<DOC>
[DOCID: f:wv2000110.wais]

 
CONSOLIDATION COAL COMPANY
October 24, 2000
WEVA 2000-110-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                        October 24, 2000

CONSOLIDATION COAL COMPANY,    :  CONTEST PROCEEDING
               Contestant      :
          v.                   :  Docket No. WEVA 2000-110-R
                               :  Citation No. 7143392; 8/28/2000
SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Loveridge No. 22
               Respondent      :  Mine ID 46-01433
                               :
             and               :
                               :
UNITED MINE WORKERS OF         :
  AMERICA (UMWA)               :
               Intervenor      :

                            DECISION

Appearances:  Robert  M.  Vukas,  Esq., Consolidation  Coal
              Company, Pittsburgh,  Pennsylvania,  for  the
              Contestant;
              Robert  S.  Wilson, Esq., Office of the Solicitor,
              U.S. Department of Labor, Arlington, Virginia, the
              Respondent;
              Claudia Davidson, Esq., Healey Davidson & Hornack,
              P.C.,  Pittsburgh,  Pennsylvania;  Judith  Rivlin,
              Esq., United  Mine  Workers  of  America, Fairfax,
              Virginia, (on the brief), for the Intervenor.

Before:  Judge Feldman

     This  proceeding  concerns  a  Notice  of Contest  filed  by
Consolidation  Coal  Company  (Consol)  that  challenges   104(a)
Citation  No.  7143392  issued  on  August  28, 2000, at Consol's
Loveridge  No.  22  Mine.   The  Loveridge Mine had  been  sealed
following a fire and explosion that occurred in June 1999.  Consol
began its efforts to re-enter the mine in July 2000 in accordance 
with a Mine Safety and Health Administration (MSHA) re-entry plan 
approved by the Secretary under section 103(k) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. � 813(k).[1]

     Citation  No.  7143392  alleges  a  violation  of  the  paid
walkaround rights conferred on miners' representatives by section
103(f) of the Federal Mine Safety and Health Act of 1977
(the Mine Act), 30 U.S.C. � 813(f).[2]  The central issue in this
matter is the circumstances under  which  Consol has a statutory  
duty, pursuant to the provisions of section 103(f) of the Mine Act,
to  pay a union representative to accompany  an  MSHA inspector 
who is  monitoring the underground recovery activities of MSHA 
personnel from a communications  center  located  on  the surface 
of mine property.  As a general proposition, as discussed below, 
section  103(f)  walkaround rights apply when MSHA is engaged  in
investigative  or  inspection  activities  conducted pursuant to 
section 103(a) of the Mine Act. 30 U.S.C. �  813(a). The United Mine 
Workers of America (UMWA) has intervened in this proceeding.

     The  expedited  hearing in this contest matter was conducted
on September 19, 2000, in Fairmont, West Virginia. At  the  hearing,
the Secretary and Consol proffered a written Motion for the Approval
of Settlement that is opposed by the UMWA.  A  ruling  on  the  set-
tlement motion was held in abeyance pending  briefs  in  support 
of  the  settlement  motion  by  the Secretary and Consol,  and  
the  UMWA's  written opposition.  The parties filed their post-
hearing briefs and opposition on October 18, 2000.

     Background

     As noted above, the Loveridge Mine was  sealed  in June 1999
following  an underground fire and explosion.  The mine  remained
sealed until  July  2000  to  allow the fire to burn out at which
time Consol personnel re-entered  the mine to determine if it was
safe to resume operations.  Entry into the mine was undertaken by
mine rescue teams to determine if re-entry  was  safe.   The mine
rescue teams consisted of MSHA and Consol personnel who carried
self-contained breathing apparatus (SCBA).  Because the mine  had
been sealed for more than one year, rehabilitation  work such as  
pumping  water,  and installation  of  electrical  cables and ven-
tilation controls was required before the site of the  fire  and 
explosion located deep inside the mine could be reached.  Initial 
entry into the mine in July 2000 began approximately eight miles 
away  from the site of the fire and explosion.

     A  communications center was established on the  surface  of
the mine  at  the Sugar Run Portal.  The communications center is
located in one  room  containing  desks,  a storage cabinet and a
table.   The  room  contains  one  outside  telephone  line.   In
addition,  there are three mine phones that are  connected  to  a
cable used to communicate within mine property on the surface and
underground.    These  three phones cannot be used to communicate
with off-site locations.   The  room  contains a mine ventilation
map and a mine re-entry map.  There are  no sampling, analysis or
barometric  devices in the room.  The communications  center  was
established as a central location for Consol, MSHA, West Virginia
Department of  Mines,  and Union officials, to monitor and record
underground activities.   Generally  speaking, Union officials do
not accompany mine rescue teams underground  during their initial
advancement  through  the  accident site because  conditions  are
unknown  and potentially hazardous.   Union  officials  had  been
present in  the communications center when underground activities
were monitored,  however,  they were not receiving walkaround pay
from Consol.

     On August 7, 2000, after  re-entry  efforts  had begun, MSHA
District Manager Timothy  Thompson responded to the July 28, 2000,
inquiry of Joseph Main, the MWA's  Occupational Health and Safety
Administrator,   concerning    MSHA's   interpretation   of   the
applicability of the no loss of  pay  (walkaround pay) provisions
of section 103(f) to the re-entry activity at the Loveridge Mine.
(Gov.  Ex.  3).  Thompson  noted recovery of  the  mine  included
initial  re-entry  as  well as  "subsequent  phases  of  accident
investigation, inspection, and rehabilitation work."  Id.

     Thompson characterized  the  re-entry activities at the mine
as "initial exploration . . . to re-establish  proper ventilation
and to ensure that the mine is safe for further  recovery  work."
Id.  Since the re-entry activities were taking place pursuant  to
the re-entry plan submitted by Consol under section 103(k) of the
Mine  Act,  Thompson opined that MSHA's activities during the re-
entry phase "are not related to inspection activity under section
103(a)."  Id.   Although Thompson noted enforcement action during
this phase is possible, he explained that such enforcement action
was "highly unlikely."   Id.   Rather,  Thompson opined that MSHA
was serving as a "first-person" observer  who was present to lend
technical  support  during  rehabilitation   activities  such  as
installation  of electrical cables to re-establish  power,  track
installation,  water  pumping  and  installation  of  ventilation
controls.  Id.

     Thompson  further   explained   that   once   the  mine  was
rehabilitated,    MSHA   would   conduct   inspections   and   an
investigation of the  accident  pursuant  to section 103(a).  Id.
Finally,  Thompson  stated  that,  consistent  with   prior  MSHA
applications  of  section 103(f) to mine recovery efforts,  post-
rehabilitation inspections  and investigations would give rise to
the no loss of pay walkaround provisions of section 103(f).  Id.

     The rescue teams initially  arrived  at the site of the fire
and explosion on August 25, 2000.  Shortly  thereafter, on August
28, 2000, MSHA supervisor Paul Mitchell arrived at the Loveridge 
Mine  to  monitor  activities from the  communications center.  
Mitchell notified Consol that he was there as part of an accident
investigation and that  a  miners'  representative  was entitled 
to accompany him  during his inspection. Consol disagreed that Mit-
chell was conducting a "physical inspection" of the mine as contem-
plated by  section  103(f),  and  it refused to provide  a  paid 
miners' representative to accompany him.   As  a result of Consol's
refusal  to  provide a paid Union official to accompany Mitchell 
in the communications  center, MSHA issued the subject  Citation 
No.  7143392 alleging a violation  of  section 103(f) of the Mine 
Act. The  violation, which was characterized as non-significant and
substantial  (non-S&S),[3]  was attributed to Consol's moderate 
degree of negligence.

     The Settlement Agreement

     At the hearing, after extensive off-the-record  negotiations
between  the  parties,  the  Secretary  and  Consol  reached   an
agreement  concerning  the applicability of section 103(f) to the
recovery activities at the  Loveridge  Mine.   Consequently,  the
Secretary  and  Consol  proffered  a  formal  Motion  to  Approve
Settlement at the hearing.  Under the proposed settlement, Consol
proposes to withdraw its contest of Citation No. 7143392, and, it
has  agreed  to  pay  a  civil penalty of $55.00.  In return, the
Secretary moves to modify  Citation  No.  7143392 to reflect that
Consol's negligence was "low" because it had  a good faith belief
that   section  103(f)  did  not  require  it  to  pay  a   Union
representative  who  was  accompanying  an MSHA inspector who was
monitoring   underground  activities  from  the   surface.    The
settlement terms  also  note  Consol's  immediate  and good faith
abatement of the citation.

     The  settlement  agreement  also  sets forth a statement  of
understanding  concerning MSHA's application  of  section  103(f)
during the recovery  activities  at the Loveridge Mine.  Pursuant
to the their motion, Consol stipulates  that when MSHA is engaged
in  activities  related  to the investigation  of  the  fire  and
explosion, and, a paid Union  representative  is not accompanying
MSHA   personnel   underground,   Consol   will   pay   a   Union
representative  to  accompany  MSHA  personnel who are monitoring
activities from the surface.  The motion further sets forth that,
when paid Union officials are with MSHA  personnel underground at
all  locations  where  MSHA is conducting accident  investigation
activities, Consol is not  required  to provide a paid walkaround
on the surface in the communications center.

     At the hearing, the UMWA objected to the proposed settlement
asserting that the settlement agreement  is  overly broad because
it  does not distinguish section 103(a) inspection  and  accident
investigation  activities  from  section 103(k) technical support
activities   related   to  MSHA's  general   re-entry   oversight
authority.  In addition,  the  UMWA  asserts  that section 103(f)
requires Consol to pay a Union representative who  is  present in
the  communications  center during MSHA monitoring regardless  of
whether  underground  MSHA  personnel  are  accompanied  by  paid
walkarounds.

     Discussion and Evaluation

     The UMWA has intervened  in  this  proceeding as a matter of
right pursuant to Commission Rule 4(b).   29  C.F.R. � 2700.4(b).
Having intervened, Commission Rule 4(a) confers  party  status on
the UMWA.  29 C.F.R. � 2700.4(a). This case presents the  unusual
threshold question concerning whether an Administrative Law Judge
has   the  authority  under  Commission  Rule  31  to  approve  a
settlement  motion  over  the objections of an intervening party.
29 C.F.R. � 2700.31.

     In this contest proceeding  brought  by  Consol  against the
Secretary, Consol and the Secretary are indispensable parties.[4]
The UMWA is an interested party with standing.[5]
While  a settlement agreement between an indispensable party  and
an interested  party cannot be approved over the objection of the
other  indispensable   party,  it  is  clear  that  a  settlement
agreement between indispensable  parties can be approved over the
objection of an interested party.   Thus,  the  UMWA's opposition
does  not  preclude  the  grant  of  the settlement motion  under
Commission Rule 31.

     Resolution  of  whether the settlement  proposal  should  be
approved must be based  on   whether  the  terms of the agreement
result in a reasonable interpretation and application  of  the no
loss  of  pay  provisions  of section 103(f) of the Mine Act.  In
making  this  determination,  it   is   helpful  to  examine  the
legislative history of section 103(f), as well as its language.

     The walkaround rights provisions of  section  103(h)  of the
Federal  Coal  Mine  Health and Safety Act of 1969 (the 1969 Mine
Act)  established  the  right  of  a  miners'  representative  to
accompany  an  MSHA inspector  during  "any  inspection"  without
requiring the mine operator to pay the miners' representative for
the time spent accompanying  the  MSHA  inspector.   30  U.S.C. �
813(h)  (1976).   Thus,  while the 1969 Mine Act provided a broad
right for miners' representatives  to  accompany MSHA inspectors,
there was no corresponding responsibility of  the mine operator to
pay the walkaround representative.

     Section  103(f) of the 1977 Mine Act  changed  significantly
the language of section 103(h) of the 1969 Mine Act by adding the
right to no loss  in  pay, with express limitations, to the right
to accompany.  Specifically, section 103(f) provides:

          Subject   to  regulations   issued   by   the
          Secretary ,  a representative of the operator
          and a representative authorized by his miners
          shall be given  an  opportunity  to accompany
          the     Secretary     or    his    authorized
          representative during the physical inspection
          of any coal or other mine  made  pursuant  to
          the  provision  of  subsection  (a),  for the
          purpose  of  aiding  such  inspection  and to
          participate   in   pre-   or  post-inspection
          conferences held at the mine.  Where there is
          no   authorized  miner  representative,   the
          Secretary  or  his  authorized representative
          shall  consult with a  reasonable  number  of
          miners  concerning   matters  of  health  and
          safety in such mine.   Such representative of
          miners  who  is  also  an  employee   of  the
          operator  shall  suffer no loss of pay during
          the  period  of  his   participation  in  the
          inspection  made under this  subsection.   To
          the extent that  the  Secretary or authorized
          representative  of  the Secretary  determines
          that more than one representative  from  each
          party  would  further  aid the inspection, he
          can permit each party to have an equal number
          of such additional representatives.  However,
          only one such representative of miners who is
          an employee of the operator shall be entitled
          to suffer no loss of pay during the period of
          such participation under  the  provisions  of
          this   subsection.    Compliance   with  this
          subsection  shall  not  be  a  jurisdictional
          prerequisite  to  the  enforcement   of   any
          provision of this Act.  (Emphasis added).

     While, unlike the 1969 Act, the 1977 Act provides  for  both
the  right  to  accompany  and  the  right to pay, the broad "any
inspection"  language in the 1969 Act was  changed  to  "physical
inspection . .  .  made  pursuant to the provisions of subsection
(a)."  Thus, the right to  pay under Section 103(f) is contingent
upon  MSHA's  activities  being   conducted   "pursuant   to  the
provisions  of  subsection  (a)."   Subsection (a) of section 103
authorizes   the   Secretary   to   conduct   "inspections"   and
"investigations" for the following purposes:

          (1)  Obtaining information concerning  health
          and safety  conditions, the causes of accidents,
          and  the causes of diseases and physical impair-
          ments;

          (2)  Gathering  information  with respect  to
          mandatory health or safety standards;

          (3) Determining whether  an  imminent  danger
          exists; and

          (4) Determining whether there has been compliance
          with mandatory health  and  safety standards or 
          with citations, orders, or decisions issued under
          the 1977 Mine Act.

     The D.C. Circuit Court of  Appeals  has  determined that the
phrase "physical inspection . . . made pursuant to the provisions 
of  subsection (a)" should be broadly construed to include all  
inspections  pursuant to Section 103(a), not just regular quarterly
inspections.  United Mine Workers of America v. FMSHRC, 671 F.2d 
615, 623-27 (D.C. Cir. 1982), cert. denied, 459 U.S. 927 (1982).
However, the extent to which miners' representatives have a right
to receive pay under section 103(f) is not unlimited.  For example,
section 103(f) limits the right to receive pay  o only one miners'
representative per inspection party, and only for 103(a) activities.

     Here, the settlement  terms  reflect that the no loss of pay
provisions  of section 103(f) will not  apply  to  rehabilitation
activities in areas unrelated to the accident site that are being
observed  by MSHA  pursuant  to  its  oversight  authority  under
section  103(k).    Such   activities   include   pumping  water,
installing  electrical  cables,  track repair and re-establishing
ventilation controls.

     Consistent  with their agreement,  Consol  has  assured  the
Secretary that, during the re-entry efforts at  the  Loveridge  
Mine,  it  will  either  pay miners'  representatives  who  accom-
pany fire and rescue teams at the  underground  accident  site, or,
it will pay a miners' representative to be present in the communi-
cations  center,  but not both. Thus, when  Union  representatives
elect not to "physically" accompany rescue teams at a location in 
proximity to the accident  site because it is too dangerous, Consol
has agreed to pay a Union  representative to accompany MSHA personnel
in the communications center. In view of Consol's limited agreement 
to pay Union officials on the surface during monitoring by MSHA, the
question of whether MSHA's   monitoring  from  the mine's surface
constitutes  a "physical inspection" as contemplated  by  section
103(f) need not be addressed.

     The UMWA  objects to the settlement agreement on the grounds
that it is overly broad. In this regard,  the  UMWA asserts miners
"remain uncertain about when they would have a right to a 103(f) 
representative under the terms  of  the  proposed  agreement."
(Brief in Opp., p.6). Obviously, the parties settlement agreement
cannot anticipate or address the myriad of circumstances that may
occur  in the future that may raise walkaround issues.  However, 
while the  provisions of section 103(f) should be broadly construed,
the UMWA  does not have an unlimited right to paid walkarounds.

     As noted above, disposition of the settlement motion must be
based  on  whether  the  settlement terms constitute a reasonable
interpretation  and application  of  the  provisions  of  section
103(f).   The settlement  terms  recognize  that  section  103(a)
inspection   and  investigation  activities  give  rise  to  paid
walkaround rights.   Moreover,  ensuring no loss of pay either to
Union  walkarounds  underground, or  to  a  Union  representative
monitoring  on  the  surface   when   paid  walkarounds  are  not
underground, is consistent with the language  of  section  103(f)
that  "only  one such representative of miners who is an employee
of the operator shall be entitled to suffer no loss of pay during
the period of such participation under the provisions of [section
103(f)]."[6]

     Thus, as  a  general matter, it is apparent that the subject
agreement is consistent  with  the plain meaning of the statutory
language that limits paid walkarounds  to  section 103(a) related
MSHA  activities.   More  specifically,  with  respect   to   any
ambiguity that may exist concerning the Secretary's position that
MSHA's  section  103(k)  actions do not constitute section 103(a)
activities giving rise to  section  103(f) walkaround rights, the
Secretary's interpretation that no enforcement  or  investigative
activities  are  occurring  under the color of section 103(k)  is
reasonable, and is entitled to  deference.   See,  e.g.,  Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467  U.S.
837, 843-44 (1984).  Consequently, the UMWA, as an intervenor  in
this  matter  under  Commission  Rule  4, has failed to provide a
basis for denial of the joint settlement motion.

     In  the  future,  if  the Union believes  its  rights  under
section 103(f) are being denied, it can exercise its rights under
section 103(g).[7]  However,  in  the  final  analysis, MSHA must
determine whether the facts warrant citing Consol  for  a section
103(f) violation.  The Secretary has expressed her hope that  the
need  for future 103(g) complaints will be eliminated as a result
of the  settlement  reached  in this matter.  (Sec.'s Mem., p.7).
While Union representatives should  be  encouraged to confer with
MSHA  if  legitimate  questions arise, I am  confident  that  the
provisions of section 103(g) will not be abused.

     As a final note, I  am  sensitive  to  the UMWA's desire, as
expressed at the hearing and in its opposition,  to  achieve  the
broadest  possible  participation  of miners in health and safety
matters.  (See, e.g., Brief in Opposition,  p.14).   However, the
Union's goal of maximizing miner participation does not alter the
fact that the Mine Act does not always require a mine operator to
pay a walkaround who wishes to accompany MSHA personnel.   At the
hearing   Consol   conceded   that  a  Union  representative  may
accompany MSHA inspectors who are in the communications center on
an  unpaid  basis at any  time.   Unfortunately,  miners  may  be
discouraged  from  participating  in  walkaround  activities  not
covered by the pay provisions of section 103(f). Under  such circum-
stances,  perhaps  the  Union should consider alternative sources
of funding.

                              ORDER

     In  view  of  the  above  the  joint  motion  to approve the
settlement in this matter between the Secretary of Labor and Consol-
idation Coal Company IS GRANTED. Consistent with the  parties  agree-
ment,  IT IS ORDERED that 104(a) Citation  No. 7143392 IS AFFIRMED
as modified to reflect the  degree  of negligence associated with
the cited violation is low.

     IT IS FURTHER ORDERED that Consolidation Coal Company shall 
pay a civil penalty of $55.00 in satisfaction of Citation No. 7143392.
ACCORDINGLY, the contest proceeding in Docket No. WEVA 2000-110-R
IS DISMISSED.


                              Jerold Feldman
                              Administrative Law Judge


Distribution:

Robert Vukas, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

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

Claudia Davidson, Esq., Healey, Davidson  &  Hornack,  P.C.,  429
Fourth Avenue, Fifth Floor, Law and Finance Building, Pittsburgh, 
PA 15219  (Certified Mail)

Judith  Rivlin,  Esq., United Mine Workers of America,  8315  Lee
Highway, Fairfax, VA 22031-2215 (Certified Mail)

/mh

**FOOTNOTES**

     [1]:  Section  103(k)  requires  an  operator  to  obtain the
Secretary's  approval  of  any  recovery plan concerning re-entry
into a mine following an accident  such  as  a fire or explosion.
It also authorizes the Secretary to issue any  orders  she  deems
necessary to insure the safety of those re-entering the mine.

     [2]:  The  terms miners' representative, Union official, and
Union  representative  refer  to  Consol  employees  who  act  as
walkaround representatives.  These terms are used interchangeably
in this decision.

     [3]:  A violation is properly characterized as non-S&S if it
is not reasonably  likely  that  the hazard contributed to by the
violation will result in an event  that  causes illness or injury
of  a  reasonably  serious nature.  U.S. Steel  Mining,  Inc.,  7
FMSHRC 1125, 1129 (August 1995).

     [4]:  An indispensable  party is defined as,  "[a] party who,
having interests that would inevitably be affected by the court's
judgment, must be included in  the  case.  If such a party is not
included, the case must be dismissed.  Fed. R. Civ. P. 19(b). Cf.
necessary party."  Black's Law Dictionary 1144 (7th ed. 1999).

     [5]:  An interested party is defined as, "[a] party who has a
recognizable stake (and therefore standing) in a matter.  Black's
Law Dictionary 1144 (7th ed. 1999).

     [6]:  It  should  be  noted  that section  103(f)  has  been
interpreted to mean that the mine operator  is  obligated  to pay
more than one miners' representative when there are multiple MSHA
inspections  occurring  simultaneously  at  different underground
locations.  However, only one representative per inspection party
is  covered  by the provisions of section 103(f).   Magma  Copper
Company, 1 FMSHRC  1948,  1951-52  (December  1979),  aff'd Magma
Copper  Co. v. Secretary of Labor, 645 F.2d 694 (9th Cir.  1981),
cert. denied, 102 S. Ct. 475 (1981).

     [7]:  Section  103(g)  of  the Mine Act authorizes a miners'
representative to request an immediate  MSHA  inspection whenever
such  representative has "reasonable grounds to  believe  that  a
violation of [the] Act . . ." has occurred.  30 U.S.C. � 813(g).