<DOC>
[DOCID: f:wva9377c.wais]

 
CONSOLIDATION COAL COMPANY
March 27, 2000
WEVA 93-77-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         March 27, 2000

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket Nos. WEVA 93-77-R
                                :    through  WEVA 93-80-R
CONSOLIDATION COAL COMPANY      :             WEVA 93-146-B
                                :             WEVA 93-146-C


BEFORE: Marks, Riley, and Verheggen, Commissioners[1]


                            DECISION

BY: Marks, Riley, and Verheggen, Commissioners

     This consolidated contest and civil penalty proceeding
arising under the Federal Mine Safety and Health Act of 1977, 30
U.S.C.  801 et seq. (1994) (the "Act" or "Mine Act"), raises the
issue of whether Consolidation Coal Company ("Consol") violated
four mandatory safety standards as alleged in one citation and
three orders issued by the Department of Labor's Mine Safety and
Health Administration ("MSHA") in connection with a methane
explosion which occurred on March 19, 1992, at Consol's
Blacksville No. 1 Mine in northern West Virginia, resulting in
the deaths of four miners and injuries to two others.  Commission
Administrative Law Judge Gary Melick vacated the citation and
upheld the orders.  20 FMSHRC 1336 (Dec. 1998) (ALJ).  We granted
cross petitions for discretionary review filed by the Secretary
of Labor and Consol.  The Secretary petitioned for review of the
judge's decision vacating the citation and vacating MSHA's
allegations of unwarrantable failure on two of the orders.
Consol petitioned for review of the judge's decision upholding
the orders and his finding of unwarrantable failure with respect
to one of the orders.  For the reasons that follow, we affirm in
part, reverse in part, vacate in part, and remand.

                               I.

                Factual and Procedural Background

     Consol's Blacksville No. 1 Mine liberated over 1 million
cubic feet of methane during a 24-hour period and, therefore, 
was liberating "excessive quantities of methane," as specified 
in section 103(i) of the Mine Act, 30 U.S.C.  813(i), which
provides for spot inspections by MSHA in that circumstance.  20
FMSHRC at 1337.  Donzel Ammons was a Consol vice-president who
was in charge of several mines, including Blacksville No. 1. Id.
Among those working under Ammons were Daniel Quesenberry, Ammons'
assistant; Robert Levo, superintendent of Blacksville No. 1; and
Jack Lowe, foreman of Blacksville No. 1.  Id.

     Consol ceased production at the mine in June 1991 and by
1992 began closing down the mine.  Id.  The primary activities
during January to March 1992 were mine maintenance, withdrawal of
supplies and equipment, and removal of above-ground stockpiles of
coal.  Id.  By letter dated February 3, 1992, Consol's regional
manager for safety, Charles Bane, notified MSHA that Consol was
in the process of withdrawing production equipment from the mine.
Id.; Resp't Ex. 3.  The letter further stated that Consol would
shut down all fans and simultaneously cap all shafts when the
underground areas had been vacated.  20 FMSHRC at 1337; Resp't
Ex. 3.

     Later in February, Consol decided to install an 800-foot
dewatering pipe in the production shaft to prevent water from
accumulating in the mine and seeping into adjacent Consol mines.
20 FMSHRC at 1337.[2]  Consol's regional engineering office,
headed by Van Pitman, was responsible for installing the
dewatering pipe.  Id.  Pitman directed Ed Moore, supervisor of
environmental quality control, to arrange for the installation.
Id.  Moore, in turn, retained an independent contractor, M. A.
Heston, Inc., to do the work.  Id.  Heston had worked for Consol
on many other jobs.  Id. at 1339.

     In order to install the dewatering pipe, it was necessary to
build a work platform over the production shaft.  Id. at 1338.
Ammons assigned that project to his assistant, Quesenberry, who
contracted with Forest Construction to construct a platform,
sufficiently open to facilitate the work, but which later could
be sealed to form a permanent cap over the shaft.  Id.[3]

     Officials from Consol, Forest Construction, and M. A. Heston
conferred on methods to construct a cap over the shaft that would
allow work to be performed on the dewatering pipe and also would
support the weight of the pipe.  20 FMSHRC at 1339.  Initially,
Consol's regional engineering office had recommended the use of
only a partial or "half" cap, so as to allow ventilation to enter
the shaft, with a fireproof partition as a means to prevent
sparks from entering the shaft.  Id.; Tr. 117, 154, 501, 951-53.

     Ammons told Quesenberry that he wanted threaded pipe to be
used for the dewatering project, so that pipe segments would not
have to be welded together over the production shaft.  20 FMSHRC
at 1340.  Ammons was concerned with igniting grease in the
production shaft, although he was also aware of the potential for
methane occurring in the shaft.  Id.  In a meeting with Consol's
regional engineering department, Quesenberry relayed the request
for threaded pipe and left the meeting with the understanding
that it would be used.  Id.  Subsequently, when the pipe was
delivered to the mine, Quesenberry learned for the first time
that engineering department personnel had decided to use non-
threaded pipe that would have to be welded.  Id.  Ammons then
telephoned Pittman, who explained that threaded pipe would not
hold the weight of the casing.  Id.  Without consulting with the
engineering office, Ammons decided to construct a "full" cap over
the shaft, to ensure that sparks from welding would not enter the
shaft.  Id. at 1339; Tr. 694-95, 809-11.

     The plan for construction of the cap over the shaft was
based on a standard design used previously by Consol (though not
as a platform for installing dewatering pipe).  See 20 FMSHRC at
1339, 1340; Tr. 1698; Gov't Ex. 24.  The base of the cap was to
be constructed of 1/4-inch steel plate welded to 6-inch I-beams
across the shaft opening.  20 FMSHRC at 1339.  A 6-inch concrete
deck would then be poured over the top of the steel plate.  Id.
at 1339, 1340.  The plan included a 22-inch square opening in the
center of the cap to allow entry of the 16-inch dewatering pipe,
with additional I-beam support to bear the weight of the pipe.
Id. at 1339.  At least until the shaft was permanently capped,
air would still be able to enter the shaft around the dewatering
pipe.  Id.  For ventilation, Ammons added two smaller steel pipes
to the plan, each 6 inches in diameter, penetrating through the
cap, welded to the steel plate below and extending 3 feet above
the concrete deck where they would be capped by a valve connected
to additional lengths of PVC pipe.  Id.  The 6-inch pipes were
incorporated into the plan, at least in part, to provide the
ventilation necessary to dilute methane in the shaft.  Id. at
1342.

     Ammons' decision to add the additional pipes for ventilation
of the shaft was based on his background and experience.  Id. at
1339.  It was standard procedure to cap a production shaft in
this manner when sealing a mine, and Ammons determined that the
pipes would provide adequate ventilation.[4]  Id.  He did not
consult with any of Consol's engineers or conduct any simulations
or tests to determine if the pipes would provide adequate
ventilation while the work of installing the dewatering pipe was
completed.  Id.  He was unfamiliar with the methane liberation
rate at the mine, the volume of air movement the two 6-inch pipes
were capable of providing, or the velocity of the airflow.  Id.
He assumed that the air intake through one of the ventilation
pipes would have been sufficient to ventilate the production
shaft.  Id.  However, he had never been involved in a project
similar to this where welded pipe segments (for the dewatering
pipe) were installed through a modified cap. Id.

     Since Consol's regional safety office generally communicated
with MSHA on ventilation plans, John Yerkovich, Consol's regional
safety inspector (and Charles Bane's assistant), verbally
informed Terry Palmer, an MSHA safety inspector specializing in
ventilation, of Consol's plans to undertake what they
characterized as capping the production shaft before capping the
other shafts and vacating the mine.  Id. at 1337, 1338.[5]
Following that conversation, by letter dated March 3, 1992,
Yerkovich wrote to MSHA concerning the project.  Id.; see Gov't
Ex. 27.  The letter did not indicate, however, that a dewatering
pipe would be installed through the cap and into the shaft.  20
FMSHRC at 1338; Gov't Ex. 27.  Palmer drafted a response to the
letter, dated March 16, for the signature of MSHA district
manager Ronald Keaton.  20 FMSHRC at 1338; see Gov't Ex. 29.
Palmer recommended to Keaton that MSHA seek additional
information from Consol because it was unclear why Consol was
deviating from its original plan of capping all the shafts in the
mine at one time.  20 FMSHRC at 1338.  Palmer believed that since
the production shaft was intaking 187,800 cfm of air, capping the
shaft required agency approval under MSHA regulations because it
involved a change in the ventilation plan.  Id.; Gov't Ex. 26.
The plan stated that "all changes or revisions to the ventilation
plan" must be approved before being implemented.  Gov't Ex. 26.
Palmer's letter was not mailed to Consol until after the March 19
explosion.  20 FMSHRC at 1338.

     Construction of the production shaft cap took place during
the week of March 9, 1992, with the concrete deck being poured on
Friday, March 13.  Id. at 1340; Tr. 254-60.[6]  Once the concrete
was in place, airflow decreased from around 187,000 cfm to around
7,350 cfm.  20 FMSHRC at 1341.  On March 13, Consol stopped its
morning shift of underground personnel from entering the mine
while portions of the cap were put in place.  Id. at 1340.  After
Consol personnel evaluated the effects of the ventilation change,
they determined that the mine was safe to enter, and the miners
continued the removal of underground equipment.  Id. at 1340-41.
In evaluating the effect of the cap, Consol utilized the same
procedures as a preshift examination that took approximately 30
minutes to complete.  Id. at 1341.  Consol also checked charts
for the fans on the surface.  Id.  The charts reflected readings
of water gauges near the fans that measured pressure differences.
Tr. 635-37, 932-33.  However, the charts on the fans would not
show the impact of capping on airflow within the shaft itself.
20 FMSHRC at 1341.  Around 11:00 a.m. on March 13, mine foreman
Jack Lowe traveled underground to the bottom of the production
shaft to release smoke from a smoke tube and ascertained that
there was a drift of airflow down the shaft.  Id.  He did not,
however, measure the velocity of the airflow.  Id.  Nor was the
impact of the cap on airflow in the production shaft evaluated.
Id.

     On Monday, March 16, Heston employees arrived at the
Blacksville Mine to organize materials and begin preparations for
fabricating the dewatering pipe.  Id.  Consol environmental
engineer Rodney Baird and Consol environmental technician Russell
DeBlossio were assigned to oversee installation of the dewatering
pipe, although each assisted in the manual labor of installing
the pipe.  Id.  Baird was certified to make methane examinations
and had a working methane detector in his vehicle at the mine.
Id.  Neither Baird nor DeBlossio had any experience in
underground ventilation.  Id.

     On Wednesday, March 18, Heston employees began installing
the 16-inch dewatering pipe into the production shaft.  Tr. 262-
63.  The dewatering pipe was constructed by welding each 20-foot
long section to the one below it.  Tr. 175.  The first section of
pipe was plugged to prevent welding sparks from entering the
shaft through the pipe.  20 FMSHRC at 1342.  As each new length
of pipe was lifted in place, the 22-inch opening in the cap
through which the lengthening column of pipe extended down into
the shaft was sealed with Thermoglass cloth and two steel plates
cut to fit around the pipe.  Id.  The pipe sections were then
welded together several feet above the 22-inch opening by miners
standing on the cap.  Id.; Gov't Ex. 15.  With the plugged
16-inch pipe in place and steel plates and Thermoglass cloth
surrounding the pipe, airflow into the production shaft was again
reduced, from 7,350 to 790 cfm.  20 FMSHRC at 1341, 1342.

     Consol environmental engineer Baird and Heston employees
found that the 6-inch ventilation pipe closest to the 22-inch
opening interfered with installation of the dewatering pipe. 
Id. at 1342.  Blacksville Superintendent Robert Levo received 
a request from the production shaft site for a saw to cut off 
the PVC pipe extension of one of the 6-inch ventilation pipes. 
Id. A ball of burlap or Thermoglass cloth was put inside the
shortened pipe, and a second piece of the material was wired over
the top.  Id.  The elimination of one of the two 6-inch pipes as
a source of ventilation further reduced airflow to 400 cfm. Id.
at 1341, 1342.  Levo visited the job site after the pipe was
plugged.  Id. at 1342.  He could not recall whether he told Baird
the importance of leaving the pipe open, but assumed Baird knew
enough to reopen the pipe.  Id.  Ed Moore, in charge of
environmental quality control in Consol's regional engineering
office and Baird's boss, was also aware that one of the
ventilation pipes had been cut and covered or plugged. Id. at
1337, 1342.

     Throughout the first day of installation, one welder was
used, and approximately 12 sections of dewatering pipe were
installed.  Id. at 1342-43.  Installation resumed at 7:30 a.m.
the following day, Thursday, March 19, with Baird and DeBlossio
again assisting.  Id.  On this occasion, Heston utilized two
welders instead of one, reducing by half the time it took to weld
sections of pipe together.  Id. at 1343.  At approximately 10:18
a.m., a methane explosion occurred in the production shaft that
completely destroyed the cap.  Id.  Consol engineer Baird and
three Heston employees were killed in the explosion; two other
Heston employees were injured.  Id.  In addition, underground
stoppings, cribs, and overcasts within 100 feet of the production
shaft were damaged.  Id.

     Following an investigation,[7] MSHA issued the following
citation and three orders:

     Citation No. 3109521 charged Consol with a violation of 30
C.F.R.  75.301 (1991) for failing to maintain the volume and
velocity of air sufficient to render harmless explosive gasses in
the production shaft.  20 FMSHRC at 1343.  MSHA determined that
the violation was significant and substantial ("S&S")[8] and was
the result of the operator's unwarrantable failure (see infra
n.11).  Id.

     Order No. 3109522 charged Consol with a violation of 30
C.F.R.  77.1112(b) (1991) by failing to make required methane
examinations at the capped production shaft where welding was
being performed.  20 FMSHRC at 1345.  MSHA designated the
violation as S&S and alleged that it was the result of the
operator's unwarrantable failure.  Id. at 1347.

     Order No. 3109523 charged Consol with a violation of 30
C.F.R.  75.316 (1991) by making a major change in the approved
ventilation plan without MSHA approval when it capped the
production shaft.  20 FMSHRC at 1348.  MSHA determined that the
violation was S&S and the result of the operator's unwarrantable
failure.  Id. at 1351.

     Order No. 3109524 charged Consol with a violation of 30
C.F.R.  75.322 (1991) by making changes in its ventilation which
affected the split of air ventilating the production shaft where
miners were allowed to work before effects of the changes were
evaluated.  20 FMSHRC at 1351.  MSHA designated the violation as
S&S and alleged that it was the result of the operator's
unwarrantable failure.  Id. at 1353.

     As a result of the violations, MSHA proposed civil penalties
of $200,000.  Id. at 1337.

     Following an 8-day hearing, the judge issued his decision in
which he dismissed the citation and found violations with regard
to the three orders.  Id. at 1344, 1346-47, 1349-50, 1353.  With
regard to special findings, the judge found that the violations
charged in all three orders to be S&S.  Id. at 1347, 1350-51,
1353.  He also found that the violation charged in Order No.
3109523 was the result of Consol's unwarrantable failure, but
concluded that the violations alleged in the other two orders
were not unwarrantable.  Id. at 1348, 1351, 1353-54.  The judge
reduced MSHA's proposed penalties to $70,000.  Id. at 1354.

     The Secretary and Consol filed cross appeals with the
Commission, both of which were granted.

                               II.

                           Disposition

               A.   Citation No. 3109521

     The citation alleges that, in violation of 30 C.F.R. 
 75.301 (1991),[9] Consol allowed methane to accumulate in 
the production shaft, an active working of the mine, and that 
the methane was ignited on March 19 when Heston employees were
welding during the installation of the 16-inch pipe.  20 FMSHRC
at 1343-44; Gov't Ex. 1.  The term "active workings" was defined
at 30 C.F.R.  75.2(g)(4) (1991) as "any place in a coal mine
where miners are normally required to work or travel."[10]  The
citation was designated S&S and the result of the operator's
unwarrantable failure.[11]

     The judge found no evidence that any person worked or
traveled in the production shaft after it was capped on March 13,
1992.  20 FMSHRC at 1344.  The judge analyzed the language of the
regulation and found that it was clear.  Id.  The judge reasoned
that "active workings" included "any place in a coal mine" but
not the areas above and below the cap.  See id. (emphasis added).
Moreover, the judge also found that, even if the language of the
regulation was not plain, the Secretary's interpretation was
unreasonable.  Id.

     The Secretary argues that her interpretation of the standard
is entitled to deference.  S. Br. at 16-17.  More particularly,
the Secretary asserts that the definition of "active workings" is
"any place," and the dictionary definition of "place" includes
physical surroundings or environment, which is broad enough to
encompass the area above the cap.  Id. at 18-20.  The Secretary
argues that it would defeat the purpose of the regulation to
require that a miner has to be "in" the production shaft before
the regulation would apply, particularly given the facts of this
proceeding where miners were on top of the cap inserting pipe
into the shaft.  Id. at 21-25.  Finally, the Secretary argues
that the occurrence of preshift examinations at the bottom of the
shaft was sufficient to support a determination that the shaft
was an active working.  Id. at 25-26.

     In response, Consol asserts the language of the standard and
the definition of "active workings" are clear and the Secretary
is not entitled to deference in interpreting them.  C. Revised
Resp. Br. at 2-4, 9.  Rather, Consol argues that "active
workings" should be given its ordinary meaning and considered in
light of other terms in the Mine Act and its legislative history.
Id. at 5-7.  Further, Consol contends that Congress, when it
enacted the Federal Coal Mine Health and Safety Act of 1969
("Coal Act"), distinguished abandoned areas from active workings,
with ventilation requirements only applying to the latter.  Id.
at 7-8.  Consol finally argues that the Secretary misconstrued
Commission case law regarding active workings.  Id. at 10-12.

     The first inquiry in statutory construction is "whether
Congress has directly spoken to the precise question in issue."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,
584 (Apr. 1996).  If a statute is clear and unambiguous, effect
must be given to its language.  Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C.
Cir. 1990).  In ascertaining the plain meaning of the statute,
courts utilize traditional tools of construction, including an
examination of the particular statutory language at issue, and
the language and design of the statute as a whole, to determine
whether Congress had an intention on the specific question at
issue.  K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988);
Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment
Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).

     We agree with the judge that the language of  75.301 and
the definition of "active workings" are clear.  However, we
disagree with his application of the statutory and regulatory
provisions to the facts of this case.  We conclude that
substantial evidence[12] does not support his finding that no
persons worked or traveled in the production shaft.

     The judge found "[t]here is no evidence in this case that
any person worked or traveled or normally worked or traveled in
the production shaft after the shaft was capped on Friday, March
13, 1992."  20 FMSHRC at 1344.  This finding is erroneous.  To
the contrary, the record clearly indicates that the shaft
continued to be an active working after being capped, because
miners continued to work or travel there during installation of
the dewatering pipe.  Specifically, miners continued to conduct
methane and air flow tests at the bottom of the shaft on a daily
basis, including on the morning of the explosion.  Tr. 1450-53,
1478-81, 1494-95.  Those tests are sufficient in and of
themselves to establish that the entire shaft remained an active
working up to the time of the explosion.

     Furthermore, as we explained above (see supra note 3), the
so called "cap" Consol constructed over the production shaft was
designed to be used initially as a work platform, not to seal the
shaft as a cap would normally be used.  See 30 C.F.R.  75.1711-
1.  As even the judge recognized, construction of the modified
cap actually facilitated work in the shaft, i.e., installation of
the dewatering pipe through the 22-inch opening in the cap.  20
FMSHRC at 1349.[13]

     Consol argues that finding the production shaft an active
working is contrary to Commission case law.  Consol states that
in Southern Ohio Coal Co., 12 FMSHRC 1498 (Aug. 1990) ("SOCCO"),
aff'd mem., 940 F.2d 653 (4th Cir. 1991), the finding that a
portion of a tailgate entry was an "active working[] was not
premised upon the conduct of regular examinations," but rather
was "based upon the fact that . . . an escapeway was involved."
C. Revised Resp. Br. at 11.  This is an incorrect reading of
SOCCO.  The Commission's decision was actually based upon the
fact that the tailgate entry "had to be maintained and inspected"
- necessitating travel through the entry - because it was an
escapeway.  12 FMSHRC at 1502 (emphasis added); see also id. at
1501 (numerous references to the need for the tailgate entry to
be "maintained and examined" at least "[o]nce a week").  SOCCO
thus, in fact, actually supports our holding that the production
shaft was an active working.  Here, miners were traveling to the
bottom of the shaft to take methane checks on a daily basis.[14]
See also Old Ben Coal Co., 3 FMSHRC 608, 609 (Mar. 1981) (without
deciding whether the "function" alone of an area of a mine
qualifies it as an active working, an area where no miners worked
was found to be an active working where it was inspected once a
week, rock dusted, and designated as an escapeway).

     Although four other cases Consol cites were decided by our
judges, and thus have no precedential value (29 C.F.R.
 2700.72), we note that in all four cases, our judges found that
bleeder entries were not active workings under regulations then
in force providing, inter alia, that bleeder systems "shall not
include active workings."  30 C.F.R.  75.316-2(e)(2) (1991); see
Old Ben Coal Co., 13 FMSHRC 1930, 1948 (Dec. 1991) (ALJ); Rushton
Mining Co., 11 FMSHRC 1506, 1507 (Aug. 1989) (ALJ); Rochester &
Pittsburgh Coal Co., 11 FMSHRC 1318, 1322 (July 1989) (ALJ);
United States Steel Corp., 6 FMSHRC 291, 307 (Feb. 1984) (ALJ).
Section 75.316-2(e)(2) was eventually replaced by more specific
regulations covering bleeder entries when MSHA revised its
ventilation regulations in 1996.  See 61 Fed. Reg. 9764 (1996);
see, e.g., 30 C.F.R.  75.321(a)(2) (air quality requirements
for bleeder entries); 75.364(a)(2) (weekly examination
requirements for bleeder entries).  The four cases Consol cites
are thus irrelevant to the instant proceedings.[15]

     In light of the conclusion that the production shaft was an
active working, largely undisputed evidence establishes that
ventilation in the production shaft was insufficient to dilute
and render harmless methane in the shaft.  In this regard, both
the Secretary's expert, John Urosek, and Consol's expert, Donald
Mitchell, concluded that airflow in the production shaft had been
reduced to no more than 400 cfm, and also agreed that the airflow
was insufficient to render harmless methane being liberated into
the shaft.  20 FMSHRC at 1343.  Thus, the record evidence leads
to only one conclusion - that Consol violated section 75.301.
See Walker Stone Co. v. Secretary of Labor, 156 F.3d 1076, 1085
n.6 (10th Cir. 1998) (remand unnecessary where record as whole
admits only one conclusion on issue).

     We reverse the judge's determination that section 75.301 was
not violated and remand the citation to the judge for
consideration of the S&S and unwarrantable failure
determinations[16] and imposition of the appropriate penalty.

     B.   Order No. 3109522

     The order alleges that Consol failed to conduct methane
tests at the production shaft where Heston was performing welding
operations in violation of 30 C.F.R.  77.1112(b).[17]  20 FMSHRC
at 1345; Gov't Ex. 2 at 1.  The order further alleges that the
cap on the production shaft severely restricted ventilation into
the shaft and that the mine had a known history of methane
liberation.  20 FMSHRC at 1345; Gov't Ex. 2 at 2.  In addition,
MSHA determined that the violation was S&S and resulted from the
operator's unwarrantable failure.  20 FMSHRC at 1345; Gov't Ex. 2
at 1.  The judge concluded that the standard required methane
examinations be made in areas within a range of likely ignition
from welding, including the area beneath the cap.  20 FMSHRC at
1346.  The judge further concluded that the violation was S&S but
not a result of the operator's unwarrantable failure.  Id. at
1347-48.

     Consol argues the judge ignored the "regulation's clear
terms."  C. Br. at 17.  Consol contends that the area likely to
contain methane must be the same area where welding was
performed.  Id. at 17-18.  Further, Consol argues that the
regulation must give fair warning of what conduct is prohibited
before sanctions can be imposed.  Id. at 18-19.  Consol asserts
that the Secretary bore the burden of proving that she had an
approved device for taking methane examinations and that the
judge erred when he placed the burden on Consol to prove the non-
existence of such a device.  Id. at 19-21.  Consol concludes by
arguing that the S&S determination and the $10,000 penalty should
be vacated.  Id. at 19.  Finally, Consol asserts that substantial
evidence supports the judge's determination that the violation
was not the result of Consol's unwarrantable failure. C. Revised
Resp. Br. at 14-28.

     The Secretary responds that her interpretation of the
standard is reasonable, furthers the purposes of the Mine Act,
and is owed deference.  S. Resp. Br. at 5-8.  In essence, the
Secretary argues that the standard should be interpreted to guard
against the risk that was present in the instant proceeding.  Id.
at 8.  The Secretary asserts that Consol's efforts to ventilate
the shaft and to prevent sparks and molten metal from entering
the shaft indicate that Consol was concerned with the buildup of
methane in the shaft and the hazard of ignition.  Id. at 9-10.
The Secretary contends that the regulation provided fair notice
of the conduct required; indeed, the Secretary argues that Consol
had actual notice of the requirements of the regulation.  Id. at
11-14.  The Secretary urges rejection of Consol's impossibility
or infeasibility of performance with the regulation argument, on
the ground that the regulation does not permit such a defense.
Id. at 15-18.  Finally, the Secretary argues that substantial
evidence does not support the judge's conclusion that the
violation was not the result of Consol's unwarrantable failure.
S. Br. at 26-41.

          1.   Violation

     The "language of a regulation . . . is the starting point
for its interpretation."  Dyer v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)).  Where the language of
a regulatory provision is clear, the terms of that provision must
be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a
meaning would lead to absurd results.  See id.; Utah Power &
Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal
Co., 15 FMSHRC 1555, 1557 (Aug. 1993).

     Here, as a threshold matter, we find clear and unambiguous
the requirement of section 77.1112(b) that "[b]efore welding
. . . is performed in areas likely to contain methane, an
examination for methane shall be made."  30 C.F.R.  77.1112(b).
To prove a violation of this regulation, the Secretary must show
(1) that a particular area was "likely to contain methane,"
(2) that welding was performed in that area, and (3) that no
examination of the area was made.  Clearly, the area directly
beneath the cap was an area "likely to contain methane."  Id.
The mine liberated a high level of methane.  20 FMSHRC at 1337.
Construction of the cap over the production shaft significantly
reduced air flow into the shaft.  Id. at 1341.  Moreover, when
one of the 6-inch ventilation pipes was plugged, reducing air
flow to a mere 400 cfm, there was, as the judge found based on
expert testimony, "a potential for explosive concentrations of
methane to accumulate beneath the cap."  Id. at 1346 (citations
omitted).  The fact that an explosion occurred is proof enough
that ventilation of the area beneath the cap was inadequate to
dilute, render harmless, and carry away methane being liberated
in the shaft.  See id. ("[t]he methane explosion itself is prima
facie proof" that methane was likely to accumulate beneath the
cap).[18]

     The question remains, though, whether the area beneath the
cap can be said to have been within the relevant area in which
welding was performed.  The judge concluded that "the area
beneath the cap . . . was within the area or zone affected by
[the] welding."  Id.  We find that substantial evidence supports
this conclusion.  First, we note that the operator took
precautions to guard against welding sparks and molten metal from
going into the production shaft (id. at 1342), evincing Consol's
concern that the welding posed some risk of causing an ignition
in the shaft.  See Mid-Continent Resources, Inc., 6 FMSHRC 1132,
1138 (May 1984) ("the substantial evidence standard may be met by
reasonable inferences drawn from indirect evidence").  But more
importantly, we note that the I-beam supporting the dewatering
pipe extended across the production shaft (Gov't Ex. 15, Drawing
12), and also connected the area above the cap to the atmosphere
of the production shaft (Gov't Ex. 15, Drawing 1).  Experts for
Consol agreed with the Secretary's position that the most likely
cause of the methane explosion was the improper grounding of the
second welding machine to the I-beam (20 FMSHRC at 1346), which
probably caused arcing to occur between the pipe being welded and
the I-beam.  Tr. 455-57; 2156-58; 2182-83, 2355-56).  Given this
direct electrical link between the work area above the production
shaft and the atmosphere of the shaft below the cap,[19] we find
that Consol was clearly and unambiguously required under section
77.1112(b) to perform methane examinations in the area
immediately below the cap.

     Consol's argument that, to prove a violation of section
77.1112(b), the Secretary "must establish that `a device approved
by the Secretary for detecting methane' was in existence
. . . and that the operator failed to utilize that device" (C.
Br. at 19) puts the cart before the horse.  Given the very high
likelihood of methane being present under the cap, a fact Consol
fully appreciated, it was up to the company to design the cap in
such a way as to allow the required methane examinations to be
performed.  Indeed, the judge found that Consol could have
incorporated sampling pipes into the cap (20 FMSHRC at 1347), and
substantial evidence supports the judge.  In any event, the
appropriate response to the lack of a device that could
accurately measure methane levels beneath the cap would have been
to suspend welding over the production shaft rather than blindly
proceed and risk the disastrous consequences that, in fact,
occurred.

     In light of the above, we affirm the judge's determination
of violation and S&S designation.[20]

          2.   Unwarrantable Failure

     The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C.  814(d), and refers to more serious
conduct by an operator in connection with a violation.  In Emery
Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Id. at 2001.
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, 194 (Feb. 1991);
see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).

     Whether conduct is "aggravated" in the context of
unwarrantable failure is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors
exist, such as the extent of the violative condition, the length
of time that it has existed, whether the violation is obvious or
poses a high degree of danger, whether the operator has been
placed on notice that greater efforts are necessary for
compliance, the operator's efforts in abating the violative
condition, and the operator's knowledge of the existence of the
violation.  See Cyprus Emerald Resources Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody
Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596,
1603 (July 1984).  These factors need to be viewed in the context
of the factual circumstances of a particular case, and some
factors may be irrelevant to a particular factual scenario.  But
all of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or
whether the level of the actor's negligence should be mitigated.

     The judge concluded that, while Consol was negligent in
failing to measure for methane below the cap, that negligence did
not rise to the level of unwarrantable failure.  20 FMSHRC at
1348.  The judge relied on four considerations:  Consol could
have reasonably perceived that methane would not accumulate above
the cap so that not testing would not be violative; Consol could
have perceived that the welding was to be performed in a discrete
area above the cap that separated the welding from the methane;
methane examinations were in fact performed at the bottom of the
shaft; and the most likely ignition source, an electrical arc
from an improperly grounded welding machine, was not an obvious
source of ignition.  Id.

     The judge, however, failed to fully consider all the facts
and circumstances relevant to an unwarrantable failure
determination.  As the judge noted, the Blacksville No. 1 Mine
was a "gassy" mine - one that emitted large quantities of
methane.  Id.  Consol witnesses testified extensively regarding
the gassy nature of the mine and how methane, which is lighter
than air, could migrate into the shaft and accumulate under the
cap.  Tr. at 555, 562, 580-81, 616, 624, 686, 691, 958, 1202,
1243-46, 1288, 1693.  The judge also found that "Consol officials
admitted that they knew methane could be liberated into the
production shaft."  20 FMSHRC at 1348.  Further, Consol officials
were well aware of the hazards associated with methane
accumulations and welding.  Tr. 481-85, 1309, 1436.  Consol
assistant vice-president Quesenberry even testified that he
understood the need to test for methane underneath the cap.  Tr.
624-25.  Nevertheless, Consol decided to install dewatering pipe
that required welding just above the shaft.  By proceeding to
cover the shaft, causing inadequate ventilation, and to weld in
the presence of accumulating methane of which they were or should
have been aware, Consol ignored obvious danger that was apparent
to a number of its managers.

     However, corporate balkanization at Consol apparently led 
to a situation where officials in one division did not know 
what those in another division were doing.  Thus, Blacksville 
Mine vice-president Ammons was not consulted on the decision by
Consol's regional engineering department to switch from threaded
pipe to welded pipe.  20 FMSHRC at 1340.  Ammons, without
consulting anyone in Consol's environmental quality control
department or its regional safety office, determined to utilize
two six-inch ventilation pipes to ventilate the production shaft,
even though he did not know the methane liberation rate or how
much air would come in through the ventilation pipes.  Id. at
1339.  When Consol regional safety inspector Yerkovich notified
MSHA of the proposal to cap the production shaft, he did not
notify MSHA of when the proposed capping was to occur or that
welded dewatering pipe would be installed in the shaft.  Id. at
1338.  Nor did Yerkovich alert anyone in the Consol hierarchy
that MSHA had not responded to his notification of the early
capping.  Accordingly, Consol proceeded to construct the cap
without hearing back from MSHA.  Id.  Finally, Consol regional
engineering employees DeBlossio and Baird, who were assigned to
the project, had no experience in underground mine ventilation.
Id. at 1341.  Indeed, DeBlossio was not even aware that the
Blacksville Mine liberated large quantities of methane.  Id.

     The confusion resulting from this inadequate communication
and coordination was itself a contributing cause of the
explosion.  There was a serious lapse of judgment among Consol
personnel in not ordering or ensuring that methane checks were
made underneath the production shaft cap.  See Rock of Ages
Corp., 20 FMSHRC 106, 115 (Feb. 1998) (a foreman's failure to
search for undetonated explosives when such explosives had been
uncovered in the past evinced a reckless disregard for the
hazards associated with misfires), aff'd in pertinent part, 170
F.3d 148 (2nd Cir. 1999).

     The factors on which the judge relied in finding no
unwarrantable failure are at odds with findings that he made in
regard to the underlying violation or are contrary to the
Commission's unwarrantable failure test.  The first factor that
the judge considered - the failure to measure methane
accumulations above the cap - is not relevant because the
underlying violation concerns the failure to measure methane
below the cap.  Similarly, the fact that welding was occurring
above the cap is not dispositive, since the heart of the alleged
violation deals with the effects the welding had on the
atmosphere in the production shaft via the electrical connection
between the welding area and that atmosphere.  Further, Consol's
assertedly reasonable and good faith belief that testing for
methane at the bottom of the shaft was adequate to comply with
the standard was undercut by its own witness, Quesenberry, who
acknowledged the need to test for methane under the cap, as well
as at the bottom of the shaft.  Tr. 624-25.  Finally, arcing
associated with electrically energized equipment is, as the
Secretary points out (S. Br. 31-32), a well-recognized ignition
source for methane in mines.  See, e.g., Eastover Mining Co., 4
FMSHRC 123, 123 (Feb. 1982) (recognizing that electrical arcing
presents a potential ignition source).

     In light of the foregoing discussion, we vacate the judge's
unwarrantable failure determination and remand the matter to him
for reconsideration in light of the facts and circumstances
outlined above.

     C.   Order No. 3109523

     This order charged Consol with an S&S and unwarrantable
violation of 30 C.F.R.             75.316 (1991)[21] on the
ground that, because major ventilation changes resulted from
capping the production shaft, Consol was obligated to revise its
mine ventilation plan to reflect those changes and obtain the
prior approval of the MSHA District Manager.  20 FMSHRC at 1348;
Gov't Ex. 3 at 1.  The judge rejected Consol's contention that
such approval was not required in this instance.  20 FMSHRC at
1349.  While the judge recognized that, prior to March 1992,
section 75.316 approval for capping a mine shaft was not required
in MSHA District 3 when the capping occurred during mine sealing,
he found this case clearly distinguishable because the
Blacksville No. 1 production shaft was not sealed, but rather
remained partially open to allow for the ongoing work of
fabricating the dewatering pipe and for continued intake
ventilation.  Id.

     The judge also found that an agent of Consol, Yerkovich, was
specifically informed by ventilation specialist Palmer that
revision of the ventilation plan to reflect capping the
production shaft would require MSHA approval, thereby placing
Consol on notice of its obligations in this instance.  Id. at
1349-50.  The judge refused to credit Yerkovich's denials that he
was told prior approval for capping the production shaft was
required.  Id. at 1350.  The judge found the violation to be S&S
and of high gravity.  He also found that Yerkovich was directly
and specifically told of the necessity of obtaining MSHA approval
for the capping job, and that Consol deliberately disregarded
that directive.  Finally, the judge determined that Consol's
violation of section 75.316 resulted from its unwarrantable
failure.  Id. at 1350-51.

          1.   Violation

     Consol argues the judge erred in discrediting Yerkovich's
trial testimony that MSHA ventilation specialist Strahin told him
approval was not necessary.  C. Br. at 22-23.  According to
Consol, that testimony, contrary to the judge's finding, is not
inconsistent with Yerkovich's earlier deposition testimony, given
his explanation that he did not have the opportunity at the
deposition to testify regarding his conversation with Strahin.
Id. at 23.  Consol also contends that substantial evidence does
not support the judge's conclusion regarding differences in
previous Consol capping projects, because Consol witnesses
testified that, prior to the mine explosion, approval was not
required for capping projects in which neither the mine nor the
shaft at issue was sealed completely.  Id. at 23-24.

     The Secretary maintains the judge correctly analyzed
testimony in finding that Yerkovich was informed by Palmer that
approval of the capping project was necessary.  S. Resp. Br. at
23-24.  The Secretary also argues that to the extent there may
have been prior occasions in which Consol, without receiving MSHA
approval, partially sealed shafts in District 3 while miners
remained underground, there is no evidence that MSHA's
ventilation specialists in that district were aware of such
projects, much less acquiesced to them.  Id. at 24 n.16.

     There is no dispute that the changes in ventilation
resulting from the dewatering project were such that, according
to the terms of section 75.316, Consol was obligated to revise
its ventilation plan to show those changes and get MSHA's
approval before undertaking the project.[22]  As the judge noted,
"when the extant ventilation plan was approved, the accompanying
letter sent to Consol stated that `[y]ou are reminded that all
changes or [revisions] to the ventilation plan must be submitted
and approved before they are implemented.'"  20 FMSHRC at 1349
(quoting Gov't Ex. 26 at 1).  In addition, consistent with that
directive, the March 3, 1992, letter from Consol informing the
MSHA District Manager of the capping project described it as a
"proposed air change" at Blacksville No. 1.  Gov't Ex. 27.

     Moreover, the judge, in concluding that Consol was
specifically made aware of the need for MSHA approval in this
instance, credited the testimony of Palmer and Strahin over
Yerkovich's conflicting testimony.  See 20 FMSHRC at 1349-50. A
judge's credibility determinations are entitled to great weight
and may not be overturned lightly.  Farmer v. Island Creek Coal
Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981).  The Commission has recognized
that, because the judge has an opportunity to hear the testimony
and view the witnesses, he is ordinarily in the best position to
make a credibility determination.  In re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov.
1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.
1984)), aff'd sub nom. Secretary of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096 (D.C. Cir. 1998).  Nonetheless, the
Commission will not affirm such determinations if there is no
evidence or dubious evidence to support them.  Consolidation Coal
Co., 11 FMSHRC 966, 974 (June 1989).

     In this instance there is sufficient evidence to support the
judge's credibility determinations.  Both Palmer and Strahin were
clear in their testimony that, with respect to the production
shaft project, neither had acquiesced to anything less than the
prior approval required by section 75.316.  Tr. 1106 (Palmer),
1865-66 (Strahin).  In addition, while being deposed, Yerkovich
agreed with the statement that Palmer and Strahin "indicated to
you in no uncertain terms that they thought that you needed prior
approval."  Gov't Ex. 51 at 83 (deposition excerpts) (emphasis
added).  In these circumstances, the judge, who had the
opportunity to view all three witnesses while each gave his trial
testimony, clearly was justified in refusing to credit
Yerkovich's claim at trial that Strahin had told him that prior
approval was not necessary.  Tr. 1256-57, 1294-95.[23]
Substantial evidence therefore supports the judge's conclusion
that Consol was informed by a representative of MSHA that
approval was necessary before the project could proceed.

     As for Consol's claim that the judge erred in distinguishing
previous Consol capping projects in MSHA District 3, we do not
agree.  The testimony cited by Consol (C. Br. at 24; C. Reply Br.
at 10-11) fails to establish that MSHA knew of a previous
instance in which Consol had capped a shaft and conducted welding
over a hole in the cap while there were men underground in that
portion of the mine.

     The judge's determination that Consol violated section
75.316 is affirmed.

          2.   Unwarrantable Failure

     Consol contends that, in finding the violation
unwarrantable, the judge failed to consider or discuss extensive
evidence establishing that, based on Consol's prior dealings with
MSHA and the presence of two MSHA inspectors at the mine while
the production shaft was being capped and the dewatering pipe
installed, Consol's personnel had a reasonable, good faith belief
that approval from MSHA for ventilation changes resulting from
the capping project were not required in this instance.  C. Br.
at 24-30.  The Secretary answers that because the violation
occurred despite Palmer's warning to Yerkovich regarding the need
for prior approval, Consol's decision to move ahead without that
approval constitutes aggravated conduct.  S. Resp. Br. at 25-27.
The Secretary also maintains that the mere contemporaneous
presence at the mine of two inspectors is insufficient to excuse
Consol's failure to comply with section 75.316, given that
neither inspector was a ventilation specialist responsible for
approving changes to ventilation plans.  Id. at 28-29.

     It was not error for the judge to refuse to accord Consol
shelter from the unwarrantable failure charge on the basis of
evidence of its good faith and reasonableness.[24]  Consol bases
the reasonableness of its belief that approval was not required
here on prior MSHA treatment of Consol District 3 capping
projects, as well as circumstances surrounding this project and
Consol's notification to MSHA.  Regardless of whether the
evidence Consol cites establishes the reasonableness of its
belief in the inapplicability of section 75.316 to a project such
as this, the fact remains that Yerkovich was told by an MSHA
representative that prior approval was necessary in this
instance.  Moreover, Yerkovich did not remain silent about this
conversation but reported it to his superiors at Consol.  See 20
FMSHRC at 1350-51.

     In light of this evidence, we agree with the judge that
Consol's failure to obtain MSHA  approval, despite being put on
notice that approval was required in this instance, demonstrates
that Consol's conduct was aggravated and therefore unwarrantable.
See Rochester & Pittsburgh, 13 FMSHRC at 194 (intentional
misconduct, whether by commission or omission, is aggravated
conduct).  Consequently, we affirm the judge's unwarrantability
determination.

     D.   Order No. 3109524

     This order charged that Consol, during the capping of the
production shaft and installation of the dewatering pipe,
violated 30 C.F.R.  75.322 (1991),[25] and that the violation
was S&S and due to the Consol's unwarrantable failure.  20 FMSHRC
at 1351; Gov't Ex. 4.  The Secretary alleged two separate grounds
of violation.  Specifically, she alleged that, on March 13, while
Consol had properly withdrawn its personnel from the mine to
evaluate changes in ventilation caused by construction of the
cap, the operator violated the regulation by permitting miners to
return underground without evaluating ventilation changes within
the production shaft.  20 FMSHRC at 1351; Gov't Ex. 4 at 1.

     The order alleged that a second material change to the split
of air ventilating the production shaft occurred the following
week, when the plugged dewatering pipe was inserted into the 22-
inch hole in the cap and the remaining portion of that hole was
covered.  20 FMSHRC at 1351; Gov't Ex. 4 at 2.  According to the
order, when the subsequent closing of one of the two intake
ventilation pipes in the cap is also taken into account,
ventilation in the shaft was reduced from approximately 7,500 cfm
to around 400 cfm.  20 FMSHRC at 1351; Gov't Ex. 4 at 2.  Miners
remained working both underground and above during the change in
ventilation, and the split of air ventilating the production
shaft was not evaluated following the change.  20 FMSHRC at 1351;
Gov't Ex. 4 at 2.

     The judge rejected Consol's argument that section 75.322 did
not apply.  Relying on the testimony of Ammons, the judge found
the production shaft intake could be properly characterized as a
"split of air."  20 FMSHRC at 1352 n.2.  Focusing solely on the
reduction in airflow in the covered production shaft from 7,500
cfm to 400 cfm caused by insertion of the dewatering pipe and
closing one of the ventilation pipes, the judge found that
reduction materially affected the split of air ventilating the
production shaft.  Id. at 1352-53.  Because it was undisputed
that the reduction of airflow within the production shaft
affected the safety of persons in the mine (id. at 1352), the
judge concluded that Consol was required to follow the procedures
set forth in section 75.322, and violated the standard when it
failed to do so.  Id. at 1353.

     While the judge found the section 75.322 violation to be S&S
and of high gravity, he concluded it was not shown to be the
result of Consol's unwarrantable failure.  20 FMSHRC at 1353-54.
The judge based his unwarrantability determination solely on his
finding that, without the testimony of the four dead miners, the
Secretary could not show whether Consol officials failed to
notify those working on the project of the importance of keeping
the two ventilation pipes open for intake air, or whether the
dead miners were otherwise aware of that importance of doing so.
Id. at 1354.

          1.   Whether the Production Shaft Intake Is a Split of
               Air Under Section 75.322

     We note at the outset that the judge did not address the
change in ventilation of the production shaft on March 13 caused
by closing of the shaft.  This does not affect our consideration,
however, as Consol's appeal of the finding of violation is based
on an issue which applies to all changes in ventilation the
Secretary alleges in the order occurred without compliance with
section 75.322.

     Specifically, Consol urges reversal of the finding of a
violation on the ground that the judge's conclusion that the
intake air in the production shaft was a "split of air" under
section 75.322 is factually and legally erroneous, and
unsupported by substantial evidence.  C. Br. at 31-33.  According
to Consol, the judge ignored evidence establishing that the
production shaft intake air did not contribute to the main air
current ventilating the underground workings of the mine. Id. at
31-32; C. Reply Br. at 13-14.  In response, the Secretary
maintains that there is overwhelming support in the record, in
the form of admissions by Consol officials, for the judge's
conclusion that the production shaft intake constituted a "split
of air" under section 75.322.  S. Resp. Br. at 30-33.

     Section 75.322 applies to changes materially effecting any
split of a mine's main air current.  While the term "split" is
undefined in the regulations, the standard's use of the term is
consistent with the industry usage.  The Dictionary of Mining,
Mineral, and Related Terms defines "air split" as "[t]he division
of the main current of air into two or more parts."  American
Geological Institute, Dictionary of Mining, Minerals and Related
Terms 12 (2d ed. 1997).

     We note that Consol's claim that the production shaft was
not a "split of air" is contrary to the testimony of some of its
highest officials.  According to Ammons, air from the production
shaft was going to the mine's active workings, and both Ammons
and Quesenberry conceded that the production shaft intake
qualified as a split of the main air current.  Tr. 648, 669, 749.

     Moreover, Consol's claim that section 75.322 was
inapplicable to the capping project is contradicted by its own
actions.  The record reflects that Consol treated the March 13
covering of the shaft as a change in ventilation subject to
section 75.322, and attempted to comply with at least some of the
regulation's requirements.  20 FMSHRC at 1340-41; Tr. 736-37,
1634.  Indeed, Yerkovich cited Consol's compliance with the
regulation that day as a reason why MSHA prior approval of the
capping was not required under section 75.316.  Tr. 1298-1300.

     In addition, the production shaft was one of only five
primary entry points for intake air in the mine.  Gov't Ex. 13
(Blacksville No. 1 Mine Post-Accident Mine Ventilation System
Investigation) at 5-6; Gov't Ex. 26 (data included in last
ventilation plan).  Five surface-mounted exhaust fans drew air
into the production shaft and four additional shafts elsewhere in
the mine that were all intake entries or had intake compartments.
Gov't Ex. 13 at 5-6.  Before the production shaft was covered,
air flowed through the shaft at nearly 200,000 cfm.  Id. at 27,
28; Gov't Ex. 26.  This was a greater rate than two of the other
intake shafts and constituted approximately 17% of the total
amount of air entering the mine.  Gov't Ex. 13 at 28.  At that
time, no more than 34% of the intake air flowed through any one
shaft.  Id.  Furthermore, the production shaft and the nearby
service shaft, also known as the portal shaft, were situated and
designed so that any reduction in air flow in the production
shaft was compensated by an increase in air flow through the
service shaft.  Tr. 648-49, 735-36, 1654, 1689; Gov't Ex. 13 at
18-23.

     Consol's recitation of evidence that ventilation changes
that occurred once the production shaft was covered did not
materially affect ventilation in the mine misses the point.  C.
Br. at 32-33.  By its terms, section 75.322 was not triggered by
only those ventilation changes that would "materially affect"
mine-wide ventilation or the ventilation of active workings, but
rather was triggered by any ventilation change that would
"materially affect" any split of a mine's main air current.[26]
Moreover, by twice providing that the actions it required
operators to take were limited in geographic scope to those
"areas" affected by the change in ventilation, the regulation
clearly connotes that the ventilation changes to which it refers
include those changes that have less than mine-wide effects.
Consequently, we reject Consol's invitation to overturn the
judge's finding that the air ventilating the production shaft was
an air split to which section 75.322 applied.[27]

     In light of the record evidence and the plain meaning of the
term "split of air," substantial evidence supports the judge's
conclusions that the production shaft intake was a split of air
to which the requirements of section 75.322 applied, and that the
changes in ventilation that occurred during installation of the
dewatering pipe materially affected that split of air.  We
therefore affirm the judge's finding that Consol violated section
75.322.

          2.   Unwarrantable Failure

     The Secretary urges reversal of the judge's negative
unwarrantability finding on the ground that the judge failed to
consider an extensive body of evidence which demonstrates that
Consol's failure to ascertain the effect on ventilation of the
production shaft of the activities that surrounded capping the
shaft constituted an unwarrantable failure to comply with the
standard.  S. Br. at 42-49.  The Secretary also contends that the
judge erred in failing to take into account the reason why the
four dead miners were unavailable to testify, and that he should
have shifted to Consol the burden of showing what the miners knew
regarding the need to keep the ventilation pipes in the cap open.
Id. at 49-55.

     Consol maintains that, assuming arguendo that it violated
section 75.322, the judge's negative unwarrantability
determination is supported by substantial evidence.  C. Revised
Resp. Br. at 29.  Consol further contends that any violation of
section 75.322 cannot be deemed unwarrantable because it
reasonably relied on guidance provided by MSHA that any
ventilation change under 9,000 cfm is not subject to the
requirements of the regulation.  Id. at 29-31.

     While we are refusing Consol's request to overturn the
judge's finding of a section 75.322 violation, that does not end
the question of the extent of the violation.  This is a relevant
issue because of the judge's conclusion that the violation he
found was not unwarrantable.  However, as mentioned, the judge
did not completely address the question of the extent of the
violation posed by the order.  The judge failed to address
whether section 75.322 was violated in connection with the March
13 completion of construction of the cap over the production
shaft.  Below, the parties disputed whether Consol's actions that
day in evaluating the change of air flow within the production
shaft - an area "affected" by the change in ventilation and
therefore subject to evaluation - were sufficient to comply with
section 75.322's requirement that the safety of the effects of
the change be ascertained.  See S. Post-Hearing Br. at 62-63; C.
Post-Hearing Br. at 52-53.  The judge never resolved this
dispute, and thus never addressed whether Consol violated section
75.322 on March 13 and, if so, whether the violation that day was
unwarrantable.[28]

     In light of his failure to completely address the extent to
which Consol violated section 75.322, the judge's negative
unwarrantability finding is fundamentally inadequate.
Consequently, we vacate that finding and remand for a more
complete consideration of the evidence and issues raised by the
allegation of unwarrantability in connection with the order
alleging a section 75.322 violation.  See Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (remand for
judge to adequately address evidentiary record).  On remand, the
judge should resolve whether section 75.322 was first violated on
March 13.

     As for the issue the judge found dispositive on the question
of unwarrantability - the closing of one of the ventilation pipes
- on remand it would only be necessary for the judge to reach the
issue of whether the ventilation pipe closing resulted in an
unwarrantable violation of section 75.322 if the record evidence
does not establish that an unwarrantable violation of the
regulation occurred before that point.[29]  Moreover, unlike the
judge, we do not consider the testimony of the dead miners a
necessary prerequisite to finding Consol's actions unwarrantable,
for, as the judge found, there is evidence in the record that
superintendent Levo not only facilitated the cutting of one of
the ventilation pipes, but also at one point witnessed that it
had been closed.  20 FMSHRC at 1342.

     In determining unwarrantability on remand, the judge should
address all of the factors the Commission considers relevant to
the question of unwarrantability, as discussed at page 14, supra.
There may be a number of such factors present here with respect
to the section 75.322 violation, including the extensiveness of
the violative condition (once the judge has completely addressed
the allegations in the order) and the degree of danger posed by
the violation.[30]  We also again note the relevancy of Consol
supervisory personnel participating in various aspects of the
project but not communicating with each other.

     As part of his unwarrantable failure analysis, the judge
should also consider whether a defense was established by Consol.
Consol claims that it did not comply with section 75.322 because
it was relying on the 9,000 cfm figure then contained in MSHA's
Program Policy Manual ("PPM") as the minimum air reduction
necessary to trigger application of section 75.322.  See 20
FMSHRC at 1353; Resp't Ex. 52.  The judge considered Consol's
claim in concluding that there was a violation (20 FMSHRC at
1353),[31] but made no finding regarding the good faith and
reasonableness of the claim in light of the facts.  Such a
finding is necessary in the context of an unwarrantable failure
charge.  See Wyoming Fuel Co., 16 FMSHRC 1618, 1628 (Aug. 1994)
("reasonableness" of belief determined by surrounding
circumstances).

     E.   Penalties

     The Secretary seeks review of the two $10,000 penalties the
judge assessed in connection with each of the two orders he found
not to be unwarrantable, a reduction from the $50,000 the
Secretary sought for each violation.  S. Br. at 55-61.  Because
we have vacated and remanded those negative unwarrantability
determinations, the penalties assessed for the two orders are
also vacated and remanded.  On remand, once the judge has decided
whether the violations were unwarrantable, we direct him to
reassess the penalties consistent with findings made on each of
the six statutory penalty criteria set forth in section 110(i) of
the Mine Act.  We also direct the judge to consider our previous
holdings that a judge's assessment of a penalty may not
"substantially diverge" from the penalty proposed by the
Secretary without sufficient explanation.  See Unique Electric,
20 FMSHRC 1119, 1123 n.4 (Oct. 1998); Sellersburg Stone Co., 5
FMSHRC 287, 293 (Mar. 1983); see also Dolese Bros. Co., 16 FMSHRC
689, 695 (Apr. 1994).  The judge's initial decision lacked any
such explanation.

                               III.

                            Conclusion

     For the foregoing reasons, we: (1) reverse the judge's
determination that section 75.301 was not violated, and remand
for a determination of whether that violation was S&S and due to
Consol's unwarrantable failure, and a penalty assessment; (2)
affirm the judge's determination that Consol violated section
77.1112(b), and vacate and remand his determination that the
violation was not unwarrantable and his penalty assessment for
further consideration consistent with this opinion; (3) affirm
the judge's determination that Consol violated section 75.316 and
that the violation was unwarrantable; and (4) affirm the judge's
determination that Consol violated section 75.322, and vacate and
remand his determination that the violation was not unwarrantable
and his penalty assessment for further consideration consistent
with this opinion.


                            Marc Lincoln Marks, Commissioner
                              
                            James C. Riley, Commissioner
                              
                            Theodore F. Verheggen, Commissioner


Distribution

David J. Hardy, Esq.
Maris E. McCambley, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322

L. Joseph Ferrara, Esq.
Jackson & Kelly, PLLC
2401 Pennsylvania Avenue, N.W.
Washington, D.C.  20037

Jerald S. Feingold, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031

Robert M. Vukas, Esq.
Consol Inc.
Consol Plaza
1800 Washington Road
Pittsburgh, PA 15241

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1]   Chairman   Jordan   and  Commissioner  Beatty  recused
themselves in  this matter and took no part in its consideration.
Pursuant to section  113(c) of the Federal Mine Safety and Health
Act  of  1977,  30  U.S.C.      823(c),   this  panel  of  three
Commissioners has been designated to exercise  the  powers of the
Commission.

     [2]   The production shaft was one of the mine's  six shafts
and had been used to transport coal out of the mine with  a  skip
hoist.   20  FMSHRC  at  1337;  Resp't  Ex. 14.  According to the
approved ventilation plan, the shaft had  been  intaking  187,000
cubic feet of air per minute ("cfm").  20 FMSHRC at 1337.

     [3]  We will hereinafter refer to this platform as a  "cap"
because this is the term used by the parties and judge throughout
these proceedings.  We note, however, that the platform was not a
cap because it was not used to seal the production shaft.  Cf. 30
C.F.R.    75.1711-1 ("Caps consisting of a 6-inch thick concrete
cap  or other  equivalent  means  may  be  used  for  sealing.").
Instead,  Consol intended initially to use the so-called "cap" as
a  work  platform   to  install  the  dewatering  pipe  into  the
production shaft through  the  large  opening  provided  for that
purpose.   The  platform  would  have  become  a  cap  only after
completion  of  the  dewatering  pipe  installation  when  Consol
intended to seal the shaft.  Tr. 605-06, 1602, 1610, 1703.

     [4]    See  also  30  C.F.R.    75.1711-1  ("Caps  shall be
equipped with a vent pipe at least 2 inches in diameter extending
for  a  distance  of  at  least  15 feet above the surface of the
shaft.").

     [5]   At trial, Yerkovich testified  that  Raymond  Strahin,
another MSHA ventilation specialist who worked with Palmer,  told
him  that written notification of this change would be sufficient
(Tr. 1254-57),  which  Strahin  denied.   20  FMSHRC at 1338; Tr.
1866.  Palmer testified that he told Yerkovich  that  capping the
production shaft would result in a change in the ventilation plan
that  would  have to be approved by MSHA's district manager.   20
FMSHRC at 1338; Tr. 1106.

     [6]  MSHA  inspector  Dale  Dinning,  along  with  inspector
trainee William Sperry, were at the mine on March 13 on a section
103(i) spot inspection, and observed the pouring of concrete over
the steel plate.  Tr. 1339-40, 1342-49, 1509-10, 1513.   The  two
inspectors  were  at  the  mine  next on March 19, the day of the
explosion, for a regular inspection.  Tr. 1341-42, 1351-52.

     [7]  For a description of the  post-accident  investigation,
see Consolidation Coal Co., 20 FMSHRC 315, 316-17 (Apr. 1998).

     [8]  The S&S terminology is taken from section  104(d)(1) of
the  Act,  30  U.S.C.  814(d)(1), which  distinguishes  as  more
serious any violation that "could significantly and substantially
contribute to the  cause  and  effect  of  a . . . mine safety or
health hazard."

     [9]  The   cited  regulation,  30 C.F.R.   75.301  (1991),
provided in relevant part:

               All active workings shall  be ventilated
          by a current of air containing not  less than
          19.5  volume  per centum of oxygen, not  more
          than 0.5 volume per centum of carbon dioxide,
          and no harmful quantities of other noxious or
          poisonous gases;  and the volume and velocity
          of the current of air  shall be sufficient to
          dilute, render harmless,  and  to carry away,
          flammable,  explosive,  noxious, and  harmful
          gases,  and  dust,  and smoke  and  explosive
          fumes. . . .

The language of the regulation tracked section 303(b) of the Mine
Act,  30  U.S.C.    863(b).   The  regulation  was  revised  and
recodified in 1996 at 30 C.F.R.  75.321(a).

     [10]  The regulatory  definition  of  "active  workings"  is
taken  from  the  Mine Act, 30 U.S.C.    878(g)(4).  The present
definition in the regulations is identical in language to that in
effect at the time  of  the  alleged  violation.  See 30 C.F.R. 
75.2 (1999).

     [11]   Although  the  judge  did  not  acknowledge  in  his
decision  that  the  citation charged Consol  with  unwarrantable
failure in committing  the  violation  (20  FMSHRC  at 1343), the
citation clearly alleged it, and the Secretary raised the judge's
failure to so find in her petition for review.  S. PDR at 22.

     [12]  When reviewing an administrative law  judge's  factual
determinations, the Commission is bound by the terms of the  Mine
Act to apply the substantial evidence test.  30 U.S.C.
   823(d)(2)(A)(ii)(I).   "Substantial  evidence"  means  "`such
relevant  evidence  as a reasonable mind might accept as adequate
to support [the judge's]  conclusion.'"   Rochester  & Pittsburgh
Coal  Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated
Edison  Co. v. NLRB, 305 U.S. 197, 229 (1938)).  In reviewing the
whole record, an appellate tribunal must consider anything in the
record that  "fairly  detracts"  from  the weight of the evidence
that  supports a challenged finding.  Midwest  Material  Co.,  19
FMSHRC  30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)).

     [13]   We  fail  to  understand  why  the Secretary adopted,
without question, Consol's characterization of the work site from
which the dewatering pipe was being installed as a "cap."

     [14]  Consol also attempts to distinguish  a  case in  which
former  Chief  Administrative Law Judge Paul Merlin held  that  a
tailgate  entry  where   miners   were   working   to   abate   a
"long-standing    water   problem"   was   an   active   working.
Consolidation Coal  Co., 14 FMSHRC 590, 595-96 (Apr. 1992) (ALJ).
Consol states that in  that  case, "miners normally and routinely
worked in the tailgate entry at  issue."  C. Revised Resp. Br. at
11.   Here,  miners  normally  and  routinely   traveled  to  the
production shaft to check for methane.

     [15]   Consol  also  cites  National Mining  Association  v.
MSHA, 116 F.3d 520 (D.C. Cir. 1997),  with  no  explanation as to
its relevance aside from a reference appearing in  that  case  to
two  of  the  ALJ  cases  we  have  already  discussed.   In that
decision,  which  was  not a Mine Act proceeding under Commission
jurisdiction, the National Mining Association petitioned directly
to  the  court  for  review  of  several  of  MSHA's  ventilation
regulations that were  finalized  in  1996  - including 30 C.F.R.
 75.321(a)(2), which the court upheld.  Id. at 525-28.

     [16]  Because  the judge dismissed the underlying violation,
he did not reach the S&S  or unwarrantable failure designation of
the citation.

     [17]    The   cited  regulation,  30  C.F.R.   77.1112(b),
provides:

               Before welding, cutting, or soldering is
          performed in areas likely to contain methane,
          an examination for methane shall be made by a
          qualified person  with  a  device approved by
          the   Secretary   for   detecting    methane.
          Examinations   for   methane  shall  be  made
          immediately  before and  periodically  during
          welding, cutting,  or soldering and such work
          shall  not  be  permitted   to   commence  or
          continue in air which contains 1.0 volume per
          centum or more of methane.

Unlike the preceding standard involving "active  workings," which
is  defined  in  the  Mine  Act and regulations, "areas"  is  not
defined.

     [18]   Ammons,  Bane, Moore,  Pittman,  and  DeBlossio  all
testified regarding the potential for methane in the shaft absent
adequate ventilation.   Tr.  435, 494, 686-87, 821, 956-57, 1723-
24.  Moreover, Consol's expert  Mitchell  stated  that, even with
both air pipes open, there would have been some areas beneath the
cap  with  explosive concentrations of methane, and that  it  was
reasonable to expect methane accumulations.  Tr. 2277, 2328.

     [19]:   Consol's   argument  that  the  cap  separated  the
production shaft from the  welding  (C.  Br.  at 17-18) is simply
without merit.

     [20]  Consol did not separately challenge  the  judge's S&S
determination,  but requested the Commission reverse the  judge's
determination if  it  agreed to reverse the underlying violation.
See C. Br. at 21.  Also,  in  light  of our agreement with Consol
that this violation can be decided on  the  basis  of  the  clear
language  of  the  regulation,  there is no notice issue present.
Further, even if the language of  the  regulation were ambiguous,
Consol cannot raise a notice issue because  the company failed to
raise it before the judge.  30 U.S.C.  823(d)(2)(A)(iii); see C.
Post-Hearing Br. at 54-61; C. Resp. to S. Post-Hearing Br. at 11-
14.

     [21]  At that time, section 75.316 tracked  section  303(o)
of  the  Act,  30 U.S.C.  863(o), and provided in relevant part:
"[a] ventilation  system  and  methane  and dust control plan and
revisions thereof suitable to the conditions of the mining system
of the coal mine and approved by the Secretary  shall  be adopted
by  the operator . . . ."  Similar requirements can now be  found
in 30 C.F.R.  75.370 (1999).

     [22]  We note that both of Consol's arguments in support of
its contention  that  the  judge's finding of violation should be
reversed - that Yerkovich was  told  by Strahin that approval was
not  necessary  in  this  instance  and  that  approval  had  not
previously  been  required  in  District  3  for  Consol  capping
projects - are essentially estoppel arguments.   In  general, the
Commission  does not recognize estoppel as a valid defense  to  a
citation or order.   See King Knob Coal Co., 3 FMSHRC 1417, 1421-
22 (June 1981).  While  Consol  cites  no  reason  why  we should
depart  from  that  practice  here,  we  nevertheless address its
arguments.

     [23]  Consol gives no citation to the  record in support of
its claim that Yerkovich explained at trial that  he did not have
an  opportunity  at  his  deposition  to elaborate regarding  the
conversation he had with Strahin.  See  C.  Br. at 23.  Yerkovich
did testify at trial that, in general, given  the way some of the
deposition questions were phrased, his answers  were not entirely
complete.   However,  he  did  not  indicate that this  testimony
specifically applied to the subject of what he was told regarding
the  need for approval under section 75.316,  even  when  he  was
given an opportunity to do so.  Tr. 1304-06.

     [24]   In general, the Commission will not find a violation
unwarrantable  where  it  is  shown  to  have  resulted  from the
operator's mistaken but good faith, reasonable belief that it was
in  compliance with applicable law.  See Florence Mining Co.,  11
FMSHRC 747, 753-54 (May 1989).

     [25]   At the time of the explosion, section 75.322 tracked
section 303(u)  of the Mine Act, 30 U.S.C.  863(u), and provided
that:

          Changes   in   ventilation  which  materially
          affect the main  air  current  or  any  split
          thereof  and  which  may affect the safety of
          persons in the coal mine  shall  be made only
          when  then  the  mine  is  idle.  Only  those
          persons engaged in making such  changes shall
          be  permitted in the mine during the  change.
          Power   shall   be  removed  from  the  areas
          affected by the change  before work starts to
          make  the change and shall  not  be  restored
          until the  effect  of  the  change  has  been
          ascertained and the affected areas determined
          to be safe by a certified person.

The regulation was revised and recodified in 1996 at  30 C.F.R. 
 75.324.

     [26]  To the extent that Consol's appeal can be  read  as an
attack  on the judge's determination that the ventilation changes
that occurred  while  the  dewatering  pipe  was  being installed
"materially affect[ed]" the production shaft air split, we reject
any  such  argument,  as  that  determination  is  supported   by
substantial  evidence.   The  judge correctly calculated and took
into account that a reduction in air from 7,350 cfm to 400 cfm is
a decrease of over 94%.  20 FMSHRC  at  1353.   Moreover,  as the
judge acknowledged (id.), Consol's expert Mitchell conceded  that
such   a   reduction   would  result  in  a  material  affect  on
ventilation.  Tr. 2306-09.

     [27]  We note  that  Consol  had  the opportunity to present
expert testimony that section 75.322 was not at all applicable in
this instance, but did not do so.  Its expert,  Mitchell, who was
the  assistant  chairman  of  the  Mine  Enforcement  and  Safety
Administration  committee  that  wrote  the  Part  75 regulations
following the passage of the 1969 Coal Act, testified  at  length
regarding whether the post-capping changes to the ventilation  in
the   production   shaft   "materially  affect[ed]"  the  shaft's
ventilation as section 75.322  uses that term.  However, he never
disputed that the regulation applied  to  the  shaft  intake as a
main air current or air split.  Tr. 2247-60.

     [28]  The judge's failure to resolve the issue  may  be  the
result  of  believing  that  the  Secretary was alleging that the
March 13 and 17 air changes had to  be  considered  cumulatively.
See  20  FMSHRC  at  1353.   However,  it is undisputed that  the
capping of the shaft by itself resulted  in  a material effect on
the air in the production shaft, and the citation plainly alleges
that on March 13 "Consol did not evaluate the  change  to the air
split  ventilating  the  Production  shaft itself before allowing
miners to return to work."  Gov't Ex. 4 at 1.

     [29]   We  note that much of the  reduction  in  ventilation
that occurred during  installation of the dewatering pipe was due
not to the closing of a ventilation pipe, but to the insertion of
the dewatering pipe into  the cap.  The Secretary's expert Urosek
estimated that, at certain times during the installation process,
there would have been less  than  800  cfm of air ventilating the
shaft  even  if  both ventilation pipes were  open,  because  the
dewatering  pipe,  the   plates  that  fit  around  it,  and  the
Thermoglass cloth would almost  entirely  seal  off  the  22-inch
diameter  hole  providing  most  of the ventilation to the shaft.
Tr. 2071-72; Gov't Ex. 13 at 21-23.   Consol did not dispute this
figure, which represents a decrease of  over  89% from the amount
of   air   that   was  entering  the  shaft  immediately   before
installation of the  dewatering  pipe  began.   Unlike  with  the
closing  of the ventilation pipe, there is no dispute that Consol
should have been aware of the reduction in airflow resulting from
installation  of  the  dewatering pipe, as it knew the dewatering
pipe was being installed through the cap and that the Thermoglass
cloth was being used to  prevent  sparks  from  falling  into the
shaft.  Tr. 699-700 (testimony of Ammons).

     [30]    While   no  miners  were  near  the  bottom  of  the
production shaft  when the explosion occurred, the equipment that
remained at or near that area was severely damaged.  Tr. 2056-57,
2115-16.  It was stipulated  that  "[o]vercast, cribs, stoppings,
and the rotary dump in the underground areas [of the mine] within
100 feet of the shaft were . . . damaged  by  the  force  of  the
explosion."   Jt.  Ex. 1 at 3 (Jt. Stip. 14); see also Gov't Exs.
20-21   (post-explosion    underground    maps).    Consol   also
acknowledged  that  it knew that a fire in the  production  shaft
caused by the welding  above  it  would  put  the miners who were
underground at risk.  Tr. 1648 (testimony of Charles Bane).

     [31]  Below,  Consol claimed that the PPM was dispositive on
the issue of whether, under section 75.322, a ventilation  change
of  less than 9,000 could be considered to "materially affect"  a
main  air  current  or  air split.  C. Post-Hearing Br. at 48-51.
The PPM, however, while it  can provide guidance on an issue, has
been found by the Commission to lack legal effect and thus cannot
be used against the Secretary  as  grounds  to estop a finding of
violation.  See King Knob, 3 FMSHRC at 1419-22.