FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                  1730 K STREET NW, 6TH FLOOR
                    WASHINGTON, D.C.  20006
                        December 10, 1998
SECRETARY OF LABOR,                           :
  MINE SAFETY AND HEALTH                 :
  ADMINISTRATION (MSHA)             :
                                    :
          v.                        :        Docket Nos. KENT 96-254
                                    :                      KENT 96-320
                                    :                      KENT 96-321
HARLAN CUMBERLAND                   :                      KENT 96-322
  COAL COMPANY                      :                      KENT 96-333
BEFORE:  Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
                             DECISION
BY THE COMMISSION:
     These consolidated civil penalty proceedings arise under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine Act").  At issue are:  whether Harlan
Cumberland Coal Company ("Harlan") committed a significant and substantial ("S&S")
violation of 30 C.F.R.  75.202(a) by failing to remove drawrock from roof support straps along
the main intake roadway; whether Harlan committed an S&S violation of 30 C.F.R.  75.220 by
impermissibly deviating from the pillaring provisions of its roof control plan; whether Harlan
committed an S&S violation of 30 C.F.R.  75.1106-3(a)(2) by improperly storing compressed
gas cylinders; whether Harlan committed S&S violations of 30 C.F.R.  75.604(b) by failing to
insulate and seal two permanently spliced trailing cables to exclude moisture; whether Harlan
committed an S&S violation of 30 C.F.R.  75.517 by failing to adequately insulate and fully
protect a power cable; and whether Harlan violated 30 C.F.R.  75.400 by allowing float coal
dust to accumulate on energized power conductors.  Administrative Law Judge David Barbour
concluded that Harlan committed S&S violations of sections 75.202(a), 75.220, 75.1106-3(a)(2),
75.517, 75.400, and two S&S violations of section 75.604(b).  19 FMSHRC 911 (May 1997)
(ALJ).  The Commission granted Harlan's petition for discretionary review ("PDR") challenging
these determinations.  For the reasons that follow, we affirm in part, reverse in part, and remand
for reassessment of civil penalties.
                               I.
                      Citation No. 4243656
     A.   Facts and Procedural Background
     Harlan operates the C-2 Mine, an underground coal mine in Harlan County, Kentucky.
Id. at 912.  The roof above the main intake roadway is supported by bolts.  Id. at 913.  At various
locations, steel straps are bolted to the roof perpendicular to the roadway to supplement the roof
bolts.  Id.; Tr. 34-35.  The straps are approximately 13 to 14 feet long and 8 inches wide.  19
FMSHRC at 913.  The straps are centered approximately four feet apart.  Id.; Tr. 35.  During an
inspection on March 11, 1996, Inspector Larry Bush from the Department of Labor's Mine
Safety and Health Administration ("MSHA") observed that the roof along the main intake
roadway contained several areas of loose hanging drawrock.  19 FMSHRC at 913; Tr. 29.  Some
of this rock was loose and wedged between other rocks, and some lay suspended on or between
the straps.  Tr. 29.  The drawrock measured between one inch and one foot thick.  19 FMSHRC
at 913.  Bush issued a citation alleging an S&S violation of 30 C.F.R.  75.202(a).  Gov't Ex. P-
5.
     After a hearing, the judge concluded that the Secretary had proven a violation of section
75.202(a) by demonstrating that drawrock at various points along the intake roadway was
hanging and ready to fall.  19 FMSHRC at 914.  The judge designated the violation S&S due to
the likelihood of an eventual rock fall and the serious danger posed by the loose hanging rocks.
Id. at 914-15.  In reaching these determinations, the judge relied on Inspector Bush's testimony,
which was based on Bush's first-hand observation of the roof conditions.  Id. at 914.
     B.   Disposition
          1.   Violation
     Harlan contends that the drawrock was supported within the meaning of the standard.
PDR at 3.  The Secretary responds that substantial evidence supports the judge's finding of a
violation.  S. Br. at 14-16.  The Secretary argues that the judge properly credited and relied upon
Inspector Bush's testimony in reaching his finding.  Id.
     The Secretary's roof control standard is broadly worded.  See 30 C.F.R.  75.202(a).
Accordingly, we have held that "the adequacy of particular roof support or other control must be
measured against the test of whether the support or control is what a reasonably prudent person,
familiar with the mining industry and protective purpose of the standard, would have provided in
order to meet the protection intended by the standard."  Canon Coal Co., 9 FMSHRC 667, 668
(Apr. 1987) (cited in Helen Mining Co., 10 FMSHRC 1672, 1675 (Dec. 1988)).
     The parties do not dispute that drawrock was present on and above the straps.  Tr. 21, 37.
They disagree, however, on the dangers posed by loose hanging drawrock.  Harlan's safety
director, Eddie Sargent, testified that Harlan employees are instructed to remove drawrock that
appears dangerous.  Tr. 33, 36.  Based on information given to him by Harlan's superintendent,
Sargent believed the position of the drawrock leading to the citation did not warrant immediate
correction.  Tr. 37-38.  Sargent testified that prematurely removing drawrock increases, rather
than decreases, the danger of rock falls.  Tr. 38.  Conversely, Inspector Bush, who had five years
of experience inspecting the C-2 mine (Tr. 20), testified that simply because drawrock is lying on
a strap does not mean that it will remain there.  Tr. 30.  He stated that the drawrock he observed
was "loose" and could fall "within a short period of time."  Tr. 23.
     A judge's credibility determinations are entitled to great weight and may not be
overturned lightly.  Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992);
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).  We have recognized that, because
the judge has an opportunity to hear the testimony and view the witnesses, he is ordinarily in the
best position to make a credibility determination.  In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) ("Dust Cases") (quoting Ona Corp.
v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)).
     The judge credited Inspector Bush's testimony that the drawrock was hanging and ready
to fall.  19 FMSHRC at 914.  We see no basis for overturning the judge's crediting of the first-
hand observations of Bush over the testimony of Harlan's safety director, who did not personally
view the roof conditions.  We also conclude that the judge correctly determined that a reasonably
prudent person, familiar with the mining industry and the protective purpose of the standard,
would have removed the drawrock upon observing that large, loose slabs, which appeared ready
to fall, were hanging from the roof and lying on straps above the intake roadway.  Accordingly,
we find that substantial evidence supports the judge's determination that Harlan violated section
75.202(a), and affirm his finding of violation.
          2.   Significant and Substantial
     Harlan challenges the judge's S&S finding, asserting that the evidence fails to establish
"a reasonable likelihood that the hazard contributed to will result in an injury."  PDR at 4
(quoting Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)).  The Secretary responds that
substantial evidence supports the judge's designation of the violation as S&S.  S. Br. at 16.
     The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C.  814(d),
and refers to more serious violations.  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).  In Mathies, we further explained:
          In order to establish that a violation of a mandatory safety standard
          is significant and substantial under National Gypsum, the Secretary
          of Labor must prove:  (1) the underlying violation of a mandatory
          safety standard; (2) a discrete safety hazard  that is, a measure of
          danger to safety  contributed to by the violation; (3) a reasonable
          likelihood that the hazard contributed to will result in an injury;
          and (4) a reasonable likelihood that the injury in question will be of
          a reasonably serious nature.
Mathies, 6 FMSHRC at 3-4 (footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).  An evaluation of the reasonable likelihood of injury
should be made assuming continued normal mining operations.  U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985).
     At issue is the third Mathies element.  We have noted that an inspector's judgment is an
important element in an S&S determination.  Mathies, 6 FMSHRC at 5 (citing National Gypsum,
3 FMSHRC at 825-26); see also Buck Creek Coal, 52 F.3d at 135-36 (stating that ALJ did not
abuse discretion in crediting opinion of experienced inspector).  Here, the judge credited
Inspector Bush's testimony that the hanging drawrock, which he found to be loose and ready to
fall, posed a reasonable likelihood of serious injury to miners traveling the roadway below and,
therefore, the violation was S&S.  19 FMSHRC at 914-15.  Bush testified that once the rock is
broken loose, that does not mean that it will remain directly above the strap.  Tr. 30.  Harlan also
acknowledged that drawrock had previously fallen and injured a miner's foot, an injury that kept
the miner out of work for a week.  Tr. 39.  Most importantly, Bush testified that a roof fall could
happen at any time  in fact, he believed a fall was virtually imminent.  Tr. 23.
     In sum, we find that substantial evidence supports the judge's determination that Harlan's
violation of the standard was S&S.  Accordingly, we affirm his S&S determination.
                              II.
                      Citation No. 4243921
     A.   Facts and Procedural Background
     On March 11, 1996, Harlan was in the process of retreat mining on the 005 section of the
C-2 Mine.  19 FMSHRC at 920.  The approved mining sequence for pillar extraction is set forth
in the mine's roof control plan.  Gov't Ex. P-10.  Under the prescribed sequence, a cut is made in
the middle of the pillar (the "key cut") and the roof is then supported by roof bolts.  19 FMSHRC
at 920.  The second cut is made from the opposite side of the pillar, splitting the pillar in two.  Id.
The two portions of the pillar are called "wings."  Id.  Each wing is then extracted in the
sequence described in the roof control plan.  Id.; Gov't Ex. P-10.  The plan also specifies other
permissible mining sequences, including a two-pillar sequence and an alternative mining
sequence.  Gov't Ex. P-10 at 134, 136.  In addition, the plan permits deviation from the required
mining sequence when adverse conditions are encountered, provided that equivalent pillar
support is maintained under the alternate method.  Id. at 116.
     During his March 11 inspection, Inspector Bush came upon a row of six pillars, 
numbered from left to right as 1, 3, 6, 7, 2, and 4  four of which had already been mined.  He
observed that pillars 1 and 3 had been mined from right to left and that pillars 2 and 4 had been
mined from left to right.  19 FMSHRC at 921.  He further observed that pillars 6 and 7 were
being cut straight ahead at the time of inspection.  Id.  Bush interpreted the roof control plan as
mandating that the entire row of pillars be key cut in the same direction, and he concluded that
Harlan's failure to do so constituted an S&S violation of the plan and 30 C.F.R.  75.220.  Gov't
Ex. P-12.
     The judge concluded that Harlan violated the plan by mining the key cuts in different
directions.  19 FMSHRC at 923.  The judge vacated the S&S designation, finding that the
Secretary failed to establish that there was a reasonable likelihood that the hazard contributed to
would result in an injury.  Id. at 923-24.
     B.   Disposition
     Harlan contends that the judge erred in finding that the Secretary proved a violation,
arguing that adverse conditions made mining the entire row of pillars in the same direction
impractical, thereby permitting deviation from the mining sequence described in the roof control
plan.  PDR at 5-10.  Harlan further alleges that "nothing in the plan requires a return to the
original direction of [key] cuts after adverse circumstance [sic] prompt a deviation."  Id. at 9.
The Secretary responds that substantial evidence supports the judge's finding that Harlan violated
section 75.220 by deviating from the pillar cutting sequence described in the mine's roof control
plan.  S. Br. at 18-21.  The Secretary argues that "although the existence of a swag and low roof
may have made it impractical to cut pillars 2 and 4 from right to left, Harlan identified no reason
why it would have been impractical to cut pillar 7 from right to left."  Id. at 18.
     To prove a violation of a mine plan, the Secretary must first establish that the provision
allegedly violated is part of the approved and adopted plan.  Jim Walter Resources, Inc.,
9 FMSHRC 903, 907 (May 1987).  She must then prove that the cited condition or practice
violated the provision.  Id.  When a plan provision is ambiguous, the Secretary may establish the
meaning intended by the parties by presenting credible evidence as to the history and purpose of
the provision, or evidence of consistent enforcement.  Id.
     Here, the issue is whether, as the Secretary alleges, Harlan's plan required the operator to
return to the original mining direction to remove pillars six and seven after adverse conditions
required a deviation in direction to remove pillars two and four.  We conclude it did not.  The
plan contains no such explicit requirement.  Additionally, the Secretary's evidence fails to
demonstrate a "meaning intended by the parties."  See id.  The Secretary did not present any
evidence of prior consistent enforcement of the mining direction requirements of the plan that
would have demonstrated that Harlan was on notice regarding the Secretary's interpretation of
the plan.  Cf. id. at 908.  Moreover, considering the location of pillars six and seven, we conclude
that the Secretary's argument in this case is actually at odds with the broad purpose of the plan to
protect miners from dangerous roof conditions.
     Harlan asserts that "it was SAFER to attack [pillars 6 and 7] head on. . . . [I]t would have
been crazy to . . . drag men and equipment around into an area that was (1) already pillared, with
the attendant roof weakening that results, and (2) already suffering from bad mining . . . ."  PDR
at 9 (emphasis in original).  We agree.  A review of the mining sequence clearly establishes that
attempting to mine pillar seven from right to left, as the Secretary suggests, would have required
miners to enter an area where the mine roof had already been substantially compromised due to
the extraction of pillars two and four.  This mining approach would have subjected miners to an
extremely dangerous and unpredictable area of mine roof.  In retreat mining, standing pillars
serve as roof support, and the extraction of the pillars weakens the roof above the area where the
pillar stood.  Moreover, once a pillar is removed, the mine roof is also weakened in the areas
immediately surrounding a removed pillar  such as entries and intersections  rendering these
areas impassable because of the danger of an imminent roof collapse without warning.
     In the instant case, MSHA's trial exhibit P-11 clearly illustrates that at the time Inspector
Bush entered the area in question, the mine roof was compromised in the areas where pillars two
and four formerly stood, but more importantly was also compromised in the surrounding entries
and intersections up to the right corner of pillar seven, thereby eliminating the possibility that
pillar seven could be mined from right to left.  See Gov't Ex. P-11.  The procedure suggested by
the inspector who filed the citation, considering that he was a roof control specialist, astonishes
us.  In fact, attempting to mine pillar seven from right to left, which was the logical outgrowth of
Inspector Bush's interpretation of the plan, would have required miners to enter an unpredictable
and highly unstable area to commence mining, and would have been extremely dangerous.  The
judge was, therefore, incorrect in finding that "there [was] no reason apparent why pillar No. 7
could not have been cut from right to left."  19 FMSHRC at 923.  Mining pillar seven straight
ahead was the only option available to extract the pillar in a safe manner, and in a manner that
was also consistent with the company's roof control plan.
     Accordingly, we reverse the judge's determination that Harlan's mining of pillar seven
straight ahead violated the roof control plan.  We also vacate the civil penalty assessed by the
judge.
                              III.
                      Citation No. 4243726
     A.   Facts and Procedural Background
     During an inspection of the 004 section of the C-2 Mine on February 27, 1996, MSHA
inspector Robert Clay observed an oxygen tank and an acetylene tank leaning against the rib of a
coal pillar in an active roadway.  19 FMSHRC at 924.  Clay determined that the roadway was
used by "very large [mobile] equipment" and that this equipment passed within one foot of the
tanks.  Id. at 925.  Clay did not examine the tanks to determine whether they contained any
oxygen or acetylene.  Id. at 924.  Based on his determination that the tanks were not secured in
an upright position, Clay issued a citation alleging an S&S violation of 30 C.F.R.  75.1106-
3(a)(2).  Gov't Ex. P-3.
     Judge Barbour concluded that Harlan violated section 75.1106-3(a)(2) by failing to secure
the gas tanks against accidentally tipping over.  19 FMSHRC at 925.  He noted that the possible
absence of gas from the tanks was immaterial, since the standard draws no distinction between
full and empty tanks.  Id.  The judge also affirmed Inspector Clay's S&S designation, relying on
Clay's testimony regarding the extreme hazard posed by acetylene and oxygen gas and the
proximity of the gas tanks to the path of mobile equipment.  Id. at 925-26.  However, the judge
specifically found that the inspector "did not know if any oxygen or acetylene remained in the
tanks."  Id. at 924 (citing Tr. 104).
     B.   Disposition
     Harlan argues that the judge erred in finding the violation of section 75.1106-3(a)(2) to be
S&S, contending that since the Secretary produced no proof that the tanks contained anything,
"there is no evidence in the record to support a finding of a reasonable likelihood' that the
condition cited would result in injury."  PDR at 13.  The Secretary responds that the judge
properly credited Inspector Clay's testimony regarding the dangers of oxygen and acetylene
ignitions, and that substantial evidence supports the judge's designation of the violation as S&S.
S. Br. at 22-23.  The Secretary asserts that it is "reasonably likely" that gas was in the cylinders
because the tanks "were in a working area where gas might well be used."  Id. at 23.  The
Secretary also notes that Harlan never gave any indication that the tanks did not contain gas and
that section 75.1106-3(a) draws no distinction between cylinders containing gas and empty
cylinders.  Id.
     When evaluating the reasonable likelihood of a fire, ignition, or explosion, we have
examined whether a "confluence of factors" was present based on the particular facts
surrounding the violation.  Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).  We also have
indicated that proof of a fuel source is necessary to establish the reasonable likelihood that the
hazard contributed to will result in injury.  Id. at 503.
     At issue here is the third Mathies element.  The judge made no explicit finding
concerning whether the tanks contained fuel.  His view that the presence of fuel was
"immaterial" to the violation question further indicates that he felt no finding was required.  See
19 FMSHRC at 925.  Under Texasgulf, however, such a finding is a prerequisite to an S&S
determination.  Texasgulf, 10 FMSHRC at 501.  By arguing that the location of the tanks in a
work area makes it "reasonably likely" that the tanks contained fuel, the Secretary is in essence
asking the Commission to make an inference at the appellate level.  We decline this invitation.  It
is for the judge in the first instance, not the Commission on review, to make inferences and
findings based on record evidence.  See Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1139
(May 1984) ("It is . . . the judge's duty to draw conclusions from the record . . . ."); Garden
Creek Pocahontas Co., 11 FMSHRC 2148, 2152-53 (Nov. 1989).  We conclude that the judge's
failure to apply Texasgulf, and his consequent failure to make the necessary factual finding as to
the presence of fuel in the tanks required by that precedent, constitute error.
     We further conclude that remand is unnecessary because this record cannot support a
finding that the Secretary met her burden of proving that the tanks contained fuel.  The
Secretary does not quarrel with the judge's finding that Inspector Clay "did not know whether the
cylinders contained oxygene [sic] and acetylene."  19 FMSHRC at 925.  Furthermore, the
Secretary presented no direct evidence that the tanks contained fuel.  In addition, we find
unpersuasive the Secretary's contention, advanced for the first time on review, that the tanks'
location in a work area makes the presence of fuel "reasonably likely."  The fact to be inferred
must be "inherently reasonable and there must be a rational connection between the evidentiary
facts and the ultimate fact inferred."  Garden Creek, 11 FMSHRC at 2153.  The alleged presence
of fuel in the tanks is not rationally connected to the presence of the tanks in a work area.
Without any evidence about when the tanks arrived in the work area, when if ever they were last
used, their weight, or company practice in dealing with such tanks, their presence in the work
area says nothing about whether they contained fuel.  Further, "recognition of an inference is
largely influenced by the difficulty of obtaining the direct evidence necessary to establish the fact
to be inferred."  Id. (citing Mid-Continent, 6 FMSHRC at 1138).  Here, the Secretary has made
no showing that proof of the presence of fuel was "unavailable to the Secretary or was
unreasonably difficult to obtain."  See id.  Indeed, the presence of fuel in the tanks would appear
to be readily provable.
     In sum, because the record supports only the conclusion that the Secretary failed to carry
her burden of proof as to the critical element of a fuel source, substantial evidence does not
support the judge's S&S designation.  Accordingly, we reverse the judge's determination that
this violation was S&S, and remand for reassessment of the penalty.
                              IV.
               Citation Nos. 4250669 and 4250624
     A.   Facts and Procedural Background
     On May 8, 1996, during an inspection of the 004 section, Inspector Clay noticed a
defective permanent splice on the trailing cable to the section's roof bolting machine.  19
FMSHRC at 930.  Clay testified that he could see into the splice of the cable, which carried 480
volts of electricity.  Id. at 930-31; Tr. 107.
     On May 14, 1996, during an inspection of the 005 section, Clay noticed an improperly
insulated permanent splice on the trailing cable from the section's continuous miner.  19
FMSHRC at 934; Tr. 113.  Clay testified that he could see into the cable, which carried 995 volts
of electricity.  19 FMSHRC at 934-35; Tr. 114.
     Clay determined that neither splice was insulated as to exclude moisture, as required by
30 C.F.R.  75.604(b).  19 FMSHRC at 930, 934.  He issued two citations alleging violations of
section 75.604(b).  Gov't Ex. P-26; Gov't Ex. P-36.  He designated both violations S&S, noting
that the cables are handled frequently by miners.  Gov't Ex. P-26; Gov't Ex. P-36; Tr. 115.
     The judge affirmed both citations, stating that "[a]n open splice is not effectively
insulated and sealed to exclude moisture."  19 FMSHRC at 935.  The judge relied on Clay's
unrefuted testimony that the 004 MMU trailing cable splice was open and damp, and his
testimony that the 005 MMU trailing cable splice was open.  Id. at 931, 935.  The judge also
affirmed both S&S designations, emphasizing the potentially fatal hazard created by inadequately
insulated high-voltage cables, parts of which lay in water, and which miners handled frequently.
Id.
     B.   Disposition
     Harlan contends that the judge erred in designating the violations S&S.  PDR at 13-16.
The operator argues, with respect to both violations, that there were no exposed copper leads and
that the Secretary failed to prove "that anyone was or would be exposed to electrical current by
handling the cable."  Id. at 15, 16.  Harlan also alleges that Clay's testimony that there is "[no]
way of knowing" whether an accident would occur manifests a lack of evidence "that an injury of
any consequence was reasonably likely.'"  Id. at 15 (emphasis in original).  Regarding the 005
MMU citation, Harlan also asserts that the judge's finding that a miner "could receive a serious
electrical burn" does not satisfy the "reasonable likelihood" standard in Mathies.  Id. at 14-15.
     The Secretary responds, with respect to both violations, that substantial evidence supports
the judge's S&S designations.  S. Br. at 23.  She argues that the judge properly credited Clay's
testimony on the factors contributing to a reasonable likelihood of injury.  Id. at 24.  The
Secretary also contends that Harlan's assertion that there were no copper leads exposed does not
preclude an S&S finding, because unseen holes may be present in the insulation around the
conductors.  Id. at 25.
     We are unpersuaded by Harlan's chief argument that a reasonable likelihood of injury
under the third Mathies element cannot be established if the Secretary has not shown that there
were exposed copper leads by which a miner could be electrocuted.  PDR at 15-16.  In U.S. Steel
Mining Co., 6 FMSHRC 1573 (July 1984), we held that four inches of exposed wire constituted
an S&S violation, despite lack of direct evidence that the exposed wires were not insulated.
With regard to the 004 MMU citation, Inspector Clay testified that he could see into the splice,
but could not see copper wire.  Tr. 108.  Similarly, with regard to the 005 MMU citation, he
testified that he could see into the open splice, but could not see bare conductors.  Tr. 118.
However, Clay emphasized the danger of these situations, stating that "there's no way of
knowing [whether there are holes in the insulation surrounding the wire within the cable]."  Tr.
108; cf. U.S. Steel, 6 FMSHRC at 1574-75 (recognizing that a tear in the outer jacket of a cable
significantly compromises the cable's protective function).  Inspector Clay also testified that,
even if no copper wires are exposed, there is a danger of electrocution, because "[m]uch like an
extension cord with a naked place, you may not be able to see the naked place, but you grab a
hold of it and you'll know it."  Tr. 109.
     Other record evidence supports the judge's determination that those violations were
reasonably likely to result in serious injury.  Parts of both cables were lying in water, and one of
the splices was open and damp.  19 FMSHRC at 931, 935; Tr. 108-09, 115.  The Commission in
U.S. Steel regarded the potential effect of water on the electrical hazard posed by a violation "as
an example of how conditions could develop in the mining environment which could cause an
improperly protected cable to become more dangerous."  U.S. Steel, 6 FMSHRC at 1574.  As
Clay testified, water is an efficient conductor of electricity.  Tr. 107, 115.  Moreover, during the
course of their work, miners frequently moved both cables with their hands rather than with
ropes or "hot sticks."  19 FMSHRC at 931, 935; Tr. 108-110, 112, 115-117.
     In sum, the record as a whole supports the judge's conclusion that, under continued
normal mining operations, both violations of section 75.604(b) were reasonably likely to
contribute to a serious electrical injury or fatality.  Accordingly, we affirm the judge's
determinations that Harlan's section 75.604(b) violations were S&S.
                               V.
                      Citation No. 4250670
     A.   Facts and Procedural Background
     On May 8, 1996, during an inspection of the 004 section, Inspector Clay noticed a readily
visible rupture in the outer jacket of the trailing cable of the sections's roof bolting machine.  19
FMSHRC at 932; Tr. 141.  Clay concluded that, since the insulated power conductors inside the
jacket were exposed, the trailing cable was not insulated and protected as required by 30 C.F.R.
 75.517.  19 FMSHRC at 932; Tr. 141.  Clay issued a citation alleging a violation of section
75.517, and designated the violation S&S, noting that the cable is handled frequently by miners.
Gov't Ex. P-27.
     The judge affirmed the citation, stating that "[a] cable with an opening in its outer jacket
through which its interior insulated conductors are exposed is not a fully protected cable."  19
FMSHRC at 933.  He further found that "when the jacket is ruptured, the cable is not insulated as
designed."  Id.  The judge affirmed the S&S designation, crediting Clay's inference that any force
sufficient to rupture the outer cable necessarily damaged the internal conductors.  Id. at 933-34.
     B.   Disposition
     Harlan argues that the judge erred in designating the violation S&S.  PDR at 17.  Harlan
asserts that the judge erred in overruling its objection to Clay's speculative testimony that, based
on his visual observation of the cable's ruptured outer jacket, the interior conductors were
damaged as well.  Id. 19-20.  According to Harlan, the judge compounded the error by relying on
this testimony to reach his S&S determination.  Id. at 20.  The Secretary responds that substantial
evidence supports the judge's determination that Harlan's violation of section 75.517 was S&S.
S. Br. at 26.  She argues that the judge correctly credited Clay's testimony that any force
sufficient to rupture the cable's outer jacket would necessarily have damaged the conductors
inside.  Id. at 26-27.
     The issue on review is again the third Mathies element:  whether there exists "a
reasonable likelihood that the hazard contributed to will result in an injury."  See Mathies, 6
FMSHRC at 3-4.  Harlan's argument that reasonable likelihood of injury cannot be established if
the record lacks direct evidence of damaged interior conductors or proof of the existence of
exposed, uninsulated wire is inconsistent with Commission precedent.  In U.S. Steel, the parties
agreed that the outer jacket of a cable had ruptured, but the Secretary presented no direct
evidence that the inner insulation was compromised.  U.S. Steel, 6 FMSHRC at 1573-74.  There,
we held that the gash in the outer jacket of the trailing cable constituted an S&S violation of
section 75.517, in part because in the "harsh environment of a coal mine," a tear in the outer
jacket weakens the protection afforded by the inner insulation, "contribut[ing] significantly and
substantially[] to the cause and effect of a safety hazard."  Id. at 1574-75.  Similarly, in this case
the outer jacket of a trailing cable was torn, but there is no direct evidence that the inner
insulation was damaged.  Cf. id.; see also U.S. Steel Mining, Inc., 7 FMSHRC 327, 329 (Mar.
1985) (affirming S&S designation and noting that "[t]he fact that the insulation was not cut at the
time the violation was cited does not negate the possibility that the violation could result in
[electrocution]").  The circumstances in the instant case are similar to those in U.S. Steel, 6
FMSHRC 1573, which we find persuasive in this matter.  Moreover, we have already held that
the Secretary need not show the presence of exposed copper leads to establish the reasonable
likelihood of injury from a violation of section 75.604, which contains an insulation requirement
for permanent splices similar to the insulation requirement in section 75.517.  Slip op. at 12.
     There is no dispute that the rupture in the outer jacket of the trailing cable compromised a
layer of insulation between miners and a potentially fatal 480 volt current.  See Tr. 141.  In
addition, the judge credited Inspector Clay's testimony that invisible damage can exist in the
internal insulation surrounding the conductors, and that even a pinhole-sized breach can conduct
enough current to electrocute a miner.  19 FMSHRC at 933; Tr. 142, 145.  We see no reason to
disturb the judge's decision to credit this testimony.  See Dust Cases, 17 FMSHRC at 1878
(upholding judge's credibility determination), citing Ona Corp., 729 F.2d at 719.  Clay's
testimony supports the judge's conclusion that the rupture in the outer cable increased the
likelihood of serious electrical injury.  The judge's conclusion is bolstered by the presence of
water and the high frequency with which the cable is manually handled during normal mining
operations.  See 19 FMSHRC at 933; Tr. 143.  Therefore, we find that substantial evidence
supports the judge's S&S designation, and we affirm it.
                              VI.
                      Citation No. 4250672
     A.   Facts and Procedural Background
     On May 8, 1996, during an inspection of the 004 section of the mine, Inspector Clay
observed what he believed to be an accumulation of combustible material on a piece of electrical
equipment.  Gov't Ex. P-30.  Clay made this observation by visual inspection through a
plexiglass window, and determined that the material was "float coal dust."  Id.; Tr. 155.  Clay
issued a citation alleging a violation of 30 C.F.R.  75.400 due to the accumulation of
"combustible material in the form of float coal dust . . . in and on the energized power conductors
of the . . . power center . . . ."  Gov't Ex. P-30.  Clay designated this alleged violation S&S due to
the ignitability of float coal dust, the presence of ignition sources in the power center, and the
serious injuries which could result from an explosion.  19 FMSHRC at 936; Tr. 156-57.
     The judge affirmed the citation, citing Clay's testimony that float coal dust was present
on the power center in violation of section 75.400.  19 FMSHRC at 937.  He also affirmed Clay's
S&S designation, crediting Clay's testimony as to the combustibility of float coal dust, the
frequency of electrical arcing in the power center, and the serious injuries which could result
from an ensuing explosion.  Id.
     B.   Disposition
     Harlan contends that the judge erred in finding a violation of section 75.400 because the
inspector's visual diagnosis through a plexiglass window is not proof of the existence of float
coal dust, and because the inspector failed to determine whether the cited accumulated material
would pass through a No. 200 sieve before issuing a citation alleging "float coal dust"
accumulation.  PDR at 22-23.  The Secretary responds that substantial evidence supports the
judge's finding that the accumulated material in the power center observed by Inspector Clay
constituted a violation of section 75.400.  S. Br. at 27.  The Secretary explains that nothing in the
regulations suggests that performing tests is a prerequisite to issuing a citation, and that the
personal observations of an experienced inspector are sufficient to support a finding of violation
for accumulation of float coal dust.  Id. at 28.  The Secretary contends that when a test is required
prior to issuing a citation, the regulations so state.  Id. at n.13.
     Rather than alleging the violation of section 75.400 to include accumulations of coal dust,
float coal dust or other combustible materials, the citation here specifically alleges the presence
solely of "combustible material in the form of float coal dust."  Gov't Ex. P-30.  At trial, the
testimony similarly focused on the presence of float coal dust.  Tr. 153-61.  Section 75.400-1(b)
defines "float coal dust" as "the coal dust consisting of particles of coal that can pass a No. 200
sieve."  30 C.F.R.  75.400-1(b).
     We find that substantial evidence supports the judge's determination that Harlan violated
the standard.  The judge implicitly credited Inspector Clay's testimony that he observed float coal
dust in the power center.  Clay also testified that the dust had previously gone into suspension in
order to get into the vents on the power center.  Tr. 158.  Reduced to its essence, Harlan's
argument is that, as a matter of law, the judge could not rely on the inspector's testimony to
support his finding of violation.  However, we have never held that violations of section 75.400
require a test to determine the particular combustible material present, and section 75.400 does
not by its terms require testing.  Our precedent indicates that violations of the accumulation
standard have been established by inspector observations.  See, e.g., Amax Coal Co., 19
FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 (Mar.
1997); Enlow Fork Mining Co., 19 FMSHRC 5, 20 & n.2, 21 (Jan. 1997).  Further, nothing
advanced by Harlan here persuades us to take the extraordinary step of overruling our precedent
by engrafting a testing requirement onto section 75.400.
     The operator did not present any evidence to rebut the inspector's testimony that float
coal dust was present, nor did Harlan establish that float coal dust could not be identified by
observation.  Insofar as Harlan's argument is construed as an attack on the judge's decision to
credit the inspector's testimony, we see no extraordinary circumstances that would justify
overturning this credibility finding.  Thus, the inspector's unrebutted testimony based on his
observation of the cited condition constitutes substantial evidence supporting the judge's
conclusion that Harlan violated section 75.400.  Accordingly, we affirm the judge's finding of
violation.
                              VII.
                           Conclusion
     For the foregoing reasons, we affirm the judge's determination that Harlan violated the 30
C.F.R.  75.202(a) alleged in Citation No. 4243656, and we affirm his designation of this
violation as S&S.  We also affirm the judge's determinations that the 30 C.F.R.  75.604
violations alleged in Citation Nos. 4250669 and 4250624, as well as Harlan's violation of 30
C.F.R.  75.517 alleged in Citation No. 4250670, were S&S.  We affirm the judge's
determination that Harlan committed the 30 C.F.R.  75.400 violation alleged in Citation No.
4250672.  We reverse the judge's conclusion that Harlan violated the pillaring plan provision of
the parties' roof control plan alleged in Citation No. 4243921, and we vacate the related civil
penalty.  Finally, we reverse the judge's conclusion that Harlan's violation of 30 C.F.R.
 75.1106-3(a)(2) alleged in Citation No. 4243726 was S&S, and we remand to the judge for
reassessment of the civil penalty for this violation.
                              Mary Lu Jordan, Chairman
                              Marc Lincoln Marks, Commissioner
                              James C. Riley, Commissioner
                              Theodore F. Verheggen, Commissioner
                              Robert H. Beatty, Jr., Commissioner
Distribution
H. Kent Hendrickson, Esq.
Rice and Hendrickson
P.O. Drawer 980
Harlan, KY 40831
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041