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STAR FIRE MINING
January 8, 1999
KENT 98-204


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           January 8, 1999

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. KENT 98-204
                Petitioner      :  A.C. No. 15-13936-03552
                                :
           v.                   :  Star Fire Mining
STAR FIRE MINING,               :
                Respondent      :

                               DECISION

Appearances:  MaryBeth Bernui, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee,
              for the Petitioner; R. Henry Moore, Esq., Buchanan
              Ingersoll Professional Corporation, Pittsburgh,
              Pennsylvania, for the Respondent.

Before:  Judge Weisberger

     This case is before me based upon a Petition for Assessment
of a Civil Penalty filed by the Secretary of Labor ("Secretary")
alleging a violation by Star Fire Mining ("Star Fire") of
30 C.F.R.  77.1303 (pp).  Pursuant to notice, the case was heard
in Kingsport, Tennessee, on December 15, 1998.

     Star Fire operates a surface bituminous Coal Mine in Perry
County, Kentucky.  As part of its operation Star Fire drills 80
foot deep blast holes that are filled with an explosive and
subsequently blasted.  On February 13, 1998, an unplanned
explosion of a misfired drill hole occurred while Larry Ellison
was operating an electrical shovel in the area, causing him to
suffer a fractured skull and an injury to his right hand.  Jim
Thornsberry who was operating a rock truck in the area was also
injured.  After conducting an investigation, the Secretary issued
a Citation alleging that Star Fire violated 30 C.F.R.  77.1303
(pp) which provides as follows:  "[b]lasted areas shall be
examined for undetonated explosives after each blast and
undetonated explosives found shall be disposed of safely."

     The Secretary offered the testimony of two inspectors, John
Dishner and Elmer Hall, Jr.  Dishner testified that he conducted
an investigation of the accident.  He identified the Report of
Blasting Operations (Government Exhibit 1), which sets forth that
17 holes had been blasted on February 6, 1998.

     Dishner indicated, based upon his investigation, that it
appeared that the explosion at issue that occurred on February
13, 1998, resulted when the bucket of an electrical shovel
operating in the area that had been blasted on February 6, struck
an unfired detonation, and it exploded.  Dishner admitted on
cross-examination that when he examined the area in question on
February 13, the terrain was not in the same condition as it had
been prior to the explosion.  He indicated that he did not see
anything that evidenced undetonated explosive.

     Hall, who was the lead accident investigator, indicated that
on February 13, 1998, an anonymous telephone caller asserted that
there was another failed hole in the area at issue.  Hall
testified that he was subsequently informed by Star Fire that an
undetonated hole had been found and shot.

     Hall opined that on February 6 , 1998, a post blast
inspection did not detect undetonated holes.  He said that the
area should have been undisturbed if it had not been shot.  Hall
testified regarding the basis for his opinion as follows:  " [i]f
a quality inspection had been done, that since there should have
been a blast for an experienced blaster to observe and figure
that there was something wrong with this shot (sic)" (Tr. 88).
He said he also based his opinion upon his 30 years experience in
both underground and surface coal mines, and 3 years experience
as an investigator.

     Hall said that he spoke with Daniel Brock, a Star Fire
employee who was in charge of the blasters, Tom Singleton, Star
Fire's Superintendent, and Kyle Biares,  who all assured him that
a post blasting inspection had been done.  However, Hall did not
examine any records.

     On cross-examination, Hall conceded that prior to the
instant investigation, he had investigated blasting accidents,
but had never investigated a misfire.  He indicated that he had
been told that after the accident at issue, Star Fire had to cut
down 20 to 25 feet below the surface before another undetonated
blasting line was found.  Hall was not present when this
unblasted hole was discovered.  He conceded that at the time of
his inspection on February 13, 1998, he did not see any evidence
of a second unblasted hole; that he did not talk to the Star Fire
employee who had made the post blasting examination; that all
blasting lines that he found on the surface had been detonated;
that a post blast examiner would not have been able to see the
condition of lines in the blasting hole; that he did not know the
kind of examination conducted after the initial blast; that he
did not know what the surface that had been blasted looked like;
and that he did not know if there was any evidence of undetonated
holes when the examination was made.  After the Secretary
presented the testimony of Dishner and Hall, and introduced seven
exhibits, the Secretary rested.

     At the conclusion of the Secretary's case, Star Fire made a
motion to dismiss.  After listening to argument from counsel for
both parties on the motion to dismiss, the motion was granted.
The bench decision granting the motion is set forth below with
minor changes not relating to matters of substance.

     The standard at issue, 30 C.F.R.  77.1303 (pp) requires
that blasted areas shall be examined for undetonated explosives
after each blast and undetonated explosives found shall be
disposed of safely.  The Secretary has the burden of proving by
credible evidence that there had not been an examination, or that
an examination had been performed but such an examination was not
adequate.

     I find the Secretary has not presented a prima facie case in
this matter.  There is no evidence that has been presented as to
the type of examination that was performed.  These is no evidence
as to how the surface appeared at the time of the examination.
These is no specific evidence as to what the examiner did.  There
is no evidence as to what a reasonable examination should have
entailed.  There is no evidence relating to the appearance of the
ground surface at the time of the examination.

     Counsel for the Secretary indicated that she was not able to
ascertain any authority that stands for the proposition that the
mere fact that there subsequently is found undetonated explosives
raises a presumption that an area was not examined, or it was not
examined properly.  I have not been able to locate such
authority.

     So for these reasons, I find that the Secretary has not
established a prima facie case, and the motion to dismiss is
GRANTED.

                                ORDER

     It is ordered that this case be DISMISSED.


                                 Avram Weisberger
                                 Administrative Law Judge


Distribution:

MaryBeth Bernui, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, One Oxford Centre, 301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410  (Certified Mail)

/dcp