<DOC>
[DOCID: f:l94-79.wais]

 
AMAX COAL COMPANY
May 29, 1997
LAKE 94-79


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          May 29, 1997

SECRETARY OF LABOR,           :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :     Docket No. LAKE 94-79[1]
             Petitioner       :     A. C. No.  11-00877-04034
                              :
                 v.           :
                              :
AMAX COAL COMPANY,            :
             Respondent       :
                              :     Mine:  Wabash Mine


                       DECISION ON REMAND

Before:  Judge Feldman

   On  August  19,  1994,  following a hearing on the merits, I
affirmed  the   significant  and  substantial (S&S) designation  in  Citation  No. 4054831,
and assessed a civil penalty of $309.00,  for the cited violation of the mandatory standard
in  30 C.F.R. � 75.400.  16 FMSHRC 1837.  The violation,   which   was   admitted   by  the
respondent   (Amax),   concerned  significant accumulations of loose coal  and  oil  soaked
loose  coal,  of   approximately  two  weeks' duration, on a Joy continuous miner.  Id.  at
1838-39,  1841-43.   Amax  sought  Commission review   of   the   S&S   determination   and
ultimately   participated  in  oral  argument before the Commission.

   On  August  28,  1996,  the  Commission   vacated   my   S&S determination and remanded
for  further  consideration  of  the evidencewith   respect  to  arguments  presented   on
appeal.
18  FMSHRC  1355,  1357-59.   The  thrust  of Amax's   argument   is   that  impermissible,
combustible   coal   dust  accumulations   on permissible pieces of  equipment  are not S&S
in   nature   because  the  equipment  is   a "potential," rather  than an "actual," source
of  ignition.   On remand,  I  concluded  the distinction between  actual  verses potential
sources  of  ignition was not dispositive  of the S&S question,  as  a  potential  ignition
source in an underground mine, when viewed in the  context  of continued mining operations,
can become an actual  source  of  ignition at any  time.  18 FMSHRC 1868, 1870-72  (October
1996).   In  this  regard, I noted it was the degree  of  proximity   of   the  combustible
material  to  the  potential ignition  source that was determinative  on  the issue of S&S.
Id. at 1871.  Consequently, I  determined the cited longstanding combustible material that
was  located  on a potential ignition  source constituted an  S&S  violation.  Id. at 1872-
73.

Amax's  petition  for review  of  the  remand decision was denied by the Commission.

   Amax petitioned for review in the  U.S. Court of Appeals for
the District of Columbia  Circuit.   On April26,  1997,  the  Secretary  moved  to dismiss
Amax's appeal as moot
because she had modified Citation No. 4054831 by     deleting    the    S&S    designation.
Accordingly,   on  May  8,  1997,  the  Court granted  the Secretary's  motion  to  dismiss
Amax's petition  as  moot  and  remanded this matter to the Commission for reassessment  of
the  appropriate  civil penalty.  Pursuant to the Court's Order,  this  proceeding was once
again remanded to me by the Commission on May 21, 1997.

   Civil penalties are assessed in accordance with the penalty
criteria  in section 110(i) of  the  Act,  30U.S.C. � 820(i).   The gravity of a violation
is  a  criterion  to  be   considered.    The Secretary's removal of the S&S designation is
a  tacit  admission  that the cited violation was  not  serious  in  nature.    Thus,   the
Secretary's  action  warrants a corresponding reduction in the degree of gravity associated
with  the cited condition.   Consequently,  a civil penalty  of $50.00 shall be imposed for
the subject citation.

                              ORDER

   In view of the above, IT IS ORDERED  that  Amax Coal Company
shall, within 30 days of the date of  this decision, pay a $50.00 civil penalty in satisfaction of
Citation No. 4054831.  Upon timely receipt of payment, Docket No. LAKE 94-79
IS DISMISSED.





                                                 Jerold Feldman
                                                 Administrative Law Judge

Distribution:

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

Ruben  R.  Chapa,   Esq.,   Office   of   the Solicitor,   U.S.  Dept.  of  Labor,  230  S.
Dearborn Street, 8th Floor, Chicago, IL 60604 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre,  301 Grant Street, 20th Floor,
Pittsburgh, PA 15219-1410 (Certified Mail)

                                                 /mca


**FOOTNOTES**

     [1]: This proceeding was consolidated  with  Docket No. LAKE
94-55, which is no longer at issue.