.
PLATEAU MINING CORP., (formerly CYPRUS PLATEAU MINING CORPORATION)
December 19, 2000
WEST 98-191-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268


                        December 19, 2000

PLATEAU MINING CORP.,         : CONTEST PROCEEDINGS
   (formerly CYPRUS PLATEAU   :
   MINING CORPORATION)        : Docket No. WEST 98-191-R
                  Contestant  : Citation No. 7611106; 2/17/98
                              :
          v.                  : Docket No. WEST 98-192-R
                              : Citation No. 76111107; 2/17/98
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      : Willow Creek Mine
                  Respondent  :
                              :
                              :
SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      : Docket No. WEST 98-317
                  Petitioner  : A.C. No. 42-02113-03520
                              :
          v.                  :
                              : Willow Creek Mine
PLATEAU MINING CORP.,         :
   (formerly CYPRUS PLATEAU   :
   MINING CORPORATION),       :

                             DECISION

Appearances: Ann M. Noble, Esq., Office of the Solicitor,
             U.S. Department of Labor, Denver, Colorado, 
             for Respondent;
             R. Henry Moore, Esq., Buchanan Ingersoll,
             Pittsburgh, Pennsylvania, For Respondent.

Before: Judge Cetti

     These consolidated Contest and Civil Penalty Proceedings
arise under the Federal Mine  Act of 1977, 30 U.S.C. � 801 et
seq. ("Mine Act").  The Secretary of Labor (Secretary) acting
through her Mine Safety and Health Administration ("MSHA"),
pursuant to section 105 of the Mine Act seeks the imposition of
civil penalties against Plateau Mining Corp. ("Plateau").
Plateau challenges the S&S and the unwarrantable findings in the
citation and order.  Both documents were issued under section
104(d)(1) of the Act.

     At the hearing in Salt Lake City, Utah, the parties filed
comprehensive stipulations and  presented testimony and
documentary evidence.  Both parties filed post-hearing briefs.
For the reasons set forth below, the existence of the violations
alleged by MSHA in the two enforcement documents are affirmed,
civil penalties are assessed, and the S&S and unwarrantable
failure findings deleted.

     Both the citation and the order at issue in these
consolidated cases involves the number of water sprays on a
12CM12 Joy continuous miner No. 5062, after the miner was rebuilt
by the Joy Manufacturing Company.  These cases are concerned with
the reasons why there was a discrepancy, at the time of
inspection, with the number of sprays found on the continuous
miner  and the number of sprays called for in the parameter sheet
for that 12CM12 Joy miner No. 5062.  The parameter sheets for
each miner is a part of the approved mine ventilation plan.

     Order No. 7611107 issued by Inspector Passarella pursuant to
section 104(d)(1) of the Act alleges a violation of 30 C.F.R. 
� 75.362(a)(2) as follows:

          Persons designated by the operator did not
          conduct a thorough examination to assure
          compliance with the respirable dust control
          parameters specified in the approved mine
          ventilation plan.  These examinations shall
          include water spray numbers and orientations.
          Deficiencies in dust controls shall be
          corrected before production begins or
          resumes.  The required number of water sprays
          for the continuous mining machine being
          operated in the D-1 Headgate section, MMU
          006-0 did not comply with the approved
          respirable dust control parameter sheet,
          dated January 16, 1998.  Two spray banks
          containing three sprays had never been
          mounted on the continuous mining machine
          before it was put into production.  Ten
          additional sprays were plugged off and was
          not being used.  The records for this
          examination had been certified that the
          parameter sheet was being complied with since
          January 16, 1998.

     The cited safety standard at 30 C.F.R. �75.362(a)(2) reads
in pertinent part as follows:

          A person designated by the operator shall
          conduct an examination to assure compliance
          with the respirable dust control parameters
          specified in the mine ventilation plan....
          Deficiencies in dust controls shall be
          corrected before production begins or
          resumes.  The examination shall include air
          quantities and velocities, water pressures
          and flow rates, excessive leakage in the
          water delivery system, water spray numbers
          and orientations ...

     Citation No. 7611106 charges Plateau with a 104(d)(1)
violation of 30 C.F.R. � 75.370(a)(1).  The citation in pertinent 
part alleges:

             The approved Ventilation Plan was not
          being complied with.  The operators [sic]
          dust suppression spray system approved on
          January 16, 1998, for the continuous mining
          machine, Serial No. 5062, MMU 006-0 which was
          approved on January 16, 1998, shows a total
          of 53 sprays.  A three spray bank under the
          cutter head on the left side and a three
          spray bank on the right side had never been
          installed by the operator, before this miner
          was put into production.  An additional, 14
          sprays were plugged and were found
          inoperable.

     The safety standard cited, 30 C.F.R. �75.370(a)(1), in
pertinent part provides:

          The operator shall develop and follow a
          ventilation plan approved by the district
          manager.  The plan shall be designed to
          control methane and respirable dust and shall
          be suitable to the conditions and mining
          system at the mine.....

                              STIPULATIONS

     At the hearing, the parties entered into the record
stipulations covering the relevant basic facts involved in these
consolidated cases as follows:

     1.  The Willow Creek Mine is a large underground bituminous
coal mine located in Helper, Utah.  Currently, the mine has
approximately 270 miners.

     2.  The Willow Creek Mine is owned and operated by Cyprus.

     3.  The Willow Creek Mine is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977 ("the Act"), 30
U.S.C. � 801 et seq.

     4.  The presiding Administrative Law Judge has jurisdiction
over these proceedings, pursuant to section 105 of the Act, 30
U.S.C. � 815(c).

     5.  The parties stipulate to the authenticity of their
exhibits, but not to the relevance or truth of the matters
asserted therein.

     6.  Cyprus' operations affect interstate commerce.

     7.  Citation No. 7611106 and Order No. 7611107 were properly
served by duly authorized representatives of the Department of
Labor upon agents for Cyprus on the dates and
at the places indicated therein.

     8.  Citation No. 7611106 and Order No. 7611107 were properly
served by duly authorized representatives of the Department of
Labor upon agents for Cyprus on the dates and at the places
indicated therein.

     9.  Citation No. 7611106 was issued on February 17, 1999, at
the Willow Creek Mine, pursuant to section 104(d)(1) of the Act,
30 U.S.C. � 814(d)(1), and alleging a violation of 30 C.F.R. 
� 75.370(a)(1).

         10.  Order No. 7611107 was issued on February 18, 1999,
at the Willow Creek Mine, pursuant to section 104(d)(1) of the
Act, 30 U.S.C. � 814(d)(1), and alleging a violation of 30 C.F.R.
� 75.362(a)(2).

         11.  The inspection on which the Citation and Order are
based was prompted by the report of an ignition on February 16,
1999, in the D-1 Headgate longwall development section of the
Willow Creek mine.  At approximately 9:45 p.m. on that date,
mining was being conducted on the right side of the No. 1 entry
of that section and an orange flame appeared on the right side
rib approximately 2-3 feet from the face.  The flame lasted 20-30
seconds and was extinguished by the miner operator with the
washdown hose.

         12.  There were no injuries or property damage.

         13.  The methane display on the continuous miner read
.4-.5 percent  methane at the time of the ignition.

         14.  There are liquid hydrocarbons present in the coal
seam at Willow Creek and such hydrocarbons may have caused the
flame.

         15.  The methane monitor on the continuous miner was
functioning properly at the time of the flame.

         16.  The methane monitor sensing head on the continuous
miner was on the right side of the head of the continuous miner.

         17.  The continuous miner was in permissible condition
at the time of the incident.

         18.  The number of water sprays required on the
continuous miner at issue in the ventilation plan were 53.  Under
the plan, ninety percent of the required number of sprays, i.e.,
48 sprays, must be operating during mining.

         19.  The number of water sprays operable at the time of
the flame incident was 33.  Six sprays depicted on the
ventilation plan drawing of this miner were absent because they
had not been installed by the manufacturer when the machine was
rebuilt.

         20.  Ten of the sprays were plugged mechanically.  No
hoses connected these ten sprays to the water system of the
miner.  The continuous miner at issue here was not utilizing a
scrubber.

         21.  One continuous miner model 11CM12 is approved with
33 sprays in this ventilation plan; the model at issue here
(model 12CM12) is approved with 53, 55, and 58 sprays.  In the
ventilation plan, on continuous miners with scrubbers, ten sprays
are marked "only used with scrubber."

         22.  Four other sprays were not working on the day of
the inspection because they were plugged with coal dust.  The
miner operator checked the sprays before beginning the cut in
which the flame incident occurred and all sprays that were
present and connected to the water system were working.  That
would include 37 sprays.

         23.  The water pressure for all the water sprays in the
continuous miner required in the ventilation plan is 125 p.s.i.
The water pressure measured during the investigation was 250
p.s.i.

         24.  On January 14, 1999, two MSHA inspectors, William
Reitze and Harold Sherer, inspected the D-1 headgate section.
The continuous miner, Serial No. 5062, which is the subject of
this Citation and Order was present in that section but was not
in operation and was not inspected by either inspector, according
to their notes.

         25.  Inspector Passarella refers in the Citation and
Order to two previous ignitions at the Willow Creek Mine, one on
November 29, 1997, and one on December 4, 1997.  Both ignitions
involved a different continuous miner than the one at issue in
this case.  MSHA investigated both incidents and did not issue
any citations in either instance.

         26.  On January 7, 1998, Inspector Passarella inspected
the D-1 headgate section and observed the continuous miner at
issue here operating but did not inspect the water sprays on the
miner.

                              ISSUES

     The issues presented in this case are as follows:

     1.  Whether the condition that was the basis for the
issuance of Citation No. 7611106 and/or Order No. 7611107 were
properly designated significant and substantial violations.

     2.  Whether the condition that was the basis for the
issuance of Citation No. 7611106 and/or Order No. 7611107
resulted from an unwarrantable failure to comply with the cited
standard.

     3.  What penalty is appropriate for the violation described
in Citation No. 7611106 and in Order No. 7611107.

     This docket consists of two MSHA enforcement documents,
Citation No. 7611106 and Order No. 7611107.  The parties
stipulated that both documents could be admitted into evidence to
establish the issuance, but not the truth of any statement
asserted therein.  (Stip. 8).

     The inspection on which the citation and order are based was
prompted by the report of an ignition on February 16, 1999, in
the D-1 Headgate longwall development section of the Willow Creek
mine.  At approximately 9:45 p.m. on that date, mining was being
conducted on the right side of the No. 1 entry of that section
and an orange flame appeared on the right side rib approximately
2-3 feet from the face.  The flame lasted only 20-30 seconds and
was extinguished by the miner operator with the washdown hose.
No injuries or property damage was caused by the ignition.
(Stip. 12).  The methane display on the continuous miner read .4
to .5 percent methane at the time of the ignition.  (Stip. 13).
The parties stipulated that liquid hydrocarbons exist in the coal
seam at Willow Creek and such hydrocarbons may have caused the
ignition.  Ibid.

The Violations

     The number of water sprays required on the parameter drawing
for the continuous miner at issue, miner No. 5062, was 53.  Under
the plan, 90 percent of the required number of sprays, i.e., 48
sprays, must be operating during mining.  The number of water
sprays operable at the time of the flame incident was 33.  Six
sprays depicted on the parameter sheet drawing for this miner
were absent because they had not been installed by the
manufacturer when the machine was rebuilt at the manufacturer's
facility.  Ten of the sprays were plugged mechanically because
the sprays were designed to be used only with a scrubber on all
other continuous miners of the same model and the continuous
miner at issue did not have a scrubber.  This resulted in a
difference of 16 sprays between the parameter drawing in the plan
and the actual number of sprays on the miner after it was rebuilt
at the Joy manufacturing facility.

     Credible evidence was presented that, normally, Plateau
compared the approved drawing with the spray configuration on the
miner before a miner is put in service, but this was apparently
not done for miner No. 5062.  (Tr. 117).  The difference was
apparently overlooked when the rebuilt  miner was received and
taken underground.  (Tr. 118).  If the comparison between the
approved drawing and the sprays on the miner had been made, the
disparity would have been noticed and it could have been easily
corrected by amending the drawing or installing the additional
sprays that were left off when the continuous miner was rebuilt
by the manufacturer.

     The miner operator checked the sprays to see that they were
working before beginning the cut in which the flame incident
occurred.  All sprays that were present and connected to the
water system were working.  That would include 37 sprays.  Four
other sprays were not working at the time of inspection because
they were plugged with coal dust.  Such plugs were to be expected
in the normal mining process.

     Checks were made on a regular basis to make sure the sprays
on the No. 5062 miner were operating properly but, apparently, no
one counted the number of sprays on the continuous miner and
compared them to the number of sprays on the parameter sheet of
the plan drawing.  The operator of the continuous miner and his
helper made the assumption that the sprays on the miner after the
manufacturer rebuilt the miner were the ones that were required
under the plan.  This mistaken assumption resulted in an
inadvertent, unintentional but, nevertheless, a clear violation
of the standard charged in the citation and order.  The evidence
clearly established a violation of the cited standards.

    The Evidence Presented Fails to Establish by a Preponderance
of the Evidence That the Violation Was S&S or Was Due to the
Operator's Unwarrantable Conduct

     A violation is properly designated as S&S in nature if,
based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a
reasonably serious nature.  Cement Division, National Gypsum, 3
FMSHRC 822, 825 (April 1981).  In Mathies Coal Co., 6 FMSHRC 1
(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 of Labor 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 [by the violation] will result in an
     injury; and (4) a reasonable likelihood that the injury
     in question will be of a reasonably serious nature.  6
     FMSHRC at 3-4.

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).

     In United States Steel Mining, Inc.,  7 FMSHRC 1125, 1129,
(August 1985), the Commission explained the third element of the
Mathies criteria as follows:

     We have explained further that 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).  We have emphasized that, in accordance with the
     language of section 104(d)(1), it is the contribution
     of a violation to the cause and effect of a hazard that
     must be significant and substantial.  U.S. Steel Mining
     Company, Inc., 6 FMSHRC 1866, 1868 (August 1984).

     Subsequently, the Commission has repeatedly reasserted its
prior determinations that to establish an "S&S" finding, the
Secretary must prove the reasonable likelihood of an injury or
illness occurring as a result of the hazard contributed to by the
cited violative condition or practice.  Peabody Coal Company, 17
FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC
508 (April 1996).

     The Commission has firmly established that the question of
whether a particular violation is significant and substantial
must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007 (December 1987).

     The facts surrounding the violation as shown in the
stipulations and the undisputed evidence in this case do not show
that serious injury or illness was reasonably likely.  For
example, the water pressure for all the water sprays in the
continuous miner in question required in the ventilation plan is
125 p.s.i.  The water pressure measured during the investigation
for the sprays on the Joy continuous miner in question was 250
p.s.i.  (Stip. 23).  Thus, the water pressure for the sprays on
the miner, in question, was twice the pressure required in the
ventilation plan.  The ten sprays that were mechanically plugged
were plugged because those sprays were designed for use only on
all other continuous miners of the same model with a scrubber and
the miner, in question, did not have a scrubber.  All other
continuous miners of the same model, 12CM12 used at the Willow
Creek Mine, the corresponding ten sprays at issue were
specifically restricted "Only use with scrubber."  There was
undisputed evidence that if those ten sprays were unplugged, they
would have conflicted with other sprays on the miner and would
not have assisted in the control of dust.

     Upon careful review of all the evidence presented in this
case, I find no evidence of overexposure to an excess of harmful
respirable dust.  The evidence presented in this case fails to
establish by a preponderance of the evidence the reasonable
likelihood that the hazard contributed to by this violation,
assuming continued normal operation, will result in an injury or
illness of a reasonable serious nature.

     There was some speculative testimony by the inspector
indicating that perhaps miners on the crew may have been over
exposed to an excess of harmful respirable dust but there was no
persuasive evidence to that effect.  There was only a bald-naked
statement which I find to be based on speculation and not on any
evidence presented in this case.  Petitioner has failed to prove
the reasonable likelihood of an injury or illness occurring as a
result of the hazard contributed by the cited violations.  There
is no persuasive evidence in this case that establishes that the
violations are significant and substantial.

Unwarrantable Failure

     The unwarrantable failure terminology is taken from section
104(d) of the Act and refers to more serious conduct by an
operator in connection with a violation.  In Emery Mining Corp.,
8 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more
than ordinary negligence.  Id. At 2001.  Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of
reasonable care."  Id at 2003-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).  The Commission has
discussed various factors in determining whether a violation is
unwarrantable, including the extent of a violative condition,
whether the violation is obvious, or poses a high degree of
obvious danger, whether the operator has been placed on notice
that greater efforts are necessary for compliance, and the
operator's efforts or lack thereof in abating the violative
condition once he is aware of the violative condition.  Mullins &
Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co.,
14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603
(July 1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44
(Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129
(July 1992).  The Commission has examined the operator's
knowledge of the existence of the dangerous condition.  E.g.,
Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug. 1994)
(affirming unwarrantable failure determination where operator
aware of brake malfunction failed to remedy problem); Warren
Steen, 14 FMSHRC at 1126-27 (knowledge of hazard and failure to
take adequate precautionary measures support unwarrantable
determination).

     Even more germain to the facts of this case is the
Commission holding that the culpability determination for finding
of unwarrantable failure is more than a "knew or should have
known" test.  Virginia Crews Coal Co., 15 FMSHRC 2103, 2107
(October 1993).

     I am satisfied from the evidence presented in this case that
the operator was not aware of the disparity and did not know,
before Inspector Lana Passarella's inspection, of the disparity
between the number of water sprays on the rebuilt miner and the
number specified in the approved ventilation plan.  A somewhat
similar case involving a similar disparity of water sprays on a
continuous miner is Basin Resources, Inc., 19 FMSHRC 1565, 1567.
In that case MSHA Inspector Fleshman indicated that the
difference between the number of sprays on the mine plan and the
number of sprays on the continuous miner was a "typical
oversight" that is generally corrected by amending the plan.  In
that case, the violation was held to be of a "technical nature
only" rather than serious.  Likewise, in this case MSHA admitted
that the violation could be abated by amending the parameter
drawing in the plan or installing the additional sprays shown in
the drawing.

     The evidence established to my satisfaction that had Plateau
been aware of the disparity, they would have promptly corrected
the problem by simply adding the additional water sprays called
for or would have amended the parameter drawing for continuous
miner No. 5062 to conform to the number of sprays that existed on
the miner when it was received at the mine after it was rebuilt
by the manufacturer.  Plateau was not trying to hide or mislead
anyone.  Plateau, in this instance, just failed to use the
ordinary care required to make sure the number of sprays on the
miner and the parameter drawing were identical.  They were
properly cited for their negligence and violations are affirmed.

     Although the citation and the order refer to two previous
ignitions, both previous ignitions involved different continuous
miners, not the one involved here, No. 5062.  Those ignitions
were investigated by MSHA and no violations were found and no
citations were issued.
(Stip. 25).

     About a month before the incident which prompted the
inspection and resulted in the issuance of this citation and
order, Inspector Lana Passarella observed continuous miner No.
5062 operating, but she did not inspect the water sprays on the
miner, although she always pays attention to the dust parameters
and control measures.  (Tr. 10, Stip. 26, Tr. 72).  She did not
observe any unusual amounts of dust or other conditions which
would have prompted her to inspect the miner more closely.  (Tr.
71-3).  In addition, the operator of miner No. 5062 observed
nothing unusual in the dust conditions when operating that miner.
The violation was not obvious.  It would require counting the
number of water sprays on the miner and comparing that number to
the number of sprays on the parameter drawing for miner No. 5062.
This was overlooked.  It was a mistake and a violation of the
standard as previously stated.  The operator failed to use the
ordinary care required by the facts and circumstances.  I,
therefore, find the operator was negligent and that the level of
the operator's  negligence was moderate rather than aggravated
conduct.

     I, therefore, conclude upon consideration of all the
evidence and factors that the violations of the cited standards
was not a result of the operator's aggravated conduct.  The
unwarrantable failure designation in the citation and order
should be deleted and the findings as to negligence should be
amended to moderate negligence.

Appropriate Civil Penalties

     The Judge is required by Commission Rule 30, 29 C.F.R. �
2700.30 as well as by the Mine Act itself, to consider the
statutory criteria set forth in � 110(i) of the Mine Act in
determining the appropriate civil penalty to each violation.

          Section 110(i) provides in relevant part:
          The Commission shall consider the operator's
          history of previous violations, the
          appropriateness of such penalty to the size
          of the business of the operator charged,
          whether the operator was negligent, the
          effect on the operator's ability to continue
          in business, the gravity of the violation,
          and the demonstrated good faith of the person
          charged in attempting to achieve rapid
          compliance after notification of a violation.

Size

     The parties stipulated that the Willow Creek Mine is a large
underground bituminous coal mine and employs approximately 270
miners.

History of Previous Violations

     Plateau's Ex. 1 sets forth Plateau's history of violations
before February 17, 1996.  Petitioner's Ex. 2 sets forth
Plateau's history during the period beginning February 17, 1996,
and ending February 16, 1998, which is the two-year period before
the February 17, 1998, inspection which resulted in issuance of
the citation and order.  During this two-year period, Plateau
received 186 citations and/or orders of which 16 had been
designated significant and substantial.

Negligence

     Respondent failed to exhibit the ordinary care that was
required by the facts and circumstances and this resulted in the
two violations previously discussed.  I evaluated the operator's
negligence to be moderate rather than unwarrantable conduct.

Operator's Ability to Continue in Business

     No evidence was offered on this criteria.  Consequently, in
the absence of evidence, I rely on the presumption that the
penalty assessed will not affect Plateau's ability to continue in
busines.

Gravity

     I have previously discussed the gravity and found that the
preponderance of the evidence presented in this case fails to
establish a S&S violation of the cited standard.

Good Faith in Rapid Compliance

     The evidence demonstrated Plateau's good faith in achieving
rapid compliance after notification of the violations.  All
violations were timely abated.

     Upon consideration of the stipulations and my evaluation of
the evidence in this case, I find the appropriate penalty for
each of the violations is $200.00

     In view of the findings, decision and assessment of
penalties in the Penalty Proceeding  Docket No. WEST 98-317, the
issues in the Contest Proceeding, Docket Nos. WEST 98-191-R and
WEST 98-192-R, have been resolved, and are now moot.
Consequently, those Contest Proceedings are dismissed along with
Docket No. WEST 98-317 upon receipt of payment of the civil
penalties I have assessed in the Penalty Proceeding.

                               ORDER

     Accordingly, it is ORDERED THAT PLATEAU MINING CORP. PAY a
civil penalty of $400.00 to the Secretary of Labor within 30 days
of the date of this decision.  Within the same 30 days, the
Secretary shall modify Citation No. 7611106 and Order No. 7611107
to delete the S&S and the unwarrantable failure findings and
change the level of negligence to "moderate."  Upon receipt of
payment of the penalties, these consolidated Contest and Penalty
Proceedings are DISMISSED.


                              August F. Cetti
                              Administrative Law Judge


Distribution:

R. Henry Moore, Esq., BUCHANAN INGERSOLL, One Oxford Centre, 301
Grant St., 20th Floor, Pittsburgh, PA 15219-8800   (Certified
Mail)

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

/sh