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[DOCID: f:pn99222.wais]

 
EIGHTY-FOUR MINING COMPANY
May 24, 2000
PENN 99-222


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           May 24, 2000

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. PENN 99-222
               Petitioner       :  A.C. No. 36-00958-04218
          v.                    :
                                :  Docket No. PENN 99-232
EIGHTY-FOUR MINING COMPANY,     :  A.C. No. 36-00958-04220
               Respondent       :
                                :  Mine No. 84

                            DECISION

Appearances:  Linda  M. Henry, Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia, Pennsylvania
              for Petitioner; Elizabeth S. Chamberlin, Esq., CONSOL
              Inc., Pittsburgh, Pennsylvania for Respondent.

Before:  Judge Weisberger

                      Statement of the Case

     These cases are before me upon Petitions for Assessment of
Civil Penalty, filed by the Secretary of Labor (Secretary)
seeking the imposition of a civil penalties against Eighty-Four
Mining  Company ("Eighty-Four") based upon citations  and orders
issued to Eighty-Four alleging violations of various mandatory
standards set forth in Title 30 of the Code of Federal Regula-
tions.  Pursuant to notice, the cases were heard in Pittsburgh,
Pennsylvania  on January 25 through  27, 2000.  On March 27, 2000,
the secretary filed a post-hearing argument and proposed findings
of fact. On March 29,  2000, Respondent filed a post-hearing brief
and findings of fact.[1]

I.  The Secretary's Evidence

     On  March  10,  1999, Inspector James Dickey  inspected  the
Eighty-Four  Mine's  6  North   Section.    Eighty-Four   used  a
continuous  miner and a three entry system to mine coal from  the
Pittsburgh seam  in  the  section.   The  section was mining coal
during  Dickey's inspection, and the  had produced  coal  on  the
previous shift.

     Dickey  walked  through  all  entries and crosscuts of the 6
North section during his inspection.   He observed "fine, dry and
coarse  coal  accumulations over the entire  section."   (Tr.  I.
77)[2]   In this  connection  he  testified  that   "[I']ve  been
inspecting for a number of years and this is probably some of the
worst accumulations  I've ever observed on a mine section."  (Tr.
I. 160) Miner walkaround  and Eighty-Four employee Dan Clark also
observed coal accumulations in all three entries.

     Dickey measured the accumulations  with  a  ruler  and  tape
measure.   He  indicated that the accumulations in the No.1 entry
were 1 to 3 � inches deep for a distance in excess of 120 feet in
length.  The accumulations  covered  an area of the mine floor 12
feet wide.

     Dickey also observed fine and coarse coal along both ribs of
the crosscut from No. 1 to No. 2 entries.   He observed a pile of
coal at the No. 1 entry side of this crosscut.   He  measured the
pile  as  5  to  6 inches deep, and 24 inches wide by 16 feet  in
length.

     The accumulations  along  the  inby  rib  measured  14 to 20
inches deep by 24 inches wide by 46 feet in length.  Dickey  also
measured  accumulations  of  coal  along  the  outby  rib.   They
measured  3  � inches deep and 8 to 11 inches wide for a distance
of 27 feet.  After  that  point, the coal measured 15 inches deep
by 8 inches wide for a distance of 22 feet.

     Dickey observed a pile  of  coal  20  inches deep, 35 inches
wide, and 5 feet in length where the No. 64 �  crosscut had holed
through to the No. 2 entry.  He observed another  pile of coal 20
inches deep, 5 feet wide, and 6 � feet long at the  outby  corner
of a 12 foot deep notch mined into the rib of the No. 2 entry.

     Dickey  observed  a  notch  in this area that had coal along
both ribs measuring 24 inches deep  by 35 inches wide. Also, coal
measuring 4 to 6 inches deep covered  the  entire  floor  of this
notch.

     In the No. 2 entry, Dickey observed an accumulation of  coal
which  measured  3  to  14  inches  deep along the left rib for a
distance of 140 feet.  He also observed  accumulations  along the
right rib which he measured as 14 inches deep by 20 inches  wide,
and  8  to 20 inches deep by 12 inches wide for the entire length
of the entry.   This coal was dry to the touch.  He also observed
a pile of coal which  he measured as 24 inches deep, 5 feet wide,
and 16 feet in length at  the mouth of the No. 2 entry.  The coal
was dry to the touch.

     Outby the crosscut in  the  No.  2  entry,  Dickey  observed
accumulations  which measured 4 to 6 inches deep, 6 inches  wide,
and 38 feet in length.  Accumulations measured 15 inches deep, 15
inches wide, and 6 feet in length along the left rib, and 8 to 10
inches deep, and  12  inches  wide  along  the  right  rib.  They
extended for a distance of over 100 feet.  This coal was  dry  to
the touch.

     Dickey observed coal along the inby rib of the crosscut from
No. 2 to No. 3 entry.  He measured this coal as 14 inches deep by
20  inches  wide  for  a distance of  7 feet, and 10 to 12 inches
deep for a distance of 20  feet.  He observed coal for a distance
of 20 feet along the outby rib  that was 10 to 12 inches deep and
20 inches wide.  This coal was both damp and dry.

     Along the left rib of the No.  3 entry, Dickey observed coal
which  measured 3 to 8 inches deep, and  12  inches  wide  for  a
distance of 92 feet.  In a notch along this rib, he measured coal
18 to 20 inches deep, 15 inches wide, and 6 feet in length.  This
coal was damp by observation and touch.

     Along  the  inby rib of the No. 64 crosscut, Dickey observed
coal measuring 8 inches  deep,  12 inches wide, for a distance of
46 feet in length.  The fan was located  in  this  crosscut.  The
coal was dry.

     Eighty-Four  mine  foreman Dan Jones confirmed that  he  saw
coal in the No. 3 entry.  He acknowledged that regarding one pile
of coal located in the No. 64 crosscut between the No. 2 to No. 3
entry,  "...we  should  have   cleaned."   (Tr.  II.  290)  Jones
acknowledged that the loader operators  weren't  doing "a hundred
percent job" on cleaning against the rib area.  (Tr. III. 14)

     Dickey testified that he was concerned about  the  equipment
in  the 6 North Section causing an ignition of the accumulations.
Dickey  observed  that  the  shuttle  car  cables  in the 6 North
section  wound and rewound constantly on the mine floor.   Dickey
testified  that  in  the  normal  course  of  mining, due to this
constant  movement, shuttle car cables are "very  likely"  to  be
damaged.  (Tr.  I.  166)  He  testified  that  the  "shuttle  car
cable...[could  cause]  a  dust  ignition  in this case when it's
located around deposits of fine dry coal."  (Tr. I. 165)

     Dickey  opined,  in  essence,  that  the accumulations  were
hazardous  due  to  the  extent  of  dry accumulations,  and  the
presence of ignition sources.  In this  connection,  he testified
that  continuous  miners  could  ignite  coal accumulations.   He
stated  that  in the normal course of mining,  continuous  miners
such as those at  the  Eighty-Four  Mine  used  drill  bits which
generate  sparks.   Dickey  stated that during mining, continuous
miners strike rock on the mine  floor,  and  also  strike sulphur
balls.  According to Dickey, this happens "all the time"  in  the
normal  course  of  mining.   (Tr. I. 164, 165) Dickey based this
observation on his experience inspecting,  and running a miner in
the Pittsburgh seam for eight years.

     Dickey testified that Eighty-Four Mine  had  five  ignitions
that  he  knew  about  prior to this inspection.  Three ignitions
occurred  in  the  two  years  prior  to  this  inspection.   Two
ignitions occurred during  the  operations  of continuous miners,
and one during the operation of a roof bolter.

     In the time period January to March 1999,  Eighty-Four  Mine
liberated  six  and  a half million cubic feet of methane in a 24
hour period.  It liberated  4,500  cubic  feet  a minute.  Dickey
measured 0.3 percent of methane at the face of No.  3  entry, 0.2
percent  methane  at  the face of the No.2 entry, and 0.2 percent
methane at the face of the No. 1 entry.

     Seven persons were  working  in  the No. 1 entry.  They were
all working in intake air.
Dickey testified that the accumulations  in  the  6 North Section
were  reasonably likely to result in an explosion or  mine  fire.
He testified  the  explosion  would  result in lost workdays, and
possibly even fatal injuries.

     According to Dickey and walkaround  Dan  Clark, they did not
see anyone cleaning accumulations at the time that  Dickey issued
the order.

     Nineteen citations or orders were issued to Eighty-Four mine
for violations of �  75. 400 for the period from September 1998 to
March 5, 1999.

     Dickey  had previously issued seven citations at  this  mine
for accumulations in the 6 North section of coal and coal dust on
the mine floor two months prior to the March 10, 1999 inspection.
Dickey had also  issued  citations  in  July  and August 1998 for
accumulations on the mine floor.

     Dickey   discussed   the   importance  of  monitoring   coal
accumulations with the operator's  management personnel after the
issuance of each of those citations  issued  in  January to March
1999, and July to August, 1998.  In addition, Dickey  spent  four
hours  with  managers Brad DeBusk and Michael Sinovich on January
29, 1999 discussing  accumulations.   Dickey told mine management
that they must clean during the mining  cycle.  He told them that
they would be issued citations if they did not clean up as mining
progressed,   "and  advised  them of the possibility  of  getting
unwarrantable citations." (Tr. I. 120)

     Dickey  had  these  conversations  with  "just  about  every
official at the coal mine."   (Tr.  I   160) According to Dickey,
Safety Manager Brad DeBusk indicated to him  that  he  understood
the  requirements,  and  would  tell the supervisors at the  mine
about them.

     Dickey testified that mine foreman Jones told him, referring
to his foreman, that "they knew they were supposed to clean up as
they mined." (sic) (Tr. I. 110)   As  a result of his inspection,
Dickey issued a number of orders and citations.


II.  Discussion

     A.  Order No. 7075382 (Docket No. PENN 99-232)

          1.  Violation of 30 C.F.R. �  75.400

     Order No. 7075382 issued by Dickey alleges a violation of 30
C.F.R. 400 which, as pertinent, provides  that  "coal  dust,  ...
loose  coal  and  other combustible material, shall be cleaned up
and not be permitted  to  accumulate  in  active working, ... .".
Dickey's testimony, corroborated in essential parts by Clark, set
forth,  based  upon  his observations and measurements,  detailed
dimensions and locations  of  coal  and coal dust in cited areas.
Further, according to Dickey, at various locations he touched the
accumulated material, and it was dry.   On the other hand, Steven
M.   Strange,   a   mine   inspector  for  the  Commonwealth   of
Pennsylvania, inspected the  6  North section on March 8, between
9:00 a.m. to 12:00 p.m.  He indicated that mining was in progress
at the time, and he described the  area  as  being  in  very good
condition.   He  indicated  that  his  notes  only set forth some
spillage  on  the ribs.  However, his testimony is  not  accorded
sufficient  weight   to   rebut  or  impeach  Dickey's  testimony
regarding the conditions observed  by  him,  inasmuch as Dickey's
observations were made prior to the time the order  he  issued at
issue,  i.e.  9:10 a.m.  In contrast, Strange indicated generally
that his inspection  was between the hours of 9:00 a.m. and 12:00
p.m. but did not specifically  testify that any observations that
he made were prior to the abatement of the cited conditions.

     Daniel Jones, the Eighty-Four  mine  foreman  who was on the
section  at  issue  at  approximately  10:00  a.m., on March  10,
observed that the No. 3 entry was "cleaned petty  good"  (Tr. II.
281), that in "intermittent areas" (Tr. II. 281) there was  loose
coal  3  inches  by  3 inches by 6 inches where the rib meets the
floor, that there was no float coal dust, and that the conditions
at the No. 3 entry were  normal in the cutting sequence.  He also
described damp chunks of coal  on  the  floor  of the 64 crosscut
between the second and third entries, and maintained  that  these
were not hazardous.  He opined that no cleaning was necessary  in
the  No.  3,  entry  or  the  64  crosscut.   He also opined that
although there were accumulations near the fan,  the material was
only  damp  fine coal dust that did not present any  hazard.   He
described conditions  in  the No. 2 entry at the 64 � crosscut as
containing "intermittent" areas of coal 3 inches by 3 inches by 6
feet.  However,  he  did  not  specifically  contradict  Dickey's
testimony regarding the specific  accumulations  he  observed and
measured.    Similarly,  neither Paul Havrilesko, a mechanic  who
worked the midnight to 8:00  a.m.  shift  on  March  10, nor John
Jakubic, the 6 North section foreman who also was present  on the
morning  of  March 8, adduced testimony of sufficient specificity
to  contradict   Dickey's   testimony  regarding  the  conditions
observed and measured by him at specific locations in the area at
issue.  Neither have Harvilesko  nor  Jakubic  nor  any  other of
Respondent's  witnesses presented a different version of measured
accumulations from  that  testified to by Dickey.  Nor did any of
Respondent's witnesses contradict  Dickey's  testimony  regarding
the  specifics  of  the  accumulations  observed  by  him  at the
locations   cited,   at   the   time   of  his  observations  and
measurements.   Accordingly  I  find that Dickey's  testimony  in
these  regards  has not been contradicted  or  impeached.   Thus,
based upon Dickey's testimony I find that as of the date and time
cited, there were  extensive  areas  of  accumulated coal dust in
various   locations   in   the  cited  areas.   Some   of   these
accumulations were dry.  Further,  based  on  Dickey's testimony,
that was not impeached, contradicted or rebutted, I find that the
cited areas contained ignition sources.  Hence, I find within the
context  of this record, that the accumulations  were  hazardous.
I thus find  that  Eighty-Four was in violation in Section 75.400
supra.

          2.  Significant and Substantial

     A "significant  and  substantial"  violation is described in
section 104(d)(1) of the Mine 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."
30 U.S.C.  �  814(d)(l).   A  violation   is  properly  designated
significant and substantial "if based upon  the  particular facts
surrounding  the  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 825 (April 1981).

     In  Mathies  Coal  Co., 6 FMSHRC 1, 3-4 (January 1984),  the
Commission explained its  interpretation of the term "significant
and substantial" as follows:

          In  order  to establish  that  a  violation  of  a
     mandatory   safety    standard   is   significant   and
     substantial  under National  Gypsum  the  Secretary  of
     Labor must prove:   (1)   the underlying violation of a
     mandatory  safety standard;   (2)   a  discrete  safety
     hazard--that  is,  a  measure  of  danger  to  safety--
     contributed  to  by  the  violation;  (3)  a reasonable
     likelihood that the hazard  contributed  to will result
     in an injury; and (4)  a reasonable likelihood that the
     injury  in  question  will  be of a reasonably  serious
     nature.

     In United States Steel Mining  Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

     We have explained further that the third element of the
     Mathies formula "requires that the  Secretary establish
     a reasonable likelihood that the hazard  contributed to
     will result in an event in which there is  an  injury."
     U.  S.  Steel  Mining  Co., 6 FMSHRC 1834, 1836 (August
     1984).  We have emphasized that, in accordance with the
     language of section 104(d)(1),  it  is the contribution
     of a violation to the cause and effect of a hazard that
     must  be  significant  and  substantial.    U. S. Steel
     Mining   Company,  Inc.,  6 FMSHRC 1866,  1868  (August
     1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).

     As noted above,  the  record  establishes  a  violation of a
mandatory safety standard.  Further, due to the extensiveness  of
the  accumulations,  and  considering  the  fact that some of the
accumulated  coal  dust  was  dry and constituted  a  combustible
material, I find that the second  element  set  forth  in Mathies
supra has been met.

     Clete  Stephan,  an expert in the area of fire and explosion
hazards, testified that, in general, in order for an explosion to
occur five elements are  necessary.   He  listed  these  as fuel,
heat, oxygen, suspension of fuel, and confinement.  The fact that
men  were  working  in  the  area  without  any oxygen supplement
indicates that oxygen existed in sufficient quantities to sustain
life.   According  to  Stephan's uncontradicted  testimony,  this
amount oxygen was sufficient  to support combustion of methane or
coal dust.  Further, it is not  contradicted that confinement was
present as the underground mine presents  a confined environment.
Moreover, Eighty-Four did not rebut or contradict  the  testimony
of Dickey regarding the significant liberation of methane  at the
mine,  in  the  time  period January through March 1999.  Nor did
Eighty-Four rebut, impeach, or contradict Dickey's testimony that
shuttle car cables are  "very likely" to be damaged and can cause
a dust ignition when they are located around deposits of fine dry
coal, and that the drill  bits of the continuous miner, in normal
operations,  generate  sparks.   I  thus  find  that  the  record
establishes the existence  of several ignition sources.  Further,
I find, based on Dickey's testimony,  which  was not impeached or
contradicted,  that he had observed dust in suspension.   I  thus
find that all the  necessary  elements for an explosion to occur,
as testified to by Stephan and  not  impeached  or  contradicted,
were   present.    Hence,   I   find,  taking  into  account  the
extensiveness of the accumulations,  as  well as the existence of
all  the  elements  necessary for combustion  or  explosion,  the
existence of a confluence  of factors present which establish the
third element of Mathies supra, i.e. a reasonable likelihood that
the hazard contributed to i.e.  a  fire  or  an  explosion, would
result  in an injury.  (See Texasgulf, Inc., 10 FMSHRC  498,  501
(1988).   Due  to  the nature of a fire or explosion and confined
space, and given the  presence  of  miners in the section, I find
that there was a reasonable likelihood  that  a  resultant injury
would  be  of  a  reasonably  serious  nature. Thus, taking  into
account all the above I find that, within  the  framework of this
evidence,  it  has  been  established  that  the  violation   was
significant and substantial.

          3.  Unwarrantable Failure

     In order to sustain a finding of a unwarrantable failure, it
most  be established by the Secretary that the violation resulted
from Eighty-Four's  "aggravated  conduct".  (Emery Mining Corp. 9
FMSHRC 1997 (1987).  Eighty-Four, in asserting that the Secretary
has not met this burden, refers to  the  testimony  of Jones that
the   accumulations   were   being  removed  "in  an  established
systematic fashion".  Eighty-Four refers also to the testimony of
Jones that it had instituted a  requirement for crews to clean up
as they mined rather than waiting for the scraper crew as was the
previous  practice.   Also,  that  the  crews'  foremen  received
training in this regard.  Additionally, Eighty-Four refers to the
testimony  of  Strange  that, the condition  of  the  section  in
question had been improving  that  the  section  was heading "big
time, in the right direction since the mine had been  sold." (Tr.
II. 196).

     I note that Jones indicated that the conditions in the No. 3
entry  were  normal  in  the  cutting  sequence, and that in  his
preshift examination he did not see any  hazards  to be reported.
I  also  take  cognizance  of  Jakubic's  testimony that  he  had
observed  the loader cleaning in the No. 1 entry  shoveling  both
ribs in the  64  � crosscut.  He also explained the difficulty in
additional shoveling  due  to  the  confined area that existed in
normal operations.

     On the other hand, Eighty-Four did  not  contradict or rebut
Dickey's  testimony  regarding the warning that he  gave  Eighty-
Four's management on occasions  prior  to  the  date  in question
regarding  accumulations.   Further,  importantly,  I  note   the
extensiveness   of   the  accumulations,  and  according  to  the
testimony of Dickey their  obviousness.  Within this context, and
especially noting the previous  warnings  given to Eighty-Four, I
find that it has been established that the  violation  herein was
as the result of Eighty-Four's unwarrantable failure.

          4.  Penalty

     For the reasons set forth above, (II. A (2)) infra, I find
that the gravity of the violation was high.  Also, for the reason
set forth above (II. A (3)) infra, I find that the level of
Eighty-Four's negligence was more than moderate.  Taking into
account the additional factors set forth in Section 110(i) of the
Act as stipulated to the parties, I find that a penalty of $3,500
is appropriate for this violation.

     C.  Order No. 7075384 (Docket No. PENN 99-232)

          1.  Violation of 30 C.F.R. �  360(b)

     Order No. 7075384 alleges a violation of 30 C.F.R. �
75.360(b), which requires a person conducting a preshift
examination, to: "...examine for hazardous conditions, ... .".
For the reasons set forth above, (II. A (3) infra,)) I have
concluded that the record establishes that there existed
hazardous accumulations when cited by Dickey.  There is no
evidence in the record that the full extent of these conditions
was noted in the preshift report.  Accordingly, I find that it
has been established that Eighty-Four did violate Section
75.360(b) supra.

          2.  Significant and Substantial

     All the factors discussed above, II A(2) infra, that
provided a basis for the findings that the cited accumulations
was a significant and substantial violation, apply with equal
force to provide a basis for that a finding that the failure to
preshift these conditions was similarly significant and
substantial.  Hence, essentially for the reasons set forth above,
II (A)(2), infra, I conclude that the violation was significant
and substantial.

          3.  Unwarrantable Failure

     All the factors discussed above, II. A(2) infra, that
provided a basis for the finding that the cited accumulations were
the result of Eighty-Four's unwarrantable failure, apply with
equal force to provide a basis for that a finding that the failure
to preshift these conditions was similarly an unwarrantable
failure.  Hence, essentially, for the reasons set forth above II.
A(3) infra, I find the violation herein of Section 360(b) supra,
was as a result of Eighty Four's unwarrantable failure.

          4.  Penalty

     For the reasons set forth above, II. A(4) infra, I find that
the gravity of the violation was relatively high, and the
negligence was more than moderate.  Taking into account the
remaining statutory factors stipulated to by the parties, I
conclude that a penalty of $3,500 is proper for this violation.

     D.   Order No. 7075383 (Docket No. PENN 99-222)

          1.  Violation of 30 C.F.R. �  403

     Additionally, Dickey issued an order alleging a violation of
30 C.F.R.�  75.403 which requires, as pertinent, as follows:
"...where rock dust is required to be applied, it shall be
distributed upon the top, floor, and sides of all underground
areas of a coal mine and maintained in such quantities that the
incombustible content of the combined coal dust, rock dust, and
other dust shall be not less than 65 per centum, ... .".

     Dickey's unimpeached and uncontradicted testimony establishes
that he took rock dust samples from two locations.  A dust
sampling lab report for the two samples taken by Dickey indicates
that the incombustible content of the samples to have been 45.3
and 41.5 respectively.  I find no merit in Eighty-Four's argument
that these result should be invalidated because Dickey did not
obtain representative band samples.  Section 75.403, supra does
not require such samples, nor has Eighty-Four cited any binding
legal authority that requires this method of sampling to be
performed in order to sustain a violation.  I thus find, based
upon Dickey's testimony and the laboratory test results, that it
has been established that Eighty-Four violated Section 75.403
supra.

          2.  Significant and Substantial

     All the factors discussed above II. A (2) infra , that
provided the basis for the finding that the cited accumulations
was a significant and substantial violation, apply with equal
force to provide a basis for a finding that the violation at issue
was significant and substantial.  Hence for the reasons set forth
above, II. A (2) infra I find that the violation was significant
and substantial.

          3.  Unwarrantable failure

     There is no evidence in the record that Eighty-Four had
received any warnings specifically regarding the incombustible
content of rock dust.   Nor is there evidence that it had been
recently cited for this condition.  There is no evidence in the
record as to how long a period prior to Dickey's inspection the
incombustible content in the cited area had been not in compliance
with Section 403, supra.  Further, the record does not establish
that Eighty-Four knew of this condition.  Nor does it convincingly
establish that Eighty-Four should reasonably have known of this
condition.  Dickey testified that the accumulations that he
observed "...appeared not to have an incombustibility content of
at least 65 percent".  He did not explain the basis for this
opinion or conclusion.  Hence the record is devoid of sufficient
evidence to predicate a finding that the objective conditions of
the dust were such that a reasonably prudent experienced miner
would have concluded that the rock dust incombustibility content
was not within the regulatory parameters.  Within this context, I
find that it has not been established that the violation was as a
result of Eighty-Four's unwarrantable failure.

          4.  Penalty

     For the reasons set forth above II. D (2), infra I find that
the gravity of the violation was relatively high.  Also, for the
reason set forth above II. D(3), infra I find that the level of
negligence was more than low.   Considering these factors as well
as remaining factors in Section 110(i) of the Act as stipulated by
the parties, I find that a penalty of $800 is appropriate.

     E.  Citation 7075381 (Docket No. PENN 99-222)

          1.  Violation of 30 C.F.R. �  75.370(a)(1)

     Dickey testified that in his inspection he observed dust
accumulations that were dry and dusty in the No. 1 entry that
extended about 275 feet from the belt tail inby to the loader.  He
noted that dust went into the air when he walked in the area.
Clark essentially corroborated Dickey's testimony in these
regards.  Dickey issued a citation alleging a violation of 30
C.F.R. �  75.370(a)(1) which requires the operator to follow its
approved ventilation plan.  Part 75.371(u) of the plan provides,
as pertinent, that "section haulages are hosed down with water as
needed."

     Havrilesko testified that in the shift prior to Dickey's
inspection, he watered the No. 1 entry commencing at the crusher
and continuing inby for 125 feet.  I find this testimony
insufficient to contradict the testimony of Dickey, regarding his
observations at the time he issued his citations.  Further,
although Harvilesko might have watered over a 125 foot distance
Dickey observed dry conditions for 275 feet.  Similarly, Jakubic
testified that in his preshift examination of the No. 1 entry he
noted that it was still damp.  He also testified that he did not
observe any dust in the air from shuttle car movement.  This
testimony is not sufficient to rebut the testimony of Dickey, as
corroborated by Clark, regarding the conditions observed by him at
the time that he made his observations.  Accordingly, I accept
Dickey's testimony, and based upon his testimony I find that
Eighty-Four was in violation of its plan, and hence was in
violation of Section 75.370(a)(1) supra.

          2.  Significant and Substantial

     According to Dickey the dust that he cited was recognized by
him be drill dust i.e., dust that came from the roof in the
bolting process.  According to Dickey, the rock in the immediate
roof at the mine in question contains silica which is known to
cause severe lung diseases.  He also indicated that the cited area
where he observed the dust in suspension was in an entry
ventilated by the intake air which would eventually makes its way
inby to the face, affecting all seven persons working at the face
during the shift.  None of this testimony was effectively
impeached or contradicted by any of Respondent's witnesses who
were present at the time Dickey made his observations.  Thus, I
find that within the framework of this evidence adduced by Dickey,
as well as for the reasons set forth above, II A(2) infra, that
the violation was significant and substantial (see Mathies,
supra).

          3.  Penalty

     Inasmuch as the violative condition was reasonably likely to
have led to severe lung disease, I conclude that gravity of the
violation was relatively high. The level of Eighty-Four's
negligence should be mitigated to some degree based upon the fact
that the Eighty-Four's management made some efforts by assigning
Harvilesko to water the area in the midnight shift prior to the
time cited by Dickey.  Indeed, Harvilesko testified that he
watered approximately 125 feet in the entry at issue rib to rib
for two hours during the midnight shift. Taking these factors into
account as well as the remaining statutory factors as discussed
above, I find that a penalty of $450 is appropriate.

     F.  Citation Nos. 7059549, 7059552, 7059556, and 7076858
(Docket No. PENN 99-222)

     Petitioner has filed a motion to approve a settlement
agreement pertaining to these citations.  A reduction in penalty
from $832.00 to $165 is proposed.  It also is proposed to vacate
Citation No. 7076848.  I have considered the representations and
documentation submitted, and I conclude that the proffered
settlement is appropriate under the criteria set forth in section
110(i) of the Act, and find that the penalties proposed for these
citations are appropriate.

                              ORDER

     It is ORDERED that Order No. 7075383 shall be reduced to a
section 104(a) citation that is not significant and substantial.
It is further ORDERED that Citation No. 7076848 be VACATED.  It is
further ORDERED that within 30 days of this decision, Eighty-Four
shall pay a total civil penalty of $8,415.


                              Avram Weisberger
                              Administrative Law Judge


Distribution: (Certified Mail)

Linda M. Henry, Esq., Office of the Solicitor, U. S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104

Richard Vukas, Esq., CONSOL Inc., Consol Plaza, 1800 Washington
Road, Pittsburgh, PA 19104
nt

**FOOTNOTES**

     [1]:At  the  conclusion  of  the  hearing,  the  parties were
informed  by  the  undersigned  that, subsequent to the filing  of
proposed findings of fact, the parties  shall  file  responses  to
other  sides'  proposed  findings of fact.  To date, neither party
filed any response.

     [2]:Tr. I. refers to  the  transcript  of  the  hearing  held
January  25; Tr. II. to the transcript of the hearing held January
26, and Tr. III. to the transcript of the hearing held January 27,
2000.