.
CONSOLIDATION COAL COMPANY
December 2, 1998
WEVA 93-77-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           December 2, 1998

CONSOLIDATION COAL COMPANY,     :  CONTEST PROCEEDINGS
                     Contestant :
          v.                    :  Docket No. WEVA 93-77-R
                                :  Citation No. 3109521; 11/09/92
SECRETARY OF LABOR,             :
    MINE SAFETY AND HEALTH      :  Docket No. WEVA 93-78-R
    ADMINISTRATION, (MSHA),     :  Order No. 3109522; 11/09/92
                     Respondent :
          and                   :  Docket No. WEVA 93-79-R
                                :  Order No. 3109523; 11/09/92
UNITED MINE WORKERS OF AMERICA, :
    (UMWA),                     :  Docket No. WEVA 93-80-R
                     Intervenor :  Order No. 3109524; 11/09/92
                                :
                                :  Blacksville No. 1 Mine
                                :  Mine ID No. 46-01867
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :  Docket No. WEVA 93-146-B
                     Petitioner :  A.C. No. 46-01867-03938
          and                   :
                                :  Docket No. WEVA 93-146-C
UNITED MINE WORKERS OF          :  A.C. No. 46-01867-03938
     AMERICA (UMWA),            :
                     Intervenor :  Blacksville No. 1 Mine
          v.                    :
                                :
CONSOLIDATION COAL COMPANY,     :
                     Respondent :

                             DECISION

Appearances:  Robert S. Wilson, Esq., Office of the Solicitor, 
              U.S. Department of Labor, Arlington, Virginia, on
              behalf of the Secretary;
              Judith Rivlin, Esq., United Mine Workers of America,
              Washington, D. C., on behalf of the Intervenor;
              David J. Hardy, Esq., and William Miller, Esq., 
              Jackson & Kelly, Charleston, West Virginia, on behalf
              of Consolidation Coal Company.

Before:  Judge Melick

     A methane explosion at the production shaft of the
Consolidation Coal Company (Consol) Blacksville No. 1 Mine on
March 19, 1992, caused  the death of four miners and injuries to
two others.  Following an investigation, the Secretary of Labor
issued citations and orders for  alleged violations under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq., the "Act."  These proceedings, formerly consolidated under
Master Docket WEVA 93-146-B, concern one of those citations and
three of the orders issued by the Secretary to Consol and the
civil penalties of $200,000 proposed by the Secretary for the
violations charged therein.  The general issue before me is
whether Consol violated the cited regulatory standards and, if
so, whether those violations were "significant and substantial"
and/or the result of Consol's "unwarrantable failure" to comply
with those standards.  If violations are found it will also be
necessary to determine the appropriate civil penalty to be
assessed considering the criteria under Section 110(i) of the
Act.

     At the time of the explosion, the Blacksville No. 1 Mine was
under the administrative control of Consol's Northern West
Virginia Regional Office (Regional Office).  Van Pitman was
manager in charge of operations for the Regional Engineering
Office within the Regional Office.  Rodney Baird and Russell
DeBlossio worked in the Environmental Quality Control Department
within the Regional Engineering Office and were supervised by
Edward Moore.  Charles Bane was regional manager for safety in
the Regional Office and John Yerkovich was his assistant.  Donzel
Ammons was vice-president for Blacksville operations under the
Regional Office and had supervisory authority over operations at
both the Blacksville Nos. 1 and 2 Mines.  Daniel Quesenberry was
Ammon's assistant.  Robert Levo was superintendent of the
Blacksville No. 1 Mine and Jack Lowe was its mine foreman.

     In March 1992, the Blacksville No. 1 Mine was known to be
liberating "excessive quantities of methane" as defined in
Section 103(i) of the Act as it was liberating over one million
cubic feet of methane in a 24-hour period.  The mine ceased coal
production in June 1991, and, in early 1992, was closing down.
Activities at the mine during January through March 1992,
therefore consisted primarily of maintenance, equipment
withdrawal, supply recovery and coal loading from surface
stockpiles and silos.  The Department of Labor's Mine Safety and
Health Administration (MSHA) was informed of Consol's intent to
abandon the mine by Charles Bane's letter dated February 3, 1992
(Resp. Exh. No. 3).  In that letter, MSHA was advised that the
mine was in the process of withdrawing production equipment and
that all the shafts would be sealed simultaneously after the
underground areas of the mine had been vacated.

     In February 1992, Consol officials decided to install an
800-foot-long dewatering pipe into the production shaft to
prevent water from accumulating underground and from seeping into
adjacent mines.  The production shaft had been used to transport
coal out of the mine by a skip hoist.  According to the approved
ventilation plan, the shaft had also been intaking 187,880 cubic
feet of air per minute (cfm).  The Regional Engineering Office
was responsible for installing the pipe.  Van Pitman, regional
manager of engineering, directed Ed Moore, supervisor of
environmental quality control, to arrange for its installation.
Moore then contracted with independent contractor M.A. Heston to
install the pipe and ordered the materials needed to complete the
project.

     Mine management was responsible for constructing a working
platform over the shaft.  Ammons decided to cap the production
shaft before withdrawing from the mine in order to facilitate the
installation of the dewatering pipe.  He assigned the project to
Quesenberry, his assistant, who arranged for independent
contractor Forest Construction to perform the job.  Leon Slough,
a foreman for Forest Construction, was responsible for the actual
construction of the cap.

     Contact with MSHA on matters relating to ventilation plans
normally went through Consol's regional safety office.  Terry
Palmer, coal mine inspector/ventilation, was the MSHA contact on
ventilation matters for the Blacksville No. 1 Mine.  John
Yerkovich, Consol's regional safety inspector, verbally informed
Palmer of the proposal to cap the production shaft.  Palmer
testified that he told Yerkovich that the change in ventilation
which would result from capping the shaft would have to be
approved by MSHA's district manager as a revision to the
ventilation plan.  Yerkovich testified on the other hand, that he
was told by Raymond Strahin, also an MSHA ventilation inspector,
that mere written notification of this change would be
sufficient.  Strahin denied making any such statement.

     In any event, following his conversation with Palmer,
Yerkovich submitted a letter to MSHA dated March 3, 1992,
regarding the capping of the production shaft (Gov't Exh. No.
27).  This letter did not indicate when the production shaft
would be capped nor did it indicate that a welded dewatering pipe
would be installed through the cap and into the shaft.  Consol
proceeded to build the cap over the production shaft without
receiving any response from MSHA to the March 3, 1992, letter.
Palmer later drafted a letter in response to the March 3rd letter
for the signature of MSHA District Manager Ronald L. Keaton
(Gov't Exh. No. 29).  Although the letter was drafted the week
before the explosion and was dated March 16, 1992, it was not
actually mailed to Consol until March 19, 1992, after MSHA had
been notified of the explosion.

     Palmer recommended to Keaton that they seek additional
information about capping the production shaft because it was
unclear why Consol was deviating from its original plan to cap
all the shafts at the mine.  According to Bane's February 3,
1992, letter, Consol originally planned to cap all the shafts
after the underground areas of the mine had been vacated (Resp.
Exh. No. 3).  Palmer believed that capping the shaft required
approval by the district manager because it changed the
information submitted in the ventilation plan as required by the
regulations, then at 30 C.F.R. � 75.316.  Specifically, on page
five of the approved ventilation plan the production shaft was
reported to intake 187,800 cfm of air  (Gov't Exh. No. 26).
Palmer believed that section 75.316 required MSHA approval of
revisions to ventilation plans.  The previous ventilation plan
approval letter also included the notation that "all changes or
revisions to the ventilation plan must be submitted and approved
before they are implemented" (Gov't Exh. No. 26).

     As noted, Consol arranged for Forest Construction to design
and construct the cap for the production shaft and contracted
with M.A. Heston to install the dewatering pipe into the shaft
(Gov't Exh. No. 8).  Consol had frequently used the services of
these as well as other independent contractors.  Indeed, all jobs
done by Consol's Regional Engineering Department involved
independent contractors.  On this job, Forest Construction had
hourly crews working exclusively for Consol, and Consol directed
their work.  Leon Shough, foreman for Forest Construction also
reported to Consol foreman John Carter on a daily basis.  M.A.
Heston also worked for Consol almost on a daily basis.  They had
previously worked many jobs for Consol.  However, at the time
Moore contracted with M.A. Heston for this job neither he nor
DeBlossio was aware that M.A. Heston's employees had never taken
methane examinations.  In addition Michael Heston and James
Heston, respectively, testified that M.A. Heston's employees did
not have experience with mine ventilation and were not qualified
to make methane examinations.  Moore explained to Heston how the
job would be done, including the configuration of the support
structure, the preparation of the pipe segment, and how to seal
the area around the 16-inch dewatering pipe to prevent welding
sparks from entering the shaft.

     Officials from Consol, Forest Construction and M.A. Heston
conferred on methods to construct the cap to allow work to be
performed over the production shaft and to support the weight of
the dewatering pipe.  Initially, Consol's Regional Engineering
Department had suggested using a partial covering over the
production shaft, permitting additional ventilation to enter the
shaft.  A fireproof partition was also suggested to prevent
sparks from entering the shaft.  This was a procedure used
successfully at three other jobs.  Donzel Ammons decided however
to completely cap the shaft.  Officials from regional engineering
were not consulted on this decision and did not learn of it until
the cap had already been installed.  Vice president for
Blacksville operations, Dan Quesenberry, who was involved in
these early discussions, did not recall that any consideration
was given to using a partial cap.  The decision was made by
Ammons.

     The cap was built over the production shaft based on a
standard design previously used by Consol (Gov't. Exh. No. 24).
It was constructed of 1/4-inch steel plating welded onto six-inch
I-beams with concrete over the top and down the sides.  A 22-inch
square opening was left in the center through which the
dewatering pipe would be installed and a structure of 21-inch
steel I-beams was built to support the installation of the 16-
inch dewatering pipe.  In addition, two six-inch diameter steel
pipes were welded to the steel plate in the cap to provide
ventilation of the production shaft.  Each pipe projected three
feet above the cap and was topped with a valve and a six-inch
diameter plastic PVC pipe.  The PVC pipes added 10 feet to one
pipe and 8 feet to the other (See Gov't Exh. No. 34A).
Additional ventilation of the production shaft would be provided
by air entering around the dewatering pipe in the 22-inch
opening.

     Ammons (vice president of Blacksville operations) made the
decision to utilize the two six-inch pipes for ventilation.
This was standard procedure for capping a shaft the size of
the production shaft when sealing an area of the mine and
Ammons determined that these pipes would provide adequate
ventilation.  He relied upon his own experience.  He did not
consult with any of Consol's engineers or rely upon any
simulations or studies.  He did not know the methane
liberation rate in the shaft nor how much air was intaking
through the six inch pipes nor the velocity of that airflow.
Ammons assumed that the air intaking through one six-inch
pipe alone would have been sufficient to ventilate the
production shaft.  He had never been involved in a project
such as this where welded pipe segments were installed
through a cap.  Other Consol officials including
Quesenberry, Morrison, Pittman, Lowe, and Bane also
acknowledged that they had never been involved in a similar
project.

     Ammons told Quesenberry that he wanted threaded pipe to
be used for the dewatering pipe so there would be no welding
over the shaft.  He was concerned with igniting grease in
the shaft.  Although he maintained that he was not concerned
with a methane ignition, he acknowledged that he was aware
of the potential for methane in the shaft.  Quesenberry
later told the regional engineering office that he wanted
threaded pipe used to avoid cutting and welding over the
shaft.  After meeting with regional engineering officials,
Quesenberry understood that threaded pipe would be used.
Quesenberry later learned that they intended to use welded
pipe only after the pipe arrived at the mine.  When Ammons
learned that the pipe received was not threaded pipe, he
told Quesenberry to have it returned.  Ammons had also been
uninformed that the regional engineering office had decided
to use welded pipe rather than threaded pipe.  When the pipe
arrived, Ammons called Van Pitman, who explained to Ammons
that threaded pipe would not hold the weight of the casing.

     When Ammons assigned the capping job to Quesenberry he
maintains that he instructed him to be sure to put two pipes
in it and make sure everybody knew that those pipes were to
be left open for ventilation.  Ammons maintains that he
therefore assumed that Quesenberry would have informed M.A.
Heston's employees as well as Consol's personnel from
regional engineering, the mine and the regional safety
department of the necessity to keep the two pipes open.
Ammons claims that he also told mine superintendent Levo
that the two ventilating pipes were to remain open.  He did
not, however, personally ensure that those pipes were kept
open and survivors who had been working at the production
shaft testified that they were not informed of the
importance of the pipes (Tr. 126, 205, 437, 508).

     Quesenberry acknowledged, moreover, that he never informed
M.A. Heston's workers about the purpose for the ventilation
pipes.  In addition he could not remember discussing this
issue with Moore, Baird or DeBlossio.  Quesenberry also
could not recall whether Ammons told him to make sure that
the people working on the job knew that those pipes were to
remain open.  Quesenberry maintains that he did not learn
until after the explosion that one of the ventilation pipes
had been cut off and plugged.  He testified that if he had
been present at the worksite and saw that one of the pipes
had been closed, he would have stopped the work.  He was
shocked when he learned that one of the pipes had been cut.

     During the week of March 9, M. A. Heston personnel began
construction of the cap support structure and preparation
for the first segment of 16-inch pipe.  Consol regional
engineering officials, primarily Moore, instructed M. A.
Heston personnel on how to perform the  work.  According to
Moore, Consol designed the 21-inch I-beam support structure
based upon previous jobs.  On Thursday, March 12, Forest
Construction personnel began installing the steel framework
for the production shaft cap.  The 21-inch I-beam support
structure was placed on top of the cap using Consol's crane.
Concrete was then poured over the top of the metal portion
of the cap and over the sides.  The 21-inch I-beam support
structure protruded above the concrete.

     On March 13, Consol prevented the oncoming shift of
underground personnel from entering the mine while the steel
framework and decking for the production shift cap were
installed over the shaft.  Between 7:20 a.m. and 7:50 a.m.,
the effects of the ventilation change underground were
evaluated by Consol personnel.  The mine was deemed safe to
enter and  miners then proceeded underground around 8:15
a.m. to 9:00 a.m., to continue removing mine equipment.  The
evaluation of capping the production shaft consisted of the
same procedures as followed during a preshift examination
and took approximately 30 minutes to complete.  The fan
charts on the surface were also checked.  Those charts would
not, however, have shown the effects of capping on the
airflow within the shaft itself.

     Placement of the cap over the production shaft reduced the
airflow within the shaft from about 187,000 cfm to about
7,350 cfm (Gov't Exh's 53, pp 6-7 and 13, pp 19-20).  Mine
foreman Jack Lowe traveled underground to the bottom of the
production shaft at around 11:00 a.m.  He released a smoke
cloud from a smoke tube into the bottom of the shaft and
observed the smoke travel toward himself, indicating a drift
of airflow down the shaft.  He did not measure the velocity
of this airflow.  After the cap was installed over the
production shaft, three openings remained in the cap--the
two 6-inch diameter pipes and the one 22-inch diameter
opening.  All three openings were initially intaking air
into the production shaft.

     There is no evidence that any evaluation was done to
determine what effect the capping of the production shaft
had on the air flow within the shaft itself.  While Consol
officials Moore and DeBlossio testified that they believed
that two 6-inch pipes would provide adequate ventilation for
the production shaft they admittedly did not know the amount
of air intaking through the pipes and did not know the
amount of methane being liberated into the shaft.  DeBlossio
and Mine Superintendent Levo also both acknowledged that
such information  would be  necessary to determine the
adequacy of the ventilation in the shaft.  Indeed, Levo
testified that a reasonably prudent mining engineer would
want to know the amount of air intaking through the pipes to
make a determination of whether the ventilation was
adequate.

     Environmental Engineer Rodney Baird and Environmental
Technician Russell DeBlossio, from Consol's Regional
Engineering Department, were assigned to oversee the
installation of the dewatering pipe.  Baird was at the
worksite on Thursday, March 19, and was killed in the
explosion.  DeBlossio was at the worksite on Monday and
Wednesday but was not present at the time of the explosion.
Baird was certified to make methane examinations and had a
working methane detector in his truck at the worksite.
However, neither Baird nor DeBlossio had any experience in
underground ventilation.  DeBlossio was even unaware that
the Blacksville No. 1 Mine was considered to be a gassy
mine.

     DeBlossio testified that he and Baird spent the better part
of the day, on both Monday and Wednesday, at the production
shaft.  Although they were present to basically monitor job
progress, both DeBlossio and Baird participated in the
physical labor.  They helped line up the pipe when a new
segment was lifted over the shaft and helped place the
Thermoglass cloth around the pipe.  DeBlossio testified that
he believed that he had the authority to stop work if he
thought that M.A. Heston's employees were performing
unsafely.

     On Monday, March 16, M. A. Heston's employees arrived at
the mine to organize materials and set-up the worksite for the
installation of the 16-inch casing into the production
shaft.  M.A. Heston employees began installing the 16-inch
casing on Tuesday, March 17, following the  procedures
depicted in Government Exhibit No. 15.  This installation
process was  conceived by Consol based upon previous jobs.
These procedures were followed on March 18, and continued
until the explosion at approximately 10:18 a.m., on March
19.

     The first joint of 16-inch casing had been plugged to
prevent welding sparks from entering the shaft through the
pipe.  As each new length of pipe was added, the area around
the pipe was sealed with two steel plates cut to fit around
it and then with layers of Thermoglass cloth, to prevent
welding sparks from entering the shaft around the pipe
(Gov't Exh. No. 15 Drawings 2-7).  The steel plates and
Thermoglass cloth would be positioned around the casing just
before the weight of the casing was placed on the support
structure.  While these procedures were designed to prevent
sparks and hot materials from the welding process from
igniting grease and dust in the shaft, Consol officials were
also aware of the potential for methane in the shaft.  The
6-inch ventilation pipes were incorporated into the cap in
order to provide ventilation which was intended, at least in
part, to dilute methane in the shaft.  With the plugged 16-
inch casing in place and the steel plates and Thermoglass
cloth covering the area around the 16-inch casing, the
airflow within the production shaft was reduced to
approximately 790 cfm (Gov't Exh. No. 13, pp 21-22).

     On Tuesday, March 17, Rodney Baird and M. A. Heston
employees cut off one of the 6-inch vent pipes in the cap
because it was interfering with the placement of the 16-inch
dewatering pipe segments over the cap, thereby leaving 6 to
12 inches of the vent pipe extending above the cap.  A ball
of either Thermoglass cloth or burlap was then placed inside
the pipe and a second piece of the material was then wrapped
over top of the pipe and wired in place thereby sealing it.
With only one of the 6-inch vent pipes intaking air into the
production shaft, the airflow within the shaft was then
reduced to only about 400 cfm (Gov't Exh. No. 13, pp 22-23;
Gov't Exh. No. 53, p 11).

     Levo visited the production shaft site on several occasions
while the work was progressing.  On one of those occasions,
he observed that one of the two vent pipes was closed.
According to Levo, Baird explained that they were having
trouble swinging the segments of 16-inch pipe into position
because the vent pipe was in the way.  They discussed
cutting the pipe and installing a coupler on the pipe.  Levo
could not recall whether he told Baird of the importance of
keeping the pipe open.

     Later that day, Levo received a call, possibly from Baird,
requesting that a guillotine saw be brought to the
production shaft to cut the vent pipe.  Levo instructed Leon
Shough to deliver the saw to the production shaft.  Levo
knew that the saw was to be used to cut off one of the vent
pipes, but thought that a valve would be installed to allow
the pipe to remain open.  He never inquired, however, to
determine whether such a valve had been installed and he
never instructed Baird to reopen the pipe.  Levo assumed
that Baird would know enough to reopen the pipe but did not
know whether Baird had training or experience with
ventilation matters.  Baird's supervisor, Edward Moore also
knew that one of the 6-inch vent pipes was cut and either
covered or plugged.

     Installation of the dewatering pipe proceeded all day on
Wednesday, March 18, from around 7:00 a.m. to 7:00 p.m., and
resumed at approximately 7:30 a.m., on Thursday.  Baird and
DeBlossio were present at the production shaft for most of
the day on Wednesday.  Approximately 12 segments of pipe
were installed by Wednesday afternoon.  One welder was
working at the production shaft on Wednesday.  The same
procedures were followed on Thursday but two welders were
working.  The addition of the second welder reduced the time
needed to complete a joint from about  40 minutes or an hour
to about 25 minutes.

     Around 10:18 a.m., on March 19, there was a methane
explosion in the production shaft, completely destroying the
cap and damaging large portions of the shaft coping and the
lower support structure of the head frame.  Overcasts,
cribs, stoppings, and the rotary dump in the underground
areas within 100 feet of the shaft were also damaged.
Rodney Baird, Frederick Heston, Donald Glaspell, and Robert
Moran, who were working on or around the production shaft
cap, were killed and James Heston and Gordon Lawson were
injured.

     Both the Secretary's expert, John Urosek, and Consol's
expert, Donald Mitchell, concluded that, at the time of the
explosion, the airflow in the production shaft beneath the
cap had been reduced to no more than 400 cfm (Gov't Exh. No.
53, p 7 and 56, p 10).  While it is not disputed that one of
the two 6-inch ventilation pipes had been sealed, it is
unclear whether the second ventilation pipe was open and
intaking air at the time of the explosion.  Both experts
agree however that the amount of air flowing through one
six-inch pipe, about 400 cfm, would not have been sufficient
to dilute and render harmless the methane being liberated
from around the shaft (Gov't Exh. No. 53 p.11 Tr. 2276)

     Citation No. 3109521

     This citation, issued pursuant to section 104(d)(1) of the
Act, charges a "significant and substantial" violation of
the standard at 30 C.F.R. � 75.301 (1991) and alleges, in
essential part, as follows:[1]

     The volume and velocity of air was not maintained in
     sufficient amounts to render harmless and to carry away
     explosive gases.  An explosive methane/air mixture was
     allowed to accumulate in the production shaft which is
     a portion of the active workings of the Blacksville No.
     1 Mine.  The mine has a known history of methane
     liberation and, in addition, methane was being
     liberated from within the shaft itself.

                             * * * *

          On March 19, 1992, the methane accumulation was
     ignited as M. A. Heston,  Inc., employees performed
     welding operations during the installation of the 16-
     inch casing.  This violation was determined from
     information gathered during the investigation of the
     explosion at the production shaft of the Blacksville
     No. 1 Mine that occurred on March 19, 1992, which
     resulted in four fatalities.

     The cited standard, 30 C.F.R. � 75.301 (1991), provided in
relevant part as follows:

          All active workings shall be ventilated by a
     current of air containing not less than 19.5 volume per
     centum of oxygen, not more than 0.5 volume per centum
     of carbon dioxide, and no harmful quantities of other
     noxious or poisonous gases:  and the volume and
     velocity of the current of air shall be sufficient to
     dilute, render harmless, and to carry away, flammable,
     explosive, noxious, and harmful gases, and dust, and
     smoke and explosive fumes.

     Respondent argues that there was no violation of the cited
standard because the production shaft at issue was not within the
"active workings" of the mine.  It is undisputed that the
ventilation requirements set forth in 30 C.F.R. � 75.301 (1991),
indeed, apply only to "active workings" of an underground coal
mine.  The term "active workings" was defined at 30 C.F.R. �
75.2(g)(4) (1991) as "any place in a coal mine where miners are
normally required to work or travel."

     There is no evidence in this case that any person worked or
traveled or normally worked or traveled in the production shaft
after the shaft was capped on Friday, March 13, 1992.  The
Secretary nevertheless argues that it is sufficient that miners
were working and traveling above and below the shaft and that the
dewatering pipe, on which the miners above were working, extended
into the shaft.  In other words, the Secretary interprets the
words "above" and "below" to mean "in."  It is well established
however, that where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are
written unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to an
absurd result.  Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir. 1987); see also Utah Power & Light Co., 11 FMSHRC 1926, 1930
(October 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(August 1993).  The Secretary nevertheless maintains that her
interpretation is "reasonable" and therefore is entitled to
deference.  However, since there is no ambiguity in regard to use
of the term "in," the doctrine of deference is inapplicable.  In
any event, one would be hard pressed indeed to find the
Secretary's proffered interpretation to be reasonable.

     Under the circumstances the Secretary has failed to sustain
her burden of proving the elements of a violation of the cited
standard and the citation at bar must accordingly be vacated.


Order No. 3109522

     This order, also issued pursuant to section 104(d)(1) of the
Act, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. � 77.1112(b) (1991) and charges in
essential part as follows:

          Consolidation Coal Company (Consol) did not
     perform or require methane examinations at the capped
     Production shaft where M. A. Heston, Inc., an
     independent contractor (I.D. B48), was performing
     welding operations.  M. A. Heston, Inc. employees were
     positioned on top of the shaft cap performing welding
     operations during the installation of a 16-inch casing
     on March 17, 18, and 19, 1992.  The welding operations
     was observed by various Consol management personnel.
     Also, a Consol Environmental Engineer was present at
     the worksite nearly continuously observed by various
     Consol management personnel.  Also, a Consol
     Environmental Engineer was present at the worksite
     nearly continuously on the 17th and 18th and had
     arrived at the Production shaft site on the 19th.  The
     Consol Environmental Engineer directly participated in
     the working being performed by M. A. Heston, Inc.
     employees.  A methane detector that had been issued to
     and was in the possession of the Consol Environmental
     Engineer was available at the worksite.  No one
     conducted or required examinations for methane at any
     time.

                             * * * *

          The Production shaft had been capped on March 13,
     1992.  The 16-inch casing and other ventilation
     restrictions were introduced into the cap openings on
     March 17, 1992.  Calculations indicate that the
     ventilation of the shaft was significantly reduced from
     approximately 200,000 cubic feet of air per minute
     (cfm) to approximately 400 cfm.  The mine has a known
     history of methane liberations and, in addition,
     methane was being liberated form within the shaft
     itself.  This violation was determined from information
     gathered during the investigation of the explosion  at
     the Production shaft of the Blacksville No. 1 Mine that
     occurred on March 19, 1992, which resulted in four
     fatalities.

     The cited standard 30 C.F.R. � 77.1112(b), (1991)
provides as follows:

          Before welding, cutting, or soldering is performed
     in areas likely to contain methane, an examination for
     methane shall be made by a qualified person with a
     device approved by the Secretary for detecting methane.
     Examinations for methane shall be made immediately
     before and periodically during welding, cutting, or
     soldering and such work shall not be permitted to
     commence or continue in air which contains 1.0 volume
     per centum or more of methane.

     Consol maintains that there was no violation of the cited
standard because:  (1) methane was not likely to accumulate at
the location where welding was actually performed, i.e., above
the cap, and (2) welding was not performed below the cap, i.e.,
the area that was likely to contain methane on Thursday, March
19, 1992.  Consol's reading of the standard is however
unreasonably narrow and would clearly defeat the underlying
purpose of the standard.  As the Secretary correctly observes,
the clear purpose of the standard is to prevent welding
operations from igniting methane.  Accordingly the methane
examinations required by that standard must appropriately be made
in areas within the range or zone of  likely ignition from such
welding and, in this case, including the area beneath the cap.

     The Secretary has in this case established, and it appears
to be undisputed, that the area beneath the cap was an area
likely to contain methane under conditions that existed on March
19, 1992.  The methane explosion itself is prima facie proof of
this.  From air readings taken at the production shaft after the
accident, laboratory experiments and computer simulations, the
Secretary's ventilation expert, mining engineer John Urosek,
determined that with only one of the six-inch pipes intaking air
into the shaft, the volume of air was approximately 400 cfm
(Gov't Exh No. 13, 53).  This is corroborated by Consol's expert
in mine fires and explosions, Donald Mitchell, who agrees that
MSHA's analysis of the quantities of air passing into the
production shaft was fairly accurate (Respondent's Exh's No. 56
p. 9).  Urosek testified that an air flow of approximately 400
cfm correlates to an average velocity of approximately one-foot
per minute (Gov't Exh. No. 13 p 23 and Gov't Exh. 53 p. 11).
Urosek opined that such an air flow was inadequate to dilute,
render harmless and carry away methane being liberated from the
shaft.  As a result, it may reasonably be inferred that once one
of the six-inch vent pipes was closed, methane, which is lighter
than air, had begun accumulating under the cap.

     Mitchell corroborates Urosek in acknowledging that, with
only one of the six inch pipes intaking air, there was a
potential for explosive concentrations of methane to accumulate
beneath the cap (Tr. 2169, 2276).  Mitchell determined that, with
one-six inch vent pipe open, the average concentration of methane
immediately beneath the cap was 4.1 percent.  Mitchell
acknowledged that this was not an acceptable concentration of
methane (Respondent's Exh. 9 at page 6, Tr. 237).  In addition,
Mitchell agreed that the atmosphere beneath the cap was not a
homogenous methane/air mixture.  Thus, it may reasonably be
inferred that there were likely to be areas beneath the cap with
concentrations of methane within the explosive range of five to
fifteen percent (Tr. 2275).  Significantly, the cited standard
applies not merely to areas likely to contain explosive levels of
methane but to areas containing any methane.

     I further find that the area beneath the cap (an area likely
to contain methane) was within the area or zone affected by
welding above the cap.  In this case such welding could have
provided an ignition source for methane below the cap by an
electrical arc from a welding machine improperly grounded above
the cap to a steel "I" beam.  The "I" beam extended below the cap
into  the methane atmosphere.  Indeed Consol's expert, Donald
Mitchell, agreed with the Secretary that the ignition source for
the methane explosion in this case was most likely the improper
grounding of the second welding machine onto one of the "I" beams
extending under the cap.  Accordingly, under the cited standard,
methane examinations were required to be performed in the area
immediately below the cap.

     Consol appears to further argue that, while it admittedly
failed to make methane examinations in the area beneath cap, such
examinations were not feasible and, even if feasible, would not
produce accurate results.  Consol however has the burden of
proving the infeasibility or impossibility of compliance with the
standard and has failed in this burden.  The feasibility of
performing methane examinations beneath the cap was in any event
credibly established at hearing, e.g. by the use of an extendable
probe (Tr. 846, 2018) or flexible tubing which could have been
lowered into the shaft (Tr. 515, 2022; Gov't Exh No. 55), or by
using sampling pipes incorporated into the cap. (Tr. 2021).
Moreover, speculation concerning the potential accuracy of such
tests is no defense to the failure to take such tests.  The
violation is accordingly proven as charged.

     The Secretary maintains that the violation was "significant
and substantial."   A violation is properly designated as
"significant and substantial" if, based on the particular facts
surrounding that 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 822, 825 (April 1981).  In Mathies
Coal Co., 6 FMSHRC 1,3-4 (January 1984) the Commission explained:

          In order to establish that a violation of a
     mandatory safety standard is significant and
     substantial under National Gypsum the Secretary 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.

     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)).
The likelihood of such injury must be evaluated in terms of
continued normal mining operations without any assumptions as to
abatement.  U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984);  See also Halfway, Inc., 8 FMSHRC 8, 12 (January
1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June
1991).

     There can be no dispute that the violation of failing to
conduct methane examinations beneath the cap before and during
welding operations in this case was a "significant and
substantial" violation and of the highest gravity.

     The Secretary also maintains that the violation was the
result of Consol's "unwarrantable failure" to comply with the
cited standard.  Unwarrantable failure is defined as aggravated
conduct constituting more than ordinary negligence.  Emery Mining
Corporation, 9 FMSHRC 1997 (December 1987).  It is characterized
by such conduct as "reckless disregard," "intentional
misconduct," "indifference" or a "lack of reasonable care." Id.
at 2003-04; Rochester and Pittsburgh Coal Company, 13 FMSHRC 189,
193-194 (February 1991).  Relevant issues therefore, include such
factors as the extent of a violative condition, the length of
time that it existed, whether an operator has been placed on
notice that greater efforts are necessary for compliance, and the
operator's efforts in abating the violative condition.  Mullins
and Sons Coal Company, 16 FMSHRC 192, 195 (February 1994).

     This mine was a known "gassy" mine and Consol officials
admitted that they knew methane could be liberated into the
production shaft.  While Consol was accordingly negligent in
failing to perform methane examinations beneath the cap I do not
find that such negligence rises to the level of unwarrantability.
First, it could reasonably have been perceived that methane was
not likely to accumulate above the cap so that not testing at
that location would not be violative.  Second, it could also have
been perceived, although incorrectly, that the welding was to be
performed in a separate and discrete area above, and separated
by, the concrete cap.  Third, methane examinations were in fact
performed at the bottom of the shaft where several Consol
witnesses reasonably and in good faith believed (because of the
direction of airflow into the shaft) would be the location where
methane from within the shaft, if it existed at all, would have
been detectable.  Finally, the most likely ignition source in
this case, an electrical arc from an improperly grounded welding
machine, was not an obvious source of ignition.

Order No. 3109523

     This order,  also issued pursuant to section 104(d)(1) the
Act, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. � 75.316, (1991) and charges as follows:

          The approved ventilation system and methane and
     dust control plan for this mine was not followed in
     that a major change in ventilation was made without the
     approval of the MSHA District Manger.  This change
     occurred on March 13, 1992, when the Production shaft
     was capped.  The capping operation included the forming
     of a 22-inch opening in the cap to facilitate the
     placement of a 16-inch diameter casing into the shaft
     and also included the installation of two 6-inch
     diameter pipes.

          The placement of the cap reduced the ventilation
     of the shaft to the amount entering through the two 6-
     inch diameter pipes and through a 22-inch diameter hole
     in the cap.  Calculations indicate that the airflow in
     the shaft was reduced from approximately 200,000 cubic
     feet of air per minute (cfm) to approximately 7,500
     cfm.  Mine officials treated the capping operation on
     March 13, 1992  as a major ventilation change by
     removing all personnel from the mine during the capping
     operations except those persons necessary to evaluate
     the change.  The placement of the cap on the Production
     shaft was followed on March 17, 1992 by the preplanned
     installation of the 16-inch diameter casing onto the
     22-inch opening in the cap and the subsequent cutting-
     off and plugging of one of the 6-inch pipes.  These two
     actions further reduced the airflow through the
     Production shaft and allowed an explosive methane/air
     mixture to accumulate in the shaft where work was being
     performed on top of the shaft cap and in underground
     areas of the mine.  This violation was determined from
     information gathered during the investigation of the
     explosion at the Production shaft of the Blacksville
     No. 1 Mine that occurred on March 19, 1992, which
     resulted in four fatalities.

     The cited standard, 30 C.F.R. � 75.316, (1991) which tracks
section 303(o) of the Act, provides in relevant part that: "[a]
ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions of the mining system
of the coal mine and approved by the Secretary shall be adopted
by the operator."  The regulation further requires that "[t]he
plan shall show ... such other information as the Secretary may
require."  It is also noted that when the extant ventilation plan
was approved, the accompanying letter sent to Consol stated that
"[y]ou are reminded that all changes or versions to the
ventilation plan must be submitted and approved before they are
implemented."

     While acknowledging that it did not obtain approval from the
Secretary before capping the production shaft, Consol maintains
that there was no violation of the cited standard because it was
not in fact required to obtain the Secretary's approval for
ventilation changes resulting from capping the production shaft.
Consol argues that MSHA enforcement practices in March 1992, and
its own prior dealings with the MSHA District 3 ventilation
enforcement official, resulted in its reasonable and good faith
belief that approval by the MSHA district manager was not
required before capping the production shaft.  There is indeed
credible evidence that, as a general rule, approval by the MSHA
district manager had not previously been required prior to the
capping of mine shafts when the mine was being sealed.  This case
is clearly distinguishable however since the shaft here at issue
was not sealed but remained partially open to allow the insertion
of a dewatering pipe and to continue intaking air for
ventilation.  MSHA's prior practice regarding the sealing of mine
shafts is therefore inapplicable hereto.

     Most significantly, however, the Secretary has proven by a
preponderance of credible evidence that a responsible agent of
Consol, John Yerkovich, who was assistant to the regional manager
for safety of Consol's Northern West Virginia Regional Office,
was specifically informed that MSHA approval would be required
before capping the production shaft.  The evidence shows that
contact with MSHA on matters relating to ventilation plans
ordinarily went through Consol's Regional Safety office and that
MSHA inspector Terry Palmer was the contact at MSHA on
ventilation matters for  the Blacksville No. 1 Mine.  As
previously noted, John Yerkovich told Palmer of the proposal to
cap the production shaft.  Palmer testified that he told
Yerkovich that the change in ventilation which would result from
the capping of the shaft would have to be approved by the MSHA
district manager as a revision of the ventilation plan.  While
Yerkovich testified that he was told by Raymond Strahin, also an
MSHA ventilation inspector, that written notification would be
sufficient, I do not find this testimony credible.  Both Palmer
and Strahin denied at hearing that Yerkovich was told that
written notification was sufficient and Yerkovich in his own
deposition  contradicts his testimony at hearing.  The following
colloquy from his deposition demonstrates this contradiction:

     Q.  But in your conversation with Mr. Palmer and Mr.
Strahin, is that right, Strahin?-

                     (Deponent indicating)
     Q. - they indicated to you in no uncertain terms that they
though that you needed prior approval; is that right?

     A.  That's correct.

     Q. Which would have indicated that you needed a response
before the job could go forward?

     A.  If I agreed to what they were saying, that's correct.

     Q.  Did you express to Mr. Ammons that the MSHA inspectors
had said that to you?

     A. Yes ma'am.

     Q. What was his response?

     A.  He agreed with me.

                              * * * *

     Q.  I may have misheard before, but I heard you say you
communicated to Mr. Ammons the MSHA sense that this was to be
communicated to MSHA, correct?

     A.  I told Mr. Ammons that they had requested me to submit
something for approval, that the cap was going to be put on the
shaft.
                             * * * *

     Q.  So you clearly made it clear to Mr. Ammons that it was
their opinion this needed to be approved by MSHA, Since that this
was to be communicated to MSHA, correct?

     A. Yes sir, I believe I said that before.

     Q.  You certainly understood that to mean approval before
the cap, not after the cap, didn't you?

     A. Well, any time you apply for approval it means before.
(Gov't Exh. No. 52, pp. 83-84, 108-09)

     In addition, Yerkovich never stated in his deposition 
that he was told by Strahin that written notification was
sufficient.  Significantly, Yerkovich also admitted at
hearing that he told both Ammons and Bain that MSHA's
position was that prior approval for capping the projection
shaft was required (Tr. 1219, Gov. Exh. No. 51 p. 128).
This testimony further undermines Yerkovich's denials that
he was told that prior approval for capping the production
shaft was required.  I therefore find that Consol, through
its agent, John Yerkovich, was specifically placed on notice
that  capping the production shaft was a revision to the
ventilation plan therefore requiring prior submission of
plans and MSHA approval for the capping.  Under the
circumstances, Consol's deliberate failure to have submitted
plans for capping the shaft and proceeding to cap the shaft
without such approval, constituted a violation of the cited
standard.

     It is reasonably likely that Consol's action in capping the
shaft without prior review of such action by MSHA would lead
to the inadequate ventilation of the production shaft and a
fatal methane explosion.  The violation was therefore of
high gravity and "significant and substantial."  Since I
find that an agent of Consol was directly and specifically
told of the necessity of obtaining MSHA's prior approval for
the capping job and that Consol deliberately disregarded
this directive, operator negligence was of a particularly
aggravated nature showing reckless disregard.  The violation
was clearly therefore the result of Consol's gross
negligence and "unwarrantable failure" to comply.

     Order No. 3109524

     This order,  also issued pursuant to section 104(d)(1) of
the Act, alleges a "significant and substantial" violation
of the standard at 30 C.F.R. � 75.322, (1991) and charges as
follows:

          Consolidation Coal Company (Consol) conducted a
     change in ventilation on March 13, 1992 and again on
     March 17, 1992.  The changes had a cumulative effect
     which materially affected the split of air ventilating
     the Production shaft.  Miners were allowed to work
     before the effects of the changes were fully
     ascertained by mine management or a certified person.

          On March 13, 1992, Consol directed the Production
     shaft to be capped.  The capping of the shaft reduced
     ventilation in the shaft to the amount entering through
     two 6-inch diameter pipes and through a 22-inch
     diameter hole in the cap.  Calculations indicate that
     the airflow in the shaft was reduced by the placement
     of  the cap from approximately 200,000 cubic feet of
     air per minute (cfm) to approximately 7,500 cfm.  Mine
     officials treated the capping operation on March 13,
     1992 as a major air change.  All electric power was
     removed from the affected area during the capping
     operation.  Consol evaluated the ventilating changes
     underground:  however, Consol did not evaluate the
     change to the air split ventilation the Production
     shaft itself before allowing miners to return to work.

          On March 17, 1992, Consol directed a second
     material change to the air split ventilating the
     Production shaft when a plugged length of 16-inch
     diameter casing was installed through the 22-inch
     diameter hole in the Production shaft cap and the
     remaining portion of the 22-inch diameter hole was
     sealed.  In addition, one of the 6-inch diameter pipes
     was cut off and sealed.  Calculations indicated that
     the changes made on March 17, 1992 reduced the
     ventilation of the Production shaft from approximately
     7,500 cfm to approximately 400 cfm.  The March 17,
     1992, change was conducted while miners were working
     underground and on top of the capped Production shaft.
     Consol did not make an evaluation of the split of air
     ventilating the Production shaft following the changes
     made on March 17 and miners were permitted to continue
     to work both underground and on the Production shaft
     cap following the change.

          The mine has a known history of methane liberation
     and, in addition, methane was being liberated from
     within the shaft itself.  Consol's failure to determine
     that the Production shaft had a significant methane
     liberation rate and whether the shaft was adequately
     ventilated following the ventilation changes allowed an
     explosive methane-air mixture to accumulate undetected
     in the shaft while work was being performed on the
     shaft cap and in the underground mine.  On March 19,
     1992, the methane accumulation was ignited as employees
     of M. A. Heston, Inc., an Independent contractor,
     performed welding operations during the installation of
     the 16-inch casing through the Production shaft cap.
     This violation was determined from information gathered
     during the investigation of the explosion at the
     Production shaft of the Blacksville No. 1 Mine that
     occurred on March 19, 1992, which resulted in four
     fatalities.

     The cited standard, 30 C.F.R. � 75.322, (1991), which tracks
section 303(u) of the Act, provides as follows:

          Changes in ventilation which materially affect the
     main air current or any split thereof and which may
     affect the safety of persons in the coal mine shall be
     made only when then the mine is idle.  Only those
     persons engaged in making such changes shall be
     permitted in the mine during the change.  Power shall
     be removed from the areas affected by the change before
     work starts to make the change and shall not be
     restored until the effect of the change has been
     ascertained and the affected areas determined to be
     safe by a certified person.

     The requirements of Section 75.322 are applicable when both
parts of the first sentence of the standard are met, i.e., the
change must materially affect a split of air and it must affect
the safety of persons in the mine.  There is no dispute in this
case that the reduction of airflow within the production shaft
affected the safety of persons in the mine.  It is the first part
of the standard, requiring that the change in ventilation
"materially affect the main air current or any split thereof"
that is at issue.

     The order at bar charges in essence that Consol made
ventilation changes on March 13 and on March 17 that materially
affected the split of air ventilating the production shaft and
that  miners were allowed to work before the effect of the
changes was fully evaluated.[2]  It is undisputed that on March
13, the cap over the production shaft was completed and that this
change reduced the airflow in the production shaft from
approximately 187,000 cfm to approximately 7,350 cfm.  It is
further undisputed that on March 17, the plugged 16-inch casing
was inserted into the 22-inch hole in the cap and sealed with
steel plates and Thermoglass cloth.  In addition, on that date
one of the two 6-inch diameter vent pipes was cut and stuffed
with Thermoglass cloth or some other material which caused a
further reduction of air flow within the production shaft to
approximately 400 cfm.


     Consol argues, in essence, that the ventilation changes on
March 13 and March 17 must be considered separately not
cumulatively and that the March 17 reduction in airflow from
about 3,750 cfm to about 400 cfm did not materially affect the
split of air ventilating the production shaft.  The term
"materially" is not defined in the Act or pertinent regulations.
It is defined, as relevant hereto, in Webster's New Third
International Dictionary  (unabridged) as "to a significant
extent or degree."  By application of this common definition it
is clear that a reduction in airflow from approximately 7,350 cfm
to 400 cfm, more than a 94% percent reduction, would have
affected the airflow in the production shaft to a "significant
degree."  Indeed, even Consol's  expert witness, Donald Mitchell,
agreed that the reduction from 7,350 cfm to 400 cfm was a large
reduction and would have a material affect (Tr. 2302, 2309).
Within this framework of evidence, it is clear that Consol was
therefore required to follow the procedures set forth in the
cited standard following the reduction in air flow on March 17,
1992.  When it failed to do so it was in violation of that
standard.

     In reaching these conclusions I have not disregarded
Consol's claims that the reduction on March 17, was not material
because the change was less than 9,000 cfm.  Consol relies in
part upon MSHA's Program Policy Manual relating to �75.322, which
provides as follows:

     Any ventilation change in which any split of air is to
     be increased or decreased by an amount equal to or in
     excess of 9,000 cfm shall be made only when the mine is
     idle.  Before mine power can be restored in all areas
     affected by such ventilation changes, an examination is
     required in accordance with Section 75.303.

     While this language does provide that any change of 9,000
cfm or more triggers the requirements of the standard it clearly
does not preclude application of the standard to ventilation
changes of less than 9,000 cfm.  Consol further relies, in
support of its argument herein, upon statements by MSHA
Inspectors Palmer, Sperry and Dinning and former MSHA subdistrict
manager William Reid, that they considered 9000 cfm as the
threshold for triggering the applicability of �75.322.  However,
each of these individuals except Sperry clarified that, depending
upon the circumstances, the requirements of �75.322 may also
apply to ventilation changes of less than 9,000 cfm (Tr. 1164,
1175, 1414, 1538, 1856).  While there is also some disagreement
among Consol  witnesses, both Bane and Wooten admitted that the
purpose of the standard, to prevent exposure to potentially
hazardous conditions resulting from ventilation changes, may be
furthered even when an air change is less than 9,000 cfm (Tr.
1718, 1799).

     Under the circumstances however, I conclude that the
provisions Section 75.322 were triggered on March 17, so that all
persons other than those making the changes were required to be
removed from the mine, the power removed from the affected areas
and the effects of the change ascertained.  Consol's failure to
follow these procedures constituted a violation of the cited
standard.  The violation was, under the facts at bar, also
clearly "significant and substantial" and of high gravity.

     I do not find however, that the violation was the result of
unwarrantable failure.  The Secretary argues that several Consol
officials (including Levo, Moore, DeBlossio and Baird), were
aware that one of the 6-inch vent pipes had been cut.  It may
also reasonably be inferred that Baird and DeBlossio also knew
that the pipe had been sealed, thereby limiting the ventilation
of the shaft.  The Secretary further argues that Consol officials
failed to notify those actually working on the project presumably
including Baird and DeBlossio, of the importance of the two vent
pipes, and that this failure constituted aggravated conduct
amounting to unwarrantable failure.  However, because four of the
miners working on the project were killed, the Secretary cannot
sustain her burden of proving what was communicated to those
miners or what knowledge those miners had regarding the
importance of the vent pipes.  Her argument herein is therefore
without the necessary evidentiary support.  Consol was not,
however, without negligence because of its failure to maintain
the level of supervision and control warranted by the  activities
at the production shaft.

Civil Penalty Assessments

     In assessing a civil penalty under Section 110(i) of the
Act, consideration is to be given to the operator's history of
previous violations, the appropriateness of the penalty to the
size of its business, the effect on the operator's ability to
continue in business, good faith abatement, negligence, and
gravity.  Consol is a large company and there is no evidence that
its ability to continue in business would be affected by a
penalty as high as that proposed by the Secretary.
The Secretary acknowledges that all charging documents were
satisfactorily abated.  The gravity and negligence relating to
these violations have previously been discussed.  Within this
framework of evidence I assess the civil penalties set forth in
the Order below.

                              ORDER

     Citation No. 3109521 is hereby vacated.  Order No. 3109522
is modified to a "significant and substantial" citation under
Section 104(a) of the Act and Consolidation Coal Company is
directed to pay a civil penalty of $10,000 for the violation
charged therein.  Order No. 3109523 is modified to a citation
under Section 104(d)(1) of the Act and Consolidation Coal Company
is directed to pay a civil penalty of $50,000 for the violation
charged therein.  Order No. 3109524 is modified to a "significant
and substantial" citation under section 104(a) of the Act and
Consolidation Coal Company Act is directed to pay a civil penalty
of $10,000 for the violation charged therein.


                              Gary Melick
                              Administrative Law Judge


Distribution:

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA  22203
(Certified Mail)

David Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, WV
25322 (Certified Mail)

Judith Rivlin, Esq., Associate General Counsel, United Mine
Workers of America, 900 15th Street, N.W., Washington, DC  20005
(Certified Mail)

\mca


**FOOTNOTES**

     [1]:/  Section 104(d)(1) of the Act provides as follows:

     If, upon any inspection of a coal or other mine, an authorized
     representative of the Secretary finds that there has been a violation of
     any mandatory health or safety standard, and if he also finds that, while
     the conditions created by such violation do not cause imminent danger,
     such violation is of such nature as could significantly and substantially
     contribute to the cause and effect of a coal or other mine safety or
     health hazard, and if, he finds such violation to be caused by an
     unwarrantable failure of such operator to comply with such mandatory
     health or safety standards, he shall include such finding in any citation
     given to the operator under this Act.  If, during the same inspection or
     any subsequent inspection of such mine within 90 days after issuance of
     such citation, an authorized representative of the Secretary finds
     another violation of any mandatory health or safety standard and finds
     such violation to be also caused by an unwarrantable failure of such
     operator to so comply, he shall forthwith issue an order requiring the
     operator to cause all persons in the area affected by such violation,
     except those persons referred to in subsection (c) to be withdrawn from,
     and to be prohibited from entering, such area until an authorized
     representative of the Secretary determines that such violation has been
     abated.

     [2]:While Consol expressed some disagreement in its post-hearing brief
that the Production Shaft could be characterized as a "split" of air, even
its own vice-president for the Blacksville operations, Donzel Ammons,
conceded that it was a "split" of air.