that
such a fire is not reportable because it was not discovered until
after it had extinguished itself, is not warranted.  Such an in-
terpretation would encourage operators not to "discover" a fire
at all in some circumstances if the operator does not want MSHA
to investigate the causes of the fire.
     This fire was also unplanned within the meaning of the regu-
lation.  The verb "plan"[7] is defined as:  1. to arrange the
parts of: DESIGN; 2. to devise or project the realization or an
achievement of <~ a program; 3. to have in mind: intent.  There
is no evidence or inference that the fire was anything but
unplanned.
     Inspector Marietti could not determine the cause of the fire
because the remains of the 12-foot by 60-foot aluminum type
mobile home structure had been pushed into a 12-foot by 30-foot
pile.  (Tr. 120-122, 125, 126).
     In connection with these three citations, the evidence es-
tablishes that CWM failed to immediately notify MSHA of the fire,
altered the accident site, and failed to submit a Form 7000-1.
     Citation Nos. 3852375, 3852376, and 3852377 should be
affirmed and civil penalties assessed.
                           Civil Penalties
     Considering the remaining statutory penalty criteria, the
record establishes the operator had no violations of the regula-
tions during the two years before these citations were issued.
     CWM was moderately negligent since it knew or should have
known it was required to report the fire and preserve the scene.
CWM's actions prevented MSHA from investigating the accident to
determine what preventive measures should be taken to avoid a
fire in the future.
     Gravity should be considered "low" in connection with the
citations involving a failure to report.  Gravity is otherwise
"moderate."
     Considering the statutory criteria, I believe the following
penalties are appropriate:
     Citation No. 3852375:  reportable fire; MSHA not notified -
$200.00.
     Citation No. 3852376; evidence from fire not preserved -
$300.00.
     Citation No. 3852377; Form 7000-1 not filed - $100.00.
                        Docket No. WEST 93-491
                         Citation No. 3583053
     This citation, originally issued under Section 104(a) of the
     Act, was later modified to a Section 104(g) citation.
     The citation alleges a violation of 30 C.F.R.  48.11(e).[8]
     The citation reads:
          The operator was not complying with the ap-
          proved training plan for Hazard Training.
          Two vendors were observed driving their
          diesel truck into the mine and they were not
          accompanied by an experienced miner.  There
          was no one accompanying them.  The two did
          have the required training prior to going un-
          derground.  The truck met the requirement of
          30 C.F.R.
                               Evidence
     John B. Plant of Duchesne, Utah, one of CWM's vendors is a
welder and machinist for Uinta Machine and Manufacturing.  The
majority of Uinta's work is for coal mines.  (Tr. 388, 389).
     On February 3, 1993, they arrived at CWM to do some welding
machine work on one of their miners.  (Tr. 391).
     They talked to Inspector Marietti who inquired about their
mine certification, service training, and respirator training.
The Inspector doubted if he (Plant) and his partner (now de-
ceased) were properly certified to go into the mine.  This
resulted in some debate; some time was then spent in respirator
training and surface training.  Also, the Uinta vehicle was
checked and cleaned several times.  (Tr. 394, 395).
     Subsequently, the two vendors proceeded into the portal in
their vehicle.  Company representative Robert Brown said they
were going to the shop 500 feet underground.  The Inspector in-
dicated the company's training plan required vendors to have
hazard training and they must be accompanied by an experienced
miner.  (Tr. 165, Ex. P-15).  The Inspector then withdrew the
vendors from the mine.  (Tr. 165, 167; Ex. P-15).  The Inspector
modified the 104(a) citation to a 104(g)(1) order.  (Tr. 170).
     CWM contends it complied with the provisions of its plan in
two respects.  Specifically, when the vendors entered the mine in
their vehicle, they followed the vehicle of CWM's Robert Brown.
(The entryway was 20 feet wide, curved, and there were blind cor-
ners.  Tr. 574, 578).  Another vehicle could have pulled out be-
tween the two trucks as the lead vehicle was 50 to 100 feet in
front to the vendors' vehicle.  The shop itself was 500 to 800
feet underground.  (Tr. 570-578).  In addition, there was no way
for Mr. Brown to verbally communicate from his truck to the ven-
dors' truck following him.  (Tr. 600).
     In this situation, the facts establish that Mr. Brown was
not "accompanying" the vendors.  "Accompany" means to go with or
attend as an associate or companion.  Webster's New Collegiate
Dictionary (1979) at 7.  The vendors could hardly be said to
accompany an experienced miner when they were in a different
vehicle and 50 to 100 feet away.
     The second argument by CWM focuses on the testimony of ven-
dor Robert Plant.  He testified that they were accompanied by an
experienced miner, namely, CWM employee Israel Peterson.  (Tr.
395, 396).  Mr. Peterson was allegedly sitting between the two
men on some hard hats and coveralls.  (Tr, 414).
     Inspector Marietti denies such a scenario; he testified he
would certainly have seen a third person sitting in the truck.
(Tr. 743).  Mr. Robert Brown testified he did not recall that
Mr. Peterson was in the truck.   (Tr. 577).
     It appears Mr. Plant was mistaken about the facts:  If
Mr. Peterson had been in the truck, Inspector Marietti would
not  have issued his order.  If Mr. Marietti were mistaken,
Mr. Defa would have likely raised the issue at the scene
that Mr. Peterson was in the truck.  However, Mr. Defa did
not raise that point.
     Further undermining Mr. Plant's version of this incident is
the fact that if it were true, Mr. Brown would have no
reason to drive his vehicle into the mine in front of the
vendors to go  underground.  (Tr. 578).
     In sum, the credible evidence establishes that the vendors
were not accompanied underground by an experienced miner.
     Accordingly, Citation No. 3583053 should be affirmed and a
penalty assessed.
                        Civil Penalty Criteria
     The assessed violation history report indicates no viola-
tions occurred during the two years before this citation was
issued.
     The operator's negligence should be considered "moderate"
because CWM gave the vendors some training for underground
activities.
     Inspector Marietti did not find this violation to be of a
"significant and substantial" nature but he considered it
serious enough to immediately withdraw the vendors from the
mine.
     A civil penalty of $200.00 is appropriate for the violation
of Citation No. 3583053.
                        Docket No. WEST 93-517
                  Citation Nos. 3583044 and 3583050
     The above citations issued under  104(a) of the Act are
factually similar and allege violations of 30 C.F.R.
 370(a)(1).[9]
     Citation No. 3583044 reads:
          The approved ventilation plan was not being
          complied with in the Main North Return on the
          inby side of No. 27 crosscut overcast.  There
          were three 4' x 8' x 1/2" plywood panels over
          the opening regulating the air from the idle
          Main North Entries.  The Plywood was not
          treated to make them incombustible.  The area
          has been idle for about one month.  The area
          was clean and well-rock dusted.  There were
          no ignition sources.
     Citation No. 3583050 reads:
          The approved ventilation plan was not being
          complied with.  The lower seam regulator
          doors were 5/8" x 4' x 7' plywood.  They were
          not constructed or coated with incombustible
          material.  The area was well rock-dusted and
          there were no ignition sources in the area.
     The relevant portion of the ventilation plan adopted by
CMW reads:
           All exposed wood in the construction of any
           ventilation control shall be coated with an
           MSHA-accepted fire retardant sealant.  (Ex.
           P-9, p. 6,  5).
     Inspector Marietti observed two wooden panels.  One was in
the main north return and another was in the return from the
lower seam mine to the upper seam return.  The wooden panels were
partly covered with a silver-looking paint.  (Tr. 203, 220).
     CWM's evidence shows the doors had been coated with accepted
MSHA coating in 1985 and 1986.  Mr. Defa was the one who coated
the doors when they were originally installed.  (Tr. 646).
Although Mr. Defa no longer had the container or specifications
from the material used seven or eight years previously at the
mine so that he could "prove" to Mr. Marietti that the material
was MSHA-accepted, he was able to subsequently obtain that in-
formation from his supplier.  The specifications were introduced
at the hearing.  (Ex. R-4).  The doors were "coated with an MSHA-
accepted fire retardant sealant."
     As Mr. Defa further explained, the sealant soaks into the
wood and if subjected to heat, it would expand to fill any chips
or small areas not covered.  (Tr. 654).
     I find Mr. Defa's testimony on this point to be credible.
His testimony is essentially uncontroverted.
     The Judge is aware of the uncontroverted observation by
Inspector Marietti that "the boards were water-soaked for some
reason or another; they weren't completely covered with this
silver looking paint."  (Tr. 203).  Further, "there was exposed
wood where the coating had worn away."  (Tr. 225).
     In weighing the total evidence, I conclude that Inspector
Marietti's observation establishes more of a situation where CWM
failed to fully maintain its ventilation control.  This citation
does not deal with maintenance.
     In sum, the Secretary failed to prove that CWM violated its
ventilation plan.
     Accordingly, Citation Nos. 3583044 and 3583050 should be
vacated.
                         Citation No. 3851921
     The above citation alleges a violation of 30 C.F.R.
 75.1403-10(l).[10]
     The citation reads:
          The audible alarm did not operate on the John
          Deere No. 1 tractor that is used in the east
          bleeder section, MMU006.
     On February 10, 1993, Inspector Marietti inspected the
John Deere No. 12 tractor in the east bleeder section.  He
and Mr. Defa found the horn did not work.  Mr. Defa told the
Inspector that the tractor was out of commission because its
tie rods were broken; the rods were lying on the ground.
The Inspector did not issue a citation that day.
     The following day, February 11, 1993,  Inspector Marietti
returned to the area and determined the vehicle's tie rods had
been repaired.  He determined the rods had been repaired by
climbing on the tractor and testing the steering wheel.  (Tr.
235).  When Mr. Defa could not get the horn to operate (Tr. 227),
Inspector Marietti issued Citation No. 3851921 on February 11,
1993.
     The citation was abated on February 24, 1993, when the horn
button was pushed; at that time the horn did sound.  (Tr. 229).
     Inspector Marietti explained that the instant citation was
issued pursuant to a safeguard dated April 23, 1982.  The safe-
guard was written under section 75.1403-10(1) which provides
that, "all self-propelled rubber-tired haulage equipment should
be equipped with well-maintained brakes, lights, and a warning
device."  The safeguard states in pertinent part,
          This is a notice to provide safeguard requiring all
          self-propelled rubber-tired haulage equipment to be
          equipped with well-maintained brakes, lights, on one
          or both ends if equipment is capable of being operated
          in either direction, and a warning device (audible)."
          (Emphasis added).  (Ex. P-10).
     As Inspector Marietti further explained, once a safeguard is
issued, it is recorded on a list which the inspectors review
prior to every inspection.  It constitutes the law until the mine
closes or is abandoned.  (Tr. 239).
     As a threshold matter, it is apparent that a horn is a warn-
ing device within the meaning of the safeguard and the citation.
     CWM contends its John Deere haulage equipment was out of
service and did not work.  Therefore, the operator did not
violate the regulation.
     I am not persuaded by CWM's views.  Mr. Marietti stated he
would not have issued the citation if he believed the vehicle was
out of service.  On February 10, 1993, the vehicle was out of
service because its tie rods were broken and lying on the ground.
No citation was issued at this time.  The following day the In-
spector tested the steering wheel and found the tie rods had been
repaired.  However, at this time the horn did not function and he
properly issued his citation.  The equipment was not tagged nor
marked as being out of service.
     Citation 3851921 should be affirmed and a penalty assessed.
                            Civil Penalty
     CWM has no adverse prior history for violations of the
cited section during the two years prior to the issuance of
the citation.  (Ex. P-5B).
     The operator's negligence is "moderate."  The operator
repaired the tie rods but not the horn.
     Gravity should be considered "low."  Further, Inspector
Marietti did not conclude that the violation was "S&S."
     The proposed penalty of $50 is appropriate.
                         Citation No. 3851922
     The above citation alleges a violation of 30 C.F.R.
 75.400.[11]
     The citation reads:
          The air compressor in the east bleeder sec-
          tion, MMU006, was observed with accumulations
          of combustible material.  The accumulations
          were on the lower part of the cylinders and
          the crank case.  They were heavy on the crank
          case and the base and on the tank under the
          compressor.  The accumulations were oil mixed
          with coal dust.  It appeared that they had
          been there for a considerable period of time.
          The compressor was mounted in a trailer with
          the welder.
     Inspector Marietti described an air compressor as a
device that pressurizes air.  The air in turn is used to operate
air tools and drills.  The compressor was located on a
trailer with a welding machine parked in a crosscut.
(Tr. 319, 320).
     The compressor was a piece of electrical equipment in active
workings.  It measured approximately 18 inches wide by 2 feet
high.  (Tr. 315, 316, 322).  Attached to it was an electric motor
with a power cable and a receptacle.  (Tr. 316, 320).
     The lower part of the cylinders, the crank case, and the
section underneath the compressor on the air tank were covered
with a heavy coating of oil and coal dust.  Inspector Marietti
concluded that, due to their thickness, the accumulations had
been there for quite some time.  (Tr. 316).
     CWM contends the issue here is whether or not the electrical
air compressor was in use or available for use.
     It is apparent the compressor was not in use at the time of
the inspection but was it available for use?  I conclude that the
total record establishes that the compressor could not be used.
     Inspector Marietti agreed that Mr. Defa told him that the
compressor had not been used for some time and was not being used
in the mine.  (Tr. 321).  He also admitted that he did not test
it to see if it worked.  Moreover, he did not remember if he
checked the electrical book to see if it was in service.  (Tr.
330, 338).  Further, he did not see any air hose that could be
used to make the compressor operable.  (Tr. 344).
     Mr. Nathan Atwood, who installed the compressor and welder
on the trailer, testified that the compressor had not been used
for at least two years and the cable inside the electrical box
for the compressor had been removed so it could not be energized.
(Tr. 636-639).  Both Messrs. Atwood and Defa testified that the
compressor was among the abandoned equipment that was being
pulled back as they retreated from the pillar section, and that
it could not be operated.  It was effectively taken out of serv-
ice by making it impossible to energize it in its present
condition.
     I am persuaded by the testimony of Messrs. Atwood and Defa
that the abandoned equipment was not operable.
     The Secretary attacks CWM's evidence because there was fresh
oil around the motor and the compressor.  (Tr. 322).
     I am not persuaded.  The fresh oil around the motor could
have come from the motor itself or sources other than the air
compressor.
     Citation No. 3851922 should be vacated.
                         Citation No. 3851927
     This citation alleges a violation of 30 C.F.R.
 75.1100-3.[12]
     The citation reads as follows:
          The fire hose at the No. 46 crosscut Main
     North No. 4 Belt Entry was not being main-
     tained fully usable and operative.  There was
     no nozzle with the hose.  The hydrant was 30
     feet outby.  The belt has been idle since
     Nov. '92.  The belt serves the Main North
     idle section and the 3d West idle entries.
     The Secretary's evidence shows that on February 24, 1993,
Inspector Marietti observed a fire hose.  The hose was missing
its nozzle.  (Tr. 348, 350).
     Inspector Marietti explained that a nozzle is essential if a
miner is going to use the hose to fight a fire because it allows
the miner to direct a steady stream towards the fire from a safe
distance of approximately 60 feet.  (Tr. 348-349).  Without the
nozzle, the miner would be forced to come much closer to the fire
and it would place the miner in a greater danger of being in-
jured.  (Tr. 349, 353).  It also allows the miner to more effec-
tively combat the fire since the concentrated stream from the
nozzle can be used to break up the materials of the fire, such as
coal or wood, which will remove heat from the fire and put the
fire out.  (Tr. 348).
     CWM argues no violation occurred since its equipment was in
a non-working section, the power was locked out, and there was no
water in the hose line.
     I disagree.  This equipment was obviously for firefighting.
It may be called into use in a nonworking section.  Power and
water are only required when there is a need for the firefight-
ing capabilities.
     Citation No. 3851927 should be affirmed.
                            Civil Penalty
     The assessed violation history (P-5) indicates 12 violations
of  75.1100-3 during the two-year period prior to this
citation.
     The operator's negligence was moderate because Mr. Defa did
not know the nozzle was missing.  (Tr. 356).
     Inspector Marietti did not find this violation "significant
and substantial".
     The proposed civil penalty of $50.00 is appropriate for Ci-
tation No. 3851927.
                  Citation Nos. 3851928 and 3851939
     These related citations allege a violation of 30 C.F.R.
 75.1100-2 (cited in a previous citation).
     The conditions cited in Citation No. 3851928 are as follows:
          The fire extinguisher hanging in [the] 46
          crosscut in the Main North No. 4 belt entry
          had not been examined since February 1992.
          The belt is idle and there was no electrical
          equipment in the vicinity.  The operator did
          not check it.
     The conditions cited in Citation No. 3851939 are as follows:
          The fire extinguisher provided for the pump
          in the Main North Return No. 72 crosscut did
          not have an examination since June of '92
          indicated by the tag attached.  The pump was
          connected to an energized transformer in the
          idle Main North Section.
     The evidence is uncontroverted.  There were two fire extin-
guishers without tags to show they had been examined every six
months.
     CWM agrees the extinguishers had not been checked and dated
(as required by the regulation).  However, they believed there
was no violation because they were fully charged and operational
and not even required at that location.
     CWM's views are without merit.  The only way to insure that
the fire extinguisher is operative is to check it.  The operator
failed to follow this procedure and it is not the function of the
Commission to rewrite the regulation.
                            Civil Penalty
History:  The assessed violation history (P-5) shows 12 vio-
lations of  75.1100-3 in the two-year period prior to these
citations.
Negligence:  The operator's negligence was designated "moder-
ate."  (Tr. 365, 444-445).
Gravity:  The Inspector did not designate these violations
as "significant and substantial."
     The proposed civil penalty of $50.00 is appropriate for each
citation.
                         Citation No. 3851938
     This citation alleges a violation of 30 C.F.R.  75.1100-
2(e)(2).[13]
     The citation reads:
          There was not 240 pounds of rock dust provided at the
          temporary electrical installation in the idle Main
          North Section's transformer.  The transformer was
          energized and supplying power to pump circuits.
          There was a fire extinguisher provided and rock dust
          about 300 feet outby.
     On February 24, 1993, Inspector Marietti observed an ener-
gized transformer supplying power to two pumps.  (Tr. 375).  The
transformer itself advanced (and retreated) with the working
section.  (Tr. 375-376).
     The Inspector issued MSHA's citation because there was no
rock dust provided at the transformer.
     CWM contends it has always interpreted  75.1100-2(e) as ap-
plying to electrical installations that are not part of a working
section.  Other inspectors who have inspected CMW's mine have in-
terpreted the regulation in that manner.  (Tr. 680-685).
           75.1100-2(a) provides
            (1)  Each working section of coal mines
          producing 300 tons or more per shift shall be
          provided with two portable fire extinguishers
          and 240 pounds of rock dust in bags ... .
     Mr. Defa testified that all of the equipment required by
 75.1100-2(a) was provided in the working section, therefore
CMW argues there was no violation.  (Tr. 680-681),
     I am not persuaded by CWM's argument.  A critical differ-
ence exists between the two regulations.  Section 75.1100-
2(e)(2) requires a fire extinguisher and rock dust at each
temporary[14] electrical installation.  Since this
installation advanced and retreated with the working
section, it was necessarily of a tem- porary nature.
     On the other hand, the term "temporary" does not appear in
 75.1100-2(a).
     If the construction of the regulation as urged by CWM is
followed, the protection afforded miners at temporary
electrical installations would be essentially negated.
     MSHA's policy manual (Ex. P-25) further supports Inspector
Marietti's views.
     Citation No. 3851938 should be affirmed.
                           CIVIL PENALTIES
     CWM was assessed a single penalty of $50.00 for the
violation of  75.1100-2(e)(2).
     Prior history:  There have been no violations of  75.1100-
2(e)(2) during the two years prior to this citation.  (Ex.
P-5).
     Negligence:  The operator's negligence was moderate because
the weekly examiner should have been checking for rock dust
at these temporary locations.  (Tr. 380).
     Gravity:  The Inspector did not find this violation
"significant and substantial."
     The penalty of $50.00 is appropriate for the violation of
Citation No. 3851938.
                  Citation Nos. 3851935 and 3851936
     On February 25, 1993, Inspector Marietti issued the above
citations alleging violations of 30 C.F.R.  75.1101-23(a).
     The cited section requires each operator of an underground
mine to adopt a program to instruct all miners in the proper
evacuation procedures in the event of an emergency.  The
evacua- tion plan in effect at the Bear Canyon #1 Mine was
admitted in evidence as Exhibit P-12.  It states in
pertinent part as follows:
          Location of SCSR units
          Mantrips:  Each mantrip carries enough units for
          number of men on trip.  Units are stored in a metal
          container on "Mantrips to protect SCSR's.  Units
          are checked at least every 24 hours by operator,
          trained to inspect units, before entering mine.
     Inspector Marietti observed a Duetz-Allis tractor getting
ready to go underground with two miners on board.  He asked them
about their SCSR units and they indicated that they did not have
any.  He observed that the SCSR unit storage box had a broken lid
and was being used to store tools.  He then issued Citation No.
3851935 in which he described the condition as follows:
          The approved self-contained self-rescue stor-
          age plan was not being complied with.  The
          Duetz-Allis mantrip tractor was observed get-
          ting ready to go underground.  There were two
          miners on the tractor.  There were no SCSR's
          on the tractor.  The tractor operator indi-
          cated that they never had any SCSR's.  I
          tried to question, but the miners spoke no or
          very little English, and could not determine
          the knowledge of the SCSR storage plan.
     Shortly thereafter, Inspector Marietti went underground and
observed an Allis-Chalmers tractor with one person driving, going
from underground in the mine to the outside.  (Tr. 492).  Again
he questioned the driver about whether he had an SCSR unit.  The
driver indicated that he did not have an SCSR unit and Inspector
Marietti observed that there was no SCSR storage box.  (Tr. 494).
Inspector Marietti then issued Citation No. 3851936 in which he
described the condition as follows:
          The approved self-contained self-rescue stor-
          age plan was not being complied with.  The
          Allis-Chalmers mantrip was observed operating
          in the main west designated intake escapeway.
          When the machine was checked outside, there
          was no SCSR for the miner operating it.  He
          said or indicated he could speak no English
          so I could not determine his knowledge of the
          SCSR storage plan.  I tried to tell him he
          needed one and he appeared to understand I am
          not sure.  Refer to Citation Nos. 3851935 and
          3851936.
     The Code of Federal Regulations does not define "mantrip,"
however, Inspector Marietti's understanding of the meaning of
"mantrip" is supported by the definition of "Mantrip" contained
in A Dictionary of Mining, Mineral, and Related Terms, at 679.
It defines "mantrip" as:
          a.  A trip made by mine cars and locomotives
          to take men rather than coal, to and from the
          working places. B.C.I.  b.  Trip made by a
          man cage in a shaft to take men rather than
          ore, to and from a working place in a mine.
     Although this definition does not refer to what types of
vehicles are considered mantrips, it specifies trips containing
men, instead of mineral, going in and out of the mine.
     Mr. Defa, on behalf of CWM, testified that the vehicles
cited by Mr. Marietti were not mantrips but were non-face mobile
equipment used to transport supplies, not men.  (Tr. 700-702).
     I am not inclined to follow CWM's views.  The common issue
is whether miners were being transported.  For example, in con-
nection with Citation No. 3851935, two miners were observed in a
Duetz-Allis tractor ready to go underground.  This constituted a
mantrip.
     In connection with Citation No. 3851936 the Inspector ob-
served two miners on an Allis-Chalmers tractor getting ready to
go underground.  This was also a mantrip.
     It matters not at all that some vehicles were non-face
mobile equipment because when cited they were being used to
transport men, thus they were "mantrips."
     Citation Nos. 3851935 and 3851936 should be affirmed.
                           Civil Penalties
     CWM was assessed a total penalty of $697.00 for the
violations alleged in Citation Nos. 3851935 and 3851936.
     Prior History:  There have been no prior violations of
 75.1100-2(e)(2) during the two years prior to this citation.
(Ex. P-5).
     Negligence:  The operator's negligence was moderate because
CWM's equipment lacked SCSR units.
     Gravity:  The Inspector did not find the violation to be
"significant and "substantial."
     A penalty of $100.00 is appropriate for each violation.
     For the foregoing reasons, I enter the following:
                                ORDER
     1. The following citations are VACATED:  Nos. 3582877,
3582905, 3582919, 3583044, 3583050, 3851922.
     2. The following citations are AFFIRMED and penalties as
indicated are ASSESSED:
                Citation No.        Penalty
                 3583053            $200.00
                 3852372            $ 10.00
                 3852375            $200.00
                 3852376            $300.00
                 3852377            $100.00
                 3582904            $345.00
                 3582908            $ 50.00
                 3582909            $ 50.00
                 3582910            $ 50.00
                 3851921            $ 50.00
                 3851925            $ 50.00
                 3851927            $ 50.00
                 3851928            $ 50.00
                 3851935            $100.00
                 3851936            $100.00
                 3851938            $ 50.00
                 3851939            $ 50.00
                                 John J. Morris
                                 Administrative Law Judge
Distribution:
J. Tambra Leonard, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Carl E. Kingston, Esq., C.W. MINING COMPANY, 3212 South State
Street, P.O. Box 15809, Salt Lake City, UT 84115 (Certified Mail)
/ek
          **FOOTNOTES**
     The  requirements  for  ventilation,  methane, and dust con-
trol plans in contest are now recodified at  75.370(a)(1).
     The regulation reads as follows:
             75.1100-3   Condition  and examination  of
           firefighting equipment.
           All firefighting equipment  shall  be main-
           tained  in  a usable and operative condition.
           Chemical  extinguishers   shall  be  examined
           every   6   months  and  the  date   of   the
           examination tag attached to the extinguisher.
     The regulation reads as follows:
           75.1702  Smoking; prohibition.
       [STATUTORY PROVISIONS]
       No person shall  smoke, carry smoking materials,
matches, or lighters  underground, or smoke  in  or
around  oil houses, explosives magazines, or other
surface  areas where such practice may cause a fire or
explosion.  The operator  shall institute a program,
approved by the Secretary,  to  insure that any person
entering the underground area of the mine does not
carry smoking materials, matches, or lighters.
     The regulation reads as follows:
      50.10  Immediate notification.
     If  an accident occurs, an operator  shall immediately
contact  the  MSHA  District  or Subdistrict  Office  having
jurisdiction over its mine.  If an operator  cannot contact
the appropriate  MSHA  District  or   Subdistrict Office, it
shall immediately contact the MSHA Headquarters  Office  in
Washington,  DC,  by telephone, toll-free at 202-783-5582.
     The regulation reads as follows:
      50.12  Preservation of evidence.
     Unless granted permission  by  an MSHA Dis-
trict  Manager  or  Subdistrict  Manager,  no
operator  may  alter an accident site  or  an
accident related area until completion of all
investigations  pertaining  to  the  accident
except to the extent  necessary  to rescue or
recover  an individual, prevent or  eliminate
an imminent danger, or prevent destruction of
mining equipment.
     Regulation 30 C.F.R.  50.20-1 contains general instruc-
tions for completing and filing MSHA Form 7000-1.
     Webster's New Collegiate Dictionary, 1979 at 870.
     The regulation reads as follows:
      48.11  Hazard training.
     (e)  Miners  subject  to  hazard  training
shall  be  accompanied  at  all  times  while
underground   by  an  experienced  miner,  as
defined in  48.2   (b) (Definition of miner)
of this subpart A.
     This regulation deals with ventilation, methane, and
dust control plans.  See Citation No. 3582908, supra, p. 3,
this decision.
     The cited regulation reads:
     (l)  All  self-propelled rubber-tired haulage
equipment should  be equipped with well-main-
tained brakes, lights, and a warning device.
     [11]: The regulation reads:
      75.400  Accumulation of combustible
materials.
     [Statutory Provision]
     Coal dust, including float coal dust depos-
ited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned
up and not be permitted to accumulate in ac-
tive workings, or on electric equipment
therein.
     The cited regulation reads:
      75.1100-3  Condition and examination of
firefighting equipment.
     All firefighting equipment shall be main-
tained in a usable and operative condition.
Chemical extinguishers shall be examined
every 6 months and the date of the examina-
tion shall be written on a permanent tag
attached to the extinguisher.
     The cited section reads:
          One portable fire extinguisher and 240 pounds
          of rock dust shall be provided at each temporary
          electrical installation.
     If this had been a permanent electrical installation,
the operator would have been required to install it in a
fireproof enclosure, isolated from the designated escapeway.
(Tr. 376).