<DOC>
[DOCID: f:wv98109.wais]

 
CONSOLIDATION COAL COMPANY
July 28, 1999
WEVA 98-109


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          July 28, 1999

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No.  WEVA 98-109
               Petitioner       : A. C. No.  46-01318-04347
          v.                    :
                                :
CONSOLIDATION COAL COMPANY,     :
               Respondent       : Robinson Run No. 95 Mine

                             DECISION

Appearances: Melonie J. McCall, Esq., Office of the Solicitor, 
             U.S. Department of Labor, Arlington, Virginia, on
             behalf of Petitioner;
             Elizabeth S. Chamberlin, Esq., Consol Inc.,
             Pittsburgh, Pennsylvania, on behalf of Respondent.

Before: Judge Melick

     This case is before me upon  a  petition  for  civil penalty
filed  by  the Secretary of Labor against the Consolidation  Coal
Company (Consol)  pursuant  to Section 105(d) of the Federal Mine
Safety and Health Act of 1977,  30  U.S.C.  �  801,  et seq., the
"Act"  alleging  three  violations  of  mandatory  standards  and
seeking  a civil penalty of $4,350.00 for those violations.   The
general  issue   before   me  is  whether  Consol  committed  the
violations as alleged and,  if  so, what is the appropriate civil
penalty to be assessed considering  the  criteria  under  Section
110(i) of the Act.

     At  hearing  the  parties  agreed  to  settle  Citations No.
3322514  and 3495715 by reducing the civil penalty to  $1,588.00.
The proposed  settlement  was  supplemented  post-hearing  and is
acceptable under the criteria set forth in Section 110(i) of  the
Act.   An  order  directing payment of the agreed penalty will be
incorporated in this decision.

     The citation remaining  at  issue,  No.  3322516,  alleges a
"significant  and  substantial"  violation of the standard at  30
C.F.R. � 360(a)(1) and charges as follows:

          An adequate preshift examination was not conducted
     on  the  Nos.  13 and 14 belt conveyers,  in  that  two
     violations were  issued  on  loose  coal and float coal
     dust  on  these  two belt conveyors.  These  conditions
     were very obvious  and  should  have  been  reported or
     corrected.   Citations  No.  3322514  and 3322515  were
     issued  for  the loose coal and float coal  dust.   The
     mine examiner  shall be instructed on the proper way to
     preshift the belt conveyors.

     The cited standard,  30  C.F.R.  � 75.360(a)(1), provides as
follows:

          Except  as provided in paragraph  (a)(2)  of  this
     section, a certified  person designated by the operator
     shall  make  a  preshift  examination  within  3  hours
     preceding the beginning of  any  shift during which any
     person is scheduled to work or travel  underground.  No
     person  other  than  certified examiners may  enter  or
     remain  in  any  underground  area  unless  a  preshift
     examination has been completed for the shift.

     Inspector Walter Daniel  of  the  Department of Labor's Mine
Safety  and  Health Administration (MSHA)  cited  the  underlying
violative accumulations  at the Robinson Run No. 95 Mine on April
14, 1998.  The citations corresponding  to  those  violations and
the conditions cited therein are not disputed (Gov't  Exhs. No. 2
and  3).   The  first of these underlying citations, No. 3322514,
was issued at 6:10  p.m.,  on  April  14,  1998  and  alleges  as
follows:

          Loose  coal  and  rock  was  allowed to accumulate
     under  and in contact with the bottom  belt  under  the
     tail piece  in  the 13D (O81) Section.  Float coal dust
     had accumulated on  the tail piece and structure of the
     tail piece.  This was  in  an  area of approximately 20
     feet in length and 10 feet wide.   The  company's clean
     up plan was not being followed on this section.

     The second citation, No. 3322515, was issued  at  7:45 p.m.,
on the same date and alleges as follows:

          Loose coal was allowed to accumulate under, around
     and  in  contact  with  the bottom belt and bottom belt
     rollers at the 5 north No.  3  belt  drive.   The loose
     coal was in an area of approximately 45 feet in length,
     and 10 feet wide.  The loose coal ranged from 1 inch to
     12  inches  in depth.  The company's clean up plan  was
     not being followed on this belt line.

     It is not disputed  that  the  failure  to  report hazardous
conditions  in the preshift examination report may  constitute  a
violation of  the  cited  standard.  While acknowledging that the
violative conditions existed  at  the time they were cited, i.e.,
at 6:10 p.m. at the 5 North No. 3 belt  drive  and  at 7:45 p.m.,
near  the  9D belt transfer and box check, Consol maintains  that
these violative  conditions  did  not  exist  at  the time of the
preshift  examination  for  the  corresponding  shift.   In  this
regard,  it  is  significant that the issuing inspector  candidly
acknowledged at hearing  that  he  did not know how long the coal
accumulations he cited at 6:10 p.m.  and  at  7:45  p.m. had been
present  nor  how  bad  the  conditions  were  when  the preshift
examiner conducted his examination.

     The only direct evidence of conditions extant at the time of
the  relevant  preshift examination is the first-hand observation
of the examiner  himself,  Ray  Oldaker.  Oldaker has significant
mining experience and has worked  at the Robinson Run Mine for 27
years. On April 14, 1998, he was foreman in  charge  of  all  the 
mine's belts. He has been performing preshift examinations  since
1975 and has never  been  charged  with  performing an inadequate 
examination. Oldaker's reputation as an  extremely  conscientious 
mine examiner is  also  unchallenged.  His  reports  of  preshift 
examinations also appear  to  be  clear,  detailed and meticulous
(See Oldaker's reports in Resp.'s Exh. No. 2). In particular, his 
report of the preshift examination at issue in this case conducted 
between 1:00 p.m.  and  3:30  p.m.,  on  April 19, 1998,  cites a
number of hazardous conditions including  apparent  accumulations
in areas other  than those subsequently cited by Inspector Daniel 
in  this  case.  These  factors  serve  to  underscore  Oldaker's 
credibility.

     Oldaker  began  the  preshift  examination  for the oncoming
shift on April 14, 1998, at 1:30 p.m. At the transfer point at the 
100 crosscut, he stopped to  talk  with  belt  cleaner Jody Dodd. 
Dodd had then finished cleaning this area which was the same area 
as cited in Citation No.  3322514  and  referenced  by  inspector 
Daniel in the citation at bar.  (See Gov't Exh.  No. 2).  Oldaker  
testified credibly  that the  area  was  then  clean.  There  was 
no accumulation of coal spillage or coal dust.  As  he  proceeded  
with his examination he found an area of unrelated coal spillage.  
He reported this in the preshift  examiner's  report  as  located 
between the No. 87 and No. 92 blocks (See Resp.'s Exh. No. 2).

     Oldaker testified that he then proceeded to the box check at
the 9D location  where  he  saw  no hazardous conditions.  He did
observe at that time, however, two  garbage  bags containing used
rock dust bags nearby.  The practice at the mine  was to fill the
garbage  bags with the rock dust bags before removing  them  from
the mine.   He  did  not report these two bags as he did not find
them to be hazardous.   The  Secretary likewise does not consider
these bags to have been hazardous.   Oldaker  saw  no  rollers in
coal spillage nor rock dust bags in contact with rollers  at this
location.   The  rollers at that location also are situated three
feet off the floor.   I  find  Oldaker's  testimony  credible and
conclude that, indeed, the hazardous conditions found  and  later
cited  by  Inspector  Daniel  were  not  present  at  the time of
Oldaker's pre-shift exam.

     As  Consol  notes  the  most  likely  source  of  the  cited
accumulations was the coal spill at the 5 North, No. 3 belt drive
which  occurred  at  about  2:30  p.m.  -  - well after Oldaker's
examination  of  the  area.   In  addition,  the  area   of   the
accumulation  at  the 9D box check was an area of high turbulence
where  float  coal dust,  fine  coal  and  rock  dust  bags  were
continually blown  off  of  the  belt.  Finally, it is undisputed
that  coal  had  been  transported  from  four  continuous  miner
sections and a longwall section by the conveyor belt through this
area between the time of the preshift  exam  and  the inspector's
observations.   I  find  that, indeed, these factors most  likely
account for the buildup of accumulations after the preshift exam.

     Under all the circumstances, I find that the conditions cited 
by Inspector Daniel at 6:10  p.m.  and at 7:45 p.m. on April 14, 
1998, did not exist at the time of Oldaker's preshift examination.  
Citation No. 3322516 must accordingly be vacated. In reaching this 
conclusion  I  have  not  disregarded  the   testimony  of  union  
walkaround Joseph  Spadafore.   Spadafore  accompanied  Inspector  
Daniel during the subject inspection.  While recognizing his long  
underground mining experience,  his conclusion that it had taken 
several days or  eight  or nine shifts  for  the cited coal dust,  
etc. to accumulate,   is   without   adequate foundation. Indeed,  
his conclusion appears to be based on nothing more than conjecture
and speculation and therefore is  entitled to but little weight.

                              ORDER

     Citation Nos. 3395715 and  3322516  are affirmed as modified
and  Consolidation  Coal  Company  Inc. is directed to pay  civil
penalties of $794.00 for each of the  violations  charged therein
within  40  days  of  the  date  of this decision.  Citation  No.
3322516 is hereby vacated.


                              Gary Melick
                              Administrative Law Judge


Distribution: (Certified Mail)

Melonie J. McCall, Esq., Office of  the  Solicitor, U.S. Dept. 
of Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203

Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421


\mca