<DOC>
[DOCID: f:w-95-193.wais]

 
C.W. MINING COMPANY
May 2, 1996
WEST 95-193


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268


                           May 2, 1996

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :    Docket No. WEST 95-193
               Petitioner     :    A.C. No. 42-01697-03675
                              :
                    v.        :
                              :    Bear Canyon #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 Ad-
ministration, (MSHA), charges the Respondent, C.W. Mining Com-
pany, the operator of Bear Canyon #1 Mine, with the violation of
a respirable dust violation of the regulatory safety standard 30
C.F.R. § 70.100(a).

     The single citation at issue describes the violation as
follows:

          Based on the results of five valid dust sam-
          ples collected by the operator, the average
          concentration of respirable dust in the work-
          ing environment of the designated occupation
          code 036 in mechanized mining united 003-0
          was 1.9 milligrams which exceeded the appli-
          cable limit of 1.2 milligrams.  Management
          shall take corrective actions to lower the
          respirable dust and then sample each produc-
          tion shift until five valid samples are taken
          and submitted to the Pittsburgh Respirable
          Dust Processing Laboratory.  Approved respir-
          atory equipment shall be made available to
          all persons working the area.

     At the hearing, counsel for the Secretary stated that an
older continuous miner, MMU 003-0, was operating under a reduced
respirable dust level of 1.2 milligrams of respirable dust per
cubic meters of air.  The operator placed this older machine in a
non-producing status and it was later scrapped.  A new continuous
miner was purchased and the new machine was also designated as
MMU 003-3.  MSHA inadvertently assigned the reduced standard of
the old machine, MMU 003-0, to the new machine.  The new machine
should have been operating on a 2.0 milligrams or respirable
level per cubic meters of air and not on the old reduced standard
of 1.2 milligrams applicable to the old machine.  When the oper-
ator sent in his samples on the new mechanized unit 003-3, the
average concentration of respirable dust was 1.9 milligrams which
was above the 1.2 milligrams standard which had erroneously been
assigned to the new machine but within the correct 2.0 milligrams
standard.

     Thus, it was clear that the citation was issued in error.
Consequently Citation No. 9997061 is vacated.

                              ORDER

     Citation No. 9997061 is VACATED and this case, Docket No.
     WEST 95-193 is DISMISSED.


                              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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