.
CONSOLIDATION COAL COMPANY
November 20, 1995
WEVA 94-377

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          November 20, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-377
               Petitioner       :  A.C. No. 46-04421-03721
          v.                    :
                                :  Amonate #31 or #32
CONSOLIDATION COAL COMPANY,     :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-379
               Petitioner       :  A.C. No. 46-04421-03722-A
          v.                    :
                                :  Amonate #31 or #31
ROBERT G. WYATT,                :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION  (MSHA),       :  Docket No. WEVA 94-380
               Petitioner       :  A.C. No. 46-04421-03723-A
          v.                    :
                                :  Amonate #31 or #31
DANNY E. CRUTCHFIELD,           :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :

                              DECISIONS
Appearances:  Robert S. Wilson, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia,
              for the Petitioner;
              David J. Hardy, Esq., John Bonham, Esq.,
              Jackson and Kelly, Charleston, West Virginia;
              for the Respondent Consolidation Coal Company;
              Robert B. Allen, Esq., King, Allen and Arnold,
              Charleston, West Virginia, for the Respondent
              Robert G. Wyatt;
              Ricklin Brown, Esq., Bowles, Rice, McDavid, Graff
              and Love, Charleston, West Virginia, for the
              Respondent Danny E. Crutchfield.

Before:  Judge Koutras

                     Statement of the Proceedings

     These consolidated  proceedings  concern  proposals  for
assessment of civil penalties filed by the petitioner against
the respondents pursuant to the Federal Mine Safety and Health
Act of 1977, seeking penalty assessments for alleged violations
of certain mandatory safety standards found in Part 75, Title 
30, Code of Federal Regulations.

     Docket No. WEVA 94-377 concerns two alleged violations 
and proposed civil penalty  assessments of  $100,000, filed
against the corporate respondent Consolidation Coal Company
(Consol) pursuant to section 110(a) of the Act.

     Docket  No.  WEVA  94-379  concerns  a  civil  penalty 
assessment proposal of $9,000 against the individual respondent
Mine Super-intendent  Robert  G.  Wyatt  pursuant to section 
110(c) of the Act.  Mr. Wyatt is charged  as an  agent  of 
Consol  with  "knowingly authorizing, ordering,  or carrying
out" one  of  the  violations filed against Consol (Order No.
2724034).

     Docket No. WEVA 94-380  concerns  a  civil  penalty 
assessment proposal of $8,000 against the individual respondent
Mine Foreman  Danny  E. Crutchfield pursuant  to  section
110(c) of the Act.  Mr. Crutchfield  is  charged  as  a Consol
agent  with  "knowingly  authorizing,  ordering,  or carrying 
out"  one of the violations filed  against Consol (Order No.
2724034).

     A consolidated hearing was conducted in these cases in 
Beckley and  Charleston,  West  Virginia,  and  the  parties
submitted posthearing  briefs  that  I have reviewed and 
considered in the course of my adjudication of these matters.

            Applicable Statutory and Regulatory Provisions

     1.   The Federal Mine Safety and Health Act of 1977,
30 U.S.C.  801 et sea.

     2. Commission Rules, 30 C.F.R.  2700.1 et seq.

     3. Sections 110(a) and 110(c) of the  Act.  Section 110(a)
provides  for  assessment  of  civil  penalties  against  mine
operators  for violations of any mandatory  safety  or  health
standards, and section 110(c) provides as follows:

     Whenever a corporate operator violates a mandatory
     health or safety standard or knowingly violates or
     fails or refuses to comply with any order issued
     under this Act or any order incorporated in a final
     decision issued under this Act, except an order
     incorporated in a decision issued under subsection (a)
     or section 105(c), any director, officer, or agent of
     such corporation who knowingly authorized, ordered, or
     carried out such violation, failure or refusal shall
     be  subject to  the  same civil penalties, fines, and
     imprisonment that may be imposed upon a person under
     subsections (a) and (d).  (Emphasis added)

     4. An "agent" is defined in Section 3(e) of the Act (30
U.S.C.  802(e)) to mean "any person  charged with responsibility 
for the operation of all or part of  a  coal  mine or other mine 
or the supervision of the miners in a coal or other mine."

     5. 30 C.F.R. 75.334(b)(1) and 75.364(a)(2).

                                Issues

     In Docket No. WEVA  94-377, the issues include (1) whether
Consol  violated  the cited mandatory  safety  standards,  (2)
whether the violations were "significant and substantial" (S&S),
(3) whether  the  violations  resulted  from  an unwarrantable
failure  to  comply  with  the  cited standards; and  (4)  the
appropriate  civil  penalties  to  be  assessed,  taking  into
account the civil penalty assessment criteria found in section
110(I) of the Act.

     In the two individual section 110(c) cases, the principal
issue  is whether  or  not  the  named  respondents  knowingly
author-ized,  ordered,  or  carried out the alleged violation,
and  if so, the appropriate civil  penalties  that  should  be
assessed  for  the violation.  Additional issues raised by the
parties are identified  and disposed of in the course of these
decisions.

     The parties stipulated, in relevant part, to the following
(Tr. 11-12; Exhibit ALJ-1):

     1. Consol is the corporate owner and operator
          of the Amonate No. 31 Mine, and the mine
          operations are subject to the jurisdiction
          of the Act.

     2.   In 1993, the Amonate No. 31 Mine produced
          614,339 tons of coal and Consol produced
          approximately 39.7 million tons of coal in
          all of its operations.

     3.   The maximum penalty which could be assessed
          for the violations against Consol pursuant to
          30 U.S.C.  820(a) will not affect its ability
          to remain in business.

     4.   Robert G. Wyatt was employed by Consol as
          Superintendent of the Amonate No. 31 Mine on
          December 29, 1992, and was an "agent" of the
          operator within the meaning of Section 3(e)
          of the Mine Act.

     5.   Danny E. Crutchfield was employed by Consol
          as Mine Foreman of the Amonate No. 31 Mine on
          December 29, 1992, and was an "agent" of the
          operator within the meaning of Section 3(e)
          of the Mine Act.

     6.   Copies of section 104(d)(1) Order Nos. 2724034
          and 2724035 may be admitted into evidence for
          the purpose of establishing their issuance and
          not for the purpose of establishing the accuracy
          of the statements asserted therein.

     7.   MSHA Inspector William Uhl, Jr., was acting in
          his official capacity as an authorized represen-
          tative of the Secretary of Labor when he issued
          the subject orders.

     8.   True copies of the orders were served upon Consol
          or its agent as required by the Act.

                              Background

     On Tuesday, December 29, 1992, at approximately 2:00 p.m.,
on the day shift, a methane explosion occurred on the 2-l/2  
(MMU  015)  section.  (MSHA has characterized  the incident
as an "explosion," and the respondent has characterized it as
an "ignition.")  Although there  were no fatalities, five
miners suffered serious burns and  have  not  returned to
work.

     According to MSHA's Report of Investigation (Exhibit G-2),
the mine  was  ventilated by three  exhausting main fans, one
gob fan, three  intake  shafts, and  one intake drift.  The
Greasy Creek shaft  and  Dunford  shaft were  utilized for
both  intake  and return air courses.   There  were  four
mechanized mining  units  on  retreat  at the time of the
incident,  and  coal  was  extracted  from  the   working
sections by remote-controlled continuous-mining machines.
Coal  was  transported  by  shuttle  cars  to the section
dumping points and then carried by belt conveyor  to  two
underground track  loadout  areas.  Haulage continued along
the track to the surface.  The mine employed 128 underground 
miners and  eight surface miners. Production averaged 3,482
clean tons of coal per 24  hours, on three shifts per day,
5 to 6 days a week.  The mine liberated approximately 
3,800,000  cubic feet of methane  per  24-hour  period.  A 
regular MSHA AAA inspection was on-going on December 29, 1992.
Respondent Robert G. Wyatt was the general mine superintendent,
and respondent Danny Crutchfield was the general mine foreman.

     MSHA initiated an accident investigation on December 30,
1992, and it continued  in  January  and February 1993. Spot
inspections  were  also  conducted  concurrently with  the
investi-gation, and several  104(a)  citations, a section
104(d)(1) citation, and several section  104(d)(1) orders
were  issued for alleged violations of certain  mandatory
safety  and  health standards.  Two of the orders are the
subject of these proceedings.

     Section  104(d)(1) "S&S"  Order  No.  2724034,  March 3,
1993,cites an alleged violation of 30 C.F.R. 75.334(b)(1), and
the cited condition or practice is described as follows:

     An adequate bleeder system was not provided to
     control the air passing through the worked-out
     area of the 2-1/2 section, MMU 015, to continuously
     dilute and move away methane-air mixtures from the
     active workings and into a return aircourse.  Air
     measurements taken by MSHA ventilation specialists
     indicated that only 2,037 cubic feet per minute of
     air was passing through the bleeder regulator.  This
     condition was revealed during an MSHA AFB accident
     investigation after a methane explosion had occurred.

     Section 104(d)(1) "S&S" Order No. 274035, March 3, 1993,
cites an alleged violation of 30 C.F.R. 75.364(a)(2), and the 
cited condition or practice is described as follows:

     Based on evidence obtained during this accident
     investigation, it is determined that adequate
     weekly examinations were not being made to determine
     the effectiveness of the 2-1/2 section bleeder system.
     Statements given by company officials, Bob Wyatt,
     superintendent, and Danny Crutchfield, mine foreman,
     were that no one was examining the bleeder regulator
     and the area was inaccessible.  The approved
     ventilation map indicates that the back side of the
     2-l/2 section, MMU 015, can be examined. This is a
     contributing factor to the methane explosion which
     occurred on 2-l/2 section, MMU 015, December 29, 1992.

     MSHA presented the testimony of five miners who were working
when  the December  29,  1992,  ignition  occurred.  Continuous
miner  operator and helper Jackson M. Whitaker,  who  suffered
injuries  and has a pending law suit against Consol, testified
that drill  holes  were  used as a bleeder and he was aware of
regulators on other sections, but was not aware of other drill
holes that were used as bleeders.   He stated that the roof in
the gob area "was falling good," and that three or four pillar
rooms  were pulled, but he could not see  back  to  the  drill
holes at the back of the section.

     Mr. Whitaker stated that he could not recall exactly what
was going on the  day of the ignition.  He stated  that mining 
began at  the No. 4 entry  and  the  methane  monitor  on  the  
miner machine "gassed off" the machine when the monitor showed
1.5  percent  methane.   It  was  not common to find that much
methane on the section.  Section foreman  Bill  Bandy  came to
the area and made gas checks while waiting for an electrician,
and he checked the monitor.  The problem was cleared up by the
existing  air  and  a  mechanic certified that the monitor was
functioning properly.  Mine  foreman  Crutchfield  came to the
area after he was notified of the incident.

     Mr. Whitaker stated that he made methane checks after the
machine stopped and he found none.  He proceeded  to the No. 5
entry and timbers were installed and curtains were hung before
mining continued.  He confirmed that he was in the No. 5 entry
when the explosion occurred and he  had just completed mining a
lift.  Before the explosion, the  roof  was  dripping  and  he
observed one crack of three or four inches and it was "not out
of  the ordinary."  He loaded out one car  and the roof started
cracking  again.   He  backed out and decided to take one more
load with no problem.  The roof "started working a little  bit"
and started "acting up pretty good and dropping. Things got loud
in the gob" and the roof felt like it  was going to fall and he
started to run down the No. 5 entry.   He believed he would be
covered up and he looked back and saw "a ball of fire" coming
out of the middle of the gob in  the roof that had  not fallen
and he started burning and was picked up  and thrown down.  He
described the injuries he received.  He stated  that  the roof
crack  was  "hairline"  before  the ignition, but that it kept
increasing.

     On cross-examination, Mr. Whitaker confirmed that Foreman
Billy Bandy instructed him  to  make  ventilation  adjustments
before  the explosion occurred in order to force more  air  to
the return.  He confirmed that the check curtains at the No. 3
and 4 entries were properly installed.

     Mr. Whitaker  stated that ten shuttle cars of coal were 
loaded out of the Nos. 4 and 5 entries on December 29, prior
to the ignition.   He  confirmed that there were three or four
miner "gas-offs," and it was believed that something was wrong
with the miner because .1  and .2 percent methane was detected
when  checked  with  methane  detectors.  He  confirmed  that
Mr. Bandy  was not consulted  about all of the "gas offs" and
that Mr. Crutchfield was not  present  all  of  the  time when
these occurred (Tr. 180-254).

     Clifford A. Payne testified that he was working on the
2-1/2 section day shift on December 29 as a roof bolter, and
the section was in retreat and had been in that mode for  more
than a week.  He stated that he was not familiar or involved
with  the  drill  holes  on  the  section.   He was aware that
drilling was taking place, but has never seen  regulators that
had been drilled through solid coal blocks.

     Mr. Payne stated that he was in the crosscut between the
No.  4 and 5 entries when the methane explosion occurred.   He
described what he observed and heard and stated that he saw "a
big ball of flame" that covered the entry.  He confirmed that
he walked off the section together with two other miners who
were in the area (Tr. 30).

     On cross-examination, Mr. Payne stated that at the time of 
the explosion, he had no reason to withdraw himself because he 
was not aware  of  any gas in the area, and had no other reason 
to withdraw because of any hazardous conditions on the section.
He stated that when he  was  at  the  area where the miner was
operating prior to the explosion, the roof  "was working hard"
and  the  miner  was backed out.  The roof started  "rumbling"
again approximately  20 minutes prior to the ignition (Tr. 30-
41).

     Worley Whitt testified that he was working on the
2-l/2 section on December 28, 1992, as a scoop operator on
the evening 4:00 p.m.  to  midnight shift, and that he was not
involved in the explosion that occurred on the day shift the
next day.  The section was engaged  in  retreat mining and was
advancing and retreating for approximately two weeks prior to
the explosion.  He stated that he helped drill some of the
holes at the back of the section.  He explained that the holes
were initially drilled with two inch diameters and they were
re-drilled to three inch diameters and he  drilled five of the
holes.  He was told the holes were used for ventilation, and
in his mining experience he had never seen drill holes used as
ventilation regulators (Tr. 41-56).

     On cross-examination, Mr. Whitt stated that he had a general
understanding  of  his safety rights under  the BCOA  agreement
and was aware of his  right to withdraw from unsafe areas.  He
stated  that in December  1992,  the section  was taking weight,
including  broken  timbers,  blocks   that   were  split,  and
increased  rib  sloughage.   He confirmed that there  were  no
methane problems on the section and that it had "good air."

     In response to further questions, Mr. Whitt stated that
when he returned to the section on December 30, 1992, the area
from the track to the dinner hole appeared different in color.
It appeared grey in color and  darker  than  it did before the
ignition.   He  confirmed  that  he has exercised  his  safety
rights in the past without any problems (Tr. 56-73).

     Joseph M. Curry  testified  that he worked  on the 2-l/2
section  as a  day  shift shuttle  car  operator  on December
29, 1992, and was injured in the methane  explosion  that  day
and  has  not  returned  to  work.   He was engaged in retreat
mining  at  that  time, and this mining had  taken  place  for
approximately a month  prior  to  the  explosion.   He was not
familiar with the drill holes at the back of the section,  but
knew  they  were  there and believed they were being used as a
regulator.  Regulators  are  normally  constructed with cinder
blocks or non-combustible materials.

     Mr. Curry marked the location of a regulator on a diagram
of the 2-l/2 section and explained that  it  was  cut  through
where  there  was  a  lot  of air and four or five ventilation
curtains were installed to control the air.  He explained that
it took two or three days to construct the regulator.

     Mr. Curry could not recall how many pillars were pulled
on December 29, 1992, and he stated that the miner machine was
two breaks back from the gob  and  that  the  roof  had fallen
close  to  where he was working.  The roof had also fallen  in
the drill area.   He  confirmed  that on December 29, 1992, it
was  not possible to look back to the  drill  holes  from  the
pillar line and he  could  not  see  back  into the gob area. 
He would be about 50 feet from the gob while loading the shuttle 
car.

     Mr. Curry  stated  that  he  arrived  on the  section  at
8:40 a.m., on December 29, 1992,  and  after  a  brief  safety
meeting  he  proceeded  to  begin loading.  He stated that the
miner machine "gassed off" three times that day.  On the first
occasion,  the  operator  believed  the  methane  monitor  had
malfunctioned.   He  parked the  machine  and  waited  for  an
electrician.  However,  the  methane  cleared  up and none was
detected   when   checked  with  hand  held  detectors.    The
electrician checked  the  monitor  later and found that it was
functioning properly.  Foreman Bandy  stated that he had found
methane in the No. 5 entry, and foreman  Crutchfield  came  to
the  area  and  some  ventilation  curtains  were  changed and
tightened  up  outby  the  No.  5 entry.  Three curtains  were
tightened and Mr. Curry marked their  location on the diagram.
He confirmed that it was not common to find methane
on the section.

     Mr. Curry stated that he never heard Mr. Crutchfield say
anything about methane when  he came to  the section  and that
he was there for about 15 minutes.  After  the  curtains  were
tightened,  Mr.  Curry  proceeded  to  the  No. 5 entry and 20
shuttle cars were loaded out.  He was at the  feeder dumping a
load  when  the  explosion occurred.  He stated he  saw  "blue
light fire" go down  the  belt  line and come back and that it
was hot.  He dropped to the ground  and went to the breaker by
the intake.  It was dusty and smoky and  he  walked out of the
area with other miners
(Tr. 74-112).

     On cross-examination, Mr. Curry described his injuries
and confirmed that he has a pending law suit against Consol.
He  stated that when the miner "gassed out" the  second  time,
electrician Harold Perry checked it out and he did not know
if foreman Bandy was notified.  When the machine gassed out
the third  time,  Mr. Perry  was not  needed.  Mr. Curry saw
Mr. Crutchfield  speaking  with Mr. Bandy but could not recall
observing Mr. Crutchfield making any methane checks.  However,
he was not with him all of the time and could not recall tell-
ing the MSHA investigator that Mr. Crutchfield was present for
30 minutes.  Mr. Curry stated  that  there  was  a  lot of air
pressure between the gob and the regulator and that he was not
familiar with any mine map that shows an additional drill hole
regulator in the mine.

     Mr.  Curry  confirmed that  he was at  the No. 5  entry for 
three minutes before the ignition and that the roof "was working"
at that time. The miner operator had backed the machine out and
was waiting for  the  roof  to quiet down, and  stated that he
would load only one more load  before  pinning  the  roof (Tr.
112-149).

     Eugene Dawson testified that he worked on the 2-1/2 section
for approximately  a year prior  to  the  methane  explosion on
December 29, 1992.  He has not worked since that time.  He was
a roof bolter, but worked as a shuttle car operator on the day
shift  on the day of the explosion.  The section had  been  on
retreat  for  at least a month or two prior to that event.  He
could not recall complaining to anyone about the conditions,
and could not recall  the  conditions  on  the section when he
arrived at 8:00 a.m., on December 29, 1992.  He operated the
off-standard shuttle car that day and loaded out ten car loads
on the No. 4 entry before his lights went off.  He took the
car out of service approximately an hour before the explosion.
He had little knowledge about the drill holes  being used as a
regulator  and  had never seen this in the past.   He  had  no
knowledge of the gob roof conditions on December 29, 1992.

     Mr. Dawson believed the miner "gassed  out" one  time  on
December  29, 1992, and that Mr. Dean, the operator, asked for
a mechanic.   He  had  no  knowledge  of  the  two  subsequent
occasions  when  the machine quit.  He recalled roof falls  in
the gob area prior  to  December  29,  but was never concerned
about them.

     Mr. Dawson stated that he was in the belt entry with a 
shuttle car  waiting for the electrician when the  ignition 
occurred. He described what occurred and thought it was a roof 
fall.  He smelled heat and felt like his hair and clothes were
on fire.   After  the  explosion, he walked off the section to
the man bus with Mr. Dean,  Mr.  Curry,  Mr.  Payne,  and  Mr.
Whitaker (Tr. 157-170).

     On  cross-examination, Mr. Dawson confirmed that he has a
pending  law  suit  against  Consol.   He stated that the cut-
through on the left side of the section  where  curtains  were
installed  was made out of concern for the ventilation.  There
were no methane  problems  on the section and he was not aware
of any other drill holes in the mine (Tr. 171-190).

     Franklin M. Walls has been employed by MSHA since August 
1970, at the Princeton District No. 4 Field Office. He was hired
as an electrical inspector, and in 1986  worked as a refuse and
impoundment inspector.  He also reviewed  and  processed  mine
ventilation plans from 1987 through 1994, and he explained how
this was done (Tr. 193-196).  He was familiar with the Amonate
No. 31 Mine, and since 1990 has been involved in reviewing the
mine  ventilation  plan  supplements submitted to MSHA and his
usual Consol contact was mine  engineer  Frank  Underwood (Tr.
197).

     Mr.  Walls  was familiar with  the 2-1/2 mine section  and
was involved in the approval of the ventilation plan supplement
and map relating to that section  (Tr.  198).  On voir dire by
Consol's  counsel,  Mr.  Walls  stated  that he  reviewed  and
compared a diagram of the section prepared  by  MSHA  and  the
original mine ventilation map projections and found them to be
consistent.   He  confirmed  that  mining was authorized to be
conducted anywhere within the areas  depicted  in  the  red or
pink  hash  marks  shown  on the map (Tr. 199-210).  Mr. Walls
explained the lines, markings,  and  projections  shown on the
diagram.   He stated that the projections indicate how  Consol
intended to  mine and they are used to develop the ventilation
plan.  Once they are placed on the ventilation map they become
part of the mining plan (Tr. 208-209).  However, MSHA can only
cite a violation  of  the  plan  and  not the projections (Tr.
209).

     Mr.  Walls  described t he entries  that were  previously 
first mined and developed on the section during an earlier time.
He explained that Consol intended to mine through the previously
mined areas to the back of the section and then come out again
during second mining.   Once  mining  is  completed,  the roof
falls  and  the area is then considered a worked-out gob  area
(Tr. 213-214).

     Mr. Walls confirmed that he was involved in the review and
approval  of  the  section ventilation plan  and  he  met  and
discussed  it  with  mine  superintendent  Wyatt  and  company
engineer Frank Underwood.   He  explained the plan that was to
be followed, and it included cutting through two places at the 
back of the section  that  were  to  serve as the main bleeder
system. He explained as follows (Tr. 215):

          We had two projections on the map.  We would cut
     through and put controls in them.  One of them would
     be a stopping.  The other would be a regulator.  And
     we would cut through that block of coal out into the
     old, existing mine works which was part of the mine
     bleeder system that went to the fan.

          After that was accomplished, we would start retreat
     mining, retreat back out of this area, with the venti-
     lation basically coming from behind, across the mine,
     going through the gob and out the back end, which our
     belief was that was a good way to carry the methane
     that may be released or any other toxic substances that
     may be released. It would be carried away from the
     miners, out the back end of the block, to the fan, to
     the outside.

     Mr. Walls  stated  that the  original  mine map  had a 
hand-written notation that stated, "[t]his area can be examined,"
and it is represented on the diagram that he referred to
(Tr. 219).  He stated that Mr. Underwood placed the notation
on the map to facilitate the plan approval process without the
need for an additional cut  through  drilling  plan that would
normally be required if an area that is to be cut through
cannot be examined (Tr. 220-222).

     Mr. Walls stated that there was no discussion as to how
the regulator would be constructed because, "we understood what
a regulator is when we  talk about a plan," and "we basically
know what we're going to  do"  when  building a regulator (Tr.
222). He  explained that in building a regulator after cutting
an entry through,  "we take our cinder blocks or cement blocks,
some form of incombustible  material,  and  we reduce the size
opening  to the size that it takes to ... whatever  amount  of
ventilation  we  decide  is  going  to  go  through  it.  It's
normally  built  out  of  cinder  blocks  with  a certain size
opening in it" (Tr. 222-223).

     Mr. Walls confirmed that the September 15, 1994, ventilation
plan was  the twenty-first plan  review that he was  involved in
processing,  and  that it was still  in effect in 1992, subject
to any subsequent supplements that may have been  submitted and
made a part of  the plan (Tr. 224;  Exhibit G-39).  He confirmed
that the plan described  how  regulators and other ventilation
controls are to be constructed (Tr. 224-225).

     Mr. Walls stated that he has reviewed an average of fifty
ventilation  plans  a year from 1986 or 1987 through 1994, and
that he has never seen  a  proposal  to  use  drill holes as a
regulator (Tr. 226).  He confirmed that when he  discussed the
first plan supplement with Mr. Wyatt and Mr. Underwood, it was
felt that there should be a minimum of 10,000 cfm of air going
through the regulator (Tr. 229).

     Mr. Walls further explained the discussion concerning  how 
the bleeder would be evaluated on retreat mining pursuant to the
plan supplement (Exhibit G-40), as follows (Tr. 229-230):

          Q. Now, was there any discussion as to how
     the bleeder would be evaluated on retreat mining?

          A. Yes.

          Q. Would you explain how that would be done?

          A. Yes.  We were going to -- the air that
     passed through that regulator would be back into a
     bleeder system that had air movement from other areas
     of the mine, to evaluate what was going across the
     gob and out that hole, we would take cross-sectional
     readings across the entries of the section, itself,
     and reduce the air that was traveling normal returns,
     the air that was traveling back out of the belts, air
     coming into the section.

          And we would deduct all that was leaving the
     section by those returns outby and the belt outby
     from what was coming through the section and make
     the assumption that the remainder was going out the
     regulator we put in the back end of the section.

     Mr. Walls confirmed that the March 6 letter to him from
Mr. Underwood  concerning proposed ventilation changes and new
projections, when  read  together with the ventilation map and
diagram,  constitutes  the  first   supplemental   ventilation
approval (Tr. 236).

     Mr. Walls stated that a later additional plan supplement
and map were submitted with a limited number of changes to the
section  ventilation  and he reviewed the map and diagram  and
confirmed that they are  accurately  depicted  on the approval
map  (Tr.  245).   He  also  confirmed  that  the second  plan
supplement and August 31, 1992, map was received  by  MSHA  on
September 2, 1992, in the Princeton, West Virginia Office (Tr.
246; Exhibit G-57). (The first supplement is Exhibit G-56; Tr.
247).   None  of  these  plan  supplement  changes  affect the
requirement  for  a  regulator at the back side of the section
(Tr. 248).  Mr. Walls  stated  that he did not discuss the use
of drill holes as the regulator, and no one from the mine ever
asked him if drill holes were acceptable  as  a regulator (Tr.
249).

     Mr. Walls further explained the cross-sectional  readings
for evaluating the bleeder system with only one regulator where
the air would be leaving the  gob  and  going into the return.
Under  the  proposed  changes  as reflected in  Exhibit  G-57,
additional regulators would be in the gob.  He did not believe
there was any way of determining by cross-sectional  readings 
where the air  was going once it entered the gob if there was 
more than one regulator.  The additional regulators had to be 
measured in order to accurately determine what the ventilation
was doing, but he did not know when additional regulators were
established.  The face plan that was with the plan showing how
the regulator would be  evaluated  by cross-sectional readings
only showed the one regulator at the  back  end of the section
(Tr.  250).   However,  if  one could travel into  the  return
entries to those regulators,  actual  air  measurements  could
have  been  made to determine how much air was coming out (Tr.
250-251).

     Mr.  Walls stated  that if the additional regulators were
accessible,  cross-sectional  readings  could be combined with
readings of the air leaving those regulators.  However, he did
not know if the regulators were accessible.  He believed those
regulators would provide a better overall means of evaluating
the overall ventilation (Tr. 254).  He confirmed  that  he was
not  involved  in  issuing  the violation, but believed it was
issued because the additional regulators were inaccessible and
did not provide a means for evaluating the gob (Tr. 255).

     On cross-examination,  Mr. Walls  stated  he  has  a high 
school education and no formal college or engineering training
(Tr. 9).  He could not comment on  whether  Consol provided an
adequate bleeder system, "because I was not involved in any of
that,"  and that he only knew about what the ventilation  plan
called  for   and  was  not  involved  in  the  MSHA  accident
investigation (Tr. 9).

     Mr. Walls stated that the  approved  written  plan, rather
than any conversations leading to plan approval, is controlling
and he agreed  that conversations are not incorporated as part
of the plan (Tr. 11).  He confirmed that the twenty-first plan
review approved in 1989 was  the  base  plan applicable to the
section,   and   the   first   supplement   was  approved   in
approximately  March and April 1992 (Tr. 13-14).   There  were
two meetings concerning this supplement, and Mr. Wyatt and Mr.
Underwood were at  the first meeting, but Mr. Wyatt was not at
the  second  one (Tr.  18-19).   Mr.  Walls  stated  that  the
notation on the venti-lation plan indicating that the place at
the back section  where  the holes were drilled was accessible
was made by Mr. Underwood  at his (Walls) instruction in order
to avoid the filing of a cut-through plan (Tr. 21).

     Mr. Walls stated that a face  ventilation plan, which was 
part of the plan approved during  March/April 1992, showed the
holes being developed at the back of the section, and a notation
on the plan indicated that the air going through the holes "could
be evaluated by  cross-sectional readings,  something  to  that
effect" (Exhibit G-40; Tr. 2).  He confirmed that BEP Ten, the
bleeder  evaluation point shown on the plan, is the evaluation
point that  was  in  place  for  the air from other mine areas
coming through the area where the  drill  hole cut through was
located (Tr. 24-25).

     Mr. Walls agreed that Consol was free to mine anywhere on
the section within the hash marks shown on  Exhibit G-56.  He
also agreed that when the plan supplement modified projections
of August 31, 1992, were submitted, the projections for the
five entries shown on Exhibit G-57 had not been driven all the
way  to  the back of the section (Tr. 29).  He confirmed  that
the additional  plan  ventilation  controls  are only proposed
controls  and  Consol could install them as needed  (Tr.  31).
The three proposed  regulators  shown in pink on Exhibit G-57,
and the one regulator at the back  of  the section as shown on
Exhibit G-56, could have been installed at Consol's discretion
(Tr. 31).  He explained that these ventilation  controls  were
"additional  controls  that  would  be  added.   Everything is
proposed.  There is no time limit on it.  He puts the controls 
as he needs to as he goes" (Tr. 35).  MSHA's counsel conceded 
that Consol was free to choose the sequence and  direction of
mining within the section  area, but  stated  that  Consol was 
"always required to have an  adequate bleeder  system on that
section" (Tr. 39).

     Mr. Walls stated that he  has  had  many  contacts  with
Mr.  Wyatt over the years in connection with reviewing  venti-
lation   plans   and   considers   him   to  be  a  good  mine
superintendent who took an interest in his  mine.   He  stated
that, "I  think  a lot  of  him  in  that  respect"  (Tr. 39). 
Mr. Walls stated that he also had a high regard for Mr. Underwood
and considered him to be a good  engineer  (Tr.  40). He did not
believe that Mr. Wyatt would engage in any "knowing" violations 
or  aggravated conduct (Tr. 40).

     Mr. Walls stated that on December 29, 1992, BEP 10 was
not an approved evaluation point for the section.  The face
test plan simply indicated that the section air was going in
the  direction of BEP 10 and was blended with air coming  from
other  mine  areas,  but  the  approved  evaluation  method on
retreat  mining  was the cross-sectional readings as shown  on
the plan (Tr. 41-48).  Mr. Walls agreed that regulators not 
designated as BEP points do not have to be accessible and there
are many of those all over the mine (Tr. 49).

     Mark D. Hrovatic testified that he formerly served as
the assistant mine  superintendent  for three years and was so
employed on December 29, 1992.  He is currently employed by
the  Commonwealth  of  Virginia  as  a  safety   and  training
technical  specialist and has been so employed for  two  years
(Tr. 65).  He  confirmed  that  he visited the section once or
twice a week and he   was   familiar  with  the  submitted  
ventilation   plan supplements.    The  original  development 
plans  called  for driving entries to the back of the section  
and cutting through one entry into an existing return air course
and establishing a regulator.  At a certain point, however, mining
deviated from the original plan and pillar mining proceeded  to 
the  left  hand  side  of the section,  and  mining  then 
continued developing the original projected five entries 
(Tr. 67-68).

     Mr. Hrovatic stated that regulators are normally constructed
with  concrete  and  cinder  blocks  with  some of  the  blocks
removed  for  air  passage.   A  similar  type  regulator  was
discussed for the back of the section, but  a  series of holes
were drilled instead, ten feet from the back return  entry out
of concern that the stopping would crush out allowing more air
to  go  through  the section, robbing other mine areas of  air
(Tr. 71).  He discussed  this with Mr. Wyatt, Mr. Crutchfield,
and Chief Engineer  Mike  Delgrande.  Mr. Hrovatic stated that
he was concerned about the  possibility  of  the  drill  holes
crushing out, but did not express these concerns (Tr. 73).

     Mr.  Hrovatic  stated that Mr. Crutchfield informed him of 
the decision to drill the holes, but did not indicate who made 
the decision and simply  pointed to Mr. Wyatt's office (Tr. 74).
He stated that while driving the No.  5  entry,  drilling  was
taking  place ahead of the mining to avoid cutting through the
return entry,  and  because the back side of the entry was not
accessible.   At  that   time,  he  was  not  aware  that  the
ventilation  plan indi-cated  that  the  back  area  could  be
examined and only  became  aware  of  this  after the ignition
occurred. He was not aware that anyone had been  in  that area
prior  to  the cut-through and the roof conditions there  were
adverse (Tr. 75).

     Mr.  Hrovatic  stated  that  he  "probably"  spoke  with
Mr. Wyatt and  Mr.  Crutchfield  about having 10,000 to 12,000
cfm of air going through the drill holes that were functioning
as a regulator.  He observed that  twenty  holes, an inch-and-
one half in diameter were drilled and he took  an  air reading
of 6,000 cfm through the holes.  An additional five holes were
drilled and he decided that the holes should be enlarged.  
Mr. Wyatt  then instructed him to enlarge the five holes to 
three inches and Mr. Hrovatic instructed the evening shift to do 
this.  After the  five  holes were enlarged, Mr. Hrovatic 
measured 6,000 or 7,000 cfm of air passing throught he holes. 
He then ordered the day shift foreman to ream out the rest of 
the holes with a scoop to assure the passage of 10 to 12,000 cfm
of air through the holes.  The scoop batteries were low, and he 
then told the evening shift  crew  to  ream  out  the  remaining 
20  holes. However,  he  learned  the evening after the ignition 
that the holes were never enlarged.

     Mr. Hrovatic stated that  he  was  told  that  there  was 
approximately 50,000 cfm of air on the section, with 10,000 cfm 
going through one regulator, and 15,000  cfm through the other 
three regulators  (Tr. 84-86).  He stated that  after  he  told
Mr. Wyatt that he  was going to enlarge the drill holes to three
inches, Mr. Wyatt never inquired as  to whether or not the holes 
were redrilled (Tr. 87). He confirmed  that methane  was  never
a problem  while  developing  the section and driving the entry,
and he occasionally found .2 to .4, but no more than that (Tr.
88).  He was aware of other drill  holes in the mine that were
used as a regulator in the past, but  these  were  not  on  an
active section (Tr. 89).

     On cross-examination, Mr. Hrovatic stated that his intake
readings on the section would fluctuate between 50,000 and
57,000 cfm's of air and he marked a map with the  locations of
these readings (Tr. 92-93).  He confirmed that after reaming
out five of the drill holes there were 6,000 cfm's coming
through the holes (Tr. 93).  He made the decision to ream out
the 25 holes to three inches and he was satisfied that this
would  provide  the  desired  10,000  cfm  at the back of  the
section.   He agreed that if the holes were drilled  out,  Mr.
Wyatt would be left with the clear impression that there would
be 10,000 to  12,00  cfm  of  air going through the holes (Tr.
94).  He further agreed that Mr. Wyatt was conscientious about
safety and the welfare of the miners  and  that he would never
engage in any aggravated conduct or a knowing violation of any
MSHA regu-lations (Tr. 95).

     Mr. Hrovatic confirmed that he was Mr. Crutchfield's 
immediate supervisor and that he never told him that enlarging
the holes would increase the air  flow to 10,000 to 12,000 cfm
through the holes.  He did not know if Mr. Crutchfield was  at
any   meetings   subsequent   to  the  discussions  about  the
advantages and disadvantages of  a  traditional  regulator and
the drill hole regulator.  He considered Mr. Crutchfield to be
a  competent  supervisor who had the best safety interests  of
the people working  for  him at heart and he believed that Mr.
Crutchfield would not knowingly authorize, order, or carry out
a violation of the Mine Act (Tr. 98). Mr. Hrovatic stated that
Mr.  Crutchfield  would  have   been  aware  of  the  original
projections for the supplemental plan for the section and that
he was aware of the drill holes at the back of the section.

     Billy T. Bandy testified that prior to his retirement in
March 1993, he was employed at the mine as a section foreman and
was in charge of the day shift on December 29, 1992, filling in
for  the  regular foreman who was on vacation.  He arrived  on
the section  at  8:25 a.m., and found no problems in the No. 4
entry or on the section (Tr. 100-103).  He performed pre-shift 
and on-shift examinations,  including methane checks along the 
gob line.  He detected one percent  methane  coming out of the 
gob at the breaker timbers at the No. 5 heading and this occurred
around the same time the continuous miner gassed  off  in  the
No.  4  entry.   He  believed the methane monitor on the miner
machine  was set to shut  off  at  one  and  one-half  percent
methane.  He then called Mr. Crutchfield to come to the section
and informed him about the methane  he  found  and  the machine 
gassing off (Tr. 106-107).

     Mr. Bandy stated that Mr. Crutchfield  came to the section 
and stayed  there about a half an hour. No ventilation changes
were made until the miner was moved to the No. 5 entry a hour
and a half later.  He described  the  ventilation changes that
pushed the air over the miner machine.  He confirmed that
Mr. Crutchfield came to the section after  these  changes were
made,  and  that he did not immediately notify Mr. Crutchfield
about the miner gassing out (Tr. 111).

     Mr. Bandy stated  that  Mr.  Crutchfield  was  summoned to 
the section  after  the  miner  had  cleared  up, and  that the
ventilation  changes  that were made were routine changes when
mining moved to the No.  5  entry  and  they  were not made in
response  to  the  miner  machine gassing off (Tr.  114).   He
confirmed that he had no knowledge  of  the drill holes at the
back of the section and could not remember any drill holes used
as a regulator. He made no ventilation changes after the machine
gassed  off  because  he  and  Mr.  Crutchfield  believed  that  
"everything  had cleared up" (Tr. 116).

     Mr. Bandy stated that his on-shift examination included
an evaluation  to  determine  if  the  section  bleeder  was 
operating properly, and he  stated that  "any time I can get
seventeen thousand feet of air into a bleeder line, I know the
bleeder is operating properly" (Tr. 116).  He confirmed that
he  measured  17,000  cfm of air going into the gob right over
the miner machine and he  measured  this with an anemometer at
the last pillar block going into the gob line from rib to rib.  
He recalled that some roof was hanging inby the No. 5 entry into
the gob, but did not know how much (Tr. 118).  He stated that
the bleeder was working and he determined this by checking the
amount  of  air  and  observing  the  air  pressure   on   the
ventilation curtains (Tr. 120-121).

     On cross-examination, Mr. Bandy stated that when he called 
Mr. Crutchfield  to  come  to the section, he told him he would 
be right down and arrived 20 to 25 minutes later. He stated that
Mr. Crutchfield proceeded  to  check  out  the  section and he
observed him taking readings in the No. 4 and 5 work areas.
Mr. Crutchfield then informed him that the section  was "okay"
(Tr. 123).

     Mr. Bandy stated that he has worked with Mr. Crutchfield
for   more   than   20  years  and  considered  him  to  be  a
knowledgeable  and  sensitive   person   about  his  job,  and
absolutely concerned with safety on the job.  He stated that 
Mr.  Crutchfield never asked him to perform any unsafe act that
would  endanger  his safety or the safety of miners (Tr. 125). 
He also worked with Mr. Wyatt  for  four  or  five  years  and 
agreed that he was concerned with the welfare and safety of 
everyone in the mine, and that he would never knowingly violate
any MSHA regulations or ask anyone else to do so (Tr. 126).

     Mr. Bandy further explained the ventilation adjustments
that  he  made and he believed he had good positive  air  flow
across the  gob  (Tr.  128-132).   He  confirmed  that company
policy  required  pre-operational  checks  to  be made on  the
equipment while he conducted his fire boss or on-shift checks,
and clean up is done all of the time when there  is no loading
taking place (Tr. 137).

     MSHA Inspector Donald White testified that he participated
in the accident investigation by conducting a rock dust survey
after  the  explosion occurred, but  had  no  input  into  the
issuance of any of the violations.  He confirmed that Appendix
C to the accident  report  is a map of the locations where the
rock dust samples were to be taken.  The map was plotted prior
to his visit to the section  and  not  all  of  the  requested
sample areas were accessible.  He identified Appendix D as the
results of his sampling (Tr. 166-170).

     On cross-examination, Mr. White confirmed that the sample
results  show  the incombustible percentages at the  time  the
survey was taken, and he agreed that samples taken immediately
prior to or close to the ignition would be a better indication
of the conditions that existed at the time of the ignition, as
opposed to the samples taken six or seven days later (Tr. 172,
176-177).  He agreed  that an ignition or explosion would have
an effect on his sample  readings  (Tr.  178).  He also agreed
that the com-bustibility level of an area cannot be determined
by "eyeballing it," and that any citations  he  issues must be
verified by samples (Tr. 179).  He confirmed that  he has read
a  Bureau  of Mines report by Mr. Don Mitchell, where  it  was
stated that  the  percent of incombustible content was greater
after an explosion than before (Tr. 180).

     Clete  R.  Stephan, principal  engineer, MSHA Ventilation
Division, Pittsburgh, Pennsylvania, testified  that  he  is  a
registered professional engineer, holds a B.S. degree in civil
engineering  from the University of Pittsburgh (1976), and has
worked for MSHA  since 1977 conducting accident investigations
(Exhibit G-50 , Tr. 182-185). He was qualified and accepted as 
an expert in explosions and mine  fires, and he confirmed that
he participated in the accident investigation in question, and
authored pages 23, 25-31 of the report, and Appendix  E  and J
(Exhibit G-1, Tr. 189).

     Mr.  Stephan  confirmed  that  he  concluded  that  "the
ignition that occurred was the result of frictional  heating
or piezoelectric discharges that occurred during the fall of
the  roof  in  the  gob"  (Tr. 197).  Although other potential
ignition sources were  identified,  Mr. Stephan  stated  that
they were eliminated because  of the direction of the ignition
sources  with  respect  to  where  the  explosion  occurred  
(Tr. 198).

     Mr. Stephan explained frictional heating and discharges,
the elements necessary for a methane explosion, and the extent
and area covered by the explosion (Tr. 199-206).  He confirmed
that page 27 of  the report reflects that the original methane
accumulation probably  averaged  5.5  to  6.5  percent  and he
explained that this was based on "the extent of the flame and
the magnitude of the forces" (Tr. 207).

     In response to a bench comment concerning any opinion by
Mr. Stephan concerning any inadequacies  with respect to the
cited bleeder,  petitioner's  counsel  responded  as  follows
(Tr. 214-215):

          JUDGE KOUTRAS:  Is there some way we can speed
     this up so we can get into his opinion as to why
     the bleeders were inadequate?

          MR. WILSON: Your Honor, Mr. Stephan is not a
     ventilation expert.

          JUDGE KOUTRAS:   He is not going to get into that?

          MR. WILSON:  No, he is not going to get into that.

     On  cross-examination, Mr. Stephan stated that he did
not interview any of the miner eyewitnesses who were on the
section at the time of the explosion, including Mr. Wayne
Dean.   He  confirmed  that  he did not review Mr. Dean's
statements   to   MSHA  and  State   of   West   Virginia
investigators  with  respect  to  what  he  saw  when the
ignition occurred.  He further confirmed that he was  not 
aware  of  any  eyewitness  testimony  prior to writing  his
report  (Tr.  219).   Mr. Stephan expressed several opinions
based on the statements  of  witnesses during the hearing 
concerning a roof crack previously  described  by  Mr. Dean
and the source and location of the ignition (Tr. 220-226).

     Mr. Stephan confirmed that he was in the mine only one 
time on January  4,  1993, for  less  than  one  shift, for
approximately three hours (Tr.  234).   He stated that he
was satisfied that he had enough information  through his
personal inspection or as provided by others involved  in
the investigation to render an opinion (Tr. 238-239).

     Gary G. Wirth, MSHA Mining Engineer, Technical Support 
Group, Bruceton,  Pennsylvania, stated  that he  has  been 
employed by MSHA since 989, and previously worked  for  a
construction company and as  a  mining  engineer for U.S.
Steel Mining Company. He received a B.S. degree in mining
engineering in 1984, from the University  of  Pittsburgh,
and  is  enrolled  in a master's program at West Virginia
University  (Exhibit   G-49).    He   is   a   registered
professional   engineer  and  conducts  mine  ventilation
surveys at the request  of  MSHA's district managers.  He
was accepted as a mine ventilation  expert  (Tr. 13, 19).
He  confirmed  that  he spent three days at the  mine  on
January  4,  5  and 26, 1993,  conducting  a  ventilation
survey of the 2-l/2 section (Tr. 14-19).

     Mr. Wirth stated that the survey was conducted by two
teams. One person conducted the  survey in the outby area 
or mouth of the section, and he covered the inby face areas,
and the drill hole area. He also observed the roof conditions
in the  gob.   He confirmed that he prepared the ventilation
part of the accident  report,  at  pages  13  to  19, and
Appendix  L.   He  was  not  involved  in the drafting or
review   of  any  of  the  violations  issued  in   these
proceedings,  or in the investigation and special penalty
assessments concerning  the  individual  respondents (Tr.
20-22).

     Mr. Wirth stated that a ventilation survey is conducted
to determine the extent of the ventilation system, including
air  flow  amounts   and  directions,  and  the  pressure
differentials associated  with  the air flow.  His survey
of the 2-l/2 section was intended  to  encompass  the air
flow  entering  and leaving the section.  In view of  the
inaccessibility of  several  exit  points for the section
gob, he could not conclusively determine where all of the
air  flow was going (Tr. 23-24).  He  confirmed  that  he
visited  the  drill  hole  area  on January 5, to try and
determine the air quantity exiting  the  holes.   He  did
this  by  taking  anemometer  readings inby and outby the
holes that exited into a bleeder  entry  designated  as a
return on a mine map, and pitot tube and magnahelic gauge
readings  at  each individual drill hole.  The pitot tube
readings are reflected  on  Appendix L to the report, but
the anemometer readings are not in the report
(Tr. 24-32).

     Mr. Wirth stated that his calculations reflect that 447 
cfm of air would  pass through all of the drill  holes  at 
a certain pressure  differential of water gauge inches, and
that regardless of  the existence of the gob, he believed
that the maximum air  flow  that  could  pass through the
drill  holes  was  2,828  cfm of air, regardless  of  any
changes in the conditions (Tr. 37-38). He denied that his 
inability  to  reach the regulators on the left hand side 
of the section had  any  impact on his evaluation of the 
drill holes (Tr. 41-42).

     Mr. Wirth stated that on January 4, 1993, he measured
10,000 cfm in the No. 5 entry, and 7,000 to 8,000 through all
of the curtains.  He had no particular reason to question
Mr. Bandy's air measurement of 16,000 to 17,000 cfm going into
the gob, but did not believe that Mr. Bandy could determine
the  adequacy of the bleeder system from that one measurement.
Measurement of air entering a gob area is only one component
of the  bleeder  system, and one needs to know how much air is
entering the gob at  different locations, the air distribution
within the gob, how much  air  is  leaving  the  gob,  and the
methane/  oxygen concentrations within the gob and at the  gob
exit points (Tr. 44).

     Mr. Wirth stated that with 17,000 cfm of air going into the
gob, and less than 3,000 cfm  going  through  the  drill holes,
some of the air would return, some would have gone back to the
drill  holes,  and  the  rest  would  have  gone  to  the  two
regulators  on the left-side or down the left side return.  In
short, the difference  between the air going through the drill
holes and circulating through  the  gob  would eventually work
its way back and go out of the regulators (Tr. 46). He confirmed
that all of this air circulation  constitutes  an  air  bleeder
system  within  the meaning of section 75.334(b)(1) (Tr. 47).

     Mr. Wirth was of the opinion that the  requirements of 
section 75.334(b) were not being met on December 29, 1992, 
because the methane that is usually present at any gob  area 
would migrate to the high right side of the section and would 
not be diluted because  of  the  limited  air  quantity and 
insufficient  air velocity in the gob.  Given the fact that the 
section had very little methane in the past, the one percent 
detected in the No. 5 return, and the gas-off of the machine in
the No. 4 push was an "alarming factor" that led  Mr.  Wirth to
conclude that "they were having some sore of problem" (Tr. 52-54).

     Referring to Map Exhibits G-58, G-59, and diagram
Exhibit G-60, Mr. Wirth further discussed what he believed
to be the air flow patterns on the section.  He stated that
the one percent methane found by Mr. Bandy was in the return
air  entry  taking  the  air  out of the mine  (Tr.  59).   He
believed that methane that had  accumulated  in the gob due to
the low air  flow  toward the drill holes had migrated to  the 
No. 4 entry causing the miner machine to gas out. This indicated 
to him that the bleeder system was not working properly. He 
agreed that the air flow pattern was sweeping the gob gas and
reducing it to one percent in the return and that the remaining
air was exiting  through the left side regulators (Tr. 61). 
Mr. Wirth believed that  after  moving  into  the No. 5 entry 
and making ventilation changes, the body of gas  that  exited 
was pushed away from  the face  and back  into the  gob area 
(Tr. 62, 64-65).

     Mr.  Wirth  believed that after the miner machine gassed 
out, air was then available to dissipate the methane detected
by the machine monitor, but that the air was again pushed back
into the  gob.  When asked  if  the  foreman  knew  that,  he  
responded "apparently they didn't" (Tr. 65).

     Conceding that the air was sweeping the gob  area and had
diluted and dissipated the methane  that caused the machine to
gas out, Mr. Wirth was still of the opinion  that  the bleeder
system  did  not  do  what  it was supposed to do because  the
methane was not completely removed  from  the gob area and was
only contained there.  Under the circumstances,  he  concluded
that "this was an indication that they had a problem and  that
the bleeder was not working effectively" (Tr. 66).  He did not
believe  that the gassing out of the machine was an indication
of a pocket  of  methane  because methane higher than .3 or .4
percent was never previously  encountered  on the section.  He
stated, "that is why it should have alerted  them, and in fact
it did.  Mr. Bandy called for help" (Tr. 67).

     Mr.  Wirth explained his understanding of cross-sectional
readings for evaluating the bleeder system, and he agreed that
this would have  been  an  effective  way  of  evaluating  the
2-1/2 section pursuant to the initial ventilation plan and map
projections where five entries were to be driven  to  the back
of  the  section and one regulator was to be installed at  the
location where  the drill holes were made.  He agreed that the
initial plan that showed air exiting the gob at one location at
the back of the section was an acceptable method for evaluating
how much air was  flowing  into  the  bleeder and how much was
exiting.  However, he did not believe this  was  an  effective
bleeder evaluation method on December 29, 1992, because mining
had taken place to the left side of the section and additional
regulators  were  installed.  Upon pulling back from the  back
end of the section, there were three outlets from the gob area
into the bleeder system  and cross-sectional air readings would
not indicate the air flow distribution within the gob. It would
only indicate how much air was entering the gob, and would not
indicate where it was exiting or how much air was exiting at
each gob location.  He  believed  that any prudent experienced
mining person would know this (Tr. 69-70).

     Mr. Wirth testified that the April 1992, ventilation plan
supplement testified  to  by  Inspector  Walls was the initial
plan   that  provided  for  cross-section  air  readings   for
evaluating  the  bleeder system as stated by the notation that
appeared in the upper  right  hand corner of the plan (Exhibit
G-40).  The nota-tion states that  "upon  retreat  mining  the
bleeder system will be evaluated by the difference in intake
and return readings on the section."

     Mr. Wirth stated that the April plan notation constituted
a  projection  given  to  MSHA  as  to  the bleeder evaluation
method,  but  that a subsequent plan supplement  submitted  in
August or September  1992,  did  not  contain  the notation in
question (Exhibit  G-42;  Tr.  73-75).  He did not believe that
cross-sectional readings were a valid bleeder evaluation method
after mining started to the left side of the section and
two new regulators were added because no one was travelling
to  the  three  regulator   locations   as   required  by  the
regulations,  and  management had no idea where  the  air  was
going (Tr. 77-79).

     Mr. Wirth  further explained  that the  three  regulator 
locations were inaccessible and could not be traveled. Weekly
examination measurements of the methane, oxygen,  and air flow
direction where air enters the bleeder were required as part
of the bleeder evaluation, but this was not being done because
the regulators were not accessible, and "MSHA was told they
could travel to this area" (Tr. 79).

     Mr. Wirth gave his opinion as to where he believed the
"body  of  methane" was located in the gob area prior  to  the
explosion, and what he believed to be the air pattern that
was ventilating  the  gob  area  (Tr.  85-87).  He stated that
approximately 2,000 to 3,000 cfm of air  would have been going
back toward the drill holes (Tr. 87).  He confirmed that in
all of his ventilation surveys he has never seen drill holes
used as a regulator.  The location of bleeder evaluation point
BEP 10 has always been unclear to him and  he was unsure as to
whether he had ever traveled there (Tr. 90).

     On cross-examination, Mr. Wirth stated that at the time
of his ventilation evaluation on January 4 and 5, 1993, it was
his intent to evaluate the section  as it was at the  time of
the   ignition,   but  he  was  told  that  there  were   some
differences.  The right  return  regulator  had been blown out
and some of the right side stoppings were damaged  and leaking
(Tr.  92).   He  was  told  that  an attempt had been made  to
restore the section to the condition  it was in at the time of
the  ignition,  and  he  was under the impression  that  "they
attempted to do that, and when they got finished, that was the
best they could do" (Tr. 95).

     Mr. Wirth stated that he was aware of conflicting accounts
about the accuracy of the ventilation schematic of the section
at  the  time  of  the ignition, as depicted in Appendix G  to
MSHA's accident report,  and he denied that this schematic was
the foundation of his opinion  concerning  the adequacy of the
bleeder  system (Tr. 97, 105).  He explained  the  conflicting
information
(Tr. 97).

     Mr. Wirth did not believe that a pocket of methane released
from  the strata in the  number  4  entry  caused  the  mining
machine  to  gas  off,  but agreed that this was a possibility
(Tr. 107). If this occurred, he further agreed that the pocket of
methane "would be ventilated out," and some would go into the gob
and some would go out the return in  the No. 5 entry  (Tr. 108).
However, in light of no prior encounters  with  methane on the
section,  he  believed that the existence of a strata  methane
pocket would be an abnormality (Tr. 109).

     Mr. Wirth agreed that assuming  the  one percent  methane
detected by Mr.  Bandy in the No. 5 entry occurred at the time
the machine gassed  off  in  the  No.  4  entry, this would be
consistent  with the possibility that sufficient  methane  was
released in the  No.  4  entry to gas off the machine and that
part of that methane went  into  the  gob and part went to the
return  as  it was supposed to do (Tr. 109-110).   This  would
indicate that  "the  return  is doing its job as far as taking
return air from the face.  It  doesn't  say anything about the
gob" (Tr. 110).

     Mr. Wirth could not state  whether the "body  of methane"
reached  into the No. 5 entry.  He  explained  that  equipment
movement could  affect  the  air  flow patterns, and he agreed
that the methane body was being diluted down to one percent in
the No. 5 entry, but that the concentration of any methane body 
is indeterminable  and  could vary within  seconds in different
areas.  He believed that  changed  air flow patterns moved the
body of methane, and he stated that his opinion in this regard
"is  speculation,  but  it  is  also  ventilation  engineering
knowledge" (Tr. 114).

     Mr. Wirth believed that all of the machine  gas  offs 
occurred in the No. 4 entry before mining moved to the No. 5
entry, and he did not dispute Mr. Bandy's air measurement of  
17,000  cfm of  air (Tr. 116).  He stated that the adequacy of 
the bleeder system is dependent on whether it is moving methane
out of the gob area  into  the  return,  and this should be
determined by methane tests at the gob exit points (Tr. 117).

     Mr. Wirth confirmed that he took a series of bottle samples
on January 5, to determine the methane and oxygen content of the
air  exiting the gob area, and he believed  that  one  to  two
percent  methane  was detected in the samples.  He stated that
this "would indicate  that  methane  was  coming  from the gob
exiting  the  drill holes" (Tr. 120).  He did not believe  his
test results are  in  his  report  (Tr. 119).  Referring to an
MSHA report concerning air test samples  collected  on January
5,  1993 by Inspector George Martin (Exhibit R-63), Mr.  Wirth
could  not  recall if Mr. Martin took those samples and he had
not previously seen that particular report (Tr. 123, 125).

     Mr.  Wirth  believed  that  the  methane  in the  gob  on
 December 29,  1992,  would have been consumed by the ignition,
 and the process would have had to start over again on December
 30, and whether or not  an  inactive bleeder on that day would
 have resulted in very high methane readings at the drill holes
 would be speculative.  However,  it  was his opinion that high
 methane  readings probably would have occurred  at  the  drill
 holes on December  29.   He  concluded  that the methane would
 have  been  discoverable by the weekly examinations  which  he
 claimed were not conducted, and although he was of the opinion
 that it accumulated  over a period longer than a week, he also
 stated that he did not  know  how  long  it took to accumulate
 (Tr. 131-132, 135).

     Mr. Wirth was of the opinion that under the conditions 
present on  December  29,  1992, no reasonably prudent  mining 
person would have evaluated  the  section gob or bleeder system
based on cross-sectional readings (Tr. 136). He learned through
hearsay  that the conditions were abated when personnel  "went
back to the  drill  hole  regulators and picked and shoveled a
hole through the block of coal" (Tr. 143).

     Mr. Wirth recalled a note he gave to his supervisory accident
investigator, "Skip" Castanon,  at his  deposition  stating that
it  was  impossible  to  completely  evaluate  the  section  gob
because he could  not access  the two left  side regulators.  He
believed that his inability to  reach  those  regulators would
not affect his opinion about the bleeder system.   However, he
con-ceded  that  it  was  not possible for him to perform  and
develop a complete air quantity  balance  of the entire system
(Tr. 146-147).

     Mr. Wirth confirmed that he never reviewed the section 
weekly examination books, or the section pre-shift or  on-shift
books for the days preceding the ignition to determine whether
air readings were taken at the air intake because  he  did not
believe they were relevant to his evaluation of the section
(Tr. 150-151).

     Mr. Wirth agreed with his prior deposition testimony that
it was possible that methane could be released and ignited by
a  two-inch crack or fall of roof, with a possible release  of
methane  and  ignition  source from a piezoelectric spark (Tr.
151-153).

     Mr. Wirth believed that he had sufficient general information
to render his opinion as  to the  situation that  existed on the
section  at  the time  of the  ignition  (Tr.  169).   He  also
believe that he  was  able  to evaluate the ventilation system
and the gob air flow, but conceded that he could not determine
the exact amount of air exiting the gob (Tr. 170).

     Mr. Wirth stated that he has never seen pipes in stoppings
used  as  a  regulator.   He  agreed  that at the time of  the
ignition,  pillar  recovery was taking place,  and  a  bleeder
system existed on the section and it was being used to control
the air passing through the area.  He did not believe that the
air  was diluting the  methane  air  mixtures  (Tr.  172-173).
However, he agreed that the  air bottle samples taken on January
5, 1993, showing 1.38 percent methane at one of the regulator 
drill holes indicated less methane than was being liberated in 
the gob area, and that it was diluted with the air and carried
out through the drill holes and into the bleeder entry return 
air course (Tr. 176-178).

      Mr. Wirth  agreed  that falling  rock was the  explosion 
ignition  point, and he  did not totally discount the crack in
the roof as  the origin of the ignition, or that methane could
have been liberated  from  that  crack.   Even  if  he were to
accept  the  eyewitness  account  of  Mr. Dean, he would still
conclude that the flame traveled back into the gob and ignited
the methane in the gob.  He did not believe  there  was a body
of methane in the No. 5 entry beneath the crack because  there
was  sufficient  ventilation  at  that  location and the crack
would  not have liberated a body of methane  that  would  have
exploded in that entry (Tr. 183-184).  Mr. Wirth  was aware of
no evidence  that  Mr.  Wyatt knew about the miner machine gas
offs (Tr. 185).

     MSHA Inspector William M.  Uhl,  Jr.,  testified  that he
also serves  as  a  special  investigator,  was  familiar with
the subject mine, and was the resident inspector there for 12
to 18 months in  1988 and 1989.  He was "more or less" the lead
coordinator in the accident investigation conducted in this case,
working under the direct supervision  of "Skip"  Castanon.  He 
confirmed that the  only  injured miner he  interviewed was 
Mr. Dean. He stated that he based his conclusion that an explosive
range of methane was present  in  the gob area on the fact that 
"... it was obviously there. An explosion occurred which resulted
in the burns, the men being burnt" (Tr. 200).

     Referring to Map Exhibits G-40 and G-42, Mr. Uhl explained
what was required and intended in the two mine ventilation
plans in question  (Tr. 204-210).  He further explained why he
believed the cited bleeder system was inadequate.  He stated
that Inspector Walls  accepted  a  plan  that  would allow the
development of five entries to the back side of the section.
The air was to be passed through the regulator that  was  pro-
jected  on  the  plans,  but it was never established, and Mr.
Walls "gave the company an  alternative  means  of  evaluating
this system" (Tr.  213).  Mr. Uhl believed that the only way to
effectively evaluate the bleeder was to absolutely follow the 
projections and "use  this  regulator, determine the intake, 
determine the return air, find the difference, which will 
automatically tell you that the rest  of  it  is going here" 
(Tr. 213).  However, Consol deviated from its projections, and 
when it decided to pillar the area, it lost access to the two
regulators that had previously  been established, and the bleeder
was  no  longer effective (Tr. 214).

     Mr. Uhl acknowledged that MSHA was aware of violations of
the ventilation  plan, but elected  not to cite the violations
"because of a  grace  period  and  some  other  confusion that
entered  in"  (Tr.  212).  He further explained that  when  an
effective evaluation  cannot be done, mining must stop and the
area re-ventilated or sealed. In the instant case,  the mining
sequence  established  by  Inspector  Wall  was  not  followed
through  and  the weekly examinations indicate only air intake
and belt readings, with no return readings (Tr. 215).

     Mr. Uhl acknowledged that the 2,000 cfm of air exiting the 
gob may have been constantly diluting the methane, but the law
requires  it  to  be rendered harmless.  He believed that  the
machine gas off should have alerted someone that something was
wrong with the functioning  of the bleeder and that it was not
continuously  diluting  and  carrying   away  the  buildup  of
methane.   He  stated  that,  "Mr. Wyatt may  have  previously
experienced similar situations  and I know Mr. Wyatt would not
have accepted anything less than  ten  thousand at that point"
(Tr.  218).   He further indicated that Mr.  Wyatt  was  given
"assumptions,"  accurate measurements were never taken, and he
was never given the  actual  amount  of  air  that was passing
through the drill holes (Tr. 218).

     With regard to whether Mr. Wyatt and Mr. Crutchfield acted
reasonably and prudently,  Mr.  Uhl  stated  that "Mr. Wyatt's
plan  for  the  drill holes themselves it not the  issue.  The
issue is the air  that  he  wanted  back  there  and never got
there.  I think he talked ten to twelve thousand,  ...  and to
me, that would be reasonable" (Tr. 230).  Mr. Uhl stated  that
as  the  mine  superin-tendent and mine foreman, Mr. Wyatt and
Mr. Crutchfield  direct  everything  that  goes on at the mine
(Tr. 231).

     Mr. Uhl stated that the manner in which Mr. Wyatt and
Mr.  Crutchfield initially intended to mine the  section  "was
great"  and  that "they can drive anywhere they want to within
these boundaries provided it does not subject these people to
an unsafe condition."   However,  he  concluded that when they
deviated  from the initial planned projections  and  destroyed
access to the regulators as a means of measuring the air
leaving the gob "they started destroying the ventilation plan,
as it was originally designed for this section" (Tr. 232).
Mr. Uhl believed all of this was taking place over a period
of "about a month or so" (Tr. 232).

     When asked about the  2,000 cfm's of air exiting the back
of the  gob,  Mr. Uhl stated that  based  on his experience in
working with Mr. Wyatt, "he just would not accept two thousand
at this area"  (Tr.  235).   Mr. Uhl agreed that Mr. Wyatt was
seeking an amount of air that he believed would be adequate to
ventilate the area (Tr. 236).  In response to a question as to
why Mr. Wyatt was charged with  a "knowing" violation, Mr. Uhl
responded that "he has knowledge  of  what  took place on this
section.  He has knowledge that  he can not get to these areas 
and  he directed  this to be  pulled back, and  Mr. Wyatt is a 
knowledgeable  man, he knows what needs to be done" (Tr. 236).

     Mr.  Uhl concluded  hat it was impossible to evaluate the
bleeder "other than the way these experts  came  in  and  used
complicated  equipment  to  determine where the air was going,
... common sense tells us that  the  air is not going to flush
the gob, it is simply going to skirt the gob ..." (Tr. 236). He
also believed that Mr. Crutchfield and  Mr.  Watt  should have
conducted  a bleeder evaluation to insure that the system  was
operating and functioning properly (Tr. 237).  When asked when
Mr. Crutchfield  and  Mr.  Wyatt  began  discussing  the drill
holes,  Mr. Uhl responded, "I had no knowledge of -- and  MSHA
had no knowledge of the drill holes" (Tr. 238).

     Mr. Uhl testified to his gravity and negligence findings
concerning the inadequate bleeder citation, No. 2724034, and
he  stated  that  he based his "high negligence" unwarrantable
failure finding on the following (Tr. 239-240):

          A. Well, we determined the high negligence
     because of the knowledge that both Mr. Wyatt and
     Mr. Crutchfield would have had.  This is their plan.
     They hand carried this through.  They were fully aware
     of the stipulation and the direction and where all of
     the regulatory measures going to be maintained on the
     section.  They had first-hand knowledge of that.

     Mr. Uhl testified to the abatement actions taken and he 
stated that the violations were verbally issued to Consol
Vice  President Ron  Wooten  during  the  first  part  of  the
investi-  gation, with "conversations" with the superintendent
and mine foreman,  and then reduced to writing in March, 1993.
The violations were intended to refer back to the day of the
ignition on December 29, 1992 (Tr. 241-242).

     Mr. Uhl explained the notation he made on the order that
Mr.  Wyatt  and  Mr.  Crutchfield  stated  that  "no  one  was
examining  the  bleeder  regulator   and  that  the  area  was
inaccessible" (Tr.  244).   He believed  that if  the  bleeder  
evaluation had been properly made, Mr. Wyatt and Mr. Crutchfield
would have been aware of the worsening situation and would have 
been able to take corrective action. He believed that the mine
examiners were not doing anything  wrong  and falsely believed
that the bleeder was working effectively (Tr. 245).

     Mr. Uhl stated that Mr. Wyatt and Mr. Crutchfield verbally
stated that the one  regulator was not being examined, but had
indicated on the map that the area was accessible (Tr. 246).
When  asked  about Mr. Walls'  testimony  about  how  the  map
notation was made,  Mr.  Uhl responded, "that as far as he was
concerned, that was to speed up the administrative work as far
as the map" (Tr. 247).  If  the  regulator  was  inaccessible,
Consol would have to file for relief not to travel  the  area.
It must otherwise follow its projected mining sequence, and if
it  decides  to deviate from that it must comply with whatever
ventilation adjustments are required (Tr. 249).

     Mr. Uhl explained  some photographs that he took depicting
the condition of the gob area (Exhibits G-45; Tr. 251-256).
He stated that he based  his unwarrantable failure finding for
failure to conduct adequate weekly examinations, No. 2724035,
on the following (Tr. 256):

          THE WITNESS: Well, because of knowledge that
     management would have of the overall conditions which
     would tell a person, a prudent person, you know, that
     it would be impossible to make that evaluation the
     way it was being done.

     Mr. Uhl did not know whether any air evaluations were being
made  when mining was taking  place on the  left  side  of  the
section  prior  to the start of the pillaring from the back of
the section, and  when asked if there was any evidence that no
evaluations were made while mining  to the left, he responded,
"I don't recall looking  at  that"  (Tr. 258).  He agreed that
for the week prior to the ignition two evaluations were made 
with regard to how much air was coming on the section and how 
much  was  coming down from the belt.

     On  cross-examination, Mr. Uhl stated that he was not a 
mining engineer and has a high school education, with no degree 
in anything related to mining or mining ventilation.  He last
worked in the coal mining industry for a coal company in 1975.
He served as an assistant mine foreman, but was never involved
in any ventilation plan submissions to MSHA (Tr. 261).

     Mr. Uhl confirmed that he was familiar with BEP 10, and
upon review of an August  31, 1992, map, he noted a seven-inch
diameter drill hole reference on the map, but had no knowledge
of the hole and could not explain  what  it  was used for (Tr.
264).  He acknowledged that if the air was going  through  the
drill hole, it would be routed to BEP 10, as shown by the map
arrows (Tr. 266).

     Mr. Uhl stated that pursuant to section 75.364(a)(2)(iii), 
the entire bleeder system  must be traveled in its entirety at
least once each week, or to other approved  locations  in  the
ventilation  plan for the purpose of measuring the methane and
oxygen to determine  if  the  air  is  moving  in  its  proper
direction  (Tr.  270).   He  stated that Inspector Walls would
accept  an  evaluation  of  the bleeder  by  taking  a  cross-
sectional  reading,  provided  the   projected  regulator  was
installed and the mining projections followed  as  stated  and
approved  in  the  plan  (Tr. 72).  Mr. Uhl confirmed that the
area mined to the left was  being evaluated by cross-sectional
readings,  and that once the regulators  became  inaccessible,
cross-sectional readings would be made (Tr.  276).  Mr.  Uhl  
stated that Mr. Wyatt would not willfully violate the law, and 
that  he  never  accused  Mr. Wyatt of acting  recklessly or 
deliberately (Tr. 282).

     Mr. Uhl confirmed taking bottle air samples on January 12,
1993,  and that they show that almost one percent methane  was
coming through the drill holes at the back of the section, and
he acknowledged  that  with 2,000 cfm of air going through the
holes on December 29, 1992,  methane was exiting through those
holes (Exhibit R-64; Tr. 284-287).   He  acknowledged  that he
was  the primary author of the MSHA investigative report,  and
that the sample results were not included in the report, but 
he did not believe they were relevant (Tr. 288).

     Mr. Uhl stated that he interviewed Mr. Dean in March, 1993,
and again in preparation  for the instant hearing, and on both
occasions  Mr.  Dean  stated that  immediately  prior  to  the
ignition he was looking  at  the roof crack and saw blue flame
come out (Tr. 292-298).  Mr. Uhl identified photographic Exhibit
G-45-G as the area where Mr. Dean and  Mr. Whitaker said the roof
was shifting and where he saw the crack (Tr. 300-301).

     Mr. Uhl believed that retreat mining  in the area of the 
drill holes probably began approximately less  than  two  full 
weeks prior to the ignition, and the last inspector was there  
about November 15,  1992  (Tr.  303).  He  confirmed  that  no 
reevaluation of the gob area was made on December 30, 1992, when
Consol  was permitted to move its equipment out of the section
(Tr, 312).

     Mr. Uhl reviewed  the  weekly  examination records for 
methane and hazardous conditions on the  section on December 21,
1992, and confirmed that readings were made and recorded on the
main intake and belt (Exhibit G-47; Tr.  313). He also confirmed
that  the  weekly  records for December 9, 1992, show  a  full
cross-sectional reading  for  the  left  and right return, the
intake to the pillar, and a belt reading (Tr. 314).  He agreed
that full and partial cross-sectional readings were made on the
section, but was of the opinion that they were not relevant to 
the  evaluation  of the bleeder (Tr. 315).

     Mr. Uhl stated that he has known Mr. Crutchfield for
20  years  and  attended mine foreman school with him.  He has
not alleged that  Mr.  Crutchfield willfully violated the law,
but he believed that Mr.  Crutchfield  is responsible "to know
the activities within the mine properties  that  he is working
at  ...  and  if  anybody  had reason to know, Mr. Crutchfield
would have known."  He further  stated  that,  "I am saying he
had knowledge of this ventilation system there, and that there
was more than a normal negligence shown in this activity here" 
(Tr. 318).

     Mr. Uhl believed that it was reasonable to expect that
Mr. Crutchfield knew and understood the ventilation plan, but
he had no information that Mr. Crutchfield delivered the plan
to  Mr.  Walls  (Tr.  319).   He  further  believed  that  any
reasonable mine foreman "would look at this situation and have
all  the  reason  in  the  world  to  know that this is not an
effective way of ventilating this section,  and that it is not
an  effective  means  of evaluating the bleeder  system"  (Tr.
319).

     Mr. Uhl confirmed that Mr. Crutchfield voluntarily gave
him testimony, and that he knew that Mr. Crutchfield responded
to Mr. Bandy's call to come to the section, and that he stayed
there at least 30 minutes  conducting methane tests (Tr. 320).
Mr. Uhl responded as follows when asked to explain the meaning
of "aggravated conduct" in the  context  of  a  section 110(c)
knowing violation (Tr. 323):

          THE WITNESS: Aggravated conduct, he had more
     than the normal reason to know.  He had -- I just drew
     a blank for the word I am trying to come up with.  More
     than normal negligence.  You know, it would take a
     reasonable man with blinders on not to see this condition
     with the experience these people had.

     And (Tr. 324-325):

          JUDGE KOUTRAS:   Do you think that a reasonable --
     well, let me try it -- that a reasonable mine foreman
     would normally go into a mine with his eyes wide open,
     walking into a situation where he knows the bleeder
     system is not being properly carried out, subjecting not
     only himself, but the rest of his people to a hazard?

          THE WITNESS:  I believe that he believed exactly
     what his section foreman told him; that there was not any
     hazard up there at that time, and his findings convinced
     him of that, also.

     BY MR. BROWN:

          Q. His findings he testified to in your
     investigation indicated he found no methane after
     he went to the section and specifically tested for
     methane, right?

          A. Yes, sir.

          Q. Now do you believe a reasonable mine inspector
     in November of 1992, would go into that section of the
     mine with any knowledge of the ventilation plan that you
     have testified to?

          THE WITNESS: I don't think anyone with any knowledge
     of this here would have found anything different.  If they
     didn't have any knowledge of this, then they would have
     found the same thing that the section boss found right
     there.

     Mr. Uhl believed that Mr. Crutchfield was a reasonable
and competent foreman  who  was  concerned with the safety and
welfare  of  his workers and who would  never  engage  in  any
intentional act that would endanger their lives (Tr. 326).
Mr. Uhl confirmed  that  Mr.  Hrovatic  was  Mr. Crutchfield's
supervisor,   and  that  Mr.  Hrovatic  was  responsible   for
overseeing the  drilling  of  the  holes  at  the  drill  hole
regulator (Tr. 328).

     In response to his understanding of Mr. Wall's testimony
concerning the map notation regarding the accessibility of the
drill holes, Mr. Uhl stated as follows (Tr. 329):

          A. I think what he said was that if that is
     an accessible area and that you put that on the map,
     that when Mount Hope or the ventilation people see
     that, there would not be a holdup as to them looking
     for a cut-through plan.

          Q. That is exactly right.  And he testified
     that the sole purpose of that language being placed
     on that map was to preclude the necessity of the
     preparation of the cut-through plan, right?

          A. That is what I heard him say.

     Mr. Uhl stated that the drill hole area was  accessible to
him after some additional supports were installed,  but  that
during  the  investigation  Mr. Wyatt and Mr. Crutchfield told 
him  the area was not accessible  and  no  one  was traveling 
there.

     Mr. Uhl stated that he had no reason to doubt Mr. Wyatt's
belief  that approximately 10,000 cfm of  air  was  going
through the drill  holes,  and  that Mr. Hrovatic confirmed this.
Mr. Uhl stated that his investigation  confirmed that the drill 
holes were put in because Mr. Hrovatic considered it would be
safer  than  cutting  through  in  light of the excessive
pressure and the closeness and proximity of that  area  to the
Dunford fan (Tr. 334).

     Mr.  Uhl confirmed that the violation was abated by enlarging
the drill holes and  MSHA accepted this as part of the abatement
(Tr. 335).  He  confirmed  that he was aware of no evidence that
Mr. Wyatt knew anything  about  the  gas offs  or  gas problem on
the section on December 29, 1992 (Tr. 335).

     Mr. Uhl stated that  he  has  worked  with  Mr. Wyatt for
many years and that Mr. Wyatt has always been "truthful and up
front  and candid"  with him, is very safety  conscious, and
would not "willfully hurt anybody" (Tr. 337).  When asked if 
Mr.  Wyatt  would  "knowingly"  endanger  anyone,  Mr.  Uhl
responded as follows (Tr. 338-339):

          A. In the context you are using it, it is
     the same as willfully, and I am saying he would
     not willfully endanger someone.

          Q. Or knowingly?  Can you use that word?

          A. No, sir.

          Q. You can't use that word.  Why can't you
     use that word?

          A. Because that would be saying -- to me, that
     would be saying that he willfully did this.  Someone
     had brought it to his attention, he decided well, no
     I know what you are saying and I know that is against
     the law, I am going to go ahead and do it my way any-
     how.  He is not that kind of an operator.

                 Respondent's Testimony and Evidence

     Cecil W. Dean, formerly employed by Consol, stated that he 
was working as a miner helper when the ignition of December 29,
1992, occurred  and that he was an eye  witness to that event.
He stated that he gave a taped interview to MSHA Inspector Uhl
in March, 1992, and was again recently interviewed by Mr. Uhl,
Mr. Castanon,  and  MSHA  counsel  Wilson  (Tr. 27).  Mr. Dean
explained where he was located and what he was  doing when the
ignition occurred (Tr. 27-30).

     Mr.  Dean  confirmed  that he initially  told  the  MSHA
investigator that the ignition  occurred instantaneously when
the roof dropped down  Tr. 30). He explained that after taking
a 40-foot  lift  to  the  right, the miner was backed out, and
"the top cracked and set down  about  one  to  two  inches ...
there was a  bluish  flame  coming  out of the gob line, looked 
like an atomic bomb rolling out from  under  -- coming out of the 
roof crack, and stated that "it came out of the gob line" (Tr. 33).
He  confirmed  that  in  his  more recent interview  with  the
aforementioned MSHA officials, he told them that he observed a
blue flame, but denied telling  them  it  came  from  the roof
crack (Tr. 33).

     Mr. Dean stated that when he was interviewed in March, 1993,
he had  been  out of the hospital for less  than a week  and had
been unconscious  for  21  days  (Tr.  35).   (The tape of the
interview was played in open court (Tr. 38).)  Mr. Dean stated
again  that  he  could not remember telling Mr. Uhl  that  the
flame came from the roof crack (Tr. 39-41).

     On cross-examination, Mr. Dean stated that he was aware of 
the drill holes and foreman  Larry  Brewster told him they were 
to be used as a regulator. Mr. Dean  stated that he helped drill
the holes, but was concerned that they  would  crush  out with
the  weight  of the coal (Tr. 47).  He stated that on December
29, 1992, one could not look through the gob and see the drill
holes while standing in the No. 4 entry (Tr. 48).  He confirmed
that he has a law suit  pending  against  Consol as a result of 
the ignition (Tr. 52).

     Danny E. Crutchfield,  mine  foreman, stated  that he has
27  years  underground  mining  experience   and   has   never
previously  been  cited  individually  by  the  State  of West
Virginia  or  MSHA.   He served as mine foreman at the subject
mine for 10 years, and  spent  approximately six hours of each
shift underground.  He stated that  he  was on vacation a week
prior to the December 29, 1992, ignition, and had returned the
day before that incident (Tr. 53-59).

     Mr.  Crutchfield  identified  a  mine  ventilation  map  
associated  with  the  April  1992  ventilation  plan,  and  
discussed the location  of  several  regulators  and BEP points
(Tr.  59-63; Exhibit  RCR-1).   He  identified  two inaccessible 
regulator locations outside the cited section and indicated that
the ventilation passing through those areas would be determined 
by BEP points and cross-sectional air readings (Tr. 64-65). He
identified one  other drill hole location and stated that MSHA
inspectors never questioned or cited it (Tr. 65).

     Mr. Crutchfield confirmed that he attended a preliminary
meeting with Inspector Walls, company mine engineer Underwood,
and superintendent  Wyatt  to  discuss the section ventilation
and mining projections. He explained that the initial projection
was  to  drive  to  the  back  of  the  panel and establish  a
regulator and use cross-sectional air readings  with BEP-10 as
the evalu-ation point.  In view of falls in the old  works,  a
decision  was  later  made  to mine to the left of the initial
projected area, and two regulators were installed.  After that 
area was mined, retreat mining commenced and pillars were pulled
from the back of  the  section,  as initially  projected,  and 
the retreat operations were inspected by MSHA (Tr. 68-70, 71-72).

     Mr. Crutchfield stated that the drill holes in question were
established because the area was  subject  to  crushing  and no
one ever mentioned that anyone would travel to that  area (Tr.
74).   He  stated  that assistant mine superintendent Hrovatic
was assigned to drill  25 holes, and Mr. Crutchfield stated he
only saw one test hole. Mr. Hrovatic informed Mr. Wyatt of the 
progress of the drilling, including  enlarging the holes from
1-1/2  inches  to  2  to 3 inches, and testing the air passing
through the holes.  Mr. Hrovatic reported that he had 2,000 to
4,000 cfm of air, and Mr. Wyatt told him that he needed 10,000
to 12,000 passing through the holes (Tr. 76).

     Mr. Crutchfield stated that Mr. Wyatt did not tell
Mr. Hrovatic how many holes  to  drill,  and  when there was a
problem with the drill bit, Mr. Hrovatic assigned  the evening
shift maintenance foreman the job of repairing the bit.
Mr. Crutchfield heard nothing further about the matter and
the last thing he heard Mr. Hrovatic say after drilling
five  holes  was  that  the bit needed to be repaired and  the
drilling finished (Tr. 77).  Mr. Hrovatic never reported back
to him and Mr. Crutchfield  had no reason to go to the area to
examine the work because Mr.  Hrovatic  was  assigned  to take
care of it (Tr.78).

     Mr. Crutchfield explained the underground work he performed 
on December 29, 1992. He received a message from Mr. Bandy to go
to  the  2-1/2  panel,  and Mr. Bandy informed him that he had
some  methane  in  the  right-hand  return.   Mr.  Crutchfield
proceeded to the section  and  Mr.  Bandy informed him that he
found one percent methane at the No.  5  breaker timbers.  Mr.
Dean informed him that the miner machine gassed off in the No.
4  entry.   Referring to a diagram, Mr. Crutchfield  explained
what transpired next (Exhibit RCR-2; Tr. 78-83).  He confirmed
that he made several methane checks at the breaker timbers and
found none.  The largest amount he found was .2 percent in the
left-hand return,  and  none in the other areas he tested (Tr.
86-87).  He observed no problems  with  the ventilation on the
section  and  explained  where  he  checked  the   ventilation
curtains, and the other areas that he examined before leaving.
The   curtains   "were  in  good  shape,"  and  they  had  air
ventilation pressure, and he saw no ventilation hazards on the
section (Tr. 89-90).  He confirmed that it was unusual to find
methane on the section (Tr. 94).

     Mr. Crutchfield stated that in the 27 years he has been 
mining coal, he could not  recall receiving a section 104(d) 
citation or order. He had no reason to know that the ventilation
was inadequate  on the day of the ignition because all of the
plans had been approved, he  assumed t here  was  10,000 to
12,000 cfm of air going through the drill hole regulator, and
he had never experienced any prior ventilation problems on the
section (Tr. 97-98).

     Mr. Crutchfield stated that the cited bleeder system  was
evaluated by cross-sectional  readings  and  BEP 10, which was
visited  every  24 hours by the fire boss.  When  the  methane
would rise, it would be checked and monitored every shift.  He
had no indication  of  any  methane  buildup  in  the  gob  on
December  29,  and  if  he had, he would have shut the section
down (Tr. 101).

     Mr. Crutchfield stated that the mine map was up-dated each
shift to reflect the areas that were mined and it is available
in the mine office for anyone  to  review  (Exhibit  R-17; Tr.
104).  He also identified a working mine map kept at his  desk
and  he  discussed it with each boss every morning (Exhibit R-
18; Tr. 107-109).

     On cross-examination, Mr. Crutchfield stated that he did
not know how  much air was going from the 2-1/2 section to BEP
10, but that approximately  180,000  to 186,000 cfm of air was
at BEP  10,  and  approximately  64,000 cfm was going into the
section.  This section air would  eventually go to BEP 10, and
he explained how the air would be monitored  at  BEP  10  (Tr.
114-115).

     Mr. Crutchfield explained the ventilation cross-sectional
readings evaluation system as follows (Tr. 116-117):

          A. You take the return.  You take the intake.
     You take the air going off the belt and you take your
     other return.  You add what air is going off, take it
     away from what is going up on the intake.

          Q. And that tells you what?

          A. That tells you what is going out your bleeder
     taps.

          Q. It doesn't tell you, though, how much air is
     going out each individual outlet, does it?

          A. No, it does not.  But it tells you that you
     do have air going into the gob.

          Q. And that is all it tells you, is how much air
     you have going into the gob, right?

          A. The same way it would with the rest of them,
     yes.

     Mr. Crutchfield stated that cross-sectional readings would 
not indicate  how  much  of the air is going to the drill hole
regulator or of the other regulators  on  the left side of the
section.  One of those regulators was accessible, but three
were not, and on December 29, 1992, he would  have  no  way of
knowing  how  much  air  was  going  to  any  of  those  three
regulators
(Tr. 117).

     Mr.   Crutchfield  reviewed  weekly  examination  records 
for December 21, 1992, and confirmed that he countersigned them
when he  returned  from  vacation  and  that  Mr. Hrovatic was
acting in his place while he was absent that week.   He agreed
that the two recorded readings do not reflect how much air was 
going into the gob, and no return readings are recorded (Tr. 118).

     Mr.  Crutchfield  confirmed  that Mr. Hrovatic left his
employment with Consol two months after the ignition, after
20 years of employment, but did not know if his departure
had anything to do with this case (Tr. 123).  He stated that
Mr. Hrovatic's wife is an MSHA inspector at the Richland's
office (Tr. 131).

     Mr. Crutchfield confirmed that the section examination
book reflects that BEP 10 was evaluated  on a daily basis; and
that  it  was the checkpoint for the panel (Exhibit  R-2;  Tr.
135, 139-140).   He  explained  some of the entries, including
the recorded methane levels.  He  stated  that BEP 10 was used
to  evaluate the gob, and that it was an MSHA  approved  point
for evaluating  the section (Tr. 141-146).  He stated that the
BEP 10 location is  marked  on the map with directional arrows
showing air being coursed to that location, and he considered 
that to be the evaluation checkpoint for the section, just as
he has other similar locations shown  on the map for other mine
areas (Tr. 147-149).

     Mr. Crutchfield stated that he was surprised to learn
that the drill holes had not been drilled to allow more air
to pass through.  He believed the holes had been drilled after
Mr. Hrovatic was assigned that project, and stated, "I thought
all the time there was ten to twelve thousand feet of air
passing through there because that  is what Bob wanted through
there" (Tr. 158).

     Mr. Crutchfield was recalled by the Court and stated that
he was interviewed at the mine after  the  ignition  and could
not recall discussing the BEP-10 evaluation location with  the
MSHA  investigators.   He  did  not  believe  that the section
examination   records   (Exhibit   R-2)  were  given  to   the
investigators, but believed that they looked at them (Tr. 10).

     Mr. Crutchfield stated that the purpose  of the drill holes
in question was to ventilate the gob area that  would  be created
after driving the projections  and pillaring back (Tr.  13-14).
The  air  ventilating  the  gob  would  be monitored by taking
cross-sectional readings and monitoring BEP-10  (Tr.  14).  He
confirmed  that BEP-10 was established before the section  was
developed and  that  air  from  at least one other section was
also being monitored at that location (Tr. 15).

     Robert G. Wyatt testified that he  has worked in the mines for
40 years, has a tenth grade education,  and  was  the  general
mine  superintendent for six or seven years beginning in  May,
1987.  Prior to that he served as general superintendent at
another  Consol  mine  for  12 years.  He stated that prior to
this case, none of his mines received a (d) order or citation,
and he has never been charged  personally  for  any violations
(Tr. 18-21).

     Mr. Wyatt stated that in mid-November 1992, he had a medical
problem resulting in his hospitalization in intensive care, and 
returned to work at  the  end  of that month.  He had not been 
underground from November 4 to the  day  of the ignition, and
Mr.  Hrovatic  served  as  assistant  superintendent  and  was
assigned to work for him.  Mr. Hrovatic was a mining engineer,
and had full authority other than any major  changes or policy
matters.

     Mr. Wyatt stated that he had weekly meetings with
Mr.  Hrovatic, Mr. Crutchfield, and Mike Delgrade,  the  chief
electrician,  to  discuss  the  conditions on the section, and
ventilation plans were handled by  Frank  Underwood,  the mine
engineer (Tr. 26-27).  He confirmed that the decision to mine
and  pillar  the  section  was  his  and  he explained how the
development plans were formulated, including a meeting with
Mr. Crutchfield, Mr. Walls, Mr. Underwood,  and  a UMWA safety
committeeman (Tr. 29-36).  He explained how a ventilation plan
is   developed   and  discussed  and  he  described  the  mine
ventilation system (Tr. 37-42). Mr. Wyatt confirmed that BEP-10 
was  intended to be used to test any methane coming through the 
gob and  to  evaluate  the section bleeder system (Tr. 45-49). 
He believed this was a safe method for evaluating the bleeder 
air, and he explained how   the   areas   with  excessive  
methane  liberation  were monitored.  He confirmed  that BEP-10 
was monitored on a daily basis for the B-right section, and the 
same  procedure  was  used to monitor the  2-1/2 section where 
all of the air was routed  to  BEP-10  (Tr. 51-60).

     Mr. Wyatt stated that he was not aware of the notation
that the  drill-hole  regulator  area  could  be examined "for
quite some time," and it was not discussed during  the meeting
he attended with Mr. Walls. Mr. Wyatt believed that Roy Smiley,
a draftsman working for Mr. Underwood  at  Consol's  Bluefield
office, made the notation (Tr. 62).

     Mr.  Wyatt stated that all of the ventilation plans that  
were submitted before the 2-1/2 section was mined showing multiple
areas  going  into  the  BEP-10  were approved by MSHA, and he
confirmed that the March 6, 1992, submission (Exhibit G-40),
for the 2-1/2 section was approved by MSHA on April 21, 1992
(Tr. 63-64).  He explained why changes  had  to be made in the
original mining projections, including mining to the left, and
providing for ventilation changes and bleeder controls, and
all of this was handled by Mr. Underwood in consultation with
Mr.  Walls.   The  ventilation  changes are reflected  in  the
letters  of  September  1  and 30, 1993,  with  Mr.  Underwood
(Exhibit G-42; Tr. 65-73).

     Mr. Wyatt further explained  how  the air on  the section 
would be controlled through four regulators, and he believed it
was a safe and efficient plan. All of the air  would eventually
sweep  the  section and would eventually be directed to BEP-10
(Tr. 79-82).

     Mr. Wyatt stated that he has had occasion in the past to
use drill-hole  regulators.   He  confirmed  that two stopping
cut-throughs  were  initially projected for the  back  of  the
section, but out of concern  for  safety, and the fact that it
was  not uncommon for such stoppings  to  crush  out,  thereby
robbing  other areas of air, he decided to use something other
than a standard  stopping  and  regulator  and  instructed the
drilling of the holes, and Mr. Hrovatic was put in  charge  of
the drilling (Tr. 91).

     Mr.  Wyatt stated that Mr. Hrovatic informed him of the
progress of the drilling and that he informed Mr. Hrovatic
that  he  wanted  10,000  cfm air through the holes.  He later
informed Mr. Hrovatic to "go ahead and put 12,000 through,"
and Mr. Hrovatic informed him that he had 12,000 to 14,000 cfm
of air going through the holes.  Mr. Wyatt stated that "I was
well pleased with it, with the whole system" (Tr. 95).

     Mr. Wyatt explained the use of cross-sectional readings
to evaluate the bleeder air on the section (Tr. 96).  He
believed the use of a drill hole regulator would be safer than
a standard type stopping or  regulator,  and  tht it was not a
matter of convenience and supplies were available to construct
a standard size of regulator (Tr. 98-100)

     Mr. Wyatt stated that he would never knowingly  violate the
law, and that he has in the  past shut down mines and withdrawn
miners out of  safety concerns.  He would have done so in this
case if he believed  there  was  a  potential  problem  on the
section  (Tr. 101).  With respect to Mr. Crutchfield, whom  he
has known for six years, Mr. Wyatt stated that he operated the
mine in a  safe  manner, and would never cut corners (Tr. 104-
105):

     On cross-examination, Mr. Wyatt confirmed that he was not
at the meeting with Mr. Walls when the second ventilation plan
supplement was submitted  and  it did not show any projections
for driving the left side of the  section  (Tr.  110-112).  He
was aware of the ventilation plan requirement for constructing
drill  holes out of non-combustible materials, and  reiterated
that he  wanted  10,000  cfm  of air passing through the drill
holes  (Tr.  112-113).   He  did  not   confer  with  engineer
Underwood or MSHA about the use of drill  holes (Tr. 114).  He
still believes today that he had an adequate  bleeder  system,
and  he  would never accept 2,600 cfm of air through the drill
holes (Tr. 117).

     Mr. Wyatt further explained his understanding of the face
ventilation  diagrams (Tr. 120).  He explained that after  the
ignition occurred, Mr. Hrovatic informed him that the drill
holes had been  redrilled  to three inches, and that 12,000 to
14,000  cfm of air was going  through  the  holes  before  the
ignition  (Tr.  122-123).  Mr. Hrovatic also informed him that
6,000 cfm of air was going through the holes when they were 
drilled with the 1-1/2 inch diameters,  and  that he had 6,000 
to 8,000 cfm of air when five of the holes were  re-drilled to
three inch diameters (Tr. 123).  He then instructed Mr. Hrovatic
to  put 12,000 cfm through  the holes, but did not specifically
tell him how many  additional  holes  should  be  drilled.  Mr.
Hrovatic assured him that this had been done (Tr. 124-125).

     Mr. Wyatt stated that while he was in the hospital in 
November 1992, Mr. Hrovatic served as acting mine superintendent
(Tr. 132).  When asked if he ever asked Mr. Hrovatic how he 
measured the air going through the holes, Mr. Wyatt stated as 
follows (Tr. 133):

          A. No, sir, I don't recall questioning him.
     You know, he is an engineer. I've got a tenth grade
     education.  You know, I wouldn't question the boy on
     the numbers.  I'm sure he is qualified to take the air
     readings.  Or the man.  Excuse me.  I didn't mean to
     call him a boy.

     Mr. Wyatt stated that he was not aware of  the  gob  roof
conditions   on  December  29,  1992,  and  he  described  the
conditions as they appeared to him the next day (Tr. 134-137).
In response to  further questions, he confirmed that he had no
knowledge of the mining machine gas-offs prior to the ignition
(Tr. 137). He believed that the ignition was caused by a major
crack in the roof that released methane  gas  under  pressure 
and "our bleeder system got overrode, ... and we've had some 
kind of an ignition  source  in  there that you don't normally 
expect  to have" (Tr. 141).

     Mr. Wyatt stated that in  his years of mining  experience 
prior to the ignition he has never known of methane ignitions or
explosions originating  in the gob area.  He believed  that the
failure of the bleeder results in a loss of pressure going  in
the  gob  that releases methane on to the active section where
there are ignition  sources.   He  has  always been trained to
keep gas away from the working place and  to  keep  a positive
pressure on the gob (Tr. 142-145).

     Donald W. Mitchell, consulting mining engineer specializing
in ventilation,  mine fires, and explosions, was accepted as an
expert witness.  His resume reflects that he has a B.S. degree
in mining engineering  from  Penn  State,  and an MS degree in
mining engineering from Columbia University.   He has authored
approxi-mately 100 publications and a book on mine  fires that
will  soon be published as a third edition.  Mr. Mitchell  was
previously  employed  by  the  U.S. Bureau of Mines, MESA, and
MSHA, from 1951 until July, 1978,  was involved in the passage
of the 1969 Coal Act, and served as  an  assistant chairperson
of  a  task  force  that  drafted  the regulations  that  were
promulgated in March, 1970.  The task  force  responsible  for
writing   the   ventilation   regula-tions  worked  under  his
direction.  He has also worked  as an international consultant
in Nova Scotia, Australia, Columbia, Great Britain, India, and
China in matters concerning mine fires and explosions (Tr. 
151-156; Exhibit R-6).

     Mr. Mitchell stated that he became involved in the analysis 
of the  December  19, 1992, ignition in  August,  1993, and has
worked on that project  as  a  consultant  "off and on" to the
present  time.  He considered a number of documents  that  are
part of the  record  as  hearing exhibits, including preshift,
on-shift, and daily reports, records of methane readings, roof
control plans, photographs,  locations  of  core  drill holes,
weather data, a 1990 ventilation survey he con-ducted  at  the
mine,  a  January,  1993  ventilation  survey, ventilation fan
data, equipment location data, ventilation maps, and schematics
showing the ventilation as of August, 1990, ventilation plan
supplement of October 30, 1990, additional plan  supplements,
several  drawings that he  made, computer analysis of the mine
and section ventilation, computer-ized ventilation simulations, 
recent  studies  of frictional ignitions, and various research 
papers concerning massive  roof  falls and wind blasts  and 
ignitions, coking, shock waves, reports of methane ignitions 
caused by roof falls in the gob areas, methane ignitions caused
by sandstone roof and equipment frictional sources, and reports 
and papers concerning frictional  ignitions in several foreign
mines (Tr. 157-213).

     Mr. Mitchell was of the opinion that the ignition in question
was "a result of a  fall of  roof  igniting  methane  associated
with the rock that was falling" (Tr. 206).  He  confirmed  that
he reviewed all of the  aforementioned written information  and
approximately  29 interviews  taken during the  investigation in
making his analysis of the ignition (Tr. 213).

     Mr. Mitchell stated that occluded methane in rock is usually
not affected or  dissipated by  the  ventilation  system because
there is no way to dissipate it and it  does not release until
the  rock  breaks  (Tr.  215).   He  confirmed  that  he  went
underground  as  part  of his analysis and  visited  all  five
headings up to the gob line  in  the 2-1/2 section.  He looked
back toward the gob drill hole area  in  each of the headings,
but was unable to see the drill holes (Tr. 218).

     Mr. Mitchell acknowledged that he misspoke  when he  gave 
his deposition  indicating  that he could see all the way back
toward  the drill holes when he was underground  and  that  he
could see  the  barrier  pillar.  He stated that "there was no
way I could see at least a  distance  of  100  to  150 feet at
minimum" (Tr. 222).

     Referring  to two  drawings that  he made,  Mr. Mitchell 
explained his opinion as to the cause of the ignition. Referring 
to  the  testimony  of miner witness Whittaker  and Curry that
they  could hear  the roof  cracking  and working  "high up,"
Mr. Mitchell stated that the centilever roof structure started
to fail, and a tension crack started forming close to the edge
of the pillar.  Since there is nothing holding up the weakened
roof, it falls.   Based on his best  estimation,  he  believed
that  there  was  a  fall of a 30 foot block of sandstone roof
from the No. 5 heading  to the No. 4 heading, four to six feet
on the edge of the gob (Tr. 222-224).

     Mr. Mitchell stated that based on his miner  discussions, 
the term  "from  the  gob"  means  inby  the breaker posts. He
described  two  locations  on his drawings  as  the  point  of
ignition.  He believed the No.  1 crack location was the point
of ignition because it is more consistent  with  the testimony
of flame coming from the gob, than location No. 2,  but stated
that "both could be or  either  could  be"  (Tr.  227).   He 
further explained  as follows (Tr. 228-229):

          I take the position that it is not reasonable to
     assume that we had many or more then one simultaneous
     fall of a large block of stressed rock at the same
     instant.  And therefore, I am taking this as a point
     that in my opinion, the most probably  point of igni-
     tion was the fall -- was the breaking up, the forming
     of the crack one and the forming of the crack two.

                               * * * *

          Q. Mr. Mitchell, do you agree with MSHA's
     conclusion that the ignition source was a frictional
     ignition?

          A. Yes, I agree with that conclusion.  That is
     my opinion and finding as the most probable source.

          Q. From where did the methane gas come?

          A. It is my opinion that the methane, the great
     majority, if not all of the methane that was involved
     in this ignition, came from the fractional planes
     propagated and came out, was liberated through the
     fracture planes in that sandstone, as indicated by
     lines one and two on that exhibit.

     Mr. Mitchell stated that the fact that the ignition occurred
does not indicate that the gob was poorly or improperly ventilated.
He explained as follows (Tr. 230-231):

          A. This major outflow of methane -- there is
     no gob in the United States, no ventilation system
     in the United States that is capable of handling
     sudden outbursts.  In fact, we're not even able --
     in most mines where we have outbursts of methane in
     active workings, we have no means to militate against
     these even where we have positive, strong ventilating
     currents.

     With regard to Citation No. 2724034, Mr. Mitchell  stated 
that the air measurement of 2,037 cfm of air passing through
the bleeder regulator had no relation to the ignition because
it was only one of four regulators that were controlling the
air  flow from the active working faces and through the  gases
contained within the gob, into the bleeder.  He believed the
rest of  the  air  circulating  through  the  gob  was keeping
methane within the gob from coming out on the working face and
directing that methane and other contaminants within the gob  
to the four regulators that intersect the bleeder system for the
2-l/2 section (Tr. 232).

     Mr. Mitchell stated that he was involved in the drafting
of the original regulation in 1970 concerning the ventilation
of the gob and the bleeder system, and that the intent of  the
standard "was to keep the methane that was normally associated
with  the  gob  away  from the working faces where it could be
ignited by the equipment and by the people in the active work-
ings."  He further stated that at the time the regulation was
promulgated, "none of us considered any possible outbursts of
gas in the gob.  This was something alien to our knowledge"
(Tr. 233).

     Mr. Mitchell was of the  opinion that the violation was
issued because there was an ignition (Tr. 235).  He was of
the further opinion that the  drill  hole  regulator  did  not
contribute to the alleged violation because that particular
cited  location  was only one of four exit points that allowed
methane/air mixtures  to  move from the worked out area into a
return air course as required by the regulation (Tr. 241).
Based  on  his  experience  and   understanding   of   section
75.334(b)(1),  he  did  not  believe that Citation No. 2724034
described a valid violation (Tr. 242).

     In response to questions as to whether he believed there
was a "proper and good bleeder system" on the section prior to
the  December 29, 1992, ignition,  Mr.  Mitchell  stated  that
given the pressure against the curtains and the flow of air in
the November  5  heading,  "there was a good bleeder system in
action"  (Tr.  242).  With regard  to  the  No.  4  entry,  he
believed that the gas-offs indicated that the bleeder system was
working (Tr. 243).  He concluded  that the bleeder system "did 
the job intended" (Tr. 242), and he  disagreed with Mr. Wirth's 
"body of methane" in the gob testimony, notwithstanding his 
original perception that the probable source of the ignition 
fuel was a body of methane in the gob (Tr. 246-248).

     Mr. Mitchell stated that based on his review  of  his 
pressure differential  calculations  from  the  No. 4 and 
No. 5  active faces to the back of the bleeder and the  four 
regulators, and the gas bottle sample readings obtained by 
Mr. Wirth  and  by Mr. Uhl, he  concluded  that  as  of  
January  5,  1993, the drill hole  regulator  was  regulating
the  flow of air from  the  active workings through the 
worked-out area,  and into the return air entry (Tr. 250).

     Mr. Mitchell was of the opinion that the drill hole 
regulator in  question  met  the  definitional test of 
"non-combustible material" as stated in regulatory section 
75.301, but does not meet the ventilation plan  requirement
that it be constructed of "incombustible" material, because
coal  is capable of being burned (Tr. 250-253).

     Mr. Mitchell stated that he has questioned mining personnel 
at other mines in the area and found that they  were  ignorant 
of the  phenomenon  of a  sudden inundation of methane and an
ignition resulting from friction (Tr. 254).   He believed that
the event in question  was  an  ignition  and  not  an  explosion,
and  he explained his conclusion in this regard (Tr. 255-262).

     On cross-examination, Mr. Mitchell expressed agreement with
Mr. Wirth's  calculations  concerning  the amount of  air going
through the drill hole regulator (Tr. 264).  He was aware that
Mr. Wirth took additional readings of the  air passing through
the regulator when he returned on January 26,  1993,  and that
Consol  engineers  did  not  measure the air, but relied on  a
balance analysis.  He agreed that  his 1990 ventilation survey
was made when the 2-1/2 section was not in existence, and that
he took a later survey of that section  more than a year after
the ignition, but never went to the drill holes (Tr. 267).  He
agreed  that  he  may  have  stated  that it would  have  been
desirable to go to the drill holes when he gave his deposition
and, in any event, agreed that it would have been a good thing
to do.  He did not go to the drill holes  because he was tired
(Tr. 268-269).

     Mr. Mitchell confirmed that he was in error when he stated
in his  prior deposition that the roof was hanging  all the way
back to  the  drill holes, and that he has corrected his prior
statements (Tr.  270-273).   He  conceded  that he changed his
prior testimony that he could see back to the  gob  where  the
coal barrier was during the earlier hearing in this matter and
after  Mr.  Wyatt  corrected him and indicated that they could
only see 150 feet (Tr. 276).

     Mr. Mitchell stated  his judgment that at one point in time
on December 29, 1992, the bleeder system was inadequate and this
was when the 15,000 or more  cubic  feet  of air was returning
down the No. 5 heading into the main return,  rather than into
the  gob.   He would have preferred a positive ventilation  at
that entry, rather  than  a return.  However, he believed this
was corrected when the No. 5 entry ventilation was changed and
it became an intake (Tr. 280-281).   He then, "in retrospect,"
corrected  his  prior  opinion  as to the  inadequacy  of  the
bleeder, and indicated that his opinion had nothing to do with
the  bleeder  system,  but  rather, the  available  air  being
directed into the gob (Tr. 281-282).

      MSHA's Arguments

     Fact of Violation

     Order No. 2724034, 30 C.F.R. 75.334(b)(1)

     MSHA  asserts  that after an exhaustive investigation, it
determined  that  the  explosion  that   injured  five  miners
resulted  from  an  inadequate  bleeder system  which  allowed
methane to accumulate in the gob in the explosive range.  MSHA
concludes that the body of methane  was  ignited in the gob by
frictional heating or piezoelectric discharges  during  a roof
fall, and it rejects Consol's position that the explosion  was
the result of a sudden and unpredictable release and inundation
of methane from the overlying roof strata.

     MSHA argues that the clear intent of section 75.334(b)(1)
is to prevent an accumulation of methane which could result in
an   explosion,   and   it  maintains  that  the  evidence  is
overwhelming that the 2-l/2  section bleeder system was not in
compliance with the requirements  of  section  75.334(b)(1) on
December 29, 1992, when the explosion occurred.

     In support of its theory that a body of explosive methane
in  the  gob  caused  the  explosion,  MSHA  asserts that  the
credible  eyewitness testimony of Mr. Whitaker  and  Mr.  Dean
reflect that  the  flames  came  out of the gob.  MSHA further
relies on the fact that the gassing  off  of the miner machine
prior  to  the  explosion was an indication that  the  bleeder
system was failing  and allow-ing methane to accumulate in the
gob.   Since  the  section   had  not  previously  encountered
significant amounts of methane,  MSHA  concludes  that  it was
unlikely  that  pockets  of  methane  would  be encountered in
quantities  that were encountered when the miner  gassed  off,
particularly since the miner gassed off at least three times a
few hours prior  to  the  explosion.   MSHA  rejects  Consol's
arguments  that  it  was purely coincidental that these events
occurred so close in time,  and takes the position that such a
coincidence is highly improbable and completely unsupported by
any credible evidence.

     MSHA argues that the only evidence  to support Consol's 
theory is  the  testimony  of  its  expert witness  Donald  
Mitchell. However,  MSHA asserts that the  evidence  relied  on
by  Mr. Mitchell is not credible, and his opinions and conclusions
are likewise not  credible.   MSHA  points  out  that Mr. Mitchell
based his opinion upon a ventilation survey done two years prior
to the existence of the 2-1/2 section, a partial survey by Consol
engineers  after  the  explosion  which  Mr.  Mitchell  admits
contained errors,  non-existent eyewitness statements that the
explosive flame came  from  the roof, and his own observations
when  he  visited  the section more  than  a  year  after  the
explosion.

     In  further  support  of  its  case,  MSHA  states  that
Mr. Mitchell's  observations are  not credible.  MSHA  argues
that in his deposition, Mr. Mitchell stated that when he went
to the section he was able to see through the gob from the No.
3 and 4 entries and  was  able  to  see the drill holes at the
back side of the gob.  However, MSHA  points  out  that  these
statements  were  contradicted by every witness, including Mr.
Hrovatic and Mr. Crutchfield  who  testified it was impossible
to see to the drill holes from where  Mr. Mitchell was because
a cap lamp would not shine that far and  because  the  roof in
the  gob  had  caved in.  MSHA notes that Mr. Mitchell changed
his testimony on  this  point at the hearing after hearing the
other witnesses contradict his deposition statements.

     MSHA takes issue with the  accuracy  of  Mr. Mitchell's 
statements and observations about the gob roof conditions  and 
the source of the flame at the time of the explosion in a paper
that he published  on  wind blasts caused by rock falls.  MSHA
maintains that Mr. Mitchell's  theory  that  the explosion was
the result of a sudden release of methane from the roof is not
plausible, and it concludes that his testimony was designed to
justify Consol's theory regarding the cause of  the explosion.
In  this regard, MSHA points to a report submitted  by  Consol
pursuant to Part 50 of the regulations explaining the cause of
the accident  which states that "the methane gas was liberated
from the Pocahontas # 5 seam with the  pillar  fall.   Amonate 
# 31 Mine produces coal from the # 4 seam, which lies below the
# 5 seam."  MSHA concludes that  it  is  clear that rather than
reviewing  the facts  and  then drawing conclusions from those
facts,  Mr. Mitchell  developed   a  theory  which  would  
substantiate  a conclusion which had already  been  reached  
months earlier by Consol.   Under  the  circumstances,  MSHA
believes  that  Mr. Mitchell's conclusions and opinions in this 
matter should be given no weight.

     MSHA argues that the evidence supports a finding that the
explosion resulted from  an  ignition  of a body of methane in
the  gob,  and  that  the  methane was allowed  to  accumulate
because the bleeder system was  inadequate.  MSHA asserts that
the manner in which the bleeder system was set up, and because
it was not being properly evaluated,  allowed  the  methane to
accumulate  in the gob.  MSHA points to the testimony  of  Mr.
Wirth and Mr.  Uhl  that the bleeder system was not adequately
ventilating the worked-out  area  between  the pillar line and
the  drill  holes  because the drill holes were  not  allowing
enough air to exit through that location and because the other
regulators on the left  side  of  the  section  caused the air
going  into  the gob to go directly to where those  regulators
were located and to simply sweep the fringe area of the gob.

     MSHA further argues that all of the testimony presented by
both sides indicates that a minimum of  10,000 to 12,000 cubic
feet per minute of air  was considered to be the amount of air
flow necessary at the drill hole  regulator  on the  back side
of the section to  adequately  ventilate  the gob.  MSHA cites
Mr.  Wirth's  testimony  that  at  the time of  the  explosion
slightly  more than 2,000 cfm of air  was  going  through  the
drill holes, and that at no time was more than 2,828 cfm going
through the  holes.   With  regard to Mr. Hrovatic's testimony
that he measured a greater amount  of  air  flow  at the drill
holes,  MSHA  concludes  that  these  measurements  were   not
reliable because Mr. Hrovatic improperly used an anemometer to
make the measurements.  Further, MSHA emphasizes the fact that
no other witness contradicted Mr.  Wirth's testimony concerning 
the  amount  of air going through the drill holes, and that
Mr. Mitchell agreed that Mr. Wirth's   calculations   were  
consistent   with   the  "best engineering principles."

     MSHA  asserts  that  an additional factor contributing to 
the inadequacy of the bleeder was the fact that the regulators 
on the left side of the section were drawing the air along the
pillar line.  MSHA relies on the testimony of Mr. Wirth and
Mr. Uhl that the air flow pattern in the gob was such that as
the air entered the gob from the section, and it followed the
path of least resistance, and split toward the left hand side
of the section, skirting the fringe of the gob,  and  traveled
to the left side regulators.  Since the air between the pillar
line  and  the  drill  holes  was  a  path  of relatively high
resistance  because  the  roof  in the gob had caved  in,  and
because  only slightly more than 2,000  cfm  was  exiting  the
drill holes,  MSHA  believes  that  the rest of the 17,000 cfm
that was measured going into the gob  must  have been going to
the regulators on the left side of the section.

     In response to Consol's argument that because the section
foreman measured 17,000  cfm  of  air going up the No. 5 entry
into the gob, there was adequate ventilation  of the gob, MSHA
points  out  that,  as  explained by Mr. Wirth, measuring  the
amount of air entering the gob gives only one component of the
bleeder system, and that  in order to effectively evaluate the
entire bleeder system Consol  needed to determine the air flow
patterns or distribution of air  throughout the gob, where the
air  was  exiting  the  gob,  and  the  methane   and   oxygen
concentrations at the points where the air exited the gob into
the return entry.

     MSHA  concludes  that  it  has proved by much more than a
preponderance  of  the credible evidence that there was a body
of methane in the gob  which  was ignited and that the body of
methane  was  able  to  accumulate   because   there   was  an
insufficient amount of air going through the worked out  areas
of  the  gob  to  dilute and render harmless that methane, and
that even superintendent  Wyatt did not seriously dispute that
the bleeder system, as it was set up on December 29, 1992, was
unacceptable.   Accordingly,  MSHA  believes  that  the  order
should be affirmed.

     Order No. 2724034, 30 C.F.R. 75.364(a)(2)

     MSHA  argues that section 75.364(a)(2) requires Consol to
evaluate  the  effectiveness  of  bleeder  systems every seven
days.   It  points  out  that  the  order  states  that   mine
superintendent  Wyatt  and  mine foreman Crutchfield indicated
that no one was examining the  bleeder  regulator and that the
area  was  inaccessible.   MSHA  asserts  that   the  evidence
establishes  that  the  only  evaluation  of the bleeder  that
Consol was doing was taking air readings on the active section
and at BEP 10, and  that there is no dispute that persons were
not  traveling the return entry to where any of the regulators
were prior  to the explosion  on  December  29,  1992.   In  
response to Consol's position that the approved ventilation 
plan  allowed  them  to evaluate  the bleeder system by using
cross-sectional readings taken on the section, MSHA  maintains
that  given  how  the  section was developed,  cross-sectional
readings  were  not  an effective method for evaluating the 
bleeder system.

    In support of the violation, MSHA argues that even assuming
that cross-sectional  readings  was  an approved and effective
method for evaluating the bleeder, Consol  was not even taking
proper cross-sectional readings in that such air readings must
be  taken  in the intake, return, and belt entries.   In  this
case, MSHA states  that  the  most  recent entry in the weekly
examina tion book, dated December 21, 1992, shows that readings
were  taken only in an intake entry and in the belt entry, and 
that Mr. Crutchfield testified that these readings alone do not
provide the necessary information for determining how much air
was  entering the gob.   Further,  MSHA  points  out  that  as
explained  by  Mr.  Wirth,  although  cross-sectional readings
would have been an effective means of evaluating  the  bleeder
when the section was initially intended to be developed,  with
one  exit  point  in  the gob for the air to enter the bleeder
entry, once Consol deviated  from  its initial projections and
installed  the  other  regulators  on the  left  side  of  the
section, cross-sectional readings would  not  enable Consol to
determine where the air was going once it entered the gob.

     MSHA takes the position that Consol's mining of the section
out of sequence is not, in and of itself, a violation  of any-
thing, so long as the actual mining sequence does not create a
hazardous  condition.  Conceding that the original ventilation
plan supplement  allowed  for  cross-sectional  readings as an
acceptable  method  for  evaluating  the  bleeder  under   the
scenario  presented to Mr. Walls, MSHA maintains that there is
no question  that  the  scenario presented to Mr. Walls is not
what was present on the section  on December 29, 1992 and that
any reasonably prudent mining person  would  know  that cross-
sectional  readings were not an effective method of evaluating
the bleeder  system.   Since  there  was more then one bleeder
outlet where the air exited the gob into  the  bleeder  entry,
MSHA  concludes that there was no way for Consol to know where
the air was going in the gob.  Under these circumstances, MSHA
concludes  that  the only information that Consol could obtain
from  cross-sectional   readings   was  limited  to  only  one
component of a bleeder system, namely,  how much air was going
into the gob.

     MSHA argues that Consol did not follow the original mining
plan  in that the  intended  projections  were  not  followed,
additional regulators were installed, a  proper  regulator was
not established  on  the  back side of the section, the agreed
upon  amount  of  air  at  that  proposed  regulator  was  not
provided, the left side of the  gob  was  not  ventilated with
intake  air, and the regulators at the back side  of  the  gob
were all  inaccessible,  despite Mr. Wyatt's representation to
Mr.  Walls  that  the  area near  the  drill  holes  could  be
examined.

     In response to Consol's  assertion that BEP 10 was the 
bleeder evaluation point for the section, MSHA agrees that the 
air was going  to that  location, but  disagrees  that  this 
establishes that it was the section evaluation point. MSHA points
out that air in excess of 200,000 cfm was  going  to  BEP  10,
including,  at  most,  64,000  cfm  that  was  from  the 2-l/2
section.   Therefore,  MSHA concludes that readings at BEP  10
would not have been an effective  way  to evaluate the section
bleeder system, and the weekly examination entries for the 
section do not list readings taken at BEP 10.

     In  response  to Consol's suggestion  that any inadequacy
resulting from cross-sectional readings was Mr. Wall's respon-
sibility  because  he  approved that method of evaluating  the
bleeder, MSHA states that  it  is  clear  that cross-sectional
readings  were  approved  on  the  basis  of conditions  quite
different from those present on December 29, 1992.  MSHA points
out that there was a myriad of conditions and circumstances which 
could not possibly have been anticipated by Mr. Walls, such as
Consol altering its projections for developing the section, or
not installing a regulator where  one  was  proposed.   In any
event, MSHA believes that Consol must be held responsible  for
ensuring that an adequate bleeder system is provided where one
is  required, and that the results of not doing so are gravely
obvious  from  the  events  that  occurred giving rise to this
case.  MSHA believes that Consol failed  in  this  obligation,
and that the order should be affirmed.

                          Consol's Arguments

     With regard to the inadequate bleeder system violation, 
Consol asserts  that in order to prove a violation, MSHA must
establish  by a preponderance of the evidence that the bleeder
system did not  move  the  methane-air  mixtures away from the
section  and into a return air course.  Consol  believes  that
MSHA has failed  to  carry  its  burden  because  the evidence
established  that  the  ventilation  on  the  section  at  all
relevant  times  moved  methane-air  mixtures from the working
areas, through the gob, and into the return.

     Consol  argues  that its theory regarding  the  cause  of
the ignition is supported by expert witness Mitchell's analysis
based  on the existing  evidence  and  well  known  scientific
principles.   Consol  concludes  that MSHA's investigators and
experts ignored key evidence  that should  have cast  doubt on
their theory that  the "explosion" resulted  from the ignition
of accumulated gob gases.  In this regard, Consol asserts that
MSHA's characterization of the ignition as an explosion is not
in  accordance  with  the  definitions   of   those  phenomena
developed  at  the  Bureau  of  Mine's  experimental  mine  as
testified to  by  Mr.  Mitchell  in  a  paper  he  co-authored 
distinguishing  the  damaging  forces  of  "explosions"  and
"ignitions."

     In support of its theory  that the ignition was caused by
a spontaneous outburst of  methane from the type of  sandstone
roof found on the section, Consol  relies  on  the  eyewitness
testimony  of Wayne Dean that he observed the roof "set  down"
one to two inches,  followed  by  a  blue  flame coming from the
roof crack, and Mr. Mitchell's explanation  that the existence of
a blue flame is associated with higher concentrations of methane
such as would be released in spontaneous  outbursts  from  the
sandstone  roof.   Consol  further  relies  on  Mr. Mitchell's
testimony  that  the  observation  of  a return flame  by  the
miners,  and the lack of flame damage in  all  directions,  is
consistent  with a spontaneous methane outburst from the roof,
and supports  his conclusion that the methane ignition did not
originate in the gob.

     Consol asserts that MSHA's theory regarding an accumulation
of gob gases appears to be based upon a misunderstood notation
on the approved  section  ventilation plan.  Consol points out
that the inspector noted in  the  order  that  "[t]he approved
ventilation map indicates that the back side of 2-l/1 section,
MMU  015,  can  be  examined."  Given that mine superintendent
Robert Wyatt and mine  foreman  Danny Crutchfield had informed
investigators  that  the area at issue  was  inaccessible  and
could not be examined,  Consol  suggests that the investigator
apparently concluded that the bleeder  system  must  have been
inadequate, and must have been the cause of the ignition.

     Consol maintains that MSHA's theory is full of unexplained
holes  and  significant omissions.   As  one  example,  Consol
points  out that  while  Mr.  Mitchell  relied  upon  personal
observations and accounts of witnesses who gave a precise 
indication of the point of  ignition,  MSHA's expert witness,
Clete Stephan, did  not consider any witness  accounts,  and
could only state that the ignition point was somewhere inby  
the continuous miner at an  undetermined point somewhere along
the  gob fringe area. Further, Consol asserts that Mr. Stephan 
and MSHA expert Wirth contra-dicted  each  other  with  respect
to the origin of the ignition, and that Mr. Wirth theorized that 
it occurred at the crack viewed by Mr. Dean, and that the flame
traveled  back into the gob and ignited accumulated methane.  
Contrasted with this  is  Consol's assertion  that Mr. Mitchell 
supported his theory with an analysis of the rock fall and seams 
involved, and  pertinent scientific literature regarding stress
fractures,   the   methane   holding   ability  and  incentive
properties of different types of rock.

     Consol cited further examples of omissions  by MSHA, 
including the omission from its accident report of bottle sample
methane readings taken by Mr. Wirth at the drill hole regulator.
Consol  believes  that  the  samples  showed   that   the  gob
ventilation  was sufficient to move air and gases through  the
bleeder drill holes in quantities and at velocities sufficient
to dilute and render harmless methane contained in the gob.

     Consol cites the  failure of  Mr. Wirth to recognize the
significance of the 2.2 inch water gauge reading he obtained
from the  bleeder system, and his lack of understanding of the
relation of pressure differentials and air flow in evaluating
the effectiveness of the bleeder system.  Mr. Mitchell, on the
other hand, made it clear that such water gauge readings are a
key element  in  evaluating  bleeder  systems,  and that a 2.2
reading is considered "outstanding."

     Consol points out that while Mr. Wirth indicated that a fall
in barometric pressure caused  methane from an  unventilated gob
area  to flow out into the No. 4 push, leading to the gas-offs
in that  push,  and  eventually, to the ignition, he failed to
include this analysis  or information regarding the barometric
pressure  readings  in his  report.   Mr.  Mitchell,  however,
presented  weather data  for  the  month  of  December,  1992,
demonstrating  that  the  slow decrease in barometric pressure
occurred too close to the time  of  the  ignition  to have any
effect on gob gases.

     Consol asserts that Mr. Wirth contradicted his own theory
regarding the outflow of methane from  the  gob  and indicated
that the more likely explanation for the miner machine gas-off
was that it hit a pocket of methane, and not that  methane was
flowing  out  from  the  gob.  On the other hand, Mr. Mitchell
stated that Mr. Bandy's finding  of methane in the No. 5 entry
return at the time of the gas-offs  showed  that  the  bleeder
system  was working to sweep air away from the active workings
into the  gob,  and  then to the return.  Mr. Mitchell further
opined that the methane that caused the gas-offs emanated from
lesser cracks in the sandstone  roof of the No. 4 entry, which
led to short-lived outflows of methane that were swept away by
the ventilating air.

     Consol  argues that MSHA's experts and investigators have
proceeded in this case  on  the  theory  that  a  violation of
section  75.334(b)(1)  must have occurred because an  ignition
occurred.  Consol asserts  that this is contrary to MSHA's own
pronounced acknowledgment in  Secretary  v.  Ozark,  Inc.,  14
FMSHRC  941 (June  1992).  Consol  further  argues  that  the 
occurrence of an accident or fatality is insufficient to establish
a violation, especially  when  eyewitness  testimony  demonstrates
that no hazardous  conditions  or  violations  existed  prior  to
the accident.  See also:  Secretary v. Ideal Cement Co., 11 FMSHRC
1776,  1783  (September 1989), Donovan v. Federal Clearing Die
Casting Co., 655  F.2d  793,  797  (7th  Cir.  1981), cited by
Consol.

     Consol argues that unsubstantiated assertions that a bleeder
system is inadequate are insufficient to support a finding of
a violation.  Beckley Coal Mining Co. v. Secretary of Labor,
3  FMSHRC 2593 (November 1981).  Relying on several Commission
decisions  dealing  with  comparable  provisions of the former
ventilation regulations, Consol asserts that a bleeder system
is considered adequate if air is moving  away from the working
area, through the gob, into the bleeder and out to a return.
If these ventilation facts are established, Consol asserts that
a bleeder system will be considered in compliance, even though
high levels of methane are located in the gob itself.  Itman
Coal Co., 2 FMSHRC 1986 (July 1980); Island Creek Coal Co.,
15 FMSHRC 339  (March  1993);  V-P  Mining Co., 15 FMSHRC 1531
(August 1993).  Consol concludes that these cases make clear
that  the  test for whether a bleeder system  is  adequate  is
whether air  is  moving  through the gob and into the bleeder,
and whether methane is being  diluted  as  it travels from the
gob, through the bleeders, and into a return.

     Consol emphasizes the fact that it was not cited  for any
violation of its mine ventilation  plan,  or  for  failing  to
construct regulators in a manner preferred by MSHA.  Under the
circumstances,   Consol   concludes   that   MSHA's  arguments
regarding  whether  it  had  air  flowing  in  the appropriate
directions  in  various entries on the section, whether  drill
holes can be used  as regulators, and whether such drill holes
are "non-combustible"  are irrelevant to determining liability
in this case, except to the extent, if any, they relate to the
adequacy of bleeder system ventilation on the 2-l/2 section.

     Consol maintains that the  cited  section  was  "one  well 
ventilated section," typically intaking between 50,000 and 57,000
cfm of air.  Consol points out that methane  was  rarely  found
on  the  section, and, when found, concentrations were usually
well below  one  percent,  with  methane readings of .1 and .2
percent recorded in the Preshift/Onshift Daily Report book for
December 28 and 29, 1992, and well within the range of methane
readings   that   former  assistant  superintendent   Hrovatic
testified were found on the section.

     In response to Mr. Wirth's belief that the presence of even
minimal methane, and the  occurrence of  a gas-off on a section
which typically had no methane problems,  should  have alerted
management  that  methane  was  accumulating  in  the gob  and
backing  up onto the section, Consol relies on the conclusions
by the miners  and  supervisors  who investigated the cause of
the gas-offs that the machine had hit a pocket of methane, the
absence of methane at the gob line  across  the entire section
when  examined by Mr. Crutchfield, and the appearance  of  the
gob line curtains demonstrating that positive pressure existed
into the gob.

     Consol emphasizes several deficiencies in MSHA's theories
that the bleeder ventilation was insufficient at the time of
the ignition.   Consol  points  out  that  Mr.  Wirth  did not
dispute  the fact that 16,000 to 17,000 cfm of air was flowing
over the mining machine into the gob at the No. 5 entry at the
time of the ignition, and he failed to take any smoke tests to 
support his conjecture  that  the  air would skirt the edge of
the gob because of the manner in which the  bleeder  was  set up. 
Consol further concludes that Mr. Wirth's own testimony established
that air was entering the gob  at numerous  points, and  some of
it was sweeping to the left and  entering  the  bleeder system
through the two left regulators, while other air swept to the back
of the gob entering the bleeder system and right returns through
the  drill  holes.   Finally, Consol points out that  none  of
MSHA's witnesses offered an opinion as to what quantity of air
is necessary to "adequately"  ventilate  a  gob,  and  Mr. Uhl
stated that no regulation exists specifying any particular air
quantity.

     With regard to the alleged failure to perform adequate weekly
examinations   of   the   bleeder   system  to  determine  the
effectiveness of the system, Consol asserts  that  in order to
prove a violation, MSHA must establish that Consol failed to
take methane and oxygen measurements and air direction tests
at  "locations  approved  in  the  ventilation  plan."  Consol
concludes that MSHA has not met its burden, since  the prepon-
derance  of  the  evidence established that the locations  for
methane and oxygen measurements were approved in the venti-
lation plan in lieu  of  traveling  the  bleeder, the required
measurements and tests were conducted not  only weekly, but at
least  daily and, if necessary, more frequently  at  locations
approved in the ventilation plan.

     In response to Mr. Wirth's assertion that Consol failed to
conduct weekly examinations that  could have detected the pre-
ignition  body of methane that flowed  from  the  gob,  Consol
points out  that Mr. Wirth admitted that he never reviewed the
weekly pre-shift or on-shift books before determining that the
alleged methane  body  could  have  been detected through such
examinations,  but  instead  supposedly   relied  upon  verbal
reports by unidentified others that the examinations  were not
performed  properly.   Consol  concludes  that  had  Mr. Wirth
consulted  the  examination books, he would have learned  that
excessive levels  of  methane  had  not  been  detected on the
section in the days or weeks preceding the ignition.

     Consol asserts that the real dispute in this matter
centers on an interpretation of the requirement in 30 C.F.R.
 75.364(a)(2)(iii) that bleeder systems be traveled weekly in
their  entirety  "or to locations approved in the  ventilation
plan where measurements  of  methane and oxygen concentrations
and a test to determine if the  air  is  moving  in its proper
direction cab be made."  Consol contends that this  regulatory
option  allows  the required tests to be made at MSHA approved
bleeder evaluation points (BEPS) that are typically designated
when travel through  a bleeder entry would subject an examiner
to hazards caused by deteriorating roof and ground conditions.

     Consol states that the allegation by Mr. Wirth and Mr. Uhl
that the bleeder evaluation was inadequate was  based  in part
on the inaccessibility of the drill hole regulator and the two
left  side  regulators,  and  Consol's  ability  to  take  the
required  methane and air readings at those locations.  Consol
concludes that  based  on  a  ventilation  map notion stating,
"[t]his area can be examined," MSHA assumed  that at least the
bleeder  drill  hole regulator was required to be  accessible,
despite testimony by Mr. Walls that the  notation  was one of
convenience placed on the map to avoid the necessity of filing
a cut-through plan.

     Consol argues that MSHA offered  conflicting testimony as
to whether  regulators  are  required to be accessible. Consol
points   out  that  Mr.  Walls  stated  that  regulators   not
designated  as  BEP's are not required to be accessible, while
Mr. Wirth testified that a specific regulation  requires the 
operator to travel to regulators.  However, Mr. Wirth  neither 
cited any such regulation, nor indicated that Consol had been 
cited for violating the alleged specific requirement.  Consol 
further  points  out that  MSHA's  argument  that  the bleeder
system could not be adequately  evaluated  on  December  29,
1992,   unless  the regulators were accessible, is called into
doubt by Mr. Wirth, who  testified that he was able to develop 
an effective  and reliable ventilation survey  for the section,
notwithstanding his inability to access the left regulators.

     In response to MSHA's contention  that Consol invalidated 
the bleeder evaluation methane approved by  Mr. Walls  when it
deviated from the ventilation plan approved mining sequence by
first driving to the left, rather than straight to the back of
the  section,  Consol maintains that an approved  and  adopted
plan must provide  it  with  notice as to what is required for
compliance.  Based on all of the  testimony,  Consol concludes
that   Mr.  Wyatt  and  Mr.  Crutchfield  had  absolutely   no
indication  that  Mr.  Walls was requiring that the section be
driven first directly to  the  back,  that driving to the left
first would invalidate the use of cross-sectional readings for
bleeder evaluation, or that BEP-10 was  not the designated BEP
for the section.

     Consol asserts that both Mr. Walls and Mr. Wyatt relied on
the ventilation map markings as a  means of understanding  the
ventilation plan requirements, and that  Mr.  Walls  initially
testified  that  markings  on the face of the ventilation  map
indicated to him that cross-sectional readings were to be used
as the approved bleeder evaluation method, and that air on
the  section must pass through  BEP-10  to  get  to  the  fan.
Though  Mr. Walls later contradicted himself, arguing that air
from the  section did not directly pass through BEP-10, Consol
concludes  that  his  original  testimony  lends  support  and
credence to the argument of Mr. Wyatt and Mr. Crutchfield that
their under-standing  was  that  the  bleeder system was to be
evaluated  by taking cross-sectional readings  and  conducting
the required measurements and tests at BEP-10.  Consol further
concludes that its interpretation of the MSHA approved ventilation 
map and plan as permitting the use of cross-sectional readings and
evaluations  at  BEP-10 was not only reasonable, but supported
by Mr. Wyatt's past dealings with Mr. Walls and MSHA.

                       Findings and Conclusions

                Fact of Violation - Order No. 2724034

     Consol is  charged  with  a violation of mandatory safety
standard  30  C.F.R.  75.334(b)(1),  because  of  its  alleged
failure to provide an adequate bleeder system for the cited 2-
1/2 section on  December  29,  1992.   The order, on its face,
states that the bleeder system did not control the air passing
through the worked-out area to continuously  dilute  and  move
away methane air-mixtures from the active workings and into  a
return  air  course.   MSHA  has  the  burden of proving these
allegations  by  a  prepon-derance  of the credible  evidence.
Section 75.334(b)(1) provides as follows:

     During the pillar recovery a bleeder system
     shall be used to control the air passing through
     the area and to continuously dilute and move
     methane-air mixtures and other gases, dusts, and
     fumes from the worked-out area away from active
     workings and into a return air course or to the
     surface of the mine.

     As noted earlier, the event which resulted in these penalty
proceedings occurred on December 29, 1992, nearly three  years
ago.   Following  a  rather  extensive  accident investigation
which began the day after the incident, and continued into January
and February, 1993, MSHA concluded that the explosion occurred
as a result of methane accumulations in the gob area of the
2-1/2 section due  to an inadequate bleeder system and manage-
ment's failure to properly  examine  the  bleeder to determine
its effectiveness.

     In the  course  of the hearing, the parties went to great
lengths in examining the cause and effect of the "ignition" or
"explosion."   MSHA believes  that  the  "explosion"  occurred
after  an explosive  body  of  methane  that  was  allowed  to
accumulate  in  the  gob was ignited during a roof fall in the
gob.  Consol believes that the "ignition" did not originate in
the  gob,  and  that  it  was  caused  by  a  spontaneous  and
unpredictable outburst from  a  sandstone  roof crack that had
suddenly developed in the roof area where the continuous miner
was mining immediately before the incident.

     After careful review and consideration of the entire record
in these proceedings, I cannot conclude that MSHA or Consol has,
with   any   reasonable   degree   of  evidentiary  certainty,
established the cause of the ignition  or  explosion.   In  my
view,  both  parties  presented speculative causation theories
based on after-the-fact  "best guesstimates," assumptions, and
opinions  based  on  informa-tion  that  I  find  conjectural,
contradictory, or unreliable.   Under the circumstances, I can
only conclude that the cause of the accident remains unknown.

     MSHA Inspector Frank Walls confirmed that he has no formal
college  or  engineering  training,  but  nonetheless has been
involved  with  the  review  and approval of mine  ventilation
plans  since  1990,  and was directly  involved  in  the  plan
approval process for the  cited section.  The testimony by Mr.
Walls is primarily directed  to  the  plan provisions.  He was
not involved in the accident investigation  or the issuance of
the violations, and he could not comment on whether or not the
section  bleeder  system  was  adequate.  With regard  to  the
violation, he believed it was issued  because  the  additional
regulators that were installed were inaccessible and  did  not
provide a means for evaluating the gob area.

     Although  Mr.  Walls believed that  accessible additional 
regulators in the gob  area  would  provide  a better means of
evaluating   the  overall  ventilation,  he  agreed  that  the
installation  of   any   projected  ventilation  controls  are
discretionary and not mandatory,  and  that  Consol could have
installed them "as needed."  With regard to the  accessibility
of the additional regulators that were on the section  at  the
time  of  the  ignition,  Mr.  Walls  confirmed that he had no
knowledge  as to whether they were in fact  accessible.   With
respect to the  map  notation  indicating  that the drill hole
regulator was accessible, I am convinced that the notation was
made as a matter of convenience to avoid  undue  delay in  the 
processing of  the  supplemental  ventilation  plan  and  that  
Mr.  Walls was aware that  this was  the  case.  Further, with 
respect to any conversations that may have taken place  between 
Mr.  Walls   and  mine  officials  during  the ventilation plan 
approval process,  MSHA  suggests  that  they  were part of the
understanding as to  how  the section would  be developed  and  
ventilated  (Tr.  237). However,  Mr. Walls testified that any
such discussions, not incorporated as part of the approved
plan are not controlling (Tr. 11).

     Retired  section foreman  Billy Bandy, who  was called by
MSHA as a witness, and who was the foreman at the time of  the
ignition,  testified  that his on-shift examination included a
determination  as  to  whether   the   bleeder  was  operating
properly, and he was of the opinion that the 17,000 cfm of air
going over the mining machine and into the  gob,  and  his air
checks   and   observations   of   air  pressure  against  the
ventilation curtains, indicated to him  that  the  bleeder was
operating properly and that there was good positive  air  flow
across  the gob.  Mr. Bandy's testimony regarding the air flow
into the gob stands unrebutted.

     MSHA Inspector  Donald White, whose participation in the 
post-ignition accident investigation was limited to a rock-dust
survey,  confirmed  that he had no input into the issuance  of
the violations.  The  record  reflects  that  he collected his
samples on January 4-5, 1993, and he was of the  opinion  that
samples  taken immediately prior to or close to the day of the
ignition would  better indicate the conditions that existed on
the day of the ignition,  as  opposed  to samples taken six or
seven days later, and that an ignition or  an  explosion would
have some effect on his sample results.

     MSHA principal engineer Clete R. Stephan, who was qualified
and  accepted  as  an  expert  in  explosions  and  mine  fires,
tendered  opinion  testimony concerning the probable cause and
effect  of  the  explosion.   With  regard  to  Mr.  Stephan's
discussions concerning  the  "Extent of Flame Forces," at page
25 of MSHA's Accident Investigation Report, I take note of his
statement that part of  the  information  in  support  for  his 
conclusions  "was gathered during the underground investigation 
from discussions with persons who are knowledgeable of the facts 
surrounding the  explosions," and from "reports on the condition
of the surviving victims after the explosion." However, during 
the hearing, Mr. Stephan testified that he was not aware of any 
eye witness testimony  prior  to  writing his  report, that he
did  not interview any of the miner  eye  witnesses  who  were
on  the section  at  the  time  of  the explosion, and that
he had not reviewed Mr. Dean's statement  to  MSHA or State 
investigators  with respect to what he saw when the ignition
occurred.

     Mr. Stephan further confirmed that he was in the mine only 
one time on January 4, 1993, for less than one shift. With regard
to any opinion on his part as to whether  the  bleeder  system
was adequate, MSHA's counsel stated that Mr. Stephan was not a
ventilation expert and that such an opinion was beyond his 
expertise (see Mr. Stephan's previously cited testimony
(Tr. 214-215)).

     MSHA  mining  engineer  Gary Wirth, who was accepted as a
ventilation  expert, testified that he was not involved in the
review  or  drafting   of   the  violations  issued  in  these
proceedings, that he was "somewhat"  familiar  with  this case
(Tr. 182), and that he was "in general" able to render an opinion
with regard to the  gob air flow that existed on the day of the
ignition, and that he had sufficient information "in general"
on  which to base that opinion (Tr. 169).   His  testimony  is
based on a three-day post-ignition ventilation survey that was
made on the section on January 4, 5, and 26, 1993. After careful
scrutiny of Mr. Wirth's testimony, I have serious reservations
and  doubts  concerning   the   accuracy,   consistency,   and
credibility  of the information he relied on in support of his
opinions and conclusions  concerning  the  inadequacy  of  the
bleeder, and my reasons in this regard follow.

     Mr. Wirth stated that the intent of his January 4 and 5, 
1993, ventilation survey was to evaluate the section as it was
at  the  time  of the December 29, 1992, ignition, and that an
"attempt" had been  made  to  restore  the  section to is pre-
ignition condition.  However, he confirmed that he was advised
prior  to  going underground that the section conditions  were
not the same  when  the  survey  was  made  and  that a return
regulator  was blown out and some of the right side  stoppings
were damaged  and  leaking.   Although  Mr. Wirth subsequently
took  additional air readings on January 26,  1993,  he  still
relied  on his January 4 and 5, 1993, survey information based
on conditions  that  were different from those that existed on
the day of the ignition.

     I take note of the fact that Appendix G to MSHA's accident
report  is  a  ventilation schematic diagram that  is  labeled
Ventilation  Schematic  Immediately  Prior  to  Explosion  and
Locations of Equipment, and the report at page 14, authored by
Mr. Wirth states  that  the  schematic  "is a face-ventilation
diagram  showing  the  face  ventilation at the  time  of  the
explosion,"   followed   by  a  discussion   and   conclusions
concerning the ventilation  based  on  that diagram.  Although
Mr. Wirth denied that his diagram was at the foundation of his
opinion  concerning  the  adequacy of the bleeder  system,  he
acknowledged  that he was aware  of  the  conflicting  hearing
testimony of the  miner  crew  with respect to the accuracy of
the information on the diagram.

     Although Mr. Wirth was of the opinion that no reasonably
prudent mining person would have used cross-section readings
to evaluate the bleeder system on December 29, 1992, the
MSHA-approved supplemental  plan  of April 21, 1992, permitted
cross-sectional readings.  When asked if this were true,
Mr.  Wirth  stated that he was not familiar  with  the  entire
ventilation plan and could not state whether the plan allowed
or prohibited  cross-sectional readings at that time.  He also
acknowledged that he did not review the plan in formulating
his opinion (Tr. 137-138).

     In its post-hearing  brief, at page 45, MSHA asserts that 
mine superintendent Wyatt did no  seriously dispute that  the
bleeder system on December  29,  1992,  was  unacceptable (Tr.
117).  I have reviewed Mr. Wyatt's testimony in context during
his cross-examination (Tr, 112-117) and find that it is not a
clear-cut admission as suggested by MSHA.  In  fact, Mr. Wyatt
explained  that  no  one  has  convinced him that the  bleeder
system was inadequate, and he believed,  and  still  believes,
that  the  bleeder was adequate, notwithstanding 2,500 cfm  of
air  passing   through  the  regulator.   Further,  Mr.  Wyatt
clarified his response  to the question posed, and stated that
he would not accept 2,600 cfm of air for that  entire panel or
for  the  entire section  within  the  "hack"  lines shown on 
the mine map (Tr. 113, 117).

     Mr. Wirth testified that the adequacy of a bleeder system
is based on several ventilation components, and not solely on
the amount of air entering the  gob  area.  He stated that his
survey  was intended to encompass the air  flow  entering  and
leaving the section.  However, he confirmed that because of
the inaccessibility  of  several gob exit points, he could not
conclusively determine where all of the air flow was going,
or the exact amount of air exiting the gob.  Further, although
anemometer and pitot tube  readings  were  made  at  the drill
holes, the anemometer readings are not included as part of the
accident  report.  He also confirmed that he took a series  of
bottle samples  on  January  5  to  determine  the methane and
oxygen content of the air exiting the gob area,  but  did  not
believe  the test results are included in the accident report.
He also believed  that one to two percent methane was detected
in the samples, and  that this would indicate that methane was
exiting the gob through the drill holes.

     Although Mr. Wirth denied that his inability to reach the 
left side regulators impacted  on  his evaluation of the drill 
hole regulator, he acknowledged his  prior deposition statement
to accident  investigation  supervisor  Castenon  that  it  was
impossible to completely evaluate the section gob area because
he  could not reach those regulators, and he conceded that  it
was not possible for him to perform and develop a complete air
quantity balance of the  bleeder  system.  This  contradictory
and conflicting testi-mony casts doubts on the accuracy and 
credibility of Mr. Wirth's survey, and its relevance  to  the 
alleged inadequate bleeder system.

     Although  Mr. Wirth was of the opinion that high methane
readings "probably" would have occurred at the drill holes on
the day of the ignition, and that the presence of high methane
at the drill holes would have been discoverable  by the weekly
examinations, he confirmed that he never reviewed  the section
weekly  examination  books or the pre-shift or on-shift  books
for the days preceding  the  ignition to determine whether air
readings were taken at the intake  because  he did not believe
they were relevant.  Since Mr. Wirth acknowledge  that  intake
air  is  a component of a bleeder system, I fail to understand
why such air  readings would not be relevant to a survey taken
to evaluate such a system.

     Mr. Wirth's  opinion  that  the  requirements of  section 
75.334(b) were not being met on December 29, 1993, was based on
his belief  that the limited air quantity and insufficient air
velocity in the gob area failed to dilute the methane that had
migrated to the high right side gob area.  He further believed
that the absence of  methane  on  the  section  in  the  past,
coupled  with  the  one  percent  methane reading in the No. 5
return, and the gas-off of the miner machine in the No. 4 push
with  the  methane  monitor set at 2.5  percent,  indicated  a
problem and an ineffective bleeder system.

     With regard to the one  percent methane found by Mr. Bandy 
in the return, Mr. Wirth agreed that  the air flow pattern was
sweep-ing the gob gas and reducing it to one percent  with the
return  air  leaving the mine, and that the remaining air  was
exiting through  the left side regulators.  With regard to the
machine gas-off, Mr.  Wirth conceded that the air sweeping the
gob area diluted and dissipated  the  methane  that caused the
gas-off.   Although  he  was of the initial opinion  that  the
machine gas-off was not the  result  of a methane "pocket," he
later testified that assuming the one  percent  found  by  Mr.
bandy  occurred with the machine gas-off, a release of methane
was possible.   He agreed that the return was doing the job of
sweeping and diluting  the  return  air  away from the working
face.

     With  regard to his "body of methane" theory, Mr. Wirth
initially could not state whether it reached the No. 5 entry,
but in fact later expressed his belief that it did not appear
in that entry because there was sufficient ventilation at that
location.   He  also  agreed  that the  concentration  of  any
methane body is indeterminable  and  could vary within seconds
in different mine areas.  I believe this  lends  some credence
to  Consol's  theory of a sudden release of methane  from  the
roof strata, rather  than  a  gob  build-up  resulting from an
ineffective bleeder system.

     Even  though  he  believed  that  the  bleeder system was
inadequate, Mr. Wirth  acknowledged  that  based on his bottle
sampling  on  January 5, 1993, the methane percentage  exiting
one of the drill  holes  was less than it probably was when it
entered the gob, and that  this  would  indicate  that  it was
being diluted and mixing with the air before exiting into  the
bleeder  return  air  course.  With regard to his opinion that
changed air flow patterns  moved  "the  body  of methane" back
into the gob area, Mr. Wirth acknowledged that his opinion was 
"speculative," but also   stated  it  was based on ventilation
engineering knowledge." I cannot reconcile  this  inconsistent
and contradictory testimony, nor can I accept it as reasonable
evidentiary support for any conclusion  that there was in fact
a lack of sufficient air in the gob to dilute and carry away
methane  through  the return. Indeed, the evidence, including 
Mr.  Wirth's  testimony, establishes otherwise.

     MSHA Inspector Uhl confirmed that he has  a  high  school
education, is not a mining engineer, has no degree in anything
related to mining or mine ventilation, and his past experience
in the  mining  industry  does  not  include  ventilation plan
submissions to MSHA.  Mr. Uhl testified that the  only injured
miner  he  interviewed  was  Mr. Dean, and the record reflects
that Mr. Dean was not called as a witness in this case by MSHA
because  his  credibility  was  in   doubt.  Mr.  Uhl  further
testified  that  his  conclusion that an  explosive  range  of
methane was present in the gob area was based on the fact that
"it was obviously there" since "an explosion occurred." However,
as  correctly argued by  Consol  in  its  post-hearing brief,
the occurrence of  an acci-dent  or an injury  does  not  ipso 
factor  establish  a violation, or a violative  condition, 
particularly in the absence of any reliable evidence establishing
the cause of the accident with any reasonable degree of certainty.
Consol's  expert witness Mitchell  was also of the opinion that 
the occurrence  of  any ignition does not establish a poorly or 
improperly ventilated gob area (Tr. 230).

     Mr. Uhl believed that the bleeder system began to fail 
earlier than December 29, 1992, and he confirmed that even
though MSHA was aware of violations of the ventilation plan,
no violations  were  issued because, as stated by Mr. Uhl, "we
elected not to because  of  a  grace  period  and  some  other
confusion"  (Tr.  212).   It seems to me that if MSHA believed
that Consol was in violation  of  its approved plan, it should
have cited the particular violative  conditions,  rather  than
attempting  to  establish an inadequate bleeder system through
post-ignition   investigative   assumptions,   theories,   and
conclusions   based    on    conjecture,    speculation,   and
contradictory information and testimony that I find lacking in
credible evidentiary support.

     Mr.  Uhl  testified  that one of the reasons he  believed 
the bleeder system was inadequate was because Consol failed to
follow  the  initial  mining  projections,  particularly  with
respect  to  the projected  regulators.   However,  Mr.  Walls
testified that  projections  are not enforceable as violations
until they are specifically incorporated  as part of the MSHA-
approved venti-lation plan (Tr. 209).  He also  confirmed that
Consol was free to  mine in any direction and sequence within 
the  "pink  hash marks" shown on the mine map.

     Although  Mr.  Uhl  believed  that  the  bleeder system was
no longer effective when Consol deviated from its projections and
"lost  access"  to  the two previously established  regulators
when it began pillaring  the  section, he admitted that he was
aware of no evidence that ventilation evaluations  ere not being
made  while  mining  was  conducted  to  the  left side of the
section because he did not recall looking into  that  and  did
not consider or evaluate this activity.  He indicated that the
scope  of  his  investigation  consisted  of  looking  "at the
overall  picture  as to what occurred here and what led up  to
it" (Tr. 258).  Mr. Uhl later testified that the area mined to
the left was being  evaluated  by  cross-sectional ventilation
readings, and once the regulators became  inaccessible, cross-
sectional  ventilation  readings could be made.   I  find  Mr.
Uhl's testimony to be confusing and contradictory.  On the one
hand, he believed that the bleeder was no longer effective when
access to the regulators  was  lost,  and on the other hand, he
stated that notwithstanding the loss of access to the regulators,
cross-sectional ventilation evaluations would be permissible.
As a matter of fact, he confirmed that full and partial cross-
sectional ventilation readings were made on the section, but
he did not believe they were relevant to any evaluation of the
bleeder.

     I am  convinced that MSHA's post-ignition investigatory
conclusion that the bleeder system was inadequate was based on
two principal factors, namely, the occurrence of the ignition,
and  the  assumption  that  there  was  insufficient air  flow
through the drill hole regulator to dilute and render harmless
the  "body of methane" that MSHA assumed was  accumulating  in
the gob area.

     As noted earlier, the occurrence of the ignition is not,
in of  itself,  evidentiary  proof  of  an  inadequate bleeder
system.  With regard to the amount of air that  may  have been
passing   through  the  regulator  immediately  prior  to  the
ignition, Mr. Walls testified  that  there was no way of 
pinpointing the amount  of  air  going  out of the  regulator 
(Tr.  55).   He confirmed  that  any discussions  concerning 
the  ventilation requirements are not  binding  unless  reduced 
to writing and incorporated as part of the approved ventilation
plan.  I find nothing in any of the ventilation plans approved 
by MSHA requiring 10,000 cfm of air through the drill hole 
regulator, and Mr. Walls  confirmed that "we did not write that
on anything," and that none of the relevant ventilation plans
contain any such notation (Tr. 61). Mr. Uhl confirmed that 
there is no regulatory requirement for any specific amount of
air through a regulator.

     Mr.  Walls further clarified his testimony concerning the
requirement  for a minimum of 9,000 cfm of air at  the  pillar
intake. He explained that this is the amount of air going into
the gob area as  a whole, and not what is required through the
regulator (Tr. 58).   Further,  MSHA's  counsel confirmed that
although there is no regulatory requirement  for  any specific
amount of air passing through the regulator, Consol  would  be
held  "to  a standard of adequacy ventilating the system" (Tr.
60). When  asked if  the reported  2,360 cfm's air exiting the
regulator  was  relevant to that key issue, counsel responded,
"we will let the experts discuss that" (Tr. 60).

     Mr. Wirth's post-accident air measurements of January 5, 
1993, at the drill hole  regulator  showed  2,037 cfm of air 
passing through  the  holes,  and  re-measurements  made  at 
Consol's  request  on January 27, 1993,  showed  just  over  
2,000  cfm. Using these  readings,  Mr.  Wirth  concluded 
that at no time prior to the explosion was there more than 
2,828  cfm  of  air going through the drill holes.

     Mr.  Hrovatic testified that he measured 5,000 to 6,000 cfm 
of air passing  through the regulator when the holes were drilled
at  1-l/2 inch  diameters,  and  he  described  the  measuring
instru-ment  as  a  standard,  three  or  four inch anemometer
larger than the measured holes.  After the holes were enlarged
to three inches, Mr. Hrovatic calculated 6,000  to 7,000 cfm's
of  air  passing  through  the  holes,  using  the  same  type
anemometer  and  following  the  same  procedures as his prior
calculations.  Mr. Wyatt testi-fied credibly that Mr. Hrovatic
informed him that 6,000 cfm of air was going through the 1-1/2
inch diameter holes, and when five of the  holes were enlarged
to three inches, 6,000 to 8,000 cfm was passing through the 
regulator (Tr. 123). Although  Mr.  Wirth believed that 
Mr. Hrovatic's  use  of  an  anemometer was improper,  I  note
that  he  too  used such an instrument in making his survey.

     Mr. Uhl believed that with only  2,000 cfm of air passing
through  the  regulator,  a  methane-air mixture  was  exiting
through the regulator holes and  into  the  return air course.
Mr.  Wirth believed that methane was exiting the  gob  through
the regulator, and, as noted earlier, he acknowledged that the
air flow  pattern  was sweeping the gob gas and reducing it to
one percent and diluting it with the air leaving the mine, and
that the air sweeping the gob was diluting and dissipating the
methane that caused  the  miner  machine  to gas-off.  This is
precisely what a bleeder system is designed to do, as required
by   cited   section   75.334(b)(1).    Under  all  of   these
circumstances, I remain unconvinced that  the  amount  of  air
that  MSHA assumed was passing through the regulator, a factor
that is  but  one  component  of  the  total  bleeder  system,
supports  a  conclusion  that  the  bleeder was inadequate and
failed  to  provide a means for controlling  the  air  passing
through the cited  gob  area  to  continuously dilute and move
away methane-air mixtures from the  active workings and into a
return air course.  Accordingly, I conclude and find that MSHA
has failed to establish a violation of  section  75.334(b)(1),
and the contested order IS VACATED.

                 Fact of Violation - Order No. 274035

     Consol is  charged  with  a violation of mandatory safety
standard  30  C.F.R.  75.364(a)(2),  because  of  its  alleged
failure  to  perform adequate weekly examinations to determine
the  effectiveness   of  the  2-1/2  section  bleeder  system.
Section 75.364(a)(2) provides as follows:

          At least every 7 days, a certified person
     shall evaluate the effectiveness of bleeder systems
     used under  75.334(b) and (c) as follows:

          (i) Measurements of methane and oxygen
     concentrations and a test to determine if the
     air is moving in its proper direction shall be
     made where air enters the worked-out area.

          (ii) Measurements of methane and oxygen
     concentrations and a test to determine if the
     air is moving in its proper direction shall be
     made immediately before the air enters a return
     split of air.

          (iii) At least once each week, bleeder entries
     used as a part of a bleeder system under  75.334,
     shall be traveled in their entirety, or to locations
     approved in the ventilation plan where measurements
     of methane and oxygen concentrations and a test to
     determine if the air is moving in its proper direction
     can be made.

     The initial mine ventilation plan approved by MSHA pursuant to
30 C.F.R. 75.316, on September 15, 1989, prior to the development 
of the 2-1/2 section,  provided  for  the  evaluation  of
bleeders when travel to those areas was unsafe.  (Item 14,
at page 4 of the plan, Exhibit G-39).  Under this provision,
a bleeder evaluation was required "at least once each week,"
and the evaluation method was left to the discretion of Consol
pursuant  to  section 75.316-2(f)(2), which simply required an
"adequate" evaluation.

     The first supplement to the approved ventilation plan was
submitted  to  Mr. Walls on March 16, 1992, by Consol's mining
engineer Frank Underwood,  and  it  included a diagram of pro-
jections  for the 2-1/2 panel, which contains  a  hand-written
notation indicating  that  "upon  retreat  mining  the bleeder
system  will be evaluated by the difference in the intake  and
return  readings   on  the  section."   The  plan  supplement,
including this cross-sectional  bleeder evaluation method, was
approved by MSHA on April 21, 1992 (Exhibit G-40).

     A subsequent ventilation plan supplement  was submitted to
Mr. Walls  by  Mr. Underwood on September 1, 1992, covering the
pillar line and bleeder controls for the 2-1/2 panel.  A mine
map was included  as  part  of the submission, and it contains
the  notation,  "[t]his  area  can   be   examined,"   at  the
approximate location of the drill hole regulator (Exhibits  G-
41 and R-28).

     It would appear to me from the foregoing plan approvals
that  Consol  was permitted to generally conduct an "adequate"
evaluation of its bleeders, and this was to be done at least
once a week.  During  retreat  mining, Consol was permitted to
evaluate the bleeder system by cross-sectional  readings.  The
subsequent  approved  supplemental  plan, which contained  the
mine map notation indicating that the  bleeder  area  could be
examined,  did  not  specifically  revoke  or otherwise affect
MSHA's  prior  approval  of  cross-sectional  readings  as  an
adequate method for evaluating the bleeder.  In  short, it was
still in effect on December 29, 1992.

     The essence of the alleged violation is found in subsection
2(iii)   of   section   75.364(a),   which   requires   weekly
examinations  of the effectiveness  of  a  bleeder  system  by
traveling to a bleeder entry used as part of a bleeder system,
or to other locations  approved  in  the ventilation plan, and
making measure-ments of the methane and  oxygen concentrations
and  testing  to determine whether the air is  moving  in  its
proper  direction.    My  interpretation  of  this  evaluation
requirement is that Consol  had  two  option  for insuring the
effectiveness of the bleeder regulator in question.  The first
option  was  to  travel  to  the regulator area and  make  the
required tests.  If this could not be done, Consol could make
the tests at another location approved in the ventilation plan.

     Mr. Wirth, who confirmed that the location of BEP-10 was
never clear to him, and that he was  not sure that he ever traveled
to that area, believed that a violation  occurred  because  no
one  was  traveling to the inaccessible regulators to test for
methane, air, and air direction.

     I find MSHA's  testimony  concerning  the accessibility of
the cited regulator to be confusing and contradictory.  Mr. Wirth
testified  that  the  regulator  was  required  to be examined
weekly "by law," but this was not done because it was inaccessible
(Tr.  78-79).  However, Mr. Walls confirmed that  a  regulator
that is  not  designated as a BEP point was not required to be
acces-sible (Tr.  48-49).  Since the regulator in question was
not a designated BEP  point,  I  conclude  that Consol was not
obliged to keep it accessible as long as it provided an alter-
nate  plan  approved location where methane and  air  readings
could be made.   Consol asserts that this location was BEP-10.
Mr. Uhl testified that once the regulator became inaccessible,
cross-sectional readings to evaluate the bleeder could be used
(Tr. 276).  This lends  support  to  Consol's  assertion  that
cross-sectional readings, coupled with the recorded BEP-10 air
and methane readings, complied with the cited standard.

     In  view  of the MSHA approved cross-sectional readings
evaluation method during retreat mining, it would appear to
me that this  evaluation method was still available to Consol,
notwithstanding the notation that the bleeder was accessible
when in fact it could not be traveled.

     MSHA concedes that Consol was not prohibited from mining
out of sequence within the established parameters of the
2-1/2 section,  and agrees that air readings were taken on the
section  and  at BEP-10.   MSHA  further  agrees  that  cross-
sectional readings  were  an effective means of evaluating the
bleeder regulator when the  section  was  initially developed.
The crux of MSHA's case is that once Consol deviated  from  its 
initial mining projections and installed additional regulators,
it could no longer rely on cross-sectional readings because
access to those regulators was lost when the area was mined
out, and there was no effective way of monitoring or evalu-
ating  the  air  ventilating  the  gob.   MSHA  also  disputes
Consol's  claim  that  BEP-10 was the bleeder evaluation point
for the section.

     Consol's pre-shift and on-shift daily inspection reports
for  the  2-1/2 section reflect  that  daily  inspections  for
hazardous conditions,  methane  in  the  working  places,  and
methane  in  the  returns were being made immediately prior to
December 29, 1992,  in the gob line, pillars, returns, intake,
and  haulage areas (Exhibit  G-46).   The  weekly  examination
reports of full sectional air and methane readings reflect air
readings  for  October,  air  readings  for  November, and air
readings in the left and right return entries for December, 1992
(Tr. G-47). The daily reports of examinations for hazardous 
conditions  and methane include notations for daily tests made 
at BEP 10 and other intake and return locations for the  period 
October through December 30, 1992 (Exhibit R-2).

     Mine  foreman  Crutchfield, a man with 27 years of underground
mining  experience,   testified   credibly   that   during   a
preliminary  meeting  with  Mr.  Walls  concerning the initial
mining projections  for the section, it was his understanding 
from  the  approved ventilation plan that cross-sectional air
readings on the section  could  be  used  to evaluate the drill 
hole regulator area, and that BEP-10 would  be  the  section 
evaluation point  (Tr. 67).

     With regard to the violation in question, Mr. Crutchfield
stated that the bleeder  system was evaluated by taking cross-
sectional readings, and visits to BEP-10 every 24 hours by the
fire boss to monitor any methane (Tr. 100-101).  He believed
that BEP-10 was the check point for the 2-1/2 panel (Tr. 135),
and he identified the weekly examination book records showing
the daily examinations of  BEP-10  (Tr. 140; Exhibit R-2).  He
further testified that the ventilation  plan print showing the
flow of air toward the direction of BEP-10, coupled with these
locations shown on the mine map, led him to conclude that BEP-
10  was  an  approved  checkpoint for evaluating  the  bleeder
system on the 2-1/2 section,  and  that  this was no different
from similar BEP locations in other mine areas (Tr. 147-148).

     Mine Superintendent Wyatt, a man with over  40 years of 
mining experience, including 18 years as a superintendent,
and a credible witness, confirmed that during the initial
meeting with Mr. Walls, the projected mining and evaluation
of the section was discussed.  Mr. Wyatt stated that once
retreat mining began, the regulator at the back of the section
was established to allow air from the gob to  pass through the
regulator  and  be  routed  into  the return to BEP-10.   Even
though air from other areas was routed  to  BEP-10,  Mr. Wyatt
was not concerned and believed that this was a safe method for
evaluating  the  2-1/2  section, and he confirmed that it  was
normal procedure to use a  bleeder  evaluation  point covering
different  mine  areas (Tr. 49-52).  He explained that  BEP-10
was monitored daily,  and  if there was an unusual rise in the
methane readings ,the working section would be monitored every
shift to determine if there  was  a problem.  He believed that
Mr.  Walls  was well aware of the section  ventilation  system
(Tr. 53-60).

     Mr. Walls confirmed his discussions with Mr. Wyatt and
Mr. Underwood  concerning  bleeder  evaluation  during retreat
mining.   Although  he  denied  that  BEP-10  was  an approved
bleeder  evaluation  point  for the section, Mr. Walls  agreed
that it was the evaluation point  for  air  coming  from other
mine areas through  the  same  drill  hole  regulator area where 
air  was routed into the return fan area and  out  the  mine 
(Tr. 215).  He agreed  that a ventilation plan sketch indicated 
that the air ventilating the gob area would be routed through 
the regulator and to BEP-10, which was located near the fan
drawing air from the section after it passed through the 
regulator (Tr. 230, 24).

     Mr. Walls testified that all of the aforementioned air from
the section routed to BEP-10, "has to go through BEP-10 to get
to the  fan,"  and he confirmed that once mining started, with
the regulator in  place,  "that  would  be the way it would be
evalu-ated."  Further, if the regulator was accessible, cross-
sectional readings could be combined with  the readings of the
air passing the regulator (Tr. 25, 225).  This  testimony,  in
my  view,  lends  support to Mr. Crutchfield's and Mr. Wyatt's
belief, which I find  reasonably  plausible and credible, that
cross-sectional  readings  and  the  daily   air  and  methane
evaluations  at  the BEP-10 location was an acceptable  method
for evaluating the cited bleeder.

     After careful review and consideration of all of the 
testimony and evidence with respect to this alleged violation,
I conclude and find  that  MSHA  has  failed to establish by a
preponderance of the credible evidence  that  Consol's  weekly
examinations  of  its  section  bleeder  system  was less than
adequate.  To the contrary, I conclude and find that Consol
was in substantial compliance with the requirements of the
cited standard by using cross-sectional readings and daily
monitoring  at  the  BEP-10  location  as a reasonably  proper
method   for  evaluating  the  cited  bleeder  in  question.
Accordingly, the contested order IS VACATED.

               Docket Nos. WEVA 94-379 and WEVA 94-380

     Mr. Crutchfield and Mr. Wyatt were only cited in these 
section 110(c)  proceedings   with   allegedly  "knowingly"  
violating mandatory safety standard 30 C.F.R. 75.334(b)(1), as 
stated in contested section 104(d)(1) Order  No.  2724034.  Since
I have vacated that order, the section 110(c) proceedings filed
against  these  respondents,  including  the   proposed  civil
penalty  assess-ments,  should be dismissed.  In this  regard,
even if I were to find a  violation  of  the cited standard, I
would  not  conclude  that  the  evidence  adduced   by   MSHA
established  a  "knowing"  violation by Mr. Crutchfield or Mr.
Wyatt, within the intent and  meaning of section 110(c) of the
Act.

                                ORDER

     In view of the foregoing findings and conclusions,
IT IS ORDERED as follows:

     1. Section 104(d)(1) "S&S" Order No. 2724034,
          March 3, 1993, 30 C.F.R. 75.334(b)(1), IS
          VACATED, and the proposed civil penalty
          assessment IS DENIED AND DISMISSED.

     2.   Section 104(d)(1) "S&S" Order No. 274035,
          March 3, 1993, 30 C.F.R. 75.354(a)(2), IS
          VACATED, and the proposed civil penalty
          assessment IS DENIED AND DISMISSED.

     3.   The proposed civil penalty assessments
          filed against the section 110(c) respondents,
          Robert G. Wyatt and Danny E. Crutchfield,
          ARE DENIED AND DISMISSED, and these proceedings
          ARE DISMISSED.

                              George A Koutras
                              Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)

David  J.  Hardy,  Esq., John Bonham, Esq., Jackson & Kelly,
1600  Laidley Tower,  P.O.  Box  553, Charleston, WV 25322
(Certified Mail)

Robert  B. Allen, Esq., King, Allen & Arnold, 1300  Bank  
One  Center,  707 Virginia Street, East, P.O. Box 3394,
Charleston, WV 25333-3394 (Certified Mail)

Ricklin  Brown,  Esq.,  Bowles, Rice, McDavid, Graff & Love,
16th   Floor   Commerce  Square   Lee Street, P.O. Box 1386,
Charleston, WV 25325-1386  (Certified  Mail)

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