<DOC>
[DOCID: f:yo95115m.wais]

 
LEHIGH PORTLAND CEMENT COMPANY
May 24, 1996
YORK 95-115-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                             May 24, 1996

SECRETARY OF LABOR,           :    CIVIL PENALTY PROCEEDING
 MINE SAFETY AND HEALTH       :
 ADMINISTRATION (MSHA),       :    Docket No. YORK 95-115-M
               Petitioner     :    A. C. No. 18-00017-05551
          v.                  :
                              :    Union Bridge Maryland
LEHIGH PORTLAND CEMENT        :
 COMPANY,                     :
               Respondent     :

                  DECISION APPROVING SETTLEMENT
                           ORDER TO PAY

Before:  Judge Merlin

     This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977.  The Solicitor has filed a motion to 
approve settlements for the two violations in this case. A 
reduction in the penalties from $7,000 to $3,500 is proposed.

     Citation No. 3591774 was issued for a violation of 30 C.F.R.
� 56.5002 which requires that dust, gas, mist, and fume surveys
be conducted as frequently as necessary to determine the adequacy
of control measures. The inspector issued the citation because 
two miners became ill in the area around the mill feed control 
center and kiln stack where he believed toxic gases had accumulated.
It appeared to the inspector that the gases came from the stack 
of the kiln, which was in the process of being preheated by three 
oil torches.  According to the inspector's description on the 
citation, statements obtained from company personnel at the
scene indicate that the torches may not have been burning properly.
Shortly after the first miner became ill, a company foreman 
measured greater than 2 ppm of sulfur dioxide and 19% oxygen
between the 4th and 5th pier on the south side of the kiln. 
The citation was designated significant and substantial and 
negligence was rated as high. The originally assessed penalty
was $5,000 and the proposed settlement is $2,500.

     The Solicitor represents that the reduction is warranted
because negligence and gravity are less than originally thought. 
According to the Solicitor, the allegation in the citation that
the two employees suffered headaches due to exposure to sulphur
dioxide is not fully supported by available evidence.  The 
Solicitor states that six gas readings were taken by the foreman
immediately prior to the display of symptoms.  Only one of
these readings revealed a measurable quantity of sulphur dioxide
but that reading was unreliable because radio frequency 
interference from the foreman's portable radio may have 
triggered a false reading.  According to the Solicitor,
although the symptoms displayed indicated exposure to some
gas accumulation, identification and quantity cannot factually
be established.

     It appears from his motion that the Solicitor will be unable
to prove the degree of gravity or even the correctness of evidence
regarding the gas readings.  However, since readings were taken, 
the degree of negligence is lessened.  Accordingly, I accept the 
Solicitor's representations, and approve the proffered settlement 
which remains a substantial amount.

     Citation No. 3591775 was issued for a violation of 30 C.F.R.
� 56.4330(a) which requires operators to establish emergency 
firefighting, evacuation, and rescue procedures and directs that 
these procedures be coordinated in advance with available 
firefighting organizations.  This citation was issued at 
the same time as the one discussed above.  A Lehigh Cement 
Management employee entered a taped off area despite a request
from a fire department officer to wait for properly equipped 
and trained  personnel.  The inspector stated on the citation
that the management employee wanted to remove an employee of 
an independent contractor from the area.

     The violation was designated significant and substantial
and negligence was rated as moderate.  The originally assessed 
penalty was $2,000 and the proposed settlement is $1,000. The 
Solicitor represents that the reduction is warranted because 
negligence is not as high as originally thought.  According to
the Solicitor, the management official who had just monitored
the area, found no problem with excess gas levels and did not
experience any physical symptoms.  The Solicitor states that
the official only entered the area in order to evacuate the 
employee of a contractor.  In addition, my review of the file 
shows that on the day after the citation was issued, the 
inspector modified it by reducing the likelihood of injury
from occurred to highly likely and the number of miners 
affected from two to one.  Finally, I note that no mention was 
made in the narrative findings to the effect that this violation
caused an injury.  In light of the foregoing, I approve the
proffered settlement which remains a substantial amount and 
find it is appropriate under section 110(k) of the Act, 
30 U.S.C. � 820(k).

     I note that these violations do not represent the first 
time the operator has encountered problems like those described
in the subject citations.  The operator should consider itself
on notice that if violations like these occur in the future, I 
will not approve penalty reductions of this magnitude.

     WHEREFORE, the motion for approval of settlements is
GRANTED, and it is ORDERED that the operator PAY a penalty
of $3,500 within 30 days of this decision.


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution:

Joseph T. Crawford, Esq., Office of the Solicitor, U.S.
Department of Labor, Gateway Bldg., Rm. 14480, 3535 Market
St., Philadelphia, PA   19104

Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius, LLP,
2000 One Logan Square, Philadelphia, PA 19103-6993

Mr. Walter E. Smith, Mine Representative, 601 S.
Springdale Road, New Windsor, MD 21776

/gl