<DOC>
[DOCID: f:k95-214.wais]

 
ISLAND CREEK COAL COMPANY
February 17, 1998
KENT 95-214


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                        February 17, 1998


SECRETARY OF LABOR              :  CIVIL PENALTY PROCEEDING
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION (MSHA),      :  Docket No.  KENT 95-214
               Petitioner       :  A.C. No.  15-03178-03789
          v.                    :
                                :  Ohio 11 Mine
ISLAND CREEK COAL COMPANY,      :
               Respondent       :

                        DECISION ON REMAND

Before:   Judge Hodgdon

     On January 30, 1998, the Commission issued a decision in
this case reversing my conclusion that an escape of methane from
a cut-through core drill hole into a crosscut being mined between
the No. 5 and 6 entries on the 004 section did not constitute an
unplanned inundation of gas requiring the immediate reporting of
the accident to the Secretary's Mine Safety and Health
Administration (MSHA).  Island Creek Coal Co., 20 FMSHRC 14
(January 1998).  Finding that Island Creek did violate section
50.10, 30 C.F.R.  50.10, by not reporting the accident, the case
was remanded to me "for assessment of an appropriate civil
penalty."  Id. at 26.

                     Civil Penalty Assessment

     The Secretary has proposed a penalty of $1,000.00 for this
violation.  However, it is the judge's independent responsibility
to determine the appropriate amount of penalty in accordance with
the six penalty criteria set out in section 110(i) of the Act, 30
U.S.C.  820(i).  Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-
84 (April 1996).

     In connection with the penalty criteria, the parties have
stipulated that payment of the proposed penalty would not affect
Island Creek's ability to remain in business.  (Tr. 33.)  The
file indicates that while the mine is small to medium sized, its
controlling entity is a very large company.  The file also
indicates that Island Creek's history of prior violations is
good.  There is no evidence that the company did not abate this
violation in good faith, so, to the extent it is relevant for a
reporting violation, I find that Island Creek demonstrated good
faith in attempting to achieve rapid compliance after
notification of the violation.

     The next criterion to be considered is the gravity of the
violation.  The inspector found the violation to be a
"significant and substantial" one, affecting one person with the
reasonable likelihood of suffering an injury that would result in
lost workdays or restricted duty.  Notwithstanding the
inspector's characterization of the violation as "significant and
substantial," there has been no finding on that issue in this
case.  Since resolution of the issue affects a determination on
the gravity of the violation, I find the violation to have been
"significant and substantial" for the reasons set forth below.

     A "significant and substantial" (S&S) violation is described
in Section 104(d)(1) of the Act as a violation "of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard."  A
violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S.  See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria).  Evaluation of the criteria is made in terms
of "continued normal mining operations."  U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation.  Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

     The inspector's testimony concerning this issue was as
follows:

          THE COURT:  Mr. Coburn, how did the failure
          to immediately report this accident make this
          violation significant and substantial?

          A.  Because by the time we arrived at the
          mine was fourteen hours later.  We had no
          idea what was coming out of the bore holes,
          what the people were that were exposed and
          what they were exposed to, what controls had
          been done on the section and everything . . .
          .

          THE COURT:  Well, what would have happened if
          they had reported it immediately?

          A.  We would have issued a (k) order and
          followed the steps about removing the miners
          or whatever was necessary.  They would have
          to have plans about what they were going to
          do about removing the miner and other people.

          . . . .

          I would not have allowed the miner to be
          removed under its own power.

(Tr. 111-12.)

     The Commission has held in this case, although not in
connection with this issue, that "MSHA needs to know immediately
about inrushes of methane in order to be able to respond quickly
and help prevent explosions and loss of life.  Notification is
one of the necessary first steps following an accident that
enables MSHA to take appropriate action."  Island Creek at 22.
In view of the inspector's testimony and this statement, I
conclude that the failure to immediately report the accident made
in reasonably likely that a reasonably serious injury would
result from the accident.  Therefore, I conclude that the
violation was "significant and substantial."  For the same
reasons, I conclude that the gravity of the violation was
serious.

     The final penalty factor to be considered is negligence.
The inspector described the level of negligence as "moderate."
The Commission held, albeit not on this issue, that the
conditions in the mine "presented a safety hazard that should
have alerted Island Creek to the necessity of immediately
reporting the incident as an accident to MSHA."  Id. at 24.  It
also held that "the actions and stated views of Island Creek
representatives support the notion that Island Creek should have
been aware that the core drill hole cut-through was not a routine
methane release, but rather an incident that needed to be
reported under section 50.10."  Id. at 25.  Accordingly, I
conclude that Island Creek was moderately negligent in not
immediately reporting this incident.

     Taking all of these factors into consideration, I conclude
that the $1,000.00 penalty proposed by the Secretary for Citation
No. 3859779 is appropriate.

                              ORDER

     Accordingly, Island Creek Coal Company is ORDERED TO PAY a
civil penalty of $1,000.00 for the violation of section 50.10 set
out in Citation No. 3859779 within 30 days of the date of this
decision.  On receipt of payment, this proceeding is DISMISSED.




                              T. Todd Hodgdon
                              Administrative Law Judge





                              Distribution:

                              Robin A. Rosenbluth, Esq., Office
                              of the Solicitor, U.S. Department
                              of Labor, 4015 Wilson Bouelvard,
                              Suite 400, Arlington, VA 22203
                              (Certified Mail)

                              John T. Bonham II, Esq., Jackson &
                              Kelly, P.O. Box 553, Charleston, WV
                              25322 (Certified Mail)


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