.
BASIN RESOURCES, INC.
August 11, 1997
WEST 96-80


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1244 SPEER BOULEVARD #280

                        DENVER, CO 80204-3582

                    303-844-3577/FAX 303-844-5268

                           August 11, 1997

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. WEST 96-80
            Petitioner         :  A.C. No. 05-02820-03775
                               :
            v.                 :  Docket No. WEST 96-126
                               :  A.C. No. 05-02820-03779
BASIN RESOURCES, INC.,         :
            Respondent         :  Docket No. WEST 96-127
                               :  A.C. No. 05-02820-03780
                               :
                               :  Golden Eagle Mine


                            DECISION

Appearances:  Kristi L. Floyd, Esq. and Edward Falkowski, Esq., Office
              of the Solicitor, and Ned Zamarripa, Conference and 
              Litigation Representative, Mine Safety and Health
              Administration, U.S. Department of Labor, Denver, Colorado,
              for Petitioner;
              Andrew Volin, Esq., Sherman & Howard, Denver, Colorado,
              for Respondent.

Before:  Judge Manning

     These cases are before me on petitions for assessment of penalties
filed by the Secretary of Labor, acting through the Mine Safety and Health
Administration ("MSHA"), against Basin Resources, Inc. ("Basin Resources"),
pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C.  815 and 820.  The petitions allege 45 violations of
the Secretary's safety and health regulations.  A hearing was held in 
Denver, Colorado.  The parties presented testimony and documentary 
evidence, and Basin Resources filed a post-hearing brief.

     The Secretary filed a motion to amend the petitions for penalty to 
add Entech, Inc., and Montana Power Company as respondents in these and 
other Basin Resources cases.  For the reasons set forth in Basin Resources,
Inc., 19 FMSHRC 699, 699-704 (April 1997), the Secretary's motion is 
denied.

               I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW  

     A.  Roof and Rib Support

     1.  Order No. 4058110

     On August 16, 1995, MSHA Inspector Earl Simmons issued a section
104(d)(2) order alleging a violation of 30 C.F.R.  75.220(a)(1).  In the 
order, the inspector alleged that Basin Resources failed to follow its 
roof control plan.  The order alleges that there was 24 feet of unsupported
roof between the last row of roof bolts and the face in the No. 2 right 
entry crosscut of the 011-0 MMU in the  3rd North section.  The order
alleges that the foreman was aware that the cut was too deep, but did not
correct the condition or notify the crew.  He determined that the 
violation was significant and substantial ("S&S") and was caused by Basin
Resources' unwarrantable failure. The Secretary proposes a penalty of 
$9,000 for the alleged violation.  The mine's roof control plan provides
for a maximum cut of 20 feet.  (Ex. G-2).

     Inspector Simmons testified that the condition was serious because of
the history of roof falls at the mine and the fact that water was running
from the area, indicating that cracks were present in the roof.  (Tr. 12).
He believed that the condition had existed for about three hours.  He 
determined that the violation was the result of Basin Resources' 
unwarrantable failure because the foreman was aware of the condition but
"took no action to protect the men" who would be entering the area to bolt 
the roof.  (Tr. 14).  The inspector believed that the foreman had a duty
to warn the bolters of the deep cut so that they could take extra 
precautions.  The deep cut was made on the previous shift.  (Tr. 20).

     Basin Resources does not contest the fact of violation, but contends
that the violation was neither S&S nor the result of its unwarrantable
failure.  It contends that the record does not support an inference that
the 24-foot deep cut made a roof fall reasonably likely.  In addition, it
argues that the fact that the area was dangered off made it unlikely that
anyone would enter the area, except the roof-bolting crew, who would be
protected by the ATRS system on the bolting machine.  Basin Resources 
contends that the violation was not caused by its unwarrantable failure
because the inspector's allegation is based on two invalid assumptions:
that the foreman had definite knowledge that there was a deep cut and 
that the crew would enter the area of the deep cut without having been
warned that there had been a deep cut.

     The deep cut had been made on the previous shift and there is no 
evidence as to how or why it occurred.  When David Oxford, the section 
foreman on the swing shift, observed the area, he thought that the area 
looked deep, but was not sure if it was a deep cut, or if part of the 
roof had fallen.  (Tr. 529-30).  There is no question that the area was 
dangered off.  The three-member crew and the equipment in the section 
were in a different area.  Mr. Oxford testified that he did not 
immediately tell the crew about the cited condition because he was not
certain that it was deep and the crew was working in an area a great
distance away.  (Tr. 533).  He stated that he was going to tell the miners
about the possible deep cut when the crew traveled to the area to begin
work there.  (Tr. 534).  He stated he would not have left the section, as
feared by the inspector, without first talking to the crew about the No. 2
entry.  (Tr. 535).  I credit Mr. Oxford's testimony.

     I find that the Secretary did not establish the four elements of the
Commission's S&S test.  Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
The third element of the test is important in this case: whether it was 
reasonably likely that the hazard contributed to would result in an injury.
This element does not require the Secretary to establish that it was more
probable than not that an injury would result from the hazard contributed
to by the violation.  U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 996).
The test is whether an injury is reasonably likely.  The hazard is falling
roof.  It is not clear if any of the previous roof falls in the mine 
occurred because of deep cuts. The affected area was dangered off.  The 
deep cut would only pose a hazard if the roof-bolting crew entered the
area without being told that the cut was deep or if they failed to notice
that the cut was deep.  While it is possible that the roof bolting crew
could enter the cited area without Mr. Oxford's knowledge, such an event
was unlikely.  In addition, it is likely that the crew would have noticed
the deep cut once they arrived in the area.  I find that the Secretary 
failed to establish the third element of the Mathies S&S test.

     I find that the Secretary did not establish that the violation was 
the result of Basin Resources' unwarrantable failure.  Unwarrantable 
failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).  Unwarrantable 
failure is characterized by such conduct as "reckless disregard," 
"intentional misconduct," "indifference," or a "serious lack of reasonable
care."  Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
193-94 (February 1991). 

     The inspector was concerned because the oncoming foreman failed to 
warn the crew about the condition.  (Tr. 25-26, 35).  The foreman's actions
did not demonstrate aggravated conduct.  He was aware that the area looked
deep and that extra precautions would have to be taken.  The only way to
correct the violation was to have the area roof bolted.  The bolting 
machine and his crew were working elsewhere.  The bolting crew was not 
scheduled to enter the area with the deep cut until later in the shift.
The foreman's failure to immediately warn the roof bolters did not 
demonstrate reckless disregard, indifference, or even a serious lack of
reasonable care.  The record shows that he frequently communicated with
the members of his crew and there is no indication that he would have 
ignored the deep cut when it came time for the roof bolters to enter the 
area.  The order is modified to a section 104(a) citation.

     2.  Citation No. 3298166

     On October 26, 1995, Inspector Mike Stanton issued a citation alleging
a violation of section 75.202(a).  In the citation, the inspector alleges
that the roadway in the five left section contained cracked and broken ribs
that created a hazard.  The citation also states that the roof was loose 
near the intersection of the No. 19 crosscut and near the face areas of 
the Nos. 1 through 3 entries.  Finally, the citation states that the ribs
and roof in all three entries and crosscuts off the No. 2 entry were 
spalling.  Inspector Stanton determined that the violation was S&S.  The 
Secretary proposes a penalty of $2,800 for the alleged violation.  Section 
202(a) provides, in part, that roof and ribs of "areas where persons work
or travel shall be supported or otherwise controlled to protect persons 
from hazards related to falls" of the roof or ribs.

     Inspector Jeffrey Fleshman, who accompanied Inspector Stanton,
testified that the cited area was taking weight and some of the ribs were 
cracking open on the corners and sloughing off.  (Tr. 330).  He stated that
a rib fell at the intersection of the No. 19 crosscut and the No. 2 entry
while the inspectors were in the area.  (Tr. 331; Ex. G-12).  He stated 
that preshift examiners were exposed to the hazard of this particular rib.
(Tr. 333).  He testified that Basin Resources had been cutting into the 
roof and floor in this area, which put weight on the ribs.  (Tr. 335).  He
determined that ribs were loose based on a visual examination.  (Tr. 343).
Inspector Stanton testified that the roof and ribs were loose in the areas
that he inspected.  (Tr. 350; Ex. G-12).  It appeared to him that the roof
was "settling down" and putting pressure on the ribs.  (Tr. 352).  

     Basin Resources contests the violation for two basic reasons.  First,
it contends that the area was subject to a section 103(k) order following 
a fatal accident that occurred the day before and that its employees had
not been allowed into the area to maintain the ribs and roof while the 
order was in place.  Second, it argues that the evidence shows that the 
ribs and roof were not loose.

     The evidence indicates that only a portion of the area cited by 
Inspector Stanton was covered by a section 103(k) order.  (Tr. 332; Ex.
G-12).  Entry No. 2 was blocked-off inby Crosscut No. 19.  Id.  Most of 
the areas cited by the inspector were outby that area.  Miners were 
required to be in the area to check for methane and to perform other 
functions.  The Secretary established that at least some of the areas
cited by Inspector Stanton were loose.  I credit the testimony of Basin
Resources' witnesses that some of the cited areas could not be easily
barred down.  Nevertheless, I find that some of the areas cited were
loose.  Indeed, one section of the rib in the No. 2 entry outby crosscut
No.19 fell during the inspection.  I find that the Secretary established 
an S&S violation of section 75.202(a).

     3.  Citation No. 4057725

     On October 31, 1995, Inspector Melvin Shiveley issued a citation 
alleging a violation of section 75.202(a).  In the citation, the inspector
alleges that the mine roof in entry No. 4, east mains, was not adequately 
supported or controlled in that rib cutters were present on both sides of
the entry for a distance of about 80 feet.  He alleges that the mine roof
in the area was taking weight.  Inspector Shiveley determined that the 
violation was S&S.  The Secretary proposes a penalty of $1,400 for the
alleged violation.

     Inspector Shiveley testified that a rib cutter is a deep crack in the 
roof adjacent to the rib where material has fallen out.  (Tr. 166).  He 
measured the cited cutters and some were 20 to 24 inches deep while others
were 8 to 12 inches deep.  Id.  The cutters were in the belt entry and were
about 80 feet long.  He stated that loose material was present in the
cutters.  (Tr. 167, 174).  He believes that the presence of roof cutters 
indicates that additional support is required.  (Tr. 170).  He testified
that the area was roof-bolted but that J-channels were not present. 
(Tr.172).

     Basin Resources contends that the cited area was fully supported with
J-channels.  In addition, it maintains the cutters were caused by floor
heave, rather than roof support problems.  Kay Hallows, the former safety 
director for the mine, testified that the primary cause of rib cutters at 
the mine is floor heave, which pushes the soft coal pillar into the 
overburden.  (Tr. 473).  He testified that if the roof were taking weight
in the area, the roof would have been sagging in the middle of the entry.
Id.  Jim Peterson, a former safety inspector with Basin Resources, was 
present when the citation was issued.  He testified that he examined the
roof in the area for signs of stress.  (Tr. 510-11).  He stated that he 
did not observe any indications that the roof was taking weight in the 
area.  The roof-bolt plates did not show signs of stress, for example. 
Id.  He further testified that the area did not need additional roof 
support, because the area was fully roof-bolted and J-channels were 
present in the area.  (Tr. 510, 512; Ex. R-O).  He also felt that the 
cutters did not represent a slippage of the roof, but were caused by the
fact that the pillars were cutting into the roof as a result of floor heave
and a change in atmospheric conditions.  (Tr. 511, 518).

     Inspector Shiveley testified that loose material was present in the 
cutters.  (Tr. 174).  Mr. Peterson testified that there was some fallen
material in the area that varied between a quarter of an inch to a few
inches in diameter. (Tr. 517).  I credit the testimony that loose material
was present in the cutters that could fall on miners in the area.  I credit
the testimony of Messrs. Hallows and Peterson, however, that the roof 
itself was not in danger of falling.   Accordingly, I affirm the citation 
but find that it was not S&S.  I find that the evidence establishes there
was loose material in the roof, but that it was not reasonably likely that,
if any material fell, it would seriously injure anyone.  I credit Basin
Resources' evidence that the roof and ribs were generally stable, but I
find that additional support was necessary to protect miners in the area.

     4.  Citation No. 4057961

     On November 8, 1995, Inspector Simmons issued a citation alleging a 
violation of section 75.220(a)(1).  In the citation, the inspector alleged
that Basin Resources failed to follow its roof- control plan.  It states 
that the No. 3 entry crosscut of the 011-0 MMU was cut to exceed the 
20-foot maximum width set forth in the plan.  The area was 21-1/2 feet wide
at one end and 23-1/2 feet wide at the other end. The area was about 15 feet
long. The citation alleges that additional support was not provided in the
wide areas and that there was unsupported roof inby the cited area. He 
determined that the violation was S&S.  The Secretary proposes a penalty 
of $1,400 for the alleged violation.

     Inspector Simmons testified that the area of the wide cut was 
supported with roof bolts.  (Tr. 109, 116).  The widest area was 23-1/2 
feet wide.  (Tr. 110; Ex. G-7A).  The roof in the area inby this wide 
area was not supported because it had just been cut.  Id.  He also 
testified that water was running from the roof in the wide area.  He 
believed that the violation was S&S because the water would weaken the 
roof and, without supplemental support, the roof was reasonably likely
to fall and injure a miner.  (Tr. 111-12, 117).  He determined that the 
unsupported area adjacent to the face contributed to the hazard.  He 
testified that a roof-bolting machine was parked in the area.  
(Tr. 112). 

     The roof-control plan provides that where an entry is wider than 20
feet, roof bolts and supplemental support must be installed.  (Tr. 116).
Mr. Hallows testified that supporting the roof in an area where the
continuous mining machine operator accidentally cut the entry too wide
is a two-step process.  First, the wide area must be roof bolted.  
(Tr. 468).  Second, timbers or other supplementary supports must be put
into place. Id.  He stated that it is not safe to carry out step two
before step one is completed.  (Tr. 469).  This testimony was supported
by Mr. Peterson. (Tr. 521-22).  He testified that the mine had completed
step one when the inspector issued the citation and that the area would 
have been timbered in the near future. (Tr. 522; Ex. R-R). Basin Resources
contends that the inspector improperly wrote the citation in the middle 
of the mining cycle.

     I find that the Secretary established a violation. Roof bolts had 
been installed in the wide area, but supplemental supports had not. I 
find that the Secretary did not establish the third element of the 
Commission's S&S test.  I credit the evidence presented by Basin 
Resources that timbers were going to be installed in the area. Although
the condition presented a hazard, it was not reasonably likely that the
hazard would result in a serious injury, assuming continued mining 
operations.  Supplemental support would have been installed in the normal
course of mining.  In addition, the area adjacent to the face would have
been bolted.

     5.  Citation Nos. 4057722 and 4057672

     Citation No. 4057722, issued by Inspector Shiveley on October 25, 
1995, alleges an S&S violation of section 75.202(a).  Citation No. 
4057672, issued by Inspector Simmons on November 2, 1995, alleges a 
non-S&S violation of section 75.212.  Basin Resources does not contest
the violations or the inspectors' other determinations.  It only 
contests the amount of the penalty.  Based on the description of the
violations in the citations, the inspectors' determinations with respect
to gravity and negligence, and the civil penalty criteria, I assess the 
penalties set forth in section III of this decision.

     B.  Ventilation

     1.  Order No. 4057482

     On May 2, 1995, Inspector Fleshman issued a section 104(d)(2) order
alleging a violation of 30 C.F.R.  75.323(c)(1).  In the order, the 
inspector alleged that effective changes or adjustments were not made to
the ventilation system to reduce methane concentrations in the four left
section, No. 3 return entry to less than one percent. He obtained methane
reading of 1.4% and 1.2% in that entry.  He determined that the violation
was S&S and was caused by Basin Resources' unwarrantable failure.  The 
Secretary proposes a penalty of $9,000 for the alleged violation. Section 
323(c)(1) provides, in part, that when 1.0% or more methane is present in 
a return air split between the last working place on a working section and
where that split of air meets another split of air, "changes or adjustments
shall be made at once to the ventilation system to reduce the concentration
of methane in the return air to less than 1%."

     Inspector Fleshman used a hand-held methane detector. Bottle samples
indicated methane levels of 1.2%.  (Tr. 225; Ex. G-8). Inspector Fleshman
determined that there was a violation based on a number of factors.  He 
reviewed the weekly examination books.  These records indicated that the
cited area had been experiencing levels of methane over one percent "off
and on for a few weeks."  (Tr. 227).  Methane readings of up to 1.3% were
recorded in the weekly examination book during the previous month.  (Tr.
228; Ex. G-9).  He testified that he issued the order because Basin
Resources was not making "adequate changes to eliminate [the methane]."
(Tr. 228).  The inspector believed that the company was not doing enough 
to correct the problem.  Id.  He determined that the violation was the
result of the operator's unwarrantable failure because of the history of
methane in the area and the failure of the operator to reduce the level
of methane.  (Tr. 232-35). Basin Resources contends that it was making 
changes in the ventilation in an attempt to reduce the level below one 
percent and that it did not violate section 75.323(c)(1).  

     It is clear that the discovery of methane at a level of 1.0 percent
or more in a split of air returning from a working section does not
establish a violation of the safety standard.  The essence of a violation 
is the failure to make changes or adjustments to reduce the concentration
of methane in the return air to below one percent.  See Jim Walter 
Resources, 9 FMSHRC 533, 534 (March 1987)(ALJ).  In order to understand 
this case, it is important to put the facts in context.  The area cited 
was in an entry that was being developed for a longwall section.  The 
methane readings were taken at the outby end of the entry some 4,000 feet
from the working section.  (Tr. 239; Ex. R-C2 map).  In fact, the location
where the inspector took his methane readings was 50 inby the area where 
the split exited the 4 left section.  (Tr. 239-40).  At all pertinent 
times, the methane levels in the area just outby the working section were
below one percent.  (Tr. 239).

     In the weeks preceding May 2, the methane level in the returns varied
considerably. Readings ranged between 0.3% and 1.3%. (Ex. R-G). Inspector
Fleshman took the methane readings set forth in the order on May 1 at about
7:25 p.m.  (Tr. 252; Ex. R-C2 p.3).  Basin Resources immediately began 
taking steps to reduce the methane below one percent.  (Tr.253).  At about
8:00 p.m., Basin Resources installed a partial curtain "in the belt entry 
to try to take air off the belt entry and direct it down the return." (Tr.
253; Ex. R-C2 p.3).  Another reading was taken at about 9:00 p.m., which
showed that the methane was still too high.  During the next hour, Basin
Resources made changes at the third north regulator in an attempt to 
reduce the level of methane.  (Id. at 254).  This change redirected about
8,600 cfm of air.  At about 11:35 p.m., the mine made another air change
at this regulator to reduce the level of methane in the entries.

     At about 2:10 a.m. on May 2, the inspector took another methane
reading in the return.  The hand held methane detector showed a methane 
reading of 1.2% while bottle sample showed 1.04% methane.  (Tr. 256; Ex.
R-C2 p.3).  At that time, Inspector Fleshman issued a non-S&S citation
under section 104(a) of the Mine Act for the alleged violation that
included a high negligence finding.  Shortly thereafter, the mine made
adjustments to a curtain in the face area.  At about 3:30 a.m., readings
of about .8% and .9% methane were taken by Dave Pagnotta, the shift 
supervisor.  (Tr. 413-14; Ex. R-C2 pp. 2-3).  It appears that Inspector 
Fleshman was advised of these readings before he left the mine.  Id. 
Later on May 2, other adjustments were made to the third north No. 1 
entry regulator and the third left intake.  (Tr. ;  Ex. R-C2 p.3).  
Readings between .7% and .8% were obtained after these changes were made.
At about 4:10 p.m. on May 2, Inspector Fleshman called to advise the mine
that he was modifying the citation to a section 104(d)(2) order with S&S 
findings.  (Tr. 260).  Inspector Fleshman testified that he modified the
citation at the direction of his field office supervisor, Larry Ramey. 
(Tr. 250).  The inspector testified that he told the general mine foreman,
Derrel Curtis, that he disagreed with the modification. Id. Derrel Curtis
confirmed this conversation. (Tr. 379-80). 

    Inspector Fleshman testified that the reason why he issued the citation
was because the changes that were made at the mine between 7:25 p.m. on May
1 and 2:10 a.m. on May 2 "were not effective in reducing the methane."  
(Tr. 260).   He believed that the quantity of air being directed to the 
return entry to dilute the methane did not increase with these changes
with the result that the concentration of methane did not decrease.  
(Tr. 262).  He felt that the initial changes made were temporary expedients
rather than permanent changes.  (Tr. 268).  He believed that the methane 
problem was cause by a short circuit in the ventilation system.  
(Tr. 270).  Inspector Fleshman interprets the safety standard to mean
that if an operator is given a reasonable time to make changes and the
changes it makes "are not satisfactory to reduce the methane, [an inspector
has] no choice but to issue the citation."  (Tr. 263).  In this instance
he believed that five hours was a reasonable time to comply with the 
standard.  Id.  He does not dispute that mine officials were acting in
good faith to comply with the standard when making the changes.  (Tr.
264, 266-67).

     I find that the Secretary did not establish a violation of the
standard.  It is clear that Basin Resources started making changes and
adjustments to the ventilation system in the 4 left returns to try to
reduce the concentration of methane as soon as the high reading was 
reported.  Derrel Curtis testified that the company made extensive 
adjustments to the ventilation system to reduce the methane on the day 
the citation was written.  (Tr. 387).  Although Inspector Fleshman 
believed that the methane problem was caused by a short circuit in the
ventilation system, he agreed that the company was making good faith 
attempts to bring down the concentration of methane.  He issued the
citation at 2:10 a.m. on May 2 because the company's attempts were not
successful.  There may come a point when a mine operator has exhausted 
its options or has been given sufficient time to reduce the level of
methane.  But in this case, the evidence shows that Basin Resources was 
proceeding as quickly as it could to make effective changes in the 
ventilation system.  There is no allegation that it was not paying 
sufficient attention to the problem or that it had not devoted 
sufficient resources to it.  Accordingly, the order is vacated.

     2.  Order No. 4057464

     On June 13, 1995, Inspector Fleshman issued a section 104(d)(2) order
alleging a violation of 30 C.F.R.  75.370(a)(1).  In the order, the 
inspector alleged that the ventilation plan was not being followed in that
several ventilation devices were not being maintained in a manner to serve 
their intended purpose.  The order states that a 2-1/2 foot square man door
was blocked open in the 3 north section, No. 3 entry, between crosscuts 49
and 50, which allowed 48,431 cfm of intake air to be short-circuited into
the return.  In addition, the order alleges that the stopping in the same
entry between crosscut Nos. 53 and 54 was blown out.  He determined that
the violation was not S&S but was caused by Basin Resources' unwarrantable
failure.    The Secretary proposes a penalty of $6,500 for the alleged 
violation.

     Basin Resources does not contest the fact of violation, but contends 
that the violation was not the result of its unwarrantable failure.  
Inspector Fleshman testified that he considered the violation to be
unwarrantable because the mine had a history of methane problems, the 
stopping had been blown out for "quite some time," the date-board indicated
that the area had been examined by the weekly examiner, and the examiner
told the inspector that the stopping had been blown out for a long time. 
(Tr. 289-91, 294; Ex. G-10B).  The inspector believes that the short
circuit created by this violation was responsible for the methane problems
in the return described in Order No. 4057482 above.  (Tr. 302).   He
stated that about 48,000 cfm of air was coursing through the stopping. 
(Tr. 298).   He testified that he talked about the blown-out stopping
with Ed Dominguez, the UMWA fireboss, who advised him that the condition 
had existed for several months.  (Tr. 294, 297, 302).  The inspector said
that he became upset with Mr. Dominguez because he had not taken any steps 
to correct the problem or report it to management.  Id.

     Mr. Hallows spoke with Mr. Dominguez the day after the order was 
issued.  Mr. Dominguez told Mr. Hallows that he did not understand why the
inspector issued the order.  (Tr. 437).  He told Hallows that, except for 
some minor leakage, the stopping was intact the day before the order was
issued.  (Tr. 437-38).  Mr. Dominguez, who is no longer employed by Basin
Resources, testified that he was a UMWA fire boss with 20 years of 
underground coal mining experience.  He was on the UMWA safety committee. 
He testified that he examined the area the day before the citation was 
issued and the stopping was intact.  (Tr. 482-83).  He denied that he 
told the inspector that the condition had existed for several months. 
(Tr. 486).   On rebuttal, Inspector Fleshman stated that he had several
conversations with Mr. Dominguez on June 13 and that he may have 
misunderstood what Mr. Dominguez was trying to tell him. (Tr. 568-70).

     The principal reason for Inspector Fleshman's unwarrantable failure
finding is the length of time that the condition existed with the 
knowledge of the fire boss.  I credit the testimony of Mr. Dominguez that
the condition had not existed for as long a period of time as the 
inspector believed.  Accordingly, I vacate the inspector's unwarrantable 
failure determination, and affirm the violation as a section 104(a)
citation.

     3.  Order No. 4057466

     On June 15, 1995, Inspector Fleshman issued a section 104(d)(2) order
alleging a violation of 30 C.F.R.  75.370(a)(1).  In the order, the 
inspector alleged that the ventilation plan was not being followed because 
the third north roadway, entry No. 5, between crosscut Nos. 49 and 57, was
extremely dry and dusty.  He determined that the violation was not S&S but 
was caused by Basin Resources' unwarrantable failure.  The Secretary 
proposes a penalty of $6,500 for the alleged violation.

     The provision of the ventilation plan that Inspector Fleshman contends
was violated provides that dust on haulage ways "shall be controlled by
water wetting or calcium/magnesium chloride applications or other dust 
suppressants as needed to maintain respirable dust on intake at or below 
1.0 mg/m3."  (Tr. 312; Ex. G-11).  He stated that dusty roadways present
three hazards:  (1) a risk of a fire or explosion, (2) reduced visibility,
(3) respirable dust.  (Tr. 312-13).  The inspector testified that the air 
velocity in the area was high and one could see suspended dust whenever a
vehicle passed.  (Tr. 314).  He said the condition was obvious and the 
operator's negligence was high.  He testified that the area dries out so
quickly that the entry requires a continuous application of water.  (Tr.
315).  He stated that he did not mark the order as S&S because he did not
take a sample of the dust to see if respirable dust exceeded 1.0 mg/m3. 
Id.  He determined that the violation was unwarrantable because the 
roadway had been cited many times.  (Tr. 316).  Inspector Fleshman was
advised that the road had been watered earlier that shift.  (Tr. 317-18).

     The cited provision of the ventilation control plan is unambiguous. 
Dust on roadways must be controlled "to maintain respirable dust on intake
at or below 1.0 mg/m3."  (Ex. G-11).  The Secretary did not establish that
respirable dust was greater than 1.0 mg/m3.  Accordingly, the Secretary did
not meet its burden of proof.  Energy Fuels Coal Co., Inc., 12 FMSHRC 698,
703- 04 (April 1990)(ALJ).  For the reasons set forth in that decision,
the order is vacated.

     4.  Citation No. 4057727

     On October 31, 1995, Inspector Shiveley issued a citation alleging a
violation of section 75.370(a)(1).  In the citation, the inspector alleges
that Basin Resources was not complying with the ventilation plan in the 5
left section, entry Nos. 2 and 3, because dry haul roads existed for a
distance of 110 feet starting at crosscut No. 19.  Inspector Shiveley 
determined that the violation was not S&S.  The Secretary proposes a 
penalty of $1,019 for the alleged violation.

     The Secretary relies on the same provision of the ventilation plan as
Order No. 4057466 above.  The Secretary did not establish that the 
respirable dust was greater than 1.0 mg/m3.  For the reasons discussed 
above, the citation is vacated.
	
     5.  Citation No. 4057742

     On October 4, 1995, Inspector Shiveley issued a citation alleging a
violation of section 75.351(f).  In the citation, the inspector alleges 
that the atmospheric monitoring system ("AMS") for the bleeder system in
NW-1 through NW-6 had not been calibrated at least once every 31 days. 
The citation states that it was last calibrated on September 1, 1995. 
Inspector Shiveley determined that the violation was not S&S.  The
Secretary proposes a penalty of $1,019 for the alleged violation.

     Inspector Shiveley determined that there was a violation based on his
review of the company's records.  (Tr. 162).  Mr. Hallows testified that
Basin Resources could not calibrate the AMS because the area was subject
to a section 107(a) order of withdrawal.  (Tr. 450; Ex. R-L).  The record 
reveals that a section 107(a) order was issued by Inspector Shiveley on
September 5, 1995, and that the order was not terminated until October 10,
1995.  (Ex. R-L).  The order states that it covered the No. 3 entry of the 
four left longwall starting inby crosscut No. 44 and continued for a
distance of 50 feet.  Id.  There is no dispute that the calibration could 
not be made in the area covered by the imminent danger order.  
Nevertheless, the Mine Act imposes strict liability and the citation is
affirmed as a non-serious violation with low negligence.

     6.  Citation No. 4057673

     On November 2, 1995, Inspector Simmons issued a citation alleging a
violation of section 75.364(a)(2)(iii).  In the citation, the inspector
alleges that the four left bleeder entry was not examined in its entirety 
at least every seven days.  The citation states that the bleeder had not
been examined beyond crosscut No. 38 because the entry was blocked by a
roof fall or floor heave.  The last examination was conducted on October 
25, 1995.  Inspector Simmons determined that the violation was not S&S. 
The Secretary proposes a penalty of $1,019 for the alleged violation.  
The safety standard requires a weekly examination of at least one entry 
of each set of bleeder entries used as part of a bleeder system.

     There is no dispute that the weekly examination was not performed
beyond crosscut No. 38.  The standard requires that the examiner travel 
the entry "in its entirety."  Basin Resources could not get into the area
to perform the examination because of the conditions in the area.  The
inspector admitted that a person could not get through the entry beyond
that crosscut.  (Tr. 71).  

     The standard provides that a primary purpose of the examination is to
measure methane and oxygen concentrations, and to determine if a sufficient
quantity of air is moving in the proper direction.  The inspector was 
concerned that methane could build up in the bleeder or water could 
accumulate.  (Tr. 72). 

     Basin Resources argues that the citation should be vacated because 
unsafe conditions made an examination impossible.  It points to section
75.364(d), which requires that hazardous conditions be corrected 
immediately and miners withdrawn from the area until the conditions are
corrected.  I find that the Secretary established a violation.  Basin 
Resources did not perform a sufficient examination of the bleeder entry
to comply with the requirements of the standard.  The fact that it was 
blocked may be taken into consideration when evaluating negligence.  
Basin Resources was required to correct the hazardous condition 
immediately.  Accordingly, the citation is affirmed as a non-serious 
violation with low negligence.

     7.  Citation No. 4057680

     On November 8, 1995, Inspector Simmons issued a citation alleging a
violation of 30 C.F.R.  75.380(d)(1).  In the citation, the inspector 
alleged that the primary escapeway in the No. Four entry of the  3rd 
North section was not being maintained to assure safe passage of miners
because water in excess of 20 inches was present between crosscuts 66
and 67.  He determined that the violation was not S&S.    The Secretary 
proposes a penalty of $1,450 for the alleged violation.  The safety 
standard requires escapeways to be maintained in a safe condition to 
"always assure passage of anyone, including disabled persons."   

     Inspector Simmons testified that he was concerned that someone 
traveling through the water could fall and become seriously injured. 
(Tr. 100).   He assumed that miners would take an alternate route that
was not affected by the water.  (Tr. 101-02).  Mr. Hallows testified that
the mine was in the process of pumping out the water in the area and that
the escapeway had been rerouted to avoid the water.  (Tr. 464-65; Ex. R-S).
I find that the Secretary established a violation.  Basin Resources' 
argument that the citation should be vacated because the escape had been
rerouted is rejected.  Accordingly, the citation is affirmed as a 
non-serious violation.

     8.  Citation Nos. 4057506 and 4057962

     Citation No. 4057506, issued by Inspector Fleshman on May 24, 1995,
alleges an S&S violation of section 75.380(d)(4).  It was originally issued
as a section 104(d)(2) order, but the parties agreed to reduce the level 
of negligence, delete the unwarrantable failure designation, and modify 
it to a section 104(a) citation.  (Tr. 4, 285-86).  Citation No. 4057962,
issued by Inspector Simmons on November 9, 1995, alleges a non-S&S 
violation of section 75.364(b)(2).  Basin Resources does not contest the
violations or the inspectors' other determinations.  It only contests the
amount of the penalty.  Based on the description of the violations in the
citations, the inspectors' determinations with respect to gravity and 
negligence, and the civil penalty criteria, I assess the penalties set 
forth in section III of this decision.

     C.  Combustible Materials

     1.  Order No. 3849793

     On April 7, 1995, Inspector Shiveley issued a section 104(d)(2) order
alleging a violation of section 75.400.  In the order, the inspector 
alleges that accumulations of paper, empty oil cans, and broken wooden
pallets were allowed to be stored in a trash wagon in crosscut 39 of 4
Left section.  The order states that miners have been putting trash in
the wagon for two days.  It also states that the practice of storing trash
in open trash wagons was previously discussed with management.  Inspector
Shiveley determined that the violation was not S&S and was caused by Basin
Resources' unwarrantable failure.  The Secretary proposes a penalty of
$6,000 for the alleged violation.  Section 75.400 provides, in part, that
coal dust and other combustible materials shall be cleaned up and not be
allowed to accumulate in active workings.

     Inspector Shiveley testified that when he saw the trash wagon, he
asked Joe Whalen, a miner, how long it had been there.  He testified that
the miner replied that the wagon had been there at least a day and half. 
(Tr. 124).  He also believed that the amount of trash in the wagon 
indicated that it had been there for some time.  (Tr. 131).  The 
inspector immediately issued the order.  Id.  He determined that the
violation was unwarrantable because the issue of trash wagons had been 
previously discussed with mine management.  (Tr. 125-28).  In addition,
the condition was obvious and management should have realized that the 
wagon needed to be emptied.  Id.  

     Tom Sciacca, a former accident-prevention coordinator at the mine, 
testified that the amount of trash in the wagon could have accumulated in
a shift.  (Tr. 403, 405-07).  He stated that the procedure at the mine was
to dump the trash onto a rail car whenever it became full.  (Tr. 404).  He
stated that the trash wagon was scheduled to be removed from the section
the morning of April 7.  Id.  

     It is clear that the trash wagon had been in crosscut 39 for a day and
a half, but it is not clear how long the trash had been there.  (Tr. 132).
It could have been emptied during that period without the knowledge of 
Mr. Whalen.  (Tr. 137).  I credit the testimony of Mr. Sciacca that trash 
can accumulate quickly.  When a trash wagon is taken to be emptied, another
trash wagon is put in its place.  (Tr. 407).  Thus, the fact that a trash
wagon was in an area for several days does not establish that the trash 
had been there for the same length of time.  

     A mine operator is required to immediately remove accumulations of
coal dust.  Trash is another matter, however.  Under the standard, a mine 
operator must have a regular program to clean up trash.  Whether there is
a violation must be considered on a case-by-case basis.  Basin Resources
collects its trash in trash wagons and removes them when they are full.
I find that the Secretary did not establish a violation.  Inspector 
Shiveley relied on the statement of Mr. Whalen to establish a violation.
He did not ask Mr. Whalen if he knew how long the trash had been in the 
crosscut, he asked how long the wagon had been there.  Thus, the Secretary
did not establish that the trash had been allowed to accumulate in the 
crosscut for an unreasonable length of time.  See Basin Resources, Inc., 
19 FMSHRC 711, 717-18 (April 1997)(ALJ).  Accordingly, the order is
vacated.

     2.  Order No. 4057499

     On May 24, 1995, Inspector Fleshman issued a section 104(d)(2) order 
alleging a violation of section 75.400.  In the order,  the inspector 
alleges that about 30 empty rock-dust bags, cardboard, empty plastic
containers, and rags were allowed to exist in 4 left section along Crosscut
41 between entry Nos. 2 and 3.  Inspector Fleshman determined that the 
violation was not S&S and was caused by Basin Resources' unwarrantable
failure.  The Secretary proposes a penalty of $7,000 for the alleged 
violation.

     Inspector Fleshman testified that the violation was unwarrantable 
because he observed the trash on the previous day and told Mr. Sciacca 
that it needed to be cleaned up.  (Tr. 276; Ex. R-D2).  Mr. Sciacca 
testified that a trash wagon had been hooked up to a scoop and was 
traveling around the mine picking up trash when the order was issued. 
(Tr. 417).  He stated that the cited accumulation had not been cleaned 
up because the trash wagon had not arrived at that location at the time 
of the inspection.  (Tr. 418).  He testified that the wagon arrived about
10 minutes after the order was issued.  Inspector Fleshman warned 
Mr. Sciacca about the trash at 2:50 a.m. on May 23 and issued the order
at 12:50 a.m. on May 24.

     Basin Resources does not contest the violation but contends that it 
was not caused by its unwarrantable failure.  Unwarrantable failure is 
aggravated conduct constituting more than ordinary negligence.  It is
characterized by such conduct as "reckless disregard," "intentional 
misconduct," "indifference," or a "serious lack of reasonable care." 
The Commission has held that "a number of factors are relevant in 
determining whether a violation is the result of an operator's
unwarrantable failure, such as the extensiveness of the violation, the
length of time that the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether an operator 
has been placed on notice that greater efforts are necessary for 
compliance."  Mullins and Sons Coal Co., Inc., 16 FMSHRC 192, 195
(February 1994)(citation omitted).

     In this case, the violative condition had existed for at least a day 
and Basin Resources was put on notice that greater efforts were necessary
to come into compliance.  On the other hand, the violation was not
particularly extensive and operator had begun efforts to come into 
compliance.  Taking these factors into consideration, I find that the 
Secretary established that the violation was the result of Basin Resources'
unwarrantable failure.  The failure to remove the trash in a more 
expeditious manner was the result of a serious lack of reasonable care.

     3.  Citation No. 4057613

     On September 20, 1995, Inspector Shiveley issued a citation alleging 
a violation of 30 C.F.R.  77.202.  In the citation, the inspector alleged
that fine coal dust was allowed to accumulate on electrical control boxes
in the control room of the coal tipple building.  The citation states that
the fine coal dust was on top of all of the control boxes and was 
one-sixteenth to one-eighth of an inch thick.  He determined that the
violation was not S&S.  The Secretary proposes a penalty of $1,019 for
the alleged violation.  The safety standard states, in part, that coal 
dust shall not be allowed to accumulate in dangerous amounts on the
surfaces of structures, enclosures, or other facilities.

     Inspector Shiveley testified that when he entered the electrical
control room, he observed a layer of fine coal dust on the surfaces of
electrical equipment.  (Tr.  147).  He determined that it was unlikely 
than anyone would be injured as a result of the violation, but that coal
dust was present in a combustible amount.  (Tr. 148).  He stated that
even a small film of coal dust is combustible and would be a violation 
of the standard.  He testified that arcing occurs when electrical control 
boxes are turned on or off creating an ignition source for the fine coal 
dust.  (Tr. 151).

     Basin Resources argues that the mere presence of coal dust is not a
violation of the standard.  Rather, the Secretary must show that the amount
of dust is sufficient to propagate a fire.  I find that the Secretary met 
her burden of proof.  Whether an accumulation of fine coal dust is 
"dangerous" depends on the amount of the accumulation and the existence
and location of sources of ignition.  See Rochester and Pittsburgh Coal 
Co., 12 FMSHRC 220, 231-32 (February 1990)(ALJ).  The inspector determined 
that the accumulation was one-eighth of an inch thick in many areas and 
that it covered all surfaces.  There were sources of ignition in the 
immediate vicinity.  Although it was unlikely that the accumulation would
ignite and cause a serious injury, the fine coal dust was allowed to
accumulate in dangerous amounts.  Accordingly, the violation is affirmed.

     4.  Citation Nos. 4057647, 4057726, 4057674, and 4057963

     Citation No. 4057647, issued by Inspector Simmons on September 29,
1995, alleges a non S&S violation of section 75.400.  Citation No. 4057726,
issued by Inspector Shiveley on October 31, 1995, alleges a non-S&S
violation of section 75.402.  Citation No. 4057674, issued by Inspector
Simmons on November 3, 1995, alleges a non S&S violation of section 
75.403.  Citation No. 4057963, issued by Inspector Simmons on November 14, 
1995, alleges an S&S violation of section 75.400.  Basin Resources does 
not contest the violations or the inspectors' other determinations.  It
only contests the amount of the penalty.  Based on the description of
the violations in the citations, the inspectors' determinations with
respect to gravity and negligence, and the civil penalty criteria, I 
assess the penalties set forth in section III of this decision.

     D.  Electrical Equipment

     1.  Citation No. 4057676

     On November 6, 1995, Inspector Simmons issued a citation alleging a 
violation of 30 C.F.R.  75.512.  In the citation, the inspector alleged 
that a complete weekly examination had not been conducted on all electrical
equipment for the week of October 29 through November 4, 1995. The citation
states that the circuits in the monitoring system for the bleeders from
NW-1 through NW-6 were last examined on October 25.  He determined that
the violation was not S&S.    The Secretary proposes a penalty of $1,019
for the alleged violation. The safety standard requires that all electrical
equipment be examined on a weekly basis, at section 75.512-2.

     There is no dispute that a complete weekly examination was not 
performed.  Basin Resources contends that its personnel could not get into
the area to perform the examination because of the conditions in the area.
The inspector admitted that a person could not get to the cited circuits 
because the area was blocked by the same roof fall discussed with respect
to Citation No. 4057673.  (Tr. 88-89, 91).  Mr. Hallows testified that, 
due to unsafe roof conditions, the examination could not be made.  
(Tr. 462; Ex. R-Q).  

     Basin Resources argues that the citation should be vacated because 
unsafe conditions made an examination impossible.  I find that the 
Secretary established a violation.  Basin Resources did not perform the 
examination of the cited equipment.  The Mine Act imposes strict liability
on mine operators.  The fact that the area was blocked may be taken into 
consideration when evaluating negligence.  Accordingly, the citation is 
affirmed as a non-serious violation, with low negligence.	2.  Citation 
No. 4057612

    On September 20, 1995, Inspector Shiveley issued a citation alleging a
violation of 30 C.F.R.  77.516.  In the citation, the inspector alleged 
that the _-inch metal conduit for the 480-volt power circuit to the 
vibrator screen motor in the coal tipple was not supported as required by
the National Electrical Code.  The citation states that the conduit was 
required to be supported within four feet of each box, cabinet, or other 
termination point.  He determined that the violation was not S&S.  The 
Secretary proposes a penalty of $903 for the alleged violation.  The 
safety standard provides, in part, that all wiring and electrical equipment
shall meet the requirements of the National Electrical Code.

     Basin Resources does not dispute that the condition violated the 
standard.  It argues that the condition had existed for some time and had
never been cited by an MSHA inspector.  Mr. Hallows testified that the
conduit had never been supported at the location cited by the inspector.
(Tr. 448; Ex. R-K).  He further testified that MSHA inspectors had 
inspected the area many times.  Mr. Salerno confirmed this testimony. 
(Tr. 544-47).  I credit this testimony.

     While it is true that MSHA inspectors had traveled through the area
many times during previous inspections and had never issued any citations
for the condition, it is also true that Basin Resources managers had
traveled through the area on numerous occasions.  It is a mine operator's
responsibility to take steps to comply with safety standards, not MSHA 
inspectors.  I affirm the citation as a non-serious violation and reduce 
the negligence slightly.

     3.  Citation Nos. 4057723, 3590053, 4057611, and 4057677

     Citation No. 4057723, issued by Inspector Shiveley on October 25, 
1995, alleges a non- S&S violation of section 75.503.  Citation No. 
3590053, issued by Inspector Fleshman on October 26, 1995, alleges a
non-S&S violation of section 75.503.  Citation No. 4057611, issued by 
Inspector Shiveley on September 20, 1995, alleges a non-S&S violation 
of section 77.502.  Citation No. 4057677, issued by Inspector Simmons 
on November 6, 1995, alleges a non-S&S violation of section 75.507.  
Basin Resources does not contest the violations or the inspectors' other
determinations.  It only contests the amount of the penalty.  Based on
the description of the violations in the citations, the inspectors' 
determinations with respect to gravity and negligence, and the civil
penalty criteria, I assess the penalties set forth in section III of this
decision.

     E.  Machinery and Equipment

     1.  Citation No. 4057648

     On September 29, 1995, Inspector Simmons issued a citation alleging a
violation of 30 C.F.R.  75.1722(a).  In the citation, the inspector
alleged that a guard was not provided for the right side of the take-up 
roller on the No. 8 belt conveyor.  The guard was leaning against the coal
rib.  The citation states that the belt and rear take-up roller could 
easily be contacted.  He determined that the violation was S&S and Basin 
Resources' negligence was moderate. The Secretary proposes a penalty of
$1,450 for the alleged violation.  The safety standard requires, in part,
that guards be provided for gears; drive, head, tail, and take-up pulleys;
flywheels; and similar moving machine parts that may be contacted by and
cause injury to persons.

     Basin Resources stipulated that the violation occurred and that the 
violation was S&S, but contends that its negligence was low.  (Tr. 38). 
Inspector Simmons testified that the guard was taken off at some point
and was leaning against the rib.  (Tr. 40; Ex. G-4).  He believes that 
the person who took of the guard was "inattentive" and that a finding of
moderate negligence is appropriate.  Id.  The belt was running when he
issued the citation.  He said that anyone could see that the guard was 
leaning against the rib and had not been replaced.  (Tr. 42, 42).  He
believed that a miner should have been able to see this condition and 
correct it.  Id.

     Basin Resources argues that the condition was so obvious and easy to 
remedy that the hourly employee who took off the guard should have replaced
it before starting the belt.  It believes that the negligence of the miner
who took off the guard should not be imputed to the operator in this 
instance, citing Fort Scott Fertilizer-Cullor, Inc.17 FMSHRC 1112, 1115-16
(July 1995).  

     The conduct of a rank-and-file miner is not imputable to the operator
in determining negligence for penalty purposes.  Id.  The Secretary bears
the burden of proof on the issue of negligence.  I agree with Basin
Resources that the Secretary did not establish that the company's 
negligence was moderate.  I find that Basin Resources' negligence was 
less than moderate and reduce the penalty accordingly.

     2.  Citation No. 4057741

     On October 4, 1995, Inspector Shiveley issued a citation alleging a 
violation of 30 C.F.R.  75.1722(a).  In the citation, the inspector 
alleged that a guard was not extended a sufficient distance to prevent a
person from reaching into fan blades and belts on a loader/forklift.  The 
citation states that a 3-by 18-inch opening was present in the engine 
compartment around the generator pulley, a belt, and the fan blade.  He
determined that the violation was S&S and Basin Resources' negligence 
was moderate. The Secretary proposes a penalty of $1,450 for the alleged
violation.

     Inspector Shiveley testified that a number of people work on and 
around the forklift.  (Tr. 154).  The area of exposure was about waist
high and was within the area where people could expose their hands.  Id.
He considered the violation to be S&S because of the activity and exposure.
(Tr. 155).  He believed that it was reasonably likely that somebody would
contact the moving machine parts and sustain a serious injury.  Id.  
Mr. Sciacca testified that it would be impossible for the operator of the 
forklift to place his hands into the cited opening.  (Tr. 419).  He 
testified that other miners could not get their hands into the opening 
because the mine uses pallets to transport items.  (Tr. 420-21).  Thus,
he did not believe that anyone would be close to the opening when the 
forklift was operating.

     Basin Resources contests the inspector's S&S and negligence 
determinations.  I find that the Secretary met her burden of proof with
respect to both determinations.  Assuming continuing normal mining 
operations, it was reasonably likely that someone would inadvertently
come into contact with the moving machine parts.  The Secretary is not 
required to establish that it was more probable than not that an injury 
would result.  I find that it is reasonably likely that a miner working
around the forklift will slip or otherwise accidentally come into contact 
with the moving machine parts.  The Secretary also established that Basin
Resources was negligent with respect to the violation.

     3.  Citation No. 4057675

     On November 3, 1995, Inspector Simmons issued a citation alleging a 
violation of 30 C.F.R.  75.1722(c).  In the citation, the inspector 
alleged that the guard provided for the slope belt tail roller was not
secured in place while the belt conveyor was running.  He determined that 
an opening 2-1/2 feet wide and 6 feet high was present that exposed the
pinch points of the belt and tail roller.  He determined that the 
violation was S&S and Basin Resources' negligence was moderate. The
Secretary proposes a penalty of $1,450 for the alleged violation.  The
safety standard requires, in part,  that guards shall be securely in
place while machinery is being operated, except when the machinery is 
being tested.

     Inspector Simmons testified that a section of the guard was removed 
and not replaced.  (Tr. 81; Ex. G-6).  He further testified that he has
issued two citations in the past for the same condition at this location.
(Tr. 82).  Basin Resources does not contest the violation or the S&S 
determination.  It contends that the Secretary did not establish that 
its negligence was moderate, as discussed above with respect to Citation
No. 4057648.  I find that the Secretary met her burden of proof.  On 
prior inspections, Inspector Simmons issued similar citations at the 
same location.  Management is responsible for taking adequate steps to 
ensure that its workforce adheres to MSHA's safety standards.  The
citation is affirmed as written.

     4.  Citation No. 4057678

     On November 6, 1995, Inspector Simmons issued a citation alleging a 
violation of 30 C.F.R.  75.1722(c).  In the citation, the inspector 
alleged that the guard provided for the fan pulley and belts on a
continuous mining machine was not secured in place.  The guard had slid
forward leaving a six-inch by six-inch opening directly in front of the 
fan pulley and belts.  He determined that the violation was not S&S and 
Basin Resources' negligence was moderate. The Secretary proposes a 
penalty of $1,019 for the alleged violation. 

     Inspector Simmons testified that the mining machine operator should 
have made sure that the guards were in place.  (Tr. 94).  The machine 
operator should have taken steps to make sure that the guard would not
slide forward while the machinery was operating.

     Basin Resources contends that it should be assessed a low penalty for 
this violation because its negligence was low.  It argues that the 
negligence of the mining machine operator in not correcting the problem 
should not be imputed to it.  There is no dispute that the sliding problem
was easy to fix.  I agree with Basin Resources that the Secretary did not
establish that the company's negligence was moderate.  I find that Basin
Resources' negligence was less than moderate and reduce the penalty 
accordingly.

     5.  Citation No. 4057944 and Order No. 4057671

     On October 17, 1995, Inspector Simmons issued a citation alleging a
violation of 30 C.F.R.  75.1403-5(j).  In the citation, the inspector 
alleged that no guard or crossover was provided inby the No. 5 left belt
drive where a beltman was observed crossing under the belt about ten feet
inby the head drive.  He determined that the violation was S&S and Basin
Resources' negligence was moderate. Section 1403-5(j) is a safeguard 
criterion that provides that persons shall not cross moving belt conveyors 
except where suitable crossing facilities are provided.

     Inspector Simmons issued the citation because he observed a beltman
crossing under the moving belt.  (Tr. 45).  He stated that a safeguard was 
issued at the mine on February 24, 1994, requiring crossovers or guards
where persons travel under the belt.  (Tr. 46).  The safeguard required 
the installation of a guard "to prevent material from falling and to 
prevent persons and equipment from contacting the belt conveyor at all 
locations where personnel and equipment pass under moving belt conveyors." 
(Ex. G-5 p. 2).  When the inspector arrived in the area, he observed a 
beltman on the other side of the drive.  Inspector Simmons asked him "how
he got over there," because the inspector wanted to go over there too. 
(Tr. 48-49).  Instead of answering him, the beltman apparently walked 
over to the inspector by going under the moving belt.  Id.  The inspector
then issued the citation.  The belt was about five feet high at that 
location.  The inspector did not see any crossovers or guarded locations
along the belt.  (Tr. 52).  

     On November 1, 1995, Inspector Simmons issued Order No. 4057671, 
under section 104(b) of the Mine Act.  The order states that no effort 
was made to install a guard or crossover inby the No. 5 belt drive where 
a beltman traveled under the belt.  Inspector Simmons testified that when
he returned to the area two weeks later, no guard had been installed.  
(Tr. 52-53).  He also did not observe any material in the area to indicate
that the operator had begun work on the guard.  The Secretary proposes a
penalty of $4,600 for the alleged violation.  

     Basin Resources contends that the only reason that the beltman 
traveled under the moving belt is because he thought Inspector Simmons 
was directing him to do so.  Inspector Simmons admitted that it was 
possible that the beltman crossed under the belt because the beltman
thought that the inspector wanted to talk to him.  (Tr. 58).  He 
testified, however, that this beltman told him that he had crossed 
under the moving belt earlier in the shift.  (Tr. 59).  The inspector 
also testified that there was no other way to get from one side of the
belt to the other in the vicinity of the belt drive. 

     Mr. Salerno testified when the inspection party arrived at the belt,
Inspector Simmons "hollered something" to the beltman and the beltman 
walked under the belt to the inspector.  (Tr. 550).  He testified that 
there was a cross-under in the vicinity, but he did not know how far away 
it was.  He also testified that between the time the original citation was
issued and the section 104(b) order was issued, a guard was installed at
the cited location.  (Tr. 548-49; Ex. R-M).  He testified that the guard
must have been removed in the interim.  

     I find that the Secretary established an S&S violation of the 
safeguard.  It is undisputed that the beltman walked under the moving 
conveyor while Inspector Simmons was there.  More importantly, the beltman
told the inspector that he had walked under the conveyor in the past. 
Based on the record, I find that a beltman would need to be on both sides 
of the belt during a shift and that there was no area in the vicinity where
he could safely travel under the belt.  The violation was S&S because it 
was reasonably likely that a miner would be seriously injured, assuming 
continued normal mining operations.  Coal or other material could fall off
the belt and strike a miner, or a miner's clothing could become entangled
in the moving parts and he could be seriously injured as a result.

     I credit the testimony of Inspector Simmons that the condition had 
not been abated when he revisited the area on November 1, 1995.  He 
originally determined that the condition could be abated in about three
hours.  Mr. Salerno testified that, depending on the availability of
materials, the guard could have been fabricated and installed in about 
three hours.  (Tr. 552-54).  He further testified that the outby foreman
told him that a guard had been put up after the citation was issued.  I
find that the condition had not been abated on November 1.  It is highly 
unlikely that a guard would have been put up and then completely removed 
from the area.  Basin Resources did not present any testimony explaining
why such an action would have taken place.  Inspector Simmons testified
that there were no indications at the belt that a guard had once been in
place or that the company was in the process of installing a guard. 

     I find that the Secretary established a prima facie case that the
"violation described in the underlying citation existed at the time the 
section 104(b) order was issued."  Mid-Continent Resources, Inc., 11
FMSHRC 505, 509 (April 1989).  I also find that Basin Resources did not
rebut the prima facie case by showing that "the violative condition 
described in the section 104(a) citation had been abated within the 
time period fixed in the citation, but had recurred."  Id.  Accordingly,
104(b) order No. 4057671 is affirmed.

     F.  Other Citations

     1. Citation Nos. 4057616, 4057617, 4057618, 4057619, 4057620, 4057649,
        4057650, 4057651, 4057652, and 4057653.

     On October 3, 1995, Inspectors Shiveley and Simmons issued citations
alleging violations of the Secretary's part 50 regulations.  Citation
No. 4057616 alleges a non-S&S violation of 30 C.F.R. 50.30(a).  The 
remaining nine citations allege non-S&S violations of section 50.20-1. 
Basin Resources does not contest the violations or the inspectors' other
determinations.  It only contests the amount of the penalty.  The 
violations were not serious.  Based on the description of the violations
in the citations, the inspectors' determinations with respect to gravity 
and negligence, and the civil penalty criteria, I assess the penalties set
forth in section III below.

     2.  Citation No. 4057755

     On October 18, 1995, Inspector Shiveley issued a citation alleging an
S&S violation of section 77.1710(g).  Basin Resources does not contest the
violation or the inspector's other determinations.  It only contests the
amount of the penalty.  Based on the description of the violation in the
citation, the inspector's determinations with respect to gravity and 
negligence, and the civil penalty criteria, I assess the penalty set 
forth in section III of this decision.

     3.  Citation No. 9894927

     At the hearing, the Secretary agreed to vacate this citation. 
(Tr. 3-4).  


                  II.  APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets out six criteria to be considered 
in determining appropriate civil penalties.  I find that Basin Resources 
was issued 925 citations and orders in the 24 months preceding October 17,
1995, and that Basin Resources paid penalties for 736 of these citations
and orders during the same period.  (Ex. G-1B).  I also find that Basin 
Resources was a rather large mine operator.  The Golden Eagle Mine shut
down in December 1995 and is no longer producing coal.  Basin Resources
has been unable to sell the mine.  Its unaudited balance sheet for April
30, 1996, shows that shareholders' equity was minus about 23 million 
dollars and its income statement for the year ending April 30, 1995, 
shows a net loss of $325,000.  18 FMSHRC 1846, 1847 (October 1996).  I
have taken Basin Resources' financial condition into consideration and 
find that the civil penalty assessed in this decision would not have
affected its ability to continue in business.  With one exception, the
Secretary has not alleged that Basin Resources failed to timely abate 
the citations and order.  Unless otherwise noted above, all of the
violations were serious and the result of Basin Resources' moderate
negligence.  Based on the penalty criteria, I find that the penalties
set forth below are appropriate for the violations.

III.  ORDER

     Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.
 820(i), I assess the following civil penalties:

Citation/Order No.         30 C.F.R.            Penalty 

WEST 96-80

      3849793              75.400                 vacated
      4057482              75.323(c)(1)           vacated
      4057499              75.400               $4,000.00
      4057506              75.380(d)(4)          1,200.00
      4057464              75.370(a)(1)            400.00
      4057466              75.370(a)(1)           vacated
      4058110              75.220(a)(1)            400.00

WEST 96-126

      4057611              77.502                  400.00
      4057612              77.516                  100.00
      4057613              77.202                  400.00
      4057647              75.400                  400.00
      4057648              75.1722(a)              600.00
      4057616              50.30(a)                100.00
      4057617              50.20-1                 100.00
      4057618              50.20-1                 100.00
      4057619              50.20-1                 100.00
      4057620              50.20-1                 100.00
      4057649              50.20-1                 100.00
      4057650              50.20-1                 100.00
      4057651              50.20-1                 100.00
      4057652              50.20-1                 100.00
      4057653              50.20-1                 100.00
      4057741              75.1722(a)            1,200.00
      4057742              75.315(f)               200.00
      4057944              75.1403-(5)(j)        4,500.00
      4057755              77.1710(g)            1,200.00

WEST 96-127

      4057722              75.202(a)             1,200.00
      4057723              75.503                  200.00
      3298166              75.202(a)             1,200.00
      3590053              75.503                  200.00
      4057725              75.202(a)               400.00
      4057726              75.402                  200.00
      4057727              75.370(a)(1)           vacated
      4057672              75.212(c)               400.00


Citation/Order No.         30 C.F.R.            Penalty 

      4057673              75.364(a)(2)(iii)       100.00
      4057674              75.403                  400.00
      4057675              75.1722(c)            1,200.00
      4057676              75.512                  100.00
      4057677              75.507                  200.00
      4057678              75.1722(c)              100.00
      4057680              75.380(d)(1)            200.00
      4057961              75.220(a)(1)            400.00
      4057962              75.364(b)(2)            200.00
      9894927              70.207                 vacated
      4057963              75.400                1,200.00


                           Total Penalty       $23,900.00


     Accordingly, the Secretary's motion to amend the petitions for
assessment of penalty is DENIED, the citations and order listed above 
are hereby VACATED, AFFIRMED, or MODIFIED as set forth above, and Basin 
Resources, Inc., is ORDERED TO PAY the Secretary of Labor the sum of 
$23,900.00 within 40 days of the date of this decision.


					     Richard W. Manning
					     Administrative Law Judge


Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)

Ned D. Zamarripa, Conference and Litigation Representative, Mine Safety
and Health Administration, P.O. Box 25367, Denver, CO 80225-0367 
(Regular Mail)

Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street, Suite 3000,
Denver, CO 80202 (Certified Mail)