<DOC>
[DOCID: f:k94-1244.wais]

 
R B COAL COMPANY
May 17, 1995
KENT 94-1244


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                             May 17, 1995

SECRETARY OF LABOR,               :  CIVIL PENALTY PROCEEDING
  MINE AND SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),          :  Docket No. KENT 94-1244
                Petitioner        :  A.C. No. 15-17077-03531
                                  :
          v.                      :  RB #5 Mine
R B COAL COMPANY,                 :
  INCORPORATED,                   :
                Respondent        :

                               DECISION

Appearances:  Joseph B. Luckett, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee,
              for the Petitioner; Richard D. Cohelia, Safety
              Director, R B Coal Company, Inc., Pathfork,
              Kentucky, for the Respondent.

Before:  Judge Feldman

     This proceeding concerns a petition for assessment of civil
penalty filed by the Secretary of Labor against the respondent
corporation pursuant to section 110(a) of the Federal Mine Safety
and Health Act of 1977 (the Act), 30 U.S.C. § 820(a).  The
petition sought to impose a total civil penalty of $17,000 for
four alleged violations of the mandatory safety standards in
Part 75 of the regulations, 30 C.F.R. Part 75, which were all
purportedly attributable to the respondent's unwarrantable
failure.

     This matter was called for hearing on March 29, 1995, in
London, Kentucky, at which time the respondent stipulated that it
is a mine operator subject to the jurisdiction of the Act.  After
the Secretary had presented his direct case with respect to the
first 104(d)(1) citation in issue, the parties elected to confer
for the purpose of settlement. The parties reached a
comprehensive settlement agreement that was presented on the
record for my approval by counsel for the Secretary.

     In support of the proposed settlement, the parties agree
that the evidence reflects that the respondent's degree of
negligence does not rise to the requisite level of aggravated or
unjustifiable conduct necessary to support the inspector's
unwarrantable failure findings.  Consequently, the parties
settlement motion as it pertains to each of the cited violations
is as follows:

     1.  104(d)(1) Citation No. 4248202 is modified to a
     significant and substantial 104(a) citation attributable
     to the respondent's moderate rather than high degree of
     negligence.  As a consequence, the special assessment is
     removed and the parties agree to a reduction in the
     proposed civil penalty from $5,000 to $450.

     2.  104(d)(1) Order No. 4248203 is modified to a
     significant and substantial 104(a) citation attributable
     to the respondent's moderate degree of negligence thus
     removing the Secretary's proposed special assessment of
     a $5,000 civil penalty.  The respondent has agreed to pay
     a reduced civil penalty of $450 in satisfaction of this
     modified citation.

     3.  104(d)(1) Order No. 4248204 is modified to a
     significant and substantial 104(a) citation as a result
     of a reduction in the respondent's degree of negligence
     from high to moderate.  The proposed special assessment
     of $2,000 is reduced to a civil penalty of $300.

     4.  104(d)(1) Order No. 4248205 is modified to a
     nonsignificant and substantial 104(a) citation
     attributable to the respondent's moderate degree of
     negligence.  As a result of the reduction in the degree of
     negligence and gravity associated with the cited violation,
     the parties agree that the $5,000 speciao proposed
     assessment should be reduced to a $50 civil penalty.

                                ORDER

     This decision formalizes the approval of the parties'
settlement motion that was granted on the record after
consideration of the Secretary's presentation in support of the
agreement and the applicable civil penalty criteria contained
in section 110(i) of the Act, 30 U.S.C. § 820(i).

     Accordingly, IT IS ORDERED tht the respondent pay a total
civil penalty of $1,250 in satisfaction of the four citations in
issue.  Payment is to be made to the Mine Safety and Health
Administration within 30 days of the date of this decision.
Upon timely receipt of payment, Docket No. KENT 94-1244 IS
DISMISSED.


                                 Jerold Feldman
                                 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)

Richard D. Cohelia, Safety Director, R B Coal Company, Inc.,
HC 61, Box 610, Pathfork, KY 40863 (Certified Mail)

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