***13 With respect to 2 OS, 3/1/71, the Judge concluded that the Respondent (Buffalo) "has not met its burden of proving that it could not have had available to it at the time of the inspection the equipment and material required to avoid the violation." (Dec. 16.)

We must disagree with the Judge in his finding in light of this evidence. The total evidence in our view clearly supports a conclusion that the operator reasonably could not be expected to do a useless and futile thing that is, place orders for equipment knowing it was not available. All of the evidence in this record, mostly supplied by the Government's own witness, clearly leads to a finding of fact that the equipment required for compliance with the safety standards cited in the three foregoing notices simply was not available for purchase by the operator. We find, therefore, that the equipment needed to abate these three violations was not available for purchase by the operator at the time the notices were issued.

Having made this finding, we must determine whether penalty assessments made for the subject notices should be permitted to stand.

Section 104 (h) (1) of the Act, pertaining to unabatable conditions, provides as follows:

(1) If, upon any inspection of a coal mine, an authorized representative of the Secretary finds (A) that conditions

13 The Judge made this finding even though he recognized, on the same page of his Decision, that the operator's purchase manager had called a few companies and determined that the equipment was not available (Dec. 9). 523-617-734

exists therein which have not yet resulted in an imminent danger, (B) that such conditions cannot be effectively abated through the use of existing technology, and (C) that reasonable assurance cannot be provided that the continuance of mining operations under such conditions will not result in an imminent danger, he shall determine the area throughout which such conditions exist, and thereupon issue a notice to the

operator of the mine or his agent of such conditions, and shall file a copy thereof, incorporating his findings therein, with the Secretary and with the representative of the miners of such mine. Upon receipt of such copy, the Secretary shall cause such further investigation to be made as he deems appropriate, including an opportunity for the operator or a representative of the miners to present information relating to such notice.

(2) Upon the conclusion of such investigation and an opportunity for a public hearing upon request by any interested party, the Secretary shall make findings of fact, and shall by decision incorporating such findings therein, either cancel the notice issued under this subsection or issue an order requiring the operator of such mine to cause all persons in the area affected, except those persons referred to in subsection (d) of this section, to be withdrawn from, and be prohibited from entering, such area until the Secretary, after a public hearing affording all interested persons an opportuntiy to present their views, determines that such conditions have been abated. Any hearing under this paragraph shall be of record and shall be subject to section 554 of Title 5***.

We construe the phrase, "cannot be effectively abated through the use of existing technology," to encompass circumstances where, at the time of the inspection, the operator cannot have available the equipment, materials, certified or qualified personnel, or scientific exper

tise required to comply with a mandatory health or safety standard. We believe it significant that nowhere in section 104 (h) is the term "violation" used, but instead, the term, "conditions," is employed. It is likewise significant that in section 104(b) of the Act Congress used the term "violation" rather than "conditions" and, that section 109 of the Act requires the mandatory assessment of a civil penalty only where the Secretary finds that a "violation" occurred.

Reading sections 104(b), 104 (h), and 109 together and giving effect to the language of all three, we conclude that Congress did not intend that a section 104 (b) notice be is104(b) sued or a civil penalty assessed where compliance with a mandatory health or safety standard is impossible due to unavailability of equipment, materials, or qualified technicians. Where an inspector observes a condition constituting a health or safety hazard and is aware that the "existing technology" required for abatement is unavailable, we think the better course would be to issue a section 104 (h) notice if the inspector reasonably believes that continued mining operations will ripen into an imminent danger situation.

The ultimate consequence of an investigation triggered by a 104 (h) notice would be the cancellation of the notice or the issuance of a withdrawal order. No penalty assessment would be involved. If, on the other hand, the inspector is aware of impossibility of abatement due to unavailability of "existing tech

nology" and reasonably believes that continued mining operations will not ripen into an imminent danger situation, the issuance of either a section 104 (b) or a section 104 (h) notice would be inappropriate.

If the inspector should issue a section 104 (b) notice of violation under the mistaken belief that equipment is available, and it later proves not to have been, then MESA or the Judge should vacate the notice. Of course, in all cases, irrespective of the unavailability of equipment, material, or technical personnel, if the inspector believes that the condition or practice constitutes an existing imminent danger, he must issue a section 104(a) order of withdrawal 14 to protect

14 This construction of the statute finds support in the opinion of the United States District Court for the Western District of Virginia at Abingdon, rendered in the course of issuing a temporary restraining order in the case of Ratliff, et al v. Hickel, et al, Civil Action No. 70-C-50-A, where Judge H. E. Widener, Jr. said:

"When imminent danger is not involved, the defendants are restrained from enforcing Title III of said Public Law 91-173 in any manner, other than in accordance with Section 104 (h)(1) of said Public Law, when defendants charge violations which may be corrected by the use of equipment which is not available for purchase, the court being of opinion that equipment which is not available for purchase cannot effectively be used to abate a condition through the use of existing technology. The defendants are further restrained from enforcing Title III of said Public Law in any manner other than in accordance with Section 104 (h) (1) of said Public Law, when defendants charge violations which may not be corrected because of the unavailability of certi fied, registered or qualified personnel or required materials. However, this subparagraph of this order shall in no way prevent the defendants from seeking any remedy provided under said Public Law by way of fine, penalty, or other tools, including closure of mines, in the event, in the opinion of the defendants, the condition complained of is causing or resulting in imminent danger."

the health and safety of the miners exposed to such danger.

Applying the foregoing statutory construction to the facts here, we hold that the three notices above discussed should have been vacated and the penalties assessed thereon set aside. At the time of the issuance of the notices, the inspector knew that the equipment and materials required for abatement were unavailable to the operator. He found no imminent danger present, and it is fair to infer he was reasonably satisfied that no imminent danger was likely to develop. This inference is based upon the answer of the inspector in response to the Judge's question as to whether there were any means to control fires at the time of the inspection. He replied, "Yes, sir, rock dust was available and fire extinguishers were available." (Tr. 98.) Therefore, the inspector should have issued no notice at all. Neither a 104 (b) notice nor a 104(h) notice was appropriate. He might simply have informed the operator, however, that compliance would be expected after the equipment became available, and, that failure to do so could result in the issuance of a 104(b) notice.

With respect to the question of burden of proof which was raised in connection with the alleged violations, we are in accord with Buffalo's position on that point as expressed in its brief at pp. 14 and 15, as follows:

Essentially the state of the evidence here is that the Government's own witness has absolved Buffalo of liability for

While the

these civil penalties * burden of proving unavailability of equipment or materials may be on the operator so long as there is an inference of availability, when-as here the only evidence of record rebuts that inference, there is nothing to be proven or disproven [by the operator].

Notice No. 3 OS, 3/8/71, was based on a violation of 30 CFR 75– 1403-1(b) and 30 CFR 1403-9.15 It specified the following:

Shelter holes were not provided along the truck haulage roads at intervals of not more than 105 feet as required in a notice to provide Safeguards (No. 3) issued February 26, 1971.

The objection made by Buffalo to this notice of violation and assessment of $100 is the failure of the Judge to make findings of fact. The

determination that the violation occurred is not disputed; however, the Judge did not make specific findings on gravity, negligence, and good faith.

The only evidence on this violation was the testimony of the inspector. He testified that the violation was not serious (Tr. 130, 135), that it could have been prevented by the operator prior to notice (Tr. 131), and that the operator made a

15 These two regulations arise from section 314(b) of the Act, 30 U.S.C. 874(b), which provides: "Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials shall be provided." 30 CFR 75–1403-1(b) requires an inspector to give an operator written notice to provide a safeguard where needed for safe man trips and transportation of men and to issue a notice of violation if the operator fails to provide the safeguard within the time fixed. 30 CFR 75-1403-9 specifies the criteria for shelter holes for guidance to the inspectors in issuing notices to provide safeguards.

good faith effort to achieve rapid compliance after receiving the notice of violation (Tr. 131). We find from the foregoing evidence that the gravity of this violation was minimal, that the operator was negligent but that it demonstrated good faith in achieving rapid compliance after receiving the notice of violation. We find no reason, however, to change the assessment of $100 made by the Judge for this violation.

Appeal No. IBMA, 73–22, Docket

No. HOPE 72-65-P

Notice No. 2 OS, 3/12/71, charges a violation of 30 CFR 75.507 in that "the direct-current rectifier was located in the return airway in No. 2 section.” 16

It is not disputed that the rectifier was located in the return airway. However, the mine superintendent explained that the mine had been ventilated with one fan and during the night of March 11, 1971, a second fan was installed to provide more air. This caused the rectifier to be in return air for the day of March 12. The operator moved the rectifier into intake air on March 13, a Saturday. The superintendent pointed out that a fan had been constructed for some time but when it was ready it could not be put in the circuit until the miners

16 30 CFR 75.507 restates the statutory safety standard set forth in section 305(d) of the Act (30 U.S.C. § 865 (d)) which provides: "All power-connection points, except where permissible power connection units are used, out by the last open crosscut shall be in intake air."

were out of the mine. (Tr. 574, 575, 577-581.)

Commenting on this explanation, the Judge in his decision at p. 3 (Dec. 3) stated:

I think the explanation makes sense; and it is to be noted that although the inspector fixed a 10-day period for abatement, Respondent corrected the condition within one day. This is a situation where the evidence appears to justify the temporary violation. But, as I read the Act, mitigating circumstances can be reflected only in the amount of the penalty to be assessed.

Buffalo argues that the Judge's words, "the evidence appears to justify the temporary violation," amounted to a finding that the facts were more than mitigating and absolved Buffalo of all liability for a penalty assessment.

We disagree. It seems to us that although the Judge failed to expressly find the operator not negligent under the circumstances here, his comments as a whole indicate simply a belief that the operator was not negligent.

The inspector testified that the violation was serious because of the possibility of methane being present in the return airway. (Tr. 509.) But this was offset by his further testimony: that no methane was present during the inspection and to his knowledge none had ever been found in that mine (Tr. 517); that no coal float dust was in the return airway; and that he did not see any other hazard (Tr. 518).

The Judge made findings that the violation charged in fact occurred

and that the operator exercised diligence in abating the condition-noting that the correction was made within one day after receipt of the notice of violation. He made no express ultimate findings as to negligence, gravity, or good faith compliance.

Therefore, the Board finds from the evidence adduced that the operator was not negligent, that the violation was not grave, and that the operator demonstrated good faith in achieving rapid compliance after notice. We conclude that these mitigating findings justify a reduction of the assessment from $50 to $10. Notice No. 4 OS, 3/16/71, charged Buffalo with the following violation of 30 CFR 75.604:

A permanent splice in the trailing cable on No. 2 shuttle car in No. 1 section was not effectively sealed and insulated to exclude moisture; and flame resistant materials were not used.

The principal issue here is whether the Judge erred by rejecting the following finding proposed by Buffalo:

The evidence fails to establish the violation charged, that a permanent splice in the trailing cable of a shuttle car was not properly made because the evidence showed that the splice in question met all the requirements of an unprohibited temporary splice.

We hold that he did not.

The Act and the regulations provide among other things that a permanent splice, when made, shall be effectively insulated and sealed so as to exclude moisture, and vulcanized or otherwise treated with suitable materials to provide flame-resist

ant qualities and good bonding to the outer jacket." The Act and the regulations also provide that one temporary splice may be made in any trailing cable; that such trailing cable may only be used for the next 24-hour period; and that temporary splices in trailing cables shall be made in a workmanlike manner and shall be mechanically strong and well-insulated.18

The inspector explained in his testimony (Tr. 529-530, 534) that the main difference between a permanent splice and a temporary splice is that a permanent splice involves the application of heat or vulcanization and is made with flame-resistant material that seals itself, while a temporary splice is made without using heat or any such flame-resistant material. He testified also that the splice involved in this notice was a permanent splice because it had been vulcanized with a flame-resistant material, but was defective. (Tr. 526, 527.) He further testified: "It wasn't made as a temporary splice. It was made as a permanent splice." (Tr. 531.)

We concur with the Judge that "a temporary splice is not a so-called lesser-included condition of a permanent splice," (Dec. 4) and with his finding that the splice in question was a faulty permanent splice. (Dec. 5.)

The inspector testified in substance that the violation was serious

17 See section 306 (e) of the Act (30 U.S.C. § 866 (e)) and 30 CFR 75–604.

18 See section 306 (d) of the Act (30 U.S.C. § 866 (d)) and 30 CFR 75.603.