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HARLAN CUMBERLAND COAL
November 25, 1997
KENT 94-996


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET,  N.W.,  6TH FLOOR

                    WASHINGTON, D. C.   20006-3868

                          November 25, 1997


SECRETARY OF LABOR,              :   CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :   Docket No. KENT 94-996
             Petitioner          :    A. C. No. 15-07201-03644
                                 :
        v.                       :   Docket No. KENT 94-997
HARLAN CUMBERLAND COAL,          :    A. C. No. 15-07201-03645
             Respondent          :
                                 :   Docket No. KENT 94-998
                                 :    A. C. No. 15-07201-03646
                                 :
                                 :   Docket No. KENT 94-1024
                                 :    A. C. No. 15-07201-03647
                                 :
                                 :   C-2 Mine
                                 :
                                 :   Docket No. KENT 94-1307
                                 :    A. C. No. 15-08415-03624
                                 :
                                 :   D-1 Mine


                          DECISION ON REMAND

Before:  Judge Merlin

     These  cases  are  before  me  pursuant  to the Commission's
decision dated September 25, 1997.

     In these matters the Secretary of Labor filed a petition for
assessment of civil penalties against the operator for not
submitting respirable dust samples in accordance with applicable
regulations. One citation charged a violation of 30 C.F.R.
� 70.207(a) which requires that an operator take five valid
respirable dust samples during a bimonthly period from a
designated occupation. Two citations charged violations of
30 C.F.R. � 70.208(a) which requires that valid samples
be taken bimonthly from designated areas.

     In its decision dated September 25, 1997, the Commission
held that the operator had violated the cited sections of the
regulations. According to the Commission, in order to comply with
the Act, the operator must collect samples and must submit them to
the Mine Safety and Health Administration (hereafter referred
to as " MSHA") in the manner specified by the regulations. In
addition, the operator's samples must not be voided by MSHA for any
reason. The Commission stated that MSHA cannot determine whether to
void a sample unless it receives and examines the sample.

     With respect to the appropriate amount of penalties  the
Commission found that the administrative  law  judge had made
no  findings with respect to size, good faith abatement,  and
history of prior violations.  The parties had stipulated that
a reasonable  penalty would not affect the operator's ability
to continue in business and the Commission directed that this
should be taken into account when penalties were assessed.

     The Commission stated that the judge made no gravity findings
for  the section  70.208(a)  violations.   In  addition,  the
Commission  pointed out that although the judge concluded the
section  70.207(a)  violation  was  serious,  he  offered  no
specific factual findings to support his conclusion.

     The Commission  then  said  that the  judge  offered  no
explanation to support his finding of moderate negligence for
the  violation  of  section  70.207(a)   and   an  inadequate
explanation  of  his  moderate  negligence  finding  for  the
violations  of  section  70.208(a).  The Commission discussed
the various findings that  could  be  made  with  respect  to
negligence  depending on the acceptance and interpretation of
factual alternatives.   The Commission remanded the cases for
reassessment of penalties consistent with its decision.

     On October 14, 1997, after a telephone conference call with
counsel for both parties, I issued  an  order  directing  the
parties  to  submit stipulations as had been discussed in the
conference call.  The parties now have submitted stipulations
which provide as follows:

1.   Harlan  Cumberland  Coal  Company's  C-2  Mine  received
     265 citations over 264 inspection days during the period
     from January 1991 to May 1994.

2.   Harlan Cumberland  Coal  Company and its C-2 Mine abated
     the subject violations in  good  faith  and  in a timely
     manner.

3.   Harlan  Cumberland  Coal  Company's  C-2  Mine  produced
     223,927.81   tons   of  coal  from  December 9, 1992  to
     December 9, 1993  and   245,125.35  tons  of  coal  from
     January 14, 1993 to January 14, 1994.

4.   Harlan  Cumberland  Coal Company  produced  a  total  of
     428,001.70  tons  of  coal   from  December 9,  1992  to
     December 9, 1993 and a total of  436,517.47 tons of coal
     from January 14, 1993 to January 14, 1994.

5.   Harlan Cumberland Coal Company states  that  Eddie  Sar-
     gent's  log  book listing the subject dust cassettes was
     destroyed and, therefore, is not available for review in
     these cases.

6.   The parties agree  that  a  hearing  and  briefs are not
     necessary for the administrative law judge  to  issue  a
     decision on remand in these cases.

     I accept the stipulations.

     Based  upon the information in Stipulation No. 1, I find that
the  operator's  overall  history  of  prior  violations  was
moderate.

     Based upon Stipulation No. 2, I find that the violations were
abated in good faith.

     Based upon the information in Stipulation No. 4, I find that
the mine was medium in size and that the operator was small.

     At  the hearing the judge accepted the stipulation  that
imposition  of  a  reasonable  penalty  would  not affect the
operator's  ability  to continue in business.  I also  accept
this stipulation and find  that  the  operator's  ability  to
continue  in business will not be affected by imposition of a
reasonable penalty.

     In determining whether the violations here are serious, the
decision of the Commission  in  Consolidation Coal Company, 8
FMSHRC 890 (June 1986), is instructive.   The Commission held
in  that case that each instance where the permissible  level
of respirable  dust is exceeded, constitutes a violation that
is presumptively significant and substantial.  The Commission
stated  that  Congress  recognized  the  direct  relationship
between reductions  of respirable dust in mine atmosphere and
corresponding  reductions   in  the  incidence  of  disabling
respiratory  disease.  Id. at  896.   In  the  Mine  Act  the
Commission found  an  unambiguous  legislative declaration in
favor  of preventing disability from  pneumoconiosis  or  any
other  occupation   related   disease.    Id.  at  897.   The
Commission  recognized  that  the  onset  of respirable  dust
disease  was  incapable  of precise prediction,  proof  of  a
single  incident  of  overexposure   did   not   conclusively
establish  the  reasonable likelihood of respirable  disease,
and the development  and  progress of respiratory disease was
due  to  the  cumulative dosage  of  dust  a  miner  inhales.
Accordingly, the  Commission  decided  that  if the Secretary
proves  a  violative  overexposure  to  respirable   dust,  a
presumption arises that there is a reasonable likelihood that
the  hazard  created by the violation will result in illness,
i.e.  the  violation   is  presumed  to  be  significant  and
substantial.  The Commission's  decision  was affirmed by the
Court of Appeals in Consolidation Coal Company v. FMSHRC, 824
F.2d 1071 (D.C. Cir. 1987).

     In these cases the Commission's mandate is to determine the
existence   and   extent   of  gravity  attributable  to  the
violations.  As already set  forth, the operator violated the
Act by not submitting respirable  dust  samples that were not
voided by MSHA.  These samples are used to  test  whether the
respirable  dust  levels  in  the mine are within permissible
limits.   Without  samples,  the levels  of  respirable  dust
cannot be measured and it cannot be determined whether miners
have been exposed to excessive  dust  levels.  The taking and
submitting   of  valid  samples  therefore,   constitute   an
indispensable  part  of  the  process whereby compliance with
permissible dust levels is determined.    As  the  Commission
recognized  in Consolidation Coal Company, the prevention  of
pneumoconiosis   and   other   occupational  illnesses  is  a
fundamental purpose underlying the Mine Act.  Id. at 895.  It
is not possible to determine the effect of a single instance,
or a few instances, where valid  samples  are  not submitted.
However,  like  dust  levels,  gravity may be gauged  by  the
cumulative  effect  of  absent valid  samples.   Because  the
absence of valid samples  inhibits  the  testing  process and
compromises the ascertainment of respirable dust levels which
must  be  known  in order to prevent respirable illness,  the
failure to submit  such  samples  has  a  distinct element of
gravity.   I do bear in mind, however, that  the  absence  of
samples does not, in and of itself, show that there was
overexposure, rather only that the level of exposure could not
be tested.  Accordingly, I conclude the violations were of
ordinary gravity.

     Since the Commission did not disturb the judge's finding
that  the  operator  took the samples, I find  there  was  no
negligence with respect  to  this  aspect  of  the operator's
responsibilities.  The Commission stated that if the operator
mailed the samples it was not negligent, but that any failure
to place the samples in the mail would constitute some degree
of negligence.  As now appears from Stipulation  No.  5,  the
operator  has  no  proof  that  the samples were mailed.  The
unsupported  allegations  of  the  operator's  witnesses  are
insufficient to establish mailing and  consequently,  I  find
that   there  was  no  mailing  and  that  the  operator  was
negligent.[1]   In addition, the record  shows  that  in 1993
the  operator  received  seven  previous citations for absent
samples.  A citation was issued in four  of  the five  months
preceding  December 1993 when the first two citations in these
cases were issued.  All but one of the prior  citations  were
issued  to  other mines of  the operator, but it appears from
the record  that samples from the  operator's  various  mines
were  handled  by  the  same individuals and were mailed from
the  same  office  (Tr.  123, 138-142).  In  light  of  these
circumstances, I find that the prior citations for other mines
placed the operator on notice that  a  problem  existed  with
its mailing of  respirable samples.  The operator should have
taken  corrective  action.  The number of prior citations and
their proximity in time to  the ones in this case  compels  a
finding  that  negligence  was  high.  Lion  Mining  Company,
19 FMSHRC _____, No. PENN 94-71-R (November 20, 1997).


**FOOTNOTES**

     [1]: Even if the operator's assertions with respect to record
keeping and mailing were accepted, the operator would be guilty of
negligence for destroying the records.


     Based upon the prior citations, I find that the operator had
a significant history of prior violations with respect to the
mandatory standards involved in these cases.

     As the  Commission stated in its decision of remand, the
determination  of  the  amount  of  penalty  that  should  be
assessed  for  a  particular  violation  is  an  exercise  of
discretion   by   the  trier  of  fact,  bounded  by   proper
consideration of the  statutory criteria of section 110(i) of
the Act.  In addition,  it  is  well established that penalty
proceedings before the Commission  and its judges are de novo
and that the Secretary's proposed penalties  are  not binding
on the Commission and its judges.  Sellersburg Stone Company,
5 FMSHRC 287, 290-29 (March 1983), aff'd, 736 F.2d  1147 (7th
Cir.  1984); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150  (May
1984);  Missouri  Rock,  Inc.,  11  FMSHRC 136, 140 (February
1989); Doss Fork Coal Company, 18 FMSHRC  122,  130 (February
1996);  Wallace Brothers Inc., 18 FMSHRC 481, 483-484  (April
1996); Mechanicsville  Concrete,  Inc.,  18  FMSHRC  877, 881
(June 1996).

     As set forth herein, I have considered and made findings with
respect to the six criteria.  It is my reasoned judgment that
a  penalty of $850 is appropriate for each of the violations.
I believe  these  amounts  are  consistent  with the ordinary
degree  of gravity and high degree of negligence.   They  are
also consistent with the operator's small size.  In addition,
in reaching  these  amounts  I  have  taken  into account the
operator's   overall   and   specific   history  of  previous
violations,  its  good  faith  abatement and  the  fact  that
imposition  of  a  reasonable penalty  will  not  affect  its
ability  to  continue  in  business.   In  my  opinion  these
substantial penalties  are  sufficient  to  have  the desired
deterrent effect.

                                ORDER

     It is ORDERED that a penalty of $850 be assessed for  each of
the violations involved for a total penalty of $2, 550.

     It  is  further ORDERED that the operator PAY these penalties
within 30 days of the date of this decision.

                             Paul Merlin
                             Chief Administrative Law Judge

Distribution: (Certified Mail)

Brian Dougherty, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215

H. Kent Hendrickson, Esq., Rice & Hendrickson,
P. O. Box 980, Harlan, KY 40831

/gl