[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