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[DOCID: f:wv98111x.wais]

 
CONSOLIDATION COAL COMPANY
May 3, 2000
WEVA 98-111


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           May 3, 2000

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. WEVA 98-111
               Petitioner      :  A. C. No. 46-01318-04348
          v.                   :
                               :  Robinson Run No. 95
CONSOLIDATION COAL COMPANY,    :
               Respondent      :  Mine:

                       DECISION ON REMAND

Before:  Judge Bulluck

     This  civil  penalty  proceeding  involves a violation of 30
C.F.R. � 75.214, a mandatory safety standard for underground coal
mines,  requiring  that,  "(a)  A  supply of  supplementary  roof
support  materials  and  the  tools and  equipment  necessary  to
install the materials shall be  available at a readily accessible
location on each working section or within four crosscuts of each
working section," and "(b) The quantity  of support materials and
tools and equipment maintained available in  accordance with this
section shall be sufficient to support the roof  if  adverse roof
conditions  are  encountered,  or  in  the  event  of an accident
involving a fall."  By decision issued June 9, 1999,  I concluded
that  the  Secretary  had  proven a "significant and substantial"
violation,  not  the  result  of   Consolidation  Coal  Company's
("Consol") unwarrantable failure to  comply  with  the  standard,
modified the 104(d)(2) order to a 104(a) citation, and assessed a
$2,000.00  penalty.   21  FMSHRC  612  (June  1999)  (ALJ).   The
Secretary appealed my unwarrantable failure determination.

     The  Commission  concluded that the violation was the result
of Consol's unwarrantable failure, reversed my determination, and
remanded the proceeding  for  my  assessment  of  an  appropriate
penalty. Consolidation Coal Company, 22 FMSHRC 328 (March 2000).


                       FACTUAL BACKGROUND

     In  its  decision,  the  Commission summarized the facts  as
follows:

          Consol owns and operates  Robinson  Run No. 95, an
     underground coal mine in West Virginia.  On January 15,
     1998,  MSHA  inspector Charles Thomas was conducting  a
     Triple-A inspection  at  the  mine.   While in the 12-D
     section  of  the  mine  to  check on safety  equipment,
     Thomas  noticed the absence of  any  centrally  located
     supplementary  roof  support,  including  posts,  caps,
     wedges,  and  a  saw.   As  a result, Thomas spoke with
     Consol day foreman Kevin Carter.   Thomas  asked Carter
     about  the  location of the supplementary roof  support
     and number of  roof posts.  According to Carter, Thomas
     told him to "count  your  posts."   Carter  told Thomas
     that  he  would "take care of it."  As Thomas left  the
     mine, accompanied  by  miner safety representative Dave
     McCullough,  Thomas  also   spoke  with  Consol  safety
     director Robert Church and told  him that attention was
     needed to address supplementary roof support in the 12-
     D section. Subsequently, during his  shift  on  January
     15,  Carter counted the posts and caps along the supply
     track  and  found that there were only 11.  Carter then
     spoke with mine  foreman  Tom  Harrison  and  requested
     additional  posts  and  other  roof  support materials.
     Around  3:00  or 4:00 that afternoon, Harrison  ordered
     the posts from  the supply yard, which is located about
     10 miles from the  12-D  section. MSHA inspector Thomas
     returned   to  the  mine  to  continue   his   Triple-A
     inspection on  January  17 during the midnight shift, 2
     days and four shifts after  he left the mine on January
     15.   Consol foreman Frank Slovinsky  was  substituting
     for the  regular foreman of section 12-D.  Thomas asked
     Slovinsky   where  the  emergency  roof  supports  were
     located.  Slovinsky  responded  that  they should be in
     the  tool  car.   When the posts could not  be  located
     there, the two searched  along  the  supply track outby
     four crosscuts of the section.  They eventually located
     11  posts  and  some cap pieces and wedges,  but  never
     found                       a                      saw.
     Inspector Thomas then issued Order No. 4888994 charging
     Consol  with  a violation of 30  C.F.R.  �  75.214  for
     failing to maintain  a  supply  of  supplementary  roof
     support  material  at  a  readily  accessible  location
     within    four   crosscuts   of   the   12-D   section.
     * * * * *

              Consol's  roof  control  plan for the Robinson
     Run  mine  further  specified that "[t]he  quantity  of
     supplementary  roof  support   material   required   by
     [section]  75.214(b)  shall  consist  of  a  minimum of
     twenty (20) posts of proper length with sufficient  cap
     pieces                   and                   wedges."
     The  inspector  designated the violation as significant
     and substantial (S&S)  and  alleged  that  it  was  the
     result   of   Consol's   unwarrantable   failure.   The
     violation  was  abated between 3:30 and 5:00  a.m.  the
     following morning  when  miners  were  able  to  locate
     additional posts along the supply and main tracks,  and
     stored  20  posts, along with wedges, cap pieces, and a
     saw, in the No. 11 crosscut.

Id. at 328 (citations and footnote omitted).


                             PENALTY

     In accordance with the Commission's decision, I reassess the
six penalty criteria  set  forth in section 110(i) of the Act, 30
U.S.C. � 820(j), in light of  the  elevated  degree of negligence
ascribed to Consol.  Consol is a large operator,  with an overall
history  of  violations  that  is  not  an aggravating factor  in
assessing  an  appropriate  penalty,  and the  $5,000.00  penalty
proposed by the Secretary will not affect its ability to continue
in business.  The gravity of the violation  is  serious since, as
previously  stated  in  the  original decision, time  is  of  the
essence in providing safe passage  for  rescue of miners who have
been injured by unforseen adverse roof conditions.   In  light of
the Commissions's conclusion that  "[f]ailing to follow up on the
inspector's  admonition  in  such  a  way  as  to insure that the
request for required roof control supplies did not  get  lost  in
the  company's  own  bureaucracy  is inexcusable," I ascribe high
negligence to Consol.  Id. at 333.   I also take into account the
Commission's finding that "Consol officials  made  some effort to
address  the  violation,"  albeit  inadequate, and consider  that
effort to be a mitigating factor.  Id. at 332.

     Accordingly,   having  considered   Consol's   large   size,
insignificant  history   of   violations,   seriousness   of  the
violation,  high  degree of negligence, good faith abatement  and
measures that it took  for  compliance  as a mitigating factor, I
find that a penalty of $4,000.00 is appropriate.

                              ORDER

     Accordingly, it is ORDERED that 104(d)(2)  Order No. 4888994
is  AFFIRMED,  as  issued,  and  that  Consol  pay  a penalty  of
$4,000.00 within 30 days of the date of this remand decision.


                               Jacqueline R. Bulluck
                               Administrative Law Judge


Distribution: (Certified Mail)

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

Elizabeth  Chamberlin,  Esq.,  Consolidation  Coal Company,  1800
Washington Road, Pittsburgh, PA 15241