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DAGS BRANCH COAL CO., INC.
November 29, 1999
KENT 99-134


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041


                        November 29, 1999

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :  Docket No. KENT 99-134
               Petitioner       :  A. C. No. 15-17979-03510
          v.                    :
                                :  No. 6 Mine
DAGS BRANCH COAL CO., INC.      :
               Respondent       :

                             DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor,
             U.S. Department of Labor, Nashville, Tennessee,
             for Petitioner;
             Billy R. Shelton, Esq., Baird, Baird, Baird &
             Jones,  P.S.C.,  Lexington,  Kentucky,  for 
             Respondent.

Before: Judge Hodgdon

     This case is before me on a Petition for Assessment of 
Civil Penalty filed by the Secretary of Labor, acting through
her  Mine Safety and Health Administration (MSHA), against 
Dags Branch Coal Company, Inc., pursuant to section 105 of 
the Federal Mine Safety and  Health  Act  of 1977, 30 U.S.C. 
 815.  The  petition  alleges  three  violations of  the  
Secretary's mandatory health and safety standards and seeks 
a penalty  of  $6,173.00.  A hearing was held in  Pikesville, 
Kentucky.  For the reasons  set  forth  below,  I affirm the 
citations and order and assess a penalty of $6,173.00.

     During  the trial, counsel for the Respondent announced 
that the company was  withdrawing its contest of Citation No. 
9982163, involving respirable  dust  samples, and  would pay  
the  civil penalty  sought  by  MSHA.   (Tr.  129.)  As the 
Secretary had no objection  to  that  disposition, it was  
accepted.   (Id.)   The penalty will be assessed at the end 
of this decision.

                            Background

     The  No. 6 mine is  an  underground  coal  mine,  owned  
and operated by Dags Branch Coal Co. in Pike County, Kentucky. 
On September 23, 1998, MSHA Ventilation  Specialist and Coal 
Mine Inspector  Thomas  M.  Charles  was sent to the mine to 
conduct a health and safety inspection, including reviewing  
the mine's bleeder system.[1]

     Inspection of the  bleeder system was included because
"second  mining"  or "pillaring" was being performed in the 
mine. "Second mining" or  "pillaring" occurs when miners 
retreat out of a  section of the mine  in  which  advanced  
mining  has  ceased, removing the remaining pillars as they 
go.  As a result, the roof of the  mine  collapses  as  the 
pillars are removed and the area becomes known as "gob" area. 
The bleeder system is designed to sweep the gob area with air 
and prevent accumulations of methane or other noxious gases.

     On arriving at the mine, Charles was informed by James
Miller, the section foreman,  that the bleeder system was 
blocked  with  water.  Charles  and  Miller  then  went  
underground  to  the working section where the section crew 
was removing its equipment from the pillar line after having 
finished mining a pillar.  At this time, Charles  checked  
the seven entries on the section for airflow.  He concluded 
that air was flowing from the gob onto the active section 
from entries one, two and three.

     As a consequence of this  test, Charles issued Citation 
No. 4515035, alleging a violation of section 75.334 of the
Secretary's  health  and safety standards, 30 C.F.R. 
 75.334,[2] because:

               Air from  pillared works is passing onto
          the  active 001-0  MMU.[3]   Pillar  recovery
          work is  being  conducted  on  the  001-0 MMU
          without  an  operative bleeder system.   This
          allows air which  has  passed through the gob
          area to travel back onto  the  active working
          section.  The top end of the gob  area of the
          001-0  MMU  is  cut-through  into an adjacent
          panel to provide ventilation of the gob area,
          and to allow air to flow away from the active
          workings.   There  is  an  E.P.[4]   at  that
          location.   According  to statements made  by
          the foreman and crew, this  E.P.  and top end
          of  the  adjacent  panel  were  found  to  be
          blocked by water last night on the 2nd shift.
          Mining operations were performed today.   Air
          was  found passing from the gob back onto the
          section  via  entries  number  one,  two  and
          three.

(Govt. Ex. 2.)

     Inspector Charles traveled up the adjacent panel to the 
area of  the evaluation point, where he encountered water.   
Based  on his inspection  in  this area, he issued Order No. 
4515036, for a violation of section  75.370(a)(1), 30 C.F.R. 
 75.270(a)(1).[5] The order states:

               The  approved  ventilation   plan  which
          shows a description of the bleeder  system to
          be  used  at  this  mine  and  requires  that
          bleeder   entries  be  maintained  free  from
          obstructions  such  as roof falls or water []
          is  not  being complied  with  in  the  001-0
          active bleeder  panel.   Water  accumulation,
          roofed, has blocked air flow from the top end
          of the panel.  Travel to the evaluation point
          is blocked by water in the number  one  mains
          at   survey   station   #146.   According  to
          statements made by James  Miller [,] Foreman.
          [Sic.]   This  was  found  by the  2nd  shift
          foreman last night.  Coal was produced on the
          001-0 pillaring section today.

(Govt. Ex. 4.)

             Findings of Fact and Conclusions of Law

     In  its  brief,  the company concedes  that  both  of  
these violations occurred and that they  were  "significant  
and substantial."[6]  The Respondent argues, however, that 
neither of the  violations  was  "unwarrantable."  Based on  
the  operator's concession, and the evidence presented at 
the hearing, I conclude that Dags Branch violated sections 
75.334(b)(1) and 75.370(a)(1), as  alleged,  and  that  the 
violations  were  "significant  and substantial."  Contrary  
to  the  company's  position,     also conclude that the 
violations were the result of its unwarrantable failure to 
comply with the regulations.

                      Unwarrantable Failure

     The  Commission  has  held  that unwarrantable failure 
is aggravated  conduct constituting more than ordinary 
negligence by a mine operator  in  relation  to  a violation 
of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 
1987); Youghiogheny & Ohio  Coal Co., 9  FMSHRC  2007, 2010 
(December 1987). "Unwarrantable  failure  is  characterized  
by  such  conduct  as `reckless disregard,' `intentional 
misconduct,' `indifference' or a  `serious  lack  of  
reasonable   care.'  [Emery]  at  2003-04; Rochester & 
Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February 1991)." 
Wyoming Fuel Co., 16 FMSHRC  1618,  1627  (August 1994); see 
also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133,  136  (7th
Cir. 1995) (approving Commission's unwarrantable failure test).

     The  Commission  has  established  several  factors as 
being determinative of whether a violation is unwarrantable:

          [T]he  extent  of  a violative condition, the
          length of time 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, and  the operator's
          efforts  in abating the violative  condition.
          Mullins &  Sons  Coal Co., 16 FMSHRC 192, 195
          (Feb.  1994); Peabody  Coal  Co.,  14  FMSHRC
          1258, 1261 (Aug. 1992); Quinland Coals, Inc.,
          10 FMSHRC  705,  709 (June 1988); Kitt Energy
          Corp.,  6  FMSHRC  1596,  1603  (July  1984);
          BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-
          44 (Aug. 1992); Warren  Steen  Constr., Inc.,
          14  FMSHRC  1125,  1129  (July  1992).    The
          Commission  has  also examined the operator's
          knowledge of the existence  of  the dangerous
          condition.    E.g.,  Cyprus  Plateau   Mining
          Corp.,  16  FMSHRC  1604,  1608  (Aug.  1994)
          (affirming       unwarrantable        failure
          determination  where  operator aware of brake
          malfunction failed to remedy problem); Warren
          Steen,  14  FMSHRC at 1126-27  (knowledge  of
          hazard   and   failure   to   take   adequate
          precautionary measures  support unwarrantable
          determination).

Cyprus Emerald Resources Corp., 20 FMSHRC 790, 813 (August 
1998). In  this  case,  the operator knew of the violations 
and deliberately  chose  to  mine  coal rather than attend  
to the violations.

     The inspector testified that he found these violations 
to be unwarrantable because the  mine's  management was 
aware of the conditions and elected to mine coal before 
correcting them. He related  that  the  foreman, Miller, 
"indicated to me that he was aware that the gob air had been 
passing back onto the section due to the bleeder system  
being blocked  and  that  they  had  been instructed  to go  
ahead  and  mine  the  blocks." (Tr.  32.) Inspector Charles 
further  described  a conversation that he had with Linton 
Griffith, a fifty percent owner  of  the  mine, about the  
conditions in  the mine; i.e. the water in the gob and his
knowledge of that water in the section that was mining coal. 
He said that Griffith " told  me that the mine had been down 
for two or three shifts on a stacker  belt thrower, that 
they had to mine coal and that they needed to get those
blocks mined so that they could move the section."  
(Tr. 33.)

     The  Respondent argues that the  violations  were not
unwarrantable  because, with respect to Citation No. 4515035, 
the inspector was not  present  in the mine while mining was 
actually being  performed. The operator  maintains that air 
was  moving through the gob area to the return air course at 
that time. Concerning Citation No. 4515036, it  is  the  
company's  position that  because  there  is  no  evidence 
that the water in the mine actually reached the roof, a 
finding of unwarrantable failure is not appropriate. Neither 
contention is persuasive.

     Inspector Charles testified that there was a large stream 
of coal coming off of the belt when he arrived  at the mine 
and that coal was being mined as he was going to the working 
section, but that mining had ceased  by the time he arrived 
at the section. Thus, mining had only been stopped for a short 
time when he found air coming out of the gob onto  the  area 
where work had recently been ongoing. It was his opinion that 
the air would have had to have  been  flowing the same way 
while coal was  being  mined "[b]ecause of the way the 
ventilation controls were installed and in order for them to 
maintain airflow  for  the  mine,  period."  (Tr. 121.)

     To  counter  this  evidence,  the  Respondent  relies 
on the equivocal  assertion of Miller that he was taking 
continuous  air readings "in  the area" while the pillars 
were being mined and no return air was  coming  out of the  
gob onto the section. (Tr. 140.) To explain the inspector's 
findings,  which neither he nor anyone  else  disputes, 
Miller  speculated  that  damage  to  a ventilation curtain 
could  have occurred when the equipment was being moved out 
of the section.

     There  is  less to these professions  than  meets  the  
eye. Miller did not testify that he took readings in the 
three entries where the air was  flowing  from  the gob to 
the section.  No one testified that moving the equipment  
did,  n fact, damage any ventilation controls. Furthermore,
since the equipment was being pulled  out  of  the  section, 
no one explained how it could have damaged a curtain located  
in  the  opposite direction from which the  equipment  was 
being moved; how curtains  in  three  entries could have 
been damaged at the same time, all in the time between the 
cessation of mining and Charles' arrival; or, if the curtains
were not damaged  at  the same time, how no mining occurred 
while any one of them was damaged.

     Turning to the order, there is no direct evidence as 
to whether  the water in the mine reached the roof or not.   
Neither the inspector  nor  Miller  traveled through the 
water to observe its level.  Inspector Charles  testified 
that the water must have reached the roof because he could  
not detect any movement of air in any of the seven entries 
of  No.  1 mains where the toe of the water was encountered. 
Miller agreed that Charles did not detect any air movement
in most of the entries,  but stated that Charles did detect 
movement in the No. 1 entry.

     The inspector also testified that the  company  had  
removed parts  of stoppings in two areas of the No. 1 mains 
which changed the air  flow  in the mine in violation of the 
mine's ventilation control plan.  Miller  did  not  dispute 
this but claimed that he thought the removal of the stoppings 
was permitted.

     I find the inspector's testimony  to  be credible on 
these issues.   While  I  find that circumstantial evidence 
supports  a finding that the water  was in contact with the 
roof someplace in the  mine,  such a finding  is  not  
necessary  in  view  of  the uncontroverted  evidence  that  
the  bleeder entries had not been maintained  free of water 
for at least  24  hours  after  it  was discovered, that  
travel  to  the evaluation point was blocked by water, and 
that the stoppings had  been partially removed, all of which 
violated the ventilation plan.

     In accepting the testimony of Inspector Charles over 
that of Miller  and  Griffith, I find it very  significant  
that  neither Miller, on whom both the order and citation 
were served, nor Griffith protested to the inspector, or 
apparently to anyone from MSHA,  that  air was not flowing 
from the gob  onto  the  working section while  coal  was 
being  mined, that moving the equipment must have damaged 
the ventilation  curtains or that the water did not block 
any air flow.  Miller said  he  did  not  say  anything
because  he  lets  the  owners take care of violations.  
Griffith testified that he was  concerned  about  the  
characterization of the violations as unwarrantable, but 
did not explain  why  he did not present any factual 
defense.

     Furthermore,  I  find  it determinative that neither 
Miller, nor Griffith, nor the company  in its brief, denied 
that they had decided to finish mining the pillars  before  
taking  care of the problems caused by the water.  Griffith, 
when specifically  asked whether  he  had  ordered  the 
completion of mining before taking care of the water, stated: 
"I'm  saying I have never told in my lifetime a mine foreman 
to do something that would endanger men." (Tr. 192.)  When 
read carefully, it  is apparent that this is not a denial 
that he ordered the mining to be completed.

     I find that the operator intentionally chose to finish 
the pillaring of the section before taking care of the water 
problem, which  it  had  been  aware  of since the second 
shift the  night before. Accordingly, I conclude that both  
of these violations were the result of the company's 
unwarrantable  failure to comply with  the  regulations.   
See, e.g., Lion Mining Co.,  19  FMSHRC  1774, 1778 (November 
1997); Jim Walter Resources, Inc., 19 FMSHRC 1761, 1770 (
November 1997);  Midwest  Material Co., 19 FMSHRC 30, 35 
(January 1997).

                     Civil Penalty Assessment

     The Secretary has proposed penalties of $3,000.00 each 
for Order  No.  4515036  and  Citation  No.  4515035 and 
$173.00  for Citation  No.  9982163.  However, it is the  
judge's  independent responsibility to  determine the 
appropriate amount of penalty in accordance with the  six  
penalty  criteria  set  out  in section 110(i) of the Act, 
30 U.S.C.  820(i).  Sellersburg Stone  Co. v. FMSHRC,  736  
F.2d  1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 
18 FMSHRC 481, 483-84 (April 1996).

     In connection with the penalty criteria, the parties 
have stipulated  that  Dags Branch is a small-to-medium-size 
operator and that the civil  penalties  in this proceeding 
will not affect the operator's ability to continue  in  
business.  (Govt. Ex. 1.) The evidence also indicates that 
for the two years prior to these violations, the company had 
received 180 citations. (Govt. Ex. 10.)  From this I conclude 
that the operator's violation  history is  average. I further 
conclude that the Respondent demonstrated good  faith  in  
attempting  to  achieve  rapid  compliance after notification 
of  the violations.  Finally, I conclude  that  the gravity 
of these violations  was  fairly  serious  and  that  the
company's  negligence  with  respect  to Order No. 4515036 
and Citation  No.  4515035 was high and with respect to 
Citation  No. 9982163 it was moderate.

     Taking all  of  this into consideration, I conclude that 
the penalties  proposed by  the Secretary  are  appropriate.
Accordingly, I will assess penalties  of  $3,000.00 for Order 
No. 4515036, $3,000.00 for Citation No. 4515035, and $173.00 
for Citation No. 9982163.

                              Order

     Order No. 4515036  and Citation Nos. 4515035 and 9982163 
are AFFIRMED.  Dags Branch Coal  Company,  Inc.,  is ORDERED 
TO PAY a civil  penalty of $6,173.00 within 30 days of the  
date  of  this  decision.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

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

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 
841 Corporate Drive, Suite 101, Lexington, KY 40503 (
Certified Mail)

/nj


**FOOTNOTES**

     [1] "A bleeder system is an airway  that's  provided  
to be maintained  open  so that you can have airflow within 
it to sweep the  area to keep it  free  from  accumulations  
of  methane  and blackdamp, anything that could accumulate 
in it."  (Tr. 21.)

     [2]  Inspector  Charles testified that the specific 
part of section 75.334 that he  found  Dags  Branch  to have 
violated was section 75.334(b)(1), 30 C.F.R.  75.334(b)(1). 
(Tr. 20.) That section requires that: "During pillar recovery 
a bleeder  system shall be used to control the air passing 
through the area and  to continuously  dilute  and  move  
methane-air  mixtures  and other gases, dusts, and fumes 
from the worked-out area away from active workings and into 
a return air course or to the surface of the mine."

     [3] Mechanized Mining Unit.

     [4]: Evaluation Point.

     [5] Section 75.370(a)(1) requires, in pertinent part, 
that: "The operator shall develop and follo  a ventilation 
plan approved by the district  manager.  The Plan shall be 
designed to control methane and respirable  dust and shall 
be suitable to the conditions and mining system at the mine."

     [6]:  A  "significant and substantial" (S&S) violation 
is described in Section 104(d)(1) of the Act as a violation 
"of such nature as could significantly and substantially 
contribute to the cause and effect  of  a  coal  or  other  
mine  safety  or health hazard."  A violation is properly 
designated S&S "if, based  upon the  particular facts 
surrounding that violation, there exists  a reasonable  l
ikelihood that the hazard contributed to will result in an 
injury  or illness of a reasonably serious nature."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).