<DOC>
[DOCID: f:k93646.wais]
MANALAPAN MINING COMPANY
September 11, 1996
KENT 93-646
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 11, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-646
Petitioner : A.C. No. 15-05423-03734
:
v. :
:
MANALAPAN MINING COMPANY, : Mine No. 1
Respondent :
: Docket No. KENT 93-884
: A.C. No. 15-16733-03546
:
: Mine No. 7
DECISION ON REMAND
Before: Judge Weisberger
On August 30, 1996, the Commission issued a decision in these
cases in which it, inter alia, reversed my decision (16 FMSHRC
1669 (August 1994)), that Order No. 4238749 was not S & S, and
remanded the matter to me "for penalty reassessment" (Docket No.
KENT 93-646, et al., 18 FMSHRC , slip op. at 9, (August 30,
1996)).[1]
I take cognizance of the Commission recitation of the
Secretary's evidence showing the following: two miners were in
the mines for four hours without a preshift examination; the
miners' equipment included torches; the bolter was energized;
there was a possibility of the presence of low oxygen; and that
the mine roof had a tendency to fall, and the mine had experienced
several roof falls. The Commission also noted as follows: "During
idle periods, methane can build up, and other unforseen hazards
can develop." (slip op. supra, at 8). Based on these factors, I
find that the gravity of the violation was relatively high. I
also reiterate my initial finding that Respondent's conduct was
more than ordinary negligence (16 FMSHRC supra, at 1703). I thus
find that a penalty of $5,000 is appropriate for the violation
cited in this order.
It is ORDERED that, within 30 days of this decision.
Respondent shall pay a total civil penalty of $5,000 for the
violation cited in Order No. 4238749, minus any penalty
previously paid for this violation.
Avram Weisberger
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., P.O. Box 837,
Harlan, KY 40831 (Certified Mail)
/ml
**FOOTNOTES**
[1]:Pursuant to the Commission's direction, I hereby correct
a clerical oversight with respect to Docket No. KENT 93-882, and
indicate that it contained only one Citation i.e., No. 3003352,
which was vacated. I thus order that Docket No. KENT 93-882 be dismissed.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 93-646
Petitioner : A.C. No. 15-05423-03734
:
v. :
:
MANALAPAN MINING COMPANY, : Mine No. 1
Respondent :
: Docket No. KENT 93-884
: A.C. No. 15-16733-03546
:
: Mine No. 7
AMENDED DECISION
Before: Judge Weisberger
Due to clerical error, the second paragraph of the decision
in these cases isued on September 11, 1996, is amended to read
as follows:
I take cognizance of the Commission's recitation of the
Secretary's evidence showing the following: two miners were in
the mine for four hours without a preshift examination; the
miners' equipment included torches; the bolter was energized;
there was a possibility of the presence of low oxygen; and that
the mine roof had a tendency to fall, and the mine had experienced
several roof falls. The Commission also noted as follows:
"During idle periods, methane can build up, and other unforseen
hazards can develop." (slip op. supra, at 8). Based on these
factors, I find that the gravity of the violation was relatively
high. I also reiterate my initial finding that Respondent's
conduct was more than ordinary negligence (16 FMSHRC supra, at
1703). I thus find that a penalty of $5,000 is appropriate for
the violation cited in this order.
Avram Weisberger
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., P.O. Box 837,
Harlan, KY 40831 (Certified Mail)
/ml