<DOC>
[DOCID: f:pn9815x.wais]

 
CYPRUS CUMBERLAND RESOURCES, CORPORATION
October 8, 1999
PENN 98-15-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         October 8, 1999

CYPRUS CUMBERLAND RESOURCES,    : CONTEST PROCEEDING
  CORPORATION                   :
                  Contestant    : Docket No. PENN 98-15-R
          v.                    : Order No. 3657679; 9/25/97
                                :
SECRETARY OF LABOR,             : Cumberland Mine
  MINE SAFETY AND HEALTH        : Mine ID 36-05018
  ADMINISTRATION (MSHA)         :
                  Respondent    :

                       DECISION ON REMAND

Before: Judge Feldman

     This case concerns the propriety of the September 25, 
1997, issuance of 104(d)(2) withdrawal Order No. 3657679 at 
Cyprus Cumberland Resources Corporation's (Cyprus') Cumberland  
Mine. The  withdrawal  order  was  predicated on 104(d)(1) 
Citation No. 3657625 that was issued at Cyprus' Cumberland  
facility on June 18, 1997. The only contested issue is whether 
the Mine Safety and  Health  Administration (MSHA)  had   
performed a "clean inspection"  of the Cumberland Mine between 
June 18, 1997, and September 25,  1997, thus relieving Cyprus 
of the consequences of the  104(d) "chain"  withdrawal  
sanctions provided in section 104(d)(2) of the Mine Act, 
30 U.S.C. � 814(d)(2) of the Act.[1] The Secretary has  
stipulated  that, with the exception of the 60 West Mains 
haulage, the entire Cumberland Mine had been inspected
during the relevant interim period  between  the  issuance 
of the predicate 104(d)(1) citation and the subject withdrawal 
order.

     The 60 West Mains haulage is approximately 4,200 feet 
long and has been the primary route of travel into and out of 
the Cumberland Mine since 1983. It is an area where  there is 
no active mining. Therefore, the condition of this area changes
little from inspection to inspection.

     The evidence reflects, from June 18, 1997, through 
September 25, 1997, at least eleven mine inspectors traveled  
the 60 West Mains haulage  a  total  of  135  round trips 
in slow moving battery operated vehicles (crickets or
mantrips).[2] (Resp. Ex 1). During these trips these inspectors 
had an opportunity, if not an obligation, to repeatedly 
observe the roof, rib, and track conditions in the 60 West 
Mains haulage to ensure these conditions were not hazardous. 
These inspectors could have left their battery operated 
vehicles at  any time if they had observed any hazardous or 
violative condition.

     The Secretary does not dispute the fact that mine 
inspectors routinely traveled down the 60 West Mains Haulage. 
However, the Secretary  asserts  a  clean  inspection had not 
occurred until September 26, 1997, when the 60  West Mains 
haulage was inspected on foot.

     The initial decision determined the 60 West Mains haulage
had been inspected prior to the September 25, 1997, issuance 
of the subject withdrawal order by virtue of the daily  
observations of the rib, roof and track conditions by MSHA 
inspectors that routinely traveled this mine entry. As a result, 
the initial decision modified 104(d)(2) withdrawal Order  No.  
3657679 to a 104(d)(1) citation.  20 FMSHRC 285 (March 1998) 
(ALJ).

     On July 29, 1999, the Commission vacated the modification
of 104(d)(2)  withdrawal  Order No. 3657679 and remanded this 
matter for further consideration.  21 FMSHRC 722. 

     In its remand, the Commission  noted  the Secretary has
relied on the testimony of supervisory inspector  Robert  
Newhouse to prove that  a  "regular"  inspection of 60 West 
Mains haulage had not occurred between June  18,  1997, and 
September 25, 1997.  Id. at 728.  However, the Commission  
also  noted  "an intervening clean inspection  is  not  
limited solely to a complete regularly scheduled inspection,  
but may be composed of a combination  of inspections, so long 
as taken together they constitute an inspection of the mine in 
its entirety." Id. at 726, quoting U.S. Steel 6 FMSHRC at 1912. 
In this regard, the Commission has determined  a clean 
inspection can consist of a series of regular and spot 
inspections.   Kitt  Energy  Corp.,  6 FMSHRC 1596 (July
1984), aff'd sub nom. UMWA v. FMSHRC, 768 F.2d  1477  (D.C.  
Cir. 1985).   Consequently,  the  Commission  directed  me to 
consider entries  made  by Cyprus in a log it maintained 
summarizing  mine inspector activities  to  determine  if  
there  were  any entries evidencing  spot inspections in the 
60 West Mains haulage  during the relevant  time  frame.  
21 FMSHRC at 728.  Cyprus' inspection activity log has been 
admitted as respondent's exhibit 1.

     Specifically, in  directing me to examine the Cyprus log 
and its various entries, the Commission noted:

     The log and its various  entries  must  be examined and
     weighed  against  other  evidence  admitted  into   the
     record.    Such   examination   and  fact-finding  more
     appropriately  reside  with  the  judge  in  the  first
     instance, rather than with the Commission on review.

Id. (Emphasis added).

     Pursuant to the Commission's remand, the Secretary and
Cyprus were provided with an  opportunity to address whether 
the Cyprus log reflects any entries concerning MSHA spot or 
regular inspections in the 60 West Mains preceding the  
issuance of the September 25, 1997, withdrawal order. The 
Secretary filed her Position on Remand on September 22, 1999.
The Secretary correctly states there are no entries in Cyprus' 
log reflecting a regular or spot inspection of the 60 West 
Mains.

     Cyprus filed its Position Statement on this question on
September 30, 1999. Cyprus states its log  entries note the
ultimate inspection destination of inspectors on particular 
days. Although Cyprus states the log places inspectors in the 
area of the 60 West Mains haulage, Cyprus does not contend 
that its log contains any entries reflecting regular or spot 
inspections in the 60 West Mains haulage.

     I have considered the information the Commission directed 
me to consider in light of the Commission's prior holding 
in Kitt Energy  that  a clean inspection can consist of a 
combination of inspections, including regular and spot 
inspections.

     In Kitt Energy, the Commission rejected the Secretary's
"attempt to exclude from consideration under section 104(d)(2)
all inspections other than the so-called regular inspections 
[as] unconvincing."  6 FMSHRC at 1599.  The Commission further 
stated:

     [the Secretary's] designations of inspections as "spot"
     or    "regular"    inspections    are    administrative
     designations not established  in  the  Act  . . . . Any
     MSHA  inspector  conducting  any enforcement inspection
     authorized by the Mine Act is  required  to  cite every
     observed  violation  of the Act or its standards.   The
     fact that during a particular  inspection  an inspector
     may  give emphasis to particular types of hazards  does
     not serve to place blinders on the inspector or prevent
     the issuance of citations for other violations.

Id.

     The Court of Appeals, in affirming the Commission's Kitt
Energy decision, noted the Commission  had  determined "a 
`clean' inspection   could  be  comprised  of  any  type  of 
inspection (`regular' or `spot') or any combination of various 
inspections, so long as the mine  was completely inspected."  
768 F.2d at 1479 (emphasis added) (footnote omitted).

     The initial decision in this matter recognized there is 
no evidence of any activity by MSHA officials that MSHA  has
characterized as a "spot" or "regular"  inspection of the 60 
West Mains. However, MSHA's characterization of its activities 
as not constituting a regular or spot inspection, while 
relevant, is not material or probative evidence on whether an 
inspection of the 60 West  Mains  haulage  in  fact occurred. 
Rather, resolution of whether an inspection of the 60 West 
Mains haulage had been performed  must  be  based  on an 
analysis  of MSHA's actions, not how MSHA chooses to 
characterize its actions.[3]

     Thus, the question is whether the Secretary has satisfied
her burden of proof that the 60 West Mains haulage was not
inspected for 104(d)(2) purposes despite  the daily presence 
of numerous mine inspectors  in  that entry.  The  Secretary 
cannot prevail simply by establishing that inspectors had not 
exited their battery operated vehicles to inspect electrical 
boxes located in the 60  Mains. During quarterly inspections 
of a mine in its entirety, MSHA inspectors do not inspect  
each piece of mining equipment, all ventilation controls, or 
all entries in a mine.  (Tr. 144, 331-2, 481, 708-9, 804-5).  
Rather, inspectors focus their attention on areas where mining 
is actively occurring. (Tr. 294). It follows that the required 
degree of thoroughness for an adequate inspection of a mine 
area under section 104(d)(2) is dependent on whether the area 
is the site of active mining.[4]

     During the course of oral argument before the Commission 
in this proceeding, the difficulty of describing the requisite
inspection activities necessary to establish that a "clean"
inspection of an entire mine had been performed for 104(d)(2)
purposes was addressed:

     Commissioner  Riley:  Well,  what  is  the  all-hazards
     language that the court inserted in Kitt ?  What should
     we read into that?   Does that mean that an area can be
     inspected but unless it  is  certified  as  having been
     inspected  and free of all hazards [in] that particular
     section[,]  in   fact   the  entire  mine  hasn't  been
     inspected for purposes of  104(d)(2)?   (Oral Argument,
     Tr. 11)

          *          *          *          *          *

     Ms. Geraghty:  I think you've got to look  at  it  on a
     case-by-case basis, and I think that the Commission has
     clearly  said  that  spot  inspections  if  there are a
     sufficient  number of them can constitute an inspection
     for purposes  of getting a clean inspection  .  .  .  .
     [T]he Secretary is not required to inspect every single
     inch of a mine,  even during quarterly inspections  . .
     .  .  I  mean  I think  its  important  to  distinguish
     between, you know,  having to inspect every inch of the
     mine and looking at the mine in its entirety, you know,
     have we covered this  mine  in  terms  of  looking  for
     hazards that you would expect to find in a mine.  (Oral
     Argument, Tr. 12, 13-14).

     Resolution of whether or not a clean inspection has 
occurred must  be  done  on  a  case-by-case  rather than a  
deferential basis.[5] 21 FMSHRC at 726 citing Kitt Energy; 
UMWA v. FMSHRC, 768 F.2d at 480. The evidence is equivocal 
as to whether any MSHA inspector disembarked from a cricket 
or mantrip in the 60 West Mains haulage during the time in 
question. Inspector Patterson testified although he could 
not remember doing so, "it's possible" he left the battery  
operated vehicle for closer observation. (Tr. 301). However,
as previously noted, inspectors could have left their 
vehicles at any time if they had observed any conditions 
that caused concern.

     Notwithstanding the above discussion of the probative 
value of MSHA's "regular" and "spot" characterizations, in  
the final analysis, resolution of this case is quite simple. 
The question is whether a reasonable person, familiar with 
the deterrent purposes of section 104(d)(2) with respect to 
unwarrantable failure, would conclude that the numerous mine 
inspectors' observations  (during  approximately 135 round 
trips) of the 60 West Mains haulage ribs, roof, and track, 
constitute an adequate inspection for hazardous conditions 
in that inactive mine area. See Ideal Cement Company, 12 
FMSHRC 2409, 2415-16 (November 1990) (the reasonable person
analytical approach the Commission has adopted in evaluating 
the fairness of application of broad safety standards to  
particular factual settings).

     Applying the reasonable person test, it is unreasonable 
to conclude that MSHA mine  inspectors,  who are intimately 
familiar with the hazards of mining, would repeatedly travel  
an entry without ensuring there are no hazardous rib, roof, 
or track conditions. It is likewise unreasonable that mine 
inspectors, during a three month period beginning in June 
1997, would repeatedly travel an  entrance  of  a mine, to 
enter deeper inby, without ensuring that traveling through  
the entrance was safe. Waiting  until  September 26, 1997, 
to inspect the 60 West Mains haulage, when MSHA  was  about 
to finally exit the mine after it had completed its quarterly 
inspection, is as prudent as closing the barn door after the 
horse has departed.

     As previously noted, the Commission has  held  the 
Secretary has  the  burden  of proving the absence of an 
intervening  clean inspection.  Kitt Energy,  6  FMSHRC  at  
1600. In proving the absence  of  a  clean inspection, the 
Secretary must prove there were portions of the mine that 
remained to be inspected at the time that the disputed 
104(d)(2) order was issued.[6] Id. Ifthe Secretary wishes to 
rely on an uninspected area of a mine to continue enforcement 
of a 104(d)(2) probationary chain, she should not rely on an 
inactive mine area, that has been traveled by no fewer than 
eleven inspectors, a total of approximately 270 times.[7] 
Simply put, I reject the essential premise advanced by the 
Secretary in this case--that numerous inspectors, to a
person, turned the proverbial blind eye as to whether there 
were any hazardous rib, roof, or track conditions in the 60 
West Mains haulage.

     Finally, in reaching this conclusion, I recognize that 
the D.C. Court of Appeals, in  affirming Kitt Energy, rejected 
the argument that "an inspector's physical presence in each 
area of the  mine--regardless of the object of the inspection 
or the hazards  actually  examined  for in each particular
area--qualifies as an intervening `clean' inspection." 21 
FMSHRC at 726, quoting Kitt Energy; UMWA v. FMSHRC, 768 F.2d 
at 1479. Consistent with Kitt Energy, I am not suggesting the 
casual traversing of mine areas to arrive at other  mine  
locations for the purpose of inspecting those areas constitutes 
an inspection of the area traveled.  However, here the 60 West 
Mains haulage is the primary means of entry and exit from the 
Cumberland Mine. To conclude that numerous mine inspectors 
traveled this area without determining if ingress and egress 
was safe with respect to the rib,  roof and track conditions, 
as well as with respect to ventilation, would deny the obvious.  
I decline to do so.


**FOOTNOTES**

     [1]  Section 104(d)(2) provides:

               If  a  withdrawal  order with respect to
          any  area in a coal or other  mine  has  been
          issued   pursuant   to   paragraph   (1),   a
          withdrawal  order shall promptly be issued by
          an authorized representative of the Secretary
          who finds upon  any subsequent inspection the
          existence in such  mine of violations similar
          to those that resulted in the issuance of the
          withdrawal order under  paragraph  (1)  until
          such  time  as  an  inspection  of  such mine
          discloses no similar violations.

     [2]  Mine  inspectors  McCort, Radolec, Terrett, Dean, 
Wilson, Pogue Kelly, Gulley, Patterson, Rantovich, and  MSHA  
supervisory mine inspector Newhouse, traveled  the 60 West
Mains haulage during this period. (Resp. Ex. 1). It is 
unclear whether several of these individuals  are  state 
rather  than  MSHA inspectors.

     [3]  Evidence is immaterial  if  it is relevant to prove 
a proposition, but the proposition is neither in issue nor 
probative of a fact in issue.  Jerome Prince, Richardson on 
Evidence (10th ed. 1973). The contestant does not contend, nor 
could it prove, that MSHA performed what  MSHA designated as 
"spot" or "regular" inspections in the 60 West Mains haulage. 
The fact that MSHA did not administratively designate its mine
inspectors' activities in the 60 West Mains haulage as "spot"  
or "regular" inspections, is not probative on whether those 
activities constituted an inspection.

     [4]  For example a "regular" inspection of the 4,200 feet 
long 60 West Mains haulage on September 26, 1997, took 1-1/2 
hours to complete.  A "regular" inspection of a comparable  
longwall area undoubtedly would take a much longer period of 
time. See fn. 7, infra.

     [5]  The  need  for a case-by-case analysis will only 
arise when the Secretary asserts the absence  of  a  clean  
inspection.  Although deference  may  be  accorded  the 
Secretary's interpretations  of regulatory and  statutory
provisions  in  appropriate  circumstances, deferring to the  
Secretary on this  central  factual  issue  of  whether  an 
inspection of the  entire  mine  in  fact  occurred,  would
trivialize due process and pay lip service to the Commission's 
case-by-case approach.

     [6]  In  Kitt  Energy, the Commission recognized the  
inherent difficulty imposed on the Secretary in proving a 
negative  -  -  that a clean  inspection had not occurred.  
The Commission  stated, in order to satisfy her burden of 
proof, the Secretary need only keep records of the areas in 
a mine that have been inspected.6 FMSHRC at 1600. Inherent in
the Commission's directive is that the Secretary's records 
will reflect areas of the mine that remained to be inspected
because there had been little or no MSHA inspector presence. 
Here,  the  dilemma  for  the  Secretary  is  that  records  
demonstrate daily inspector presence in the 60 West Mains
haulage.

     [7]  The quarterly inspection was completed on September 
26, 1997, the day after the subject withdrawal order was 
issued, when inspector George Rantovich walked the 60 West 
Mains haulage. Rantovich's inspection took 1-1/2 hours, and  
he found no violations of any mandatory safety standard.  
20 FMSHRC at 289. Completing  this inspection within 1-1/2  
hours appears to be at odds with the Secretary's assertion  
that a clean inspection of this 4,200 feet long mine entry  
required a thorough  inspection of the roof  conditions; rib 
conditions; track conditions, including whether the track is 
blocked properly and the joints are tight; ventilation  
stoppage; the direction of air flow; any  manholes; 
clearances; fire fighting equipment; and any electrical  
installations in the entry, including cables, wiring and 
switches. See  1 FMSHRC at 727, fn.6.

                              ORDER

     Consistent with the Commission's directive, I have
considered the Cyprus inspection activity log entries in 
relation to the other evidence of record.  I conclude the 
Secretary has failed to demonstrate, by a preponderance of 
the evidence, that a "clean"  inspection of the Cumberland 
Mine had not occurred prior to the September 25, 1997, 
issuance of 104(d)(2) Order No. 3657679.

     Consequently, the modification of 104(d)(2) Order No. 
3657679 to a 104(d)(1) citation IS REINSTATED.


                                Jerold Feldman
                                Administrative Law Judge


Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 301 Grant 
St., 20th Floor, Pittsburgh, PA 15219-1410 (Certified Mail)

Howard K. Agran, Esq., Jacqueline A. Hershey, Esq., Office 
of the Solicitor, U.S. Department of Labor, 3535 Market 
Street, Room 14480, Philadelphia, PA 19104 (Certified Mail)

/mh