CCASE:

SOL (MSHA) V. C F & I STEEL

DDATE:

19790315

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. DENV 77-79-P

 PETITIONER A/O No. 05-02820-02004

 v. Maxwell Mine

C F & I STEEL CORPORATION,

 RESPONDENT

 DECISION

Appearances: Leo J. McGinn, Esq., Office of the Solicitor,

 Department of Labor, for Petitioner;

 Richard L. Fanyo, Esq., Welborn, Dufford, Cook

 & Brown, Denver, Colorado, for Respondent.

Before: Judge Moore

 On August 17, 1977, the Mine Safety and Health

Administration filed a petition for assessment of a civil penalty

in accordance with section 109(a)(1) of the Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. 818(a). The

above-stated petition was based on Notice of Violation No. 1 DLJ

issued in April 21, 1977, alleging a violation of 30 CFR 75.316.

 The 104(b) Notice No. 1 DLJ states: "The ventilation,

methane and dust control plan was not being complied with. No. 1

unit turn out, left, where coal was being cut, mined and loaded,

the end of the vent tube was 30 feet from the working face.

 30 CFR 75.316 states:

 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
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 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.

 The respondent filed an answer to the petition on September

19, 1977, denying the alleged violation. A hearing on the merits

was held in Pueblo, Colorado, on September 12, 1978. The

Government introduced one witness, Donald Jordan, a Federal coal

mine inspector and four exhibits. The respondent introduced two

witnesses, Paul Montoya, an assistant mine foreman for C F & I

Steel Corporation at the Maxwell Mine, and James Robert Morris, a

mine superintendent for C F & I Steel Corporation. Respondent

also introduced two exhibits, C F & I Exhibit Nos. 1 and 3 which

are sketches of the relevant area of the Maxwell Mine cited in

Notice No. 1 DLJ.

 Petitioner and respondent presented two quite distinct

depictions of the shape of the cut and the location of the blower

tubing in the relevant area of the Maxwell Mine. The petitioner

contends that the relevant cut was 30 feet in length, 18 feet

wide, and that the mouth of the blower tubing was situated at the

start of the cut approximately 30 feet from the face. Petitioner

argues that respondent thus violated the ventilation plan which

requires the blower tubing to be within 10 feet of the face (Tr.

7, 9).

 The respondent, on the other hand, contends that the

relevant cut was made at an angle and that while the lefthand

side of the cut may have been 30 feet in length, the depth of the

cut was only 10 feet. Respondent argues that the ventilation

control plan (Govt. Exh. 2) only requires that 3,000 cfm of air

be delivered within 10 feet of the point of deepest penetration

rather than requiring the mouth of the blower tubing to be

situated within 10 feet of the working face.

 The relevant section of page 2 of the ventilation plan

reads:

 Ventilation and Dust Control

 A minimum of 3,000 cfm of air will be delivered to

 within 10 feet of each face where coal is being cut,

 mined, or loaded. The device used will be

 flame-resistant line brattice or 18 or 24 inch

 flame-proof tubing and auxiliary ventilation fans.

 Where exhaust ventilation of the face is used the

 minimum mean entry velocity for dust and methane

 control will be determined after operation begins.

 Respondent's Exhibit Nos. 1 and 3 are diagrams depicting the

area of the alleged violation as respondent contends it to be.

Government Exhibit No. 3 is a diagram of the cut and ventilation
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tubing as the Government contends it existed. None of the three

diagrams are drawn-to-scale and that creates a problem. Because

where angles are involved, nonscale drawings can be extremely

deceptive. Two inspectors measured the lefthand edge of the cut

by tying a weight to their measuring tape and throwing it into

the cut. The respondent's foreman, Mr. Montoya, did not deny that

the left-hand edge of the cut was in fact 30 feet long, and I

will accept the measurement as a fact. If I also accept Mr.

Montoya's estimate that the deepest penetration of the lefthand

side of the cut was only 10 feet from the crosscut containing the

ventilation tubinga(FOOTNOTE 1) then a scale drawing would show an

entirely different picture than that shown in Respondent's

Exhibit Nos. 1 and 3. A scale drawing would approximate a right

triangle with an altitude of 10 feet, a hypotenuse of 30 feet,

and a base slightly in excess of 28 feet. The angle where the new

cut first began would only be between 19 and 20 degrees. The new

entry being started, would have a width in excess of 28 feet,

whereas most entries and crosscuts in this mine were between 18

and 20 feet.

 I might accept the fact that the inspectors in measuring the

lefthand cut, which they thought to be perpendicular to the

crosscut, were in error as to the angle by 10 or 20 degrees, but

an error of 70 degrees is completely unreasonable. I reject Mr.

Montoya's drawings and accept Government Exhibit No. 3, even

though it is also not drawn-to-scale. I would like to point out,

however, even if I accepted respondent's version as correct,

there would still be a violation of the ventilation plan because

that plan requires that line curtains or tubing "shall be

maintained to within 10 feet from the area of deepest penetration

to which any portion of the face has been advanced." (See page 8

of Govt. Exh. 2). Obviously, in referring to "tubing" the plan

means the intake end of the tubing because it would do no good to

have a central section of the tubing run past or within 10 feet

of a face. And, according to Mr. Montoya's description of the

scene, the intake end of the tubing was in the face of the

crosscut and 30 feet from the deepest penetration of the entry

that was to be driven.

 I find that a violation occurred, that respondent was

negligent, that a moderate degree of gravity was involved and

that there was good faith abatement. The history of prior

violations is substantial. While evidence as to the actual size

of the company or the mine was not produced, the ventilation plan

does show that 160 miners were employed in respondent's Maxwell

Mine. It is not a small mine and in the absence of evidence to

the contrary, I will assume that any penalty assessed will not

affect its ability to continue in business. I find a civil

penalty of $800 to be appropriate.
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 ORDER

 It is hereby ORDERED that respondent pay to MSHA a civil

penalty in the amount of $800 within 30 days of the entry of this

decision.

 Charles C. Moore, Jr.

 Administrative Law Judge

DDATE:

Issued: March 15, 1979

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

~FOORNOTE_ONE

 a1. The terminology may be somewhat confusing because the

crosscut had been driven first and the ventilation tube placed

therein and the cut that was being made in the area of the

violation was supposed to be the beginning of an entry.