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

 
ISLAND CREEK COAL COMPANY
January 30, 1997
KENT 95-214


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C. 20006


                        January 30, 1997


SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
           v.                      :
                                        Docket No. KENT 95-214
                                   :
ISLAND CREEK COAL COMPANY          :


BEFORE: Jordan, Chairman; Marks, Riley and Verheggen, Commissioners[1]


                               DECISION

BY:  Jordan, Chairman; Marks and Riley, Commissioners

     This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq. (1994) ("Mine
Act" or "Act").  At issue is the finding of Administrative Law Judge
T. Todd Hodgdon that an escape of methane onto a working section from
a cut-through core drill hole did not constitute an unplanned
inundation of gas, and that therefore Island Creek Coal Company
("Island Creek") did not violate 30 C.F.R.  50.10, which requires
operators to immediately report certain accidents to the Department
of Labor's Mine Safety and Health Administration ("MSHA").  18 FMSHRC
1498 (August 1996) (ALJ).  The Commission granted the Secretary of
Labor's petition for discretionary review challenging the judge's
determination.  For the reasons that follow, we reverse and remand
for assessment of an appropriate civil penalty.


**FOOTNOTES**

     [1]:  Commissioner Beatty assumed office after this case had
been  considered  and  decided  at  a  decisional meeting.  A new
Commissioner possesses legal authority to  participate in pending
cases,  but  such participation is discretionary.   Mid-Continent
Resources, Inc.,  16  FMSHRC  1218, 1218 n.2 (June 1994).  In the
interest of efficient decision  making,  Commissioner  Beatty has
elected not to participate in this matter.


                                I.

                 Factual and Procedural Background

     Island Creek operates the Ohio No. 11 Mine, an underground
coal mine with four working sections.  18 FMSHRC at 1500.  At
around 6:45 p.m. on April 7, 1994, while mining a crosscut between the
No. 5 and 6 entries on the 004 section, a continuous miner cut
through a core drill hole.[2]  Id.; Tr. 41.  The core drill hole went
from the No. 11 seam, where mining was taking place, to the No. 9 seam
below it.  18 FMSHRC at 1500.  The No. 9 seam had been sealed for
years and contained methane gas under pressure. Id.; Gatlin Dep.
15-16, 19.[3]

     When the cut-through occurred, methane from the No. 9 seam
poured onto the 004 section. 18 FMSHRC at 1500.  The continuous
mining machine shut down when its  methane monitor detected 1.5 to 2%
methane. Tr. 25; Gatlin Dep. 12.  Eleven miners were at work on the
004 section at the time of the cut-through.  Tr. 23.

     The second shift foreman, John Cambron, measured 3 to 3.5 %
methane in an area adjacent to the crosscut where the core drill hole
was cut.  18 FMSHRC at 1500; Tr. 135.  Cambron then directed that
the ventilation curtain be extended in the No. 5 entry and, after 3
minutes, took a methane reading that showed less than 1 % methane.
18 FMSHRC at 1500; Tr. 135-37. Cambron then sent the crew to the
No. 5 section, except for three miners whom he retained to help him
deal with the methane.  Tr. 137. Next, Cambron had timbers set on
the miner itself so that ventilation curtains could be hung
to deflect methane away from the immobilized equipment.  Tr. 137-40.
At about 9:00 p.m., before attempting to move the miner,
Cambron called his superior, Tommy Gatlin, General Mine Foreman, to
inform him of the situation.[4] Tr. 138; Gatlin Dep. 4-5, 13; Gov't
Ex. 2, at p.1.  Cambron told Gatlin that he thought he had hit a
"bleeder," and that he would keep him informed.  Gatlin Dep. 11.
Gatlin understood Cambron to mean that methane was being released
from the coal being mined.  Id.

     Cambron then attempted to move the miner, which was being
operated by remote control, out of the crosscut.  Tr. 139-40.  Cambron
had power restored to the miner and began backing it out of the
crosscut, but after moving it about 10 feet, the timbers holding the
ventilation curtain became dislodged, the curtain fell, and
the miner shut down due to higher methane concentrations recorded by
the miner's methane monitor.  Tr. 140.  The timbers were then reset
and the curtain rehung, the methane level dropped below 1 %, and
Cambron again attempted to move the miner out of the crosscut.  Id.
Again, the miner moved about 10 feet before the timbers and curtain
fell and the miner shut down.  Tr. 140-41.  Cambron once again had the
timbers and curtain replaced and, on the third attempt, was able to
back the miner out of the crosscut. Tr. 141.  He then had timbers set
and curtains hung to within about 9 feet of the source of the methane.
Id.  The volume of air was also increased from 16,000 cfm to over
29,000 cfm.  Tr. 65, 147.  Aside from the occasions when the
ventilation controls were dislodged, and the 3.5% reading
when Cambron initially came onto the section, Cambron did not
encounter more than 1 % methane at any point where he  tested for 
methane.  Tr. 143.

     At about midnight, Cambron called Gatlin to update him on
efforts to control the methane. Gatlin Dep. 13-14.  He reported
that stoppings were being built, and that the source of the methane
was a "bore hole."[5]  Id.  Gatlin  then proceeded to the mine,
arriving at 12:45 a.m.  on April 8. Id. at 14.  When he got to the
section, Gatlin could hear the methane blowing out of the core
drill hole from 200 feet away.  Id. at 15.  He then realized that the
situation was more serious than Cambron had first indicated,
because this was not a bleeder, meaning "liberation of methane
built up in the coal bed.  Instead, it was a core drill[] hole that was
drilled below the No. 11 seam, and [Gatlin] wasn't sure how far down
it went."  Id.  at 15-16.  Cambron testified that, in 25 years of
mining, he had never cut into a hole that blew as hard, or for as
long, as this one.  Tr. 162. Gatlin took several methane
readings while on the section. Gatlin Dep. 19.  On the return side
of the wing curtain, he encountered 1.5 or 1.6 % methane.  Id.
Standing on top of the hole, Gatlin measured 5 % methane, in the
explosive range.  Id. at 19-20. Gatlin then shut off his detector.
Id. at 19.

     Gatlin made several unsuccessful attempts to staunch the
flow of methane from the core drill hole.  Gatlin Dep. 17-18.  First,
he tried to plug the hole with a trolley pole.  Id. at 17.  When
that proved unsuccessful, he tried to cover the hole with a board and
piece of steel pipe.  Id.  That attempt also failed; Gatlin
couldn't actually see the hole because the escaping methane blew
coal fines, mixed with water that had come from the roof and
accumulated on the floor, in Gatlin's face.  Id. at 17-18, 26-27.

     At 1:30 a.m. and 5:45 a.m. on April 8, Gatlin telephoned his
superior, David Bruce Beaven, Superintendent of the Ohio No. 11
Mine, who was in Mt. Vernon,  Illinois, at the time.  Gatlin Dep.
24-25; Tr. 169.  He related the  incident to Beaven, and the two
concluded that, because there were no injuries and no hazard to
employees, MSHA need not be called. Tr. 181-82; Gatlin Dep. 25.
However, Beaven told Gatlin to inform MSHA "as a courtesy" because
the incident was a little "out of  the usual."  Tr. 183-84.  Beaven
himself reported the incident to  Island Creek's Regional Manager and
Regional Safety Director.  Id. at 184, 198.

     At around 7:00 a.m. on April 8, Gatlin called the local MSHA
office as a "courtesy" to report the incident.  18 FMSHRC at 1500.
MSHA Inspector Robert Jaco  thereupon issued a verbal
withdrawal order under section 103(k) of the Mine Act, 30 U.S.C. 
813(k), and he and MSHA Inspector Archie Coburn proceeded to the
mine.  Id. at 1500-01; Gatlin Dep. 28.  When they reached the No. 2
entry on 004 section, they could hear a "roaring sound" coming from
the face.  Tr. 42.  Inspector Coburn took a methane reading in
the last open crosscut between the No. 5 and 6 entries and recorded 1
to 1.5 % methane.  Id. at 65-66. Inspector Jaco measured 2.5 to 2.6
% methane 10 feet from the core drill hole.  Id. at 80-81, 102.
Bottle samples taken in the No. 6 entry between the first two
crosscuts, and in the last open  crosscut between the No. 5 and 6
entries, showed .62 and .96 % methane, respectively.  Id. at 118-21.

     At 11:30 a.m. on April 8, Coburn issued Citation No. 3859779
to Island Creek under section 104(a) of the Mine Act for a
significant and substantial ("S&S") violation of section 50.10. The
citation states:

          Mine Management failed to notify MSHA
          immediately after the mine experienced a non-
          injury accident on April 7, 1994 at 1845 hrs.
          A core drill hole was cut through on the 004-
          0 MMU.  MSHA was notified by phone on April
          8, 1994 at 0700 a.m.

Jt. Ex. 1.

     Island Creek made additional attempts to plug the flow of
methane.  First, a mortared block-wall seal was built over the
hole; however, methane migrated onto the section through the
cinder blocks.  Tr. 25-26, 191.  A second seal was then built in
front of the first seal, and the space between them was filled
with foam. Tr. 25-26.  This attempt was also unsuccessful.  Tr.
26.  On April 13, 1994, Island Creek succeeded in stemming the
flow of methane by drilling a hole to the surface to vent the
pressurized gas.  18 FMSHRC at 1501.

     The judge concluded that the core drill hole incident did
not constitute an "unplanned inundation of a mine" under 30
C.F.R.  50.2(h)(4), and therefore was not an "accident" that had
to be immediately reported to MSHA pursuant to section 50.10.  18
FMSHRC at 1501.  The judge determined that a "reasonably prudent
person" would not have known that section 50.10 required the
reporting of the incident because section 50.2(h)(4), on its
face, "speaks of the inundation of a mine, not a part, sections,
entries or crosscuts of a mine."  Id. at 1501-02. Reasoning that
"[t]he gases released did not flood the entire mine or even a
large section of the workings[,]" the judge concluded that Island
Creek did not violate section 50.10 by not immediately reporting
the incident.  Id. at 1502.

                               II.

                           Disposition

     The Secretary argues that the judge erred in construing
"inundation" to refer only to inundation of the entire mine.  S.
Br. at 6.  Urging the Commission to defer to her interpretation
of her own regulations, the Secretary notes that section
50.2(h)(4) does not refer to inundation of an "entire" mine.  Id.
at 6-8.  The Secretary observes that the inrush of gas in this
case is consistent with the dictionary definition of
"inundation," and that "mine" is defined in Part 50 to include
enumerated portions of an entire mining facility.  Id. at 9-10.
She contends that her interpretation of "inundation" as including
an inrush of gas that is less than mine-wide is consistent with
the other specifications of "accident" contained in section 50.2,
none of which describe mine-wide incidents.  Id. at 11-12.  The
Secretary also argues that her interpretation of "inundation" is
consistent with the safety-promoting purpose of the regulation.
Id. at 12-15.

     Island Creek responds that the Secretary's interpretation of
"inundation" is not entitled to deference because it was not
shown to be well established or consistently applied, and "was
not conceived until after the decision below had been entered."
I.C. Br. at 5-7.  Island Creek contends that it never received
fair notice of the Secretary's interpretation of "inundation."
Id. at 7.  The operator asserts that, contrary to the Secretary's
argument, the judge did not interpret "inundation" to apply only
to mine-wide incidents, noting that the judge found that the
inrush of gas did not flood "a large section of the workings."
Id. at 9 (citation omitted).  Island Creek argues that, under the
Secretary's interpretation, every methane release, no matter how
small in magnitude, would constitute a reportable accident.  Id.
at 11.

     A.   Violation

     Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to absurd
results.  Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
1987) (citations omitted).  See also Utah Power & Light Co., 11
FMSHRC 1926, 1930 (October 1989) (citations omitted);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August 1993).  If,
however, a standard is ambiguous, courts have deferred to the
Secretary's reasonable interpretation of the regulation.  See
Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994).  Accord Secretary of Labor v. Western Fuels-Utah, Inc.,
900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation . . .
is `of controlling weight unless it is plainly erroneous or
inconsistent with the regulation'") (quoting Bowles v. Seminole
Rock Co., 325 U.S. 410, 414 (1945) (other citations omitted)).
The Secretary's interpretation of a regulation is reasonable
where it is "logically consistent with the language of the
regulation []  and . . . serves a permissible regulatory function."  
General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) 
citation omitted).  The Commission's review, like the courts', involves
an examination of whether the Secretary's interpretation is
reasonable.  Energy West, 40 F.3d at 463 (citing Secretary of
Labor on behalf of Bushnell v. Cannelton Indus., Inc., 867 F.2d
1432, 1439 (D.C. Cir. 1989)).  See also Consolidation Coal Co.,
14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable).

     Section 50.10 provides that "[i]f an accident occurs, an
operator shall immediately contact the MSHA District or
Subdistrict Office having jurisdiction over its mine."
Section 50.2(h) defines "accident" to mean any of 12 events.
One of those definitions, set forth in section 50.2(h)(4),
states that "accident" means "[a]n unplanned inundation of a
mine by a liquid or gas."  Before the judge, it was
undisputed that the core drill hole incident was not
immediately reported to MSHA, and that the cut-through was
"unplanned" within the meaning of section 50.2(h)(4).  18
FMSHRC at 1501; Tr. 59.  Thus, the main issue below was
whether the flow of methane onto the section constituted an
"inundation of a mine."

     The regulations do not define "inundation."  In the absence
of an express definition or an indication that the drafters
intended a technical usage, the Commission has relied on the
ordinary meaning of the word to be construed.  Peabody Coal
Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963
(D.C. Cir. 1997) (table).  "Inundate" and "inundation" are
defined as "a rising and spreading of water over land not
usu[ally] submerged:  FLOOD . . . DELUGE" and "SUBMERGE . .
. to overwhelm by great numbers or a superfluity of
something:  SWAMP[.]"  Webster's Third New Int'l Dictionary
(Unabridged) 1188  (1986).  "Flood" is in turn defined, in
relevant part, as "an outpouring of considerable extent . .
. a great stream of something . . . that flows in a steady
course . . . a large quantity widely diffused:
SUPERABUNDANCE[.]"  Id. at 873. "Deluge" is defined as "an
irresistible rush of something (as in overwhelming numbers,
quantity, or volume) . . . a forceful jet of water (as from
a fire hose)[.]"  Id. at 598.

     Because the meaning of the term "inundation" as used in the
regulation is open to alternative interpretations, as
reflected in the dictionary definitions, we conclude that it
is in some respects ambiguous.  See National R.R. Passenger
Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 (1992);
Norman J. Singer, Sutherland Statutory Construction  45.02,
at 6 (5th ed. 1992) ("Ambiguity exists when a statute is
capable of being understood by reasonably well-informed
persons in two or more different senses.").  As the Court
stated in Boston & Maine, "[f]ew phrases in a complex scheme
of regulation are so clear as to be beyond the need for
interpretation when applied in a real context."  503 U.S. at
418.  Our conclusion that "inundation" is ambiguous as
applied to the methane inrush at the Ohio No. 11 Mine
requires us to decide whether the Secretary's interpretation
of the provision is reasonable.  The judge essentially
skipped this primary inquiry of whether the Secretary has
advanced a permissible interpretation of the regulation, and
proceeded directly to analyze the fair notice issue.  Our
precedent makes clear, however, that these questions are
distinct.  See, e.g., Morton Int'l, Inc., 18 FMSHRC 533,
538-39 (April 1996).

     The Secretary interprets "inundation" to include less than
mine-wide methane flows such as occurred in this case.  S.
Br. at 6.  The Secretary argues that the focus of the
ordinary meaning of "inundation" is on "the process of the
water flowing in - not, as the judge's interpretation does,
on whether the water has already spread so as to submerge
all land not usually submerged."  Id. at 9.  The judge, and
Island Creek, rely on the definition of "inundation"
contained in the U.S. Dep't of Interior, Dictionary of
Mining, Mineral, and Related Terms ("DMMRT").  18 FMSHRC at
1502; I.C. Br. at 8 n.5.

     The Secretary correctly focuses on the process of
inundation, apparently arguing that the relevant fact was
the "rising" and "spreading" of the gas that constituted the
inundation, not the size of the area where the substance
eventually landed.  S. Br. at 9.  Furthermore, the
definition of "deluge" is consistent with the situation on
the 004 section on April 7-8, as the core drill hole
essentially released a "forceful jet" of methane.

     We note that other elements of the definitions include
"swamping" or "overwhelming" of the inundated area and the
"considerable extent" and "widely diffused" nature of the
inrushing material.  This last characteristic is featured in
the DMMRT definition of "inundation."[6]   However, the
Secretary is not required to cover every aspect of the
definitions, as long as her interpretation is consistent
with common usage and ordinary meaning.

     Thus, although the judge appears to have relied on the DMMRT
definition of "inundation," the Secretary is not obliged to
adopt it in interpreting the regulation.  It is true, as the
judge stated, that the Commission took note of this
definition in Aluminum Co. of America, 15 FMSHRC 1821, 1825
n.8. (September 1993).  18 FMSHRC at 1502.  As Island Creek
concedes, however, that case "did not turn upon the
definition of inundation," I.C. Br. at 8 n.5, and, as the
Secretary points out, the Commission did not expressly adopt
the DMMRT reading.[7]   S. Br. at 10 n.3.  In any case,
while the DMMRT definition may be plausible, the Commission
does not substitute its judgment for the Secretary's so long
as the Secretary's interpretation is reasonable.  See, e.g.,
General Elec., 53 F.3d at 1327.

     The dissent, relying on several dictionaries and a
thesaurus, mistakenly asserts that "inundation" has only
been defined to mean the "swamp[ing]" or "overwhelm[ing]" of
"generally a large area."  Slip op. at 14.  While the
reference works cited by the dissent contain this reading of
"inundation," some also include another sense of the term
that supports the Secretary's interpretation.  For example,
Webster's at 1188, the Random House Dictionary of the
English Language (Unabridged) 1002 (2d ed. 1987) and the
Random House Thesaurus 393 (College ed. 1984) include the
sense of "deluge" which, according to the Thesaurus, id. at
193, is synonymous with "barrage," "torrent," and "spate."
"Torrent" is in turn defined in a sense similar to that of
"deluge," i.e., "a stream of water flowing with great
rapidity and violence[;] a rushing, violent, or abundant and
unceasing stream of anything[.]"  Random House Dictionary at
1999; see also Webster's at 2413 ("a violent stream of a
liquid").

     This case is thus readily distinguishable from MCI
Telecommunications Corp. v. AT&T, 512 U.S. 218 (1994), cited
by the dissent (see slip op. at 16).  MCI involved the
"rarity" of "a meaning set forth in a single dictionary . .
. which not only supplements the meaning contained in all
other dictionaries, but contradicts one of the meanings
contained in virtually all other dictionaries."  512 U.S. at
227.  Here, the connotation of "inundation" as an inrush of
material is present in more than one source.  In any case,
the alternate definition of "inundation" as a "deluge" and
characterized by a "rising" and "swelling" of material does
not contradict the sense of "swamping" or "overwhelming" a
given area, but rather supplements that aspect of the
definition.

     We note further that many of the dictionary definitions
focus on "inundation" by water or liquid.  Being a gas that
is lighter than air, methane is not constrained by the
physical laws of fluid hydrodynamics.  Therefore it need not
"swamp" or "overwhelm" a very large area of a mine in order
to accumulate in a specific location in sufficient
concentration to be dangerously explosive.

     Moreover, in determining whether the judge correctly
concluded that there was no "inundation of a mine" within
the meaning of section 50.2(h)(4), we must also consider
related regulatory definitions, keeping in mind that
"regulations should be read as a whole, giving
comprehensive, harmonious meaning to all provisions."
Morton, 18 FMSHRC at 536.  We therefore turn to the
definition of the term "mine."  Section 50.2(a), which
tracks the definition of the term in section 3(h)(1) of the
Mine Act, 30 U.S.C.  802(h)(1), defines "mine" to include

          underground passageways, shafts, slopes,
          tunnels and workings, structures, facilities,
          equipment, machines, tools or other property
          . . . , on the surface or underground, used
          in . . . the work of extracting . . .
          minerals from their natural deposits . . . .

30 C.F.R.  50.2(a).  Interpreting similar language in the Mine
Act's predecessor, the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C.  801 et seq. (1976) ("Coal Act"), the Fourth
Circuit noted:  "A single shaft, tunnel, or tipple, and the land
on which each of these facilities is located, can constitute a
separate coal mine within the [Coal] Act's definition."
Bituminous Coal Operators' Ass'n v. Secretary of Interior, 547
F.2d 240, 246 (4th Cir. 1977).  Citing Bituminous Coal
Operators', the Commission recently held that "there can be
multiple mines at a single site."  D.H. Blattner & Sons, Inc., 18
FMSHRC 1580, 1586 n.9 (September 1996).  The crosscut containing
the cut core drill hole appears to be a "working[] . . . or other
property . . . underground, used in . . . extracting . . . minerals
. . ." under section 50.2(a) and, thus, a "mine" within the meaning 
of that provision.

     In maintaining the position that "there was no `inundation'
of methane as that term is used in the sense of a large volume of
gas covering a large area," the dissent remains mum on these key
"contextual indications" supporting the Secretary's
interpretation to the effect that the inundation need not cover
an extensive area.  See MCI, 512 U.S. at 226.  The dissent's
silence on the statutory and regulatory definition of "mine" does
not alter the import of those provisions.   Notably, the dissent
does not dispute that the cross-cut containing the core drill
hole is a "mine" under the Act and regulations.  This area, then,
and not the entire mine property, is the proper focus of the
analysis of whether the Secretary's interpretation of
"inundation" is entitled to deference.  Thus, contrary to the
dissent, unless extant definitions of "mine" are to be thrown
overboard, even a relatively small area constituting a "mine,"
such as the crosscut at issue here, may be subject to an
"inundation" within the meaning of section 50.2(h)(4).[8]

     In addition, as the Secretary points out (S. Br. at 11-12),
none of the other meanings of "accident" set forth in section
50.2(h) appear to contain a "mine-wide" component.  See, e.g., 30
C.F.R.  50.2(h)(5) ("unplanned ignition or explosion of gas or
dust"); 30 C.F.R.  50.2(h)(6) ("unplanned mine fire not
extinguished within 30 minutes of discovery").  Reading the
Secretary's regulations as a whole and giving them comprehensive,
harmonious meaning, we cannot say that the Secretary's reading of
"inundation" to encompass less than mine-wide methane releases is
unreasonable.

     In construing the Secretary's Part 50 regulations, we are
mindful of the well-established maxim that regulations must be
interpreted in a manner consonant with the safety-promoting
purposes of the Mine Act.  Consolidation Coal Co., 14 FMSHRC 956,
969 (June 1992) (citing Emery Mining Corp. v. Secretary of Labor,
744 F.2d 1411, 1414 (10th Cir. 1984).  MSHA needs to know
immediately about inrushes of methane in order to be able to
respond quickly and help prevent explosions and loss of life.
Notification is one of the necessary first steps following an
accident that enables MSHA to take appropriate action.  See,
e.g., 30 C.F.R.  50.11(a) (following notification, MSHA must
promptly decide whether to conduct an accident investigation
which, if under taken, must commence "within 24 hours of
notification."); 58 Fed. Reg. 63,528 (1993) (MSHA toll-free
telephone number for accident notification will be staffed by
"24-hour answering service [that] will respond to calls.)"
Section 103(j) of the Mine Act, 30 U.S.C.
 813(j), also requires operators to notify the Secretary of
accidents.[9]  Congress recognized that the Secretary must have
maximum latitude to take protective measures in response to
mining accidents.  The section of the Senate report dealing with
what became section 103 of the Mine Act stated:

               The unpredictability of accidents in
          mines and uncertainty as to the circumstances
          surrounding them requires that the Secretary
          or his authorized representative be permitted
          to exercise broad discretion in order to
          protect the life or to insure the safety of
          any person.  The grant of authority in
          section [103(j)] to take appropriate actions
          and in section [103(k)] to issue orders is
          intended to provide the Secretary with
          flexibility in responding to accident
          situations, including the issuance of
          withdrawal orders.

S. Rep. No. 181, 95th Cong., 1st Sess. 29 (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 617 (1978).

     Moreover, we have previously noted that Congress' concern
over the presence of high levels of methane in mines was the
basis of provisions in both the Mine Act and its predecessor, the
Coal Act.  E.g., Wyoming Fuel Co., 13 FMSHRC 1210, 1214 (August
1991) (citing S. Rep. No. 411, 91st Cong.., 1st Sess. 59 (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 185
(1975) ("Coal Act Legis. Hist.")); see also 30 U.S.C.  813(i)
(spot inspections for mines with excess methane liberation); S.
Rep. No. 411, at 25-35, reprinted in Coal Act Legis. Hist. at
151-161.  In sum, the Secretary's interpretation of this
regulation, by requiring immediate notification of less than
mine-wide inundations, furthers the protective purposes of the
notification requirement and the Mine Act.[10]

     We reject Island Creek's argument that the Secretary's
interpretation is not entitled to deference because "it was not
conceived until after the decision below had been entered."  I.C.
Br. at 7.  First, it has been the Secretary's position throughout
the litigation that the inrush of methane at issue was an
"inundation of a mine" within the meaning of section 50.2(h)(4).
See, e.g., S. Proposed Findings of Fact and Conclusions of Law at
18-20.  In addition, the Supreme Court has held that the
Secretary's first-time articulation of an interpretation of
analogous regulations in the course of administrative litigation
is, if reasonable, entitled to deference.  Martin v. OSHRC, 499
U.S. 144, 156-58 (1991).

     Thus, reading the ordinary definition of "inundation"
together with the regulatory definition of "mine," we conclude
that an "inundation of a mine" may include an outpouring of
methane affecting a portion of the entire mine.  Accordingly, we
conclude that the Secretary's interpretation of section 50.2(b)(-
4) to include an inundation that is less than mine-wide in
extent, such as occurred in the present case, is a permissible
reading of her regulations.  We reverse the judge's implied
holding to the contrary.

     B.   Notice

     Where an agency imposes a fine based on its interpretation,
a separate inquiry may arise concerning whether the respondent
has received "fair notice" of the interpretation it was fined for
violating.  Energy West Mining Co., 17 FMSHRC 1313, 1317-18
(August 1995).  "[D]ue process . . . prevents . . . deference
from validating the application of a regulation that fails to
give fair warning of the conduct it prohibits or requires."
Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir 1986).  An
agency's interpretation may be "permissible" but nevertheless
fail to provide the notice required under this principle of
administrative law to support imposition of a civil sanction.
General Elec., 53 F.3d at 1333-34.  The Commission has not
required that the operator receive actual notice of the
Secretary's interpretation.  Instead, the Commission uses an
objective test, i.e., "whether a reasonably prudent person
familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or
requirement of the standard."  Ideal Cement Co., 12 FMSHRC 2409,
2416 (November 1990).

     As to the question whether a reasonably prudent person would
have understood the applicability of the reporting requirement of
section 50.10 to the facts presented, we have already indicated
that some of the elements of the definition of "inundation,"
particularly the extent of the outpouring and the "overwhelming"
impact on the affected area, appear to be absent here.  After
Cambron set timbers, hung curtains and increased the flow of air
onto the section, elevated methane levels were restricted to the
core drill hole and the area adjacent to it.  Moreover, this
dilution, if not control, of the escaping methane was
accomplished within a short period of time following the
incident.  However, by the time Gatlin contacted Beaven in
Illinois, it should have been apparent to Island Creek that it
was dealing with a reportable accident.  By then, Gatlin knew
that Island Creek, despite its efforts, had been unable to stop
the flow of methane onto the section, that methane had continue
to flow with great force for over 6 hours, and that methane
readings were elevated, on one occasion in the explosive range,
albeit in a limited area.  These conditions presented a safety
hazard that should have alerted Island Creek to the necessity of
immediately reporting the incident as an accident to MSHA.[11]

     Further, the actions and stated views of Island Creek
representatives support the notion that Island Creek should have
been aware that the core drill hole cut-through was not a routine
methane release, but rather an incident that needed to be
reported under section 50.10.  The incident was serious enough to
prompt the second shift mine foreman (Cambron) to notify the
general mine foreman (Gatlin) at home, for the general mine
foreman to notify the superintendent (Beaven) in another city,
for the superintendent to notify his superior, the regional
manager, as well as the regional safety director, for these
individuals to discuss whether MSHA should be notified, and for
the superintendent to order MSHA contacted on the morning of
April 8 as a "courtesy."  Gatlin testified that the incident was
more serious than initially reported to him, and Cambron
testified that in 25 years of mining he had never cut into a hole
that blew methane as hard and for as long a time as this core
drill hole did.  In light of these circumstances, the Secretary's
interpretation of sections 50.10 and 50.2(h)(4) as requiring the
reporting of the incident as an accident does not seem "so far
from a reasonable person's understanding of the regulations that
they could not have fairly informed [the operator] of the
agency's perspective."  See General Elec., 53 F.3d at 1330.  This
is particularly the case in view of the absence of any evidence
that MSHA ever construed these regulations in a manner
inconsistent with its position in this case.  Cf. General Elec.
Co. v. Gilbert, 429 U.S. 125, 1141-43 (1976).

     Island Creek's notice argument is further undercut by the
explicit definition of "mine," in section 50.2(a) and Mine Act
section 3(h)(1), as a particularized portion of a larger
facility.  This definition has gained wide recognition since the
Bituminous Coal Operators' case interpreted similar language
under the 1969 Coal Act.

     In addition, under the Commission's test, the "reasonably
prudent person" is charged with knowledge of the "mining industry
and the protective purposes of the standard."  Ideal Cement, 12
FMSHRC at 2416.  Here, the protective purposes of the
notification requirement are obvious and important.  We therefore
conclude based on all the evidence that a person familiar with
this purpose would have notified MSHA when faced with the
situation at issue here.

     Accordingly, we reverse the judge's determination that
Island Creek did not have notice that section 50.10 would apply
to the incident at issue.


**FOOTNOTES**

     [2]:  As the judge explained:

               A  "core drill" is "a mechanism designed
          to rotate  and  cause  an annular-shaped rock
          cutting  bit  to penetrate  rock  formations,
          produce cylindrical  cores  of the formations
          penetrated,  and  lift  such  cores   to  the
          surface,  where  they  may  be  collected and
          examined."  Thus, a "core drill hole"  is the
          hole   remaining  after  the  core  has  been
          removed.

18 FMSHRC at 1500 n.1 (quoting U.S. Dep't of Interior, Dictionary
of Mining, Mineral, and Related Terms 266 (1968)).

     [3]:  General  mine  foreman Tommy Gatlin did not attend the
April 10, 1996, hearing in  this  matter.  Tr. 26-32.  Gatlin was
deposed  on  May 7, 1996, and his deposition  was  admitted  into
evidence as Gov't Ex. 3.  Tr. 213.

     [4]:  Gatlin  was  at  home  at  the  time  of the incident.
Gatlin Dep. 10-11.

     [5]:  Witnesses used the terms "bore hole" and  "core  drill
hole" interchangeably.

     [6]:   The DMMRT defines "inundation" as an "inrush of water
on a large scale  which floods the entire mine or a large section
of the workings."  DMMRT at 587.

     [7]:  See also  Local  2333,  UMWA  v. Ranger Fuel Corp., 12
FMSHRC 363, 365-66 (March 1990) (less than  mine-wide  release of
methane due to roof fall described as "inundation.")

     [8]:  We are not comforted by the dissent's observation that
there  was  "only  a  single  reading  of methane at an explosive
concentration . . . ."  Slip op. at 16.   First, it should not be
necessary  to  point  out  that  methane in the  explosive  range
presents a serious hazard.  Island Creek Coal Co., 15 FMSHRC 339,
341 n.3 (March 1993) (citations omitted).   Such  a  hazard could
affect miners in other parts of the mine as well.  Cf. Buck Creek
Coal  Co.,  17  FMSHRC  8,  14  (January 1995).  Moreover, Gatlin
eliminated  his  chances  of  taking   further  readings  in  the
explosive range by shutting off his methane  detector  after  the
first such reading.  Gatlin Dep. 19.

     [9]:   Section  103(j)  provides in pertinent part:  "In the
event of any accident occurring  in  any  coal or other mine, the
operator shall notify the Secretary thereof . . . ."  30 U.S.C. 
813(j).

     [10]:    Contrary  to  the  suggestion  of  our   dissenting
colleague, we have  neither  sanctioned  6-hour delays in dealing
with methane accidents nor held that deadly  and  silent  methane
releases do not trigger the requirement of immediate notification
of MSHA.  The Secretary's interpretation of section 50.2(h)(4) to
include  less  than  mine-wide inrushes of methane as inundations
does not exclude other types of inundations from the sweep of the
provision.

     [11]:  Commissioner  Marks  wishes to express his view that,
given the nature of this incident  -  an  unexpected,  inrush  of
methane which continued to flow with great force for over 6 hours
by  the  time  the  superintendent  was  notified, despite Island
Creek's efforts to remedy it - there could  be  no doubt that the
operator  should have been on notice that this was  the  type  of
"unplanned  inundation," as set forth in section 50.2(h)(4), that
needed to be reported immediately to MSHA.


                              III.

                           Conclusion

     For the foregoing reasons, we reverse the judge's
determinations that Island Creek did not violate 30 C.F.R. 
50.10 and did not have fair warning of its applicability to
Island Creek, and we remand for assessment of an appropriate
civil penalty.


                              Mary Lu Jordan, Chairman
                               
                              Marc Lincoln Marks, Commissioner
                              
                              James C. Riley, Commissioner


     Commissioner Verheggen, dissenting:

     At issue in this case is whether a release of a mixture of
air and methane, confined to a small area of Island Creek's Ohio
No. 11 Mine, constituted an "inundation" as that term is used
in 30 C.F.R.  50.2.  My colleagues believe that the release was such
an inundation.  I respectfully disagree.

     The Commission has long held that "[w]here the language of a
statutory or regulatory provision is clear, the terms of that
provision must be enforced as they are written. . . ."  Utah Power &
Light Co., 11 FMSHRC 1926, 1930  (October 1989).  The Commission has
also held that, in the absence of a regulatory definition or technical
usage of a word, the Commission applies the ordinary meaning of the
word.  See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997);
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963
(D.C. Cir. 1997) (table).  I find that the ordinary meaning of the
word "inundation" clearly refers to something much more extensive in
size and scope than the release of an air/methane mixture at issue in
this case.

     The majority quotes several definitions which make this
point self-evident.  "Flood," "deluge," "submerge," "swamp," and
"overwhelm," terms cited by the majority to characterize
"inundation," all signify an event of considerable magnitude and
breadth in which a large volume of water or gas has spread across an
area, and generally a large area. The essential element of every
definition of the term "inundation" I have found is, in the words of
the majority, the "`swamping' or `overwhelming' of the inundated
area" (slip op. at 7).  Webster's  Third New International Dictionary
1188 (1986) ("Webster's") (quoted  by the majority); Random House
Dictionary of the English Language 1002 (2d ed. 1987) ("to flood;
cover or overspread with water; deluge . . . to overwhelm");
Black's Law Dictionary 823 (6th ed. 1990) ("[t]o flood or swamp . . .
[t]he overflow of waters by coming out of their natural bed or
confines"); Dictionary of Mining, Mineral, and Related Terms 284 (2d
ed. 1997) ("DMMRT") ("inrush of  water, on a large scale"); 8 Oxford
English Dictionary 33 (2d ed. 1989) ("OED") ("an overflow of water; a
flood"); see also Random House Thesaurus, College Ed. 393 (1984)
("engulf, overflow, fill with water, overspread, drench,
submerge, flood, deluge, drown").  See Aluminum Company of America, 15
FMSHRC 1821, 1825 n.8 (September  1993) (citing the DMMRT definition
of "inundation").[1]

     "Inundation" thus refers to a quantity of water (or gas)
that has swamped or overwhelmed a given area.  This essential meaning
of the word is conveyed in Local 2333, UMWA v. Ranger Fuel Corp., 12
FMSHRC 363 (March 1990).  In that case, an MSHA inspector discovered
explosive methane levels in the  tailgate of a longwall section
after a large roof fall in a nearby gob area.  Id. at 365.  The
inspector "believed that the immediate cause of the methane
concentration was a sudden inundation resulting from the roof
fall."  Id.  Significantly, the  inundation overwhelmed the mine's
bleeder system, which was unable to dissipate the methane, in part
because it was partially blocked by water.  Id.

     Another element commonly appearing in definitions of
"inundation" is, again in the words  of the majority, "the `considerable
extent' and `widely diffused' nature of the inrushing material"
(slip op. at 7).[2]  This sense of the word is an essential element of
the DMMRT definition, which defines "inundation" as "[a]n inrush of
water . . . that floods the entire mine or a large section of the
workings."  Id. at 284 (emphasis added).  In keeping with this sense
of the word, Commission Administrative Law Judges have
found inundations in the two instances where the meaning of the
term as used in section 50.2 was at  issue where gases have spread over
a wide area.  Silver State Mining  Corp., 9 FMSHRC 691, 702 (April
1987) (entire interior of mill enveloped in hydrochloric acid
fumes); Helvetia Coal Co., 2 FMSHRC 1011, 1030 (April 1980) ("methane
. . . covered a large, undefined area of the mine").  I agree,
however, with the Secretary's contention that an inundation need
not be mine wide to be reportable. S. Br. at 9-10.  This issue is,
however, a red herring because first there must be an inundation,
which here there clearly was not.

     Although overwhelming authority establishes that, at the
very least, an "inundation" is an event during which water or gas
swamps or overwhelms an area, the Secretary argues that "the
dictionary definition of `inundation' focuses on the process
of the water flowing in - not . . . on whether the water has already
spread so as to submerge all land not usually submerged."  S. Br. at
9 (emphasis in original).  As explained by my colleagues, the
Secretary "apparently" means that it "was the `rising' and `swelling'
of the gas that constituted the inundation."  Slip. op. at 7.  This
"interpretation" is at odds with  the one common element found in
every definition of the term.  An inundation may very well include
the gush of water or gas that is its source,[3] but under the
universally accepted common usage of the term, it cannot exclude the
accumulation of water or gas resulting from the gush.  All the
Secretary does is define the source of an inundation and nothing more.
Through this peculiar act of deconstruction, the Secretary robs
the term "inundation" of its essential character.

     Notwithstanding its incoherence, my colleagues defer to the
vague and elusive - and wrong - interpretation offered by the
Secretary, insisting that the term  "is open to alternative
interpretations."  Slip op. at 6.  But her interpretation is owed no
deference because it has no basis in the common meaning of
"inundation."  Moreover, my  colleagues err by deferring to the
Secretary to ascertain the plain  meaning of a word.  There is no
ambiguity here that gives rise to the issue of deference.  Bluestone
Coal Corp., 19 FMSHRC 1025, 1028 (June 1997).  Instead, there is the
plain meaning of "inundation" as established by its common usage
versus the Secretary's strained focus on a nuance (the "process" of
"the `rising' and `swelling' of the gas") that blurs the meaning of the
term beyond recognition.  Taking my colleagues' approach to its logical
conclusion, each word in the English language could be
considered ambiguous based on only  the slightest shades and nuances of
meaning, the true meaning of which can only be ascertained by the
Secretary in the context of a given case, whether or not the
Secretary's meaning comports with common, ordinary meaning.

     Determining the ordinary meaning of a word is not a matter
of such technical complexity that we must give way to the Secretary's
expertise.  See General Electric Co. v. EPA, 53 F.3d 1324, 1327
(D.C. Cir. 1995).  Nor is this a  case where we could appropriately
defer to the Secretary's choice of  one alternative dictionary meaning
over another within the same  definition.  See National R.R.
Passenger Corp. v. Boston & Maine  Corp., 503 U.S. 407, 418-20 (1992).
Instead, this case is closer to the Supreme Court's decision in MCI
Telecommunications Corp. v. AT&T, in which the Court rejected a
Federal Communications Commission  interpretation of the term "modify"
based on a dictionary definition which the Court found was
contradicted by "virtually all other[]" dictionaries.  512 U.S.
218, 225-28 (1994).  In the MCI  case, ordinary meaning was derived
from how "virtually all"  dictionaries defined "modify,"
rather than from an "out-of-step  dictionary" containing a definition
that robbed the word of any  meaning.  Id. at 226-27.  The case
thus illustrates the importance of ordinary meaning and warns of the
pitfalls of interpreting words in such a way that they have no
intrinsic meaning.  Here, my colleagues unwisely defer to a
deconstructive gloss the Secretary  puts on "inundation" - a gloss
which robs the word of its essential character and is at odds
with the word's ordinary meaning.

     The conclusion that the release of methane at issue here was
an "inundation" as that term is ordinarily used in the sense of a
large volume of gas overwhelming a given area has no support in the
record.  The air flowing into the 004 Section through the core drill
hole contained varying quantities of methane, but at no time did
methane concentrations reach sustained excessive levels beyond
the immediate vicinity of the hole. Tr. 142-44.  Indeed, the record
contains credible evidence of only  a single reading of methane at an
explosive concentration, and that was when a reading was taken
directly over the hole.  Gatlin  Dep. Tr. 19-20.  As my colleagues
concede, "elevated methane levels were restricted to the core drill
hole and the area adjacent to it. . . . dilution, if not control, of
the escaping methane was accomplished within a short period
of time following the incident."  Slip Op. at 11.  Throughout the
incident, the operator was never unable to dilute the methane and
render it harmless.  Tr. 143.  Put  another way, Island Creek's
resources to control the methane contained in the air venting from
the core drill hole were never "overwhelmed" or "swamped."

     The continuous miner cut through the core drill hole at the
end of a cut measuring approximately 30 feet "deep" by 10
feet wide, the first cut made to drive a crosscut between the number
5 and 6 entries.  R. Ex. C.; Tr. 81, 159.[4]  About half of this
first cut was quickly placed within the intake aircourse with a
curtain, and was thus isolated from the gases venting from the hole.
Tr. 159.  This enabled the operator to immediately dilute any methane
that might have been coming out of the hole (see Tr. 165, testimony of
Mr. Cambron that he "deflected [the venting gases] directly to the
return"), as evidenced by the fact that at no time were explosive
levels of methane detected outby the hole.  Tr. 143.  As counsel for
the Secretary stated at the hearing, "what [Island Creek] did
was dilute the harmful gases that  might have been coming out,"
regardless of the rate at which the gases were venting out through
the hole.  Tr. 164.

     The only evidence in the record of elevated levels of
methane outside the first cut is restricted to readings in the three
to four percent range taken in the number 5 entry approximately 10
feet from the tail end of the continuous miner.  Tr. 135.  The
Secretary introduced no evidence of elevated methane levels in any
other area of the mine, including the open crosscut between the
number 5 and 6 entries closest to the first cut and the number 6
entry itself.  The judge's finding that "only the number five and six
entries and the crosscut between them . . . were impacted"
(18 FMSHRC at 1502) is thus not supported by substantial evidence;
the area actually affected was much smaller.  The Secretary's argument
that "gas from the hole was coursed throughout all air which ran past
the core drill hole, and [thus] affected all areas of the mine in
which it was coursed" (S. Br. at 10 n.2) grossly overstates the case.
The air that ran past the hole was doing just what it was supposed to
be doing:  diluting and rendering harmless any methane that was being
liberated before that methane had the chance to accumulate anywhere
beyond the hole itself.  I find that the record compels no other
conclusion but that there never was any area of the mine that could
have been characterized as being "inundated" with methane.  To
conclude otherwise is to turn a deaf ear on the record evidence and
to overlook the Secretary's obvious inability to prove that methane
accumulated anywhere in the Ohio No. 11 Mine as a result of the
breach of the core drill hole.

     I therefore dissent from my colleague's departure from the
common sense, ordinary meaning of the term "inundation."  But I find
even more extraordinary their finding that Island Creek was on
notice of the Secretary's interpretation of that term.  Where
an agency imposes a fine based on its interpretation of a regulatory
provision, a separate inquiry arises concerning whether the
respondent has received "fair notice" of the interpretation it
was fined for violating.  Energy West Mining Co., 17 FMSHRC 1313,
1317-18 (August 1995).  Once again, my colleagues cite the correct
legal  authority, but then fail to apply it.  Slip op. at 11.  Rather
than conduct an inquiry as to whether Island Creek was on notice
of the Secretary's interpretation  under the Commission's "reasonably
prudent person" test, my colleagues instead attempt to provide wholly
separate reasons why Island Creek should have known the methane
release in this case was a reportable accident.[5]
Incredibly, none of the reasons provided by my colleagues refer to
the Secretary's interpretation of the word "inundation."

     First, my colleagues argue that Island Creek was on notice
because of the length of time - some six hours - the air/methane
mixture flowed out of the core drill hole without being stanched
(slip op. at 11 & n.10), notwithstanding the fact that the
methane was immediately brought  under control through ventilation
(Tr. 143).[6]  The majority also finds evidence of notice in how
news of the breakthrough passed up the ranks of Island Creek
management.[7]  Slip op. at 11-12. In addition, my colleagues note
that the unusual nature the  incident should have put Island
Creek on notice.  Id.  The Secretary's interpretation of this
regulation, however, says nothing about duration, internal
discussions, or the unusual nature of events.  None of the facts
offered by my colleagues show why any reasonable person should have
known that an inundation was, in  actuality, a "process" of "the
`rising' and `swelling' of the gas," and that the methane release
in this case should therefore have been reported.

     In the end, my colleagues suggest that Island Creek should
have known the incident was reportable since it is charged with
knowledge of the protective purposes of the standard.  Slip op.
at 12.  As to the purpose of that standard, the majority sees it as
the importance of MSHA knowing  "immediately about inrushes of
methane in order to be able to respond quickly and help prevent
explosions and loss of life."  Slip op. at 9.  The majority neglects to
cite any authority for this proposition.  In fact, the
Secretary's regulation setting forth the purpose and scope of her
Part 50 regulations contains no such statement of purpose.  On the
contrary, her stated purpose for  Part 50 relates strictly to record
keeping and the calculation of injury occurrence and severity
rates.  30 C.F.R.  50.1.  Again, this tells Island Creek little
about the Secretary's view that an  inundation should be viewed as a
"process" of "the `rising' and `swelling' of [a] gas."  I thus
consider the majority's insistence on holding Island Creek liable in
the absence of any real notice of the conduct expected of it as a
violation of the company's due process rights.  Gates & Fox Co. v.
OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986).

     Assuming, however, that the true purpose of the standard (as
distinct from its stated purpose) is to provide MSHA with immediate
notice of accidents in order for it to take appropriate remedial
action, I believe that my  colleagues' opinion sends a mixed
message.  First, given the very limited scope of this methane
release, one might conclude after today that any methane release -
regardless of the extent of its impact - should now be reported
immediately to MSHA.  In the alternative, by focusing on the
"process" rather than the magnitude of the methane release, one could
read the majority's opinion to say that the critical factor in
determining whether there has been  a gas inundation is the nature by
which the gas was released.  Under such a reading, forceful jets or
gushes of gas would be reportable  events, while silent - and far more
deadly - methane releases are not. See, e.g., Helvetia Coal Co., 2
FMSHRC at 1030.  By focusing on the duration of the event, my
colleagues send the message that operators have up to six hours in
which to remedy a situation before it need be reported, a result
plainly contradicted by the regulation itself, which requires
immediate notification.  30 C.F.R.  50.10.

     Rather than sow these seeds of confusion - and possibly
worse - I would affirm the judges' decision based on the ordinary
meaning of the word "inundation." I would also urge the Secretary -
insofar as she apparently wishes to deviate from this ordinary meaning
- to clarify her views, either formally or informally, so that in
the future all parties will be on  notice as to what events should be
reported to MSHA immediately.  See Diamond Roofing Co. v. OSHRC, 528
F.2d 645, 649 (5th Cir. 1976) ("the Secretary as enforcer of the Act
has the responsibility to state  with ascertainable certainty what
is meant by the standards [she] has  promulgated").


                              Theodore F. Verheggen, Commissioner


Distribution


Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

John T. Bonham, II, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV  25233

Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA  22041


**FOOTNOTES**

     [1]:   This   essential  element  of  "inundation"  is  also
reflected in its metaphorical  meaning,  which the OED defines as
"[a]n  overspreading  or  overwhelming in superfluous  abundance;
overflowing, superabundance."   Id.  at 33.  The word was used in
this sense by President Washington when,  in  1798, he wrote:  "I
was inundated with letters, describing the crisis."  Id.

     [2]:  Webster's, for example, illustrates  this sense of the
word in the example "a tidal wave [inundate]s the  island."   Id.
at  1188.   The OED cites usages of the word in this sense dating
from as early as 1548 ("The ryver rose so high that yt overflowed
all the countrey  . . By  this  inundacion  the  passages were so
closed  . . .").   Other  usages cited by the OED refer  to  "the
period when the Nile inundates gypt" (1791), "an annual overflow
of the Amazon [that] inundate[s]  a great part of Brasil" (1796),
and  "rivers . . . overflowing their  banks  and  inundating  the
land" (1898).  Id. at 33.

     [3]:  In a circuitous semantic argument, the majority uses a
variety  of  terms  to  characterize  this  element  of  the term
"inundation," including "torrent," "spate," and "barrage."   Slip
op.  at  7.   Notably,  none  of these terms appear in any of the
definitions of "inundation" in the five major dictionaries I have
consulted.

     [4]:  The area affected by the release of air and methane at
issue here was minuscule, no more  than part of a partially mined
crosscut  and  a small section of the  entry  off  which  it  was
driven.  R. Ex.  C & D.  This area, to give an idea of the mine's
size, lies three miles away from the mine fan.  Tr. 186-87.

     [5]:  I suspect the reason my colleagues did not conduct the
proper inquiry as  to  whether  Island Creek was on notice of the
Secretary's interpretation was because  the  only conclusion they
could  have  reached  was that Island Creek had no  such  notice.
Essentially a post hoc rationalization of her enforcement action,
this interpretation was  never  before advanced by the Secretary.
In fact, at the hearing, the inspector  who  cited  Island  Creek
testified  that  he  considered there to be an inundation because
"the continuous miner  machine  cut  off."   Tr. 60.  But even as
further   refined  in  the  course  of  these  proceedings,   the
Secretary's  interpretation  regarding the scope of section 50.10
has never been consistent with  the  common  usage  of  the  word
"inundation,"  much  less  the  usage  of  the word in the mining
industry  as  found  in  the  DMMRT.   Id. at 284.   Whether  the
Commission  has  adopted  it  or  not,  the DMMRT  definition  is
relevant for the purpose of determining what a reasonably prudent
person in the mining industry would consider to be an inundation.
As such, no reasonably prudent person would have known in advance
the Secretary's odd interpretation of the  word  - such as it is.
Indeed,  that  the  incident  here could have been an  inundation
never  even  crossed  the minds of  the  Island  Creek  employees
involved.  Tr. 182.

     [6]:  I find unconvincing  the argument that after six hours
had  passed,  Island Creek was required  to  immediately  contact
MSHA.  See slip op. at 11 n.10.  I fail to see how the passage of
six hours somehow  transformed  the  incident  into  a reportable
accident.   Instead,  I believe that if at anytime, Island  Creek
had  not been able to dilute  and  render  harmless  the  methane
venting  from  the  core  drill  hole  so that an accumulation of
methane  spread into a large area of the  mine,  at  that  point,
under the ordinary meaning of "inundation," a reportable accident
would have occurred.

     [7]:   This  is  hardly  probative  that Island Creek was on
notice to report this incident to MSHA.  Certainly,  Island Creek
cannot  be  faulted  for  consulting  with  its  regional  safety
director  and  others  as  to  what  action should be taken.  See
Consolidated Coal Co., 11 FMSHRC 1935, 1938 (October 1989).  That
Island Creek conducted thorough internal discussions only proves,
if  anything,  that  it  was  the  judgement  of  Island  Creek's
management,  based  on  their  collective  experience,  that  the
incident did not amount to a reportable  "inundation."   Cf.  Tr.
182  ("We  hadn't  had an ignition, no serious injury and no roof
fall, and inundation never crossed our minds.").