<DOC>
[DOCID: f:va9839o.wais]

 
ANR COAL COMPANY LLC
May 5, 1999
VA 98-39


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           May 5, 1999


SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
      MINE SAFETY AND HEALTH   :
      ADMINISTRATION (MSHA),   :  Docket No. VA 98-39
               Petitioner      :  A. C. No. 44-06795-03524
          v.                   :
                               :  Sargent Hollow Mine
ANR COAL COMPANY LLC,          :
               Respondent      :


                    ORDER DENYING MOTIONS FOR
                        SUMMARY DECISION
                               AND
                        NOTICE OF HEARING

     In  this  civil  penalty  proceeding  brought  under section
105(d)  of  the  Federal  Mine Safety and Health Act of 1977  (30
U.S.C.  815(d) (the Act)), the Secretary of Labor (Secretary) on
behalf of her Mine Safety and  Health Administration (MSHA) seeks
the assessment of civil penalties  against  ANR Coal Company (ANR
or the company) for three alleged violations  of mandatory safety
standards for underground coal mines.  The Secretary  charges the
violations  occurred  at  the  company's Sargent Hollow Mine,  an
underground  bituminous  coal  mine   located   in  Wise  County,
Virginia.  The Secretary proposes total civil penalties of $824.

     In answering the petition, ANR denies the violations  or  in
the  alternative  argues  that if they did occur, the inspector's
findings regarding negligence and gravity are wrong.

     The case was scheduled  to  be heard and the parties engaged
in prehearing discovery, including  the  deposition  of potential
witnesses.  Shortly before the hearing counsels advised  me  they
intended  to submit the case for summary decision.  Counsels then
filed stipulations,  cross  motions  for  summary  decision,  and
replies.

                   THE CONTROVERSY'S BACKGROUND

     Although  three  violations  are  charged  in  the case, the
parties are at odds over only one -- an alleged violation  of  30
C.F.R.  75.334(b)(1)  set  forth in Citation No. 4566305.[1]  As
explained  more  fully below, section  75.334(b)(1)  requires  in
areas  where  pillars  are  being  recovered  that  the  operator
ventilate the areas with a bleeder system that will "continuously
dilute and move  methane-air  mixtures  away from active workings
and  into  a  return  air course".  The Secretary  maintains  ANR
failed to comply with this  requirement  in  that  "methane being
liberated on the  .  .  . 001 . . . section [was] not being
diluted,  rendered harmless, and  carried  away during normal 
production operations" (Stip. 46; see also Gov. Exh. 1).

                            THE FACTS

     The parties' agreements  with  regard  to the relevant facts
are  set forth in 49 stipulations. They establish that between
March 8, 1999, and  the  late  night-early  morning  hours  of
March  13-14,  methane  exceeded 1% of the mine atmosphere in the
No. 10 entry on the 001 section  on  four  occasions  -  March 8,
March  10,  March  12,  and March 13-14 (Stips. 13 - 16).    They
also  establish  that  on  each  of  these  occasions  management
authorities made adjustments  to  the  ventilation  and  that the
methane levels soon fell to under 1% (Id.).

     Around  9:30  p.m. on March 14, the roof fell in an area  of
the section where five  or  six pillars had been previously mined
and a crack developed in the  roof  outby  the pillar line in the
No. 10 entry.  The section foreman detected  methane of up to 5%.
Most of the methane seemed to be coming from the  crack  and  the
surrounding  area  (Stip.  18).  The section foreman shut off the
power, de-energized the equipment  and withdrew the men.  He also
adjusted the ventilation in order to  dilute  the  methane (Stips
19-20).

     About  an  hour  and  ten minutes after the roof fell,  MSHA
Inspector  Charles  Reece arrived  at  the  mine  to  conduct  an
inspection.  Reece went  to  the No. 10 entry and he too detected
methane coming from the crack and adjacent area.  He measured the
methane  and  found  it  had  reached  levels  of  10%  or  more.
Therefore, at about 11:30 p.m.,  Reece  issued an imminent danger
order of withdrawal under section 107(a)  of  the  Act (30 U.S.C.
817(a)).  The order required the withdrawal of miners  from  the
entire  mine (Stips 22, 24-25; Gov. Exh. 7).  Reece then left the
mine.

     Approximately  an  hour  after  the  order was issued, ANR's
Manager  of  Mine  Operations, Paul Campbell,  arrived  and  went
underground.   Campbell  knew  the  mine  had  been  encountering
methane due to the mining method the company was utilizing (Stip.
30).  Campbell went  to  the No. 10 entry where he hung a curtain
to redirect the air and to  facilitate  sweeping the methane from
the entry.  The methane was diluted to acceptable  levels  within
10 minutes.  Campbell also adjusted the ventilation outby the No.
10  entry.   All  of this work was completed within approximately
six hours of the fall,  and once it was completed, no methane was
detected in the entry (Stips. 26, 30).

     Campbell expected that  the  imminent  danger order would be
terminated.  After it was, he intended to resume  mining  in  the
No. 10 entry.  However, he did not plan to begin where mining had
left off.  Rather, he decided he would leave the curtain in place
and pull back several pillars so that mining would resume several
breaks  outby the area last mined (Stip. 29).  Campbell then left
the mine.   When he returned after daybreak on March 15, he found
that methane  levels  in  the No. 10 entry measured at most a few
tenths of one percent.  The levels were acceptable (Stips. 29,
31).

     On the afternoon of March  15,  Inspector Reece came back to
the  mine.  He was accompanied by two other  inspectors,  Douglas
Carico  and James Hicks.  The inspectors talked to Campbell about
what ANR  had  done to adjust the ventilation.  Campbell believed
he also told them  about his plan to resume mining several blocks
outby the area last  mined.   However,  neither  Reece  nor Hicks
remembers Campbell discussing the subject (Stip. 32-33).

     After  talking  to Campbell, the inspectors went to the  001
section.  Reece and Hicks  saw  the  curtain  that  Campbell  had
erected  to  help  dilute  the methane.  It was on the left side,
along the rib.  To conduct pillar  mining,  the curtain had to be
on the right side.  Therefore, Reece and Hicks  had  the  curtain
taken  down  and  re-erected  as it would have been if mining had
continued in the area.  As soon  as  it  was  taken  down and re-
erected, methane levels increased to over 1% .  However,  as long
as  the  curtain remained where Campbell had positioned  it,  the
methane levels were acceptable (Stip. 35).

     While  the  inspectors  were  underground  they  met Darrell
Holbrook,  the  mine  superintendent.[2]    The  inspectors   and
Holbrook  had  occasion  to  visit  the  No.  6  entry of the 001
section.   Holbrook  detected  air moving from the gob  into  the
entry.  The air flow was opposite  the  direction it was supposed
to move.  The purpose of the bleeder system  was to sweep methane
and other gases into and over the gob and out  the  return.   Air
flowing  from  the gob into the entry meant that methane might be
coming into the  entry.   However,  Holbrook  detected  only  .2%
methane  in  the  No.  6  entry.   This  was an acceptable level.
Holbrook suggested to Hicks that he erect  a curtain in the No. 6
entry to insure air would flow from the entry  into  the gob, and
Hicks said that was not a big concern and the condition was not a
violation (Stip. 37).

          Reece too noted the direction of the air in the  No.  6
entry.  In  his  deposition  Reece testified that the roof in the
crosscut between the No. 6 and  No. 7 entries had fallen "tight,"
meaning that it almost blocked the crosscut.  Reece believed this
was why the air was flowing from  the  gob into the entry.  Reece
testified this lead him to believe the bleeder system for the 001
section was inadequate and that the volume  of air on the section
needed  to  be  increased  to  "force"  the  air flow  to  change
direction (ANR Exh. 1 at 44,  45, 65-67, 69-70).   However, Reece
made  no  specific references to the No. 6 entry when  he  issued
Citation No. 4566305.

     While  Reece  and Hicks were in the No. 6 and No. 10 entries
of the 001 section,  Inspector  Carico  traveled  to  the bleeder
entries  on  the  back  side of the gob and evaluated the bleeder
system at its specified measurement  locations.  He found nothing
to indicate the system was functioning improperly (Stip. 38).

     All of the inspectors and Holbrook  returned  to the surface
and  Hicks  called the MSHA office.  Hicks advised Holbrook  that
MSHA was not  going  to  terminate the section 107(a) order as it
related to the 001 section,  although MSHA did agree to modify it
so that mining could resume on the 002 section (Stip. 39).

     In an attempt to have the  order  terminated,  ANR presented
MSHA  with a modified ventilation plan that indicated  ANR  would
resume  mining outby where the methane was detected in the No. 10
entry and  that  it  would leave two rows of pillar blocks intact
where the cracks emanating  methane  had  formed.   However, MSHA
refused to terminate the order (Stips. 40-41).  The agency feared
the  curtain  positioned  by  Campbell  would be knocked down  by
subsequent  roof falls and the methane levels  immediately  would
rise (see ANR  Exh. 1 at 53).  Rather than delay production while
it contested the order, the company chose to remove the equipment
and seal the 001 section (Stip. 41).

     In the meantime,  on  March  16,  Reece  issued Citation No.
4566305  alleging  a  violation  of  section  75.334(b)(1).  The
citation states:

          The bleeder system for the second mined  area
          (gob)  of  the  .  .  .  001 . . . section is
          inadequate   in   that   the  methane   being
          liberated on the . . . 001  .  . . section is
          not being diluted and rendered harmless,  and
          carried   away   during   normal   production
          operations.    Methane   is  presently  being
          liberated through cracks and  fissures in the
          mine roof in the No. 10 entry,  20  feet inby
          Survey Station No. 1850.  This methane cannot
          be  diluted,  rendered  harmless  and carried
          away  by  the present bleeder system  through
          normal ventilation  methods  and  procedures.
          This  citation  was a factor that contributed
          to the Issuance of  .  .  . Order No. 4566579
          dated  4/14/98, therefore no  abatement  time
          was set (Gov. Exh. 1).


     The citation and the order were terminated when the area was
finally sealed (Stip 43; Gov. Exh. 7).

                         SUMMARY DECISION

      Under the Commission's rules, a motion for summary decision
shall be granted if  the  entire  record  shows:   (1) No genuine
issue  as  to  any  material  fact, and; (2) The moving party  is
entitled  to  summary  decision  as   a   matter   of   law   (29
C.F.R.2700.67).   Summary  decision  is  only  authorized  "upon
proper showings of a lack of a genuine, triable issue of material
fact" (Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).    If
material facts are disputed, incomplete, or missing, a hearing is
necessary,   but  the  hearing  may  be  limited  to  the  issues
contingent upon  the  disputed,  incomplete, or missing facts (29
C.F.R. 2700.67(d)).

                            THE ISSUES

     The issues are whether the agreed  upon  facts  establish  a
violation  of  section  75.334(b)(1) as set forth in Citation No.
4566305; or, if not, whether  they  preclude finding a violation.
In order to resolve the issues it is  necessary to understand the
meaning of section 75.334(b)(1), which  in turn requires a review
of  the  standard's  derivation.   Also,  it  is   necessary   to
understand  the  place  of section 75.334(b)(1) in the regulatory
scheme and the elements necessary  to  prove  a  violation of the
regulation.

                      SECTION 75.334(b)(1)

     Section  75.334(b)(1) is a subsection of section  75.334,  a
regulation that  mandates  how  areas where pillars have been and
are  being  mined  are  to be ventilated.   Section  75.334(b)(1)
states in part:

               During pillar  recovery a bleeder system
          shall  be  used to control  the  air  passing
          through the  area  and to continuously dilute
          and move methane-air mixtures . . .  from the
          worked-out area away from active workings and
          into a return air course or to the surface of
          the mine.[[3]]

     Section 75.334 was promulgated in 1992 (57 FR 20869 (May 15,
1992)),  and has remained in effect  without  substantive  change
(see 61 FR  9828  (March 11, 1996)).  The section is derived from
previous sections 75.328  and  75.329,  and from ventilation plan
approval   criteria   then   found  in  section  75.316-2.     In
promulgating  the  standard,  the  Secretary  stated  that  these
predecessor  standards  "specif[ied]   use  of  bleeder  entries,
bleeder  systems  or  an equivalent means in  pillared  areas  to
control the accumulation  of  methane"  (57  FR  at 20866).   The
Secretary explained:

          During and after pillar recovery, methane . .
          .  is  liberated  from  the  coal and strata.
          When this occurs, bleeder systems route gases
          away  from worked-out areas and  areas  where
          pillars  are being mined.  [Section 75.334] .
          .  . revises  the  requirements  for  bleeder
          systems and establishes ventilation standards
          for  control  of  methane . . . in worked-out
          areas and for areas  where  pillars are being
          mined.

               *    *    *    *    *    *

               Where   pillars  are  being   fully   or
          partially   recovered,    paragraph    (b)(1)
          requires  the  bleeder  system  to be used to
          control the air passing through the  area and
          to  continuously  dilute and move methane-air
          mixtures . . . from  the worked-out area away
          from active workings and  into  a  return air
          course or to the surface
           . . . . MSHA generally consider[s]  bleeders
          to  be  a system of entries that form special
          air   courses    designed,   developed,   and
          maintained to continuously  move  gases  from
          retreat mining areas.

               *    *    *    *    *    *

               [A]ny    bleeder    system   used   must
          continuously  move gases from  the  mined-out
          area  and away from  active  working  into  a
          return air course or to the surface (57 FR at
          20886-87).

      The specifics of a bleeder system are determined on a mine-
by-mine  basis  and   are   specified   in  the  mine's  approved
ventilation plan (57 F.R at 20886).  This  is  because the system
is tailored to the conditions in the particular mine.  The system
"[d]epend[s]    on    particular   mining   conditions"   because
"[d]ifferent  mines  have   different   conditions   and  methane
liberation rates" (Id.).  The utility of the system is  gauged by
evaluating  the  system  pursuant  to  section  75.364  (57 FR at
20886),  a  regulation  that  states  the  frequency,  type,  and
location  of measurements that are made to establish the system's
effectiveness.

     As the  Secretary's  regulatory comments make clear, because
the  release of methane may  be  an  unavoidable  consequence  of
mining,  especially  during pillaring operations, the goal of the
system is to reduce the  level  of  methane on active workings by
moving it out of the workings, into and over the gob, and out the
return.  Continuous movement of the gas  is  intended  to keep it
from  building  to  a hazardous level.  However, the Act and  the
regulations also recognize  that  there  may  be  instances  when
methane  inevitably will build to hazardous levels and that these
instances  do  not necessarily represent violations of the Act or
its standards.

     In order to  establish  a violation of section 75.334(b)(1),
the burden is on the Secretary  to  show  that  a  cited  bleeder
system  did not continuously dilute and move methane-air mixtures
away from the worked-out areas into a return air course or to the
surface of  the  mine.   One  way  the  Secretary could meet this
burden  would  be  to  show  that the bleeder  system  ceased  to
function.  For example, if the  Secretary  found methane in areas
where  pillars  were  being  extracted  and  she  also  found  no
ventilation when she took measurements at the system's evaluation
points,  she  could establish that methane was not being  diluted
and moved without  interruption - that is, it was not being moved
"continuously".   However,  violations  such  as  this  would  be
unusual because bleeder  systems  rarely stop working altogether.
Rather than allege the system suffered  a  total  breakdown,  the
Secretary's  theory  usually  is  that the bleeder system did not
function effectively enough to meet the intent of the regulation.

     As stated previously, the Act  and the regulations recognize
the presence of methane may be inevitable when coal is mined, and
that accumulations of methane do not  represent per se violations
of the regulations.[4]  Nevertheless, the Act and the regulations
also recognize that there is a point at  which  methane becomes a
potential  hazard.   Therefore,  in  addition  to  maintaining  a
bleeder  system  that continuously dilutes and moves methane,  an
operator is required  to  test  for methane and to take action of
reduce the level of methane when  the tests show the methane at a
level of 1% or more (see 30 C.F.R. 75.323).

     Section 75.334 (b)(1) does not specifically state methane is
to be diluted so as to rendered it  harmless, but such clearly is
the standard's purpose.  Considering  a level of methane of 1% or
more to be an objective indicator that  the  system  may  not  be
"continuously  dilut[ing]  and  mov[ing]" the gas is a reasonable
interpretation of the standard.   Therefore,  a  finding of 1% or
more  of  methane  may be a signal to a reasonable operator  that
adjustments  are  needed   in  the  bleeder  system  to  keep  it
effectively diluting and moving methane.  If an operator fails to
make such adjustments to the  system  (as  opposed  to palliative
"fixes"  to  the  individual  incident  or incidents of excessive
accumulations), the operator may have violated the standard.

     In  such  a  case,  the existence of a violation  ultimately
turns upon whether the Secretary  can establish that under all of
the circumstances present a reasonable  operator,  familiar  with
the conditions in its mine, including but not necessarily limited
to the miner's history of methane liberation and the capacity  of
its  ventilation  system,  would  have  made  adjustments  to the
miner's bleeder system so as to ensure that methane continuously,
and  effectively, was diluted and moved away from active workings
and into the return.

           THE SECRETARY'S MOTION AND THE STIPULATIONS

     Although  the  citation was issued on March 16, 1998, it was
apparently based on conditions  that  existed from at least March
8, up to and following the roof fall of  March  14 (Reece Dep.17,
45, 59, 65-67).

     The Secretary states that "[t]he bleeder system  .  . . that
was  in  place  on  the  001  section allowed excessive levels of
methane to be present on the active  section  on  at  least  five
occasions  in  the  week  prior  to when . . . [the citation] was
issued[,]" and argues therefore "[i]t  was  reasonable  .  . . to
expect  that  .  . . continued mining on the 001 section, without
fundamental adjustments  being  made to the bleeder system, would
have resulted in further instances of excessive levels of methane
in the active areas of the section" (Sec's Mot. 5; see also Sec's
Resp. 1-2).  Simply put, the Secretary maintains the instances of
excessive  methane  "demonstrate  the   bleeder  system  was  not
adequate to dilute and carry away the methane during . . . normal
operations" (Sec. Resp. 4).

     To agree that the instances of methane  (Stips.  13-16,  19,
24;  Gov.  Exh.  6)  in  and  of themselves establish the bleeder
system was not adequate, would  be  to make repeated instances of
excessive  methane  tantamount  to a violation,  something  which
neither section 75.334 nor any other  standard  provides.   While
the instances of methane may be evidence that the system was  not
functioning  as  intended,  they  also  may represent a series of
singular  occurrences that would not have  alerted  a  reasonable
mine operator  of the need for adjustments in its overall bleeder
system.

     The Secretary  must present testimony from the inspector who
issued the citation,  and  perhaps  from  others,  as  to why the
methane accumulations found by the company and the inspector (see
Reece  dep.  at  38-39,  45) indicate the bleeder system was  not
being maintained in compliance  with  section  75.334(b)(1).  The
Secretary also needs to establish clearly just when the violation
came  into existence and what caused the violation  to  exist  at
that particular time.

     Further,   the  inspector  stated  in  his  deposition  that
following the March  14  roof  fall, the way the air moved in the
No. 6 entry lead him to believe the bleeder system was inadequate
(Reece Dep. 45).  On the face of the citation there is no obvious
link between the citation and the  conditions  in the No. 6 entry
that the inspector referenced.  If there is a link, the Secretary
needs  to present testimony establishing what it  is.   In  other
words, the  Secretary needs to demonstrate that the conditions in
the No. 6 entry  were connected with the accumulations in the No.
10 entry, if in fact  they  were,  and  why the conditions should
have signaled to ANR that the bleeder system  was inadequate.  In
so doing, it would behoove the Secretary to explain why Inspector
Hicks told Holbrook the air on the No. 6 entry  was  "not  a  big
concern" and the "condition was not a violation" (Stip. 37).

     Because  I  cannot  conclude the stipulations and supporting
materials establish the alleged violation, the Secretary's motion
for summary judgement must be denied.

                ANR'S MOTION AND THE STIPULATIONS

     Essentially, ANR argues that because in each instance it was
able to reduce the concentration  of  methane  to  below  1%, the
bleeder  system  was  adequate and did not fail.  ("Each time  an
unacceptable level of methane  was  detected,  the bleeder system
carried  away  the methane in a matter of minutes.   The  bleeder
system was adequate"  (ANR Rep. 4, see also ANR Mot. 2-5).)  In a
variation on this theme,  the  company  also asserts that because
mine personnel were able to eliminate hazardous levels of methane
in  relatively  short  periods  of  time  by  adjusting  existing
curtains or by erecting new curtains, the system  was  doing what
it  was designed to do -  move methane away from working  places,
into  the  gob,  and  out  a  return  (ANR  Mot. 4).  Finally, it
maintains the fact that the inspector detected  air  moving  from
the  gob  into the No. 6 entry is irrelevant.  The company points
out the inspector  did  not  mention the condition in the body of
the citation, nor did he mention  it  to  anyone at the mine (Id.
8).

     Taken together, the company's arguments,  the  stipulations,
and   the  supporting  documents,  do  not  preclude  finding   a
violation.    The  allegation  of  a  violation  pertains  to the
bleeder control system.  "The bleeder system for the second mined
area (gob) of the . . . 001 . . .  section is inadequate in  that
the  methane being liberated on the . . . 001. . . section is not
being  diluted, rendered harmless, and carried away during normal
production  operations"  (Gov.  Exh. 1).  The corrective measures
instituted by ANR to eliminate individual  instances of excessive
methane   did   not   necessarily  affect  the  overall   system.
Conceivable there was a  continuing  defect in the entire system,
despite  the  individual  corrections.   I   cannot  conclusively
determine  from  the  stipulations whether or not  this  was  so.
Further,  the  fact  the  methane  levels  were  reduced  by  the
adjustments does not answer  the fundamental question of why they
occurred in the first place, and  the stipulations and supporting
materials do not offer a definitive answer.

     Moreover, that the citation does  not specifically reference
the direction of air flow on the No. 6 entry  does  not mean that
the  information is irrelevant.  After all, the citation  charges
the system  was  inadequate,  and air flow on the No. 6 entry was
part of the system.

     Nor can I find that conditions  on the No. 6 entry should be
excluded  from  consideration  because  they  are  not  mentioned
specifically in the citation.  While it is true section 104(a) of
the Act requires a citation to "describe  with  particularity the
nature  of  the  violation" (30 U.S.C. 814(a)), the  purpose  of
this specificity requirement has been met in that the citation as
worded allowed ANR  to discern the conditions requiring abatement
(Stip. 43), and is allowing  ANR  adequately  to  prepare  for  a
hearing  (see  Cyprus  Tonopah  Mining  Corp., 15 FMSHRC 365, 379
(March 1993)).

     Finally,  because  in  deciding this case  it  will  in  all
likelihood be important to determine whether given the conditions
that existed at the mine a reasonable  operator  would  have made
adjustments  to  the  bleeder  system,  ANR  may  want  to  offer
testimony  explaining  why,  if  its Mine Operations Manager knew
before the events of March 13-14 that  the  mining  method  being
utilized  was  likely to produce the methane levels that resulted
(Stip. 30), it did  not  make  changes  in  its bleeder system to
prevent the hazard.


                      RULING ON THE MOTIONS

     Because   I  cannot  find  the  undisputed  material   facts
establish that the  bleeder  system  for  the 001 section was not
continuously diluting and moving methane-air  mixtures  away from
active workings and into a return or to the surface, or that  the
undisputed  material  facts  make  such a finding impossible, the
parties' motions for summary decision are DENIED.

                        NOTICE OF HEARING

     The stay order entered in this  case  is  DISSOLVED, and the
parties  are  advised  the matter will be CALLED FOR  HEARING  in
Abingdon, Virginia at 8:30  a.m.,  on  June  9-10,  1999.[5]   (A
specific  hearing  location  will  be designated later.)  Because
many  of  the  relevant  facts  have been  stipulated,  extensive
testimony is unnecessary.  Therefore,  each side will be afforded
four  hours  to present direct testimony regarding  its  case  in
chief.  Cross  examination  will  be  limited  to  40 minutes per
witness.  Rebuttal will be limited to one hour.


                                David Barbour
                                Administrative Law Judge


**FOOTNOTES**

     [1]:The parties agree that ANR will pay in full the proposed
penalties  for the violations alleged in the other two  citations
(Stips. 48,  49).  The agreement effectively settles the parties'
differences regarding  the  two citations, and I will approve the
settlement when I issue a final decision and order in this case.

     [2]:In  addition  to  meeting   Holbrook   underground,  the
inspectors  met  him  again  after they returned to the  surface.
Holbrook  believes  that  during   both   meetings  he  told  the
inspectors that ANR was going to pull back  several blocks before
it resumed pillaring operations and that it was  going  to  leave
Campbell's curtain in place when it pulled back.  Reece and Hicks
do not recall discussing these matters with Holbrook (Stip. 36).

     [3]:Neither  the  regulations  nor the Dictionary of Mining,
Mineral,  and  Related  Terms  (DMMRT) define  "bleeder  system".
However, the DMMRT defines "bleeder  entries"  as  "panel entries
driven  on  a  perimeter  of  a  block  of  coal being mined  and
maintained as exhaust airways to remove methane promptly from the
working faces to prevent buildup of high concentrations either at
the face or in the main intake airways."  It  states that bleeder
entries are "[w]idely used for draining methane in coal mines . .
.  where  the  room-and-pillar  method [of mining]  is  employed"
(American Geological Institute  DMMRT 451 (2nd ed. 1977) ).

     [4]:The  Secretary  has acknowledged  this  by  noting  that
"Neither the Act nor the regulations provide that a mere presence
of methane gas in excess of 1[%]. . .is per se a violation" (U.S.
Department of Labor, Mine  Safety  and  Health Administration, V.
Program Policy Manual 34 (1996)).

     [5]:In  Consolidation  Coal Company, 20  FMSHRC  227  (March
1998), the Commission divided  equally  over  whether  Commission
Administrative   Law  Judge  George  Koutras  properly  held  the
Secretary did not  prove  a  violation  of  section 75.334(b)(1),
despite the fact methane accumulated on a pillar  section  to the
point  where a fatal explosion occurred (17 FMSHRC 1982 (November
1995)).   The  result of the Commission's decision was to let the
judge's decision stand as if affirmed.  The decision was appealed
to the United States Court of Appeals for the Fourth Circuit, and
ANR requests that  if  I believe the Commission's decision is not
entitled to precedential  benefit,  I  stay this matter until the
Court rules (ANR Rep. 1).

     ANR's  request  is  respectfully  denied.    Judge  Koutras'
decision was highly fact specific.  It seems probable  to me that
the  forthcoming  decision  of the Court of Appeals also will  be
fact  specific,  making  it unlikely  to  provide  any  precedent
directly applicable to this case.


Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson  Boulevard, Room 516, Arlington, VA 22203 
(Certified Mail)

Julia Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O.  
Box  553, Charleston,  WV 25322 (Certified Mail)