.
CONSOLIDATION COAL COMPANY
July 25, 1995
WEVA 94-369


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            July 25, 1995

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-369
               Petitioner       :  A.C. No. 46-04421-03724 A
          v.                    :
                                :  Amonate No. 31 or #31
JAMES M. STUTSO, III,           :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-382
               Petitioner       :  A.C. No. 46-04421-03726-A
          v.                    :
                                :  Amonate #31 or #31
JAMES L. BREWSTER,              :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-395
               Petitioner       :  A.C. No. 46-04421-03752-A
          v.                    :
                                :  Amonate #31 or #31
CHARLES R. HENSLEY,             :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 94-396
               Petitioner       :  A.C. No. 46-04421-03727-A
          v.                    :
                                :  Amonate #31 or #31
CARLOS H. HESS,                 :
  Employed by                   :
  CONSOLIDATION COAL COMPANY,   :
               Respondent       :

                            DECISIONS

Appearances:  Robert S. Wilson, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia,
              for Petitioner;
              David J. Hardy, Esq., John Bonham, Esq., Jackson
              and Kelly, Charleston, West Virginia, for the
              Respondent Consolidation Coal Company;
              J. Timothy Dipiero, Esq., Ditrapano and Jackson,
              Charleston, West Virginia, for the Respondent
              James L. Brewster.

Before:  Judge Koutras

                   Statement of the Proceedings

     These proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondents
pursuant to section 110(c) of the Federal Mine Safety and Health
Act of 1977.  The respondents were charged as agents of the
corporate mine operator Consolidation Coal Company (Consol) with
"knowingly authorizing, ordering, or carrying out" a violation
of mandatory safety standard 30 C.F.R. 75.360, as stated in 
section 104(d)(1) "S&S" Order No. 3727399, issued by an MSHA 
inspector on March 3, 1993.

     The respondents filed timely contests and answers denying
the alleged violations and the matters were consolidated for 
hearing with several other section 110(c) civil penalty cases, 
and civil penalty cases filed against Consol.  The hearing was 
convened in Beckley, West Virginia, on June 20, 1995.

                            Discussion

     Prior to the taking of any testimony, the parties were
afforded an opportunity to address pending motions for summary
decisions and dismissals that were filed by counsel for the 
respondents. In support of the motions, counsel argued that
the individually named respondents should not, as a matter of 
law, be held responsible for the alleged violations in question.
Each of the motions are supported by the sworn affidavits of
the respondents who state that they were not on duty on the
section during the shifts immediately prior to, or at, the 
time of the incident of December 29, 1992, that resulted in 
the issuance of the violation in question.

     The petitioner's counsel stated that MSHA has taken the
position that it would not oppose the motions for summary 
decisions, and did not object to the dismissal of the cases
(Tr. 18, 20).  He also stated that the parties agreed to bear
their own litigation costs in these matters (Tr. 20). Counsel
Dipiero, speaking on  behalf  of  all  of  the  respondents, 
confirmed that this was the case, and that the respondents 
agreed to pay their costs (Tr. 20-22).

                            Conclusion

     After further consideration of the motions and arguments
advanced by the respondents, and taking into account the lack 
of opposition by the petitioner, the motions were granted from 
the bench (Tr. 20). My decision and ruling in this regard is 
herein REAFFIRMED.

                              ORDER

     In view of the forgoing, the petitioner's proposed civil
penalty assessments ARE DENIED, and these matters ARE DISMISSED.


                              George A. Koutras
                              Administrative Law Judge


Distribution:

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

David J. Hardy, Esq., John Bonham, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)


Docket No. WEVA 94-369

Arden J. Curry II, Esq., 100 Kanawha Boulevard, West, P.O. Box 
2786, Charleston, WV 25330
(Certified Mail)


Docket Nos. WEVA 94-382

J. Timothy Dipiero, Esq., Ditrapano & Jackson, 604 Virginia 
Street East, Charleston, WV 25301
(Certified Mail)


Docket Nos. WEVA 94-395, WEVA 94-396

Gregory J. Campbell, Esq., Morrison Building, Suite 200, 
815 Quarrier Street, Charleston, WV 25301
(Certified Mail)


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