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RAG EMERALD RESOURCES CORP.
April 4, 2000
PENN 99-2-R

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         April 4, 2000

RAG EMERALD RESOURCES CORP.,    : CONTEST PROCEEDING
               Contestant       :
          v.                    : Docket No. PENN 99-2-R
                                : Citation No. 7013288; 9/29/98
SECRETARY OF LABOR,             :
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Emerald No. 1 Mine
               Respondent       : Mine ID No. 36-05466
                                :
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. PENN 99-201
               Petitioner       : A. C. No. 36-05466-04136
          v.                    :
                                :
RAG EMERALD RESOURCES CORP.,    :
               Respondent       : Emerald No. 1 Mine

                             DECISION

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll Professional 
             Corporation, Pittsburgh, Pennsylvania, on behalf of 
             RAG Emerald Resources Corp.;
             Andrea J. Appel, Esq., Office of the Solicitor, U.S. 
             Dept. of Labor, Philadelphia, Pennsylvania, on behalf 
             of the Secretary of Labor.

Before: Judge Melick

     These case are before me pursuant to Section  105(d)  of the
Federal  Mine Safety and Health Act of 1977, 30 U.S.C.  801,  et
seq., the  "Act," to challenge Citation No. 7013288 and the civil
penalty assessed  for the violation charged therein.  The general
issue before me is  whether  RAG  Emerald  Resources  Corp. (RAG)
violated  the cited standard as alleged and, if so, what  is  the
appropriate civil penalty to be assessed considering the criteria
under Section 110(i) of the Act.

     Citation  No.  7013288  was  issued  on  September 29, 1998,
pursuant to Section 104(a) of the Act.  It alleges a violation of
30 C.F.R.  75.360(b)(10) and charges as follows:

          Certified persons were assigned to perform work in
     areas   that  did  not  have  a  pre-shift  examination
     performed.   The  work  was  scheduled to the examiners
     prior to the mine being pre-shifted  examined  for  the
     oncoming  shift.  These areas generally involved people
     being assigned  to  perform work in return air courses,
     escapeway and bleeder entries.

     The cited standard, 30  C.F.R.   75.360(b)(10), provides as
follows:

     (b)  The  person  conducting the pre-shift  examination
     shall  examine  for  hazardous   conditions,  test  for
     methane and oxygen deficiency and  determine if the air
     is  moving  in  its proper direction at  the  following
     locations.

                              * * *

     (10) Other areas were work or travel is scheduled prior
     to the beginning of the pre-shift examination.

     The specific issue  before me then is whether the areas that
were the subject of the citation  had  to  be  pre-shift examined
under 30 C.F.R.  75.360(b)(10).

Stipulated Facts

     The  parties  have  reached  multiple  stipulations,  the
following of which are relevant to this issue:

     The areas that are  at  issue  in  this proceeding, the work
     that was done and the dates on which it was performed are as
     follows:

          August 27, 1998218 left return mopped float dust

          August 27, 1998H panel belt set two posts

          August 27, 1998H panel belt set two posts

          September 2, 1998218 right returnset post

     The  persons  who  performed the above-described  work  were
     certified   mine  examiners   who   conducted   supplemental
     examinations   before   they   began  the  work.   Certified
     examiners are authorized to perform  examinations  under  30
     C.F.R.  75.360,  75.361 and  75.362.

     Mine management did not have preshift examinations performed
     for such work.

     Mine  management  was  aware, prior to the start of the pre-
     shift  examinations on the  shifts  in  question,  that  the
     above-described work needed to be done.  Such conditions had
     previously been reported during the weekly mine examinations
     conducted under 30 C.F.R.  75.364.

     Prior to  the  start  of  the  specific  shifts in question,
     Respondent's  mine  management  expected  this  work  to  be
     performed  during  these  shifts,  provided that  sufficient
     hourly personnel reported for work in the shifts.

     Sufficiently  hourly  personnel to accomplish  the  specific
     work in question did report  for  work  on the two shifts on
     August 27, 1998 and September 2, 1998.

     On the dates and shifts at issue, management  had  pre-shift
     examinations  performed  of the active working sections  and
     other areas of the mine where  miners  work  or  travel on a
     regular  basis  on  each shift.  Such examinations are  done
     regularly every eight hours seven days a week.

     If a hearing were held  in  this matter, Emerald would offer
     evidence that it did not perform  pre-shift  examinations of
     the areas in questions for two reasons:

          (a) it did not believe it was required to do so; and

          (b)  it did not want to interrupt the regular  schedule
     of pre-shift  examinations  because  it  believed  that  any
     disruption  in  the  schedule  might  result  in a pre-shift
     examiner overlooking an area of the mine that was  regularly
     scheduled  to be pre-shift examined and it would reduce  the
     amount of the  time  for  the  regularly scheduled pre-shift
     examinations  in areas where miners  work  or  travel  on  a
     regular basis on a particular shift.

     In agreeing to  this  stipulation, the Secretary agrees only
     that  Emerald would offer  evidence  at  hearing  as  it  is
     described  herein.   The  Secretary does not agree as to the
     validity of Emerald's rationale  and  the Secretary does not
     stipulate to the relevancy of this paragraph  with regard to
     the  existence  of  a  violation  as  the  Act  is  a strict
     liability statute.

     The issue in this proceeding is whether the areas that  were
     the  subject  of  the  Citation had to be pre-shift examined
     under 30 C.F.R.  75.360.

Analysis

     Under the standard at 30  C.F.R.    75.360(a)  a  certified
examiner must conduct a pre-shift examination within three  hours
before  "the  beginning  of  any  shift  and before anyone on the
oncoming shift . . . enters any  underground  area  of  the  mine 
. . ." Section 75.360(b)(10), cited herein, specifically requires
that a pre-shift  examination be performed in areas where work or
travel  during the oncoming  shift  is  scheduled  prior  to  the
beginning  of  the pre-shift examination.  It has been stipulated
in this case that  RAG  knew  before the commencement of the pre-
shift examination for the shifts  in  question  that the specific
work  identified in the stipulations needed to be  performed  and
that RAG management expected this work to be performed during the
shifts at issue.  It has been further stipulated that rather than
conduct  a pre-shift examination in those areas in which work was
expected to  be  performed  during the oncoming shift RAG had the
same persons who performed the work, who were also certified mine
examiners,   conduct  supplemental   examinations   before   they
commenced their work.

     It is the  well  established  law  that  if  a  regulation's
meaning is plain on its face, the regulation cannot be  construed
to  mean  something different from that plain meaning.  Udall  v.
Tallman, 380  U.S.  1, 16 (1965); Exportal LTDA v. United States,
902 F.2d 45, 50 (D.C.  Cir.  1990);  Pfizer, Inc. v. Heckler, 735
F.2d  1502, 1509 (D.C. Cir. 1984).  I find  from  the  clear  and
unambiguous  language  of  the cited standard that indeed, a pre-
shift  examination must be performed  in  areas  "where  work  or
travel   is  scheduled  prior  to  the beginning of the pre-shift
examination."  Accordingly, no further  analysis is necessary and
RAG's  failure  in  this  case  to  have  performed  a  pre-shift
examination in those areas constituted a violation as charged.

     In light of the agreed stipulations I  conclude  that RAG is
large in size, has a substantial history of violations,  that the
civil  penalty in this case would have no effect on RAG's ability
to remain  in business, that RAG's negligence was low and that an
injury or illness was unlikely and therefore the violation was of
low gravity.   There  is no dispute that the violation was abated
appropriately.  Under the  circumstances the Secretary's proposed
civil penalty of $55.00, is appropriate.

                              ORDER

     Citation No.  7013288 is affirmed, Contest Proceeding Docket
No. PENN 99-2-R is dismissed and  RAG Emerald Resources Corp., is
directed to pay a civil penalty of  $55.00  within 40 days of the
date of this decision.

                              Gary Melick
                              Administrative Law Judge

Distribution:

R.  Henry  Moore,  Esq.,  Buchanan  Ingersoll, P.C.,  One  Oxford
Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219-1410 
(Certified Mail)

Andrea J. Appel, Esq., Office of the  Solicitor,  U.S.  Dept.  of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 
(Certified Mail)

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