<DOC>
[DOCID: f:se9197-2.wais]

 
FAITH COAL COMPANY
July 19, 1995
Docket No. SE 91-97


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10TH FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

                          July 19, 1995


SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. SE 91-97
      Petitioner               :  A. C. No. 40-02755-03525
            v.                 :
                               :  Docket No. SE 91-533
FAITH COAL COMPANY,            :  A. C. No. 40-02755-03527
      Respondent               :
                               :  Docket No. SE 92-315
                               :  A. C. No. 40-02755-03536
                               :
                               :  Docket No. SE 92-316
                               :  A. C. No. 40-02755-03537
                               :
                               :  Docket No. SE 92-343
                               :  A. C. No. 40-02755-03538
                               :
                               :  Docket No. SE 92-372
                               :  A. C. No. 40-02755-03540
                               :
                               :  Docket No. SE 92-373
                               :  A. C. No. 40-02755-03541
                               :
                               :  Docket No. SE 92-375
                               :  A. C. No. 40-02755-03542
                               :
                               :  Docket No. SE 92-463
                               :  A. C. No. 40-02755-03543
                               :
                               :  Docket No. SE 92-464
                               :  A. C. No. 40-02755-03544
                               :
                               :  Docket No. SE 92-488
                               :  A. C. No. 40-02755-03545
                               :
                               :  Docket No. SE 93-78
                               :  A. C. No. 40-02755-03547
                               :
                               :  Docket No. SE 93-79
                               :  A. C. No. 40-02755-03548
                               :  Docket No. SE-93-194
                               :  A. C. No. 40-02755-03549
                               :
                               :  Docket No. SE-93-195
                               :  A. C. No. 40-02755-03550
                               :
                               :  Docket No. SE 93-257
                               :  A. C. No. 40-02755-03552
                               :
                               :  Docket No. SE 93-300
                               :  A. C. No. 40-02755-03553
                               :
                               :  Docket No. SE 93-348
                               :  A. C. No. 40-02755-03555
                               :
                               :  Docket No. SE 93-365
                               :  A. C. No. 40-02755-03556
                               :
                               :  Docket No. SE 93-366
                               :  A. C. No. 40-02755-03557
                               :
                               :  Docket No. SE 93-411
                               :  A. C. No. 40-02755-03558
                               :
                               :  Docket No. SE 94-42
                               :  A. C. No. 40-02755-03561
                               :
                               :  Docket No. SE 94-75
                               :  A. C. No. 40-02755-03562
                               :
                               :  Docket No. SE 94-96
                               :  A. C. No. 40-02755-03563
                               :
                               :  Docket No. SE 94-256
                               :  A. C. No. 40-02755-03564
                               :
                               :  Docket No. SE 94-257
                               :  A. C. No. 40-02755-03565
                               :
                               :  No. 15 Mine


                            DECISION

Appearances:  Ann T. Knauff, Esq., Office of the Solicitor,
              U.S. Dept. of Labor, Nashville, TN,
              for Petitioner;
              Russell Leonard, Esq., 603 Cumberland St.,
              Cowan, TN, for Respondent;
              Lonnie Stockwell, Faith Coal Company,
              Palmer, TN, for Respondent.

Before:  Judge David Barbour


     These consolidated cases are before me upon petitions for the
assessment of civil penalties filed by the Secretary of Labor
(Secretary) pursuant to section 110 of the Federal Mine Safety
and Health Act of 1977 (30 U.S.C.  820).  The petitions charge
Faith Coal Company (Faith) with numerous violations of mandatory
safety and health standards at its No. 15 Mine.  The issues are
whether Faith violated the cited standards and, if so, the amount
of the civil penalties to be assessed.

     The cases were heard in Jasper, Tennessee.  The Secretary was
represented by counsel, Ann T. Knauff.  Faith was represented by
counsel, Russell Leonard, and by its owner, Lonnie Stockwell.
(Leonard's appearance was limited to one day and to one issue --
the effect of any civil penalties assessed on Faith's ability to
continue in business.)

     As indicated below, many of the alleged violations were settled.
The settlements were explained thoroughly by counsel for the
Secretary.  I have considered the explanations and find them
appropriate.

     The settlements are approved.  Although the Secretary
proposed civil penalties for the settled violations, the parties
understood that the penalties assessed will be those I find
warranted in light all of the statutory penalty criteria;
particularly, the criterion relating to Faith's ability to
continue in business (Tr. II 259,  265-270, 330).

                          STIPULATIONS

     The parties agreed that:

1.  Faith was a contract operator for Tennessee Consolidated Coal
Company (TCC).

2.  Faith's contract with TCC was dissolved by mutual agreement
on September 30, 1993.

3.  Faith engaged in commerce.

4.  The Act applied to Faith's No. 15 Mine, and the Commission
had jurisdiction to hear and decide the cases.

5.  The inspectors who issued the subject citations and orders
were authorized representatives of the Secretary and were acting
within the scope of their authority when they inspected the mine.

6.  The mine has been abandoned temporarily since October 1, 1993
(See Tr. II  9-10).

                 CONTESTED CITATIONS AND ORDERS

Docket No. SE 92-316

Citation/
Order No.     Date        30 C.F.R.     Assessment
3395933       2/26/92     75.1808          $20

Citation No. 3395933 states:

          The approved books and records being maintained in the
          mine office on the surface were not stored in a fire
          proof repository to minimize their destruction by fire
          or other hazards (Joint Exh. 6).

     Inspector Clyde J. Layne testified that on February 26, 1992, he
went to the mine and found that none of the approved books and
records were kept in a fireproof structure as required by section
75.1808.  Rather, they were lying in the open, on a desk (Tr. III
519).  The mine office was housed in a metal "van-type truck
body" (Tr. III 520; See Joint Exh. 6A).  Layne considered the
outside of the truck body to be fireproof, but the inside of the
truck body was cluttered with combustible materials -- maps,
paper bags, cardboard items and mine record books.  Most of the
books and records on a desk were in the midst of the clutter (Tr.
III 522).  If a fire started, the books and records would have
burned (Tr. III 521-522).

     Grinding wheels and torches were located inside the truck body
(Tr. III 523).  Although the truck body did not contain a central
fire fighting system, there was a fire extinguisher at its rear.

     The office was used on an intermittent basis.  If a fire started
and the approved books and records burned, miners probably would
not have been endangered (Tr. III 525).  Although Faith was
negligent, Stockwell meant to correct the conditions that
resulted in the violation but had not gotten around to it (Id.)

     Faith abated the conditions by putting the books in an old, metal
refrigerator (Tr. III 526).  According to Layne, metal
refrigerators were used as fire proof repositories at several
other mines, and their use had been approved by the MSHA field
office supervisor (Id. 527-528).

     Stockwell did not disagree with the inspector's description of
the conditions.  However, he did not believe the conditions
constituted a violation.  He regarded the truck body as a
fireproof repository (Tr. III 529).

                          The Violation

     I  ruled from the bench that the violation existed as charged.  I
stated:

          [T]hat the building itself is fireproof may well be
          true, but ... even though [the] building is made of
          metal ... if [Faith's] records are kept inside ... and
          in such ... condition that they are subject to fire,
          they must be stored in a fireproof repository inside
          the ... building (Tr. III 530).

     I affirm the ruling.

                     Gravity and Negligence

     I also find, based upon Layne's testimony, that the violation was
not serious and that Faith was negligent in allowing the
violation to exist.

DOCKET NO. SE 92-343

Citation/
Order No.     Date        30  C.F.R.     Assessment
3396042       3/02/92     77.1104          $94

Citation No. 3396042 states:

          Accumulation[s] of combustible materials (loose wooden
          planks, and dry weeds) that could create a fire hazard
          had accumulated around the powder storage magazine on
          the surface (Joint Exh. 13).

     Clyde Layne testified that on March 2, 1992, he observed a powder
magazine sitting on wooden planks and surrounded by weeds.  Layne
believed that this condition was a violation of section 77.1104,
which prohibits accumulations of combustible materials where they
can create a fire hazard.  Layne also believed that two miners
were exposed to the hazard created by the conditions (Tr. III
538-539).

     Layne found the alleged violation to be a significant and
substantial contribution to a mine safety hazard (S&S) because
the powder storage magazine was located near the road to the mine
entrance and miners traveled along the road.  If the accumulated
combustible materials caught fire, they could heat the magazine
to the point where the powder could explode and miners could be
hurt (Tr. III 539, 545).  Such a fire could be started by a
forest fire, by lightning, or by a person flipping a cigarette
butt out of the window of a passing car (Tr. III 542-543).

     Layne did not know how long the conditions had existed.   Nor did
he know if his supervisor had told Stockwell that the location of
the powder magazine was acceptable (Tr. II 540-541).
Nonetheless, Layne believed Faith was negligent in allowing the
conditions to exist (Tr. III 539-540).

     According to Layne, the conditions were abated when Stockwell's
brother, James Stockwell, removed all of the planks and all of
the weeds from beneath and around the magazine (Tr. III 542,
544).

     James Stockwell testified that the magazine was installed on
March 1, 1992, the day before Layne cited Faith for the alleged
violation, and that Layne's supervisor had approved the location
of the magazine (Tr. III 548-549).  James Stockwell asked the
supervisor about the location of the magazine because he was
concerned it might be too close to a telephone pole.  According
to James Stockwell, the supervisor stated that there was nothing
wrong with the location (Tr. III 553).

     James Stockwell also stated that the magazine was located on the
side of a spoil bank and that a board was placed under it to
level the magazine (Tr. III 550-551).  The only "planting"
Stockwell remembered near the magazine was one pine tree,
approximately 10 feet away (Tr. III 552).

                          The Violation

     I find that a violation of section 77.1104 existed.  Although the
witnesses' testimony was in conflict regarding the vegetation
around the magazine, it is clear, as James Stockwell himself
testified, that at least one wooden board was underneath the
magazine.  This board was enough to establish an accumulation of
prohibited combustible material and the creation of a prohibited
fire hazard.

     Further, although I credit James Stockwell's testimony
regarding a conversation with Layne's supervisor concerning the
acceptability of the magazine's location, the conversation, as
recounted by James Stockwell, involved the location of the
magazine, not the board under it, and the conversation does not
impact the existence of the violation.

                         S&S and Gravity

     The violation was neither S&S nor serious.  The potential
ignition sources catalogued by Layne (forest fire, lightning or a
cigarette butt) were highly speculative.  I conclude there was no
reasonable likelihood of injury associated with the violation.

                           Negligence

     Faith was negligent in allowing the violation to exist.  It
knowingly used the wooden board to level the magazine.  The cited
standard is clear.  The circumstances required Faith to make sure
combustible material was not allowed in the immediate vicinity of
the magazine, and the company failed to meet its standard of
care.

Citation/
Order No.     Date        30  C.F.R.          Assessment
3396041       3/2/92      75.1713-7(a)(1)        $94

          The operator did not maintain the required supply of
          first-aid equipment at the mine work site.  The
          following items were missing; one stretcher and one
          broken-back board (Joint Exh. 12).

     During the course of Layne's testimony regarding the alleged
violation, it became apparent that the inspector had cited the
wrong standard.  He stated that he should have cited section
75.1713(a)(3), rather than section 75.1713-7(a)(1) (Tr. III 564).
Counsel for the Secretary moved to amend the citation to allege a
violation of section 75.1713(a)(3) on the grounds that there was
an "understanding between the inspector and the operator about
exactly which regulation was being violated" (Tr. III 565).
Stockwell objected.

     I denied the motion because I concluded there was confusion
between the inspector and the operator about the standard.  I
also concluded that because Stockwell prepared to defend against
the citation as written, it was too late to amend it.  As a
result, I indicated the citation should be vacated (Tr. III
567-568).  Nothing in the record convinces me I was wrong, and I
affirm the bench ruling.

Citation/
Order No.     Date        30  C.F.R.     Assessment
3396045       3/2/92      75.202(a)        $147

Citation No. 3396045 states in part:

          The spacing of roof bolts were not maintained on 5 feet
          centers located approximately 700 feet inby the ...
          portal in that several permanent roof bolts were spaced
          from 5 1/2 to 9 feet apart.  Approximately 7 bolts need
          to be installed in this area.

          This entry was driven by another operator and is being
          cleaned up to install a belt conveyor by the present
          operator.  The [a]pproved [r]oof [c]ontrol [p]lan
          requires permanent roof supports to be installed on 5
          feet by 5 feet [centers] (Joint Exh. 16).

     Layne testified that on March 2, 1992, he inspected an entry that
was being cleaned for the installation of a belt conveyor, he
observed an area of the roof were the spacing of roof bolts
exceeded the five foot limit specified in the roof control plan.
Several of the bolts were as much as 9 feet apart.

     Although the area was low and travel through it could only be
done if a person crawled, tracks on the floor indicated to Layne
that "people crawled through [the] area" (Tr. III 576, See also
Tr. III 564-572, 576, 577).

     When Faith took over the mine from the previous operator, the
area had been "gobbed out" and travel through it had been
impossible.  Faith's miners cleared away the gob material and
thereby made the area passable (Tr. III 594).  The roof bolts had
been installed by the previous operator.  Nevertheless, in
Layne's view, Faith became responsible for the condition of the
roof when it assumed control of the mine (Tr. III 570-571).

     To abate the condition, the roof bolting machine was moved into
the area and the required additional roof bolts were installed
(Tr. III 578).

     Layne believed that the alleged violation was S&S because a roof
fall accident "could be fatal" (Tr. III 582).   Layne also
believed that because the area had to be pre-shift examined prior
to miners working in it, the company should have known of the
existence of the improperly spaced roof bolts (Tr. III 379).
However, he acknowledged that it was possible for management
personnel to crawl through the area and to not see the improperly
placed roof bolts, many of which where on the sides of the entry
(Tr. III 582, 584).

     Stockwell did not dispute that the roof bolts were misplaced.
He also agreed that he had crawled through the affected area when
Faith started to rehabilitate the entry (Tr. III 600).
(Stockwell stated that he believed he was the only person who had
crawled through the area (Tr. III 603-604).)

     With regard to the general condition of the roof, Stockwell
stated that "it was not as good as we [thought]" (Tr. III 602).

                          The Violation

     To establish a violation of section 75.202(a), the Secretary
must prove that the affected area was a place where a person or
persons worked or traveled, and that the roof was not supported
to protect the person or persons from roof falls.  Here, the
Secretary has met his burden of proof.

     Layne believed that miners working to rehabilitate the entry,
traveled under the affected roof.  However, there also was
credible testimony that miners could have traveled in adjacent
intake and return entries rather than directly under the roof of
the area in question.  Given the low height of the entry at the
affected point and the fact that miners could have traveled in
the adjacent entries, I do not credit Layne's belief.  This is
especially true, because Stockwell offered a persuasive
explanation for the tracks on the floor of the area -- i.e., that
he crawled through the entry.

     In any event, since Stockwell himself traveled through the
affected area on at least one occasion and since Stockwell agreed
that the cited roof bolts were not spaced as required by the roof
control plan, I find that a violation of section 75.202(a)
existed.  The plan sets forth the minimum that is required to
support the mine's roof.  When, as here, an operator does not
meet a minimum requirement of the plan, it is reasonable to
conclude that the roof is not supported to protect miners, in
this case, Stockwell, from a roof fall hazard.

                         S&S and Gravity

     The Secretary did not establish the S&S nature of the violation.
The sole testimony offered by Layne regarding an injurious roof
fall was that a roof fall accident "could be fatal" (Tr. III
582).  On its own, Layne's opinion does not establish "a
reasonable likelihood that the hazard contributed to will result
in an injury" (Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984)).

     Nevertheless, this was a serious violation.  The fact that the
evidence established that only Stockwell crawled under the
improperly supported roof does not diminish its gravity.  The
roof did not meet the minimum roof support requirements which
means there was at least some likelihood that it would fall.  Had
it fallen on Stockwell, his death or serious injury almost
certainly would have resulted.

                           Negligence

     I also conclude Faith was negligent.  If reasonable care had
been exercised, the inadequately supported roof would have been
properly bolted before it came to Layne's attention.  As Layne
correctly observed, Faith was the operator and therefore was
responsible for the condition of the roof.  Faith's negligence is
mitigated to some extent by the fact that Faith did not install
the roof bolts, and by the fact that the area in question was not
subject to frequent visits by mine personnel.

Citation/
Order No.     Date       30  C.F.R.     Assessment
3396047       3/3/92     75.208            $88

Citation No. 3396047 states:

          A readily visible warning or a physical barrier was not
          installed on the end of the permanent roof support to
          impede travel beyond permanent support in the crosscut
          connecting the Nos. 2 and  3 working places on the 001
          section.  There was a distance of approximately 15 feet
          that was not support[ed] with roof supports (Joint Exh.
          19).

     Layne testified that on March 3, 1992, he inspected a connection
between two crosscuts.  The roof in the connection was not
supported for a distance of approximately 15 feet.  Indications
had not been placed at the end of the supported roof to warn
miners of the lack of support, nor had barriers been installed
(Tr. III 629, 633).  No miners were at work on the section when
Layne observed the condition.  However, Layne noticed that one
cut had been taken out of the face and that the loading machine
was parked approximately 40 feet outby the crosscut (Tr. III 630,
637-638).  This signified to Layne that miners recently had
worked on the section (Tr. III 630).

     There was no indication that miners had passed through the
crosscut.  Layne did not note any tracks on the floor under the
unsupported area (Tr. 630-631).

     Layne discussed the condition with Stockwell.  Layne stated that
Stockwell told him the equipment had been moved to the section
the previous day and that work had not yet begun on the section
(Tr. III 632).  Layne did not believe Stockwell because of the
"fresh" cut at the face.  (Id.).

     Layne found the alleged violation to be S&S.  Layne believed
miners would take for granted that the roof was supported (Tr.
III 632).  The lack of any warning device or barrier to impede
travel under the roof would reinforce this assumption.  If the
roof fell and hit a miner, the resulting injury would be "bad" or
"fatal" (Id.).

     Layne believed that Faith was negligent.  The lack of a warning
device or barriers should have been detected and corrected.
Equipment had been in the area.  The area had to be preshift
examined.  The condition was not noted in the preshift
examination book (Tr. III 635, 642-643).

     Stockwell maintained that the general area where the alleged
violation existed was not a work site prior to Layne's visit (Tr.
III 645).

                          The Violation

     I fully credit Layne's testimony.  It was consistent and
persuasive.  As Layne stated, the lack of support left 15 feet of
exposed roof.  There were no visible warnings of the end of
permanent roof support nor any type of barrier.  The standard
requires readily visible warning signs or barriers under such
conditions.  The violation existed as charged.

                         S&S and Gravity

     The inspector's testimony falls short of establishing the third
element of the Mathies test.  The obvious purpose of the standard
is to alert miners to stay out of areas where the roof is not
supported.  The discrete safety hazard contributed to by the
violation is that the roof will fall on miners who unexpectedly
venture under the unsupported roof.  Analysis under Mathies, as
further explained by the Commission in U.S. Steel Mining Company
Inc., 6 FMSHRC 1834, 1836 (August 1984), requires  the Secretary
to establish "a reasonable likelihood that the hazard contributed
to will result in an event in which there is an injury."  In the
context of a violation of section 75.208, the Secretary must
establish that because a sign or barrier is missing, miners will
be reasonably likely to proceed beyond permanent roof support and
be injured.

     I accept as fact that without a sign or barrier, miners will
reasonably likely believe the roof is supported when it is not,
and inadvertently, will proceed beyond permanent roof support.
However, to find it reasonably likely that miners will be
injured, the Secretary must offer some evidence regarding the
instability of the subject roof.

     Layne, without further amplification of what he meant, described
the roof as "fair" (Tr. III 633).  Also, he noted that the roof
lacked visible signs of stress (Tr. III 633).  Because the
Secretary did not offer any testimony regarding an inherent
instability of the roof in the area or any specific signs of
instability, I cannot find that the violation was S&S.

     Nevertheless, it was a serious violation.  As I have found,
without visible warning signs or barriers, miners would likely
proceed under the unsupported area and subject themselves to the
chance of death or serious injury.  As Layne persuasively
explained, they would assume the roof was supported properly (Tr.
III 632).

     In addition, Layne's testimony that work recently had taken place
at the face was credible and I accept it as fact.  Thus, miners
had been in the general vicinity of the unsupported roof and
easily could have been exposed to the hazard.

                           Negligence

     Faith was negligent.  The fact that miners had been working in
the general area required that the area be preshift examined.
The violation was obvious visually.  Faith should have known of
the existence of the unsupported roof and of the lack of visible
signs or barriers.  The condition should have been detected and
corrected.

                      Docket No. SE 92-463

Citation/
Order No.     Date       30 C.F.R.     Assessment
3024224       5/28/92    75.208           $88

Citation No. 3024224 states:

          The first crosscut on the left side of the No. 1 room
          had been advanced approximately 22 feet inby the last
          row of permanent supports, and the area was not posted
          with a visible warning or provided with a physical
          barrier to impede travel beyond permanent support
          (Joint Exh. 29).

     MSHA Inspector Tommy D. Frizzell testified that on May 28, 1992,
he found that mining had advanced approximately 22 feet inby the
last permanent roof supports in the No. 1 room, and that no
warning device nor barrier had been installed (Tr. II 276-277,
280).  (Frizzell was accompanied by Stockwell during the
inspection.)  Frizzell measured the unsupported area by tying a
tape measure to his hammer and throwing the hammer to the end of
the cut (Tr. II 287-288).

     The mined area was in "low coal" (i.e., 38 inch coal) (Tr. II
277, 287).  Because of the low coal, miners had to travel through
the area by "crawling with [their] head[s] down" (Tr. II 278).
The only light was from their cap lamps.  It was difficult for
miners to note the condition of the roof, and Frizzel therefore
believed the presence of a warning device or barrier was
necessary to alert miners to the fact they were approaching an
unsupported area.  (Frizzel stated that either a reflective
streamer or a barrier that blocked the entry would have been
acceptable (Tr. II 279-280).)

     Frizzell issued the citation at approximately 8:20 a.m.  The
shift had stated at approximately 6:00 a.m.  Frizzell believed
that the preshift examiner should have detected the lack of a
warning device or barrier (Tr. II 281).  He also believed that
equipment had proceeded under the unsupported roof because the
area had been cleaned.  In addition, he saw equipment tracks on
the mine floor and remote control equipment was not in use at the
mine (Tr. II. 279).

     Frizzell found the alleged violation was S&S.  The roof in the
cited area was "fair roof" and Frizzell could not detect any
"discontinuities" in it (Tr. II 281).  Nonetheless, he explained
that "[e]ven though the roof may look good on the surface ...
when you go inby roof supports you're just gambling"  (Tr. II
283).  He explained, "roof falls ... [are] the No. 1 killer in
the coal mine industry" (Tr. II 295).  Had a roof fall occurred
while a miner was inby permanent roof supports, the miner could
have been fatally injured (Tr. II 284).

     In Frizzel's opinion, the person most likely to have been injured
was the operator of a roof bolting machine, although any of the
seven or eight miners who worked underground were potential
targets of the hazard.  (Tr. II 284-285, 292).  Due to the low
height of the coal, canopies were not required on the roof
bolting machines and none were provided (Tr. II 297).

     A streamer was installed within 25 minutes to abate the condition
(Tr. II 286).

     Stockwell agreed that a streamer was not hanging at the beginning
of the unsupported area.  However, he maintained one was in a
place when he conducted the preshift examination at approximately
5:30 a.m. (Tr. II 298, 300, 303).  He stated that it was normal
practice at the mine to hang a streamer to warn of  unsupported
roof (Tr.  II 298-299).

                          The Violation

     As previously noted, the cited standard requires a visible
warning device or a physical barrier at the end of permanent roof
support.  The parties do not dispute that neither a device nor a
barrier was present.  Therefore, I find that the violation
existed as charged.

                         S&S and Gravity

     Again, I conclude the Secretary has failed to establish a
reasonable likelihood that the hazard would have contributed to
an injurious roof fall.  Frizzell's testimony regarding "fair
roof" and the lack of "discontinuities," does not afford a basis
for a finding of "reasonable likelihood," and the fact that roof
falls are the No. 1 killer of the nation's miners does not speak
to the specific circumstances upon which the violation is based.

     Nevertheless, the violation was serious.  Without a warning
device or barrier, a miner intent on entering the area easily
could have failed to recognize the lack of roof support;
especially since the coal was low.  Moreover, and as Frizzell
observed, had falling roof hit a miner, death or serious injury
could have been expected.

                           Negligence

     Faith was negligent.  The lack of a streamer or barrier was
obvious visually.  In failing to correct the condition, Faith
failed to exhibit the care required of it by the circumstances.

Docket No. SE 92-373

Citation/
Order No.     Date        30 C.F.R.     Assessment
9883375       4/13/92     70.208(a)       $50

Citation No. 9883375 states:

          The mine operator did not submit a valid respirable
          dust sample during the Feb[ruary]/March bimonthly
          sampling period from designated area sampling point
          [9]01-0 as shown on the attached advisory dated 4/7/92
          (Joint Exh. 27).

     Inspector Judy McCormick stated that Faith failed to submit a
valid respirable dust sample for the designated area of the roof
bolting machine for the bi-monthly period of February/March 1992
(Tr. III 654-655).  As McCormick explained, an operator is
responsible for collecting the required samples and for
submitting them to MSHA.  The operator also is responsible for
determining when, during the bi-monthly period, the samples will
be taken (Tr. III 656).  The samples must be mailed within 24
hours of collection.  MSHA allows seven days past the end of the
sampling cycle for the mail to process.  If a sample is not
received within 7 days (in this particular case, by April 7,
1992), a violation of the regulation is assumed to exist (Tr. III
671).  If a sample is received out of time, it is not considered
a valid sample (Tr. III 673).  McCormick stated that on April 8,
1992, she was advised by computer, that the subject sample had
not been submitted (Tr. III 665).

     Operators mail samples to MSHA.  McCormick described as "very
rare" those instances in which samples are lost in the mail (Tr.
III 657).  McCormick could not recall if Stockwell orally claimed
to have mailed the particular sample in question, but was certain
she had not received from him a written notification that it had
been mailed. (Tr. III 658).

     When asked about the procedures an operator could follow if a
sample sent by regular mail was lost, McCormick replied that the
operator had to file a lost mail claim with the postal service
(Tr. III 659).

     On cross examination, McCormick indicated that MSHA's records
showed a sample for the designated area was taken by Faith on
March 31, 1992, and was processed by MSHA on April 8, 1992.
However, the sample was discarded because it was invalid (Tr. III
670).  In McCormick's opinion, the alleged violation was largely
a "paper work violation," and she did not expect that any miners
would become ill because of it (Tr. III 660).

     Stockwell testified that the sample was late because he could not
get enough sampling devices from TCC.  Stockwell also maintained
that if Faith's sample had been received on April 7 rather than
April 8, 1992, "everything would have been fine" (Tr. III 675).

                          The Violation

     The violation existed as charged.  As McCormick's testimony made
clear, the violation was based upon the presumption that samples
received more than seven days after the end of the sampling cycle
were not collected in a timely fashion.  Counsel for the
Secretary stated, "There is a presumption that ... any sample
that is taken within [the] bimonthly sampling period, even if
it's taken on the last day, will get to the processing center and
through the processing [in] seven days ... and that's a perfectly
reasonable presumption" (Tr. III 676).

     I agree with counsel.  Given the fact that operators and MSHA
must rely on the postal service, the allocation of a seven day
"grace period" by the agency is a rational way to compensate for
any delay of the mail.  Faith did not offer any evidence to
rebutt the presumption.

                     Gravity and Negligence

     Based upon McCormick's testimony I find that the violation was
not serious, and that Faith was negligent.

Docket No. SE 93-348

Citation/
Order No.     Date        30 C.F.R.      Assessment
9883544       2/18/93     70.201(c)         $50

Citation No. 9883544 states in part:

          On January 28, 1993, the operator was notified in
          writing by the District Manager to submit in writing
          ... the dates and shifts that respirable dust sampling
          was to be conducted on each mechanized mining unit.
          The notification was required to be submitted by
          February 15, 1993.  This operator has failed to submit
          such notification (Joint Exh. 39).

     The citation was issued by Inspector Newell Butler.  Butler was
an inspector in the health group.  He worked under McCormick's
supervision.  McCormick stated that she approved issuance of the
citation, that she reviewed it before it was issued, and that she
had firsthand knowledge of the conditions leading to the
citation.  Therefore, McCormick was allowed to testify concerning
the alleged violation (Tr. III 684-685).

     According to McCormick, on January 28, 1993, all underground coal
mine operators in MSHA's Birmingham, Alabama, subdistrict, were
informed by letter that they were required to submit to the
subdistrict office a schedule for conducting respirable dust
sampling on their mechanized mining units.  The schedules were
required to be received by February 15, 1993, (Tr. III 686).  In
McCormick's opinion, 30 C.F.R. 70.201(c) authorizes the
subdistrict manager to request such a schedule.  (Section
70.201(c) states: "Upon request from the District Manager, the
operator shall submit the date on which collecting any respirable
dust samples required by this part will begin.")

     McCormick explained that MSHA needed to know the date when an
operator would begin sampling in order to monitor an operator's
sampling program.  McCormick described the letter of January 28,
1993, as a "standard letter" and stated that such letters usually
were mailed to operators every six months by certified mail,
return receipt requested (Tr. III 686).

     McCormick identified Joint Exhibit 39A as a copy of the
certified mail receipt from the letter that was sent to Faith.
The receipt was signed by Christine Stockwell, wife of Lonnie
Stockwell, but was not dated.  McCormick stated that the person
receiving the certified mail was supposed to fill in the date
(Tr. III 688, 690).  The receipt was returned to the MSHA
subdistrict office in Birmingham on February 22, 1993, (Joint
Exh. 39A at 4; Tr. III 690).

     McCormick testified that when no schedule was received from
Faith, the citation was issued (Tr. III 687).  McCormick did not
believe miners would suffer illness as a result of the alleged
violation.  She maintained that Faith was negligent in failing to
file a response with the subdistrict office (Tr. III 691-692).

     Stockwell testified that if he had received the January 28 letter
within a reasonable time, he would have had "plenty of time" to
respond (Tr. III 693).  He stated that he believed the letter was
picked up on February 13, 1993, and that he did not have the
information needed.  He agreed however, that the letter could
have been at the post office for several days before it was
picked up (Tr. III 694).

                          The Violation

     As noted, section 70.201(c) requires an operator to submit a
respirable dust sample collection schedule upon the request of
the district manager.  Stockwell does not dispute the fact that
Faith did not timely comply with the district manager's request.
The violation existed as charged.

                     Gravity and Negligence

     McCormick's testimony regarded the non-serious nature of the
violation was not disputed, and I credit it.

     I also find that Faith was negligent in failing to timely comply
with the letter of January 28.  The fact that Stockwell had to
pick up certified mail at the post office, and the fact that he
and his wife had to leave their work early in order to do so, is
irrelevant (See Tr. III 396-397).  As a mine operator, Stockwell
was on notice that the agency would mail communications to him by
registered mail.  It was his duty to make certain that the mail
was received by Faith in a timely fashion and that the company
made a timely response.  Faith was negligent in failing to meet
the duty.

                      Docket No. SE 93-365

Citation/
Order No.     Date        30 C.F.R.      Assessment
9883549       3/4/93      70.100(a)        $119

Citation No. 9883549 states in part:

          Based on the results of 5 samples ... the average
          concentration of respirable dust in the working
          environment of mechanized mining unit (MMS) I.D. [No.]
          001-0 was 6.3 mg/m 3 of air.  The operator shall take
          corrective action to lower the concentration of
          respirable dust to within the permissible limit of 2.0
          mg/m 3 and then sample each production shift until 5
          valid samples are taken (Joint Exh. 46).

     Judy McCormick testified that the citation was issued when the
results of five samples submitted by Faith for the working
environment of a mechanized mining unit revealed an average
concentration of 6.3 milligrams per cubic meter of air.  The
cited standard requires the operator to maintain an environment
of 2.0 milligrams or less (Tr. III 698).

     McCormick explained that after an operator submitted required
respirable dust samples to MSHA, the agency analyzed the samples
and advised the Birmingham subdistrict office of the results of
the analysis by a computer message.  If the results indicated
that the respirable dust concentration was above the permissible
limit, a citation was issued (Tr. III 668-669).  Here, the
results indicated that the miner operating the coal drill had
been exposed to an impermissible concentration of respirable dust
(Tr. III 699).

     McCormick also stated that had any of the results indicated that
the samples were contaminated or improperly analyzed, she would
have called the MSHA laboratory and asked personnel to check the
samples.  In this instance, where there was one sample result
that was inordinately high, she believed she had followed her
normal procedures and called the laboratory, but she could not
specifically recall having done so (Tr. III 702-703, 708).

     McCormick thought the violation was S&S because of the
presumption that exposure to respirable dust in excess of the
standard can result in the contraction of pneumoconiosis (Tr. III
704).  McCormick also found the alleged violation was the result
of negligence on Faith's part (Tr. III 707).

     The violation was abated when Faith submitted five samples that
revealed an average concentration of 1.6 milligrams of respirable
dust per cubic meter of air (Tr. III 705).

     Stockwell maintained that the sample McCormick thought was
inordinately high showed such an "extreme difference" that
"somewhere someone should have picked up and followed up on it to
see what was going on" (Tr. III 712).

                          The Violation

     Judy McCormick was a professionally competent and responsive
witness.  I credit her statement that if a sample showed an
average concentration of over 5.0 milligrams per cubic meter of
air her practice was to call the MSHA laboratory to inquire about
the sample (Tr. III 708).  Given the number of sample results
that were subject to McCormick's review, I do not find it
remarkable she could not remember if she called about the
particular sample in question.  However, I infer from her
testimony that she did follow normal procedures and that she was
advised nothing was amiss with regard to the sample in question.
I therefore conclude that the samples were valid, analyzed
properly and that the violation of section 70.100(a) existed as
charged.

                         S&S and Gravity

     As McCormick accurately stated, the violation was S&S
(See Consolidation Coal Co.,. 8 FMSHRC 890 (June 1986), aff'd
824 F. 2d 1071 (D.C. Cir. 1987).  Overexposure to respirable dust
leads to pneumoconiosis, which in turn leads to disability and
death. Thus, the violation also was serious.

                           Negligence

     I agree with McCormick that Faith was negligent.  In places where
miners normally are required to work or travel, it is the duty of
the operator to maintain the average concentration of respirable
dust to which each miner is exposed at or below 2.0 milligrams
per cubic meter of air.  Faith failed to meet this duty.

                       Docket No. SE 94-96

Citation/
Order No.     Date        30 C.F.R.     Assessment
9883661       10/14/93    70.208(a)       $50

Citation No. 9883661 states in part:

          The mine operator did not submit a valid respirable
          dust sample during the Aug[ust]/Sept[ember] bimonthly
          sampling period from designated area sampling point
          901-0 (Joint Exh. 59).

     McCormick testified that she issued the citation because Faith
failed to submit a respirable dust sample for the area in which
the roof bolting machine operator was working during the
referenced bi-monthly period.  The sampling procedure that Faith
should have followed was the same as that she had described with
respect to Citation No. 9983375 (infra) (Tr. III 717-718).

     McCormick was advised by counsel that Faith's defense to the
citation was that mining had ceased in September 1993, and she
was asked if she knew if the mine was producing coal during the
August/September bi-monthly sampling period.  McCormick replied
that "the computer had not been notified in any way that the mine
was not producing" (Tr. III 718).  Rather, MSHA was notified the
mine had ceased production after the sampling cycle passed, that
is, after September (Tr. III 719).

     McCormick explained that normally an operator notified the
appropriate MSHA field office by telephone when a mine ceased
operation and followed up the telephone call with a letter to the
appropriate MSHA district manager.  The letter is required by 30
C.F.R.  70.220(a) (Tr. III 719, 721-722).  If Stockwell had
called her office and stated that the mine was closed or closing,
a message would have been left on her desk.  She neither spoke
with Stockwell nor received such a message (Tr. III 721).

     The alleged violation was abated on November 29,1993.  It was
around that time MSHA was notified the mine had gone into a
non-producing status (Tr. III 722).

     In McCormick's view, there was a violation of the cited standard
because "the entire sampling cycle of August and September was
worked by the operator without collecting a dust sample" (Tr. III
720).  McCormick did not consider the violation to be S&S.  She
did believe it was due to Faith's negligence (Tr. III 723).

     Stockwell testified that the mine was shut down a few days before
the end of September 1993.  He stated that after production
ceased, MSHA inspectors McDaniels and Layne came to the mine to
conduct an inspection.  He told the inspectors that the mine was
not producing coal and that he would no longer be conducting
bimonthly sampling.  He asked the inspectors to "take appropriate
action to take care of it" and they told them that they would
(Tr. III 728).

     Stockwell also stated that he called McCormick's office and spoke
with a woman, whose name he did not know.  He left a message for
McCormick about the mine ceasing production (Tr. III 728-729).
Stockwell never wrote a letter to MSHA to report the mine had
closed (Tr. III 729).

                          The Violation

     MSHA charged a violation in this case because it assumed that
production was ongoing during the entire bimonthly sampling cycle
(Tr. III 720).  The basic premise of Faith's defense was that if
it established production ceased before the end of the sampling
cycle, a violation would not have existed.

     While I agree there would have been no violation if production
ended on or before September 30, I find that the defense was not
established.  As McCormick noted, section 70.220(a) requires an
operator to report a change in the operational status of the mine
to the MSHA District Office within 3 working days after the
change occurs.  Although the regulation does not state how
notification is to be accomplished, the agency's Program Policy
Manual(PPM) states that the notification must be in writing (V
PPM 15).  This is a reasonable interpretation of the regulation
and an operator is bound by it.

     Stockwell admitted he did not advise MSHA in writing that
production had ceased and there is no evidence beyond Stockwell's
self-serving assertion to confirm that the mine ceased production
before the cycle ended.  Accordingly, I find that the violation
existed as charged.

                     Gravity and Negligence

     Faith does not dispute McCormick's testimony with regard to the
gravity of the violation, and I find that it was not serious (Tr.
III 723).  Based on McCormick's testimony I find also that Faith
was negligent (Tr. III 723).

Citation/
Order No.     Date         30 C.F.R.     Assessment
9883662       10/14/93     70.208(a)        $50

     The parties stipulated that the testimony given with respect to
Citation No. 9883661 would apply to Citation No. 9883662 (Tr. III
725-726).

                          The Violation

     On the basis of the stipulation I find that the violation existed
as charged.

                     Gravity and Negligence

     On the basis of the stipulation I find that the violation was not
serious and that Faith was negligent.

                      Docket No. SE 92-464

Citation/
Order No.     Date        30 C.F.R.      Assessment
3024223       5/27/92     77.402            $88

Citation No. 3024223 states:

          Two hand-held electric (110 volt AC) drills and one
          hand-held electric grinder observed in the shop were
          not equipped with controls requiring constant pressure
          by hand or finger to operate the tools in that the
          controls were equipped with locking devices (Joint Exh.
          30).

     Frizzell stated that on May 27, 1992, he observed two hand held
electric drills and one electric grinder at the mine.  The
equipment was located on the surface.  The drills and grinder
were equipped with trigger locks.  (He explained that a trigger
lock was one that "if you lock the trigger down, [the equipment
will] continue to drill or to grind ... without any pressure
being applied by the finger" (Tr. II 305)).  Frizzell believed a
violation of section 77.402 existed because the standard requires
hand-held power tools to be equipped with controls that require
constant hand or finger pressure to operate or to be equipped
with equivalent safety devices (Id.).  According to Frizzell, the
regulation prevents a drill that gets stuck or "hangs" while
drilling into a surface from twisting and breaking the drill
operator's finger or arm (Tr. II 306-307).  Also, if the drill is
dropped, the regulation prevents the drill from continuing to
operate and from drilling into the operator's body (Tr. II 316).
Frizzell found the alleged violation to be S&S (Joint Exh. 30).

     Frizzell observed the equipment lying on a bench.  He did not
recall operating the equipment (Tr. II 318).  However, he picked
up the drills and the grinder, tested the locking devices, and in
each instance found that the devices were capable of being
engaged (Tr. II 309, 311).  Although he did not see anyone using
the equipment, the equipment was not tagged-out, and Frizzell
believed anyone could have picked up and use the drills and
grinder at any time (Tr. II 309-310).

     Frizzell explained to both James Stockwell and Lonnie Stockwell
that trigger locks were not permitted, and neither corrected him
or said that the trigger locks were not present (Tr. II 320-321).

     Because the locking devices were obvious, Frizzell believed that
Faith's management should have known of their presence, and that
Faith was negligent in allowing them to exist.

     Stockwell testified that Frizzell was mistaken, that what
Frizzell thought were trigger locks, were not.  Because his
brother had a hot temper, Stockwell did not try to explain to
Frizzell that the drills and grinder were not in violation of the
standard (Tr. II 315, 324).  Rather than have his brother and the
inspector get into a heated disagreement, Stockwell defused the
situation by removing the equipment from the property.

                          The Violation

     Section 77.402 prohibits locking devices by requiring that hand
held power tools be operated through constant hand or finger
pressure.  I credit Frizzell's testimony that the power drills
and the grinder were equipped with locking devices.  Further,
despite Stockwell's avowal that he "trie[d] with all the strength
within [him] to avoid confrontations," it seems highly unlikely
to me that he would have accepted a violation he was certain was
erroneous (Tr. II 327).  I conclude therefore, that the violation
existed as charged.

                         S&S and Gravity

     The Secretary did not establish that the violation was S&S.
Frizzell did not testify about the circumstances under which the
equipment was used and the frequency with which it was used.  He
did not testify regarding similar violations that had lead to
injuries.  I can not draw any conclusion from the record
regarding the likelihood of injury, and I therefore, can not find
the violation was S&S.

     Nevertheless, the violation was serious.  Frizzell persuasively
explained that without pressure sensitive controls, the drills
could twist and pose a risk to fingers and hands.  He also
testified that without such controls, it was possible a drill
operator inadvertently could drill into himself or herself (Tr.
316-317).  I accept his testimony regarding the gravity of the
violation.

                           Negligence

     In failing to ensure that the trigger locks on the cited
equipment had been rendered dysfunctional, Faith failed to meet
the standard of care required by the circumstances.  Therefore, I
find that Faith was negligent.

                       Docket No. SE 94-42

Citation/
Order No.     Date        30 C.F.R.       Assessment
3202273       7/22/93     75.324(a)(2)      $412

Citation No. 3202273 states:

          The fan house was not provided with air-lock doors to
          prevent the ventilation being disrupted when equipment
          is taken through the single explosion door.  Equipment
          and mantrips enter the mine through the door at regular
          intervals and the ventilation is short-circuited (Joint
          Exh. 58).

     Air lock doors to a mine fan house are designed to protect  a fan
mine and a ventilation system in the event of an explosion  in
that they stop the force of a blast from affecting the fan and
from disrupting ventilation (Tr. II 339).  Frizzell testified
that the fan house for the No. 15 Mine was located on the
surface, just outside the portal.  There was only one door to the
fan house.  There were no air lock doors.  Therefore, each time
the door was opened, the main ventilation of the mine was
short-circuited and 30,000 cubic feet of air per minute (CFM)
escaped into the atmosphere (Tr. II 339-340).

     When Frizzell issued the citation, the fan house door had been
left open.  Frizzell noted that it also was opened every time
equipment or a person passed through it (Tr. II 341-342).
Frizzell originally believed the condition represented a
violation of 30 C.F.R.  75.333(d)(3).  The standard requires
doors that are used to control ventilation within an aircourse to
be installed in pairs to form an airlock.  However, he modified
the citation to allege a violation of section 75.324(a)(2)
because opening the fan house door affected mine ventilation by
at least 9,000 CFM (Tr. II 343).  Frizzell regarded the opening
of the door to be an intentional change of ventilation and stated
that Stockwell was the person designated to make such changes at
the mine (Tr. II 366).

     Frizzell found that the alleged violation was S&S.  He believed
that Faith seldom conducted mining with more than 10,000 or
11,000 CFM at the last open cross cut.  Thus, a loss of 30,000
CFM when the fan house door was open left less than the required
9,000 CFM at the last open crosscut (Tr. II 340, 348, 356-357).
He also feared that because of the loss of ventilation coal dust
could accumulate underground and/or low levels of oxygen could
build up (Tr. II 348-349).

     Frizzell did not know how long the fan house had lacked air lock
doors (Tr. II 351).

     Frizzell cited the violation on July 22, 1993.  He gave Faith
until August 5, 1993 to abate it.  When no action was taken by
August 30, 1993, he issued a withdrawal order for failure to
abate (Tr. II 351-352; Joint Exh. 58 at 4).

     On cross examination, Frizzell agreed that the fan could generate
as much as 60,000 CFM (Tr. II 357).  Despite this, he maintained
that, if 30,00 CFM were lost, there was no guarantee that 9,000
CFM would reach the last open cross cut (Tr. II 367).

                          The Violation

     I conclude that the Secretary did not establish a violation of
section 75.324(a)(2).  The standard requires that a person
designated by the operator, supervise any intentional change in
ventilation that affects the section ventilation by 9,000 CFM.
Therefore, in order to prove a violation, the Secretary must
show, among other things, that a change in ventilation affects
section ventilation by 9,000 CFM or more.

     Frizzell took no air measurements on the section.  While his
testimony establishes that 30,000 CFM was lost at the fan house
when the door was opened, his belief that this invariably
resulted in a loss of 9,000 CFM at the last open cross cut or in
less than that amount was entirely speculative.  In fact, the
Secretary offered no substantive evidence regarding the change in
section ventilation when the door was opened.

     While it is possible to establish a violation on the basis of a
reasonable inference, there are too may imponderables to permit
such an inference here.  For example, and assuming that Stockwell
did not supervise the ventilation changes when the door was open,
while Frizzell knew the amount of air that was being lost at the
fan house, he did not know for certain the amount that entered
the mine, let alone the amount that reached the section.
Clearly, the amount was diminished when the door was open, but
whether the diminution "affected the section ventilation by 9,000
[CFM]" (30 C.F.R.  75.324(a)(2)) is a question that cannot be
answered on the basis of this record.

Citation/
Order No.     Date        30 C.F.R.     Assessment
3024817       3/22/93     75.220           $88

Citation No. 3024817 states:

          The roof control plan was not compatible with the
          equipment that was being used in that the cutter bar
          was 11 feet long and the roof bolter could only roof
          bolt to within 2 feet of the face.  The loading
          controls of the loading machine were 10'6" from the
          gathering head of the machine.  This would create an
          opening of 13 feet from the last row of roof bolts when
          the place was cleaned up with the loader.  The controls
          of the loader would be 2.6 feet outby the last bolts
          (Joint Exh. 56).

     MSHA inspector Billy Layne explained that prior to the
introduction of automatic temporary roof support systems (ATRS)
on roof bolting machines, it was possible to install roof bolts
up to the face.  However, once the machines were equipped with
ATRS, they could only bolt to within two feet of the face.  The
roof control plan at the mine was adopted by Faith prior to
Faith's acquisition of a roof bolting machine with an ATRS (Tr.
II 468-470).

     The bar on the cutting machine used at the mine took an 11 foot
cut.  Therefore, when the face was mined, the cut of 11 feet,
plus the two feet where the bolting machine had been unable to
bolt during the previous mining cycle, created an unsupported
area of 13 feet.  The approved roof control plan stated, "The
operating controls of the loading machine shall not advance inby
the last row of roof bolts" (Joint Exh. 54A at 12; See Tr. II
474-475).  The controls of the loading machine were 10 1/2 feet
from the gathering head of the machine.  This meant that the
loading machine operator had to proceed under unsupported roof to
do his or her job (Tr. II 471-474, 475).  (Layne explained that
when he wrote in the body of the citation that the controls of
the loading machine would be "outby" the last row of roof bolts,
he really meant "inby" (Tr. II 475-476, 492).)

     Layne did not see the loading machine in operation when its
operator was inby the last row of roof bolts (Tr. II 478).
Therefore, he did not see the loading machine operator acting in
violation of the roof control plan.  Accordingly, Layne described
the violation as "hypothetical" (Tr. II 478, 493).  Layne stated
further that the violation would not have existed if cutting
machine operators limited the depth to which the bar undercut the
coal (Id.)

     Layne described the mine roof as consisting of "real fragile
shale" and laminated sandstone (Tr. II 479).  He did not consider
it to be "real good roof" (Id.).  Any time a miner proceeded inby
the last row of roof bolts, the miner created a hazard to himself
or herself.  Here, the roof could have fallen and the miner could
have been injured seriously or killed (Tr. II 483).

     Layne also believed Faith was negligent in allowing the violation
to exist (Tr. II 485).

     Stockwell stated that although it was "possible" for a loading
machine operator to be under unsupported roof, he did not think
it was "very likely" (Id.).  According to Stockwell, it was mine
practice to hang streamers at the last row of roof bolts.   When
an equipment operator reached that point, he or she would be
warned not to proceed (Tr. II 506-507).  Stockwell stated he told
operators they would be fired if they operated equipment inby
permanent roof supports.  He never observed an operator doing so
(Tr. II 507).

     The citation was abated when Faith removed the loading machine
from its roof control plan.  Effectively, it agreed to no longer
use the machine for clean up work (Tr. II 504-505).

                          The Violation

     Section 75.220 requires that each mine operator develop and
follow a roof control plan.  Once the plan has been approved by
MSHA and has been adopted by the operator, provisions of the plan
must be followed as though they were mandatory safety standards.
Here, the provision of the plan that was allegedly violated
required Faith to ensure that the operating controls of the cited
loading machine not advance beyond the last row of roof bolts
(Joint Exh. 54A at 12).

     As Layne candidly stated, he did not observe the loading machine
operated with its controls positioned inby the last row of roof
bolts (Tr. II 478).  Rather, he premised the violation upon his
belief that the equipment operator had to proceed under
unsupported roof in order to load coal after it had been cut (Tr.
II 475).

     The Secretary need not prove the existence of a violation by the
testimony of a person who observed it.  As has been noted
previously, the Secretary may establish a violation by inferences
derived from circumstantial evidence -- for example, tire tracks
or foot prints may prove that equipment or persons went beyond
permanent roof support.  However, the inferences must be
inherently reasonable and there must be a rational connection
between the evidentiary facts and the ultimate fact to be
inferred.  Garden Creek Pocahontas, 11 FMSHRC 2148, 52-53
(November 1989).

     Here, the problem is that the facts from which the violation is
to be inferred do not invariably lead to a conclusion that the
operating controls of loading machine proceeded inby the last row
of roof bolts.  Layne agreed the equipment's controls would not
have proceeded beyond the last row of roof bolts if the depth of
the undercut was limited, and there was no testimony to establish
that Faith's practice was to fully undercut the coal.  If such a
practice existed, it is reasonable to assume the testimony of
miners who had worked for Faith would have been helpful to the
Secretary, yet he called no such witnesses to testify.  Further,
Stockwell's contention that he never had seen a scoop operated
inby permanent supports was not refuted or otherwise challenged.

     Weighing all of this, I conclude that although the Secretary
proved a violation was possible, proof of a possibility did not
meet his burden.

                       Docket No. SE 93-78

                      Contested Violations

Citation/
Order No.     Date        30 C.F.R.      Assessment
3024472       8/19/92     75.203(a)         $50

Citation No. 3024472 states:

          The method of mining on the 001 section exposed miners
          to hazards caused by excessive width in a crosscut
          between the No. 2 and No. 3 entries.  The crosscut was
          driven from 21[feet] to 26 feet wide for 20 feet.  The
          widest point was 26 feet.

          The operator had installed timbers and cribs in the
          area for additional support (Joint Exh. 31).

     The parties stipulated that the distances recorded on the
citation were correct.  The parties also agreed that Faith had
installed sufficient roof support by the time the inspector
arrived to narrow the roof over the crosscut to permissible
limits.  In other words, at the time the citation was issued, the
crosscut was not "excessively wide" (Tr. II 379).

     MSHA inspector Johnny McDaniel testified that a violation existed
because the roof strata had been weakened when the roof was cut
excessively wide and that although supplemental roof supports had
been installed, the citation would impress upon the an operator
the need to keep entry widths to allowable distances (Tr. II
381-382).  In McDaniel's view, there was a violation the minute
the entry was cut too wide.  The addition of the posts to support
the roof rectified the hazardous condition but did not vitiate
the violation.

     Stockwell maintained that during advance mining it was virtually
inevitable that an entry would be cut wide, and if the excessive
width was timely corrected by setting posts or installing other
roof supports, there was no violation (Tr. II 389).  I tend to
agree with Stockwell, but I need not reach this defense because I
conclude the Secretary has not otherwise met his burden of proof.

     In pertinent part, the cited standard requires that mining
methods not expose any person to hazards caused by excessive
widths of crosscuts.  To establish a violation, in addition to
proving excessive widths, the Secretary must prove that a person
was exposed to a hazard from roof weakened by those widths.
Here, the crosscut was cut excessively wide for a distance of 20
feet; and I accept McDaniel's testimony that cutting the crosscut
excessively wide weakened the roof strata and created a hazard.
However, there was no testimony upon which to base a finding that
any person was exposed to the hazard, and without evidence of
exposure, I cannot find the Secretary proved the alleged
violation.

     I cannot assume equipment operators were exposed to the
excessively wide roof without testimony regarding the distance of
the inby end of the equipment from its operator's compartment
when the cutting and cleanup operations were in progress.  Nor
can I assume that miners who set the posts were exposed to the
hazard.  There was no testimony regarding the practice of setting
posts under such circumstances.  It may be, for example, that
miners worked from behind temporary roof supports.  Finally,
there was no testimony that miners were exposed to the hazardous
roof after the crosscut was driven, but before the posts were
set.

Citation/
Order No.     Date        30 C.F.R.        Assessment
3024476       8/27/92     75.1107-16(b)       $50

Citation No. 3024476 states:

          A rubber-tired mine tractor ... was not provided with a
          fire suppression device in proper operating condition
          and in accordance with the requirements in National
          Fire Code 17 ... one of the two actuating bottles had
          been punctured, or the air seal broken (Joint Exh. 33).

     McDaniel testified that the fire suppression system on the cited
mine tractor was of the dry chemical type.  The system included
two bottles ("actuating bottles") that contained compressed air.
The bottles were interconnected with a chemical container.  To
use the system, a pin was driven into a metal seal inside an
actuating bottle.  The seal was punctured and the air within the
bottle was expelled, spreading a fire suppressing chemical (Tr.
II 393, 402).  The actuating bottles were installed at different
locations on the tractor so that they could be quickly activated
if the need arose.  (Tr. II 403).

     McDaniel found that one of the bottles on the tractor was
useless.  There was a hole in the seal and the compressed air had
escaped (Id.).  With one bottle useless, the fire fighting system
was compromised (Tr. II 394, 397).

     Fire suppression equipment must be examined on a weekly basis,
and McDaniel believed Faith should have known of the violation
because the punctured bottle was obvious visually.  However,
McDaniel did not know how long the bottle had been punctured (Tr.
II 395).  He agreed the bottle's seal could have been punctured
between required examinations (Tr. II 397).

     The person most likely to be endangered by the lack of a fully
operative fire suppression system was the operator of the tractor
(Tr. 398).

                          The Violation

     Section 75.1107-16(b) requires that each fire suppression system
be tested and maintained in accordance with the requirements in
the National Fire Code (NFC).  According to McDaniel, the
pertinent part of the code violated was NFC No. 17; Subsection D.
Subsection D requires, in part, that the amount of expellent gas
for dry chemical systems be checked to ensure that "there is
enough to provide an effective discharge" (Joint Exh. 33A).
Obviously, this means the system must be maintained to provide an
effective discharge of chemicals.

     I agree with counsel for the Secretary that the fact the system
came with two actuator bottles means both bottles had to be
maintained in operative condition to have an "effective
discharge" of chemicals.  As counsel stated, "both bottles in the
system had to be maintained to have [the system] operate as
designed" (Sec. Br. 72).  I conclude therefore that the violation
existed as charged.

                     Gravity and Negligence

     This was not a serious violation.  As McDaniel stated, the system
retained at least part of its original capacity to fight a fire
(Tr. II 394, 397).  In addition, the testimony did not establish
any conditions associated with the violation that would have made
a fire likely.

     McDaniel could not say how long the actuator had been punctured.
He agreed it could have happened between the required inspections
of the system (Tr.  397).  I conclude therefore that Faith's
negligence in allowing the violation to exist was low.

                      Docket No. SE 94-256

Citation/
Order No.     Date        30 C.F.R.     Assessment
3202337       6/07/93     75.313          $50

          The methane monitor on a scoop loader ... used to load
          coal (one of two scoops on the 001 section) would not
          operate.  The operator stated the unit was "jumped" out
          to permit the machine to operate.

          The operator stated that the monitor stopped working
          after he removed it from loading coal; however it was
          observed loading and hauling coal shortly before it was
          examined (Joint Exh. 62).

     McDaniel testified that the methane monitor on one of the two
scoops used on the 001 Section was not working.  He tested the
monitor by using its test control.  When he twisted the test
button, the machine would not deenergize.  Prior to testing the
machine, McDaniel saw it loading two cars of coal (Tr. II 413).

     McDaniel stated that after he saw the scoop operating and after
he tested its monitor, Stockwell arrived on the section.
McDaniel spoke with Stockwell about the monitor.  Stockwell
explained that it had been "jumped out" (Tr. II 415, 418).  (When
a methane monitor is "jumped out," the monitor's shut off
mechanism is bypassed electrically to allow the machine to
operate regardless of methane (Tr. II 415-416).)  To the best of
McDaniel's recollection, Stockwell took the scoop to the surface
after discussing the monitor with McDaniel.

     McDaniel acknowledged that a methane monitor was a "very
delicate" piece of equipment and that it was "easy for it go
down" (Tr. II 418, 419).

     Normally the No. 15 Mine does not liberate methane and no methane
was detected at the time the violation was cited.  When methane
was liberated, it was in "very small quantities" (Tr. II 419).

     Stockwell testified that he "jumpered out" the monitor because he
was going to use the scoop as a means of transportation.  He
maintained the only time the methane monitor had to be working
was when the scoop was loading coal.  Stockwell also asserted
McDaniel could not have tested the methane monitor by turning a
knob because the monitor had a test button (Tr. II 428).  Or, if
McDaniel did test the monitor, he did so after Stockwell brought
the scoop into the mine as a means of transportation, not when it
was used to load coal (Tr. II 426).

                          The Violation

     I conclude that the Secretary has not established a violation of
section 75.313.  The standard cited relates to mine fan stoppages
when persons are underground.  The citation was issued because
the methane monitor on the loading machine was inoperable.  30
C.F.R.  75.342(a)(1) requires methane monitors to be installed
on all loading machines and section 75.342(a)(4) requires that
once installed, the monitors be maintained in permissible
condition.

     The citation does not charge a violation of section 75.342(a)(4).
It is an axiom of due process that a respondent must be advised
correctly of the standard it is alleged to have violated.  When
the citation is defective, it must be modified to reflect the
proper standard, or it must fail.  Here, the citation was not
modified.

     Finally, I note the Secretary's contention that Stockwell's
testimony that he intentionally bypassed the methane monitor
should result in a post-hearing finding of unwarrantable failure
(Sec. Br. 150).  Given the defective citation, I need not reach
the issue.  I observe, however, that if the correct standard had
been cited, I would not have found unwarrantable failure.  The
original citation did not charge unwarrantable failure and Faith
was not given notice that such an allegation was at issue.

                        Docket No. 93-365

Citation/
Order  No.     Date        30 C.F.R.     Assessment
3024810        3/16/93     75.1722(a)      $88

Citation No. 3024810 states:

           The No. 2 belt drive was not suitabl[y] guarded in
           that chicken wire was being used to guard the moving
           parts of the belt drive (Joint Exh. 48).

     On March 16, 1993, MSHA inspector Billy Layne observed that
chicken wire was used to guard the No. 2 belt drive.  The wire
was not mounted on a frame.  The guard was "just wired up" at the
top (Tr. II 445, 454).  The wire was located four to six inches
away from the moving parts of the belt drive (Tr. II 457).

     If the wire had been framed, it might have been acceptable  as a
guard because it would have been stable enough to keep a person
from pushing into the belt drive (Tr. II 446).  However, given
the way the chicken wire was installed, Layne believed it "would
take no effort to get it into the moving parts" (Tr. II 450).

     Layne stated that the discharge roller of the belt drive was
turning.  The roller was located approximately four and one half
feet off of the mine floor.  In addition, there were other moving
parts at various heights ranging from between 12 inches to four
and one half feet off the floor (Tr. II 440-441).

     Usually, the area around the belt was wet, but in this instance,
the belt had not been operating long and the area was dry.  In
addition, the floor was level (Tr. II 442).

     Layne testified that the belt had been installed recently (Tr. II
443-444).  Layne was certain it was not in place when he
conducted a "pre-opening" inspection of the mine (Tr. II 445).
To the best of Layne's recollection, the condition was abated
when Faith built a metal frame and secured the wire to the frame
(Tr. II 447, 451).

     Layne regarded the violation as S&S because belt drives have to
be cleaned and without adequate guards, miners doing the cleaning
can become caught in the belt drive mechanisms.  Normally, only
one person is assigned to clean around a belt drive (Tr II 450).

     Layne was of the opinion that many of the fatalities that occur
in coal mines involve inadequate guards at belt drives (Tr. II
447).  He testified that in addition to being killed by belt
drives, miners have had limbs severed or broken (Tr. II 447-448).
Here, the particular danger presented by the lack of an adequate
guard was that a miner would stumble and fall toward the pinch
point of the belt drive and the chicken wire would not keep the
miner from falling into the pinch point (Tr. II 456).

     Layne believed Faith should have known of the inadequate guard,
but he also recognized that the belt was newly installed, and he
speculated that Faith might not have had time to make certain the
guard met the standard's requirements (Tr. II 448-449).

     Stockwell maintained that a few days before the inspection,
another MSHA inspector had not found the guard to be out of
compliance (Tr. II 460).  In addition, he believed that when
Layne saw the belt drive, the chicken wire was nailed to a wooden
frame (Tr. II 461).  Stockwell admitted, however, that he was not
at the belt drive when Layne cited the violation (Tr. II 464).

                          The Violation

     Section 75.1722(a) requires that drive and takeup pulleys  "which
may be contacted by persons, and which may cause injury," shall
be guarded.  The evidence establishes that the requirements of
the standard were not met.

     I accept Layne's testimony that the chicken wire was not secured
at the bottom of the drive.  Layne saw the belt drive and the
"guard" on March 16, 1993.  Stockwell did not.  I also accept
Layne's opinion that the pinch point on the belt drive could be
contacted.  As Layne testified, any miner who stumbled or fell
against the unsecured chicken wire could have been caught in the
pinch point.  The wire would not have been effective in breaking
the miner's fall and keeping him or her from the moving parts.

     I also conclude that contact with the pinch point could have
caused an injury.  After all, the belt was traveling over the
rollers at the rate of 390 feet per minute (Tr. II 465).  The
violation existed as charged.

                         S&S and Gravity

     The violation was S&S.  While it is true the belt was newly
installed and few, if any, miners had yet been exposed to the
hazard created by the inadequate guard, I must view the hazard in
terms of continued normal mining operations (U. S. Steel Mining
Co., Inc., 6 FMSHRC  1573, 1574 (July 1994)).

     As Layne noted, during the course of continued normal operations,
miners would have been assigned to clean up in the vicinity of
the belt drive.  Also, the floor around the belt drive would have
become wet and slippery (Tr. II 442).  I conclude, therefore,
that it was reasonably likely that as mining went on, a miner
would have slipped, fallen against the chicken wire and been
pulled into the belt drive's pinch point.  The miner would have
been lucky if he or she was maimed.  (I note in this regard,
Layne's unrebutted testimony that many of the fatalities recorded
by MSHA involve inadequate guards at belt drives (Tr. II 447).)

     In addition to being S&S, this was a serious violation.    As I
have found, the exposure of miners to the hazard meant that
dismemberment or death could have been expected.

                           Negligence

     Even though the belt was newly installed, Faith was obligated to
make certain the belt drive was guarded properly.  Because it
installed a "guard" that did not prevent contact by miners, Faith
was negligent.

Citation/
Order  No.     Date        30 C.F.R.     Assessment
3024814        3/17/93     75.220          $128

Citation No. 3024814 states:

          The supplement to the operators roof control plan dated
          July 22, 1992, was not being complied with in that the
          last pillar had been split for the belt line and cribs
          had not been installed for the crosscut on the right
          hand side of the belt line.  The operator's [roof
          control plan] supplement ... requires that cribs ... be
          installed in the last open crosscut on the right hand
          side of the belt line (Joint Exh. 51).

     Inspector Layne testified that on March 17, 1993, during the
course of the inspection of the mine, he visited a crosscut on
the right hand side of the belt line.  Approximately five miners
were working in the area (Tr. VI 213).  Cribs were being
installed in the vicinity.  Immediately adjacent to the crosscut,
the beltline had been driven through a pillar, splitting the
pillar.  (Tr. VI 215-216; Joint Exh. 51B).  According to Layne,
under the approved roof control plan, cribs should have been
installed prior to mining the pillar (Tr. VI 216, 218, 219).  The
approved roof control plan stated, "cribs will be set 5 ft. apart
(max)" and "where practical, cribs ... will be set prior to
making the split."  No cribs had yet been set in the subject
crosscut (Tr. VI 218; Joint Exh. 51A).

     Layne claimed that Stockwell told him cribs were not installed
because Stockwell had to keep the area open to haul gob material
and that there would not have been room for equipment to pass
through the area if cribs had been installed (Tr. VI 222, 246,
256-257).  This meant to Layne that equipment had passed through
the area where the cribs were missing (Tr. VI 223).  Indeed,
according to Layne, extensive work had been done inby the cited
area (Tr. VI 245).

     Layne testified that the roof in the area was not known as being
"really good" and that the mine had a history of roof falls (Tr.
VI 225, 226).  Although roof bolts had been installed, the area
still needed cribs for adequate support of the roof (Tr. VI 229).

     According to Layne, "[anyone] that has any ... qualifications"
should have known the cribs were required (Tr. VI 221).  He
described the lack of cribs as "real obvious" (Tr. VI 231).
Layne believed that the crosscut had lacked cribs for more than
three or four shifts (Tr. VI 233).  In Layne's view, the
condition should have been noted during the daily preshift
examination and should have been corrected (Tr. VI 234).

     Layne believed the condition was S&S.  Layne stated that given
the compromised roof "[y]ou could expect to have a fall in that
area" (Tr. VI 247).  Ram cars had traveled under the roof as they
transported the gob (Tr. VI 249).  Layne stated of the roof,
"It's roof you would want to pay attention to" (Tr. VI 251).  If
the roof had fallen and struck a miner, it was likely that the
miner would have sustained permanently disabling injuries or have
been killed (Id.)

     To abate the condition, Faith installed cribs as required   (Tr.
VI 254).

     Because the crosscut was part of an escapeway, Stockwell
maintained that if cribs had been used, they would have blocked
the escapeway.  Also, he noted that the roof control plan
required cribs to be set prior to splitting a pillar "where
practical."  He maintained that it was not "practical" to set the
cribs because of the escapeway problem and because the crosscut
could not have been used to haul gob if cribs narrowed it (Tr. VI
277-278).  In any event, he believed pillar support of the roof
was adequate, even after the pillar in question had been split
(Tr. VI 276).  Finally, although Stockwell stated that Layne was
in error when he testified that equipment had passed through the
crosscut, he confirmed that miners had worked in the area prior
to the day of the inspection (Tr. VI 285).

                     The Secretary's Motion

     Counsel for the Secretary moved that the doctrine of res judicata
be invoked and that Stockwell be barred from raising defenses to
this and two other alleged violations.  According to counsel,
Stockwell pleaded guilty to criminal charges involving two counts
of violating the Mine Act in a case before a United States
Magistrate Judge, in the United States District Court for the
Eastern District of Tennessee, and on June 24, 1992, a judgment
was filed in the case (U.S. v. Lonnie Ray Stockwell, Case No.
92-074M, CR-1-92-00033-01.)  The judge magistrate sentenced
Stockwell to three years of probation and ordered Stockwell to
pay a fine of $1,500.  As a condition of the probation, Stockwell
was ordered to refrain from any serious unwarrantable violation
of the Act pertaining to roof support and ventilation.

     Subsequently, Stockwell was ordered to show cause why  probation
should not be revoked.  The order was supported by a report from
Stockwell's probation officer.  The report stated that Stockwell
had been cited for several unwarrantable violations, including
the citation here at issue (Citation
No. 3024814) and two other alleged violations.  (The latter two
alleged violations are included in Docket No. SE 93-366 (Tr. V
61-62).)

     The judge magistrate held a probation revocation hearing at which
MSHA inspectors testified.  Following the hearing, the judge
issued an order which stated in part:

          Having heard all of the witnesses and the
          argument[s]...it is concluded and the [judge] finds
          serious life threatening violations of the [Mine Act]
          including but not limited to the conduct of mining well
          beyond the 12-foot limit beyond roof support were
          committed or caused to be committed by the defendant in
          late 1992 and early 1993 in ... Faith Coal Company Mine
          No. 15 (United States v. Lonnie Ray Stockwell, D. Tenn
          (September 16, 1993) (Memorandum and Order) 3.)

     The judge magistrate revoked Stockwell's probation and sentenced
him to six months in prison.  Subsequently, the judge denied
Stockwell's motion for a new trial and no further appeal was
taken.

     In moving that the doctrine of res judicata be invoked,  Counsel
asked that I be bound by the findings of the judge and conclude
that the three violations described in the citations and order
occurred (Tr. V 31-32, 35, 61-62).  Counsel argued that because
the judge "found that the violations had occurred at least as
issued," no testimony or other evidence should be admitted into
the record regarding the alleged violations (Tr. V. 62).

     I denied the Secretary's motion.  I concluded that I could not
determine from the judge's memorandum and order that his decision
was based upon his finding that the three alleged violations had
occurred as charged (Tr. V 64).  I stated:

          [G]iven the general wording of [the judge's ] finding
          that there was a serious, life threatening violation of
          the Act, including, but not limited to, the conduct of
          mining well beyond the 12-foot limit beyond roof
          support in late 1992 and early 1993; and given the
          number of alleged violations he was asked to consider
          and upon which he apparently based his finding, I
          cannot  conclude that he must have been referring to
          the three violations referenced in [the Secretary's]
          motion (Tr. V 65-66).

     I also noted that if I were wrong and the judge had made specific
findings concerning the violations' existence, apparently he had
taken no evidence and made no findings with respect to negligence
and gravity (Tr. V 66).  Indeed, these concepts, as applied under
the Mine Act, were not relevant to the criminal proceeding.
Under both the doctrines of res judicata and collateral estoppel,
the issues for which preclusion is sought in the second action
must be identical to the issues decided in the first action (See
Parkland Hosiery Co, Inc. v. Shore, 439 U.S. 327, 336, n5
(1979)).

     For these reasons, I affirm my bench ruling denying the
Secretary's motion.

                          The Violation

     Section 75.220 requires an operator to follow its approved roof
control plan.  The evidence with regard to this alleged violation
establishes that Faith did not do so and that the violation
existed as charged.  The supplement to the roof control plan of
July 22, 1992, required that where practical, prior to splitting
a pillar, cribs be set as shown on an attached map (Joint Exh.
51B).  Layne convincingly testified that the pillar in question
had been split to accommodate a beltline, and that cribs had not
been set.  The only question is whether it was practical to set
cribs.

     Stockwell testified that it was not practical because if cribs
were installed there would not have been sufficient clearance to
use the crosscut as a passageway for hauling gob, and because the
crosscut could not have been used as an escapeway.  However,
Stockwell's testimony was overcome by Layne's observation that if
Faith had used other available areas to dump the gob, it would
not have had to travel through the crosscut.  In addition, and as
counsel for the Secretary observed, the regulations allow
escapeways 4 feet in width when supplemental roof support (e.g.,
cribs) is necessary.  Since the roof control plan provided for a
maximum distance between the cribs of 5 feet, the cribs could
have been installed and the crosscut could still have been part
of a valid escapeway.

     I conclude that the violation existed as charged.

                         S&S and Gravity

     The violation was S&S.  The cited standard was violated.  I
accept the testimony of Layne that the failure to set the cribs
weakened the roof in the crosscut.  I also accept his testimony
that roof in the area was not "really good" (Tr. VI 225).  By
Faith's own admission, miners passed under the area of
inadequately supported roof.  Given the nature of the roof, the
fact that it was inadequately supported, and the exposure of
miners to the hazardous roof, I conclude it was reasonably likely
that as mining continued and miners passed through the crosscut,
a roof fall accident would have occurred.  In the event of such
an accident, it also was reasonably likely the miners involved
would have suffered death or at least serious and disabling
injuries.  This was roof "you had to pay attention to" and Faith
paid no attention to the requirement that the roof be supported
adequately (Tr. VI 251).

     The violation was serious.  As noted, I accept Layne's  testimony
that the roof was not consistently stable.  I also accept his
testimony that splitting pillars without installing supplemental
support weakened the roof.  This common sense observation simply
reflects the fact that in mining, as in the rest of life's
ventures, rarely is less more.  By Stockwell's own admission, the
crosscut had been traveled and miners who passed through it had
been subjected to hazards that easily could have resulted in
serious injury or death.

                           Negligence

     Since miners had traveled through the crosscut, the area had
to be preshift examined.  The lack of cribs was visually obvious.
The violation should have been detected and corrected.  Faith
failed to exhibit the care required.

                      Docket No. SE 93-366

Citation/
Order No.     Date        30 C.F.R.     Assessment
3202244       3/17/93     75.220          $2800

Citation No. 3202244 states:

          The approved roof control plan dated 4-7-92, was not
          being complied with in that the following conditions
          [were] observed in the area of survey station No. 114
          [:]  a place had been driven 24 feet on the left side
          and 27 1/2 [feet] on the right side   inby roof
          supports; a neck had been driven off this place 23 feet
          inby roof supports; also a crosscut had been driven
          into an unsupported area in an adjacent entry which had
          been advanced inby the crosscut and roof supports had
          not been installed.  The approved roof control plan
          requires cuts not to exceed 10 feet when conventional
          equipment is used (Joint Exh. 54).

     In addition to finding the conditions constituted a violation of
section 75.220, MSHA inspector Larry Anderson,  found that the
violation was S&S and was caused by Faith's unwarrantable failure
to comply with the cited standard.

     Anderson testified that when he inspected the mine on March 17,
1993, he was underground with Stockwell and asked him to identify
their location on a mine map.  Stockwell pointed to Survey
Station No. 114.  No miners or mining equipment were in the area
at the time (Tr. VI 296, 333).  However, miners were in the mine
doing "dead work" -- i.e., work not directly related to
production (Tr. VI 292-297).

     Under the roof control plan, when coal was cut with conventional
equipment, the cut could not exceed 10 feet in length (Tr. VI
298; Joint Exh. 54A at 13).  Anderson noticed that the ribs in
the area were jagged and did not have the "look" of  coal cut
with the continuous mining machine (Tr. VI 299).  He believed
conventional equipment had been used.

     Anderson stated that near Survey Station No. 114, he saw two
areas across from one another that had been driven in excess of
the allowed limit.  One area had been driven 24 feet beyond roof
supports.  The other had been driven 27 1/2 feet beyond roof
supports (Tr. VI 303-304).

     In general, the roof in the area had places where water was
coming through.  Also, the roof was exhibiting scaling, and had
fallen at several locations.  (Tr. VI 304).  Anderson explained
that the roof was shale, and that the water made the shale slip
and "just fall out for no reason at all" (Tr. VI 305).

     In the same general area, Anderson observed a neck driven 23 feet
inby roof supports (Tr. VI 306).  From observing the coal ribs in
the neck, Anderson determined that the neck area also had been
driven with conventional equipment (Id.).  There was no roof
support in the neck between the last row of roof bolts and the
face (Tr. VI 308).  The roof condition in the neck was similar to
that in the other two areas.

     Finally, in an adjacent entry, Anderson observed an area where a
crosscut had been driven through, into an unsupported area.
Anderson stated, "you cannot advance an entry or a crosscut into
an unsupported area unless that area is inaccessible, which this
one wasn't" (Tr. VI 309).  Anderson identified paragraph 4 on
page 5 of the roof control plan as the provision prohibiting the
condition he observed (Id.).  This portion of the plan required
that openings creating an intersection be permanently supported
or that at least one row of temporary supports be installed
before any other work or travel was permitted in the intersection
(Joint Exh. 54A at 5).  The unsupported area was approximately 20
feet wide and 30 feet long.  In Anderson's opinion, under the
roof control plan, roof bolts should have been installed on five
foot centers in the area (Tr. VI 311-312, 330).

     Anderson measured the areas of unsupported roof with his tape
measure.  Rather than travel under the roof, he tied the tape to
his hammer and threw it to the end of each area (Tr. VI 313).

     The areas where the unsupported roof conditions occurred were
part of an intake air course.  An intake air course must be
examined on a daily basis during each production shift (Tr. VI
399).  In Anderson's opinion, the conditions were visually
obvious and should have been observed during the examinations
(Tr. VI 312).  In addition, he maintained the conditions were the
result of more than ordinary negligence on Faith's part, and that
they represented "complete and total disregard for the safety ...
of the people [who] work[ed] for [Faith]" (Tr. VI 352).

     In finding that the alleged violation was S&S, Anderson
considered the generally poor roof conditions in the subject area
of the mine, the expanse of unsupported roof and the "strong
evidence" that persons had been working under unsupported roof
(Tr. VI 316).  This "strong evidence" was the fact that to cut
the coal for the cited distances, the cutting machine operator,
the scoop and the tractor operator, in addition to others, would
have had to proceed beyond the last row of permanent roof
supports (Tr. VI 317).  (Later, Anderson recanted his testimony
with respect to the tractor operator.  Nevertheless, he believed
the tractor operator still was subject to danger in that a roof
fall could have traveled into the area where roof supports were
installed and could have endangered the tractor operator and
others working under supported roof (Tr. VI 350-352).)

     Anderson stated that Stockwell conducted the preshift examination
on March 17, 1993, as well as on some preceding days.  This meant
that Stockwell examined the areas where the conditions existed.
There were no references to the conditions in the preshift
examination book (Tr. VI 320).  When Anderson served the citation
on Stockwell, Stockwell did not respond to it other than to state
that he was not aware of the conditions (Tr. VI 314).

     Anderson did not know when the areas had been cut.  However,
because mining had advanced approximately 500 to 600 feet inby
the areas, he judged the areas had been there "for quite some
time" (Tr. VI 321).

     The conditions were abated by installing timbers to support the
roof (Tr. VI 325).

     Faith called Dwight D. Morrison as a witness.  Morrison was a
surveyor for TCC.  He testified that he and one other TCC
employee were the only surveyors used at the No. 15 Mine (Tr. VI
361).  He stated that on April 19, 1993, he went to the mine to
measure the areas referred to in the alleged violation (Tr. VI
363-364, 392).  He claimed that he found "some differences"
between his measurements and the measurements that appear on the
citation (VI 365).  With respect to the first two areas mentioned
in the citation, Morrison found that the left side had been
driven 15 feet from the last row of roof bolts, and the right
side had been driven 19 feet from the last row of roof bolts (Tr.
VI 366-367).  In addition, Morrison claimed that on the left side
there was a second row of roof bolts that was difficult to see,
and that the inspector may not have noticed (Id.).  The final
area listed on the citation was not observed by Morrison (Tr. VI
367-368).

     On cross examination, Morrison admitted that he had no way to
know whether the conditions he found on April 19 1993, existed on
March 17, 1993 (Tr. VI 369).

     Stockwell believed that Anderson may have missed a second row
of roof bolts in the first area because they were underneath a
ledge.  Despite this, he agreed that a violation of the roof
control plan existed in the first and second areas.  ("I'm not
saying that the violation did not exist...It did exist.  But ...
it is much too severe .... Some of my men went beyond the ...
limit ... [p]robably three to five foot beyond what should have
been gone" (Tr. VI 372, 373).  Stockwell maintained that, at
most, three miners were affected by the conditions (Tr. VI 351).

     Stockwell also disputed the presence of the last area mentioned
on the citation.  He claimed that he never located it and that
when the citation was abated, the abatement did not include the
area (Tr. VI 373).)  However, he agreed he did not protest to
Anderson that the citation, as written, was in any way incorrect.
He stated that he and Anderson "just don't communicate very well,
and it's better ... if I don't argue the point with him" (Tr. VI
390).

     Finally, Stockwell maintained that the conditions existed in
places that did not have to be examined daily.  Because the
unsupported areas were not as great as those found by the
inspector, and because they existed in places that were not
required to be examined daily, the failure to detect and correct
the conditions was not due to more than ordinary negligence (Tr.
VI 383-384).

                          The Violation

     I conclude the violation existed as charged.  Anderson's
testimony was compelling.  He viewed each of the areas described
in the citation.  He measured the areas.  Stockwell was present
when at least two of the areas were measured.  As the recipient
of the citation, he knew of Anderson's allegations with respect
to all of the areas.  Stockwell's assertions that Anderson's
measurements were wrong and that the last area mentioned did not
exist are completely undermined by his failure on March 17, to
disagree in any fashion with Anderson's assessment of the
conditions.  It defies reason that Stockwell, as the
representative of Faith, would have declined to advise the
inspector of his mistakes when the "mistakes" had the potential
for costing the company money.  Stockwell's claim that he and
Anderson did not communicate very well, and therefore, that he
held his tongue, simply is not believable (Tr. VI 390).  To
observe that Stockwell is not shy about expressing his opinions,
is to state the obvious.

                         S&S and Gravity

     The violation existed as charged.  The hazard associated with the
violation was that the unsupported roof would fall on miners
working under it.  Given the fact that the roof in the area was
of an unstable nature, and given the fact that miners went under
the unsupported roof, as Stockwell admitted, I conclude it was
reasonably likely the violation would have contributed to a roof
fall that would have resulted in death or serious injury.
Anderson was right to find that the violation was S&S.

     The violation also was very serious.  Stockwell admitted that
miners traveled and/or worked under unsupported roof in two of
the areas, and I find that they also did so when they cut into
the adjacent entry

     Although no roof falls yet had occurred in the cited areas, I
accept Anderson's testimony that the shale roof was scaling, and
was in poor condition.  I also accept Anderson's testimony that
water posed a problem for roof control, in that it made parts of
the roof subject to sudden, unanticipated falls.  Exposing miners
to unsupported roof under such conditions was equivalent to
requiring them to play Russian roulette.

              Unwarrantable Failure and Negligence

     Anderson was right as well to find that the violation was the
result of Faith's unwarrantable failure to comply with its roof
control plan.  The Commission has defined unwarrantable failure
as conduct that is not justifiable and inexcusable.  It is
conduct that is the result of more than inadvertence,
thoughtlessness or inattention.  In short, unwarrantable failure
is aggravated conduct constituting more than ordinary negligence
(Emery Mining Corporation, 9 FMSHRC 1997, 2001 (December 1987)).

     Mining had moved well inby the cited areas and I accept
Anderson's testimony that the violation existed for several
months.  I also accept his testimony that the areas existed in an
intake air course that had to be examined daily.  Further, given
the generally unstable nature of the roof in the area, I conclude
that Faith had a high standard of care to ensure that the roof
was supported adequately.  Faith's failure to meet that standard
over a period of several months constituted more than ordinary
negligence.

Citation/
Order No.     Date        30 C.F.R.     Assessment
3203325       3/17/93     75.203(a)      $3,100

Order No. 3202245 states:

          Mining methods [were] not compatible with effective
          roof control on the 001 section in that sightlines had
          not been used to determine the direction of mining.
          Several pillars were not uniform in size or shape and
          the entries had not been driven according to
          projections (Joint Exh. 55).

     In addition to a violation of section 75.203(a), Anderson found
that the cited condition was S&S and that Faith unwarrantably
failed to comply with the standard.

     By way of background, Anderson explained that sight lines are
determined by hanging plumb bobs from two separate spads, lining
up the strings holding the bobs and sighting the point where the
strings align on the face.  Once the sight line on the face is
established, the width of the entry is marked on the face by
measuring from the center of the line (Tr. VI 406-407).

     Spads are set according to the mine map and the sight lines are a
way of making sure mining is done in conformance with projections
on the map (Tr. VI 407).  Anderson stated that it is usually the
section foreman who is responsible for making certain that the
mine is driven according to the mine plan and in conformance with
the sight lines (Tr. VI 408).

     According to Anderson, one danger of not conforming to sight
lines is that pillars may not be of adequate size to support the
roof (Tr. VI 409).  The resulting hazard is that the roof may
fall.  Another danger of mining off plan is that miners may break
into abandoned workings.  The workings may contain water or
oxygen deficient air and these elements may inundate the active
workings (Tr. VI 410).  A final danger is that if miners are cut
off from the surface, would-be rescuers will not know for certain
the mine has been driven true to the mine map, and will misdirect
rescue efforts (VI 412-413).

     Anderson was alerted to the alleged violation when he looked at
the mine map and noted irregular variations in pillar sizes (Tr.
VI 414).  Anderson identified an area on the mine map where he
believed sight lines had not been used.  He stated that he didn't
"see a straight place for any distance on [this portion of] the
map" (Tr. VI 417, 435-436; Gov. Exh. 5 (left center portion
within blue circle)).  (Anderson testified that Gov. Exh. 5 was
not the exact map that he used when he cited the alleged
violation.  Rather, it is a latter version of the map, and it
depicts more of the mine than actually existed on March 17.
However, it includes the cited area (Tr. VI 446).)  Anderson
maintained that if sight lines had been used, the map would have
"looked like a checkerboard" (Id.).

     Anderson stated that although the mine map alerted him to the
possibility of a violation, he based the order both on the map
and on a visual examination of the areas shown on the map.
During his underground inspection, he checked pillar sizes and
shapes, and he checked entries to determine if they were straight
(Tr. VI 419).

     Anderson agreed that if adverse roof conditions were encountered,
a mine operator could narrow entries and use additional roof
supports.  He also agreed that there were times when entries had
to be moved out of line.  He stated that there was a lot of bad
roof at the mine (Tr. VI 441).  He maintained, however, that the
cited irregularities were so extensive they could not have been
the result of adverse roof conditions (Tr. VI 447-448).

     Anderson testified that some areas where sightlines had not been
used were driven by the previous mine operator.  He did not
include these areas in the order (Tr. IV 442-443).

     By reviewing the dates on the mine map, Anderson determined that
Faith had been mining without sightlines for between 30 to 60
days (Tr. VI 420).  In Anderson's opinion, Faith should have
known of the existence of the violation by observing that the
underground entries and crosscuts were not straight and that the
pillars were therefore irregular (Tr. VI 423).

     The violation was S&S because it resulted in small pillars that
put undue stress on the mine roof, and because it raised the
possibility that miners unintentionally could cut into old works
(Tr. VI 425).  (He agreed, however, that no old works were shown
on the mine map adjacent to the cited area (Tr. VI 444).)  In
Anderson's view, it was highly likely that the failure to use
sightlines could have lead to the injury of miners because some
pillars were much too small (Tr. IV 426).  He estimated that some
were less than half of their required size (Tr. VI 426-427).

     Anderson believed that Faith should have known from past
experience that it had to use sightlines.  Moreover, Faith
received mine maps on a monthly basis and a review of the maps
should have indicated the mine was not being driven as required
(Tr. VI 431).

     Finally, Anderson testified that he had cited the wrong standard.
Rather than cite section 75.203(a), which requires that the
method of mining not expose any person to hazards caused by
excessive widths of rooms, crosscuts, and entries; and that
pillar dimensions be compatible with effective control of the
roof, he should have cited 30 C.F.R.  75.203(b), which requires
that a sightline or other method of directional control be used
to maintain the projected direction of mining (Tr. VI 430,
449-450).

     Stockwell testified that the area he understood to be encompassed
by the order was much more restricted than that testified to by
Anderson.  The area that Stockwell thought was involved included
one end of a long and narrow pillar.  Stockwell maintained that
the narrow configuration was due to an engineering mistake.
While there were two or three other places that were deliberately
off projection, they were caused by bad roof conditions (Tr. IV
459-460, 463; Gov. Exh. 5 (upper left pink "x")).  Most of the
area identified by Anderson as being included in the violation
was mined by the previous operator (Tr. VI 466).

     Stockwell also maintained that surveyors from TCC came to the
mine every three or four days to set spads, and that Faith used
the spads to establish and follow the sightlines.  As he put it,
"[W]e followed the sightlines.  We followed the spads set by the
TCC surveyors" (Tr. VI 471).  Stockwell maintained that there was
a two or three week period when the affected area was mined, and
that TCC's surveyors came to the mine to set spads on the average
of every third day during that period (Tr. VI 472).

                 Motions to Vacate and to Amend

     Based on Anderson's admission that he should have cited section
75.203(b), Faith moved to vacate the order of withdrawal.
Counsel for the Secretary countered by moving that the order be
conformed to the proof (Tr. VI 449-450).  I reserved ruling on
the motions.  Having considered the record, I deny the motion to
vacate, and grant the motion to amend.

     The law is clear, amendment is to be freely granted where the
opposing party is not prejudiced, and this is especially so when
the Secretary seeks to allege a substantively related subsection
of the standard applied to the cited conditions (Cyprus Empire
Corp., 12 FMSHRC 911, 916 (May 1990)).  As counsel for the
Secretary points out, the essence of the allegation is that Faith
did not use sightlines or other methods of directional control to
maintain the projected direction of mining in rooms and entries.
The inspector testified that he discussed the use of sightlines
with Stockwell in conjunction with the order.  The order itself
indicates that it was abated following such a discussion (Tr. VI
430; Joint Exh. 55).  I credit Anderson's testimony.

     The order's wording is not a model of clarity.  It refers to
"mining method" and "effective roof control," phrases that harken
back to section 75.203(a).  It also states that "sightlines had
not been used," which refers obviously to section 75.203(b).  I
conclude, however, that the confusion inherent in this wording
was overcome by Anderson's discussion with Stockwell, and Faith
was on notice that the essence of the violation was the failure
to use sightlines or other methods of directional control on the
001 Section.

     Moreover, Faith did not show prejudice.  It was fully prepared
to defend.

                          The Violation

     The issue is whether the Secretary has established that in the
cited area, sightlines were not used to control mining direction.
I conclude that he has not.

     Anderson did not see any surveying or mining being conducted.  He
had no first-hand knowledge of whether or not sightlines were
used.  Therefore, the Secretary had to prove the violation by
circumstantial evidence.  For this reason, the Secretary relied
upon Anderson's testimony that the mine map's depiction of
irregularly shaped entries and pillars was a visual "tip off"
that sightlines had not been used, and upon Anderson's
observation, that he looked at the size and shape of the entries
and crosscuts to "be sure that they're straight" (Tr. VI 419).

     Stockwell countered by testifying, among other things, that such
deviations from projections as existed were deliberately made as
a result of adverse roof conditions, something that Anderson
believed was possible but not likely, given what he viewed as the
extensive nature of the deviations (Tr. VI 469).  Stockwell also
testified that even in the areas where deviations existed, Faith
had used sightlines:

          Q:  Is it your testimony that ...you ...purposefully
          mined ... in these directions and in the way that it's
          shown on this map [Gov. Exh. 5]?  Did you do that by
          design?

          A:  I did it by design, by spads placed in place by
          T.L.C. surveyors.  They came over there during this
          time every three or four days.  Every time we'd get ...
          another area opened up, they'd come and set us spads to
          keep us on the sightlines, and we'd follow the
          sightlines.  The spads are still in place if you want
          to took at them if you want to go see.  But, yes ... we
          followed the sightlines.  We followed the spads set by
          the T.L.C. surveyors (Tr. VI 471).

     To find that a violation existed, I must find this testimony is
not credible.

     I cannot do so on the basis of this record.  As noted, even
though he considered it unlikely, Anderson agreed that the
deviations could have been caused by roof problems, and indeed,
the record is replete with testimony regarding adverse roof
conditions.  Also, the Secretary did not offer evidence that the
required spads were not in place, or testimony from miners that
it was a practice at the mine not to follow sightlines.  Clearly,
such testimony would have been extremely helpful to the
Secretary, and its absence raises questions regarding the
strength of the Secretary's proof.  Lacking such testimony, I
cannot discredit Stockwell's insistence that sight lines were
followed and that deviations were necessitated by poor roof.
Therefore, I conclude that the Secretary has not established a
violation of section 75.203(b).

                Remaining Civil Penalty Criteria

     Having made dispositive findings regarding all of the alleged
violations contested by Faith; including the gravity of the
violations and Faith's negligence, I turn to the remaining civil
penalty criteria.

                 Ability To Continue In Business

     The Act requires that I consider six criteria when I determine
the amount of any penalties to be assessed (30 U.S.C.  820(i)).
One of the criteria is the effect of the civil penalties on the
operator's ability to continue in business.  As a general rule,
in the absence of evidence that the imposition of civil penalties
will effect adversely the operator's ability to continue in
business, it is presumed that no such effect will occur
(Sellersburg Stone Company, 5 FMSRHC 287 (March 1983), aff'd 736
F.2d 1147 (7th Cir. 1984).  However, the operator may rebutt the
presumption.

     Counsel for the Secretary argued that Faith had sufficient assets
to pay the penalties proposed and that when I evaluated the
company's financial status, I should include all assets of the
Stockwell family.  Counsel stated that the family's money had
been commingled with Faith's assets and, in addition, Mrs.
Stockwell had undertaken liabilities in support of the mine (Tr.
II 15).  In the alternative, counsel argued that because Faith
effectively was out of business, consideration of the ability to
continue in business criterion was irrelevant and the penalties
assessed should be those proposed (Tr. II 16).

     Stockwell maintained that it would be wrong to consider all of
the family's assets.  He testified that although Faith's profits
and losses were reported to the IRS on Schedule C of the
Stockwells' joint federal income tax return, he was the sole
proprietor (Tr. II 137-138).  He stated that all of the funds
derived from the mine were reinvested in it.

     With respect to the commingling of family and company funds,
Stockwell explained that when Faith did not have enough money to
meet a payroll or to purchase or repair equipment, Mrs. Stockwell
wrote checks for the necessary amounts from her personal account.
However, Faith always repaid her and she redeposited the payment
in her personal account (Tr. II 18).  According to Stockwell,
there was no intent to co-mingle funds in a joint venture, and
the family's assets should not be viewed as assets available to
the company (Tr. II 19).

     Moreover, although the Stockwells filed joint federal tax
returns, there was a separate schedule for Faith that bore
Stockwell's name only (Tr. II 20).  While it was true that Mrs.
Stockwell had authority to sign Faith's checks, she had that
authority only as a convenience to Stockwell so that she could
buy parts or pay bills when Stockwell was absent (Tr. II 21).
Mrs. Stockwell did not keep books for the company and she had no
functions within the mining operation (Tr. II 64).

     With regard to the family's assets, Stockwell stated that he and
his wife jointly own a farm of approximately 213 acres, which
they bought in 1969 (Tr. II 114-115).)  He also stated that the
family home and the five and one half acres on which it stands,
is owned by his wife (Tr. II 24-25).  The property was
purchased and titled in Mrs. Stockwell's name before Stockwell
became involved in Faith (Tr. II 25, 105).  (At one time, the
Stockwells had a larger home.  However, it burned in January
1990, and the Stockwells moved into a smaller house (Tr. II 25,
78, 106-107).  Stockwell stated that his homeowner's insurance
had been cancelled shortly before the fire and that he and his
wife "lost everything" in the fire (Tr. II 79).)

     The Stockwells also own 165 acres of land in Sequatchie County,
Tennessee.  According to Stockwell, the land is "just sitting
there" (Tr. II 103, 111).

     Stockwell maintained that Faith begun operating the No. 15 Mine
in late 1990 (Tr. II 26).  Prior to that time, the mine was
abandoned (Tr. II 12-13).  To finance the startup costs and to
purchase equipment, Stockwell borrowed over $174,000 from the
First National Bank of Shelbyville.

     Stockwell identified a letter dated February 14, 1994, from  the
bank.  It stated that an indebtedness of $119,268.64 on the loan
was past due.  The bank demanded that the account be brought up
to date.  Payments on the loan are $3,300 per month (Tr. II 29,
145; D. Exh. 2).  (The original amount due was $174,531.30 (Tr.
II 164); D. Exh. 4).)

     Stockwell testified that he had attempted to obtain consolidation
loans to prevent foreclosure but had been unsuccessful because he
did not have sufficient collateral (Tr. II 35-36).  He stated
that if the bank canceled the loan, he would have no hope of
returning to mining (Tr. II 127).  He added that if he could not
continue operating the mine, he would spend the rest of his life
trying to pay what he owes (Tr. II 133).  Stockwell also stated
that all of Faith's mining equipment is held as collateral for
the bank loan; as well as all of his farm equipment (Tr. II 145).
According to Stockwell, the value of the mining equipment has
decreased substantially, because TCC has changed from
conventional mining to continuous mining machines (Tr. II 83).

     Stockwell added that he also owns $20,533 on a loan he  incurred
to purchase a home for his father.  The loan is delinquent (Tr.
II 47, 69; D. Exh. 5).

     According to Stockwell, when the mine was operating, it produced
approximately $375,000 per year in income.  Salaries and other
expenses took all of the income.  In fact, according to
Stockwell, Faith still owes approximately $30,000 in open
accounts (Tr. II 33, 62, 142).  When Stockwell went to prison,
the mine was shut down.

     Stockwell maintained his liabilities exceeded his assets by
approximately two to one, and that he is facing current
liabilities of approximately $300,000 (Tr. II 35).  The family
(Stockwell, his wife and teenage daughter) is surviving off of
his wife's teaching income (Tr. II 53-54).  Since returning from
prison, he has been unemployed except for working on his farm
property which earns him $100 to $150 per week (Tr. II 38).

     Stockwell described his financial future as "very bleak...if I
don't get back [to mining]"  (Tr. II 53; See also Tr. II, 58,
127).  He stated that he would like to resume mining as soon as
his probationary period ends (Tr. II 58, See also Tr. 127).
Stockwell maintained that although he was out of business
temporarily, at some point Faith could "turn around to be a
profit-making business" (Tr. VI 198).  He described the mine as
in a state of "temporary cessation" (Tr. II 14).

     Finally, Stockwell testified he would not be surprised to learn
that he owes MSHA $31,800 in unpaid civil penalties (Tr. II 121).
He acknowledged he owes up to $4,200, perhaps more, to the Office
of Surface Mining and that he owes the United States government
approximately $1,000 in fines levied as a result of his criminal
conviction.  He stated that he had already paid the government
$500 and had arranged to "work off" the rest (Tr. II 124).

     Buford Ayers, an assistant supervisor of the Farmer's Home Loan
Administration (FHLA), testified that the FLHA loaned the
Stockwells the money to finance the farm property and that the
current balance due was $55,408.18 (Tr. II 183).  Ayers stated
that the last financial statement by the Stockwells to the FLHA
indicated that the Stockwells had a personal net worth of
$164,000.  However, the figure included the value of mining
equipment that was then estimated at $250,000.  Payments to the
FHLA had to be made annually.  The amount due was $5,043.  As of
the date of the hearing, the Stockwells were not in arrears (Tr.
II 187-188).

     Ayers was of the opinion that if the First National Bank of
Shelbyville foreclosed on its loan to the Stockwells, they would
be forced to default to the FLHA; or, as Ayres put it, "I just
don't see how they can make it" (Tr. II 191).

     Robert Taylor, an officer of the First National Bank of
Shelbyville testified that Stockwell owes the bank approximately
$119,000 (Tr. II 150).  Taylor stated that the original loan was
made to Faith, Stockwell and Mrs. Stockwell (Tr. II 158).  The
loan is secured by Faith's mining equipment, by a deed of trust
on the 165 acres in Sequatchie County, and by a deed of trust for
the house the Stockwells occupy (Tr. II 165-166).  Taylor stated
that the only equipment he considered worth anything was a
loading machine, which he evaluated at approximately $15,000 (Tr.
II 175-176).  He estimated the land that secures the loan as
worth approximately $40,00 to $50,000.

     According to Taylor, the Stockwell's have tried to avoid
bankruptcy and have made an offer to settle their debts, but the
bank has rejected the proffered settlement (Tr. 152).  Unless
Stockwell is able to secure another loan to cover the
indebtedness or unless the Stockwells reach a settlement with the
bank, the bank will foreclose (Tr. II 153).  Foreclosure will
include a writ of possession on all of Faith's mining equipment.

     Taylor also stated that in the bank's view, Stockwell and Mrs.
Stockwell were equally liable for the loan (Tr. II 170-171).

     Ann Wilson, the comptroller of TCC, described Faith as "one of
the smaller operations" with whom TCC contracted (Tr. V. 86).
She testified that to the best of her knowledge the No. 15 Mine
was no longer operated and that TCC had no intention of entering
into another contract with Faith (Tr. V 76).

     According to TCC's records, it paid Faith a total of $119,327.17
in 1990, $282,324.89 in 1991, $209,224.23 in 1992 and $218,556.20
in 1993.  The last payment being made to Faith in October 1993
(Tr. V 78-79; Gov. Exh. 3).  The total paid in four years was
approximately $819,432 (Tr.V. 79).

     TCC advanced monies to Faith on occasion.  These advances were to
provide working capital.  In Wilson's opinion, an advance
indicated an operator lacked funds to pay for something.
However, TCC would not make an advance without collateral (Tr. V
86-87).  TCC deducted amounts due it for supplies from coal
payments to Faith.  If Faith did not mine enough coal to pay
through deductions, it wrote a check back to TCC.  Wilson
identified two such checks that were signed by Chris Stockwell
and that bore the names "Faith Coal Co., Lonnie or Chris
Stockwell" (Tr. 81-82; Gov. Exh. 3 at 10).

     At the close of the testimony on the ability to continue in
business criterion, Stockwell's counsel argued that if Faith and
Stockwell had any chance of going back into the coal mining
business, that chance would be precluded by any further
indebtedness (Tr. II 204-205).

     Counsel for the Secretary countered that if a mine operator could
not afford to run a mine in a safe and healthful manner, it was
MSHA's duty to shut down the operation (Tr. II 207).  Counsel
pointed out that the total penalties proposed in these cases is
approximately $17,000 and that the equity on the farm land on
which the FLHA holds the mortgage is more than that (Tr. II 209).
Also, Counsel maintained that the Stockwells have no realistic
possibility of resuming mining (Tr. II 214).  Therefore, the
ability to continue in business criterion really is irrelevant.

                      Settlement Suggestion

     Following introduction of most of the evidence on the criterion,
I issued a bench ruling regarding "what the ability to continue
in business criter[ion] means and how ... it should be applied"
(Tr. III 241).  I indicated that my ruling was provisional, and
that I would express my complete views in the written decision
(Id.).

     I then stated that in my view, any penalties assessed in these
cases should be more then minimal but less than those proposed.
(Tr. III 244).  Based upon that ruling I suggested, off the
record, a settlement plan that I believed was equitable to the
parties.  The suggestion was rejected by counsel for the
Secretary because, in the Secretary's view, Faith's history of
prior violations and Stockwell's criminal conviction, did not
warrant any reduction of the proposed penalties.  Further,
counsel maintained that Faith had not met its burden of proof
with respect to the ability to continue in business criterion
(Tr. III 249-252).

      Findings on Ability To Continue in Business Criterion

     As I noted at the hearing, the assessment of a civil penalty is
mandatory for any violation found to exist (30. U.S.C.  820(a);
Spurlock Mining Company, Inc., 16 FMSHRC 697,699 (April 1994);
Tazco, Inc., 3 FMSHRC 1895 (August 1981).  As I also noted,
although some Commission judges have held that the criterion is
no longer relevant when an operator is effectively out of
business (See Spurlock Mining Company, Inc., 15 FMSHRC 629 (April
1993) (ALJ Melick), aff'd in result 16 FMSHRC 697), other judges
have found the fact that a company has ceased to operate to be a
basis for reducing penalties, sometimes to nominal amounts (Iron
Mountain Ore Co., 11 FMSHRC 1840, 1850 (November 1986) (Judge
Morris); CRO Coal Co., Inc., 2 FMSHRC 2247, 2249 (August 1980)
(ALJ Steffey)).

     In general, I agree with Commission Administrative Law
JudgeGeorge Koutras that the essence of the civil penalty
assessment process requires a balancing of all the statutory
criteria, including, obviously, the ability to continue in
business criterion, (Broken Hill Mining Co., Inc., 15 FMSHRC
1331, 1348-49 (July 1993)).  Further, I view weighing the
criteria and equalizing the balance as affording the judge
considerable discretion.  (Penalties are assessed de novo by the
judge and the judge is not bound by the formula for assessment
that the Secretary has adopted (Shamrock Coal Co., 1 FMSHRC 469
aff'd, 652 F.2d 59 (6th Cir. 1981); Sellersbrug Stone Co., 5
FMSHRC 287, 291-292 (March 1983).)

     The question is whether Faith offered sufficient credible
evidence to prove that the size of any penalty assessed would
effect its ability to continue in business, and if so, the extent
to which that proof and the other criteria should impact the
civil penalties.

     In answering the question, I note first my agreement with the
Secretary's contention that the assets of both Stockwell and his
wife should be considered when evaluating the ability to continue
in business criterion.  Although Faith was organized as a sole
proprietorship and although Stockwell was the titular sole
proprietor, there is no doubt that Mrs. Stockwell made her
personal assets available to the company when required and that,
in effect, she served as a full financial partner in the
business.  Mrs. Stockwell had the authority to sign checks on
Faith's behalf (Tr. II 19).  Mrs. Stockwell also wrote checks for
the company from her personal account, checks that allowed the
company to continue in operation when it did not have enough
money to cover current expenses (Tr. II 18, 65).  Moreover, when
Faith needed a loan to purchase mining equipment and initiate
mining, Mrs. Stockwell signed for the loan along with her husband
(Tr. II 61).  But for Mrs. Stockwell, Faith would not have been
able to go into and to continue with the business of mining.  The
company functioned fiscally as a husband and wife partnership,
and I will look to the realities of the business rather than to
its formalities.

     Those realities lead me to conclude at the hearing that the
Stockwells were in precarious financial straits, and nothing
since has caused me to change my view (Tr. III 245-247).  I
accept as fact that the Stockwells owe the First National Bank of
Shelbyville, $119,268.64.  I also accept as fact that collateral
on this loan includes the mining equipment at the No. 15 Mine,
the deed of trust on the 165 acres in Sequatchie County and the
property and house where the Stockwells are living (Tr. 165-166).
In addition, I accept Stockwell's and Taylor's testimony that the
mining equipment has lost most of its value and that the land
that secures the loan is worth less than half the amount due (Tr.
II 175-176).

     Ayers credibly stated that he was thoroughly familiar with all
aspects of the FLHA loan on the farm; and I find persuasive his
opinion that if the Stockwells are unable to make arrangements
with the First National Bank, they will default on the FLHA loan.
Ayers stated that if the Stockwells defaulted, he did not know
how they "could make it," and neither do I (Tr. II 191).

     Scenarios can be devised by counsel for the Secretary concerning
how the Stockwells can be assessed the full amount of the
proposed penalties and pay them, but counsel is not a
professional banker; Taylor and Ayers are, and I give great
weight to their testimony and to their opinions.

     I conclude from their testimony that additional debt of the type
proposed by the Secretary will force the Stockwells to default on
their obligations to the bank, and to the FLHA; with the result
that they may loose the mining equipment, their house, farm and
their other property.

     To say that this would have a detrimental effect on Faith's
ability to continue in mining, understates the matter.  Stockwell
indicated a desire to continue mining and I take him at his word
(Tr. II 58, 127).  As long as he has the equipment, his return to
the business remains a possibility.  Once the equipment is gone,
so is the reasonable likelihood of resuming operations.

     Stockwell's sins of commission and omission under the Act already
have resulted in penalties other than those the Secretary seeks
here.  If Stockwell returns to mining, he will do so with
first-hand knowledge of the civil and criminal sanctions
engendered by violations of the Act and regulations.  Given this,
I do not believe assessing penalties less than those proposed in
these cases will lessen his incentives for compliance.

     I think it is fair to state that the Secretary's approach to
penalty amounts is driven by a desire to make it as difficult as
possible for Stockwell ever to mine again.  Counsel for the
Secretary was candid about this -- "If a mine operator cannot
afford to run the mine in a safe and healthy way, it is our
business to shut it down" (Tr. II 207).  However, civil penalties
are remedial not punitive, and the ability to continue in
business criterion is not intended to be used to thwart mining.
Rather, it is to be used to encourage the continuation or
resumption of safe mining.  If the Secretary believes an operator
should be barred from mining, other remedies are available, as
Stockwell's experience before the judge magistrate has shown.

     Therefore, when assessing civil penalties in these cases, I will
afford more weight than would otherwise be the case to the
ability to continue in business criterion.

                  Size and Good Faith Abatement

     Faith is small in size, and unless otherwise specifically noted,
the company demonstrated good faith in attempting to achieve
rapid compliance.

                 History of Previous Violations

     Faith Coal Company has a large history of previous violations
(Joint Exh. 61).

                         Penalty Amounts

     When all of the criteria are considered, I conclude that the
resulting assessments should be more than minimal but less than
proposed.

                              ORDER

                       Docket No. SE 91-97

     This case was assigned to Commission Administrative Law Judge
Gary Melick.  On September 20, 1991, the parties agreed to settle
the matter and they filed a joint motion to approve the
settlement.  Judge Melick rejected the settlement and scheduled
the matter for hearing.

     A hearing was conducted on September 24, 1991.  It was not
completed because Faith requested and received permission to
present additional evidence and to call additional witnesses.
Judge Melick set December 4, 1991, as the date the hearing would
resume.  Subsequently, the matter was the subject of numerous
continuances and stays for reasons fully outside the control of
the judge.  (The chronology of the case is documented in
Secretary's post trial brief at pages 5-9.)

     The case was reassigned to me with the understanding that Faith
would have the opportunity to present additional evidence and
call additional witnesses during the subject consolidated
hearings.  At the beginning of the second session of hearings,
Stockwell stated that Faith would not present any additional
documentary evidence or offer any further witnesses (Tr. V 17-18,
22-23).

     The parties resumed settlement negotiations.  As a result, the
parties agreed to resubmit their original motion to approve the
settlement, with the understanding that it be reviewed in the
context of the evidence that has been offered regarding the
affect of any penalties assessed on Faith's ability to continue
in business (Sec. Br. 8).

     Given the civil penalty criteria noted above, I conclude that no
reduction in the settlement is warranted.  The settlement is
approved.

                        Settled Citations

Citation/
Order No.   Date      30 C.F.R.   Settlement    Assessment   Penalty
3023421     8/28/90   75.312         $ 20          $10        $10
3023422     8/28/90   75.316         $ 20          $10        $10
3023422     8/28/90   75.316         $ 20          $10        $10
3023347     9/24/90   75.505         $ 20          $10        $10
3023348     9/24/90   75.1704(2)(c)(2) $ 20        $10        $10
3023350     9/24/90   75.403         $ 20          $10        $10
3023351     9/24/90   75.904         $ 20          $10        $10
3023410     9/24/90   75.1801        $ 20          $10        $10
3023411     9/24/90   75.1803        $ 20          $10        $10
3023412     9/24/90   75.1805        $ 20          $10        $10
3023413     9/24/90   77.501         $ 39          $23        $23
3023418     9/25/90   75.400         $ 20          $10        $10
3023420     9/25/90   75.400         $ 39          $23        $23
3023354     9/26/90   75.503         $ 20          $10        $10
3023355     9/26/90   75.400         $ 39          $23        $10

     Faith is ORDERED to pay the penalties shown.


                      Docket No. SE 91-533

Citation/
Order No.      Date      30 C.F.R.   Assessment  Settlement   Penalty
3023423******  8/28/90   75.303(a)     $300         $ 78        $50
3023681*      12/26/90   77.1605(k)    $200                    $134
3023416****    9/24/90   75.804(b)     $450         $275       $150
3023353****    9/25/90   75.220        $450         $275       $150
3023461****    9/26/90   75.316        $400         $275       $125
3023462****    9/26/90   75.303(a)     $400         $275       $125

(* Tr. IV 73)  (Faith agreed to withdraw its contest of the
citation.)

(**** Tr. VI 200-205)  (The Secretary agreed to reduce the
penalty based
upon litigation strategy.)

(****** Tr. IV 743)  (The Secretary agreed to vacate the
associated section 104(b) withdrawal order.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to vacate Order No. 3023423.


                            SE 92-315

                        Settled Citation

Citation/
Order No.     Date        30 C.F.R.      Assessment    Penalty
3395346*      12/2/91     75.400          $85           $58

(* Tr II 257) (Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the civil penalty shown.


                      Docket No. SE 92-316

                       Contested Citation

Citation/
Order No.     Date        30 C.F.R.     Assessment    Penalty
3395933       2/26/92     75.1808         $20          $20

     Citation No. 3395933 is affirmed, and Faith is ORDERED to pay the
penalty shown.

Settled Citations

Citation/
Order No.   Date       30 C.F.R.     Assessment    Penalty
3395936*    2/26/92    49.98           $20           $13
3396027*    2/26/92    75.403          $58           $42
3396028*    2/26/92    75.303(a)       $20           $13
3396029*    2/26/92    75.313-1        $20           $13
3396030*    2/26/92    70.210(b)       $20           $13

(*Tr. IV 748.  Faith agreed to withdraw its contest of the
citations.)

     Faith is ORDERED to pay the penalties shown.


                      DOCKET NO. SE 92-343

                       Contested Citations

Citation/
Order No.   Date      30 C.F.R.       Assessment   Penalty
3396042     3/2/92    77.1104           $ 94        $40
3390641     3/2/92    75.1713-7(a)(2)   $ 94        $ 0
3396045     3/3/92    75.202(a)         $147        $40
3396047     3/2/93    75.208            $ 88        $40

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to vacate Citation No. 3396041.

     The Secretary is ORDERED to modify Citation No. 3396045 by
deleting the S&S finding.

     The Secretary is ORDERED to modify Citation No. 3396047 by
deleting the S&S finding.

                       Settled Violations

Citation/
Order No.      Date     30 C.F.R.   Assessment  Settlement  Penalty
3396046*       3/3/92   75.1313(c)    $ 88                   $59
3395940***     3/02/92  77.505        $ 88        $50        $40
3396043***     3/02/92  77.807        $ 88        $50        $40
3396044***     3/02/93  77.513        $ 88        $50        $40
3396035**      3/02/92  77.400(a)     $ 88        $50        $40
3396036***     3/02/92  77.513        $ 88        $50        $40
3396039*****   3/3/92   75.203(e)     $147        $88        $65
3396040***     3/3/92   75. 202(a)    $147        $88        $65
3396081*****   3/3/92   75.220        $147        $88        $65
3396082******* 3/3/92   75.212(c)     $147        $58        $42
3396048******* 3/5/92   75.203(e)     $147        $58        $42

(Tr. III 532)  (*  Faith agreed to withdraw its contest of the
citation.)

(Tr. IV 780)  (** The Secretary agreed to delete the S&S
finding.)

(Tr. III 532-535, Tr. IV 781, 783-784)  (*** The Secretary agreed
to modify the negligence finding to low.)

(Tr. IV 782-785)  (***** The Secretary agreed to reduce the
number of miners affected by the violation.)

(Tr. III 535-537, Tr. IV 785-786)  (******* The Secretary agreed
to modify the negligence finding to low and to reduce the number
of miners affected by the violation.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citation No. 3396035 by
deleting the S&S finding.

     The Secretary is ORDERED to modify Citations No. 3395940,
3396043, 3396044, 3396036, and 3396040, by reducing the
negligence findings to low.

     The Secretary is ORDERED to modify Citations No. 3396039 and
3396081, by reducing the number of miners affected by the
violations.

     The Secretary is ORDERED to modify Citations No. 3396082 and
3396048, by reducing the negligence findings to low and by
reducing the number of miners affected by the violations.


                      Docket No. SE 92-372

                        Settled Citations

Citation/
Order No.     Date     30 C.F.R.   Assessment   Settlement   Penalty
3396083****   3/4/92   75.212(c)     $ 88         $50         $40
3396084*****  3/5/92   75.400        $147         $94         $72
3396085*      3/9/92   75.212(c)     $ 50                     $40
3396038*****  3/4/92   75.212(c)     $147         $94         $72

(Tr. IV 767)  (* Faith agreed to withdraw its contest of the
citation.)

(Tr. IV 764-765)  (**** The Secretary agreed to reduce the
penalty based upon litigation strategy.)

(Tr. IV 766-768)  (***** The Secretary agreed to reduce the
number of miners affected by the violation.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citation No. 3396084 by
reducing the number of miners affected by the violations.


                      DOCKET No. SE 92-373

                       Contested Citation

Citation/
Order No.     Date        30 C.F.R.     Assessment    Penalty
9883375       4/13/92     70.208(a)       $50           $40

Settled Citation

Citation/
Order No.     Date        30 C.F.R.     Assessment    Penalty
3395800       5/01/92     75.403           $50         $40

(Tr. IV 642)  (* Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the penalties shown.


                      Docket No. SE 92-375

                        Settled Citation

Citation/
Order No.    Date     30 C.F.R.  Assessment  Settlement  Penalty
3396037****  3/02/92  77.516       $88          $50       $40

(Tr. IV 748-749)  (**** The Secretary agreed to reduce the
penalty based upon litigation strategy.)

     Faith is ORDERED to pay the penalty shown.


                      Docket No. SE 92-463

                       Contested Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3024224     5/28/92   75.208         $88           $75

                        Settled Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3024225*    5/28/92   75.220         $88           $59

(Tr. II 273-274)  (* Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the penalty shown.


                      Docket No. SE 92-464

                       Contested Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3024223     5/27/92   77.402         $88           $59

     Faith is ORDERED to pay the penalty shown.


                      Docket No. SE 92-488

                        Settled Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3024222*    5/27/92   70.508(a)      $50           $40

(Tr. II  257)  (* Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the penalty shown.


                       Docket No. SE 93-78

                       Contested Citations

Citation/
Order No.   Date      30 C.F.R.     Assessment    Penalty
3024472     8/19/92   75.203(a)        $50          $ 0
3024476     8/27/92   75.1107-16(b)    $50          $30

     Faith is ORDERED to pay the penalty shown.

     The Secretary is ORDERED to vacate Citation No. 3024472.

                        Settled Citations

Citation/
Order No.  Date      30 C.F.R.   Assessment   Settlement   Penalty
3014473**  8/19/92   75.511        $88           $50        $40
3024474*   8/20/92   75.601-1      $88                      $59

(Tr. II 377-378)  (** The Secretary agreed to delete the S&S
finding.)

(Tr. II 377)  (* Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citation No. 3014473 by
deleting the S&S finding.


                       Docket No. SE 93-79

                        Settled Citations

Citation/
Order No.   Date      30 C.F.R.     Assessment    Penalty
3024477*    8/27/92   75.503           $50         $40
3024478*    8/27/92   75.1714(3)(e)    $50         $40

(Tr. II 374)  (* Faith agreed to withdraw its contest of the
citations.)

     Faith is ORDERED to pay the penalties shown.


                      Docket No. SE 93-194

                        Settled Citations

Citation/
Order No.    Date      30 C.F.R.   Assessment   Settlement   Penalty
3024675**    11/16/92  75.306(a)     $128          $50         $40
3024737*     12/01/92  75.388(b)     $128                      $85
3024745***** 12/01/92  75.316        $128          $94         $72

(Tr. II 328)  (* The Secretary agreed to delete the S&S finding.)

(Tr. II 328)  (** Faith agreed to withdraw its contest of the
citation.)

(Tr. IV 750-752)  (***** The Secretary agreed to reduce the
number of miners affected by the violation.)

     Faith is ORDERED  to pay the penalties shown.

     The Secretary is ORDERED to modify Citation No. 3024745 by
reducing the number of miners affected by the violation.


                      Docket No. SE 93-195

                       Settled Citations

Citation/
Order No.   Date       30 C.F.R.   Assessment   Settlement   Penalty
3024705*    12/08/92   75.512        $ 50          $40         $40
3024706*    12/08/92   77.516        $ 75                      $50
3024707*    12/08/92   75.515        $ 75                      $50
3024708*    12/08/92   75.904        $ 50                      $40
3024709*    12/08/92   75.601-1      $ 75          $58         $50
3024710**   12/08/92   75.900        $ 75          $50         $40
3024711***  12/14/92   75.313-1      $111          $75         $50
3024712***  12/14/92   75.318        $ 75          $50         $40
3024713*    12/14/92   75.1101-3     $111                      $74
3024801*    12/14/92   75.316        $ 50                      $40

(Tr. II 430-432)  (* Faith agreed to withdraw its contest of the
citation.)

(Tr. II 430)  (** The Secretary agreed to delete the S&S
finding.)

(Tr. II 430-431)  (*** The Secretary agreed to modify the
negligence to low.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citation No. 3024710 by
deleting the S&S finding.

     The Secretary is ORDERED to modify Citations No. 3024711 and
3024712, by reducing the negligence to low.


                      Docket No. SE 93-257

                        Settled Citation

Citation/
Order No.     Date      30 C.F.R.    Assessment  Settlement  Penalty
3024802****** 12/14/92  75.364(a)(1)   $117        $50        $40

(Tr. II 432-433)  (****** The Secretary agreed to vacate the
associated section 104(b) withdrawal order.)

     Faith is ORDERED to pay the penalty shown.

     The Secretary is ORDERED to vacate Order No. 3024767.


                      Docket No. SE 93-300

                        Settled Citation

Citation/
Order No.       Date     30 C.F.R.  Assessment  Settlement  Penalty
9883495******** 1/08/93  70.207(a)    $300         $50        $40

(Tr. II 257-258)  (******** The Secretary agreed the violation
was technical and should not have been specially assessed.)

     Faith is ORDERED to pay the penalty shown.


                      Docket No. SE 93-348

                       Contested Citation.

Citation/
Order No.     Date      30 C.F.R.    Assessment   Penalty
9883544       2/18/93   70.201(c)       $50         $40

Faith is ORDERED to pay the penalty shown.

                        Settled Citations

Citation/
Order No.    Date     30 C.F.R.     Assessment   Settlement  Penalty
3024880*     3/02/93  75.364(i)        $ 50                   $40
3202181****  3/02/93  75.512           $ 50         $ 20      $13
3202182*     3/02/93  75.1101-23(c)(1) $ 50                   $40
3202183*     3/02/93  75.220           $ 88         $ 59
3202185*     3/02/93  75.220           $ 50                   $40
3202186****  3/02/93  75.507           $ 88         $ 50      $40
3202187*     3/02/93  75.603           $ 88                   $59
3202189**    3/03/93  75.606           $ 88         $ 50      $40
3202190**    3/03/93  75.400           $128         $ 94      $72
3202191***   3/04/93  75.340(a)(1)     $147         $103      $78
3202192*     3/04/93  75.516           $ 88                   $59
3202193*     3/04/93  75.503           $ 50                   $40
3202194*     3/04/93  75.523-3(b)(1)   $ 88                   $59
3202196**    3/04/93  75.523-3(b)(1)   $ 88         $ 50      $40

(Tr. IV 752, 754, 756, 760)  (* Faith agreed to withdraw its
contest of the citation.)

(Tr. IV 757-759, 761-762)  (** The Secretary agreed to delete the
S&S finding.)

(Tr. Tr. 759-760)  (*** The Secretary agreed to modify the
negligence to low.)

(Tr. IV 753-754, 756)  (**** The Secretary agreed to reduce the
penalty based on litigation strategy.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citations No. 3202189, 3202190
and 3202196, by deleting the S&S finding.

     The Secretary is ORDERED to modify Citation No. 3202191, by
reducing the negligence to low.

                      Docket No. SE 93-365

                       Contested Citations

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
9883549     3/4/93    70.100(a)      $119          $90
3024810     3/16/93   75.1722(a)     $ 88          $59
3024814     3/17/93   75.220         $128          $86

                        Settled Citations

Citation/
Order No.        Date     30 C.F.R.   Assessment  Settlement  Penalty
3024808**        3/16/93  75.1101-23     $ 88       $ 50        $40
3202198*         3/16/93  75.361(b)      $ 50                   $40
3202199*         3/16/93  75.1103        $ 88                   $59
3202200**        3/16/93  75.400         $128       $ 50        $40
3024811*         3/17/93  75.342(a)(4)   $ 50                   $40
3024812*         3/17/93  75.503         $ 50                   $40
3024813*         3/17/93  75.1107        $ 88                   $59
3024815****      3/17/95  75.372(a)(1)   $128       $100        $67
3024816*         3/17/93  75.360(b)(6)   $128                   $82
3202241*         3/17/93  75.400         $ 88                   $59
3202242*         3/17/93  75.503         $ 50                   $40
3202243********* 3/17/93  75.1107-16(b)  $ 88       $ 70        $53
3202247***       3/22/93  75.1101-23     $128       $ 88        $65
3202306*         3/29/93  75.350         $ 88                   $59
3202307*         3/29/93  75. 370(a)(1)  $ 88                   $59

(Tr. II 435-436, Tr. IV 739, Tr. V 181)  (* Faith agreed to
withdraw its contest of the citation.).

(Tr. II 434-435, Tr. IV 738)  (** The Secretary agreed to delete
the S&S finding.)

(Tr. II 436-437)  (*** The Secretary agreed to modify the
negligence finding too low.)

(Tr. VI 206) (**** The Secretary agreed to reduce the penalty
based on litigation strategy.)

(Tr. IV 740-741, Tr. V 182-183) (********* The parties agreed to
reduce the penalty based on mutual litigation risks.)

     Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to modify Citations No. 3024808 and
3202200, by deleting the S&S findings.

     The Secretary is ORDERED to modify Citation No. 3202247 by
reducing the negligence to low.


                      Docket No. SE 93-366

                       Contested Citations

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3202244     3/17/93   75.220         $2800         $2128
3203325     3/17/93   75.203(a)      $3100         $   0

                          Settled Order

Citation/
Order No.        Date     30 C.F.R.  Assessment  Settlement  Penalty
3202285********* 3/29/93  75.360(g)     400        $175       $117

(Tr. IV 735-736)  (********* The parties agreed to leave the
order as written and to reduce the penalty based on mutual
litigation risks.)

     Faith is ORDERED to pay the penalty shown.

     The Secretary is ORDERED to vacate Order No. 3203325.


                      Docket No. SE 93-411

                        Settled Citations

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3202184*    3/02/93   75.370(a)(1)   $50           $40
3202188*    3/02/93   75.360(f)      $50           $40

(Tr. II 258) (* Faith agreed to withdraw its contest of the
citations.)

     Faith is ORDERED to pay the penalties shown.


                       Docket No. SE 94-42

                       Contested Citations

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3202246     3/22/93   75.364(a)(1)   $360          $0
3024817     3/22/93   75.220         $ 88          $0

                        Settled Citation

Citation/
Order No.     Date     30 C.F.R.    Assessment  Settlement  Penalty
3202246****** 3/22/93  75.360(a)(1)    $360       $183       $139

(Tr. IV 787-790)  (****** The Secretary agreed to vacate the
associated section 104(b) withdrawal order.)

     Faith is ORDERED to pay the penalty shown.

     The Secretary is ORDERED to vacate Citations No. 2302246 and
3024817, and to vacate Order No. 3202497.


                       Docket No. SE 94-75

                        Settled Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment    Penalty
3202543*    9/28/93   75.503         $50           $40

(Tr. II 259)  (* Faith agreed to withdraw its contest of the
citation.)

     Faith is ORDERED to pay the penalty shown.


                       Docket No. SE 94-96

                       Contested Citations

Citation/
Order No.   Date       30 C.F.R.    Assessment    Penalty
9883661     10/14/93   70.208(a)      $50           $35
9883662     10/14/93   70.208(a)      $50           $35

     Faith is ORDERED to pay the penalties shown.

                      Docket No. SE 94-256

                       Contested Citation

Citation/
Order No.   Date      30 C.F.R.    Assessment     Penalty
3202337     6/07/93   75.313         $50            $0

     The Secretary is ORDERED to vacate Citation No. 3202337.

                      Docket No. SE 94-257

Citation/
Order No.     Date     30  C.F.R.    Assessment  Settlement  Penalty
3202544****** 9/28/93  75.1107-16(b)   $225        $50        $40
3202565****** 9/28/93  75.1107-7(c)    $225        $50        $40

(Tr. II 374-375)  (****** The Secretary agreed to vacate the
associated section 104(b) order of withdrawal.)
Faith is ORDERED to pay the penalties shown.

     The Secretary is ORDERED to vacate Orders No. 3202555 and
No. 3202556.

                    Dismissal of Proceedings

     Faith shall pay the assessed penalties within 30 days of the
date of this decision.  The Secretary shall modify and vacate the
referenced citations and orders within the same 30 days.  These
proceedings are DISMISSED.


                                           David F. Barbour
                                           Administrative Law Judge


Distribution:

Ann T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215

Russell Leonard, Esq., 603 Cumberland St., Cowan, TN 37318

Mr. Lonnie Stockwell, Faith Coal Company, Route 1, Box 196,
Palmer, TN 37365

\mca