.
ORIGINAL SIXTEEN TO ONE MINE INCORPORATED
October 19, 2001
WEST 2000-63-M
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                        October 19, 2001
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. WEST 2000-63-M
               Petitioner       : A.C. No. 04-01299-05536
          v.                    :
                                : Docket No. WEST 2000-78-M
ORIGINAL SIXTEEN TO ONE MINE    : A.C. No. 04-01299-05537
  INCORPORATED,                 :
                                : Docket No. WEST 2000-195-M
               Respondent       : A.C. No. 04-01299-05538
                                :
                                : Original Sixteen to One
                             DECISION
Appearances: Christopher B. Wilkinson, Esq., Office of the
             Solicitor, U.S. Department of Labor, San
             Francisco, California, on behalf of Petitioner;
             Michael M. Miller, President and Chief Operating
             Officer, Original Sixteen to One Mine, Inc.,
             Alleghany, California, on behalf of Respondent.
Before: Judge Zielinski
     These cases are  before  me  on  Petitions for Assessment of
Civil Penalty filed by the Secretary of  Labor  against  Original
Sixteen to One Mine, Inc., pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977 (the "Act").  30 U.S.C.  815.
The petitions allege a total of 26 violations of mandatory safety
and health standards, as well as other regulatory provisions  and
the Act itself.  A hearing was held in Downieville, California on
January  17 and 18, 2001 and was continued and concluded on April
3, 2001, in  Nevada  City,  California.  Following receipt of the
transcript, the parties submitted  briefs.  The Secretary filed a
motion  to strike portions of Respondent's  brief,  to  which  an
opposition  was  filed  on  September  24,  2001.  That motion is
denied.  At the commencement of the hearing, the parties  advised
that  the  Secretary had elected to vacate eight of the citations
and that Respondent had withdrawn its contest of seven citations.
During the hearing,  Respondent  withdrew  its  contest as to one
additional citation.  Consequently, ten citations were litigated,
for  which  the  Secretary  proposes  total  civil  penalties  of
$3,797.00.
     For  the  reasons  set  forth  below, I vacate one citation,
affirm  nine  citations  and  impose  civil   penalties  totaling
$1,030.00.
Background
     The Original Sixteen to One Mine has been  in  operation for
over  100  years  and  is  one  of  the  oldest  and  most unique
underground   mining  operations  in  the  country.   The  mining
operation generally  follows veins of ore, which in the Alleghany
district have a moderate  dip  of  30  to  35  degrees.  The rock
formations in the area are relatively stable and  there  is  very
little  timber  used  in  the  mine  to support roofs or walls of
stopes.  Because the moderate dip is generally below the angle of
repose of the muck, most of that broken  rock does not have to be
removed from the mine.  In areas where slopes are greater than 35
degrees ladders have been installed, generally constructed from 2
inch by 4 inch lumber, though some metal ladders are also in use.
The wood used for the ladders, like virtually  all  wood  used in
the mine, deteriorates over time and there is considerable  water
present which facilitates that process. There are many places  in
the  mine  that  old timbers have rotted away, but no ground fall
has  resulted  because   of  the  stability  of  the  surrounding
material.  The gold produced  by the mine is of such a high grade
that it is generally "hand sorted,"  i.e., the miners simply pick
up nuggets of gold and place them into a sack on their belts.
     By the time of the events here at  issue,  the mine had been
affected by adverse economics in the gold mining industry and had
scaled back its operations.  On February 12, 1999,  all 40 miners
then working were laid off.  A group of 14 of them, however, went
back  to  work  ostensibly as independent contractors, using  the
mine's equipment,  but generally supplying their own tools.  They
determined where and  how to mine and split the proceeds of their
efforts with the mine.   By  the  summer  of  1999,  the group of
miners  had  dwindled to 6-7.  That arrangement ended in  October
1999, when some miners were re-hired by Original Sixteen to One.
     The relationship  between  the  Secretary's  Mine Safety and
Health  Administration  (MSHA) and Respondent, primarily  through
its  President,  Michael  M.   Miller,   has  grown  increasingly
antagonistic over recent years.  Respondent  cites  the fact that
from  1985  to 1997, when its operations were some ten  times  as
large, a total  of  83  citations  had  been  issued at the mine.
Conversely,  in  the 1997-99 time frame, some 85  citations  have
been issued.  It has  accused  MSHA  of  conducting a "search and
destroy"  mission  in  an  attempt to overwhelm  it.   Respondent
issued  subpoenas  to  the  former   Assistant  Director  of  the
Department of Labor and two other officials  to  testify  at  the
hearing.   Respondent  hoped  to  illicit testimony regarding the
meaning of regulatory provisions and  enforcement  policies  that
would   explain   what  it  viewed  as  excessive  and  arbitrary
government enforcement  action.   It  also attempted to call as a
witness the member of the Secretary's Office of the Solicitor who
prosecuted the cases.  The subject subpoenas  were quashed, after
a  telephonic  hearing,  on  qualified  immunity,  privilege  and
relevance grounds, with the caveat that if Respondent was able to
proffer  admissible  evidence  essential to its defense  that  it
expected to obtain from a particular witness, the ruling would be
reconsidered.  No such proffer was  made.  Other areas of concern
were explored by Respondent at the hearing, e.g., the experience,
training  and other qualifications of  the  MSHA  inspectors  and
whether they  were  motivated  to  write  additional citations to
secure advancement.[1]
     The citations and orders at issue in these  cases  arose out
of  inspections  conducted  by  two  inspectors employed by MSHA,
Curtis  Petty  and  Bruce  Allard.   One  of   Respondent's  main
challenges  to the alleged violations is that they,  and  related
gravity assessments,  are  based  largely on subjective judgments
made by inspectors who lack relevant  experience  and training to
make   such   judgments,  especially  in  the  unique  conditions
presented by Respondent's  mine.   Both  Petty  and  Allard  were
relatively  new  inspectors  but both had fairly extensive mining
experience.
     Petty was certified as an "authorized representative" of the
Secretary, an MSHA inspector,  around  August  of 1998.  Like all
inspectors, he underwent extensive training at the  National Mine
Health  & Safety Academy, graduating in December of 1998.[2]   He
also attended three week training courses in special and accident
investigation.    He   accompanied   experienced   inspectors  on
inspections and, by the time he testified, had conducted  several
investigations  of  mine accidents, including accidents that  had
occurred at underground  gold  mines.  He serves as one of twelve
MSHA members of the National Mine  Rescue  Team, attends training
with the team and assists in training mine operators.   Prior  to
becoming  an  inspector,  Petty  worked  for  eight  years at the
Pegasus Gold Mine in Montana, serving as safety director  for two
years.  He also worked in a mine in Peru for three years.
     Allard  also  was trained at and graduated from the Academy.
He became an MSHA inspector  in  July of 1999, one month prior to
his inspection of Respondent's mine,  his  first inspection of an
underground mine as a certified MSHA inspector.   He  worked  for
twenty  two  years  at  an  underground gold mine in South Dakota
operated by Homestake Mining  Co.,  including,  seven  years as a
hard  rock miner and two years as a safety inspector.  He  served
on  Homestake's   mine  rescue  team  for  seventeen  years,  and
underwent yearly training for that position.
Independent Contractors
     One of Respondent's  defenses  is that it should not be held
responsible for violations that occurred  while mining operations
were   being   conducted  by  the  small  group  of   independent
contractors.  There  is  some  question about the exact status of
the "independent contractors."   Respondent  apparently continued
to  have  men  on-site  and  also  continued to supply  workmen's
compensation coverage for the independent  contractors.   None of
the    independent    contractors    obtained    permanent   MSHA
identification numbers, as permitted under 30 C.F.R. Part 45, and
there  is  no  evidence  that  other provisions of Part  45  were
formally  complied with.  In any  event,  it  is  clear  that  an
operator can  be  held "strictly liable for all violations of the
Act that occur on the  mine site, whether committed by one of its
employees or an employee  of one of its contractors.  Mingo Logan
Coal Co., 19 FMSHRC 246, 249 (Feb. 1997) and cases cited therein.
Respondent's independent contractor defense must be rejected.
             Findings of Fact and Conclusions of Law
Citation No. 7969922
     Citation No. 7969922 was  issued by Inspector Petty on April
1, 1999, after inspecting the secondary  escapeway.   He observed
several  conditions that he concluded constituted a violation  of
30 C.F.R.    57.11051(a),  which  requires that escape routes be
inspected  at  regular  intervals  "and   maintained   in   safe,
travelable condition."  The conditions he observed were noted  on
the citation as:
     The secondary escapeway was not maintained as required.
     The fourth ladder from the 800 level had only one rail.
     The  next  ladder  did  not  project  3  feet above the
     landing.   Air/water  pipes travel along the  escapeway
     restricting access, requiring  a person to either belly
     crawl under them or climb over them.   The first ladder
     at the 2100 sub-level was not secured properly  (loose)
     and  the  last  ladder  below  the  2100  level was not
     secured properly as well.  The third ladder  above  the
     2200 level has a broken rail and the last ladder has  a
     broken   rung.    Several  ladders  were  not  properly
     equipped  with  landings.   In  the  event  of  a  mine
     emergency requiring  usage  of  the secondary escapeway
     miners  could be endangered trying  to  travel  through
     this section.  If the escapeway was used to evacuate an
     injured miner,  it  is  reasonably likely that at least
     one ladder would not support the weight of rescuers and
     victim. * * *
     Petty inspected the mine  with Mark Loving, a representative
of Respondent, and Jerry Hulsey,  a  fellow  inspector  who was a
large  man,  described  as 6 feet 2 inches tall and weighing  285
pounds.  The ladder with  the  broken  rail actually cracked when
Hulsey was on it, which led to Petty's conclusion  that  at least
one ladder wouldn't bear the weight of a mine rescue team  trying
to  evacuate  an injured miner.  Problems with unsecured ladders,
such as one of  those  noted  in  the  citation which was loosely
secured with one wrap of bailing wire, and defects such as broken
rungs, pose a higher risk of injury during an emergency.
     Petty concluded that the violation  was reasonably likely to
result  in  an injury expected to result in  lost  work  days  or
restricted  duty,  that  the  violation  was  S&S  and  that  the
operator's negligence  was  high,  amounting  to an unwarrantable
failure to comply with a mandatory standard.  He  terminated  the
citation  on  May  11,  1999, because the mine was not conducting
operations below the 800  level.  He specified on the termination
document that: "If and when  the  mine  proceeds to operate below
the 800 foot level, the secondary escapeway  shall  be  renovated
and made compliant as per the original citation.  Failure  to  do
so  shall  be  recognized  as  aggravated conduct and appropriate
action shall follow."
     Petty based his determinations  on  his  training, both as a
miner and an inspector for MSHA, and his practical  experience as
a  miner  and  a  member  of the national mine rescue team.   His
concerns about potential injuries  were based upon his assessment
that miners who are forced to use a  secondary  escapeway because
of an emergency, e.g., a fire or ground fall, do  so in a hurried
manner  and  do not exercise the care of miners making  a  normal
exit of a mine.   The presence of smoke or dust can significantly
impair a miner's ability  to  follow  a  prescribed  route, avoid
obstacles  and  use  devices  such as ladders. He was aware  that
there  were  several  potential sources  of  fire  in  the  mine,
including electrical substations  at  different levels and a pump
powered  by  electricity  at  the  2200 level.  In  addition,  he
considered  difficulties  that might be  encountered  by  a  mine
rescue team wearing self-contained breathing apparatus attempting
to enter the mine or transport  an  injured miner strapped into a
"Stokes"  stretcher  through  the secondary  escapeway.   He  had
traveled the secondary escapeway in 1998 and had pointed out many
of the same shortcomings at that time to Respondent's then safety
director and the mine manager,  neither  of whom were employed by
Respondent at the time of this inspection.
     Respondent's  chief  challenge to Petty's  observations  and
conclusions are to his qualifications  and experience and lack of
familiarity with Respondent's mine and similar mines in the area.
Respondent argues, e.g., that evaluating  the  sufficiency of the
escapeway  in  the hypothetical situation of a mine  rescue  team
using self-contained  breathing  apparatus is unrealistic because
there has never been such a rescue  required in the mines in that
district.   It also challenges the scenario  of  fire  and  smoke
presence, because  there  are  very few potential fire sources in
the mine and argues that the miners are all experienced and well-
trained and would not likely panic  in the event that they had to
use the secondary escapeway.  Respondent also contends that Petty
wrongly  applied  standards  for travelways  to  this  escapeway.
Based upon examinations of the  escapeway made in preparation for
the  hearing  in  this case, Respondent  also  asserts  that  its
ladderways and landings  met all applicable requirements and that
all  areas  of  the  escapeway  meet  the  minimum  opening  size
requirement of 24 inches  by  24  inches  and that any difficulty
that Hulsey had with tight quarters was due  to  his  size, not a
deficiency in the escapeway.
     Respondent's objections to Petty's qualifications are easily
dispensed  with.   Petty  was  an experienced miner, having  been
involved  in  safety  issues  for much  of  that  time.   He  was
extensively trained prior to becoming  an  MSHA  inspector and is
highly  qualified  in mine rescue techniques.  It is  clear  that
Petty was easily qualified  to  make judgments and determinations
on  the  existence  of  violations and  issues  of  gravity.  The
Secretary argues that an  experienced inspector's "interpretation
of the [regulatory] term `safe  [and]  travelable' is entitled to
deference," citing Martin v. OSHRC, 499  U.S.  144, 148-49 (1991)
and  Energy  West  Mining  Co.,  v.  FMSHRC, 40 F.3d 457,  460-61
(D.D.Cir.  1994).   The cases relied upon,  however,  address  an
entirely different issue,  i.e., the deference to be afforded the
Secretary's interpretation of  an ambiguous regulatory provision.
No such issues are presented here.   The Commission has held that
the  judgment  of  an  inspector  is  an "important  element"  in
determining whether a violation is significant  and  substantial.
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec.  1998);
Mathies  Coal  Co., 6 FMSHRC 1, 5 (Jan. 1984); Cement Div., Nat'l
Gypsum Co., 3 FMSHRC  822-825-26  (Apr.  1981);  Buck Creek Coal,
Inc.  v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1999).   Both  Petty
and Allard  had  limited  experience as inspectors at the time of
the   inspections  here  at  issue.    However,   they   received
considerable  training  and  had  substantial  experience  in the
mining  industry.   Their  conclusions  are  entitled  to  weight
appropriate to their experience and qualifications.
     I also reject Respondent's argument that, because the miners
were  highly  experienced,  the  "panic  factor"  should  not  be
considered  in evaluating whether the escapeway was maintained in
a safe and travelable  condition.   The secondary escapeway would
be used as such only in the event of an emergency when the normal
travelway was inaccessible.  There would  certainly be an element
of urgency for miners using it and when evaluating  the condition
of the escapeway,  it would be unrealistic to fail to take into
consideration that miners  may be hurrying, possibly with limited
vision because of smoke.
     Respondent's other arguments have more merit.  Petty did not
take measurements  at  critical  points to determine the slope of
ladders or stopes or of the size of  openings  where he concluded
that passage was restricted.  It appears that his  concerns about
restricted  passage  were largely related to Hulsey's  difficulty
because of his size and  considerations  of  difficulties  that a
rescue  team  might  encounter  while  carrying  a  stretcher and
wearing self-contained breathing apparatus.  Petty believed  that
the  minimum  opening  for  an  escapeway  was  24  inches  by 24
inches[3]   While  an  opening that size would appear adequate to
allow expeditious passage  by a miner under normal conditions, it
would pose a considerable restriction  for  a  large  man  and it
would  not be surprising that a miner or rescue team member would
have to remove a self-contained breathing apparatus from his back
to pass through such an opening.
     Miller  had  not  traveled the secondary escapeway in almost
ten years.  On January 15,  2001, in preparation for the hearing,
he traveled a portion of it with two individuals, Jason Burke and
Ray Witkopp, who took measurements  of slopes and openings in the
escapeway.   Burke,  a  graduate  engineer   in  the  process  of
obtaining  his State of California license as a  civil  engineer,
had worked at  Respondent's mine as a mine engineer doing mapping
and surveying from  October  1996  to  June of 1998.  Witkopp, an
expert  in  the  field  of geology, has worked  extensively  with
Miller in identifying areas  of  the  mine  that  are  likely  to
contain  gold  such  that  mining efforts can be more effectively
directed.  They traveled the escapeway from the 1700 level to the
surface  and  used  a Brunton compass,  tape  measure  and  laser
pointer to take measurements.  They determined that the slopes of
the stopes and other portions of the escapeway ranged from nearly
horizontal to a maximum  of  60 degrees.  In every location where
the  slope was greater than 35  degrees  ladders  were  provided.
They  had  no  difficulty  negotiating  pipes  that  crossed  the
ladderways  and  similarly,  found  no  areas  with significantly
restricted  openings.   However, it is apparent that  some  pipes
present during Petty's inspection  had  been moved because Allard
visited the mine in October to, among other things, observe pipes
that had been moved.
     I  credit the testimony of Burke, Witkopp  and  Miller,  and
find that  the  measurements  that  they  took  as to slopes were
accurate.  Those aspects of the escapeway would not  change, even
over a period of many years.  At least from the 1700 level to the
surface,  ladders  were  provided  on all slopes greater than  35
degrees  and  there  were  no  slopes greater  than  60  degrees.
Witkopp and Burke did not travel  to  portions  of  the escapeway
below the 1700 level and take similar measurements.   The  reason
that  their  travel  was  limited  was not explained, although it
could have been because those areas were intended to be inactive.
     Respondent's  contention  that  Petty   improperly   applied
standards  applicable  to  travelways  to the secondary escapeway
also  carries  some  force.  The regulations  contain  relatively
specific provisions applicable to underground travelways.[4] See,
30  C.F.R.  57.11001-57.11041.  Among  them  are  30  C.F.R.  
57.11006,  which  requires  that  ladders  project  3  feet above
landings  or  that  substantial  handholds  be  provided,  and  
57.11041, which requires that landings be provided every 30  feet
for  ladders  inclined  more than 70 degrees.  Similar provisions
are  not found in the regulations  governing  escapeways.   While
Petty  did  not  issue citations for specific conditions that may
have been violations  had  they  occurred  in a travelway, he did
reference   the   more   restrictive  travelway  regulations   in
describing conditions that  he determined made the escapeway less
safe.[5]
     Respondent contends, in  essence,  that  references  to such
conditions  improperly  graft  regulations  governing  much  more
frequently   used  travelway  into  those  governing  escapeways.
Accepting Respondent's argument, however, would lead to an absurd
result, i.e.,  that  the  existence  of  a regulation governing a
specific condition applicable to one area  of a mine precludes an
inspector from considering similar conditions  in  enforcing more
general regulations applicable to another area.  I hold that even
though  a  specific  condition  in  the escapeway did not  itself
violate a standard, e.g., the failure  of  a  ladder to project 3
feet  above  a  landing in the absence of substantial  handholds,
such  a  condition  could  properly  be  taken  into  account  in
evaluating   whether  the  overall  condition  of  the  secondary
escapeway was  safe and travelable. Petty did not cite Respondent
for violating a regulation applicable to travelways and it likely
would have been  improper  for  him  to  have done so.  As noted,
infra, Allard did cite such specific conditions  in the escapeway
as  violative  of  travelway regulations.  The Secretary  vacated
those citations.
     I am troubled by  one  of Petty's conclusions, however.  His
determination that "several ladders  were  not  properly equipped
with landings" is problematic, because at least some of the areas
referred  to were at or above the 1700 level, where  the  maximum
slope was no  more  than  60  degrees.   Those  ladders  were not
inclined  at  or more than 70 degrees, so that landings every  30
feet would not  have  been  required even for a travelway.  Petty
was  using  the travelway regulation,  at  least  for  reference.
However, he did  not take measurements of slopes or openings, and
was likely in error in estimating the slope of the ladders, which
is understandable  in that environment.  Allard apparently made a
similar error during  his  later  inspection.   While  additional
landings  may  enhance  safe travel in the escapeway, I will  not
consider the absence of such  landings in determining whether the
conditions  violated  the  standard   and,  if  so,  whether  the
violation  was  significant  and substantial  or  the  result  of
Respondent's unwarrantable failure.[6]
     In an enforcement proceeding  under  the  Act, the Secretary
has the burden of proving an alleged violation by a preponderance
of  the  evidence.   In  re: Contests of Respirable  Dust  Sample
Alteration Citations, 17 FMSHRC  1819,  1838 (Nov. 1995), aff'd.,
Secretary of Labor v. Keystone Coal Mining  Corp.,  151 F.3d 1096
(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July
1993); Garden Creek Pocahontas Co., 11 FMSHRC  2148,  2152  (Nov.
1989);  Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).
     The conditions observed by Petty,  many  of  which  are  not
rebutted  by  competent evidence,[7] establish a violation of the
standard.  I find  that there were improperly secured ladders and
ladders with a broken  and  a  missing rail and a broken rung.  I
further find that air and water  lines in one location did create
restrictions  that would impede expeditious  travel  through  the
escapeway and that  handholds were not provided in some instances
where they would have reduced the risk of injury to a miner using
the escapeway.  These conditions created a reasonable possibility
of an injury to miners  using  the  escapeway.   I also find that
Petty accurately evaluated the gravity factors when  he concluded
that  it was reasonably likely that an injury resulting  in  lost
work days  or  restricted  duty  could  reasonably be expected in
light of the violation.
Significant and Substantial
     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 likelihood  that the hazard contributed to will result
in an injury or illness  of a reasonably serious nature."  Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
     In  Mathies  Coal Co, 6  FMSHRC  1,  3-4  (Jan.  1984),  the
Commission explained:
          In order  to  establish  that  a  violation  of  a
     mandatory    safety   standard   is   significant   and
     substantial under  National  Gypsum,  the  Secretary of
     Labor  must prove:  (1) the underlying violation  of  a
     mandatory   safety  standard;  (2)  a  discrete  safety
     hazard--that    is,    a    measure    of   danger   to
     safety--contributed   to  by  the  violation;   (3)   a
     reasonable likelihood that  the  hazard  contributed to
     will   result  in  an  injury;  and  (4)  a  reasonable
     likelihood  that  the  injury  in question will be of a
     reasonably serious nature. (footnote omitted)
See also, Buck Creek Coal, Inc. v. MSHA,  52  F.3d  133, 135 (7th
Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d  99, 103-04
(5th  Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015,  2021
(Dec. 1987) (approving Mathies criteria).
     In  U.S.  Steel  Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission stated further as follows:
     We have explained further that the third element of the
     Mathies formula "requires  that the Secretary establish
     a reasonable likelihood that  the hazard contributed to
     will result in an event in which  there  is an injury."
     U.S.  Steel  Mining  Co., Inc.,    6 FMSHRC 1834,  1836
     (August 1984).  We have  emphasized that, in accordance
     with  the  language of section  104(d)(1),  it  is  the
     contribution  of a violation to the cause and effect of
     a  hazard that must  be  significant  and  substantial.
     U.S.  Steel  Mining  Co.,  Inc.,  6  FMSHRC  1866, 1868
     (August  1984);  U.S. Steel Mining Co., Inc., 6  FMSHRC
     1573, 1574-75 (July 1984).
     This evaluation is made in terms of "continued normal mining
operations."  U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574.  The
question of whether a particular  violation  is  significant  and
substantial must be based on the particular facts surrounding the
violation.    Texasgulf,   Inc.,   10  FMSHRC  498  (Apr.  1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).
     The Secretary's argument that the violation was S&S is based
upon Petty's determination that a miner  was likely to be injured
while using the escapeway to leave the mine  during  an emergency
and that a rescue team member might be injured.  However,  it  is
unlikely  that the secondary escapeway would be used under normal
mining operations.   There  were  very  minimal mining operations
being  conducted  during  the time frame that  the  citation  was
issued and there was no evidence  that  any  significant increase
was  planned in the reasonably foreseeable future.   While  there
was some  evidence that there were plans to do some active mining
in the area  near the secondary escapeway there was also evidence
that future mining  operations  would be focused in the north end
of the mine, necessitating development  of  a secondary escapeway
in  that area.  Very few miners, no more than  four,  would  have
used  the  escapeway  in  the event of an emergency.  While it is
reasonably  possible that a  miner  using  the  escapeway  in  an
emergency might  sustain an injury from the unsafe condition, the
likelihood of an actual  injury  occurring  under  normal  mining
conditions was remote.  Moreover, the injury reasonably likely to
occur would not be serious, and would result from a slip or  fall
partially  down  a  slope  of  30-60  degrees.  The escapeway was
required to be inspected only "periodically,"  which  would  have
been   infrequent  in  light  of  the  extremely  limited  mining
operations  being  conducted in that area.  A person qualified to
make such inspections  would  not  be  doing  so  under emergency
conditions.
     The deficiencies noted with respect to use of  the escapeway
by  a  mine  rescue team were legitimate concerns.  However,  the
possibility of  a mine rescue team having to enter the mine, even
without wearing self-contained  breathing apparatus, is so remote
under the circumstances presented  here,  that  the potential for
injury to a mine rescue team member has virtually  no  effect  on
assessment  of  the  risk or seriousness of  injury.  While there
was evidence that a fire  had occurred in a mine that is now part
of the Original Sixteen to  One  Mine, that fire occurred some 50
years  ago.   The  Secretary  introduced   no   evidence  of  the
circumstances of the fire.  I accept Miller's testimony  that the
fire  did  not  endanger miners, that no rescue or self-contained
breathing apparatus was used and that conditions that resulted in
that fire no longer exist in the mine.
     I find that  the Secretary has not met her burden of proving
a reasonable likelihood  that  the  hazard  contributed to by the
violation will result in an injury of a reasonably serious nature
and that the violation was not S&S.
Unwarrantable Failure
     In Windsor Coal Co., 21 FMSHRC 997, 1000  (Sept.  1999), the
Commission reiterated the law applicable to determining whether a
violation was the result of an 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).    The  Commission  has
     recognized  that a number of factors  are  relevant  in
     determining whether  a  violation  is  the result of an
     operator's   unwarrantable   failure,   such   as   the
     extensiveness of the violative condition, the length of
     time  that  the  violative  condition  has existed, the
     operator's   efforts   to   eliminate   the   violative
     condition,  and whether an operator has been placed  on
     notice  that  greater   efforts   are   necessary   for
     compliance.   Mullins  &  Sons Coal Co., 16 FMSHRC 192,
     195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
     (Aug. 1992).  The Commission also considers whether the
     violative condition is obvious,  or poses a high degree
     of  danger.  BethEnergy Mines, Inc.,  14  FMSHRC  1232,
     1243-44  (Aug.  1992)  (finding  unwarrantable  failure
     where  unsaddled  beams  "presented a danger" to miners
     entering area); Warren Steen  Constr.,  Inc., 14 FMSHRC
     1125,  1129  (July 1992) (finding violation  aggravated
     and unwarrantable based on "common knowledge that power
     lines are hazardous,  and  .  .  . that precautions are
     required  when  working  near  power lines  with  heavy
     equipment"); Quinland Coals, Inc.,  10  FMSHRC 705, 709
     (June 1988) (finding unwarrantable failure  where  roof
     conditions were "highly dangerous"); Kitt Energy Corp.,
     6 FMSHRC 1596, 1603 (July 1984) (conspicuous nature  of
     the violative condition supports  unwarrantable failure
     finding).
     The  Secretary's unwarrantable failure argument is based  on
the nature  of  the  violation,  its duration and prior notice to
Respondent.  Relying on Faith Coal  Co.,  19  FMSHRC  1357,  1369
(Aug. 1997) and Jim Walter Resources, Inc., 19 FMSHRC 480, 488-89
(March  1997),  the  Secretary  places particular emphasis on the
prior notice factor based upon her argument that the deficiencies
had been the subject of a citation  issued  in  1997 and had been
pointed out to mine management during an inspection in 1998.
     While  it  is true that a citation was issued  in  1997  for
failure  to  maintain   the   secondary  escapeway  in  safe  and
travelable condition, such a citation,  based  upon  a  number of
factors in a large area of the mine, many without reference  to a
specific  location,  is less probative on the prior notice factor
than a prior citation citing a particular violation at a specific
location.[8]  Here, it  is  not  at all clear that the conditions
noted some two years earlier that  resulted in the 1997 citation,
were the same as those observed by Petty.  Petty  did not testify
about  the earlier citation and did not base his conclusion  upon
it.[9]
     The  Secretary  also relies, however, on the fact that Petty
had pointed out some of  his  concerns  to  Respondent's previous
safety  director during an inspection of the escapeway  in  1998.
He specifically  mentioned  the  air/water  lines  and restricted
access  and  was concerned about missing landings.  He  concluded
during his inspection  that Respondent had done no work to remedy
the problems he had identified  in  1998.  While I credit Petty's
testimony to the extent that some of the conditions that he based
the citation on existed in 1998, it is not clear that many of the
particular conditions itemized on the  citation  existed in 1998.
Moreover,  Petty's  comment  included  a  reference  to   missing
landings,  which  I  have  not  relied  on  in determining that a
violation existed.
     I  do  not  find  that  the  violation  was attributable  to
Respondent's unwarrantable failure to comply with  the  standard.
The violation was based upon a number of factors, each of  which,
standing by itself would not have amounted to a violation.  There
is  little evidence as to the duration of many of the conditions.
One, in fact, occurred during the inspection, when a rung or rail
cracked  when  Hulsey  stepped  on it.  That area of the mine was
generally inactive and miners were present infrequently, at best.
It  was required to be inspected only  periodically  when  mining
operations  that  created  a  possibility of use of the secondary
escapeway  were  ongoing.  The prior  notice  argument,  for  the
reasons noted above,  does not carry enough weight in combination
with these factors to establish  an  unwarrantable  failure here.
In  that  regard,  I  also  note that the individuals that  Petty
talked to in 1998 no longer worked for Respondent.
**FOOTNOTES**
     [1]: Although the litigation of these cases was difficult to
control,  despite  the  issuance   of   a  detailed  supplemental
prehearing order requiring written proffers  of  lay  and  expert
testimony  and  the  submission  of  witness'  qualifications  in
writing,  it  was  conducted  by  the  parties  in a professional
manner.    A   limited   exception,   however,  was  Respondent's
characterization  of the testimony and motivation  of  government
witnesses that prompted  the Secretary to file a motion to strike
those references from the  record.  Respondent's position is that
the characterizations are supported by evidence in the record and
were not necessarily intended to connote criminal conduct.  While
the motion will be denied, Respondent  is  urged  to  avoid  such
controversial  terminology,  which  does  little  to  advance its
arguments.
     [2]: He  was  certified as an inspector prior to his  actual
graduation  because  he   was   given   credit,  based  upon  his
experience,  and  had attained the qualifications  necessary  for
that position.
     [3]: See, 30 C.F.R.    57.11037,  which specifies a minimum
opening  of  24  inches  by 24 inches for ladderways  constructed
after November 15, 1979, in underground travelways.
     [4]: A  travelway  is  defined  in  the  regulations  as  "a
passage, walk or way regularly used and designated for persons to
go from one place to another."  An  escapeway  is  defined  as "a
passageway by which persons may leave a mine." 30 C.F.R.  57.2.
     [5]: Petty  testified that he viewed the specific conditions
as  violations  but  determined  to  group  "several  violations"
together under the single citation he issued.
     [6]: Landings  would  serve a number of purposes, among them
limiting the length of a fall and providing a place to rest.  The
travelway regulation evidences the Secretary's determination that
such risks are substantially  reduced  where  ladders  are sloped
less than 70 degrees.
     [7]: Respondent   contends   that   its   foreman   repaired
deficiencies  in  the  escapeway.   That, however, was clearly  a
reference to abatement efforts, not repairs  that were done prior
to Petty's inspection.
     [8]: See, e.g., Jim Walter Resources, Inc.,  19  FMSHRC 480,
488-89  (March  1997),  a case cited by the Secretary, where  the
issuance of an identical  citation  for  the  same problem at the
same  location  less  than two weeks earlier, combined  with  two
other  orders and an extensive  history  of  similar  violations,
mandated an unwarrantable failure finding.
     [9]: Respondent argues that it contested that citation, that
it has not  yet  been  adjudicated  and should not, therefore, be
considered.  The Secretary contends that  there is no record of a
contest.  While there is some question as to  the  status  of the
citation,  the  Commission  held, in Jim Walter Resources, supra,
that a citation issued as close  as  two  weeks  previously,  and
which obviously had not been adjudicated, was a proper element to
take  into consideration in assessing whether a violation was the
result  of  an operator's unwarrantable failure.  In any event, I
place no weight  on  the previous citation, for the reasons noted
above.
Citation No. 7969947
     This  citation  involves  Respondent's  compliance  with  30
C.F.R. part 49, which  implements  the  Act's  requirement  in  
115(e)  that  every  operator of an underground mine shall assure
the  availability  of mine  rescue  capability  for  purposes  of
emergency  rescue and  recovery.   Prior  to  1998,  Respondent's
operations were  of  sufficient size that it could supply its own
mine  rescue  teams.   As  financial  difficulties  overtook  it,
however, Respondent was no longer able to supply its own teams to
satisfy  the  regulatory requirement.   On  September  22,  1998,
Respondent was  issued  a citation for failure to comply with the
Part 49 requirements.  By  May  6,  1999, Respondent had not come
into compliance and MSHA saw little effort  from Respondent to do
so.  On May 6, 1999, Petty issued a  104(b)  order to Respondent
directing  Miller  to  withdraw  all miners from the  underground
operation.  The order specified that:  "This order will remain in
place until the operator has complied with the requirements under
CFR Part 49 and an MSHA inspector lifts  said  order."  (emphasis
added).   Petty terminated, or lifted, the order on May 7,  1999,
following receipt  of  a  letter  indicating  that Toluene County
search  and  rescue  teams  would  respond  in  the event  of  an
emergency.  On May 12, 1999, however, Petty reinstated  the order
because  Respondent had not satisfied all of the requirements  of
30  C.F.R.      49.3,  which  governs  alternative  mine  rescue
capabilities for small  and  remote  mines.  Respondent  had  not
submitted  a satisfactory escape and evacuation plan, as required
by  49.3(c)(5).  The  continuation  sheet  reinstating the order
listed  seven specific documentary requirements  that  Respondent
had to satisfy and stated:
     The  order  to  withdraw  miners  from  the underground
     operation will remain outstanding until the  small  and
     remote mine rescue plan is sent to the western district
     office and is approved.
     Jonathan  Farrell,  the mine manager, promptly gathered  the
required  documents and Respondent  submitted  the  documents  by
facsimile to  MSHA's  district  office  on or about May 13, 1999.
Miller   had  several  conversations  with  the   MSHA   official
responsible  for  approving  the documents, apparently Don Downs.
After  a day or two of review,  Downs  had  a  conversation  with
Miller and  told  him that the documents satisfied the regulatory
requirement.   Miller   then   allowed   the   miners  to  resume
underground operations.  The mine's operations were  subsequently
featured in a television program.
     Petty  became  aware  of  the program and, since he had  not
lifted the reinstated order, concluded  that  Miller  had resumed
operations  in  violation  of  the  order.   On June 1, 1999,  he
traveled  to the mine, ascertained that six miners  were  working
underground   and   issued  Citation  No.  7969947,  which  cited
Respondent for violating  the  order that had been "issued on May
12, 1999."  He noted that an injury  was  unlikely to result from
the  violation,  which  was  not  S&S,  and  concluded  that  the
operator's  negligence  was  high,  because of Miller's  specific
knowledge of the May 12, 1999 order.   Miller  had  told him that
MSHA  district  officials  had  allowed  them  to  resume working
underground.  Petty then returned to the office, somewhat  upset,
where  a meeting was held with involved MSHA officials, including
Downs.   Petty  was  focused upon the language of the May 6 order
stating  that only an MSHA  inspector  could  lift  it.   He  was
satisfied,  at  the  conclusion  of  the  meeting,  that  no MSHA
inspector had lifted the order.
     In  order  to  facilitate  Respondent's return to productive
work, Petty returned to the mine the next morning with Downs, who
reviewed Respondent's documentation  in a meeting with Miller and
Farrell. Petty testified that initial  portions  of  the  June  2
discussion  appeared to indicate that some aspects of the order's
requirements  had not been satisfied.  However, he did not remain
for the discussion, which pertained to Downs' field of expertise,
and did not know  which,  if any, of the itemized requirements of
the May 12, order had not been  satisfied.   Downs confirmed that
the  documents  provided  by  Respondent satisfied  the  Part  49
requirements and Petty terminated  the  order.  During a break in
the meeting, when Petty was absent, Miller and Farrell confronted
Downs about his failure to admit to Petty  that  he  had verbally
approved  the documents that had been submitted and, in  essence,
authorized  the  return to work.  Downs was "embarrassed" by what
he  understood  to  have   been  overstepping  his  authority  in
essentially lifting the order.
     The Secretary argues that Respondent is chargeable with high
negligence  because  of  its  "intentional  disregard  of  MSHA's
authority" evidenced by the fact that it "blatantly failed to get
an  inspector's approval before  sending  miners  back  into  the
mine."   The Secretary's argument, however, erroneously refers to
the May 6, 1999 order, that was, in fact, terminated by Inspector
Petty on May 7, 1999.  The modification, referred to as the order
"issued on May 12, 1999" in the citation, reinstated the previous
order but did not specify or require that it be lifted only by an
MSHA inspector.   Rather it stated that the order would remain in
effect until the mine  rescue  plan  had  been  approved  by  the
district office.
     Respondent  does  not contend that Downs specifically lifted
the order.  Rather, Miller  testified that he dealt with the MSHA
official that he was directed  to deal with and assumed that that
person had the authority to approve  the plans and documents that
he submitted in response to the May 12,  1999,  modification.  He
was  told  by  that  official  that  the documents satisfied  the
itemized requirements of the May 12, 1999  modification  and  was
told  something  to  the effect "you're good to go."  He acted on
that statement and allowed  the  underground  operation to resume
and  further allowed the resumption of operations  to  be  openly
broadcast  on a television program.  He further testified that no
additional documentation  or  information  was  submitted to MSHA
between 8:00 p.m. June 1, when the citation was issued,  and 8:47
a.m.  on  June 2, when it was terminated after Downs verified  to
Petty that  the  documents  satisfied the requirements of the May
12, 1999, order.
     I accept Miller's testimony  on  these points.  He obviously
did  not  try  to  conceal  the  fact  that miners  were  working
underground and believed in good faith that  the  requirements of
the  May  12, 1999, order had been satisfied.  He was,  in  fact,
correct.  Downs,  the  MSHA  district  official  responsible  for
approving  the  mine rescue plan, had done so, and - by the terms
of the order itself - it no longer remained in effect.
     The Secretary argues that  104(b) of the Act specifies that
only  "an  authorized   representative   of  the  Secretary  [can
determine] that such violation has been abated."   The  Secretary
further  asserts that Downs, who was not an inspector, could  not
lift the order  and  that Downs, in fact, did not lift the order,
based upon a statement he allegedly made to Petty.
     These arguments miss  the  mark.  The Secretary, like Petty,
focused upon the original order's  notation  that  only  an  MSHA
inspector could lift it.  However, Petty lifted that order on May
7, 1999.  While it is true that reinstated order, referred to  as
the order "issued on May 12, 1999," in the citation, had not been
lifted  by an inspector, until Petty did so on June 2, that order
did not contain  a requirement that it be lifted by an inspector.
Rather, its effectiveness  was  conditioned  upon approval of the
mine rescue plan by the district office, which  occurred a day or
two  after  documentation  had  been submitted on May  13,  1999.
Consequently, the May 12 order, by  its  own terms, was no longer
effective.
     The Secretary has failed to carry her  burden  of  proof  on
Citation No. 7969947, and it will be vacated.
Order No. 7969514
     Order  No. 7969514 was written by Inspector Allard on August
27, 1999.  It  was  one  of  ten  alleged violations of mandatory
health  and  safety standards cited for  conditions  he  observed
while inspecting  the  secondary  escapeway  and adjoining areas.
This  order  alleges  a violation of 30 C.F.R.   57.11051(a),  a
failure to maintain the  escapeway  in  a  "safe [and] travelable
condition."   The  conditions that led him to  issue  the  order,
barring access to "all  areas of the underground mine affected by
the secondary escapeway," were noted on the order as:
     The secondary escapeway  from  the  surface to the 2200
     level   was   not  maintained  in  a  safe,  travelable
     condition.  Hazards  in the escapeway included but were
     not  limited  to the following:  there  were  only  two
     landings from the  surface  to the 1500 [level].  Below
     the second landing there was  a  steep  slope without a
     ladder or stairs that ended at a ladder which  did  not
     project  above  the  ground level.  Air and water pipes
     crossed over the ladder  restricting  access.   Several
     ladders  were  offset  from  the  ladders  below.  Some
     ladders  had  rotten and cracked rungs.  An area  below
     the 1500 level  did  not  have ladders, stairs or other
     means  of  making travel safe.   Loose  rock  had  been
     allowed to accumulate  behind  ladders  in  some areas.
     Several areas had restricted toe clearance.  There were
     several open, unguarded holes along the travel  ways on
     the 1700 level and the 2200 level.  The escapeway  must
     be  used  on  a  regular basis for inspection purposes.
     With continued use  of the escapeway in this condition,
     it is reasonably likely  that  serious  injuries  could
     occur.   The  operator  engaged  in  aggravated conduct
     constituting more than ordinary negligence in that [it]
     had been cited for this condition and  had not repaired
     the  escapeway  before  working  below  the 800  level.
     (Reference  citation  #  796922) This violation  is  an
     unwarrantable  failure  to  comply   with  a  mandatory
     standard.
     Allard issued separate orders or citations  for seven of the
specific conditions referred to above and also attributed them to
high negligence by the operator and concluded that  all  but  one
was  S&S.   The standards alleged to have been violated, however,
were applicable  to  underground  travelways,  not to escapeways.
Those citations and orders were vacated by the Secretary.  Allard
also took no measurements of slope angles or openings,  at  least
at the time he issued the citations.[10]
     Allard  concluded  that  it  was  reasonably  likely that an
injury  would  occur  that  would  result  in  lost work days  or
restricted  duty  and  that  one  person  was  affected   by  the
violation.   He further concluded that the violation was S&S  and
was attributable to the unwarrantable failure of Respondent.
     These are  essentially  the  same conditions and/or types of
conditions, that Petty had cited on  April  1, 1999.  Respondent,
likewise,  presented  essentially  no  direct evidence  that  the
conditions noted by Allard did not exist  as he observed them.  I
find that Allard accurately described conditions  that existed in
the   escapeway   at  the  time  of  his  inspection.   As  noted
previously, I accept  the  testimony  regarding  the measurements
taken by Burke and Witkopp and find that they accurately describe
the slopes of the stopes from the 1700 level to the surface.
     I   find   that  the  overall  condition  of  the  secondary
escapeway, as in the case of the citation issued by Petty, was in
violation of the cited standard.  As in that instance, while each
individual condition was not violative of any standard in itself,
the  combination  of  conditions,  each  of  which  incrementally
increased the risk of injury, resulted in the escapeway not being
maintained in a safe and travelable condition.
Significant and Substantial
     For the same reasons that I found that the violation alleged
in Citation No. 7969922  was  not  S&S, I hold that the violation
alleged in this citation was not S&S.   Allard,  like  Petty, was
concerned about landings that, as noted above, were not required,
even under the regulations governing travelways.
Unwarrantable Failure
     The  Secretary's  argument  on  unwarrantable  failure  with
respect  to  this  violation  is  considerably stronger than that
advanced with respect to Citation No. 7969922.  Here, many of the
same conditions that had been noted  by  Petty  on April 1, 1999,
continued to exist.  Petty had terminated that citation, allowing
the conditions to remain, on the specific condition  that no work
be done below the 800 level.  Respondent was specifically  warned
that  allowing  work  below  the  800  level  without  making the
escapeway safe and travelable would amount to aggravated conduct.
Work was done below the 800 level, without any apparent effort to
address  the  inadequacies  noted by Petty.  Two miners had  been
down to the 1500 level to change a pump and other miners had been
at the 1700 level attempting  to  locate ore deposits and marking
areas for future mining.  Respondent  characterizes  this  latter
effort  as  exploration  or  development  and notes that a second
escapeway is not required during the exploration  or  development
of  an  ore body.  30 C.F.R.  57.11050(a).  While that work  may
properly  be  characterized  as  exploration,  it did not absolve
Respondent of the responsibility to maintain the escapeway, which
had  been designated as an escapeway on Respondent's  escape  and
evacuation  plans,  safe and travelable. Respondent also protests
again that citations  that it has contested and have not yet been
adjudicated should not  be  used  against  it in an unwarrantable
failure  analysis.   That  argument is again rejected.   I  find,
based upon the nature and duration  of  the  conditions  and  the
prior  specific notice to Respondent, through Petty's 1998 survey
and April  1,  1999 citation, that efforts were needed to address
the conditions of  the  escapeway,  that  the  violation  was the
result of Respondent's unwarrantable failure.
Citation No. 7955049
     Citation  No.  7955049  was  issued  by Allard on August 26,
1999,  as  he  inspected  the secondary escapeway.   He  observed
conditions, as described on the citation as:
     A draw raise on the 1700 level by survey tag number 17-
     50 had a hang-up of material  which  could  fall to the
     travelway   below.   The  timbers  for  the  chute  and
     supports had  rotted  or  fallen  away.   The  adjacent
     travelway  is part of the secondary escapeway submitted
     to MSHA on 5/1999.   The area is not often used but was
     going to be used during the week of 8/30/1999.
     He  determined that the  conditions  violated  30  C.F.R.
 57.3200,[11]  that  the  conditions were unlikely to result in
an injury requiring lost work  days  or  restricted  duty,  that
the violation  was  not  S&S  and that the operator's negligence
was moderate.
**FOOTNOTES**
     [10]: He later measured slopes  in  two areas and found that
they  were  essentially  consistent with the  measurements  taken
prior to the hearing by Burke and Witkopp.
     [11]: 30 C.F.R.  57.3200 states:
     Ground conditions that create a hazard to persons shall
     be taken down or supported  before other work or travel
     is permitted in the affected  area.   Until  corrective
     work  is  completed,  the  area shall be posted with  a
     warning  against  entry and, when  left  unattended,  a
     barrier  shall  be  installed  to  impede  unauthorized
     entry.
     Respondent's defense  to  this citation is that the material
did not present a hazard because  it  was  cemented  together and
that the area in question was not active.  While the area may not
have been an active work area, the 1700 level had been designated
as  part  of  the secondary escapeway on Respondent's escape  and
evacuation plans.   Respondent originally questioned the accuracy
of MSHA's plans which showed that area was part of the escapeway.
However, its plans also  showed  the  area  as  being part of the
escapeway.  There was also evidence that men had  been working in
the area.  Freshly painted markings on the walls indicated  areas
where  mining was to occur.  I find that miners had recently been
in the area  and  that  the  area  was  part  of  the  designated
secondary  escapeway.  I also find that the material presented  a
hazard.  Allard  had  observed  rubble  on  the floor of the 1700
level that had fallen from the raise and he determined that there
was  a possibility of additional material falling.   Timbers  had
rotted  away,  reducing  support  for the material.  Respondent's
witnesses confirmed the presence of  the  fallen  rubble  and the
rotted  timbers.  Witkopp  opined  that  material in the mine can
become cemented together and Billy Joe Van Meter, who accompanied
Allard,  felt  that  the  material  was  "pretty  well  cemented"
together.   His  judgment  was  based  solely  upon   his  visual
observations.   There  was  no  attempt to explain why additional
material would not fall, in light  of  the  fact  that  some  had
already fallen.
     I  find  that the conditions cited violated the standard and
that  Allard  correctly   assessed  the  gravity  and  negligence
factors.
Citation No. 7969519
     Citation  No. 7969519 was  issued  by  Inspector  Allard  on
September 1, 1999,  after  he inspected the amalgamation/refinery
area of Respondent's mill.  It alleged a violation of 30 C.F.R.
 56.18002(a), which requires that a competent person designated
by the operator perform a workplace  examination  at least once
each shift  and  that conditions that may adversely affect
safety  or health be corrected  promptly.   The conditions which
lead to the issuance  of  the citation were what  Allard
described  as  high levels of mercury  contamination on gloves,
tools and a handrail. In response to an inquiry,  he  was  told
that Respondent did not test for mercury contamination and had
no  equipment at the site to  perform  such  tests. He  concluded
that  a  person  being unknowingly exposed to such contamination
could suffer serious illness and determined that it was
reasonably likely that a miner could suffer an illness  resulting
in lost workdays or restricted duty.  He concluded that the
violation  was  S&S.  The degree of operator  negligence  was
assessed as "moderate"  because,  even though the exposure would
be  infrequent,  there had been a prior citation for mercury
contamination.
     Farrell was the only person handling mercury at the time and
he did not conduct tests for mercury contamination  either  daily
or  prior to working in that area.  MSHA's personnel had come  to
the mine  in  the  past  and  had  done  some  testing and helped
establish proper procedures for handling mercury.  The individual
who  had worked in that area when the mine was operating  with  a
full crew had undergone blood testing on occasion and those tests
were negative  for  mercury,  leading  Farrell  to  conclude that
Respondent's  procedures  for  handling mercury were appropriate.
Farrell conceded, however, that  Respondent  itself  did not test
for mercury contamination in the amalgamation facility  prior  to
the  issuance  of the citation and he could have been unknowingly
exposed to excessive  levels  of mercury, e.g., that found inside
of  the  gloves  that he would have  used.   Shortly  thereafter,
Farrell began testing for mercury contamination.
     The   use   of  mercury,   a   toxic   substance,   in   the
amalgamation/refinery  area  dictates  that  appropriate steps be
taken to assure that miners working in that area  are not exposed
to  excessive levels of mercury.  A proper workplace  examination
of the  area,  per  Allard,  would  include  testing to ascertain
whether a miner would be exposed to mercury.   Respondent was not
performing  such testing prior to the issuance of  the  citation.
Consequently, the violation has been proven.
     I find, however, that the Secretary failed to prove that the
violation was  S&S.   The  evidence introduced in support of that
allegation consisted of the test results and an anecdotal account
by Allard of a fellow inspector  who  had  suffered  an "extreme"
case  of  mercury  poisoning.   While  it is beyond dispute  that
exposure to mercury can result in serious  illness, an assessment
of  the  risk  of  serious  illness  should  be based  upon  some
quantitative evidence of the actual degree of  exposure  and  the
length  of  time over which a person was exposed to it.  The test
results established  the  concentrations  of  mercury  at various
locations.   However,  the Secretary does not point to a standard
that  demonstrates  the  degree  to  which  those  concentrations
exceeded allowable limits.   More significantly, it is undisputed
that only one person, Farrell,  worked in that fenced off, locked
and posted area and that he worked  there  on  a  "very irregular
basis" such that there was "little" or "infrequent" exposure.  On
the  facts  presented  here,  it  has  not been established  that
infrequent exposure to the levels of mercury  present in the area
would be reasonably likely to result in a serious illness and the
Secretary's S&S designation cannot be sustained.
Citations No. 7969525 and No. 7969526
     Citations No'd. 7969525 and 7969526 were issued by Allard on
October 27, 1999, after he discovered explosives, blasting agents
and detonators stored in cardboard boxes in a dead-end  drift  at
the  1700  level  of the mine.  The materials had apparently been
left in that location when the miners were called out of the mine
and laid off on February  12,  1999.  Since no ore extraction had
occurred in that area of the mine  since that time, the materials
had  lain,  undisturbed, until discovered  by  Inspector  Allard.
Citation No.  7969525 alleged a violation of 30 C.F.R.  57.6161,
which provides:
      57.6161 Auxiliary facilities.
     (a)  Auxiliary   facilities  used  to  store  explosive
     material near work  places  shall  be  wooden, box-type
     containers equipped with covers or doors, or facilities
     constructed  or mined-out to provide equivalent  impact
     resistence and confinement.
     Citation No. 7969526,  cited  a  violation  of  30  C.F.R. 
 57.6302,  which  requires  that explosives and blasting agents
"shall  be  kept separate from detonators until loading  begins."
He based the  alleged  violation  in the fact that a fifteen foot
piece of detonating cord was stored  in  the  same  box  with  15
blasting  caps.   For  each citation, Allard concluded that fatal
injuries affecting two miners were reasonably likely to occur and
also  found the violations  "Significant  and  Substantial."   As
noted in the citations, those conclusions were based, in part, on
the fact  that  he observed "several large rocks on the floor [of
the drift] which  had  apparently  fallen from the back rib."  He
concluded that a large rock falling  on  the  explosive materials
could  result in an explosion.  His assessment of  the  potential
for injury  was  based  upon  information  that  there had been a
proposal  to  locate  a  rescue  chamber  in the area, which  was
adjacent to an area that may, in the future  be  designated  as a
secondary  escapeway  and  that  miners  were going to be working
there in the future.  However, he rated the operator's negligence
as "Low" because area had not been mined since February of 1999.
     Respondent  does  not  dispute  the  accuracy   of  Allard's
observations.  It does, however, challenge his determination that
a  falling  rock  could  cause  an  explosion,  as  well  as  his
assessment of the potential for injury based upon possible future
operations.   Farrell  testified  that  the  explosives were very
stable and difficult to detonate, that he was  familiar  with all
reported  fatal accidents in the district and had never heard  of
an explosion  caused  by  an  impact  to  explosives.  He further
testified that no-one had worked in that area  of  the mine since
February of 1999, that the area had been posted to prohibit entry
without authorization and that, while there had been proposals to
establish  a  secondary escapeway and refuge chamber,  they  were
made after the citations were issued and had never been approved.
As to the projection of miners' exposure in the event that future
mining operations  were  conducted in the area, Respondent relies
on  its  intentions to conduct  a  proper  workplace  examination
before any work would be done in an area of the mine and that all
defects and hazards would be corrected.
     That  Respondent  violated the provisions of the regulations
cited  in  the  subject citations  is  apparent.   The  explosive
materials clearly  were  not  stored  in  compliance  with  those
regulatory requirements.  It is equally clear, however, that  the
gravity determinations made by Allard were excessive and that the
violations  were not S&S.  On the basis of Allard's and Farrell's
testimony,  I  conclude  that  there  was  a  possibility  of  an
explosion, though  remote,  due to falling rock.  The possibility
of such an explosion injuring  a  miner  was  also  quite remote.
While no miners had been working at extracting ore in  that  area
of  the  mine,  there had been some exploration at the 1700 level
and miners had been  down in the south end of the mine to replace
a  pump.  It is possible  that,  in  the  unlikely  event  of  an
explosion  caused  by  a  falling rock, a miner could be in close
enough  proximity to be injured  as  a  result.   Projections  of
possible  injuries based upon potential future mining operations,
where there  has  been  no  formal commitment to actually conduct
those operations and the conditions  are  of  a  nature that they
should  be  identified  in  a  proper work place examination  and
corrected  prior  to the actual commencement  of  mining  efforts
directed at extraction of ore, cannot support the S&S designation
here.   There  is  no   reasonable  likelihood  that  the  hazard
contributed to would result in a serious injury.  I find that the
inspector's assessment of  the operator's negligence as "Low" was
accurate, that the possibility  of  injury was unlikely, that the
nature of a possible injury was lost work days or restricted duty
and that two miners would be affected.
Citations No. 7969532 and No. 7969533
     Citation No. 7969532 was written  by  Allard  on November 2,
1999,  for an alleged violation of 30 C.F.R.  57.6101(a),  which
provides:
       57.6101  Areas  around  explosive  material  storage
     facilities
     (a)  Areas surrounding storage facilities for explosive
     material  shall  be clear of rubbish, brush, dry grass,
     and trees for 25 feet  in  all  directions, except that
     live trees 10 feet or taller need not be removed.
     He observed brush growing within 6 feet of the side and back
and dry grass within 6 feet of the back of the surface explosives
storage magazine.  The grass was thin  and  short  and the bushes
were  green.   The  magazine  was  constructed  of steel with  an
internal wood liner.  He determined that a fire in the area would
not be likely to spread to the magazine, but if it  did, it could
present  a hazard to persons fighting the fire.  He assessed  the
possibility of injury as "unlikely," but fatal to one miner if it
occurred and rated the operator's negligence as "moderate."
     Citation  No. 7969533 cited a violation of the same standard
based upon similar  conditions  existing  around the blasting cap
storage magazine.  In addition to dry grass  and brush, including
a blackberry bush, there was a small tree, approximately  3  feet
in  height,  within  15  feet  of that magazine.  He assessed the
potential  for  a  injury  as  "unlikely"   and   the  operator's
negligence as "moderate."
     Respondent contends that there was no realistic  possibility
of a fire or any threat to the magazines because there  was  very
little  potentially  combustible  material in the areas, that any
grass and brush that may have been  there  was sparse and wet due
to recent rainfall and that precipitation at  that  time  of year
generally  kept  things  from  being  combustible.  While Farrell
testified that the areas were clear of  combustible  material, he
acknowledged  that  the  broken  rock  that  the  magazines  were
constructed upon did support a small amount of vegetation, Miller
too  acknowledged  that  there was a small amount of grass in the
area, some dead and some growing, and that blackberry bushes grow
in the area, and both admitted  the  presence  of  the tree.  The
standard  is  specific,  the area within 25 feet of an  explosive
storage magazine must be kept  clear  of  brush  and  dry  grass.
While  the  likelihood  of  a fire that could have threatened the
magazine  may have been extremely  low,  the  Secretary  was  not
required to  prove  a specific threat of fire.  I find that brush
and dry grass was within 25 feet of the magazines and that a tree
less than 10 feet in  height  was  within 25 feet of the blasting
cap   storage  facility.   While,  I  agree   with   Respondent's
assessment that combustion was highly unlikely and that virtually
no threat  was  posed  to the magazines, the presence of a 3 foot
tree evidences a failure  to  assure compliance with the standard
for at least a few months.
     Allard appropriately assessed  the  potential for injury for
both  citations  as "unlikely" and the operator's  negligence  as
"moderate."  I disagree  with his assessment that the injury that
might  result from the violation  cited  in  Citation No. 7969532
would have been fatal.  The small amount of combustible  material
in  the  vicinity of the steel cased magazine posed no threat  to
ignite the  contents  of  the  magazine.  The potential injury is
more accurately categorized as "no lost workdays."
Citation No. 7969536
     On November 3, 1999, Inspector  Allard  observed that copies
of citations that he had issued as early as October 27, 1999, and
served on Farrell on October 28, 1999,  had not  been  posted  on
the  mine's  bulletin  board.   He  issued  Citation No. 7969536,
alleging a violation of
 109(a) of the Act, which provides, in pertinent part:
     A  copy  of  any  order,  citation, notice or  decision
     required by this Act to be  given  to an operator shall
     be delivered to the office of the affected  mine, and a
     copy shall be immediately posted on the bulletin  board
     of such mine by the operator or his agent.
     Respondent  does  not  dispute  that copies of the citations
were not posted on the bulletin board  until  November  3,  1999,
when this citation was issued.  It contends that the "spirit"  of
the  Act  was  satisfied  because  each of the citations had been
discussed with the small crew of miners  then  working, such that
they  were  aware of the substance of the citations.   While  the
discussions may have served the notification purpose, at least in
part, they do  not  substitute for, or establish compliance with,
the  Act.  The violation  was  clearly  proven  and  the  gravity
factors  appropriately  assessed  as  no  likelihood  of  injury.
Operator negligence was appropriately classified as moderate.
The Appropriate Civil Penalty
     The Original Sixteen to One Mine, is a small operation, with
19,546 hours worked in 1999 and 17,401 hours worked in 2000.  The
evidence  is  somewhat  inconsistent  on  Respondent's  violation
history.    The   Secretary  introduced  a  report  showing  that
Respondent had been  issued  a  total  of 157 violations over the
period January 1, 1990 to January 1, 2001,  only  42 of which had
been  paid.  Many, including those at issue in these  cases,  had
not  yet   been   adjudicated.   The  assessment  control  sheets
generally show that  Respondent has been issued one violation for
every two inspection days  in the 24 month period preceding these
violations. I find that Respondent  has a relatively good history
of violations.  Respondent introduced  evidence  of its financial
condition,  financial statements for 1996, 1997, 1998  and  1999.
They show that  Respondent  has operated at a net loss for all of
those years, but retained assets  of  $2,013,884.00 at the end of
1999,  including  $308,420.00  in inventory.   Included  in  that
inventory was a large gold nugget,  referred to as the "whopper,"
which was exhibited at the hearing.   That  nugget contained some
141 ounces of gold, valued at approximately $40,000  at  the time
of  the  hearing.   Respondent  did  not  argue in its brief that
payment  of  the  proposed  civil  penalties would  threaten  its
ability to continue in business.  In light of these facts, I find
that neither payment of the proposed civil penalties, nor payment
of the reduced civil penalties imposed  by  this  decision,  will
impair Respondent's ability to continue in business.  I also find
that  the  civil  penalties  imposed below are appropriate to the
size of Respondent's business.
     The proposed civil penalty  for  Citation  No.  7969922  was
$400.00.   The  violation  was sustained.  However, the violation
was  held  to  be  neither S&S nor  the  result  of  Respondent's
unwarrantable failure.   Taking  into  consideration  all  of the
factors  required  to  be  assessed  under  110(i) of the Act, I
impose a civil penalty of $100.00 for this violation.
     The  proposed  civil  penalty  for  Order  No.  7969514  was
$800.00.     That   violation,   the   result   of   Respondent's
unwarrantable  failure,  was  sustained.  However, I did not find
the violation to have been S&S.   I  impose  a  civil  penalty of
$500.00 for that violation.
     The  proposed  civil  penalty  for Citation No. 7955049  was
$55.00.   That violation was sustained  in  all  respects  and  I
impose a civil penalty of $55.00.
     The proposed  civil  penalty  for  Citation  No. 7969519 was
$113.00.  That violation was sustained.  However, I  did not find
the  violation  to  have  been S&S.  I impose a civil penalty  of
$100.00 for that violation.
     The proposed civil penalties  for Citations No'd 7969525 and
7969526  were  $122.00  each.  Those violations  were  sustained.
However, the gravity assessments  were  found to have been not as
serious as alleged in the citations and they were not found to be
S&S.   I  impose  a civil penalty of $55.00  for  each  of  those
violations.
     The proposed civil  penalties for Citations No'd 7969532 and
7969533 were $55.00 each.   Those  violations  were  sustained in
virtually  all  respects,  the  only  exception  being  a  slight
reduction  in  the  gravity  factor  for No. 7969523.  I impose a
civil penalty of $55.00 each for those violations.
     The  proposed  civil penalty for Citation  No.  7969536  was
$55.00.  That violation was affirmed in all respects and I impose
a civil penalty of $55.00.
     The total of the  civil  penalties  imposed on the contested
citations and order is $1,030.00
Settlement
     As  noted  above,  at  the  commencement  of   the  hearing,
Respondent  withdrew  its  contest as to Citation No. 7969507  in
Docket No. WEST 2000-63 and  Citations  No's.  7969524,  7969527,
7969528,  7969529,  7969530 (which it is proposed be modified  to
reflect that the operator's  negligence was "Low") and 7969534 in
Docket No. WEST 2000-195 and has agreed to pay the full amount of
the  proposed  penalties. During  the  hearing,  Respondent  also
withdrew its contest  of Citation No. 7969537, in Docket No. WEST
2000-195.   The  parties   have  requested  that  the  negotiated
resolution of the petitions  as to those citations be approved as
a settlement.  I have considered the representations and evidence
submitted  and  conclude  that  the   proffered   settlement   is
appropriate under the criteria set forth in section 110(i) of the
Act.
                              ORDER
     The  Secretary's  motion  to  strike inappropriate matter is
DENIED.
     With  respect  to  the  citations  that  the  Secretary  has
vacated,  Citations  No's.  7955042, 7955043,  7955044,  7955045,
7955046, 7955048 and 7955050  in  Docket  No.  WEST  2000-78, and
Citation No. 7955047 in Docket No. WEST 2000-195, the  respective
petitions are hereby DISMISSED.
     With  respect  to  the citations as to which Respondent  has
withdrawn its contest, Citation  No.  7969507  in Docket No. WEST
2000-63  and Citations No's. 7969524, 7969527, 7969528,  7969529,
7969530, 7969534  and  7969537  in  Docket No. WEST 2000-195, the
motion for approval of settlement is  GRANTED,  and it is ORDERED
that Citation No. 7969530 is hereby modified to reflect  that the
operator's negligence was "low," and that Respondent pay a  total
civil  penalty  of  $569.00  for  the settled citations within 45
days.
     With  respect  to  the  contested  citations,  Citation  No.
7969947 is hereby VACATED and  the  petition is hereby DISMISSED.
The remaining citations and order are  AFFIRMED and Respondent is
ORDERED  to  pay  a  total  civil penalty of  $1,030.00  for  the
contested violations within 45 days.
                                   Michael E. Zielinski
                                   Administrative Law Judge
Distribution:
Christopher B. Wilkinson, Esq.,  Office  of  the  Solicitor, U.S.
Department of Labor,
71  Stevenson  St.,  Suite  1110,  San  Francisco,  CA 94105-2999
(Certified Mail)
Michael M. Miller, President, Original Sixteen to One Mine, Inc.,
P.O. Box 1621, Alleghany, CA 95910  (Certified Mail)
/mh