CCASE:

SOL (MSHA) V. PEABODY COAL

DDATE:

19790326

TTEXT:
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 Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)

 Office of Administrative Law Judges

SECRETARY OF LABOR, Civil Penalty Proceeding

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. BARB 78-606-P

 PETITIONER A.O. No. 15-07166-02023V

 v. Sinclair No. 2 Mine

PEABODY COAL COMPANY,

 RESPONDENT

 DECISION

Appearances: John H. O'Donnell, Trial Attorney, Office of the

 Solicitor, U.S. Department of Labor, Arlington,

 Virginia, for the petitioner;

 Thomas F. Linn, Esquire, St. Louis, Missouri, for

 the respondent.

Before: Judge Koutras

 Statement of the Proceeding

 This is a civil penalty proceeding pursuant to section

110(a) of the Federal Mine Safety and Health Act of 1977,

initiated by the petitioner against the respondent on August 7,

1978, by the filing of a petition for assessment of civil

penalty, seeking a civil penalty assessment for two alleged

violations of mandatory safety standards 30 CFR 75.200, and

75.1400, set forth in section 104(c)(2) orders, issued by Federal

mine inspectors Arthur J. Parks and Thomas M. Lyle in October and

December 1977. Respondent filed an answer and notice of contest

on September 7, 1978, denying the allegations and requesting a

hearing. A hearing was held in Evansville, Indiana, on December

12, 1978, and the parties submitted posthearing proposed

findings, conclusions, and briefs, and the arguments set forth

therein have been considered by me in the course of this

decision.

 Issues

 The principal issues presented in this proceeding are (1)

whether respondent has violated the provisions of the Act and

implementing
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regulations as alleged in the petition for assessment of civil

penalty filed in this proceeding, and, if so, (2) the appropriate

civil penalty that should be assessed against the respondent for

the alleged violation, based upon the criteria set forth in

section 109(a)(1) of the Act. Additional issues raised by the

parties are identified and disposed of in the course of this

decision.

 In determining the amount of a civil penalty assessment,

section 110(i) of the Act requires consideration of the following

criteria: (1) the operator's history of previous violations, (2)

the appropriateness of such penalty to the size of the business

of the operator, (3) whether the operator was negligent, (4) the

effect on the operator's ability to continue in business, (5) the

gravity of the violation, and (6) the demonstrated good faith of

the operator in attempting to achieve rapid compliance after

notification of the violation.

 Applicable Statutory and Regulatory Provisions

 1. The Federal Coal Mine Health and Safety Act of 1969, 30

U.S.C. 801 et seq., now the Federal Mine Safety and Health Act

of 1977.

 2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).

 3. Interim Commission Rules, 29 CFR 2700.1 et seq. 43 Fed.

Reg. 10320-10327, March 10, 1978.

Stipulations

 The parties stipulated to the following:

 1. At all times relevant, the mine was owned and operated by

Peabody Coal Company, a large coal mine operator. The mine

employed 219 persons underground, 25 persons on the surface, and

has a daily production of 3,000 tons of marketable coal (Tr. 5).

 2. Any penalty assessed for the alleged violations will not

adversely affect the respondent's ability to remain in business

(Tr. 5).

 Discussion

 104(c)(2) Order No. 7-0127, 1 AJP, issued on October 18,

1977, by Federal coal mine inspector Arthur J. Parks, citing a

violation of 30 CFR 75.200, states as follows:

 The approved roof control plan (September 2, 1977) was

 not being followed on the No. 2 Unit (I.D. 004)

 Northwest Mains in that entries and crosscuts were

 being driven in
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 excessive widths (Last crosscut between No. 1 & No. 2

 entries- 23 ft. 5 inches; No. 4 entry at the feeder- 22 ft.

 8 inches; No. 4 entry 2 crosscuts inby the feeder- 24 ft.

 No. 5 entry 30 feet inby spad no. 915-21 feet). Responsi-

 bility of Albert Knight, mine manager; Byron Bailey and

 Charles Chumley, Asst. Mine Managers; and Roy Stills and

 James Griggs, Section Foremen.

 30 CFR 75.200 provides as follows:

 Each operator shall undertake to carry out on a

 continuing basis a program to improve the roof control

 system of each coal mine and the means and measures to

 accomplish such system. The roof and ribs of all active

 underground roadways, travelways, and working places

 shall be supported or otherwise controlled adequately

 to protect persons from falls of the roof or ribs. A

 roof control plan and revisions thereof suitable to the

 roof conditions and mining system of each coal mine and

 approved by the Secretary shall be adopted and set out

 in printed form on or before May 29, 1970. The plan

 shall show the type of support and spacing approved by

 the Secretary. Such plan shall be reviewed

 periodically, at least every 6 months by the Secretary,

 taking into consideration any falls of roof or ribs or

 inadequacy of support of roof or ribs. No person shall

 proceed beyond the last permanent support unless

 adequate temporary support is provided or unless such

 temporary support is not required under the approved

 roof control plan and the absence of such support will

 not pose a hazard to the miners. A copy of the plan

 shall be furnished to the Secretary or his authorized

 representative and shall be available to the miners and

 their representatives.

Testimony and Evidence Adduced by Petitioner

 MSHA inspector Arthur J. Parks testified that he is familiar

with the Sinclair No. 2 Mine which is located near Drakesboro,

Kentucky, near Muhlenberg County and is in the Kentucky No. 9

seam. A conventional method of mining is used there, i. e., the

coal is cut, reeled and then shot and loaded out with a loading

machine. Continuous mining machines are not presently utilized

(Tr. 9-10). On October 18, 1977, he issued to assistant mine

manager Byron Bailey, section 104(c)(2) Order of Withdrawal No. 1

AJP, citing 30 CFR 75.200, because he observed places that were

wider than the 20-foot width that the roof control plan called

for. The first place that he noticed in excess of 20 feet was the

last open crosscut on the return side of the unit. The crosscut

between Nos. 1 and 2 entries, which is the last open crosscut on

the return, was 23 feet 5 inches. He made this determination by

using a 50-foot tape line. In addition, he found three
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other places where the roof control plan had not been followed.

Two places were in front of the feeder, which is in the No. 4

entry, and another place was in front of the power center, which

is in the No. 4 entry. The fourth place listed on the face of the

order is No. 5 entry, 30 feet inby spad No. 915; the width at

that point was 21 feet. Under the roof control plan, the maximum

width that each of these entries could be was 20 feet (Tr. 16).

He was at the mine to investigate a roof fall, which, in turn,

prompted him to check for wide places or other violations. The

roof-bolting pattern seemed to be satisfactory.

 Inspector Parks indicated that cutting wide places weakens

the top, which, in turn, may result in a roof fall since the top

weakens when the entry is too wide. Coal at the Sinclair No. 2

Mine averages 58 inches in height. In some places, one can stand

up, but in other places it is difficult to even walk, and it has

been determined that a 20-foot height in this coal seam works

best. With the exception of shift changes, as a rule, there is

someone in the area 24 hours a day. The cracks in the roof

presented a danger of a potential roof fall. He sounded the roof

and, in his opinion, it sounded drummy. From his visual

examination of the roof, he determined that some timbers needed

to be set in quickly to compensate for the wide entries in the

crosscuts (Tr. 17-20).

 Inspector Parks found the violation was of such a nature as

could significantly and substantially contribute to the cause and

effect of a mine safety and health hazard because a roof fall

could be fatal or permanently injuring. Such a roof fall

previously occurred in the fourth crosscut from the face of the

No. 3 entry, where the entry and crosscut widths were

approximately 18 feet. From this incident, he arrived at the

conclusion that if the roof fell in an area with that width, it

would be likely in areas where the width is even wider, e. g.,

the face. Mr. Parks believed the operator should have known of

the condition, and that with reasonable effort, should have known

that certain areas were too wide. The last open crosscut between

No. 1 and No. 2 entries, which is 23 feet 5 inches, is the place

where an air measurement is customarily taken by the face boss or

preshift examiner. Since the air measurement is determined by

measuring across the crosscut and then multiplying the height to

get the area and then multiplying that by the linear reading on

the anemometer to find out what the quantity of air is passing

throught the crosscut, in measuring the width, respondent would

have determined that the crosscut was 3 feet 8 inches too wide

and could have set some timbers in it. In addition, the face boss

marks the width of the face for the cutter and driller to follow,

and by so marking the area, the width is determined (Tr. 22-24).

 While the excessive widths were visually observable, Mr.

Parks also measured the places that were cited on the face of the

order, and these were from the narrowest points of the entry

and/or crosscuts and were not from duck nests (i. e., a V-shaped

cut in the back
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of the rib that occurs as a result of a cutterman sumping too far

to the right, thereby pulling his bar too far to the left). If he

had found that an effort had been made to hold the width of the

ribs to 18 feet and the general rib line was 18 feet, he doubts

that he would have cited any violations because the average rib

line would probably have been 20 feet or no more than 20 feet.

The ribs were not straight; they were full of duck nests, and

there were duck nests on the entries. With regard to the

probability of injury or death occurring to a miner due to the

condition, Mr. Parks indicated the area in front of the feeder

would be the most dangerous, and his reason for this opinion is

that when men are traveling through this area, due to the car and

feeder noise, the men might not hear the top working (Tr. 25-29).

 Inspector Parks terminated the order on October 20, 1977, 2

days after it issued, and he believed the operator did not

demonstrate good faith in abating the condition because the 100

timbers which had to be set in order to terminate the order,

could have been set on the second and third shifts on October 18.

However, the foremen at the mine had gone on strike and, as a

result, there was no one to set the timbers earlier, and when he

returned to the mine on the 19th, he saw only three men

underground (Tr. 34).

 On cross-examination, Mr. Parks stated that the term

"excessive widths," as used in his order, means in excess of 20

feet. When he issued the order, he was aware of the provision on

page R-5 of the MESA Manual that defines an "excessive width" as

12 inches or more than the planned opening width; however, he

later testified he was not aware of it. According to the MESA

Manual, the widths cited in the order would not have been

excessive (Tr. 36-40).

 Mr. Parks testified that he made the measurements with a

cloth tape measure, and assistant mine manager Byron Bailey held

the other end of the tape measure for him. He doubted that the

tape could have stretched enough through use to make a difference

in measuring. He did not know when the last crosscut between Nos.

1 and 2 entries (23 feet 5 inches wide) was mined (Tr. 41-45).

With regard to the first area that he noted which was 23 feet 5

inches and located in the last open crosscut, Mr. Parks indicated

the men were still working in the general vicinity. He did not

determine upon first seeing the area, that it was an

unwarrantable failure when he found out that it was excessively

wide, since he thought that it was a mistake. However, after he

saw three more places that were too wide, he determined that it

was a practice throughout the mine and that some timbers should

be put up. Although he observed seven places that were in

violation due to excessive widths, he documented only four on his

order. When he went back to terminate the order and to check over

the rib, he found, in total, approximately 16 places that were

too wide. Once he issued the order, he would not terminate it

until all the wide places on the run were timbered, thereby

making the area
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safe. After he came back to terminate, he found that there were

other places that were wider than the ones that he cited (Tr.

54-57).

 Inspector Parks testified that he cited only four places

because he was satisfied in his mind that if he started writing

up one citation after another, that those working at the mine

could continue working and endangering themselves if there were

more wide places. His intent was to get the units shut down and

make the people aware of the bad top or bad conditions from the

excessive widths and get the condition corrected (Tr. 59-63).

When he inspected the top and areas where the excessive widths

existed, he sounded the top, however, he prefers to rely upon the

examination of the roof, since he cannot tell a great deal on the

basis of sound. He was, nonetheless, satisfied with it. Although

he did not like the looks of the roof, he understands that the

pinning pattern in roof control can hold the roof in place even

if it has cracks in it. The areas were pinned and he did not

observe a pin pattern violation. Timbers are frequently knocked

out by equipment running through, especially on the corners where

the shuttle cars are running through since they are wide machines

(Tr. 69-70). Although he found no areas in the entries cited to

be less than 20 feet wide, the entry and the crosscut at the roof

fall were 18 feet wide and on previous occasions he did measure

other areas on the unit and some were less than 20 feet and some

crosscuts were 17-1/2 feet wide (Tr. 74-76).

 Mr. Parks believed the wide places are caused by the

creation of duck nests, i.e., the cutterman getting off his mark

and then trying to get back on, but not really knowing where he

is. It is a multiplying effect and the area could keep getting

wider and wider, and while the rib line could be perfectly

straight, there could still be an excessive width. He described

where his measurements were made from the rib line, and he

indicated there were no straight rib lines throughout the unit

(Tr. 77-81).

 Inspector Parks inidcated that when he returned to the mine

the next day, there were few people there because of a strike. He

referred to a memorandum from his superiors who advised the

inspector to consider issuing section 104(c) unwarrantable

failure orders rather than 104(b) notices.

 When he returned to the mine, he did not see very many men

there and he assumes that there was not a sufficient number of

men working to terminate the order. He found four more places

that needed to be timbered before he could terminate the order,

but he did not issue a notice or order on those other areas

because the mine was still under a closure order and no work was

being performed. Had it not been for the strike, he does not know

whether good faith would have been shown, but he can reasonably

expect it to be shown (Tr. 84-87).
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 In response to bench questions, Mr. Parks stated that in order to

abate the order, 100 posts were set all over the unit, but at the

four locations with excessive widths, approximately 30 posts were

set. The posts that were set in the other locations were set in

connection with other wide places and entries not cited in his

order. The ultimate effect of his withdrawal order, therefore,

went to other wide places which he did not cite and which the

operator was required to abate anyway. Aside from the wide places

that he found, these locations were in compliance with the other

provisions of the roof control plan, and he did not notice a

violation of the roof-control pattern according to the pin

pattern (Tr. 97-98).

Respondent's Testimony

 Albert Knight, general mine manager, testified he was at the

mine surface on October 18, 1977, and became aware of the subject

order when the face foreman called him and told him that an order

had been issued on the section. When he arrived at the cited

area, he saw that the rib had broken and they began timbering it

out so that it could be abated on the second shift. He was not

present when the order was abated, but subsequently learned that

18 to 25 timbers had to be installed to take care of the four

areas cited in the order. A work stoppage had been called by the

face foremen and mine management personnel based on the (c)

orders and notices that had been issued to the Sinclair No. 2

Mine and to other mines during that period of time (Tr. 104-105).

 Mr. Knight did not consider the alleged violation to be

caused by an unwarrantable failure, and he did not believe that

it was noticeable enough for anyone to pay much attention to it

(Tr. 110-111). The roof control plan (Exh. P-2) calls for the

width of openings on the entries to be 20 feet and rooms to be 26

feet. For entries, that plan calls for roof support to consist of

crossbars plus supplementary timbers and crossbars, if needed.

With respect to rooms, they are not timbered unless they have an

abnormal condition. The roof support plan requires that they

timber out any entries. The belt entry was timbered up to the

tailpiece and the other entries were timbered up (Tr. 114-116).

 Mr. Knight described "duck nests," and stated it is possible

to avoid creating them by having a conscientious machine

operator. Cutting machine operators are shown where to cut by the

face boss marking the ribs and the center line with florescent

paint. Even though mine management shows the areas to be cut, it

is still possible for duck nests to be created through error or

inexperience on the part of the machine operator (Tr. 117-120).

 He observed each of the areas cited by Inspector Parks in

his order, and in his view, each of the wide areas were caused or

created by cutting duck nests, and the roof above the duck nests

was roof-bolted (Tr. 121-122).
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 Mr. Knight alluded to a meeting held by mine management with

local MSHA officials in Madisonville to discuss the issuance of

unwarrantable failure notices at the mine. The work stoppage by

the mine foremen was caused by the issuance of these orders and

the foremen were concerned because they took them personally and

viewed them as a reflection on their job performance. Since that

meeting, he received no more unwarrantable failure orders (Tr.

123).

 On cross-examination, Mr. Knight stated that the meeting

with MSHA was not intended to intimidate anyone. He clarified his

previous statement that no subsequent 104(c)(2) orders were

issued, and indicated that one was issued on October 27, 1977,

for a section 75.1704 hoist violation, and indicated that another

general inspection has not been completed at the mine (Tr. 130).

Mr. Knight was not present on the section when Mr. Parks issued

his order or made his measurements (Tr. 139).

 104(c)(2) Order No. 7-0166, 1 TML, issued on December 30,

1977, by Federal coal mine inspector Thomas M. Lyle, citing a

violation of 30 CFR 75.1400, states as follows:

 A qualified hoisting engineer was not provided on the

 surface at or near the hoist facility of the Sinclair

 underground No. 2 Mine on the third shift while persons

 were underground in the event of an emergency should

 arise to withdraw such persons from the underground

 workings. Responsibility of Ruben Thorpe, supt. and

 Bill Hampton, mine foreman third shift.

 30 CFR 75.1400 provides as follows:

 Every hoist used to transport persons at a coal mine

 shall be equipped with overspeed, overwind, and

 automatic stop controls. Every hoist-handling

 platforms, cages, or other devices used to transport

 persons shall be equipped with brakes capable of

 stopping the fully loaded platform, cage, or other

 device; with hoisting cable adequately strong to

 sustain the fully loaded platform, cage, or other

 device; and have a proper margin of safety. Cages,

 platforms, or other devices which are used to transport

 persons in shafts and slopes shall be equipped with

 safety catches or other no less effective devices

 approved by the Secretary that act quickly and

 effectively in an emergency, and such catches shall be

 tested at least every 2 months. Hoisting equipment,

 including automatic elevators, that is used to

 transport persons shall be examined daily. Where

 persons are transported into, or out of, a coal mine by

 hoists, a qualified hoisting engineer shall be on duty

 while any person is underground, except that no such

 engineer shall be required for automatically operated

 cages, platforms, or elevators. [Emphasis added.]
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Petitioner's Testimony and Evidence

 MSHA inspector Thomas M. Lyle confirmed that he issued the

order in question and served it on Bill Hampton, the third shift

foreman. Mr. Lyle testified that he arrived at the mine at 4 a.m.

on December 30, 1977, and encountered no one in the area of the

foreman's office nor in the hoist room, where normally a man

would be on duty. After walking through the bath house and the

supply room which he originally had passed through, he

encountered a supply clerk of who he asked the whereabouts of the

foreman and hoistman. The supply clerk told him that Mr. Hampton

was the foreman and to the best of his knowledge was also the

hoistman and that he and the other men were underground (Tr.

142-145).

 He then went to the shop and asked foreman Randy Plunkett as

to where Mr. Hampton might be located and was told that Mr.

Hampton was in the mine with two other foremen. He was also told

by Mr. Plunkett that Mr. Hampton was the hoisting engineer. He

asked Mr. Plunkett whether he was certified to run the hoist and

was told that he was not and that he did not know anything about

running one. He then asked Mr. Plunkett if he was aware that

section 75.1400 of the Code of Federal Regulations requires that

a hoisting engineer be on duty at all times. Mr. Plunkett

responded that he was aware of the provision, but that he was not

the mine foreman, but would try to get in touch with Mr. Hampton.

However, Mr. Plunkett was unsuccessful in doing so. In the

meantime, Mr. Lyle called his supervisor, Clyde Turner, and told

him what he had found at the mine and that he was going to issue

a 104(c)(2) order. At 5:45 that morning, Byron Bailey, the

assistant foreman on the day shift, came in and Mr. Lyle told Mr.

Bailey that he was going to issue an order. Mr. Bailey replied

that he did not know exactly why Bill Hampton was underground,

but that both he and Mr. Hampton were aware that they were

supposed to keep a qualified hoisting engineer on duty and said

that there is no excuse. Mr. Bailey finally got in touch with Mr.

Hampton by telephone and told Mr. Hampton that an order was in

the process of being issued and that he should withdraw the men

from the mine and bring them outside (Tr. 146-155).

 Mr. Lyle described the hoisting device in question and its

operation. He indicated that it was possible for men to walk out

of the mine without using a hoist unless they were injured.

However, at the time the order issued, the slope was icy and, in

his opinion, two men could not carry an injured man out of the

mine on a stretcher and up the slope. If they should be

successful in doing so, it would take an extremely long time.

 He spoke with Mr. Hampton after he came out of the mine and

Mr. Hampton told him that he knew that there was supposed to be a

hoist man on top, but that there were only two men besides

himself who were working and he just could not sit around while

they were
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in the mine rock dusting, so he went in the mine to help them.

Mr. Hampton then told him that he promised that it would not

happen again (Tr. 155-162).

 Mr. Lyle testified that he believed the violation could have

contributed to a "significant and substantial" safety hazard

because if someone underground other than Mr. Hampton had been

injured, it would have taken Mr. Hampton probably 10 or 15

minutes to walk up to the hoist room and drop the car. In

addition, someone would have to have been ready to help load the

car and bring them out. It would have probably taken 30 minutes

to do all this. Had there been a hoist man on the surface, if

someone were to be injured, all that would have been necessary

would be to call him and tell him to drop the car and then load

the injured man and bring him straight out. In a matter of

approximately 3 minutes, the injured man would have been brought

to the surface and would be on his way to a hospital (Tr.

163-165).

 Mr. Lyle testified that he made a finding that the violation

was an unwarrantable failure because Mr. Hampton is a mine

foreman, he had been trained in operating a hoist and had

certification papers as to his ability and, he was aware of the

requirement that someone be on duty to operate the hoist. In

addition, on other occasions complaints had been made that men

were going into the mine on Sundays without a hoisting engineer

and he and other inspectors had talked to the company personnel

at the mine. He had talked with Ruben Thorpe, the superintendent

of the mine, and the last of these conversations was right after

the miners went on strike, sometime around December 5 or 6, 1977

(Tr. 165-167).

 Although 30 CFR 75.1400 contains the caveat that a hoisting

man need not be present if there are automatically operated

cages, platforms or elevators, Mr. Lyle did not believe that it

would be applicable to the situation at hand because Sinclair No.

2 Mine does not have an automatic cage. Even the emergency

escapeway requires a person to raise it. He served the notice of

abatement (Exh. P-5) on Mr. Hampton 1 hour and 15 minutes after

he issued the order. With regard to whether or not good faith was

exercised, upon arriving at the mine, he did not receive much

cooperation on the surface since the mine foreman was underground

with two other foremen, except that he was called for. After Mr.

Bailey arrived, however, he cooperated with him. He abated the

violation after going down to the hoisting room with the day

shift hoistman, Larry Cleveland. He checked the hoist as Mr.

Cleveland operated it. Since Mr. Cleveland was a qualified

hoisting engineer and was on duty at the time, he abated the

violation. Mr. Cleveland was not present at the time he issued

the order of withdrawal, and, in his opinion, Mr. Cleveland

showed a good degree of proficiency with respect to operating a

hoist (Tr. 167-170).
~11

 On cross-examination, Mr. Lyle confirmed that the mine was not in

operation on the day he issued his order, except for nonunion

personnel, and this was due to the nationwide miners' strike. The

three people that were underground did not use the slope car, and

apparently walked into the mine. He did see Mr. Hampton walking

near the iron core of the portal. From his reports, it was a

practice on Sunday for supervisory personnel to walk into the

mine and inspect it for hazardous conditions and then walk back

out. The slope was 732 feet long from the portal to the bottom

and was at a 16-degree angle. He has walked down the slope and to

the best of his recollection, there is a handrail. The slope,

however, was severely frozen (Tr. 172-176).

 Mr. Lyle testified that in addition to the hoist telephone,

there was also a mine telephone underground that connects with

the office on the surface and could be used if one was unable to

reach anyone in the hoist house. If someone was in the shop and

it would take him approximately 3 minutes to get over to the

hoist house, he would consider that as being in close proximity

to the hoist house. Had there been a qualified hoisting engineer

in the bathhouse, office, or in the shop, he would not have

issued the order regardless of whether the hoisting engineer was

dressed, because in an emergency situation, he could have

summoned someone out of the mine. In addition to the regular

slope hoist, there is an emergency slope hoist. On the basis of

Mr. Plunkett's earlier statement, he does not know whether or not

Mr. Plunkett could operate the emergency hoist (Tr. 180-183).

 Since it is likely that none of the three men were

transported into the mine by a hoist, Mr. Lyle still believed

that a qualified hoisting engineer has to be on the surface. He

does not recall anyone ever commenting to him that when people

walked into a mine and contemplated walking out of the mine, that

in that case no hoisting engineer had to be in the hoisthouse. He

does not know how long it takes for the hoist car or the hoist to

get down to the bottom since he has never timed it (Tr. 186-187).

 During a strike such as the one that was underway on

December 30, 1977, Mr. Lyle agreed that it is a prudent and good

mining practice to go in and inspect the mine on a regular basis

and make sure that the integrity of the mine is maintained. He

does not know if that is what Mr. Hampton and his two associates

were doing that day, since they told him that they were rock

dusting. Although Mr. Hampton, a qualified hoisting engineer, was

on the surface at 6 a.m., as evidenced by the fact that he gave

Mr. Hampton the order at that time, he did not abate the order

until 7:15 a.m., because he was never asked to abate until Mr.

Cleveland arrived, since he was told that they were going to

discuss it (Tr. 188-189).

 In response to questions from the bench, Mr. Lyle indicated

that there is no question in his mind that the system of taking
~12

people underground constitutes hoisting, and he does not consider

it haulage. However, he did not know why it is not haulage, and

neither he nor his fellow inspectors, to the best of his

recollection, have questioned whether this particular device is a

hoisting device. The slope in question is a designated escapeway

(Tr. 195-205).

Respondent's Testimony

 General mine manager Albert Knight testified he was at the

mine the day the order issued and he confirmed that the mine was

not working because of a nationwide miners' strike. The first

shift was timbering, and the shift in question was fire-bossing

and dusting. He did not know whether the hoisting device was used

by the third shift on the day the order was issued. Normally,

they had not been using it as the men had been walking in the

mine and then walking out. He was told by Mr. Hampton that on the

day the order issued, he walked in the mine and they walked out.

In his opinion, it is not necessary to use the hoisting device to

get underground since it is possible to walk in and to walk out

of the mine. The slope is approximately 750 feet in length and is

at a 16-degree angle. There are handrails which go all the way to

the bottom. The hoisting device is used to transport men, but

most of the time it is used for supplying the mine (Tr. 214-218).

 Mr. Knight testified that it takes approximately the same

time to walk from the bottom area up the full 700 feet to the

portal as it would to use the hoisting device to bring a group of

people out of the mine--approximately 7 minutes. Whether or not

section 75.1400 requires a hoisting engineer to be on duty if the

hoisting device is not used to take persons underground, has been

an argument with the union people for about 3 years. Up until

this particular order was written, he has consistently maintained

that a hoisting engineer is not necessary when the device is not

being used to get underground. Since the order issued, they have

had a hoistman on duty on the surface and he described the

operation of the hoist (Tr. 218-220).

 Mr. Knight testified that during the strike, it was

customary on the third shift to walk in and out of the mine and

not use the device. Prior to the time the order was issued, the

only time that the necessity of having a hoist was brought up was

when the hoistman, a union employee, brought up the fact of going

in and out of the mine and that it was against the law. When the

mine is not on strike, the hoistman is on duty 24 hours per day.

He is a qualified hoisting engineer and is on call 24 hours per

day; thus, if he had been needed on the morning of December 30,

1977, he could have arrived at the mine in about 6 minutes, even

though he lives about 5 or 6 miles from the mine (Tr. 221-223).
~13

 On cross-examination, Mr. Knight testified that while he could

not recall the temperature on the day in question, he confirmed

there could have been ice on the slope, even though it had been

cleaned. The mine met the requirements of section 75.1402 and

there are two telephones in the hoisthouse equipped with speakers

and a page system which can be heard over the entire surface of

the mine. He was not on the mine property at the time the order

was issued, and has no idea why it took so long for the inspector

to inform Mr. Hampton that the order of withdrawal had been

issued. Normally, during a production shift, men are hauled in

and out of the mine (Tr. 223-226).

 Findings and Conclusions

Fact of Violation--30 CFR 75.200

 In its posthearing brief, petitioner argues that it has

established by a preponderance of the evidence that the areas

cited were in fact wider than the 20 feet allowed by the

mine-approved roof-control plan. Although conceding that the

inspector cited only four places that had excessive widths, when,

in fact, he observed 16 additional such places, petitioner

asserts that the respondent understood that mining excessive

widths would not be tolerated and the listing of the additional

places would simply have been an exercise in futility. Further,

although there were "duck nests" in the places cited, petitioner

maintains that the inspector made actual measurements of the wide

places, but did not include any part of a duck nest in his

measurements. Regarding the Inspector's Manual provision defining

"excessive" widths, petitioner argues that the roof-control plan

is controlling and the Inspector's Manual reference is only

relevant when weighing the gravity of the violation.

 Petitioner points out that the excessive widths were not

caused by rib sloughing and the inspector believed they resulted

from a practice in the unit in question to mine areas at

excessive widths, and considering the fact that the inspector

observed some 16 places with excessive widths, and it took 18 to

25 timbers to abate the four places described in the order,

petitioner maintains there was a practice of being indifferent

about the excessive width problem on the part of the respondent,

and the face boss told the inspector that the problem resulted

because the cutting machine operator on the second shift was

prone to cut too wide.

Respondent's Arguments

 In its posthearing brief, respondent argues that petitioner

failed to establish a violation of section 75.200. While

conceding that its roof-control plan restricts the widths of

entries and crosscuts to 20 feet, respondent argues that its plan

does not indicate that widths greater than 20 feet are excessive.

Citing section 75.201, which provides that the method of mining

followed in a mine
~14

shall not expose miners to unusual dangers from roof falls caused

by excessive widths of rooms and entries, respondent asserts that

the record is devoid of any "unusual dangers from roof falls"

attributable to openings or widths beyond those specified in its

plan. Further, respondent cites petitioner's 1974 Inspector's

Guidelines, which define the term "excessive" as "12 inches or

more" than the planned opening width and argues that the facts

adduced, when applied to the section 75.201 definition of

"excessive" and the Inspector's Guidelines, cannot support a

finding that excessive widths existed at the mine as charged in

the citation. Respondent also argues that the wide areas cited

resulted from "duck nests," which in respondent's opinion, are

normal conditions caused by the cutting machine.

 I find that the preponderance of the evidence adduced in

this proceeding supports a finding of a violation of section

75.200. It is clear from the evidence presented, that the widths

of the entries and crosscuts cited by the inspector were driven

in widths in excess of the approved roof-control plan. It is also

clear that the failure to comply with the roof-control plan

constitutes a violation of section 75.200. Peabody Coal Company,

8 IBMA 121 (1977). Respondent's suggestion that the inspector's

measurements are suspect is rejected. I fail to understand how

one can calibrate a tape measure, as suggested by respondent, and

respondent was free to take its own measurements, but did not do

so. Respondent's personnel assisted the inspector in taking his

measurements and I find the inspector's testimony regarding those

measurements to be credible. Respondent's assertion that the wide

places measured by the inspector resulted from "duck nests"

caused by the cutting machine bar is likewise rejected.

Respondent concedes that the measurements were made in the

general vicinity of the duck's nests and the inspector's

testimony that he was careful to avoid the duck nests while

making his measurements, stands unrebutted. Under the

circumstances, I find that the inspector's measurements as stated

in his order, were accurate and that petitioner has established

that the wide places did, in fact, exist as stated on the face of

the order.

 Respondent's reliance on the cited Inspector's Manual

instructions and guidelines regarding the interpretation of the

term "excessive widths" as a defense to the citation, is

rejected. The Inspector's Manual does not have the force and

effect of law or a mandatory standard and is not controlling.

Here, the roof-control plan and provision with regard to the

widths of the areas cited is controlling and any deviation from

that provision is a violation not only of the plan, but also of

section 75.200. Even if the Inspector's Manual reference at

75.201-1 (Exh. R-5) were deemed to be controlling, it seems clear

to me that the inspector followed the exception noted which

states: "[I]f it is evident that excessive widths are prevalent

and are caused by poor mining practices, a violation shall be

cited." In this case, it is clear from the inspector's testimony

that he believed the excessive widths resulted from poor mining

practices in that the cutting machine operator consistently

failed to
~15

cut straight entries and crosscuts and that mine management

failed to insure that the marked-out areas were, in fact, cut

straight. Respondent's own witness conceded that wide entries

were, in part, due to poor mining practices. Further, although

not detailed in his order, the inspector cited numerous other

locations where the entries and crosscuts were driven too wide

and it is obvious to me from his testimony that he believed the

excessive widths which he found on the day of his inspection were

prevalent, were caused by bad mining practices on that day, and

that the area cited was not adequately supported. While it may

have been better for the inspector to have included these other

areas in his order, the fact that he did not, does not detract

from his unrebutted testimony and findings made at the time the

order issued.

Size of Business and Effect of Penalty Assessment on the

Respondent's Ability to Remain in Business

 The parties have stipulated that the respondent is a large

coal mine operator and that any civil penalty assessed by me in

this matter will not adversely affect its ability to remain in

business, and I adopt these stipulations as my findings in this

regard.

Good Faith Compliance

 The inspector's conclusion that the respondent demonstrated

lack of good faith in abating the conditions cited is rejected.

In support of his conclusion in this regard, the inspector

testified that 100 roof-support timbers had to be set to abate

the conditions cited and that due to a mine foremen's "strike" or

work stoppage, adequate personnel were not available to do the

work. However, it is clear that the 100 timbers were, in fact,

required to support not only the areas cited, but the additional

areas which concerned the inspector and which the respondent was

required to abate before he would terminate the order. Thus, it

is clear that substantial work had to be performed before

termination of the order occurred. As for the work stoppage by

the foremen, while these individuals are part of mine management,

there is no evidence that the work stoppage was, in fact,

condoned by the mine superintendent or that it took place for the

purpose of avoiding compliance. That work stoppage apparently

took place because the foremen believed MSHA's enforcement

practices with respect to the issuance of unwarrantable failure

violations were unjustified and reflected on what they perceived

was an attack on their job performance. Aside from the merits of

that controversy, I take note of the fact that the work stoppage

subsequently resulted in a meeting with local MSHA district

enforcement officials for the purpose of discussing the matter

further and there is no evidence that the respondent subsequently

failed to make a diligent effort to comply. Given the

circumstances presented, I cannot conclude that the time taken to

abate (2 days) was untimely or an indication of a lack of good

faith. The affected area was closed by the order and
~16

the inspector himself recognized that no men were available to do

the work and he did not specifically fix any time for abatement

since his order effectively closed down the area where excessive

widths were being driven. Further, while the respondent could

have taken the position that it was only required to install

enough additional roof support to abate the specific areas cited

by the order, it did, in fact, install all of the additional roof

support as required by the inspector in the other areas which

concerned him and it obviously did so to terminate the order so

that production could resume. In view of the totality of the

circumstances which prevailed at the time in question, I conclude

and find that the respondent exercised normal compliance once the

order issued and should not be penalized further by adopting

petitioner's suggestion that it exhibited a lack of good faith in

abating the conditions once the order issued.

Negligence

 Respondent's suggestion that the wide areas cited resulted

from "duck nests" created by the machine operator and that the

respondent cannot be held accountable for this practice, is

rejected. As indicated earlier, the inspector took into

consideration the existence of duck nests, but he specifically

stated that the measurements he made were of the wide entries and

crosscuts. Further, he specifically stated that the mining widths

are controlled underground by the face boss marking the required

widths of the cuts and that in the event the cutting machine

operator is wide of those marks, it is the responsibility of the

face boss to take corrective action on the scene to insure that

the areas are cut as marked and in accordance with the

roof-control plan. I agree with these observations by the

inspector and I find and conclude that on the day in question,

the wide areas cited were caused by the failure of the cutting

machine operator to cut within the areas apparently marked out by

the face boss and that with a little more attention on his part,

the conditions cited could have been prevented. Respondent

admitted that the conditions cited were, in part, caused by poor

mining practices and resulted from "likely errors" on the part of

the machine operator. In the circumstances, I find that the

violation cited resulted from the respondent's failure to

exercise reasonable care to prevent or correct the conditions

which it knew or should have known existed and that this failure

on its part constitutes ordinary negligence. I find nothing in

the record to support any conclusion that respondent recklessly

and deliberately caused the conditions cited.

Gravity

 Respondent's proposed finding that the violation cited was

nonserious is rejected. The inspector was in the mine on the day

his order issued for the purpose of investigating a roof fall

which had occurred in an area where the mining width was

approximately 18 feet. He was concerned over the fact that the

cutting of entries and crosscuts at widths more than that called

for by the roof-control plan
~17

would, over a period of time, likely weaken the roof and cause

another possible roof fall, unless additional roof support was

installed in those areas. Considering all of the wide places

which he found during his inspection, I cannot disagree with the

inspector's conclusions in this regard. Although it is true that

the roof areas in question were bolted in accordance with the

roof-control plan, the fact is that the inspector testified the

roof sounded drummy and he believed additional support was

required to compensate for the wide areas cited. In the

circumstances, the failure of the respondent to follow its

roof-control plan by cutting wide entries and the failure to

install additional roof support was serious and presented a

potential for additional roof falls in the cited areas. I find

that the violation was serious.

History of Prior Violations

 Petitioner introduced a computer printout of the prior

history of violations pertaining to the Sinclair No. 2 Mine (Exh.

P-6). That history reflects a total of 145 paid violations for

that mine during the period January 1, 1970, to April 4, 1977.

During that same period of time, the history for the

operator/controller (Kennecott Copper Corporation) reflects a

total of 857 paid violations.

 Respondent contends that at the time the order issued on

October 18, 1977, the history of violations attributable to the

respondent should be "zero" since on July 1, 1977, the corporate

stock of Peabody Coal Company had been sold by Kennecott Copper

Corporation, the prior owner, to Peabody Holding Company, the

present owner. Respondent points to the fact that the mine was

previously owned by the Kennecott Copper Corporation and that the

ownership period, as reflected on the face of the printout, ended

on June 30, 1977. At the time of the violation in question,

respondent argues that the Peabody Holding Company (PHC), and not

Kennecott, was the controlling company, and that petitioner has

introduced no evidence respecting the prior history of violations

attributable to PHC. Since petitioner has listed only those

violations attributable to Peabody Coal Company when it was owned

by Kennecott, and since MSHA's Office of Assessments recognized

the fact when a mine is sold to a new operator, that new operator

starts out with a "clean slate" (Tr. 251), respondent asserts

that petitioner is now estopped from arguing the contrary.

Further, respondent argues that significant management changes

were made in Peabody Coal Company after the sale of that company

by Kennecott to PHC on July 1, 1977, including most directors,

many officers, the president, and the chief executive officer,

and that such changes were doubtlessly deemed to be an

improvement over the prior management arrangement. In the

circumstances, respondent argues that the prior history, as

reflected in the printout, should not be considered as part of

its prior history of violations, insofar as any assessment of the

instant violation is concerned, and any penalty assessed must

reflect a "zero" history.
~18

 Petitioner points out that since the effective date of the 1969

Act until July 1, 1977, the corporate stock of the Peabody Coal

Company was owned by Kennecott Copper Corporation. On July 1,

1977, the corporate stock of the Peabody Coal Company was sold to

Peabody Holding Company, which became the new owner of the

Peabody Coal Company since the holding company, in fact, became

the new owner of the corporate stock of the Peabody Coal Company.

Peabody Coal Company is a wholly-owned subsidiary of the holding

company and is its only asset. Petitioner argues that while

corporate stock changes owners, the liability of the corporation

remains constant and intact. Here, petitioner argues that the

mine was not, in fact, sold to a new operator, only the corporate

stock was sold, and Peabody Coal Company and its assets remained

intact.

 After full consideration of the arguments presented, I

conclude and find that on the basis of the record here presented,

petitioner has the better part of the argument, and its proposed

finding on this issue is adopted as my finding, and respondent's

arguments to the contary are rejected. I find that the prior

history of the Peabody Coal Company, as reflected in the

printout, and notwithstanding the transfer of stock, may be

considered by me in assessing a civil penalty in this matter.

While respondent alluded to certain management changes at the

uppermost levels of the holding company, the fact is that there

is no evidence that mine management has undergone any changes,

that the holding company is, in fact, the present owner of

Peabody Coal Company, that the company is, in fact, its sole

asset, and that there has been a continuity of operation of the

mine in question, and that the only change has been in the sale

of stock. While it may be true that MSHA's Assessment Office

considered that an actual change in mine ownership had taken

place, I am not bound by that fact, and based on previous

proceedings involving the manner in which the Assessment Office

evaluates any given citation at any given time, I doubt whether

that office made other than a cursory evaluation of the question.

 On the facts presented in this proceeding, I find that the

prior history of violations with respect to the mine in question,

when viewed in light of the size of Peabody's total coal mining

operations, does not constitute a significant prior history of

violations, and that fact is reflected in the penalty assessed by

me in this matter. The same can be said for the prior history of

Kennecott's overall total history as reflected in the printout.

For an operation of its size, I cannot conclude that the 145 paid

violations over a period in excess of 6 years for the mine, or

the 857 violations over that same period for the size of

Kennecott's mining operations can be said to be significant.

Fact of Violation--30 CFR 75.1400

 The pertinent part of the mandatory safety standard cited in

Order No. 1 PML (7-166) on December 30, 1977, reads: "[W]here

persons
~19

are transported into, or out of a coal mine by hoists, a

qualified hoisting engineer shall be on duty while any person is

underground, * * *."

Petitioner's Arguments

 Regarding the hoist violation, petitioner concedes that due

to a nationwide mine strike, only management and supervisory

personnel were working at the mine. Although there was an

emergency drop cage hoist in the intake shaft which requires an

engineer on the surface to operrate it, petitioner argues that

the slope hoist, located in the designated escapeway, is the only

other means of entering and exiting the mine, and that persons

normally ride into and out of the mine to change shifts by use of

that hoist, and it is also used to get miners and supplies

underground. The hoist is operated by a cable on a hoist drum;

the cable attaches to an automatic brake and other cars, and the

cars are dropped down into the slope or pulled up out of the

slope to the mine portal. The cars are on a track, and normally

two cars, including the brake car, can convey 30 to 40 persons in

each car into and out of the mine. The hoist does not have an

automatically operated cage, platform or elevator, and normally

there is a qualified hoistman in the house 24 hours a day when

coal is being produced, or the normal maintenance shift is

employed. The cars were on the surface when the inspector made

his inspection, and injured persons have been taken out of the

mine by being hauled up the slope by the hoist and car.

 Although it is true that the men who were underground may

have walked down the slope in the mine, the slope was wet, muddy

and icy, and an injured person could not be carried out on a

stretcher without riding on the cars with the use of the hoist.

Regarding the man who was supposedly "on duty," petitioner points

out that it took the foreman an hour to get to the surface once

he was called from underground, and the other man lived 5 or 6

miles from the mine. As for the definition of the term "hoist,"

petitioner cites the definitions of that term as used in

Webster's Dictionary and Bulletin 95, A Glossary of the Mining

and Mineral Industry, and points out that the mechanics of the

hoist device in question qualifies it as a hoist as that term has

always been considered in the mining industry. Further, the fact

that a vertical cage or bucket is not involved is immaterial

argues petitioner, since the standard language "other such

equipment" includes the hoist device in question.

 Finally, petitioner argues that the fact that persons went

underground without the use of the hoist, does not matter since

persons are transported underground in the mine by the hoist and

while anyone is underground, a hoist engineer must be on duty,

and the slope must be available as long as anyone is in the mine.
~20

Respondent's Arguments

 Respondent argues that on the day the citation issued, due

to a strike, no union personnel were in the mine, but three

management personnel were underground. These three individuals

walked into and out of the mine without using a device usually

employed for transporting men and material into and out of the

mine, namely, a track-mounted car or set of cars to which is

attached a cable with the other end of the cable attached to a

drum on the mine surface. Respondent asserts that this device is

used principally for the haulage of materials and supplies,

although it is also used to transport men during normal

production shifts, and the hoisting engineer is usually a union

employee. The mine slope entrance descends some 730 feet at a

slope of some 16 degrees and has handrails and a walkway to

facilitate walking into and out of the mine. Since the

legislative history of section 314(a) of the 1969 Act, the

statutory counterpart of section 75.1400, intended the standard

to apply only where men are regularly transported in and out of

the mine by hoist, respondent submits that persons were not being

transported into or out of the mine with any degree of regularity

because the third shift customarily walked into and out of the

mine without the use of the personnel transport device as they

did on the day in question. Thus, as to the third shift,

particularly during the strike, respondent asserts that the hoist

was not customarily or regularly used for the transportation of

personnel. Since persons were not being transported into or out

of the mine on the third shift with any degree of regularity,

respondent maintains that no violation occurred.

 Finally, respondent argues that the term "hoist" is not

further defined and that Congress intended section 75.1400 to

apply to those instances in which a hoist is the sole or

principal means of entering and exiting a mine, and that since

the standard speaks of "hoist-handling platforms, cages, and

elevators," respondent submits that the type of hoist to which

Congress was addressing itself is a device designed to lift

persons in a more or less vertical fashion from the depths of a

coal mine. Also, since the device in question was not in use, the

mine was not one "where persons are transported into or out of a

coal mine" by a hoist, because the word "where" connotes more

than merely location and may be used to indicate the situation or

circumstances to which relates the remainder of the clause in

which the word "where" is used. And, respondent asserts that it

has steadfastly maintained that the last sentence in section

75.1400 refers to situations in which persons are transported

into or out of a mine, rather than a location at which persons

are sometimes transported into or out of the mine. Further, since

the evidence shows that a qualified engineer was on the surface

and near the "hoisthouse" and since a qualified hoisting

engineer, who is on a 24-hour call, was only 6 minutes from the

mine at the time the order issued, respondent maintains that a

qualified hoisting engineer was "on duty"
~21

within the meaning of section 75.1400, and respondent cites the

testimony of the inspector who considered a man to be "on duty"

when he is 5 or 6 minutes from the hoist house.

 It is clear from the evidence adduced in this proceeding

that the hoisting device in question is, under normal

circumtances, used to transport men and materials underground. In

such circumstances, it is also clear to me that section 75.1400

requires that a qualified hoisting engineer be on duty while

anyone is underground. On the facts presented in the instant

case, it is clear that on the day in question, the three

management individuals went underground by walking down the slope

incline and the hoist was not used because the mine was idle due

to a strike. Aside from the requirement in section 75.1704-1(b),

which provides that escape shafts include elevators, hoists,

cranes, or other such equipment, and that they be manned by an

attendant during coal-producing or maintenance shifts, I find

nothing in section 75.1400 that requires a mine operator to use

any hoisting device to transport men or supplies underground. Nor

do I find anything in that standard which requires an operator to

install such a hoist or to have it available for the

transportation of men to the surface in the event of emergencies.

 Except for a drop cage hoist in the intake shaft, which is

used in emergencies and requires an engineer on the surface to

operate, the slope in question is the only means of entering and

exiting the mine. Petitioner's proposed interpretation of section

75.1400, if accepted, would require an operator to maintain the

slope hoisting device in question operational at all times when

miners are underground. Thus, if an operator decides to close the

device or car trips down for maintenance, and the men walk in and

out of the mine for any given shift while the device is

inoperative, petitioner seemingly would require a qualified

hoisting engineer to be on duty. In my view, such a result is not

only illogical, but I can find no authority in any mandatory

standard for such a requirement. Here, the evidence establishes

that the slope in question was an escapeway and was so designated

on the mine map. In the circumstances, since petitioner's

arguments in support of its interpretation of the standard focus

on the fact that the lack of a qualified engineer would not

permit the expeditious removal of a miner in the event of an

emergency, it seems to me that the inspector should have cited

sections 75.1704 or 75.1704-1 which require that escapeway slopes

be maintained in safe condition to allow quick escape of miners

in the event of emergencies, and that an attendant be on the

surface in a position to hear or see a signal for the use of the

hoist and who be readily available to operate it.

 After careful consideration of the arguments presented,

including the facts and evidence adduced in this proceeding, I

conclude that respondent's proposed interpretation and

application of section 75.1400 is correct and petitioner's

arguments and proposed
~22

interpretation and application are rejected. I find that the

critical phrase "where persons are transported into, or out of a

coal mine by hoists, a qualified hoisting engineer shall be on

duty while any person is underground, * * *" as applied to the

facts of this case, refers to the circumstances in which persons

are transported into or out of a mine, rather than the location

at which such transportation is had. Under the circumstances,

since the management personnel in question were not transported

underground by means of the hoisting device in question, I

conclude that section 75.1400 is inapplicable and that petitioner

has failed to establish a violation.

 It is clear from the citation issued by Inspector Lyle that

he was concerned over the fact that no one was on the surface to

attend the hoist while persons were underground in the event an

emergency should arise to withdraw such persons from underground,

and petitioner's proposed interpretation and application of the

cited standard is consistent with the language of the order.

However, as concluded above, I believe the standard is

inapplicable to the facts presented, and that the inspector

should have cited sections 75.1704 or 75.1704-1(b). If petitioner

believes those sections are inapplicable, then it should consider

promulgating a safety standard to cover circumstances such as

those presented in this case.

 With respect to the question of whether the device used to

transport men in and out of the mine was, in fact, a "hoist"

within the meaning of section 75.1400, I conclude that it was,

and I adopt petitioner's proposed findings and conclusions as the

basis for this conclusion. The fact that the device was not a

platform, cage, or elevator, and did not move in a vertical

fashion, is immaterial as correctly argued by the petitioner. The

mechanics and workings of the transportation device in question,

including the definitions cited by the petitioner, including the

phrase "or other devices used to transport persons" support

petitioner's position on this issue. However, since I have found

the cited section to be inapplicable, this issue is moot.

 In view of the foregoing, I conclude and find that the cited

standard is inapplicable to the conditions cited by the

inspector, and that the petitioner has failed to establish a

violation of section 75.1400. Accordingly, the petition for

assessment of civil penalty, insofar as it seeks a civil penalty

assessment for the section 104(c)(2) order, Citation No. 7-0166,

December 30, 1977, is dismissed.

 Penalty Assessment and Order

 In view of my findings and conclusions made with respect to

the section 104(c)(2) order issued October 18, 1977, Citation No.

7-0127, I find that a civil penalty in the amount of $4,000 is

appropriate in
~23

the circumstances presented, and respondent is ordered to pay

that amount within thirty (30) days of the date of this decision.

 George A. Koutras

 Administrative Law Judge