.
CONSOLIDATION COAL COMPANY
June 22, 1995
Docket No. WEVA 94-216


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          June 22, 1995


SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE AND SAFETY AND HEALTH    :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-216
      Petitioner                :  A.C. No. 46-01453-04117
           v.                   :
                                :  Docket No. WEVA 94-328
                                :  A.C. No. 46-01453-04128
CONSOLIDATION COAL COMPANY,     :
      Respondent                :  Humphrey No. 7 Mine


                            DECISION

Appearances:  Elizabeth Lopes, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia,
              for the Petitioner;
              Elizabeth S. Chamberlin, Esq., Consolidation Coal
              Company,
              Pittsburgh, Pennsylvania, for the Respondent.

Before:  Judge Feldman


     These proceedings concern petitions for assessment of civil
penalties filed by the Secretary of Labor against the respondent
pursuant to section 110(a) of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 U.S.C. � 820(a).  Docket No. WEVA
94-216 involves a proposed civil penalty of $2596 for two 104(a)
citations that were designated as significant and substantial.
With respect to Docket No. WEVA 94-328, the Secretary has
proposed a civil penalty of $21,500 for a 104(d)(1) citation and
two 104(d)(1) orders allegedly attributable to the respondent's
unwarrantable failure.  Thus, the total proposed civil penalties
in these matters is $24,096.  As noted below, the parties have
agreed to settle these proceedings for a total civil penalty of
$11,445.

     These matters were heard on May 11 and May 12, 1995, in
Washington, Pennsylvania.  At the commencement of the hearing,
the parties informed me that they had settled the two citations
in Docket No. WEVA 94-216 and 104(d)(1) Citation No. 3305270 in
Docket No. WEVA 94-328.

Docket No. WEVA 94-216

     The settlement motion presented on the record reflects that
Citation No. 3304293 was issued on January 24, 1994, for a
violation of the mandatory safety standard in section
75.333(b)(4), 30 C.F.R. � 75.333(b)(4),  This standard requires
separation of the primary escapeway from the belt and trolley
haulage entries.  The citation was issued because of alleged
defective permanent stoppings between the primary escapeway and
the trolley haulage entry.  The settlement terms include deletion
of the significant and substantial designation from this citation
because it was unlikely that smoke contamination would occur in
the primary escapeway in the event of a fire given the conditions
observed by the issuing MSHA inspector.  Thus, the parties agreed
to a reduction in the proposed penalty from $1,298 to $507.

     Citation No. 3304294 was issued on January 24, 1994, for an
alleged inadequate preshift examination in violation of section
75.360(a), 30 C.F.R. � 75.360(a).  The parties agreed to a
reduction in civil penalty from $1,298 to $794 due to a reduction
in the gravity associated with this violation.  Consequently, the
parties seek to reduce the total proposed civil penalty in Docket
No. WEVA 94-216 from $2,596 to $1,301.

Docket No. WEVA 94-328

     At the beginning of the hearing the parties informed me that
the respondent has agreed to pay the $6,000 proposed penalty for
104(d)(1) Citation No. 3305270.  104(d)(1) Order Nos. 3305280 and
3305605 were issued between 10:30 a.m. and 12:30 p.m. on January
10, 1994, for violation of section 75.370(a)(1), 30 C.F.R. �
75.370(a)(1), as a result of the respondent's alleged failure to
follow its approved ventilation plan, and, for alleged
impermissible accumulations of coal dust in violation of section
75.400, 30 C.F.R. � 75.400.  Both citations were issued shortly
after the respondent had noted these violative conditions in its
preshift examination book sometime before 7:00 a.m. on the
morning of January 10, 1994.

     After the presentation of the Secretary's direct case with
respect to Order No. 3305605, I expressed concern regarding the
issue of unwarrantable failure in situations where Mine Safety
and Health Administration (MSHA) inspectors observe violative
conditions during the shift immediately following the notation of
such conditions by the preshift examiner.  Obviously, an operator
is subject to a citation if a mine inspector observes a violation
shortly after the condition is noted by the preshift examiner.
However, in such circumstances, an operator must be afforded a
reasonable period of time to correct conditions observed during
the preshift examination before the failure to take remedial
action can be construed as the requisite "inexcusable" or
"unjustifiable" conduct necessary to sustain an unwarrantable
failure charge.  See Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007,
2010 (December 1987).

     For example, in the instant case, the respondent commenced
cleanup of the coal dust accumulations at approximately 10:30
a.m. after notations made in the preshift examination book at
approximately 7:00 a.m.  The testimony did not establish the
cleanup was motivated by the presence of the MSHA inspector on
mine property.  Moreover, there was no evidence that these
accumulations had been ignored in that the preshift report
reflected the area had been rock dusted on Friday, January 7,
1994, the preceding production shift prior to the pertinent
Monday, January 10, 1994, preshift examination.

     In addition, the thrust of the Mine Act's 104(d) unwarrantable
failure provisions is to discourage repetition of an operator's
high negligence by placing the operator on a probationary chain
buttressed by the threat of a withdrawal order.  Greenwich
Collieries, 12 FMSHRC 940, 945 (May 1990).  Thus, the withdrawal
of miners pursuant to a 104(d) order is a consequence of the
operator's repeated high degree of negligence rather than the
existence of an extremely hazardous condition.  In fact,
operators responsible for violations cited in 104(d) orders would
normally be permitted a reasonable abatement period without the
necessity to withdraw or otherwise cease mining operations if the
violative condition was cited under section 104(a) of the Act.
Thus, 104(d) withdrawals must be distinguished from withdrawal
orders under the imminent danger provisions of section 107(a) of
the Act that relate to extremely hazardous conditions.

     In this case, the absence of malfunctioning rollers, inoperable
dust suppression water sprays, hot embers, or, an identifiable
source of ignition in close proximity to the cited accumulations,
are mitigating circumstances that do not add up to reckless
continued mining operations in the face of an extreme danger.
MSHA's use of the 104(d) withdrawal of personnel as evidence of a
dangerous condition indicative of high negligence is the
functional equivalent of the tail wagging the dog as a 104(d)
withdrawal, alone, is not evidence of exigent circumstances
warranting the immediate withdrawal of miners.  Neither is the 2
1/2 hour delay in attempting to remove the accumulations
necessarily indicative of aggravated conduct on the part of the
respondent.

     Upon expressing concerns regarding the applicability of the
unwarrantable failure findings in this case, the parties were
invited to confer for the purposes of settlement during a brief
recess.  Upon reconvening, the parties advised that they had
reached an agreement on the remaining two orders.  The parties
agreed to retain the significant and substantial designations for
the cited violations.  However, the parties agreed to modify
Order Nos. 3305280 and 3305605 to 104(a) citations thus removing
the unwarrantable failure charges.  Consequently, the parties
seek to reduce the civil penalty from $6,500 to $2,072 for each
of these modified citations.

                              ORDER

     This decision formalizes the approval of the parties' settlement
motion with respect to all of the matters in issue.  The motion
was approved because the settlement terms are consistent with the
civil penalty criteria contained in section 110(i) of the Act, 30
U.S.C. � 820(i).  Accordingly, IT IS ORDERED that the respondent,
Consolidation Coal Company, pay a total civil penalty of $11,445
comprised of a civil penalty of $1,301 in Docket No. WEVA 94-216
and $10,144 in Docket No. WEVA 94-328.  Payment shall be made to
the Mine Safety and Health Administration within 30 days of the
date of this decision.  Upon timely receipt of payment, these
docket proceedings ARE DISMISSED.


                                       Jerold Feldman
                                       Administrative Law Judge


Distribution:

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

Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)

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