.
MADISON BRANCH MANAGEMENT
July 26, 1995
Docket No. WEVA 93-218-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          July 26, 1995


MADISON BRANCH MANAGEMENT,      :  CONTEST PROCEEDINGS
           Contestant           :
      v.                        :  Docket No. WEVA 93-218-R
                                :  Order No. 3976643; 3/1/93
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :  Docket No. WEVA 93-219-R
  ADMINISTRATION (MSHA),        :  Citation No. 3976644; 3/1/93
         Respondent             :
                                :  Docket No. WEVA 93-220-R
                                :  Citation No. 3976647; 3/4/93
                                :
                                :  Job. No. 3
                                :  Mine ID 46-05815
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 93-373
         Petitioner             :  A.C. No. 46-05815-03520
      v.                        :
                                :  Docket No. WEVA 93-412
MADISON BRANCH MANAGEMENT,      :  A.C. No. 46-05815-03521
         Respondent             :
                                :  Job No. 3
                                :
                                :
                                :
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. WEVA 93-415
         Petitioner             :  A.C. No. 46-05815-03501HWZ
      v.                        :
                                :  Job No. 3
PROTECTIVE SECURITY SERVICES,   :
         Respondent      :


                       DECISION ON REMAND

Before:  Judge Feldman


Statement of the Case

     These proceedings concern Petitions for the Assessment of Civil
Penalties filed by the Secretary, pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977 (the Act), 30
U.S.C.  820(a), against Protective Security Services (PSSI) and
Madison Branch Management (Madison).  The Secretary's case is
based on alleged training and defective equipment violations
related to the March 1, 1993, carbon monoxide death of PSSI
employee Allen Garrett, a night watchman.  PSSI is an independent
contractor that provided security services at Madison's Job No. 3
surface mine.

     These cases were remanded on June 12, 1995, after Madison
petitioned the Commission for interlocutory review of orders
denying the parties' motions for approval of settlement.
Commission's Remand Decision, 17 FMSHRC 859.  The parties'
motions were denied because of outstanding issues of fact
concerning what, if any, actions the respondents had taken to
avoid the carbon monoxide hazard that resulted as a consequence
of the alleged violations.  These issues impact upon the degree
of negligence and the gravity associated with the alleged
violative conduct.[1]  They also impact upon whether the civil
penalties proposed by the Secretary, and accepted by the
respondents, are adequate to "accomplish the underlying purpose
of the civil penalty--to encourage and induce compliance with the
Mine Act and its standards."  17 FMSHRC at 867.

     In view of the parties prior Motions for Summary Decision and
their responses to my June 19, 1995, Order on Remand evidencing
that they have no further evidence to submit, I have determined
that there are no factual disputes related to the fact of
occurrence of the subject violations.  The respondents'
submissions have also resolved all factual issues concerning
their actions to address the hazard posed by these violations.
Consequently, I am basing this decision concerning the
appropriate civil penalties to be assessed on the record
evidence.  As noted below, the degree of negligence, gravity,
and, the lack of evidence that the proposed civil penalties have
had an adequate deterrent effect on the respondents, convince me
that the penalties proposed by the parties are inadequate.

Background

     Carbon monoxide is a colorless, odorless, non-irritating gas
that has been labeled "the perfect asphyxiant."  With the exception
of ethyl alcohol (liquor), carbon monoxide is the most frequent
cause of fatal accidental poisoning in this country.  Hemoglobin
is the substance in red blood cells that is responsible for
transporting oxygen to body organs including the brain.  Carbon
monoxide has an affinity (bonding capacity) for hemoglobin that
is 200 to 300 times that of oxygen.  Therefore, a very small
concentration of carbon monoxide effectively blocks the normal
function of hemoglobin, thus depriving the body of oxygen.  The
concentration of carbon monoxide in the body is dependent on its
concentration in the air and the duration of exposure.  Carbon
monoxide accumulates in body tissues with prolonged exposure.
Standard automobile engine exhaust fumes contain approximately 13
percent carbon monoxide.  A concentration of 0.4 percent of
carbon monoxide in atmospheric air is lethal within one hour of
exposure.  As carbon monoxide levels in the body increase with
exposure, symptoms range from slight headache to confusion,
fainting, unconsciousness and ultimately death.  Irvin M. Sofer,
M.D., D.D.S. & William C. Masemore, The Investigation of
Vehicular Carbon Monoxide Fatalities, Traffic Digest & Review,
Nov. 1970, at 1-3.[2]

     The facts surrounding the fatal accident in these matters are
not in dispute.  Allen Garrett was employed by PSSI as a part-time
security guard at Madison's surface mine facility located near
Lynco, in Wyoming County, West Virginia.  Garrett was assigned to
work on weekends and routinely reported to work on Saturday
nights at 10:00 p.m.  Garrett was relieved by another security
guard on Sunday mornings at 10:00 a.m.  Garrett would report back
to work on Sunday nights at 10:00 p.m. and work until 6:00 a.m.
on Mondays, at which time Madison personnel reported to work to
resume the week's mining activities.  Garrett's security duties
included preventing unauthorized mine entry, which Garrett
accomplished by remaining on the haulage road in his parked
vehicle for extended periods of time.

     On Sunday, February 28, 1993, at approximately 10:00 p.m.,
Garrett arrived at Madison's No. 3 Mine in his vehicle, a 1986
Ford Bronco II.  Garrett's shift was scheduled to end the
following morning on Monday, March 1, 1993, at 6:00 a.m.  At
approximately 6:10 a.m. that morning, a truck driver reporting
for work observed Garrett's vehicle parked at the top of the main
haulage road.  The truck driver approached Garrett to ask him to
move his vehicle.  He found Garrett unconscious, lying on the
floor board between two bucket seats with his head toward the
front of the vehicle.  Garrett was immediately transported via
ambulance to a local hospital where he was pronounced dead on
arrival.  The cause of death was carbon monoxide intoxication.
At the time of Garrett's death the weather had been cold,
approximately 25 degrees Fahrenheit, and it had been snowing.

     Investigating authorities concluded Garrett fell asleep and
succumbed to carbon monoxide poisoning between 12:48 a.m., when
the last entry in Garrett's log book was made, and 6:00 a.m.,
when he was found by the truck driver.  At the time Garrett was
discovered, the engine in his vehicle was running, the dome light
was on, and, the heater was running on high.  The investigation
revealed Garrett's vehicle had one large crack at the exhaust
manifold located near the firewall and large cracks on the
exhaust pipe on each side of the muffler.

     As a result of Garrett's fatality, the Mine Safety and Health
Administration (MSHA) issued 107(a) Order No. 3976643 to Madison
for the imminent danger created by Garrett's vehicle.  MSHA also
issued 104(a) Citation Nos. 3976644 and 3976646 to both Madison
and PSSI, respectively, for their alleged violations of section
77.404(a), 30 C.F.R.  77.404(a).  This mandatory safety standard
requires, in pertinent part, that mobile equipment must be
maintained in safe operating condition.  The Secretary proposed
civil penalties of $2,000 against Madison and $3,000 against PSSI
for these violations.

     In addition, MSHA issued Citation No. 3976647 to Madison for
an alleged violation of section 48.31(a), 30 C.F.R.  48.31(a).
This mandatory safety standard requires that hazard training must
be provided to all miners.  Section 48.31(a) requires hazard
training to include instruction on "hazard recognition and
avoidance" and "safety rules and safe working procedures."  The
Secretary proposed a civil penalty of $88 for this alleged
violation.

     The Secretary filed separate Motions to Approve Settlement
with Madison and PSSI on March 31, 1994.  The settlement terms
included substantial reductions in the civil penalties proposed
against Madison and PSSI.  In support of the reduction in
penalties with respect to PSSI, the Secretary stated:

     Although the Secretary asserts that the damaged exhaust
     system was the proximate cause of the fatality, the
     Secretary acknowledges the existence of other [mitigating]
     factors which contributed to the fatality (i.e. the windows
     being tightly closed, Mr. Garrett possibly haven fallen
     asleep).  Secretary's Motion at 3.

     Given my reluctance to blame the victim, the Secretary's motions
were denied by Order dated April 7, 1994, because the Secretary
had not demonstrated "adequate mitigating circumstances to
justify the significant reductions in the proposed penalties."

     On April 8, 1994, the Secretary filed Amended Motions to Approve
Settlements that provided that Madison and PSSI would pay the
full penalties initially proposed by the Secretary.  The proposed
settlement with respect to PSSI stated:

     . . . Protective Security agrees that they will designate an
     employee to be responsible for inspecting and ensuring the
     safe operating condition of the exhaust systems of all
     vehicles used by employees in the performance of their work
     duties at least once every ninety days.  Protective Security
     further agrees that they will maintain (and produce when
     requested by MSHA or PSSI's contractors) documentation of
     such inspections.  (Emphasis added).  Secretary's Amended
     Motion at 3.

     On April 11, 1994, the parties were ordered to provide clarifying
information in support of their proposed settlement.

     Specifically, the parties were ordered to explain whether
security personnel continued to remain in their stationary
vehicles with the motor and heater running after Garrett's
March 1, 1993, death.  The parties were also requested to state
whether there were any alternative means of warmth and shelter
available to security guards at Madison's Job No. 3 mine site.
In addition, the Secretary was requested to address whether
PSSI's reported vehicle inspection program and PSSI's
admonitions, presumably on behalf of Madison, to security guards
not to fall asleep or leave their vehicle windows tightly closed,
were effective measures for reducing the carbon monoxide hazard
presented by the cited violations.

     On May 16, 1994, the respondents filed a Joint Response to the
Order Requesting Clarification and the Secretary filed a Second
Amended Motion to Approve Settlements.  In response to the
requested clarifying information, Madison stated, "there are no
structures on the site of its Job No. 3 which can be accessed by
security personnel to provide warmth and shelter."  Parties'
Joint Response at 7.  Madison also stated that "security
personnel did continue to use their vehicles for shelter and heat
during the winter after March 1, 1993... ."  Id.

     PSSI responded that it has "voluntarily agreed to designate
one employee to inspect exhaust systems of all automobiles used by
employees once every ninety (90) days."  Id. at 11.  PSSI did not
identify the employee, his qualifications to inspect vehicles,
or, the method of inspection.

     PSSI's response included an attachment that is instructions
issued to its security personnel.  These instructions provide in
section 3.12:

     At no time will any employee be required to stay in a
     vehicle while on a job assignment without getting out of the
     vehicle at least every 20 minutes to be sure not to be
     overcome by carbon monoxide fumes.  In fact, you are
     required to get out of your vehicle at least every 20
     minutes to check your job assignments.  This will also help
     you stay awake.[3] (Emphasis added).

     With respect to the information and comments solicited from
the Secretary, the Secretary stated PSSI's purported vehicle
inspection program, for which it provided no details, was
"welcomed by MSHA" because "it demonstrates the operator's
willingness to take measures to prevent a hazard without specific
legal requirements to do so."  Parties' Joint Response at 3.  The
Secretary did not explain whether instructing employees not to
tightly close their car windows and not to fall asleep in their
vehicles constituted adequate hazard training.  See Id. at 4.

     In view of the inadequacy of the parties' responses concerning
the purported vehicle inspection program and hazard training, I
issued Orders on June 8, July 22, and August 29, 1994, denying
the parties' Motions for Approval of Settlement and the parties'
Motion for Summary Decision.  The question of the appropriate
civil penalty to be assessed was set for hearing in order to
resolve material issues of fact concerning the adequacy of the
hazard training and the vehicle inspection program.  See August
29th Order at 2; see also Tazco, Inc., 3 FMSHRC 1895, 1898
(August 1981).

     The August 29th Order incorporated by reference the July 22nd
Order which enumerated the following five unresolved issues of
material fact to be resolved at the hearing:

     1.  The nature of carbon monoxide intoxication and the
     correlation between the level of toxicity and the period of
     exposure;

     2.  Given the characteristics of carbon monoxide, whether
     the risk of carbon monoxide intoxication to individuals who
     seek warmth and shelter in stationary vehicles for extended
     periods of time can be effectively alleviated by the methods
     proposed by the respondents;

     3.  Whether remaining in a stationary vehicle for prolonged
     periods with the engine and heater running is a "recognized
     hazard" that is prohibited by section 5(a)(1) or section
     5(a)(2) of the Occupational Safety and Health Act of 1970,
     20 U.S.C.  654(a)(1) and (a)(2);

     4.  The qualifications of the individual assigned by PSSI to
     inspect employee vehicle exhaust systems and the methods of
     such inspection; and

     5.  The requisite qualifications, equipment and procedures
     for performing an adequate vehicle exhaust system
     inspection.

     The July 22nd Order noted that Dr. Irvin Sofer, Chief Medical
Examiner of the West Virginia Department of Health and Human
Services, would be called upon by the court as an expert witness.
The parties were further informed that Dr. Sofer's testimony
would include pertinent publications written by Dr. Sofer on the
subject of carbon monoxide poisoning.  By Order dated September
9, 1994, a hearing was scheduled for September 22, 1994, in
Charleston, West Virginia.  In preparation for hearing, the
parties were provided the following articles co-authored by Dr.
Sofer: Susan P. Baker, M.P.H., et al., Fatal Unintentional Carbon
Monoxide Poisoning in Motor Vehicles, American Journal of Public
Health, , Vol. 62, No. 11, 1463 (November 1977); and, Sofer &
Masemore, The Investigation of Vehicular Carbon Monoxide
Fatalities, supra.

     The hearing in these matters was stayed by the Commission on
September 20, 1994, after Madison petitioned for interlocutory
review.  16 FMSHRC 1934.  On June 12, 1995, the Commission
remanded these matters for appropriate disposition.

     In its remand, the Commission, citing Mid-Continent Resources,
Inc., 11 FMSHRC 505, 509-11 (April 1989), narrowly construed the
respondents' abatement obligations given the restrictive language
of the citations in issue.  17 FMSHRC at 865.  Thus, the
Commission concluded that abatement of the defective equipment
violation of section 77.404(a) was accomplished by removal of
Garrett's vehicle from mine property.  Id. at 866.  With respect
to the training violation of section 48.31(a), the Commission
determined that no further training was required for abatement as
the citation only cited the lack of training of the deceased.
Id.  Consequently, the Commission decided that I erred to the
extent that I declined to approve the proposed settlement because
the parties had failed to provide facts demonstrating the
requisite good faith of the person charged in attempting to
achieve rapid compliance after notification of the subject
violations.  17 FMSHRC at 867.

     However, the Commission directed me to consider the adequacy
of the proposed settlement amounts by affording the appropriate
weight to the other statutory penalty criteria in section 110(i)
of the Act "in light of the planned inspection program's
contribution to compliance."  Id. at 867-68.  In addition, the
Commission, citing legislative history, urged me to consider
whether the proposed penalties "will accomplish the underlying
purpose of a civil penalty--to encourage and induce compliance
with the Mine Act and its standards."  Id. at 867.

     In light of the Commission's remand decision, on June 19, 1995,
I issued an Order On Remand giving the parties an opportunity to
resubmit settlement motions with supporting arguments and/or
documentation.  In the alternative, the order provided that the
parties could request that these cases proceed to hearing.

     Counsel for Madison replied on June 21, 1995, indicating that
Madison became a Chapter 7 debtor under the U.S. Bankruptcy Code
on May 19, 1995.  Counsel indicated the June 19, 1995, Order was
forwarded to the court appointed bankruptcy trustee.

     PSSI responded through counsel on July 3, 1995.  The response
consisted of correspondence from George L. Mathis, President of
PSSI wherein Mathis stated he was uncertain if PSSI was
financially capable of paying the $3,000 proposed civil penalty,
not to mention an increased civil penalty.

     Despite PSSI's repeated assurances throughout this proceeding,
credited by the Secretary, that it had instituted a vehicle
inspection program by designating an employee to perform exhaust
system inspections every 90 days, PSSI now states that it
requires security guards to certify that their vehicles are in
proper working order without any affirmative efforts on the part
of PSSI to inspect vehicles.  PSSI's employee certification form
continues to warn its employees that "if" employees remain in
their vehicles, they should not stay in their vehicles for more
than 20 minutes at a time and they should "get out of the vehicle
on a regular basis for fresh air..."  Employees are also
cautioned to "leave windows partially open."  I construe PSSI's
response as a request for a disposition based on the record.

     The Secretary replied on July 11, 1995, stating that neither the
Secretary nor Madison had any additional information to submit in
support of the proposed settlement.  The Secretary stated that
both the Secretary and Madison were requesting a decision based
upon the record evidence.

Further Findings and Conclusions

     It is well settled that an Administrative Law Judge of this
Commission has the responsibility and authority to make de novo
determinations concerning the propriety of the Secretary's
proposed civil penalties by applying the statutory civil penalty
criteria in section 110(i) of the Act, 30 U.S.C.  820(i).  See
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147 (7th Cir. 1984).
Consequently, in its remand the Commission, citing Knox County
Stone Co., 3 FMSHRC 2478, 2479-81 (November 1981) and relying on
the provisions of section 110(k) of the Act, 30 U.S.C.  820(k),
directed me "to consider the weight to be given to each of the
statutory penalty criteria in light of the planned inspection
program's contribution to compliance."[4]  17 FMSHRC at 867-68.

Negligence

     The lethal nature of exposure to automobile fumes is commonly
known.  In the instant case, Garrett's job duties, which involved
his prolonged presence in a stationary vehicle, cannot be equated
with those of cab drivers or truck drivers who drive about, thus
dissipating any potential for carbon monoxide exposure.  There is
no evidence that PSSI or Madison, knowing that Garrett would
remain in his stationary vehicle for 8 to 12 hour shifts in
sub-freezing inclement weather and subject to fatigue, took any
action to ensure that Garrett's vehicle was in safe operating
condition.  The respondents' failure to appreciate the danger
posed to Garrett constituted a reckless disregard indicative of
an exceptionally high degree of negligence.

     Turning to the negligence associated with Madison's section
48.31(a) violation, while there are serious questions whether any
hazard training short of warning security personnel not to stay
in their stationary vehicles would be effective, the issue of the
adequacy of hazard training as it relates to the degree of
negligence is not in issue as Madison failed to provide any
pertinent training to Garrett.  Having exposed Garrett to the
possibility of carbon monoxide intoxication, it was incumbent on
Madison to provide him with proper training against such dangers.
The failure to provide Garrett with any carbon monoxide hazard
training given Madison's awareness of Garrett's long-term
exposure in his stationary vehicle at Madison's mine site without
any alternative means of warmth and shelter likewise demonstrates
a high degree of culpability.

Gravity

     Gravity as a section 110(i) penalty criteria relates to the
seriousness of a violation.  Gravity must be viewed in the
context of the importance of the violated mandatory safety
standard and the operator's conduct in relation to the Mine Act's
purpose of ensuring that operators make every reasonable effort
to prevent unsafe or unhealthful conditions.  Quinland Coals,
Inc, 9 FMSHRC 1614, 1622 n. 11 (September 1987); see also Harlan
Cumberland Coal Company, 12 FMSHRC 134, 140-41 (January 1990)
(ALJ Fauver).  Here, the unsafe condition or practice was readily
apparent.  Yet the respondents failed to provide Garrett with the
benefit of any meaningful vehicle inspection or hazard training
to address Garrett's potential exposure to carbon monoxide fumes.
These omissions constitute violative conduct indicative of
serious gravity.

Planned Vehicle Inspection and and Hazard Training Programs'
Contribution to Compliance With the Cited Mandatory Standards

     In its remand, the Commission noted the subject citations were
narrow in scope and did not trigger a broad duty of abatement
because they were limited to Garrett's defective vehicle and his
lack of hazard training.  However, good faith abatement is only
one of several non-exclusive statutory guidelines to be
considered when determining the appropriate civil penalty.
Another fundamental consideration, discussed in the legislative
history of section 110(i), is whether the amount of the proposed
penalty is sufficient to encourage compliance with the cited
mandatory standard.[5]  Consequently, in penalty assessment, it
is proper to evaluate the respondents' continuing operations to
determine if the respondents are exposing others to the identical
hazards contributed to by the cited violative conduct,
particularly in this instance where that conduct contributed to a
fatality.

     In other words, the Act is a remedial rather than a revenue
raising statute.  The purpose of the Act is "to provide for the
protection and health and safety of persons working in the coal
mining industry of the United States..."  30 U.S.C.  801 Note.
The imposition of a civil penalty is a means intended to
"effectuate the purposes of the Mine Act."  17 FMSHRC at 873.
The imposition of civil penalties for violations of mandatory
safety standards that expose miners to hazards jeopardizing life
and health without regard to whether or not these hazards
continue to exist would be a futile gesture that would trivialize
the Mine Act.  In this regard, the Commission noted in its remand
decision that the Commission and its judges have a duty "to
protect the public interest by ensuring that all settlements...
are consistent with the...Act's objectives."  17 FMSHRC at 867,
citing Knox County, 3 FMSHRC at 2479.

     Consistent with the above discussion, Congress specifically
expressed its concern in the legislative history of section
110(i) of the Act that the objective of the imposition of a civil
penalty must be to encourage compliance with the cited standard
rather than raise revenue.  Senate Subcommittee on Labor, 2d
Sess., Legislative History of the Mine Safety and Health Act of
1977, at 632 (1978).  The drafters of the Act stated, "a penalty
should be of an amount which is sufficient to make it more
economical for an operator to comply with the Act's requirements
than it is to pay the penalties assessed and continue to operate
while not in compliance."  Id. at 629.

     Therefore, given the purpose of the Act, if PSSI and Madison
insist on exposing personnel to the potential of carbon monoxide
poisoning, they must bear the burden of ensuring vehicles are in
safe operating condition and of ensuring that personnel are
properly trained in hazard avoidance.  Unfortunately, as noted
below, the post-fatality conduct of PSSI and Madison demonstrates
the penalties proposed by the Secretary are inadequate to
encourage the respondents' compliance with sections 77.404 and
48.31(a).

     Despite PSSI's repeated assurances that it had initiated its
own vehicle inspection program, in its latest July 3, 1995,
submission, PSSI now reports that it has shifted the burden of
exhaust system inspections to its security guards who are
subjected to the hazards of carbon monoxide on a nightly basis.
PSSI's attempt to superimpose its responsibility for ensuring
that vehicles are maintained in safe operating condition on its
employees subverts the basic legislative intent of the Act, which
provides that it is the mine operator and its contractors that
"have the primary responsibility to prevent the existence of
[unsafe and unhealthful] conditions and practices" in the
Nation's mines.  30 U.S.C.  801(d), 801(e), 802(d); see also
Eagle Nest Incorporated, 14 FMSHRC 1119 (July 1992).  Thus,
PSSI's attempt to shift the burden of vehicle inspection is an
aggravating rather than mitigating factor with respect to its
degree of culpability and the appropriate civil penalty.

     Evaluation of Madison's reliance on PSSI's warnings to its
employees to "partially" open car windows and not fall asleep as
the method of achieving compliance with the hazard training
requirements of section 48.31(a) raises interesting questions
because automobiles are not primarily designed for the purpose of
providing warmth and shelter.  Automobile manufacturers caution
against remaining in stationary vehicles for even short periods
of time.  For example, the 1991 Ford Motor Company Owner's Guide,
provided to the parties with my August 29, 1994, Order denying
summary decision, warns:

     Carbon monoxide, although colorless and odorless, is present
     in exhaust fumes.  Take precautions to avoid its dangerous
     effects.

     Never idle the engine in closed areas.  Never sit in a
     parked or stopped vehicle for more than a short period of
     time with the engine running.  Exhaust fumes, particularly
     carbon monoxide, may build up.  These fumes are harmful and
     could kill you.  (Emphasis added).

     Moreover, the efficacy of open car windows as a life saving
measure is questionable.  In studies involving seven of 39
instances of carbon monoxide deaths in vehicles, Dr. Sofer and
his colleagues found:

     Seven cars [of the 39 vehicles studied] had at least 1
     window open for a distance of 1/2" to 4", which many people
     think is an adequate precaution against CO poisoning.  Two
     of these cars were subjected to carbon monoxide tests while
     parked with the engine running and accumulated potentially
     fatal CO concentrations with the window in the same position
     as when the bodies were discovered.  One of them, with the
     window open 1/2", built up a 0.1% CO level in 30 minutes.
     This level produces a fatal carboxyhemoglobin saturation in
     the blood in 3-4 hours.  The other tested car had a window
     open about 4", and exhaust fumes may actually have entered
     through this window as well as the trunk.  Baker et al.,
     supra at 1465.

     Madison has failed to demonstrate any effective training
measures taken after Garrett's death to protect security guards
from the hazards of carbon monoxide exposure.  In fact, the training
proposed by PSSI, and apparently endorsed by Madison, would
accentuate the potential dangers from carbon monoxide exposure by
suggesting ineffective remedial measures such as reminders to
stay awake.  Such training measures disregard the provisions of
section 48.31(a) which mandate training in "hazard recognition
and avoidance."  Rather than achieve compliance, the training
program advanced by the respondents ignores hazard recognition
and pays lip service to avoidance.  Such conduct is also an
aggravating rather than a mitigating factor.

Ultimate Conclusions

     PSSI has presented no objective evidence that it is financially
incapable of paying an increased penalty in this matter.  In view
of the extremely high negligence and serious gravity associated
with the violations in issue, as well as the failure to
adequately remedy the hazards created by the cited mandatory
standards to ensure that future fatalities do not occur, I would
normally be inclined to impose significantly higher penalties in
these cases.

     However, I acknowledge that both the Secretary and the
dissenting Commissioners on remand support the proposed settlement.
Therefore, in an exercise of restraint, a civil penalty of $7,500
is assessed for PSSI's violation of section 77.404(a) cited in
Citation No. 3976646.  Similarly, civil penalties of $4,000 for
Madison's violation of section 77.404(a) cited in Citation No.
3976644 and $1,500 for Madison's section 48.31(a) violation cited
in Citation No. 3976647 are also hereby assessed in this matter.
While these penalties represent significant percentage increases
over the small initial proposed assessments, the penalties are
mild given the circumstances herein.[6]  The small size of PSSI
and Madison's bankruptcy have also been considered in the
assessment of these penalties.

     Finally, my statutory jurisdiction in this matter is limited
to the appropriate civil penalty to be assessed.  Imposition of
remedial measures to prevent carbon monoxide death is beyond the
scope of my authority.  However, the paramount purpose of the Act
is to prevent the existence of "unsafe and unhealthful conditions
and practices."  Potentially exposing employees to a deadly
odorless, colorless gas, night after frigid night, in direct
contravention of automobile manufacturer warnings, is an unsafe
and unhealthful practice.  Assuming arguendo, this practice does
not violate the Act, the respondents have an affirmative duty to
protect such employees from the hazards of carbon monoxide
through meaningful vehicle maintenance and hazard training
programs.

     While not dispositive of these civil penalty proceedings, I
note MSHA has reported that on Sunday, April 9, 1995, under apparent
circumstances similar to the fatality of Allen Garrett, Melvin
Brian Day, a security guard in a mine located in McDowell County,
West Virginia, was found dead from asphyxiation in his vehicle.
At the time he was discovered, Day's vehicle was parked on mine
property with the motor running.  See Mine Regulation Reporter,
Vol. 8, No. 9, May 5, 1995, at 223.  I urge MSHA to take
appropriate enforcement measures to prevent similar loss of life.

                              ORDER

     In view of the above, 107(a) Order No. 3976643 and 104(a)
Citation Nos. 3976644 and 3976647 issued to Madison Branch
Management ARE AFFIRMED. Consequently, Madison Branch
Management's related contests in Docket Nos. WEVA 93 218-R, WEVA
93-219-R and WEVA 93-220-R ARE DENIED.

     Accordingly, IT IS ORDERED that Madison Branch Management pay
a total civil penalty of $5,500 for the citations in issue.  The
Secretary may assert a claim for payment of this civil penalty in
Madison's Bankruptcy proceeding.  Upon receipt of payment, Docket
Nos. WEVA 93-373 and  Docket No. WEVA 93-412 ARE DISMISSED.

     Citation No. 3976646 issued to Protective Security Services
and Investigations, Inc., IS AFFIRMED.  IT IS FURTHER ORDERED that
Protective Security Services and Investigations, Inc., pay a
civil penalty of $7,500 in satisfaction of this citation.
Payment is to be made within 30 days of the date of this
decision.  Upon timely receipt of payment, the civil penalty
proceeding in Docket No. WEVA 93-415 IS DISMISSED.


                                      Jerold Feldman
                                      Administrative Law Judge


FOOTNOTES

     [1]  Negligence and gravity are two of the six civil penalty
criteria set forth in Section 110(i) of the Act, 30 U.S.C. 
820(i).

     [2]  The publications on carbon monoxide poisoning cited in this
decision were provided to the parties with the September 9, 1994,
Notice of Hearing Site in these proceedings.

     [3]  These exculpatory instructions, when considered in context,
seek to encourage employees to stay awake so that they can exit
their vehicles every 20 minutes to avoid being overcome by carbon
monoxide.  As discussed infra, these instructions are contrary to
the provisions of the cited section 48.31(a)  training standard
that require employees to receive training in "hazard avoidance"
and "safe working procedures."

     [4]  Section 110(k) provides, in pertinent part, "[n]o proposed
penalty which has been contested before the Commission under
section 105(a) shall be compromised, mitigated, or settled except
with the approval of the Commission."

     [5]  Section 110(i) of the Act states that, "[i]n assessing
civil monetary penalties, the Commission shall consider..." the six
penalty criteria contained therein (emphasis added).  Although
application of these statutory guidelines is almost always
adequate to determine the proper civil penalty, the language of
section 110(i) does not preclude consideration of other relevant
factors in extraordinary cases, particularly when such factors
are consistent with the legislative history and assist the trier
of fact in assessing penalties that are in the public interest.

     [6]  It is not uncommon for the Commission to impose civil
penalties considerably larger than those proposed by the
Secretary when there are factors aggravating an operator's
culpability.  For example, the Court recently affirmed the
Commission's increase in proposed penalties from $25,000 to
$65,000 in a matter involving two fatalities.  W.S. Frey Company,
Incorporated v. FMSHRC, No. 94-1869, (4th Cir. June 13, 1995).


Distribution:

Helen M. Morris, Esq., Bankruptcy Trustee, Madison Branch
Management, Bear, Colburn & Morris, 731 5th Avenue, Huntington,
WV 25701 (Certified Mail)

Christopher B. Power, Esq., Robinson & McElwee, P.O. Box 1791,
Charleston, WV 25326 (Certified Mail)

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)

James A. Walker, Esq., White & Browning Building, Suite 201,
201-1/2 Stratton Street, P.O. Box 358, Logan, WV 25601 (Certified
Mail)

/rb