<DOC>
[DOCID: f:l94-168r.wais]

 
BRUSHY CREEK COAL CO.
June 19, 1995
LAKE 94-168-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            June 19, 1995

BRUSHY CREEK COAL COMPANY, :  CONTEST PROCEEDINGS
          Contestant       :
             v.            :  Docket No. LAKE 94-168-R
                           :  Citation No. 4260292; 3/29/94
SECRETARY OF LABOR,        :
  MINE SAFETY AND HEALTH   :  Docket No. LAKE 94-171-R
  ADMINISTRATION (MSHA),   :  Citation No. 4260295; 3/29/94
          Respondent       :
                           :  Docket No. LAKE 94-172-R
                           :  Citation No. 4266730; 3/29/94
                           :
                           :  Docket No. LAKE 94-173-R
                           :  Citation No. 4266732; 3/29/94
                           :
                           :  Docket No. LAKE 94-174-R
                           :  Citation No. 4266773; 3/29/94
                           :
                           :  Docket No. LAKE 94-175-R
                           :  Citation No. 4260297; 3/29/94
                           :
                           :  Docket No. LAKE 94-176-R
                           :  Citation No. 4261610; 3/29/94
                           :
                           :  Brushy Creek Mine
                           :  Mine I.D. No. 11-02636
                           :
SECRETARY OF LABOR,        :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH   :
  ADMINISTRATION (MSHA)    :  Docket No. LAKE 94-250
          Petitioner       :  A.C. No. 11-02636-03864
     v.                    :
                           :  Docket No. LAKE 94-251
BRUSHY CREEK COAL CO.,     :  A.C. No. 11-02636-03865
  INC.,                    :
          Respondent       :  Docket No. LAKE 94-459
                           :  A.C. No. 11-02636-03866
                           :
                           :  Brushy Creek Mine

                       DECISIONS

Appearances:   Christine M. Kassak, Esq., Office of the
               Solicitor, U.S. Department of Labor, 
               Chicago, Illinois, for Petitioner\
               Respondent;
               Karl F. Anuta, Esq., Boulder, Colorado,
               for Respondent/Contestant.

Before: Judge Koutras

              Statement of the Proceedings

     These consolidated proceedings concern notices of
contest filed by Brushy Creek Coal Company (Brushy Creek),
pursuant to Section 105(d) of the Federal Mine Safety and 
Health Act of 1977, challenging the legality of seven (7)
section 104(a) citations issued at the mine on March 29 
and 30, 1994, in the course of a MSHA ventilation 
inspection.  The civil penalty cases concern proposed 
assessments filed by the Secretary against Brushy Creek 
for the alleged violations.  Consolidated hearings were 
held in Evansville, Indiana, and the parties filed post-
hearing arguments that I have considered in the course
of my adjudication of these matters.

                         Issues

     The issues presented in these proceedings are whether 
the cited conditions or practices constituted violations 
of the cited safety standards, whether the alleged 
violations were "significant and substantial" ("S&S"), and
the appropriate civil penalties to be imposed for the 
violations, taking into account the penalty criteria found
in section 110(i) of the Act.  Additional issues raised by 
the parties are identified and disposed of in the course 
of these decisions.

            Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977, 
   30 U.S.C.  301, et seq.

2. Sections 104(d), 105(d) and 110(a) and (i) of the Act.

3. 30 C.F.R.  75.332(a)(1), 75.334(a)(1), 75.370(a)(1),
   75.380(f)(1), 75.503, and 75.507-1.

4. Commission Rules, 29 C.F.R.  2700.1, et seq.

                             Stipulations

     The parties stipulated to the following (Joint
Exhibit-1; Tr. 10-12):

     1.  The Federal Mine Safety and Health Review 
         Commission has jurisdiction over these
         proceedings.

     2.  Brushy Creek and its mines are subject to the 
         Mine Act.

     3.  At all relevant times to these proceedings, 
         Brushy Creek owned and operated the Brushy Creek 
         Mine, a bituminous coal mine located in Galatia, 
         Illinois.

     4.  Brushy Creek's operation affects interstate 
         commerce.

     5.  The subject mine produced 1,123,941 tons of
         bituminous coal from January 1, 1993 through 
         December 31, 1993.

     6.  Brushy Creek produced 2,614,239 tons of bituminous
         coal at all of its mines from January 1, 1993 
         through December 31, 1993.

     7.  The subject citations were properly served by 
         duly authorized representatives of the Secretary 
         of Labor upon agents of Brushy Creek on the dates
         indicated therein.

     8.  The subject citations may be admitted into 
         evidence for establishing their issuance, and not 
         for the truthfulness or relevancy of any 
         statements asserted therein.

     9.  The exhibits to be offered by Brushy Creek and the
         Secretary are stipulated to be authentic but no
         stipulation is made as to their relevance or the 
         truth of the matters asserted therein.

     10. The proposed penalties for each citation will not
         effect Brushy Creek's ability to continue in 
         business.

     11. Brushy Creek demonstrated good faith by abating
         the cited violations.

     12. The certified copy of the MSHA Assessed 
         Violations History (Joint Exhibit 3) accurately
         reflects the history of the subject mine for two 
         years prior to March 29, 1994.

                       Discussion

Docket Nos. LAKE 94-168-R and LAKE 94-250

     Section 104(a) "S&S" Citation No. 4260292, issued on
March 29, 1994, by MSHA Staff Engineer Jeffery Wirth, 
cites an alleged violation of 30 C.F.R. 75.332(a)(1), and 
the cited condition or practice states as follows:

     Return air is flowing out of the old 5-B worked out
     panels/rooms and is traveling inby to the #5 unit
     producing continuous miner section, MMU-005.  This 
     air is flowing into the old 5-B worked out panels 
     and continues on inby after exiting the worked out 
     area to the producing section.  This is the same 
     split of air and is not intake air.

Docket Nos. LAKE 94-171-R and LAKE 94-251

     Section 104(a) "S&S" Citation No. 4260295, issued on
March 29, 1994, by Mr. Wirth, cites an alleged violation 
of 30 C.F.R. 75.507-1, and the cited condition or practice
states as follows:

     The old 5-B worked out panel (return air) is being
     traveled with non-permissible equipment - golf carts,
     etc.  Golf carts are present in the worked out area 
     at the time of inspection.  Air quality in this 
     worked out area was found to be as follows:  methane 
     1.9% and oxygen at 18.8% in an area 4 entries wide 
     and 23 X C long.

Docket Nos. LAKE 94-173-R and LAKE 94-250

     Section 104(a) "S&S" Citation No. 4266732, issued on
March 29, 1994, by MSHA Inspector James Holland, cites an
alleged violation of 30 C.F.R.  75.334(a)(1), and the 
cited condition or practice states as follows:

     A worked out area was not ventilated to move methane
     into a return air course or to the surface.  
     Evidence of 1.9% CH4 and 18.8% 0/2 was present.

Docket Nos. Lake 94-174-R and LAKE 94-459

     Section 104(a) non-"S&S" Citation No. 4266733, 
issued on March 29, 1994, by Mr. Holland, cites an 
alleged violation of 30 C.F.R.  75.380(f)(1), and the 
cited condition or practice states as follows:

     The current of air used to ventilate the primary
     escapeway for the No. 5 unit located in Southwest
     Mains was not ventilated with intake air.

Docket Nos. LAKE 94-175-R and LAKE 94-250

     Section 104(a) "S&S" Citation No. 4260297, issued on
March 30, 1994, by Mr. Wirth, as a section 104(d)(1)
citation, and subsequently modified on April 28, 1994, to 
a section 104(a) citation, cites an alleged violation of 
30 C.F.R.  75.370(a)(1), and the cited condition or 
practice states as follows:

     The continuous miner was observed cutting/loading
     coal from the working face with very little air 
     movement behind the line curtain. The anemometer 
     would not turn in all the area behind the line 
     curtain indicating that the velocity was less than 
     50 feet per minute (fpm) in much of the area behind
     the line curtain. A velocity of 50 fpm would result 
     in a volume of about 1,000 cubic feet per minute at
     the end of the line curtain. With the machine 
     mounted scrubber not in operation the blades on the
     anemometer would not turn at all.  A methane test 
     taken in this working place when mining ceased 
     indicated methane present at a level of 0.4%.  This 
     producing section has been back in this area since 
     3/28/94.  The operator pulled out of this producing 
     section during April, 1993 due to large amounts of
     methane migrating through the bottoms from an 
     abandoned mine located approximately 90 feet to 120 
     feet directly below this area.  The ventilation plan 
     approved by the district manager on 6/18/93 requires 
     6,500 cfm of air to be maintained at the end of the 
     line curtain at all times the machine is cutting or 
     loading coal on long cuts using remote control.

Docket Nos. LAKE 94-176-R and LAKE 94-250

     Section 104(a) "S&S" Citation No. 4261610, issued 
on March 30, 1994, by MSHA Mining Engineer Michael A. 
Bird, as a section 104(d)(1) order, and subsequently 
modified on April 28, 1994, to a section 104(a) citation, 
cites an alleged violation of 30 C.F.R.  75.370(a)(1), 
and the cited condition or practice states as follows:

     The approved ventilation plan was not being complied 
     with on the #5 unit (MMU-005).  The ventilation plan 
     states that on long cuts using remote control miners 
     the line curtain will be maintained to within 40 
     feet of the deepest penetration of the face.  The 
     line curtain measured sixth-six feet from the 
     deepest penetration in the number six entry were 
     [sic] coal was being cut and loaded.  When the miner
     operator was asked he stated that the maximum 
     curtain was 40 feet.  This producing section has 
     been back in this area since 3/28/94. The operator 
     pulled out of this producing section during April, 
     1993 due to large amounts of methane migrating 
     through the bottoms from an abandoned mine located 
     approximately 90 to 120 feet directly below this 
     area.

                    MSHA's Testimony and Evidence

     Jeffery Wirth testified that he has worked for MSHA 
for two years and seven months as a district staff mining
engineer.  He received a B.S. degree in mining 
engineering in 1982 from Southern Illinois University, 
Carbondale, and started working in mines upon graduation.  
He attended MSHA's 13-week training program at the Mine 
Academy in Beckley, West Virginia, attended additional 
classes in ventilation, and has had on-the-job training 
with MSHA.  He is a member of the Society of Mining 
Engineers, has served as a district instructor in mine 
disasters, holds Kentucky mine foreman and shot firers 
papers, Illinois mine manager's papers, and has 10 years 
of mining experience (Tr. 34-40).

     Mr. Wirth stated that his MSHA duties include 
assisting mine operators with ventilation plans, 
reviewing such plans, and conducting ventilation reviews.
He also conducts mine site inspections on the average of 
two days a week and the inspections are usually 
ventilation oriented.

     Mr. Wirth identified Citation No. 4260292, and 
explained that it was issued during a "ventilation 
saturation inspection" conducted by six MSHA inspectors 
(Tr. 45).  He stated that there was a methane problem at
the mine and that methane was liberating from the mine 
floor from an old sealed and abandoned Peabody No. 47 mine
located 90 feet below and migrating through the Brushy 
Creek Mine (Tr. 46-47).

     Mr. Wirth confirmed that the conditions described in
the citation area were accurate, and he believed that it 
was reasonably likely that an injury or illness would 
occur for the following reasons (Tr. 48):

     A. Basically, because the air was entering an 
        extensive worked-our area, and it wasn't being
        properly examined, and there was an area in this
        worked-out area that was approximately a third of
        a mile long, a body of methane present that we
        found upon walking this area that was hanging in
        there, and there was no air movement in that air
        area.  It would be very easy for the contaminated
        air in this worked-out area to enter the 
        producing section.

     Q. So, what hazard did you identify as being 
        reasonably likely to contribute to an accident or
        an illness?

     A. The fact that the Number 5 unit was not being
        ventilated with a separate split of fresh or 
        intake air.  In fact, the Number 5 unit was being 
        ventilated with contaminated return air that was 
        exiting the old 5-B worked-out panels.

     Mr. Wirth explained that the gist of the violation
is that air that was used to ventilate the old worked-out 
panels was then coursed out of those areas and was used to
ventilate the coal producing faces on the section before 
going into the return air course and exiting the mine 
(Tr. 49-50).  He further explained that clean ventilation 
air on a separate split should have been used to ventilate 
the producing section, rather than using the air that had 
swept over the old worked-out area (Tr. 50).

     Mr. Wirth stated that he based his "S&S" 
determination on the fact that methane was being liberated 
from the old Peabody Mine and migrating through the 
respondent's mine, and the worked-out area was not being 
properly pre-shifted or examined weekly (Tr. 53-54).

     Mr. Wirth stated that he made a finding of moderate
negligence because the respondent was in the process of
sealing up the worked-out area and knew that it was a
worked-out area and not an air course.  He stated that an
air course is not sealed and a worked-out area is sealed
because "you're pulling out of or have pulled out of that
you have no intention of going back into" (Tr. 54).  He
defined a "worked-out area" as "an area where mining has
been completed, whether pillared or nonpillared, and
it does not include an intake or return air course," and
also referred to the definition found in section 75.301
(Tr. 55-56).

     Referring to a mine map of the cited area, referred
to as the 5-b panel (Exhibit G-2), Mr. Wirth explained 
that an "active area," as opposed a worked-out area, "is
where you're either setting up mining equipment for a 
mechanized mining unit, you're recovering mining equipment, 
you're pulling out of the area, you still have the 
equipment you're recovering, or its a mechanized mining 
unit" (Tr. 59).  He stated that when he traveled the 
cited area there was no coal production in progress, no 
coal producing equipment, no power, and no continuous 
mining unit in operation (Tr. 59-60).

     Mr. Wirth pointed out the location where the seals 
were being constructed, and he stated that when he entered 
the area two seal forms had been constructed and were 
ready for pouring, and five men were working constructing 
additional forms to close off the entire area permanently 
(Tr. 61).  He further explained as follows (Tr. 62):

     JUDGE KOUTRAS: If those seals had been completed
     before you got there, would we have this case?

     THE WITNESS: No.

     BY MS. KASSAK:

     Q. Why is that?

     A. Because this area would have been sealed up, and
        there is no access.  Once an area like this is 
        sealed up, there is no access to get back in here.
        The intake air would have flowed down this air 
        course here, past thee seals which would have 
        been required to be pre-shifted, then continuing 
        on to the producing section right down here.

     Mr. Wirth confirmed that coal was being produced on 
the No. 5 Unit.  He confirmed that he walked the perimeter 
of the worked-out area to the areas of deepest penetration 
and found no dates, times, or initials, or evidence that a 
weekly examination was being conducted pursuant to section 
75.364 and he issued a citation for that (Tr. 64).

     Mr. Wirth stated that stoppings were present along 
the worked-out area where the panels had been roomed, and 
he observed a low area where permanent ventilation control
devices were in the process of crushing out.  When the
inspection party passed through a personnel door in a
stopping, all of their methane and air monitoring testing
instrument alarms went off indicating that there was a
problem with low oxygen and high methane, and this was
substantiated with bottle samples.  Smoke tube tests
indicated no air movement, with oxygen levels at 18.8
percent and methane levels up to 1.8 percent, and he 
marked these areas on the mine map (Tr. 66-67).  The 
oxygen level was below normal and the methane level was 
higher than the 1.0 percent allowed in an active working 
section.  There is no specific methane limit in a 
worked-out area, "until you get close to an explosive 
range, and then there is a problem with imminent danger" 
(Tr. 68).  He would not have expected 1.8 methane if the 
area were properly ventilated (Tr. 70).  He confirmed 
that it took approximately four and one-half hours to 
walk the worked-out area in question (Tr.73).  He also 
confirmed that the respondent was required to examine the
worked-out area weekly to the furthest point of mining in 
each area, and that would be in the corners. An intake 
air course is required to be pre-shifted pursuant to
section 75.360 (Tr. 76).

     Mr. Wirth defined "return air" as "air that has 
ventilated a worked-out area or has ventilated the last 
place in a working section" (Tr. 83).  He confirmed that 
return air was flowing out of the old 5-B worked-out 
panels and rooms and was traveling inby to the No. 5 Unit 
producing continuous miner section MMU-005, and 
ventilating that area (Tr. 83-84).  In his opinion, a 
separate split of intake air should have been used to 
ventilate the coal producing area, and the return air 
coming out of the worked-out panel should have been
coursed out through an overcast across the intake entry
(Tr. 84-85).

     In further explanation of why he believed section
75.332(a)(1) was violated, Mr. Wirth stated as follows
(Tr. 86-88):

     THE WITNESS: This is the case because the air that is
     entering the worked-out area is traversing through 
     the worked-out area and is continuing on to the 
     producing section.  The producing section does not 
     have a separate split of fresh intake air.  It's 
     being ventilated with return air that's coming out of
     the worked-out area.

     JUDGE KOUTRAS: If that seal had been in place, then
     the working section and that working area and 
     producing section would have been ventilated by the
     intake air coming in, correct?

     THE WITNESS: Correct.  If that had been sealed off --

     JUDGE KOUTRAS: But since it was diverted and went
     through that area where they were constructing the 
     seal was being used to ventilate that area, your 
     position or MSHA's position is that that became 
     return air.

     THE WITNESS: Correct.

     JUDGE KOUTRAS: And when it got back down and back 
     coursed down in the working face, it was still return
     air.

     THE WITNESS: That's right.

     BY MS. KASSAK:

     Q. Can return air ever become intake air?

     A. No.  Intake can become return but return can't
     become intake.  It doesn't work that way.

     * * * *

     Q. And the only air to that working section was that 
     coming out of the worked-out area?

     A. The only air to ventilate those working faces on 
     that unit was coming out of that worked-out area.

     Q. You saw no split to provide for fresh intake air?

     A. There were no splits present.

     Mr. Wirth believed the cited condition was hazardous 
because in an area that is not examined, "you don't know 
what's going on," and oxygen may drop and methane may rise,
which was in fact the case.  Also, a roof fall would cause
permanent ventilation control devices to fail, and the air 
containing the methane would migrate to the coal producing 
faces where miners are working (Tr. 89). He confirmed that 
the methane levels he found would not result in a citation 
if the area were considered a worked-out area, but if it is 
considered an intake air course, methane in excess of 1.0
percent would be a violation (Tr. 94).  He confirmed that 
a golf cart he observed in the work-out area was an 
ignition source, and he issued a citation for this 
(Tr. 95).

     On cross-examination, Mr. Wirth confirmed that he was 
not aware that the cited 5-B area was there prior to the
day of his inspection.  He was told how the 5-B area was 
being ventilated while he was on the mine surface and was 
shown the mine map as it was that day and he knew where 
the area was when he arrived underground (Tr. 103-104).  
He explained his route of travel and confirmed that he was 
accompanied by company representative Gene Culpepper who 
was riding a golf cart. Mr. Culpepper was on one side of
the permanent ventilation devices, and Mr. Wirth and the
union walkaround representative were on the other side
(Tr. 106).

     Mr. Wirth stated that his methane detector did not 
go off while walking the area prior to going through the
personnel door (Tr. 108-109).  He confirmed that a 
stopping line ran through the area in question, even
though it is not shown on map Exhibit G-2 (Tr. 111). Mr.
Wirth confirmed that he has Illinois state mine manager 
papers, but was not current on the requirements of state 
law, and believed that an intake air course and return 
seals need to be examined 24 hours prior to a shift under
state law (Tr. 112).  He confirmed that there were no
seals in the cited 5-B area, but they were being 
constructed at the mouth, and once completed, they were 
required to be preshifted prior to any work in that area 
(Tr. 113).

     Mr. Wirth stated that as he entered the cited area 
with Mr. Culpepper, they passed through a pair of open air
lock equipment doors.  A scoop was being pulled through
the doors and both sets were open because the scoop was
too long, and Mr. Wirth commented to Mr. Culpepper, 
"aren't those doors supposed to be closed?" (Tr. 115). Mr.
Culpepper replied, "yes," and closed the doors after the
scoop passed through (Tr. 16).

     Mr. Wirth stated that he noticed red reflectors while
walking the area with Mr. Culpepper, and Mr. Culpepper told
him that red reflectors indicated "return air," but stated
that he did not know why they were in the area.  Mr. Wirth
observed no one changing any markers (Tr. 123).  He further
stated that Mr. Culpepper took the position that the cited
area was an intake air course (Tr. 130).

     MSHA Supervisory Mining Engineer Mark Eslinger 
testified that he reviewed Mr. Wirth's "S&S" findings in 
connection with Citation No. 4260292, and that he agreed 
with them (Tr. 135).  He stated that he was in the mine 
nine months earlier in a different area and was concerned 
with the methane coming through the floor.  When he was 
there with Mr. Wirth, it was only the second day of mining, 
and he was concerned that once mining started up again, 
methane would again come up through the floor.  He also 
confirmed that he found methane in the worked-out 5-B 
floor area, and it could travel to the working section at 
any time (Tr. 134-137).

     Mr. Eslinger stated that in approximately April, 1993,
mining ceased in the 5-A active working area and the
equipment was pulled back in order to mine the presently
worked-out 5-B area.  Mining then stopped in that area, 
the seal construction was started, and mining resumed in 
the 5-A area that was mined earlier in 1993 (Tr. 141).

     Mr. Eslinger stated that .4 and .5 percent methane
was found at the faces of the active coal producing area 
and there was sufficient air quantity sweeping those 
faces. The oxygen was sufficient and there was no evidence 
of any carbon monoxide (Tr. 145-146).  He agreed that all 
of the air sweeping the working faces "was up to snuff,"
and even though the air was within legal limits, once it 
ventilates the worked-out area it is return air, and it 
can not be used to ventilate the working faces (Tr. 147).

     On cross-examination, Mr. Eslinger could not recall 
if the mine was placed on a 5-day spot inspection schedule
after January, 1994, and he stated that such scheduling is 
done by the MSHA field office (Tr. 152).  He confirmed 
that his methane detector was set to go off at 2.5 percent 
methane, and when he went through the permanent stopping 
doors in the 5-B area, it sounded, but it did not do so 
prior to that time (Tr. 154).  He confirmed that the 
highest methane reading at the working face was five 
tenths (Tr. 155).

     Mr. Eslinger stated that all of the air leaving the 
worked-out area would be return air that would be coursed 
out of the mine.  Since the air had entered and ventilated 
the worked-out area, and was then used to ventilate the 
faces where mining was taking place, it was return air 
(Tr. 158). He stated that there was nothing in the mine 
ventilation plan that would allow the respondent to do 
what it was doing and that the mandatory sections of the 
regulations, and not the ventilation plan, are applicable 
in this case (Tr. 159).

     Inspector Wirth confirmed that he issued Citation
No. 4260295 (Tr. 162).  He stated that the exceptions
noted in section 75.507-1, paragraphs (b) and (c), do not
apply to the cited conditions.

     Mr. Wirth confirmed his gravity finding of 
"reasonably likely," and identified the hazard as the non-
permissible golf cart driving through the worked-out area 
that was not being properly ventilated in that there was 
no air movement, and where a body of methane was present.  
Based on these conditions, he concluded that if work had 
been allowed to progress, it was very likely that an 
explosion would occur because the golf cart was an 
ignition source, and it would be driven into the methane,
which constituted an odorless and tasteless fuel for an 
explosion.  He identified the driver as Gene Culpepper, 
the respondent's representative who was accompanying him 
during his inspection.

     Mr. Wirth confirmed that once he determined that the 
area was a worked-out area, he took action to keep the 
golf cart out (Tr. 165-166).  He confirmed that the 
location of the golf cart when he observed it was outby 
the last open crosscut and he marked the location with a 
circled "GC" on the mine map (Exhibit 0-2).  He confirmed 
that the golf cart area was being ventilated by return 
air, and stated that the golf cart is non-permissible per 
se and the respondent's counsel conceded that this was 
the case (Tr. 170).  Mr. Wirth confirmed that he did not 
inspect the golf cart (Tr. 171).

     On cross-examination, Mr. Wirth stated that in the 
course of his inspection, he observed two golf carts in 
the worked-out area at two different times, and he 
observed Mr. Culpepper on one of them at the end of the 
evening.  He did not observe the vehicle serial number 
and did not know if Mr. Culpepper drove more than one 
cart (Tr. 174).

     Mr. Wirth believe that Mr. Culpepper drove the golf
cart out and he allowed him to do it after the cart was 
pushed out of the edge of the body of methane.  Mr. Wirth 
tested the methane before the cart was started, and it was 
below the permissible limit (Tr. 177).  He had not yet 
written the citation at that time and the golf cart was 
not taken out of service (Tr. 180).

     Mr. Eslinger testified that he is employed by MSHA as 
a ventilation supervisor.  He holds a college degree in 
civil engineering and is a registered engineer in the 
State of Indiana.  His duties include the supervision of 
five ventilation inspectors and evaluating and approving 
mine ventilation plans.  He also served on an MSHA 
committee that rewrote the ventilation regulations, 
including the ones in issue in these proceedings 
(Tr. 195-197).

     Mr. Eslinger confirmed that he supervised a
saturation and ventilation inspection of the mine and five 
inspectors were underground inspecting different mine 
areas.  He accompanied Inspector James Holland during the 
evening shift inspection on March 29, 1994, and he 
identified a copy of Citation No. 4266732, issued by Mr. 
Holland.  The citation reflects that there was 1.9 percent 
methane and 18.8 percent oxygen present in the cited 
worked-out 5-B area (Tr. 199). Mr. Eslinger stated that as
he and Mr. Holland were leaving the 5-B area they went 
through a personnel door and their methane and air 
instrument CMX 270 detectors sounded and recorded the 
readings reflected in the citation.  In addition, Mr. 
Eslinger used smoke tubes, and Inspector Wirth took bottle
samples, to confirm their findings (Exhibit G-3; 
Tr. 200-201).

     Mr. Eslinger confirmed that Mr. Holland cited a 
violation of section 75.334(a)(1), which requires worked-
out areas to be ventilated so that methane air mixtures 
and other gases and dust fumes are continuously diluted 
and routed into a return air course or to the mine 
surface.  He explained that "continuously diluted" means 
that there is air movement that takes out gases to a 
return air course and to the mine surface.  He confirmed 
that he could find no air movement in the area in 
question and when he used a smoke tube, "the smoke 
mushroomed up into the air and just stayed there; did not 
move" (Tr. 202).  He further confirmed that he personally 
observed the conditions in question (Tr. 203).

     Mr. Eslinger believed that the cited conditions 
presented a hazard because the lack of air movement 
indicated that the area was not being ventilated and the 
methane was building up and the oxygen was being depleted.  
The methane could rise to an explosive level and could be 
ignited, and it would also move towards the working 
section where mining was taking place.  He agreed with Mr. 
Holland's "S&S" finding (Tr. 204-205).

     Mr. Eslinger agreed with Mr. Holland's "moderate" 
negligence finding and he confirmed that he discussed the 
citation with Mr. Holland and agreed that it accurately 
reflects the conditions that he (Eslinger) personally 
observed (Exhibit G-5; Tr. 207).

     On cross-examination, Mr. Eslinger explained what was 
done to terminate the cited conditions and indicated that 
certain man doors were opened up to allow air to circulate 
through the area in order to dilute the methane.  He 
marked the locations of the doors on map Exhibit 0-2, as 
part of his explanation, and believed that more than five 
doors were opened (Tr. 214-220).

     Mr. Eslinger described the ventilation in place as 
"a very unusual ventilation arrangement" in that when he 
initially saw it on a map be remarked that "we've got a 
worked-out area that's being ventilated and the air is 
going to the faces" and he also found that the neutral area 
was not ventilated (Tr. 222).

     Mr. Eslinger confirmed that he found the poor quality 
of air in the area between the stoppings in the worked-out 
5-B area.  Since he detected no air movement there, he 
concluded that there was no continuous dilution and 
routing of the air into a return air course (Tr. 229-232).

     Mr. Eslinger confirmed that he did not test the air 
in the bottom "bottle" shaped area surrounded by red 
stopping lines, as shown on Map Exhibit 0-2.  However, 
after walking through the area and passing "the neck of 
the bottle," he found that the air quality improved 
(Tr. 235-36).

     Mr. Eslinger stated that the cited standard requires 
the air to be "continuously diluted," meaning "all of the 
time" in a worked-out area so as to continuously move the 
methane. He further stated (Tr. 241):

     Q. So, as long as you found one place, where there 
        was no movement, as you've testified with the 
        smoke tube and the cloud of smoke just hangs 
        there, that's one place in the worked-out area
        where you know there was no air movement?

     A. Yes.  We determined that throughout this one
        bottle, as I'm calling it, there was no air 
        movement.

     Q. How much of an area is that bottle?

     A. Mr. Wirth alluded to it before, it's about one-
        third of a mile by 240 feet, 250 feet; whatever.

     Mr. Eslinger confirmed that he took no anemometer 
readings because "it would not turn in that low velocity" (Tr.
243).  He confirmed that the air exiting in the worked-
out area in question has to pass by the working section
to get out to the return air course and out of the mine
(Tr. 244).

Mr. Eslinger confirmed that Citation No. 4266733 was
issued by Inspector James Holland because the cited
primary escapeway was ventilated with return air rather
than intake
air.  (Mr. Holland was unavailable for the hearing
because of a "severe back problem.")  Mr. Eslinger
accompanied him during his inspection (Tr. 9).  Mr.
Eslinger stated that the cited condition violated
section 75.308(f)(1), and although there was another
escapeway that was ventilated with intake air, since
there was a belt in it, it could not be the primary
escapeway.

Mr. Eslinger stated that mine management designates the
primary and alternate escapeways and marks them with
reflectors.  He confirmed that he was with Mr. Holland
and observed the primary escapeway area and agreed that
it was being ventilated with return air.  He determined
that the air was return air by walking the air course
that was bringing air to the unit back to the point
where it entered the worked-out area where the previous
citations were issued, and "the air that was what the
operator wishes to call intake was under our
determination return air" (Tr. 258).  Referring to a
mine map, Exhibit G-2, he identified and located the
"primary escapeway" as the "air course here on the
right side of the main southeast main was designated as
their intake escapeway, *** or I call it the intake;
it's the primary escapeway" (Tr. 258).

Mr. Eslinger stated that the primary escapeway was desig-
nated with colored reflectors, it was required to be
shown on the map of the unit, and employees should be
instructed on the escape route (Tr. 259).  He explained
that he and Mr. Holland walked down the escapeway in
the opposite direction from where mining was advancing
and when they reached the old 5-B worked-out area, they
turned into it.  The markings in the worked-out area
were a different color, but he could not recall the
color (Tr. 261).

Mr. Eslinger believed that management intended to remove
some stoppings once the seals at the worked-out area
were com-pleted, and this would allow travel "straight
right out of the mine" (Tr. 261).  However, at the time
of the inspection,  the seals were not installed and
the stoppings were in place. Under the circumstances,
the men would have to travel a circuitous three-and-one
half mile route around the stoppings to get out
of the mine (Tr. 262-265).

Mr. Eslinger agreed with Mr. Holland's "moderate" negligence
finding.  He also agreed with the non-"S&S" gravity
finding (Tr. 265-266).

On cross-examination, Mr. Eslinger stated as follows
(Tr. 269):

     Q. Thank you.  You've heard the discussions
here with respect to whether this is an intake air
course or whether it's a worked-out area?

     A. Yes.

     Q. If it's an intake air course, then this
citation wouldn't stand; is that correct?  Then,
the primary escapeway would have been ventilated with
intake air?

     A. That's correct.

     Q. But, if it's a worked-out area, I guess it
would have to stand in your opinion?

     A. That's correct, because they did not have an
escapeway ventilated with intake air that didn't have
a belt.  The other one was intake air, but it had a belt.

Mr. Eslinger confirmed that after the seals were completed,
the cited escapeway air course became intake air and the
citation was terminated.  Prior to the sealing, however, the
escapeway
was being ventilated with return air and this did not meet
the definition of primary escapeway (Tr. 270).

Mr. Eslinger stated that he did not review the mine file and
that the mine map he had on file in his office did not show
the ventilation arrangement shown on the exhibit and the
escapeways were not marked.  He was not certain about the
reflector colors, and stated that management was hoping to
complete the seal work in two weeks and "we wouldn't catch
it" (Tr. 274).

Mr. Eslinger stated that if anyone working at the face
wanted to leave the mine by using the primary designated
escape-way up one of the two entries shown on the map, they
would have encountered the concrete block stopping walls and
would have had to turn into the worked-out area and gone
through several man doors to end up in the intake escapeway
(Tr. 277).

Mr. Eslinger characterized the ventilated worked-out area
as "a classic worked-out area."  He stated that mining was
completed (Tr. 282, 285).  He confirmed that management did
not submit a ventilation plan showing the method of
ventilating the worked-out area as shown on the maps in
question (Tr. 285).  He reviewed the ventilation mine map at
the time of the inspection and it showed mining taking place
in the worked-out area and the ventilation scheme on that
map was sufficient because it showed that mining was going
on (Tr. 286).  He further explained as follows (Tr. 287):

     JUDGE KOUTRAS: Do you think by starting
construction on that seal that it was the intent of
the operator here to permanently seal that area and
abandon it and never go back to mining there again?

     THE WITNESS: Right.  They were never going to
go back.  And you only seal a worked-out area.  It
says a worked-out area has to be either sealed or
ventilated.  By their own admission, to me, when they
built seals, they were admitting this is worked up,
we're done, we're complete.

Inspector Wirth confirmed that he issued Citation
No. 4260297, citing a violation of section 75.370(a)(1),
and he explained as follows (Tr. 292-293):

     Q. Can you tell us the gist of the citation
without reading the exact words of it, please?

     A. Sure.  The gist of the citation is that the
operator is required to have a certain quantity of
air at the end of the line curtain at all times if
they're producing, cutting, loading coal on the
sections, and they did not have that required amount
of air at the end of the line curtain.

     In fact, the vanes on the anemometer whenever
I put the anemometer behind the line curtain in
between the line curtain and rib, the vanes on the
anemometer would not even turn.

Referring to two sketches depicting the conditions that
he observed (Exhibits G-8 and G-9), Mr. Wirth further
explained that the approved ventilation plan requires that
6,500 cubic
feet of air per minute be maintained at the end of the line
curtain at all times while coal is being cut and loaded
(Joint Exhibit-2; Tr. 296).  The specific ventilation plan
requirement is found at page 1, Item C-2 (Tr. 298).

Mr. Wirth confirmed that he personally observed coal
being cut and loaded, and also saw a coal hauler leaving the
No. 6 entry fully loaded.  He also observed the machine
cutting at the face and the coal hauler pulled in and loaded
another car.  He then informed the machine operator that
there was a violation.  He took a methane reading at the
last row of roof bolts and it was .4 percent and within the
allowable limits (Tr. 300-301).
He estimated that the air at the end of the line curtain was
1,000 cubic feet per minute (Tr. 302).

Mr. Wirth confirmed his "S&S" gravity finding, and stated
that he based it on the presence of methane 100 feet below
the cited area at the old Peabody works, a gap in the line
curtain
at the floor level, and the curtain was not maintained to
within 40 feet of the face.  He conceded the methane level
he found was "way below" the allowable limit (Tr. 304).
However, he believed that it was reasonably likely that the
lack of air would result in a build-up of undiluted methane
and present an explosion hazard (Tr. 306).  He confirmed
that mining in the cited area had discontinued for ten
months because of excessive methane and had only resumed for
2 days prior to the inspection (Tr. 307-308).

Mr. Wirth confirmed that the respondent drilled bore holes
to bleed out the methane and MSHA was aware of the fact that
mining had started up again (Tr. 310).  He confirmed that
the respondent's prior experience with methane in the old
Peabody works "very much so" influenced his "S&S" finding
because management "is aware of the methane problems that
they had in that area, and they are aware that the mine is
still below them" (Tr. 311).  He also considered the
presence of some methane, no air, and the presence of
operating equipment (Tr. 313).

Mr. Wirth confirmed that the mining machine was taking
"long cuts" and that it was a remote controlled machine, and
he believed the violation was "very obvious."  The section
foreman or mine operator should check the air at the end of
the line curtain, and when the amount of air is less than
that specified in the ventilation plan, production should
cease until the air is restored (Tr. 312).

On cross-examination, Mr. Wirth explained his sketches, and
he could not recall the crosscut number, but did remember
the entry (Tr. 315).  His notes reflect the location as the
No. 6 entry, and the crosscut is not identified (Tr. 317).
He
confirmed that Mr. Eslinger and Mr. Bird were with him in
that entry (Tr. 319).  He also stated that company
representative Ed Hatcher came to the section with them "but
refused to go to the face because he told us that he did not
want to be responsible for what we might see" (Tr. 323).

In response to further questions, Mr. Wirth stated that he
observed no evidence that the line curtain was ripped or
partially torn down, and there was no line curtain lying on
the mine floor in the entry.  Although there was a gap at
the bottom of the curtain and it did not go all the way to
the floor, this would make no difference as long as the air
was maintained at 6,500 cfm (Tr. 326).

MSHA Mining Engineer Michael Bird testified that he received
a B.S. Degree in mining engineering from the University of
Missouri in December, 1985, and after working in private
industry became employed with MSHA in April, 1992.  He holds
State of Alabama mine foreman papers, and his present duties
include the review and approval of mine maps and ventilation
plans and conducting ventilation inspections (Tr. 337-339).

Mr. Bird confirmed that he issued Citation No. 4261610 and
that Mr. Wirth was with him during the inspection.  He
explained that he observed that the line curtain was set
back more than
the required 40 feet, and that he measured the distance as
66 feet from the deepest penetration to the end of the
curtain.  Section C-2, page 1, of the ventilation plan
concerning long cuts states that "using remote control
miners, the line curtain will be maintained to within 40
feet of the deepest penetration of
the face" (Tr. 340-341).

Mr. Bird stated that when he and Mr. Wirth walked into the
No. 6 entry, he saw a loaded coal car leaving, and saw coal
being loaded.  He identified the operator of the remote
control miner as Steve Burgess.  He confirmed that the miner
measured 36 feet from the bits to the tail, and the distance
from the curtain to the last row of roof bolts was 30 feet.
The point of "deepest penetration" would be at the coal face
where the miner bits are cutting.  The curtain must be up
while coal is being cut or loaded (Tr. 342-344).  He
explained his "S&S" finding, and confirmed that three miners
were exposed to an ignition hazard (Tr. 345).

Mr. Bird stated that he based his "high negligence" finding
on the fact that the cited condition was obvious.  He
explained that the miner operator knows that he can cut with
the curtain within 40 feet of the face, and it was obvious
in this case, where the miner "is sunk all the way into the
last row of bolts, you're over 40 feet" (Tr. 346).

Mr. Bird stated he did not observe any line curtain on the
ground or a shuttle car dragging a curtain away (Tr. 352).
When asked why he initially determined that the violation
was unwarrantable, Mr. Bird replied, "at the time I looked
at that, know or should have known.  It was right there,"
and coal was being continuously loaded (Tr. 354-355).  He
would not have issued a citation if the curtain had been
dragged off and load-ing had stopped in order to hang it
back up.  However, he saw no evidence that this was the case
(Tr. 355).

On cross-examination, Mr. Bird explained how he measured the
curtain distance and what he observed in connection with the
equipment operating and traveling through the entry in
question, and the cutting and loading of the coal (Tr. 356-
360).  His notes reflected that the "remote control miner
was cutting and loading coal in the number 6 entry" (Tr.
362).  His notes also stated that "after the order was
abated, the miner loaded one more ram car of coal to
complete the cut" (Tr. 373).

Mr. Eslinger was recalled, and he stated that he arrived at
the location in question before Mr. Bird and Mr. Wirth and
as he walked up the entry a loaded shuttle car came through
the cur-tain.  As he watched it, another one came by and
pulled in and he watched as it was being loaded.  After it
left, a third shuttle car pulled under the miner tail and
loading started.  He then pointed to it, and Mr. Wirth and
Mr. Bird proceeded to make their measurements and mining was
stopped (Tr. 375-376).  Mr. Eslinger did not observe a
ripped curtain or any curtain being dragged off by a shuttle
car.  The curtain was being hung off the floor and there
were no nails in the roof header boards to indicate that it
was hung up to the last full roof bolts (Tr. 378).

Mr. Wirth was recalled, and stated that as he walked
through the curtain in the No. 6 entry, he observed a fully
loaded ram car leaving the entry away from the miner outby
to
the feeder.  He also observed another car come out of the
crosscut and it was waiting for the car that was fully
loaded.  The empty car pulled in under the miner and it was
in the process of starting to load when he walked in.  He
then "went to the end of the line curtain, attempted to take
an air reading, informed the operator that there was a
problem, there was a violation and they shut the machine
off" (Tr. 380).

Mr. Wirth stated that he did not observe any torn curtain
being dragged off by a shuttle car and observed no rips in
the curtain or nails or nail holes in the header boards
where a curtain could have been hung, and saw no evidence
that there
ever was a proper amount of curtain.  He confirmed that
after
the miner was shut down, the face boss, Roy Wiggins, brought
in a brand new line curtain, and it was not dirty, ripped or
torn, and it was obvious that it was a new curtain that "had
just come off a new roll" (Tr. 384).

          Respondent's Testimony and Evidence

Paul Smock, respondent's superintendent of underground
operations, testified that he has 28 years of mining
experience and has worked for the respondent since 1980.  He
is a high school graduate and has conducted mine training
and rescue classes at a local community college and
vocational school.
He confirmed that the mine is located above an old mine that
liberates methane and which "has posed a problem for us for
years."  He confirmed that the active mine is on an exhaust
ventilation system and that air is drawn in to the mine and
pulled out.  He identified Exhibit 0-2 as a mine map showing
the mine workings as of March 29, 1994, and confirmed that
it
was prepared for the hearing in these matters.  He explained
the map markings and the air directions, including the
intake
and return air, and stated that once the air crosses the
active working faces it becomes return air as shown by the
map arrows with a dot on the shaft (Tr. 394-405).

Mr. Smock stated that the entire 5-B area up to the
5-A face area, as shown on the map, is an intake air course
and not a worked-out area.  He defined a "worked out" area
as follows (Tr. 406):

     A. A worked-out area is an area where mining
has been completed. There is more to mining than
just cutting coal. Rock dusting is mining, building
stoppings is mining, making belt moves is mining.
We have finished cutting coal in this area, but
mining wasn't done because I had to get out of there.
I had a building seals in there.

Mr. Smock stated that sometime previous to March, 1993, the
5-A face area was abandoned because of the methane and the
unit was pulled back to the 5-B area.  On or about March 25,
1993, coal removal was completed in the 5-B area, and the
move back to the 5-A area would take two to three days.  At
the same time, work was in progress to reclaim and seal the
5-B area, and he stated that, "we wanted out of there as
quickly as we could possibly get out of there" because of
various gas bleeders and pillar squeezing (Tr. 408-411).

Mr. Smock stated that on March 29, he still had belt,
framing drives, and power boxes in the room inby the area
where the seals were being constructed in the 5-B area.  He
stated that, "this was my last room set up.  That what is.
When that was mined, I was through, and I was out" (Tr.
413).  He further explained that the area was "troubled"
before the inspection because the pillar squeezing "was
messing up my ventilation system," and he still had to
examine the entire 5-B area as an intake air course (Tr.
414).

Mr. Smock identified the red markings on map Exhibit 0-2,
as permanent stoppings or permanent ventilation controls,
and
he characterized the areas between the markings as "neutral
air."  He explained how these areas were ventilated to keep
the methane below the legal limit.  He stated that the
methane is blended
with the air flowing through the neutral area and is diluted
and is carried out of the mine (Tr. 416).

Mr. Smock stated that the seals were being constructed
"just inby the 460 foot mark" as shown on Exhibit 0-2, and a
stopping line was being established for an air course once
the area was sealed.  However, in order to travel in and out
to remove the equipment, wooden doors were constructed to
allow for travel and to establish the air course.  In order
to keep the neutral area free of methane while all of this
work was being done, he personally opened up three man doors
and he marked the locations on the map exhibit with orange
circles.  He opened the doors to clean out any methane.  He
believed this was sufficient to dissipate the methane and he
tested the area with his "checker," but took no bottle
samples (Tr. 416-423).

Mr. Smock stated that his project man, Melvin Winters, was
told to keep the doors open in order to ventilate the 5-B
neutral areas, but that Inspector Wirth ordered the doors
closed and the flow of air stopped, and this caused the
methane to build-up and endangered everyone in the mine.
Mr. Smock stated that "he had a fit" when he learned that
the doors were closed by the inspector, but he was not
present at the scene to discuss it with him (Tr. 424-426).

Mr. Smock stated that after pulling out of the 5-A area
because of methane, and moving to the 5-B area, a bore hole
was drilled and it took several months to bleed the methane
out of the 5-A area.  He confirmed that the violation was
abated by opening the doors in the 5-B area to reduce the
methane down below the one percent level. The doors were not
the same ones that he had opened (Tr. 429-431).

Mr. Smock stated that the "old southeast" area of the mine
is similar to the 5-B intake air course and both areas are
inspected by mine examiners every shift as intake air
courses (Tr. 436-438).

Mr. Smock stated that at no time did any methane in excess
of one percent every reach the working faces, and at no time
were miners at the working face ever exposed to excessive
methane (Tr. 443).

On cross-examination, Mr. Smock explained the steps taken to
address the methane problem in the 5-A area, and he stated
that the old mine below that area is not full of water, but
"we still get periodic gas bleeders in that area but nothing
like what we had" (Tr. 448).

Mr. Smock confirmed that he had finished cutting coal in the
5-B area and that it consisted of panels and rooms and that
no more coal was going to be mined (Tr. 449).  He agreed
that the distance around the perimeter of the 5-B area was
approximately two-and-one half to three mills, and confirmed
that during March 29 or 30, 1994, he was in that area every
day.  In addition, mine examiners would have been there
daily to examine the area of deepest penetration, the seal
area where work was in progress, and the intakes for an air
course (Tr. 452-453).

Mr. Smock confirmed that his mine examiners were required
to walk the perimeter of the 5-B area weekly after all of
the mining work was completed, and they were required to
note this
in a book and to place their initials on a date board (Tr.
456).  Pre-shift examinations were conducted at the seal
areas and the 5-B perimeter areas (Tr. 459).

Mr. Smock stated that when the seals were constructed, the
only equipment left in the 5-B area was a belt line, a unit
of equipment, high voltage, and a water line.  He confirmed
that he was in the process of building frames for the seven
seals that would have sealed the 5-B area and only a couple
of seal forms had been constructed at the time of the
inspection, and none
had been completed at that time.

Mr. Smock did not believe that he needed overcasts to carry
the air from the 5-B area to the return air course.  He
explained that he had no reason to split the air because he
only had one unit mining coal during the period in question.
He explained that the neutral air in the 5-B area was
ventilating the area where the seals were being constructed
and that the air leaving the 5-B area was ventilating the
coal producing unit at the 5-A area.  The coal producing
unit consisted of a cutting machine, loading machine, roof
bolters, and a scoop, and the equipment used at the seal
area was "probably a scoop, jeep," but he did not consider
that to be a unit.  He confirmed that he had a crew in the
5-B area doing seal and reclaim work, and a crew in the
5-A area mining coal (Tr. 475-477).

Mr. Smock confirmed that the source of the air used to
ventilate the 5-B area was the air coming down the belt
haulage-way, and after sweeping the perimeter of the 5-B
area, the air continued down the haulage entry and swept
across the 5-A faces (Tr. 478-482).

Mr. Smock did not dispute the 1.8 percent methane found by
the inspectors in the 5-B area and he stated that "there had
to be methane in there when he closed those doors.  It had
to build up" (Tr. 482).

Mr. Smock stated that once the seals were completed, the
doors behind the seal area would have been removed and
replaced with a stopping because a stopping line and an air
course would be needed to sweep the seals (Tr. 493).

In response to further questions, Mr. Smock stated that the
MSHA inspector who was in the 5-B area prior to March 29 and
30, knew about the work in that area.  He could not identify
any inspector by name, nor could he recall any specific
conversations with any inspector (Tr. 498).  He confirmed
that the manner in which the 5-B area was being ventilated
at the time of the inspection was not covered or authorized
by the ventilation plan approved on June 17, 1993 (Joint
Exhibit-2) (Tr. 499).

General Mine Manager Edward Hatcher testified that he
has worked for Brushy Creek for 15 years and that he has
25 and 1/2 years of mining experience.  He explained his
education and training, and stated that he holds dust
control
and underground electrical certifications, mine manager,
mine examiner and hoisting engineer's papers, and a coal
mine EMT certificate from the State of Illinois (Tr. 508).

Mr. Hatcher stated that he visited the 5-B area on the
morning of March 29, 1994, to check on the reclaiming work
in progress.  He stated that belt framing, belt lines, a
piece
of unhooked high voltage cable, and parts from a miner
machine were in the area and were in the process of being
removed, and
he marked the mine map to show where the equipment was
located (Tr. 510-511).

Mr. Hatcher stated that Illinois mining law prohibits any
interference with air ventilation, including doors, without
permission from the mine manager (Tr. 513).  He stated that
he found no methane in the 5-B area when he was there early
on March 29, and believed that the methane found by the
inspectors resulted from the closing of the doors at the
mouth of 5-B,
which shut off the air flow to the area where the methane
was found (Tr. 515).  He did not discuss this with the
inspectors, and did not discuss with Mr. Wirth about his
instructions to Mr. Culpepper to shut the doors (Tr. 516-
517).

Mr. Hatcher stated that the pre-shift examiner's report for
the 8:00 a.m. to 4:00 p.m. shift on March 29, 1994, reflects
that except for the places noted, the No. 5-B intake air
course area was safe "in its entirety from the faces out"
(Exhibit 0-3; Tr. 519-520).  He confirmed the excessive
methane citation was abated by opening certain doors, and at
8:00 a.m. on March 30, the methane was below one percent
(Tr. 521).

Mr. Hatcher stated that he accompanied Mr. Eslinger and
Mr. Wirth on March 30, during the abatement of several
citations in the 5-B area.  They then proceeded to the 5-A
area and Mr. Hatcher left to call Mr. Smock to inform him
about the abatements "in the old works" and Mr. Eslinger
proceeded to the face.  Mr. Hatcher denied that he told Mr.
Eslinger that he did not wish to go to the face because he
did not want to see what was going on, and he explained that
he told Mr. Eslinger he could not accompany him because he
had to call Mr. Smock (Tr. 526).

Mr. Hatcher stated that the line curtain and air citations
were abated before the inspectors left the area (Tr. 528).
He did not conference these citations with MSHA, "because
they were written and they were abated and as far as I was
concerned, it was over with" (Tr. 531).

On cross-examination, Mr. Hatcher confirmed that there was
no separate split of air from the air intake area going into
the 5-B area and a separate split of air going down to the
5-A working face (Tr. 534).  He explained the use of doors
for ventilation and stated that the doors in question were
constructed to be used at a later date when a certain point
was reached on the construction of the seals.  The doors
were built to be left open and were not to be used as part
of the ventilation of the seal area (Tr. 538).  He further
indicated that the personnel doors were specifically opened
in the area
in question to dilute the methane (Tr. 540).

Mr. Hatcher stated that he was in the neutral 5-B area and
not in the intake air course when he made his methane
spotter tests.  He stated that he entered both of the
"bottle areas"
and found no methane over one percent.  He only activated a
smoke tube when he found .9 percent methane and "saw that I
had movement.  No problem" (Tr. 562).  He believed that the
methane citation was the direct result of the inspector
ordering the closing of the two wooden doors (Tr. 562).

Mr. Hatcher confirmed that he did not conference the line
curtain citation and that he was not present when it was
issued (Tr. 565-566).  He also confirmed that he did not
observe the cited conditions concerning the line curtain.
He did, however, accompany Mr. Eslinger to the face after
the citations were issued and after returning to the area
after speaking to Mr. Smock.  He did not see any haulage
cars pass by because he was away from the feeder area where
the cars were heading (Tr. 577-578).

Shift Mine Manager Steve Reynolds testified that he
accompanied Inspectors Holland and Eslinger during the
March 29, 1994, inspection of the 5-A face area and the 5-B
air course.  They walked around the perimeter going outby
the intake air outside of the stoppings and he observed two
locations where Richard Doty had initialed and dated the
inspection boards for March 29, and he pointed these out to
Mr. Eslinger (Tr. 584-589).

Assistant Safety Inspector Roy Gene Culpepper has worked for
Brushy Creek for 13 years, and has 23 years of mining
experience.  He stated that he accompanied Mr. Wirth and a
union representa-tive during the inspection on March 29,
1994.  He met Mr. Wirth at the 5-B seal area, and he
observed newly constructed wooden air lock doors in that
area.  A crew supervised by Melvin Winters had constructed
the doors and they were doing reclaiming work and working on
the seals (Tr. 589-592).

Mr. Culpepper stated that the doors were 30 to 35 feet apart
and opened and there was a scoop half way through the inby
door.  He did not know whether the doors were supposed to
remain open
or closed, and Mr. Wirth instructed him to close the doors
(Tr. 593).  Mr. Culpepper stated that Mr. Wirth and the
union representative walked along the outside perimeter of
the intake area and he drove along the inside of the
stoppings in the neutral area in a golf cart, and he would
stop and speak with them periodically.  He had his methane
detector on the entire time and it never sounded (Tr. 595).

Mr. Culpepper explained his route of travel, and he stated
that at one point Mr. Wirth told him that some areas were
cut
too deep, that the reflectors were going the wrong way, and
that a citation would be issued because the 5-B unit was
being venti-lated by return air.  Mr. Culpepper stated that
he told Mr. Wirth that it was an intake air course and Mr.
Wirth replied, "that's what I've been told to do, and that's
what it is" (Tr. 596).
Mr. Culpepper stated that his golf cart went dead and he
left it on charge and he was picked up by walkaround Wendell
Gary in his cart and they proceeded along the neutral area
looking for the inspectors when he observed someone in the
next entry flagging him.  Mr. Culpepper got off the cart and
started towards the individual and his methane detector
started sounding.  All of the inspectors, including Mr.
Wirth, Mr. Holland, Mr. Bird, and Mr. Eslinger were there
and the methane detector continued to sound.  Mr. Culpepper
was told that there was methane in the area and that he
would be cited for having a non-permissible golf cart in the
area (Tr. 598-603, Exhibit G-4).  He offered to push the
cart out of the area, and Mr. Eslinger advised him that he
would check the methane and allowed him to drive the cart
out and Inspector Holland went with him (Tr. 603).

Mr. Culpepper stated that he next traveled to the 5-A face
area in a cart with Inspector Bird.  He left Mr. Bird to
find section foreman Roy Wiggins and found him at the back
side of the feeder "cleaning up a pile of coal or something,
I don't know.  I didn't know he was back there working" (Tr.
605).  Mr. Culpepper then proceeded to the face where he
encountered Mr. Eslinger, Mr. Bird, and Mr. Wirth, and they
informed him that they had issued a (d) citation and order
for insufficient air at the face and a curtain that had been
torn down (Tr. 606).  Mr. Culpepper left to find Mr. Wiggins
and found him coming from the feeder area dragging a piece
of old curtain.  He told Mr. Wiggins about the citation and
order and returned to check on the abatements (Tr. 607).

Mr. Culpepper identified Exhibit 0-4 as a map or sketch of
what he observed and the area where Mr. Steve Burgess stated
Mr. Eslinger was standing (Tr. 609).  Mr. Culpepper
described what he observed, including the location of the
curtain.  He confirmed that he made a notation "curtain
taken down by car"
on the sketch because "that's what I thought," but he did
not
see the car take the curtain, and he did not speak to the
car operator (Tr. 611-613).  He confirmed that he saw that a
curtain was missing and down in the area, but did not know
what happened (Tr. 614).

Mr. Culpepper stated that he was subsequently told by the
miner operator Steve Burgess that he thought that a car had
taken the curtain down (Tr. 615).  Mr. Culpepper stated that
the mining machine was shut off when he reached the face
area, and he could not recall whether a buggy or ram car
were there or coming out at that time (Tr. 617-618).  Mr.
Culpepper identified Exhibit 0-5 as a copy of the notes he
made (Tr. 619).

On cross-examination, Mr. Culpepper stated that the
reflectors in the 5-B area where he was riding while Mr.
Wirth was walking were blue, and Mr. Wirth told them that
the reflectors in the area that he was in were red, which
"would
have been significant for a return air course off the old
unit down there" (Tr. 620).

Mr. Culpepper stated that he did not take an air reading
at the end of the line curtain in question, and he confirmed
that the sketches were made six months after the violations
for use in this litigation and the information was taken
from his notes (Tr. 621).  He explained his sketches (Tr.
622-626). Mr. Culpepper took exception with the sketch of
the location of the check curtain as drawn by the inspectors
and his sketch and he stated as follows (Tr. 629-630):

     JUDGE KOUTRAS:   I want to know the difference
between the way you claim it was and the difference
in the way the inspectors claim it was.  Now, what
you're telling me now is, the only difference is the
position of the curtain on their diagram and the
position of the curtain on your diagram, right?

     THE WITNESS: Yes, sir.

     JUDGE KOUTRAS:   Now, on your diagram, was that
curtain more 40 feet from the working face?

     THE WITNESS: Yes, sir.

     JUDGE KOUTRAS:   It was.  Isn't it required to be
to within 40 foot of the face when the machine is
cutting and loading?

     THE WITNESS: Yes, sir.

     JUDGE KOUTRAS:   If the machine was cutting and
loading, that would be a violation, wouldn't it, even
by your diagram?

     THE WITNESS: Yes, sir.

David H. Pait, Safety and Human Resources Manager, testified
     that he has served in that position since December
     1991.  He has a B.S. degree, with a vocational
     education major, and a masters degree in business
     administration.  He has all MSHA certifica-tions,
     except electrical instructor, and has Kentucky mine and
     surface mine manager's papers, and Illinois mine
     manager papers (Tr. 662-663).

Mr. Pait stated that his duties include the writing of
     ventilation plans, and he confirmed that he wrote the
     plan that is Joint Exhibit-2 (Tr. 664).  He stated as
     follows (Tr. 665):

     A. On the night of the 29th when Mr. Eslinger
was getting ready to leave 5-A section and walk the
intakes, he informed me that he was going to walk the
intakes and that if what he thought was true, I was
going to get a bunch of violations.  And I asked why
and he said, 'Because you're airing this section with
return air.'

     Q. What did you tell him?

     A. I couldn't believe it.  I said, 'What do
you mean, return air?'  He said, 'Well, that's off
of old works, so it's return air.'  I said, 'Those
are intake air courses.'  That was my position.

Mr. Pait stated that the ventilation plan did not prohibit
the ventilation configuration in use on the perimeter of the
5-B area on March 29, 1994.  He stated that MSHA reviews
such plans every six months and that the word "neutral"
appears in the plan.  He identified ventilation plan drawing
AO715-1, titled "Typical Room and Pillar Mining Plan
Evaluation Point," and he explained the legend and markings
that appear on the drawing, including the designated
evaluation points that are examined by the mine examiners.
He further explained that the 5-B area did not have stated
definite evaluation points and that the preshift examiners
would initial "at the point of deepest penetration or
somewhere within that area between the beginning and the end
to indicate that they had, indeed, traveled -- made the
route in
its entirety" (Tr. 670).  He stated that Mr. Doty inspected
the 5-B area on the second shift the day the inspectors were
there, and he believed it was regularly inspected (Tr. 670-
671).

Mr. Pait identified the area where the seals were being
constructed, and where the two wooden ventilation air lock
doors were located in the neutral travel road.  The doors
were approximately 20 feet wide and 5 feet high, constructed
of plywood and timbers and coated with fire-proofing
material,
and they were made to open for machinery to pass through.
It was also intended that air pass through the doors into
the neutral area (Tr. 674).

Mr. Pait also identified the metal personnel doors that
Mr. Smock testified about, and the purpose in opening all of
these doors, including the wooden equipment doors, was to
establish and pull the air down the neutrals to keep them
clear.  All that was required was some air movement or
trickling through the neutrals around the perimeter of the
5-B area (Tr. 676).

Mr. Pait stated that the 5-B intake air perimeter area
would have been a designated primary escapeway beginning on
March 28, but Mr. Smock informed him that the unit had moved
to the 5-A area, and Mr. Pait advised the second shift that
the intake escapeway needed to be reestablished by changing
the reflector colors, but only a portion of the work area
was completed (Tr. 677-678).

Mr. Pait confirmed that he was familiar with the cited
standard, section 30 C.F.R.  75.332(a)(1), and he stated as
follows (Tr. 679):

     A. Mr. Eslinger is of the opinion that's it's
a worked-out area.  I'm of the opinion that it was an
intake, and the reason and the rationale I gave him
at the time and that I still believe is, that in
part 75.300, the definition of a worked-out area
excludes returns, the belt and entries and intake air
courses.  And this was an intake air course after that
unit moved back in the straights.  From my perceptive,
that's the way it is.  He holds a different opinion.

     Q. So, in your view, it's either intake air or
return air, and if it's either of those, it's not a
worked-out area?

     A. Yes, sir.

     Q. And in his view it's worked-out area and,
therefore, it can't be intake?

     A. Yes, sir.

Mr. Pait confirmed that map Exhibits G-2 and 0-2 show the
     same approximate areas, but that G-2 was completed
     after April 11, 1994, and shows several "sealed" 5-B
     areas and does
     not include all of the relevant stoppings or permanent
     venti-lation devices that existed on March 29, 1994
     (Tr. 680-683).
     He explained the prior mining difficulties and methane
     problems encountered in early April, 1993, and the
     efforts made to
     address the problem.  While the methane was being bled
     off the 5-A area, mining moved to the 5-B area, and
     when that was finished, it moved back to the 5-A face
     area (Tr. 687).

Mr. Pait stated that he had no personal knowledge or
     information about the ventilation curtain citations and
     he confirmed that he was on the surface when Mr.
     Culpepper called him and advised him that a (d)
     citation and (d) order were
     being issued because "the curtain is back 66 foot and
     there
     is no air on the miner" (Tr. 687).

Mr. Pait was not cross-examined by the petitioner.  However,
     in response to certain bench questions, Mr. Pait stated
     that he saw nothing wrong with the intake air sweeping
     the perimeter
     of the 5-B area and then exiting down the entry, around
     the
     5-A working faces, and out of the mine.  He stated that
     there
     was 39,000 cubic feet of air flowing out and only .3
     percent methane on the section.  He confirmed that this
     was his first experience with the new regulation and
     that he and Mr. Eslinger had a difference of opinion
     (Tr. 691).  Mr. Pait believed that
     it was management's prerogative to establish intake air
     and to designate where it would go when it writes its
     ventilation plan.  He confirmed that if a designated
     area is a worked-out area it can not be an intake, and
     if it is determined that the 5-B area was worked-out on
     March 29, 1994, it would be a violation (Tr. 692).

Roof bolter operator Steve Burgess testified that he was
     operating the continuous miner machine at 5-A face on
     March 29, 1994.  He stated that he was making a
     straight remote cut in the No. 6 entry, and he was
     standing on the right side of the entry away from the
     machine.  He explained the cutting sequence, and stated
     that when he first saw the inspectors he was through
     cutting coal and was backing the machine up to clean
     the place up so that it could be roof bolted.  He did
     not consider cleaning up coal to be cutting or loading
     coal because, "I'm not cutting any coal.  I'm just
     cleaning up loose coal on the ground where I have
     already made a cut" (Tr. 640-643).

Mr. Burgess stated that he checks the line curtain before
     starting the cuts, but does not take an air reading
     because he does not have an anemometer, and the face
     boss takes the reading.  He stated that Roy Wiggins
     checked the air volume.  When the inspectors appeared,
     Mr. Wirth checked the air "and there wasn't any air
     there because all of our curtain wasn't there" (Tr.
     644).

Mr. Burgess explained that he had cut the left side of the
     entry when the car that was leaving hooked the curtain
     and took out the bottom skirting and "I knew he
     wouldn't have any air there," because the remaining
     curtain was four feet off the ground (Tr. 645).  He
     stated that he saw the curtain come down and leave (Tr.
     645).  He further stated that approximately
     30 feet of the 70 foot long curtain was torn down, and
     there was no skirting on the last five or six feet of
     the curtain toward the face (Tr. 646-647).  He did not
     cut or load any coal after the curtain was torn down
     (Tr. 648).

On cross-examination, Mr. Burgess stated that when the
     inspectors arrived he was backing the cutting machine
     out and
     he was heading into the face area to clean it up.  He
     stated
     that there was approximately three-quarters of a ram
     car of coal to be cleaned up, and that it is loaded
     into the car.  When asked
     if he loaded the coal immediately prior to the arrival
     of the inspectors, he replied, "I didn't clean the
     place up, no.  They stopped me" and "there wasn't a car
     there yet, but I wasn't ready to clean up yet whenever
     I saw them walking up" (Tr. 650).  He further explained
     (Tr. 650-651):

     A. I was still backing the machine out, ready
to position it on the right side of the cut to clean up.

     Q. Had you loaded any coal from this area
from any prior clean-up?

     A. I had just cut a 35-foot remote cut
in that place.

     Q. Where did the coal go from that cut?

     A. I'm not sure what you're asking me.

     JUDGE KOUTRAS: After you took that 35-foot cut,
what happened to the coal?

     THE WITNESS: It was dumped in the ram cars and
hauled out to the belt tail and dumped on the belt.

Mr. Burgess stated that approximately a year ago while he
was preparing to clean up a place that he had cut, an
inspector told him that he did not have to maintain the air
while he was cleaning up and "since that time I was under
the impression, right or wrong, that you evidently didn't
have to have 6500 feet of air behind your line curtain to
clean a place up" (Tr.655-656).  Abatement was achieved by
obtaining a curtain from a roof bolting machine nearby, and
he stated that, "we had gotten the curtain off there earlier
to hang in there to start with" (Tr. 657).  He confirmed
that the curtain was new and was not
yet up to replace the missing curtain, and the old piece was
used as skirting (Tr. 660).  He stated that he told Mr.
Wirth that the curtain had been torn down by a dump car.
After the order was terminated, he cleaned up the place and
loaded the
coal out of the face (Tr. 661).

Mr. Eslinger was called in rebuttal by MSHA and he
confirmed that the two escapeway citations referred to by
Mr. Pait have been vacated by MSHA as part of a settlement.
He stated that the only indication he had that management
was treating the 5-B area as an intake air course were the
statement by Mr. Smock, Mr. Pait, Mr. Hatcher, and Mr.
Culpepper.
He found no evidence of any preshift examinations being made
as required by section 75.360(b)(6).  He confirmed that his
opinion that the 5-B area was a worked-out area and not an
intake air course, is the position of MSHA in this matter.
He explained that the new regulations had been in effect for
less than two years, and in anticipation of litigation, he
presented the facts in this case to a gathering of MSHA
district ventilation supervisors and coordinators at a
meeting in Beckley, West Virginia, in August and they all
agreed that the 5-B area was a worked-out area and that "he
should have no problem" in establishing this (Tr. 696-702).

Mr. Eslinger stated that he would consider the 5-B area to
be an abandoned area "because they weren't mining it" (Tr.
704).  He stated that there was not much difference between
an abandoned area and a worked-out area that is now defined
in the new rule.  With regard to the contention by
management that they were still recovering equipment from
the 5-B area, Mr. Eslinger pointed out that section
75.332(a)(1) requires a separate split of intake air where
equipment is being removed and that the same air venti-
lating such an area can not simultaneously be coursed
through an active working section.  It must be done
separately.  His position is that the air used to ventilate
the 5-B area became return air and was used to ventilate the
5-A working faces (Tr. 705).

Mr. Eslinger agreed that the 5-B and 5-A ventilation methods
in use at the time of the inspection were not a normal
mining practice, and he explained as follows (Tr. 706):

     THE WITNESS: This is not normal mining
practice, right, and I agree with that when mining
ceased here because of the gas in the 5-A area,
that they had to go somewhere with the unit.  So,
they backed up and they went here.  Like Mr. Smock
said, to go off the intake side, they would have
preferred to go out the return side.

     I think the key thing here is that they should
have made preparations for coming out of here and
built overcasts to split the air or when they recovered
this equipment, wait a period of time until this area
was sealed and then go back in here.  If they had
waited until this was sealed and not started mining
down here, we would not have written the citations
that we did.

     Mr. Smock alluded to the problems of ventilating
this area.  He talked about taking the belt area in
here and dumping it into the air course so they were
getting belt air to the face.  There were ventilation
problems that were occurring because of the sequence
of events that happened, whether they called intake or
worked-out.  They set themselves up into a series of
violations.  We said that this is a worked-out and
subsequently wrote the violations that we did.

Mr. Eslinger confirmed that when the 5-B area was being
mined it was ventilated by intake air, and that "when the
air passed the last working place on the unit, then it
became return air" (Tr. 707).  He agreed that interruption
of mining at the
5-A face area because of the methane, and the withdrawal to
the 5-B area presented a unique case (Tr. 709).  He also
agreed that there were no methane levels or lack of oxygen
that would have endangered miners on March 29 and 30, 1994,
and stated that, "I never saw any methane levels in the
working section that were above the accepted levels" (Tr.
709).

Mr. Eslinger expressed concern about the curtain violations
because of the prior methane problems that were addressed by
the drilling, and his concern was that there was still a
potential for encountering methane again.  He did not
believe the closing of any wooden doors in the 5-B area
caused the methane buildup in that area (Tr. 711).  He did
not believe that the cited missing curtain was ever
installed, and stated that he stood back in the crosscut
watching the mining when Mr. Wirth took his air reading.  He
also watched a full car load, and a second car starting to
load, and there was no curtain reaching up to near the tail
of the mining machine (Tr. 713).

On cross-examination, Mr. Eslinger stated that he saw no
evidence that examiner Doty walked or drove the entire
perimeter of the 5-B area.  He confirmed that he did not
check each of the 40 or 43 examination places, but looked at
some of them and saw no examination dates, times, or
initials (Tr. 715-717).  Refer-ring to a UMWA letter of
March 21, 1994, that prompted the inspections in question
(Exhibit ALJ-1), Mr. Eslinger stated
that there is nothing illegal about ventilating sealed mine
areas with intake air that is then used to ventilate a
working section (Tr. 720).  He confirmed that improvements
were made in the mine ventilation and he "found more air per
unit than I had ever seen in the history of Brushy Creek
Mine" (Tr. 721).

Mr. Eslinger stated that on March 30, 1994, he found only
.4 and .5 percent methane at the 5-A face area and improved
ventilation, but he was still concerned about the fact that
mining was taking place where the methane had come through
the mine floor (Tr. 724).  He confirmed that he could have
antici-pated that mining would take place in the 5-B area,
but did not raise this with mine management (Exhibit 0-6;
Tr. 726-728).

                Findings and Conclusions

Citation No. 4266730 (LAKE 94-172-R; LAKE 94-251)

This citation was issued by Inspector Holland on March 29,
1994, and he cited a violation of 30 C.F.R.  75.503, after
observing a non-permissible golf cart operating in the last
open crosscut between the No. 5 and 6 entries.  Section
75.503 requires that all electric face equipment taken into
or used inby the last open crosscut be maintained in
permissible condition.

The parties agreed to settle this violation and MSHA filed
a motion pursuant to Commission Rule 31, 29 C.F.R. 
2700.31, seeking approval of the proposed settlement.  In
support of the motion, MSHA's counsel stated that the
initial negligence and gravity levels determined by the
inspector remain unchanged, and counsel agreed that Brushy
Creek demonstrated good faith in abating the cited
condition.  However, in view of the fact that the number of
persons affected by the violation has been reduced from
seven to three, counsel asserted that a reduction from the
initial proposed penalty assessment of $595 to $310 in
settlement of the violation was warranted (Tr. 16-18).
Pursuant to Commission Rule 31, 29 C.F.R.  2700.31, the
proposed settlement was approved from the bench (Tr. 17-18).
My decision in this regard is herein AFFIRMED and the
settlement IS APPROVED.

Citation No. 4260292 (LAKE 94-168-R; LAKE 94-250)

Brushy Creek is charged with a violation of 30 C.F.R.
75.332(a)(1), because the inspector believed that the air
leaving the 5-B "worked-out" area, after ventilating that
area, was return air that continued traveling inby where it
was used
to ventilate the active 5-A working faces where coal was
being mined before it exited the mine through the return.
He concluded that both of these areas were being ventilated
by the same split of return air, and that the active face
area was not being ventilated by a separate split of intake
air as required by the cited standard, which provides as
follows:

 75.332  Working sections and working places.
     (a)(1) Each working section and each area
where mechanized mining equipment is being
installed or removed, shall be ventilated by a
separate split of intake air directed by over-
casts, undercasts or other permanent ventilation
controls.

Citation No. 4260295 (LAKE 94-171-R; LAKE 94-251)

Brushy Creek is charged with a violation of 30 C.F.R.
 75.507-1, because the inspector observed a non-permissible
golf cart traveling in the 5-B "worked-out" area.  The
inspector concluded that this area was a return air course,
and since the golf cart was non-permissible (this is not
disputed), he cited a violation.  The cited standard
provides as follows:

 75.507-1 Electric equipment other than power-
     connection points, outby the last open crosscut;
     return air; permissibility requirements.

     (a) All electric equipment, other than power-
connection points, used in return air outby the last
open crosscut in any coal mine shall be permissible
except as provided in paragraphs (b) and (c) of
this section.
Citation No. 4266732 (LAKE 94-173-R; LAKE 94-250)

Brushy Creek is charged with a violation of 30 C.F.R.
 75.334(a)(1), because the inspector found 1.9 percent
methane and 18.8 percent oxygen levels in the 5-B "worked-
out" area.  He concluded from this that the area was not
ventilated so as to continuously dilute and route methane to
a return air course.  The cited regulation provides as
follows:

 75.334  Worked out areas and areas where
     pillars are being recovered.
     (a) Worked-out areas where no pillars have
been recovered shall be-
     (1) Ventilated so that methane-air mixtures
and other gases, dusts, and fumes from throughout
the worked-out areas are continuously diluted and
routed into a return air course or to the surface
of the mine; or
     (2) Sealed.

The parties agreed that the critical issues here are
whether the cited area was in fact a worked-out area, and
the interpretation and application of the regulatory words
"contin-uously diluted" (Tr. 251).  MSHA's position is that
the intent
of the regulation is to insure that all worked-out areas are
ventilated so as to continuously dilute and move all methane
into the return.  Since the inspector found 1.9 percent
methane and 18.8 percent oxygen levels in the cited worked-
out "bottle" area that has been characterized by Brushy
Creek as "neutral" air, MSHA concludes that the ventilation
was not doing the job
by continuously diluting methane and moving it out of the
area.  Even though the air that eventually found its way to
the active 5-A mining faces was clear of methane, which
indicates that it has been diluted at that point, MSHA
nonetheless argues that the methane found at the cited
location was not diluted and carried away, and if left
undetected and unabated could continue to accumulate to
hazardous levels (Tr. 245-247).

Citation No. 4266733 (LAKE 94-174-R; LAKE 94-459)

In this citation Brushy Creek is charged with a violation
of 30 C.F.R.  75.308(f)(1), for failure to ventilate a
primary escapeway with intake air.  Section 75.380(f)(1)
provides, in relevant part, as follows:

      75.380 Escapeways; bituminous and
          ignite mines.

     (a) Except in situations addressed in
 75.381,  75.385 and  75.386, at least two
separate and distinct travelable passageways
shall be designated as escapeways and shall
meet the requirements of this section.

               * * * *

     (f)(1) Primary escapeway.  One escapeway
that is ventilated with intake air shall be
designated as the primary escapeway.  In areas
of mines developed after November 15, 1992, the
primary escapeway shall not contain diesel
equipment, electrical equipment described in
 75.340(a) and  75.340(b)(1), or compressors
described in  75.344, except-

     (i) Equipment necessary to maintain the
escapeway in safe, travelable condition; and

     (ii) Haulage equipment other than belt and
trolley haulage, necessary for the transportation
of persons and materials.  (Emphasis added)

Subsection (a) of  75.380 requires a mine operator to
designate at least two separate and distinct travelable
passage- ways as escapeways that meet the requirements of
the regulation.  Subsection (f)(1) requires that one of the
escapeways be designated as the primary escapeway.  The
designation of the primary escapeway depends on how it is
ventilated.  In order to meet the requirements of the
regulation, the designated primary escapeway must be
ventilated by intake air.  If it is ventilated by return air
it may not serve as a designated primary escapeway.

The parties are in agreement that the controlling issue
with respect to Citation Nos. 4260292, 4260295, 4266732, and
4266733 is the interpretation to be placed on the terms
"worked-out area," "return air," and "intake air" pursuant
to the newly promulgated ventilation regulations published
in the May 15, 1992, Federal Register, Volume 57, No. 95,
pages 20868-20929.

MSHA's ventilation regulations, Subpart D, 30 C.F.R.
 75.301, provides the following relevant definitions:

Worked out area.  An area where mining has been
completed, whether pillared or non-pillared,
excluding development entries, return air courses,
and intake air courses.

Intake air.  Air that has not yet ventilated the last
working place on any split of any working section, or
any worked-out area, whether pillared or nonpillared.
(Emphasis added).

Return air.  Air that has ventilated the last working
place on any split of any working section or any worked-
out area, whether pillared or non- pillared.  If air
mixes with air that has ventilated the last working place
on any split of any working section or any worked-out
area, whether pillared or nonpillared, it is considered
return air.  For the purposes of existing 75.507-1, air
that has been used to ventilate any working place in a
coal producing section or pillared area, or air that has
been used to ventilate any working face if such air is
directed away from the immediate return is return air.

The Dictionary of Mining, Minerals, and Related Terms,
U.S. Department of the Interior, 1968 Edition, defines
"worked-out area" as "[a] mine or large section of a mine
from which all mineable coal has been taken."

MSHA's Arguments

MSHA asserts that Brushy Creek does not contest the fact
that mining was completed in the 5-B area, and that its
witnesses admitted there was no coal production going on in
that area, that the continuous miner had been squeezed out
of the area and was moved to the 5-A area where coal was
being produced.

MSHA states that Brushy Creek's witnesses further admitted
that the 5-B area had no power, that this area had been
previ-ously roomed and paneled, that they had "retreated
out" and that none of the crew would have to go into the 5-B
area because "there was nothing left in there for them to
get," that one work crew was in the process of building
seals, and that approximately two (2) weeks from the date of
the subject citations, the
5-B area would have been completely sealed.

In reply to Brushy Creek's assertion that the 5-B area was
an intake air course and would remain so until the area was
completely sealed, MSHA maintains that Brushy Creek failed
to show that it treated this 5-B area as an intake air
course by performing the required examinations for such air
courses, and instead admitted that much of the 5-B area was
"squeezing."  In light of this, MSHA concludes that passage
into certain of this area's points of deepest penetration
were inaccessible for any such required examinations.

In response to Brushy Creek's assertion that the 5-B "intake
air course" area, by definition, can not be a "worked-out"
area, MSHA argues that Brushy Creek took no affirmative
action to treat the 5-B area as an intake air course, and
that Safety Manager Pait admitted that most of the 5-B area
was still marked as a return air course because the color
patterns on the reflectors located there had not yet been
changed.  Further, MSHA states that despite its knowledge of
the examination requirements and its promises to the
contrary, Brushy Creek presented no proof at hearing of
conducting the pre-shift examinations required for an intake
air course, presented no evidence to rebut the MSHA
inspector's credible testimony that he did not observe any
examiner's initials in the 5-B area points of deepest
penetra-tion, and Mine Manager Hatcher referred to the 5-B
area as the "old works."

MSHA cites my decision in Zeigler Coal Company, 2 FMSHRC
304, 324 (February 1992), affirming a violation of 75.507,
for locating non-permissible golf carts in return air.  In
that case, I found that intake air which had initially
passed two working faces was return air when it continued to
sweep additional faces where the cited golf carts were
located.  MSHA asserts that the new ventilation regulations
parallel my Zeigler holding, and that  75.301 added
definitions for "intake air" and "return air" to
characterize the air current by whether the air has
ventilated a working place or a mined out area.
MSHA states that under the final rule, and in conformance
with established distinctions made throughout the mining
industry, if air has ventilated either the last working
place
or any worked-out area, then this air is considered to be
"return air."  MSHA argues that the definition of "return
air" also makes clear that if intake air mixes with air that
has ventilated either working places or "worked-out" areas,
then
this air is considered return air.  MSHA maintains that the
air which flowed through the 5-B "worked-out" area was
destined to ventilate the 5-A working face, and despite
Brushy Creek's assertion that it had the "prerogative" to
define its air courses, the regulations provide a codified
definition to which it must adhere.

MSHA argues that its interpretation of the regulation is
consistent with the language and purpose of the Act and
deserves substantial deference.  In support of this
conclusion, MSHA states that the legislative history of the
Act demonstrates Congress' intention to prevent, and not
merely to minimize, violative conditions, particularly with
respect to ventilation regulations that are aimed at
eliminating ignitions and fuel sources for explosions and
fires.  Citing several court deci-sions, MSHA concludes that
courts have recognized the great deference due an agency's
interpretation of the law it administers and enforces.

MSHA asserts that the proper standard of review when
considering the validity of a regulation is whether or not
it
is consistent with, and reasonably related to, the statutory
provisions under which it was promulgated and is not in
conflict with other statutory provisions.  MSHA concludes
that in the instant cases, the only interpretation that
promotes the protection of the miners at the Brushy Creek
Mine, who are exposed to air which has coursed through an
un-examined mined-
out area with all of that area's consequent contaminants,
among them methane, is the interpretation it has advanced.
In support
of this conclusion, MSHA relies on the testimony of Mr.
Eslinger regarding the definition of "worked-out area" and
the intent of the regulations.

MSHA points out that Mr. Eslinger confirmed that its
interpretation of the term "worked-out area" applies to the
5-B area of the mine.  MSHA concludes that its
interpretation
is reasonable and would better protect the miners working in
the 5-A area than the interpretation proposed by Brushy
Creek.

MSHA asserts that even if Brushy Creek mistakenly believed
that the 5-B area was an intake air course, the Mine Act
provides for liability without fault.  Citing the
Commission's decision
in Ideal Cement Company, 12 FMSHRC 2409, 2415 (November
1990), MSHA argues that the test as to whether Brushy Creek
violated the standard is whether a reasonably prudent
person, familiar with the mining industry and the protective
purposes of the standard, would have recognized that air
which traveled through an exten-sive area, known to be
gassy, then mixed with air coming off the belt haulageway
before it ventilated the working face in the
5-A area would be considered "return air."

Disputing Brushy Creek's assertions to the contrary, MSHA
takes the position that the subject definition contained in
the regulations at 30 C.F.R.  75.301 is not necessarily
circular, vague, or overly broad.  Citing Alabama By-
Products Corporation, 4 FMSHRC 2128, 2130 (December 1982),
MSHA states that,
"[b]roadness is not always a fatal defect in a safety and
health standard.  Many standards must be simple and brief in
order to be broadly adaptable to myriad circumstances."

Finally, MSHA points out that Brushy Creek is not a new,
inexperienced mine operator, and that its familiarity with
the mining industry and with MSHA's regulations, the purpose
of
which is to protect miners, should have made it aware that
the
5-B area would be considered "return air."  MSHA concludes
that Brushy Creek can not, in good faith, allege that it
believed that MSHA would permit potentially dangerous
conditions resulting from the cited conditions to exist
without penalty merely because it chose to label this air
course "intake air."

Brushy Creek's Arguments

Brushy Creek agrees that the common issue with respect to
Citation Nos. 4260292, 4260295, 42266732, and 4266737 is
whether the cited 5-B area was a "worked-out area" as
defined by section 75.301.  Brushy Creek takes the position
that the definition of a "worked-out" area is circular and
therefore can not be applied to turn an intake air course
into something else.

In support of its argument, Brushy Creek states that the
section 75.301 definition of "intake air" reveals that it is
defined with reference to "worked-out area," and that intake
air does not include air which has ventilated a worked-out
area.  Brushy Creek concludes from this that the inartful
definition of a worked-out area circles back upon itself and
leaves no choice other than to conclude that an intake air
course can not be a worked-out area.

Based on the regulatory "worked-out area" definition,
Brushy Creek asserts that developing entries, return air
courses, and intake air courses must be excluded from a
worked-out area, and if any of these three is present an
area is not a worked-out area.  Brushy Creek believes that
since the 5-B area was separated from other entries by
stoppings or other ventilation control devices, it met the
regulatory definition of an "air course."  Since the air
passing through that air course had not yet ventilated the
last working place, Brushy Creek concludes that the air in
that air course was intake air.  Since this was the case,
Brushy Creek believes that the physical area which contained
the intake air course could not be a worked-out area, and
that this area either contained an intake air course which
directed air over the 5-A face or it contained a return air
course.  In either case, Brushy Creek does not believe it
was a worked-out area since the definition of such an area
excludes both return air courses and intake air courses.

Brushy Creek asserts that the difficulties in understanding
the meaning of "worked-out" justifies its reliance upon its
understanding of the term in relation to the terms
describing other underground mine areas.  With regard to Mr.
Eslinger's testimony that there is little difference between
an abandoned area and a worked-out area, Brushy Creek takes
the position that the 5-B intake air course was being
regularly inspected and ventilated, and thus did not meet
the statutory definition of "abandoned area" or the Mining
Dictionary definition of "abandoned workings."

Brushy Creek maintains that the air course around the
perimeter of the 5-B area met all of the practical
requirements as an intake air course in that the entries
were separated from the neutral entries by ventilation
control devices, and that the only connection between the
air course and the neutral entries was through metal
personnel doors used to allow methane in the neutral areas
to "trickle" into the air course so as to be diluted and
carried away.

Brushy Creek states that the concept of an air course around
a neutral area is shown in the mine ventilation plan that
was examined by Mr. Eslinger and Mr. Wirth before their
inspection, and that a map of the 5-B area showing the
perimeter air course around the neutral entries dated
September 21, 1993, was also examined by Mr. Eslinger when
it was filed with MSHA.  In addi-tion, Brushy Creek asserts
that the air course was examined as an intake air course,
and that it was in the process of marking the air course an
intake air course primary escapeway at the time of the March
29, 1994, inspection, and that MSHA insisted it was
necessary to mark the entire perimeter as a means of abating
two other escapeway citations issued during the inspection.

In comparing its mine map, Exhibit O-2, with MSHA's mine
map, Exhibit G-2, both of which were prepared for this liti-
gation, Brushy Creek points out that MSHA's map fails to
show
the permanent ventilation controls which created the intake
air course.  Conceding that its designation of an area as an
intake air course may not, of itself, establish the area as
such,
Brushy Creek nonetheless concludes that it has always been
its prerogative to adopt a ventilation plan which fits the
unique circumstances at its mine.

Brushy Creek concedes that there was no coal production
equipment in the air course at the time of the inspection,
but takes the position that nothing in the regulations
states that removal of the equipment or seal construction
magically trans-forms an intake air course into a worked-out
area.  Brushy Creek concludes that any dissatisfaction
regarding the length of the air course or the specific
conditions found did not give MSHA
the authority to arbitrarily reclassify an intake air course
as a worked-out area.  Brushy Creek further concludes that
the inspectors could have cited it for an improperly
inspected intake air course, or for other regulatory
violations, but instead focused on the "worked-out area"
newly promulgated regulation "written" by Mr. Eslinger, and
having made the choice, the citations stand or fall on this
definition.

Citing the testimony of Mr. Eslinger at Tr. 705-709,
Brushy Creek states that while the 5-B area was being mined
the air course delivered clean intake air to the face, and
the contaminated return air was carried away in the air
course.  As the location of the face changed, the
classification of the air course changed, depending on
whether it carried "intake" or "return" air.  When mining
ceased in the 5-B area on Friday, March 25, 1994, the air
course up to the face was an "intake
air course" and beyond the face was a "return air course."

Brushy Creek points out that according to Mr. Eslinger when
the equipment moved back to the 5-A face on Monday,
March 28, 1994, the entire 5-B area became "a worked-out
area" and the air course became a return air course.  In
short,  Brushy Creek concludes that what had been an
acceptable intake air course became, for no stated reason,
an unacceptable worked-out area, and although Brushy Creek
was permitted to run fresh air through the area on Friday,
it was not permitted to do so on Monday, even though the air
at the 5-A face never exceeded acceptable levels.

Brushy Creek states that reduced to its simplest terms,
MSHA's claim is that intake air entered the 5-B area, moved
with the atmosphere in this "worked-out" area, then exited
as return air sweeping the 5-A face.  However, Brushy Creek
points out that permanent ventilation controls existed which
met MSHA's defini-tions and created an air course around the
5-B area.  Further, the intake air does not mix with the
atmosphere in any worked-out area.  Intake air stays in the
intake air course and does not ventilate a work area.  Even
if it did mix, the air would have picked up the air bubble
discovered in the neutral.

Brushy Creek points out that the intake was always clear of
excessive methane, and no one ever found "bad air" in the
form of high methane or low oxygen at any place in the air
course or at the faces.  Brushy Creek states further that
the parties agree that the air in the No. 5 air course was
intake air up to the point where the seals were under
construction at the 5-B entry area, and if the seals had
been in place, the air would have had a direct flow to the
5-A face and there would have been no violation.

Brushy Creek concludes that nothing occurred to the air in
the 5-B intake air course which could change the "intake"
air into "return" air.  The air did not become contaminated
with methane or lose its oxygen content, there was no coal
production equipment present, there was no working face or
working places, the only working place in that area of the
mine on March 29 was the 5-A face, there were no power
sources, and the only equipment present was miscellaneous
belt structures and other equipment which was being
recovered, none of which was "mechanized mining equipment"
requiring a separate split of air pursuant to section
75.332(a)(1).

Brushy Creek asserts that if the permanent stoppings were
not in place throughout the 5-B area, as represented in
MSHA's map, Exhibit G-2, then the entire area would be
classified as a "worked-out area."  However, because the
permanent ventilation controls were in place, the entries
separated by those permanent controls remain classified as
an air course pursuant to the definition of that term in
section 75.301.  Since it was an air course, and was
utilized as an intake air course, Brushy Creek concludes
that by definition, it can not be a worked-out area.

Citing the Zeigler decision, supra, Brushy Creek states
that return air may have different meanings for different
standards, and for the purpose of Subpart D, Part 75, it
means "air that has ventilated the last working place."
Brushy Creek takes the position that the air passing along
the 5-B intake
air course did not ventilate the "last working place" until
it reached the 5-A face.

Brushy Creek asserts that before going underground on
March 29, 1994, Mr. Wirth and Mr. Eslinger had apparently
concluded that the 5-B area fit Mr. Eslinger's definition of
"worked-out" (Tr. 144).  Mr. Wirth was familiar with the
area
and told Mr. Culpepper shortly after they started that the
air course contained return air (Tr. 596), and that before
starting into the air course from the other end, Mr.
Eslinger told Mr. Pait that the air was "off old works, so
it's return air" (Tr. 665).  Brushy Creek suggests that
since Mr. Eslinger had supposedly superior knowledge in
regard to MSHA's inter-pretation of the "worked-out area"
provisions of the new ventilation regulations, and had
previously been to the mine
and was familiar with the ventilation plan and mine maps of
the 5-B area, he was obliged to point out any hazards to
Brushy Creek, rather than playing a game of "gotcha."

Brushy Creek states that if the 5-B air intake is a
"worked-out" area, then the four citations must be
considered separately and either vacated or modified.  With
regard to Citation No. 4260292, Brushy Creek believes that
the essence
of the alleged violation is that it should have had clean
air ventilating the producing section, and that it was "S&S"
because of the possibility of methane from below or from the
lengthy air course.  However, Brushy Creek points out that
during the two inspection days in question, the air in the
air course and at the face was clean and there was no
methane levels in the working section that were above
acceptable levels.  Brushy Creek concludes that, at most,
this citation results
from a reasonable disagreement as to the classification of
5-B air course resulting from the difficulty of the
definition.  It concludes that the citation should be
vacated, and, if not, reduced to non-"S&S" with no
negligence.

With regard to Citation No. 4260295, Brushy Creek states
that the time noted for the issuance of the citation is
wrong, and that only one golf cart was present.  Although
the citation was marked "S&S" and "reasonably likely" to
result in a perma-nently disabling injury, Brushy Creek
points out that the operator was allowed to start the cart
and give one of the inspectors a ride out, and it concludes
that no danger would
have been present if Mr. Wirth had not taken it upon himself
to change the air flow.  Brushy Creek believes the citation
should be vacated and, if not, reduced to non-"S&S" with no
negligence.

With regard to Citation No. 4266732, Brushy Creek points
out that MSHA acknowledged that "management was compelled by
circumstances beyond their control to change ventilation
that
may have permitted the cited condition to exist."  Further,
while the citation alleges that the neutrals (the "worked-
out area") "was not ventilated," Mr. Eslinger admitted that
the air quality on the working section was satisfactory (Tr.
245).  Under the circumstances, Brushy Creek concludes that
the methane in the area was continuously diluted within the
intent of the standard, and it believes that the citation
should be vacated or reduced to non-"S&S" with no
negligence.

With regard to non-"S&S" Citation No. 4266733, Brushy Creek
argues that it was in the process of changing the escapeway
markers when the inspection team arrived, and at MSHA's
direction, to abate the citation, the entire 5-B intake air
course was marked, even though Mr. Eslinger admitted he
would take a shorter way out (Tr. 264).  Brushy Creek
maintains that MSHA's prosecution of this citation is
inconsistent since if it is sustained, it is an
acknowledgment that the primary escapeway which MSHA
required to be marked was ventilated with intake air.  If
this citation is sustained, Brushy Creek suggests that
consistency requires that the other three must be dismissed.

The 5-B area in question was a rather extensive area
containing entries, rooms, and panels from which coal had
been extracted.  Mr. Smock estimated that it was
approximately
two and one half to three miles around the perimeter of the
area, and Mr. Wirth stated that it took four and one half
hours to walk around the area (Tr. 73, 450).

In the instant proceedings, if access to the 5-B area had
been sealed at the time of the inspection, the intake air
would have continued down the intake air entry directly to
the 5-A face area where it would have swept and ventilated
the faces before exiting the mine through the return.  In
that scenario, there would be no violation because the
intake air traveled directly
to the face area without first migrating and traveling
through the 5-B area.  However, by coursing the air through
the 5-B area where the sealing work had not been completed,
and allowing that air to mix with the air ventilating the
neutral area before exit- ing the area where it was again
used to ventilate the 5-A working faces, the respondent ran
afoul of the cited ventilation standards.

As noted earlier, "intake air" is defined by section 75.301
as (1) air that has not yet ventilated the last working
place on any split of any working section or (2) air that
has not yet
ventilated any worked-out area.  "Return air" is defined in
relevant part as (1) air that has ventilated the last
working place on any split of any working section, or (2)
air that has ventilated any worked-out area.  In short, air
that has not ventilated any worked-out area is considered
intake air, and air that has ventilated any worked-out area
is considered return air.  The controversy with respect to
the four disputed violations in question is focused on the
interpretation of the section 75.301 definition of the
phrase "worked-out area" and its interpretation and
application to the terms "intake" and "return" air.

The phrase "worked-out area" is defined, in relevant part,
by section 75.301, as "an area where mining has been
completed, ... excluding developing entries, return air
courses, and intake air courses."

Inspector Wirth testified that during his inspection of the
5-B area there was no coal production in progress, no
continuous mining unit or coal producing equipment, and no
electrical power.  He also observed that some of the
permanent ventilation stoppings were crushing out, and the
only work that he found in progress was the work to complete
the sealing of the area (Tr. 59-65).

Inspector Eslinger characterized the 5-B area as "a classic
worked-out area" where mining had been completed (Tr. 282,
285).  Although Mr. Eslinger believed that the ventilation
method used at the time the area was being mined, as shown
on the mine maps, was sufficient, he confirmed that
management did not submit a ventilation plan showing the
method of ventilation used in the
5-B area at the time of the inspection (Tr. 282, 285).
Since Brushy Creek was in the process of sealing the 5-B
area,
Mr. Eslinger concluded that Brushy Creek tacitly admitted
that mining was completed in that area and it never intended
to go back to mine coal (Tr. 287).

Mr. Smock agreed that a "worked-out area" is one where
mining has been completed, and he conceded that at the time
of the inspection, "we had finished cutting coal in this
area, but mining wasn't done because I had to get out of
there" (Tr. 406).  Conceding that there was no electrical
power on the 5-B area,
Mr. Smock suggested that because of the sealing work in
progress, and the presence of some equipment in one of the
rooms (belt, framing drives, and power boxes), which had not
been removed from the area, the area was not "worked-out"
(Tr. 412-412, 467-468).  General Mine Manager Hatcher
identified similar equipment that was in the area (Tr. 510-
511).

During closing arguments at the hearing, Brushy Creek's
counsel stated that, "we haven't contested the fact that
mining was completed in that area" (Tr. 741).  Indeed, in
its post-hearing brief, Brushy Creek concedes that there was
no coal production equipment in the 5-B area at the time of
the
inspection, and it does not dispute the fact that there was
no power on the 5-B area.

I conclude and find that the evidence here establishes that
at the time of the inspection in question, the mining of
coal
had been completed in the 5-B area, there was no power, and
the area was in the process of being sealed.   I further
conclude
and find that the fact that the sealing had not been totally
completed, and that certain pieces of equipment had not yet
been removed from the area, does not detract from the fact
that the area was for all intents and purposes "mined-out."
Under the
circumstances, I conclude and find that the 5-B area was a
"worked-out area" as that term is defined by section 75.301.

With regard to the exclusion of return air courses and
intake air courses from the definition of "worked-out area,"
I cannot conclude that the 5-B area contained any clearly
defined intake air course that qualifies for a "worked-out
area" definitional exclusion.

For the reasons which follow, and notwithstanding the fact
that the 5-B perimeter area was separated by ventilation
stop-pings, I can not conclude that it constituted a de
facto intake air course that would exclude the 5-B area as a
worked-out area.

In support of its assertion that the perimeter of the
5-B area constituted an intake air course, thereby excluding
the 5-B physical area as a "worked-out area," Brushy Creek
main-tains that the ventilation stoppings constituted an
"air course" as defined by section 75.301, and that since
the air in that air course had not yet ventilated the last
working place, it was intake air.

Brushy Creek argues that the 5-B perimeter air course met
all of the practical requirements as an intake air course in
that the entries were separated from the neutral entries by
the stoppings and ventilation doors that allowed methane in
the neutral area to "trickle" into the air course, that the
concept of an air course around a neutral area is shown in
ventilation
plan Drawing AO717-01 (Exhibit JE-2), that the air course
was examined as an intake air course, and that it was in the
process of marking the air course as an intake air course
primary escapeway when the inspectors appeared on March 29,
1994.

I conclude and find that the fact that a ventilation plan
sketch depicts a "concept" for an air course around a
neutral area does not support any conclusion that the
respondent's ventilation method in use at the time of the
inspection was covered or authorized by the approved plan.
In fact, the testimony is to the contrary.

Conceding that simply designating an area as an intake air
course does not ipso facto establish it as such, Brushy
Creek maintains that it has always been its prerogative to
adopt a ventilation plan which fits its unique
circumstances.  However, Mr. Eslinger testified credibly
that there was nothing in the mine ventilation plan allowing
Brushy Creek to do what it was doing (Tr. 159).  Further,
although Mr. Pait testified that the mine ventilation plan
did not prohibit the ventilation configu-ration for the 5-B
perimeter area (Tr. 666), Mr. Smock testified that the
ventilation plan did not cover or authorize what was being
done at the time of the inspections on March 29 and 30, 1994
(Tr. 499).

Brushy Creek's assertion that it considered the 5-B area to
be an intake air course because it regularly inspected the
area as such is not well taken, and its conclusion in this
regard is rejected for lack of any supporting probative or
credible evi-dence.  The only written documentation produced
by Brushy Creek to support its assertion that the 5-B area
was being regularly inspected as an intake air course is a
preshift mine examiner's report signed by Richard Doty for
an inspection of the "#5 intake" on March 29, 1994 (Exhibit
P-0-3).  Mr. Doty was not called as a witness and Brushy
Creek introduced no further examination reports from its
mine records.

Brushy Creek's Shift Manager Reynolds, who walked part of
the 5-B perimeter with Inspectors Holland and Eslinger on
March 29, 1994, testified that he observed two locations
where Mr. Doty had initialed and dated March 29 on the
inspection boards, and he marked the locations on Exhibit 0-
2 (Tr. 588).  However, no records documenting these
examinations were forth-coming and one can only speculate as
to whether one of these locations was the one documented by
the aforementioned Doty report.

Although Underground Superintendent Smock testified that
he had to examine the entire 5-B area as an intake air
course, and that his mine examiners "would have been there
daily" to examine the area of deepest penetration, the seal
work area,
and "the intake for an air course" (Tr. 414, 452-459), no
documentation in the form of examination records were
produced, and none of the examiners who purportedly
conducted the examinations were called to testify.

Safety Manager Pait testified that the 5-B area did not have
definite examination points, and he asserted that examiners
would initial "at the point of deepest penetration or
somewhere within that area between the beginning and the
end" (Tr. 670).  Although Mr. Pait believed the area was
regularly inspected, the only specific examination he could
identify was the one by Mr. Doty on March 29 (Tr. 670).
Brushy Creek confirmed that it could not find any
examination records for the 5-B area other than the one it
produced (Tr. 695).

Inspector Wirth testified that the 5-B area was not being
properly pre-shifted or examined weekly as required by
sections 75.360 and 75.364, and that when he walked the
perimeter of the 5-B area to the point of deepest
penetration, he found no dates, times, initials, or evidence
to indicate that these examinations were being conducted.
Under the circumstances, he cited
Brushy Creek with a violation for not conducting these
examinations (Tr. 48, 53-54, 76).

Inspector Eslinger was aware of only one entry in the
5-B area that was examined and marked "safe," but he did not
believe that Brushy Creek was examining all of the entries
and rooms throughout the entire area as required by section
75.360(b)(6), and he disputed Brushy Creek's contention that
it considered the 5-B area to be intake air because it was
being examined as an intake air course (Tr. 284).

After careful consideration of all of this evidence, I
conclude and find that, at most, Brushy Creek may have
conducted sporadic and cursory examinations of the 5-B area
while working and preparing to seal the area before the
inspections in question, but I can not conclude that it was
regularly inspecting or treating the area as an intake air
course.

Mr. Wirth testified credibly that intake air can become
return air, but that return air can not become intake.  He
further testified that when he inspected the 5-B area with
Mr. Culpepper be observed that it was marked with red
reflectors, and that Mr. Culpepper informed him that these
markings were used to identify return air (Tr. 84-85, 122-
123).  Mr. Pait testified that at the time of the inspection
most of the 5-B area "was still marked as a return because
that's what those had been a week before ..." (Tr. 677-688).

The definition of "air course" found in section 75.301
states, in relevant part, that the separation of an entry or
entries by stoppings or other ventilation control devices is
so that any mixing of air currents between each is limited
to leakage.  The evidence here reflects that the mixing of
the
5-B neutral air and the perimeter air was more than leakage
or confined to "a trickle."

The respondent's assertion that the 5-B "intake air" did not
mix or ventilate any worked-out area and stayed in the
"intake air course" is not supported by the evidence and
testimony, and it is rejected.

Mr. Smock confirmed that the 5-B neutral area was being
ventilated in order to keep any methane below the legal
limits.  In order to facilitate the flow of air through that
area,
stopping blocks were removed, and the air that was used to
ventilate this area blended in with the rest of the air in
the air course that was exiting the 5-B area (Tr. 414-416).
He further confirmed that air was coursed into the neutral
areas by stopping doors to allow the air to circulate and
ventilate the neutral area.  The air would then exit through
these doors and into the air course (Tr. 423).  He also
testified that air from the belt haulageway was used to
ventilate the area that was being sealed, and that it
traveled the perimeter of the 5-B area, through the neutral
area, and out into the air course that then swept the 5-A
working faces before exiting the mine through the return
(Tr. 477-478).

The evidence establishes that the mine is an extremely
gassy mine.  Indeed, the mining that had previously taken
place at the 5-A area was suspended and moved to the 5-B
area because of high levels of methane migrating through the
5-A floor from
an old abandoned mine below that area.  Mining resumed in
the
5-A area after the methane was cleared up after bore holes
were drilled to bleed it off.

Mr. Wirth testified credibly that the worked-out area
included the neutral area between the stoppings where
methane
was detected in an area where there was no air movement
(Tr. 147).  He also observed 5-B areas where the stoppings
were crushing out and where below normal oxygen levels were
discovered, as well as methane levels up to 1.8 percent.
Mr. Eslinger testified that his methane detector, which was
set at 2.5 percent methane, sounded when he walked through a
stopping door into the 5-B neutral area.  Underground
Superin-tendent Smock candidly admitted that he "wanted out
of there as soon as possible" because of pillar squeezing
and the presence of gas bleeders.  He also admitted that the
5-B area was "troubled" before the inspection because of the
squeezing that was "messing up" the ventilation system.

Mr. Wirth acknowledged the presence of permanent and
temporary ventilation controls and stoppings while he was
traveling the 5-B area during his inspection (Tr. 106-107,
111).  He confirmed that the air ventilating the 5-A face
area where mining was taking place was the same air that had
ventilated
the 5-B area, and that both areas were being ventilated by
the same split of air and not separately.  Although Mr.
Wirth acknowledged that the air entering the section was
initially intake air, he concluded that once it was coursed
through the
5-B area, it became return air, regardless of whether it
remained in the perimeter area or in the "neutral area" (Tr.
85).  Since the air ventilating the 5-A area was not on a
separate fresh air intake split, he concluded there was a
violation of section 75.332(a)(1).

Mr. Wirth testified that the last working place on the
section for the purpose of applying the definition of return
air was the 5-A working place where coal was being produced
(Tr. 98).  He agreed that by definition, the air must first
pass by that working place before it can be considered
return air pursuant to section 75.301.  However, since the
air had already ventilated the "worked-out" area before
reaching the last working place,
he concluded that it was return air by that same definition
(Tr. 99).

Mr. Eslinger considered the entire 5-B area, including the
"neutral areas" between the stopping lines, to be worked-out
areas (Tr. 147).  He conceded that the air that exited the
5-B area and was used to ventilate the 5-A face area would
have been within the legal limits of intake air, but for the
section 75.301 definition of return air that defines such
air as air that has been used to ventilate a worked-out area
(Tr. 147).

Although I agree with Brushy Creek's assertion that the
definition of "worked-out area" is circular, confusing and
inartfully drafted, I am not persuaded that Brushy Creek was
totally ignorant of the prohibitions against using air which
has ventilated a worked-out area to ventilate the working
face area in question.  Nor can I ignore the hazards
associated with  potential methane ignitions and explosions
that may occur as a result of ventilating active face areas
with air that was used to ventilate other worked-out areas
before exiting the mine through the returns.  I find that
the promulgation of the ventilation standards found at
sections 75.332, 75.334, and 75.380, was clearly intended to
address, remedy, or prevent these potential hazards to
miners working underground.

After careful consideration of all of the evidence in these
proceedings, I conclude and find that MSHA has the better
part of the argument.  I can not conclude that Brushy Creek
has estab-lished that the 5-B perimeter area that it has
characterized as an intake air course was in fact a clearly
identifiable separate air course delivering un-mixed air
directly to the 5-A working faces without first ventilating
the 5-B worked-out areas.  Since the evidence establishes
the 5-B perimeter air mixed with the
air from the belt haulageway that was used to ventilate the
5-B neutral worked-out areas, I conclude and find that the
air did in fact ventilate worked-out areas before reaching
the
5-A working faces.  Under the circumstances, I further
conclude and find that this air was return air as that term
is defined by section 75.301.

The parties agreed that the principal issue with respect to
the citations in question is whether the cited 5-B area was
a "worked-out area" as defined by section 75.301 (Tr. 281,
505, 692; Respondent's Post-hearing Brief, pg. 9).  They
further agreed that if I should find that the cited 5-B area
was a worked-out area, the violations should be affirmed.
Under the circumstances, Citation Nos. 4260292, 4260295,
4266732, and 4266733 ARE AFFIRMED.

Citation No. 4260297 (LAKE 94-175-R; LAKE 94-250)

In this citation, Brushy Creek is charged with a violation
of mandatory safety standard 30 C.F.R. 75.370(a)(2), for
failing to follow its approved ventilation plan requiring a
minimum of 6,500 cfm of air at the end of a ventilation line
curtain at
all times while the miner machine is cutting or loading coal
(Ventilation plan, pg. 1, paragraph C.(2) (Exhibit JE-2)).
Section 75.370(a)(1) requires a mine operator to develop and
follow its approved plan, and, in this case, the inspector
found less than the required amount of air at the cited face
ventilation curtain in question while coal was being cut and
loaded.

Inspector Wirth's credible and unrebutted testimony clearly
establishes that there was little or no air movement at the
end of the cited line curtain in question.  The respondent's
approved ventilation plan requires that 6,500 cubic feet of
air per minute be maintained at the end of the line curtain
at all times while coal was being cut and loaded.  Mr.
Wirth's testimony establishes that the available air was
insufficient to even turn the vanes of the anemometer that
he used to test the air.

Mr. Wirth's testimony that he observed coal being cut and
loaded at the face of the No. 6 entry where the cited
curtain was located was corroborated by the credible
testimony of Inspector Bird who testified that when he and
Mr. Wirth walked into the entry, he observed coal being
loaded, and a loaded car leaving the area.  Mr. Bird's
inspection notes reflected that the remote control miner was
cutting and loading coal in the No. 6 entry.  Mr. Eslinger
testified credibly that he arrived at the cited location
shortly before Mr. Bird and Mr. Wirth and observed a loaded
shuttle car leaving.  He then watched as other shuttle cars
pulled in and were loaded with coal.

I find no credible testimony or evidence to rebut the
observations made by Mr. Bird, Mr. Wirth, and Mr. Eslinger
in support of the violation.  Mine Manager Hatcher confirmed
that
he did not observe the cited conditions and was not present
when the citation was issued.  Assistant Safety Inspector
Gene Culpepper testified that when he went to the face area
he found Mr. Eslinger, Mr. Bird, and Mr. Wirth there and
they informed him that a citation had been issued because of
insufficient air at the face.  Mr. Culpepper confirmed that
when he arrived in the area, the mining machine was shut off
and he did not take any air readings at the end of the cited
line curtain.

Safety Manager Pait confirmed that he had no personal
knowledge of the line curtain violations and that he was on
the surface when Mr. Culpepper called him to inform him that
the citation was being issued.

The only relevant testimony by the respondent in defense of
the violation was that offered by miner operator Steve
Burgess.  He testified that he did not take an air reading
before starting his cuts because he had no anemometer.  He
confirmed that
Mr. Wirth checked the air and found none because part of the
curtain was missing.

Mr. Burgess claimed that when he first observed the
inspectors he was through cutting coal and was backing the
machine up to clean up so that he could begin bolting the
roof.  He took the position that he was simply cleaning up
the loose coal that was on the ground and suggested that he
was not cutting or loading coal.  I reject this testimony as
a less than credible defense to the violation.  Even if I
were to accept as true that Mr. Burgess was cleaning up
loose coal when he first observed the inspectors, they
testified credibly that when they were observing the work at
the face, coal was being cut and loaded, and shuttle cars
were coming and going from the face areas with loaded coal
that had been cut at the face by Mr. Burgess.

On cross-examination, Mr. Burgess confirmed that he had not
cleaned up any loose coal when the inspectors appeared at
the face areas and that he had just made a 35 foot cut of
coal that was dumped in the ram cars and hauled away.  He
further confirmed that he cleaned up the place and loaded
the coal out after the violation was abated and terminated.

I conclude and find that the petitioner has established by
a preponderance of the credible and probative evidence that
the requisite amount of air was not being maintained at the
end of the ventilation line curtain while coal was being cut
and loaded.  Brushy Creek's failure to maintain the air as
required consti-tutes a violation of its approved plan, and
its failure to follow the plan constitutes a violation of
section 75.370(a)(1).  Accordingly, the citation IS
AFFIRMED.

Citation No. 4261610 (LAKE 94-176-R; LAKE 94-250)

Brushy Creek is charged here with a violation of mandatory
safety standard 30 C.F.R. 75.370(a)(1), for failing to
follow
its approved ventilation plan requiring the cited
ventilation line curtain to be maintained within 40 feet of
the deepest penetration of the face while coal is being cut
and loaded (Ventilation Plan, pg. 1, paragraph C.(2)
(Exhibit JE-2)).  Here the inspector found that the curtain
measured 66 feet from the deepest penetration where coal was
being cut and loaded.

The credible testimony of Inspector Bird establishes that
the cited ventilation line curtain was not maintained to
within 40 feet of the face as required by the approved mine
ventilation plan.  The applicable plan provision when remote
control miners are in use requires the ventilation line
curtain to be maintained to within 40 feet of the deepest
penetration of the face.

Mr. Bird determined that the line curtain was not maintained
to within 40 feet of the face by measuring the distance
between the miner bits cutting at the face to the tail of
the miner, and the distance from the line curtain to the
last row of roof bolts.  Based on these measurements, he
concluded and found that the line curtain was being
maintained at a distance of 66 feet from the point of
deepest penetration where coal was being cut and loaded at
the face.  Mr. Eslinger, who was present at the scene,
testified credibly that after he pointed out that coal was
being cut and loaded, Mr. Bird proceeded to make his
measurements, and that mining was stopped.

Brushy Creek's Safety Inspector Gene Culpepper, who made a
sketch of the curtain, including a notation that it was
"taken down by a car," confirmed that he based this notation
on what he "thought" had happened, and he admitted that he
did not see any car tear the curtain down and did not speak
to any car operator.  Although he claimed that he saw that
the curtain was missing, he conceded that he did not know
what happened.  He further stated that miner operator
Burgess told him that he "thought" that a
car had torn down the curtain.  Mr. Culpepper confirmed that
he made his sketch six months after the citation was issued,
and although he took exception with the curtain sketches
made by the inspectors, he admitted that even on his sketch
the curtain is shown as more than 40 feet from the face, and
that this would be a violation.

Miner operator Burgess claimed that he saw the curtain
being torn down, but indicated that only 30 feet of the 70
foot curtain was torn down and that the last five or six
feet of curtain skirting towards the face was missing.  He
confirmed
that abatement was achieved by hanging a new curtain that
had been stored in a roof bolting machine nearby, and he
testified that this new curtain was intended to replace the
old curtain.

Inspector Wirth testified credibly that he saw no evidence
that the curtain had been ripped down and he saw no curtain
lying on the mine floor.  Although he did observe a gap at
the bottom of the curtain, he did not believe this was
significant as long as the air was maintained as required by
the ventilation plan.

Inspector Bird, who was also at the scene with Mr. Wirth,
did not observe any curtain on the ground or a car tearing
it down.  He testified that he would not have issued the
citation if
the curtain had been torn down and loading was stopped to
hang
it back up.  However, he saw no evidence that this was the
case.

Inspector Eslinger testified that he observed no ripped
curtain or any curtain being dragged off by a shuttle car,
and
he saw no evidence that the curtain had been hung up to the
last full roof bolts.

The respondent's suggested defense that the curtain was not
maintained to within 40 feet of the face because it was torn
down by a shuttle car leaving the area is rejected.  Mine
operator Burgess' testimony that the new curtain stored on
the roof bolter was intended to be hung earlier "to start
with," suggests that part of the curtain may have been down
sometime prior to the arrival of the inspectors, and that
mining continued on with no action taken to install the new
curtain until after the citation was issued.  Under the
circumstances, I can not conclude that this excuses the
violation.

I conclude and find that the petitioner has established by
a preponderance of the credible and probative evidence that
the cited violation line curtain was not maintained to
within 40 feet of the deepest penetration while coal was
being cut and loaded, as required by the mine ventilation
plan.  Brushy Creek's failure to maintain the required
curtain distance as required by its approved plan
constitutes a violation of section 75.370(a)(1).
Accordingly, the citation IS AFFIRMED.

Brushy Creek's counsel suggested that the inspectors were
mistaken as to the location of the cutting machine, as well
as the depths of the cuts, and he advanced the argument that
the machine operator was "strictly cleaning up after
completing some cuts" and was not cutting or loading coal
(Tr. 382-393).  Counsel further asserted that Brushy Creek
was charged with two separate line curtain violations rather
than one and he  voiced his dis-pleasure with MSHA's "double
barrel" enforcement action
(Tr. 393-394).

I find no credible or probative evidence to support any
conclusion that the inspectors were mistaken as to the
location of the violations.  Even if they were, I find no
prejudice to Brushy Creek in defending the citation.  I
further find no
evidence to support a conclusion that the inspector mistook
the depths of the cuts.  I find the inspector's unrebutted
measurements in support of the violation to be credible.

With regard to Brushy Creek's "duplicate violation"
argument, while it is true that the two line curtain viola-
tions resulted from a single episode, the evidence supports
two distinct violations and the Act requires a penalty
assessment for each violation, 30 U.S.C. 820(a).  However, I
have taken all of this into consideration in assessing the
penalties for the violations in question.

Significant and Substantial Violations

A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute
to the cause and effect if a coal or other mine safety or
health hazard."  30 C.F.R.  814(d)(1).  A violation is
properly designated as significant and substantial, "if,
based upon the particular facts surrounding the violation
there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature."  Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:  (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:

     We have explained further that the third
element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event
in which there is an injury."  U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984).  We have
emphasized that, in accordance with the language
of section 104(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75   (July 1984).

The question of whether any particular violation is "S&S"
must be based on the particular facts surrounding the
violation, including the nature of the mine involved,
Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2006
(December 1987).  Further, any determination of the
significant nature of a violation must be made in the
context of continued normal mining operations.  National
Gypsum, 3 FMSHRC 327, 329 (March).  Halfway, Incorporated, 8
FMSHRC 8 (January 1986).

In the Texasgulf, Inc. case, supra, the Commission affirmed
the judge's non-"S&S" finding in connection with a
permissibility violation and commented that in order for an
ignition or explo-sion to occur, "there must be a confluence
of factors, including a sufficient amount of methane in the
atmosphere surrounding the impermissible gaps and ignition
sources," 10 FMSHRC 501.

Citation No. 4260292

Mr. Wirth based his "S&S" finding on the fact that the 5-A
face area where mining was taking place was not being
ventilated by a separate split of fresh intake air, and was
instead being ventilated by air that had circulated through
and ventilated the worked-out 5-B area.  He concluded that
it was reasonably likely that an injury would occur because
the 5-B area was not being properly examined, there was a
body of methane present in the neutral worked-out area, with
no air movement sufficient enough to dilute and move out
that methane, and he believed that con-taminated air from
this area would easily find its way to the coal producing
area.  He also considered the fact that methane was being
liberated from an old mine and was migrating through Brushy
Creek's mine.

Mr. Wirth further believed that low oxygen levels and high
methane levels may go undetected in areas that are not
properly examined, and that roof falls could result in the
failure of permanent ventilation control devices.  Mr.
Eslinger confirmed that he reviewed Mr. Wirth's "S&S"
finding and agreed with it.  Since it was only the second
day of mining, Mr. Eslinger was concerned that methane could
again come through the mine floor, and he found methane in
the 5-B area and believed that it could travel to the
working 5-A face at any time.

I conclude and find that Mr. Wirth's testimony in support of
his "S&S" finding is general and somewhat speculative.
Although I have found that the failure to ventilate the 5-A
working face area with a separate split of intake air
constitutes a violation of section 75.332(a)(1), on the
specific facts of this case, I cannot conclude that in the
course of continued mining the cited condition would
reasonably likely result in an accident or injuries of a
reasonably serious nature.

The evidence establishes that no active mining was taking
place in the 5-B worked-out area and there was no power on
the area.  Except for some miscellaneous belt structures,
all of the electrical equipment used to mine coal had been
removed from the worked-out area.  Except for the area where
sealing work was being conducted, there is no evidence that
miners were regularly working in other worked-out areas.
Although Mr. Wirth concluded that it was "very easy" for any
contaminated air exiting the worked-out area to enter the 5-
A producing section, Mr. Eslinger confirmed that there was
sufficient air quantity and oxygen at the working 5-A faces,
and there was no evidence of any carbon monoxide.  Indeed,
Mr. Eslinger characterized the air sweeping the faces as "up
to snuff" (Tr. 147).  Mr. Eslinger also testified that he
found no methane levels or oxygen levels that would have
endangered miners on March 29 and 30, 1994 (Tr. 709).

In view of the foregoing, I conclude and find that the
evidence does not support the inspector's "S&S" finding, and
his finding in this regard IS VACATED.  The citation IS
MODIFIED to a non-"S&S" citation.

Citation No. 4160295

Inspector Wirth cited the nonpermissible golf cart that
was driven into the area where he found 1.9 percent methane
and 18.8 percent oxygen.  Brushy Creek conceded that the
cart was non-permissible.  Mr. Wirth believed that it was
reasonably likely that an explosion would occur if work had
been allowed
to continue because the cart was driven into an area where
he found the methane and low oxygen levels.  Although he did
not inspect the golf cart, he believed that the cart
batteries, and the motor, which sparks and arcs, the battery
terminals, and the headlight all constituted ignition
sources.

After careful review of all of the evidence and testimony
with respect to this violation, I cannot conclude that it
was "S&S."  Although the evidence establishes that the golf
cart was non-permissible, the inspector conceded that he did
not inspect it and there is no evidence that any of its
components were defective.  Further, the evidence
establishes that no active mining was taking place in the 5-
B area, there was no power on the section, and all of the
mining equipment had been removed.

The evidence reflects that Mr. Culpepper was initially
driving a cart in the neutral area behind the stoppings
while
the inspector he was with was on the other side.  Mr.
Culpepper had operated the cart without incident or
inspector complaints for most of the inspection.  However,
when the battery went dead, Mr. Culpepper abandoned the cart
and was picked up by another cart driven by the walkaround
representative.  When Mr. Culpepper subsequently got off the
cart and started walking in the direction of an entry from
where he was being flagged by someone, his methane detector
sounded in the presence of all of the inspectors who had
apparently just stepped through a stopping door and detected
the presence of methane.  At that point in time, Mr.
Culpepper was informed that he would be cited for driving
the golf cart into the area where methane was detected.

Inspector Wirth conceded that the cart was not taken out
of service, and that he allowed it to be driven from the
area after it was pushed out of the area where the methane
was detected.  However, before the cart was started again,
Mr. Wirth tested for methane and found that it was below the
allowable limit.  This indicates to me that the condition
was immediately abated.  I also note Mr. Wirth's testimony
that prior to entering the neutral area through the
personnel door, his methane detector never sounded (Tr.
108).  He also testified that the methane level he found
would not in itself warrant a citation for the worked-out
area in question (Tr. 94).

Based on the facts and evidence presented, I conclude and
find that the methane level that caused the detectors to
sound was an isolated event of very short duration, and with
rather instant abatement.  In the context of continued
mining oper-ations, I cannot conclude that it was reasonably
likely that a methane ignition or explosion would have
occurred.  The only work in the 5-B area was the sealing
work, and there is no evidence that miners would normally be
working in the neutral area behind the stoppings where the
cart was being driven at the time of the inspection, nor is
there any evidence of any methane or golf carts being
otherwise operated in the sealing work area as part of any
normal mining operation.  Under all of these circum-stances,
the "S&S" finding by the inspector IS VACATED, and the
citation IS MODIFIED to a non-"S&S" citation.

Citation No. 4266732

Inspector Holland issued this citation after finding
1.9 percent methane and 18.8 percent oxygen in the cited
worked-out area.  He did not testify.  However, based on the
narrative description of the cited condition, it would
appear that Mr. Holland concluded that the area was not
sufficiently ventilated to move out the methane that he
found.

Mr. Eslinger testified that he observed the conditions that
gave rise to the citation and he agreed with Mr. Holland's
"S&S" finding.  Mr. Eslinger concluded that the lack of air
movement, coupled with the high methane and low oxygen
levels indicated that the available air was not moving out
the methane.  He further concluded that in the normal course
of mining, it was reasonably likely that methane would
continue to build up to an explosive level, and it could be
ignited or moved towards the active working faces.  He was
also concerned that the low level of oxygen could cause
depleted oxygen levels that would be insufficient for
breathing.

For the reasons stated with respect to my non-"S&S" findings
in connection with Citation No. 4260295, I conclude and find
that the evidence does not support the inspector's "S&S"
finding associated with Citation No. 4266732.  In addition
to those reasons, I have considered Mr. Wirth's testimony
that there is
no specific methane limit for worked-out areas, and that the
methane level he found would not result in a citation for
the cited worked-out area (Tr. 68, 94).  Under the
circumstances, and on the facts of this case, I cannot
conclude that the evidence supports any conclusion of a
reasonable likelihood of an accident or injury if work were
allowed to continue in the 5-B area.  Accordingly, the
inspector's "S&S" finding IS VACATED and the citation IS
MODIFIED to a non-"S&S" citation.

Citation No. 4260297

With regard to this citation, issued by Mr. Wirth for
inadequate air behind the ventilation line curtain, he
testified that he based his "S&S" finding on the fact that
mining had only resumed in the 5-A area two days prior to
his inspection after it had been discontinued for ten months
because of the high levels of methane leaking through the
mine floor from an old abandoned mine.  Conceding that the
methane level he found at the time
of the inspection was below the allowable limit, and that
Brushy Creek drilled bore holes to bleed out the methane,
Mr. Wirth nonetheless was concerned that a build-up of
methane could again occur in the absence of adequate air
ventilation at the face curtain area where mining was
actively going on and where mining equipment was in
operation.  He concluded that a build-up of undiluted
methane was reasonably likely in the absence of ventilation,
and that this would pose an explosion hazard.

Citation No. 4261610

With respect to the citation issued by Mr. Bird for not
positioning the ventilation line curtain to within 40 feet
of
the face, he testified that he based his "S&S" finding on
the fact that methane had in the past been freely liberated
through the mine floor, and in the presence of the ignition
sources that were present, he believed fire and ignition
hazards were present and that three miners who he observed
working in the area were at risk.  If an explosion had
occurred, he believed it was reason-ably likely that the
miners would suffer fatal injuries.

Although it is true that the air ventilating the active
5-A area faces was not contaminated with high levels of
methane at the time of the inspection, some methane was
detected.  Given the fact that mining had only recently
resumed in that area after it had been discontinued for
approximately ten months because of excessive methane
liberation through the mine floor from an old abandoned
mine, I conclude and find that the lack of adequate air flow
at the face, and the positioning of the ventilation curtain
approximately 66 feet from the face, rather than the
required
40 feet, presented a discrete safety hazard in that methane
could have been liberated and accumulated while the miner
was cutting and loading coal at the face area.  Indeed, Mr.
Smock confirmed that periodic gas bleeders are still
encountered in the 5-A area (Tr. 448).  Further, the
continuous miner, as well as the other mining equipment that
was operating in the area, constituted potential ignition
sources while coal was being cut and loaded.  Under the
circumstances, I conclude and find that in the course of
continued mining at the cited face area, it was reasonably
likely that a methane ignition, fire, or explosion would
have occurred.

I further conclude and find that in the event of a face
ignition, fire, or explosion, it would be reasonably likely
that the miners who would be present would suffer injuries
of
a reasonably serious nature.  Under the circumstances, I
con-clude and find that the violations associated with
Citation
Nos. 4260297 and 4261610 were "S&S", and the findings of the
inspectors in this regard ARE AFFIRMED.

Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business

I conclude and find that Brushy Creek is a large mine
operator and the parties have stipulated that payment of the
civil penalty assessments for the violations in question
will not adversely affect Brushy Creek's ability to continue
in business.

History of Prior Violations

An MSHA computer printout listing Brushy Creek's compliance
record for the period March 29, 1992 through March 28, 1994,
reflects that it paid civil penalty assessments in the
amount of $96,028 for 549 violations, 337 of which were
"single penalty" non-"S&S" violation.  Except for one
section 104(d)(1) citation, all of the listed violations
were issued as section 104(a) citations.  There are 29 prior
violations of section 75.370(a)(1) (failure to follow the
ventilation plan), and 55 violations of section 75.503
(electric face equipment permissibility).

Although I cannot conclude that the respondent's history of
prior violations is particularly good, for an operation of
its size, I cannot conclude that it warrants any increases
in the civil penalty assessments which I have made for the
violations which have been affirmed.

Good Faith Abatement

The parties stipulated that Brushy Creek abated all of the
violations in good faith.

Gravity

Based on my "S&S" findings and conclusions, I conclude and
find that the violations affirmed as "S&S" violations were
serious violations, and that the non-"S&S" violations were
non-serious.

Negligence

The inspectors found that Citation Nos. 4240292, 4260295,
4266732, and 4266733 resulted from a moderate degree of
negli-gence on the part of Brushy Creek.  The "moderate"
negligence finding for Citation No. 4266732 was subsequently
modified to "low" negligence by MSHA in the course of a
conference (Tr. 208-213).

Citation Nos. 4260297 and 4261610 were initially issued
with findings of "high" negligence.  However, they were
subsequently modified to reflect a "moderate" degree of
negligence.

I agree with the negligence findings, as modified, and I
conclude and find that all of the violations were the result
of Brushy Creek's failure to exercise reasonable care.

Civil Penalty Assessments

On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that
the following penalty assessments are reasonable and
appropriate for the violations that have been affirmed in
these proceedings:

                      30 C.F.R.
                    Citation No.     Date      Section
                    Assessment

                    4260292        3/29/94     75.332(a)(1)
                    $150
                    4260295        3/29/94     75.50701
                    $ 75
                    4266732        3/29/94     75.334(a)(1)
                    $100
                    4266733        3/29/94     75.380(f)(1)
                    $ 50
                    42660297       3/30/94     75.370(a)(1)
                    $600
                    4261610        3/30/94     75.370(a)(1)
                    $400

                         ORDER

In view of the foregoing, IT IS ORDERED as follows:

1. Section 104(a) "S&S" Citation Nos. 4260292,
     4260295, and 4266732 ARE MODIFIED to
     section 104(a) non-"S&S" citations.

2.   Brushy Creek shall pay a civil penalty assessment
     of $310, in settlement of section 104(a) "S&S"
     Citation No. 4266730, March 29, 2994, 30 C.F.R.
     75.503.

3.   Brushy Creek shall pay civil penalty assessments
     in the amounts shown above for the remaining
     citations that have been affirmed.  Payment is to
     be made to MSHA within thirty (30) days of the
     date of these decisions and orders, and upon receipt
     of payment, these matters are DISMISSED.



                           George A. Koutras
                           Administrative Law Judge

                           Distribution:

                           Karl F. Anuta, Esq., P.O. Box
                           1001, 1720 Fourteenth Street,
                           Boulder, CO 80306 (Certified
                           Mail)

                           Christine M. Kassak, Esq., Office
                           of the Solicitor,
                           U.S. Department of Labor, 230 S.
                           Dearborn Street, 8th Floor,
                           Chicago, IL 60604 (Certified
                           Mail)


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