<DOC>
[DOCID: f:pn99213.wais]

 
SUMMIT ANTHRACITE, INC.
Docket No.  PENN 99-213
July 25, 2002

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES

                      2 SKYLINE, Suite 1000
                        5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          July 25, 2002

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No.  PENN 99-213
               Petitioner       : A.C. No. 36-07328-03541
          v.                    :
                                : Docket No.  PENN 99-254
SUMMIT ANTHRACITE, INC.,        : A. C. No.  36-07328-03542
               Respondent       :
                                : Docket No. PENN 2000-9
                                : A.C. No. 36-07328-03544
                                :
                                : Docket No. PENN 2000-10
                                : A.C. No. 36-07328-03545
                                :
                                : Tracy Vein Slope

                             DECISION

Appearances:   Donald K. Neely, Esq., Natalie A. Appetta, Esq., Office
               of the Solicitor, U.S. Department of Labor,
               Philadelphia, Pennsylvania, on behalf of Petitioner;
               Mike Rothermel, President, Summit Anthracite, Inc.,
               Klingerstown, Pennsylvania, on behalf of Respondent.

Before:   Judge Zielinski

     These cases are before me on Petitions for Assessment of Civil
Penalty filed by the Secretary of Labor pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 ("Act"), 30 U.S.C.  815.
The petitions allege that Summit Anthracite, Inc., is liable for 22
violations of mandatory safety and health standards applicable to
underground coal mines.  A hearing was held in Harrisburg,
Pennsylvania.  Subsequently, Respondent moved to reopen the record to
allow the submission of documentary evidence related to its financial
condition and ability to pay civil penalties.  That motion was
granted, conditionally, by Order dated March 7, 2002.  The Secretary
was also granted leave to submit additional evidence related to
Respondent's financial condition.  Respondent satisfied the condition
imposed and the financial evidence was admitted as part of the record.
The Secretary submitted additional evidence on April 10, 2002, which
was also admitted.  The Secretary submitted a brief following receipt
of the transcript.  By letter dated May 6, 2002, Respondent elected
not to submit a brief, and offered the mine for sale at a price of
$0.00, provided that existing liabilities be assumed, including "five
years back pay for the 3 stockholders." At the commencement of the
hearing, the Secretary withdrew two of the alleged violations and the
petitions as to those citations will be dismissed. The Secretary
proposes civil penalties totaling $57,039.00 for the remaining
charges.  For the reasons set forth below, I find that Summit
committed twelve of the alleged violations and impose civil penalties
totaling $16,330.00.

              Findings of Fact - Conclusions of Law

Background - Anthracite Mining

     Respondent operated an underground anthracite coal mine, the
Tracy Vein Slope, located near Goodspring, in Schuylkill County,
Pennsylvania.  The coal vein varied from five to eight feet thick and
sloped at an angle of 70-80 degrees, i.e., nearly vertical.  The mine
liberated approximately 35,503 cubic feet of methane every 24 hours.
Thirteen miners normally worked at the site, nine underground and four
on the surface.  Coal was produced on one shift and was processed at
Summit's preparation plant.  Anthracite is hard coal, with a high
percentage of fixed carbon and a low percentage of volatile matter.
Because of its hardness and the configuration of the typical coal
seam, anthracite coal is mined by drilling and blasting.  Virtually
none of the mechanized equipment used in the mining of bituminous coal
can be used in anthracite mining, and it is highly labor intensive.

     Anthracite coal is mined through pairs of entries driven into the
coal seam horizontally off a haulage slope.  The lower entry is called
the "gangway" heading or entry.  It has tracked haulage cars to
transport coal to the haulage slope and serves as the main air intake
and primary escapeway.  The upper entry, called the "monkey" heading,
is driven 50-60 feet above and parallel to the gangway heading and
serves as the return air course and secondary escapeway.

     Openings, called "chutes," are developed upward from the gangway
to the monkey heading at approximately 50-foot intervals.  Coal mined
at the monkey heading level is passed down the chutes to the gangway
level, where it is loaded out on the railed haulage cars.  Wooden
"batteries" are constructed at the bottom of the chutes to control the
coal and facilitate loading it into the haulage cars.  Manways are
constructed in the chutes, and provide a means of travel between the
gangway and monkey headings.  They are separated from the coal portion
of the chute by boards, or lagging.  As new chutes are developed, the
old ones are closed off.  The last inby open chute, i.e., the chute
nearest to the gangway and monkey faces, serves as the main air course
from the gangway (intake) to the monkey (return) level.

     Openings similar to chutes, called "breasts," are driven upward
from the monkey heading at roughly the same spacing as the chutes.
Breasts are driven up 60 or more feet above the monkey heading.  The
bottoms of the breasts open into the monkey heading, where the coal is
confined by timbers and lagging boards constructed in an "L" shape.
Together with the side of the monkey heading they form a three-sided
box.  The open side of the "box" faces inby, i.e., toward the monkey
face and is adjacent to the corresponding chute opening in the floor
of the monkey heading.  Coal from the breast is fed down the chute to
the gangway level, where it is loaded out of the mine.

     Underground coal mines are inspected by MSHA four times each
year.  The last regular inspection of the Tracey Vein Slope was
completed on June 12, 1998.  The mine had an excellent safety record.
Only one violation of federal mandatory safety and health regulations
had been cited in the two years preceding August 14, 1998.

The Incident

     On July 16, 1998, there was a major accident at the mine.  An
explosion, or similar event, occurred on the monkey heading.  One
miner was killed and another was severely injured.  The nature and
exact location of the "explosion" remain in dispute.  Mike Rothermel,
Respondent's President, was at the mine and became aware of the
incident when he received a call from underground indicating that
something serious had happened.  He immediately entered the mine and
found one miner, Gary Laudenslager, with an apparently mortal head
wound, lying on the floor of the monkey heading, partially into the
No. 45 chute.  Sticks of explosive and detonators were scattered for
about 150 feet over the floor of the monkey heading.  Those in close
proximity to the deceased miner were picked up and put into explosive
shipping boxes, or parts of boxes that were in the vicinity.  The
deceased miner was removed from the mine.  The injured miner was able
to ambulate, with assistance, and was helped out of the mine.
Immediately following the accident Rothermel observed a great deal of
methane gas present in the mine.  He proceeded to the monkey face and
found "everything gone," i.e., the ventilation fan and tubing were no
longer present and a heavy "drag boat" used to drag coal from the face
to the nearest open chute was deposited some 30 feet down that chute.
He located a compressed air hose and dragged it to the monkey face,
tied it off on a support timber and turned it on.  He then proceeded
to the surface, where he encountered Jack McGann, an MSHA inspector
who had arrived to participate in an inspection of the accident.

     Several MSHA inspectors and other federal and state officials
were on the scene that day and commenced an investigation.  Temporary
ventilation controls were reestablished, where necessary, and by the
following Monday, July 19, 1998, the methane concentrations had been
reduced to safe levels.  MSHA's lead investigator was Vincent Jardina,
who had served as an inspector for 22 years, including 13 years as an
accident investigator.  Prior to becoming an inspector, he worked as a
miner for seven years and obtained certification as an assistant mine
foreman.  He has had considerable experience with bituminous coal
mines, but very limited experience with anthracite mines.

     Jardina had never inspected the Tracey Vein Slope, which was one
of the factors that resulted in his being chosen as the lead
investigator.  It is MSHA policy to designate an accident investigator
that has had no direct contact with the mine and does not know the
operators or miners.  The investigative team included a total of 23
MSHA personnel, many with specialized areas of expertise, such as
blasting.  Five representatives of the Pennsylvania Department of
Environmental Protection were also involved.  Jardina was responsible
for conducting the investigation and personally surveyed the mine,
noting the locations of various objects and pieces of equipment,
damage apparently resulting from the accident, and other conditions.
He prepared a drawing of the mine, reflecting the results of his
survey, Government exhibit 7, which is attached as an appendix to this
decision.  Other members of the investigative team interviewed and
took statements from miners.  Physical evidence was removed from the
mine and tested in various laboratories.  The on-site investigation
was concluded on August 28, 1998.  Testing results were not available
until December 21, 1998.

     MSHA was ultimately unable to determine the cause of the
accident.  The "conclusion" section of the report, Government exhibit
6, read:

          The direct cause of the accident was an unplanned detonation
          of explosives in or around the No. 46 breast of the 001-0
          working section.  Although testing was conducted on evidence
          gathered from the accident scene, the source of origin for
          the unplanned detonation could not be identified, due to the
          extent of damage from the blast.  A significant factor
          increasing the severity of the accident was improper storage
          and handling of explosives and detonators.  One of the
          following three factors were considered as a possible cause
          of the accident:

     1.   Undetonated explosives in the north borehole remaining from
     a misfire, which could not be totally removed, may have been
     drilled into from the south borehole or heat generated by the
     drilling operation may have caused the explosives to burn in the
     hole which in turn caused an ignition of detonators and
     explosives in the No. 46 breast or on the floor of the monkey.

     2.   Coal or rock may have fallen striking the detonators and/or
     explosives left in or around the No. 46 breast or on the floor of
     the monkey level.

     3.   An unintentional detonation of the wrong firing line
     possibly connected to an unconfined shot used to free hanging
     material may have detonated other explosives in or around the No.
     46 breast.

     MSHA's causation theories, and Respondent's objections thereto,
are discussed in more detail, infra, in conjunction with the
violations that initially were alleged to have been contributing
factors to the fatal accident.

     The citations are discussed below in the order that they were
presented at the hearing.

Docket No. PENN 2000-10

Citation No. 7001585

     Citation No. 7001585 was issued by Jardina on January 28, 1999,
and alleged a violation of 30 C.F.R.  75.1310(a), which requires
that: "Only permissible explosives . . . and permissible blasting
units shall be taken or used underground."  The conditions noted on
the citation were:

     During a fatal accident investigation conducted between July 16,
     1998 and August 3, 1988, it was discovered that Prima Cord, a
     non-permissible explosive, was found and used underground at the
     2nd Level East 001-0 active working section.  On July 22, 1998,
     one (1) full and two (2) partial rolls of Prima Cord (detonating
     cord) were found buried beneath wooden liner boards located
     between the No. 34 and 35 chutes of the monkey (return) heading.
     On July 24, 1998, two (2) partial rolls were found buried beneath
     wooden posts and line boards between the No. 42 and No. 43 chutes
     of the monkey (return) heading.  The mine operator admitted that
     Prima Cord, a non-permissible explosive, was used for blasting of
     long holes.

     He concluded that it was highly likely that the violation would
result in a permanently disabling  injury, that the violation was
significant and substantial, that seven persons were affected and that
the violation was due to the operator's reckless disregard of the
standard and the consequences of violating it.  The citation was
issued under section 104(d)(1) of the Act, based upon Jardina's
conclusion that the violation was a result of the operator's
unwarrantable failure to comply with the standard.  A civil penalty of
$3,000.00 is proposed.

The Violation

     Permissible explosives are those that have been tested and
approved by MSHA for use in underground coal and certain metal/non-
metal mines.  They are designed to minimize the risk that methane gas
will be ignited.  Prima Cord has not been tested or approved by MSHA
for use in underground mines and is not a permissible explosive.
Prima Cord was found at two locations in the mine.  Rothermel knew
that Prima Cord was not an approved permissible explosive and also
knew that it was used in the mine.  Tr. 93, 1730-31.  He chose to use
it for long hole blasting because he believed that it was the "lesser
of two evils."  While it burned at a high temperature, posing a risk
of igniting any methane present in the blast area, it assured complete
detonation. He felt that use of permissible blasting materials would
result in incomplete detonation and/or a slow burning of explosive
which posed a greater danger.  Respondent did not apply to MSHA for an
exception to allow the use of Prima Cord, because Rothermel believed
that the only exceptions granted in the past involved situations where
citations had been issued, i.e., that Summit would have to incur a
safety citation and fine for the practice sought to be approved.

     Respondent violated the regulation by using Prima Cord, a non-
permissible explosive, in its underground coal mine.

Significant and Substantial

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

The Commission has explained that:

          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.

Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see
also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999);
Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g, Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).

     In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985),
the Commission provided additional guidance:

     We have explained further that the third element of the Mathies
     formula "requires that the Secretary establish a reasonable
     likelihood that the hazard contributed to will result in an event
     in which there is an injury."  U.S. Steel Mining Co., Inc., 6
     FMSHRC 1834, 1836 (August 1984).  We have emphasized that, in
     accordance with the language of section 104(d)(1), it is the
     contribution of a violation to the cause and effect of a hazard
     that must be significant and substantial.  U.S. Steel Mining Co.,
     Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
     Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

     This evaluation is made in terms of "continued normal mining
operations."  U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574.  The
question of whether a particular violation is significant and
substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).

     The violation was significant and substantial.  Prima Cord poses
a danger because of its very nature.  While it is a high explosive, it
looks like rope and those untrained in its use tend to underestimate
how dangerous it is.  An unplanned detonation of Prima Cord being
mishandled by a miner would result in serious injury or death.  Tr.
962-63.  The Tracey Vein Slope was a "gassy" mine.  In excess of
30,000 cubic feet of methane was liberated on a typical mining day.
The use of non-permissible explosives in that mine could ignite
methane and seriously injure miners.  There can be little question
that despite Rothermel's belief that Prima Cord, as used in the Tracey
Vein Slope, did not present as much of a hazard as alternative
approved products, use of that non-permissible explosive in the mine
posed a reasonable likelihood that an injury would occur and that the
injury would be of a reasonably serious nature.

     While I find that the violation was S&S, I also find that the
danger was not as great as perceived by Jardina.  The ignition of
methane in an underground mine would obviously be an extremely serious
event.  However, it appears that Summit's primary use of Prima Cord
was in longhole blasting, i.e., when the coal between breasts or
chutes was being "slabbed" or "pillared."  In order to mine the coal
between breasts, holes are drilled from the monkey heading alongside
the breast, approximately 50-60 feet in length.  The holes are loaded
with explosives and the entire side of the breast is blasted into the
open breast.  It is difficult to ventilate the breasts, especially
since methane is lighter than air and tends to get trapped in the top
of the breast.  However, it is unclear exactly how miners would have
been further imperiled by an ignition of methane in a breast,
considering the large amounts of explosives used in the pillaring
operation.

Unwarrantable Failure

     In Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999), the
Commission reiterated the law applicable to determining whether a
violation was the result of an unwarrantable failure:

          The unwarrantable failure terminology is taken from section
          104(d) of the Act, 30 U.S.C.  814(d), and refers to more
          serious conduct by an operator in connection with a
          violation.  In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
          1987), the Commission determined that unwarrantable failure
          is aggravated conduct constituting more than ordinary
          negligence.  Id. at 2001.  Unwarrantable failure is
          characterized by such conduct as "reckless disregard,"
          "intentional misconduct," "indifference," or a "serious lack
          of reasonable care."  Id. at 2003-04; Rochester & Pittsburgh
          Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
          Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
          (approving Commission's unwarrantable failure test).  The
          Commission has recognized that a number of factors are
          relevant in determining whether a violation is the result of
          an operator's unwarrantable failure, such as the
          extensiveness of the violative condition, the length of time
          that the violative condition has existed, the operator's
          efforts to eliminate the violative condition, and whether an
          operator has been placed on notice that greater efforts are
          necessary for compliance.  Mullins & Sons Coal Co., 16
          FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
          1258, 1261 (Aug. 1992).  The Commission also considers
          whether the violative condition is obvious, or poses a high
          degree of danger.  BethEnergy Mines, Inc., 14 FMSHRC 1232,
          1243-44 (Aug. 1992) (finding unwarrantable failure where
          unsaddled beams "presented a danger" to miners entering
          area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129
          (July 1992) (finding violation aggravated and unwarrantable
          based on "common knowledge that power lines are hazardous,
          and . . . that precautions are required when working near
          power lines with heavy equipment"); Quinland Coals, Inc., 10
          FMSHRC 705, 709 (June 1988) (finding unwarrantable failure
          where roof conditions were "highly dangerous"); Kitt Energy
          Corp., 6 FMSHRC 1596, 1603 (July 1984) (conspicuous nature
          of the violative condition supports unwarrantable failure
          finding).

     While Rothermel disputes whether the use of Prima Cord increased
the danger to miners, there is no question that he deliberately chose
to use it, knowing that it was not a permissible explosive.
Consequently, I find that the violation was the result of an
unwarrantable failure by Respondent.

Citation No. 7001587

     Citation No. 7001587 was issued by Jardina on January 28, 1999,
and alleged a violation of 30 C.F.R.  75.370(a)(1), which requires
that operators "develop and follow a ventilation plan approved by the
district manager."  The conditions noted on the citation were:

     The mine ventilation plan approved on March 26, 1997 and revised
     on January 27, 1998, was not being followed at the 2nd Level East
     001-0 active working section.  An accident investigation
     conducted on July 17, 1998, indicates that approved face
     ventilation controls were not being used at the advancing No. 50
     chute face developed off the gangway, the monkey (return) heading
     face area, the No. 46 breast area and the No. 44 breast area.
     There was no evidence of face ventilation controls at these areas
     by use of line brattice, ventilation tubing, or compressed air
     movers. Pages C(3), G(7), H(8) and I(9) of the Approved
     Ventilation Plan specif[y] these requirements. Statements,
     interviews and evidence in the mine indicated that compressed air
     lines were being used to ventilate the working faces.

     He concluded that it was reasonably likely that the violation
would result in a permanently disabling injury, that the violation was
significant and substantial, that seven persons were affected and that
the violation was due to the operator's high negligence.  The citation
was issued under section 104(a) of the Act.  A civil penalty of
$2,000.00 is proposed.

The Violation

     Summit's approved mine ventilation control plan required that
ventilation devices, fans/air movers and 12-inch ventilation tubing or
line brattice, be used to provide ventilation within 20 feet of
working faces.  Jardina based his conclusion that Respondent did not
comply with that requirement on his observations, statements made to
him by Rothermel and statements made by other miners to other members
of the investigative team.  In his survey of the mine following the
accident, Jardina did not see evidence of any ventilation tubing or
line brattice at the monkey heading, the #50 chute, the #46 breast or
the #44 breast.  He went into the #44 breast for a short distance and
looked around.  There was some air flow up the #44 breast.  He could
not enter the #46 breast.  He briefly looked up the #51 chute, but he
could not look up the #50 chute because it was blocked by coal.  Tr.
1444.  It is clear, and Respondent does not contend otherwise, that
neither ventilation tubing nor line brattice were used in the chutes
or breasts.

     However, the absence of ventilation controls in a chute or a
breast does not, standing alone, establish a violation of the
ventilation control plan, which requires that ventilation tubing or
line brattice be within 20 feet of a working face.  If there is no
working face more than 20 feet beyond the heading, ventilation
controls are not required by the plan.  Tr. 153, 161.  Kevin Wolfgang
was a miner working on the gangway level on July 16, 1998.  He had
been employed only for about two months and had initially assisted in
driving the gangway face.  He began to drive chutes when another miner
was moved up to the monkey heading.  He was working in the #51 chute
on the day of the accident, and stated that he frequently used a
methane detector to check for methane and used a compressed air hose
to keep methane levels within acceptable limits.  The #51 chute had
been advanced only about 15 feet, and no ventilation controls were
required under the plan.  There is a conflict in the evidence as to
how far the #50 chute had been driven.  Jardina did not measure or
observe it because it was blocked with coal.  He thought that
Rothermel had told him that it was advanced about 45 feet.  Rothermel
asserts that the #50 chute was advanced only 15 feet beyond a corner
where ventilation tubing was installed.  Ex. G-43.

     There were no ventilation devices at the monkey face when Jardina
inspected it, save for a compressed air hose that Rothermel had
dragged there following the accident.  However, an air mover/fan and a
piece of ventilation tubing were found in coal that was later loaded
out of the #49 chute.  Rothermel testified that there was proper
ventilation at the monkey face prior to the accident, i.e., the air
mover and tubing were in use at the monkey face and had been thrown
down the #49 chute by the force of the blast.  Tr. 1648-49; ex. G-43.
Mott surmised that the air mover and tubing had been used at the
monkey face.  Tr. 1447-48.  Jardina offered no explanation as to what
the air mover and tubing had been used for and apparently made no
assumption about their use.  He based his conclusion that no
ventilation controls were being used at the monkey heading on the
absence of such controls at that location after the blast, and a
report by another inspector that Pete Klinger, the miner injured in
the blast, had said that he only used an air hose at the monkey face.
Tr. 120-21.  This, at least second-hand hearsay statement, related
entirely out of context, is deserving of virtually no weight.  I find
that when actively being worked, prior to the accident, the monkey
face was ventilated by an air mover and ventilation tubing, in
compliance with the plan.

     According to Rothermel, ventilation tubing and line brattice were
not used in the chutes or breasts because they would be destroyed each
time coal was blasted from the advancing face. Consequently, miners
were not assigned to work at the face of any chute that had been
developed beyond 20 feet.  To drive the chute the rest of the way up
to the monkey heading, boreholes were drilled down from the monkey
heading to the partially developed chute.  Methane, which is lighter
than air, was vented up through the holes to the monkey (return)
heading.  Explosives were pushed down to the last, or bottom, 4-6 feet
of the holes and the coal was blasted in successive steps until the
chute connected with the monkey heading.  Tr. 1648-50, 1733-35. Under
this approach, there never was a miner working at the face of any
chute advanced beyond 20 feet.

     Breast ventilation had to be handled differently because there
was no heading immediately above the monkey heading.  Instead, holes
were drilled and/or headings were driven from the developing breast to
the adjoining outby breast and air would then flow up through the
developing breast over into the existing breast.  In the area of the
#44, #43 and #42 breasts, pillaring was being performed, i.e., the
coal between breasts was being mined.  The pillaring had proceeded
slightly inby the #43 breast.  The #44 breast had been connected to
the #43 breast by a heading or holes, which provided air flow part way
up the #44 breast.  Tr. 1482.  As explained by Mark Mott, MSHA's
Assistant District Manager, ventilating the #44 breast by connecting
it to the #43 breast was acceptable and in conformance with the plan.
Only by driving the face of the #44 breast more than 20 feet above the
connecting passage would ventilation tubing or line brattice be
required to ventilate the working face.  Tr. 1482-85.  Neither
Jardina, nor any other MSHA investigator, inspected or measured the
#44 breast to determine whether there was a working face more than 20
feet beyond the connection.  Jardina went only a few feet into the
breast and checked the air flow.  He did not further examine the
breast and did not know if there were holes or a heading connecting it
to the #43 breast.  Tr. 216-17, 224.  His determination that the
ventilation plan was not being complied with at the #44 breast was
based, in essence, solely on the fact that he did not observe
ventilation tubing or line brattice in that area.  Tr. 216-17.

     Gary Laudenslager, the miner who was killed, had been working in
the #46 breast two days prior to the accident.  However, his last
blast at the face had dislodged support timbers and rock that had
blocked the breast opening.  Because the breast had "crashed," noone
was scheduled to work there, i.e., there was no working face in the
#46 breast on July 16, 1998.  Tr. 1658-59, 1664.  No ventilation
controls were required in the #46 breast.

     In an enforcement proceeding under the Act, the Secretary has the
burden of proving an alleged violation by a preponderance of the
evidence.  In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd., Secretary of
Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998);
ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989); Jim Walter Resources
Inc., 9 FMSHRC 903, 907 (May 1987).

     It is clear that there was no violation of the ventilation
control plan at the monkey face or the #46 breast.  Whether the #50
chute had been developed to 45-50 feet above the gangway heading, or
less than 20 feet as Rothermel believed, there was no miner working at
the face of that chute once it was advanced beyond 20 feet.  The holes
drilled through from the monkey heading to the chute face ventilated
methane in the chute, and it does not appear that the chute
development process followed by Summit violated the ventilation
control plan, despite Rothermel's understanding that it wasn't
consistent with it.  There may have been a violation of the plan in
the #44 breast.  However, the absence of ventilation controls,
Jardina's sole focus, does not establish a violation of the plan.  The
Secretary introduced no proof, and there is no other convincing
evidence, that there was a working face in the #44 breast more than 20
feet beyond the heading or the connection with the #43 breast.  The
Secretary has failed to carry her burden of proof with respect to this
alleged violation.

Order No. 7001591

     Order No. 7001591 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.1322(d), which requires that:
"Each borehole 4 or more feet deep shall be stemmed for at least 24
inches."  The conditions noted on the order were:

     During a fatal accident investigation conducted between July 16,
     1998 and August 3, 1988, it was determined that stemming was not
     being used during the process of loading bore holes which were 4
     feet or more in depth at the gangway face, No. 50 chute face and
     the monkey (return) face of the 2nd Level East 001-0 active
     working section on July 16, 1998 and prior dates.  Also, stemming
     materials were not found in the 001-0 section during this
     investigation.

     He concluded that it was highly likely that the violation would
result in a permanently disabling  injury, that the violation was
significant and substantial, that four persons were affected and that
the violation was due to the operator's reckless disregard of the
standard and the consequences of violating it.  The order was issued
pursuant to section 104(d)(1) of the Act, based upon the determination
that the violation was the result of the operator's unwarrantable
failure to comply with the standard.  A civil penalty of $2,800.00 is
proposed.

The Violation

     Stemming is in inert substance, e.g., clay, that is tamped into a
borehole after the explosives have been inserted.  It serves to
confine the blast, reducing the possibility of fly rock being "rifled"
out of the borehole.  It also displaces any methane that might have
been in the borehole and confines the explosion flame, reducing the
possibility that methane outside the borehole will be ignited.
Stemming materials can be purchased, e.g., tubing that can be filled
with clay, sand, water or some other inert substance, or inert
materials can simply be tamped into the borehole.  Neither Jardina,
nor Thomas Lobb, an MSHA blasting expert, observed any evidence of
stemming materials being used in the mine.  Jason Dodson, a miner who
performed blasting, testified that he did not use stemming for
boreholes that were typically drilled six feet deep.  While there was
some question about the number of boreholes that exceeded four feet in
depth, it should be noted that 30 CFR  75.1322(d) requires that
boreholes less than four feet deep be stemmed for at least half of
their depth.

     Respondent offered little defense to the violation.  It stated,
in response to discovery requests, that explosive and detonator
containers were formed into tubing, filled with drillings and used as
stemming.  Ex. G-43.  However, there is no other evidence that the
containers were used in this fashion, or that any other method was
used to stem boreholes.  I find that Respondent violated the subject
regulation.

Significant and Substantial

     MSHA's blasting expert, Lobb, testified that the potential for
injury as a result of failure to properly stem boreholes is primarily
that miners may be struck by fly rock that is "rifled" out of the open
end of the borehole or that small amounts of methane in the borehole
may be ignited. Tr. 968-69.  Jardina, however, based his assessment of
the likelihood and severity of injury on the possibility that large
accumulations of methane, outside of the borehole, would be ignited.
Tr 281-82.

     I find that the violation was not significant and substantial.
Miners would normally position themselves out of the direct line of
sight from any blast.  The possibility of increased fly rock would not
appear to pose any significant risk of injury.  Jardina apparently did
not perceive an increased risk of injury from fly rock because he did
not base his assessment of the probability of injury on that
mechanism.  Nor did he base it on the possibility that a small amount
of methane might reach explosive concentrations in the borehole
itself, which might have marginally increased the force of the
explosion.  While there was a large amount of methane liberated in the
mine, there is no evidence that a methane explosion would be likely to
occur as a result of blasting.  It is undisputed that Respondent could
detonate unconfined explosives for certain purposes, e.g., starting a
battery for a chute or creating a pocket for installation of a timber.
Tr. 289, 970.  Jardina could not explain his determination that the
failure to use stemming created such a high potential for serious
injury when unconfined blasting, which would arguably pose a greater
risk, is permissible under the regulations.  Tr. 295.  Moreover, the
regulations require testing for methane concentrations in a blast area
immediately before shots are fired and that no shot be fired when
concentrations are 1% or higher.  30 CFR  75.1324. While, as noted
infra, some of the miners performing blasting did not possess the
proper certification to test for methane, they were competent to
perform the relatively simple methane concentration test and were
performing such tests.  The Secretary argues that Jardina's conclusion
that Respondent was not complying with its ventilation plan provides
further justification of his assessment of the possibility of a
methane explosion.  However, as noted above, the Secretary failed to
prove that Respondent violated its ventilation plan.

     Considering the evidence as a whole, and the fact that the firing
of unconfined shots was permissible, for certain purposes, in
Respondent's mine, I find that the Secretary has failed to carry her
burden of proving that the violation was significant and substantial.
I find that the violation was unlikely to result in an injury, but
that any injury could be permanently disabling.

Unwarrantable Failure

     Based upon the considerations discussed above, I find that the
violation was not the result of the operator's unwarrantable failure.
While Rothermel likely knew that stemming was not being used in the
mine, his actions do not rise to the level of a reckless disregard of
a serious safety risk or a serious lack of reasonable care.  In light
of the permissibility of firing unconfined shots, Rothermel did not
perceive any significant threat posed by the non-use of stemming, a
practice that had likely been followed, as the Secretary argues, for
some time prior to July 16, 1998.  Respondent had not previously been
cited for such a violation in prior MSHA inspections. Under the
circumstances, I find that the operator's negligence was no more than
moderate.

Order No. 7001592

     Order No. 7001592 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.360(b)(3), which requires that a
qualified person conduct a preshift examination of working areas and
sections where miners are scheduled to work, to assure, inter alia,
the presence of required ventilation controls and proper air movement.
The conditions noted on the order were:

                    The preshift examination conducted
                    by Michael Rothermel, President, on
                    July 16, 1998 of the 2nd Level East
                    001-0 active working section was not
                    adequate.  The No. 44 and No. 46
                    breast work areas were not examined
                    and approved ventilation controls
                    were not being used in the No. 44
                    breast, No. 46 breast, No. 50 chute
                    face and monkey face.

     He concluded that it was reasonably likely that the violation
would result in a permanently disabling  injury, that the violation
was significant and substantial, that seven persons were affected and
that the violation was due to the operator's reckless disregard of the
standard and the consequences of violating it.  The citation was
issued under section 104(d)(1) of the Act, based upon Jardina's
conclusion that the violation was a result of the operator's
unwarrantable failure to comply with the standard.  A civil penalty of
$2,500.00 is proposed.

The Violation

     Preshift examinations were conducted by Rothermel every morning
before the shift began.  The order was issued because it was
determined that the examination on July 16, 1998, was inadequate for
several reasons: neither the #44 breast nor the #46 breast was
examined and the examination in the #50 chute and the monkey face
failed to note the hazardous condition of the absence of required
ventilation controls at those locations.

     As noted above, the Secretary failed to prove that required
ventilation controls were not being used at the #50 chute and the
monkey face.  The failure to note hazardous conditions at those
locations does not evidence a violation of the regulation, because no
such hazardous conditions existed.  Rothermel readily admitted that he
did not conduct a preshift examination of the #46 breast or the #44
breast.  Tr. 310-11, 1733-35.  The # 46 breast had "crashed."  The
last blasting done at the face had dislodged support timbers in the
breast, likely those near the blast at the top of the breast, and the
breast opening was clogged with coal, rock and timbers.  Because of
the hazardous condition in the #46 breast, Rothermel had not scheduled
anyone to work there on July 16, 1998.  Tr. 1658-59, 1664.  Jardina
appears to have expanded Rothermel's admission that there was a
hazardous condition in the #46 breast, to include part of the monkey
heading in the "area" or "vicinity" of the #46 breast, and concluded
that when Rothermel assigned a man to work near the #46 breast
drilling test holes, he failed to assure that the miner was not
exposed to a known hazardous condition.  Tr. 319, 332-34.  However,
there is no evidence that the hazardous condition that Rothermel knew
of in the #46 breast posed any danger to miners either working or
traveling on the monkey level.  Rothermel had inspected the monkey, or
return, heading and noted no hazardous conditions.  I find that there
was no hazardous condition on the monkey heading where Laudenslager
had been assigned to work and that the failure to note such a
condition on the preshift report does not evidence a violation of the
regulation.

     Rothermel admitted that he had not conducted a preshift
examination of the #44 breast, either on July 16, 1998, or for several
days prior thereto.  Tr. 1735.  A miner, Randy Maurer, was assigned to
work in the #44 breast.  This, ostensibly, would be a violation of the
regulation. However, Maurer was a certified mine foreman, who was,
himself, qualified to conduct a preshift examination of working
places.  Rothermel had been told by an MSHA official, whom he
described as "Bob Elam, MSHA official in charge of policy in
Arlington," that allowing a certified person to conduct the
examination prior to commencing work in the area was permissible as a
supplemental or auxiliary examination under 30 C.F.R.  75.361.  Tr.
1733-37. Rothermel disclosed this information in discovery and in his
prehearing report.  The Secretary made no effort to rebut Rothermel's
claim of what he had been told.  Rather, Jardina testified that that
interpretation of the regulations was erroneous, and that such
supplemental examinations were permissible only where an operator had
no intention of working in a particular area when the preshift
examination was conducted, and it was later determined that work
needed to be performed there.  Tr. 313.

     I credit Rothermel's testimony regarding what he was told by an
MSHA official and find that in reliance upon that information, he
believed that allowing Maurer to inspect his work area before
commencing work was in compliance with the regulation.  Although
Respondent, represented by Rothermel, a lay person, has not asserted a
formal due process defense, I hold that the Secretary cannot enforce
the regulation under the circumstances presented here.

     In Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan 1998), the
Commission explained that due process may prevent enforcement of an
agency's interpretation of a regulation, stating:

          Where an agency imposes a fine based on its interpretation,
          a separate inquiry may arise concerning whether the
          respondent has received "fair notice" of the interpretation
          it was fined for violating.  Energy West Mining Co., 17
          FMSHRC 1313, 1317-18 (August 1995).  "[D]ue process . . .
          prevents . . . deference from validating the application of
          a regulation that fails to give fair warning of the conduct
          it prohibits or requires."  Gates & Fox Co. v. OSHRC, 790
          F.2d 154, 156 (D.C.Cir. 1986).

     Assuming, arguendo, that the interpretation offered through
Jardina represents the Secretary's authoritative position on the
meaning of the regulation and that it is entitled to deference, it
represents a significant change to the interpretation previously given
to Respondent, invalidating the practice that had been established in
reliance on MSHA's advice.  I find that Respondent cannot be held
liable for violating the regulation as alleged in the subject order.

Docket No. PENN 2000-9

Citation No. 7001401

     Citation No. 7001401 was issued by Jardina on August 14, 1998,
and alleged a violation of 30 C.F.R.  50.10 which requires that: "If
an accident occurs, an operator shall immediately contact the MSHA
District or Subdistrict Office having jurisdiction over its mine."
The conditions noted on the citation were:

     The mine operator failed to immediately contact the Mine Safety
     and Health Administration, District or Headquarters Office, of a
     reportable fatal accident which occurred on July 16, 1998 at
     approximately 10:30 hours.  However, the Mine Safety and Health
     Administration was alerted about the accident from an outside
     source at 11:00 hours and was never contacted by the operator.

     He concluded that there was no likelihood that the violation
would result in an injury, that the violation was not significant and
substantial, that two persons were affected and that the violation was
due to the operator's high negligence.  The citation was subsequently
modified to reflect that the operator's negligence was moderate,
because the "mine operator assumed that when his wife called 911 all
appropriate parties were contacted."  The citation was also modified
to specify that the time of the accident was 9:15 rather than 10:30.
No reason was given for that modification.  A civil penalty of $55.00
is proposed.

     Jardina originally concluded, as stated on the citation, that the
accident occurred "at approximately 10:30 hours."  He did not know why
the citation was subsequently amended to reflect a time of 9:15.  Tr.
394.  The earlier time is also reflected in the accident investigation
report, Government exhibit 6, though the source of the information is
not specified.  Presumably, it was a statement by one of the miners.
Rothermel testified that the accident occurred sometime after 10:20
a.m., based upon records of calls made from the office phone.  Tr.
1643; ex. R-9. When he finished the 10:20 a.m. call, he had a
discussion with a state mine inspector.  Id.  After the mine inspector
had left, he got a "panic call" from the mine indicating that help was
needed. He did not know what had happened, or how bad things were.
Tr. 1644.  He immediately went underground to investigate.  He
assisted in attending to the injured miners and their removal from the
scene, picked up some explosives in the immediate vicinity of the
victims that had been scattered during the incident and dragged an air
hose to the monkey face to provide some ventilation because the air
mover and tubing were no longer present and there was an excessive
amount of methane.  He returned to the surface shortly after 11:00
a.m., and encountered MSHA inspector Jack McGann, who was already on
the scene.  Tr. 1703-04.  At no time did Respondent telephone the MSHA
office to report the accident.  Tr. 389, 1644.  Jardina concurred that
MSHA personnel arrived shortly after 11:00 a.m. and that, thereafter,
no call to MSHA was required. Tr. 390.

     30 C.F.R.  50.10 requires that MSHA be notified "immediately"
when a reportable accident occurs.  Jardina interpreted "immediately"
to mean within 20 minutes, depending upon the circumstances.  Tr. 390.
He felt that, while Rothermel was properly engaged in assisting at the
accident scene, there were other Summit personnel, including
Rothermel's wife, who were present in the office and should have
notified MSHA.  Tr. 396-98.

     The Commission interpreted the regulatory accident reporting
obligation in Consolidation Coal Co., 11 FMSHRC 1935, 1938 (Oct.
1989), where it stated:

          Although the regulation requires operators to report
          immediately certain "accidents" as defined in section
          50.2(h), it must contemplate that operators first determine
          whether particular events constitute reportable "accidents"
          within that definition.  Section 50.10 therefore necessarily
          accords operators a reasonable opportunity for investigation
          into an event prior to reporting to MSHA.  Such internal
          investigation, however, must be carried out by operators in
          good faith without delay, and in light of the regulation's
          command of prompt, vigorous action.  The immediateness of an
          operator's notification under section 50.10 must be
          evaluated on a case-by-case basis, taking into account the
          nature of the accident and all relevant variables affecting
          reaction and reporting.

     It could hardly be disputed that Rothermel took prompt, vigorous
action to find out what had happened in the mine and render assistance
as needed.  He did not know what had happened when the "panic" call
came in.  Although he might have assumed that a reportable accident
had occurred, he was entitled to investigate.  I credit his testimony
and find that the accident occurred at approximately 10:30 a.m.  After
proceeding underground and arriving at the location of the victims on
the monkey heading, he knew that a reportable accident had occurred.
However, there was no mine phone in that area.  He soon proceeded out
of the mine and encountered an MSHA inspector, shortly after 11:00
a.m.

     The Secretary has failed to carry her burden with respect to the
alleged violation.  It is unclear exactly when Rothermel arrived at
the scene of the accident and knew that it was reportable.  While
there may have been agents of Respondent on the surface, it is unknown
when they became aware that a reportable accident had occurred.
Apparently, a call was placed for emergency assistance, but there is
no evidence as to when that call was made. Nor is there evidence of
when, within this relatively short time frame, MSHA became aware of
the accident or the length of time it took its inspector to travel to
the scene.  It is likely that Rothermel encountered the MSHA inspector
within approximately 20 minutes of his arrival at the scene of the
accident.  I find that the regulation was not violated.

The "Contributing Factor" Violations

     The remaining four violations in this docket were determined to
be contributing factors to the fatal accident and, with one exception,
the alleged gravity of the violations was premised, in part, on the
fact that a fatality had occurred as a result of the violation.  They
were specially assessed on that basis and substantial civil penalties,
ranging from $5,000 to $20,000 were proposed.  In light of those
allegations, Respondent took the position that one of the major issues
in the case would be to determine the actual cause of the accident.
The Secretary, knowing that MSHA had been unable to determine the
actual cause, or causes, of the accident, took the position that it
was not necessary to litigate that issue.  Tr. 23-24, 27.

     When questioned as to how the Secretary could sustain the gravity
allegations without establishing the cause, or causes, of the
accident, the Secretary announced that the only violation alleged to
have been an actual contributing factor to the fatality was Order No.
7001594, alleging that miners doing blasting did not possess the
required qualifications.  Id.; tr. 516-17.  The Secretary also amended
Order No. 7001595, alleging that boreholes were drilled less than 24
inches apart, to reduce the operator's negligence from "high" to
"moderate," and to make it a citation issued pursuant to section
104(a) of the Act.  Tr. 12.  Despite these changes, the proposed civil
penalties were not altered and, with one exception, the Secretary
continues to urge that they be imposed.

     As noted, supra, despite MSHA's very thorough investigation, the
actual cause of the accident was not identified, and there are
significant disputes between the parties regarding the conduct of the
investigation and many of the conclusions reached.  Under MSHA's
preferred theory, as described by Lobb, the victim, Gary Laudenslager,
was drilling the south borehole just inby the #46 breast.  The drill
encountered undetonated explosives that had been loaded into the north
borehole, or existed from a previous misfire in the #46 breast, and a
low-order explosion resulted, rifling fly rock down the open north
borehole, striking the victim and generating a secondary explosion of
one or more sticks of explosive that were located in that vicinity.
Tr. 1007-18.  According to Lobb, an explosion appeared to have
occurred just inby the #46 breast, because that is where the most
significant damage was and the forces appeared to go outward from that
point.

     Rothermel took issue with MSHA's theories, arguing that they are
not consistent with the physical evidence, including the location of
the victim, the absence of any "blast effect" on the victim, the
presence of the drag bucket, fan and vent tubing in the #49 chute, and
the location of the drill.  MSHA's responses to Rothermel's objections
fall considerably short of conclusive rebuttals.

     The location of the victims following the accident was openly
disputed.  MSHA investigators could not explain how the victim could
have been recovered near the #45 chute, a considerable distance outby
where the explosion was thought to have occurred, if it occurred as he
was drilling the south borehole.  Tr. 629-30, 642, 1532.  Rothermel
was certain that Laudenslager was lying on the monkey heading floor,
partially down the #45 chute, as indicated in Government exhibit 7.
Tr. 1700.  Jardina did not believe that Laudenslager was at that
location immediately following the accident, and maintained that
position as of the hearing.  Tr. 174-75, 625.  Mott also did not think
that the victims' locations, as reflected on exhibit G-7, were the
result of the explosion.  Tr.  1531.  Jardina obtained some luminol, a
chemical substance that can indicate the presence of blood, and tested
in the vicinity of #46 breast, where the injury was thought to have
occurred.  However, the results were inconclusive in that environment.
Tr.  171- 73.  It was obviously with great reluctance that he
indicated the position of the victim as he did on the diagram of the
accident scene, a location admittedly inconsistent with the accident
theory that MSHA considered most likely.  The autopsy report, exhibit
G-44, noted that there was "no evidence of severe disruptive injury,
severe thermal trauma, or blast effect" on the victim's body, which
would also appear inconsistent with his having been in close proximity
to an explosion in the relatively confined space of the monkey
heading.

     The drag bucket on the monkey heading was a heavy wooden sled-
like device that was used to drag coal from the monkey face to the #49
chute.  Following the accident, it was found about 30 feet down the
#49 chute, along with a fan and ventilation tubing that had been
supplying air to the monkey face.  Rothermel felt that the location of
these objects indicated that a powerful force must have originated
near the monkey face, pushing the drag bucket outby and into the #49
chute, obviously negating the theory that the main force of the
explosion occurred near the #46 breast, which would have pushed the
drag bucket toward the face.  MSHA's investigators had no credible
explanation for the location of the drag bucket.  Jardina formed no
conclusion as to how the drag bucket got into the chute.  He did not
consider it significant and stated that it was of no concern to him.
Tr. 181-82, 187.  Lobb did not consider the drag bucket part of the
physical evidence.  Tr. 1083.  Mott did not know how the drag bucket
got into the chute, did not believe that it was by the force of the
explosion and didn't factor it into the theories "one way or the
other."  Tr. 1534-35, 1575.  In addition, Jardina never did identify a
cause of the damage on the gangway level at the #48 chute, and did not
consider it to have resulted from the accident.  Tr. 89, 836.

     Rothermel also noted that the drill supposedly being used by
Laudenslager was found under some coal near the boreholes lying on top
of neatly coiled air hose, indicating that it was not being used at
the time of the accident.  He pointed out similar inconsistencies with
respect to the second theory, including that the #46 breast was
blocked and nothing could have fallen out of it or from the lagging in
that area.  He also questioned the third possible cause, an
unintentional detonation of the wrong firing line, because there was
no tamped and wired unfired shot found after the accident.  Tr.
1565-67.

     MSHA's theories were certainly consistent with much of the
physical evidence. However, there were also significant facts that
tended to negate those theories.  While there is general agreement
that there was no methane explosion, MSHA candidly acknowledges that,
despite the thorough investigation, it never came to a definitive
conclusion as to what caused the accident.  Tr. 1119-20.  Rothermel
recently postulated a theory that there may have been an "outburst,"
an explosive release of highly pressurized methane, at the monkey
face.  Tr. 1677-97, 1719-20, ex. R-8.  Lobb considered that unlikely.
However, it would explain a number of the facts that appear
inconsistent with MSHA's theories.  Ultimately, no cause for the
accident has been identified, and, as noted, infra, none of the
alleged violations can be said to have caused, or to have been a
contributing factor to, the fatal accident.  Rothermel's outburst
theory is intriguing, but it remains only a possible theory.

     The "contributing factor" violations are addressed individually
below.

Order No. 7001588

     Order No. 7001588 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.1313(a), which requires that:
"The quantity of explosives outside a magazine for use in a working
section . . . shall . . . [n]ot exceed 100 pounds; or . . . the amount
necessary to blast one round when more than 100 pounds of explosives
is required."  The conditions noted on the order were:

     The quantity of explosives outside a magazine for use in the 2nd
     Level East 001-0 working section or other area where blasting was
     to be performed on July 16, 1998, exceeded 100 pounds and
     exceeded the amount necessary to blast one round.  This violation
     was determined to be a contributing factor to a fatal accident."

     He concluded that a fatal accident occurred as a result of the
violation, that the violation was significant and substantial, that
one person was affected and that the violation was due to the
operator's high negligence.  The order was issued pursuant to section
104(d)(1) of the Act as being attributable to the operator's
unwarrantable failure.  While Jardina believed that this violation was
a contributing factor to the fatal accident, he was unable to
articulate a causal relationship.  Tr. 416.  As noted above, the
Secretary announced during the hearing that she no longer took the
position that this violation was a contributing factor.  The position
taken in the Secretary's post-hearing brief is that this violation
should be found to have been highly likely to contribute to a fatal
accident.  A civil penalty of $5,000.00 was proposed by special
assessment, prior to the Secretary's change of position.

The Violation

     MSHA personnel recovered 357 sticks of explosives, weighing 385
pounds, from that working section of the mine following the accident.
They also determined that no more than 57 sticks, or approximately 60
pounds, of explosives would be required to blast one round, if each of
the working faces was blasted at the same time.  Tr. 411-16.  Under
the regulatory scheme, explosives at mines are to be stored in wooden
magazines and only limited amounts, essentially the amount expected to
be used during a shift, are to be taken into the working section.
Explosives that are not used during the shift are to be returned to
the magazine.  30 C.F.R.  75.1313(c); tr. 408-09, 417.  Respondent's
only magazine was on the surface.  It is apparent that the prevailing
practice at Summit was that boxes of explosives would periodically be
taken into the mine, and that considerably more than 100 pounds of
explosives, generally more than would be needed for blasting during
one shift, would be stored on shelves in the gangway and monkey
headings.  Unused explosives were not taken back to the surface and
returned to the magazine at the end of the shift.  Tr. 448-49, 775.

     Respondent does not dispute these essential facts.  In defense,
it contends that 1,400- 1,500 pounds of explosives had been used in
one round when pillaring was being done, and that under the regulation
it could have had up to that amount outside a magazine in a working
section without violating the regulation.  Ex. R-6; tr. 1730.  The
regulation does not specify which "one round" is to be used to measure
the maximum amount of explosives permitted in a working section, i.e.,
whether it is a round projected to be fired during the shift, or
whether it could be any round ever fired in the mine.  Jardina
exhibited some uncertainty on this issue.  Tr. 439-40, 448, 452-57.
However, the "one round" referred to in subpart (a) must be a round
that is expected to be fired on the current shift, because subpart (c)
of the regulation requires that explosives not used during the shift
must be returned to a magazine by the end of the shift.  Any other
reading of the regulation would be nonsensical.

     It is undisputed that no pillaring was being done on July 16,
1998.  Tr. 476, 1730. Consequently, less than 100 pounds of explosives
would have been required to fire one round on that shift.  Respondent
had 385 pounds of explosives in the working section and violated the
regulation.

Significant and Substantial

     Jardina's primary reason for determining that the violation was
significant and substantial was that it was deemed to have been a
contributing factor to the fatal accident.  Tr. 416.  As noted above,
however, the Secretary has abandoned that position.  There is also
little evidence to support such a contention and Jardina's own
testimony contradicts his assertion.  He testified that his
determination that the handling and storage of explosives was a
contributing factor to the fatality was based upon the explosives that
were found near the #46 breast, and the possibility that there were
other explosives "up in number 46 that weren't properly being stored."
It had nothing to do with the explosives found in boxes on the gangway
level.  Tr. 528-30.  The same would appear to be true for the
explosives found stored in boxes on shelves in the monkey heading.

     Under the regulation, Respondent was allowed to have up to 100
pounds of explosives in the working section.  Of the 385 pounds of
explosives recovered, the vast majority of it was found in boxes on
shelves in the gangway and monkey headings.  The remainder of the
explosives does not appear to have exceeded 100 pounds.  The violation
was based upon the large quantity of explosives in boxes on shelves.
Those explosives played no role in the accident, and this violation
was not a contributing factor to the fatal accident.

     The mere presence of these explosives does not establish that the
violation was significant and substantial.  The detonation of even one
stick of explosive could easily cause substantial injury or death.
However, the explosives themselves are not highly sensitive.  They
must be detonated with a blasting cap or detonator which must be fired
in very close proximity to, virtually touching, the explosive.  During
the investigation, both explosives and detonators were found at
several places in the mine, sometimes in close proximity.  This
clearly was a concern of Jardina's, because the closer the proximity
of detonators to explosives, the greater the risk of an unplanned
detonation.  However, detonators and explosives were not kept in close
proximity in the mine under normal conditions.  With the exception of
the debris around the #48 chute, there were no explosives within five
feet of detonators on the gangway heading and Jardina agreed that the
same situation likely existed on the monkey heading prior to the
accident. Tr. 428-29.  The relatively orderly location of explosives
and detonators on the gangway level contrasted sharply with that on
the monkey level, but it is clear that those explosives and detonators
had been scattered by the accident.  Kenneth Chamberlain, an MSHA
inspector, had inspected the mine prior to the accident and found no
explosives "lying around" and everything in "very good shape."  Tr.
1410-11.  Detonators and explosives were placed in close proximity as
a result of the emergency situation presented by the accident.
Rothermel picked up sticks of explosives and detonators that were
lying in the vicinity of the victims and placed them into the nearest
available container.  Tr. 1701-02.  Jardina found that action
reasonable.  Tr. 509-10.

     Respondent has also asserted a more general due process defense.
It contends that it had been conducting its mining operations in the
same manner for many years prior to July 16, 1998, that MSHA
inspectors had been through the mine numerous times and observed those
conditions and that no citations had been issued.  Ex. G-43, R-6.
Even Lobb conceded that he would not be surprised if Summit had stored
explosives and detonators in the same manner for six years. Tr. 1058.
While these precise conditions probably did not exist during other
inspections, as Respondent claims, it is highly likely that explosives
and detonators were being temporarily stored in the working section in
the approximate same amounts.  Because there is no evidence as to the
exact amount of explosives present during prior inspections, or
whether pillaring was being done, or had been or would be done in
close proximity to any such inspections, Respondent has not
established a due process defense to the violation.  However, the fact
that several inspectors observed and did not issue citations for
similar conditions, does suggest that the presence of explosives in
the mine did not present a reasonable probability of an unplanned
detonation.  Considering all of the factors discussed above, I find
that the violation was not significant and substantial.  I find that a
fatal injury was unlikely to occur as a result of the violation.

Unwarrantable Failure

     Rothermel was fully aware of the amount of explosives that were
taken into the working section.  He also knew that the quantity
generally exceeded that needed for blasting on the shift and that
unused explosives were not being transported back to the surface
magazine at the end of the shift.  However, those practices had been
ongoing for many years and numerous MSHA inspectors had not cited
Respondent for violating the subject regulation.  I find that the
operator's negligence was not "high," and that the violation was not
the result of an unwarrantable failure. Respondent's negligence was no
more than moderate.

Order No. 7001589

     Order No. 7001589 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.1313(b), which requires that:

          Explosives and detonators outside a magazine that are not
          being transported or prepared for loading boreholes shall be
          kept in closed separate containers made of nonconductive
          material with no metal or other conductive material exposed
          inside and the containers shall be -- (1) At least 15 feet
          from any source of electric current; (2) Out of the direct
          line of the forces from blasting; (3) In a location to
          prevent damage by mobile equipment; and (4) Kept as dry as
          practicable.

The conditions noted on the order were:

     On July 16, 1998, explosives and detonators, which were not being
     transported or prepared for loading boreholes, were not kept in
     closed separate containers made of nonconductive material.  This
     violation was determined to be a contributing factor to a fatal
     accident.

     He concluded that the fatal accident occurred as a result of the
violation, that the violation was significant and substantial, that
one person was affected and that the violation was due to the
operator's high negligence.  The order was issued pursuant to section
104(d)(1) of the Act as being attributable to the operator's
unwarrantable failure.  As noted above, the Secretary announced during
the hearing that she no longer took the position that this violation
was a contributing factor to the fatal accident.  A civil penalty of
$10,000.00 was proposed by special assessment, prior to the
Secretary's change of position.

The Violation

     This alleged violation is closely related to the preceding one
and many of the same considerations apply.  Again, the focus of this
citation was the explosives and detonators that were in boxes on
shelves.  Tr. 479-90.  As noted above, these explosives played no part
in the fatal accident and this alleged violation was not a
contributing factor to it, nor does the Secretary so claim.  Jardina's
determination that the violation had been a contributing factor to the
fatal accident was based upon conjecture that there may have been
improperly stored explosives near, or up in, the #46 breast.  Tr.
517-18, 528.  It had nothing to do with the explosives found in boxes
on the gangway level.  Tr. 528.  The conditions on the monkey level,
following the accident, were somewhat chaotic.  Explosives had been
scattered over a large portion of the heading and Rothermel had picked
up loose explosives and detonators in the vicinity of the victims and
placed them into the nearest available box.  Tr. 1701-02; ex. R-6.
Jardina agreed that under those emergency conditions, such actions
were reasonable, and that the conditions in at least one area on the
monkey level may have been affected by the accident.  Tr. 488, 509.

     On the basis of the essentially undisputed evidence that
explosives, that were not being transported or prepared for loading
into boreholes, were temporarily stored on the gangway level in
cardboard containers, some of which did not have lids, I find that the
regulation was violated. Respondent's principal defense to this
violation is that this type of temporary storage of explosives in
their original shipping boxes had been observed, and, at least
tacitly, sanctioned by numerous MSHA inspectors over the previous six
years.  Ex. G-43, R-6.  However, there is no evidence that the precise
conditions observed by Jardina, i.e., the missing lids, had been
observed by other inspectors.  Jardina and Lobb also felt that the
cardboard containers were inappropriate, in that they were not
substantial and tended to deteriorate and become conductive with
moisture that was prevalent in the mine.  Tr. 493, 981.  I do not base
my finding of a violation on those considerations.  There is nothing
in the regulation that requires the containers to be "substantial."
Moreover, the original shipping containers were apparently viewed as
suitable by other MSHA inspectors.  They did not contain any
conductive material and apparently had plastic liners. Tr. 1127-28.
While cardboard might become conductive if it becomes saturated with
water, the cardboard pieces depicted in Government exhibit 18 and the
description by Lobb that the cardboard didn't make noise when torn
indicate that the cardboard was not "wet" and there is no evidence
that it was conductive.  Moreover, the regulation is likely directed
at obviously conductive materials, such as metal.  It seems likely
that a box made of wood, the preferred material, might also become
conductive as it absorbs moisture.

Significant and Substantial - Unwarrantable Failure

     For the same reasons discussed with respect to the previous
violation, I do not find this violation to have been significant and
substantial or the result of Respondent's unwarrantable failure.  I
find the operator's negligence to have been low, and that an injury
was unlikely to result from the violation.

Order No. 7001594

     Order No. 7001594 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.1325(a), which requires that:
"Shots shall be fired by a qualified person or a person working in the
presence of and under the direction of a qualified person."  The
conditions noted on the order were:

     Blasting of explosives was being performed by persons who were
     not qualified in accordance with Section 75-1325-(a) and who were
     not working under the direct supervision of a person qualified by
     MSHA.  This violation was determined to be contributing factor to
     a fatal accident.

     He concluded that the fatal accident occurred as a result of the
violation, that the violation was significant and substantial, that
one person was affected and that the violation was due to the
operator's reckless disregard of the standard and consequences of
violating it.  This order was issued pursuant to section 104(d)(1) of
the Act because the violation was determined to be a result of the
Respondent's unwarrantable failure.  This is the sole violation that
the Secretary now alleges was a contributing factor to the fatal
accident.  Tr. 555.  A civil penalty of $20,000.00 is proposed.

The Violation

     As defined in the regulations, a "qualified person," is one who
has been certified to use permissible explosives by the State in which
the mine is located, or who has demonstrated to an authorized
representative of the Secretary the ability to use permissible
explosives safely.  30 C.F.R.  75-1301.  The only miner working
underground on July 16, 1998, who possessed the requisite
qualification was Randy Maurer, who was working alone at the #44
breast.  Tr. 548-53. In general, new miners at Summit began working
with experienced miners and rather quickly progressed to essentially
independent mining activities, including blasting.  With the exception
of Maurer, all of the miners working in that section of the mine were
performing blasting activities without the proper certification.
Maurer was working alone in the #44 breast and was not in the presence
of, or directing the activities of, the other miners.  The regulation
was violated.

Significant and Substantial

     Allowing unqualified persons to independently perform blasting
presents a reasonable possibility of a serious injury occurring.  This
is not a situation like the methane testing qualifications violation,
where the miners were entirely capable of performing, and did perform,
the required testing, but merely lacked a credential.  The unqualified
persons conducting blasting in Respondent's mine lacked training in
the proper blasting methods, failed to use stemming, as required by
the regulations, and failed to test blasting circuits with a
galvanometer, as discussed, infra.  Misuse of explosives in a mine
poses a grave threat to all miners underground and any miners who
would be involved in a rescue in the event of an unplanned explosion.
As Lobb explained, untrained blasters tend to believe that explosives
are considerably safer than they are and may fail to exercise
appropriate care.  Tr. 1004.  He also opined that the various
theoretical causes of the accident could have been avoided if the
miners had been properly trained and qualified.  Tr. 1003-05.  While I
do not fully accept that aspect of his testimony, I find that the
violation was significant and substantial.

Unwarrantable Failure

     Rothermel was fully aware that the miners doing blasting in that
section of the mine, with the exception of Maurer, were not qualified
within the meaning of the regulation.  While there is evidence that he
made efforts to provide training to new miners, it appears that most
of the training on blasting procedures was provided by the more
experienced miners, most of whom were also not properly qualified.  It
is not surprising that deficiencies existed in their blasting
techniques, including failure to test blasting circuits with
galvanometers and failure to use stemming.  Whether Rothermel was
fully aware of these deficiencies or was ignorant of them, it was his
responsibility to assure that the miners performing blasting were
properly trained and qualified, and that proper blasting procedures
were being followed.  His failure to do so amounts to an unwarrantable
failure to comply with the regulation.

     I cannot find, however, that this violation was a contributing
factor, or cause, of the fatal accident.  It is possible that it was.
But, the actual cause of the accident was never determined and, it is
also possible that some unexpected event that had nothing to do with a
deficient or unsafe blasting procedure caused the accident, e.g., a
rock falling on explosives that were being transported or prepared for
loading into boreholes.  Consequently, while I find that the violation
was significant and substantial, I do not accept the gravity assigned
by the Secretary.  I find that the violation was highly likely to
result in a permanently disabling injury.

Order No. 7001595

     Order No. 7001595 was issued by Jardina on January 28, 1999, and
alleged a violation of 30 C.F.R.  75.1315(b), which requires that:
"Each borehole in coal for explosives shall be at least 24 inches from
any other borehole and from any free face, unless prohibited by the
thickness of the coal seam."  The conditions noted on the order were:

     During a fatal accident investigation it was determined that two
     (2) boreholes, one of which contained explosives, were not
     drilled at least 24 inches apart.  The two holes were drilled in
     the high side coal rib approximately 6 feet inby the No. 46
     breast of the monkey (return) heading area of the 2nd Level East
     001-0 working section on July 16, 1998.  These boreholes were
     approximately 6 inches apart. This violation was determined to be
     a contributing factor to a fatal accident.

     Despite the above notation, he concluded that it was reasonably
likely that a fatal accident would occur as a result of the violation,
that the violation was significant and substantial, that one person
was affected and that the violation was due to the operator's high
negligence.  The Order was modified on January 10, 2002, to change the
operator's negligence to "moderate" and to reflect that it was a
citation issued pursuant to section 104(a) of the Act.  There was no
change made to the proposed penalty of $10,000.00, although the
Secretary suggests, in her brief, that a penalty "slightly less" than
that proposed may be appropriate in light of the amendments.

The Violation

     There is no dispute that two boreholes were drilled,
approximately six inches apart, 38-40 feet up into the high rib, or
roof, of the monkey heading about six feet inby the #46 breast. The
north hole was approximately 38 feet deep and the south hole was 40
feet deep.  The question is whether or not these boreholes were
intended to be loaded with explosives.  Tr. 662. If they were test
holes, as contended by Respondent, there would be no violation.  I
find that there was no intention that the holes be loaded with
explosives and that the regulation was not violated.

     Rothermel consistently stated that the holes were not intended to
be used for explosives. They were drilled to try and ascertain the
location of a fault.  The fault had been encountered in a different
set of headings 300 feet higher in the coal seam, and Rothermel
expected to encounter it in the neighborhood of the #40 chute, but
hadn't done so.  Randy Maurer, the miner who normally drilled long
holes for pillaring, had encountered problems near the #43 and #44
breasts. Gary Laudenslager had been driving the #46 breast, but
encountered rock on the last shot fired that had taken out the timber
supports, precluding further work in the breast.  Rothermel assigned
him to drill test holes inby the #46 breast to locate the fault and
try and project where it would intersect the monkey heading.  Tr. 662,
1659-66, 1678; ex. G-43, R-6.

     Jardina concluded that the holes were intended to be used for
explosives based upon a number of considerations. Traces of
undetonated ammonium nitrate explosives were found in scrapings from
the holes and in material blown out of the south hole by the induction
of compressed air into the north hole.  A piece of detonator wire,
shaped like it had been attached to a stick of explosive, had been
removed from the opening of the north hole.  Tr. 662-66.  Drill steels
and a bit were recovered from the south hole.  The wire and the drill
bit also bore traces of undetonated ammonium nitrate explosive.
Jardina felt that test holes would be drilled at least 5- 10 feet
apart because drilling them that close together would provide little
useful information. Tr. 663-64.

     Lobb also believed that the holes were not test holes and that
blasting operations were being performed.  Tr. 929, 941.  He relied
upon essentially the same factors as Jardina.  Faults, like that
ostensibly being explored by Laudenslager, change elevation gradually,
such that he expected that test holes would be drilled 50-100 feet
inby the #46 breast in the monkey heading, not within six feet of the
breast and definitely not within six inches of one another.  Tr.
946-48. It was his opinion that the location of the holes was more
indicative that a miner was engaged in slabbing the pillar, in part,
because drilling two parallel holes was consistent with Respondent's
slabbing practice.  Tr. 948-50.  He placed considerable significance
on the piece of detonator wire and the lab tests that showed the
presence of ammonium nitrate based explosives in the samples, with the
highest concentrations on the drill bit, the detonator wire and the
scrapings from the north hole.

     Respondent raised several issues that cast some doubt on the
theory that the boreholes were intended for explosives, including the
possibility that the samples were contaminated in a number of ways.
The holes were not drilled directly into solid coal.  Rather, the
drill had been inserted through openings in the lagging boards on the
top of the monkey heading.  Immediately above the lagging is rock
fill, and/or fractured coal, ranging from a few inches to several feet
thick.  Such material is placed there to fill the space between the
lagging and the coal left undisturbed when the face is blasted.
Additional material is thrown into that space when the face of the
monkey heading is next blasted.  Tr. 702-04.  Respondent argues that
the scrapings and material purportedly obtained from the "holes" were
actually recovered from the openings in the lagging and could have
included materials from the fill.  Respondent also argues that the
detonator wire could have been in the fill material and points out
that it was recovered from the collar of the hole, the space
immediately above the lagging.  Tr. 675, 928.  Another source of
contamination suggested by Respondent was the surface of the plastic
compressed air pipe that was used to probe the holes.

     Lobb conceded that there was a possibility of contamination, and
that the presence of the detonator wire could be attributed to other
factors.  However, he felt that it was highly unlikely that there was
any significant contamination and noted that the results of the
testing were consistent with the conclusion that there was ammonium
nitrate based explosive in the north hole that underwent a low-order
detonation when the south hole was drilled into it.  Higher
concentrations of undetonated explosive were found on the drill bit
and the scrapings from the north hole.  Relatively low concentrations
were found in the scrapings from the south hole, which would have been
largely blocked by the drill steels at the time of the detonation.

     The Secretary's theory necessarily requires that a number of
unlikely events occurred. First, Gary Laudenslager, the decedent,
would have had to have decided, on his own, that rather than drill
test holes to locate the fault, he would attempt to blast more coal
into the "crashed" #46 breast.  He was not the miner who performed
such tasks, and it would apparently have been inconsistent with
Summit's mining sequence to pillar the #46 breast when the long hole
pillaring work being done by Randy Maurer had proceeded inby only to
the #44 breast.  Laudenslager would also have had to drill the north
hole first, load it with explosives, and then drill the south hole in
very close proximity to it, a sequence that Lobb believed would have
been highly unusual.  Tr. 1098-99.

     It is highly unlikely that this sequence of events occurred.  I
conclude that the Secretary has not carried her burden with respect to
this alleged violation.  The possibility of these events occurring is
slightly more probable because of the fact that Laudenslager was not
properly qualified as a blaster, and also lacked training.  However,
there was general agreement that Rothermel provided excellent
instruction to his miners.  Tr. 1162, 1167, 1204-06, 1361.  Also of
significance is the fact that, while this sequence of events was found
to be more likely than other potential scenarios to have caused the
accident, MSHA was ultimately unable to identify the cause.  I am also
troubled by the pristine condition of the detonator wire, which was
described as very clean and intact.  Tr. 723-24.  There were sharp
protrusions, especially in the north hole, evidenced by the fact that
shavings were scraped off the plastic air line used to probe them. Tr.
924-25.  It would seem that a detonator wire, also with a plastic
coating, that was wrapped around a stick of explosive only slightly
smaller than the diameter of the borehole and tamped up to the top of
the 38 foot hole, and subjected to a low-order detonation, would have
shown some signs of this relatively violent treatment.  Tr. 723-24.
Lobb did concede that there was no forensic evidence that established
that a detonator had exploded in the boreholes.  Tr. 1075.  It is
possible, if there was a detonation of explosives, that it was
explosives from a previous misfire in the #46 breast, itself.  Tr.
727-28, 1025-26, 1103-04.  If so, there was never any explosive loaded
into either of the two holes.  I agree with Jardina and Lobb that the
location of the holes was difficult to reconcile with the concept that
they were intended to locate the fault.  However, their proximity
would also have been unusual if they were boreholes intended to be
loaded with explosives, especially if the second hole was drilled
after explosives had been placed into the north hole.

DOCKET NO. PENN 99-254

Citation No. 7001590

     Citation No. 7001590 was issued by Jardina on January 28, 1999,
and alleged a violation of 30 C.F.R.  75.1323(j), which requires
that: "Immediately prior to firing, all blasting circuits shall be
tested for continuity and resistance using a blasting galvanometer or
other instrument specifically designed for testing blasting circuits."
The conditions noted on the citation were:

     During a fatal accident investigation conducted between July 16,
     1998 and August 3, 1988, it was determined that immediately prior
     to firing the gangway working face and the monkey (return) face,
     blasting circuits were not tested for continuity and resistance
     using a blasting galvanometer or other instrument specifically
     designed for testing blasting circuits.  This testing was not
     conducted on July 16, 1998 and prior dates.  These areas are
     located at the 2nd Level East 001-0 active working section.

     He concluded that it was highly likely that the violation would
result in a permanently disabling injury, that the violation was
significant and substantial, that seven persons were affected and that
the violation was due to the operator's high negligence.  A civil
penalty of $1,000.00 is proposed.

The Violation

     A galvanometer is an instrument that will show both the
continuity and resistence of a blasting circuit.  Each of the electric
detonators has two plastic coated wires extending from it out of the
borehole.  They have about three inches of bare wire at their ends.
The detonators are connected together in series by twisting the bare
ends of the wires together to form part of the blasting circuit.  As
many as 20 detonators may be fired in one round.  Each of the
detonators has a known electrical resistance, e.g., 1.5 ohms.  Use of
a galvanometer will inform a miner that the blasting circuit has
continuity and, by indicating the overall resistence of the circuit,
that the proper number of detonators are wired in series.  That would
confirm that none of the bare portions of the detonator wires have
unintentionally touched, possibly short circuiting, or eliminating,
some of the detonators from the blasting circuit, which could result
in a misfire. Misfires of explosives are the second or third leading
cause of blasting accidents.  Tr. 879-82, 885-86, 991-96, 1001-02.

     Galvanometers were generally not used at Respondent's mine,
except when there was a misfire of explosives.  Two miners testified
to that effect and other miners had so stated in their statements to
MSHA.  Tr. 760, 778-79, 787, 883-84.  Rothermel asserts that there
were galvanometers in the gangway and monkey headings and that the
miners used a blasting battery that checked the continuity of the
circuit.  Tr. 1738; ex. R-6, G-43.  Whether galvanometers were
present, as Rothermel claims, it is clear that they were not being
used, as required by the regulation, and that the miners who were
doing blasting had not been instructed to use them.  Use of a firing
battery that checked for continuity, but not for resistence of the
circuit, would not comply with the regulation.  The regulation was
violated.

Significant and Substantial

     Failure to use a galvanometer, or other such instrument, to check
the continuity and resistence of blasting circuits significantly
increased the risk of misfires, making it reasonably likely that a
reasonably serious injury would occur.  A misfire could result in the
presence of undetonated explosives and blasting caps in coal being
loaded out of the mine, creating a possibility of an unplanned
detonation and a high risk of serious or fatal injury to miners.  The
violation was significant and substantial.

     Despite his efforts to provide training to his anthracite miners,
Rothermel should have been aware of their failure to properly use
galvanometers and the surprising ignorance of some of the newer miners
regarding what a galvanometer was or what it was used for.  I concur
with the assessment that the violation was attributable to the
operator's high negligence.

Citation No. 7001453

     Citation No. 7001453 was issued by MSHA Inspector Kenneth
Chamberlain on March 17, 1999, and alleged a violation of 30 C.F.R. 
75.370(a)(2), which requires that operators submit proposed revisions
to a mine's ventilation plan to MSHA's district manager in writing.
The conditions noted on the citation were:

     The operator did not comply with the current approved Ventilation
     Plan in that the middle fan located between the 002-0 and 001-0
     sections has been discontinued and is not operating.  A proposed
     revision to the plan was not submitted to MSHA for review and
     approval prior to implementation.

     He concluded that it was unlikely that an injury would result
from the violation, that the violation was not significant and
substantial, that four persons were affected and that the violation
was due to the operator's moderate negligence.  A civil penalty of
$55.00 is proposed.

     On a regular inspection, conducted in March of 1999, Chamberlain
observed that the middle mine fan, operation of which is envisioned in
Respondent's approved ventilation plan, had been shut off and the
power disconnected.  He ascertained that no revision to the plan,
embodying that change, had been submitted to or approved by MSHA.  Tr.
1406-08.  The air samples he took in the mine revealed no methane or
bad air, and he agreed that the shutting down of the fan had no effect
on the major mine air ventilation currents.  Tr. 1409-11.  The fan at
issue was not a main mine fan and the mine was engaged in pillaring at
the time.  The fan was shut down because the entryway to the middle
mine fan had collapsed and no additional ventilation of the mine would
have been provided whether or not the fan was operating.  Ex. R-6,
G-43. Chamberlain did not travel the entryway to the fan and
acknowledged that it could have been closed. Tr. 1410-11.

     The regulation requires that proposed ventilation plans and any
revisions thereto be submitted in writing to the district manager.  30
C.F.R.  75.370(a)(2).  A corresponding provision,  75.370(d),
provides that:

     Any intentional change to the ventilation system that alters the
     main air current or any split of the main air current in a manner
     that could materially affect the safety and health of miners, or
     any change to the information required in  75.371 shall be
     submitted to and approved by the district manager before
     implementation.

     The Secretary argues, citing Harlan Cumberland Coal Co., 17
FMSHRC 1342 (Aug. 1995) (ALJ), that "the shutting down of an auxiliary
fan is a major ventilation change requiring the prior approval of
MSHA."  Gov. Br. at p. 95.  Here, she continues, Respondent "removed
its middle fan from service . . . without seeking approval of MSHA
before doing so, as a result, the Operator failed to comply with its
ventilation plan."  Id.  It appears that the subject violation could
more properly have been charged as a violation of  75.370(d), i.e.,
the implementation of a "major ventilation change" prior to securing
MSHA's approval.  The issue is whether or not the regulation obligated
Respondent to submit, in writing, a proposed change to its ventilation
plan and secure MSHA's approval prior to shutting down the fan.

     The essence of the regulation, as stated in section 75.370(d), is
that intentional significant changes to a mine's ventilation system
must be approved prior to implementation.  Normally, the shutting down
of a mine fan would be such a change. However, here, the entryway to
the fan had collapsed and the shutting down of the fan had no effect
on the mine's ventilation system, which remained highly effective.
There is no suggestion that the collapse of the entryway was due to an
intentional act by Respondent.  The shutting down of the fan and
disconnection of the power cables was an intentional act but, under
the circumstances, had no effect on mine ventilation.  I find that the
Secretary has not carried her burden of proving that Respondent
violated the regulation.

DOCKET NO. PENN 99-213

Citation No. 7001403

     Citation No. 7001403 was issued by Jardina on August 14, 1998,
and, as amended, alleged a violation of 30 C.F.R.  75.312(h), which
requires that: "Records, including records of [main] mine fan pressure
. . . shall be retained at a surface location at the mine for at least
1 year and be made available for inspection by authorized
representatives of the Secretary and the representative of miners."
The conditions noted on the citation, as amended, were:

     During a fatal accident investigation, it was determined on July
     17, 1998 that records of the mine's East and West main mine fans,
     pressure recording gauges, were not being retained.  Only 16
     weekly interval fan charts could be provided by the mine
     operator.  The oldest dated fan chart was for the week of October
     9-15, 1997.

     He concluded that it was unlikely that the violation would result
in an injury, that the violation was not significant and substantial,
that nine persons were affected and that the violation was due to the
operator's high negligence.  The negligence assessment was later
amended to moderate because the operator had reported vandalism in the
past, which resulted in destruction of records.  A civil penalty of
$55.00 is proposed.

     Under the regulation Respondent was obligated to maintain twelve
months of weekly fan pressure reading records.  On July 17, 1998, it
was unable to produce records for the period October 16, 1997 through
July 17, 1998.  The asserted reason for the apparent violation was
recurrent vandalism at the mine, some of which had been previously
reported.  Due to the repetitive nature of the vandalism, Respondent
had stopped reporting it.  Ex. G-43.

     I accept Respondent's assertion that at least some of the fan
pressure records were either taken or destroyed by vandals.  However,
there is no credible evidence that vandalism accounted for all of the
missing records.  Absent evidence that there was vandalism at the mine
on or shortly prior to July 17, 1998, and that the records had been
maintained, as required, only to be lost or destroyed by vandals, I
find that the regulation was violated.  I also concur with the
assessment of low gravity and moderate operator negligence.

Citation No. 7001405

     Citation No. 7001405 was issued by Charles Moore, supervisor of
MSHA's Wilkes- Barre, District One office, and an education and
training specialist, on August 14, 1998, and alleged a violation of 30
C.F.R.  48.5(a), which requires that: "Each new miner shall receive
no less than 40 hours of training as prescribed in this section before
such miner is assigned to work duties."  The conditions noted on the
citation were:

     During a fatal accident investigation conducted between July 16,
     1998 and August 3, 1998, it was determined that Adam
     Laudenslager, who was performing work in the gangway area of the
     2nd level East 001-0 working section on July 16, 1998, had not
     received the required 40 hours of new miner training as specified
     in CFR, Title 30, Section 48.5 (a) - (c).  Mr. Laudenslager was
     hired by this company on or about July 3, 1998 and only completed
     part of the required training.  This miner is no longer employed
     at this mine.

     He concluded that it was reasonably likely that the violation
would result in a fatal injury, that the violation was significant and
substantial, that one person was affected and that the violation was
due to the operator's moderate negligence.  A civil penalty of $113.00
is proposed.

The Violation

     Moore issued the citation on the basis of information provided to
him by an MSHA field office supervisor who had interviewed the subject
miner, Adam Laudenslager.  Moore did not speak to the miner himself,
nor does it appear that he read any written statement by the miner.
According to the field office supervisor, the miner had spent a day at
the mine, had watched two instructional video tapes and had been shown
how to use a methane detector.  That was the extent of the training
provided.  Moore was also informed that the miner had no prior
experience as an underground miner.  Tr. 1158-60.

     Adam Laudenslager is Rothermel's nephew and, while he apparently
had not previously worked as an underground miner, he had considerable
exposure to the anthracite mining industry.  Ex. R-6, G-43.  He had
spent one full day at the mine and watched video tapes that had been
assembled by Rothermel based upon their subject matter and relevance
to anthracite mining.  Rothermel has been instrumental in developing
training materials for anthracite mining, which is somewhat of a blend
of underground bituminous coal and metal/non-metal mining.  Tr.
1750-51.

     The regulation was violated.  While there is some question about
the length of the video tapes, the clear weight of the evidence is
that Adam Laudenslager was not provided with 40 hours of new miner
training and that not all of the required subject matters were
addressed in the training that was provided.

Significant and Substantial

     Moore concluded that the violation was significant and
substantial because a new miner, somebody off the street, with no
previous mining experience, finds himself in a "completely alien
environment" and can be a danger to himself and other miners,
especially in anthracite mining because of the use of explosives and
labor intensive nature of the work.  Tr. 1164-66.  He did not feel
that the fact that a person was raised in a mining community was a
proper substitute for the required training, because he has found that
such individuals are sometimes exposed to erroneous or unsafe methods
and it is important to correct the "misinformation" that a person may
have. Tr. 1172-74.

     Putting a person with no prior mining exposure or experience to
work as a miner without providing the required new miner training
would be a prototypical example of a significant and substantial
violation.  However, Adam Laudenslager was not such a person and he
had been provided with a significant amount of training   in the words
of Rothermel, some of the "best training" available for anthracite
miners.  Ex. R-6, G-43.  Moore, like other MSHA personnel, had a very
high regard for Rothermel's capability and competency as a trainer.
Tr. 1162, 1167. Rothermel helped to assemble training materials for
his miners, because he felt that much of the material used in the
typical new miner training had very little to do with anthracite
mining.  As he explained: "The majority of the training that made a
difference between life and death to those guys was given at the
mine."  Tr. 1750-51.  Adam Laudenslager did receive a full day of
training at the mine and had watched training videos that had been
carefully selected as being highly pertinent to anthracite mining.

     Moore was handicapped in his assessment of whether the violation
was significant and substantial because he was dependent upon hearsay
for information regarding what training experiences had been provided.
His assessment appears to be based more on the hypothetical putting to
work of a completely inexperienced miner without any training.  He had
virtually no knowledge as to what training areas had been covered
during the day Laudenslager spent at the mine, what subjects were
covered in the videos, or how they were covered.  It is the
Secretary's burden to prove that this particular violation was
significant and substantial, not that it could have been in a
hypothetical sense.  I credit Rothermel's assertion that some of the
best training available was given to Laudenslager.  While there were,
no doubt, essential areas of new miner training that were not covered,
e.g., statutory rights of miners, without some qualitative evidence of
the shortcomings of the training that was provided, I find that the
Secretary has failed to carry her burden of proving that the violation
was significant and substantial.  I find that the violation was
reasonably likely to result in a lost time accident.  I agree that the
violation was the result of the operator's moderate negligence.

Citation No. 7001406

     Citation No. 7001406 was issued by Moore on August 14, 1998, and
alleged a violation of 30 C.F.R.  75.1324(b), which requires that:
"Immediately before shots are fired, the methane concentration in a
working place or any other area where blasting is to be performed,
shall be determined by a person qualified to test for methane."  The
conditions noted on the citation were:

     During a fatal accident investigation conducted between July 16,
     1998 and August 3, 1998, it was determined that 4 miners
     conducted tests for methane and oxygen deficiency immediately
     before blasting.  These miners were not qualified to make these
     tests as required by CFR 30, Part 75.151.  Their daily work
     practices included the above tests and the charging and
     detonation of explosives.

     He concluded that it was reasonably likely that the violation
would result in an injury requiring lost work days or restricted duty,
that the violation was significant and substantial, that seven persons
were affected and that the violation was due to the operator's
moderate negligence. The citation was later amended to reflect that
the violation was unlikely to result in an injury and that it was not
significant and substantial.  A civil penalty of $55.00 is proposed.

     As defined in 30 C.F.R.  75.151, a person qualified to test for
methane is a person who "demonstrates to the satisfaction of an
authorized representative of the Secretary that he is qualified to
test for methane with a portable methane detector."   Respondent does
not dispute that the subject miners did not have the requisite
qualification.  Tr. 1199-1200.  On the other hand, MSHA does not
dispute that the miners had been trained to use a methane detector or
that they competently tested for methane prior to blasting.  Tr. 1190,
1205-06.  It was the lack of the paper certification that resulted in
the violation.

     I find that the regulation was violated and that the gravity, as
amended, and operator negligence were properly assessed.

Citation No. 7000327

     Citation No. 7000327 was issued by MSHA Inspector Ronald
Pinchorski on August 20, 1998, and alleged a violation of 30 C.F.R. 
75.904, which requires that: "Circuit breakers shall be marked for
identification."  The conditions noted on the citation were:

     The circuit breakers and disconnecting devices installed and
     operational in the 2nd level west gangway (001-0) did not have
     any type of identification to describe their function.  This
     electrical equipment was used for the control of the pumps which
     were rated at 440 volts.

     He concluded that it was unlikely that the violation would result
in an injury requiring lost work days or restricted duty, that the
violation was not significant and substantial, that one person was
affected and that the violation was due to the operator's moderate
negligence.  A civil penalty of $55.00 is proposed.

     Pinchorski was performing a regular AAA inspection of the mine at
the time the citation was written.  However, he had been told of the
condition by other inspectors who had been involved in the accident
investigation.  The inspection was performed over a period of many
weeks and Pinchorski observed the conditions recorded on the citation
sometime around August 4 or 5.  Tr. 1366.  He also observed the switch
boxes on August 20, the day the citation was issued and, on the basis
of that observation, terminated the citation.  Tr. 1366, 1368.

     Respondent's exhibits 4 and 5 are pictures depicting two switch
boxes at the subject location.  Each bore a tag from the motor being
controlled that identified specific characteristics of the motor,
e.g., its horsepower.  Also depicted are pink plastic stickers
stating, respectively, "MAIN" and "50 HP PUMP."  The pictures were
taken on August 20, and the presence of the stickers was sufficient to
justify termination of the citation.  Tr. 1367-68.  Rothermel
testified that the pink stickers had been placed on the boxes over two
years prior to the inspection.  Tr. 1610.  Pinchorski was fairly
certain that the pink stickers were not on the switch boxes he
observed on August 4 or 5, because he did not believe that he would
have issued the citation if they had been present.  Tr. 1370, 1375,
1379.  The tags from the motors were present at that time, but they
were not sufficient to satisfy the regulation because they did not
identify the device, i.e., which pump or a fan, the switch controlled.
Tr. 1357-60.

     I credit the testimony of Pinchorski and find that he observed
switch boxes on August 4 or 5, 1998, that had no pink stickers
identifying the particular device that the switch controlled. It is
not clear exactly how many switch boxes were observed by Pinchorski
that day. Consequently, it is not clear that the two boxes depicted in
Respondent's exhibits 4 and 5 were the only boxes that were the
subject of the citation.  The precise basis of Rothermel's testimony
is also less than clear.  I have no doubt that there were pink
stickers identifying electrical devices on many switch boxes in the
mine and that they had been affixed well prior to the inspection.
However, I find that there were some switch boxes without proper
identification.  The stickers shown in Respondent's exhibit may have
been supplied by someone other than Rothermel after Pinchorski first
observed the switches and questioned compliance with the regulation.
I credit Pinchorski's testimony because I found him to be a credible
witness and it is highly unlikely that he issued a citation for the
same conditions that he found satisfied the regulation some two weeks
later, when it was terminated.

     Pinchorski assessed the gravity of the violation as unlikely to
result in an injury and the operator's negligence as moderate.  He
believed that Rothermel trained his miners well and that they knew
which devices were controlled by the switches.  I agree with his
determinations on gravity and negligence.

Citation No. 7001027

     Citation No. 7001027 was issued by MSHA inspector Harold Glandon
on August 20, 1998, and alleged a violation of 30 C.F.R.  75.370(d),
which requires that: "Any intentional change to the ventilation system
that alters the main air current or any split in the main air current
in a manner that could materially affect the safety and health of
miners . . . shall be submitted to and approved by the district
manager before implementation."  The conditions noted on the citation
were:

     The mine operator intentionally implemented a change to the mine
     ventilation system for the 002-0 working section.  This change
     materially altered the main air currents prior to the submission
     for approval by the District Manager.  The changes made by the
     operator included the construction of an overcast, rerouting of
     the intake and return air currents, including the alternate
     scapeway, development of the intake haulage slope to a deeper
     level and the initiation of the 4th level gangway development.
     Completion of the final pillar recovery in the 4th level east
     gangway workings also occurred.

     He concluded that it was reasonably likely that the violation
would result in an injury requiring lost work days or restricted duty,
that the violation was significant and substantial, that two persons
were affected and that the violation was due to the operator's
moderate negligence. The citation was later amended to reflect that
the violation was unlikely to result in an injury and that it was not
significant and substantial.  A civil penalty of $55.00 is proposed.

     Respondent had ceased mining on the east side of the slope and
began to develop a gangway heading on the west side.  In order to
properly ventilate the new development, both intake and return air
were routed through the same area and it was necessary to construct a
channel so that the air currents could cross without mixing.  The
channel, called an "overcast," was constructed so that the return air
could cross over the intake air and exit the west fan.  Tr. 1253.
Respondent did not submit a proposed change to its ventilation plan
before constructing the overcast.  Tr. 1256.  Respondent's defense to
the alleged violation is that initiating a new gangway heading was
normal mine development and rerouting of air to the new work area was
not a change that needed to be reflected in the mine ventilation plan.
Ex. R-6.  During cross- examination, Rothermel attempted to compare
the change to that which occurs when a new chute is opened as gangway
and monkey headings are developed.  The intake air induced into the
gangway heading is routed up the new chute to the monkey heading, a
change that is part of normal mine development that does not need to
be reflected in an amendment to the mine's ventilation plan.

     The change that occurred here was not simple routine mine
development, where air is routed through different headings and chutes
of specified size.  Rather it required construction of a special
channel to allow return air to course over intake air.  Nothing in the
ventilation plan addressed the construction of overcasts.  If the
overcast was not properly constructed, ventilation to the new working
places could be restricted, materially affecting the health and safety
of miners.  Tr. 1262.  I find that the construction of the overcast
was an action that was required to be approved as an amendment to the
mine's ventilation plan before it was implemented, and that Respondent
violated the regulation.

     Glandon inspected the overcast and found it to be well-
constructed and of adequate size to assure proper ventilation.  The
design of the overcast, as constructed, was approved as an amendment
to the ventilation plan.  For those reasons, it was concluded that the
probability of injury was unlikely and that the violation was not
significant and substantial.  I agree with those conclusions.  I also
agree that the violation was the result of the operator's moderate
negligence. Rothermel was an experienced operator who understood the
regulation and had previously submitted amendments to the ventilation
plan.  He should have realized that an amendment was required for
construction of the overcast.

Citation No. 7001029

     Citation No. 7001029 was issued by Inspector Glandon on August
20, 1998, and alleged a violation of 30 C.F.R.  75.220(a)(1), which
requires that operators "develop and follow a roof control plan,
approved by the District Manager, that is suitable to the prevailing
geological conditions, and the mining system to be used at the mine."
The conditions noted on the citation were:

     Manways with steps spaced at no greater than 30 inches were not
     provided in the open chutes of Nos. 47, 48 and 49 in the 2nd
     level east gangway, 001-0 working section.  The approved roof
     control plan dated 5/13/94 states that when the pitch of the coal
     vein exceeds 20 degrees, manways will be provided in open chutes
     and breasts and steps in the manway will not be spaced greater
     than 30 inches.  The last travelable manway was at the No. 32
     chute, a distance of approximately 860 feet from the gangway
     face.  The pitch of the vein in the vicinity of chutes 47, 48 and
     49 ranged from 70-80 degrees.

     He concluded that it was unlikely that the violation would result
in an injury, that the violation was not significant and substantial,
that three persons were affected and that the violation was due to the
operator's moderate negligence.  A civil penalty of $55.00 is
proposed.

     As stated in the citation, Respondent's approved roof control
plan required that manways, with steps spaced not greater than 30
inches, be provided in open chutes where the pitch of the coal vein
exceeded 20 degrees.  The pitch of the coal vein in Respondent's mine
was 70-80 degrees and chutes numbered 47, 48 and 49 were open.
Manways, with the required step spacing were, therefore, required in
those chutes. Glandon looked up each of the chutes from the gangway
level to the monkey level and did not see any ladders or steps.  Tr.
1300-02.

     Respondent contends that there were manways in the chutes, with
plank steps on less than 30 inch centers.  Respondent's exhibit 3a-d
purports to show the steps in the #48 chute.  They appear to be at
least partially covered with coal, or were so covered shortly before
the pictures were taken.  Although not directly stated, Respondent
also appears to contend that similar steps were present in the #47 and
#49 chutes.  Ex. G-43, R-6.  Respondent also contends that the
violation was written because MSHA interprets the standard to require
a ladder, rather than steps on less than 30 inch centers, and that
Glandon wrote the citation because there were no ladders. Tr. 1294-95,
1300.  However, there was some confusion during cross-examination over
the use of the term "ladder," which may well have been interpreted by
Glandon to include plank steps.

     I find that there were plank steps on less than 30 inch centers
in the #48 chute.  They may have been obscured by coal when Glandon
looked up the chute.  I also find that there were steps in the #49
chute.  However, there was no evidence introduced by Respondent to
establish that the required steps were also in the #47 chute.  On the
basis of Glandon's testimony, I find that there were no such steps in
the #47 chute, and that the regulation was violated.  Allowing plank
steps in a manway to be covered with coal, making them virtually
unusable, would also be a violation of the standard.  I agree that the
violation was unlikely to result in an injury and that it was due to
the operator's moderate negligence.

Citation No. 7001448

     Citation No. 7001448 was issued by MSHA Inspector Kenneth
Chamberlain on December 10, 1998, and alleged a violation of 30 C.F.R.
 75.381(c)(3), which requires that each escapeway be maintained in a
safe condition, specifically, that they be "[p]rovided with ladders,
stairways, ramps or similar facilities where [they] cross over
obstructions."  The conditions noted on the citation were:

     The alternate escapeway from the 002-0 section was not maintained
     in a safe condition in that ladders were not provided from the
     4th level monkey heading to the 3rd level gangway.

     He concluded that it was unlikely that the violation would result
in an injury, that the violation was not significant and substantial,
that three persons were affected and that the violation was due to the
operator's moderate negligence.  A civil penalty of $55.00 is
proposed.

     There was no ladder provided in the alternate escapeway from the
3rd level gangway to the 4th level monkey heading.  However, there
were plank steps, on less-than 30 inch centers, in that chute.  Tr.
1396-98.  The prevailing practice in anthracite mines is, apparently,
to provide ladders in chutes and other portions of escapeways in
steeply pitched mines.  Tr. 1395-96. MSHA also appears to interpret
the standard as requiring a ladder, because Chamberlain was looking
only for a ladder to determine whether the standard was complied with.
Tr. 1397-98. While I reject Respondent's argument that the 70-80
degree pitch of the coal vein through which the chute was driven is
not an obstruction requiring a ladder, stairway, ramp or similar
facility, I find that the Secretary has failed to carry her burden of
proving the alleged violation, and has failed to justify MSHA's
restrictive application of the standard so as to recognize only
ladders as a means of compliance.

     The standard provides that portions of escapeways that traverse
obstructions, including steep slopes, be provided with ladders,
stairways, ramps or similar facilities.  The manway portion of the
escapeway chute had the typical, and required, steps on less-than-30
inch centers. That is the means by which miners routinely travel the
manways between different levels of the mine.  MSHA has advanced no
explanation or justification for its position that such steps do not
satisfy the requirement that ladders, stairways, ramps or similar
facilities be provided.  Although Chamberlain testified that, in his
opinion, such steps did not satisfy the standard, he did not explain
the rationale of his position and it is not apparent from other
portions of his testimony. Tr. 1398-99.

Citation No. 7001586

     Citation No. 7001586 was issued by Jardina on January 28, 1999,
and alleged a violation of 30 C.F.R.  75.325(e)(1), which requires
that: "At least 1,500 cubic feet [of air] per minute [reach] each
working face where coal is being mined."  The conditions noted on the
citation were:

     A quantity of at least 1,500 cubic feet a minute of air was not
     providing ventilation to the gangway face of the 2nd Level East
     001-0 active working section.  On July 16, 1998, it was
     determined by an authorized representative of the Secretary that
     a quantity of only 754 cubic feet per minute of air was being
     maintained at the inby end of the 12 inch diameter flexible
     tubing.  It was further determined that the flexible tubing was
     damaged prior to the accident.  An approved calibrated anemometer
     was used to determine the air velocity.  Coal was in the process
     of being loaded.

     He concluded that it was reasonably likely that the violation
would result in a permanently disabling injury, that the violation was
significant and substantial, that four persons were affected and that
the violation was due to the operator's moderate negligence.   A civil
penalty of $131.00 is proposed for this violation.

The Violation

     Although Jardina issued the citation, he did not take the
measurements referred to. Rather, he relied upon discussions with Jack
McGann, another inspector, and notes that he took. Tr. 844-45.  The
citation was written based upon the post-accident measurement of 754
cubic feet per minute made by McGann.  Jardina did not know where that
measurement was taken in relation to the gangway face or the end of
the ventilation tubing.  Tr. 844.  He acknowledged that the
ventilation tubing may have been damaged during the accident.  Tr.
837.  He concluded, however, that it was likely that less than 1,500
cubic feet per minute of air was being supplied to the gangway face
because some repairs had been made to the damaged ventilation tubing
and Rothermel admitted that there was some damage to the tubing prior
to the accident.  Tr. 821-23, 848-49.

     Rothermel was closely involved in the rescue and recovery
operation.  After the victims had been administered to, a comment was
made about damage to the ventilation tubing in the gangway heading.
He went to investigate, accompanied by McGann, and found considerable
damage at the #48 chute.  The chute battery had been blown down by the
explosion, and there was a pile of coal and several sticks of
explosives on the gangway floor.  The ventilation tubing had been
disconnected and there were many holes in the tubing, some of them big
enough to put a hand through.  Tr. 1704-07.  Rothermel, who had done
the preshift examination that morning, and assured that there was at
least 1,500 cubic feet per minute of air at the gangway face, knew
that the holes and damage to the ventilation tubing near the #48 chute
had occurred during the explosion.  Tr. 1707.  He knew that there was
excessive methane in the mine and that it was critical to reestablish
damaged ventilation controls.  However, he was concerned about
altering the accident scene, which would violate MSHA regulations.
With McGann's at least tacit permission, he "sewed" the larger holes
with 10d nails and replaced a piece of ventilation tubing at the
gangway face, extending it to the last set of timbers and cutting off
the end at that point. Tr. 1711.  Closing the holes by overlapping the
edges and piercing them with nails reduced the diameter of the tubing
and severely restricted the air flow.  Ex. G-43, R-6.  He explained
that the end of the ventilation tubing closest to the face is usually
damaged by blasting, but that the required air flow was always
maintained within 20 feet of the face.  Id.; tr. 1710.

     Neither Jardina, nor McGann, had measured the air flow at the
gangway face prior to the accident.  Jardina's "opinion" that it had
been less than 1,500 cubic feet per minute is based upon McGann's
later measurement, a determination that the accident had caused
virtually no damage to the ventilation tubing, the fact that repairs
had been made, and Rothermel's admission that there was some damage to
the tubing prior to the accident.  There are two significant problems
with Jardina's analysis.  His determination that the accident caused
virtually no damage to the tubing is unsupported by the evidence, and
his belief that the prior damage included holes near the #48 chute was
erroneous.

     Jardina's conclusion that the damage to the tubing near the #48
chute was not caused by the accident, was based largely upon his
conclusion that coal striking a chute battery, like the battery at
chute #45 depicted in Government exhibit 28, would not bounce and
strike the ventilation tubing that was attached to the rib near the
roof supports.  However, he acknowledged that, depending upon the
severity of the accident's impact at the #48 chute, damage to the
ventilation tubing was possible.  The accident produced a violent
impact at the #48 chute battery on the gangway level, sufficient to
damage it and deposit a pile of coal and several sticks of explosive.
Ex. G-7.  I accept Rothermel's testimony regarding the condition of
the tubing during the preshift examination and that the damage in the
area of the #48 chute, including the large holes in the ventilation
tubing, was a result of the accident.

     Jardina was also somewhat uncertain in his recollection of what
McGann had told him about Rothermel's statement that some damage to
the tubing was present prior to the accident. Tr. 823.  He indicated
at one point that his recollection of McGann's reports of Rothermel's
statements regarding pre-existing damage to the tubing included
"various locations down to and including 48 chute."  Tr. 855-57.
However, he had previously related that McGann had been referring to
statements made by Rothermel about damage to the tubing at the gangway
face. Tr. 822-23.  There was no damage inby the #48 chute or in the
vicinity of the #45 chute.  Tr. 824, 836.  I find that Rothermel's
statements regarding pre-existing damage to the ventilation tubing
were far less incriminating.  He was referring to the end of the
tubing closest to the face that would typically be damaged when the
face was blasted.  The regulation and ventilation plan require that
ventilation be supplied within 20 feet of the face.  Tr. 834-35.
Damage to tubing within 20 feet of the face is irrelevant to
compliance because the measurement should be taken 20 feet from the
face.  Jardina did not know where the measurement had been taken, but
seemed to recall that it may have been taken near the end to the
ventilation tubing, and he did not know where that had been.

     Jardina and the Secretary make much of the fact that, prior to]
the new piece of ventilation tubing being replaced at the gangway face
and the holes being "sewed" up, the flow would have been less than the
754 cubic feet per minute measured by McGann.  This point is relevant
only if the repairs had been made to damage that existed prior to the
accident.  I have found, however, that the damage near the #48 chute,
repair of which severely restricted the air flow, occurred as a result
of the accident.  I also find that, while the end of the tubing
nearest the face was damaged prior to the accident, that whatever
damage existed further than 20 feet from the face, was not sufficient
to reduce the air flow below the required level.  I find that the
regulation was not violated.

Citation No. 7001593

     Citation No. 7001593 was issued by Jardina on January 28, 1999,
and alleged a violation of 30 C.F.R.  75.1715, which requires that:

     Each operator of a coal mine shall establish a check-in and
     check-out system which will provide positive identification of
     every person underground, and will provide an accurate record of
     the persons in the mine kept on the surface . . . [and] shall
     bear a number identical to an identification check that is
     securely fastened to the lamp belt worn by the person
     underground.  The identification check shall be made of rust
     resistant metal of not less than 16 gauge.

The conditions noted on the citation were:

     The check in - check out system established by the operator,
     which will provide positive identification of every person
     underground was not being followed. During a fatal accident
     investigation it was determined that a lamp belt worn by Gary
     Laudenslager (victim) did not have any identification (check)
     number securely fastened to the belt.  This condition was
     observed on July 17, 1998, at approximately 0822 hours.

     He concluded that it was unlikely that the violation would result
in an injury, that the violation was not significant and substantial,
that one person was affected and that the violation was due to the
operator's moderate negligence.  The citation was amended at the
hearing to specify that the operator's negligence was low.  A civil
penalty of $55 was proposed for this violation, prior to the
amendment.

     Respondent contends, and asserted in discovery, that its check in
- check out system consisted of the miner's name being placed on his
mine light and on the charger located on the surface.  Mine lights
absent from the charger indicated who was underground.  The mine light
bearing the miner's name, was securely fastened to his belt before
going underground.  Ex. G-43. Respondent additionally contends that
this system was followed for nine years prior to, and two years
following, the accident and no citations were issued during any other
inspection.  Ex. R-6.

     Jardina testified that Gary Laudenslager's mine belt was found in
the mine, that no identification marking was on the belt itself, and
there was no evidence of any marking having been permanently affixed
to the belt.  Tr. 872, 875.  He did not look at any other miner's belt
and had no recollection of whether or not Laudenslager's mine lamp was
affixed to his belt or whether the lamp bore Laudenslager's name.  Tr.
876-78.  He testified that use of a name system on a mine light would
not satisfy the regulation because a miner might borrow someone else's
light and that, if the names were painted or stenciled on, they might
wear off or become obscured.

     I find that Respondent had, for many years, operated with a check
in - check out system as described in its discovery response.  Gary
Laudenslager had worn his mine belt into the mine on July 16, 1998,
with his mine lamp securely affixed to it and bearing his name.  I
find Jardina's testimony somewhat defensive on those points.  He was
careful to specify that there was no identification marking "on the
belt."  I interpret that testimony to mean only that there was no
permanent identification marking separately affixed directly to the
belt   not that no identification marking was on something else, like
a mine lamp, that was affixed to the belt.  His concerns about the
borrowing of lights and shortcomings of painted or stenciled names
appear valid.  If those situations occurred, they might well be
violations of the regulation.  There is no indication in the evidence,
however, that any miner had borrowed any other miner's lamp or that
the marking on Laudenslager's mine lamp, which was affixed securely to
his belt, was not legible and fully sufficient to identify him.

     The Secretary has failed to carry her burden of proving that the
regulation was violated. In addition, I credit Respondent's assertion
that its identification system had been in use for many years and had
never been found to be in violation of the regulation by a multitude
of other MSHA inspectors.  While it is conceivable that one or two
inspectors might not have specifically examined the system, it is
highly unlikely that all of them failed to notice or inspect the
system for compliance with the regulation.  Having had its system at
least tacitly approved by many prior inspectors, Respondent was not
provided fair notice that its system was deficient, and the regulation
cannot be enforced in this situation, consistent with due process.

The Appropriate Civil Penalties

     The parties stipulated that Summit Anthracite had only one, non-
S&S, assessed violation in the two year period preceding August 14,
1998, that Summit Anthracite, and the Tracey Vein Slope, had produced
11,721 tons of coal in the year preceding that date, and that the
operator demonstrated good faith in achieving compliance with the
regulations.  The violations, gravity and negligence assessments with
respect to each alleged violation are discussed above.

     Summit maintains that the imposition of civil penalties in the
approximate amount of $57,000.00 proposed by the Secretary would
threaten its ability to remain in business.  It relies on financial
statements and tax returns for three years, 1998-2001, that were
submitted following the hearing. The Secretary, in response, submitted
an analysis by a certified public accountant, Steven Dearien, who
concluded that the documents are insufficient to establish that
payment of civil penalties in the proposed amounts would impair
Summit's ability to continue in business. The Secretary points out
that the financial statements submitted were unaudited and bore a
disclaimer stating that they were based upon unverified information
supplied by management. Dearien's conclusion was based upon a number
of factors, including the fact that Summit's cash balance, inventory
and sales for 2001 were the highest they had been in five years, and
that no information was supplied regarding a related and
interdependent company, S & R Coal Company, whose partners are the
same as the stockholders of Summit Anthracite.

     On the basis of the evidence and arguments advanced by the
Secretary and considering that the civil penalties imposed below are
significantly lower than the proposed amounts, I find that the
operator has failed to demonstrate that the civil penalties imposed
below would threaten its ability to remain in business.

Docket No. PENN 2000-10

     Citation No. 7110585 was affirmed as a significant and
substantial violation and the result of Respondent's unwarrantable
failure.  However, the danger posed by the violation was found to be
not as great as determined by the inspector.  A civil penalty of
$3,000.00 was proposed by the Secretary.  I impose a penalty in the
amount of $2,500.00, upon consideration of the above and the factors
enumerated in section 110(i) of the Act.

     Order No. 7001591 was affirmed.  However, the violation was found
not to be significant and substantial or the result of the operator's
unwarrantable failure.  Rather, the violation was found to be unlikely
to result in a serious injury and the operator's negligence was found
to be moderate.   A civil penalty of $2,800.00 was proposed by the
Secretary.  I impose a penalty in the amount of $1,000.00, upon
consideration of the above and the factors enumerated in section
110(i) of the Act.

Docket No. PENN 2000-9

     Order No. 7001588 was affirmed.  However, the violation was found
not to have been significant and substantial or the result of the
operator's unwarrantable failure.  The operator's negligence was
moderate and the possibility of injury was unlikely.  The proposed
penalty for this violation was $5,000.00, which was based, in part,
upon a determination that the violation was a contributing factor to
the fatal accident, a position now abandoned by the Secretary.
Considering the gravity and negligence factors, as found, and that a
civil penalty of $90.00 would appear to be the result of application
of the formula specified in 30 C.F.R.  100.3, Respondent is directed
to pay a civil penalty of $1,000.00 within 45 days.

     Order No. 7001589 was affirmed.  However, the violation was found
not to have been significant and substantial or the result of the
operator's unwarrantable failure.  The operator's negligence was
moderate and the possibility of injury unlikely.  The proposed penalty
for this violation was $10,000.00.  However, that special assessment
was based upon a determination that the violation was a contributing
factor to the fatal accident, a position now abandoned by the
Secretary.  Considering the gravity and negligence factors, as found,
and that a civil penalty of $55.00 would likely have been imposed in a
normal assessment, Respondent is directed to pay a civil penalty of
$500.00 within 45 days.

     Order No. 7001594 was affirmed as a significant and substantial
violation that was the result of the operator's unwarrantable failure.
The proposed penalty for this violation was $20,000.00.  However, the
gravity of the violation was not as high as alleged because it was not
found to have been a contributing factor to the fatal accident.
Considering the gravity, as found, and the other factors specified in
section 110(i) of the Act, Respondent is directed to pay a civil
penalty of $10,000.00 within 45 days.

Docket No. PENN 99-254

     Citation No. 7001590 was affirmed in all respects.  A civil
penalty of $1,000.00 was proposed by the Secretary.  Considering the
factors specified in section 110(i) of the Act, Respondent is directed
to pay a civil penalty of $1,000.00 within 45 days.

Docket No. PENN 99-213

     Citations Nos. 7001403, 7001406, 7001327, 7001027 and 7001029
were affirmed in all respects.  A civil penalty of $55.00 was proposed
for each violation.  Considering the factors specified in section
110(i) of the Act, a civil penalty of $55.00 is imposed for each
violation and Respondent is directed to pay a civil penalty of $275.00
within 45 days.

     Citation No. 7001405 was affirmed.  However, the violation was
found not to have been significant and substantial.  A civil penalty
of $113.00 was proposed by the Secretary. Considering, the above and
the factors specified in section 110(i) of the Act, Respondent is
directed to pay a civil penalty of $55.00 within 45 days.

                              ORDER

Docket No. PENN 2000-10

     Citation No. 7001587 and Order No. 7001592, are hereby VACATED,
and the petition as to them is hereby DISMISSED.

     Citation No. 7110585 is AFFIRMED and Order No. 7001592 is
AFFIRMED as modified, and Respondent is directed to pay a civil
penalty of $3,500.00 within 45 days.

Docket No. PENN 2000-9

     Citation Nos. 7001401 and 7001595, are hereby VACATED, and the
petition as to them is hereby DISMISSED.

     Orders numbered 7001588, 7001589 and 7001594 are AFFIRMED as
modified, and Respondent is directed to pay a civil penalty of
$11,500.00 within 45 days.

Docket No. PENN 99-254

     Citation No. 7001453 is hereby VACATED, and the petition as to it
is hereby DISMISSED.

     Citation No. 7001590 is AFFIRMED and Respondent is directed to
pay a civil penalty of $1,000.00 within 45 days.

Docket No. PENN 99-213

     As to the citations vacated by the Secretary, Citation Nos.
7001403 and 7001028, the petition is DISMISSED.

     Citation Nos. 7001448, 7001586 and 7001593 are hereby VACATED and
the petition as to them is DISMISSED.

     Citations Nos. 7001403, 7001406, 7001327, 7001027 and 7001029 are
AFFIRMED, and Citation No. 7001405 is AFFIRMED, as modified, and
Respondent is directed to pay a civil penalty of $330.00 within 45
days.

                              Michael E. Zielinski
                              Administrative Law Judge

Distribution:

Donald K. Neely, Esq., Natalie A. Appetta, Esq., Office of the
Solicitor, U. S. Department of Labor, Suite 630E, The Curtis Center,
170 S. Independence Mall West, Philadelphia, PA 19106 (Certified Mail)

Mike Rothermel, President, Summit Anthracite, Inc., R. D. No. 3, Box
12-A, Klingerstown, PA 17941 (Certified Mail)

/mh