<DOC>
[DOCID: f:penn9423.wais]

 
CYPRUS EMERALD RESOURCES CORPORATION
August 24, 1998
PENN 94-23

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006

                           August 24, 1998

SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA)        :
                               :
           v.                  :  Docket Nos. PENN 94-23
                               :  PENN 94-166
CYPRUS EMERALD RESOURCES       :
  CORPORATION                  :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen and Beatty,
        Commissioners

                               DECISION

BY:  Jordan, Chairman; and Beatty, Commissioner[1]

     These civil penalty cases, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994)
("Mine Act" or "Act"), present the issues of whether the
placement of coal refuse by Cyprus Emerald Resources Corporation
("Emerald") was a "refuse pile" under 30 C.F.R.  77.215(f) and
(h); whether the accident-reporting and investigating standards
in 30 C.F.R.  50.10 and 50.11 were triggered by a collapse of
that coal refuse pile; whether Emerald violated 30 C.F.R. 
77.1608, requiring trucks to dump a safe distance from the edge
of the bank when on unstable ground; and whether certain of the
violations were significant and substantial ("S&S") and due to
Emerald's unwarrantable failure to comply with the standards.
Emerald petitioned the Commission to review Administrative Law
Judge William Fauver's determinations that Emerald violated the
standards, and challenged his S&S and unwarrantable failure
findings.  See 17 FMSHRC 2086 (Nov. 1995) (ALJ).  The Commission
granted review.  For the reasons that follow, we affirm in part,
vacate and remand in part, and reverse in part the judge's
decision.

**FOOTNOTES**

     [1]:  Chairman  Jordan  and  Commissioner Beatty are in the
majority on all issues presented.  Commissioner  Marks  joins  in
all  parts of the decision, except for section II. E., from which
he dissents.  Commissioners Riley and Verheggen join in all parts
of the  decision, except for sections II. B.2.a. and II. B. 2.b.,
from which they dissent.

                                  I.

                  Factual and Procedural Background

     Emerald owns and operates the Emerald No. 1 Mine, a coal
mine located in Greene County, Pennsylvania.  17 FMSHRC at 2087.
Emerald had an MSHA-approved impoundment plan for disposing of
refuse from its coal preparation plant.  Id.  The impoundment
plan entailed four stages of construction of an impoundment
embankment built from refuse material.  Id. at 2087; R. Ex. 7.
Under the plan, the impoundment embankment served to initially
impound a slurry pond,[2] which in its final stages would be
completely filled in with refuse.  Tr. 466.  The plan provided
that each layer of the impounding embankment should be compacted,
and provided for specific "lift" limitations in Stages II and
III.[3]  17 FMSHRC at 2088.  Stage IV development was expected to
be completed in the year 2002.  Id.  In May and June 1993, the
time of the subject citations and orders, the impoundment was in
Stage III.   Tr. 400.

     At that time, refuse material, along with raw coal, was
brought by conveyor belts from the Emerald mine to the
preparation plant located on the surface.  17 FMSHRC at
2088.  There, the coal and rock were separated by washing.
Id.  The refuse material was loaded on the refuse belt,
which carried it to a 500-ton refuse storage bin.  Id.  At
the bin, 35-ton dump trucks picked up the refuse and
disposed of it.  Tr. 45.  Constant disposal of the refuse in
the bin was essential for the preparation plant's
production; the plant could operate no more than one hour
without a functioning bin.  Tr. 184-85.  The dump trucks
picked up and disposed of approximately 70 loads of refuse
material per shift.  Tr. 229.  The mine worked three shifts
per day.  Tr. 250.

     Under the impoundment plan, refuse was hauled to the
impoundment embankment for use in its construction.  17
FMSHRC at 2088.[4]  There it was to be placed in lifts and
compacted pursuant to the impoundment plan.  17 FMSHRC at
2088-89.

     In inclement weather or when the road to the embankment
impoundment was too icy, snowy, muddy, or dusty to travel,
refuse was hauled to a location southwest of the bin known
as the "short haul" area.  Id. at 2089; Tr. 210-11, 228-29,
560, 674-76.  It was situated on top of a naturally
occurring embankment which abutted the shoreline of the
slurry pond.  17 FMSHRC at 2089.  At Stage IV, a portion of
the short haul area was projected to become part of the
impoundment structure.  Tr. 365, 417-19.

     After the dump trucks dumped their loads at the short haul
area, bulldozers spread the resulting piles, pushing refuse
over the edge of the embankment towards the slurry pond.  17
FMSHRC at 2089.  This practice continued for 18 years and,
by April 1993, the accumulation of refuse material in the
short haul area extended 1,000 feet in length, 60 to 80 feet
in height, and 300 feet in width.  Id.

     On April 2, 1993, MSHA received a complaint under section
103(g)(1)[5] of the Act concerning a partial collapse of the
short haul area.  Id. at 2087.  MSHA inspector Walter
Daniel, responding to the complaint, went to the mine and
observed that a section of the refuse pile measuring about
350 feet long, 60 feet high, and 40 feet wide had broken
off, caved in, and slid into the slurry pond.  Id. at 2087,
2090.  Because the pile was unstable with large cracks in
it, he issued an imminent danger order under Mine Act
section 107(a)[6] closing off the refuse pile.  Id. at 2087,
2093-94; Tr. 35-37.

     On April 5, 1993, Inspector Daniel, accompanied by MSHA
engineering specialists, resumed inspection of the mine and
issued three S&S citations under section 104(a) alleging
violations of section 77.215(f), for failure to construct
the refuse pile in such a manner as to prevent accidental
sliding and shifting of material (Citation No. 3658639);
section 77.215(h), for failure to construct the refuse pile
in compacted layers not exceeding 2 feet in thickness and
with a slope not exceeding 27 degrees (Citation No.
3658640); and section 77.1608(b), for operating mobile
equipment in the area that collapsed (Citation No. 3658700).
17 FMSHRC at 2087, 2101, 2103, 2106-07; Tr. 38-39.  MSHA
later issued special assessments in conjunction with all
three citations.  Gov't Ex. 2, 5, 6.

     During the investigation on April 5, Inspector Daniel
received another section 103(g)  complaint alleging an
earlier failure of the same refuse pile on December 27,
1992, when a 35-foot wide section of the refuse pile broke
off and slid toward the slurry pond.  17 FMSHRC at 2090.
Miner Ike Bihun was operating a bulldozer on the part of the
refuse pile that failed.  Id.; Tr. 75-76.  The bulldozer
slid about 30 feet down the refuse pile toward the slurry
pond and was partially buried in refuse material.  17 FMSHRC
at 2090; Tr. 553-54.  Ropes were thrown down to the trapped
miner to help him climb up the slope of the refuse pile.  17
FMSHRC at 2090.

     As a result of investigating the December complaint,
Inspector Daniel issued Citations Nos. 3658682 and 3658696,
alleging violations of sections 50.10 and 50.11(b) for
failure to notify MSHA of the December incident and for
failure to investigate it.  Id. at 2094, 2096.  He indicated
that the section 50.11(b) violation was S&S and attached a
special assessment to the citation.  Gov't Ex. 10.
Inspector Daniel also issued Order No. 3768690 and Citation
No. 3658683, under section 104(d)(1), alleging S&S and
unwarrantable violations of sections 77.215(f) and 77.215(h)
as a result of the December incident.  17 FMSHRC at 2100,
2104; Gov't Ex. 8, 11.  The inspector also issued Order No.
3658698 pursuant to section 104(d)(1) alleging an S&S and
unwarrantable failure violation of section 77.1608(b) based
on the December accident.  17 FMSHRC at 2105-06; Gov't Ex.
7.

**FOOTNOTES**

     [2]:  "Slurry"  is  the  fine carbonaceous discharge from a
 mine  washery.   American  Geological  Institute,  Dictionary  of
 Mining,  Minerals  and  Related   Terms  at  516  (2d  ed.  1997)
 ("DMMRT").  A "slurry pond" is any  natural or artificial pond or
 lagoon for settling and draining the  solids from washery slurry.
 Id. at 517.

     [3]:   A  "lift"  is the distance between  any  two  levels.
 DMMRT at 311.  The impoundment  plan  provided that, at Stage II,
 "[a]fter   placing  the  initial  five-foot   layer   embankment,
 construction  should consist of lifts of coarse coal refuse which
 are a maximum of two feet thick and compacted . . . ."  R. Ex. 7,
 at 5-7.   Stage III also required placement of refuse in two-foot
 maximum lifts and compaction.  Id. at 5-8.

     [4]:  The  impoundment  area,  commonly  referred  to as the
 "regular  lay  down" area, was located down a slope about a  mile
 from the preparation  plant,  a five or six-minute drive from the
 bin.  17 FMSHRC at 2088; Tr. 183-84, 228-29, 573, 695.

     [5]:  Section 103(g)(1) provides in pertinent part:

          Whenever a representative of the miners or a miner in the
case of a coal or other mine where there is no such representative
has reasonable grounds to believe that a violation of this [Act] or
a mandatory health or safety standard exists, or an imminent danger
exists, such miner or representative shall have a right to obtain
an immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger.

30 U.S.C.  813(g)(1) .

     [6]:  Section 107(a) provides in part:

If, upon any inspection or investigation of a coal or other
mine which is subject to this [Act], an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent of the area of such mine throughout which the
danger exists, and issue an order requiring the operator
of such mine to cause all persons, except those referred
to in section [104(c)], to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
imminent danger and the conditions or practices which
caused such imminent danger no longer exist.

30 U.S.C.  817(a).

                                 II.

                             Disposition

         A.  Whether the Material at Issue Was a Refuse Pile

     The judge found that the refuse material was a refuse pile
that had built up over many years. 17 FMSHRC at 2095.
Emerald argues that the judge erred in characterizing the
refuse material at issue as a "refuse pile."  E. Br. at 12-
18.  It asserts that the short haul area does not meet the
requirement set forth in 30 C.F.R.  77.217(e).  Id. at 13.
Emerald argues that the material was only temporarily
stockpiled and was part of the impoundment area, which did
not fail.  Id. at 12-17; PDR at 9-10, 13 n.4.  The Secretary
responds that substantial evidence supports the judge's
finding that the material at issue was a refuse pile, not a
temporary stockpile nor part of the impoundment structure.
S. Br. at 13-19.  Moreover, the Secretary asserts that
because MSHA, in the past, did not treat the refuse material
as a violative refuse pile does not estop the agency from
citing a violation on this occasion.  Id. at 18 n.4.

     "Refuse pile" is defined in section 77.217(e) as

     [A] deposit of coal mine waste . . .
     excavated during mining operations or
     separated from mined coal and disposed of
     on the surface as waste byproducts of
     either coal mining or preparation
     operations.  Refuse pile does not mean
     temporary spoil piles of removed overburden
     material associated with surface mining
     operations.

     The "language of a regulation . . . is the starting point
for its interpretation."  Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987) (citing Consumer Product Safety
Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).
Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to
absurd results.  Id.; Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993).

     Under the plain terms of section 77.217(e), the short haul
area qualified as a refuse pile.   The pile was an extremely
large deposit of coal mine waste that had been "disposed of
on the surface as waste byproducts" of Emerald's preparation
plant, as set forth in the regulation.  We reject Emerald's
argument that, because the refuse was only temporarily
stockpiled, it was not "finally" disposed as contemplated in
section 77.217(e).  E. Br. at 13-14.  That section does not
require that the material be finally disposed.  In addition,
substantial evidence[7] supports the judge's finding that
the material at the short haul area was not in a temporary
stockpile, as Emerald asserts.  17 FMSHRC at 2089.  The
refuse pile accumulated over eighteen years.  Tr. 676.  The
enormous size of the refuse pile also belies its
characterization as "temporary."  MSHA engineer Mazzei
estimated that the volume of the refuse pile was between
750,000 to 1 million tons.  Tr. 332.  Compare RNS Services,
Inc., 18 FMSHRC 523, 524 (April 1996) (refuse pile 1,200
feet long, 500 feet wide, 90 feet high), aff'd, 115 F.2d 182
(3rd Cir. 1997).  The heavy equipment operators testified
that, although some of the refuse was moved from the short
haul area to the impoundment structure, this occurred only
on Sundays or on off days and that a great portion of the
refuse was never moved from the pile.  Tr. 208-12, 219, 230.
Emerald's long-term practice of bulldozing the refuse over
the edge of the embankment also indicates that Emerald did
not treat the refuse pile as a temporary stockpile.
Accordingly, we conclude that substantial evidence supports
the judge's finding that, "[a]lthough a small part of the
refuse on the refuse pile was used at times to build up the
impoundment embankment, the great majority of the refuse
deposited on the refuse pile was pushed over the edge toward
the slurry pond to make room for more refuse material."  See
17 FMSHRC at 2089-90.

     We are not persuaded by Emerald's argument that, because the
area was eventually to become part of the impoundment and
was covered by an impoundment permit number, it should have
been considered as an impoundment structure, not a refuse
pile.  E. Br. at 14-15.   "Impounding structure" is defined
in 30 C.F.R.  77.217(c) as "a structure which is used to
impound water, sediment, slurry, or any combination of such
materials."  Substantial evidence supports the judge's
finding that the refuse pile was not intended to be and did
not serve as an impounding structure.  17 FMSHRC at 2090.
Although at Stage IV, a portion of the area where the refuse
pile stood would become part of the impoundment, at that
point the material would have to be re-graded and compacted
to conform to the impoundment plan.  Tr. 419, 672, 683.
MSHA's engineer testified that in April 1993, there was no
indication of the operator's intention to comply with the
impoundment plan because the pile was well beyond the area
where the impoundment slope was to be located and the
conditions of the pile were very different from those
outlined in the plan.  Tr. 409-10, 449.  Emerald senior
engineer Terry Dayton testified that the refuse material in
April 1993 was not intended to impound the slurry pond.  Tr.
637, 672-73.  Emerald preparation plant manager Alan White
testified that there was "no doubt" that the refuse was
piled beyond what was intended in the impoundment plan.  Tr.
520, 542.  Likewise, MSHA engineers Daniel Mazzei and George
Gardner testified that the pile of refuse at the short haul
area did not serve to impound, but instead, "fulfilled all
the definitions of a refuse pile."  Tr. 314, 382, 409-10,
431-32, 445.

     The record also does not support Emerald's contentions that,
because MSHA only required a small portion of the refuse
pile to be reworked to abate the violative condition, the
refuse pile met the Secretary's requirements.  E. Br. at 17.
Substantial evidence establishes that the slope that failed
was cut down and regraded to an appropriate slope and the
entire area was compacted with waste material placed in two-
foot lifts.  Tr. 360, 429-30.  MSHA engineer Gardner, who
reviewed the plans for regrading the area, testified that
Emerald was also required to provide continued engineering
oversight of the area and to install equipment to constantly
measure the core pressures in the pile.  Tr. 430.  Finally,
Emerald's assertion that MSHA previously had not treated the
short haul area as a refuse pile is not persuasive.  It is
well established that estoppel does not operate against the
government's enforcement powers.  King Knob Coal Co.,  3
FMSHRC 1417, 1421 (June 1981); accord Emery Mining Corp. v.
Secretary of Labor, 744 F.2d 1411, 1416-17 (10th Cir. 1984).

     In sum, we affirm the judge's conclusion that the material
at issue constituted a refuse pile.

                        B.  Part 50 Violations

      The judge found that the failure of the refuse pile on
December 27, 1992, qualified as a reportable accident under
section 50.2(h)(10).  17 FMSHRC at 2095.  He then determined
that Emerald violated section 50.10 when it did not contact
MSHA after learning that part of the refuse pile failed on
December 27.  Id. at 2095-96.  Finding that the violation
was "due to high negligence," the judge assessed a penalty
of $400.  Id. at 2096.  The judge also found that Emerald
violated section 50.11(b) by not investigating and
developing a report of the December failure, including
measures needed to prevent a recurrence.  Id. at 2098.  In
addition, the judge determined that the section 50.11(b)
violation was S&S, reasoning that "[c]ontinued operations
without investigating the causes of a failure of a refuse
pile and the measures needed to prevent a recurrence could
contribute significantly and substantially to another
failure of the refuse pile with a risk of serious injury."
Id. at 2099.  Concluding that the violation was due to high
negligence, the judge assessed a penalty of $3,000.  Id. at
2099-2100.

     According to Emerald, because no refuse pile existed, the
judge erred in finding violations of sections 50.10 and
50.11(b).  PDR at 9.  Further, Emerald maintains that the
judge's finding of a violation of section 50.11(b) is not
supported by substantial evidence because it prepared and
submitted a report to MSHA in April 1993, nearly two months
before the issuance of the citation.  Id. at 11; E. Br at 25
n.9.  Emerald also argues that, if the Commission accepts
MSHA's interpretation of the incident as an accident, then
sections 50.10 and 50.11(b) are impermissibly vague because
no other operator was aware of the reporting requirement for
such events.  E. Br. at 24 n.8.  Emerald also submits that
the judge erred in holding that the violation of section
50.11(b) was S&S because Part 50 is not a mandatory safety
or health standard and section 104(d)(1) only provides for
S&S findings with respect to such standards.  PDR at 12; E.
Br. at  25.

     The Secretary responds that the judge correctly determined
the December failure to be a reportable accident under
section 50.10.  S. Br. at 19-25.  According to the
Secretary, under the plain meaning of the section and its
regulatory purpose, the failure of the refuse pile
constituted an accident.  Id. at 19-24.  Alternatively, the
Secretary asks for deference to her reasonable
interpretation of section 50.10.  Id. at 20.  Thus, the
Secretary asserts, Emerald's failure to immediately report
and investigate the accident constituted violations of
sections 50.10 and 50.11(b).  Id. at 25-28.  The Secretary
contends that a violation of section 50.11(b) may properly
be designated S&S under section 104(d) of the Mine Act and
argues that her interpretation is reasonable and entitled to
deference.  Id. at 28-35.

1.  Whether the December Incident Was an "Accident" Under Part 50

     "Accident" is defined in Part 50 as "[a]n unstable condition
at an impoundment, refuse pile, or culm bank which requires
emergency action in order to prevent failure, or which causes
individuals to evacuate an area; or failure of an impoundment,
refuse pile or culm bank."  30 C.F.R.  50.2(h)(10) (emphasis
added).  Under the plain terms of this definition, failure of a
refuse pile qualifies as an accident.  Thus, the failure of the
pile on December 27, 1992, when a 35-foot portion of the pile
collapsed, causing a bulldozer to slide down 30 feet and become
partially buried, qualified as an accident.

     We reject Emerald's argument that, for a refuse pile failure
to constitute an accident, it must require emergency action and
involve a failure of a significant portion of the pile.  PDR at
10; E. Br. at  21-25.  Emerald reads into section 50.2(h)(10)
requirements that are not in the provision.  Similarly, we find
unconvincing Emerald's argument that MSHA's revision of section
50.2(h) to exclude various events from the accident definition
somehow indicates that the December collapse of the refuse pile
does not qualify as a reportable accident.  E. Br. at 21-23.
Emerald overlooks the simple fact that, in the present section
50.2(h), MSHA specifically added the failure of a refuse pile to
the definition of "accident."  Further, Emerald incorrectly
asserts that the term "accident" in section 50.2(h) should be
narrowly construed because its companion section 50.12 requires
preservation of an accident site, often compelling an operator to
shut down production.  E. Br. at 23-24.  Emerald's proposed
construction directly contravenes the Commission's long-held
principle that the Mine Act  and its regulations must be broadly
construed to further the Act's remedial goals.   See, e.g., Hanna
Mining Co., 3 FMSHRC 2045, 2048 (Sept. 1981); accord Secretary of
Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1437 (D.C. Cir.
1989) ("Congress intended the [Mine] Act to be liberally
construed").

     Further, we are not persuaded by Emerald's second estoppel
argument based on the fact that MSHA has not previously cited
operators for neglecting to report similar refuse pile failures.
See King Knob, 3 FMSHRC at 1421-22.  In addition, we reject
Emerald's argument that, because no other operators have reported
such accidents, the regulation is impermissibly vague.  From our
conclusion that the definition of accident in section 50.2 is
plain, it follows that section 50.10 provided the operator with
adequate notice of its requirements.[8]  See Bluestone Coal
Corp., 19 FMSHRC 1025, 1031 (June 1997) (adequate notice provided
by unambiguous regulation).

     Accordingly, we affirm the judge's conclusion that the
December failure was an accident.  It was undisputed that
Emerald failed to immediately report the accident to MSHA.
17 FMSHRC at 2095; Tr. 491-92.  We therefore affirm that
Emerald violated section 50.10, requiring immediate
notification of accidents.

2.  Violation of Section 50.11(b)

     Section 50.11(b) requires that an operator investigate all
     accidents and prepare a report that includes, inter
     alia, the steps the operator will take to prevent a
     recurrence.[9]  Substantial evidence supports the
     judge's finding that Emerald did not investigate the
     December incident until after MSHA began its
     investigation in April 1993.  17 FMSHRC at 2098; Tr.
     564-65, 610-12, 618-20.  We reject Emerald's argument
     that, because section 50.11(b) establishes no time
     frame for preparation and submission of the report and
     because it submitted a report to MSHA in April 1993,
     no violation occurred.  E. Br. at 25 n. 9.  In Steele
     Branch Mining, 15 FMSHRC 597, 602 (Apr. 1993), the
     Commission construed section 50.11(b) to require
     operators to investigate all accidents and to develop
     a report of each investigation within a reasonable
     period of time.  The Commission reasoned that the
     purpose of the regulation "`is to `ensure that
     operators are in fact investigating accidents and
     injuries and are engaged in the constant upgrading of
     health and safety practices.'"  Id. (quoting
     introduction to final rule at 42 Fed. Reg. 65,534
     (1977)).  In Steele Branch, the Commission addressed
     the question of how much time an operator has to
     submit an investigation report after MSHA's request.
     The Commission held that "[w]here a standard is silent
     as to the period of time required for compliance, the
     Commission has imputed a reasonable time."  15 FMSHRC
     at 601.  The Commission determined that a report
     submitted less than a month after an accident
     satisfied the reasonableness requirement, especially
     in view of  the operator's oral notification to MSHA
     less than a week after the accident of the "critical
     portion of the report, i.e., the preventive steps [the
     operator] would take to avoid a similar accident."
     Id. at 602.  Emerald's preparation and submission of
     its report, initiated only after a second accident
     four months after the incident, does not fall within
     the bounds of reasonableness.  We also find somewhat
     disingenuous Emerald's assertion that, because it
     submitted a report for the December accident on April
     8, more than a month before the citation was issued,
     it did not violate the regulation.

     Nor are we persuaded by Emerald's argument that the judge
     erred by construing section 50.11(b) to require
     immediate submission of the report.  E. Br. at 25 n.9.
     We do not read the judge's decision as requiring
     immediate submission of the report.  The judge
     determined that Emerald violated the regulation
     because it did not investigate the December failure
     until prompted by MSHA four months after the accident.
     17 FMSHRC at 2099.  Accordingly, we affirm the judge's
     conclusion that Emerald violated section 50.11(b).

a.  Whether This Violation May Be Designated S&S

     Emerald contends that, because this violation involves a
regulation which is not a mandatory health or safety
standard, it may not be designated S&S.[10]  E. Br. at
25.  Emerald relies on section 104(d) of the Mine Act,
which states in relevant part:

     If . . . the Secretary finds that there has
been a violation of any mandatory health or
safety standard . . . and such violation is
of such nature as could significantly and
substantially contribute to the cause and
effect of a . . . mine safety or health

**FOOTNOTES**

     [7]:  When  reviewing an administrative law judge's factual
determinations, the  Commission is bound by the terms of the Mine
Act to apply the substantial evidence test.  30 U.S.C.
  823(d)(2)(A)(ii)(1).    "Substantial   evidence"  means  "such
relevant evidence as a reasonable mind might  accept  as adequate
to support [the judge's] conclusion." Rochester & Pittsburgh Coal
Co.,  11  FMSHRC  2159,  2163  (Nov.  1989) (quoting Consolidated
Edison Co. v. NLRB, 304 U.S. 197, 229 (1938)).

     [8]:    Section 50.10 provides in  pertinent part that "[i]f
an  accident  occurs, an operator shall immediately  contact  the
MSHA District or  Subdistrict Office having jurisdiction over its
mine."

     [9]:   Section 50.11(b) provides in pertinent part:

     Each  operator  of  a  mine  shall
     investigate    each   accident   and   each
     occupational  injury  at  the  mine.   Each
     operator shall  develop  a  report  of such
     investigation.  .  .  .   An operator shall
     submit a copy of an investigation report to
     MSHA at its request.  Each  report prepared
     by the operator shall include,

     (8) A description of  steps  taken to prevent a similar
     occurrence in the future; . . .

     [10]:  Mandatory health and safety standards  are
     defined    as    "the   interim   standards
     established by [titles]  II and III of this
     [Act]   and   the   standards   promulgated
     pursuant  to  [title] I of this [Act]."  30
     U.S.C.  802(l).  The standard at issue was
     promulgated under  section  508,  which  is
     located  in  Title  V  of  the Mine Act and
     provides   that   "[t]he   Secretary,   the
     Secretary of Health and Human Services, the
     Commissioner  of Social Security,  and  the
     [Interim Compliance]  Panel  are authorized
     to  issue  such  regulations as each  deems
     appropriate to carry  out  any provision of
     this [Act]."  30 U.S.C.  957.
     hazard, . . . he shall include such finding
     in any citation given to the operator under
     this [Act].

30 U.S.C.  814(d)(1) (emphasis added).[11]

     In addition, Emerald points out that the Commission has held
that to find a violation S&S, the Secretary must prove: (1) the
underlying violation of a mandatory health or 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 injury;
and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.  E. Br. at 25 (citing Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (emphasis added)).

     In response, the Secretary argues that, in issuing the
particular citation under review, she relied on the broad
authority granted by section 104(a), which provides:

     If . . . the Secretary believes that an
     operator of [a] . . . mine . . . has
     violated this [Act], or any mandatory
     health or safety standard, rule, order, or
     regulation promulgated pursuant to this
     [Act], he shall, with reasonable
     promptness, issue a citation to the
     operator.  Each citation shall be in
     writing and shall describe with
     particularity the nature of the violation .
     . . .

30 U.S.C.  814(a) (emphasis added).  See S. Br. at 28-35.

     The Secretary notes further that the Commission has
previously held that a section 104(a) citation may be designated
S&S as a way of describing the nature of the violation.  Id.
(citing Consolidation Coal Co., 6 FMSHRC 189, 192 (Feb. 1984)).
The Secretary contends that the reference to "mandatory health or
safety standard" in sections 104(d) and (e) was not intended to
shield other serious violations from the enforcement mechanisms
that Congress provided in those statutory provisions.  S. Br. at
29-35.

     The judge below found that an allegation of a significant
and substantial violation in a 104(a) citation is simply an
"allegation of gravity, not an assertion of jurisdiction to apply
the sanctions of [section] 104(d)."  17 FMSHRC at 2099.  The
judge therefore declined to reach the issue of "whether the
sanctions of [section] 104(d) apply to a violation of Part
50."[12]  Id.

     On appeal, the parties have urged us to decide whether the
Secretary is precluded from attaching the S&S designation to a
violation if the underlying regulation does not meet the
statutory definition of a mandatory health or safety standard.
Emerald argues that the designation of S&S is more than an
allegation of gravity affecting the amount of the penalty
proposed, since it allows the violation to be included in a
determination of whether the operator has engaged in a pattern of
violations under section 104(e).  E. Br. at 26.  Moreover,
although the enforcement sanctions available in section 104(d)
were not sought in the instant case, the Secretary disputes
Emerald's assertion that she cannot apply that provision to a
violation that does not involve a mandatory health or safety
standard.  S. Br. at 31-34.  We will therefore address the issue
squarely raised by the parties and consider whether the reference
to mandatory health or safety standard in sections 104(d) and
104(e) precludes the Secretary from attaching the S&S designation
to a violation of another regulatory requirement, regardless of
the risk of harm that the violation may pose.

     The first inquiry in statutory construction is "whether
Congress has directly spoken to the precise question in issue."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,
584 (Apr. 1996).  If a statute is clear and unambiguous, effect
must be given to its language.  Chevron, 467 U.S. at 842-43;
accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C.
Cir. 1990).  The examination to determine whether there is such a
clear Congressional intent is commonly referred to as a "Chevron
I" analysis.  Coal Employment Project v. Dole, 889 F.2d 1127,
1131 (D.C. Cir 1989); Thunder Basin, 18 FMSHRC at 584; Keystone
Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).  In conducting
our analysis, we utilize traditional tools of construction,
including an examination of the particular statutory language at
issue, and the language and design of the statute as a whole.
Thunder Basin, 18 FMSHRC at 584 (quoting K Mart Corp. v. Cartier,
Inc., 496 U.S. 281, 291 (1988)).  If the statute is ambiguous or
silent on a point in question, a second inquiry, commonly
referred to as a "Chevron II" analysis, is required to determine
whether an agency's interpretation of a statute is a reasonable
one.  See Chevron, 467 U.S. at 843-44; Coal Employment Project,
889 F.2d at 1131; Thunder Basin Coal Co., 18 FMSHRC at 584 n.2;
Keystone, 16 FMSHRC at 13.

     Although section 104(d) refers explicitly to "a violation of
any mandatory health or safety standard," that same provision
authorizes the Secretary to include her S&S designation "in any
citation given to the operator under" the Mine Act.  30 U.S.C. 
814(d)(1) (emphasis added).  The particular citation under review
refers to section 104(a), which instructs the Secretary to cite
violations of the Act, as well as violations of "any mandatory
health or safety standard, rule, order, or regulation promulgated
pursuant to" the Mine Act.  30 U.S.C.  814(a).  This provision
treats a violation of a mandatory health or safety standard
identically to a violation of the Act and to violations of other
rules, orders or regulations promulgated pursuant to the Act.
Moreover, section 104(a) provides that each citation "shall
describe with particularity the nature of the violation."  Id.
As the Commission has held, "[t]he `nature' of a violation refers
to its characteristics and properties. . . . [and] [t]hat one of
those characteristics may be whether the violation is significant
and substantial is made clear by section 104(d)(1)."
Consolidation, 6 FMSHRC at 192.[13]  Thus pursuant to section
104(a), a citation alleging a violation of  a regulatory
requirement could be designated S&S if the violation posed a
reasonable likelihood of injury.

     The Commission has made clear that any citation issued under
the Act is issued pursuant to the broad authority granted to the
Secretary by section 104(a).  Although citations and orders
issued under section 104(d) contain special findings, they are
nevertheless derived from and are a part of the Secretary's
general authority to issue citations under section 104(a).  This
view was articulated in Utah Power and Light Co., 11 FMSHRC 953,
956 (June 1989) ("UP&L"), where the Commission held that section
104(d) is not a separate basis for the issuance of a citation
independent from section 104(a).  The Commission explained that
"[s]ection 104(a) is the source of the Secretary's power to issue
citations" and that "the statutory language makes clear that
`significant and substantial' and `unwarrantable failure'
determinations by MSHA inspectors constitute special findings
that are `includ[ed]' in any citation" issued under the authority
of section 104(a).  Id. (emphasis and alteration in original).
UP&L expressly approved Nacco Mining Co., 9 FMSHRC 1541, 1545 &
n. 6 (Sept. 1987), and clarified that a "section 104(d)(1)
citation" is only a term of convenience, and that it refers to a
section 104(a) citation with the special findings described in
section 104(d).  11 FMSHRC at 957.  Likewise, a pattern notice
under section 104(e) is based on the number of prior S&S
citations the operator has received under section 104(a).  See
Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1078 (D.C. Cir
1987).

     Thus, we cannot consider sections 104(d) and 104(e) in
isolation from section 104(a) when deciding whether Congress
intended to restrict the application of sections 104(d) and
104(e) to certain kinds of standards.[14]  Reading sections
104(d) and 104(e) together with section 104(a) gives rise to an
ambiguity as to whether Congress intended the Secretary's
enforcement ability to depend on the fact that the violation
concerned a standard promulgated under section 101 of the Act, as
opposed to one contained in the Act itself or one promulgated
pursuant to section 508 of the Act.[15]

     Because the statute is ambiguous on this point, we must
determine whether the Secretary's interpretation is reasonable,
and thus entitled to deference.  Deference is accorded to "an
agency's interpretation of the statute it is charged with
administering when that interpretation is reasonable."  Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994)
(citing Chevron, 467 U.S. at 844).  The agency's interpretation
of the statute is entitled to affirmance as long as that
interpretation is one of the permissible interpretations the
agency could have selected.  Chevron, 467 U.S. at 843; Joy
Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 995 (10th
Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997); see also
Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir.
1995).

     The Secretary argues that the Mine Act must be read as one
harmonious whole.  S. Br. at 35.  She contends that, consistent
with the statute's graduated enforcement scheme, violations
posing a likelihood of harm can be designated S&S, regardless of
whether they involve a mandatory health or safety standard or
some other mandatory requirement under the Act.  Id.

     The citation under review charges a violation of 30 C.F.R. 
50.11(b), which states in pertinent part that "[e]ach operator of
a mine shall investigate each accident and each occupational
injury at the mine.  Each operator shall develop a report of each
investigation."

     We note at the outset that the cited conduct in this case
involves a failure to comply with a requirement specified in the
statute itself.  The Part 50 standard at issue here implements
the language of section 103(d) of the Act, which states that
"[a]ll accidents . . . shall be investigated by the operator or
his agent to determine the cause and the means of preventing a
recurrence.  Records of such accidents and investigations shall
be kept and the information shall be made available to the
Secretary . . . ."  30 U.S.C.  813(d).  In explaining this
statutory requirement, the report of the Senate Committee on
Human Resources, the committee responsible for drafting the Mine
Act ("Senate Committee"), emphasized that:

     This provision reasserts the Committee's
     view that the primary responsibility for
     mine safety and health is the operator's
     and requires the operator to maintain a
     continuing program for mine safety and
     health.  Such accidents may forwarn mine
     operators of potential hazards, and they
     should thus be investigated, and remedial
     action should be taken regardless of
     whether actual injuries occurred.  The
     operator is required to keep a record of
     his actions to prevent recurrence of
     similar accidents. . . .

     . . . [T]he Committee recognizes
     that adequate investigation of  accidents
     by operators assists operators to develop
     responsive and responsible in-house safety
     and health programs.

S. Rep. No. 95-181, at 28 (1977) ("Senate Report"), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 616 (1978) ("Legis. Hist.").

     If we determine, therefore, that the Secretary can never
apply the sanctions contained in sections 104(d) and 104(e) to
violations involving a failure to investigate the cause of an
accident, we must of necessity conclude that Congress intended
the Secretary to have less enforcement tools at her disposal when
the violation involves a safety requirement that Congress saw fit
to include in Title I of the Act than when the violation involves
a requirement

**FOOTNOTES**

     [11]:  The  other  relevant provision of the Mine Act
referring to an S&S designation is section 104(e), which provides
in part:

          If  an  operator has a pattern  of
     violations of mandatory  health  or  safety
     standards  in  the coal or other mine which
     are   of   such  nature   as   could   have
     significantly and substantially contributed
     to the cause  and  effect  of coal or other
     mine health or safety hazards,  he shall be
     given  written  notice  that  such  pattern
     exists.

30 U.S.C.  814(e) (emphasis added).

     [12]:  Regulations contained in Part 50 of 30 C.F.R. pertain
to  "Notification,  Investigation,  Reports and  Records  of
Accidents,   Injuries,  Illnesses,  Employment,   and   Coal
Production in Mines[.]"

     [13]:  The  partial  dissent  of  Commissioners  Riley  and
Verheggen  erroneously   contends   that   the   holding  of
Consolidation, 6 FMSHRC at 192, must be linked to violations
of  mandatory health or safety standards.  Slip op.  at  39.
The case  simply  never  presented  the  question of whether
violations of other regulations cited under  section  104(a)
could be S&S.

     [14]:  In  Emerald Mines Corp., 9 FMSHRC 1590 (Sept. 1987),
aff'd,  863  F.2d   51  (D.C.  Cir.  1988),  the  Commission
similarly declined to construe section 104(d) apart from the
enforcement  authority   granted  by  section  104(a).   The
operator in that case unsuccessfully  contended  that, since
section  104(d) referred to unwarrantable failure violations
found "upon any inspection," a section 104(d) citation could
not  be  based   upon  a  violation  discovered  through  an
"investigation."  Id. at 1594.  In affirming the Commission,
the  Court of Appeals  considered  the  fact  that  sections
104(a)  and 107(a) authorize citations and withdrawal orders
for violations  found "upon inspection or investigation" and
concluded that the  Secretary  was  not limited to issuing a
section  104(d)  citation  for  only a violation  discovered
during the course of an inspection.  863 F.2d at 55.

     [15]:  The  partial  dissent  of Commissioners Riley and
Verheggen   characterizes   section  104(d)  as  a  separate
prosecutorial tool, apart from section 104(a), and analogous
to those contained in sections  110(c)  or 110(d).  Slip op.
at   37.    This  characterization,  however,  overlooks   a
fundamental  fact   -   sections   104(a)   and  104(d)  are
subsections  of  the  same  section  of the Mine Act.   This
provides  even  more  support  for  interpreting   the   two
subsections harmoniously.

promulgated by the Secretary under that title, that is, a
mandatory health or safety standard.  We are reluctant to ascribe
such an illogical approach to the statute's drafters.[16]

     There is nothing in the legislative history of the Mine Act
that indicates Congress was more concerned about the origin of
the standard violated as opposed to the potential danger created
by the violation, or the kind of conduct that caused the
violation.  And there is certainly no indication that the
drafters of the statute intended a regulation promulgated by the
Secretary under Title I of the Act to be subject to more
stringent enforcement than a requirement specified in that title
by the drafters themselves.  In fact, the terms "violations of
the law" and "mandatory health and safety standards" are used
interchangeably throughout the legislative history of the Mine
Act.  For example, when discussing the newly enacted training
requirements contained in Title I, 30 U.S.C.  825, the Senate
Committee continually refers to this provision of the Act as a
"mandatory safety and health training standard."  S. Rep. No. 95-
181, at 49, Legis. Hist. at 637.  In discussing unwarrantable
failure closure orders, the Senate Committee explained:  "[t]he
unwarrantable failure order recognizes that the law should not
tolerate miners continuing to work in the face of hazards
resulting from conditions violative of the Act."  S. Rep. No. 95-
181, at 31, Legis. Hist. at 619 (emphasis added).  A withdrawal
order under section 104(d)(1), 30 U.S.C.
 814(d)(1), is triggered by a violation that is both S&S and
unwarrantable.  Therefore, if a violation of the Act can trigger
a withdrawal order under this section, MSHA must have the
authority to cite it as S&S as well as unwarrantable.

     The Senate Committee expressly disapproved the
"unnecessarily and improperly strict view" of S&S taken by the
Commission's predecessor under the 1969 Coal Act, the Interior
Board of Mine Operations Appeals, in Eastern Associated Coal
Corp., 3 IBMA 331 (1974).  S. Rep. No. 95-181, at 31, Legis.
Hist. at 619.  In Eastern Associated, the Board based its narrow
reading of S&S in part on the "explicit restriction to
infractions of the mandatory standard."  3 IBMA at 349.  The
Senate Report indicated, moreover, that even violations of a
technical provision (many of which are contained in Part 50)
could trigger sanctions under section 104(d), when the
"violations do pose a health or safety danger to miners, and are
the result of an `unwarranted failure.'"  S. Rep. No. 95-181, at
31, Legis Hist. at 619.[17]

     Preventing the Secretary from designating violations of Part
50 regulations as S&S also defeats the objectives of the Mine Act
because a failure to investigate and report an accident may often
lead to significant safety consequences.  No better example
exists than the facts of the instant case.  As we explain below,
if Emerald had complied with section 50.11(b) by investigating
the failure of the refuse pile in December 1992, it could have
likely prevented the failure of the refuse pile in April 1993, an
incident that needlessly exposed miners to a serious risk of
harm.  Moreover, the cases that Emerald relies on to attempt to
demonstrate that violations of these regulations are not
hazardous are inconclusive and do not address this point
directly.  In fact, in one of those cases, LJ's Coal Corp., 14
FMSHRC 1225 (Aug. 1992), the Commission implicitly accepted that
Part 50 violations may be S&S; that case was remanded for
determination of whether a violation of section 50.10 was S&S.
See 14 FMSHRC at 1230.

     The Secretary's position is consistent with numerous court
and Commission cases that  have declined to embrace a literal
application of the term "mandatory health or safety standard."
For example, in Consolidation Coal Co., 14 FMSHRC 956 (June
1992), the Commission rejected an argument, similar to the one
Emerald makes here, that the Secretary was without authority to
propose a  civil penalty for a violation of a Part 50 regulation
because it was not a mandatory health or safety standard.  Id. at
963-65.  The operator relied on Section 110(a), which requires
the Secretary to assess a civil penalty against "[t]he operator
of a . . . mine in which a violation occurs of a mandatory health
or safety standard or who violates any other provision of this
[Act] . . . ."  30 U.S.C.  820(a) (emphasis added).  Observing
that "[s]ection 110(a), if read in isolation, appears to
authorize civil penalties only for violations of the Act and of
mandatory safety and health standards," the Commission adopted
instead an approach that harmonized sections 104(a), 105(a) and
110(a), and concluded that civil penalties should be assessed for
violations of any regulation, not just mandatory safety and
health standards.  14 FMSHRC at 964-65.  The Commission held that
"[e]ach part of a statute should be construed in connection with
the other parts `so as to produce a harmonious whole,'" and
concluded that the Secretary's interpretation, allowing civil
penalties for violations of Part 50 regulations, "advance[d] the
goals of the Act and maintain[ed] the importance of civil
penalties as a deterrence."  Id. at 965 (quoting 2A Sutherland
Statutory Construction  46.05, at 103 (Singer 5th ed. 1992
rev.)).

     Similarly, in Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 405
(D.C. Cir.), cert. denied, 429 U.S. 858 (1976), the D.C. Circuit
rejected a literal reading of the Federal Coal Mine Health and
Safety Act ("Coal Act") that would have permitted the Secretary
to issue citations only for violations of mandatory health or
safety standards.  In Zeigler, the operator argued that, because
a ventilation plan provision was not a mandatory health and
safety standard, the provision was unenforceable.  Id. at 401.
The court acknowledged that, under the plain meaning of the Coal
Act, the operator was correct, but rejected such a "deceptively
simple resolution of the problem."  Id. at 405.[18]  The court
foresaw that "[a] strict literal reading of the statute's
definition provision" would render unenforceable many other
protective provisions of the Coal Act that did not conform to the
definition of a mandatory health or safety standard.  This was a
"result" that "Congress could hardly have intended" since it
"would greatly impair the statute's effectiveness as a tool for
bringing about improvements in mine health and safety
conditions."  536 F.2d at 405.[19]  Congress expressly approved
the reasoning in Zeigler when it enacted the Mine Act.  S. Rep.
No. 95-181, at 25, Legis. Hist. at 613.  The partial dissent of
Commissioners Riley and Verheggen fails to acknowledge the
precedential value of the long line of Commission and court cases
that decline to narrowly interpret the Mine Act, including the
D.C. Circuit's refusal in Zeigler to narrowly confine the term
mandatory health or safety standard.

     Having determined that the reference in sections 104(d) and
104(e) to "mandatory health or safety standard" does not reflect
a Congressional intent to prevent the Secretary from applying
those provisions to violations of other requirements, we also
reject Emerald's contention that our Mathies decision requires us
to vacate the S&S designation from this violation.[20]  In
Mathies, the Commission held that the Secretary must prove the
following to establish that a violation is S&S: (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 injury; and (4) a
reasonable likelihood that the injury in question will be of a
reasonably serious nature.  6 FMSHRC at 3-4.  In Mathies,
however, only the second and third elements were at issue.  Id.
at 4.  Since the violation was conceded by the operator, there
was no need for the Commission to elaborate on its reference to
"mandatory safety standard," which was presumably derived from
the language of section 104(d).

     Ironically, the regulation that was violated in Mathies was
not a "mandatory health or safety standard," as that term is
defined in section 3(l) of the Act.  The Mathies citation
involved a failure to comply with a safeguard notice.  Id. at 1-
2.[21]  Those requirements are issued under the authority granted
by section 314(b) of the Act, a provision located in Title III
that states that "[o]ther safeguards adequate, in the judgement
of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall
be provided."  30 U.S.C.  874(b).  Safeguards allow the
Secretary to impose a requirement at a particular mine "when the
inspector observes a transportation hazard that is not addressed
by an existing mandatory standard."  Southern Ohio Coal Co.,14
FMSHRC 1, 10 (Jan. 1992) ("SOCCO II").  We have held that a
safeguard "may be enforced at a mine only after the operator is
advised in writing that a specific safeguard will be required as
of a specified date." Id. at 7.

     Although we have recognized that section 314(b) allows the
Secretary to create "what are, in effect, mandatory safety
standards . . .[ ,]" we have also recognized a "crucial
difference in the rules of interpretation applicable to mandatory
standards promulgated by the Secretary [under Title I] and those
applicable to `safeguard notices' issued by his inspector."
Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) ("SOCCO I")
(emphasis added).   In SOCCO I, we held that while mandatory
standards "should be construed in a manner that effectuates,
rather than frustrates their intended goal[,]" safeguards are
issued without resort to the normally required rulemaking
process, and therefore "a narrow construction of the terms of the
safeguard and its intended reach is required."  Id.[22]
Furthermore, in SOCCO II, the Commission cited with approval
MSHA's Program Policy Manual, which emphasized that "the criteria
of sections 75.1403-2 through -11 are not mandatory standards."
14 FMSHRC at 7 (emphasis added).  Accordingly, the Mathies
decision, involving precisely these criteria, does not restrict
the Secretary to applying an S&S designation only to a citation
involving a mandatory safety or  health standard.

     Finally, the assertion of our dissenting colleagues Riley
and Verheggen that the S&S designation in this case has no legal
impact is based upon a literal reading of the Mine Act that
ignores the historical role the S&S designation has played, as a
practical matter, in Mine Act enforcement.  See slip op. at 40.
The designation of S&S has served as MSHA's dividing line between
violations that are treated in a perfunctory fashion, and those
that are subjected to more individualized scrutiny.  The D.C.
Circuit recognized the significance of an S&S designation in
Consolidation, 824 F.2d at 1077-79.  In discussing the impact of
a section 104(a) violation that was designated S&S, the court
found that MSHA routinely applied a flat $20 penalty to non-S&S
violations and excluded them from the operator's history of
violations.[23]  Id. at 1078.  The court noted that the
"[d]esignation of [section 104(a)] violations as significant and
substantial . . . is necessary if the more severe sanctions
available under [section] 104(e) are ever to be applied."  Id.
This differential treatment for 104(a) violations designated S&S
led the court to conclude that the operator had suffered a
"cognizable injury under the Act."  Id. at 1079.  In addition,
Congress provided for the issuance of a withdrawal order for
repeated S&S violations under Mine Act section 104(e).  Thus, the
S&S designation is much more than a "term of art" for gravity as
our dissenting colleagues incorrectly suggest.  See slip op. at
40.

     For the foregoing reasons, we hold that the Secretary is not
precluded from designating this violation of section 50.11(b) as
S&S.

**FOOTNOTES**

     [16]:   As  Chairman  Jordan and Commissioner Marks noted in
Topper Coal Co., 20 FMSHRC 344 (Apr. 1998):

     It  is  plainly illogical  for  a  standard
     promulgated pursuant to title I of the Mine
     Act  to  be   subject   to  more  stringent
     enforcement than a prohibition  inserted in
     that title by the drafters themselves.  . .
     .   If  the  Secretary  can  apply the full
     panoply  of  the  Mine  Act's   enforcement
     scheme  to  any  regulation she promulgates
     pursuant to title  I of the Act, surely she
     should  be able to do  the  same  regarding
     behavior that the lawmakers themselves took
     the trouble to prohibit.

Id. at 359.

     [17]: The  Senate   Report   also  indicated  simply  that
"violations" should be designated S&S,  without  referring to any
specific  type  of violation.  S. Rep. No. 95-181, at  31,  Legis
Hist. at 619.

     [18]:  The language  of section 104(b) and other enforcement
provisions  of  the  Coal  Act   limited   their  application  to
violations  of  "any  mandatory health or safety  standard."   30
U.S.C.
 814(b) (1976).

     [19]:  See also Freeman  Coal  Mining Co. v. Interior Bd. of
Mine  Operations  Appeals,  504 F.2d 741,  744  (7th  Cir.  1974)
("[s]ince the Act in question  is  a remedial and safety statute,
with its primary concern being the preservation of human life, it
is  the  type  of  enactment  as to which  a  narrow  or  limited
construction is to be eschewed.").

     [20]:  Commissioner Marks agrees that this violation is S&S.
However, for the reasons set forth  in his concurring opinions in
United  States  Steel  Mining Co., 18 FMSHRC  862,  868-75  (June
1996), and Buffalo Crushed  Stone, Inc., 19 FMSHRC 231, 240 (Feb.
1997), he continues to urge that  the  ambiguous  language of the
Commission's  Mathies test, 6 FMSHRC at 3-4, be replaced  with  a
clear test that  is  consistent  with  Congressional  intent.  On
February 5, 1998, MSHA issued a lengthy Interpretative  Bulletin,
setting  forth  a new agency interpretation of S&S and announcing
that MSHA would challenge  the Commission's narrow interpretation
of S&S.  63 Fed. Reg. 6012 (1998).   However,  on April 23, 1998,
MSHA   suspended   that   Interpretive   Bulletin   with   little
explanation.   Id.  at 20,217.  Commissioner Marks is curious  as
to MSHA's change  in  position  on  the S&S question and requests
that the Secretary promptly advise this Commission as well as the
mining community on this important issue.

     [21]:  The particular provisions at issue included 30 C.F.R.
  75.1403  (identical  to  the statutory  provision  at  section
314(b), 30 U.S.C.  874(b)),  30  C.F.R.   75.1403-1 (permitting
inspector  to  require  safeguards  on  mine-by-mine   basis,  in
addition to those required in sections 75.1403-2 through 75.1403-
11),  and  30 C.F.R.  75.1403-6(b)(3) (listing criteria designed
to guide inspector  in  requiring  other safeguards and including
provision  that  track  mounted  personnel   carriers  should  be
equipped with sanding devices).  Id. at 1 n.1.   The safeguard at
issue in Mathies required that "all mantrips at this mine will be
provided with properly maintained sanding devices  sufficient  to
sand all wheels in both directions of travel."  Id. at 2 n.2.

     [22]:   Commissioners  Riley and Verheggen's partial dissent
wrongly asserts that the majority  "concede[s]"  that  safeguards
are  treated  as  mandatory safety standards (slip op. at 39-40),
failing to apprehend  the crucial distinction that exists between
mandatory  health  or  safety   standards   and   safeguards.   A
safeguard,  because  it is not issued pursuant to the  procedures
set forth in section 101(a)  of  the  Mine Act, does not meet the
statutory definition of a mandatory health or safety standard.

     [23]:  The Secretary's current practice  is  to apply a flat
penalty of $55 to non-S&S violations (63 Fed. Reg.  20,035 (1998)
(amending  30  C.F.R.    100.4)),  but  the  violations are  now
included in an operator's history as a result of  the  ruling  in
Coal  Employment  Project,  889  F.2d at 1138, that the policy of
excluding  such  violations  from an  operator's  history  itself
violates section 110(i).

b.   Whether the Violation of Section 50.11(b) Was S&S

     Emerald argues in a footnote in its brief that, even if the
Secretary has the authority to make S&S findings for
Part 50 violations, application of the Commission's
S&S test, as articulated in Mathies, does not support
such a conclusion here.  E. Br. at 29-30 n.13.
Emerald essentially argues that the failure to prepare
a report of the investigation was not reasonably
likely to result in injury.  Id.   It also asserts
that, because the Secretary alleged that the violation
of section 50.10 for the failure to report the
accident was of low gravity and not likely to cause
injury or illness, the Secretary was inconsistent in
alleging that the violation of section 50.11(b) was
reasonably likely to cause injury.  Id.

     The judge found that Emerald's violation of section 50.11(b)
was S&S because "[c]ontinued operations without
investigating the causes of a failure of a refuse pile
and the measures needed to prevent a recurrence could
contribute significantly and substantially to another
failure of the refuse pile with a risk of serious
injury" a little more than three months after the
December failure.  17 FMSHRC at 2099.  We agree with
the judge that Emerald's failure to investigate and
prepare a report on the December accident prior to the
April collapse was reasonably likely to, and did in
fact, result in a similar event that posed a high risk
of danger.  Indeed, a larger collapse of the refuse
pile occurred in April for which an imminent danger
order was issued.  Gov't Ex. 1.  If Emerald had
properly investigated and reported the December
accident it would have been required under section
50.11(b)(8) to include a "description of steps taken
to prevent a similar occurrence in the future."  No
such steps were taken and as a consequence the
condition of the refuse pile worsened in the
intervening months between December and April during
which the dangerous practice of operating trucks and
bulldozers on an unstable refuse pile continued.  17
FMSHRC at 2098; Tr. 214-19, 230-31, 663-64.  Thus, we
view the failure to investigate as closely linked to
the subsequent accident.

     Moreover, we are not persuaded by Emerald's argument that
the fact that MSHA determined that one violation of a
Part 50 regulation was not reasonably likely to result
in injury is somehow inconsistent with determining
that another violation of a different Part 50
regulation was reasonably likely to result in injury.
MSHA was citing Emerald for different omissions under
different sections, and the nature of one violation is
not determinative of the nature of the other.  We
therefore affirm the judge's finding that the section
50.11(b) violation was S&S.

C.     Section 77.215(f) and (h)[24]

     The judge determined that, based on the December 1992
incident, Emerald committed an S&S and unwarrantable
violation of section 77.215(f) for constructing the
refuse pile "without an engineering plan and without
adherence to accepted engineering practices to prevent
accidental sliding and shifting of materials."  Id. at
2100-01.  Finding that the violation was due to high
negligence, he assessed a penalty of $8,000.  Id. at
2101.  The judge further found an S&S and
unwarrantable violation of section 77.215(h) because
the refuse pile was not constructed, compacted, or
graded according to the requirements in that section.
Id. at 2104.  He assessed a $7,000 penalty for the
violation.  Id.

     Concerning the April 2, 1993, incident, the judge found an
S&S violation of section 77.215(f) because a portion
of the refuse pile, measuring 350 feet long, 60 feet
high, and 40 feet wide, shifted and slid into the
slurry pond.  Id. at 2101-02.  He reasoned that the
"refuse pile had been constructed over the years
without an engineering plan to prevent the refuse
material from shifting and sliding."  Id. at 2102.  He
found that although the violation was due to high
negligence,  Emerald's conduct did not amount to
"reckless disregard" for the safety of the employees
as alleged in the citation and he modified the
citation accordingly.  Id.  He assessed a penalty of
$8,500.  Id.  The judge also found a violation of
section 77.215(h) because the refuse pile was not
compacted and constructed in lifts so as not to exceed
a 27 degree slope, as required by that standard.  Id.
at 2103.  He found the violation to be S&S and a
result of Emerald's high negligence and unwarrantable
failure and assessed a penalty of $8,500.  Id. at
2103-04.  The judge also affirmed an imminent danger
order under section 107(a) issued as a result of the
April incident.  Id. at 2108.

     Emerald contends that, because the entire area at issue was
part of the impoundment and not a refuse pile, the
judge erred in finding four violations of section
77.215.  PDR at 13; E. Br. at 12-18.  Additionally,
Emerald argues that the unwarrantable failure
determinations for three of the section 77.215
violations should be reversed because the judge
disregarded important evidence showing the necessity
of stockpiling the refuse material.  PDR at 14-17; E.
Br. at 31-34.  Emerald notes that it had never been
cited before for this practice and MSHA had inspected
just a month prior to the April incident.  E. Br. 33
n.15.  In a footnote, Emerald argues that the S&S
determinations for the section 77.215 violations were
improper because the record does not establish a
likelihood of injury.  PDR at 17 n.5; E. Br. at 34
n.16.

     The Secretary responds that the judge's findings of four
violations of section 77.215 are supported by
substantial evidence.  S. Br. at 39-41.  She asserts
that substantial evidence also backs the judge's
determinations that the section 77.215(f) and (h)
violations on December 27 and the section 77.215(h)
violation on April 2 were unwarrantable.  Id. at 42-
46.  The Secretary contends that, contrary to
Emerald's assertion, the judge did not find that the
April 2 violation of section 77.215(f) resulted from
unwarrantable failure, but rather determined that it
was due to high negligence, a finding that the
Secretary asserts is supported by substantial
evidence.  Id. at 43 n.12, 46.

1.     Violations of  Section 77.215(f) and (h)

     Substantial evidence supports the judge's determinations
that the two failures of the refuse pile in December
and April constituted violations of section 77.215(f)
and (h).  On December 27, 1992, a 35-foot wide portion
of the refuse pile broke away and slid down the slope
causing a bulldozer to slide down the slope 30 feet
toward the slurry pond.  17 FMSHRC at 2090.  On April
2, 1993, an area of the refuse pile measuring 350 feet
long, 60 to 80 feet high, and 40 feet wide shifted,
caved in and slid into the slurry pond.  Id.  MSHA
experts testified that the failure of the refuse pile
was caused by its improper construction.  Tr. 334-35,
338-43, 346-49, 416-18, 421, 423, 426-28.  MSHA's
engineering experts testified that the material had
built up over several years without adequate
compaction and foundation.  Tr. 337, 341-42, 345, 349,
358, 399, 427-28.  The miners testified that they had
never used a compactor on the refuse pile.  Tr. 229-
30, 254.  As observed by a number of witnesses,
Emerald's practice of pushing the refuse over the edge
of the embarkment did not compact the material and
caused a steep incline.   Tr. 182, 450, 472-73.
MSHA's engineering experts testified that the pile's
slope, 35 to 37 degrees, was steeper than permitted by
the standard.  Tr. 337, 341-42, 345, 358, 427-28.  In
addition, there was no evidence that Emerald sought
permission from the district manager pursuant to
section 77.215(h) to deviate from the requirements of
that section.

     In light of this evidence, we conclude that substantial
evidence supports the judge's finding that the refuse
pile failed in December 1992 and April 1993, as a
result of the "unsafe manner in which the pile was
constructed," i.e., by pushing refuse over the edge
toward the slurry pond, without compaction, proper
grading of the slope or adherence to an engineering
plan or accepted engineering practices.  17 FMSHRC at
2100-04.  Accordingly, we affirm the judge's
determinations that Emerald violated section 77.215(f)
and (h).

2.     Unwarrantable Failure (December Section 77.215
Violations)

     The unwarrantable failure terminology is taken from section
104(d) of the Act and refers to more serious conduct by an
operator in connection with a violation.  In Emery Mining
Corp., 8 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 examined
various factors in determining whether a violation is
unwarrantable, including the extent of a violative
condition, the length of time that it has existed, whether
the violation is obvious, or poses a high degree of danger,
whether the operator has been placed on notice that greater
efforts are necessary for compliance, and the operator's
efforts in abating the violative condition.  Mullins & Sons
Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC
1596, 1603 (July 1984); BethEnergy Mines, Inc., 14 FMSHRC
1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc., 14
FMSHRC 1125, 1129 (July 1992).  The Commission has also
examined the operator's knowledge of the existence of the
dangerous condition.  E.g., Cyprus Plateau Mining Corp., 16
FMSHRC 1604, 1608 (Aug. 1994) (affirming unwarrantable
failure determination where operator aware of brake
malfunction failed to remedy problem); Warren Steen, 14
FMSHRC at 1126-27 (knowledge of hazard and failure to take
adequate precautionary measures support unwarrantable
determination).

     The Secretary alleged, and the judge found, that the two
December section 77.215 violations were a result of
unwarrantable failure.  The judge's unwarrantable findings
with respect to the December violations rest on Emerald's
"[knowledge] that the refuse pile was developed without an
engineering plan to prevent accidental sliding and shifting
of refuse materials" and on the high risk posed to miners
working on the refuse pile.  17 FMSHRC at 2101, 2104.

     Substantial evidence supports the judge's findings
concerning Emerald's knowledge that it was not following the
proper construction procedure.  Emerald's Senior
Environmental Engineer Terry Dayton, who was responsible for
inspecting the impoundment area and assisting the foremen in
the development of the refuse disposal site at the time of
the citations, testified that the material placed on the
refuse pile was not compacted or placed in horizontal lifts
in December 1992.  Tr. 637-40, 674-79, 682-83.  Dayton
testified that there was a significant amount of refuse in
the short haul area in December 1992.  Tr. 676.  In
addition, as the judge found, before the failure in December
1992, Emerald submitted a report for the Pennsylvania
Department of Environmental Resources noting that refuse
material was being deposited on the refuse pile.  17 FMSHRC
at 2092; R. Ex. 11.  Foreman John Meyers, who was
responsible for the refuse impoundment on the afternoon and
evening shifts, testified that, in December 1992, conditions
in the short haul area were "really bad" and the area was
full of refuse piles. Tr. 548-50, 560-61, 569.  Likewise,
equipment operator Leonard Hamilton testified that
management officials were out at the site and observed
conditions there.  Tr. 208, 215.  Accordingly, we conclude
that substantial evidence establishes Emerald's awareness of
the condition of the refuse pile.

     Substantial evidence also supports the judge's conclusion
that, despite its knowledge that a significant pile had
accumulated by December 1992, Emerald put the miners at risk
by taking no steps to either construct the pile in a safe
manner or to restrict miners from dumping on the pile.  17
FMSHRC at 2101, 2103-04; Tr. 562.  Foreman Meyers testified
that in December 1992, when the bulldozer went over the
edge, something had to be done with the accumulating refuse
and management provided no guidance or alternatives for
placing refuse.  Tr. 561-62.  The record establishes that
Emerald neglected the short haul area and implicitly
permitted the practice of bulldozing the refuse piles over
the edge of the embankment to accommodate more refuse.  Tr.
179-81, 553-55, 560-61, 709-10.  The miners testified that
the refuse disposal operation suffered because of a shortage
of manpower and a lack of supervision.  Tr. 228, 231-32,
264, 469-71, 481-83.  In addition, Emerald had permitted
this very large refuse pile - estimated by MSHA to be as
much as 1 million tons - to develop over 18 years without
attention to commonly accepted engineering principles.  17
FMSHRC at 2089; Tr. 676.  With respect to the level of
danger, MSHA engineer Mazzei testified that the refuse pile
created a hazard to anyone working on it, because it lacked
a solid foundation, and Emerald engineer Dayton acknowledged
it presented a danger to trucks going out on the pile.  Tr.
340, 349, 679.   The duration, extensiveness and obviousness
of the violative condition - as well as the danger it posed
- all support the judge's unwarrantable determination.

     Emerald's defenses to the unwarrantable charge are not
persuasive.  Emerald argues that it had a valid safety
reason for placing the refuse material in the short haul
area, i.e., that the refuse was wet and could not be safely
compacted and included on the impoundment.  E. Br. at 31-32.
Emerald's contention is based on its position that the short
haul area was merely a temporary stockpile to dry out
materials, and not a refuse pile.  We have already rejected
this contention (see slip op. at 5-7).  Additionally, for
the same reasons that uncompacted refuse could not be safely
added to the impoundment, it could not be safely added to
the unstable refuse pile in the short haul area.  Thus, we
reject Emerald's argument, based on its asserted good faith
belief that a hazard would exist if it did not place the
material in the refuse pile, because its belief was
unreasonable under the circumstances.  See Cyprus Plateau
Mining Corp., 16 FMSHRC 1610, 1615 (Aug. 1994) (operator's
good faith belief that cited conduct is safest method of
compliance must be reasonable).[25]  Emerald's argument that
the bulldozer operator was operating in an unauthorized
fashion at the time of the December failure (E. Br. at 33)
overlooks the fact that Emerald was required under section
77.215 to construct its refuse pile so as to prevent it from
sliding.  The bulldozer operator's actions are not a defense
to the allegation of unwarrantably failing to construct the
pile correctly.

     In sum, we agree with the judge that Emerald's awareness
of, and indifference to, the ever-increasing danger of the
unstable, improperly constructed refuse pile over a long
period of time amounted to aggravated conduct.  Accordingly,
we affirm, on substantial evidence grounds, the judge's
determinations that Emerald's violations of section
77.215(f) and (h) relating to the December incident were a
result of its unwarrantable failure to comply with those
standards.

          **FOOTNOTES**

     [24]:  Section 77.215 provides in pertinent part:

     (f)  Refuse piles  shall be constructed
     in  such a manner as to prevent  accidental
     sliding and shifting of materials.  . . . .

     (h)    .  .  .[N]ew  refuse  piles  and
additions to  existing refuse piles[ ]shall
be  constructed  in  compacted  layers  not
exceeding 2 feet in thickness and shall not
have  any slope exceeding 2 horizontal to 1
vertical   (approximately   27   [degrees])
except   that   the  District  Manager  may
approve construction  of  a  refuse pile in
compacted   layers  exceeding  2  feet   in
thickness  and  with  slopes  exceeding  27
[degrees]    where     engineering     data
substantiates  that a minimum safety factor
of  1.5  for  the  refuse   pile   will  be
attained.

     [25]:   Commissioner  Riley  observes that, while
estoppel is no defense to  a  violation  of
the  Mine  Act,  it  may,  depending on the
surrounding circumstances, offer  a limited
defense to unwarrantability.

     [T]he    Secretary   and   the   Commission
interpret the words "unwarrantable failure"
to  require   a  culpability  determination
similar    to    gross     negligence    or
recklessness.    .   .   .    Citing    the
Restatement  (2d) of Torts 283 (1965), the
Secretary argues that this negligence-based
definition   of   "unwarrantable   failure"
requires consideration  of  the surrounding
circumstances.  ("[T]he standard of conduct
to which [the actor] must conform  to avoid
being negligent is that of a reasonable man
under    the   circumstances.")   (emphasis
added).

     Secretary of Labor v.  FMSHRC,  111  F.3d. 913, 919-20 (D.C. Cir.
1997)  (citations  omitted)  (alteration   in   original).   Such
mitigating surrounding circumstances could include  the fact that
"the  duration,  extensiveness  and  obviousness of the violative
condition" (see slip op. at 25), were  overlooked  by MSHA for 18
years, including within a month of the accident that  spawned the
instant case.

     The benefit of the doubt in such situations, however,  flows
only  to  the  "reasonable man under the circumstances[,]" not to
those who remain  clueless  despite  repeated instances of ground
failure nor to those who appear volitionally  ignorant,  refusing
to  acknowledge  and  remediate  widespread  instability  in  the
auxiliary  refuse  pile,  including bulldozers subsiding into the
slurry pond.  Such events need  not  be of seismic proportions to
inform a "reasonable" actor that greater  efforts  are  necessary
for compliance.

3.     S&S (December and April Section 77.215 Violations)

     Emerald argues that the judge erred in finding that the four
violations of section 77.215 were S&S.  E. PDR at 17, n.5;
E. Br. at 34 n.16.  The Secretary asks the Commission to
treat Emerald's argument as abandoned because it is
contained in a two-sentence footnote.  S. Br. at
41 n.11.[26]  Alternatively, the Secretary argues that the
judge's S&S findings are supported by substantial evidence.
Id. at n.11.

     A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.  Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981);
Mathies, 6 FMSHRC at 3-4.  We agree with the Secretary that
substantial evidence supports the judge's determination that
a failure of a refuse pile with its resultant collapse of
ground is reasonably likely to result in serious injury to
miners working on the pile.  See 17 FMSHRC at 2101-04.
Inspector Daniel testified that improper construction of the
refuse pile created a danger of shifting, sliding, or
cracking of the refuse pile having the likelihood to result
in a fatal injury.  Tr. 53-55, 70-71, 90.  Indeed, what
happened in this case -  a large portion of the refuse pile
collapsed causing a bulldozer to slide approximately 30 feet
down the pile and become partially buried - illustrates that
these violations were reasonably likely to result in
injuries of a very serious nature.  We therefore affirm the
judge's findings that the four violations of section 77.215
were S&S.

D.  Section 77.1608(b) Violations

     The judge determined that Emerald violated section
77.1608(b) in December 1992 "by having dump trucks drive on
a refuse pile that might fail to support the weight of a
loaded dump truck."  17 FMSHRC at 2105-06.  The judge also
concluded that Emerald violated section 77.1608(b) in April
1993 because loaded dump trucks were operated in an unstable
area that might fail to support them and the "[d]ump trucks
were dumping loads of coarse coal refuse along the edge of
the refuse pile."  Id. at 2107.  He determined that both
violations were S&S and unwarrantable and assessed penalties
of $9,500 for each of them.  Id. at 2106, 2107-08.

     Emerald argues that substantial evidence fails to support
the judge's findings that violations of section 77.1608(b)
occurred and that the violations resulted from unwarrantable
failure.  PDR at 17-20.  Emerald also challenges the S&S
findings associated with the truck violations.  PDR at 8, 19
n.6.  The Secretary responds that substantial evidence
supports the judge's findings of violations of section
77.1608(b).  S. Br. at 47, 48-49.  Further, the Secretary
asserts that substantial evidence supports the judge's
finding that Emerald's December violation of section
77.1608(b) was a result of unwarrantable failure.  Id. at
47-48.  With respect to the S&S findings, the Secretary
argues that Emerald has effectively abandoned its challenges
to the S&S findings because its entire argument is contained
in a two-sentence footnote in its PDR, and, alternatively,
that the judge's findings are supported by substantial
record evidence.  Id. at 48 n.13; see also id. at 41-42
n.11.

1.     December Violation

     Section 77.1608(b) provides that "[w]here the ground at a
dumping place may fail to support the weight of a loaded
dump truck, trucks shall be dumped a safe distance from
the edge of the bank."

     The miners testified that they drove onto the refuse pile
and dumped material there.  Tr. 162, 166, 185, 310-11.
Foreman Meyers testified that trucks were dumping in
the short haul area in December 1992.  Tr. 560-62.
Thus, substantial evidence supports the judge's
finding that Emerald had "dump trucks drive on a
refuse pile that might fail to support the weight of a
loaded dump truck."  17 FMSHRC at 2106.  However, the
judge did not address how close to the edge the trucks
 were dumping in December.  Under the plain terms of
section 77.1608(b), the judge was required to
determine not only that the trucks drove on ground
that might fail to support them, as he did, but also
that the trucks were not dumping a safe distance from
the edge of the bank.  The judge stated:  Dump trucks
traveled on unstable parts of the refuse pile,
including the area that failed, in order to deposit
coarse refuse."  Id.  The judge did not explain his
reference to "the area that failed," and it is unclear
whether this is a finding that the trucks were dumping
too close to the edge.  For this reason, we believe
that a remand on this issue is warranted.

     In addition, a remand is necessary because the record
supports various conclusions as to how close to the
edge the trucks were dumping in December 1992.  The
witnesses were not specific as to how close the trucks
came to the edge at that time.  The Secretary does not
point us to evidence that the trucks were dumping on
the edge in December 1992.  See S. Br. at 47.
However,  there is evidence in the record suggesting
that trucks were dumping on the edge as a general
practice that was ongoing in December.  Inspector
Daniel testified that, when investigating the
incidents, he received statements from the miners that
"[f]or months" they were "dumping the material on the
edge and shoving it over the edge with the dozer."
Tr. 52-53, 64.  He relied on these statements when
issuing the citation.  Tr. 123.  Dozer operator Donald
Moore observed truck tracks "[s]omewhat close [t]o . .
. the edge."  Tr. 261.  Substitute safety committeeman
and haul truck driver Timothy Brown testified that he
observed piles that had been dumped "right on the
edge."  Tr. 160, 311.

     A remand is necessary for the judge to sift through this
evidence and make the requisite finding.  Mid-
Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994) (judge must analyze and weigh relevant testimony
of record, make appropriate findings, and explain
reasons for his decision).  Accordingly, we vacate the
judge's finding of violation, as well as the related
S&S and unwarrantable failure determinations.  If the
judge finds a violation on remand, he should reexamine
the S&S and the unwarrantable determinations and make
specific findings explaining the rationale for his
decision.[27]

2.     April Violation

     The judge found that "[d]ump trucks were dumping loads of
coarse coal refuse along the edge of the refuse pile" prior to
the April violation.  17 FMSHRC at 2107.  Substantial record
evidence supports this finding.  Photographs taken when the
inspector investigated the April failure show truck tire tracks
going to the edge of the portion of the refuse pile that broke
away.  Tr. 62-63, 258-59, 335; Gov't Ex. 21.  Inspector Daniel
testified that he observed truck tracks going into the failed
area.  Tr. 63-64.  Equipment operator Hamilton, who had worked
with Emerald for 18 years, testified to dumping on the refuse
pile in the area that collapsed just before the April failure.
Tr. 208, 214.

     We do not find persuasive Emerald's requests that the
Commission credit other witnesses who were uncertain how close to
the edge the trucks were dumping, and draw a different conclusion
from the photographs.  PDR at 19.  A judge's credibility
determinations are entitled to great weight and cannot be
overturned lightly.  Farmer v. Island Creek Coal Co., 14 FMSHRC
1537, 1541 (Sept. 1992).  We see no basis for overturning the
judge's credibility determinations here.  Based on the credited
evidence, including the photographs, we find that substantial
evidence supports the judge's findings.

     Because substantial evidence supports the judge's
determination, we affirm the judge's conclusion that Emerald
violated section 77.1608(b) in April 1993.

3.  Whether the April Section 77.1608(b) Violation Was S&S

     Emerald asserts, without providing any additional argument,
that the ALJ erred in finding that the April violation
of section 77.1608(b) was properly designated S&S.
PDR at 8.  The judge found that the violation was S&S,
reasoning that "[b]ecause of the instability of the
refuse pile, it was reasonably likely that a failure
of the refuse pile would occur and cause a dump truck
to roll over or fall with collapsed refuse material,
resulting in serious injury."  17 FMSHRC at 2107.  We
affirm that conclusion.  It is beyond doubt that dump
trucks driving on ground that fails to support them
near the edge of a bank may be reasonably likely to
result in serious injury.  The December accident,
which involved a refuse pile collapse causing a
bulldozer to fall 30 feet down the pile, illustrates
the serious hazard contributed to by the violation.
In addition, Emerald has presented us with no reason
to overturn the judge's decision.  We accordingly
affirm the judge's finding that the April violation of
section 77.1608(b) was S&S.[28]

E.  The Judge's Modification of Two Citations

     The two S&S citations issued by MSHA charging violations of
sections 77.215(h) and 77.1608(b) as a result of the April
failure did not include unwarrantable failure allegations.
Nonetheless, the judge determined that the April violations
were a result of Emerald's unwarrantable failure.  17 FMSHRC
at 2103-04, 2107.[29]

     The operator (E. Br. at 34) and the Secretary (S. Br. at 49-
51) agree that the judge erred in  unilaterally modifying
the citations.  In Mechanicsville Concrete, Inc., 18 FMSHRC
877, 879-80 (June 1996), the Commission determined that its
judges may not on their own initiative modify a citation to
add an S&S allegation.  In Mettiki Coal Corp., 13 FMSHRC
760, 764-65 (May 1991), the Commission held that its judges
are not authorized representatives of the Secretary and do
not have authority to charge an operator with violations of
section 104(b) of the Mine Act.  Under this reasoning, the
judge erred in modifying the above citations to allege
unwarrantable failure violations.  Accordingly, we reverse
the judge's modification of the two April citations.

     Nonetheless, our holding does not cause us to disturb the
judge's penalty assessments for these two citations.  See,
e.g., Mechanicsville, 18 FMSHRC at 881-82 (penalty affirmed
even though Commission held judge lacked authority to sua
sponte find violation was S&S).  In reviewing a judge's
penalty assessment, the Commission must determine whether
the penalty is supported by substantial evidence and is
consistent with the statutory penalty criteria.  "While a
judge's assessment of a penalty is an exercise of
discretion, assessments lacking record support, infected by
plain error, or otherwise constituting an abuse of
discretion are not immune from reversal . . . ."  U.S. Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984).  We conclude that
the judge's findings that the two violations were the result
of Emerald's high negligence are supported by substantial
evidence.

     The evidence discussed in sections C and D that Emerald was
aware of the unsafe condition of the refuse pile in April,
continued to use unsafe practices in the construction of
that pile, permitted trucks to dump close to the edge of the
unsafe pile, and that the conditions on the refuse pile
posed a high danger, provides substantial support for the
judge's determination that Emerald's violations of sections
77.215(h) and 77.1608(b) were characterized by high
negligence.  The high negligence findings are further
supported because Emerald did not take steps to bring the
refuse pile in compliance with section 77.215, nor did it
stop the unsafe practice of trucks dumping on the pile, even
after the December failure.  The high negligence of the
April violation of section 77.1608(b) is also buttressed by
the fact that, in March 1993, Emerald engineer Dayton
specifically warned the foreman in charge to keep the truck
drivers close to the bin and to keep the trucks off the
refuse pile because of the danger.  Tr. 230-31, 556-57, 663.
Accordingly, we affirm the penalty assessments as supported
by substantial evidence.

                                 III.

                              Conclusion

     For Citation Nos. 3658682 and 3658696, we affirm the judge's
conclusions that the refuse material in the short haul area
constituted a "refuse pile," and that Emerald violated
sections 50.10 and 50.11(b).  We affirm the judge's
determination that the section 50.11(b) violation was S&S.

     With respect to Order No. 3768690 and Citation Nos. 3658639,
3658640, 3658683, we affirm all section 77.215 violations
and that they were S&S.  We affirm the determination that
the December section 77.215 violations were a result of
unwarrantable failure.  We reverse the judge's unwarrantable
determination as to the April section 77.215(h) violation
contained in Citation No. 3658640, and affirm the judge's
assessment of penalties for all section 77.215 violations.

     As to Order No. 3658698, we vacate the judge's conclusion
that Emerald violated section 77.1608(b) in December 1992,
and remand for reanalysis and, if necessary, S&S and
unwarrantable determinations.  We also remand for
reassessment of penalty, if any.

     As to Citation No. 3658700, we affirm the judge's
determinations that Emerald violated section 77.1608(b) in
April 1993, and that the violation was S&S.  We reverse the
judge's unwarrantable determination, and affirm the penalty
assessed by the judge.

                           ________________________
                           Mary Lu Jordan, Chairman

                           ________________________
                           Robert H. Beatty, Jr.,
                                      Commissioner

**FOOTNOTES**

     [26]:  Commissioner  Marks  would  grant  the  Secretary's
request and determine that Emerald has abandoned its challenge to
the S&S designations  by  the skeletal nature of its argument, in
line with well-established appellate law.  See Carducci v. Regan,
714  F.2d  171,  177 (D.C. Cir.  1983)  (declining  to  entertain
appellant's asserted  but  unanalyzed claim); Jackson v. Univ. of
Pittsburgh, 826 F.2d 230, 237 (3rd. Cir. 1987) (unsupported issue
is deemed waived); Dungaree  Realty,  Inc.  v.  United States, 30
F.3d  122,  124  (Fed.  Cir.  1994) (characterizing as  frivolous
argument supported by one sentence  in  brief);  Acosta-Huerta v.
Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (issues raised  in brief
not  supported  by  argument  deemed  abandoned unless manifestly
unjust to do so); see also Asarco Mining  Co.,  15  FMSHRC  1303,
1304 n.3 (July 1993) (Commission did not address issue listed  in
PDR but not discussed in brief).

     [27]:  The  judge  determined  that  Emerald's violation of
section 77.1608(b) was unwarrantable because  the  operator "knew
of the longstanding practice of dump trucks dumping coarse refuse
on  the  refuse  pile"  as well as the danger of the practice  as
shown by instructions of  supervisors to dump the material closer
to  the  bin.  17 FMSHRC at 2106.   Although  substantial  record
evidence establishes  Emerald's  knowledge of dumping on the pile
in December 1992 (Tr. 560-62), the  judge  made  no finding as to
when management began instructing drivers to dump  close  to  the
bin.   Equipment  operator  Hamilton  testified  that his foreman
"encourage[d]"  dumping close to the bin.  Tr. 215-16.   However,
it appears that this testimony may relate to events following the
December accident.   Tr.  215-16. We therefore instruct the judge
to address this evidence, as  well as any other relevant factors,
when he reexamines the unwarrantability question.  Mid-Continent,
16 FMSHRC at 1222.

     [28]:  Commissioner Marks  would  affirm  the  judge's  S&S
determination  on  the  grounds  that  Emerald  has abandoned its
argument to the Commission.  Carducci, 714 F.2d at  177; Jackson;
826 F.2d at 237; Dungaree Realty, 30 F.3d at 124.

     [29]:  The  judge  found  that  MSHA  modified  the section
77.215(h) citation to a section 104(d)(1) citation (id. at 2103);
however,  the  citation  does not show such a modification.   See
Gov't Ex. 2.

     Commissioner Marks, concurring in part and dissenting in part:

     I concur in all parts of the majority's decision with the
     exception of section E.  In that section, the majority has
     determined that the judge did not have the authority to
     conclude that a violation is a result of unwarrantable
     failure when the Secretary has failed to formally make such
     a charge.  I disagree and dissent on this issue.

     As I reasoned in my partial dissent in Mechanicsville
Concrete, Inc., 18 FMSHRC 877, 883 (June 1996), the Commission
has recognized that Mine Act section 105(d), 30 U.S.C.  815(d),
authorizes the judge to modify citations "so long as the
essential allegations necessary to sustain the modified
enforcement action are contained in the original citation
or order."  Id. at 880 (citing Consolidation Coal Co., 4 FMSHRC
1791, 1793-94 (Oct. 1982)).  For reasons explained below, I
conclude that is precisely what occurred in this case, i.e.,
the judge's rulings are based on allegations contained in the
citations.  Therefore, I find that the judge acted within his
authority and in accordance with his duty as an administrative
law judge when he concluded that the subject violations were
a result of unwarrantable failure.

     The two violations at issue stem from the April collapse of
the refuse pile, which also resulted in the issuance of an
imminent danger order under Mine Act section 107.  Gov't Ex.
1.  In both citations, the inspector marked that Emerald's
negligence was "reckless disregard," which is the highest
level of negligence on a MSHA citation or order.  Gov't Ex. 2,
5.[1]   Both citations indicate that "fatal" injuries were
"highly likely" to result from the violations.  Id.  Both
citations include special assessments which allege in detail
that Emerald was alerted to the dangers of the unsafe refuse
pile and of allowing the trucks on the pile and, despite the
awareness of these dangers, the operator continued the
practice of operating trucks on the unstable pile.  Id.

     Both citations were issued under section 104(a) and
specifically indicate that they were issued in conjunction
with an imminent danger order.  Id.  The inspector's testimony
suggests that he issued the two citations under section 104(a),
rather than as unwarrantable under section 104(d), not because
they were not a result of unwarrantable failure, but because the
citations were issued in conjunction with an imminent danger
order.  Tr. 92.[2]  The inspector's apparent view that the
imminent danger order precluded issuance of a citation
alleging unwarrantable failure was erroneous.  See Eastern
Associated Coal Corp., 13 FMSHRC 902, 907-911 (June 1991)
(section 104(d)(2) unwarrantable failure order can be issued
in conjunction with imminent danger order).  In Eastern, the
Commission construed the language of section 104(d) so as not
to limit the Secretary's enforcement authority, especially in
cases involving imminent danger.  There, the Commission
stated:  "To read out of the Act the protections and incentives
of a section 104(d)(2) order on the basis that the hazard
created by the violation is so great that it creates an imminent
danger would seem peculiar on its face and would blunt the
effectiveness of this sanction."  13  FMSHRC at 910.  Although
the holding of Eastern was limited to section 104(d)(2) orders,
its reasoning is instructive and applicable here.
Inspector Daniel's choice to not issue a citation alleging
unwarrantable failure does seem peculiar, if not absurd, under the
facts of this case.  He failed to issue a citation, which would
trigger the more serious enforcement sanctions under the Mine Act,
because the violative condition was of such a high level of gravity that
it qualified as an imminent danger. The majority now blindly affirms
this absurdity by refusing to look at the contents of the citations,
especially in the context of a record that reveals conduct that
could not be anything but an unwarrantable failure.

     The Commission has determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987).
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003- 04.  The
contents of both citations charge Emerald for violative conduct
constituting more than ordinary negligence.  Both citations
charge Emerald with "reckless disregard" and provide, in
the accompanying special assessments, the details to
back that up.  Gov't Ex. 2, 5.  Accordingly, the judge was well
within his authority under section 105(d) to modify the citations
to charge unwarrantable failure.  See Consolidation, 4 FMSHRC
at 1793-97.  Further, Emerald could in no way be prejudiced by
such a modification because it was on notice from the face of
the citations that it was being charged with the highest level
of culpability for these very serious violations.

     In addition, the record overwhelmingly supports the judge's
determinations of unwarrantable failure.  Indeed, the majority
affirms the judge's determinations of high negligence  for the
very reasons that support the unwarrantable failure charges.
Slip op. at 31.  The record in this case supports the judge's
conclusion that the conditions of the refuse pile posed a high
danger.  17 FMSHRC at 2101-02, 2103; Tr. 340, 349.  See
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992)
(unwarrantable failure finding supported by high danger posed by
violation).  Emerald was aware of the unsafe condition of the refuse
pile in April, but continued to use unsafe practices in the construction
of that pile and permitted trucks to  dump close to the edge of the unsafe
pile.  Tr.  62-63, 214, 335-36, 556-57, 663-64.  The judge's conclusion
that  Emerald engaged in aggravated conduct is further supported because
Emerald did not take steps to bring the refuse pile in compliance with
section 77.215, nor did it stop the unsafe practice of trucks
dumping on the pile, even after the December failure of the
refuse pile.  17 FMSHRC at 2103, 2107.  Emerald's own engineer
warned the foreman about the dangers of this growing and
unstable refuse pile.  Tr. 663-64; see Peabody Coal Co., 14
FMSHRC 1258, 1263 (Aug. 1992) (unwarrantable failure finding
supported by circumstances that show that operator was aware
of violative conditions but failed to take effective measures
to remedy them).

     Substantial evidence in the record in this case supports
the judge's determinations that Emerald's violations of section
77.215(h) and 77.1608(b) were a result of its aggravated conduct.

**FOOTNOTES**

          [1]:  The citation alleging  a  section  77.215(h) violation
     was  modified twice to raise the level of operator  negligence  -
     from "moderate"  to "high" to "reckless disregard."  Gov't Ex. 2.
     MSHA Inspector Daniel  testified  that  he  raised  the  level of
     operator  negligence  because  his  investigation  revealed that,
     prior to the April collapse, Emerald Engineer Terry Dayton warned
     the  Emerald  foreman in charge of the refuse pile, Jim  Graznik,
     about the danger  of how "his people were piling the mine refuse,
     the way they were bulldozing over the edge."  Tr. 55-56.

          [2]:  The inspector  was  apparently relying on the language
of  Mine Act Section 104(d), which provides:

          (1)  If, upon any  inspection of a coal
     or other mine, an authorized representative
     of the Secretary finds that  there has been
     a  violation  of  any  mandatory health  or
     safety standard, and if he also finds that,
     while  the  conditions  created   by   such
     violation  do  not  cause  imminent danger,
     such violation is of such nature  as  could
     significantly  and substantially contribute
     to the cause and  effect of a coal or other
     mine safety or health  hazard,  and  if  he
     finds  such  violation  to  be caused by an
     unwarrantable failure of such  operator  to
     comply with such mandatory health or safety
     standards, he shall include such finding in
     any  citation  given  to the operator under
     this [Act].  If, during the same inspection
     or any subsequent inspection  of  such mine
     within  90 days after the issuance of  such
     citation,  an  authorized representative of
     the Secretary finds  another  violation  of
     any mandatory health or safety standard and
     finds  such  violation to be also caused by
     an unwarrantable  failure  of such operator
     to so comply, he shall forthwith  issue  an
     order  requiring  the operator to cause all
     persons  in  the  area   affected  by  such
     violation, except those persons referred to
     in subsection (c) to be withdrawn from, and
     to be prohibited from entering,  such  area
     until  an  authorized representative of the
     Secretary determines  that  such  violation
     has been abated.

         (2)  If a withdrawal order with respect
     to  any  area  in a coal or other mine  has
     been issued pursuant  to  paragraph  (1), a
     withdrawal  order  shall promptly be issued
     by  an  authorized  representative  of  the
     Secretary  who  finds upon  any  subsequent
     inspection the existence  in  such  mine of
     violations  similar  to those that resulted
     in  the  issuance of the  withdrawal  order
     under paragraph  (1)  until such time as an
     inspection  of  such  mine   discloses   no
     similar     violations.     Following    an
     inspection of  such mine which discloses no
     similar  violations,   the   provisions  of
     paragraph (1) shall again be applicable  to
     that mine.

30 U.S.C.  814(d) (emphasis added).

     Accordingly, I dissent and would affirm the judge's
determinations that the subject violations resulted
from unwarrantable failure.

                        _____________________________
                        Marc Lincoln Marks, Commissioner

Commissioners Riley and Verheggen, in favor of reversing
the judge's finding that Emerald's violation of 30 C.F.R.
 50.11(b) was S&S:

          We join in the decision of Chairman Jordan and Commissioner
     Beatty with the exception of sections II.B.2.a and II.
     B.2.b, from which we dissent.  We agree with Emerald's
     contention that its violation of section 50.11(b) may not
     be designated S&S because the regulation cited is not a
     mandatory health or safety standard.

     The first element of the Mathies test requires the Secretary
to prove an "underlying violation of a mandatory safety
standard."  6 FMSHRC at 3-4 (emphasis added).  But here, the
Secretary has proven a violation of a regulation that is
not a mandatory safety standard.  Her allegation of S&S
thus fails to meet the first element of the Mathies test.
Although we agree with the judge's statement that
the S&S allegation at issue here was merely an "allegation of
gravity, not an assertion of jurisdiction to apply the
sanctions of [section] 104(d)" (17 FMSHRC at 2099), for the
following reasons, we find that the judge erred in finding the
violation S&S.

     Section 104(a) of the Mine Act grants the Secretary the
authority to cite violations of the "[Act], or any mandatory
health or safety standard, rule, order, or regulation promulgated
pursuant to [the Act.]"  30 U.S.C.  814(a).  The S&S
terminology, on the other hand, appears only in sections
104(d)(1) and 104(e) of the Mine Act, both of which are limited in
scope to violations of "mandatory health or safety standards."  30
U.S.C.  814(d)(1), (e).  Here, by their plain terms, sections
104(d)(1) and 104(e) are limited in application to violations of
mandatory health or safety standards.  Chevron, 467 U.S. at
842-43 (if a statute is clear and unambiguous, effect must be given
to its language).

The Secretary's power to cite mine operators originates in
section 104(a).  In various sections of the Act, Congress
then set forth additional prosecutorial tools for the
Secretary to use in connection with specific actors and
offenses, such as sections 110(c) and 110(d) addressing individual
civil and criminal liability, section 110(e) addressing advance
notice of inspections, section 110(f) addressing false
statements made to the Secretary, and section 110(g) addressing
smoking in mines.  See 30 U.S. C.  820(c), (d), (e), (f), (g).  In
section 104(d), Congress provided the Secretary with the power to
make special findings when issuing a citation under section
104(a) as to one broad category of offenses, violations of
mandatory health or safety standards.  These findings are
made when violations are "of such nature as could significantly
and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard" or "caused by an
unwarrantable failure of [an] operator to comply with such
mandatory health or safety standards."  30 U.S.C.
 814(d)(1).  The authority to make special findings under
section 104(d) applies, by the plain terms of the section, to
only one category of the types of violations enumerated in section
104(a):  violations of  mandatory health or safety standards.[1]
Read together, sections 104(a) and 104(d) create a hierarchy of
enforcement under which the Secretary can bring additional
enforcement sanctions to bear on operators who violate mandatory
health or safety standards.  See Emery Mining Corp., 9 FMSHRC
1997, 2001 (Dec. 1987) ("The Mine Act's use of different terms
within the same statute demonstrates that Congress
intended the different terms to censure different types of
operator conduct within a graduated enforcement scheme")
(emphasis added).

     In Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C.
Cir. 1987), the D.C. Circuit very clearly sketched out the
graduated enforcement scheme set forth in section 104 of the Mine
Act.  The court stated:

          In [section] 104 . . . Congress established
     a detailed scheme for enforcement of mine health and
     safety standards promulgated by the Secretary of Labor.
     That statutory scheme specifically provided for findings
     by the Secretary that certain violations of
     health and safety standards were [S&S].
     30 U.S.C.  814(d), (e).  Pursuant to that
     statutory authorization [i.e., section
     104(d)], the Secretary designates
     violations as [S&S] in citations issued
     under [section] 104(a).

824 F.2d at 1077-78 (emphasis added).  Section 104 thus includes
what the D.C. Circuit called "the initial [section] 104(a)
citation stage" (id.) for any violation, then a special finding
stage for violations of mandatory health or safety standards when
the Secretary determines, among other things, whether the
violations are S&S.

     Congress may have created these additional separate
enforcement sanctions beyond section 104(a) because it considered
violations of mandatory health or  safety standards as
particularly serious.  But whatever Congress's intent - and the
legislative history is silent on this issue[2] - we find the Act
to be plain on its face, unambiguous, and setting forth an
eminently sensible scheme of ratcheting up the consequences of
wrongdoing for particular classes of violations.

     The majority argues that it is illogical for section 103(d)
 of the Act, which requires operators to report mine accidents, to
receive less enforcement significance than mandatory health and
safety standards.  Slip op. at 15-16.  Although 30 C.F.R.
 50.11(b) is at issue in this case and not section 103(d) of the
Act, insofar as section 103(d) may be indirectly implicated,
Congress placed many standards in Titles II and III of the Act,
clearly designating them as mandatory health or safety standards.
Congress then singled out such "mandatory health or safety
standards" in sections 104(d) and 104(e) as meriting different,
more severe sanctions when an operator has violated them
repeatedly.  Section 103(d), in contrast, appears in Title I of
the Act, and violations of the section are thus not subject to
the sanctions of sections 104(d) and 104(e).  Nor, for that
matter, does Part 50 contain any mandatory health or safety
standards - it too is outside the scope of sections 104(d) and
104(e).  The Act and its implementing regulations speak for
themselves, and have their own internal logic - a graduated
enforcement scheme that imposes more severe sanctions on
violations of mandatory health or safety standards than on
violations of reporting requirements.

     The majority cites a case in which the Commission concluded
that "the required description of the nature of the violation of
a mandatory safety or health standard cited under section 104(a)
may include a finding . . . that the violation is significant and
substantial."  Consolidation Coal Co., 6 FMSHRC at 192 (cited by
majority, slip op. at 13).  This holding, however, is limited to
violations of mandatory health or safety standards cited as S&S
under section 104(a) - whereas here, a violation of a Part 50
regulation that is not a mandatory health or safety standard has
been cited as S&S under section 104(a).  Similarly, at issue in
the D.C. Circuit case cited by the majority to illustrate "the
historical role the S&S designation has played . . . in Mine Act
enforcement" was a violation of a mandatory health standard.
Slip op. at 20 (citing Consolidation Coal Co. v FMSHRC, 824 F.2d
1071).

     We believe that LJ's Coal Corp., remanding a Part 50
violation for an S&S analysis and cited by the majority for the
proposition that "the Commission implicitly accepted that Part 50
violations may be S&S" (slip op. at 17), was wrongly decided on
this particular point.  As for the Consol case cited by the
majority in which the Commission addressed the scope of penalties
assessed under the Act (slip op. at 17, citing 14 FMSHRC at
963-65), section 110(a) provides that penalties be assessed
against "[t]he operator of a . . . mine in which a violation
occurs of a mandatory health or safety standard or [an operator]
who violates any other provision of this [Act]."  30 U.S.C.
 820(a) (emphasis added).  The expansive language of section
110(a) is a far cry indeed from the much more limited language of
section 104(d)(1), which makes no mention of any provision of the
Act other than mandatory health or safety standards.

     Finally, the majority comments at some length on the irony
of the Mathies test having been formulated in a case involving a
safeguard notice, which they appear to view as something other
than a mandatory health or safety standard.  Slip op. at 19-20.
But as they concede, the Commission views safeguard notices as
being "`in effect, mandatory safety standards.'"  Id. at 19
(citing 7 FMSHRC at 512) (majority's emphasis).[3]

     As we stated in Topper Coal Co., 20 FMSHRC 344, 376-77 (Apr.
1998), we are also troubled by the policy implications of the
Secretary's insistence on citing violations of provisions other
than mandatory safety or health standards as S&S.  As the judge
correctly noted here, "[a]n allegation of a `significant and
substantial' violation in a  104(a) citation is an allegation of
gravity, not an assertion of jurisdiction to apply the sanctions
of  104(d)."  17 FMSHRC at 2099.  A section 104(a) S&S
designation is nothing more than an allegation that a particular
violation is serious.  No legal consequences flow from such a
designation that the Secretary could not more efficiently
accomplish under her Part 100 civil penalty regulations,[4]
including her broad discretion to impose special assessments (see
30 C.F.R.  100.5).  We believe that the Secretary has wasted her
resources and those of the Commission by resorting to a term of
art[5] under sections 104(d) and 104(e) to measure the gravity of
a violation of a Part 50 regulation charged under section 104(a).

     Our colleagues state that our "assertion . . . that the S&S
designation in this case has no legal impact is based upon a
literal reading of the Mine Act that ignores the historical role
the S&S designation has played, as a practical matter, in Mine
Act enforcement."  Slip op. at 20.  Our colleagues, however, can
point to not one legal impact flowing from the S&S designation at
issue here.  They fail to demonstrate how the judge erred (as
they would presumably hold) when he stated that this S&S
allegation is merely an "allegation of gravity."  17 FMSHRC at
2099; cf. Consolidation Coal Co. v. FMSHRC, 824 F.2d at 1084
("the fact that a particular violation has been designated as
[S&S], without more, does not result in the imposition of any
additional sanction under the Mine Act").

     As for the "historical role" of S&S in Mine Act enforcement,
section 104 clearly sets forth where S&S fits in - as violations
of mandatory health or safety standards impinge more
significantly and substantially on the safety of miners, the
legal consequences become more severe.  Thus, the sanctions of
sections 104(d), triggered by an S&S finding, were designed by
Congress to be more severe than sanctions available to address a
violation of, for example, a reporting requirement which is not
set forth in a mandatory health or safety standard.  That the
Secretary has historically ignored this scheme by blurring the
lines so clearly drawn by Congress - a mistake she made in this
case when she designated a Part 50 violation as S&S - is no
excuse for this Commission to ignore the plain language of the
Act.  As the Supreme Court has held, the age of an agency
interpretation of its enabling statute "is no antidote to clear
inconsistency with [the] statute."  Brown v. Gardner, 513 U.S. at
122 (striking down Department of Veterans Affairs regulation that
had been on books for 60 years).  If an agency interpretation
"flies against the plain language of the statutory text, [this]
exempts courts from any obligation to defer to it."  Id.

     We hasten to add that we do not consider this violation of
section 50.11(b) anything other than serious.  We agree with our
colleagues that had Emerald complied with the cited standard when
its refuse pile failed in December 1992, a similar accident might
not have occurred in April 1993.  See 30 C.F.R.  50.11(b)(8)
(requiring accident reports to include "description of steps
taken to prevent a similar occurrence in the future").  But it
does not follow that the violation must be designated S&S.  Such
a designation is simply at odds with the Act's plainly
articulated graduated enforcement scheme.  Instead, the Secretary
ought to have relied upon her broad discretion under Part 100 to
address the seriousness of this violation.  Furthermore, also at
issue here are underlying violations, all of which we find to be
S&S, and which we believe are the proper vehicle for the
Secretary to have brought down upon Emerald the sanctions of
section 104(d).

     Accordingly, we would reverse the judge's finding that
Emerald's violation of section 50.11(b) was S&S, and dissent from
our colleagues' holding to the contrary.

                         _____________________________
                         James C. Riley, Commissioner

                         _____________________________
                         Theodore F. Verheggen,
                                          Commissioner

                                Distribution

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre,
301 Grant St., 20th Floor, Pittsburgh, PA 15219-1410

W. Christian Schumann, Esq., Colleen Geraghty, Esq., Office
of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 400, Arlington, VA 22203

Administrative Law Judge William Fauver, Federal Mine Safety
& Health Review Commission, Office of Administrative Law
Judges, 5203 Leesburg Pike, Suite 1000, Falls Church, VA 22041

**FOOTNOTES**

     [1]:  Our  colleagues state that section 104(d) "authorizes
the Secretary to include  her  S&S  designation  `in any citation
given  to  the  operator under' the Mine Act."  Slip  op.  at  13
(majority's emphasis).   But  the  findings  which section 104(d)
authorizes  the  Secretary  to  make  -  findings  of   S&S   and
unwarrantable  failure - are clearly and unequivocally predicated
upon the Secretary first finding "that there has been a violation
of any mandatory health or safety standard."  The language of the
Act is inescapable on this point.  See 30 U.S.C.  814(d)(1).

     [2]:  Congressional  "silence" on this specific issue cannot
be  construed  one  way  or  the   other  beyond  the  plain  and
unambiguous terms of the Act itself.   As  the  Supreme Court has
noted,  "congressional  silence  `lacks persuasive significance,'
particularly where administrative  regulations  [or practices, as
in  this  case]  are inconsistent with the controlling  statute."
Brown v. Gardner, 513 U.S. 115, 121 (1994) (citations omitted).

     [3]:  Indeed,  safeguard  notices  are  issued  pursuant  to
section  314(b) of the Act, which appears in Title III, captioned
"Interim Mandatory  Safety Standards for Underground Coal Mines,"
and various implementing  provisions  of  Part  75  of 30 C.F.R.,
captioned "Mandatory Safety Standards - Underground Coal Mines."

     [4]:  Although  the  majority  notes  that  MSHA's "current
practice is to apply a flat penalty of $55 to non-S&S  violations
(slip  op.  at  20 n.23, citing amended 30 C.F.R.  100.4),  they
neglect to mention that this practice is purely discretionary and
that under the single  penalty  assessment  regulation they cite,
the Secretary has broad discretion to assess a penalty based upon
the unique circumstances of each case, notwithstanding  whether a
citation has been designated S&S.  See 30 C.F.R.  100.5.

     [5]:  Our  colleagues  incorrectly  state that we "suggest"
that an S&S designation is "a `term of art'  for  gravity."  Slip
op. at 20.  Instead, we are saying that S&S is a term of art used
in  sections 104(d) and 104(e) to describe violations  which  the
Secretary  finds  are  serious  enough  to trigger the additional
sanctions of these sections.