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

 
ENERGY WEST MINING COMPANY
April 24, 1996
WEST 93-169


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            April 24, 1996

SECRETARY OF LABOR,                 :
 MINE SAFETY AND HEALTH             :
 ADMINISTRATION (MSHA)              :
                                    :
          v.                        :    Docket No. WEST 93-169
                                    :
ENERGY WEST MINING COMPANY          :


BEFORE:  Jordan,  Chairman; Doyle, Holen and Marks, Commissioners[1]

                               DECISION

BY:  Jordan, Chairman and Doyle, Commissioner[2]

     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"). The issue is whether aninspector from the Department
of Labor's Mine Safety and Health Administration ("MSHA") abused his
discretion when he issued an order, pursuant to section 104(b) of
the Mine Act, 30 U.S.C.  814(b), to Energy West Mining Company
("Energy West") based on his determination that an extension in
abatement time for a previously cited violation of 30 C.F.R. 
70.100(a) (1995) was not warranted.[3]  Administrative Law Judge
John J. Morris affirmed the order and assessed a civil penalty of
$3,000 for the violation. 16 FMSHRC 835 (April 1994) (ALJ). For the
reasons set forth below, we affirm the judge's determination that
the inspector did not abuse his discretion, vacate the penalty,
and remand for reassessment.[4]

                                  I.

                  Factual and Procedural Background

     Energy West operates the Cottonwood Mine, an underground
coal mine in central Utah. During mid-June 1992, Energy West took
five respirable dust samples, pursuant to 30 C.F.R.  70.207, for
the designated occupation of longwall operator on mechanized mining
unit ("MMU") 015-0 in the 4th West Longwall section of the mine.[5]
16 FMSHRC at 839; Ex. M-3; Ex. R-2. The results from those samples
showed an average concentration of 2.2 milligrams of respirable dust
per cubic meter of air ("mg/m3"), which exceeded the 2.0 mg/m3
standard applicable at the mine.  16 FMSHRC at 836-37. On June 25,
1992, MSHA issued Energy West a citation alleging a significant and
substantial ("S&S") violation of section 70.100(a).  Id. at 836;
Citation No. 9996761.  Energy West was given approximately three
weeks, until July 14, to take corrective action to lower dust and
to submit five valid respirable dust samples to MSHA's Pittsburgh
Respirable Dust Processing Laboratory. 16 FMSHRC at 837; Citation
No. 9996761.

     Mine management met to develop a corrective action strategy.
16 FMSHRC at 841. Energy West's chief safety engineer, Randy Tatton,
and mine superintendent, Garth Nielsen, unsuccessfully attempted to
divert more air to the 4th West section by moving curtains. Id.; Tr.
329-35. Safety Engineer Steve Radmall conducted a dust survey in the
area using a real-time aerosol monitor, or "RAM," which takes instantaneous
dust readings, to determine whether dust control measures were functioning
properly. 16 FMSHRC at 841; Tr. 133-34, 213. Based on the survey results,
Radmall believed that there may have been a problem with the stage
loader and a dust generation source, such as dry roadways, in the intake
air course. 16 FMSHRC at 842; Tr. 217-26, 230-31. He informed Tatton
of the results and the efficiency of the stage loader was evaluated and
the roadways were watered. Tr. 145-46, 230-31. Roadways were routinely
watered in accordance with the ventilation plan. Tr. 360-61; Ex. R-4.

     In addition, the equipment overhaul coordinator, Bud
Warrington, informed the longwall foreman, Ed Hickman, by notation in a
daily maintenance list, that the dust samples had been out of compliance
and that resampling would occur the following week. 16 FMSHRC at 842; Tr.
186-87; Ex. R-5, at 2. He listed various maintenance measures that needed
to be taken and, as was his daily practice, attached a list of dust
control measures that were to be performed. Tr. 186-88, 197; Exs. R-4,
R-5. On June 29, Warrington instructed Hickman to "check everything out
that has to do with dust" and "[m]ake it shine." 16 FMSHRC at 842. The
longwall crew then engaged in various routine maintenance and repair
measures, including the maintenance and repair of the stage loader baffle,
and changing bits on the longwall shearer. Id. at 842-43; Tr. 193-94,
242-51, 260-61, 268-69, 286. On July 1, 2, and 3, Energy West took samples
in the 4th West section during five consecutive shifts and submitted them
to MSHA. 16 FMSHRC at 839; Ex. M-4; Tr. 164. On July 10, MMU 015-0 was
moved to the 11th Right section of the mine. 16 FMSHRC at 839, 843, 844.

     On July 15, during a regular inspection, MSHA Inspector Fred
Marietti was called from the mine to his field office to examine the
results of the abatement samples. Id. at 837-38.  They showed an increase
in dust concentration to 2.3 mg/m3. Id. at 838.

     Inspector Marietti returned to the mine and issued a section
104(b) failure to abate order to Energy West. He determined that an
extension in abatement time was not warranted because of the increase
in dust levels, the frequency of the cited type of MMU going out of
compliance, and the operator's failure to incorporate into its
ventilation plan actions it previously had taken to bring such equipment
into compliance. Id. at 840, 847-48; Tr. 36-37.

     Energy West increased air velocity and water pressure and
added a spray bar to MMU 015-0. Tr. 378. The order was terminated
after three samples taken by MSHA showed an average dust concentration
for MMU 015-0 of 1.8 mg/m3. Order No. 3850746-02; Tr. 50-52.

     At the hearing, Energy West conceded that it had violated
section 70.100(a) as alleged in the citation but disputed that the
violation was S&S and challenged the failure to abate order. The judge
granted the Secretary's motion to amend the citation to delete the
S&S allegation based on affidavits submitted by Energy West that the
miners exposed to the violative condition had been wearing RACAL
airstream helmets, a type of personal protective equipment that the
judge found "provide[s] a virtually dust-free air supply to miners,
reducing respirable dust exposure to insignificant levels." 16 FMSHRC
at 837, 843.

     The judge concluded that the inspector had not abused his
discretion in issuing the failure to abate order. Id. at 844. The judge
agreed that an extension was not warranted given the results of the most
recent sampling, the operator's history of excessive dust, a lack of
diligence in the operator's efforts to control dust, and the fact that
the operator failed to incorporate into its ventilation plan dust control
measures previously taken to achieve compliance.  Id. at 844-45, 847-49.
Accordingly, the judge affirmed the citation and order and assessed a
civil penalty of $3,000, finding that the violation involved high
gravity due to the risk of pneumoconiosis. Id. at 849-50.

     Energy West filed a petition for discretionary review, which
challenged the judge's affirmance of the failure to abate order and
his penalty assessment.

                                 II.

                             Disposition

                      A.  Failure to Abate Order

    Energy West argues that the judge erred in finding that the
order was valid because Inspector Marietti failed to consider
whether any circumstances warranted an extension in abatement
time. E.W. Br. at 12-16. It contends that it took extensive
abatement measures to achieve compliance and refers to various
maintenance and repair measures that were made with respect to
the longwall, the RAM survey, attempts to increase air on 4th
West, meetings relating to the excessive dust levels,
repositioning miners, and the longwall move from 4th West to 11th
Right. Id. at 17-18. The Secretary argues that substantial
evidence supports the judge's determination that the inspector
did not abuse his discretion in determining that the time for
abatement should not be extended. S. Br. at 4-17 & n.5. He
asserts that many abatement measures relied upon by the operator
to show its diligence consisted of routine maintenance that the
operator would have performed even if its sample results had been
in compliance. Id. at 10-12. In reply, Energy West asserts that
the Secretary failed to recognize that the dispositive issue is
the adequacy of the inspector's efforts to determine whether an
extension was warranted. E.W. Reply Br. at 1-6.

     In contesting a section 104(b) order, the operator may
challenge the reasonableness of the time set for abatement or, as
here, the Secretary's failure to extend that time. Clinchfield
Coal Co., 11 FMSHRC 2120, 2128 (November 1989), citing Old Ben
Coal Co., 6 IBMA 294, 306-07 (1976); U.S. Steel Corp., 7 IBMA
109, 116 (1976); Youghiogheny & Ohio Coal Co., 8 FMSHRC 330, 338-
39 (March 1986) (ALJ). Section 104(b) of the Mine Act provides:

     If, upon any follow-up inspection of a coal
     or other mine, an authorized representative
     of the Secretary finds (1) that a violation
     described in a citation . . . has not been
     totally abated within the period of time as
     originally fixed therein or as subsequently
     extended, and (2) that the period of time for
     the abatement should not be further extended,
     he shall determine the extent of the area
     affected by the violation and shall promptly
     issue an order requiring . . . all persons .
     . . to be withdrawn from . . . such
     area . . . .

30 U.S.C.  814(b). The Act does not address the extent of an
inspector's inquiry in making the determination of whether
abatement time should be extended. Nor is the extent of inquiry
addressed in legislative history. See S. Rep. No. 181, 95th
Cong., 1st Sess. 30 (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 618 (1978); H.R. Rep. No. 563, 91st Cong., 1st Sess. 8,
31 (1969), reprinted in Senate Subcommittee on Labor, Committee
on Labor and Public Welfare, 94th Cong., 1st Sess., Part I
Legislative History of the Coal Mine Health Safety Act of 1969,
at 1038, 1061 (1975) ("Coal Act Legis. Hist."); S. Rep. No. 411,
91st Cong., 1st Sess. 37, 89, reprinted in Coal Act Legis. Hist.
at 163, 215.

     The Commission has recognized that the "Secretary . . .
possesses enforcement discretion to extend the time for abatement
if [he] believes it reasonable . . . ." Clinchfield, 11 FMSHRC
at 2132. Therefore, in reviewing an operator's challenge to the
Secretary's failure to extend abatement time, the Commission
considers whether the inspector abused his discretion in issuing
the order. The Commission has noted that "abuse of discretion"
has been found when "there is no evidence to support the decision
or if the decision is based on an improper understanding of the
law." Utah Power & Light Co., 13 FMSHRC 1617, 1623 n.6 (October
1991), quoting Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir.
1985).

     We conclude that substantial evidence supports the judge's
determination that Inspector Marietti did not abuse his
discretion when he issued the order.[6] The judge found, and
substantial evidence supports his finding that, prior to
determining "that the period of time for the abatement should not
be further extended," Inspector Marietti considered the fact
that, during the three week abatement period, excessive dust
concentrations had not diminished but had, in fact, increased;
that the number of individual samples out of compliance had
increased from two out of five to three out of five; and that
Energy West had been cited frequently for failure to comply with
section 70.100(a).[7] 16 FMSHRC at 840, 845, 848, 849; Exs. M-3,
M-4, M-6; Tr. 35-36.

     In addition, substantial evidence supports the judge's
finding that Energy West "made only a minimal and inadequate
effort to control dust." 16 FMSHRC at 847. Many of the actions
cited by Energy West as evidence of diligence consisted of
maintenance that the operator would have performed in any event.
Warrington attached a list of dust control measures to his
maintenance report every night, and those measures were routinely
performed. Tr. 186-87, 197. Those measures included adjusting
air controls and volumes, checking scrubber filters at the stage
loader, and checking sprays. Ex. R-4. In addition, Energy West
witnesses testified that other measures that had been taken were
considered routine, including the maintenance and repair of the
baffle (Tr. 193), watering the roadways (Tr. 360), changing bits
on the longwall shearer (Tr. 260), and changing scrubber filters
(Tr. 309). Although the operator was aware that conditions were
becoming more difficult in 4th West as mining progressed, it
chose to rely on existing dust controls without making changes to
engineering controls. Tr. 195, 236, 362, 368.

     We also reject Energy West's argument that the judge erred
in failing to consider its move of the MMU as part of its
abatement efforts.[8] PDR at 14. Apparently the inspector was
unaware of the movement of MMU 015-0 at the time he issued the
order. 16 FMSHRC at 844; Tr. 47. If the MMU was moved as a
further abatement measure, that fact could have been brought to
MSHA's attention at the time of the move. We perceive no
obligation on the inspector's part to ascertain, before issuing
the order, that the MMU had not been moved.[9]

     Thus, we conclude that substantial evidence supports the
judge's determination that Energy West failed to act diligently.

     In sum, we conclude that the judge's determination that the
inspector did not abuse his discretion in issuing the failure to
abate order is supported by substantial evidence. Accordingly,
we affirm the judge's determination upholding the order.

                    B. Assessment of Civil Penalty

     The judge assessed a civil penalty of $3,000, finding that
the gravity of the violation of section 70.100(a) was high, given
the risk of pneumoconiosis and that such violations are generally
considered to be S&S. 16 FMSHRC at 850. Energy West argues that
the judge erred because he ignored evidence demonstrating a
decreased exposure to respirable dust. E.W. Br. at 23.

     In considering the gravity of a violation, the Commission
has generally considered the likelihood of an occurrence of the
hazard against which a standard is directed and the severity of
the resulting injury. See Penn Allegh Coal Co., 4 FMSHRC 1224,
1227 (July 1982); Pyro Mining Co., 6 FMSHRC 2089, 2092 (September
1984). Although the gravity penalty criterion and a finding of
S&S are not identical, they are frequently based upon the same or
similar factual circumstances. Quinland Coals, Inc., 9 FMSHRC
1614, 1622 n.11 (September 1987).

     Here, the longwall crew members affected by the violative
conditions had been wearing personal protective equipment, the
Secretary withdrew his S&S allegation because of this fact, and
the judge found that those helmets "provide a virtually dust-free
air supply to miners, reducing respirable dust exposure to
insignificant levels." 16 FMSHRC at 837, 843. There is no
indication in the judge's analysis that he considered this
evidence in determining that the violation was of high gravity or
in assessing the civil penalty.[10] Accordingly, we vacate the
penalty and remand for consideration of that evidence in the
assessment of an appropriate civil penalty.[11]

                                 III.

                              Conclusion

     For the reasons discussed above, we affirm the judge's
determination that the inspector did not abuse his discretion in
issuing the section 104(b) order. We vacate the penalty and
remand for reassessment.


                                   Mary Lu Jordan, Chairman

                                   Joyce A. Doyle, Commissioner


**FOOTNOTES**

     [1]:  Commissioner Riley assumed office after  this case had
been  considered and decided at a Commission 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 n.2 (June 1994).  In
the interest of efficient decision making, Commissioner Riley has
elected not to participate in this matter.

     [2]:  Chairman Jordan and Commissioner  Doyle  are  the only
Commissioners in the majority on all issues presented.

     [3]:  30 C.F.R.  70.100(a) provides in part:

          Each  operator  shall  continuously  maintain  the
     average  dust  concentration  of respirable dust in the
     mine atmosphere during each shift  to  which each miner
     in  the active workings of each mine is exposed  at  or
     below 2.0 milligrams of respirable dust per cubic meter
     of air . . . .

     [4]:    Chairman   Jordan,   Commissioner   Doyle,  and
Commissioner  Marks  affirm  the  judge's determination
that  the  inspector  did not abuse his  discretion  in
issuing the order.  Commissioner Holen would vacate the
order   and  reverse  the  judge.    Chairman   Jordan,
Commissioner  Doyle,  and Commissioner Holen vacate the
penalty  and  remand  for  reassessment.   Commissioner
Marks would affirm the penalty.

     [5]:  Section 70.207(a) provides in part:

          Each operator shall  take  five  valid  respirable
     dust  samples  from  the designated occupation in  each
     mechanized mining unit during each bimonthly period . .
     . .  Designated occupation  samples  shall be collected
     on  consecutive  normal  production  shifts  or  normal
     production   shifts   each   of  which  is  worked   on
     consecutive days . . . .

30 C.F.R.  70.207(a).

     [6]:  The Commission is bound  by  the terms of the Mine Act
to  apply  the  substantial  evidence  test  when   reviewing  an
administrative law judge's factual determinations.  30 U.S.C.
  823(d)(2)(A)(ii)(I).   The  term "substantial evidence"  means
"such  relevant evidence as a reasonable  mind  might  accept  as
adequate  to  support  [the  judge's]  conclusion."   Rochester &
Pittsburgh  Coal  Co.,  11  FMSHRC  2159,  2163  (November 1989),
quoting  Consolidated  Edison  Co.  v.  NLRB, 305 U.S.  197,  229
(1938).   While  we  do not lightly overturn  a  judge's  factual
findings, neither are  we  bound to affirm such determinations if
only slight or dubious evidence is present to support them.  See,
e.g., Krispy Kreme Doughnut  Corp.  v.  NLRB, 732 F.2d 1288, 1293
(6th Cir. 1984); Midwest Stock Exchange,  Inc.  v. NLRB, 635 F.2d
1255, 1263 (7th Cir. 1980).

     [7]:    Chairman   Jordan  observes  that  in  her  dissent,
Commissioner Holen contends that "the Commission's requirement of
an investigation into conditions  at  the mine before issuance of
an  imminent  danger  order  applies  with greater  force  to  an
inspector's exercise of discretion in issuing  a failure to abate
order."   Slip  op  at  14-15.   Unlike section 104(b),  however,
section 107 requires the inspector  to  "determine  the extent of
the area of such mine throughout which the danger exists"  and to
include in the order "a detailed description of the conditions or
practices  which  cause  and constitute an imminent danger and  a
description of the area of  the  coal  or  other  mine from which
persons  must  be  withdrawn  and prohibited form entering."   30
U.S.C.  817(a), (c).  Therefore,  she  does  not  agree with her
dissenting colleague's contention that section 104(b)  imposed an
obligation  on  Inspector  Marietti  to  "ascertain Energy West's
efforts  to  abate  the citation or the facts  and  circumstances
surrounding the operation  of  the  MMU"  before issuing an order
under that provision.  Slip op. at 15.

     [8]:   The  citation  and  order  arose from  samples  taken
pursuant to 30 C.F.R.  70.207, which requires  the  sampling  of
MMUs,  rather than 30 C.F.R.  70.208, which requires sampling of
designated  areas.   Under  section  70.207,  MSHA tracks the MMU
itself,  rather  than  its  location,  to  evaluate  the  cutting
characteristics   and   dust   controlling  capabilities  of  the
equipment.  Tr. 65.  Thus, the subject  of  the  sampling was MMU
015-0, rather than its location.

     [9]:   Chairman  Jordan  notes  that,  in any event,  Energy
West's  abatement  sampling  on  July 1-3, before  it  moved  the
longwall,  along  with  the  evidence   describing   the   severe
conditions the operator was experiencing in 4th West (Tr. 143-44)
suggests  that  the  move was not part of an attempt to abate the
dust violation.

     [10]:   Chairman  Jordan   notes   that  there  is  also  no
indication  that,  in  making  his  gravity  finding,  the  judge
considered the evidence relied upon by her dissenting  colleague,
Commissioner Marks.

     [11]:   The  judge stated that the Secretary had proposed  a
civil penalty of $500.  16 FMSHRC at 836.  In fact, the Secretary
had proposed a civil  penalty  of  $3,105 and it appears that the
penalty proposal was not reduced after the Secretary withdrew the
S&S allegation.  S. Proposal for Penalty  at  2; S. Post-Hrg. Br.
at 1; PDR at 7; E.W. Br. at 11.


Commissioner Marks, concurring in part and dissenting in part:

     The majority has voted to affirm the judge's determination
to uphold the subject section 104(b) order. I concur.

     The majority has voted to vacate the judge's civil penalty
assessment of $3,000, concluding that the judge failed to properly
analyze the gravity criterion of section 110(i), 30 U.S.C.  820(i).
I disagree and therefore dissent. The judge's determination that the
gravity of the violation was high is correct and supported by substantial
evidence. I therefore affirm his high gravity conclusion.

     In concluding that the gravity of the violation was high,
the judge stated:

          The gravity of the violation is high
     since respirable coal dust can cause
     pneumoconiosis over a period of time.
     Generally, such a violation is considered to
     be S&S.

16 FMSHRC at 850. The judge's determination is correct and
entirely consistent with Commission case law recognizing that any
violation of section 70.100(a) is serious and presumptively S&S.
Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986), aff'd 824
F.2d 1071 (D.C. Cir. 1987).

     However, the majority bases their vacation of the judge's
high gravity conclusion on their determination that the judge
failed to consider the following evidence: that affected longwall
crew members had been wearing helmets; that the Secretary
withdrew his S&S allegation because of the helmet use; and that
the judge found that the helmets provided a dust-free air supply
to miners that reduced the dust exposure to insignificant levels.

     The majority's reliance upon the foregoing is misplaced, and
its conclusion that affected miners wore helmets is in error.

     My review of the record precludes me from determining that
no miner was exposed to the dangerous respirable dust levels that
gave rise to the subject violation. Energy West's expert, Thomas
Hall, admitted that during a relevant visit to the mine he
observed maintenance workers on the subject section who were not
wearing a helmet. Tr. 416-17. Garth Nielsen, Energy West's
Superintendent at the subject Cottonwood Mine, conceded that a
significant number of miners, 10%, do not wear the helmets. Tr.
140. This was also confirmed by construction foreman Dennis
Ardohnin who conceded that some of his mechanics do not wear the
helmets. Tr. 252.

     The majority's reliance on the fact that the Secretary
withdrew his S&S allegation is misplaced. My review of the
record causes me to conclude that the Secretary has failed to
adequately explain the basis for its withdrawal of the S&S
allegation, and therefore, I certainly see no reason why the
Commission should further compound the error by relying on that
action to support its vacation of the judge's independent
determination.

     In support of his motion to withdraw the S&S allegation, the
Secretary relied on two affidavits executed by two longwall
foremen employed by Energy West. Ex. M-2. The affidavits
purport to assure the Secretary that no miners were exposed to
the violative high levels of respirable dust during the time of
the sampling. See Tr. 13. The affidavits are significant only
because of what they do not state. There is no indication that
all miners who may have worked in the vicinity of the cited MMU,
during the time that the violative condition existed (almost four
weeks) wore helmets. Rather, the affiants merely state that
"[d]uring June 1992 . . . all members of [their] crew . . . on
the 4th West longwall section wore RACAL airstream helmets at all
times." Ex. M-2, at 1 & 2. There is no indication that the
members of the two crews, supervised by affiants, were the only
miners who worked in the vicinity of the cited MMU. Moreover,
the vague reference to June 1992, does not cover the relevant
time period, that is the time that elapsed from June 25, 1992,
the day the citation was issued, to the day the subject order was
terminated, July 22, 1992.

     The logic justifying the Secretary's acquiescence on S&S is
further obscured when one considers his counsel's statement to
the judge made contemporaneously with the motion to withdraw the
S&S designation:

          [T]here may be some testimony later today
          with regard to the wearing of air stream
          helmuts (sic) at this mine, and that's going
          to go to the seriousness of the violation
          with regard to the penalty and the B order .
          . . . [b]y changing this designation to a non
          S and S, the Secretary in no way gives up
          MSHA's position that even a small exposure to
          respirable dust is a serious violation, and
          that particular issue is presently on appeal
          before the Commission in a Consolidation Coal
          case, and I don't wish to address that issue
          in this particular case.

Tr. 13-14. (emphasis supplied). In response to a question from
the judge, the Secretary's counsel further stated:

     [T]he issue I believe that's before the Commission . .
. is how much of an exposure (sic). We now have a case in front
of the Commission where the exposure was just brief. Someone
on the section may have taken their respirator off or come
on the section to do maintenance work for a short time, and
that's the issue that's been raised by Consolidation Coal and
that's the issue on appeal, and that may have been an issue here but
I don't want to address it in this case.

Tr. 14-15 (emphasis supplied).

     Based on the foregoing, it is certainly clear why the judge
would not have placed any reliance, as I don't, upon the Secretary's
withdrawal of the S&S designation. As described above, the evidence
does indicate that not all miners availed themselves of the helmets.

     Moreover, there is no reliable evidence establishing the
efficacy of the helmets. Energy West's own expert, Hall, provided
testimony that failed to establish the precise effect use of the
helmet would have on the miner's respirable dust exposure. He cited
"workplace protection factor[s]" ranging from 250 to 10. Tr. 403,
426. However, the record does not contain any meaningful explanation
of the significance of those numbers or their relationship to respirable
dust exposure. Further, the evidence does indicate that the helmets'
benefit, whatever that may be, could be nullified, if a miner wearing
a helmet had temporarily raised the shield during a dust "face burst."
Tr. 408. Also, Hall conceded that the effectiveness of the helmet is
conditioned upon a variety of factors, including the batteries, gaskets,
flow rate, and the type of work the miner is performing. Tr. 412-13. No
evidence regarding those factors was offered.

     For the foregoing reasons I conclude that substantial evidence
supports the judge's gravity conclusion, and I therefore affirm it.


                             ________________________________
                             Marc Lincoln Marks, Commissioner


Commissioner Holen, concurring in part and dissenting in
part:

     I agree that, given the disposition of the majority, the
penalty assessed[1] by the judge should be vacated and that,
on remand, he should consider evidence in the record that he
ignored regarding the gravity of the violation.[2] Slip op.
at 7-8. I respectfully dissent, however, from their opinion
that the judge's decision upholding the order should be
affirmed. Slip op. at 7. I would reverse.

                          Factual Background

     The facts surrounding the instant section 104(b) order, 30
U.S.C.  814(b), are largely undisputed. On June 25, 1992,
the Mine Safety and Health Administration ("MSHA") issued a
section 104(a) citation, 30 U.S.C.  814(a), to Energy West,
as a result of air sampling that revealed an average
respirable dust concentration of 2.2 milligrams of dust per
cubic meter of air ("mg/m3") for the designated occupation
of longwall operator on mechanized mining unit ("MMU") 015-
0, which was then located in the 4th West Longwall section
of the Cottonwood mine. Ex. M-3; Ex. R-2.

     Following the citation, Energy West took numerous actions to
lower respirable dust in the 4th West section. 16 FMSHRC at
841. On June 26, Energy West's chief safety engineer, Randy
Tatton, immediately met with mine managers to develop a
corrective action strategy. Id.; Tr. 328. On June 29,
Tatton directed one of his safety engineers to evaluate
existing controls with a real time aerosol monitor ("RAM")
to ensure that all dust controls were in place and
functioning properly. 16 FMSHRC at 841; Tr. 329. Based on
the evaluation, it was recommended that the intake air
course and stage loader be checked for dust generation
problems. 16 FMSHRC at 842; Tr. 230-31. The RAM survey
also revealed that dust levels rose significantly when the
longwall shearer cut through rock in the mine roof. 16
FMSHRC at 842; Tr. 227-28. Tatton and Mine Superintendent
Garth Nielsen attempted to divert more air into the 4th West
section but were unsuccessful. 16 FMSHRC at 841; Tr. 329-35.

     Also on June 26, Energy West's equipment overhaul
coordinator, Bud Warrington, put miners in the section on a
dust control alert. 16 FMSHRC at 842. He included special
instructions on his maintenance list to repair the baffle on
the stageloader in addition to a list of maintenance
measures designed to control dust that had been previously
prepared for the maintenance foreman, Ed Hickman. 16 FMSHRC
at 842; Tr. 178-84, 186-88; Exs. R-4 and -5. On June 29,
Warrington repeated the baffle repair instructions, stated
that sampling would occur on Monday (July 1), and instructed
that everything with regard to dust be checked. 16 FMSHRC
at 842; Ex. R-5 at 2. The longwall maintenance crew changed
the bits on the longwall shearer, checked and repaired
sprays, cleaned and washed shields, and changed dust
filters. 16 FMSHRC at 842-43; Tr. 242-51, 287-90, 299-305.
Hickman assumed personal responsibility to see that
corrective actions were carried out thoroughly. 16 FMSHRC
at 842; Tr. 287.

     On July 1, 2, and 3, Energy West took abatement samples for
MMU 015-0 and submitted them to MSHA's Pittsburgh
laboratory. 16 FMSHRC at 839; Tr. 164; Ex. M-4. On July
10, because of the presence of sandstone in the coal seam
and the attendant dust when the miner cut into it, Energy
West removed the MMU from the 4th West section with a
hundred feet of coal remaining and moved it two miles away,
to the 11th Right section. 16 FMSHRC at 839, 843, 844; Tr.
131-33, 144, 147, 164. Conditions in that section were
significantly different--the area was wetter, thus
generating less dust. 16 FMSHRC at 843; Tr. 147-49, 293-94.

     On July 15, MSHA Inspector Fred Marietti, while conducting a
regular inspection of the mine, was called by his supervisor
to return to the MSHA field office to review the laboratory
report of Energy West's abatement samples. 16 FMSHRC at
837-38; Tr. 28-29. The sampling yielded an average dust
concentration of 2.3 mg/m3. 16 FMSHRC at 838; Tr. 32; Ex.
M-4. After reviewing the results, the inspector returned to
the mine and immediately issued a section 104(b) failure to
abate order, Tr. 33-34. The order stated that the time for
abatement should not be extended because of "an obvious
lack of effort by the operator to control the respirable
dust." Order No. 3850746. The language was taken from the
Coal Mine Inspector's Manual. 16 FMSHRC at 841; Tr. 53-55.
Marietti based his determination not to extend the abatement
time on the fact that dust levels had increased relative to
the prior cited sample results, on previous conversations
with other inspectors to the effect that the type of mining
unit involved had been out of compliance before, and on
Energy West's failure to incorporate into its ventilation
plan actions that it had taken to bring mining units into
compliance. 16 FMSHRC at 840; Tr. 34-37. Marietti did not
inspect the longwall or enter the mine before he issued the
order. 16 FMSHRC at 841. Nor did he make any inquiries
concerning why the sample readings may have increased or
concerning the operator's efforts to abate the citation.
Id.; Tr. 47-48. When he wrote the 104(b) order, Marietti
had no specific knowledge of sampling results from the MMU
015-0 prior to the June 1992 citation. Tr. 48. The
inspector entered the mine, observed the MMU, and spoke with
miners regarding compliance measures only after he had
decided to issue the order. Tr. 40.

     In order to lift the order, Energy West increased air
velocity and water pressure and added sprayers to the MMU.
Tr. 377-78. Inspector Marietti then allowed Energy West to
resume production. Tr. 378; Ex. M-5. The order was
terminated on July 22, after three samples taken by MSHA
showed an average concentration of 1.8 mg/m3. Tr. 44, 51-
52; Ex. M-5.


                               Analysis

     Section 104(b) provides that an inspector shall issue an
order requiring all persons to be withdrawn from an area
affected by a violation, if, during a follow-up inspection,
he finds:

     (1) that a violation described in a citation . . . has
     not been totally abated within the period of time
     originally fixed therein or as subsequently extended, and
     (2)  that the period of time for the abatement should
     not be further extended . . . .

30 U.S.C.  814(b). Thus, the statute expressly
requires an inspector to make a determination that a
violation has not been timely abated and that an
extension is not warranted before issuing an order.

     In contesting a section 104(b) order, an operator may
challenge the reasonableness of the time set for
abatement or the Secretary's refusal to extend that
time. Clinchfield Coal Co., 11 FMSHRC 2120, 2128
(November 1989) (citations omitted). The Commission's
focus in such a proceeding is on whether the inspector
acted reasonably in determining that the abatement time
should not be extended. See Martinka Coal Co., 15
FMSHRC 2452, 2456 (December 1993) (having determined a
hazard existed, inspector acted reasonably in not
extending abatement time). The Commission has set
forth its test for whether an inspector acted
reasonably or abused his discretion in issuing a
withdrawal order in cases addressing imminent danger
withdrawal orders. See, e.g., VP-5 Mining Co., 15
FMSHRC 1531, 1537 (August 1993) (Secretary met his
burden of proving that inspector reasonably concluded
hazard was imminent); Island Creek Coal Company, 15
FMSHRC 339 (March 1993). Island Creek involved an
inspector's issuance of an imminent danger order under
section 107(a) of the Mine Act, 30 U.S.C.  817(a),
which provides that an inspector may require the
removal of miners from areas in which conditions exist
that could cause death or serious physical harm before
abatement (see 30 U.S.C.  802(j)). 15 FMSHRC at 339-
40, 345.

     Commission precedent has emphasized that, because an
inspector must decide quickly and without delay whether
a hazard presents an imminent danger, Island Creek, 15
FMSHRC at 346-47, he "must have considerable discretion
in issuing imminent danger orders," id. at 348, citing
Rochester & Pittsburgh, 11 FMSHRC 2159, 2164 (November
1989). The Commission has also held, however, that
such discretion, even in imminent danger situations, is
not without limit. An inspector must make a reasonable
investigation of the surrounding facts. "[A] judge
`should make factual findings as to whether the
inspector made a reasonable investigation of the facts
. . . and whether the facts known to him, or reasonably
available to him, supported issuance of the . . .
order.'" Island Creek, 15 FMSHRC at 346, quoting
Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (August 1992).
Clearly, conditions raising the possibility of an
imminent danger pose more compelling circumstances for
immediate inspector action. Thus, the Commission's
requirement of an investigation into conditions at the
mine before issuance of an imminent danger order
applies with greater force to an inspector's exercise
of discretion in issuing a failure to abate order.

     Further, MSHA's Program Policy Manual ("Manual") states
that an inspector, in determining whether an extension of
abatement time is justified, is to engage in a review
process that involves factual considerations other than
the existence of a continuing violation. It provides
in part:

     Upon expiration of the time fixed for
     abatement, the inspector should review the
     circumstances, and if circumstances so
     justify, extend the abatement period. If no
     extension of time is justified, and the
     violation is unabated, the inspector shall
     issue a withdrawal order under section
     104(b).

     Volume I, at 15 (July 1, 1988) (emphasis added). Although the
Manual is not considered binding, the Commission has referred to
it as evidence of MSHA's policies and practices. See Dolese
Bros. Co., 16 FMSHRC 689, 693 n.4 (April 1994) (citations
omitted).

     The judge determined that Inspector Marietti had not erred
in issuing the failure to abate order. 16 FMSHRC at 848-49. He
found that the increase in dust concentrations indicated the
operator had not made an "effective" effort to correct the
violation. Id. at 849. As to Energy West's argument that the
inspector had abused his discretion by failing to consider
whether circumstances warranted an extension of the abatement
period, the judge held that, in light of the "continuing dust
violation from mid-June until early July 1992 . . . no
circumstances existed that would cause the inspector to conclude"
an extension was warranted. Id. at 844.

     The judge erred, in my opinion, in finding that a continuing
violation alone is sufficient to support a determination that an
extension of abatement time is not warranted and in failing to
address the reasonableness of the inspector's inquiry. See 30
U.S.C.  814(b)(2); Island Creek, 15 FMSHRC at 346-47. The
judge's post hoc rationalization, based on the trial record, that
"no extension of the abatement period would have been justified,"
16 FMSHRC at 844, cannot correct the inspector's failure to
inquire into current mining conditions prior to issuing the
section 104(b) order.[3]

     The inspector looked only at the laboratory results for the
abatement dust samples and the June samples that were cited. He
did nothing to ascertain Energy West's efforts to abate the
citation or the facts and circumstances surrounding the operation
of the MMU, but copied form language from a manual to charge
Energy West with "an obvious lack of effort" to control
respirable dust. Energy West responded to the citation by taking
general dust control measures and it took steps to address
particular problems with its equipment. The inspector did not go
to the mine, other than to deliver the completed order, or talk
to anyone at the mine prior to issuing the order. He did nothing
to ascertain whether miners were subjected to a hazard (they were
wearing personal protective equipment), see Tr. 52; Ex. M-2,[4]
or that the MMU was no longer located in the 4th West section,
but had been moved to a less dusty area two miles away. All
this information was pertinent to the matter of whether the
abatement time should have been extended. See Rochester &
Pittsburgh Coal Co., 11 FMSHRC at 2163 (inquiry in issuing
imminent danger order is whether the condition would pose a
hazard, given continued normal mining operations).[5]

     The majority opinion affirms the judge on substantial
evidence grounds, rather than focusing on whether the inspector
abused his discretion and whether he made a reasonable
investigation of the facts. Slip op. at 5-7. In simply
reviewing the judge's factual determinations, that opinion
implicitly approves his erroneous analysis.

     On this record, I cannot say Inspector Marietti acted
reasonably. Accordingly, I would vacate the order and reverse
the judge.


                                   ___________________________
                                   Arlene Holen, Commissioner


**FOOTNOTES**

     [1]:  The penalty is for the underlying  violation,  not the
failure to abate order.

     [2]:   Commissioner  Marks, dissenting on the penalty issue,
concludes that the Secretary  failed  to  adequately  explain the
basis  for  withdrawing  his  S&S allegation.  Slip op. at  9-10.
Commission precedent, however, establishes that the Secretary has
unreviewable discretion to vacate  citations.   RBK Construction,
Inc., 15 FMSHRC 2099, 2101 (October 1993).

     [3]:   Much  of  the  Secretary's  brief  addresses  whether
substantial evidence supports  the judge's determination that the
abatement time should not be extended.  See S. Br. 6-17.

     [4]:  The Secretary amended the citation to delete the "S&S"
designation because all miners exposed  to  the  cited respirable
dust levels were wearing personal protective equipment.
16 FMSHRC at 837.

     [5]:  As to the inspector's awareness that Energy  West  had
not  incorporated into its ventilation plan steps it had taken in
addressing  respirable  dust  citations, the appropriate response
would have been through the ventilation  plan  approval  process.
See  30  C.F.R.   75.370.  While the contents of a plan are  the
result of consultation  between  the  Secretary  and the operator
(see,  e.g., Penn Allegh Coal Co., 3 FMSHRC 2767, 2770-73  &  n.8
(December  1981)), "the Secretary must independently exercise his
judgment with  respect to the content of such plans in connection
with his final approval  of  the  plan."   UMWA v. Dole, 870 F.2d
662,  669 n.10 (D.C. Cir. 1989), quoting S. Rep.  No.  181,  95th
Cong. 1st  Sess.  25  (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 613 (1978).   30  C.F.R.  75.370(f) provides for review
by the Secretary of ventilation  plans every six months to assure
their suitability to current mining conditions.