<DOC>
[DOCID: f:w-94-452.wais]

 
C.W. MINING COMPANY
May 2, 1996
WEST 94-452


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                      1244 SPEER BOULEVARD #280
                        DENVER, CO 80204-3582
                    303-844-5266/FAX 303-844-5268


                             May 2, 1996

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :    Docket No. WEST 94-452
               Petitioner       :    A.C. No. 42-01697-03669
                                :
          v.                    :    Bear Canyon No. 1
                                :
C.W. MINING COMPANY,            :
               Respondent       :

                             DECISION

Appearances:  Robert Cohen, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia,
              for Petitioner;
              Carl E. Kingston, Esq., Salt Lake City, Utah,
              for Respondent.

Before:  Judge Cetti

     This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. the "Act."  The
Secretary of Labor on behalf of the Mine Safety and Health Admin-
istration, (MSHA), charges the Respondent, C.W. Mining Company,
the operator of the Bear Canyon No. 1 Mine with four regulatory
safety violations found in Part 75 Title 30 Code of Federal
Regulations.

     Respondent filed a timely answer denying each of the alleged
violations.  Pursuant to notice to the parties, this matter came
up for hearing in Salt Lake City on April 2, 1996.

     At the hearing, counsel for the Secretary stated that
Cita-tion No. 3588363 is a 104(d)(1) citation for an alleged
inade-quate preshift examination for the second east pillar
section of the mine.  As part and reason for the inadequate
preshift exam-ination this citation mentions two other
citations, Nos. 3588361 and 3588362, not in this docket
which describe the actual condi-tions that were cited but
allegedly were not observed in the preshift examination.
These two underlying citations were in another docket heard
by a different judge, i.e. Docket No. WEST 94-380.  With
respect to the instant Citation No. 3588363, coun-sel for
the Secretary stated:

          That based on the decision in WEST 94-380 we
          reviewed again the instant citation for in-
          adequate preshift examination and "because
          the two underlying citations have been
          changed now, and the (other) Judge held that
          the loose coal dust violation was a Non S and
          S violation, we felt that we should reduce
          this particular (d)(1) citation to a 104(a)
          citation and remove the S and S findings and
          reduce the penalty from $2,800.00 to $200.00,
          and that's what the parties have agreed to."

     The remaining three violations issued for a violation of
sections 75.400, 75.1725(a) and 75.512 were discussed and 
reevaluated.  After speaking to the inspector, a more accurate
picture of the conditions stated in the citations was obtained.
The parties agreed to modify Citation No. 3588365 from a
104(d)(1) order to a 104(d)(1) citation and reduced the penalty
to $1,000.00 pointing out that the underlying 104(d)(1) citation
for the order no longer existed.

     The parties agreed on a penalty of $500.00 for Citation No.
3588367 and $500.00 for Citation No. 3588367.

     Upon review of the record, including the information given
at the hearing, I conclude the settlement agreed upon on the
record at the hearing is consistent with the criteria in section
110(i) of the Act.

                              ORDER

     In view of the foregoing it is ORDERED:

     1.  Citation No. 3588363 is modified to a 104(a) citation
     with the S&S finding deleted and as so modified is AFFIRMED
     and a penalty of $200.00 is assessed for this violation.

     2.  Order No. 3588365 is modified to a 104(d)(1) citation
     and as so modified is AFFIRMED and a penalty of $1,000.00 is
     assessed for the violation.

     3.  Citation No. 3588366 is AFFIRMED as written and a pen-
     alty of $500.00 is assessed for this violation.

     4.  Citation No. 3588367 is AFFIRMED as written and a pen-
     alty of $500.00 is assessed for this violation.

     It is further ordered that C.W. Mining Company is shall PAY
     the Secretary of Labor civil penalties in the sum of
     $2,200.00 within 30 days of this decision.


                                August F. Cetti
                                Administrative Law Judge


Distribution:

Robert Cohen, Esq.,
Office of the Solicitor, 
U.S. Department of Labor,
4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)

Carl E. Kingston, Esq.,
C.W. MINING COMPANY, 
3212 South State Street,
P.O. Box 15809, 
Salt Lake City, UT 84115
(Certified Mail)


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