<DOC>
[DOCID: f:manal1.wais]

 
MANALAPAN MINING COMPANY, INCORPORATED
August 30, 1996
KENT 93-646


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                           August 30, 1996

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       :    Docket Nos. KENT 93-646
                                   :                KENT 93-884
MANALAPAN MINING COMPANY,          :
  INCORPORATED                     :
                                   :


BEFORE:  Jordan, Chairman; Holen, Marks and Riley, Commissioners


                               DECISION

BY THE COMMISSION:

     This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  801 et seq.
(1994) ("Mine Act" or "Act"), raises the issue of whether
violations of three safety standards, 30 C.F.R.  75.1101[1],
77.1109(c)(1)[2], and 75.360(a)[3] (1995), by Manalapan Mining
Company, Inc. ("Manalapan"), were significant and substantial
("S&S").[4]  Administrative Law Judge Avram Weisberger found
that the three violations were not S&S.  16 FMSHRC 1669 (August
1994) (ALJ).  The Commission granted the Secretary of Labor's
petition for discretionary review challenging the judge's
determinations.[5]  For the reasons that follow, the judge's
decision with respect to the first two S&S determinations stands
as if affirmed, and the Commission reverses the third S&S holding
with respect to the preshift violation.

                                  I.

                  Factual and Procedural Background

     Manalapan operates underground coal mines in Harlan County,
Kentucky.  This consolidated proceeding involved approximately 45
citations and orders that arose from inspections conducted by the
Department of Labor's Mine Safety and Health Administration ("MSHA")
of the Manalapan mines.  The judge held evidentiary hearings in
this proceeding on March 1-3, and April 26-28, 1994.[6]  Three
violations remain at issue involving Manalapan Mines No. 1 and No. 7
in Highsplint, Kentucky.

A.  Violations of Sections 75.1101 and 77. 1109(c)(1);
    Citation Nos. 3164716 and 3835998

1.  Deluge Fire Suppression System

     On February 22, 1993, MSHA Inspector Jim Langley visited
Manalapan's No. 1 Mine.  He observed that the belt drive for the
mechanized mining unit number 006 was not provided with a deluge
fire suppression system.  16 FMSHRC at 1691.  A deluge fire
suppression system consists of two parallel branch lines,
approximately 50 feet long, with water nozzles at eight foot
intervals.  Tr. IV 132.  The system is activated automatically by
fire sensors and sprays the upper and lower sides of the top belt
and the upper side of the bottom belt.  Id.  Inspector Langley
issued a citation pursuant to section 104(d)(1) of the Mine Act,
30 U.S.C.  814(d)(1), alleging an S&S violation of section
75.1101.  Gov't Ex. 49.

2.  Fire Extinguisher

     On June 28, 1993, MSHA Inspector Elmer Thomas conducted an
inspection at Manalapan's No. 7 Mine.  16 FMSHRC at
1700.  Inspector Thomas observed a front-end loader
scooping up and loading coal into trucks.  Id. at 1700-
01; Tr. V 354.  He determined that the loader lacked a
fire extinguisher.  16 FMSHRC at 1700.  Thomas issued a
citation charging a violation of section 77.1109(c)(1)
and designated the violation as S&S.  Gov't Ex. 12A.

B.  Violation of Section 75.360(a); Order No. 4238749
    (Preshift Examination)

     On April 20, 1993, at approximately noon, MSHA Inspector
Adron Wilson was traveling to section 707 of Manalapan
Mine No. 7 and observed four employees in the mine
repairing a roof bolting machine.  16 FMSHRC at 1676,
1701; Gov't Ex. 7A.  The men had entered the mine at
approximately 8:00 a.m.  Tr. V 397.  No preshift
examination had been performed before they entered the
mine.  16 FMSHRC at 1701.  At 12:05 p.m., the inspector
issued an order, pursuant to section 104(d)(1) of the
Mine Act, alleging a violation of section 75.360(a) for
failure to perform the preshift inspection.  Id.; Gov't
Ex. 7A.  The order was terminated at 12:40 p.m., after
Allen Johnson, the mine superintendent, conducted a
preshift examination and observed no hazardous
conditions.  16 FMSHRC at 1702; Gov't Ex. 7A.

     Manalapan challenged the citations and order, and the
matters were consolidated for hearing.  In his
decision, the judge affirmed the citations with regard
to the deluge fire suppression system and the fire
extinguisher.  16 FMSHRC at 1691, 1700.  He vacated the
S&S designations, however.  Id. at 1692-93, 1701.  The
judge found that the Secretary had shown only that
potential fire sources were present and, therefore, had
not proved an injury-producing event was likely to
occur.  Id.  He assessed penalties of $2,000 for the
lack of a fire deluge system, and $400 for the absence
of a fire extinguisher.  Id. at 1693, 1701.  With
regard to the operator's failure to conduct a preshift
examination, the judge also affirmed the citation.  Id.
at 1701.  He concluded, however, that the violation was
not S&S, noting that the inspection conducted
immediately after the order revealed no hazardous
conditions in the affected area of the mine.  Id. at
1702.  Finding that the violation resulted from
aggravated conduct, the judge assessed a penalty of
$3,000.  Id.

                                 II.

                            Disposition[7]

A.  Deluge Fire Suppression System and Fire Extinguisher

     Commissioner Holen and Commissioner Riley would affirm the
judge's decision.   Chairman Jordan and Commissioner Marks
would vacate and remand the judge's decision.   Under
Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (August
1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992),
the effect of the split decision is to allow the judge's
decision to stand as if affirmed.

B.  Preshift Examination

     All Commissioners reverse the judge's determination that
Manalapan's preshift violation was not S&S.  All
Commissioners remand for reassessment of penalties for this
violation.

     Chairman Jordan and Commissioner Marks would reverse on the
ground that there is a presumption that violations of the
preshift examination standard are S&S.  Commissioner Holen
and Commissioner Riley would reverse on the ground that
substantial evidence does not support the judge.

                                 III.

                Separate Opinions of the Commissioners

     Commissioners Holen and Riley, in favor of affirming in part
and reversing in part the decision of the administrative law
judge:

A.  Deluge Fire Suppression System and Fire Extinguisher

     The Secretary argues that, in analyzing the S&S designations
of the two citations, the only logical approach is to assume
the occurrence of a fire.  He further asserts that, if
violations of safety standards designed to respond to
emergency situations are not analyzed in the context of the
emergency having occurred, those violations only rarely will
be found to be S&S.  S. Br. at 10-15.

     Manalapan argues that the Secretary, in effect, seeks an
irrebuttable presumption as to the occurrence of an
emergency condition and that such a presumption violates the
constitutional requirements of due process.  See M. Br. at
7-16.  Manalapan further asserts that the Commission may
adopt such a presumption only through notice-and-comment
rulemaking.  Id. at 16-17.  In response, the Secretary
disagrees with Manalapan's contention that the use of a
factual presumption in analyzing S&S designations of
violations of emergency standards raises constitutional
questions.  S. Reply Br. at 1-9.  The Secretary also argues
in rebuttal that administrative agencies can adopt
presumptions through case adjudication and are not
constrained to do so by rulemaking.  Id. at 9-12.

     The S&S terminology is taken from section 104(d)(1) of the
Act 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 (April 1981).  In  Mathies Coal Co., 6
FMSHRC 1 (January 1984), the Commission 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.

Id. 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).

     We reject the Secretary's argument that the Commission, in
determining whether there is a reasonable likelihood that a
hazard would result in an injury, must presume the occurrence of
an emergency, in the instant case a fire.[8]  The Secretary bears
the burden of proving that a violation is S&S.  See, e.g.,
Peabody Coal Co. 17 FMSHRC 26, 28 (January 1995), citing Union
Oil of Cal., 11 FMSHRC 289, 298-99 (March 1989).  As the
Secretary notes, "A presumption is a device for allocating the
burden of proof and often shifts the burden of proof to the party
opposing the presumption."  S. Reply Br. at 2 (citations
omitted).  The Secretary urges the Commission to presume an
emergency for an undefined and potentially large class of health
and safety standards without indicating what situations under
those standards would qualify as an emergency.  We decline to
modify the time-tested Commission precedent that guides our
analysis of violations alleged to be S&S by adopting such a
broad-based presumption.

     Further, the Secretary has failed to develop a record that
establishes the need for such a change in the law.  In
Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd, 824 F.2d
1071 (D.C. Cir. 1987), the Commission held that, when the
Secretary proves a violation of the respirable dust standard, 30
C.F.R.  70.100(a), "a presumption arises that the third element
of the significant and substantial test -- a reasonable
likelihood that the health hazard contributed to will result in
an illness -- has been established."  8 FMSHRC at 899.  The
Commission adopted the presumption because of the virtual
impossibility of determining the contribution of a single
incident of overexposure to respirable dust to the development of
respiratory diseases, including pneumoconiosis.  "[I]t is not
possible to assess the precise contribution that a particular
overexposure will make to the development of respiratory
disease."  Id. at 898.  The Secretary has not shown here a
similar need for the use of a presumption in analyzing violations
of standards that address emergency situations.  Indeed, the
Secretary has prevailed in cases where the S&S designation of
such standards has been challenged.  E.g., Consolidation Coal
Co., 6 FMSHRC 189, 194-195 (February 1984) (violation of fire
fighting equipment standard affirmed as S&S based on substantial
evidence).  Thus, we decline to decide on the present record
that, in determining whether violations of certain standards are
properly designated S&S, we should presume the occurrence of an
emergency.

     We note, moreover, an observation by the Secretary that
appears to render his suggested S&S framework irrelevant to the
deluge system violation:

     [E]ven assuming the occurrence of a fire, a
     violation of 30 C.F.R. 75.1101 might not be
     significant and substantial.  For example, if
     other fire extinguishers were present, the
     failure to have a deluge-type fire
     suppression system might not result in a
     reasonable likelihood of serious injuries . .
     . .

S. Br. at 14 n.7.  As Manalapan points out, Inspector Langley
admitted that there were fire extinguishers located at the belt.
M. Br. at 2, citing Tr. IV at 162-63.  The Secretary's exception
appears to fit the facts in this case.

     As in previous cases in which the Secretary has asked the
Commission to examine the S&S nature of a violation in the
context of a presumed emergency, he has not argued that the
judge's S&S findings are not supported by the record.  Beech Fork
Processing, Inc., 14 FMSHRC 1316, 1318-19 (August 1992); Shamrock
Coal Co., 14 FMSHRC 1306, 1310 (August 1992); Shamrock Coal Co.,
14 FMSHRC 1300, 1302 (August 1992).  Thus, the Commission is
precluded from reviewing those findings on a substantial evidence
basis.  Accordingly, we affirm the judge's determinations that
Manalapan's violations of sections 75.1101 and 77.1109(c)(1) were
not S&S.

B.  Preshift Examination

     The Secretary argues that the Commission should conclude
that a failure to conduct  a preshift examination is
presumptively S&S.  S. Br. 15-21.  With respect to this
violation, unlike the two preceding violations, the
Secretary contends that the judge incorrectly applied the
Mathies criteria; he notes that the judge relied on an
inspection performed after the citation, which showed no
hazardous conditions.  S. PDR at 16-17.

     Manalapan argues that the presumption the Secretary seeks
violates due process because there is no rational connection
between the violation and the presumption of reasonable
likelihood of serious injury.  M. Br. at 10-11.  Manalapan
further asserts that the presumption is arbitrary because it
is contrary to the record facts.  Id. at 11-12.  Manalapan
also points out that the Secretary did not raise his
argument that the failure to conduct a preshift examination
is presumptively S&S before the administrative law judge.
Id. at 18.

     We reject the Secretary's argument that the Commission
should apply a presumption to the S&S designation of the
citation involving Manalapan's failure to conduct the
preshift examination.  First, the Secretary did not raise
his presumption argument to the administrative law judge.
Section 113 of the Mine Act, 30 U.S.C.  823(d)(2)(A)(iii),
provides, "Except for good cause shown, no assignment of
error by any party shall rely on any question of fact or law
upon which the administrative law judge had not been
afforded an opportunity to pass."  Commission precedent also
prohibits consideration of new theories raised on appeal.
Beech Fork, 14 FMSHRC at 1321, citing Ozark-Mahoning Co., 12
FMSHRC 376, 379 (March 1990).  See also 29 C.F.R. 
2700.70(d) (1995).  We see no reason to ignore the Mine
Act's statutory review provisions and depart from settled
Commission precedent to reach the Secretary's belatedly-
raised theory.

     Again, the Secretary suggests a rebuttal to his proposed
presumption that fits the facts of this case:  "The mine
operator may then rebut the presumption that hazards existed
by producing evidence indicating that no hazards existed."
S. Reply Br. at 5.  Here, upon immediate examination after
the violation, "no hazardous conditions were observed."  16
FMSHRC at 1702.  Thus, adoption of the Secretary's proposed
presumption may achieve a result contrary to that intended
and preclude a finding of S&S for Manalapan's failure to
conduct a preshift examination.

     Viewing the record as a whole, we find it does not support
the judge's finding that Manalapan's violation was not
reasonably likely to result in an injury and thus that the
Secretary had not proven the third element of the Mathies
test.  Id.  Substantial evidence does not support the
judge's S&S determination.[9]  In addition, the judge's
analysis of mine conditions erroneously considered
subsequent conditions as they existed when the operator
abated the citation.

     In concluding that Manalapan's failure to conduct a preshift
examination was not S&S, the judge relied on the fact that,
following the citation, the area involved was inspected "and
no hazardous conditions were observed."  16 FMSHRC at 1702.
The judge's reliance on post-citation events to vacate the
S&S designation is incorrect as a matter of law.  The
question of whether a violation is S&S must be resolved on
the basis of the conditions as they existed at the time of
the violation and as they might have existed under continued
normal mining operations.  Eastern Associated Coal Corp., 13
FMSHRC 178, 183 (February 1991); U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (August 1985).  Moreover, certain
conditions that a preshift examination would disclose, such
as methane or inadequate ventilation, are transitory in
nature and the results of a subsequent inspection may have
little relevance to conditions at the time of violation.

     The Secretary's evidence showed that four miners entered the
707 section of the mine to perform maintenance and repair
work on a roof bolter. 16 FMSHRC at 1701.  The mine had been
out of production for several days.  Tr. V 415.  Although
two of the miners were certified inspectors, no preshift
examination was performed.  16 FMSHRC at 1701-02.  They were
in the mine for four hours without such an inspection.  See
Tr. V 397, Gov't Ex. 7A.  The miners' equipment included
welding and cutting torches for their work on the roof
bolter.  Tr. V 370-71, 379-80.  The roof bolter was
energized.  Tr. V 420.  Inspector Wilson testified that,
because the 707 section was adjacent to a section that had
been mined previously, there was a possibility that the
oxygen would be low or blackdamp (a mixture of carbon
dioxide and nitrogen) would be present.  Tr. V 389-90.
Bottle samples also indicated that the mine liberated
methane.  Tr. V 391-92, 426.  During idle periods, methane
can build up, and other unforseen hazards can develop.  See
Buck Creek Coal Co., 17 FMSHRC 8, 14 (January 1995).[10]
Inspector Langley testified that the mine roof had a
tendency to fall and that the mine had experienced several
roof falls.  16 FMSHRC at 1701.  In evaluating the presence
of a hazard, the Commission has considered conditions on a
mine-wide basis.  Cyprus Plateau Mining Corp., 16 FMSHRC
1610, 1614 (August 1994).

     We also conclude that the fourth element of Mathies is
established: injuries resulting from the hazards posed were
reasonably likely to be of a reasonably serious nature.
Accordingly, we reverse the judge's determination that the
violation was not S&S.  See Buck Creek, 17 FMSHRC at 14.

                              Conclusion

     For the foregoing reasons, we affirm the judge's S&S
determinations in Citation Nos. 3164716 and 3835998.  We
reverse his S&S determination in Order No. 4238749 and
remand accordingly for penalty reassessment.


                             ___________________________
                            Arlene Holen, Commissioner

                           ____________________________
                           James C. Riley, Commissioner


**FOOTNOTES**

     [1]:  Section  75.1101, entitled "Deluge-type water sprays,
foam  generators;  main   and  secondary  belt-conveyor  drives,"
provides:

               Deluge-type   water   sprays   or   foam
          generators automatically actuated by rise  in
          temperature, or other no less effective means
          approved  by  the  Secretary  of  controlling
          fire,   shall   be   installed  at  main  and
          secondary belt-conveyor drives.

[2]:   Section 77.1109(c)(1),  entitled  "Quantity
     and   location  of  firefighting  equipment,"
     provides:

          Mobile   equipment,   including  trucks,
     front-end   loaders,   bulldozers,   portable
     welding units, and augers,  shall be equipped
     with at least one portable fire extinguisher.

[3]:    Section   75.360(a),  entitled   "Preshift
     examination," provides:

          Within 3  hours  preceding the beginning
     of  any  shift  and  before   anyone  on  the
     oncoming shift, other than certified  persons
     conducting   examinations  required  by  this
     subpart, enters  any  underground area of the
     mine, a certified person  designated  by  the
     operator shall make a preshift examination.

[4]:   The  S&S  terminology is taken from section
     104(d)(1) of the Act, 30 U.S.C.
       814(d)(1),  which  distinguishes  as  more
     serious  in  nature any violation that "could
     significantly and substantially contribute to
     the cause and  effect  of a . . . mine safety
     or health hazard . . . ."

[5]:  Manalapan also successfully filed a petition
     for review of two docket  numbers  that  were
     part  of  this proceeding.  The Secretary and
     Manalapan subsequently  moved  the Commission
     to approve their settlement of those  matters
     and  Manalapan  sought to dismiss its appeal.
     The Commission remanded  the  motion  to  the
     judge  (16 FMSHRC 2027, 2028 (October 1994)),
     and the judge subsequently granted the motion
     (16  FMSHRC   2308  (November  1994)  (ALJ)).
     Accordingly, only the Secretary's petition is
     now before the Commission.

[6]:  "Tr. I" refers  to  the transcript for March
     1, 1994; "Tr. II" refers  to  the  transcript
     for  March 2, 1994; "Tr. III" refers  to  the
     transcript for March 3, 1994; "Tr. IV" refers
     to the transcript for April 26, 1994; "Tr. V"
     refers  to the transcript for April 27, 1994;
     and "Tr. VI"
     refers to the transcript for April 28, 1994.

[7]:  We direct  the  judge  to correct a clerical
     oversight with respect to Docket No. KENT 93-
     882, which was settled, and  to indicate that
     Citation  No.  3003352  was  vacated  by  the
     Secretary.   See S. Br. at 6 n.5; Tr. IV 5.

[8]:    The   Commission  rejected  on  procedural
     grounds the Secretary's arguments in previous
     cases that  it  examine  the  S&S  nature  of
     violations  in  the  context  of the presumed
     occurrence  of  an  emergency.   Beech   Fork
     Processing,   Inc.,   14  FMSHRC  1316,  1321
     (August 1992); Shamrock  Coal  Co., 14 FMSHRC
     1306, 1314 (August 1992); Shamrock  Coal Co.,
     14 FMSHRC 1300, 1304 (August 1992).

[9]:   The  Commission is bound by the substantial
     evidence     test     when    reviewing    an
     administrative     law    judge's     factual
     determinations.       30       U.S.C.       
     823(d)(2)(A)(ii)(I).   "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  (November
     1989),  quoting Consolidated  Edison  Co.  v.
     NLRB, 305  U.S.  197,  229  (1938).   We  are
     guided  by  the  settled  principle  that, in
     reviewing  the  whole  record,  an  appellate
     tribunal must
     also  consider  anything  in the record  that
     "fairly  detracts"  from the  weight  of  the
     evidence that supports  a challenged finding.
     Universal Camera Corp. v. NLRB, 340 U.S. 474,
     488 (1951).

[10]:  In Buck Creek, Chairman  Jordan was part of
     the majority, which concluded  on substantial
     evidence  grounds  that a preshift  violation
     was  S&S.   17 FMSHRC  at  14.   Commissioner
     Marks,  dissenting,   concluded   that   Buck
     Creek's   failure   to   conduct  a  preshift
     examination  had  not  been  proven   to   be
     violative.  17 FMSHRC at 18-19.

     Chairman Jordan and Commissioner Marks, in favor of vacating
and remanding in part and reversing in part the decision of
the administrative law judge:

A.  Deluge Fire Suppression System and Fire Extinguisher

     The Secretary alternates between the terms "presumption" and
"assumption" in proposing his analytical framework for the
fire suppression violations (see S. Br. at 7, 11, 13; S.
Reply Br. at 1-4, 6-8) and couples that argument with his
argument calling for a presumption of S&S as to all preshift
violations.  We see a significant distinction between the
two forms of relief requested in this case and therefore
have separately analyzed the issues.

     Notwithstanding the Secretary's imprecision in describing
the relief he seeks regarding the fire suppression
violations, we conclude that the Secretary is merely urging
the Commission to make a factual assumption when evaluating
whether a fire suppression violation is S&S.  The assumption
sought is not regarding a fact that is in issue.  The
Secretary must still prove that there was no functioning
deluge system or fire extinguisher and that the absence of
the fire suppression equipment at the cited location creates
a risk of a serious injury.[1]  Nor is the assumption
related to a legal issue, as was the case in Consolidation
Coal Co., 8 FMSHRC 890 (June 1986), aff'd, 824 F.2d 1071
(D.C. Cir. 1987), wherein the Commission recognized a
rebuttable presumption of S&S regarding violations of 30
C.F.R.  70.100(a), the respirable dust standard.  Rather,
the assumption sought by the Secretary is to evaluate the
effect of the violation under the circumstances and
conditions in which the standard was intended to provide
protection.  In this case, where a fire deluge system was
not provided and where a fire extinguisher was not provided,
the assumption sought is the existence of a fire or
explosion.

     The judge determined that Manalapan violated section 75.1101
because the 006 section belt drive was not provided with a
deluge fire suppression system. 16 FMSHRC at 1691.  Among
other facts, the judge accepted the MSHA inspector's
testimony that: (1) numerous ignition sources existed at the
cited location, including belt drives, rollers, belt boxes,
cables, drive rollers and bottom rollers and (2) that the
cited area also contained accumulated float dust and loose
coal, float dust in the starter box, the absence of a sensor
line and the absence of a fire hose.  Id. at 1692.
Notwithstanding the foregoing, the judge concluded
"[A]lthough they (sic) were potential fire sources present,
there is no evidence to predicate a conclusion that these
sources were in such a physical condition as to render an
ignition or explosion reasonably likely to have occurred."
Id. at 1692-93 (emphasis in original).  Therefore, he
determined that the violation was not S&S.

     Regarding the violation of section 75.1109(c)(1), the judge
determined that Manalapan had failed to equip its front-end
loader with a portable fire extinguisher.  16 FMSHRC at
1700.  The judge accepted the MSHA inspector's testimony
that the loader was being used in an area that contained
battery wires, oil hoses, brake lines containing combustible
brake fluid, as well as combustible engine and hydraulic
oil.  Id. at 1701.  Notwithstanding the foregoing, the judge
concluded, "The record establishes the presence of only
potential fire ignition sources.  I thus find that it has
not been established that the violation was significant and
substantial."  Id. (emphasis in original).

     In reaching the foregoing negative S&S conclusions, the
judge failed to address the Secretary's argument that
consideration of the seriousness of fire suppression
violations should be made within the context of the
circumstances in which the required fire suppression
equipment is to be used, i.e., in the event of a fire or
explosion.

     The Secretary has reiterated this position before the
Commission.  With respect to both violations, the Secretary
stresses that the standards are designed to "provide
protection only in the event of an emergency."  S. Br. at
12.  Therefore, the Secretary argues, the only logical
approach in evaluating whether the violations pose an "S&S
risk" is to assume that the contemplated emergency has
already occurred."  Id. at 11.  Further, unless the analysis
is based upon that assumption, "violations of these
critically important standards will rarely if ever be found
to be significant and substantial, because the likelihood of
the emergency occurring should always be remote."  Id.
Underscoring his point, the Secretary notes, "Indeed, were
there to be a fire at the belt conveyor drive, the failure
to have a fire suppression system at that location would
likely be an imminent danger."  Id. at 11 n.6.  Accordingly,
the Secretary urges that in evaluating whether a violation
of this type is S&S, the Commission should recognize that:

     The likelihood of a fire or explosion
     occurring is not the relevant question.
     Rather, the relevant question is, given the
     occurrence of a fire or explosion, whether
     the failure to have any fire suppression
     system . . . is reasonably likely to result
     in serious injuries or deaths that would not
     occur if a fire suppression system had been
     installed as required by the standard.

Id. at 13-14 (emphasis supplied).

      If such an approach is adopted, the Secretary recognizes
that:

     Assuming the occurrence of the underlying
     emergency, i.e., a fire or explosion, does
     not itself establish the Secretary's prima
     faci[e] case on the third element of the
     Commission's significant and substantial test
     [Mathies].  The Secretary is still required
     to demonstrate that, assuming the underlying
     emergency, the failure to have either a
     deluge fire suppression system on the coal
     carrying conveyor belt or a fire extinguisher
     on a front-end loader is reasonably likely to
     contribute to an injury under the
     circumstances presented by each case.  Once
     the Secretary has established his prima
     faci[e] case, the burden shifts[2] to the
     mine operator to produce evidence that the
     violation will not result in an injury.  The
     operator could meet this burden by showing
     that there were effective alternative means
     of combating the hazard addressed by the
     violation cited.  In other words, the mine
     operator could rebut the presumption by
     proving that there were equivalent alternate
     fire suppression systems or equipment
     available.  Whether any alternative fire
     suppression system or equipment was
     equivalent to the protections provided in the
     safety standard which was violated would be a
     matter for the judge to decide on the basis
     of all of the evidence.

S. Reply Br. at 6-7 (emphasis supplied).

     We have considered the Secretary's argument and Manalapan's
opposition to it and we conclude that the Secretary is entirely
correct in arguing that the only logical way to evaluate the
gravity or seriousness of a fire suppression violation is to
consider the effect the violation would have in the event that
the occasion for its use arises.  This is, in our opinion, no
different from the situation where an MSHA inspector alleges an
S&S violation after determining that a truck is being operated
without an emergency brake.  In evaluating the seriousness of
that violation we routinely consider the risk presented to the
equipment operator and to the other miners working or traveling
near the cited truck should the need arise to use the emergency
brake.  Clearly the truck can operate without the use of an
emergency brake, just as the coal carrying belt and the end-
loader functioned properly without the use of the fire
suppression equipment.  However, in gauging the seriousness of
the violation, we consider what would happen if the truck, while
being operated during continued mining operations, required the
use of the emergency brake, i.e., if an emergency arose!  See
U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
Similarly, the Secretary urges that we apply that approach when
evaluating the seriousness of a fire suppression violation.  To
do otherwise is to fail to recognize and adhere to the overriding
mandate of the Mine Act -- to ensure that we construe the law in
a fair way that provides the maximum protection to our nation's
miners.

     Regrettably, in rejecting the Secretary's position our
colleagues do not appear to have recognized the logic of the
argument.  When distilled to the core, the reasons offered
by Commissioners Holen and Riley for their rejection of the
Secretary's call for an assumption are:

     (1) the Secretary urges the Commission "to
     presume an emergency for an undefined and
     potentially large class of health and safety
     standards without indicating what situations
     under those standards would qualify as an
     emergency;"
     (2) the Secretary's need for the presumption here
     is not like the need demonstrated in
     Consolidation;
     (3) the facts in this case "appear[] to render
     [the Secretary's] suggested S&S framework
     irrelevant to the deluge system violation."

Slip op. at 6.

     For the reasons set forth below, we conclude that our
colleagues' failure, or refusal, to adopt the Secretary's
argument is grounded on irrelevancies and a misunderstanding of
the Secretary's position.

     Notwithstanding the vague perception of the issue offered by
our colleagues, it is clear that the Secretary's argument relates
to the one circumstance delineated in this case, i.e., the
assumption of a fire or explosion when considering whether fire
suppression violations are S&S.  If our colleagues are troubled
by the prospect that future cases may present the issue of what
constitutes a fire suppression violation, or what type of
equipment constitutes fire suppression equipment, that is
irrelevant to this case and should not influence the disposition
here.  There seems to be no dispute by the parties that the cited
equipment is fire suppression equipment.

     The second basis set forth by Commissioners Holen and Riley
for their rejection of the Secretary's call for the assumption of
a fire or explosion is simply that this case is unlike the
circumstances presented in Consolidation.  "[T]he Secretary has
failed to develop a record that establishes the need for such a
change in the law."  Slip op. at 6.  Do our colleagues need some
documentation demonstrating what happens when a belt fire occurs
in a mine where there is no deluge fire suppression protection?
Do they seriously doubt that the absence of that protection
heightens the risk of injury and death to the miners exposed to
that unprotected condition?  We do not.  Accordingly, we find
this concern of our colleagues to be misguided and unfounded.

     Finally, and most disturbing, our colleagues grossly
misapprehend the Secretary's argument which aptly demonstrates
that the assumption of a fire or explosion would not, by itself,
establish that the violation is S&S -- that the operator would
still have the opportunity to defend itself from the charge.

     [E]ven assuming the occurrence of a fire, a
     violation of [section] 75.1101 might not be
     significant and substantial.  For example, if
     other fire extinguishers were present, the
     failure to have a deluge-type fire
     suppression system might not result in a
     reasonable likelihood of serious injuries [or
     deaths depending upon all of the
     circumstances surrounding the violation.]

Slip op. at 6, quoting S. Br. at 14 n.7.

     In quoting the foregoing, our colleagues conclude that the
Secretary's observation "appears to render his suggested S&S
framework irrelevant to the deluge system violation."  Slip op.
at 6.  With all due respect, our colleagues have failed to
comprehend the argument and have completely inverted its purpose.
We find the Secretary's description of how the assumption would
be applied to be not only relevant, but also persuasive, in that
it assures us that the adoption of such a framework would not be
at the expense of fairness to all cited operators.[3]

     For the foregoing reasons, we conclude that the assumption
of a fire or explosion should be made when the Commission
evaluates whether a fire suppression violation is S&S.  In light
of the above, we would vacate the judge's conclusions on these
issues and remand for an analysis that applies the foregoing
legal conclusions.

B.  Preshift Examination

     The Secretary argues that the Commission should conclude
that a failure to conduct a preshift examination is
presumptively S&S.  S. Br. at 15-21.  The Secretary further
contends that the judge incorrectly applied the criteria in
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984); he notes
that the judge relied on an inspection performed after the
citation, which showed no hazardous conditions.  S. PDR at
16-17.

     Manalapan argues that the presumption the Secretary seeks
violates due process because there is no rational connection
between the violation and the presumption of reasonable
likelihood of serious injury.  M. Br. at 10-11.  Manalapan
also asserts that the presumption is arbitrary because it is
contrary to the record facts.  Id. at 11-12.  Manalapan also
notes that the Secretary did not raise his argument that the
failure to conduct a preshift examination is presumptively
S&S before the administrative law judge.  Id. at 18.

     We first address Manalapan's contention that we may not
consider the presumption argument because the Secretary did
not raise it before the administrative law judge.  Although
the Mine Act generally precludes us from reviewing issues
not raised before the judge, there is an exception "for good
cause shown."  30 U.S.C.  823(d)(2)(A)(iii).  Here, the
"good cause" standard is met because the issue before us
"raises a legal question fundamental in this and future
cases."  Brennan v. Occupational Safety & Health Review
Comm'n, 511 F.2d 1139, 1143 n.4 (9th Cir. 1975).  The
question of whether a violation of the preshift standard is
S&S comes before the Commission on a regular basis.
Because, as we explain below, the traditional method of
determining S&S is not appropriate for this particular type
of violation, we must provide timely guidance on this
question.

     The Mine Act's bar against appellate review of issues not
first decided by a trial judge is based on the need for
"further factfinding where warranted" and the desire "to
adequately develop the record."  S. Rep. No. 181, 95th
Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 637 (1978).  We wholeheartedly
embrace this principle.  However, the question of whether or
not to create this legal presumption does not require any
additional factfinding.  We can conceive of no additions to
the record that are necessary for us to rule on this
question.  We are confident that the statutory provisions,
legislative history, and the briefs submitted clearly
suffice to make this determination.

     Although generally bound by the same constraints, federal
appellate courts have demonstrated a flexible approach in
this area.  See, e.g., State of New Jersey, Dept. of Educ.
v. Hufstedler, 724 F.2d 34, 36 n.1 (3d Cir. 1983) ("[O]ur
practice has been to hear issues not raised in earlier
proceedings when special circumstances warrant an exception
to the general rule. [citations omitted].  Since [the issue
raised] is singularly within the competence of appellate
courts and is  not predicated on complex factual
determinations, we will consider the  . . .     argument . .
. ."); R.R. Yardmasters of America v. Harris, 721 F.2d 1332,
1337 (D.C. Cir. 1983) ("[B]ecause the issue  .  .  .  is one
of law, requires no further factual development, has been
fully briefed by both parties, and can be resolved beyond
any doubt, we will exercise our discretion to address the
issue.").  Accordingly, because the issue is a legal one, to
which Manalapan has fully responded, we agree to address it
on the merits.  See Bjes v. Consolidation Coal Co., 6 FMSHRC
1411, 1417 (June 1984).

     The S&S terminology is taken from section 104(d)(1) of the
Act 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 (April 1981).  In Mathies, the Commission
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.

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).

     To evaluate the Secretary's request for a presumption that a
failure to perform a preshift inspection is S&S, we first review
the rationale underlying the establishment of presumptions by
courts and administrative agencies.  There are several reasons
why courts and agencies create presumptions.  Presumptions are
created to remedy an imbalance due to one party's superior access
to evidence, because of notions of probability (when a judge
believes that proof of fact B makes the inference of the
existence of fact A probable) or for social policy reasons.  2
Kenneth S. Broun et al., McCormick on Evidence  343, at 454-55
(4th ed. 1992).  Most presumptions are created for a combination
of these reasons.  Id.

     The creation of a legal presumption is not a novel concept
in mine litigation.  For example, the Black Lung Benefits Act, 30
U.S.C.  901 et seq. (1994), contains a rebuttable  presumption
that a miner who worked for 25 years or more in a coal mine shall
be entitled to black lung benefits unless it is established that
he or she was not disabled due to pneumoconiosis.  In rejecting a
due process challenge to this presumption, the Third Circuit
stated:

     By [enacting the presumption], Congress
     recognized the difficulties involved in
     diagnosing respiratory impairments due to
     coal mine employment and the problems
     inherent in proving survivors' claims.
     Congress acted rationally by enacting the
     rebuttable presumption contained in 
     411(c)(5).

U.S. Steel Corp. v. Oravetz, 686 F.2d 197, 202 (3d Cir. 1982).
See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1975)
(upholding the constitutionality of sections of the Black Lung
Benefits Act providing that a miner with 10 years' employment in
the mine suffering from pneumoconiosis is presumed to have
contracted the disease from his employment and that if a miner
with 10 years' mining employment dies from a respiratory disease
he or she is presumed to have died from pneumoconiosis).

     The Commission itself embraced the concept that violations
of certain standards may be presumptively S&S in its opinion in
Consolidation.  In Consolidation, the Commission held that,
instead of requiring the Secretary to prove all four prongs of
the Mathies test in every case involving a violation of section
70.100(a) (the respirable dust standard), it would institute a
rebuttable presumption that the violation is S&S.  8 FMSHRC at
899.  The Commission based its creation of this presumption on
"the nature of the health hazard at issue, the potentially
devastating consequences for affected miners, and strong concern
expressed by Congress for eliminating respiratory illnesses in
miners."  Id.  Similar policy and evidentiary concerns lead us to
the conclusion that a presumption of S&S is warranted when an
operator is cited for failure to conduct a preshift inspection.

     The preshift inspection requirement is the linchpin of Mine
Act safety protections.  Without a timely preshift inspection,
unwary miners may be sent into areas containing hazardous
conditions.  Congress explicitly acknowledged the importance of
the preshift inspection by making it a longstanding statutory
mandate, dating back to the Federal Coal Mine Safety Act of 1952,
30 U.S.C.  471 et seq. (1955).  These provisions were
strengthened in the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C.  801 et seq. (1976), and carried over in
identical fashion to the Mine Act.  The Senate Report on the 1969
Coal Act emphasized the importance of these inspections, stating
that "[c]hanges occur so rapidly in the mines that it is
imperative that the examinations be made as near as possible to
the time the workmen enter the mine."  S. Rep. 411, 91st Cong.,
1st Sess. 57 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess.,
Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969, at 183 (1975) ("Coal Act Legis. Hist.").

     Both the Senate Report and the Conference Report emphasized:

     No miner may enter the underground portion of
     a mine until the preshift examination is
     completed, the examiner's report is
     transmitted to the surface and actually
     recorded, and until hazardous conditions or
     standards violations are corrected.

Coal Act Legis. Hist. at 183 and 1610.

     In its recent 1996  revision of safety standards for the
ventilation of underground coal mines, the Mine Safety and Health
Administration acknowledged that:

          [t]he preshift examination is a
     critically important and fundamental safety
     practice in the industry.  It is a primary
     means of determining the effectiveness of the
     mine's ventilation system and of detecting
     developing hazards, such as methane
     accumulations, water accumulations, and bad
     roof.

61 Fed. Reg. 9790 (1996).[4]

     In a previous discussion of an earlier version of this
standard, MSHA stated:

     An examination of these areas [to be
     preshifted] allows miners on the oncoming
     shift to be notified if hazards exist and
     allows corrective actions to be taken.  In
     addition to methane accumulations and oxygen
     deficiency, other hazards that can be
     detected during the preshift examination are
     loose roof or ribs, water accumulation that
     affects air courses or escapeways, electrical
     hazards from trolley wires, and fire hazards
     from damaged or improperly operating belt
     conveyors.

57 Fed. Reg. 20893 (1992).

     In its comment on the March 1996 final rule, MSHA
acknowledged several accidents which occurred at least in part
because the area in question received no examination or only an
inadequate examination under the standards in effect at the
time.[5]  61 Fed. Reg. 9798 (1996).  MSHA noted that the preshift
and supplemental exam requirements of the rule it was
promulgating "would have served well to prevent these accidents."
Id.

      In Emerald Mines Corp., 7 FMSHRC 437 (March 1985) (ALJ),
Administrative Law Judge Broderick recognized the importance of
the preshift examination in the arsenal of protections afforded
to those working in the mines.  In holding that the failure to
conduct a preshift inspection was S&S, he stated that:

     [t]he whole rationale for requiring preshift
     examinations is the fact that underground
     coal mines are places of unexpected,
     unanticipated hazards:  roof hazards, rib
     hazards, ventilation and methane hazards.  I
     conclude that failure to make the required
     preshift examination of active workings in an
     underground coal mine contributes to "a
     measure of danger to safety" which is
     reasonably likely to result in a reasonably
     serious injury.

7 FMSHRC at 444.

     This Commission has recently had occasion to pronounce the
preshift requirement "unambiguous" and of "fundamental importance
in assuring a safe working environment underground."  Buck Creek
Coal Co., 17 FMSHRC 8, 15 (January 1995).  Thus, the policy
considerations, as articulated by Congress, MSHA and the
Commission, lead us to conclude that an S&S presumption in this
area is appropriate.[6]

     Evidentiary considerations lead us to adopt the presumption
as well.  Violations of the preshift requirement generally do not
fit the Mathies format because the mandatory safety standard is
designed to detect and correct potential, unknown hazards,
whereas the Mathies test demands evidence of demonstrated dangers
which will likely result in serious injury.  Arguably, under the
Mathies test, the only way the Secretary should prevail in
proving a preshift violation S&S is to present evidence that the
operator's failure to conduct the required exam resulted in the
miners being exposed to a hazardous condition.  Only in this way
could MSHA prove "a measure of danger to safety . . .
contributed to by the violation" and demonstrate a "reasonable
likelihood that the hazard contributed to will result in an
injury."  Mathies, 6 FMSHRC at 3-4.

      Except on rare occasion, it is doubtful whether MSHA would
be able to meet this evidentiary burden.  Unless the inspector
has examined the area himself and is waiting underground to greet
the miners, he will not be in a position to describe the
conditions that actually confronted the miners when they arrived
in the area in question.  Violations of the preshift requirements
are generally discovered only after the miners are permitted to
work in the unexamined area.  Sometimes the violation is detected
when the inspector decides to review the operator's preshift
examination reporting book.  See, e.g., Emerald Mines, 7 FMSHRC
at 442.  Sometimes it is discovered when the inspector notices
the lack of the examiner's initials in the underground area in
question or, as here, when the inspector observes that the person
who allegedly conducted the preshift exam did not have any of the
proper examination equipment.  Tr. V 372.  By the time the
inspector detects the violation, hours, days or even weeks may
have passed and the conditions present at the time the inspector
issues the citation may bear little resemblance to those present
at the time the violation occurred.  Moreover, there would be no
way for MSHA to know if the lack of hazardous conditions at the
time the violation is detected is a result of corrective actions
the operator may have taken after miners entered the unexamined
area.  Because of these factors, inspectors will rarely be able
to ascertain whether specific hazards existed at the time of the
preshift violation.

     Just as the Commission's respirable dust presumption is
based on the fact that "the development of respirable dust
induced disease is insidious, furtive and incapable of precise
prediction" (Consolidation, 8 FMSHRC at 898), the failure to
perform a preshift inspection will, in many cases, expose miners
to potential serious hazards but yet deprive the inspector of any
feasible way to establish that the specific hazards existed when
the shift in question entered the mine.  See also Mullins Coal
Co. v. Director, OWCP, 484 U.S. 135, 158 (1987) (when it enacted
the statutory presumption in the Black Lung Act, "Congress was
aware that it is difficult for coal miners whose health has been
impaired by the insidious effects of their work environment to
prove that their diseases are totally disabling and coal mine
related, or that those diseases are in fact pneumoconiosis").
Similarly, in a case dealing with the unwarrantable failure
aspects of a section 104(d) violation, the Commission held "[t]o
read out of the Act the protections and incentives of section
104(d) because an inspector is not physically present to observe
a violation while it is occurring distorts the force and blunts
the effectiveness of section 104(d).  We discern no warrant for
such a formalistic approach."  Nacco Mining Co., 9 FMSHRC 1541,
1546 (September 1987).

     Although the Secretary in this case was unable to adduce
evidence of hazardous conditions awaiting the miners when they
entered the No. 707 section, the Secretary did present evidence
that the mine liberated methane, had a roof which could fall, and
included a mined out area which could contain an oxygen-deficient
atmosphere.  In voting to reverse the judge, our colleagues have
necessarily concluded that this evidence compels a finding that
an injury producing event was reasonably likely to occur as a
result of Manalapan's violation.  We submit that the conditions
relied on by our colleagues would apply to virtually any
underground mine.  Indeed these are the very conditions that the
Secretary and Congress have cited in explaining the rationale for
imposing the preshift requirements in the first place.

     We take issue, not with our colleagues' finding of S&S, but
with how they choose to reach their conclusion.  We suggest that,
in spite of their protestations to the contrary, our colleagues
have for all practical purposes applied a presumption of S&S to
violations citing a failure to conduct the preshift exam.  If the
Commission will uphold the Secretary's S&S designation because
the mine is capable of liberating methane (even though the
Secretary presented no evidence that the unexamined area
contained methane, Tr. V 388, 420), and because the roof may be
unstable (even though the Secretary presented no evidence that
the roof in the unexamined area posed a hazard, Id.), and because
adjacent mined out areas could contain dangerous atmosphere (even
though the Secretary presented no evidence that such areas were
actually oxygen-deficient or that miners were even likely to
encounter the atmosphere, Id.), it is disingenuous to claim, as
our colleagues do, that we are applying Mathies, which requires
that the S&S determination be based on "the particular facts
surrounding that violation . . . ."   Mathies, 6 FMSHRC at 3
(citing Nat'l Gypsum, 3 FMSHRC at 825).[7]  Thus, because of the
inherent potential hazards existing in underground mining, we
conclude that violations of the preshift standard are
presumptively S&S.  Moreover, to claim to decide this issue under
Mathies, as our colleagues do, is to engage in a transparent
fiction that can only foster more confusion.[8]

     Our decision to apply a presumption of S&S to preshift
violations does not end our inquiry.  In the instant case, the
judge vacated the Secretary's S&S determination because the
inspection conducted immediately after the order revealed no
hazardous conditions in the affected area of the mine.  16 FMSHRC
at 1701-02.  We must therefore address the issue of whether the
operator can rebut the S&S presumption for preshift violations by
evidence tending to prove that the area in question did not
contain hazards when the miners entered it.  Assuming the judge
is allowed to consider the condition of the area at noon, we
believe a reasonable mind might accept the demonstrated lack of
hazards at that time as a basis for inferring that dangerous
conditions did not exist when the miners entered the area four
hours earlier.  While it is true many hazardous conditions are
transient in nature, a judge would not be unreasonable in
inferring, for example, that a roof that was weak or unstable at
8:00 a.m. would not (without human intervention) appear safe at
noon.  Likewise, if a disruption in the ventilation had caused
methane to accumulate at 8:00 a.m. then, unless the problem were
corrected, it is reasonable to conclude that methane would be
present in an even greater amount four hours later.  A lack of
methane and roof problems at noon could therefore provide a basis
for inferring the lack of methane and roof problem at 8:00 a.m.
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 (November 1989), quoting Consolidated Edison Co. v NLRB, 305
U.S. 197, 229 (1938).  True, the evidence of the conditions at
noon would have to be weighed against MSHA's evidence regarding
the mine's potential for methane liberation and the propensity of
the roof to fall, but we are not able to say that the only
conclusion a reasonable mind weighing all the evidence could
reach is that an injury-producing event was likely to occur at
the time the miners entered the area in question.

     That being said, however, we agree with our colleagues that
the judge's reliance on the condition of the area at noon is
incorrect as a matter of law.  We reach our determination not, as
our colleagues conclude, because such evidence results from a
"post-citation event[]" (slip op. at 8), but because allowing
such evidence to rebut the S&S presumption would eviscerate the
important prophylactic purpose behind requiring preshift
examinations in the first place.  Whether a preshift violation is
S&S should be determined on the basis of the serious potential
for harm that can confront miners when they enter an unexamined
area of an underground mine.  The risk associated with the
operator's failure to preshift the area should be assessed not on
the basis of the condition of the area itself but on the action
of assigning miners to an unexamined area.  Would we not assess
the risk associated with playing Russian roulette by considering
the potential for harm involved in holding a loaded gun up to
one's head and pulling the trigger, rather than by considering
what happened after the trigger was pulled?  We conclude that the
determination of risk to be accorded to a failure to conduct the
preshift exam should not turn on the fortuitous circumstance that
the unexamined area did not contain the hazardous conditions
the exam was designed to detect.[9]

     Excluding post-hoc evidence because of its potential to
undermine the prophylactic purpose of the preshift exam is
consistent with several provisions of the Federal Rules of
Evidence that exclude certain types of evidence based mainly on
policy considerations.  For example, pursuant to Fed. R. Evid.
407, evidence of repairs made after an accident is not admissible
as evidence of negligence before the accident.  This is based on
the policy that encourages potential defendants to fix hazardous
conditions without fearing these actions will be used as evidence
against them.  10 James W. Moore, Moore's Federal Practice 
407.02, at IV- 152 (2d ed. 1996); 29 Am. Jur. 2d Evidence  464,
at 534 (1994).  Similarly, Fed. R. Evid. 408 excludes evidence of
settlement discussions to promote the public policy "favoring the
compromise and settlement of disputes" (10 James W. Moore,
Moore's Federal Practice  408.01[9], at IV-167 (2d ed. 1996))
and to "foster full and free discussion and negotiations in order
to encourage out-of-court settlements" (29 Am. Jur. 2d Evidence 
 508, at 588 (1994)).  Finally, Fed. R. Evid. 409 states that
evidence of payment or promises to pay medical expenses is not
admissible to prove liability for the injury.  The rule is based
on policy considerations and "humanitarian motives" (10 James W.
Moore, Moore's Federal Practice  409.02, at IV-176 (2d ed. 1996)),
because to hold otherwise "would tend to discourage assistance to
the injured individual" (29 Am. Jur. 2d Evidence  480, at 560
(1994)).  Accordingly, our refusal to take into account evidence
concerning the lack of hazards in the relevant area in
determining whether a failure to preshift is S&S is based on
equally important policy concerns, as we articulated above.[10]


**FOOTNOTES**

     [1]:  Notwithstanding Commissioner Marks' disagreement  with
the  Commission's  existing  test in Mathies Coal Co., 6 FMSHRC 1
(January 1984) (see U.S. Steel  Mining Co., 18 FMSHRC 862, 868-75
(June 1996) (Marks, M., concurring)),  this  opinion  is rendered
within the existing Mathies framework of S&S analysis.

     [2]:  The Secretary's imprecision here and at page  2 of his
reply  brief  must be clarified.  Although the "burden shift[s],"
it is NOT a shifting  of the burden of proof.  That burden always
remains with the Secretary.  The referenced shift to the operator
to "produce evidence" relates to the burden of going forward with
evidence intended to rebut the Secretary's evidence.

     [3]:  Manalapan argues that it is a violation of due process
to assume the existence of a fire in determining whether the fire
suppression violations were S&S.  M. Br. at 7-16.  We reject this
assertion.

     Manalapan's  contentions   regarding  the  fire  suppression
system violations are completely  misplaced because the Secretary
is not even asking us to create a presumption  in  this  context.
He  is  simply  asking us to assume a fact -- the existence of  a
fire -- when examining  the  third element of the Mathies test (a
reasonable likelihood that the  hazard contributed to will result
in an injury).  The Secretary admits that this will not establish
his prima facie case on the third  element  of  the S&S test.  S.
Reply  Br.  at  6-7.   He  acknowledges  that he would  still  be
required to show that, assuming the fire,  the  failure to have a
deluge  system  or  fire  extinguisher  is reasonably  likely  to
contribute to an injury.  Id.  The operator  would of course have
the opportunity to rebut this evidence by demonstrating  that the
violation  will  not  result  in  injury.   Accordingly,  we find
Manalapan's due process argument in this context inapposite.

     [4]:  Prior to 1992, the preshift requirement was located at
30  C.F.R.    75.303  and  tracked  the statutory language at 30
U.S.C.  863(d)(1).  In 1992, MSHA revised  the  safety standards
for ventilation of underground coal mines.  The preshift standard
was  redesignated  at  section  75.360(a)  and,  instead  of  one
continuous  paragraph,  the  requirements  were  separated   into
various subsections.  The language was updated, and the areas  to
be  examined  were  clarified  and  expanded.   The 1996 revision
further  clarified the areas subject to the preshift  requirement
and the manner in which the examination is to be performed.

     [5]:   These included explosions at Greenwich Collieries No.
1 Mine in February  1984,  in  which  3  miners  were killed; the
explosion at Day Branch Mine in 1994 where 2 miners  died, and an
ignition  at  the  Loveridge  No.  22 Mine in 1992 that burned  1
miner.  61 Fed. Reg. 9798 (1996).

         MSHA also recognized that explosions at the Red Ash Mine
in  1973, the Scotia Mine in 1976, the  P&P  Mine  in  1977,  the
Ferrell  #17 Mine in 1980, the Greenwich #1 Mine in 1984, and the
Day Branch  No.  9  Mine in 1994, were situations in which miners
were sent into an area  that had not been preshift-inspected.  61
Fed. Reg. 9794 (1996).

     [6]:    Several   state   mining   laws   include   preshift
requirements that parallel  the federal mandate.  A review of the
West Virginia mining statute,  for  example, reveals the singular
importance  of the preshift examiner or  "fire  boss."   Adequate
examinations  by the fire bosses are considered so essential that
while performing  their  duties  the  fire  bosses "shall have no
superior officers, but all the employees working  inside  of such
mine  or  mines  shall be subordinate to them in their particular
work."  W. Va. Code  22A-2-21 (1994).

     [7]:  Moreover,  it  is  difficult to see how our colleagues
can square their S&S analysis here  with  their recent holding in
Jim Walter Resources, Inc., 18 FMSHRC 508 (April  1996), in which
they restricted consideration of the S&S nature of a violation to
surrounding  circumstances which were themselves also  violative.
They refused to consider evidence of a massive accumulation in an
inactive area  because it did not constitute a violation.  Id. at
511.  Although a  mine's  ability  to  liberate  methane, and its
potential  to  contain  unsafe roof and dangerous atmosphere  are
conditions  which  can pose  hazards  to  miners,  they  are  not
necessarily violations.    Indeed, one could argue that, by their
holding  today,  our  colleagues   have   overruled   Jim  Walter
Resources, sub silentio.

     [8]:   Although  Manalapan  has correctly cited the standard
for a due process violation, it applied it incorrectly.  We agree
that due process is denied if a presumption  does  not have "some
rational connection between the fact proved and the ultimate fact
presumed,  and  [if]  the  influence  of  one fact from proof  of
another [is] . . . so unreasonable as to be  a  purely  arbitrary
mandate."  M. Br. at 9-10, citing Usery v. Turner Elkhorn  Mining
Co., 428 U.S. 1, 28 (1976).  In light of our extensive discussion
regarding  the  importance  of  the  preshift  and  its  role  in
preventing  accidents,  supra  at  17-18,  we  believe that it is
clearly rational to assume that if an operator fails to conduct a
preshift inspection (the fact proven), that there is a reasonable
likelihood  of  serious  injury to the miners, and  thus  an  S&S
violation  (the fact presumed).   We  therefore  find  that  this
presumption does not violate due process.

     [9]:  This  was  the  approach taken by Judge Broderick who,
when he reviewed the S&S designation  on  a  preshift  violation,
posed the following query:

     How does one evaluate the hazard to which the
     violation  contributes?  By what is disclosed
     on  an examination  of  the  area  after  the
     examination?   Emerald  contends that this is
     the test.  But the hazard  and  the violation
     here involve, not the condition of  the  area
     as  such,  but rather the assigning of miners
     to work in an uninspected area. . . .  Can it
     seriously be  argued  that failure to perform
     one of these examinations  is not significant
     and    substantial    if   a   post-violation
     examination    does    not   show   hazardous
     conditions?

Emerald Mines, 7 FMSHRC at 444.

     [10]:  To the extent the Secretary suggests that the
presumption of S&S may be rebutted by evidence showing that
hazards did not exist in the unexamined area (S. Reply Br.
at 4-5), we reject such suggestion for the reasons enunciated
above.  To the extent the Secretary suggests that other 
theoretical bases exist for rebutting an S&S presumption
(S.Br. at 19 n.11), we decline to issue a declaratory type
opinion in this case.

                              Conclusion

     In light of the forgoing, we would vacate and remand the
judge's S&S determinations pertaining to Citation No.
3164716 and No. 3835998.  We would reverse his S&S
determination pertaining to Citation No. 4238749 and remand
for reassessment of penalties.


                                    ______________________________
                                    Mary Lu Jordan, Chairman

                                    ______________________________
                                    Marc Lincoln Marks,
                                    Commissioner