<DOC>
[DOCID: f:kt98121.wais]

 
HARLAN CUMBERLAND COAL CO.
May 12, 2000
KENT 98-121


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268


                          May 12, 2000

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. KENT 98-121
               Petitioner      :  A.C. No. 15-07201-03712
                               :
                    v.         :
                               :  C-2 Mine
HARLAN CUMBERLAND COAL CO.,    :
                Respondent     :

                            DECISION

Appearances:  Thomas A. Grooms, Esq., U.S. Department of Labor,
              Nashville, Tennessee, for Petitioner; H. Kent
              Hendrickson, Esq., Harlan, Kentucky, for Respondent.

Before:  Judge Cetti

     This case is before me upon a petition for assessment of
civil penalty under   105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.    801 et seq., the "Mine Act" in which the
Secretary charged Harlan Cumberland Coal Company (Harlan) with a
violation of a mandatory safety standard 30 C.F.R.    75.202(a).

     The general issues before me are whether Harlan violated the
cited standard as alleged in the citation and, if so, the
appropriate civil penalty to be assessed for the violation taking
into consideration the criteria in    110(i) of the Mine Act.

                     The Mandatory Standard

     The cited standard involved in this case is 30 C.F.R. 
75.202(a) which is a broadly worded mandatory standard that reads
as follows:

             (a) The roof, face and ribs of areas where
          persons work or travel shall be supported or
          otherwise controlled to protect persons from
          hazards related to falls of the roof, face or
          ribs and coal or rock bursts.
                    The Cited Condition or Practice

     The 104(a) citation charges Harlan with an S&S violation of
30 C.F.R.    75.202(a) for its alleged failure to protect persons
from the hazard of a coal burst from a pillar block while retreat
mining pillars.  The citation charges the operator with moderate
negligence for its failure to prevent what some of the mine
experts who testified agree was an unpredictable coal burst.  The
citation reads as follows:

          The coal ribs were not controlled to protect
          persons from the hazards of a coal burst in
          the three rooms in Second Left (MMU-005-0)
          off the Nine Right Panel, an active working
          section where persons worked and traveled.
          On November 20, 1996, retreat mining was
          started in the rooms and as the initial cut
          of coal was taken from the middle of the No.
          1 pillar block, a coal burst was triggered.
          The coal burst damaged the coal ribs of all
          nine pillars in the rooms, blowing in excess
          of 1,500 tons of coal into the room entries
          and crosscuts.  The blown coal injured six
          miners, two fatally.  The potential for a
          coal burst was known to the mine operator,
          expecially (sic) when mining beneath areas of
          high ground cover.  The mine operator had
          made some adjustments to the numbers of and
          size of the pillars in the rooms in the
          Second Left section; however, the adjustments
          were not sufficient to control the high
          ground pressures experienced by the active
          working section before the coal burst
          occurred.  This citation is issued as a
          result of MSHA's fatal accident investigation
          and the the violation contributed to the
          occurrence of the accident.

     MSHA charges Harlan with "moderate negligence" and proposes
a penalty of $50,000.00.

                          Stipulations

               1.  The C-2 mine is a medium-sized underground coal mine
producing 726,077 tons during the relevant period which, combined
with the additional production of 9,000 tons by the controlling
entity, results in an overall total production of less than one
million tons during the relevant period.  (Joint Ex. 1).

     2.  The amount of the appropriate penalty, if any, is in
issue but the proposed penalty "will not put Respondent out of
business."

     3.  The history of previous violations is shown on the
computer printout received into evidence as Government's Exhibit
1.

     4.  The operator demonstrated good faith in attempting to
achieve rapid compliance after notification of the alleged
violation.

                           Background

               The Harlan Cumberland Coal Company's C-2 mine is a medium-
sized mine located near Dione, Harlan County, Kentucky where the
operator is engaged in the mining of underground coal.  The C-2
mine employs a total of 55 miners and produces coal two shifts a
day, six days a week.  Equipment maintenance is performed on a
separate non-producing shift.  The mine has an active advancing
unit and an active retreat pillar-extraction unit.

     The mine is developed and serviced through three portals
consisting of drift openings into the Creech coal seam.  The coal
seam ranges in thickness from 42 to 96 inches.  Overburden above
the mine varies in the mountainous terrain from under 100 feet to
over 1,600 feet at the deepest point under Black Mountain.

                         The Coal Burst

               On November 20, 1996, there was an unpredicted coal burst in
the 005-0 section located in the Second Left panel off Nine Right
off of the No. 3 East Main entries of the C-2 mine.  The
overburden at the site of the accident was 1,420 feet.  At the
time of the coal burst, the foreman and his crew of eight other
miners in the retreat pillar unit were underground engaged in
retreat mining in the 005-0 section.  Two of the miners sustained
fatal injuries and four other miners in the crew sustained
varying degrees of injury.

     At the time of the November 20, 1996, coal burst, an MSHA
regular AAA Safety and Health inspection was ongoing and the
previous AAA MSHA inspection was completed less than two months
earlier.  It is undisputed that at the time of the accident
Respondent was following the mine's MSHA approved roof-control
plan.  The mining method and procedure that was being followed in
the deep cover area where the coal burst occurred had been
approved by MSHA as well as by the state regulatory mining
agency, the Kentucky Department of Mines and Minerals.  There was
also an ongoing inspection by state inspectors at the time of the
coal burst.

     On November 20, 1996, the day of the coal burst, the retreat
mining day shift crew, consisting of eight miners and their
foreman, arrived at 005-0 section about 6:25 a.m.  They were met
by Ernest Boggs, the maintenance foreman, who had conducted the
pre-shift examination earlier that morning.  Mr. Boggs reported
to foreman Darrell Lewis that nothing unusual had been found
during his pre-shift examination.  Instructions were issued to
the crews and production commenced about 6:30 a.m.  Successive
cuts were advanced in all three rooms without incident and the
room entries and crosscuts were connected to the gob.  The
continuous mining machine was then moved to the No. 1 room pillar
to take the initial cut beginning pillar extraction in that area.
It was the practice to extract room pillars first, followed by
adjacent entry pillars.  This initial cut had advanced into room
pillar No. 1 approximately 15 feet when at 2:08 p.m. it triggered
the coal burst.  The burst damaged the ribs of all nine room
pillars, over 1,500 tons of coal was blown into the rooms and
room crosscuts and, as previously stated, the burst resulted in
the death of two of the retreat section mining crew and the
injury of four other miners on that crew.  The No. 2 and 3
pillars were damaged, particularly along the gob side.  The
timber set at the mouth of the last open crosscut between numbers
1 and 2 rooms were broken and the roof in that area was damaged.
Practically all of the test holes which had been drilled during
the advance mining cycles contained cracks from 39 to 78 inches
into its roof as a result of the force of the coal burst.

     There was very little dispute with the conclusion of the
MSHA accident investigators that the presence of thick sandstone
layers above and below the coal seam enhance the ability of the
coal pillars in the area of the burst to withstand high stress
and store energy.  As room pillar No. 1 was mined, much of its
load was released and transferred to the already stressed
adjacent pillars.  It was this sudden pressure increase on the
adjacent pillars that was sufficient to cause failure of coal
near or into the core of these pillars resulting in this massive,
unpredicted coal burst.

     MSHA and the Kentucky Department of Mines and Minerals, as
part of the investigation, conducted interviews of persons with
knowledge of the facts and circumstances surrounding the coal
burst.  The parties offered into evidence as joint exhibits Nos.
2 through 26, the statements taken by MSHA.  These joint exhibits
include the statements MSHA took from the seven surviving members
of the crew that were engaged in retreat mining in section 005-0
at the time of the coal burst, namely:

          Jim Carr            Continuous Mining Machine Operator
                              (Joint Ex. 27)
          David Harris        Continuous Mining Machine Operator
                              (Joint Ex. 13)
          John Carroll        Roof Bolter/Scoop Operator
                              (Joint Ex. 8)
          Darrell Lewis       Foreman (Joint Ex. 16)
          Ron Painter         Shuttle Car Operator (Joint Ex. 22)
          Mike Pennington     Shuttle Car Operator (Joint Ex. 24)
          Mike Pacholewski    Repairman (Joint Ex. 21)

     In general it can be stated that the ground conditions on
the 005-0 section prior to the coal burst were thought to be
"normal" by the miners working in the section.  These miners
asserted that there were no "signs of abnormal pressure evident"
before the coal burst.  (Govt.'s Ex. 2 pg. 10).  The MSHA Report
of Investigation, Govt.'s Ex. 2, under heading "Summary and
Conclusion" sub-heading "Cause of Accident" at pg. 11 states:



                      Cause of the Accident

                    The investigation team concluded that the
          increasing size of the frontal gob, the
          existence of a side gob, and increasing depth
          of overburden (in excess of 1,400 feet),
          resulted in high stresses and pressures on
          the coal pillars as they were extracted.  The
          side gob had narrowed to approximately 130
          feet wide adjacent to the accident site.  The
          narrowness of the side gob may have
          restricted caving, contributing to excessive
          loading of the pillar line.

          The presence of thick sandstone layers above
          and below the Creech coal seam enhanced the
          ability of the coal pillars to withstand high
          stresses and store energy.  As room pillar
          No. 1 was mined, much of its load was
          released and transferred to the already
          highly stressed adjacent pillars.  This
          sudden pressure increase on the adjacent
          pillars was sufficient to cause failure of
          coal near or into the core of these pillars,
          and resulted in the burst.

     Curtiss Vance, who issued the citation, was the first
witness called by MSHA.  In addition to being a Federal Coal Mine
Inspector, he is a substitute MSHA investigator.  He testified
that investigators are assigned to go out to the mine sites where
fatalities or accidents have occurred and "investigate them and
come up with a conclusion as to the cause of the accident, and
any violations that we may find of the law."  He participated in
the investigation of the coal burst accident and in the
preparation of the MSHA accident investigation report which was
admitted into evidence as Government's Ex. 2.

     Asked as to the basis for his issuance of the citation,
Vance read from the citation "The coal ribs were not controlled
to protect persons from the hazards of a coal burst in the three
rooms in the Second Left off of the Nine Right panel, an active
working section where persons work and travel."

     When questioned further on this point the witness testified,
over objection by counsel for Respondent, that it was concluded
by the investigator "that the operator had knowledge for a
potential coal burst" especially when mining underneath high
cover.  He testified to better control the coal ribs so as to
protect persons from the hazards of a coal burst in the area
where the accident occurred, the operator did change his usual
mining procedure.  The operator "adjusted the mining of the rooms
off the panels from five entries down to three entries" to try to
better control the ribs, but these adjustments made by the
operator were not sufficient to prevent the coal burst.  (Tr. 45-
46).  This obvious conclusion was reached after the coal burst
occurred.  Vance also testified that the MSHA investigation
revealed that Harlan was following the mines' MSHA approved roof-
control plan at the time of the coal burst.

     On cross-examination Mr. Vance conceded that "you want good
caving" to take the weight of the overburden off the pillars that
you're trying to extract so as to reduce the weight that will be
transferred to the remaining pillars and that with good caving
you typically hear popping and cracking of the roof during the
shift and sometimes booming as the top falls.  Such sounds
indicates you're getting good caving.

     Mr. George Karabin was MSHA's only other witness.  Mr.
Karabin is a supervisory civil engineer with MSHA's Pittsburgh
Safety and Health Technology Center in the Roof Control Division.
He has been working in the area of roof control at that center
for 28 years.  He is a registered professional engineer in the
State of Pennsylvania.  Since the early 1980's his main focus has
been to look at mine design aspects that contribute to roof- or
ground-control problems.  (Tr. 66).

     Mr. Karabin testified that "deep cover causes pressure on
the pillar proportionate to the depth of the cover, and it causes
ground control problems."  (Tr. 133).  He defined a coal burst or
bump as "where a coal pillar from excess pressure suddenly and
violently fails and expels coal material from the rib into the
opening."  (Tr. 60).  He stated the coal burst results from
"excess pressure.  Vertical pressure squeezes the pillar to a
point where it can no longer handle that pressure.  The strength
of the coal pillar is exceeded."  He further stated "They
[pillars] don't fail in a slow controlled manner.  Rather they
store energy, perform very little and then suddenly explode."
(Tr. 62).

     Mr. Karabin was of the opinion that the massive sandstone
layer in the roof of the mine contributed to the pressure on the
pillars in the mine and to the coal burst which occurred on
November 20, 1996.  He stated that because of the thickness of
the sandstone layer it tended to bend rather than break and cave
in.  Consequently, the caving which would relieve the pressure on
the pillars at the face occurred only in the shale, leaving the
unbroken sandstone to continue to put pressure on the pillars in
the active mining area.  (Tr. 120-122).  He explained the
sandstone did not cave well because of its thickness.

     Mr. Karabin also testified that areas of the underground
mine adjacent to the fatal coal burst site included the property
line representing the end of the coal seam in which Harlan had
ownership rights.  This included a "point" or "corner" along this
property line where it formed a right angle, angling to within
240 feet of the face where the coal burst occurred.  (Tr. 87-90).
He testified "the property line itself controls or confines the
geometry of the mined area" since Harlan can't mine outside that
property line.

     Mr. Karabin testified that the Accident Investigation Team
found that the corner played a "role in the accident in the burst
itself.  Essentially, what it did was restricted cave-in directly
adjacent to the last set of rooms that were developed."  Mr.
Karabin stated that by restricting the caving this "point" or
"corner" shifted the overburden pressures to the pillars where
the burst occurred.

     Mr. Karabin testified that prior to the coal burst of
November 1996, there had been four incidents, in different areas
of the mine, where Harlan had a ground-control problem that would
indicate that there was a potentiality of a coal burst in areas
of deep cover.  He stated that "deep cover" is generally an area
that has a depth greater than 1,000 feet.

     Mr. Karabin then briefly described the history of four
ground-control incidents that occurred at the mine under deep
cover during the six years prior to the November 20, 1996, coal
burst.  The first event was a non-injury coal burst on January
11, 1990.  It occurred in the Second Right panel off the No. 2
East main.  There was no damage to equipment and no injury to any
person.  The second event was a "squeeze" in July 1994 in the
Right Eight section.  This squeeze was later described by other
mining experts as a floor squeeze.  The third incident was a
broad area of roof deterioration that occurred in May, June or
July 1996 in the First Left off No. 3 East main that was resolved
by Harlan, not mining the area and thus abandoning 29 pillars in
the area.  The fourth was a "squeeze" or "pressure point" in the
First Left off Nine Right panel in September 1996.  That area is
about 1,000 feet from the area where the coal burst of November
20, 1996 occurred.

     Without being specific, Mr. Karabin asserted that Harlan
should have changed its mining   method when retreat mining under
deep cover.  Mr. Karabin conceded, however, that in the Second
Left off Nine Right panel, Harlan did make a change in its usual
mining method from driving five entries into the barrier pillar
to driving three.  He indicated this change was a good thing that
would increase stability but that it was insufficient.  He
testified:

          I believe had they mined five rooms, the
          burst would have occurred.  It would probably
          have covered a broader area, since more rooms
          had been developed.  But, the change from
          five rooms to three rooms would not produce a
          significant enough increase in stability to
          prevent the burst from occurring.  (Tr. 165-
          166).

     Mr. Karabin conceded that by the time Harlan got to Nine
Right there were several mine plans floating around: Dr. Newman
had a plan; Dr. Unrug had a plan; and Mr. Kaiser had a plan.
There were "several things" offered to the company at that time
insofar as to going forward.  Harlan chose to go with Mr.
Kaiser's plan which involved driving perpendicular off Nine
Right.  With hindsight it is now obvious that the plan "did not
work out."  A massive coal burst occurred on November 20th.  At
the hearing Dr. Karabin was asked if, in his opinion, one of the
other mining plans had been selected, would Harlan have been able
to successfully mine the area in question i.e. without a massive
coal burst such as the one that occurred on November 20th.  Dr.
Karabin replied "Obviously, we have no way of knowing, they were
not implemented."  (Tr. 218 Lines 2, 3).

     On cross-examination, Mr. Karabin stated that it was the
four events described above, particularly the January 1960 non-
injury coal burst that first put the operator on notice that the
mine's Creech coal seam was capable of bursting when under deep
cover.  This non-injury,  no- property damage coal burst was
almost a mile from the site of the coal burst of November 20,
1996.  Mr. Karabin stated that was the first indication to the
operator that the coal seam was capable of bursting.  He went on
to testify that because the operator was aware of this and of the
increasing pressure under deeper cover, Harlan made  adjustments
in its mining procedure to better control the ground in the 005-0
section.  He conceded that this modification of the mining
procedure under deep cover was a good thing but was not effective
in preventing that November 1996 coal burst.  Without giving any
specifics or details as to his reasoning, Mr. Karabin asserted
that Harlan should have been able to determine that this
modification would be inadequate.

     Dr. Konstantine Unrug is a professor of mining engineering
at the University of Kentucky.  He has had the position for the
last 20 years.  During that time, his interest and research was
focused on strata control of coal fields.  At the university he
is responsible for mine design, underground construction and rock
mechanics.  He has dealt with the presence of high pressure and
high load conditions in deep mine-construction projects.

     Dr. Unrug stated that pressure exists in all mines.  In
destressing to get pressure release, noises occur which are
mainly thumping of different intensities.  In stiffer material
the sound can be stronger than in material which is soft.  In
trying to get caving you expect to hear popping, crackling and
thumping.  The absence of such noise is an indication that the
coal pillar is storing energy.  It is the absence of destressing
noise rather than the existence of such noise that would be cause
for concern.  A coal burst occurs when the stored elastic energy
in the coal is violently released by ejection of the coal matter
to the surrounding space.  (Tr. 297).

     In 1994 when the "squeeze" incident occurred, Dr. Unrug was
called to the mine as a consultant by Harlan's mine manager and
the mine engineer.  Dr. Unrug testified that his inspection and
investigation indicated the 1994 incident was a "floor heave",
that it was not a coal burst.  The floor of the mine actually
heaved up.  Dr. Unrug explained: "A floor heave is a type of
failure where the floor is the weakest element of the three
components which are the mine roof, the pillar, and the floor."
Dr. Unrug explained that the 1994 floor heave was caused by the
failure of a small seam of coal which was about eight or nine
inches below the surface of the floor.  Dr. Unrug again
emphasized that this 1994 incident was a "floor heave" and was
not a "coal burst."  He explained a "coal burst is an event in
which the stored elastic energy in the coal is violently released
by ejection of coal matter to the surrounding space."  (Tr. 298).
I credit Dr. Unrug's testimony and find this 1994 incident was
not a "coal burst."  It was a floor heave that was located
approximately 2,000 feet from the area where the November 1996
coal burst occurred.  (Tr. 296).  Dr. Unrug testified that the
occurrence of the 1994 floor heave was not an indication that a
coal burst would occur at a later date.  (Tr. 331).

     It was Dr. Unrug's opinion that none of the ground control
incidents described by Mr. Karabin were indicative of a future
coal burst. Based on the testimony of Dr. Unrug, I find that the
four prior incidents of ground control did not indicate that in
the future it was likely there would be a coal burst such as the
one that occurred on November 20, 1996 while Harlan was engaged
in retreat mining.

     It is undisputed that Harlan was following the approved
mining procedure for pillar extraction set forth in the mine's
roof-control plan.  This mine plan under 30 C.F.R.,  MSHA
   75.223(d)  requires the district manager to review the plan
every six months.  "The goal of this mine plan approval and
adoption process is a mine specific plan with provisions
understood by both the Secretary and the operator and with which
they are in full accord."  Once the plan is approved and adopted,
these provisions are enforceable at the mine as mandatory safety
standards - cf Jim Walter Resources, Inc.  9 FMSHRC at 907.

     Dr. David A. Newman, the second mining expert called by
Harlan, is a registered professional engineer in Kentucky, West
Virginia and Indiana and is a registered geologist in Kentucky.
From 1984 to 1988 he was an Assistant Professor of Mining
Engineering at the University of Kentucky during which time his
focus was on yielding pillars.  (Tr. 99).  His area of expertise
is rock mechanics, with particular concentration on underground
stability.  (Tr. 398).  As a mine expert and consultant, Dr.
Newman was contacted by Harlan to go underground and inspect the
2-C mine.  He inspected the same area Dr. Unrug inspected which
included the 1994 floor heave described by Dr. Unrug.  He
testified the floor heave "really has nothing to do with the coal
burst of November 1996 and has everything to do with the weakness
of the floor."  (Tr. 406-407).  Prior to the coal burst of
November 1996, Dr. Newman was consulted on other mining problems
by Harlan but states he was not consulted and made no
recommendation with respect to the retreat mining of the Second
Left off Nine Right.  When he did visit the area after the coal
burst and was told of Mr. Kaiser's recommendations to come off
Nine Right and mine perpendicular to Nine Right, Dr. Newman had
no problem with Mr. Kaiser's proposal.

     With respect to the four ground-control incidents Harlan had
in different areas of the mine during the past six years, Dr.
Newman testified that each of those four incidents was unique to
the area where they occurred and were not indicative that a coal
burst such as the one that occurred on November 20, 1996, would
happen.  (Tr. 421-426,  432-434).

     Dr. Newman testified that Harlan never refused any of the
recommendations he made that would affect safety of the miners.
He added that in one area where he made recommendations, Harlan
chose to abandon (not mine) the area.  (Tr. 481).

     When Dr. Newman was asked if he agreed with the MSHA
assumption that the operator should have known and have been
aware of a likely coal burst such as occurred on November 20,
1996, he replied as follows:

          I disagree.  The thing I would rely upon most
          heavily for that is the men who were in the
          mine, who had a better feel than I would for
          the typical noises on that section, for the
          typical behavior of the pillars, for the
          typical behavior of the roof, and who in
          other areas of the mine, did abandon areas
          that they found - where they did believe it
          to be unsafe.  I would more rely upon their
          habitual feel for what the conditions would
          be as more of an indicator of a potential for
          burst.  I mean, they saw it every shift,
          every day, were familiar, as is born out in
          the sworn testimonies, familiar with the
          behavior of the key cut, familiar with the
          behavior and immediate- ly after the key cut
          and familiar to the behavior of the typical
          pillar recovery.  (Tr. 434-435).


           FURTHER DISCUSSION, FINDINGS AND CONCLUSION

     The Secretary argues that looking back almost six years from
January 1990 to Novem-
ber 20, 1996, there were four incidents in different areas of the
mine where Harlan encountered ground-control problems under deep
cover exceeding 1,000 feet and Harlan, therefore, should have
been aware of the potential for a coal burst such as occurred on
November 20, 1996, in the Second Left off the Nine Right panel.
Because of these four ground-control incidents under deep cover
the MSHA now argues that Harlan should have changed its method of
retreat mining the pillars in the Second Left MMU0050 off the
Nine Right panel so as to prevent a potential coal burst such as
the one that occurred November 20, 1996.

     On evaluation of the expert testimony presented at the
hearing, I credit the testimony of Dr. Unrug and David Alan
Newman.  Based on testimony of these experts, I find the only
prior coal burst at the C-2 mine was the non-injury, no equipment
damaged coal burst that occurred in January 1990.  With respect
to that incident Dr. Unrug testified a coal burst occurring in
January 1990 with no coal burst in 1991 would not lead one to
predict there would be another coal burst one mile away, six
years later.  The reason for this Dr. Newman explained is the
"differences in geological composition" between different areas
in the mine.  He states that in the carboniferous strata of the
mine "changes are rapid" in the geological composition.  (Tr.
329).

     Dr. Unrug stated the differences in geologic composition in
a mine can be illustrated by the difference in geological
composition that one sees as one drives through Kentucky viewing
the difference in geological composition of strata along the
roadway highwalls.  (Tr. 329-330).  Different coal strengths
exist in different parts of the mine.  (Tr. 336).  This is why a
coal burst occurring in 1990, with no coal bursts in 1991, would
not lead one to predict that there would be another, one mile
away, six years in the future.  (Tr. 329).

     Hindsight alone will not support the citation.  Hindsight is
improperly judging what should have been done in light of what
ultimately happened, not in light of the circumstances at the
time.  The Commission has consistently held with respect to this
broadly worded standard, 30 C.F.R.    75.202(a) that "the adequacy
of particular roof support or other control must be measured
against the test of whether the support or control is what a
reasonably prudent person, familiar with the mining industry and
protective purpose of the standard, would have provided in order
to meet the protection intended by the standard."  Canon Coal
Co., 9 FMSHRC 667, 668 (Apr. 1987) (cited in Helen Mining Co., 10
FMSHRC 1672, 1675 (Dec. 1988) and in Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1277 (Dec. 1998).

     The Petitioner has the burden of proof. Harlan was mining
the 005-0 section in compliance with its approved mine plan.
Upon review, an evaluation of all the evidence, I find that a
preponderance of the evidence of record fails to establish that
Harlan did not provide what a reasonable, prudent person,
familiar with the industry and the protective purpose of the
standard, would have provided in light of the known facts and
circumstances that existed prior to the November 20, 1996, coal
burst.  Consequently,  the cited standard was not violated.  The
citation should therefore be vacated.


                              ORDER

     Citation No. 4622390 is VACATED and the proposed $50,000.00
penalty is set aside.


                              August F. Cetti
                              Administrative Law Judge


Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862   (Certified Mail)

H. Kent Hendrickson, Esq., RICE & HENDRICKSON, Woodland Hills,
Drawer 980, Harlan, KY 40831-0980   (Certified Mail)

Marco M. Rajkovich, Jr., Esq., WYATT, TARRANT & COMBS, 250 West
Main Street, Suite 1700, Lexington, KY 40507   (Certified Mail)