. CONSOLIDATION COAL COMPANY January 3, 1997 WEVA 94-235-R FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 2 SKYLINE, 10th FLOOR 5203 LEESBURG PIKE FALLS CHURCH, VIRGINIA 22041 January 3, 1997 CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDING Contestant : v. : Docket No. WEVA 94-235-R : Citation No. 3101220; : 4/19/94 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : Robinson Run No. 95 Mine ADMINISTRATION (MSHA), : Mine ID 46-01318 Respondent : DECISION AFTER REMAND This contest proceeding, arises under section 105 of the Federal Mine Safety and Health Act 1977 (the Act) (30 U.S.C. § 815) and involves the validity of a citation issued pursuant to section 104(a) of the Act. The citation alleges that Consolidation Coal Company (Consol) violated mandatory safety standard 30 C.F.R. § 75.342(b)(2) and that the violation was a significant and substantial contribution to a mine safety hazard. Consol maintains it did not violate the standard. The matter was assigned to Commission Administrative Law Judge Arthur Amchan who scheduled an expedited hearing. At the hearing, the Secretary moved to amended the citation to one issued pursuant to section 104(d)(2) of the Act (30 U.S.C. § 814(d)(2)) and to add to the citation a finding of unwarrantable failure. In a decision on the merits, (Consolidation Coal Company, 16 FMSHRC 1241 (June 1994)), Judge Amchan held that Consol did not violate section 75.342(b)(2). The standard requires methane monitors on longwall face equipment to give warning signals when methane concentrations reach 1.0 percent and that the warning signal devices be visible to persons who can deenergize the equipment. The judge concluded Consol's method of compliance provided "equivalent protection" to the standard (16 FMSHRC 1245). Accordingly, the judge vacated the citation. The Secretary sought and was granted review. On review, the Commission held that the evidence established a clear violation of the standard (Consolidation Coal Company, 18 FMSHRC ___(November 4, 1996)). Therefore, the Commission reinstated the citation and remanded the case for consideration of the Secretary's motion to modify the citation to a section 104(d)(2) order and for the assessment of a civil penalty 18 FMSHRC ___ (November 4, 1996) (Slip Op. 5). (On remand, the case was reassigned to me, as Judge Amchan had left the Commission.) Subsequent to the Commission's decision, the parties entered into settlement negotiations. As a result, the Secretary has withdrawn his motion to modify the citation. Further, the Secretary and Consol have agreed that a civil penalty of $204 is appropriate for the violation of section 75.342(b)(2). Finally, the parties have agreed that the settlement in no way affects "[Consol's] right to appeal the Commissions's decision . . . once that decision becomes final" (Motion to Enter Order Assessing Civil Penalty 2). Having considered the proposed settlement in light of the statutory civil penalty criteria and the purposes of the Act, I find it is reasonable and in the public interest. Accordingly, the motion is GRANTED and the settlement is APPROVED. ORDER Consol is ORDERED to pay a civil penalty of $204 for the violation of section 75.342(b)(2) as set forth in Citation No. 3101220, dated April 19, 1994. Payment shall be made to MSHA within 30 days of the date of this decision. Upon receipt of full payment, this proceeding is DISMISSED. David Barbour Administrative Law Judge Distribution: Elizabeth Chamberlin, Esq., CONSOL, Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail) Robert S. Wilson, Esq., Office of the Solicitor, U. S. Department ofLabor, 4015 Wilson Boulevard, Suite 516, Ballston Towers No. 3, Arlington, VA 22203 (Certified Mail) dcp