Consolidation Coal Company

Plain-English summary

Consolidation Coal Company faced two citations at its Blacksville No. 2 Mine. The parties settled one citation involving inadequate identification markings for circuit breakers, reducing the proposed penalty from $1,155 to $350. Judge Jerold Feldman approved that settlement and ordered payment within 30 days. The judge stayed further action on the second citation, which involved alleged failure to timely abate a respirable-dust violation, because the validity of MSHA's single-sample dust method was being litigated in the Keystone Coal case.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.904
• Outcome: Settlement of one citation approved with a $350 penalty, while proceedings on the second citation were stayed.
• Key point: A related legal challenge to MSHA's single-sample dust method justified staying the unresolved citation while a separate case was decided.

Full text (FMSHRC public release)

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SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-798
Petitioner : A.C. No. 46-01968-03980
v. : Blacksville No. 2 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

               PARTIAL DECISION APPROVING
                SETTLEMENT AND STAY ORDER

Appearances: Caryl Casden, Esq., U.S. Department of Labor
Office of the Solicitor,
Arlington, Virginia for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Feldman

 A hearing in Docket No. WEVA 92-798, was held on

November 17, 1992, in Morgantown, West Virginia.(Footnote 1)
This proceeding involves two 104(a) Citations. At the hearing
the parties moved for approval of their settlement agreement with
respect to Citation No. 3715434. The parties also jointly moved
for a stay of the remaining Citation No. 3720751(Footnote 2).
The parties' joint motions were granted on the record as
reflected in this decision.

 Citation No. 3715934 alleges a violation of the regulatory

standard found at 30 C.F.R. Section 75.904, namely, a failure to
adequately mark circuit breakers for identification. At the
hearing, the Secretary moved to amend the proposed penalty from
$1,155 to $350. The proposed penalty reduction was based on an

1 This docket proceeding was contemporaneously tried with Docket
Nos. WEVA 92-799, 92-800, 92-801. These cases will be
adjudicated in a subsequent decision.

2Citation No. 3720751 was initially issued as a 104(d)(2) order.
However, it was subsequently modified to 104(a) citation.

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error in the initial calculation. The parties represented that
the respondent has agreed to pay the amended $350 proposed
penalty. As noted on the record, based on the parties'
representations at the hearing, I conclude that the proffered
settlement is appropriate under the criteria contained in Section
110(i) of the Mine Act.

 Citation No. 3720751 was issued as a result of the

respondent's alleged failure to timely abate an alleged violation
of the respirable dust concentration standard on the longwall
jack setter occupation (041) on the 14-M longwall. The
respirable dust concentration in question was obtained through
the Secretary's single sample spot inspection method. The
validity of this method of dust sampling is currently before
Judge Weisberger in Keystone Coal Company Docket Nos. PENN
91-1480-R, 91-1454-R, 92-54-R, 92-114 and 92-119. The parties
have jointly moved to stay further action on this citation
pending final disposition in the Keystone case. While the
respondent concedes that it had an obligation to timely abate the
condition despite its appeal of the underlying dust concentration
violation, the parties maintain that the ultimate resolution in
Keystone may have a bearing on the respondent's inclination to
settle and on the appropriate penalty to be assessed. Good cause
having been shown, the parties joint motion to stay this
proceeding as it pertains to Citation No. 3720751 will be
GRANTED.

                      CONCLUSION

 ACCORDINGLY, the joint motion for the approval of settlement

of Citation No. 3715934 IS GRANTED, and IT IS ORDERED that the
respondent pay a penalty $350 within 30 days of the date of this
decision. IT IS FURTHER ORDERED that this docket proceeding as
it pertains to Citation No. 3720751 IS STAYED pending the
disposition in Keystone Coal Company, supra.

                                   Jerold Feldman
                                   Administrative Law Judge

Distribution:

Charles Jackson, Esq., Robert Wilson, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Room
516, Arlington, VA 22203 (Certified Mail)

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

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