CCASE:

SOL (MSHA) V. WESTERN STATES COAL

DDATE:

19790301

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 Proceedings

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA), Docket No. DENV 78-521-P

 PETITIONER A.O. No. 42-00085-02020

 v. Docket No. DENV 78-522-P

 A.O. No. 42-00085-02021

WESTERN STATES COAL CORP.,

 RESPONDENT Docket No. DENV 78-523-P

 A.O. No. 42-00085-02018V

 Docket No. DENV 78-524-P

 A.O. No. 42-00085-02019V

 Dog Valley Mine

 DECISIONS

Appearances: Edward H. Fitch, Trial Attorney, Department of Labor,

 Office of the Solicitor, Arlington, Virginia, for the

 petitioner;

 Robert L. Morris, Esquire, Davis, Graham & Stubbs,

 Denver, Colorado, for the respondent.

Before: Judge Koutras

 Statement of the Proceedings

 These proceedings concern petitions for assessment of civil

penalties filed by the petitioner against the respondent on July

27 and 28, 1978, pursuant to section 110(a) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 820(a), charging the

respondent with several mine safety violations issued pursuant to

the 1969 Federal Coal Mine Health and Safety Act. Respondent

filed timely answers in the proceedings, asserted several factual

and legal defenses, and hearings were held in Salt Lake City,

Utah, on November 15, and 16, 1978. Respondent filed proposed

findings and conclusions and a brief, and the arguments contained

therein have been considered by me in the course of these

decisions.
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 Issues

 The principal issues presented in these proceedings are (1)

whether respondent has violated the provisions of the Act and

implementing regulations as alleged in the petitions for

assessment of civil penalties filed in these proceedings, and, if

so, (2) the appropriate civil penalties that should be assessed

against the respondent for each alleged violation, based upon the

criteria set forth in section 110(i) of the Act. Additional

issues raised by the parties are identified and disposed of in

the course of these decisions.

 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, P.L. 95-164, effective March 9, 1978.

 2. Sections 109(a)(1) and (a)(3) of the 1969 Act, 30 U.S.C.

 819(a)(1) and (a)(3), now section 110(i) of the 1977 Ac

 Discussion

 The alleged violations and applicable mandatory safety

standards in issue in these proceedings are as follows:

DOCKET NO. DENV 78-521-P

 Section 104(b) Notice of Violation 8-0005, 1 JODL, January

9, 1978, cites a violation of 30 CFR 75.517, and states as

follows:

 The 440 volt power cable for the No. 3 belt drive

 located in the main South West section was not being

 fully protected in the No. 5 entry at the No. 1

 crosscut in that, the outer half of the right front

 tire on the Wagner scoop tram serial no. 395.75 was

 sitting on this cable.

 30 CFR 75.517 provides as follows: "Power wires and cables,

except trolley wires, trolley feeder wires, and bare signal

wires, shall be insulated adequately and fully protected."
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Testimony and Evidence Adduced by the Petitioner

 Federal coal mine inspector Jerry O. D. Lemon testified that

he issued the notice of violation on January 9, 1978, while

inspecting the mine. When he walked in the section, mine

personnel were in the process of moving a power unit and he

observed the 440-volt power cable under the right front tire of a

diesel scoop. The tire was resting on top of the cable, and was

next to the right rib and "there was a little coal over the

cable." He advised the people present that by "sitting on the

cable" there was a violation of section 75.517. The scoop was

thereupon backed up approximately a foot, the cable was pulled up

out of the coal, and work commenced. He checked the cable after

it was pulled out of the coal and could detect no visible damage

(Tr. 14-17).

 Inspector Lemon testified that the scoop is a big piece of

machinery and it is easy not to see a cable along the rib. He did

not believe the violation was intentional, and believed that the

scoop operator simply did not see the cable. The scoop was being

turned and was being used to facilitate the movement of the

electrical unit, and the scoop bucket was about 3 or 4 inches off

the ground while assisting in moving the unit. The scoop was

idling and the operator was seated in the cab, and he did not

observe the scoop move up on the cable. The tire, being close to

the rib, would make it difficult for someone to walk between the

rib and scoop (Tr. 17-20).

 The inspector testified that the violation was nonserious

because there was no damage to the cable. However, he considered

the situation to be an unsafe practice because if the cable were

damaged, it would present a hazardous situation in the event

someone picked up an energized damaged cable (Tr. 20-21).

 On cross-examination, Inspector Lemon indicated that the

term "probable" as used in Part 100, Title 30, Code of Federal

Regulations, with respect to the gravity of a violation, means

"it is likely to happen." He marked the item labled "Probable"

under the "Gravity" heading in numbered paragraph 1 on his

inspector's statement (Exh. p-3), because he thought there might

have been some damage to the cable, but he could not determine

any damage from visual observation since he is not an electrical

inspector. While the cable was "in good shape," there was a

possibility that something could happen. The event against which

the cited standard is directed, as that term is used in the

"Gravity" statement, was the possibility of the electrocution of

a mine employee in the event the cable were damaged (Tr. 23-29).

He reiterated that the scoop was backed up first, and the cable

was then lifted up and tied off by means of a piece of wire. The

cable was lying under the right front tire. He also indicated

that it is his practice to make notes at the scene of a violation

and that he uses the notes as the basis for completing
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his inspector's statement for each violation issued. He tries not

to include anything in his statement other than what he observes,

although he has included comments made by individuals on the

scene, particularly in "imminent danger" cases and "serious-type"

violations, and he has, on occasion, included such statements

under "Remarks" on his report (Tr. 39-43).

Testimony Adduced by the Respondent

 Roger J. Black, mine mechanic, testified that he is

responsible for the maintenance of equipment in the mine, and

that he was present the day Inspector Lemon cited the violation

in question. He testified that the cable in question was

originally lying in the cut of the rib where it is normally

stored, but fell out and was lying at the side of the tire with

some coal on top of it when the inspector happened on the scene.

When it was pointed out to him, he pulled the cable up on the rib

and tied it up. The cable had been "disconnected outside," and

the fuses on the main transformer had been pulled. He had no

recollection that the scoop was moved first before the cable was

pulled up, but does not believe the scoop was moved (Tr. 47-48).

 On cross-examination, Mr. Black stated that the cable fell

off the rib down next to the scoop tire, and he was aware that

the cable had been disconnected and deenergized because one

cannot touch such a cable unless it is disconnected at the

surface. He could not recall whether the scoop was backed off the

cable, but he did remember pulling the cable up to the side of

the tire. He indicated that the cable fell down from a cut in the

rib some 3 feet after the scoop was parked, and he confirmed that

the scoop was idling. He believed that the cable in question was

being fully protected, but he did not realize it had fallen down

from the rib. Since the scoop tires are concave, it is possible

that the cable was situated in such a way that one would believe

it was resting under the scoop tire (Tr. 49-54).

DOCKET NO. DENV 78-522-P

 Section 104(b) Notice of Violation 8-0010, 2 JODL, January

19, 1978, cites a violation of 30 CFR 75.313, and states as

follows:

 The methane monitor serial no. 269A mounted on the

 ST-5DS Wagner Scoop serial no. 395.75 being used inby

 the last open crosscut in the no. 7 entry of the Main

 South section to load coal was not being properly

 maintained or kept in a operative condition in that,

 this system would not automatically shut the diesel

 engine down when the monitor test button was pushed and

 the monitor indicator indicated 2 % methane.
~5

30 CFR 75.313 provides:

 The Secretary or his authorized representative shall

 require, as an additional device for detecting

 concentrations of methane, that a methane monitor,

 approved as reliable by the Secretary after March 30,

 1970, be installed, when available, on any electric

 face cutting equipment, continuous miner, longwall face

 equipment, and loading machine, except that no monitor

 shall be required to be installed on any such equipment

 prior to the date on which such equipment is required

 to be permissible under 75.500, 75.501, and 75.504.

 When installed on any such equipment, such monitor

 shall be kept operative and properly maintained and

 frequently tested as prescribed by the Secretary. The

 sensing device of such monitor shall be installed as

 close to the working face as practicable. Such monitor

 shall be set to deenergize automatically such equipment

 when such monitor is not operating properly and to give

 a warning automatically when the concentration of

 methane reaches a maximum percentage determined by an

 authorized representative of the Secretary which shall

 not be more than 1.0 volume per centum of methane. An

 authorized representative of the Secretary shall

 require such monitor to deenergize automatically

 equipment on which it is installed when the

 concentration of methane reaches a maximum percentage

 determined by such representative which shall not be

 more than 2.0 volume per centum of methane.

Testimony Adduced by the Petitioner

 Respondent conceded and stipulated to the fact of a

violation of section 75.313, and indicated that it contests only

the proposed assessment made in the amount of $120 (Tr. 58-59).

Petitioner was permitted to present testimony by the inspector

with respect to the violation, and particularly with respect to

the question of gravity and negligence.

 Inspector Lemon confirmed that he issued the citation on

January 19, 1978, citing a violation of 30 CFR 75.313, after

finding the methane monitor on an ST-5DS Wagner scoop, serial No.

395.75, was not maintained in a workable condition. He has never

detected the presence of methane from bottle samples he has

taken. He extended the abatement time after being advised that

repairs could be made within 30 minutes. However, additional time

was required by the operator because it was discovered that parts

had to be ordered, and he granted an additional 2 or 3 days, or

until 8 a.m., January 23, 1978, for abatement. He returned to the

mine at approximately 11:35 a.m. on January 23, and after being

advised by the section foreman that the machine had been

repaired, he proceeded to
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inspect the machine and found that the methane monitor was still

malfunctioning in that it would not deenergize the machine. Under

the circumstances, he had no alternative but to issue the order

prohibiting further use of the machine (Tr. 59-62).

 Inspector Lemon identified Exhibit P-9 as a "gravity

statement" he prepared and stated that, being a new inspector, he

had made a mistake in listing 20 miners as being exposed to any

hazard. That figure should have reflected the number of persons

working on the shift, which ranged from six to nine (Tr. 63).

Although Inspector Lemon testified that a "possible hazard" was

present, petitioner's counsel stipulated that in the absence of

any methane, the violation cited was nonserious (Tr. 64, 73). Mr.

Lemon believed the respondent should have been aware of the

condition cited because methane monitors are required to be

checked and calibrated periodically (Tr. 64-65).

 On cross-examination, Inspector Lemon testified that he did

not know whether the monitor in question had been calibrated and

indicated that he found no problems with respondent's failure to

check or calibrate methane monitors in the mine. To his

knowledge, calibration had been made to insure compliance. Mr.

Lemon did not fill out the "Good Faith" portion of his "gravity

statement" and crossed it out because he is instructed not to

fill out that portion when an order has been issued (Tr. 69-70).

 Mr. Lemon did not know whether the machine in question was

used on Thursday afternoon or Friday after he cited the

violation. He confirmed that the methane monitor would not

deenergize the machine when he tested it again on Monday, January

23, and he was told that there was a problem with linkage being

disconnected on the solenoid. Mr. Lemon stated that he indicated

on his gravity statement that the occurrence of the event against

which the cited standard was directed was "probable." The "event"

he referred to was that he believed it was likely that if the

face were shot while equipment was running, and if 2-percent

methane were found, which admittedly was not the case, the

equipment would likely not shut down (Tr. 71-73).

Respondent's Testimony

 Roger J. Black, mine mechanic, testified that when the

citation issued on January 19, the scoop was taken out to the

shop. The injector housing linkage had broken. The housing is not

a stock item and an order was placed for a housing and the

linkage was soldered in the housing and remounted on the injector

pump. The scoop was taken back into the mine on January 23. When

tested in idle speed, the scoop methane monitor would turn off

the machine. When the machine was reved up to 1,800 rpms in Mr.

Lemon's presence, it would not shut off and adjustments had to be

made to the linkage in order to enable it to shut off at higher

rpms (Tr. 83-86).
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 On cross-examination, Mr. Black testified that if the machine had

not been reved up to 1,800 rpms, it would have shut down when the

methane test button was activated. He could not recall telling

Mr. Lemon that the machine had been in the shop, but believed he

told him it would shut down at an idle speed (Tr. 86-87).

 Section 104(b) Notice of Violation 8-0015, 4 JODL, January

30, 1978, cites a violation of 30 CFR 75.200-2, and states as

follows:

 The approved roof control plan was not being complied

 with in the no. 3 entry face in the Main South West

 section in that the straight away face had been

 completely cleaned and no roadway timber had been

 installed. From the last roof support (road way) timber

 to the deepest point of penetration in the face it was

 an approximate distance of 42 feet.

 The approved roof control plan states that roof

 supports shall be installed to within 15 feet of the

 cleaned face, and that this roadway shall be maintained

 15 feet wide on the straight and that these supports be

 installed on 5 foot centers and 4 feet from the rib

 line.

 The notice was subsequently modified on February 6, 1978, to

correct the citation reference from section 75.200-2 to 75.200

(Tr. 106-107, Exh. P-12).

 30 CFR 75.200, provides:

 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
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 and shall be available to the miners and their

 representatives.

 Inspector Lemon testified that upon inspection of the mine

on January 30, 1978, he found a violation of section 75.200 in

that the respondent failed to follow its approved roof control

plan (Exh. P-28) in that in the No. 3 entry face of the Main

Southwest Section, the straightaway face had been completely

cleaned and no roadway timber had been installed from the last

roof support for a distance of approximately 42 feet from the

point of deepest penetration. The roof plan requires that roof

supports be installed within 15 feet of the face, that the

roadway be maintained 15 feet on the straight, and that roof

supports be installed on 5-foot centers approximately 4 feet from

the rib line (Tr. 124). The mining cycle was in the cleanup

stage, and under the plan, timber was required within 20 feet of

the face. He determined the 42-foot distance by use of a tape

thrown from the last roof support toward the face. His actual

measurement was 44 feet, but he allowed 2 feet for the end of the

tape tied to a rock. Six timbers set on 5-foot centers were

required (Tr. 124-129).

 Inspector Lemon believed the respondent was negligent in

allowing the cited condition to exist. The face boss should have

been aware of the fact that four timbers had not been set prior

to the equipment completing the cleanup, although the face boss

was not in the area at the time. The loader operator was

negligent by going in the area because the roof control plan has

been explained to the miners and the safety director has

explained it to the men. Inspector Lemon observed the loader

coming out of the area with a load of coal, but saw no one else

there. He did not know whether the missing posts had been

previously set, and he just did not see any. In addition, he saw

no drilling or shooting taking place, but this could have been

done on a previous shift. The operator is allowed to remove two

posts during the cleanup process and three posts during the

cleanup of the gob (Tr. 130-133).

 Inspector Lemon indicated that roof falls have occurred in

the older part of the mine, but the roof area at the point of the

violation was tested and it was not drummy (Tr. 134, 138). He

could not say whether the violation in question was serious. The

roof at the last support was sound and he should have indicated

"improbable," rather than "probable" on his gravity statement

(Tr. 139).

 On cross-examination, Mr. Lemon testified that he became the

inspector at the mine in question in January 1978. He reiterated

the method used to measure the 42-foot distance stated in the

citation, and his tape did not cross a crosscut. The last timber

support was at a corner where a turn was proceeding to the right

at a crosscut. As he approached the face, he observed the loader

leaving and coming toward him, and it was about 180 feet down the

entry, and
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safety director Bob Kales was with him. The crew began setting timbers within 10 minutes of his measurement (Tr. 141, 144-151).

 Mr. Lemon testified that under a subsequent plan effective

May 30 (Exh. P-29), timbers may be removed while cleaning the gob

(Tr. 156). When he arrived on the scene, the area had been

cleaned up and the loader had the last load in the bucket (Tr.

157). The roof at the last support was sound, and he visually

observed the roof conditions. The roof looked good, sounded solid

when tested, and he saw no cracks (Tr. 160). He could not check

the roof inby the last support, and being unsupported, it could

possibly come down. He could not state whether it would probably

come down, but indicated it was a "good probability" and believed

that it was probable there was going to be a roof fall in the

unsupported area (Tr. 162). Although roof falls had occurred in

mine areas which had been mined out over 10 or 15 years, this

would still indicate that when pillars are pulled, that process

would substantially affect the probability or possibility of a

roof fall. However, in this case, pillars had not been pulled.

When roof strata begins to take weight, the timbers will begin to

split and start flaking. However, there was no weight on the

timbers along the entry leading to the face area in question, and

he saw no evidence that the timbers were taking weight in the

entry or the faces. He did not go beyond the timber support and

did not look beyond it (Tr. 162-165).

 Petitioner's counsel stipulated that the mine roof

conditions are such that roof bolts are required as in other

mines (Tr. 168). Mr. Lemon confirmed that his notes taken on

January 30 reflect that he did not believe the violation was

"significant and substantial" (Tr. 171). Inspector Lemon

indicated that the one person exposed to the hazard of

unsupported roof was the loader operator, even though he was

under a protective cab (Tr. 176).

Respondent's Testimony

 John Danio, employed by respondent as a mining engineer for

2-1/2 years, holds a BS degree in mining engineering, and is a

registered engineer in the States of Colorado and Utah. He wrote

the roof control plan currently in effect at the mine and has

been in the mine some 150 times in the working areas. He has

surveyed the mine and is familiar with all of the places,

including the old works, and the mine conditions (Tr. 180-183).

 Mr. Danio stated that in recently mined areas, bad roof has

not been encountered. A year and a half ago, there was a roof

fall in a belt entry, but he was in the area 8 or 10 hours before

the rock fell and it was obvious to everyone that the top was

bad. The area was dangered off and precautions were taken before

the rock fell. He is unaware of any other roof falls in the mine

within the past 5 years.
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He described the roof conditions and roof strata in the mine.

Older areas mined over 20 years ago have had roof falls, and

those areas are still traveled, but have been timbered and are

always checked and evaluated for hazardous roof conditions. Roof

flaking does occur in the old areas, and, on occasion, small

pieces of coal have been found in recently mined areas (Tr.

183-186).

 Mr. Danio testified that the mine has an unusual roof

control plan and part of the reason for that is the excellent

nature of the roof rock, and that MSHA recognizes this fact. He

also indicated that timbers must be recovered in order to remove

coal from the crosscut and to facilitate the movement of

equipment (Tr. 187-188).

 The parties agreed that Mr. Danio's testimony would also be

applicable to the subsequent timbering violations in issue in

Docket Nos. DENV 78-523-P and DENV 78-524-P (Tr. 188).

 On cross-examination, Mr. Danio testified that he believed

the present roof control plan permits the development of two

crosscuts off an entry, plus the advancement of the face, all in

the same mining cycle. Anytime one entry is 20 feet or wider, two

rows of roof supports must be installed. He also explained the

circumstances under which timbers must be installed as the mining

cycle advances (Tr. 188-194).

 Mr. Danio confirmed that some roof settlement occurs during

blasting at the face. As for roof faults, he indicated that some

50 holes have been drilled over the 440 acres of the mine and no

roof faults have been encountered (Tr. 195-196). Mr. Danio did

not observe the conditions cited by the inspector and had no

personal knowledge of the violation (Tr. 202).

 In response to questions from the bench, Mr. Danio testified

that one possible explanation for the missing posts cited by

Inspector Lemon was that the condition could occur by bad mining

practices, that problems have occurred in the past, but

management is working at improvements (Tr. 208).

DOCKET NO. DENV 78-523-P

 Section 104(c)(1) Order 7-0111, 1 DKJ, December 30, 1977,

cites a violation of 30 CFR 75.316, and states as follows:

 The line curtain was only being maintained to within 22

 feet of the face of the No. 5 entry of the South West

 section. The face had been cut with a Joy cutting

 machine and all the curtain was extended and no

 additional curtain was available in the entry. The

 ventilation plan requires the line curtain be

 maintained to within 12 feet of the area of deepest

 penetration.
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30 CFR 75.316, provides:

 A ventilation system and methane and dust control plan

 and revisions thereof suitable to the conditions and

 the mining system of the coal mine and approved by the

 Secretary shall be adopted by the operator and set out

 in printed form on or before June 28, 1970. The plan

 shall show the type and location of mechanical

 ventilation equipment installed and operated in the

 mine, such additional or improved equipment as the

 Secretary may require, the quantity and velocity of air

 reaching each working face, and such other information

 as the Secretary may require. Such plan shall be

 reviewed by the operator and the Secretary at least

 every 6 months.

 Section 104(c)(1) Order No. 7-0112, 2 DKJ, December 30,

1977, cites a violation of 30 CFR 75.200, and states as follows:

 Roof supports (timbers) were only being maintained to

 within 44 feet of the face of the No. 4 entry of the

 South West section. The approved roof control plan

 requires that timbers be maintained to within 15 feet

 of the face.

 Section 104(c)(1) Order No. 7-0013, 3 DKJ, December 30,

1977, cites a violation of 30 CFR 75.200, and states as follows:

 Roof supports (timbers) were only being maintained to

 within 33 feet of the face of the No. 3 entry of the

 South West section. The roof control plan requires that

 timbers be maintained to within 15 feet of the face.

DOCKET NO. DENV 78-524-P

 Section 104(c)(1) Notice 7-0110, 1 DKJ, December 30, 1977,

cites a violation of 30 CFR 75.200, and states as follows:

 Roof supports (timbers) were only being maintained to

 within 38 feet of the face in the No. 6 entry of the

 South West section. The approved roof control plan

 requires timbers be maintained to within 15 feet of the

 face.

 In both Docket Nos. DENV 78-523-P and DENV 78-564-P,

respondent stipulated to the fact of violations with respect to

the four citations issued by MSHA inspector Dick K. Jones, and

the parties stipulated to the adoption by reference of the

previous testimony of Mr. John Danio with respect to the

prevailing roof conditions at the mine (Tr. 211).

 Exhibit P-23 is a copy of the section 104(c) notice issued

by MSHA inspector Dick K. Jones on December 30, 1977, at 9:35 a.m.
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Exhibits P-14, P-15, and P-16 are copies of three section 104(c)

orders issued by Inspector Jones at 9:40, 10, and 10:45 a.m., all

on December 30, 1977, subsequent to the issuance of the

underlying notice. Respondent stipulated to the admissibility of

the notice and orders (Tr. 212-213).

 MSHA inspector Dick K. Jones confirmed that he issued the

104(c) notices on December 30, 1977. Upon entering the mine to

conduct an inspection, he proceeded to the face of the No. 6

entry and observed that timbers were only being maintained to

within 38 feet of the face in the No. 6 entry at the southwest

section. The approved roof control plan required timbers to be

maintained to within 15 feet of the face. He verified the

distance cited in his notice by means of a measurement made with

his tape. Upon entering the section, he observed a piece of

equipment coming out of the No. 5 entry, and there was a cutting

machine parked just ouby the No. 6 crosscut (Tr. 217). Upon

leaving the No. 6 entry, he encountered Section Foreman LaValley

and informed him of the condition which he had found. Mr.

LaValley responded "You are not telling me anything I don't

know." He and Mr. LaValley then proceeded to the No. 5 entry and

after observing the condition, he informed Mr. LaValley that he

was issuing a notice of violation. He also informed him that he

was issuing a violation for failure to have roof supports in the

No. 6 entry. Mr. LaValley advised him he was aware of the

condition and explained that it was not uncommon for him to come

on the shift in the morning and find these conditions and that

the afternoon shift was "leaving it this way." At that point,

Safety Director Hales came to the scene and he (Jones) advised

him as to what Mr. LaValley told him and Mr. Hales took notes.

Mr. Jones then went to the No. 4 and No. 3 entries and upon

finding the conditions noted in his orders, he issued the orders

(Tr. 218-220).

 Inspector Jones testified there were six entries in the area

which he examined and the violations were issued on four of the

entries. He believed the four entries had been mined on December

30 because of the manner in which they were cut and cleaned and

the position of the equipment, and he believed that the afternoon

shift left the entries in the conditions in which he found them.

He described the mining cycle, and since each cycle advances some

10 or 11 feet, he believed mining advanced at least two times

without roof supports being installed. The area was exposed to

anyone walking in, but he did not observe anyone inby the last

timber supports in any of the entries while he was there. He was

convinced that the mining cycle had advanced without setting

timbers, since there was no evidence that timbers had been

installed. He observed equipment tracks, equipment was present,

and mine management did not deny the fact that timbers had not

been set, and, in fact, admitted it (Tr. 220-223).
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With regard to the gravity of the conditions he found in the No.

6 entry, Inspector Jones testified that just inby the last

support there was approximately 6 feet of loose coal which was

nearly ready to fall and it had to be removed. He and Mr. Hales

barred it down before abatement could begin and it came down very

easily. While people were in the area prior to this time, he did

not know whether that particular coal was loose at that time.

Approximately a foot of coal was barred down, and had it fallen,

he would not have wanted to be under it (Tr. 224). With regard to

the line curtain violation in the No. 5 entry, a person working

inside the line curtain area would be working in a dusty

atmosphere and the mine was working with a small fan and mine

ventilation was, at best, barely adequate. Since that time,

conditions have improved with the installation of another fan.

Other check curtains in the area were in bad shape, but he did

not cite those because repairs were being made. He took no air

readings at the face because once the area was closed by his

orders, the hazards were eliminated. At the time he cited the

violations, he believed the ventilation devices were in good

shape because required face ventilation was being maintained (Tr.

225).

 Mr. Jones testified that he considered the violations to be

serious and that the section was in "bad shape." He went back to

the section with respondent's engineer, Mr. Sikes, to show him

the conditions, and took him to each place to show him the

conditions. Mr. Sikes agreed with his findings, as did Safety

Director Hales, who expressed embarrassment over the condition of

the section (Tr. 227).

 Mr. Jones identified Exhibit P-25 as the "gravity statement"

he filled out in connection with the notice citing 38 feet of

unsupported roof (Exh. P-23), and under the heading "Gravity" he

checked the block "Probable" and remarked that "[t]imbers are the

only means of roof support, and the top in this area is drummy

and cracked and did not appear good." He also indicated on the

form that two workers were exposed to the hazard and remarked

that "[s]ince this face had been cut, both the coal scoop

operator and the cutting machine operator had been beyond

supports" (Tr. 229-230).

 Mr. Jones identified Exhibit P-16 as the "gravity statement"

he prepared in connection with the line curtain violation (Exh.

P-14), and confirmed that he marked "probable," "none" under

"Remarks," "disabling," and "none" again under "Remarks." He also

confirmed that he noted that two workers were exposed to the

hazard, that "the coal scoop operator and the cutting machine

operator both had been operating this equipment inby the last

line curtain," and that "the coal is loaded out with Wagner

diesel coal scoops, and diesel fumes build up in the face when

adequate ventilation is not provided" (Tr. 230-231).

 Mr. Jones identified Exhibit P-19 as the "gravity statement"

he prepared in connection with the citation concerning the

44-foot roof
~14

support violation (Exh. P-17), and indicated that he marked

"probable" under the "Gravity" heading, and remarked that "the

roof inby the last roof support was cracked and drummy and was

flaking off." He also confirmed that he indicated that any injury

would be "permanently disabling," and that he remarked "these

timbers are the only means of roof support and the only way to

detect if the area is taking weight." He also noted on the form

that two workers were exposed to the hazard and remarked that

"the coal scoop operator and the cutting machine operator had

been operating inby the last support" and "the coal scoop had

violated the roof control plan to clean up and then the cutting

machine had gone in and cut the face without setting any support"

(Tr. 231-232).

 Mr. Jones identified Exhibit P-22 as the "gravity statement"

he prepared in connection with the 33-foot roof support violation

(Exh. P-20), and confirmed that he indicated on the form that the

condition was "under the direct observation of management,"

namely, the section foreman. He also confirmed that he marked

"probable" and remarked "possible roof fall." He also noted on

the form that the injury would be "disabling," inserted "none"

under "Remarks," that two workers were exposed to the hazard, and

remarked that "coal scoop operator, when making methane checks

and operating equipment and when extending the line curtain was

exposed to the hazard" (Tr. 233).

 Regarding the line curtain violation, Inspector Jones

testified that failure to extend the line curtain results in

inadequate face ventilation and limitations on vision since the

curtain is required to sweep dust away from the face area. In

addition, there is a possibility of a dust ignition and the men

can breathe in the dust. The ventilation plan required that the

curtain be maintained to within 12 feet of the face, and the dust

generated at the face is readily observable and should have

alerted the operator that he was in violation. Although he

observed a scoop coming out of an entry, he could not tell

whether it was loaded or not, since he was by the first entry

when he observed it come out. The place had been cleaned up and

the gob had been cleaned, but he did not see the scoop inby the

line curtain. He did not take any air measurements and the reason

for this was the fact that he had closed down the entry when he

issued his order and he believed this eliminated all hazards (Tr.

3-7, Nov. 16). He described the mining cycle which he believed

took place and assumed that at least two cuts of coal had been

taken over a half-day shift in the three entries where he cited

roof control violations, and men were working under unsupported

roof (Tr. 9-11). He confirmed that when he and respondent's

Safety Engineer Sikes went back to look at the areas cited, Mr

Sikes did not disagree with his findings (Tr. 12). Based on his

analysis of the mine roof control plan, a total of 12 additional

timbers should have been installed in the three entries cited in

his roof control violations, and failure to install them

permitted more coal to be
~15

mined on the shift. Failure to install the timbers, however, had

a potentially detrimental effect on the safety of the miners (Tr.

15-16).

 In response to questions from the bench, Inspector Jones

indicated that at the time the violations were issued, the mine

atmosphere was clear and no equipment was operating. His

testimony concerning the hazardous conditions assumed that these

conditions existed during prior normal mining operations inby the

line curtain and timbering areas noted in his citations. Had it

not been for the timbering violations, he would not have shut the

section down because of the ventilation curtain violation in and

of itself (Tr. 17). However, since a complete mining cycle had

occurred, he believed that dusty conditions probably prevailed

because of the failure to extend the curtain in question (Tr.

18).

 On cross-examination, Mr. Jones testified as to his

assumptions regarding the presence of the loader he observed

coming out of the entry after he cited the violations. However,

he was not prepared to state that the loader was in the face

area. Assuming the loader had just gone into that area and

scooped out some coal, it probably would have generated some

dust. However, he conceded that the loader would not have

generated much dust since the gob being scooped would be in a

pile, and it would constitute 50 percent clay and rock (Tr.

19-24). Inspector Jones assumed the loader had been working at

the face because coal had been cut and the gob removed. He did

not check for methane (Tr. 27-28).

 With regard to the notations made on his inspector's

statement concerning the gravity of the ventilation curtain

violation, particularly the fact that diesel equipment emits

fumes, Mr. Jones candidly admitted that the statement was based

on what he believed would have occurred in the normal course of

mining, rather than what he actually observed (Tr. 30-34). Mr.

Jones could not recall reviewing the preshift examiner's reports

on the day of the citations (Tr. 35). He also indicated that he

did not believe there was any direct relationship in the amount

of air recorded at the last open crosscut and the amount of air

at the working faces (Tr. 37-39). Although he observed some check

curtains in disrepair, he saw no one inby those curtains, nor did

he observe any equipment there (Tr. 46). The gist of the

violation was the fact that the line curtain was installed 22

feet outby the face, the face had been advanced, and one mining

cycle had been completed with no additional curtain being

installed (Tr. 48). When he arrived on the scene, no one was at

the face and no line curtain was installed (Tr. 51). Regarding

his previous testimony concerning the roof conditions in the mine

in question, Mr. Jones indicated that they were "average," and,

although some roof areas sounded drummy, he could not be sure

that this was indicative of the fact that it might fall (Tr.

54-55). Roof falls on the section in question were rare (Tr. 55).

However, drummy roof and cracked
~16

roof is indicative that it would probably fall (Tr. 57). He did

not mean to imply that this roof condition prevailed throughout

the mine, but only at the location of the violation (Tr. 57).

 Mr. Jones did not know the number of times the mine was

cited for violations of section 75.200 (Tr. 59). He was not aware

of the fact that the Assessment Office may waive the normal

assessment formula used to assess penalties, but was aware of the

fact that inspectors' statements are used in assessing penalties

(Tr. 73). Regarding Violation No. 7-0013 (Exh. P-20), Inspector

Jones testified that the reason he noted a "possible roof fall"

on his inspector's statement (Exh. P-22), while explaining in

some detail in the "Remarks" on the other statements dealing with

the other roof violations, was the fact that the conditions were

different. In the case of this violation, the roof was not

cracked (Tr. 77). Although the fact that the roof was cracked,

drummy, and flaking in some areas, he did not see any significant

difference in a roof condition which was not cracked, insofar as

the probability of a roof fall was concerned (Tr. 78). Regarding

his definition of "probable," he believed it does not mean

greater than 50 percent, not necessarily greater than 30 percent,

and possibly greater than 20 percent, depending on the prevailing

conditions, such as equipment being used, roof supports, blasting

techniques, etc. (Tr. 79).

 John Danio was recalled as a witness for the respondent, and

testified that he was present in the courtroom when Inspector

Jones testified as to roof cracks. Mr. Danio stated that what

sometimes appears to be roof cracks may, in fact, be face cleats

or butt cleats which are natural phenomena which appear in coal

pillars, and this structural phenomena is associated with all

coal formations (Tr. 91). Given the lighting conditions in a

mine, he does not believe that he would mistake such a cleat for

a roof crack. Such cleats have a trend and direction; they can be

mapped and identified as cleats (Tr. 92). He also testified that

he was familiar with mine ventilation, and testified that the

amount of air at the last crosscut is indicative of the amount of

air that is available to ventilate a face. Since the mine does

not have methane, sweeping mine ventilation characteristics are

not critical, and a machine operator sitting at the controls

would not be affected by diesel fumes, since the fan ventilation

will carry the fumes away from him. Further, he would not be

adversely affected by dust since he is away from the face area

(Tr. 90-95).

 On cross-examination, Mr. Danio conceded that he did not

personally observe any of the conditions cited by Inspector Jones

at the time the citations were issued, nor did he observe any

cracks in the roof entry. Assuming the line curtain was 22 feet

away from the face and in disrepair, as testified to by Inspector

Jones, he assumed that 6,000 cfms of air would not reach the face

(Tr. 95-97).
~17

 Findings and Conclusions

 The following findings and conclusions as to size of

business, effect of penalty assessments, and history of

violations apply to all dockets.

Size of Business and Effect of Penalties Assessed on the

Respondent's Ability to Remain in Business

 The evidence and testimony adduced reflects that the mine in

question is a one-section mine employing approximately 25

individuals working two shifts a day (Tr. 12). Respondent's

Exhibit R-4, is a weekly report ending November 5, 1978, showing

a total of 21 production employees, 4 administrative workers, and

4 truck drivers employed at the mine, and the average estimated

yearly coal production to November 5, is shown as 73,822 tons.

Although respondent's counsel questioned the accuracy of his own

figures (Tr. 74-75), they are estimated figures, and respondent

was afforded an opportunity to file additional information (Tr.

214). Mr. Danio testified that in addition to the mine in

question, respondent also operates an open-pit gold leeching

operation in Carlin, Nevada, and the total company employment is

about 75 or 100. Government Exhibit P-26, a MSHA report, shows

1976 coal production as 65,471 tons and 1977 production as 83,354

tons (Tr. 202-206). Based on all of the available information

presented in these proceedings, I find that respondent is a small

mine operator and that fact is reflected in the penalties

assessed by me in these proceedings.

 Respondent presented no evidence that any penalties assessed

by me in these proceedings will adversely affect its ability to

remain in business. Under the circumstances, I conclude they will

not.

History of Prior Violations

 Petitioner submitted a computer printout representing the

prior history of violations at the Dog Valley Mine (Exh. P-27),

and that history was received in evidence with no objections by

respondent (Tr. 100, Nov. 16). Respondent was afforded an

opportunity to file any posthearing corrections to the printout

(Tr. 101), but has not done so and has not addressed the issue in

its posthearing brief or proposed findings and conclusions.

Petitioner stipulated that the mine has no prior history of any

fatal roof falls (Tr. 12, Nov. 15).

 The computer printout reflects a total of 226 prior

violations for which civil penalties were assessed and paid by

the respondent during the period January 9, 1976, to December 19,

1977. Taking into account the size of respondent's operation, I

conclude that this reflects a moderately significant prior

history of violations and this fact is reflected in the penalty

assessments made by me in these proceedings.
~18

DOCKET NO. DENV 78-521-P

Fact of Violation--30 CFR 75.517

 In its answer filed September 18, 1978, respondent denied

that a violation of 30 CFR 75.517 occurred, and asserted that the

scoop tire was not on the cable in question, but merely next to

it, and that this fact was confirmed by Mr. Joe Tenery, the

foreman, and Mr. Roger Black, a mechanic who was present at the

site at the time of the inspection. Further, respondent asserted

that inspection of the cable, following the issuance of the

notice, showed no damage to the cable.

 Petitioner's position with respect to this violation is that

the cable in question must be protected at all times, and the

potential for cable damage is not only damage to the outer

insulation, but damage to the inner wires and insulation as well.

In such a case, a short-circuit may occur, and while it is true

that the short-circuit protection would work, crossed wires may

not allow this. Once a cable is hung, it should be hung in such a

way as to prevent it from dropping on the floor where it may be

run over by equipment. The fact that no one observed a cable

being run over, does not excuse a violation because if it is run

over, damage may have resulted inside the cable, and no one would

know about it (Tr. 54-59).

 I find that the preponderance of the evidence adduced in

this proceeding supports a finding of a violation of 30 CFR

75.517. The standard cited requires that power cables be

protected. The normal method by which the cable in question is

protected, is to hang it up off the mine floor so as to protect

it against being run over or damaged by equipment. While the

inspector believed the scoop tire was resting on the cable, and

the mechanic believed it was merely lying next to the tire, the

fact is that the cable in question was lying on the mine floor,

thereby exposing it to the possibility of being run over or

damaged by the scoop. Further, the mechanic stated that the cable

is normally stored along the rib in a cut made for that purpose,

and at the time of the citation, it had apparently fallen from

the rib and was resting on the floor. I find that petitioner's

interpretation of the standard in question is a reasonable and

correct one, and in the circumstances, I find a violation has

been established.

Gravity

 The inspector considered the violation to be nonserious, and

petitioner's counsel stipulated that the citation was nonserious,

but that the practice of running over a cable was serious (Tr.

37-38). Petitioner has presented no evidence that respondent

makes it a practice to run over cables, and the notice of

violation makes no such charge. Accordingly, I find that the

violation is nonserious.
~19

Good Faith Compliance

 The evidence adduced reflects that the violation was

immediately abated within 5 minutes, and in the circumstances, I

conclude that respondent exercised rapid compliance once the

citation issued.

Negligence

 From the evidence presented, it would appear that the cable

in question fell from its normal storage place alone the rib

while the respondent was in the process of moving a power unit.

The inspector testified that the violation was not intentional,

and that it is easy for the scoop operator not to have seen the

cable in question because of its position along the rib and the

large size of the scoop which he was operating at the time of the

citation. In this instance, he believed the scoop operator

probably did not see the cable. In the circumstances, I cannot

conclude that the operator was negligent in this instance and

find that he could not reasonably have known of the condition

cited. In the circumstances, I find that the respondent was not

negligent.

DOCKET NO. DENV 78-522-P

Fact of Violation--30 CFR 75.313

 In its answer filed September 18, 1978, respondent conceded

a violation of 30 CFR 75.313, but contested the penalty

assessment of $120 as excessive on the grounds that: (1)

respondent has an excellent record showing few citations for

significant past violations, (2) due to the size of its mining

operation, the assessment is inappropriate, (3) there is no

evidence that respondent was negligent, (4) the violation was not

grave since immediate testing detected no methane, the

methanometer was checked promptly upon notification of the

violation and repaired immediately upon receipt of necessary

parts, and (5) upon issuance of the order, immediate steps were

taken to abate the violation. At the hearing, the respondent

again conceded and stipulated to the fact of violation of the

provisions of section 75.313, and indicated that it was

contesting only the $120 initial civil penalty assessment levied

with respect to the violation (Tr. 59). In the circumstances, I

find that a violation has been established.

Good Faith Compliance

 During the course of the hearing in this matter,

petitioner's counsel asserted that at the time the order issued,

good faith was nonexistent because the problem with the

mechanical linkage probably existed all along and it took an

order to gain compliance. However, the record shows that the

respondent was having problems with the methane monitor which

were obviously recognized by the inspector, since he issued

several extensions of his notice. Inspector Lemon
~20

conceded that on many occasions he will note on his notice that

parts are needed to repair a piece of equipment and that he uses

this as justification for extending the abatement time. He

conceded that this is what occurred in this case and that he

allowed 8 days to obtain parts because the mine is in a remote

area and parts must be obtained from Price, Utah. Inspector Lemon

also candidly admitted that he did not believe that the

respondent was using the fact that parts were required as an

excuse for not complying with the abatement, and conceded that

parts were "probably" needed. In the circumstances, and based on

the totality of the evidence presented, I conclude that

respondent abated the violation in good faith, and under the

circumstances presented, exercised normal good faith in achieving

abatement.

Gravity

 Petitioner stipulated that this violation was nonserious,

and that is my finding (Tr. 73).

Negligence

 An initial preshift or onshift inspection by the operator

should have detected the inoperative monitor. I find that the

respondent should have known about the inoperative condition of

the methane monitor in question and that it failed to exercise

reasonable care in preventing the condition cited. This

constitutes ordinary negligence.

Fact of Violation--30 CFR 75.200

 In its answer filed September 18, 1978, respondent denied

that the violation occurred and contested the citation, but did

not contest the proposed assessment of $115. As grounds for its

contest of the citation, respondent asserted that: (1) it has an

excellent record showing few past significant violations, (2)

there is no evidence of negligence, the violation was not grave

since no mining was taking place at the time of the inspection,

and the only employees in the face area were timber men who were

resetting the roof supports which had been removed to allow

movement of machinery and cleaning behind the curtains. Further,

respondent asserted that the roof had been checked in all seven

faces of the mine both before and after the notice was issued and

appeared sound, and even in the absence of supports, a roof fall

was highly improbable. Further, respondent asserted that if the

roof plan submitted by respondent on May 19, 1978, and approved

by the Mine Safety and Health Administration on May 30, 1978, had

been in effect at the time of the inspection, when the mine roof

conditions were the same as they were when the new plan was

approved, the alleged violation would have been, at most, de

minimis and probably nonexistent.
~21

 At the hearing on November 15, 1978, respondent proposed to

abandon its contest altogether with respect to the violation and

moved to withdraw its contest with respect to both the fact of

violation and the proposed assessment and indicated that it no

longer wished to contest the violation and desired to pay the

initial proposed assessment of $115 (Tr. 7-8). Petitioner opposed

the motion to withdraw and respondent's offer to pay the

assessment (Tr. 7-8). The parties were afforded an opportunity to

present arguments on the record with respect to respondent's

motion to withdraw its contest (Tr. 91-121).

 In support of its opposition to respondent's motion to

completely withdraw its contest, petitioner argued that once a

petition for assessment of civil penalty is filed by MSHA, any

proposed settlement must be agreed to by MSHA and approved by me

in accordance with the Commission's rules. Petitioner's counsel

asserted that he could not agree with respondent's offer of

payment since he believed the facts warrant an assessment higher

than that made by the assessment officer for the violation in

question. Petitioner views respondent's attempts to withdraw at

the hearing stage of the proceeding as an offer to settle the

matter and that petitioner does not agree to any settlement.

Since the matter is de novo before me, petitioner asserted that I

am not bound by the prior assessment and should proceed with the

matter and decide not only the question of violation, but also

the amount of penalty to be assessed, taking into account the

statutory criteria for assessment of civil penalties.

 In support of its motion to withdraw, respondent argued that

it simply wishes to abandon its appeal and pay the assessment,

and that the question of settlement is immaterial. Respondent's

counsel conceced that settlement discussions were, in fact,

conducted between the parties, but that petitioner took the

position that unless respondent agreed to abandon all of the

section 75.200 violations at issue in the other dockets which are

the subject of these proceedings, petitioner would not agree to

the settlement of the instant case. That proposal was

unacceptable to the respondent, and citing Commission Rule 29 CFR

2700.15(a), counsel argued that respondent has a right to

withdraw a pleading at any stage of the proceeding with the

approval of the Commission or one of its judges. Since counsel

views the notice of contest as a pleading, he argued that it may

be withdrawn at any time and that I have sole discretion in the

matter, regardless of whether or not petitioner agrees to the

withdrawal. With respect to Commission Rule 2700.27(c), dealing

with Commission approvals of proposed settlements, counsel took

the position that the rule only deals with contested penalties,

and since respondent did not contest the penalty assessed for the

violation, that rule is inapplicable.

 After consideration of the arguments made at the hearing,

respondent's motion to withdraw its contest was denied and

respondent was afforded an opportunity to present any evidence it

desired in support
~22

of its position regarding any penalty assessment to be made by me

with respect to the violation (Tr. 116-118).

 Respondent's reliance on Commission Rule 2700.15(a) in

support of its motion to withdraw its contest, is rejected. As

noted in Ranger Fuel Corporation, 2 IBMA 186 (1973), once a

petition for assessment of civil penalty is filed with a judge,

jurisdiction vests, and the request for a hearing on the merits

of the petition, not being a pleading, may not be withdrawn. In

addition, it is well settled that civil penalty proceedings

before the Commission or one of its judges is a de novo

proceeding, and that the prior proposed assessment made pursuant

to Part 100, Title 30, Code of Federal Regulations, is in no way

controlling. See Gay Coal, Inc., 7 IBMA 245 (1977); Boggs

Construction Company, 6 IBMA 252 (1976); Lewis Coal Company, 6

IBMA 263 (1976). The jurisdiction of the judge to proceed in a

civil penalty proceeding is not affected by the method of

computation utilized by the Office of Assessments in arriving at

an initial proposed civil penalty. Buffalo Mining Company, 2 IBMA

226 (1973); Eastern Associated Coal Corporation, 3 IBMA 132

(1974). Further, it is also clear that a judge lacks the

authority to order MSHA to recompute proposed assessments of

civil penalties. Clinchfield Coal Company, 3 IBMA 154 (1974);

Consolidation Coal Company, 3 IBMA 161 (1974).

 I am of the view that my responsibility under the law in a

contested proceeding, in which a mine operator has requested a

hearing, is to afford him that opportunity and to adjudicate the

case and issue a decision based on the record made at the

hearing, including a realistic and even-handed consideration of

the statutory criteria with respect to the assessment of civil

penalties which have been proven by a preponderance of the

evidence.

 On the facts presented in this case, I conclude that

respondent's untimely attempt to withdraw its contest at the

hearing and its offer to pay the initial assessment is an offer

of settlement which must be concurred in by MSHA and approved by

me pursuant to Rule 2700.27(d). Since MSHA did not agree to the

proposed settlement, there is nothing to approve, and my previous

ruling made at the hearing, denying respondent's motion to

withdraw, is reaffirmed.

 Responded conceded the fact of violation, and, in addition,

after consideration of the testimony and evidence adduced by

petitioner and respondent with respect to the citation, I

conclude that the record supports a finding of a violation of

section 75.200.

Negligence

 Except for the testimony of Mr. Danio, respondent presented

no testimony in defense of the cited condition. Mr. Danio did not

view the condition cited and had no personal knowledge of the

condition which the inspector observed. The inspector believed

the face boss
~23

should have been aware of the fact that the timbers were not

installed. The fact that he may not have been in the area during

the cleanup or when the citation issued is immaterial. An

operator is presumed to know the requirements of his own roof

control plan and the section foreman is responsible for seeing to

it that the plan is followed during his working shift. I find

that the respondent failed to exercise reasonable care to prevent

the violation, and that this constitutes ordinary negligence.

Gravity

 Inspector Lemon testified that at the time he observed the

condition cited, he observed a loader coming out of the area of

unsupported roof with a load of coal. However, he saw no one else

there and no coal drilling or shooting was taking place. He

tested the roof and it was not drummy, and at the point where the

last support was installed, the roof was sound. Beyond that

point, the roof appeared to be sound upon visual inspection and

he observed no cracks. Although he indicated that the probability

of a roof fall increases when pillars are pulled, in this

instance, no pillars had been pulled, and the entry and working

faces were not taking weight.

 In this case, the inspector could not conclude whether the

violation in question was serious, and indicated that his gravity

statement should have indicated "improbable," rather than

"probable." However, the fact remains that the required roof

support was not installed and the loader operator was observed

coming from the area. While the actual roof conditions up to the

point of last roof support were good and the roof area

immediately beyond that point appeared sound upon visual

inspection, the inspector did not venture beyond that point to

test the roof because additional timbers had not been installed.

Roof falls are unpredictable, and unsupported roof presents a

hazard to miners working in such areas. In the circumstances, I

find that the condition cited presented a potential danger of a

roof fall and consequently, I conclude that the violation was

serious.

Good Faith Compliance

 The inspector testified that the section crew began the

installation of the required roof timbers within 10 minutes of

his making his measurements to support the citation. I find that

this constituted rapid abatement of the cited violation and good

faith compliance.

DOCKET NO. DENV 78-523-P

Fact of Violation--30 CFR 75.316

 In its answer of September 18, 1978, respondent denied that

it was in violation of its ventilation plan or section 75.316,

and
~24

asserted that no violation of section 75.316 was alleged in the

citation, that the ventilation plan in effect at the time of the

citation required that line curtains be maintained to within 12

feet of the area of deepest penetration in any face when coal is

being cut, mined or loaded, and since no cutting, mining or

loading of coal was taking place at the time of the inspection,

there is no violation. In support of its opposition to the

proposed assessment of $1,200, respondent argued that the amount

is inappropriate in view of its excellent past history of

violations, its size of business, lack of negligence, and prompt

abatement upon issuance of the order. Further, respondent argued

that the violation was not grave in that testing in the mine

established that there was sufficient ventilation to keep methane

levels in the mine below 1.0 volume per centum as required by

section 75.308.

 Failure by an operator to comply with any provision of its

ventilation plan constitutes a violation of the provisions of 30

CFR 75.316. Peabody Coal Company, 8 IBMA 121 (1977); Valley Camp

Coal Company, 3 IBMA 176 (1974); Zeigler Coal Company v. Kleppe,

536 F.2d 398 (D.C. Cir. 1976). The fact that coal was not being

cut or loaded at the precise moment that the inspector arrived on

the scene and observed that the line curtain had not been

advanced as required is immaterial, and respondent's proposed

interpretation of the standard cited is rejected. It is clear to

me from the testimony by the inspector that the curtain in

question had not been advanced while coal was being cut, mined,

and loaded during the shift preceding his inspection, and

respondent has presented no evidence to rebut this testimony.

Where an inspector describes a condition alleging a violation

which occurred during the working shift immediately preceding the

shift in which the inspection is made, a prima facie violation

may be found on the basis of the inspector's findings that he

could find no evidence of compliance. Rushton Mining Company, 6

IBMA 329 (1976). Here, the order issued by the inspector

described the condition which he believed constituted a

violation, and he specifically cited section 75.316, as did the

petition for assessment of civil penalty. Consequently,

respondent's contention that the citation failed to cite the

standard violated is rejected.

 Based on the foregoing, I find and conclude that the

petitioner has established a violation of 30 CFR 75.316 as

charged in the citation.

Gravity

 The inspector testified that the line curtain violation,

standing alone, would not have prompted him to issue a closure

order (Tr. 17). Although he did testify that he found other line

curtains in disrepair, he did not cite the respondent for this

condition, and his notice is limited to the fact that the line

curtain in question was
~25

not extended the required distance to the face. I conclude that

the seriousness of the situation presented must be considered in

light of the prevailing conditions. Here, it is clear that the

inspector did not take any air readings or otherwise test for

dust accumulations, methane, etc., and based his findings on

conditions which he believed existed on the previous shift while

coal was being mined. Further, at the time the citation issued,

petitioner conceded that the area in question was not dusty, and

had been cleaned up (Tr. 24-25). Since petitioner has the burden

of proof, I cannot conclude that the violation was serious, even

though one may assume that the failure to extend the curtain in

question may have had some adverse impact on the mine

environment. Although I have sustained the fact of violation on

the basis of inferences based on the inspector's finding that

mining had taken place on the previous shift, absent any evidence

as to what the actual prevailing conditions were at that time, I

cannot conclude that the question of the seriousness of a

violation can be determined on inferences. Although the

inspector's gravity statement reflects that the cutting machine

and scoop operator were exposed to diesel fumes building up at

the face, it is clear that this was an assumption by the

inspector. Respondent's testimony indicates that ventilation was

adequate, that the machine operators were operating away from the

face environment, that the fans installed on the equipment would

disperse any diesel fumes, and no methane buildups were present.

The inspector did not check the preshift books, and he admitted

that at the time the violation issued, the mine ventilation

devices were in "good shape" since the required face ventilation

was being maintained (Tr. 225). Based on the totality of the

circumstances presented, I find that this violation was

nonserious.

Good Faith Abatement

 Inspector Jones testified the entire crew was assigned to

correct the conditions cited, and petitioner stipulated that the

respondent exercised good faith in abating the violation (Tr. 12,

14). I find that the violation cited was abated in good faith by

the respondent once it was issued, and that respondent exercised

normal compliance in this regard.

Negligence

 The inspector testified that the condition cited was readily

observable to anyone walking in the area where the line curtain

had not been advanced. He also testified that the section foreman

on duty during the period the citation issued advised him that he

was not surprised at the conditions cited and that the preceding

shift had left the section "this way" in the past. Further, the

inspector testified that after issuing the citation, he and the

mine safety director went back to the section to observe the

conditions. Neither the safety director nor the section foreman

testified in this proceeding, and in the circumstances, the

inspector's testimony
~26

is unchallenged. Based on his testimony, I can only conclude that

the respondent should have been aware of the conditions cited,

that it failed to exercise reasonable care in preventing the

condition cited, and that its failure in this regard constitutes

ordinary negligence.

 With respect to Inspector Jones' testimony concerning the

conversation that he had with Section Foreman LaValley, Inspector

Jones produced the notes which he made concerning this

conversation at the time he cited the violations which are in

issue in Docket No. DENV 78-523-P (Exh. P-31). His notes confirm

his testimony that Mr. LaValley had admitted that the previous

shift had left the section in "this kind of situation," and that

Mr. LaValley had expressed some concern over the fact that his

working shift was being held responsible for the conditions of

the section.

 Inspector Jones identified Exhibit P-31 as the notes which

he took with respect to the conversation he had with Mr. LaValley

at the time he initially observed the conditions which led to his

citations, and the conversation he had with Mr. Sikes after

taking him back to the section to observe the conditions (Tr.

233). Respondent objected to the introduction of the notes made

by Inspector Jones on the ground that the notes are not

contemporaneous, but rather, collateral notes on matters which

respondent was not aware of prior to the hearing. The essence of

respondent's objection is its assertion that failure to make the

notes available earlier in the proceedings, deprived respondent

of an opportunity to make an informed judgment as to whether it

should litigate the violations in the first instance. The

objection was overruled and the notes were received (Tr. 82, Nov.

16).

 Respondent's counsel questioned Inspector Jones regarding

his normal and usual practice with respect to notetaking. He

indicated that it was his usual practice to take notes so as to

be able to recollect what transpired with respect to a given

violation which is issued, that the notes are maintained in his

personal custody, and once written, he does not change them nor

take them out of his personal notebook. He takes notes at the

mine site at the time of the citation, and his inspector's

statements are written up after he goes back to his office, and,

at times, he has referred to his notes in compiling these

statements (Tr. 83-88).

 Respondent's objections to the introduction of the

inspector's notes are again rejected and my previous ruling in

this regard is reaffirmed. It is clear to me that the notes in

question were contemporaneous notes made at or near the time of

the issuance of the citation. The inspector was cross-examined

and respondent has not been prejudiced. The inspector was free to

refresh his recollection from his notes, UMWA v. Westmoreland

Coal Company, Commission Docket No. 76-16, January 10, 1979.

Further respondent had ample opportunity
~27

to obtain the notes prior to hearing, but failed to avail itself

of the discovery procedures in this regard. Respondent's counsel

was given an opportunity to review the notes at the hearing and

to cross-examine the inspector. Respondent could have called Mr.

LaValley as a witness, but did not do so. Consequently, in light

of all of these circumstances, respondent's assertions of "foul

play" are rejected.

 Respondent's preshift report for December 30 (Exh. R-1),

contains a notation concerning "timbers" for the No. 3 entry, but

no such notations for the Nos. 4 or 6 entries where the timbering

citations were issued. However, respondent failed to call the

preshift examiner who purportedly conducted the inspection and

prepared the report and I have given it little weight as any

indication that the conditions cited did not exist as charged.

Fact of Violation--30 CFR 75.200

 In its answer of September 16, 1978, respondent contested

both the fact of violation and the proposed penalties assessed

for two violations of section 75.200 (7-0112, 7-0113), and its

defense was identical to that asserted in Docket No. DENV

78-522-P concerning Violation No. 8-0015, 75.200, issued January

30, 1978. As for its contest of the proposed assessments of

$1,200 for each of the roof control violations in this docket,

respondent asserted that they are grossly disproportionate to the

amount of penalty assessed for the subsequent similar violation

issued in the previous docket ($115).

 At the hearing of November 15, respondent conceded the fact

of violations and indicated that it desired only to contest the

amount of the penalties assessed for Violation Nos. 7-0112 and

7-0113 (Tr. 7). In the circumstances, I find that respondent

violated the provisions of 30 CFR 75.200 as alleged in Citation

Nos. 7-0112 and 7-0113, issued on December 30, 1977. Aside from

respondent's admission that it was in violation of the cited

standard, the evidence adduced by the petitioner in support of

its assertions that respondent violated the cited standard,

support a finding of violation in both instances. Further, it is

clear that the failure of a mine operator to comply with a

provision of its own roof control plan concerning roof support

consitutes a violation of section 75.200 of the mandatory safety

standards. Peabody Coal Company, 8 IBMA 121 (1977); Affinity

Mining Company, 6 IBMA 100 (1976); Dixie Fuel Company, Gray's

Knob Coal Company, 7 IBMA 71 (1976).

Good Faith Abatement

 Inspector Jones testified that the entire crew was assigned

to correct the conditions cited, and petitioner stipulated that

the respondent exercised good faith in abating the violations

(Tr. 12, 14). I find that the violations cited were abated in

good faith by the respondent once they issued, and that

respondent exhibited normal compliance in this regard.
~28

Gravity

 Although Inspector Jones observed no men working under the

unsupported roof areas or equipment operating in that area at the

time he issued the citations, the fact is that mining had taken

place in the areas cited on the previous shift, coal had been cut

and loaded out, and the area cleaned up. Thus, it is clear to me

that men had worked under unsupported roof during the previous

mining cycles and were exposed to that hazard. The fact that the

roof did not fall on them does not detract from the fact that

working under unsupported roof exposed the men working in those

areas to potentially hazardous and dangerous conditions.

 The evidence and testimony adduced by the respondent in

these proceedings supports its contention that the roof

conditions in the mine are generally good, but this does not

excuse the failure of the respondent to install the roof supports

required by its plan. Further, the fact that the roof control

plan permitted the removal of one support post near the face to

facilitate the movement and maneuvering of equipment during the

mining cycle, does not excuse the failure to install the

remaining posts required by the plan or to reinstall the posts

removed once the mining cycle is completed. Here, the evidence

establishes that the respondent failed to install a total of at

least 12 additional roof support timbers in the three entries

cited by the inspector.

 The fact that mine roof conditions are generally good does

not insure against roof falls which could occur at any time in a

mine as the mining cycle advances and conditions change. Mr.

Danio confirmed that some roof settlement does occur during

blasting at the face, and while he also indicated that roof

faults have not been encountered, he based this on some 50 roof

holes drilled over the 445 acres which comprise the limits of the

mine. While it is true that the mine in question does not have a

history of roof falls, Mr. Danio did indicate that a roof fall

occurred approximately a year and a half ago, but that the

operator was aware of the loose roof conditions in that instance

and dangered the area off. He also indicated that some roof

flaking occurs in older mine areas and small pieces of roof coal

have been found in areas more recently mined.

 As for the actual roof conditions which existed at the time

of the citations, Inspector Jones indicated that the roof in the

No. 3 entry was not cracked. As a matter of fact, his testimony

does not reflect the actual roof conditions which existed at the

area cited in Citation No. 7-0013. As for the roof conditions

which existed in the No. 4 entry (Citation No. 7-0012), he

testified that it was cracked, drummy, and flaking, inby the last

roof support, and this testimony remains unrebutted.
~29

 I find that both violations were serious. Men were working under

unsupported roof and were exposed to a potential hazardous

situation, particularly in the No. 4 entry.

Negligence

 Both of the roof suport citations in this case were cited by

Inspector Jones during his inspection on December 30, and the

citations involve the failure of the respondent to maintain roof

support timbers to within 15 feet of the face in entry Nos. 3 and

4 in the Southwest section of the mine, as required by its

approved roof control plan. Inspector Jones testified that he

believed the conditions cited existed for at least two mining

cycles because each cycle advances some 10 to 11 feet, and since

the timbers which were in place at the time of his inspection

were installed to within 44 feet of the face in the No. 4 entry,

and to within 33 feet of the face in the No. 3 entry, he believed

that mining had advanced at least two cycles during the previous

shifts without the installation of additional roof support

timbers. He also indicated that coal had been cut during these

previous shifts and that the entries were loaded out and cleaned,

but no additional roof support was installed. Further, when he

confronted the section foreman with the conditions of the

entries, the section foreman candidly admitted that the timbers

were not installed, admitted that he was aware of this fact, and

attributed the failure to install the required roof supports to

the fact that the previous shift had left the section in the

condition found by Mr. Jones. Subsequently, when Safety Director

Hales was taken to the area cited by Mr. Jones, Mr. Jones related

to him what the section foreman had told him, and according to

Mr. Jones' testimony, Mr. Hales expressed some embarrassment over

the conditions of the entries, as did Mine Engineer Sikes, who

Mr. Jones claims agreed with his findings.

 Except for the testimony of Mr. Danio, respondent failed to

call any other witnesses in defense of the roof support

citations. Thus, Inspector Jones' testimony, documented by his

notes taken at the time in question, has not been rebutted by the

respondent. After listening to Mr. Jones' testimony and viewing

him on the stand during the course of the hearing in this matter,

I find him to be a credible witness and I accept his testimony

concerning the conversations he had with mine management with

respect to the conditions he found at the time of the citations.

As for Mr. Danio's testimony, he was not present when the

citations were issued, nor did he view the conditions cited by

Mr. Jones. However, Mr. Danio candidly admitted that one possible

explanation for the failure to install the additional roof

supports in question was "bad mining practices" and "problems"

which have occurred in the past (Tr. 208).

 Based on the foregoing, I believe it is clear that the

respondent was well aware of the fact that the required roof

support timbers were not installed as required by its own roof

control plan.
~30

While the evidence presented by the petitioner suggests a

somewhat cavalier attitude by mine management with respect to its

own roof support plan then in effect, and borders on gross

negligence, I cannot conclude that the record supports a finding

of a deliberate and reckless disregard for safety. While the

section foreman on the shift in question admitted he was aware

that the timbers were not installed, he attributed this to

inaction by the previous shift, and Mr. Danio attributed it, in

part, to bad mining practices. None of the mine personnel from

the previous shift were called to testify by either the

petitioner or the respondent and there is no explanation as to

why the required timbers had not been installed after the area

was mined and cleaned up.

 In view of the foregoing, I find that the respondent failed

to exercise reasonable care to prevent the violation and failed

to exercise reasonable care to correct the cited conditions which

it knew existed, and that this failure on its part constitutes

ordinary negligence as to both section 75.200 Citation Nos.

7-0112 and 7-0113.

DOCKET NO. DENV 78-524-P

Fact of Violation--30 CFR 75.200

 In its answer of September 18, 1978, respondent contested

both the alleged violation and the proposed penalty assessment of

$500, and its arguments in support of its contest were the same

as those made in the previous dockets. However, at the hearing,

respondent conceded the fact of violation and contested only the

amount of the proposed civil penalty (Tr. 7). I find that the

evidence adduced establishes a violation of section 75.200.

Good Faith Abatement and Negligence

 My previous findings and conclusions, with respect to good

faith abatement and negligence concerning the roof support

violations in Docket No. DENV 78-523-P, Citation Nos. 7-0112 and

7-0113, are herein incorporated by reference as my findings and

conclusions concerning Citation No. 7-0110 in this docket. I find

that respondent exercised normal good faith compliance in abating

the cited condition, and failed to exercise reasonable care to

prevent a condition which it knew existed and that this failure

on its part constitutes ordinary negligence.

Gravity

 With regard to the actual roof conditions which existed in

the No. 6 entry at the time the citation issued, Inspector Jones

testified and confirmed his previous finding that the roof was

drummy and cracked. He also testified that he found some 6 feet

of loose roof coal present inby the last support which was ready

to fall and had
~31

to be barred down. While he did not know whether that condition

existed on the previous shift while men were working in that

area, it is reasonable to conclude that it did, and respondent

presented no testimony or evidence to rebut the inspector's

testimony. In the circumstances, I conclude and find that the

violation was serious.

Petitioner's Assessment Procedures and Inspector Practices

 During the course of the hearing and in its posthearing

brief and proposed findings and conclusions, respondent

emphasized what it believes to be a most inadequate and often

misleading use of the inspector's statement, a form usually

filled out by an inspector after a citation is issued. The form

contains information regarding negligence, gravity, and good

faith compliance, and it is completed by the inspector who issues

a citation and used by the assessment officer in evaluating a

particular violation and arriving at an initial civil penalty

assessment. While I am in agreement with the respondent's

observations that these statements sometime contain inadequate

and unsupported conclusions, and often present only the

unfavorable portions of an inspector's comments or observations,

I cannot conclude that this results from any deliberate or

conscious effort by the inspector to bolster or support his

actions. For the most part, I believe the practices complained of

result from the use of standardized subjective forms which place

the inspector in the position of making a one-sided evaluation in

order to support the action taken by him. Further, once the

matter is referred to the assessment officer, unless there is

some imput by the operator at a conference, the only information

available to the assessment officer is the bare notice and the

inspector's statement.

 One example of what I consider to be a misleading

inspector's statement is Exhibit P-9, dealing with a violation of

section 75.313 (Docket No. DENV 78-522-P). Although the inspector

checked several of the gravity blocks, he indicated "none" under

the "Remarks" portion of the form, completely struck out the

"Good Faith" portion, and indicated that 20 workers were exposed

to the hazard presented by the violation. During the hearing, the

inspector testified that he extended the notice several times

because of needed parts to repair a methane monitor, that he made

a mistake in noting that 20 miners were exposed to any hazard,

when, in fact, it should have reflected only those actually

working on the shift, and that he crossed out the "Good Faith"

portion of the form because he is instructed not to fill that

portion out when an order has been issued. While it would appear

from the evidence presented at the hearing, that the scoop in

question was initially removed from the mine to effect repairs,

but subsequent problems ensued once the scoop was brought back

into the mine, and the violation was nonserious because of the

lack of methane, those facts are not reflected in the inspector's

statement.
~32

 Another example noted in these proceedings is Exhibit P-3,

concerning the cable violation (Docket No. DENV 78-521-P. The

inspector's statement indicates "probable" and "disabling" under

the "Gravity" portion of the form, when, in fact, the testimony

at the hearing reflected that the cable was disconnected and not

energized, and the inspector testified that the violation was

nonserious. While the form on its face contains a space for the

inspector to note conditions or circumstances which might have

decreased the severity of the condition, it is simply marked

"none" in the "Remarks" portion.

 I take note of the fact that the inspector who issued the

aforementioned citations was a new inspector who was simply

attempting to perform his duty to the best of his ability, and

the fact that he candidly admitted on reflection that his written

analysis of the situation made at the time of the event may have

been somewhat misleading is to his credit. However, this is an

area which should be addressed by MSHA in its inspector training

programs, particularly when it results in a somewhat unrealistic

or subjective assessment evaluation by an assessment officer who

all too often is engrossed in applying "special formulas" and

other such mathematical machinations in attempting to apply the

criteria set forth in Part 100, Title 30, Code of Federal

Regulations, to any given violation.

 Having made my observations with respect to problems which

are encountered with inspectors' statements and the application

of Part 100, it is only fair to make some observations with

respect to an operator who "sleeps" on his rights. In these

cases, the mine operator had a full and fair opportunity to avail

himself of the opportunity to submit any information pertaining

to the cited violations to the Assessment Office and to request a

conference for the purpose of bringing to the attention of the

Assessment Office mitigating circumstances which he believes

warrant consideration in arriving at a fair and equitable initial

civil penalty assessment. Apparently, this was not done in these

cases. Further, the respondent presented little substantive

testimony in defense of the cited violations and the principal

thrust of its case centered on an attack on MSHA's enforcement

practices. Enforcement of the Act and the promulgated mandatory

safety and health standards lies with the Secretary and is solely

within his jurisdiction and authority. My jurisdiction is limited

to the adjudication of cases after the operator has been afforded

an opportunity to be heard. In these cases, I cannot conclude

that the enforcement practices complained of by the respondent

were so arbitrary or capricious as to warrant dismissal of the

citations and the petitions for assessment of civil penalties

filed by the petitioner. To the contrary, I believe it is clear

from the record that the respondent has had a full and fair

opportunity to be heard and to present its defense.
~33

 Conclusion

 On the basis of the foregoing findings and conclusions,

respondent is assessed civil penalties for the violations which

have been established, as follows:

Docket No. DENV 78-521-P

Citation No. Date 30 CFR Section Assessment

 8-0005 1/09/78 75.517 $25

Docket No. DENV 78-522-P

 8-0010 1/19/78 75.313 $25

 8-0015 1/30/78 75.200 $250

Docket No. DENV 78-523-P

 7-0111 12/30/77 75.316 $150

 7-0112 12/30/77 75.200 $1,000

 7-0113 12/30/77 75.200 $850

Docket No. DENV 78-524-P

 7-0110 12/30/77 75.200 $1,000

 ORDER

 Respondent is ORDERED to pay the penalties assessed in these

proceedings, as indicated above, in the total amount of $3,300

within thirty (30) days of the date of these decisions.

 George A. Koutras

 Administrative Law Judge