<DOC>
[DOCID: f:l96-45m.wais]

 
AKZO NOBEL SALT, INC.
November 19, 1996
LAKE 96-45-RM

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          November 19, 1996

AKZO NOBEL SALT, INC.,        :  CONTEST PROCEEDINGS
               Contestant     :
          v.                  :  Docket No. LAKE 96-45-RM
                              :  Citation No. 4100787; 11/28/95
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :  Docket No. LAKE 96-65-RM
  ADMINISTRATION  (MSHA),     :  Citation No. 4546275; 1/25/96
               Respondent     :
                              :  Docket No. LAKE 96-66-RM
                              :  Citation No. 4546276; 1/25/96
                              :
                              :  Docket No. LAKE 96-80-RM
                              :  Citation No. 4546323; 1/30/96
                              :
                              :  Cleveland Mine
                              :  Mine I.D. No. 33-01994
                              :
                              :
SECRETARY OF LABOR            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. LAKE 96-125-M
               Petitioner     :  A. C. No. 33-01994-05659
          v.                  :
                              :  Cleveland Mine
AKZO NOBEL SALT INCORPORATED  :
               Respondent     :

                            DECISIONS

Appearances:  Edward H. Fitch IV, Esq., Office of the Solicitor,
              U.S. Dept. of Labor, Arlington, Virginia, for the
              Respondent/Petitioner;
              Mark N. Savit, Esq., Ruth L. Ramsey, Esq., Patton,
              Boggs & Blow, Washington, D.C., for the 
              Contestant/Respondent.

Before:  Judge Koutras

                   Statement of the Proceedings

     These consolidated proceedings concern proposals for assessment
of civil penalties filed by the Secretary  of Labor (MSHA), against
the respondent mine  operator   Akzo   Nobel  Salt  Inc.  (AKZO),
pursuant to section 110(a) of the Federal  Mine Safety and Health
Act of 1977, 30 U.S.C. 820(a), seeking civil  penalty  assessments
of $1,000, for alleged violations of mandatory reporting regulations
30 C.F.R. 50.10  and  50.20(a). (Civil  Penalty  Docket  No.  LAKE 
96-125-M,  and Contest Docket Nos. LAKE 96-65-RM and LAKE 96-80-RM).

     Contest Docket Nos. LAKE 96-45-RM and LAKE 96-66-RM  concern
contests filed by AKZO challenging the legality of two  section 
104(a)  non-"S&S" citations alleging violations  of  regulatory 
sections   50.10  and 57.11050(a).

     At  the request of the parties, a prehearing conference  was
held on the record to allow the parties to explore and address the 
issues, proposed stipulations, and the  filing  of documentary 
evidence, depositions, and briefs, for  submission  of  these 
matters for summary decisions.  I have considered  all  of the
oral   and  written  arguments  presented by the parties in the
course of my adjudication of these matters.

                              Issues

     The issues presented  in  these  cases  are  (1) whether the
conditions   or   practices  cited  by  the   MSHA inspectors 
constitute  violations  of  the  cited mandatory safety  and  
reporting standards and (2) the appropriate civil penalties to be
assessed for the alleged violations,  taking  into  account the
civil penalty assessment criteria found in section 110(i) of the
Act.  Additional issues raised  by the parties are  identified 
and  discussed in the course of these decisions.

          Applicable Statutory and Regulatory Provisions

     1.   The Federal Mine Safety and Health Act of
          1977; Pub. L. 95-164, 30 U.S.C.  801 et seq.

     2.   Section 110(i) of the Act, 30 U.S.C.  820(i).

     3. 30 C.F.R. 50.10, 50.20(a), and 57.11050(a).

     4. Commission Rules, 29, C.F.R.  2700.1 et seq.

                        Joint Stipulations

     The parties stipulated to the following:

     1.  The  Cleveland  Mine  was  opened in 1961, has  operated
     continuously  since  that  time,  and   it   is  within  the
     jurisdiction of the Mine Act.

     2. The presiding judge has jurisdiction to hear  and  decide
     these matters.

     3.   The   citations  were  properly  issued  by  authorized
     representatives of MSHA and were properly served on AKZO.

     4. The citations  were timely contested by AKZO, and no part
     100 post-inspection conferences were held.

     5. The parties agree that AKZO has sought this litigation to
     challenge  the  positions   of  MSHA  with  respect  to  the
     implementation of 30 C.F.R.  50.10 and 30 C.F.R.
      57.11050(a).

     6. The mine produces approximately  2.5 million tons of salt
     per  year, and the mined product (sodium  chloride  or  rock
     salt)  is  used  primarily  for  road  salt, animal feed and
     chemical  process additives.  Salt is non-flammable  and  is
     recommended material for use in extinguishing fires.

     7. Underground  employment  at the mine varies somewhat on a
     seasonal basis.  However, at  the  time  of incidents, total
     employment was approximately 174 on three  production shifts
     and three maintenance shifts.

     8. The mine is currently classified as a Category VI mine
     under the "gassy mine regulations."  30 C.F.R.  57.22003(a)(6).
     That categorization "applies to mines in which  the  presence of
     methane has not been established and are not included in another
     category or subcategory."  30 C.F.R.  57.22003(a)(6).

     9.   The  production  shaft  is approximately 1853 feet deep
     from the shaft collar to the sump,  and  it is approximately
     1763 feet from the shaft collar to the mine level.

     10.  The service shaft is approximately 1805  feet deep from
     the shaft collar to the sump, and is approximately 1765 feet
     from the shaft collar to the mine level.

     11.  The parties agreed to the technical descriptions of the
     production  and service hoists (not included herein,  but  a
     part of the record).

     12.  Salt is  extracted from the mine in a "room and pillar"
     formation, and  a  second,  lower  level is being developed.
     Three methods of salt extraction are currently being used in
     the mine.

     13.  The  following  type  of  combustible   and   flammable
     materials  are  used  or  stored for use in the mine: diesel
     fuel, hydraulic oil, greases,  small  quantities  of  paint,
     small  amount  of  paper  and wood, tires and fire resistant
     conveyer belting.  The quantities  of any of these materials
     underground  vary  significantly over  time.   However,  the
     underground  diesel fuel  storage  facility  has  a  maximum
     capacity  of  1,500   gallons.    Furthermore,  all  of  the
     flammable materials listed are stored in storage cabinets.

     14.  There are also various types of  explosives,  including
     ANFO  along  with boosters caps, detonators and primer  cord
     that are used and stored, in magazines, for use in the mine.
     The mine has also  experienced  misfires  on  occasion.  The
     mine has never been cited for any violation relating  to the
     mishandling of misfires.

     15.  There  have  been  two  fires  in  the  mine  that were
     reported  to MSHA pursuant to 30 C.F.R.  50.10.  The  first
     was in 1983  and  the  second in 1996.  The first involved a
     haulage truck while the second involved a lubrication truck.
     It  appears that both fires  apparently  were  caused  by  a
     diesel  fuel  line  leak, and they were extinguished by mine
     personnel.

     16.  AKZO maintains that due to the construction of the wire
     ropes used in the hoisting  equipment  at  the  mine,  it is
     necessary  that  the  hoist ropes be "shortened" or adjusted
     periodically so that they  are  tight  and  of equal length.
     This  must  be  done because, as the ropes are subjected  to
     load, they stretch  unequally.   Once the variance in length
     among  the ropes exceeds certain tolerances,  they  must  be
     adjusted  so that they are of equal length.  Notwithstanding
     the variance  among  the  lengths  of  individual ropes, the
     ropes must also be shortened if any of them exceed a certain
     maximum length.

     17.  AKZO  maintains  that  the process of  "shortening  the
     ropes" must be undertaken more frequently with regard to the
     production  hoist than with regard  to  the  service  hoist,
     because the ropes  on  the production hoist are subjected to
     greater loads and speeds  than  are the ropes on the service
     hoist.

     18.  AKZO  maintains  that  the frequency  with  which  this
     process must be undertaken decreases with the age of the

     ropes,  because  they stabilize  as  the  construction  gaps
     between the wires are squeezed out with time.

     19.  MSHA maintains that the aforementioned maintenance work
     is required as a result  of  the  wear  and  damage  to  the
     hoisting ropes which are caused by their use.

           The Planned Hoist Outage of November 9, 1995
                    (Docket No. LAKE 96-45-RM)

     20.  A  planned outage of the production hoist was conducted
     in order to "shorten" two of its four hoist ropes, in order,
     in  part,   to   test   AKZO's   understanding   of   MSHA's
     interpretations  of  the  applicability  of  the  standards.
     Although AKZO's notification to MSHA and the citation  state
     that  the  outage  occurred  at  approximately 11:56 p.m. on
     November 9, 1995, the hoist log indicates  that  the  outage
     occurred  at  approximately 12:56 p.m. on November 10, 1995.
     While no one can  explain definitively the disparity, it has
     been suggested that  the  hoisting  equipment  clock had not
     been changed for daylight saving time.  Counsel  agree  that
     this disparity is immaterial to the reporting issue because,
     in  either  case, the hoist was unavailable for use for more
     than 30 minutes.   According  to the hoist computer log, the
     hoist was put back into service  at approximately 1:46 a.m.,
     November 10, 1995.

     21.  This  hoist  incident was not immediately  reported  to
     MSHA, however a fax  was  received at the MSHA Newark Office
     at 8:34 a.m., on November 10, 1995.

     22.  On  November  15,  1995,  MSHA   inspector  Don  Foster
     conducted   interviews  with  both  management   and   labor
     personnel with  knowledge  of  the  planned  incident.  AKZO
     management  did not believe that the hoist could  have  been
     put back into  service  in  less  than  1  hour.   MSHA also
     received statements from two miners who worked on the  hoist
     which  indicated  that  they believed that, in an emergency,
     the  hoist  could  have  been   put  back  into  service  in
     approximately 40 minutes.

     23. During the shift on which these  events  occurred, there
     were  approximately  25  miners underground performing  work
     unrelated  to the maintenance  activity  at  the  production
     hoist.   This   work   consisted   entirely  of  maintenance
     activities on production equipment other than the hoist.  No
     salt  extraction  occurred  during the  shift  nor  did  any
     welding or cutting occur during the shift.

     24. On November 28, 1995, MSHA inspector Okey Reitter issued
     section 104(a) Citation No. 4100787 in respect to the

     event of November 9, 1995, citing a violation of 30 C.F.R.
      50.10.

     25. On November 6, 1995, Mark  Savit,  AKZO Counsel, wrote MSHA
     seeking  guidance  regarding the enforcement  of  30  C.F.R.  
     57.11050 (the "Savit letter").  (Index of Documents, Tab N).

     26. On December 8, 1995,  MSHA  Administrator  Vernon  Gomez
     respondent  to  Mr.  Savit's letter of November 6, 1995 (the
     "Gomez Response").  (Index of Document, Tab S).

     27. On December 15, 1995,  prior  to  the  Government budget
     shut  down,  counsel  for  AKZO  informed  counsel  for  the
     Secretary,  that  AKZO  would plan a hoist outage  over  the
     holidays that would provide a test case for this litigation.

          The Planned Hoist Outage of December 24, 1995
          (Docket Nos. LAKE 96-65-Rm and LAKE 96-66-RM)

     28. A planned outage of the  production  hoist  occurred  on
     December 24, 1995.  The hoist computer log indicates that it
     was  shut  down  at  approximately  12:53  a.m., in order to
     "shorten"  all  four of its hoist ropes.  According  to  the
     hoist log, the hoist  was  not  put  back into service until
     approximately 3:34 a.m., December 25, 1995.

     29. At the time that the ropes were shortened,  they had not
     yet stretched beyond the limit allowed by MSHA's  retirement
     criteria,  at  30  C.F.R.  57.19024, or by the manufacturer
     for safe operation.

     30. It is possible that  the  hoist could have been put back
     into operation in less than the  time  that  it  was  out of
     service.   However,  during  that  time,  there was a period
     during  which  it would not have been possible  to  put  the
     hoist back into  service  in  less  than one hour and miners
     were not evacuated from the mine.

     31. During the shift on which these events  occurred,  there
     were  three miners underground performing work unrelated  to
     the  work   on   the   production  hoist:   a  mechanic,  an
     electrician, and a foreman.  This work consisted of checking
     pumps and fans and preventive  maintenance  on  the  service
     hoist.   No  salt extraction occurred during this shift  nor
     did any cutting or welding occur during this shift.

     32. This hoist  incident  was  not  immediately  reported to
     MSHA,  however a fax was received at the MSHA Newark  Office
     on December 26, 1995.

     33.  Following   AKZO's   report  of  these  incident,  MSHA
     Inspector Donald Foster traveled to the mine on December 28,
     1995, and started his investigation.   He was accompanied by
     MSHA Inspector Jim Strickler during part of his inspection.

     34.  Inspector Foster conducted interviews  of  both  hourly
     and  management  employees  at  the mine and by telephone on
     December 28 and 29, 1995, and January  4, 5, 9 and 11, 1996.
     Management employees were accompanied by AKZO counsel during
     their  interviews.   On January 25, 1996,  Inspector  Foster
     issued Citation No. 4546275  citing a violation or 30 C.F.R.
     50.10, and Citation No. 4546276,  citing  a  violation of 30
     C.F.R. 57.11050(a).

                            Discussion

                     Docket No. LAKE 96-45-RM

     Section  104(a)  non-"S&S" Citation No. 4100787,  issued  at
2:45 p.m., on November  28,  1995,  cites an alleged violation of
section 103(j) of the Act, and mandatory  reporting  standard  30
C.F.R. 50.10, and states as follows:

               At about 11:56 p.m., on November 9, 1995, the
          production hoist was disabled for approximately 50
          minutes   while  two  of  four  hoist  ropes  were
          shortened.   The  rope  shortening interfered with
          the  use  of  the hoist equipment  for  more  than
          thirty  minutes  while  miners  were  underground.
          MSHA  was   not   immediately   notified   of  the
          interruption.

   Docket Nos. LAKE 96-125-M, LAKE 96-65-RM and LAKE 96-80-RM

    Section 104(a) non-"S&S" Citation No. 4546275, issued at 8:00
.m.,  on January 25, 1996, cites an alleged violation of  section
03(j) of  the  Act  and  mandatory  reporting  standard 30 C.F.R.
0.10, and states as follows:

               On  December  24, 1995, at about 12:53  a.m.,  the
          production hoist was damaged in that it was unavailable
          for  service due to maintenance  to  shorten  the  four
          stretched  hoist  ropes.   This  damage  to  the  hoist
          interfered  with  its  use for more than 30 minutes and
          MSHA was not contacted immediately.  The requirement to
          report  this  type  of  hoisting   accident   had  been
          communicated  to the mine operator by MSHA inspectorate
          in the past and to the company's lawyer through an MSHA
          letter dated December 8, 1995 (LAKE 96-65-RM).

     Section 104(a) non-"S&S"  Citation  No.  4546323,  issued at
4:00  p.m.,  on  January 31, 1996, cites an alleged violation  of
section 103(d) of  the  Act  and  mandatory reporting standard 30
C.F.R. 50.20(a), and states as follows:

               The mine operator failed to complete and mail
          to MSHA as required 7000-1 forms, for hoist damage
          which  became  immediately   reportable  when  the
          production  hoist  was taken out  of  service  for
          maintenance faults or  damage,  which  exceeded 30
          minutes.   The  outages  were reported to MSHA  by
          telephone for the following dates but no completed
          7000-1 reports have been received.   The  operator
          had  been informed in the past about the reporting
          requirements and has failed to submit the reports.

               The  dates  are  as  follows:  July 21, 1995,
          August 8, 1995, September 26,  1995,  October  16,
          1995, October 30, 1995, November 9, 1995, December
          17, 1995, December 23, 1995, December 24, 1995 and
          December 28, 1995 (LAKE 96-80-RM).

                     Docket No. LAKE 96-66-RM

     Section  104(a) non-"S&S" Citation No. 4546276, January  25,
1996, 8:03  a.m.,  cites  an  alleged violation of 30 C.F.R.
57.11050(a), and the cited condition  or  practice states as
follows:

               On  December  24, 1995, at about 12:53  a.m.,
               the production  hoist  was  not available for
               use for approximately three hours and thirty-
               seven  minutes.   Miners  continued  to  work
               underground   performing  tasks   that   were
               unrelated  to  the   hoist   rope  shortening
               operation.  The production hoist  is  part of
               one of the two escapeways at this mine.   The
               mine operator therefore failed to comply with
               this  standard  because  the  miners who were
               underground   were  not  provided  with   two
               properly maintained escapeways to the surface
               to use in the event  of  an  emergency  for a
               period in excess of one hour.  During part of
               the time that the production hoist was out of
               service,   the  service  hoist  (the  primary
               escapeway) was  also  out  of  service  for a
               maintenance procedure which did not result in
               its  use  being  interfered  with for over 30
               minutes.   However,  during  that  time  both
               escapeways were not in service.

               This  incident  was  staged  to  test  MSHA's
               enforcement    of   this   mandatory   safety
               standard.   MSHA   interpretation   of   this
               standard had been

               communicated   to   the   mine   operator  by
               inspectorate  previously and to their  lawyer
               in an MSHA letter dated December 18, 1995.

                       Deposition Testimony

     MSHA Inspector Donald J. Foster, Jr., has served in that
capacity since May 1991, and he confirmed that  Mr.  C. Okey
Reitter  is  his  supervisor.   Mr. Foster has inspected the
Cleveland Mine and is familiar with  the  hoists that are in
use.  He has taken a class dealing with ropes  and hoists at
the  mine academy, and has prior mining industry  experience
(Tr. 4-16).

     Mr. Foster  stated  that  he investigated the hoist incident
that occurred on November 9,  1995  (Citation  No. 4100787),
made  notes,  and  reviewed  them  with  Mr.  Reitter.    He
confirmed that

     Mr. Reitter issued the citation (Tr. 17-22). Although the
citation  states   that   the   hoist   was   disabled   for
approximately  50 minutes, Mr. Foster confirmed that this is
not mentioned in  his  notes  and he did not know where this
information  came from (Tr. 23).   Based  on  statements  he
received during  his  investigation,  he  would say that the
hoist  was disabled for 40 minutes (Tr. 24).   He  confirmed
that he did not review the citation, but believes that it is
consistent  with  what  he  found  during his investigation,
except for the difference between 40 and 50 minutes that the
hoist  was  down  (Tr. 26).  He believed  the  citation  was
justified.

     Mr. Foster explained  his understanding of section 50.10, as
follows at (Tr. 28):

           Q.  The  30  minutes  that's  necessary  to
               trigger  the  reporting  requirement  in
               section 50.10 is computed with regard to
               the  amount  of time it takes to put the
               hoist back in  service  . . . . In other
               words, I could leave the  hoist down all
               day; but if I can get it back running in
               15  minutes, I don't have to  report  it
               under section 50.10.  Is that right?

          A.   Yes.  To my understanding of that, Yes.

     Mr. Foster stated  that it makes no difference why the hoist
is disabled for more than 30 minutes, or whether it is planned or
unplanned.  As long as it  is unavailable for over 30 minutes, it
is reportable.  If power was  not available to the hoist due to a
power substation problem and the  hoist  was  down  for  over  30
minutes,  it would be immediately reportable (Tr. 29-30).  He did
not believe that ice in the shaft, which he considered a natural

occurrence,  and  which  may render the hoist inoperable for more
than 30 minutes, would be  reportable,  but  he was not sure (Tr.
30).

     After  reviewing  a  MSHA Program Circular,  "Report  on  30
C.F.R. Part 50," December 1986  (Exhibit  C-10, Tab F), he stated
that according to this circular, ice in the shaft that results in
hoist  outage for more than 30 minutes would  not  be  reportable
(Tr. 32).   The  circular reference in question was read into the
record (Tr. 31-32), and it states as follows:

          Q.   What    constitutes   "Damage   to   hoisting
               equipment in a shaft or slope which endangers
               an individual  or  which  interferes with the
               use  of  the  equipment  for  more   than  30
               minutes?"

          A.   Damage may be considered to be caused by some
               accident that involved hoisting equipment, or
               resulting from hoisting equipment failure.  A
               natural occurrence such as ice in a shaft may
               cause the shaft and hoist to be shut down for
               more  than  30  minutes.   However, where  no
               accident  occurs, equipment is  not  damaged,
               and  no  individuals   were  endangered,  the
               natural  occurrence  would   not   itself  be
               reportable.

     Mr. Foster confirmed his understanding that ice in the shaft
that  results  in the unavailability of the hoist, regardless  of
its duration, does  not  have to be reported, as long as there is
no hoist damage, accident, or endangerment to miners (Tr. 33-34).

     Mr. Foster stated that  the  hoist  was  out  on November 9,
1995,  because "they had experienced a stretch in the  ropes,  to
the ropes, and they were tightening them up."  He did not know if
the hoist  was malfunctioning at that time (Tr. 34).  In response
to a question  of  how  the  hoist  was damaged at that time, Mr.
Foster stated as follows at (Tr. 35-37):

               * * * * So those ropes  at  that  point  were
               stretched where they needed to take the slack
               out  of  them.   Those  ropes were stretched.
               Those ropes were damaged.

          Q.   Do you know for a fact --  and  I  think  you
               said  you did not know for a fact -- that the
               ropes were  stretched  to  such  a point that
               they  had  a  skip that already exceeded  the
               location they were supposed to go to?

          A.   No, I don't.

          Q.   Let's go back.   Let's suppose that the rope-
               adjusting exercise  was undertaken before the
               ropes had stretched to  the  point  that they
               exceeded  that  limit.  In other words,  they
               were undertaken as  a  matter  of  preventive
               maintenance.   It  was done before there  was
               any damage to the rope.  Okay?

          A.   Okay.

          Q.   Then how is the hoist damaged?

          A.   If we're looking at  a  situation  where they
               preventively -- or for preventive maintenance
               purposes  were taking this slack out,  in  my
               opinion, if  there  was  enough slack to take
               out of there, then it had  to  have  exceeded
               the point where they wanted it to be.   Okay?
               So  there  was already stretching of the rope
               in order to  take  the  initiative  and to go
               through this whole process to eliminate it.

          Q.   Are you willing to say that the work that was
               undertaken that you investigated in this
               regard  was  preventive maintenance?  Do  you
               know whether it was or not?

          A.   No.

               * * * *

               So in my opinion,  preventive  maintenance is
               the troubleshooting, the visual,  the looking
               at it.  Once you've started the mechanics  on
               something,  in  my  opinion  the  damage  has
               started.

     Mr.  Foster  confirmed  that  the  purpose  of  changing his
automobile oil is to prevent engine damage, and he would consider
this  to  be  preventive maintenance.  He would presume that  his
engine is not damaged,  and  he  does  not  check  the  engine to
determine any damage (Tr. 37-40).

     Mr. Foster confirmed that he issued Citation No. 4546276  on
December  24,  1995,  citing  a violation of section 57.11050(a),
which requires at least two separate  functioning  escapeways  or
methods of getting in and out of a mine (Tr. 41).  In a mine with
two  shafts  and  two  hoists, a violation of section 57.11050(a)
would occur "when either one of the hoists go down, and it cannot
be put back into service  within  an hour" (Tr. 41).  He conceded
that the "one-hour" requirement is  not stated in the regulation,
and that it is derived from the one-hour  oxygen  supply of a W65
self rescuer (Tr. 42).

     Mr. Foster explained his reasons for issuing the citation as
follows at (Tr. 45-64).

          A.   Through   the   statements   of   the  people
               involved,   it   was   determined   that  the
               production  hoist  had exceeded an hour  from
               the furthest point that  it could be put back
               into service.  The four ropes  had  been, all
               four  ropes  had  been involved; and if  they
               had, at the very furthest point that they had
               this apart with the  eight  clamps  off,  the
               other  ones  loose,  the  chain  falls on, to
               reverse that process exceeded an hour.

          Q.   And at that point, in your interpretation  of
               the standard, what was the violation?

          A.   The  violation was that, number one, that the
               occurrence exceeded an hour and was not
               immediately   reported;   and  that  it  also
               exceeded an hour, it was longer  than an hour
               that  it  could  be  brought  up  even in  an
               emergency   situation.    Okay?    And   that
               violated  having the two ways out of the mine
               that had your  continuous  escapeways  to the
               surface.

          Q.   In your judgment is there a requirement  that
               everybody  be  evacuated from the mine except
               for  those people  working  on  the  hoisting
               equipment at that time after an hour?

          A.   In my  understanding,  once  that  hoist  has
               become  disabled  and is realized it is going
               to be longer than an  hour to get it back in,
               then those people should  be  given orders to
               evacuate at the time that that's determined
               to be, the damage, the extent,  to  exceed an
               hour.

     Mr. Foster stated that section 57.11050(a) has  no  specific
language  that  requires mine evacuation, and he was aware of  no
standard that requires  automatic  evacuation  of the entire mine
within any given time period (Tr. 53-54).  However, he would rely

on  section  57.11050(a)  to  accomplish  a mine evacuation.   He
further confirmed that a section 104(a) citation does not require
any withdrawal of miners from the area of a  violation, or a mine
evacuation.   However,  he then stated that the  absence  of  two
escapeways would require  a  mine evacuation, and in his opinion,
the section 104(a) citation he  issued  "was  a withdrawal order"
because the standard requires two or more separate  and  properly
maintained  escapeways  to  the  surface  (Tr.  55).   He further
believed  that  a section 104(a) citation would require that  the
other escapeway be  repaired  and made available within one hour,
even though this is not stated in the regulation (Tr. 56).

     Mr. Foster stated that "a  reasonable  amount  of  time"  to
abate  a  section  104(a)  citation  for  a  violation of section
57.11050(a),  would  be  one  hour to repair the other  escapeway
regardless of what is wrong with  the  hoist,  or  what the other
people  underground are doing, and no matter what the  likelihood
of a fire underground might be (Tr. 57, 60-61).

     Mr.  Foster  confirmed  that  although  the second escapeway
service shaft in the instant case was working  and  nothing would
have prevented miners from escaping a fire using that  escapeway,
he  still  believed that a one-hour abatement time was reasonable
(Tr. 59).

     Mr. Foster  stated  that  if  he found a situation where the
production hoist was down and was told  that  it  would  take two
hours  to repair it and miners have not been withdrawn, he  would
issue a  section  104(a)  citation  citing a violation of section
57.11050(a), and would require an abatement  time  of one hour to
evacuate the mine to eliminate the hazard (Tr. 63-64).   He  knew
of  no  other  situations  where  he  has  issued  section 104(a)
citations and required the withdrawal of miners to terminate  the
citation (Tr. 65).

     Mr. Foster stated that he has seen a portion of the February
22,  1990,  memorandum from District Manager Salois (Exhibit C-8,
Tab G), but never  received  it  through MSHA channels or told to
use  it  to  enforce  section 57.11050(a).   (Tr.  70,  73).   He
confirmed  that  he  has always  based  his  one-hour  evacuation
interpretation of section  57.11050(a),  on the fact that the W65
self rescuer would enable a miner to get out  of  the mine within
an hour using that device (Tr. 74).  He confirmed that part of
his  understanding  in  this regard came from his experience  and
interpretation that he learned when he worked at a coal mine, and
this  was later confirmed  from  conversations  with  other  MSHA
inspectors, including his supervisors (Tr. 75-76).

     In  response  to  questions  by  MSHA's  counsel, Mr. Foster
stated that if a hoist used as an escapeway is broken, miners are
exposed to the hazard of not having two well maintained escapeways
available for their use. Apart from repairing the hoist, evacuating
the mine will eliminate the hazard (Tr. 80.).

     C. Okey Reitter, Jr.,  MSHA  Supervisory  Inspector, Newark,
Ohio office, testified that he has never been to AKZO's Cleveland
mine (Tr. 16).  He confirmed that he issued Citation  No. 4100787
on November 28, 1995, because AKZO failed to immediately report a
hoist outage which exceeded 30 minutes (Tr. 19).  He identified a
copy  of  his  notes  which  reflect  that  the  hoist outage was
reported by fax by AKZO's counsel on November 10, 1995, (Tr. 23).
He received the information which is stated as the  "condition or
practice" in the citation from inspector Foster who went  to  the
mine  to check out the situation (Tr. 24).  Mr. Foster determined
that the hoist was down for 50 minutes after speaking with the
company  and  the  miners.  He believed the 40 to 50 minutes time
frame "was probably  what  we came up with how long it would have
taken  to  put  the  hoist back  into  service  if  an  emergency
occurred"  (Tr.  28).   He  confirmed  that  Mr.  Foster's  notes
reflected different down  times  for  the  hoist in question (Tr.
29).

     Mr. Reitter expressed his understanding of section 50.10, as
follows at (Tr. 32):

               If  there  is  a  hoist  outage, accident  or
               incident, that exceeds being  able to put the
               hoist  back  into  service,  that exceeds  30
               minutes,  that  incident becomes  immediately
               reportable to MSHA.

     He further explained at (Tr. 33-34):

               Q.Okay.  That 30  minutes,  is  that  in your
               interpretation  of the standard, is that  the
               actual time the hoist is out?

          A.   That is the time that it would take to put it
               back into service.

          Q.   Go ahead

          A.   If the hoist were  to  be out one hour, let's
               say we had the hoist shut  down for one hour,
               and we were able to, any time during that one

               hour we were able to put it back into service
               within 30 minutes, that would  not  have been
               immediately reportable.

          Q.   So if the hoist were out for all day,  if the
               hoist was shut down all day, but I could put

               it back into service in less than 30 minutes,
               then that is not a reportable hoist outage?

          A.   Correct.

     Mr. Reitter stated that his interpretation of section 50.10,
is referred to in the December 8, 1995, letter from Vernon  Gomez
to  AKZO's  counsel  where  it  addresses  the 30 minutes loss of
service (Tr. 34-35).  This is the only written  guidance  that he
was  aware of with respect to the 30 minute immediately reporting
requirement (Tr. 40).

     Mr. Reitter stated that the cited hoist was disabled for use
because two of the four tail ropes were being adjusted to equally
distribute  the  rope  lifting  capacity  and  he  explained  the
tightening  procedure  (Tr. 41).  He confirmed that prior to this
work the hoist was functioning fine and the work was performed to
preclude any future problem (Tr. 42).

     Mr. Reitter stated that nothing was broken on the hoist when
it was taken out of service and put back together again (Tr. 45).
In explaining why he believed  the hoist was "damaged" within the
meaning  of  the  definition  of  "accident"   found  in  section
50.2(h)(11), Mr. Reitter stated as follows at (Tr. 42-44):

          Q.   Now I want you to explain to me how the hoist
               was damaged.

          A.   Any  time  that  I can't use something,  it's
               damaged.

          * * * *

          Q.   What I want to know  is  how  the  hoist  was
               damaged in this case?

          A.   It interfered with the use of it.

          Q.   But  what  was  the  damage  to it?  What was
               wrong with it?  You just explained to me your
               --

          A.   Once it was taken out service,  it's damaged.
               I  mean once it's -- To me, I would  consider
               the hoist damaged because I could no longer
               use it.  It was not a usable thing to me.
               So there was damage to it.

          Q.   So any  time you can't use the hoist for more
               than 30 minutes, then it's damaged, right?

          A.   If I can't put it into service.

          Q.   So if the  power  were out to it, say, at the
               substation level more  than  30 minutes and I
               couldn't get it on for more than  30 minutes,
               that would be damage, would it?

          A.   Yes, I believe so.

          * * * *

          Q.   So  what  you're saying is that any condition
               that renders the hoist unusable for more than
               30 minutes,  any  condition, is damage to the
               hoist in your understanding?

          A.   In my understanding,  if  I could not use the
               hoist as needed, if it's down and I can't use
               it  because  I can't travel --  It's  like  a
               timber beam being  broken  or ice in it, then
               if  it  exceeded  30  minutes, then  I  would
               assume it would be immediately reportable.

     Mr. Reitter agreed that an automobile  oil change is done to
prevent engine damage, and even though the car is unavailable for
use while the oil was changed he would not consider the car to be
"damaged" (Tr. 49).

     Mr. Reitter stated that in his experience  an  "accident" is
an  "unplanned  event" (Tr. 51).  He confirmed that he  consulted
with Mr. Salois before  issuing  the  citation, and "at different
times we ran it by different people," including  Mr. Narramore in
MSHA's  Arlington  office, Mr. Vernon Gomez, MSHA counsel  Fitch,
and his assistant district manager (Tr. 52-54).

     Mr. Reitter confirmed  that  he supervised Mr. Foster in the
issuance of Citation No. 4546276, on  January  25,  1996,  for  a
violation  of  section  57.11050(a),  and  that  he  and  several
individuals  discussed  it  before  it  was issued, including Mr.
Salois, Mr. Narramore, Mr. Gomez, and counsel Fitch (Tr. 55-57).

     Mr.  Reitter stated that section 57.11050(a),  requires  two
operative escapeways  at all times (Tr. 58).  He then stated that
one escapeway could be unavailable "for basically one hour,"
which is the normal time  that  self rescuers are good for in the
event of a mine fire (Tr. 56-60).   He  confirmed that subsection
(b)  requires a refuge for miners who cannot  reach  the  surface
through  at  least two escapeways within an hour, and he conceded
that its legal  to leave people underground for more than an hour
from evacuation (Tr. 62).

     Mr. Reitter  confirmed that the text of section 57.11050(a),
does not state that  the  mine  must  be  evacuated  in one hour.
Apart  from  the  Gomez letter to AKZO's counsel, he knew  of  no
other written MSHA directive requiring the evacuation of the mine
within an hour (Tr. 64).  He further stated that as an inspector,
he was always told  by  other  inspectors  and by "word-of-mouth"
that "they needed to be able to evacuate the mine within an hour"
(Tr. 65).

     Mr. Reitter stated that the one-hour time  limit to evacuate
a mine starts "from the time I realize that I can't get the hoist
back into service within an hour" (Tr. 65).  After  discussing  a
number  of  "case-by-case" scenarios (Tr. 66-70), with respect to
when the one-hour  evacuation must be made, Mr. Reitter stated as
follows at (Tr. 71):

          Q.   Okay.   But  now  I  thought  you  --  I  am  very
               confused.   I  understand  that  answer.  Once you
               realize that you cannot evacuate the  mine -- Once
               you  realize  you  can't  put  the  hoist back  in
               service in an hour, then you must begin evacuation
               procedures at that moment.

          A.   Yes.

          Q.   At that moment, okay.  If it takes you  more  than
               an hour to evacuate the mine to start with, is  it
               or  is  it  not your statement that you must begin
               evacuation procedures immediately when one hoist -
               - when you are down to one escape route?

          A.   I would have to ask for an interpretation of that.

          Q.   Who would you ask?

          A.   I would start with Jim Salois.

     Mr.  Reitter was not aware  of  any  MSHA  regulations  that
require the  automatic evacuation of all miners (Tr. 72-730).  He
confirmed that  the  issuance of a section 104(a) or (d) citation
does not require the withdrawal from the area where the violation
has occurred or the evacuation of the mine (Tr. 74).  The
circumstances under which  MSHA  can  require evacuation are very
limited and are based on specific hazard  exposure  (Tr. 75).  He
agreed that the rope adjusting activities taking place  when  the
citation  was issued was part of hoist maintenance.  He confirmed
that none of the "hour language" is in the regulation and some of
it  is from  the  December  8,  1995,  Gomez  letter,  and  "from
direction of what other people in the agency that review policies
and procedures are interpreting it as" (Tr. 81-82).

     Mr.  Reitter  stated  that  prior  to  the  Gomez letter, he
believed that if there were no escapeway for one hour there would
be a violation and he would issue a section 104(a) citation which
does not require an automatic evacuation.  The citation  would be
abated  by  providing  a  second  means  of escape or putting the
escapeway  into service.  He would establish  an  abatement  time
based on the  hazards presented to employees working underground.
In that scenario,  he  would  provide  a  short abatement time to
correct the condition, and if it is not corrected,  the work area
that was directly affected would have to be evacuated.   He would
use  a section 104(b) order, on a case-by-case basis, to evacuate
the work area and that order would require the people affected by
the hazard to be removed.  (Tr. 82-84).

     Mr.  Reitter  stated  that  he  first  became  aware  of the
February  22, 1990, Salois memorandum approximately a year and  a
half ago after he became a supervisor in 1992.  He was unaware of
the memo for a year while he was a supervisor and became aware of
it when AKZO advised him that the memo was being recalled
(Tr. 85, 90).  He explained that he learned of the Salois policy
sometime in  1994  and  possibly  as  early as late 1993, and the
inspectors in the office told him that  they  were following that
policy, and had he known of the policy he would have followed it.
However, he never had to use the policy because  no hoist outages
occurred that he was aware of (Tr. 94-95).

     Mr.   Reitter   stated  that  the  high  negligence  finding
associated with the January  25,  1996, citation was based on the
fact that the incident was staged to  test  MSHA's enforcement of
the  standard  and  MSHA's  interpretation  had  previously  been
communicated to AKZO and its attorney by letter dated December 8,
1995.  He concluded that AKZO knew that the cited condition would
be a violation and  intentionally violated the law (Tr. 102-103).
He agreed with the non-"S&S" finding (Tr. 106).  He  also  agreed
that  the service hoist was not unavailable for any period longer
than 30 minutes (Tr. 110).

     MSHA  metal  and  non-metal  Inspector  James  D.  Strickler
testified  that  he  accompanied inspector Foster to the mine  on
January  4  and 5, 1996,  to  interview  company  officials  with
respect to hoist citation No. 4546276, issued on January 25,
1996.  Mr. Foster  told  him that AKZO wanted a citation to issue
so it could take it to court  and he went with Mr. Foster to take
notes of the interviews.  He reviewed  the  citation  and  agreed
with  it,  including  the  finding  that an injury or illness was
unlikely (Tr. 4-12).

     Mr.  Strickler  stated that he has  never  seen  the  Salois
memorandum but has heard  about  it  from other inspectors in his
office who told him that at one time miners  were allowed to work
underground until the end of the shift.  This was not the case in
Illinois  where the Sperry U.S. Gypsum Company  evacuated  miners
immediately  (Tr.  11, 15-16).  He arrived at his field office in
1993, and the Salois memorandum had previously been rescinded and
has never been used since he has been there. (Tr. 17-18).

     Mr. Strickler stated  that  section  57.11050,  requires two
fully functional escapeways at all times.  If he were  to inspect
a  mine  with  two  escapeway  hoists  and one is unavailable  or
unusable for any reason, the operator would have a 30 minute time
period before deciding to bring people out.  If the hoist is down
for  more  than  30  minutes it must be reported  to  MSHA.   The
operator must then evacuate  the  mine  "unless  they  are up and
running  within  an  hour."   Once  MSHA  is  notified  after the
expiration  of the initial 30 minutes, if the operator determines
that the hoist  cannot be repaired within the next 30 minutes, it
must then evacuate  people  at  that time.  This understanding on
his  part  is not in writing or part  of  the  standard,  and  he
learned it from other inspectors and his experience.  The
evacuation  must  begin  within  the  hour  because  the  miners'
breathing apparatus,  the P65 and the MSAW65, is only good for an
hour (Tr. 20-22).

     Mr. Strickler stated  that a "reasonable abatement time" for
a violation is left to the inspector's  discretion  after  asking
the operator how long it will take to correct the condition,  and
he has used his experience to make this determination.  He had no
hoist  experience,  but  would  ask  an  operator about any hoist
problem  and how long it would take to repair  it.   He  did  not
believe that  section  104(a)  required  the withdrawal of miners
while a violation is being abated (Tr. 23-25).

     Mr.  Strickler  agreed  that if an accident  occurred  as  a
result of the violation it could  reasonably  be  expected  to be
fatal,  and  his  opinion was based on his underground experience
and  the fact that a  mine  fire  could  cause  a  fatality.   He
confirmed that one of the escapeways was functioning and he would
reasonably  expect  that everyone would be able to escape a fire.
He agreed that the mine has no history of serious fires, but
non-fatal fires have  occurred.   He  confirmed that three people
were working underground on the night of the incident in question
and they were not exposed to any hazards  other  than  those they
are  normally exposed to doing their normal job.  He agreed  they
were exposed  to  less hazards because there was no active mining
taking place (Tr. 26-28).

     In response to  MSHA's  counsel's  question,  Mr. Strickland
stated that if a hoist is out in an escapeway, it is unusable and
broken,  and  miners who are underground must be evacuated.    He
would issue a citation  for  not  evacuating the mine and because
there was only one escapeway.  A reasonable  time  to  abate this
violation would be one hour because "that's all their life

support is in my opinion," and he has found that an hour can be a
reasonable time to evacuate at AKZO and other mines that  he  has
been in (Tr. 28-30).

     In  response to further AKZO questions, Mr. Strickler stated
that the word  "evacuation"  is  not part of section 57.11050(a),
and he is aware of no Part 57 regulations  that  require  a  mine
evacuation  for  non-compliance.   He  confirmed  that  he has no
authority to withdraw miners under section 104(a) of the Act, but
believed that section 57.11050 gives him that authority (Tr.  31-
32).

     Mr. Strickler stated that a fire burning out of control must
be  reported  to MSHA if it goes on for more than 30 minutes, but
an evacuation is  not  required.  However, in the event of such a
fire or emergency, an operator is supposed to evacuate miners,
but not from the entire mine.  If the mine is not evacuated, a
separate order would be  required  to  evacuate  the  mine in the
event   a  fire  is  out  of  control.   However,  based  on  his
"experience,"  a separate order to evacuate would not be required
for a violation of section 57.11050 (Tr. 33).

     MSHA metal/non-metal  mine  Inspector  Herbert  D.  Bilbrey,
testified  that he conducted a regular inspection of AKZO's  mine
on November 2, 1995, with Inspector Bill Backland and interviewed
people  regarding   a  hoist  shutdown  which  required  possible
evacuation of the mine.   He  explained  that  section  57.11050,
requires  an operator to maintain two fully functional escapeways
at all times,  but that the regulation does not state that a mine
has to be evacuated  if  one of the escapeways is not functioning
(Tr. 8-9).

     Mr. Bilbrey stated his  understanding  of  when  a  citation
pursuant to section 57.11050(a), would have to be issued  as
follows at (Tr. 11):

           A.  The  mine  has a time limit to evacuate the
               mine.   There  could   be  several  different
               cases.  You would have to take each case by
               case.   But  if  it was determined  that  the
               hoist could not be  put  back  on line within
               the hour, then evacuation had to start.

          Q.   If  the  hoist couldn't be put back  on  line
               within an  hour,  when  does  the  evacuation
               begin?

          A.   If   the   company  had  then  determined  it
               couldn't be.

          Q.   So  how  long   does   the  company  have  to
               determine that the hoist can't be put back in
               service?

          A.   Well, there was a floating  time period which
               would   give  them  an  hour  to  make   that
               determination, and then an hour after that to
               evacuate the mine.

          Q.   So they have  one  hour  to determine if they
               can get the equipment working again; and then
               once they make that determination,  they have
               an hour from the time they decide that  can't
               be  put  back  in  service  to put it back in
               service.

          A.   Right.

          Q.   And where is that policy stated?

          A.   There's no written policy that I am aware of,
               that I know of.

     Mr.  Bilbrey  stated  that  he  was unaware  of  the  Salois
memorandum  of  February  22,  1990,  and he  learned  about  the
unwritten policy to evacuate a mine when  a  hoist  is out from a
staff  meeting  and  verbally  from  his  lead  supervisor Robert
LeMaster,  and discussions with Mr. Reitter (Tr. 12).   He  heard
about this policy approximately a year ago, and prior to that the
issue never came up in the first three years in his district (Tr.
13).

     Mr. Bilbrey  stated  that  it  was  his understanding that a
hoist that is out for 30 minutes or more is  considered  to be an
accident, but he could not explain how a hoist that is taken  out
of  service  for  preventive  maintenance  is considered to be an
accident.  He then stated that he did not believe  that  a  hoist
that  is  taken  out  of service for preventive maintenance is an
accident (Tr. 15).

     Referring  to  the  section   50.2(h)   definitation  of  an
accident,  Mr.  Bilbrey  stated  that  preventive maintenance  is
"something  that would prevent a breakdown"  and  something  that
would  be done  before  the  equipment  is  broken.   He  defined
"damage"  as "inoperative" and stated that this would not include
equipment  that   is  intentionally  taken  out  of  service  for
maintenance purposes (Tr. 15).

     In response to  further  AKZO  questions, Mr. Bilbrey stated
that an unplanned outage of a hoist must be reported  "if it's 30
minutes." If power is cut off to the hoist for more than 30 minutes,
it would be a reportable accident.  If ice were on the shaft and 
the hoist was inoperable for 30 minutes or more, he did not know
if this would  be  reportable  and  he would  have "to look in the
books" and "I would run it by my supervisor" (Tr. 22-23).

     MSHA Inspector Dale A. Backland, has served in that capacity
for over 21 years and Mr. Reitter  is  his  supervisor.  He  has 
inspected  AKZO's mine on more than 30 occasions.  He was at the
mine for  a  regular inspection on November 2, 1995, and spoke to
plant manager  Higgins  who  informed  him  that he wanted  him to
issue  a citation for a hoist outage on the previous evening.

     Mr.  Backland  stated that  he  contacted  Mr.  Reitter  and
Inspector Bilbrey  explained  the  situation  to him.  Mr. Reitter
told them that he would contact the district office to determine what
further  steps  would  be  taken  (Tr.  6-11).  Mr. Backland agreed 
with  Mr.  Bilbrey's  conclusion that  no  violation existed due to
the fact that the hoist could be part back on line and the event was 
planned (Tr. 11).

     Mr. Backland stated that section 57.11050(a) requires at
least  two  or more fully functional hoists at all times.  A
hoist that is  taken  out  of service for planned preventive
maintenance is not necessarily  a violation of that section,
depending on how fast it can be put back into service in the
event of an emergency.  In a planned  event, the hoist needs
to be back in service in "a one-hour period"  (Tr.  12).  If
the  planned maintenance time is exceeded and it takes  more
than an  hour, he would expect the mine to be evacuated (Tr.
13-14).  He  confirmed  that  section  57.11050(a)  does not
discuss  mine  evacuation,  and  his  authority  to  require
evacuation  if  it takes more than an hour to repair a hoist
relates back to the  self-rescuer which has a life period of
one hour when activated.  This policy is not in writing, but
he believes it is district  policy,  but  did not recall who
told him about this policy (Tr. 15).

     Mr.  Backland reviewed the Salois memorandum  and  confirmed
that he  was aware of it in 1990, but did not believe it was the 
policy  in  his district.  However, when he saw the memo in 1990, 
it was his  understanding  that  regarding the time element, it
should be followed.  However, he never had  to implement the
policy because he never had a situation that required him to
do so (Tr. 16).

     Mr.  Backland  stated  that a planned hoist outage  probably
would not be reportable  under  section  50.10, if the hoist can be
activated within a reasonable amount  of  time, 10 to 15  minutes, 
for  evacuation in the event of an emergency. An unplanned event 
that  causes  a hoist to go out in excess of the 30-minute required
period would be reportable, and this includes a power outage at a
site off  mine  property  (Tr.  17-18).  He stated that in fixing a
reasonable  abatement  time  to  restore  the  equipment to service,
the circumstances must be evaluated (Tr. 18).

     Mr.  Backland  was  of  the  opinion  that  pursuant to  the
reporting requirements of section 50.10, and  the definition of  
"accident"  found  in  section 50.2(h), preventive maintenance that
takes more than  30  minutes  is  not  an accident.  He believed 
that   preventive  maintenance could take  place for a full shift.
He stated that maintenance that takes a hoist  out  of service for
more than 30 minutes need not be reported if the hoist can be put
back in service within a reasonable amount of time to evacuate the
mine. There is no set time during which the maintenance has to be 
completed or in which the hoist has to  be put back in service 
(Tr. 20-21).

     Mr. Backland stated that if a hoist is taken out  of service
in  order to shorten or adjust the ropes, and it takes  more than 
30 minutes, it "is reportable due to the fact that you don't have 
a  secondary  escapeway available" (Tr. 22).  He stated that the 
stretching  of  a  hoist  rope is normal and does  not  mean that
the hoist is truly damaged or not functioning properly (Tr. 23).
In response to a question as to  whether  the  adjustment  of  an 
undamaged  hoist rope that has been subjected to some stretching
is  a reportable accident, Mr. Backland responded as follows at
(Tr. 24):

         A.Well,  you're taking it out of service  for
         more than  30  minutes to conduct this and --
         It's  a  tough  question  to  answer.   We're
         talking  about reportable,  right?   I  don't
         know.  I would probably have to converse with
         my supervisor on that.

     Vernon R. Gomez, MSHA Administrator for Metal and Non-Metal,
testified that he supervises  all  of  the  agency metal and non-
metal  enforcement  operations,  and part of his  duties  are  to
ensure consistent regulatory enforcement  policies.   He recently
had  occasion  to consider the enforcement policy with regard  to
section 57.11050,  because  of  his  involvement with the instant
litigation (Tr. 7-8).

     Mr.  Gomez  confirmed  that "he was  in  the  loop"  in  the
discussions  of Citation Nos.  4546276  and  4546275,  issued  on
January 25, 1996,  citing  violations of sections 57.11050(a) and
50.10, for a hoist incident  on  December  24, 1995, and Citation
No. 4100787, issued on November 28, 1995, citing  a  violation of
section  50.10,  for  a  hoist incident on November 9, 1995.   He
stated that he reviewed the  citation  language that describe the
conditions  and probably saw more than one  draft,  but  did  not
recall recommending  any  changes,  or  reviewing  the gravity or
negligence findings (Tr. 10).

     Mr. Gomez stated that he has never been in AKZO's  Cleveland
Mine  or  in  any salt mines in that area (Tr. 11).  He confirmed
that he became  aware  of  the  Salois  memorandum of February 8,
1990, and the draft of that memorandum approximately  a  year ago
(Tr.  11-13).   He was concerned about the memorandum because  it
was contrary to what  he  considered  the  policy to be (Tr. 13).
Mr. Gomez stated he was district manager of  the  Rocky  Mountain
District   in  February  1,  1990,  and  his  enforcement  policy
concerning section 57.11050, was not like the policy stated in
the Salois Memorandum  (Tr.  14).   His policy was to require two
properly maintained escapeways to the  surface  at all times, and
if  this could not be done, miners had to be evacuated.   If  one
escapeway  was lost "and could not be restored where we could get
the people out of the mine within an hour" a violation of section
57.11050, would occur (Tr. 15).

     Mr. Gomez  stated  that  if  he  found  only one functioning
escapeway in a mine, he would issue a citation.   If  he  did not
have  two  escapeways  out  of  the mine within an hour, he would
issue an imminent danger order and  have the mine evacuated.  The
imminent danger and hazard are that "I have to be able to get the
people out and they have to have two  separate  escapeways to the
surface" (Tr. 16-17).

     Mr.  Gomez  stated  that  MSHA  policy  concerning   section
57.11050, requires the shutdown of mining operations in the event
one  of  two  escapeway hoists is down and miners cannot evacuate
within an hour.   This  would  be done through an imminent danger
order regardless of the number of  people  who  may be doing some
work  unrelated  to the repairing of the disabled escapeway.   He
described the nature  of  the imminent danger as "the possibility
of something occurring and  not  being in compliance with the two
escapeways to the surface" (Tr. 19-21).   He  confirmed  that the
MSHA  policy  requiring  evacuation  if  the hoist cannot be made
available within an hour is based on section  57.11050,  and  not
the time it might take to abate the violation (Tr. 23).

     Mr.  Gomez  was  not  sure  why  Mr.  Salois  rescinded  his
memorandum, and he stated that he checked with everyone who may
have  been  a  district  manager,  and  the  current managers, to
determine whether they had a policy such as the  one discussed by
Mr. Salois, and he found no such policy (Tr. 29).

     Mr. Gomez stated that his December 8, 1995, letter  to  AKZO
counsel  Savit  was drafted and reviewed with his safety division
staff and states  MSHA's  current  enforcement  policy concerning
section 57.11050.  He stated that the letter was  distributed  to
all  MSHA  districts  except  for the North Central District, and
this was due to "a slipup" (Tr.  32).   He  did  not  know if the
letter  was  distributed  to  any mine operators, but copies  are
available   for   hand  out  by  the  inspectors.    The   policy
interpretation contained in the letter is not in writing anywhere
else, and the contents  of  the  letter  was put together by MSHA
headquarters  personnel, with no input from  anyone  outside  the
agency.  Except  for  the  Solicitor's office, the letter was not
shown to others for comment before it was sent out (Tr. 34-35).

     Mr. Gomez stated that he  was  familiar  with  Citation  No.
4100787,  issued  on November 28, 1995, and Citation No. 4546275,
issued on January 25,  1996, for violations of section 50.10, and
he confirmed that MSHA's  position  is  that a hoist that becomes
unavailable for a period of more than 30  minutes, that is, for a
period of 30 minutes during which it could  not become available,
must  be  reported  to  MSHA  no  matter  the  reason   for   its
unavailability (Tr. 36).

     With regard to his prior statements concerning the use of an
imminent  danger  order  to  evacuate  miners,  Mr. Gomez further
explained that an inspector could issue a citation  with  a short
abatement  time,  and  a  (b)  order, "in other words, repair the
condition and get the people out.   Then  we  would write you the
order  and  remove the people" (Tr. 38).  He would  consider  the
lack of two properly  maintained  escapeways to the surface to be
an imminent danger, "in and of itself" (Tr. 39).

     Mr.  Gomez  stated that based on  his  December  8,  letter,
inspectors do not  have  the discretion to issue a section 104(a)
citation with an abatement  time  exceeding  one  hour,  and  the
actual  abatement time would be less than an hour because "I have
to be able  to  get  people  on  the  surface  within  an  hour,"
regardless  of  the  number of people underground or the activity
they are engaged in (Tr.  39-41).   He  did  not believe that the
mining industry is confused about its responsibility if there are
two escapeways and one is down for any particular reason (Tr. 45).

     With  regard  to  the  Salois policy memorandum,  Mr.  Gomez
stated that during the five years  he was a district manager, and
the six years he was a subdistrict manager, he never heard of the
regulatory interpretation stated in that memorandum and he
believed it is internally inconsistent.   He saw no unique reason
for allowing miners to work underground with  one  escapeway  for
the  rest of a shift but not send the next shift underground with
only one  available  escapeway.  He believed that both shifts are
entitled to escapeways,  and  that  miners  cannot be underground
doing  work  other  than fixing a problem if there  is  only  one
escapeway in a producing mine (Tr. 50-51).

     Mr.  Gomez did not  believe  that  AKZO's  position  in  the
instant litigation  is  reasonable,  and  he  confirmed  that his
December   8,   letter   articulates  his  understanding  of  the
regulations  as  they  relate   to   escapeway   maintenance  and
reporting.   Contrary  to  his earlier statements concerning  the
policy aspects of his letter,  he  explained  as  follows at (Tr.
52):

          Q.   Now  that  letter  doesn't  state any policy,
               does it?

          A.   No.

          Q.   There  is  a  method  for instituting  agency
               policy, isn't there?

          A.   Yes.

          Q.   Do you always issue policy when you address a
               question that is raised by somebody?

          A.   No.  There's different  ways  of handling it,
               such as that letter.

     Mr.  Gomez  confirmed  that the issuance of  MSHA's  Program
Policy Manual in 1987, revoked  any  policy not included therein,
and  any  prior  existing  policy  would be  inoperative  by  the
issuance of the manual (Tr. 54).  The  Salois  memorandum was not
existing  national  policy, but it is possible that  such  policy
may have existed in some form that he was not aware of (Tr. 56).
Mr. Gomez further explained why he believed the existence of only
one workable escapeway would be an imminent danger (Tr. 56-64).

     Rodric  M.  Breland,   Chief,   Division  of  Safety,  MSHA,
Arlington, Virginia, since August 1994,  stated that he serves as
the  principal  advisor to the administrator  on  safety  issues,
regulatory policy  development,  petitions for modifications, and
answering   inquiries  concerning  regulatory   enforcement   and
interpretations  from  interested  mining  parties  (Tr.  8).  He
stated  that  he  received  an  inquiry from MSHA's Dallas acting
manager, Doyle Fink over a year ago  concerning  AKZO's  mine  in
Louisiana concerning the unavailability of one of their
escapeways.   Mr.  Fink  asked  whether  there  was any change in
policy  that would not require the evacuation of miners  pursuant
to section  57.11050 when maintenance was performed on the hoist,
and Mr. Breland  advised  him that he was not aware of any change
in policy (Tr. 11).  After consulting with Mr. Gomez, Mr. Breland
informed Mr. Fink that there was no policy change and that miners
would  have to be withdrawn  "as  soon  as  you  don't  have  two
escapeways" and that this would be a violation (Tr. 13).

     Mr.  Breland  stated  that  in a two-hoist situation, if one
goes down a "technical" violation occurs immediately because miners
are entitled to two ways  out  of  the mine at all times. However,
as  a practical matter, an operator needs  time  to  evaluate  the 
situation,  and has 30 minutes from the time the hoist is interfered
with to report the matter (Tr. 23).  He explained the evacuation 
requirement  as follows at (Tr. 24-25):

          Q.   Assuming a two hoist, two shafts, no refuge
               chamber.    Let's   assume   that  situation.
               Assuming that situation.  You  say  they have
               an hour to escape?

          A.   They  have an hour to evacuate from the  time
               they've  made  that decision.  You're talking
               about   the  evacuation   portion   of   this
               requirement.

          Q.   When must  they  make  that  decision?   What
               triggers the decision they must evacuate?

          A.   Once  they decided they can't repair whatever
               is wrong  within  the hour they need to start
               evacuating.

          Q.   And however long that  takes  them,  up to an
               hour, I guess?

          A.   Yeah.  Essentially, you know, it's -- I think
               there's allowance for a reasonable amount  of
               time  to make the determination, what problem
               you're  dealing with, how long is it going to
               take you to repair it.  Once that decision is
               made, if  it is going to take you longer than
               an hour you should start.

     Mr.  Breland  stated  that  his  interpretation  of  section
57.11050, with respect to the  "evacuation  within  an  hour"  is
found in subsection (b), and the self rescuer and fire evacuation
standards,  and he believed it is based on the limits of the self
rescuer (Tr. 27).

     Mr. Breland  confirmed  that  he was aware of Citations Nos.
4100787  and 4546275, citing violations  of  section  50.10,  and
Citation No.  4546276  citing a violation of section 57.11050(a).
He believed that the lack of a second escapeway would be an "S&S"
violation if normal production  activities were taking place, and
further  explained  how  he would evaluate  "S&S"  under  several
scenarios (Tr. 36-40).

     Mr.  Breland was of the  opinion  that  "one  hour  for  the
abatement for this standard is reasonable because that is what we
expect in the evacuation" without regard to the length of time if
takes to fix  the  hoist or the number of people underground (Tr.
45-46, 49).

     Mr. Breland stated  that he first saw the February 22, 1990,
Salois memorandum sometime  in the fall of 1995, when a draft was
brought to a meeting with AKZO representatives and MSHA officials
where the matter of doing maintenance  work  and  having  a hoist
unavailable  while  people  were still working was discussed (Tr.
52).   He  was never aware of any  policy  change  such  as  that
discussed in  the  Salois  memorandum  and he always followed the
"instant  violation and an hour to abate"  policy  as  stated  as
follows at (Tr. 53).

          Q.   You  always  thought  of  it,  this  kind  of
               instant violation and an hour to abate?

          A.   Yes,  and  that people would -- if your hoist
               became unavailable  you  would  evacuate  and
               your  planned  kind of maintenance activities
               were  going  to  be   done   on  off  shifts,
               weekends, things like that.  That's  standard
               for most of the industry.

          Q.   That's standard for most of the industry,  in
               your experience?

          A.   Yes.

     Mr.  Breland stated that he told Mr. Salois that he did  not
agree with  his  policy  statement because it did not comply with
his understanding of how section  57.11050(a), should be applied,
but he did not know who may have directed  Mr.  Salois to rescind
his memorandum.  He confirmed that he may have had something to
do  with this because he informed Mr. Gomez of his  opinion  that
Mr. Salois' policy was not correct (Tr. 56).

     Mr.  Breland  stated that he and his staff initially drafted
the December 8, 1995, Gomez letter to AKZO counsel Savit, and Mr.
Breland believed the letter "is a well-written explanation of our
policy  and philosophy"  regarding  the  enforcement  of  section
57.11050,  and  he does not disagree with anything in the letter.
He was not aware  that the policy stated in the letter was in any
other written form  other than the present program policy manual.
He has never shown the letter to other mine operators and did not
know whether any district managers have done this (Tr. 59-60).

     Mr. Breland stated  that the two citations citing violations
of  reporting  section 50.10,  were  issued  because  a  hoisting
accident occurred  and  interfered  with  the  use of a hoist for
longer  than 30 minutes and this was not reported.   It  was  his
understanding  that  the  "accident"  as  defined by section 50.2
concerned "working on repairing damage to hoisting equipment"
(Tr. 61).  He was not aware of any other reason for shutting down
the  hoist other than to do the "maintenance"  in  question.   He
further explained as follows at (Tr. 62):

          Q.   Well,  do  you know -- do you know whether or
               not the ropes  on  the  hoist  were so out of
               balance in terms of length that the hoist was
               incapable  of  being run safely at  the  time
               these operations were undertaken?

          A.   At the time they  were  done  it  would be my
               assumption  they  were trying to prevent  the
               damage from being such they would have been a
               danger to continue running.

          Q.   So what was the damage you're talking about?

          A.   Well,  once you start  using  equipment  it's
               going  to   be   exposed   to  damage  almost
               immediately once you start using it, but they
               were, I understand, cutting slack rope.

And, at (Tr. 64-65):

          Q.   So it's your experience as soon  as something
               starts running it starts to be damaged?

          A.   Yeah.   It  starts to wear.  Machinery  wears
               from the time you start it.

          Q.   Is it damaged?   The  standard  says damaged,
               right?

          A.   Correct.

          Q.   Is it damaged the moment you start it?

          A.   Yes, actually, instantly.  It is  damaged  to
               some degree.

          Q.   It is an accident when that happens?

          A.   For  our  purpose,  if the damage gets to the
               point  it  requires  interference   with  the
               hoisting for more than 30 minutes.

     Mr.  Breland  stated that any hoist that is interfered  with
for more than 30 minutes  is  always reportable even if it is one
one of seven escapeways, and this would include power outages
that  occur off mine property.   In  short,  any  hoist  that  is
interfered  with  for  more  than  30  minutes, regardless of the
reason, is reportable under section 50.10  (Tr. 66).  If a diesel
generator that is used to run a hoist is shut  off  to  lubricate
it, and it takes more than a half-hour to do this work, he would
consider this to be "damage" because "you're treating the damage.
You're trying to prevent progressive damage" (Tr. 69).  He  would
consider ice in a shaft that prevented the use of the hoist to be
a "natural occurrence" that would not be reportable.  However, if
there were people in the mine "and you can't get them out, you've
lost your second way out," it would be reportable (Tr. 67).

     James M. Salois, MSHA Metal/Non-metal North Central District
Manager since September 1989, testified that he was familiar with
citation  Nos.  4100787 and 4546276, citing violations of section
50.10 and 57.11050(a),  and  he confirmed that he was involved in
the decision to issue citation No. 4546276, and discussed it with
Mr. Reitter, Mr. Foster, Mr. Gomez,  and  Mr.  Narramore.  He was
somewhat  familiar with the cited conditions as reported  by  the
inspector and he reviewed the citation and findings before it was
issued (Tr. 15-16).

     Mr. Salois  stated that his memorandum of February 22, 1990,
dealt with planned  and  unplanned  shutdowns of hoists that were
designated  as  escapeways  and  it  provided  examples  for  the
inspector to use when determining a mine  evacuation  when  hoist
repairs  were  made.   Pursuant  to that memorandum, when planned
maintenance was being carried out,  and one hoist was disabled as
a result of this work, as long as the  other  hoist was available
to transport persons, then it was permissible to work through the
end of the shift (Tr. 18).

     Mr. Salois explained that he  issued  the  memorandum  after
Mr. Frank Delimba, Chief of Safety, advised  him to do so because 
he  (Salois) was enforcing the regulation different than the other
districts.  Mr. Delimba's instruction was the result of the issue
raised  by the Morton Salt Company who claimed  that  he  (Salois)
was enforcing the regulation differently from the other districts.
Mr. Salois stated that he was a new district manager at that time
and he did not speak with any other district managers about their
policy. Mr. Salois stated that he was not sure that he agreed with
his  policy  memorandum at that time but issued it because he was
asked to  do  it.  He felt that   the   policy   provided   less
protection  than  the regulation.  Prior to the issuance  of  the
memorandum, miners were required to  be  out  of  the  mine  when  
hoist maintenance was performed, and it was always his understanding
when  he was  an  inspector "that you always had to have two ways 
out of the mine."   Since  Mr.  Delimba  informed  him the other
districts were doing otherwise, Mr. Salois stated  "I didn't
argue  with  him,  but  I didn't necessarily agree with  it,
either" (Tr. 22).

     Mr. Salois stated that his  understanding that miners had to
be evacuated when hoist work was performed came from what he
"learned on the job."  He never issued a citation concerning
this issue, and he did not recall any citations that came to
his attention while serving as district manager (Tr. 23).

     Mr. Salois confirmed that his 1990 memorandum was the policy
in his district for five years, but  that  it  was  withdrawn  in
February, 1995,  because  he  did  not  have  the  authority  to
establish enforcement policy for his district tha  was contrary 
or inconsistent with national policy. He stated that he was naive
when he was asked to issue his original memorandum and he withdrew
it  after  learning  through discussions  with  other  district 
managers   that  it  was inconsistent with their policy (Tr. 25).

     Mr.  Salois  stated  that  he  is  not  aware of any written
national policy interpretation concerning  section 57.11050. His 
interpretation was stated as follows at (Tr. 27-30):

               A. Is, as I would interpret it, okay, is that
               you have to have two escapeways -- in talking
               about 1150(a) you have to have two escapeways
               out of the mine when you have people  working
               underground, okay.  And they have to be  able
               to  get  out  through those escapeways within
               one  hour  or they  have  to  have  a  refuge
               chamber if they cannot.

               * * * *

               A. I would say  the  violation could start at
               the point the hoist went  down,  depending on
               what  was wrong with the hoist and  the  time
               necessary to fix it.

               * * * *

               A. Let's  say a guide breaks and the hoist --
               the cage hangs  in  the  shaft and nobody has
               any knowledge of how severe  the  damage  is,
               okay,  or  how long it's going to take to fix
               it, okay.

               What I'm saying,  at  that  point  the  clock
               starts  ticking.   They only have one way out
               of the mine, okay.   And  if  they  know they
               can't fix it right away then they should pull
               their  people out of the mine, based on  this
               standard.

               Q. Under  Section 11050(a) they automatically
               have to begin evacuating at that moment.

               A. Well, I would say that under the standard,
               but in (b) where it says they have to be able
               to get out  of  the mine through two separate
               escapeways within  one  hour,  and  they only
               have  one escapeway, they would have to  pull
               their people

               out.  To  me  this standard clearly says they
               have to have two  separate  ways  out  of the
               mine.

               Q. Right.

               A.  Okay.   All  the  time, all right.  So if
               they only have one they're  not in compliance
               with the standard.

     Mr. Salois stated that if no one is in the mine  "they can
have  all  the  time they need" to  abate  the  violation.  If
miners other than  those  necessary  to repair the hoist  are
underground they must evacuate the mine,  and  the  time for
abatement  would be "the hour that it would be necessary  to
withdraw them  and  not put anybody at risk" (Tr. 31).  If a
manager recognizes that  the  repair is a major problem that
will  take a great deal of time,  "I  would  say  the  clock
starts  ticking there and you should have your people out as
soon as you  can  get  them  out."   Mr.  Salois stated that
assuming a section 104(a) citation is issued,  and the hoist
problem cannot be fixed in one hour, he would fix  one  hour
as  a  reasonable abatement time to evacuate people from the
mine (Tr. 36-37).

     Mr. Salois confirmed that he reviewed  and  agreed with
Citation  Nos.  4100787  and  4546275  that  were issued for
violations of reporting section 50.10.  He stated  that both
citations  involved  a  planned  shutdown  of the production
hoist to shorten two ropes in one case, and  four  ropes  in
the  other  case.   He did not know why the ropes were being
shortened, and did not  know  whether  the ropes had already
stretched to a point where they were beyond the allowable 
tolerances for good hoisting operations.  He was aware that 
ropes are  sometimes  changed or shortened before reaching 
that point, and that this would be a form of preventive
maintenance (Tr. 61-64).

     In  response  to questions asking him to explain how a hoist
has sustained damage when it is taken out of service for routine
preventive maintenance before the ropes  affected  the  hoisting 
operation, Mr. Salois stated as follows at (Tr. 67-69):

               A.  Well,  it's my feeling that  the  company
               felt there was  a need to shorten those hopes
               and to
               accomplish   whatever    they   intended   to
               accomplish,  whether that was  balancing  the
               weight or to equally distribute the weight so
               the hoist performed  the  way it was supposed
               to  so that -- so that one hoist  rope  would
               not wear  faster  and be damaged more rapidly
               than the others.

               When you put hoist  ropes on and you begin to
               use them, in my opinion  the  wear and damage
               begins

               and  they  have a life that they  will  last.
               And based on maintenance and a host of things
               you do you do  that  to extend the life.  But
               the damage begins the day you put those ropes
               on, they begin to wear.

               Q. So the day you buy  a  brand  new  car, as
               soon  as  you  drive it off the lot you would
               consider it damaged, wouldn't you?

               A. In effect, yes.

               Q. Ever sold a used car Mr. Salois?

               A. I never got the  value  of  what it was as
               new.

               Q. Did you ever advertise it as damaged?

               A. No, advertised it as used.

               Q. In your judgment, used, necessarily  means
               damaged?

               A. Yes.

               Q. In your view that's well understood by  an
               average  person, an average miner, as soon as
               you put a  brand  new piece of equipment into
               use it is considered damaged at the moment?

               A. I'm not sure everybody  would  look  at it
               that  way.  I'm saying that everything has  a
               life, and  once  you  begin  to  use  it  you
               shorten  that  life.   And  because  of wear,
               which  is  damage,  because of use, which  is
               damage, everything leads  up  to the final --
               when you throw it away, okay.   And ropes all
               have a life, they're all changed.

     Mr. Salois conceded that he did not know for a fact that the
ropes were changed because they were damaged and could no longer
be used (Tr. 69-70). He believes that even though the shortening
of the ropes was done as a matter of preventive maintenance, this 
still constitutes  damage  to  the  ropes  because  he considered
rope  wearing and stretching that occurs as soon as the ropes are 
used to be damage, notwithstanding the fact that the ropes were 
being  changed before they affected the safe or productive use of 
the hoist (Tr. 72-74).

     Mr. Salois believed that any  event  that is specific to the
hoisting equipment and takes it out of sevice for more than thirty 
minutes is reportable damage. He would not consider ice in the 
shaft to be reportable because "it's  not  damage directly  to the
hoist  equipment."   However, "if the ice caused the damage then
I would certainly consider it reportable" (Tr. 76). If a decision
were  made  not  to run the hoist because of concern that the ice
would cause some damage, he did not believe it would be reportable
"if you were  going to wait for it to melt."  However, taking the
hoist out of service to shorten the ropes because of concern that 
damage  may  occur would be different because the ropes are a 
direct part of the hoist system (Tr. 78).

     Mr.  Salois  believed   that   any  event  that  impairs  or
interferes  with the use of a hoist for more than thirty minutes
would  be  considered  damage (Tr. 80-81).  He  would  consider a 
loss of power  off mine  property  that interferes with  the  use 
of a hoist as damage, but would not  consider ice  in  the  shaft  
that  interferes with the use of the hoist to be damage (Tr. 82-84).

     In response to MSHA counsel's  questions,  Mr. Salois stated
that  in order to achieve evacuation of the mine for a violation
of section 57.11050(a), he would issue a section 104(a) or 104(d)
citation if the hazard  was  not  imminent, and  would  fix  the 
abatement  time  at  one  hour. If an underground rescue chamber
is not provided, the regulation requires mine evacuation  through
both escapeways within an hour (Tr. 88). He believes that an hour
is  a  reasonable time  to  evacuate  the  mine  and once it is 
evacuated  the escapeway  would  be  available  for use. He would 
not terminate the citation after the hour by  the  evacuation of
personnel only, and would extend the abatement time to focus on 
other problems (Tr. 89).

     Mr. Salois stated that the December 8, 1995, letter from
Mr.  Gomez  to  AKZO  counsel Savit accurately reflects  his
understanding of the proper interpretation of sections 50.10
and 57.11050, as they relate  to reporting hoist outages and
evacuating the mine, and is consistent  with what might have
been a verbal understanding of the regulations  prior to the
issuance of the letter (Tr. 104).

     Mr.  Salois  stated  that  a  violation of section 57.11050,
occurs when one of two escapeways  is  down, and that depending
on the circumstances, it is reasonable and appropriate to allow
the operator  a  few minutes to  determine  if  the  hoist  is
immediately  fixable  before  evacuating  the  mine  (Tr. 105).
He further explained as follows at (Tr. 106, 108):

               A. If it's -- if it's  damage that takes more
               than 30 minutes to correct they would have to
               report it to us.  If they  can  repair it and
               evacuate the mine within an hour  they  would
               not have to evacuate the mine, in my opinion,
               they   would  just  fix  the  problem  in  35
               minutes.  They would not have to evacuate the
               mine.

               * * * *

               Q. If they  thought  they  could fix it in 20
               minutes you would not expect them to evacuate
               the mine, would you?

               A.  Yes.   We  would  not  expect   them   to
               evacuate.

               Q.  But if yo -- if they knew it was going to
               take  them  an  hour and 10 minutes to fix it
               you would?

               A. Yes.

     Mr.  Salois  was  of  the  opinion  that  in  the  event  of
preventive maintenance work  on  a  perfectly  working hoist that 
cannot be put back into use within an hour or half-hour, he would
consider  the  hoist to be damaged by the maintenance work itself
(Tr. 111).  He explained  as follows at (Tr. 112-114):

               Q. So complying with the standard damages the
               equipment?

               A. In effect, yes.

               Q. And that creates an accident, doesn't  it,
               because it's reportable as an accident.  It's
               part of the definition of accident, isn't it?

               A. Yes.

               Q.  And  it  also  creates a violation of the
               standard, doesn't it?

               A. Yes.

               Q. Which requires the  issuance of a citation
               or evacuation from the mine?

               A. Yes.

               Q.  So  complying  with  the   terms  of  the
               standard requires that you violate it?

               A. If there are people underground.

               Q. Okay.  So you're required to  evacuate the
               mine in order to comply with the terms of the
               standard?

               A. Yes.

     Mr. Salois stated that if a hoist is down for  more  than an
hour, and people cannot be evacuated in an hour or more, and repairs
cannot  be  made  within  an hour, a section 104(a) citation  will 
be  issued,  and  the  reasonable  time  for abatement would be one
hour regardless of the circumstances. Based on the standard, he did
not believe  that an inspector has discretion to grant more than an
hour to  abate  because two  properly  maintained  escapeways would 
not be available (Tr. 119-121).

     Peter M. Tiley, Chief, Tiley and Associates, has been in the
mine hoisting consulting business  since  1972, and his work includes
the  engineering  and  installation  of  hoisting systems. His first
involvement with the AKZO hoist was  in 1977  or 1978,  and  he  is
very  familiar  with  the  mine production hoists, having studied 
them for years, but not so familiar with the service hoist (Tr. 3-10).
He  explained  the  problems  and  solutions  associated  with  the 
production hoists in the mine working environment (Tr. 10-16).

     Mr. Tiley stated that the atmosphere in the AKZO  mine shaft
is a moist and  salty  corrosive atmosphere, and he would expect
the  hoist  ropes to endure  this  corrosive  impact during their
life.  Corrosion is a part of the deterioration process until the
ropes  are  retired  and he would consider this to be "possibly" 
damage.  He would consider a wire that breaks due to corrosion to
be damaged, and that "it's just  degree,  how  fast  is  corrodes
. . . . ongoing deterioration.  I don't  know  if  you  call  it
damage or not" (Tr. 18).

     Mr. Tiley explained what occurs during the  hoisting cycles,
including rope fatigue and stress (Tr. 22-26).  He confirmed that
he has monitored the retirement of the mine  ropes over the  last
several cycles and had an idea as to how  long  the  hoist  ropes
last.   He  stated  that  the ropes appear to be wearing out from
corrosion  rather  than   metal   fatigue,   and that lubrication
is necessary to enhance the useful duration of the ropes (Tr. 28).

     Mr. Tiley stated that he was aware of the citations, and the
cited regulations,  and has reviewed the December 8, 1995, Gomez
letter to AKZO counsel Savit  (Tr.  31).  Based on his experience,
Mr. Tiley stated his understanding as to how the term  "damage"  
in  connection  with hoisting operations  is generally understood
and used in  the industry as follows at (Tr. 31-34):

               A.   Sure.  Damage,  in  my  experience,   is
               something  that  happens to a hoisting system
               that is unusual and is cause for stopping the
               hoisting  system  and   reviewing   what  has
               happened and then deciding whether the damage
               --  what  has been termed damage will impinge
               upon safe --  further  safe  operation of the
               hoist.

               Q. Well, is maintenance ever required  to fix
               damage?

               A.  No.   I  say repair is for fixing damage.
               Maintenance  is  carried  on  to  avoid  this
               unusual occurrence, which -- which I consider
               to be what damage is.

               Q. So you read  the  word  "damage"  in  very
               narrow  sense  as  to  being  something which
               actually stops it from working?

               A. Not necessarily stops it from working, but
               you  must  pause  when  you  have  discovered
               something  that's  caused  damage  and decide
               whether  or not it is severe enough that  you
               should stop the hoist or not.

               Typically,  when  I  get  phone  calls,  it's
               through  damage  and they want to know, do we
               have to change the  oil  in this bearing now,
               for example, and do we have  to  get somebody
               in to look at this thing that's happened.  So
               it's an unusual
               occurrence that requires some stopping in the
               hoisting  activity  to  decide  whether  this
               reported damage is serious or not.

     Mr.  Tiley  was  of  the opinion that metal fatigue  is  not
damage  because  "that's  the  physics of the material responding
to stress." Broken wires in a lay of  rope  may  or  may  not  be 
considered damage, as opposed to metal fatigue, depending on how
many wires are broken.  He believed  that damage begins when rope
retirement  is  required, and that prior  to this time "it's just
useful life"  (Tr.  33). He explained that ropes  arriving  from 
the manufacturer have broken wires "as part of the way they  are
made,"  and this does not mean that the rope is damaged.  However,
failure of the mechanical structure that falls because of metal 
fatigue would be damage (Tr. 34).

     Mr. Tiley was of the opinion, based on his experience,  that
changing hoist ropes with miners underground where there  is only 
one additional  way out of the mine is a good mining practice and
fairly normal process in the worldwide mining community (Tr. 35). 
He is aware that MSHA  has  required  a mine  evacuation  by  its 
application of the one hour rule, and stated  "I  understand they
want to make sure that they can get men out  of  the  mine in  an 
hour period, at least through one way" when one of the two  ways
out is not available for use (Tr. 36-37).  He further explained 
his understanding as follows at (Tr. 37):

               Q. Now, is it your understanding that that is
               the practice in American mines,  that you are
               aware of?

               A. Yes.

               Q.  That they will evacuate the mine  if  the
               hoist  is  down,  within an hour once it goes
               down?

               A. Yes.  My experience  with  them  has  been
               that if they -- they can foresee an outage of
               longer  than  an hour, then they evacuate the
               mine.

     Mr. Tiley stated that if a hoist goes down halfway through a
shift and it appears that it will take an hour and a half to repair
it, the standard practice would be to initiate a mine evacuation,
and if it were  fixed  in  that  time frame, the evacuation  would
be  rescinded  and those people  who  had already been evacuated 
would go back  underground.   If  the hoist is still down at the 
beginning of another shift, it is not  customary  to lower men in
the other hoist while one of the two hoists is out of commission.
This is because if you know that one of  the  hoists  will be down
for a long time, you do not have two escapeways (Tr. 41).

     Mr. Tiley stated that he considered  "damage" to be some out
of the ordinary occurrence that has resulted from a failure of a
part   or  due  to  either  external  forces  or  a manufacturing
defect   that  wasn't  apparent (Tr. 4).  As a general rule, hoist
failures that tend  to  occur frequently and  need  to  be  dealt
with fall into five major  areas  - namely, ropes, a skip  stuck 
in  the dump,  problems  with  the  dumping  mechanism,  failed  
electrical   relays  and  limit switches, and defective electrical
rotating  equipment. He would  consider some of these items to be
damaged, including brake linkage pin breaks, a kink in a wire rope,
or a broken or bent skip wheel that causes skip jamming (Tr. 44).

     Mr. Tiley  believed  that  on  a  good hoist installation, a
hoist should be available 80% of the  time,  and the rest of the 
time spent on  maintenance,  but  he  has  not  tracked  AKZO  to 
determine the production/maintenance timing (Tr. 46).  He did not
believe that much meaningful hoist maintenance work can be  done
in less than an hour, and that changing all bearing lubricants,
cleaning and testing electrical rotating equipment, including 20
safety  devices,  would each  require  three  to five  hours  on
scheduled maintenance  days which are not necessarily on weekends.
Further, each of  these  items cannot  be completed efficiently 
if they are done piecemeal, and it takes  time  to  prepare  and 
finish the work (Tr. 47).

     Mr. Tiley  stated  that  his prior statements concerning the
practice of allowing miners to  remain  in a two shaft mine where
one of the hoists is down, and provided the second hoist is still
available, did not apply to United States miners, but to Canadian
miners where the  mine  is  not shut down  for  hoist maintenance 
or  changes.  This  practice complies with Canadian  mining  laws 
requiring two escapeways, but this varies from province to province
(Tr. 51).

     Mr. Tiley stated that based on his probability analysis, the
chances  of  both hoists being inoperative at the same time for a
period exceeding one hour is "once every hundred years" (Tr. 52).
He confirmed that corrosion in the wire rope  constitutes  damage
and  that  when  a  rope exceeds 10 percent strength loss it must
be retired from  service.  The last production ropes were retired
after approximately  18 months  because  tests   indicated  they 
were  damaged  and exceeded the 10 percent  retirement  criteria
(Tr. 56).

     Mr.  Tiley  stated  that  it  was   his   understanding  and
experience in the  United  States  that  the  law  requires  mine
evacuation if the hoist is going to be down for more than an hour
(Tr. 56-60).  He agreed that  major,  unplanned  accidents  have 
occurred in metal/non-metal mines in the last 15 years, and  that
miners were possibly at  greater  risk  if  there  was  only  one 
escapeway  rather than two (Tr. 62). He believed that maintenance
and  repair  of  shaft  equipment is a necessary and ongoing task
and that its purpose is to obtain maximum life and  productivity
of  the  equipment and to maintain it in safe condition  for use
(Tr. 63).

     Mr. Tiley  stated  that  based  on  his  review  of the mine
maintenance records at the Cleveland  Mine  and  other  mines  he
believed  that  AKZO's  preventive  maintenance program was above 
average,  and  he  described  what  transpires  on  an  average 
maintenance  day (Tr.  68-69).   He  explained  the reasons for 
shortening  the  hoist  ropes as follows at (Tr. 73-74).

               A. There's two reasons why -- well, the ropes
               have to be shortened in order  to  make  them
               equal  length;  and  the  reason  they're not
               equal length is ropes stretch from  the  time
               they're  put  in the shaft.  They stretch for
               two reasons.

               The original rope  that  goes  in  there  has
               spaces  between  the  various  wires, because
               when you form the rope, you must  have spaces
               between  the  wires.   You  can't  put  wires
               together  with  zero  clearance.   So  as the
               tension is put on the rope, it contracts and,
               therefore,   stretches.   Now,  this  stretch
               occurs  --  a large  amount  of  the  stretch
               occurs in the first month or so of operation of
               the hoist rope, and then it settles down;  and
               the  rest  of the  stretch  is  a  result  of
               fatigue of the wires.

               Q. So the initial  stretch  of  the  rope  is
               expected to occur; is that correct?

               A. Yes.

               Q. Is it damage to the rope?

               A. No.  It's -- nothing's changed in the rope
               excepting  it's shrunk to the point where the
               clearances  in   it   have   more   or   less
               disappeared.

               Q. So as the rope stretches initially, it has
               to be shortened so that the ropes will be  of
               equal lengths?

               A. Of equal length, yes.

     Mr.  Tiley  stated  the  rope will eventually stretch to the
 point  where it  is  no  longer  suitable  and  when  there  is
 significant fatiguing of the wires it is time to change the rope.
 When asked  about the rope shortening in question, he  replied 
 as follows at (Tr. 75):

               Q. So to the  best  of  your knowledge and in
               your expert opinion, were  any  of  the  rope
               shortening  occurrences  that you observed in
               your  review  of  the  records  at  the  AKZO
               Cleveland Mine based on damage to the rope?

               A. It depends whether you consider fatigue of
               the wire as damage or not.   I don't consider
               it  damage,  but  it could be interpreted  as
               damage on a microscopic scale.

               Q. Were the ropes that  you know of stretched
               to a point where they were  no longer fit for
               their intended purpose?

               A.  No.   They  weren't  retired  because  of
               stretch.

     H.  John  Head  holds  an MBA degree in  management  and  an
undergraduate degree in mining engineering. He is employed as the
director  of  the  technical  services  division  of  Archibald 
Mining  and  Minerals,  a  mining engineering consulting services
company.  He  was  previously  employed  with  other  consulting 
companies, and also worked for the Morton Salt Company from 1982
to 1990, as mining engineering manager (Tr. 5-11, 17).

     Based on  his  knowledge  of the industry, Mr. Head believed
that the present evacuation  procedure for mines with two shafts
is that if one hoist is out of service for more than an hour the 
mine is evacuated, and this is standard practice among  several 
MSHA districts. He stated that during  his contacts with a number
of  mine  operators concerning their current practices,  all  of 
them confirmed that their practice was  to  evacuate  the  mine. 
Further,  they  all  appeared  to  recognize  that  there  was a 
change in MSHA enforcement policy in  the  past  two  or three 
years.  He identified the prior policy as the one followed  by 
Mr. Salois and his inspectors in MSHA's North Central District.
That  policy  recognized that  if  hoists  were  down,  it did 
not pose an evacuation problem  until  the  end of the shift,
but  if  the  outage extended beyond the end  of  the shift, the
subsequent shift was not sent down and the shift  that was in 
the mine should be brought  out  at  the  end  of  their  shift 
(Tr. 24-25).

     Mr. Head identified several other  mines  where  this policy
was  followed,  and  his  general understanding was that  at mines
with two shafts, "if  one  hoist  went down, you could work in the 
mine until the end of the shift."   This  was  his  understanding  
while working at Morton Salt when he  was  in daily  contact with
several   mine   operators,  and  the "Cleveland  issue  made  me 
aware  that  the situation  had changed."  He confirmed that he 
never spoke to MHSA about the practice of not withdrawing miners,
but he  was  reasonably  sure that MSHA inspectors were at mines
with hoist outages, but made no comments (Tr. 30-32).

     Mr. Head stated that in  mines  with  numerous  shafts,  the
present two shaft evacuation issue would not apply. He identified
other  mine operations that followed the prior practice followed
at Morton Salt (Tr. 34-35).

     Mr. Head defined "damage" as follows at (Tr. 37-39):

               A. Unexpected faulty condition.

               Q. How about  fixing something that's broken?
               Would that be --  if  you're fixing something
               that's broken, would that be fixing damage?

               A.  I  think  damage  implies   a  degree  of
               uncertainty.  Simply fixing something  that's
               broken  doesn't necessarily imply whether  it
               was damaged  or  whether  the damage occurred
               over a period of time.  So I think damage has
               a time sense to it.  Simply  saying something
               was broken doesn't necessarily imply time.

               Q.  So if the power is out, the  hoist  isn't
               damaged, it's just not usable?

               A. That's correct.

               Q.  And  before  a  wire  rope  gets  retired
               because it's worn out, too damaged, it's just
               wearing out?

               A. It's just wearing out.  That, to my mind -
               - damage  implies  the  reverse of preventive
               maintenance,  damage  implies  an  accidental
               situation,  sudden  occurrence.   Clearly,  a
               rope  that  is  seriously  corroded  is  also
               damaged, but it's  not  --  it's  not  broken
               because  of  damage,  it's  broken because of
               gradual corrosion.

               * * * *

               Q. If a guide in a shaft gets  bent,  is that
               damage to the guide?

               A.  If  it happens suddenly.  If there is  --
               you know,  a  problem  with the guides, and a
               shoe on the skip catches a guide and pulls it
               out  of  line,  that's  clearly  damage.   If
               there's a gradual creeping,  for  example, of
               the salt and, therefore,
               the guides start to impinge on the  skips,  I
               don't consider that damage.

               Q.  But  both  might  have  to be replaced in
               order to make it function right, correct?

               A. Correct.

               Q.  And  you would be replacing  a  piece  of
               metal that was damaged with one that was not,
               wouldn't you?

               A. Correct.

     Mr. Head stated that  the  probability  of  two hoists being
down at the same time is low and he discussed these probabilities
(Tr. 40-45).  He agreed that unplanned accidents occur in mining,
and in his experience hoist preventive maintenance is taken very 
seriously (Tr. 45, 48).

     In  response to AKZO questions, Mr. Head confirmed that when
he managed  the  Morton Salt Weeks Island mine from 1984 through
1985, the standard practice he followed was to allow people to work
to  the end of the shift when a hoist  was unavailable and not to
lower the next shift into a situation where one hoist was shut down 
(Tr. 50).  He believed that an acceptable hoist planned shut down 
period would be more than an hour and less than six hours, based on
different maintenance and production circumstances, including the
number of  miners  underground at any given time, and their hazard
exposure (Tr. 52-54).  Based on his calculations, the probability 
of two hoists being out at the same time would  be  "once every 
20-odd years" or "something like every 450 years"  based  on the 
two different ways that he calculated these failure probabilities
(Tr. 55-56).

     Thomas D. Barkand, MSHA Hoist Safety  Specialist,  testified
that he has a B.S. degree in electrical engineering  and  an M.S. 
degree in industrial engineering from the University of Pittsburgh, 
and  has worked for MSHA since 1980.  He serves as a consultant on 
safety  issues regarding mine hoists and elevator  safety,  and  
conducts   testing   of  hoists  and elevators.   He  has  never
supervised  the  day-to-day  operations of a hoist (Tr. 6-8).

     Mr. Barkand stated that he visited  the  Cleveland  mine  on
November 28 and 29, 1995, and April 2, 1996, and made notes of his 
visit  (Tr.  9).   He  disagreed  with  Mr.  Head's calculations
of the probability of failure of hoists, and he explained   his
reasons (Tr. 13-17). He explained his experience with frictional
hoists and stated that the regulations do not explicitly require
preventive maintenance on hoists. He defined preventive maintenance
as  "maintenance  performed  to  keep  a hoist functioning" and to 
prevent  "failures of the operation of the hoist" (Tr. 19-21).

     Mr. Barkand defined "damage" as follows at (Tr. 21-22):

               A. Yes, I can.  My --  I  think the confusion
               surrounding damage has been  that some people
               consider damage to be a short-term  effect, a
               sudden   impact  or  collision.   And  in  my
               broader  view  of  damage  it  also  includes
               effects from  long-term exposure to corrosive
               elements causing corrosion, as well as short-
               term effects.

               Q.  Is there a difference  in  your  judgment
               between  damage and what we would call normal
               wear and tear?

               A. No.  Normal  wear  and tear does, in fact,
               cause damage to the device.

     Mr. Barkand was of the opinion that damage to equipment on a
car engine begins from the day one owns it and as soon as it is
placed in operation.  He confirmed  that  when he sold a used car
he did advertise it as "use for parts" because it was damaged and
not just used (Tr. 24).  He confirmed that his belief that wear
and  tear  and  damage are the same is from a dictionary and not 
from any written  MSHA definitions (Tr. 24).

     Mr.  Barkand  agreed  that  preventive maintenance  prevents
failures and can lessen the onset  of  damage,  but believed that a
piece of equipment that has been disabled  is damaged because  it's
unable to do its intended function (Tr.  25). He also considered  a 
locked out piece of equipment to be damaged "in its broadest sense"
(Tr. 26).

     Mr.  Barkand stated that rope "construction  stretch"  is  a
term that  applies  to the initial stretching of the rope in which
the wires are brought  into  closer  proximity to each other, and 
that this is expected (Tr. 32).  Apart from wire wear and nicking,
which are the primary causes of damage and wear, the fact that the
rope gains length and  loses  diameter  through  the  process  of 
"construction stretching," is not, of self, damage.

     Mr. Barkand did not know whether any of the rope shortenings
at the mine were undertaken because of rope construction stretch. 
He did not believe  that  the  rope  shortening on December  24, 
1995, was due to construction stretch  because he recalled  that 
the records reflected that the ropes were put  in  service  five  
months  or more prior to that time (Tr. 35).  He confirmed that
as a rule, a rope must be retired when it loses 10 percent of 
its baseline diameter as measured  after  the rope has stretched
(Tr. 36).

     Mr.Barkand stated that he has had experience  with  problems
associated with new hoists placed in service for a  period  of  a 
month and has spent several weeks on site addressing those problems.
He identified the problems as safety devices that require calibration,
deceleration  cams  that  need  to be physically ground on a brass,
and  needed  adjustments  to  the  current  protection  set  points 
(Tr. 38-39).  In response to a question  as  to whether he believed
these items constituted damage, he responded as follows at (Tr. 39-40):

               Q. All right.  So are those things damaged?

               A.  The   devices   are  not  functioning  as
               intended.

                Q. Yes or no.  Is it damaged?

                A. In the instance --  in the examples I just
                cited they are calibration problems.

                Q. Do you understand the phrase yes or no?

                A.  In  that  example,  no,   they  were  not
                damaged.

                Q. So if I were to miss one in  my  otherwise
                rigorous testing process, and find out  after
                it had been placed in service that it was not
                calibrated  correctly,  and I had to stop the
                hoist  and  recalibrate  that  control,  that
                wouldn't be damage either, would it?

                A. It's repair.

                Q. But it's not damage, is it?

                A. Something was calibrated wrong.

                Q. I tried to do a rigorous  analysis to find
                it.  I missed it.  I put in into  service and
                it is still recalibrated wrong, the  same way
                I  got  if  from the factory, the same way  I
                installed   it.    Then   I   discover   it's
                calibrated wrong.  Is it damaged or not?

                A. In the broadest  sense  of damage it would
                be.

      Mr.  Barkand  stated  that  he  did not review  any  records
concerning hoist outages at the mine and did not know the frequency
of hoist unexpected unavailability  (Tr.  41).  He confirmed  that 
he did not closely examine the hoist ropes, but observed that they
appeared  bare  and moist with some fine  salt  particles (Tr. 43).
He stated that the regulations require nondestructive rope testing
at intervals not to exceed six  months,  and  based  on his review
of the records these tests were being performed (Tr. 46).

      Mr. Barkand stated that a rope could have  a broken internal
wire with no surface indication on the rope  itself and that this 
occurs even during the manufacturing of the  rope  (Tr. 48).  He 
did not believe that the maintenance of 100 percent availability 
of two independent hoisting  systems  is achievable.   The  mine
production  plan  calls  for  people underground 24 hours  a  day,
seven days a week, engaged in production activities unrelated  to
hoist maintenance. With this plan, it is difficult to comply with
the minimum two escapeway requirement because system failures are
bound  to occur (Tr. 52).

      Mr. Barkand stated that the regulation requires two properly
maintained  escapeways  at  all times, and if one is not operable,
this would constitute non-compliance (Tr. 55).  He confirmed  that
he has recommended the development of a comprehensive  preventive
maintenance  program  for implementation  during  the  maintenance 
shift to increase the reliability and availability of escape routes
(Tr. 61).

      Mr.  Barkand  stated  that  a  hoist switch  that  sometimes
malfunctions would be considered damage and that his review of Part
50  accident and injury  abstracts  for  a  ten-year  period  from
1978-1988, reflects  that mine operators have reported hoist outages
exceeding 30 minutes  due  to  power  failures.  He concluded from
this that operators understand the "damage" reporting requirements
when a hoist is unavailable (Tr. 63-64).

      In reply to further AKZO  questions, Mr. Barkand stated that
approximately 600 Part 50 accident  reports  were  submitted during
the aforementioned 10-year period and that 40  or 50, or less than 
10 percent, concern  hoisting.  The  summarized  incidents  listed  
appear  to be "normal wear" items (Tr. 67-68), with regard to the 
listed  eleven  "power  outages," he presumed they were possibly 
nonscheduled (Tr. 71).   He  was not aware of any official MSHA 
guidance as to whether ice in a shaft has to be reported (Tr. 72-73).

       Arguments Concerning the Interpretation and Application of
      30 C.F.R. 50.10

      The  two  alleged violations of reporting standard 30 C.F.R.
50.10, as noted in section 104(a) non-"S&S" citation numbers 4100787
and  4546275, concern a November 9, 1995, production hoist outage of
approximately  50  minutes while two of the four hoist ropes were 
shortened, and  a December  24, 1995, production  hoist  outage due
to  maintenance  service  to shorten  four stretched ropes. Citation
No. 4100787, states that the hoist was "disabled" while the rope 
shortening work was performed,  and that this interfered with the 
use of the hoist for more than thirty minutes. Citation No. 4546275,
states  that  the  hoist  was  "damaged" in that it was unavailable
due to the maintenance work being performed, and that the "damage" 
interfered with the use of  the  hoist for more  than  30  minutes.
AKZO  allegedly  violated section 50.10, by failing to immediately 
report these hoist outages. MSHA  takes the position that the cited
hoist outages were the result of reportable accidents under section
50.10, in that  both  hoists  were "damaged" within the "accident"
definition found in section 50.2(h)(11).

      AKZO argues that  MSHA  has  adopted a bizarre view that the
maintenance  work  conducted  on  the  cited  hoists  constitutes 
"accidents"  within the meaning of section 50.2, and  that MSHA's
interpretation  not  only  defies  reason  and common sense,  but
also  impermissibly expands the reporting requirements of section 
50.10.   AKZO  maintains  that  the hoists  were  not  "damaged"
within  the  meaning  of   50.2(h)(11),   but  were  undergoing 
routine,  preventive maintenance.  AKZO  asserts  that  in order 
to arrive at its current position, MSHA has given the  operative
words in the  applicable  regulations  meanings  which  directly 
contradict their ordinary use and meaning.

      Citing several supporting cases, AKZO asserts that canons of
statutory construction require that statutes and regulations be 
applied so as to give effect  to  the  plain  meaning  of words. 
AKZO points  out  that  the  applicable  definition of "accident"
found in section 50.2(h)(11) involves damage to hoisting equipment.
Since the regulations  do  not  provide a definition for "damage,"
AKZO asserts that its common and ordinary  meaning  should apply.
Citing Merriam  Webster's Collegiate Dictionary 291 (5th  Ed. 
1993), AKZO states that in  its  ordinary usage, "damage" means
"loss or harm resulting from injury to person, property . . . "

      AKZO maintains that MSHA has taken a view which contorts the
word  "damage"  beyond  its  ordinary  meaning.  AKZO  cites  the 
conflicting testimony interpretations of the word "damage" by MSHA
officials, and characterizes  it  as  "tortured  and far-fetched."
As   examples,  AKZO  cites  the  following testimony  by  MSHA 
officials   with   respect   to   their understanding of the term 
"damage":

                Anytime  that  I  can't  use  something, it's
                damaged; If I have brakes on my  car that are
                worn  out  or  need adjusted, there's  damage
                that  needs maintenance  to  it."   (C.  Okey
                Reitter).

                Statement   of  Rodric  Breland  that  damage
                occurs instantly from the moment equipment is
                put into use.

                " . . . damage  begins  the day you put those
                ropes on, they begin to wear"
                " . . . used necessarily  means damaged," and
                both wear and use constitute damage (James E.
                Salois).

                Statement by Herbert D. Bilbrey  who  defined
                damage  as "inoperative," but did not believe
                equipment which is intentionally taken out of
                service was "damaged."

      AKZO argues that these  proffered  definitions  of  "damage"
reflect a confused understanding  of that term  and  are  clearly 
beyond the meaning found in Potash  Company of America, 4 FMSHRC
56 (January 1982)(ALJ Stewart). In that case,  a fire in the power
plant control room caused a power failure that affected the use of
two underground mine hoists for more  than  30  minutes. The power
outage lasted for approximately two hours. The man hoist normally
used to hoist men was not energized until two or three hours after
power  was  restored because of circuit  modifications  that were 
necessary to utilize outside power.

      Potash was charged  with  a  violation of section 50.10, for
not immediately reporting the  "accident" to  MSHA.  The inspector
who issued  the  citation  believed  that  an "accident"  under 30
C.F.R. 50.2(h)(11) occurs  any  time  a hoist is "down" for more
than 30 minutes  for  any reason, without regard to damages, and 
that a  hoist  is  "damaged"  within  the  meaning  of  30 C.F.R. 
50.2(h)(11),  whenever  there  is an unplanned hoist outage for any
reason.

      Potash took the position that when a hoist  is  not damaged,
but simply disabled by  a loss of electrical power  that affects  
the  mine  in  general, no  "accident'  within  the meaning  of 
section 50.2(h)(11)  occurs,  and  there  is  no  obligation  to 
immediately report the loss of power pursuant to section 50.10.
MSHA's  belief  that the issue presented was whether an unexpected
fire causing  disruption  of power to  a  hoist  for  more  than 
30  minutes  is an "accident"  requiring immediate notification 
pursuant to  section 50.10, was rejected as too broad by Judge 
Stewart, and  he  limited  his decision to the specific facts of
the case.

      MSHA  argued  that in a lay sense the fire and loss of power
to the hoists were "accidental," and that the  hoisting  equipment 
was "damaged" because its usefulness was impaired. As support  for
this  argument, MSHA relied on The American Heritage Dictionary of
the  English  Language  (1976), which defines "accident" as: "1. 
An unexpected and undesirable  event; a  mishap. 2. Anything that
occurs unexpectedly  or unintentionally."  The dictionary defines
"damage"  as "Impairment  of  the  usefulness  or value of person
or property; loss; harm."

      Aside from the "lay definition" of "accident," MSHA asserted
that the triggering alternative element  for  the  definition  of  
"accident" as defined in section 50.2(h)(11) "or which interferes
with  use  of the equipment for more than thirty minutes" existed
because  there was no power to the hoists from 9:40 p.m. to 11:35 
p.m., and the hoists  were not energized until 2:00 p.m.  Although
MSHA  conceded that the hoists  were  not  physically  damaged as
a result  of  the powerhouse fire and loss of power, it contended
that the loss of electrical  power to the  hoists,  without  more, 
was a reportable accident within the meaning of sections 50.10 and
50.2(h)(11), because  of  the  loss of power interfered with the 
use of the hoists for more than 30 minutes.

      Judge Stewart found that it was  clear  that  section 50.10,
was not intended to  require  the  reporting  of every unexpected 
and  undesirable  event  or mishap, and that when read in context
with the  regulatory  definition  of  "accident,"  the  kinds  of 
accidents  required to be reported are  limited  to  the 12 types 
listed in  section  50.2(h). Judge  Stewart  concluded  that  the 
pivotal  question  was whether the hoist interference was due to 
physical damage to the hoisting equipment.

      Judge Stewart found  no  basis  to  support  the inspector's
belief that a power outage for any reason constitutes damage to the 
hoisting equipment when  no  physical  damage  to  the  equipment
occurs as  a result of the outage.  Under the circumstances, he 
concluded  that  the  power  outage  was  clearly  not reportable 
under the requirements of section 50.10, and vacated the citation.

      AKZO contends  that  the  Potash  case  limits the reporting
requirements of section 50.10 to the specific  events listed in 
section 50.2(h), and it points out that the judge  relied on an 
MSHA publication (Information Report on 30 C.F.R. Part 50) which
provided  the  following  "Question  and Answer" guidance as to 
what constituted damage to hoisting equipment under section 
50.2(h)(11):

                41.  Q.What  constitutes  "Damage to hoisting
                     equipment  in  a  shaft or  slope  which
                     endangers   an   individual   or   which
                     interferes with the use of the equipment
                     for more than 30 minutes"?

                A.   Damage may be considered to be caused by
                     some  accident  that  involved  hoisting
                     equipment, or resulting from hoisting

                     equipment failure.  A natural occurrence
                     such as ice in a  shaft  may  cause  the
                     shaft and hoist to be shut down for more
                     than  30  minutes.   However,  where  no
                     accident   occurs,   equipment   is  not
                     damaged,   and   no   individuals   were
                     endangered, the natural occurrence would
                     not itself be reportable.

     AKZO  further argues that even if the plain meaning rule  or
applicable precedent  were  not controlling, "damage," within the
meaning of  50.2(h)(11), should  be  considered " . . . in light
of  what a reasonably prudent person, familiar  with  the  mining
industry  and  the protective purpose of the standard, would have
provided  in  order  to  meet  the  protection  intended  by  the
standard."  Savage  Zinc,  Inc.  v.  MSHA,  17  FMSHRC  279,  283
(February  1995),  quoting  Diamond Roofing v. OSHRC, 528 F2d 643
(5th Cir. 1976).  Since it believes  that the regulations give no
indication  that  the work "damage," as  used  therein,  has  any
meaning other than  that in ordinary usage, AKZO concludes that a
reasonably prudent miner  would operate on the belief that damage
means "loss or harm resulting  from injury" rather than "used" or
"worn."  In support of this conclusion,  AKZO cites the testimony
of  Peter  Tiley,  who  defined  damage as " .  .  .  an  unusual
occurrence that requires some stopping  in  the hoisting activity
to decide whether this reported damage is serious or not."

     Applying  the  common  or  ordinary  meaning   of  the  word
"damage," AKZO further concludes that it is  evident  that  there
was no damage to hoisting equipment in this case as there  was no
loss  or  harm  to the property.  AKZO points out that it did not
experience any problems  with  the use of the hoisting equipment,
nor had it received any complaints  about  the  operation  of the
hoists.   It  takes  the  position  that the equipment was simply
taken out of service as a preventive  care measure, and that such
routine  maintenance  does  not  constitute   damage  within  the
ordinary meaning of that word.  Further, based  upon  the  Potash
analysis, AKZO maintains that the closure of the production shaft
hoist  for  routine  maintenance  purposes does not constitute an
accident under  50.2(h)(11), and,  therefore,  is not reportable
under  50.10.  As in Potash, AKZO points out that  there  was no
hoist malfunction or physical damage to the hoisting equipment as
a result of the closure for maintenance.

     AKZO  maintains  that MSHA's guidelines indicate that if  no
accident occurred and no  equipment  is  damaged, the incident is
not  reportable.   AKZO  asserts  that  both  closures   of   the
production  shaft  hoist  fully  meet MSHA's own criteria in this
regard, and that not only did the  outages  last  no  longer than
three and one-half hours, the outages did not involve any of the
circumstances, incidents or occurrences enumerated in   50.2(h).
Although the production shaft was not available for more than  30
minutes,  there  was no physical damage as contemplated by Potash
and the MSHA guidelines.   Under all of these circumstances, AKZO
believes that no violation of section 50.10 occurred.

     AKZO  concludes that MSHA's  interpretation  fails  to  give
operators fair  notice  of  which  conditions  would  trigger the
reporting requirements under section 50.10.  AKZO points out that
while MSHA contends that the regulation applies whenever there is
interference with hoisting equipment for thirty minutes,  it also
appears  from  the  Gomez  letter  of December 8, 1995, to AKZO's
counsel, that MSHA has taken the broader  view that section 50.10
is violated anytime hoisting equipment is interfered  with.  AKZO
maintains  that this interpretation would render practically  any
and  all  maintenance   activities  at  a  mine  "damage,"  which
potentially could require  notification  to  MSHA  each and every
time maintenance activities are undertaken.

     AKZO  concludes that it did not violate regulation    50.10
because the  production  shaft  hoist  was not damaged within the
meaning  of  50.2(h)(11), and thus there  was  not  an  accident
within  the   meaning   of     50.2(h).   The  regulations  very
specifically detail, in  50.2(h),  the circumstances, incidents,
and  occurrences  to  which  the  term "accident"  applies.   The
subsection  under  which  MSHA cited the  Cleveland  mine  states
explicitly that there must  be  damage  to the hoisting equipment
which  interferes with its operation for 30  minutes  or  longer.
Further,  since  the  regulations  do  not  define  "damage," the
ordinary meaning of that word should be applied in determining
whether preventive maintenance activities which take more than 30
minutes  to  accomplish constitute a violation of  50.2(h).   As
there was no loss  or  injury which resulted from the maintenance
activities, there was no  damage  at  the  mine, and therefore no
violation of  50.2(h).

     MSHA argues that a hoist outage that prohibits  its  use for
more  than thirty minutes is a damaged hoist that is required  to
be immediately  reported  pursuant  to section 50.10.  Relying on
the Gomez letter, MSHA takes the position that the relevant issue
in a hoist outage is its availability  for  use, and if the hoist
can be activated quickly in the event that it  is  needed,  it is
not  damaged  and  does  not  have  to  be reported.  However, if
because of maintenance, the hoist is unavailable  to  be used and
cannot  by  placed  back in use within 30 minutes, MSHA concludes
that it is clearly damaged,  and  while  it  may be intentionally
disabled, it is damaged and unavailable nonetheless.

     MSHA asserts that there is no requirement  that  the damage,
loss, harm, or injury occur unexpectedly, and concludes that it
would be entirely inconsistent with the purpose of the regulation
to  allow  an  operator to intentionally disable a hoist that  is
being used as an  escapeway but to prohibit such actions when the
disabling of the hoist was unintentional.  MSHA contends that any
intentional  and  planned   actions   which   render   the  hoist
unavailable  for  use  are the equivalent damage, loss, harm,  or
injury to the hoist which have the effect of damaging it for some
period of time.  MSHA further concludes that when a hoist is shut
down for repairs and it  is  removed  from  a usable status for a
period of over thirty minutes, it has clearly  suffered  harm  or
loss  of  use  during that time period.  MSHA believes that it is
the period of time  that  it  is unavailable for use, not whether
the repair was planned or unplanned,  that  is the relevant issue
with respect to the reportability of the damaged hoist.

     MSHA submits that AKZO's interpretation  would allow a hoist
to  be  unavailable for extensive periods of time  without  being
reportable to MSHA, so long as AKZO could say the repair activity
was not caused  by  an  immediate,  unintentional,  or unexpected
"injury" to the hoist.  MSHA submits that AKZO's reading  of  the
regulation  would  allow the repairs and maintenance to go on for
days or weeks, and that its position is not reasonable because it
places far too much  emphasis  on  the  immediacy of the need for
repair,  and on the surprise nature of the  cause  of  the  hoist
outage, and not on the fundamental focus of the unavailability of
the hoist for use in an emergency.

     MSHA  concludes  that  there  is no basis in logic that only
unintentional, unexpected harm constitutes  "damage" as that word
is  used  in 30 C.F.R. 50.2(h)(11), and points  out  that  AKZO's
position does not acknowledge the obvious damage that occurs when
a hoist is taken apart in order to repair a damaged aspect of the
system, during which time the system cannot function when needed.
MSHA further  concludes  that if the hoist cannot be used because
of unintentional preplanned  dismantling  of  part of its system,
the hoist is damaged under either scenario and  that  such damage
or  unavailability  for use must be reported if it lasts  for  30
minutes or longer.

     MSHA maintains that  the regulatory reporting requirement in
section  50.10 in this case  is  clear,  and  that  a  reasonably
prudent person  familiar with the mining industry understands the
requirement to be  consistent  with MSHA's position.  Even if the
regulation were to be construed as unclear, MSHA asserts that its
reasonable  interpretation  is  entitled   to  deference  by  the
Commission.

     Citing a number of precedent cases, MSHA  argues that when a
statute is ambiguous, an adjudicatory body should  give deference
to the interpretation of the statute adopted by the agency
entrusted   with   its   enforcement,   and   that  the  agency's
interpretation must be accepted as long as it is not unreasonable
or inconsistent with the language or the purpose  of the statute.
MSHA  asserts  that  a statute or regulation that is intended  to
protect the health and  safety of individuals must be interpreted
in a broad manner to actually  achieve  that  goal,  and that the
issue  on  review  is  not  whether  the  agency's interpretation
represents  the  most  desirable  choice  in  the   view  of  the
adjudicatory   body,  but  whether  the  agency's  interpretation
represents a permissible  choice  in view of the language and the
purpose of the statute or regulation.

     MSHA maintains that requiring  the reporting of any incident
that makes the hoist unavailable for  more than 30 minutes is the
only  interpretation  that  enhances  safety,   and  that  AKZO's
position to the contrary would thwart the objectives  of the Mine
Act  and  the regulation.  Citing the American College Dictionary
definition  of  "damage"  as injury or harm that impairs value or
usefulness, MSHA concludes  that  whenever a hoist (being used as
an escapeway) is unavailable for use  for  more  than 30 minutes,
with miners underground, it is damaged, because it  is useless as
a means of escape and therefore it is required to be  immediately
reported.

           Arguments Concerning the Interpretation and
               Application of 30 C.F.R. 57.11050(a)

     The alleged violation of mandatory safety standard 30 C.F.R.
57.11050(a),  as  noted in section 104(a) non-"S&S" Citation  No.
4546276, concerns the unavailability of the mine production hoist
for  approximately  three-hours   and   thirty-seven  minutes  on
December 24, 1995, while the hoist ropes  were  being  shortened.
The incident was staged to test MSHA's enforcement interpretation
of the regulation, and it would appear that  MSHA  was  on notice
and cooperated and participated in the staging.

     AKZO  asserts that section 57.11050 requires only that  each
mine be equipped  with  "two escapeways to the surface," and that
its purpose is to ensure  that,  in the event one of the ways out
of the mine cannot be used, there  is  an  alternative  means  of
escape  available.  AKZO maintains that the standard contemplates
that there  will be occasions when that purpose is not fulfilled;
that  is, that  one  means  of  egress  from  the  mine  will  be
unavailable, but the second means, as required by the regulation,
will be  fully functional.  AKZO believes that the fact that only
one of two  escapeways is functional for some period of time does
not mean that  the  operator  has  failed  to comply with section
57.11050,  but  rather,  that  it  has  complied with  it.   AKZO
concludes that to hold otherwise would mean  that the moment that
the standard accomplished its intended purpose, it would be out
of compliance.  AKZO believes that such a result would be absurd,
and it concludes that the regulation cannot be  read to mean that
two  escapeways  must already be functioning.  If this  were  the
intended  meaning,   AKZO  believes  the  regulation  would  have
required that there be  at least three escapeways so that, in the
event one was unavailable, there would be at least two operating.

     AKZO maintains that  the  mine  had  two  separate, properly
maintained  escapeways  to  the  surface in full compliance  with
section 57.11050.  AKZO asserts that  MSHA's  contention  that  a
violation   of   section  57.11050  occurs  the  moment  hoisting
equipment has been  shut  down  for  maintenance  purposes  for a
period  of  over  one hour, requiring immediate evacuation of the
entire mine, is not  supported by the statute, the regulation, or
the relevant decisions.

     AKZO  cites  several  court  decisions  in  support  of  its
assertion that the  regulation  in question should be interpreted
as  a  whole to avoid conflicting inconsistent,  and  meaningless
interpretations.  It points out that under section 57.11050, AKZO
must not  only  provide two escapeways from the mine, but it must
also  ensure  that  the  escapeways  are  "properly  maintained."
Considered in this  light, AKZO concludes that issuing a citation
for taking an escapeway  out  of  service for maintenance clearly
violates the spirit and intent of the regulation.

     AKZO  asserts  that  at  the time  of  the  violations,  the
production  hoist  was  out of service  for  routine  upkeep  and
maintenance rather than repair  to  broken  or damaged equipment.
AKZO  points out that this maintenance work generally  takes  the
hoist out  of  service for periods no longer than a few hours, is
done relatively  infrequently,  and  that  during  this  time the
service shaft remains an  available, operable  escapeway  in  the
event  of an accident or emergency.  Simply put, AKZO points  out
that it  was  conducting  work  which  was  necessary in order to
comply  with the regulatory mandate that escapeways  be  properly
maintained.  AKZO concludes that it would defy logic to hold that
maintenance  activities  which  are  necessary in order to comply
with the regulation are, when undertaken, a violation of the very
rule which requires their undertaking in the first place.

     AKZO argues that while section 57.11050,  requires  that  at
least  two  escapeways  exist,  it  does not require that both be
functional  at  all  times,  but  only  requires  that  they  are
positioned   so  that  damage  to  one  shall  not   lessen   the
effectiveness  of  the  other.   Accordingly, AKZO concludes that
this  clearly  indicates  that the drafters  of  this  regulation
anticipated there may be occasions when not all escapeways are in
use.  In support of this conclusion,  AKZO  cites the MSHA policy
regarding former standard section 57.11-50, as noted in the
Potash  Company  of  America  case, 4 FMSHRC 56.70  N.8  (January
1982).   That policy allowed miners  to  remain  underground  the
remainder  of  the shift provided all personnel were notified and
were in agreement,  but  not  to  allow  the  next  shift  to  go
underground  until  the  hoist  was  repaired.   Recognizing  the
regulatory  language  "damage to one," AKZO does not believe that
this exception would not  apply  when an escapeway is temporarily
closed so that maintenance work can  be performed.  In this case,
the second escapeway was out of use for  only  three and one-half
hours while undergoing preventive maintenance.

     AKZO maintains that the issue is not whether  it  failed  to
have  two escapeways from the mine to the surface, but whether it
is required  to evacuate the entire mine while performing routine
required preventive  maintenance  which  renders  one  of the two
hoists  unavailable for more than one hour.  Since the regulation
contains  no  such requirement and, in order to adopt such a new,
substantive requirement,  AKZO maintains that MSHA is required to
comply with the notice and  comment requirements of both the Mine
Act and the Administrative Procedure Act ("APA").

     AKZO  states  that  prior  to   MSHA's   newly   articulated
compliance policy, it engaged in the practice widely accepted  in
the  mining  industry,  and  sanctioned  in  Potash, 4 FMSHRC 56,
allowing a mine to continue operation until the  end of the shift
when  only  one  escapeway  was  available,  provided the  miners
underground  were aware of the situation.  If,  however,  at  the
beginning of the next shift only one escapeway remained available
for  use,  the  next   shift   was  not  allowed  to  be  lowered
underground.

     AKZO asserts that there is  virtually  no guidance as to how
to  interpret section 57.1105(a) during the course  of  required,
routine maintenance, and that in a  situation  where  one  of the
hoists  is  not  operable  for  a period of time, analysis of the
standard  must  utilize  the  "reasonably  prudent  person"  test
applied for general or vague regulations.   In  this regard, AKZO
points out that over the years, the standard has  been subject to
several  changes in interpretation and implementation,  including
the uncertainty  as  to  the  existence of a national policy, the
"end of shift" rule noted in Potash,  the absence of any national
policy as expressed in the Gomez, Bilbrey,  Salois,  and  Breland
depositions,  the  February  1990  Salois Memorandum adopting the
"end of shift" rule in MSHA's North  Central  District,  and  the
February 1995 recision of the Salois 1990 memo which replaced the
"end of shift" rule with the one hour policy in the North Central
District.

     AKZO  cites  the  testimony of its expert witness John Head,
who has worked in the mining industry for 20 years, who stated
that the "end of shift"  rule appeared to be standard practice in
two shaft mines until two or three years ago.  AKZO further cites
a  Morton Salt Company March  1980  Memorandum  (Exhibit  Tab  D)
indicating  that  the  "end  of  shift" rule has in practice been
recognized in MSHA's North and South Central Districts.

     AKZO states that following the  recision  of the 1990 Salois
memorandum in February 1995, after the instant dispute had begun,
no written material was issued by MSHA to replace  it.   However,
AKZO asserts that notwithstanding MSHA's conflicting evidence  as
to  how  section 57.11050 should be implemented, it has attempted
to comply by following the policy most widely published as proper
policy --  the  "end of shift" rule.  AKZO contends that the fact
that  MSHA  itself   has  interpreted  the  regulation  to  allow
significant time periods  to  elapse  while work is being done on
the shift makes clear the fact that AKZO  acted  as  a reasonable
prudent person in complying with  57.11050.

     AKZO   argues  that  the  automatic  evacuation  requirement
engrafted by MSHA onto section 57.11050(a), is a substantive, not
interpretative  rule  that  is  subject to the notice and comment
requirement of both the Mine Act  and the APA.  In support of its
argument, AKZO points out that MHSA's  new  automatice evacuation
requirement  whenever a hoist may be inoperative  is  simply  not
expressed in section  57.11050(a).   Had  MSHA  intended that the
standard  contain  such a requirement, AKZO believes  MSHA  could
have (and should have)  included  it  as  part of the regulation.
Since MSHA has for almost 20 years consistently  interpreted  the
standard  not  to require any such action, AKZO maintains that to
now  engraft  such   a   new  substantive  requirement  onto  the
regulation is tantamount to  the  promulgation  of  an additional
rule, subject to the "notice and comment" requirements of section
101  of the Act, 30 U.S.C.  811, and section 553 of the  APA,  5
U.S.C.  553.

     AKZO  states  that  the automatic evacuation requirement has
never   been   subjected  to  notice   and   comment   rulemaking
proceedings, and has never been published for general circulation
in the mining industry.   AKZO  maintains that such a significant
new requirement should have been subject to review and comment by
the mining industry, and since it  was  not, the requirement must
be struck down and the citations vacated.

     AKZO  takes  note  of  the  following rulemaking  exceptions
applicable to substantive rules found  in  section  553(d) of the
APA:

          (1)  a substantive rule which grants or recognizes
               an exemption or relieves a restriction;

          (2)  interpretative   rules   and   statements  of
               policy; or

          (3)  as otherwise provided by the agency  for good
               cause found and published with the rule.

     AKZO  argues  that  the  APA  interpretative  rule exception
should  be  construed  narrowly, and that any deference  accorded
MSHA's  interpretation of  section  57.11050,  should  take  into
account the consistency and reasonableness of its interpretation.
On  the  facts   of   this   case,  AKZO  concludes  that  MSHA's
interpretation  should not be given  deference  because  the  new
compliance requirements  are  unreasonable  and inconsistent with
past interpretations over the years.

     AKZO   takes   the   position   that  MSHA's  newly   formed
interpretation of section 57.11050, is  a substantive rule rather
than an interpretative one because it "set[s]  forth  a course of
conduct or behavior to which employers will be held under penalty
of  law  and  has  sufficient  impact  to justify the notice  and
comment  procedure."   Matter of Chicago Aluminum  Castings  Co.,
Inc., 535 F.Supp. 392,397 (N.D.Ill. 1981); Carter v. Cleland, 643
F.2d 1, 8(D.C. Cir. 1980)(substantive  or legislative rule is one
that  has  the  force  of law and narrowly limits  administrative
discretion.)   Additional   cases   are   cited  holding  that  a
substantive  rule  is  one  that  imposes  obligations,   creates
additional conditions, or has a substantial impact on a regulated
industry or an important class of members.

     AKZO  argues  that  while  the  existing  regulation  merely
requires  that a mine have two properly maintained escapeways  to
the surface,  MSHA  personnel seek to interpret the regulation to
require the evacuation of the entire mine whenever one of the two
hoists  is "down" for  more  than  one  hour  (Reitter,  Breland,
Salois, and  Strickler  depositions).   AKZO  asserts  that  this
interpretation stands in stark contrast to the previously

accepted  and endorsed "end of shift" rule that interrupted  mine
operations only if the hoist was not back in service at the start
of the next  shift,  in  which  case  the next shift could not be
lowered  into  the  mine.   AKZO concludes  that  such  a  vastly
different implementation of a  regulation is clearly more than an
interpretative  rule,  and  as such  is  subject  to  the  notice
requirements of the APA.  AKZO further points out that MSHA's top
officials  indicated  that  MSHA's   interpretation   allows  its
inspectors no discretion in allowing a mine operator a reasonable
time  for  abatement,  and  they  agreed  that regardless of  the
circumstances, an operator was allowed only  one hour to evacuate
the mine if one of the two escapeways was not  available for use.
(Gomez, Reitter, Breland, and Salois depositions).

     AKZO maintains that beyond requiring an operator to evacuate
the  mine  when  one  of two escapeways is not available,  MSHA's
interpretation of  57.11050(a)  has  a  tremendous  economic and
operational  impact  on  underground  mine  operators because  of
increased costs of operating an underground mine by unnecessarily
interrupting workflow and productivity.  Conceding that financial
costs  are  clearly  not  an operator's sole consideration,  AKZO
nonetheless believes that MSHA's  evacuation  requirement  is too
broad-sweeping in that it establishes a definitive rule or course
of  action  in  the  event of a hoist outage without granting any
consideration  to  the  actual   hazard  or  risk  posed  by  the
situation.  AKZO asserts that this  goes  against  the Mine Act's
policy of giving consideration to several factors, including, the
risk or danger presented by the alleged violation, in determining
a reasonable period of time to abate a violation.

     AKZO  maintains  that  MSHA's  one hour automatic evacuation
requirement  represents a significant  departure  from  its  past
position  and  therefore   requires   APA  notice,  comment,  and
publication.  Notwithstanding the status  of  the  end  of  shift
rule, AKZO asserts that MSHA cannot deny that it was followed  in
a  large portion of the country for a substantial number of years
and  that  the new automatic evacuation requirement substantially
departs from it.

     Reviewing the limited circumstances under which the Mine Act
authorizes the  withdrawal  of  miners,  AKZO points out that the
violations issued in this case were issued as section 104(a) non-
"S&S" citations which do not grant MSHA authority  to  effect  an
evacuation of the mine.  AKZO contends that MSHA's action amounts
to  a  de  facto order of withdrawal, issued without statutory or
regulatory authority, citing Aluminum Company of America v. MSHA,
14 FMSHRC 1721 (October 1992).

     AKZO points out that section 104(a) of the Act requires that
MSHA fix a reasonable  time for the abatement of a violation, and
it cites the relevant Commission precedent cases establishing the

factors to be considered  by  an inspector in fixing a reasonable
abatement time.  In the instant case, AKZO maintains that none of
the  factors  were  followed by MSHA  in  requiring  a  one  hour
abatement time.

     On the facts of  this  case, AKZO maintains that there is no
dispute that there was no imminent  danger  at the mine while the
production hoist was out of service, and it points  out  that the
violation  was  issued  as  a  non-"S&S" citation with "unlikely"
injury or illness findings, and  that  MSHA  inspector Foster and
supervisory  inspector  Reitter  testified  that the  danger  was
minimal and that the normal hazards to which  miners were exposed
were not affected by the hoist outages.  Further, AKZO states
that the equipment was only out of service for  a period of three
hours,  another  escapeway to the mine surface was  available  in
case of an accident  or  emergency,  there were only three miners
underground, and no mineral extraction  was  taking place.  Under
the circumstances, AKZO maintains that the inspector  should  not
have  required  an  immediate abatement of the alleged violation,
but rather should have  given  it  a reasonable period of time to
return the hoist to service.

     AKZO  concludes  that it did not  violate  section  57.11050
because it provided two  escapeways  to the mine surface and was,
at  the  time  of  the  alleged  violation,   in  fact,  ensuring
compliance  with  a  provision  contained  in  that  standard  by
performing  preventive  maintenance to ensure that the hoist  was
properly maintained.  While the production hoist was unavailable,
miners still had access to  the  service hoist in the event of an
accident  or  emergency.   AKZO disputes  MSHA's  view  that  the
requirement of at least two  escapeways  means  that both of them
must   be  functional  at  all  times,  and  notes  that  section
57.11050(a)  does  not  state such a requirement, and if this had
been the drafters' intent, the standard would read otherwise.

     AKZO believes that MSHA's insistence on automatic evacuation
of the entire mine within  one  hour if only one of two hoists is
available is contrary to prior agency  acceptable  policy and not
supported  by the language of the standard.  AKZO concludes  that
failure  to  subject  this  substantive  requirement  to  notice,
comment, and publication unfairly allows MSHA to promulgate a new
rule with no benefit  of participation from those in the affected
industry, and fails to  provide industry fair and adequate notice
of the substantive requirements  of   57.11050(a).  AKZO further
concludes   that   MSHA's   automatic  evacuation   policy   also
constitutes a de facto order  of  withdrawal,  although  under  
104(a)  of  the  Act, MSHA does not have such authority, and that
the  new  requirement   is   an   improper  interpretation  of  
57.11050(a)  which  clearly exceeds MSHA's  authority.   Finally,
AKZO concludes that MSHA's one hour abatement period in the event
of  a  hoist  outage,  regardless   of   the   circumstances,  is
unreasonable  and  ignores  consideration  of  several   factors,
including   the  risk  of  danger  presented,  in  determining  a
reasonable abatement period.

     MSHA's position  is  that AKZO violated the provisions of 30
C.F.R. 57.11050(a) by intentionally  taking one of the mine's two
escapeways out of service for a period  of  more  than  one  hour
while  allowing  normal  mining  operations  to  continue.   MSHA
asserts  that any event, whether planned or unplanned, that makes
the escapeway  unavailable  for  more than one hour constitutes a
failure to properly maintain at least  two  escapeways  and  that
miners must be evacuated until both escapeways are available for
use.   MSHA  asserts  that the regulation requires "at least two"
separate "properly maintained"  escapeways in order for miners to
be  allowed underground unless they  are  developing  the  second
escapeway  or  are  working  to  make  the  unavailable escapeway
"properly maintained" and available for use.

     MSHA  maintains  that  the  requirement  for   two  separate
escapeways is a fundamental cornerstone of a miner's  safety  net
in  the  event  of  an emergency and that AKZO's operation of its
mine  with  only one "properly  maintained"  available  escapeway
while it fixes  its  unavailable  escapeway is not allowed by the
regulation.  MSHA asserts that an escapeway that is not available
for  any  reason  is  not  "properly maintained,"  and  that  the
regulations require the evacuation  of  the  mine  when  only one
escapeway is available until both have been "properly maintained"
and  are again available.  In support of its evacuation argument,
MSHA asserts  that section 104(c) of the Mine Act allows only the
miners needed to  correct  the  deficiency  in  escapeways  to be
present in the affected areas of the mine.

     MSHA  asserts  that  the  regulation  does not allow AKZO to
maintain normal mining operations until the end of the shift with
only  one  properly  maintained and available escapeway  for  the
miners to use in the event  of  an emergency.  MSHA believes that
in  order  to  stay  in  compliance,  AKZO   must   schedule  its
maintenance  for  time  periods when miners are not scheduled  to
work, or in the alternative, construct a third escapeway.

     In  response to AKZO's  assertion  that  the  obligation  to
evacuate miners  facially  violates  the  requirement  in section
104(a) of the Act that each operator be given a "reasonable  time
to  abate"  a  violation,  MSHA  takes  the  position that when a
violation can be avoided and is intentionally  created,  no  time
for abatement is reasonable, because an operator does not have  a
right to operate in knowing noncompliance with a mandatory safety
standard.   However, to the extent that an operator is unaware of
the existence of a violation, MSHA concludes that the operator is
obligated under the Mine Act to abate the violation  as  soon  as
reasonably possible.  If only one escapeway is available for use,
and the second  one  cannot  be made available for use within one
hour, MSHA insists that miners  must  be evacuated since only one
escapeway does not achieve the level of  safety  mandated  by the
regulation.  MSHA further concludes that the one hour requirement
is a reasonable length of time for achieving compliance, based on
the  language  of  30  C.F.R.  57.11050(b),  which  provides that
escapeways shall be positioned so that miners may exit  the  mine
within one hour.

     MSHA  rejects  AKZO's  contention that its current escapeway
enforcement position and application  of  section  57.11050(a) is
inconsistent with its past enforcement practices as evidenced by
an  MSHA  memorandum mentioned in footnote 8, pg. 69,  of  former
commission  Judge  Stewart's  decision  in  Secretary  v.  Potash
Corporation  of America, 4 FMSHRC 56, 69 (January 1982), and  the
1990 memorandum  from  MSHA  District Manager James Salois.  AKZO
concludes from those documents  that it "was widely understood in
the industry" that a violation of  section  57.11050(a)  would be
cited  pursuant  to  the  "policy"  set forth in Potash, allowing
operators to continue to work until the end of the shift whenever
an escapeway is damaged or unavailable for use.

     MSHA takes the position that pursuant to Commission Rule 72,
29 C.F.R. 2700.72, an unreviewed Judge's  decision  (Potash),  is
not  a precedent binding on the Commission.  MSHA asserts that it
is evident  from  both  of  AKZO's expert witnesses that there is
currently a clear understanding  in  the industry that whenever a
mine  only  has two escapeways, it is now  industry  practice  to
evacuate the  mine  immediately whenever one of the escapeways is
unavailable for any reason.  MSHA concludes that this establishes
that at some point after  the Potash decision was issued fourteen
years ago, it became clear  to  the  industry that the guidelines
noted  in  Potash  had  not been adopted and  were  in  fact  not
applicable.  MSHA concludes  that  AKZO  must concede that MHSA's
interpretation, as asserted in this case,  is  the  very position
understood   and  relied  upon  throughout  most  of  the  mining
industry.

     MSHA maintains  that  equitable  estoppel  does not apply in
Mine  Act  proceedings  and  that  all  of  AKZO's assertions  of
conflicting  prior  enforcement  practices  that   were  arguably
inconsistent  with  the  requirements of the regulation  and  the
footnote in the Potash decision  do  not provide a defense to the
fact of violation of 30 C.F.R. 57.11050(a).   MSHA concludes that
it is clear that AKZO and other mine operators have been aware of
MSHA's  interpretation  that the unavailability of  an  escapeway
requires evacuation of the  mine  until the escapeway is returned
to normal use.  In this regard, MSHA  cites  the  Gomez letter of
December  1995,  as evidence that any prior misunderstandings  or
conflicts were resolved  and  that  the letter clearly sets forth
reasonable   applications   of   the  requirements   of   section
57.11050(a), as it relates to maintenance  activities  that  make
the hoist, and thereby one of the escapeways in a two-shaft mine,
unavailable for use for various periods of time.  MSHA points out
that  AKZO  was  aware  of the position incorporated in the Gomez
letter  when  it  took  the actions  it  took  to  challenge  the
interpretations of the regulation in this case.

     Finally, as argued in  support of the asserted violations of
section 50.10, MSHA maintains that section 57.11050, is clear and
that  a  reasonably  prudent  person  familiar  with  the  mining
industry understands that what is required is consistent with
MSHA's position.  Assuming the  regulation may be construed to be
unclear  or  ambiguous,  MSHA  nonetheless   concludes  that  its
reasonable interpretation is entitled to deference  and  must  be
broadly  interpreted  to achieve the statutory goal of protecting
the health and safety of miners.

                     Findings And Conclusions
       Fact of Violation, Citation Nos. 4100787 and 4546275

     The respondent is  charged with two alleged violations of 30
C.F.R. 50.10, for failing  to  immediately  notify  MSHA  of  two
production  hoist  interferences that occurred on November 9, and
December 24, 1995.   MSHA's  position  is  that the two incidents
were reportable as "accidents" because the unavailability  of the
hoists  was  the  result  of  maintenance work to shorten several
stretched hoist ropes, and that  these interferences with the use
of  the  hoists  constituted  hoist  "damage"  and  a  reportable
"accident"  pursuant to definition of those  terms  found  in  30
C.F.R. 50.2(h)(11).   MSHA  has the burden of proving the alleged
violations by a preponderance of the evidence.

     30 C.F.R. 50.10, provides as follows:

                50.10 Immediate notification.

               If  an accident  occurs,  an  operator  shall
               immediately  contact  the  MSHA  District  or
               Subdistrict  Office  having jurisdiction over
               its mine.  If an operator  cannot contact the
               appropriate  MSHA  District  or   Subdistrict
               Office, it shall immediately contact the MSHA
               Headquarters Office in Arlington, Virginia by
               telephone, at (800) 746-1553.

               The applicable definition of "accident" found
               in 30 C.F.R. 50.2(h)(11), is as follows:

               Damage  to  hoisting equipment in a shaft  or
               slope which endangers  an individual or which
               interferes with use of the equipment for more
               than thirty minutes.

     Webster's New Collegiate Dictionary,  defines "accident"  in
part as: "1a: an event occurring by chance or arising from unknown
causes,  b:  lack  of  intention  or necessity;  an unexpected 
happening * * * ."

     Black's Law Dictionary, Revised Fouth Edition, 1968, defines
"accident" as follows:

          -    an    unusual,    fortuitous,    unexpected,
               unforeseen  or  unlooked for event, happening
               or occurrence;

          -    some sudden and unexpected event taking place
               without expectation, upon the instant, rather
               than something which continues, progresses or
               develops;

          -    an uncommon occurrence;

               -an  unusual or unexpected  result  attending
               the operation  or  performance  of a usual or
               necessary act or event;

     Webster's New Collegiate Dictionary defines "damage" as "loss
or harm resulting from injury to person, property, or reputation."

     The  Dictionary of Mining, Mineral, and Related  Terms,  U.S.
Dept. of the  Interior,  1968, does not define "damage."  However,
the definition of "damaging  stress"  found at page 300, is stated
as follows:

                The least unit stress,  of  a  given kind and
           for  a  given  material and condition of  service,
           that will render a member unfit for service before
           the end of its normal  life.   It  may  do this by
           producing  excessive  set,  or by causing creeping
           fatigue cracking, excessive strain  hardening,  or
           rupture.  (Emphasis Added)

     Inspector Foster's understanding of section 50.10, as applied
to  hoists,  is that the thirty minute time period referred to  in
the section 50.2(h)(11), definition of accident, does not apply if
the idled hoist can be put back in service within fifteen minutes.
He confirmed that  a  hoist  can  be idled for an entire shift, as
long as it can be re-activated within fifteen minutes (Tr. 28).

     Inspector Foster believed that  a  hoist  that is unavailable
for  use  because  of  ice  in  the  shaft,  a condition  that  he
characterized as "a natural occurrence," need not be reported,

regardless of the downtime duration as long as  there  is no hoist
damage,  accident,  or  miner  hazard  exposure  (Tr.  34).   This
comports  with  MSHA's  Part  50  Program  Circular interpretation
(Exhibit  C-10,  Tab F), but is contrary to MSHA's  interpretation
that does not exempt "natural occurrences," and requires all
hoist  outages  longer  than  thirty  minutes  to  be  immediately
reported.

     Inspector Foster's  supervisor,  C.  Okey  Reitter, confirmed
that he issued the citation, and it was his understanding that the
thirty-minute regulatory reference in question refers  to the time
that it would take to put an idled hoist back into service.  As an
example, he stated that if a hoist was out of service for an hour,
as long as it could be put back in service within thirty  minutes,
there  is no reportable hoist outage.  Mr. Reitter identified  the
source of  his  interpretation  as the Gomez letter of December 8,
1995, and confirmed that this was  the  only written guidance that
he was aware of (Tr. 33-34).

     Inspector Strickler believed that a  hoist  that  is down for
more  than  30  minutes  must be reported to MSHA, and he believed
that an idled hoist "is unusable and broken" (Tr. 28-30).

     Inspector Bilbrey's understanding is that a hoist that is out
of service for more than thirty  minutes  would  be  considered  a
reportable  accident.  He believed that an idled hoist that can be
restored to service in fifteen minutes and was not unavailable for
more than an  hour  would  not  be a reportable accident (Tr. 20).
However, Mr. Bilbrey did not believe  that  a  hoist that is taken
out   of   service  for  preventive  maintenance  constituted   an
"accident" (Tr.  15).   In  his opinion, preventive maintenance is
"something that would prevent a breakdown and something that would
be done before the equipment  is  broken."  He defined "damage" as
"inoperative" but stated that this  would  not  include  equipment
that  is  intentionally  taken  out  of  service  for  maintenance
purposes  (Tr.  15).   Mr.  Bilbrey  did not know if an inoperable
hoist that is idled for more than thirty  minutes  by  ice  in the
shaft  would  be considered a reportable accident, and stated that
he would have to  consult  with his supervisor in this regard (Tr.
23).

     Inspector Backland testified  that  a planned hoist outage is
"probably" not reportable if the hoist can be activated within ten
to  fifteen  minutes,  but if the outage is in  excess  of  thirty
minutes, it is reportable.   He  further testified that preventive
maintenance  in  excess of thirty minutes  is  not  an  "accident"
pursuant to section  50.2(h),  and  that such maintenance could be
on-going  for  a  full  shift.   He  then stated  that  preventive
maintenance that takes a hoist out of service for more than thirty
minutes  need  not  be  reported  as long  as  the  hoist  can  be
put back in service within a reasonable  amount of time, but there
is no fixed time for completing maintenance  or  reactivating  the
hoist (Tr. 20-21).

     In  response  to a question as to whether or not a hoist that
is taken out of service  to  adjust  an undamaged rope needs to be
reported, Mr. Backland responded that  "It's  a  tough question to
answer . . . I don't know.  I would probably have to converse with
my supervisor on that" (Tr. 24).

     Inspector Breland believed that any hoist that  is interfered
with  for  more  than  30 minutes is reportable regardles  of  the
number of hoists in operation and regardless of the reason for the
outage  (Tr.  66).   However,   he   would   consider  a  "natural
occurrence," such as ice in the shaft, not to be reportable unless
there is no other way out of the mine (Tr. 67).

     MSHA's  District  Manager  Salois testified  that  any  event
specifically related to a hoist that  takes  it out of service for
more  than  thirty  minutes is reportable damage.   He  would  not
consider ice in the shaft  that  idles  a  hoist to be reportable,
unless the ice actually damaged the hoist (Tr. 75-76).

     In Jim Walter Resources, Inc., 17 FMSHRC 209 (February 1995),
Commission Judge Barbour affirmed a violation  of  section  50.10,
for  a  failure  by  the  operator to immediately notify MSHA of a
hoist accident that resulted in the hoist being out of service for
over 30 minutes.  The facts  reflected  that  a skip hoist stopped
after   losing  its  source  of  power.   Upon  investigation   by
management at the hoist house containing the hoist motor and drum,
it was discovered that there was damage to the hoist drum neoprene
wearing strips  which help to maintain proper tension on the hoist
ropes which are seated  into grooves on the drum as the ropes wind
and unwind.  The ropes were slipping on the wearing strips and the
resulting friction heated  the  strips to the point where they had
begun  to melt and smoke.  The condition  of  the  hoist  was  not
reported until many hours after the damage occurred.

     The  principal  issue  in  Jim  Walter was the application of
sections 50.2(h)(11) and 50.10 to a hoist  that  transported  coal
and/or materials rather than miners.  Judge Barbour found that the
accident  reporting  requirement in section 50.10, applied equally
to a hoist used to transport  coal  and materials and a hoist used
to transport miners.  However, I take  note of the decision, at 17
FMSHRC 215, summarizing the testimony of  the  MSHA  inspector who
had 13 years of service.  Judge Barbour noted as follows:

               Tuggle  stated  that  the regulations require
          the  reporting  of  all hoisting  accidents  which
          result in a hoist being out of service for over

          thirty minutes, unless the hoist it out of service
          for routine maintenance  (Tr.  70-71).  He stated,
          "[if] it's mechanical failure, which  damages  the
          hoisting  system for more than 30 minutes . . . it
          needs to be investigated . . . [I]f the mechanical
          damage it due  to  an  accidental breakdown of the
          components . . . it needs to be investigated.  But
          if it's due to normal wear then, no, I don't think
          it needs to be investigated"  (Tr. 93).  (Emphasis
          Added)

     It would appear to me that the experienced  inspector in Jim
Walter did not believe that hoist outages for over thirty minutes
caused by routine maintenance or normal wear were  required to be
immediately reported to MSHA pursuant to section 50.10.  It would
further  appear  that  the  inspector  would  only  require   the
reporting   and   investigating   of  hoist  incidents  involving
mechanical failure resulting in damage  to the hoisting system or
mechanical damage due to a breakdown of the hoist components.

     In the instant proceedings, the common  thread  binding  the
opinions of the inspectors with respect to the interpretation and
application  of  section  50.10,  and  the  meaning  of the terms
"damage"  and  "accident" is their inconsistent and contradictory
testimony offered  in  support  of  the  violations.   Under  the
circumstances, I cannot conclude that a reasonably prudent person
familiar  with  the  mining  industry  would  understand that any
interruption  to  the  use  of  a  hoist  renders it damaged  and
reportable  pursuant  to  section  50.10.   If  the   experienced
inspectors  charged  with the enforcement of this regulation  are
uncertain as to its meaning and application, I would not expect a
reasonably prudent mining  person  to  be  clear  as  to  what is
required   to  be  reported.   Indeed,  district  manager  Salois
conceded as  much  when  he  said  he  was  unsure  as to whether
everyone understood the reporting requirements as he did.

     With respect to the use of the word "damage," the  testimony
of  record  reflects a variety of opinions.  Mr. Foster testified
that the hoist  was  idled on November 9, 1995, because the ropes
that experienced some  stretching were being tightened.  Although
he  was  of  the  opinion  that   the  stretching  of  the  ropes
constituted damage, he conceded that  he  had no knowledge of any
hoist malfunctions, and he admitted that he  had no factual basis
to support any conclusion that the ropes had stretched to a point
that would cause them to skip (Tr. 35-37).

     Mr. Reitter confirmed that prior to the idling of the hoist,
it was not broken and was functioning fine.  The  work  that  was
performed  was done to preclude future rope problems (Tr. 42-44).
He believed the hoist was "damaged" because it was out of service
and unavailable for use for more than thirty minutes and could

not be used.   In  his  opinion,  a hoist that cannot be used for
more than thirty minutes is "damaged" per se. (Tr. 44).

     I  find  Mr.  Reitter's explanations  with  respect  to  the
meaning of the term  "damage"  to be contradictory and confusing.
On the one hand, he believed that  a hoist that is idled for more
than thirty minutes is damaged, but a hoist that is idled for one
hour is not damaged, as long as it can  be  put back into service
within  thirty  minutes.   Further,  Mr.  Reitter's  explanations
contradict Mr. Foster's opinion based on a  15  minute  window of
opportunity for putting an idled hoist back into service.

     Unlike  Inspector  Foster, Inspector Backland believed  that
the stretching of a hoist  rope  is  normal and does not indicate
that the hoist is damaged or not functioning  properly  (Tr. 23).
I find Mr. Backland's testimony to be the more credible.

     Inspector Breland assumed that the maintenance performed  on
the  cited  hoists was done to prevent damage.  He also testified
that damage occurs  when  a  hoist is placed in service, but then
stated that it becomes an "accident" when the "damage" interferes
with hoisting for more than thirty  minutes (Tr. 62).  I find his
testimony to be contradictory and incredible,  and  he  obviously
had  no  evidence  that  the hoists were physically damaged other
than his speculative assumptions that the maintenance was somehow
connected with some unexplained damage.

     District Manager Salois did not know whether the cited hoist
ropes had stretched to a point  beyond  the  allowable tolerances
(Tr.  61-64).  He also had no factual knowledge  that  the  ropes
were changed out because they were damaged and could no longer be
used (Tr.  69-70).   Further,  I  find his testimony that a hoist
rope is damaged when it is placed in  service  and  subjected  to
stretching  to be incredible and lacking any evidentiary support.
His testimony  contradicts  Inspector Backland's belief that rope
stretching  is  normal.   Further,  when  asked  if  his  opinion
regarding rope damage is understood  by  the  average  miner, Mr.
Salois  responded  "I'm not sure everybody would look at it  that
way" (Tr. 68-69).

     Hoisting consultant  Tiley distinguished rope deterioration,
fatigue, and damage.  He believed  that  damage  begins when rope
retirement  is required, and that prior to this time  "it's  just
useful life"  (Tr.  33).   Contrary to the opinion of Mr. Salois,
Mr. Tiley did not believe that  a  newly  manufactured hoist rope
with  broken  wires  was  damaged, and he agreed  with  Inspector
Backland's belief that rope  streching  is  expected and does not
constitute  damage (Tr. 74).  He also confirmed  that  the  hoist
ropes in questions were not retired because of stretching or were
no longer fit  for use (Tr. 75).  I find Mr. Tiley's testimony in
this regard to be credible.  Although he alluded to a "corrosive"
mine atmosphere, I find no credible evidence that the cited ropes
were damaged by corrosion when they were cited, and the citations
do not state that they were.

     Mining engineering  consultant  Head  defined "damage" as an
"unexpected faulty condition" that implies "an  accidental sudden
occurrence"  that  is  the  opposite  of  preventive  maintenance
performed  to  prevent  such  unexpected events (Tr. 37-39).   He
further indicated that damage is  akin  to the physical breakdown
of a hoist part, and I find his testimony to be credible.

     MSHA's  hoist specialist Barkand was  of  the  opinion  that
damage and normal  wear and tear are no different and that normal
wear and tear causes  damage.   However,  he  offered no credible
testimony that the cited hoists were damaged due  to  normal wear
and  tear,  and  he  conceded  that  he did not examine the ropes
closely (Tr. 22, 41).  He cited rope wire wear and nicking as the
primary  causes of damage, but offered  no  evidence  that  these
hoist conditions  were  present in the instant cases.  Indeed, he
confirmed that the "constructive  stretching,"  of  a hoist rope,
which  results  in  the  loss  of  rope  diameter  and  increased
lengthening is not damage (Tr. 32-33).

     The  parties  stipulated  that  when  the  cited  ropes were
shortened  they  had  not stretched beyond the limits allowed  by
MSHA's  retirement criteria.   MSHA  has  presented  no  credible
evidence  that  the  cited  hoists  were  physically  damaged  or
inoperable,  or  that  the hoist ropes exceeded their normal life
expectancy  or  were  not  installed  or  maintained  within  the
applicable hoist rope specifications or tolerances.  Further, the
citations were issued as non-"S&S"  violations,  and  I  find  no
credible  evidence  to support any reasonable conclusion that any
miners were exposed to a hazard.

     It would appear  to  me  that  the purpose and intent of the
Part 50 reporting requirements, as stated  in section 50.1, is to
provide MSHA with information in connection  with mine accidents,
injuries,  and illnesses in order to enable MSHA  to  respond  to
those events  by  investigating and developing facts to ascertain
the causes of such  incidents, and to enable MSHA, in cooperation
with the mine operator, to find the ways and means for preventing
recurrences.  A secondary purpose appears to be the establishment
of  a  system of reporting  that  will  enable  MSHA  to  compile
accident, injury, and illness statistics as a means of "tracking"
such events  for  publication  and  dissemination  to  the mining
community  as  a  means  of identifying problems associated  with
these events.

     Insofar  as the definition  of  "accident"  associated  with
hoisting equipment as stated in section 50.2(h)(11) is concerned,
I  have  difficulty  in  understanding  how  a  planned  routine
preventive maintenance  procedure  that  is  performed to prevent
damage and insure continued compliance with sections 57.11050(a),
in the absence of any actual hoist damage or hazard  exposure  to
miners,  can  reasonably  be construed to constitute a reportable
accident  pursuant to section  50.10.   I  cannot  conclude  that
requiring the  reporting  of such incidents is reasonably related
to the intent and purpose of sections 50.10 and 50.20.

     MSHA's position that any  interference  with  the  use  of a
hoist for more than thirty minutes, regardless of the reason, and
notwithstanding the absence of any physical damage, nonetheless
constitutes  damage that is immediately reportable as an accident
pursuant to section  50.10,  IS  REJECTED  as an unreasonable and
rather  strained interpretation of the common  use  of  the  word
"damage."

     As noted  earlier  in  the Potash Company of America case, 4
FMSHRC  56  (January  1982),  former   Commission  Judge  Stewart
concluded that in the absence of any evidence  of physical damage
to  a  hoist which interferes with its use, it is  not  "damaged"
within the  common  understanding  of that word or the meaning of
section 50.2(h)(11), and the interference  does not constitute an
"accident" under the immediate notification  requirement found in
section 50.10.

     I conclude and find that the common and ordinary  meaning of
"damage"  in  connection  with  the  cited  hoists  connotes some
readily  recognizable  physical  damage  that  renders the  hoist
inoperable and requiring some repair to place it back in service.
In  this  regard,  I agree with Judge Stewart's decision  in  the
Potash case, and I conclude  and find that absent any evidence of
some physical damage to the cited  hoists,  taking  them  out  of
service for reasons unrelated to any such damage, such as routine
preventive maintenance where no damage repairs are made, does not
amount  to  a  reportable accident within the scope and intent of
section 50.10.

     In my view,  if  MSHA desires the definition of a reportable
"accident" to include hoisting  equipment  that is idled for more
than  thirty  minutes  for  any  reason,  it  should   take   the
appropriate procedural steps to re-draft and amend the regulatory
definition found in section 50.2(h)(11).

     In  view of the foregoing, I conclude and find that MSHA has
failed to  establish  any  violations  of  section  50.10,  by  a
preponderance   of   the   credible  evidence  adduced  in  these
proceedings.  ACCORDINGLY, the contested citations ARE VACATED.

     The parties agreed to hold  the  disposition of Citation No.
4546323  (Docket  No.  LAKE  96-80-RM)  in  abeyance  pending  my
decisions concerning section  50.10.  The  citation  concerns  an
alleged violation of section 50.20(a), because  of AKZO's failure
to  submit  MSHA Mine Accident, Injury, and Illness  Report  Form
7000-1,  for  hoist  maintenance  outages  of  more  than  thirty
minutes.  In view  of my findings that such hoist outages are not
reportable accidents,  I  conclude  and  find  that  AKZO was not
obliged  to  submit  the  form  in  question.   ACCORDINGLY,  the
contested citation IS VACATED.

Fact of violation.  Citation No. 4546276

     The respondent is charged with a violation of 30 C.F.R.
57.11050(a),  for  allegedly failing to provide  underground
miners with two properly  maintained  escapeways on December
24, 1995.  The cited production hoist,  which was one of the
escapeways,  was  not  available  for use for  approximately
three hours and thirty-seven minutes  while  the  hoist rope
was  being  shortened.   Section  57.11050(a),  provides  as
follows:

               (a)   Every  mine  shall  have  two  or  more
               separate,  properly  maintained escapeways to
               the surface from the lowest  levels which are
               so  positioned that damage to one  shall  not
               lessen  the  effectiveness  of the others.  A
               method  of refuge shall be provided  while  a
               second  opening   to  the  surface  is  being
               developed.     A    second    escapeway    is
               recommended,  but not  required,  during  the
               exploration or development of an ore body.

     The parties stipulated that a planned shut down of the cited
hoist escapeway occurred on December 24, 1995, in order to shorten 
all  of  the hoist ropes  and  to  afford  AKZO  an opportunity  
to  challenge   the  application of  section  57.11050(a).   The 
duration of the shut down was over  three hours,  no  miners  were
evacuated,  and  three  miners  (a mechanic,  an   electrician, 
and   a   foreman)   remained underground   checking   fans   and
pumps,  and  performing  maintenance  on  the  service  hoist. No
salt  extraction occurred during the shut down and  no cutting or
welding was taking place.

 The Evolution of MHSA's Asserted "One-hour" Evacuation "Policy"

      Past "Policy"

     I find no credible evidence of the existence  of any written
MSHA National policy statements prior to the institution  of the 
instant  litigation, concerning mandatory evacuation of the entire 
mine  for  a violation of section 57.11050(a), if compliance is not
achieved within one hour, the fixing of an "automatic" one-hour
abatement  time  to achieve compliance, or the uniform enforcement
methods to be  followed  by  MSHA inspectors  when  citing  a mine
operator for a violation of section 57.11050(a).

     The evidence establishes that  on  February 22, 1990, MSHA's
Metal/Non-metal North Central District Manager Salois issued a 
memorandum concerning the interpretation  and  application of  
section  57.11050(a),  to be followed by his district inspectors
when  citing  mine  operators in that  district, including AKZO's
Cleveland Mine (Index of Exhibits, Tab G).

     The  Salois  memorandum  guidelines   did  not  require  the
immediate  evacuation  of  miners  if  a  hoist  was  unavailable 
for  use  for  more  than  one   hour.   In   a   planned  hoist 
maintenance/repair  situation, if one of the hoists was disabled
as  a  result  of this work, it was permissible to continue the 
work through  the end of the shift, with miners underground, as 
long as the second hoist was available. The same rule essentially
applied  to  unplanned  hoist  repair shutdowns.

     I take  note of the fact that the Salois memorandum, at page
3, specifically  noted  the  absence  if  any  MSHA national policy 
for  "Mine  Evacuation  Related  to  Hoist  Repairs/Maintenance 
Affecting Two Escapeways,"  the  subject of  the  memorandum. The 
memorandum further noted, on the first page, that when compared to
five other MSHA district practices,  the  practices in Mr. Salois'
district  were "substantially different."  Since Mr. Salois states 
that his district  should  follow  the other district  practices 
and since  his memorandum was apparently  issued  to  accomplish
this, I  believe  it  is reasonable to  assume  that  the  other
districts followed a similar practice of allowing  hoist repairs
to be made  during  a production shift, and through the  end  of 
the  shift, without  requiring  the  immediate evacuation of the
mine  within an hour of discovering that a hoist was in need of 
repair.

     Mr. Salois testified that  he  withdraw  his  memorandum in
February, 1995, because he lacked  the  authority  to  establish
enforcement  policy  for  his  district  and  his  policy was 
inconsistent with  MHSHA's national policy. Although Mr. Salois 
indicated that prior to the issuance of  his memorandum, miners
were required to be out of  the mine when hoist maintenance was
performed, no evidence was produced to establish the existence 
of any written MSHA policy requiring the  evacuation  of miners.  
Indeed, Mr. Salois stated  that his understanding  that  mine  
evacuation  was required when hoist work was performed came from 
what he "learned  on  the job."  Further,  although  Mr. Salois 
stated  that  other district  managers  informed  him  that his
memorandum  was  inconsistent  with  the  policy  they  were  
following,  no credible  evidence  was  produced  to  establish
the factual existence of any written  policy  in  these  other 
districts.

     Supervisory Inspector Reitter, who never  visited  the  AKZO
mine, testified that he first became aware of the Salois memorandum
after he became a supervisor in MSHA's Newark, Ohio district, and 
he was unaware of the memorandum for the following year  until it 
was  called to his intention by AKZO at the time it was rescinded. 
He  confirmed  that  his inspectors were following the policy, and
that if he were  aware of it, he too would have followed it.

     Inspector  Strickler,  who inspected AKZO's mine, never  saw
the Salois memorandum but heard about it from other inspectors in 
his office who informed  him  that at one time miners were allowed
to work underground until the end of the shift. He stated that this
was  contrary to the policy in Illinois where  a mine operator 
evacuated miners immediately.  However, I find no evidence of the
actual  existence  of  any  such written policy.

     Inspector  Bilbrey  testified  that he never saw the  Salois
memorandum, and learned  about  the  unwritten  policy  for  mine
evacuation when a hoist was out at a  staff  meeting and verbally
from his supervisors, including Mr. Reitter.

     Inspector  Backland,  who   also   inspected   AKZO's  mine,
testified  that  he  was  aware of the Salois memorandum in 1990,
but did not believe it was the policy in his  district.  He  did, 
however, believe the stated "time element" should be followed.

     Mr.  Gomez testified that he  became  aware  of  the  Salois
memorandum a year ago. He  was concerned because it was contrary 
to what he considered to  be  MSHA's  policy.   He explained that
when  he  served  as manager of MSHA's Rocky Mountain  District 
in  February 1990,  his  policy  was  to require mine evacuation
if there were no properly maintained escapeways. If one escapeway
was down and could not be restored  in  one  hour, a violation of
section 57.11050(a), would  occur.  Mr.  Gomez  stated  that  he
contacted every past and present district managers  to determine
if  they had a policy such as  the  one  stated  in  the  Salois 
memorandum, and he  found no such policy.  He further stated that
during the eleven years he served as a district and subdistrict
manager,  he  was not aware  of  the  regulatory  interpretation
stated in that memorandum and he believed  it  was  "internally
inconsistent."

     Mr. Breland stated  that  he first saw the Salois memorandum
in the fall of 1995, during  a meeting with AKZO representatives 
and  MSHA officials.  He was never aware of any policy change as 
stated in the Salois memorandum,  and  he  always  followed  the 
"instant  violation  and  hour to abate" policy.

     Mr. Breland alluded to an inquiry from MSHA's Dallas  acting
manager over a year ago regarding any change in policy that would
not  require  the  evacuation of miners under section 57.11050(a)
at  one  of  AKZO's   mines  in  Lousiana  when maintenance was 
performed on a hoist. After consulting with Mr. Gomez, Mr. Breland
advised the manager that there was no policy change and miners 
would have to be evacuated. If would appear to me that Mr. Breland's
advice to the manage  was based on the Gomez letter of December 8,
1995. The  record  includes  a  copy  of  a  Morton  Salt  Company
memorandum dated March 10,  1980,  stating an interpretation by 
MSHA's Dallas District office with respect to the intent of section
57.11-50.  That interpretation is the same as the Salois policy 
memorandum of February 22, 1990,  allowing production to continue
until the end of the shift while the unavailable hoist is again 
made available.  (Index of  Exhibits, Exhibit D).

     Mine Consultant Tiley initially testified that changing hoist 
ropes with miners underground when there is only one additional way
out of the mine is a good mining practice and a normal process in 
the worldwide mining community.  He later corrected himself and
indicated  that the practice of allowing miners to remain in a two
shaft mine when one of the  hoists  is  down  applied to Canadian
miners and not to U.S. miners. He was aware of MSHA's "one-hour"
rule requiring mine evacuation if a hoist is down for more than an 
hour and he believed that this was the practice in American mines.

     Mine consultant Head testified that the evacuation of miners
from a two-hoist mine if one of the hoists is out of service for 
more than an hour is standard practice among several MSHA districts.
He  confirmed  that  many  mine  operators recognized that this was
a policy change that occurred in the past two or three  years, and 
that  the  prior  policy followed in  Mr.  Salois'  North  Central 
District, did not pose an evacuation problem until the end of the 
shift.  Mr.  Head further  confirmed  that  the  prior practice in 
a two-hoist mine allowed work to continue until  the end of the 
shift if one hoist was unavailable, and immediate  evacuation was 
not required.

     Present "Policy"

     MSHA's  position  is  that the Gomez letter of  December  8,
1995, to AKZO's counsel constitutes  the  prevailing  definitive 
interpretations of section 57.11050. Notwithstanding the absence
of  any  regulatory  language requiring the evacuation of miners
within one hour for  non-compliance,  MSHA  relies  on the Gomez
interpretation  to  support  the  cited  violation  of  section 
57.11050(a). The  relevant portion  of  the  letter  states  as 
follows:

               With  respect  to  the  escapeway  issue,  30
               C.F.R. 57.11050 requires that producing mines
               have two  or  more escapeways from the lowest
               level  of  the  mine  to  the  surface.   The
               standard  also  requires  that  a  method  of
               refuge be provided for all underground miners
               who can not reach the surface  within 1 hours
               using  both  of  the escapeways.

               During  the March meeting  we  discussed  the
               need for evacuating miners from the Cleveland
               Mine, or any other mine, during hoist outages
               when
               the minimum requirements for escapeways could
               not be met  because the hoist was unavailable
               for use in one of the two escapeways.

               We  believe  that   the   standard  does  not
               authorize  maintenance to interefere  with  a
               mine operator's  ability  to use the hoist in
               the event of an emergency if  it  is part of,
               or one of, the two required escapeways.

               We also informed AKZO officials at  the March
               meeting  that, as a practical application  of
               this standard,  if  a hoist could be returned
               to service within 1 hour  of  the  need to be
               used then evacuation of the mine would not be
               required.  This action would comply  with the
               1-hour   time   provided  for  in  30  C.F.R.
               57.11050(b) and the  requirement  to have two
               escapeways available.

               * * * *

               * * * * Put another way, we believe  that the
               language  and  clear  intent  of the standard
               indicates that routine maintenance is allowed
               with miners underground, if, at  all times, a
               hoist can be reactivated and miners withdrawn
               from  the  mine  within 1 hour.  Your  second
               conclusion  that  the   mine   need   not  be
               evacuated,  regardless  of  the  length of  a
               hoist  outage  so long as it could be  placed
               back into service  and  miners withdrawn from
               the mine within 1 hour, is correct.

      The  Gomez  letter  is  a private communication  to  AKZO's
counsel Savit in response to his request of November 6, for an  
explanation  of  MSHA's   interpretation   of  section  57.110509
(Index of Exhibits, Tab N).  The record reflects that the Gomez
response  was prepared unilaterally and was not shared with other 
members of the mining community, and its contents have apparently 
never  been  reduced  to other written  form  or included as part
of MSHA's enforcement guidelines or policy manuals. Indeed, MSHA's
policy with respect  to section 57.11050, as stated in the manual,
has apparently not been revised or updated since 1988.

      The   record   further   reflects  that  prior  to  the
November/December  1995,  exchange  of  the  aforementioned
correspondence, a legal assistant in Mr. Savit's firm, in a
letter   dated  September  11,  1995,  to  the  Secretary's
solicitor's office in Arlington, Virginia, requested a copy
of  the  proposed   section   57.11050,  program  directive
referred to in the Potash decision of January 19, 1982, as well
as other explanatory memorandums   dealing  with  that  regulation
(Index  of  Exhibits, Exhibit  L).   The  letter  was  referred
to Mr. Gomez's office, and it was answered on October 20, 1995,
by letter  from Mr. C. Narramore, who signed it for Mr. Gomez.
The response  included  a  page  from  MSHA's July 1, 1988,
Program  Policy  Manual  regarding  section  57.11050,  and
statements  that copies of the requested  memorandum  could
not be located,  and  that  they  were  superceded  by  the
program policy.

      Apart  from the Gomez letter, there is no evidence that the
interpretation  stated  by  Mr. Gomez is in fact reduced to any 
other  written  form  as  a means  of  notifying  mine operators 
about  MSHA's  mine  evacuation   and  abatement requirements, or
providing guidelines or procedures for MSHA's inspectors to follow 
when inspecting and citing mine operators for violations of section
57.11050(a).

      Inspectors   Foster,  Reitter,  Strickler,   Bilbrey,   and
Backland all confirmed  that  section 57.11050(a), contains no  
language  requiring  mine evacuation  in  the  event  a disabled 
hoist escapeway could  not  be put back in service within one hour,
and they were unaware of any regulation that required automatic 
mine  evacuation  within  any particular time frame.  With regard 
to their understanding of what is required pursuant to section 
57.11050(a), there appears  to  be  inconsistent,  uncertain,  and 
confusing  enforcement  practices  among  MSHA's inspectors as to 
the interpretation and application of this regulation, examples
of which follow below.

      Inspector Reitter, who has never  been in the mine, but who
nonetheless  "supervised"  Mr.  Foster  in  issuing  the citation,
was unaware of any written MSHA directive (except the Gomez letter)
requiring mine evacuation.  His  belief  that  one  of  two  hoist 
escapeways  could be unavailable for one hour was based on the 
one-hour normal  life  of  a self rescue  device,  and "word of 
mouth" discussions with other inspectors.

      Inspector Bilbrey  believed  that when section 57.11050(a),
is  cited because a hoist is unavailable and cannot be returned 
to service within one hour, evacuation must begin. However, he 
further believed  that  a  mine  operator had a "floating time"
frame to determine that the hoist cannot be restored to service. 
He explained that one hour would be allowed to make the initial
unavailability determination, and that evacuation could  begin
during the next  hour.   He confirmed that there is no written
policy supporting his interpretation.

      Inspector Backland believed that in the event of a "planned
maintenance  situation,"  if it takes more than one hour to repair
a hoist evacuation must begin. His  belief in this regard "relates"
to the one-hour life of a self rescue device, and he confirmed that
there is no MSHA written policy in this regard. However, he believed
it is district policy, but could not recall who advised him of this.

      MSHA's Safety Division  Chief Breland's interpretation that
section 57.11050(a), requires  the  evacuation  of the mine within 
one  hour  after  non-compliance  is  based on  his understanding 
of  subsection (b), the one-hour life  of  a self  rescuer,  and  
MSHA's   fire   evacuation  standards. However, Inspector Strickler
testified  that a fire that is out of control for more than 30
minutes must  be  reported, but no evacuation of the entire mine
is required, and  a separate  order  would be required to achieve
a  mine evacuation.

      Inspector Foster's "one-hour"  evacuation interpretation is
based  on  the  one-hour oxygen supply  of  a  self  rescue device,
his "experience"  in  coal mines, and conversations with fellow 
inspectors and supervisors.

      Inspector Strickland believed that if a hoist were down for
30 minutes, and could not be restored  within  the  next 30 minutes, 
evacuation  must begin.  He was not aware of  any MSHA "one-hour
evacuation"  policy, and he based his belief in this regard on the
one-hour  self rescue device, and his "experience" and conversations
with other inspectors.

      Mr. Salois testified that he was  not  aware of any written
MSHA  National  policy  determination concerning section 57.11050, 
but  that  based on what he "learned on the job, miners have to be
evacuated  when hoist work is performed." He  believed  that  the 
regulation  required  two  separate escapeways at all times,  and
if only one was available, this would constitute non-compliance.

      Although  Mr.  Salois  claimed  ignorance  of  any  section
57.11050(a) national policy, Mr. Gomez stated that his December
8,  1995,  letter states the current  enforcement mine  evacuation 
policy   for   non-compliance. However, contrary  to his earlier
testimony concerning  the policy aspects of his letter, Mr. Gomez 
later testified that his letter does not state  any  policy  and 
that  he  does not always issue policy when answering letters of 
inquiry. In explaining  further,  Mr.  Gomez  stated  there  are 
different methods and ways of handling and instituting agency 
policy, and he cited his letter as one  of  these  methods.  I 
find his explanation to be confusing and contradictory.

      The  record  further  reflects  a  variety of methods  that
inspectors would follow in citing violations of section 57. 11050(a),
and requiring abatement. Inspector Strickland did not believe that
section  104(a)  required  the  withdrawal of miners while abatement 
is ongoing, and he confirmed he had no authority under section 104(a)
to order mine evacuation. However,  based  on  his  "experience,"  he
believed  that section  57.11050(a), authorized him to evacuate a 
mine and that a separate  order  was not required.  He also believed
that a one-hour abatement  time  is reasonable based on the one-hour
useful life of a self rescuer.

      Inspector Bilbrey questioned his authority  to require mine
evacuation.   Inspector  Reitter  believed that  a  section 104(a)
or (d) citation does not require  withdrawal  from a cited  area. 
However, if a hoist were unavailable for  one hour, he would issue 
a  section  104(a) citation, with a short abatement time, and would
require  mine evacuation by issuing a section 104(b) order if the 
hoist  could  not  be restored to use within the hour.

      Mr.   Salois   would   achieve   compliance   with  section
57.11050(a), by issuing a section 104(a) or (d) citation if there 
were  no  imminent  danger,  and  he  would fix  the abatement time 
at one hour.

      Inspector  Foster confirmed that a section 104(a)  citation
does not require  the withdrawal of miners, and he conceded that 
there is no language in section 57.11050(a), requiring mine 
evacuation in  the  event of non-compliance.  However, in  the 
instant  case, he considered  the  section  104(a) citation that
he issued  to  be  a  withdrawal order with a one-hour abatement
time regardless of the condition of the hoist, and without regard 
to the other work being performed underground, or the likelihood
of a fire. I note from the pleadings however, that the citation 
be issued  was  issued at  8:03  a.m.,  on  January  25,  1996,
and  he fixed the abatement at 5:00 p.m., the next day, January 
26, 1996.

      Inspector Strickler initially indicated that the  fixing of
a reasonable abatement time is left to the inspector's discretion 
after consultation with the  mine operator as to the time it would
take to correct the condition.  He later indicated that a reasonable
time for abatement would be one hour based on the useful life of a
self rescuer.

Mr.  Salois indicated that he would fix the abatement  time at one
hour,  and  would extend the time to focus on other problems,  but
only after the mine was evacuated. He further stated that a one-hour
abatement time is reasonable regardless of the  circumstances, and
that based on section 57.11050(a), an inspector  has  no discretion 
to grant more than an hour  for  abatement  because  two  properly 
maintained escapeways would not be available.

      Mr.   Breland   believed  that  one-hour  is  a  reasonable
abatement time because "that is what we expect in the evacuation,"
without regard to how long it might take to reapir a hoist or the
number of people underground.

      Mr.  Backland  believed  that   all  of  the  circumstances
presented must be evaluated in fixing  a reasonable time to abate
a violation.

      Mr.  Gomez  suggested  that  an  inspector  could  issue  a
citation  with  a "short" abatement time of less  than  one hour, 
followed by  a  section  104(b) withdrawal order.  He was of the
opinion that the absence of two  functional escapeways constituted
a  per  se  imminent danger, and he would achieve compliance by 
initially issuing a section  104(a)  citation,  followed  by  an 
imminent danger order if a cited unavailable hoist was not restored
to use within one hour.

      The  Gomez letter, at page 4, quotes a passage  from  Judge
Hodgdon's  decision in Savage Zinc, Inc., 17 FMSHRC 279,290 (March 
1995),  addressing  the  "S&S"  hazard  in  failing  to  have  two 
escapeways.  In that case, Judge  Hodgdon affirmed a violation of
section 57.11050(a), after concluding  that the  mine  had only one
escapeway. I take note of the fact that contrary  to  MSHA's asserted
policy of requiring mine evacuation within one  hour  in the absence 
of at least two escapeways, and the automatic  one-hour abatement 
rule, the inspector in the Savage Zinc case  issued  a  citation,
did not require the immediate evacuation of miners,  and  fixed the
abatement  time at one month, not one hour.  I further note that the 
citation  was  issued  on  October  14, 1994, prior to the January 8,
1995, Gomez letter.  In any  event, the  failure to immediately 
evacuate the mine, and allowing 30 days  to  abate  appears to be
contrary to Mr. Gomez' avowed "long-standing" policy of immediate 
mine evacuation and  short,  one-hour  abatement  in  the  absence 
of  two available escapeways.

      MSHA's reliance on subsection (b) of section  57.11050,  as
its  authority  for requiring evacuation of the entire mine if one
of the two  escapeway hoists is unavailable for more than one hour
is rejected.   Subsection  (b),  on its face, does  not  provide
for  any mine evacuation. Indeed, the plain language of subsection
(b) provides for refuges, not evacuation, if miners cannot reach 
the  surface  within an hour  by  using the escapeways provided by
subsection  (a). AKZO is not  charged with a violation of subsection
(b). In any event, it  is  my  view  that  if  the  rule makers had
intended to require the evacuation of the entire mine, they would
have clearly included this as part of the regulation.

      MSHA's  assertion  that section 104(c) of the Act  supports
its belief that all  miners  are  required  to be evacuated from 
the mine when one of the two escapeways is unavailable for use 
because that section allows only the  miners needed to  correct the
escapeway deficiency to be present  in  the affected mine areas is
not well taken, and is rejected.  In my view,  section  104(c)  of
the  Mine  Act  provides  no independent evacuation  or withdrawal
authority  or requirement.  That section must be read in conjunction
with the  citation/order  scheme found in section 104, and comes
into play when a citation or withdrawal order requiring abatement
is  issued.   In the instant case, the violation was issued as a 
section 104(a) non-"S&S" citation.

      MSHA's suggestion, at page  8  of  its  initial  responsive
brief,  that  no  time  for abatement is reasonable because AKZO 
"intentionally" created the  violation  in  order  to  test  the  
application of section  57.11050(a),  and  "knowingly" violated
the  law is not well taken and is rejected.  AKZO specifically 
informed MSHA of its intentions, and MSHA willingly accommodated
AKZO.  In short, I conclude and find that MSHA was a cooperative
and knowing participant,  and  cannot  now  complain  and  seek 
additional punishment against AKZO.  I find nothing  to  suggest
that MSHA ever initiated any section 110(c) proceedings  against
AKZO  officials  for any  "knowing"  violations.  Further, the 
alleged  violation was issued as a section 104(a) non-"S&S"
citation, and AKZO was never  charged  with any aggravated or 
unjustifiable or inexcusable  conduct  for  any  unwarrantable
failure noncompliance.

      I  disagree with MSHA's assertions  that  its  requirements
pursuant to section 57.11050(a) are clear and unambiguous, and that
a  reasonably  prudent  person  familiar  with the mining  industry
understands them. Apart from the Gomez letter of December 8, 1995,
which admittedly was not shared with other mine operators, there is
no evidence that MSHA has  ever  published  its  contents as part 
of its policy manual,  inspector guidelines, or in any communications
to the mining community at large.  It seems obvious to me from the 
testimony  in  this case that the inspectors themselves do not have
a clearly  defined and consistent understanding with  respect to  
the  interpretation,   application,  and enforcement  of  section 
57.11050(a).  Except  for  ad  hoc interpretations, "word-of-mouth" 
advice,  and  possibly  a copy  of  the  Gomez letter, it does not
appear that MSHA's districts and inspectors  have  at their disposal
a clearly defined  written  official  agency  enforcement  policy 
to follow,  particularly  with  respect  to  the  issuance  of
citations and orders, and the fixing of abatement times.

      I find nothing in section 57.11050(a), that supports MSHA's
position that mine evacuation must begin immediately if one of
the two designated hoist escapeways is unavailable for more than
one hour, nor do I find support for  MSHA's  position that the 
cited hoist was not properly maintained because it was unavailable 
for more than one hour.

      I conclude  and find that the regulatory language requiring
the positioning  of  escapeways so that damage to one shall not
lessen the effectiveness  of  the others recognizes the fact that 
one escapeway in a two escapeway mine may not always be available 
at  all  times because of damage.  I believe that this would also
apply  to  a situation where a hoist  is  taken out of service for
maintenance  to  insure that it is kept in a properly maintained 
condition.

      In  the instant  case,  the  cited  condition  or  practice
includes a finding that during part of the time the cited production
hoist  was  out  of  the  service, the  primary service  hoist was
also  out of service for a maintenance procedure which did not result
in its use being interfered with for over 30 minutes.  Since there is
no evidence that the  service hoist was damaged, or that its use was
interfered  with for more than thirty minutes  pursuant  to section
50.2(h)(11),  I  cannot  conclude that the fact the production  hoist
was out of service lessened the effectiveness of the service  hoist 
within  the meaning of section 57.11050(a).

      I  conclude  and  find  from the record in this case,  that
prior  to  the December 8, 1995, Gomez letter, MSHA's inspectors
in  the North-Central  District,  and  probably other  districts,
followed   an  apparent  long  standing practice of not requiring 
the evacuation  of miners working underground  when only a single 
escapeway was  available during  a  shift. This practice allowed 
production  to continue until the end of the  shift,  provided 
miners were notified  that  only one escapeway was available and 
they agreed to continue  working until the end of the shift, and
provided the next shift was not permitted to go underground until
the second escapeway was repaired.

      In the instant case,  the cited production hoist was out of
service  for  maintenance, and I find credible AKZO's assertion
that the rope shortening  work  was being done to insure continued
compliance with the regulatory requirement that   the  hoist  be
properly  maintained. I find it reasonable to conclude that if MSHA
were following its pre-Gomez letter  policy, a citation would not
have been issued and work would  have been allowed to continue until
the end of the shift until  the  unavailable  hoist was restored to
service.

      After  further  careful  review  and consideration  of  the
arguments presented by the parties, I agree with AKZO's position
that MSHA's automatic one-hour mine evacuation requirement, a 
requirement  clearly  not contained in cited section 57.11050(a),
is a significant departure  from  MSHA's apparent prior practice 
that  has  a substantial adverse impact on AKZO's mining rights
and compliance obligations. The  same  can  be said for MSHA's
automatic one-hour abatement practices that appear to be contrary
to Commission  precedents.   MSHA's  requirement  pursuant  to
section  57.11050(a),  creates  and  imposes  new  compliance
obligations on AKZO, under  pain  and  penalty of immediate mine
closure,  with little or no discretion  left  to  the inspector
not to  require  mine  evacuation  in the event a hoist that is 
undergoing routine preventive maintenance  in order  insure  its
"properly  maintained" condition is not returned to service within 
an hour. Under these circumstances, I conclude and find that the 
Gomez letter is more than a general explanatory or interpretative
statement regarding the application  of section  57.11050(a). I
conclude and find that the letter constitutes a substantive rule
subject to APA notice, comment, and  publication requirements.
See: Drummond Company,  Inc.,  17 FMSHRC 661 (May 1992).

      Based  on  the  entire  record  before  me in this case,  I
conclude  that  MSHA's  interpretation  and application  of section 
57.  11050(a),  goes  well beyond the regulatory languages found
in that section, and constitutes an unreasonable and impermissive
enforcement reach that is not entitled to deference.

      In  view  of  the  foregoing  findings  and  conclusions, I
conclude and find that MSHA has failed to establish   violation 
of section 57.11050(a), by a preponderance of the credible  and 
probative  evidence adduced  in this proceedings.  Accordingly,
the contested  citation  IS VACATED.

                              ORDER

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

               1).   Section  104(a) non-"S&S" Citation Nos.
               4100787,  November  28,  1995,  and  4546275,
               January 25,  1996,  citing alleged violations
               of 30 C.F.R. 50.10, ARE VACATED.

               2).   Section 104(a) non-"S&S"  Citation  No.
               4546323,  January 25, 1996, citing an alleged
               violation of 30 C.F.R. 50.20(a), IS VACATED.

               3).  Section  104(a)  non-"S&S"  Citation No.
               4546276, January 25, 1996, citing  an alleged
               violation   of  30  C.F.R.  57.11050(a),   IS
               VACATED.

               4).     MSHA's   proposed    civil    penalty
               assessments   of   $600,   for  citation  No.
               4546275, and $400 for Citation No. 4546323 in
               Docket  No.  LAKE  96-125-M, ARE  DENIED  and
               DISMISSED.

                                   George A. Koutras
                                   Administrative Law Judge

Distribution:

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)

Mark N. Savit, Esq.,  Ruth  L.  Ramsey, Esq., Patton  Boggs,
L.L.P., 2550 M Street,  N.W., Washington, D.C. 20037-1350 
(Certified Mail)

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