<DOC>
[DOCID: f:k97-90.wais]

 
COSTAIN COAL INCORPORATED
October 16, 1997
KENT 97-90

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                     October 16, 1997

SECRETARY OF LABOR,               : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION, (MSHA),         : Docket No. KENT 97-90
          Petitioner              : A.C. No. 15-14492-03725
                                  :
               v.                 : Docket No.  KENT 97-131
                                  : A.C. No.  15-14492-03726
COSTAIN COAL INCORPORATED,        :
          Respondent              : Docket No.  KENT 97-132
                                  : A.C. No.  15-14492-03727
                                  :
                                  : Baker Mine
                                  :
                                  : Docket No.  KENT 97-160
                                  : A.C. No.  15-16020-03530
                                  :
                                  : Smith Underground No.  1

                          DECISION

Appearances: Joseph  B. Luckett, Esq., Office of the Solicitor,
             U.S. Department of Labor, Nashville, Tennessee, for 
             the Petitioner;
             Charles E. Lowther,  Esq., Mitchell, Joiner, Hardesty &
             Lowther, Madisonville,  Kentucky  for the Respondent in
             Docket No. KENT 97-160;
             Carl  B.  Boyd, Jr., Esq., Sheffer-Hoffman,  Henderson,
             Kentucky, for the Respondent in Docket Nos. KENT 97-90,
             KENT 97-131 and KENT 97-132.

Before: Judge Feldman

     These  consolidated   proceedings   concern   petitions  for
assessment  of  civil penalties filed by the Secretary  of  Labor
against the respondent  corporation pursuant to section 110(a) of
the Federal Mine Safety and  Health  Act  of  1977  (the Act), 30
U.S.C.    820(a).   These  consolidated matters were called  for
hearing on July 22, 1997, in  Owensboro, Kentucky.  At trial, the
parties moved for the approval to settle Docket No. Kent 97-90 in
its entirety by reducing the proposed  civil penalty from $937.00
to  $381.00  for the two citations in issue.   The  parties  also
moved for the approval of their settlement agreement with respect
to a reduced civil  penalty  from  $957.00  to  $100.00  for  two
citations  in  Docket  No.  KENT 97-131; and a reduction in civil
penalty from $1,643.00 to $1,430  for  three  citations in Docket
No.  KENT  97-132.   The  settlement terms were approved  on  the
record as consistent with the statutory penalty criteria and will
be summarized at the end of this decision.

     A.  Background

There are four remaining  citations  to  be resolved through this 
hearing  process.   Three  of these citations  involve excessive 
respirable dust concentrations in violation  of section 70.100(a),
30 C.F.R.  70.100(a), that were detected as a result of bimonthly
respirable dust samples obtained from a designated  occupation in 
several of the respondent's mechanized mining units (MMU).

     The mandatory safety standard in section 70.100(a) provides:

     Each operator shall continuously  maintain  the average
     concentration of respirable dust in the mine atmosphere
     during  each  shift  to which each miner in the  active
     workings . . . is exposed at or below 2.0 milligrams of
     respirable dust per cubic meter of air . . .

     In order to ensure that  miners are exposed to less than 2.0
milligrams per cubic meter of air (2.0 mg/m3)  section 70.207(a),
30 C.F.R.  70.207(a), provides, in pertinent part:

     Each  operator shall take five  valid  respirable  dust
     samples   from   the   designated  occupation  in  each
     mechanized mining unit during each bimonthly period . .
     . . Designated occupation samples shall be collected on
     consecutive   normal  production   shifts   or   normal
     production  shifts   each   of   which   is  worked  on
     consecutive  days.  The bimonthly periods are:  January
     1-February 28 (29), March 1-April 30, May 1-June 30, 
         July 1-August 31.

     The designated  occupation in a given mechanized unit is 
the work position determined  to  have  exposure  to the highest
respirable dust concentration. Section 70.2(f),  30 U.S.C. 
70.2(f).

     The five valid samples are obtained from Mine Safety and
Health  Administration   (MSHA)  approved  filter  cassettes
contained in an air sampling  unit  worn by the miner in the
designated   occupation.    In   accordance   with   section
70.207(a), these five cassette dust  samples are sent by the
operator to MSHA's laboratory where the  filter  is  removed
and  weighed  to  determine  if  the average respirable dust
concentration  is  in  compliance  with  the  2.0  milligram
standard  in  section 70.100(a).  If violations  of  section
70.100 (a) are  detected  by  the  MSHA  laboratory, an MSHA
inspector issues a citation that establishes  a deadline for
abatement.   The  citation  and  abatement  commonly   occur
without  a  mine  facility  visit  or  an inspection by MSHA
personnel.

     During the time fixed for abatement, the operator must take
corrective action to lower the concentration  of  respirable
dust  to within a permissible concentration and then  sample
each production  shift  until  five  valid  respirable  dust
samples are taken.  30 C.F.R.  70.201(d).

     Citation Nos. 9898430, 9898420 and 9898402, issued during
the period October through  December 1996, concern violative
respirable  dust  samples, based  on  the  average  of  five
samples, taken from  the  designated  occupation,  i.e., the
continuous  miner  operator, in several different mechanized
mining units at the  respondent's  Smith  and  Baker  mines.
The  citations  were  issued  by  Robert  G. Smith, an  MSHA
District  Industrial Hygienist.  Each of the  citations  was
issued  after   the   bimonthly   sample  submitted  by  the
respondent for MSHA's laboratory analysis  revealed  average
respirable  dust  concentrations  in  excess  of  2.0  mg/m3
obtained  from  five  samples.   Specifically, the violative
average respirable dust concentrations for Citation Nos. 
9898430, 9898420 and 9898402  were  2.2,  4.4  and  3.4
mg/m3, respectively.

     Consistent with MSHA's normal respirable dust monitoring
procedures, Smith did not inspect the subject MMU and has no
personal knowledge concerning the circumstances  surrounding
each  violative  dust sample.  However, Smith concluded  the
respondent's degree  of negligence was moderate for Citation
No. 9898430 issued at  the  Smith Underground Mine, and high
for Citation Nos. 9898420 and  9898402  issued  at the Baker
Mine.   The  high  negligence was based on the Baker  Mine's
general history of generating large quantities of coal dust.
Smith also concluded  the  entire MMU crew was affected (the
foreman,  shuttle car operators  and  roof  bolt  operators)
based on the  respirable  dust  exposure of the miner in the
designated occupation (continuous miner operator).

     The fact of the violations cited in these MMU citations, as
well as the violations' significant  and  substantial  (S&S)
characterizations, are not in dispute.  What is disputed  is
the  number  of  persons  affected by the violations and the
degree  of  culpability (negligence)   attributable  to  the
respondent.   Thus, in essence, the issue is the application
of the penalty criteria to the respirable dust violations in
issue.  Consequently, each penalty criterion with respect to
each MMU citation will be discussed in turn.

      However, consideration of the statutory penalty criteria
must be viewed in the context of  the  unique  circumstances
and    issues    concerning    excessive   respirable   dust
concentrations.   In  this  regard,   the   Commission   has
concluded,  "in  the  particular  context  of the control of
respirable  dust in coal mines some departure  [from  normal
enforcement  considerations]   is   justified   because   of
fundamental  differences between a typical safety hazard and
the  respirable   dust  exposure-related  health  hazard  at
issue."  (Emphasis  added).   Consolidation  Coal Company, 8
FMSHRC 890, 895 (June 1986), aff'd sub nom. Consol.  Coal v.
Fed. Mine Safety & H. Rev. Com'n., 824 F.2d 1071 (D.C.  Cir.
1987).   Thus,  the  D.C. Circuit agreed with the Commission
that,  given  the  insidious   nature   of  respirable  dust
exposure:

     Congress clearly intended the full use of  the  panoply
     of the Act's enforcement mechanisms to effectuate  [the
     goal  of preventing respiratory disease], including the
     designation   of  a  violation  as  a  significant  and
     substantial violation.   824  F.2d  at  1086, quoting 8
     FMSHRC at 897.

     B.  Civil Penalty Criteria - MMU Violations

           1. Previous History of Violations

      Although the Commission has stated that an operator's 
general  history  of  violations  is  a relevant consideration
in  assessing  a  civil  penalty,  it is well settled  that  a 
history of similar violations serves  as  a significant basis 
for imposition of a higher civil sanction. Sec'y of Labor
o/b/o James  Johnson v. Jim Walter Resources, Inc., 18
FMSHRC 841, 850 (June  1996);  But see AMAX Coal Company, 19
FMSHRC  1542,  1551 (dissenting opinion)  (September  1997),
citing Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February
1994); Peabody Coal Co.,
14 FMSHRC 1258,  1261  (August  1992).   Thus,  an important
inquiry   is   whether  an  operator's  history  of  similar
violations placed  that  operator  on  notice  that  greater
compliance efforts were required.  AMAX, 19 FMSHRC at  1551.
However,  this routine inquiry is not so simple to apply  in
respirable dust cases.

     Respirable dust concentrations vary from shift to shift and
are affected  by  the  level  of  coal production as well as
other  varying  factors, such as temperature  and  humidity.
Unlike most mine  hazards  caused  by  violative conditions,
excessive respirable dust concentrations  ordinarily  cannot
be  observed.   Thus,  the  only  method of ascertaining the
existence  of excessive respirable dust  is  through  MSHA's
bimonthly  sampling   process.    Moreover,  excessive  dust
problems are MMU specific.  In other  words,  a  history  of
excessive  dust  in  MMU-007  would not place an operator on
notice that there was a potential  dust  problem in MMU-009,
particulary if prior bimonthly sample results  from  MMU-009
were compliant.

     Of course, there may be instances where a pattern of an
operator's failure to abide by its dust control plan, such 
as a history of a failure to maintain  sprayers,  is  an 
important  inculpating  factor, regardless of the respirable
dust history of a specific MMU. However, such circumstances 
are not reflected in the record evidence. Although there are
approximately 29 MMU violations of 70.100(a)  at the Baker
Mine during the  two year period preceding  January 
1997, Smith testified the  respondent had no history
of violations for failure to follow  its  dust control plan.
(Gov.  Ex. 8; Tr. 154).  Although Smith testified  that  the
respondent  was  required, on several occasions, to increase
the amount of sprayers  required  by  its dust control plan,
there is no evidence of the respondent's  failure to comply.
(Tr. 114-15).

     With respect to the specific citations, Citation No. 9898430
cites  MMU-002  at  the  Smith Underground No.  1  facility.
There is no evidence of previous section 70.100(a) violation
in  this  MMU.   Therefore,  I   must  conclude  that  prior
bimonthly samples for MMU-002 did  not  provide  notice that
greater dust control efforts were called for.

     Citation  No. 9898420 cites MMU-009 at the  Baker  facility.
Smith testified that MMU-009 was  a relatively new mechanized mining
unit with no history of pertinent violations.  (Tr. 106).

     Citation No. 9898402  cites  MMU-007  at the Baker facility.
This  citation illustrates the difficulty  in  applying  the
traditional  notice  test  based  on  a  history  of similar
violations. MMU-007  was cited for excessive respirable
dust in  October  1994, October 1995, and
Citation No.  9898402 was issued in October 1996.  After the
October 1994 citation, presumably, there were five compliant
bimonthly  samples   before   the   October  1995  citation.
Similarly, the October 1995 citation  was  followed  by five
compliant   bimonthly  samples  prior  to  the  issuance  of
Citation No.  9898402.   Thus,  in  each prior instance, the
respondent  believed  it  had  corrected  the  dust  control
problem  in  view  of  the  series  of  compliant  bimonthly
samples.

     Although the submission of more frequent dust samples for
analysis  may  be  prudent for mine facilities that generate
large quantities of dust, the Secretary has not alleged, nor
does the record reflect,  that  operators  are encouraged to
submit  dust  samples  to  MSHA more frequently  than  on  a
bimonthly basis.  In this regard, although Smith alleged the
Baker Mine generated large amounts of coal dust, there is no
evidence of heightened monitoring by MSHA.

     In  summary, I do not view the respondent's history  of
section 70.100(a) violations,  in  view of Smith's admission
of no history of pertinent dust control  plan violations, as
a factor having a significant impact on the  degree  of  the
respondent's civil penalty liability.

          2.  Appropriateness  of  the  Size of the Penalty and
     Effect on Business Operations

     Costain Coal Company is a large operator  that produces over
ten million tons of coal each year.  Imposition of the civil
penalties proposed in these matters is not  inappropriate to
the size of the respondent's business and will no affect its
ability to conduct its business.

           3. Degree of Negligence

     As noted above, traditional considerations used  to evaluate
degrees  of  negligence, such as the extent of the violative
condition, the  length  of time that it existed, whether the
violation was obvious, and,  whether the operator was placed
on  notice  that  greater  efforts   for   compliance   were
necessary,  are  not helpful in matters concerning excessive
coal dust conditions.   AMAX  Coal  Company,  19  FMSHRC  at
1551.[1]    Smith  acknowledged  excessive  respirable  dust
conditions  cannot   be   seen,  even  in  situations  where
respirable   dust  concentrations   are   relatively   high.
Therefore, considerations  of  the  extent of the violation,
and how long it existed, in the context of an MMU with prior
compliant bimonthly sample results, are not material.

     As previously discussed, prior compliant bimonthly samples,
in the absence  of an  identifiable equipment  malfunction  or
other  dust  plan  violation,  do  not  suggest that greater
compliance efforts are necessary.  In fact,  the  Commission
has   vacated  high  negligence  and  unwarrantable  failure
findings  for  a section 70.100(a) MMU violation noting that
the operator "had  reason  to  believe  its remedial efforts
[controlling  dust] were working" because  of  a  series  of
compliant bimonthly  sampling  results  immediately prior to
the violative sample that gave rise to the section 70.100(a)
citation.  Peabody Coal Company, 18 FMSHRC  494,  499 (April
1996).[2]

     Thus, it is in the context of these unique circumstances
that the issue of the  degree of the respondent's negligence
for each of the MMU citations  is discussed below.  However,
it must be noted that, although  high negligence may provide
a basis for an increased civil penalty,  low  negligence, or
even  a lack of negligence, is not a significant  mitigating
factor  when  considering  respirable dust violations.   The
Mine  Act  is  a strict liability  statute.   In  the  final
analysis, who, if  not  the  operator,  is  responsible  for
ensuring that miners are not exposed to excessive respirable
dust?  Mine operators must ensure that the maximum levels of
permissible respirable dust concentrations are not exceeded.
An  operator's  failure  to  do  so,  regardless  of  fault,
warrants the imposition of meaningful civil penalties.

     The  Secretary  attributed  the  degrees of the respondent's
     negligence for each of the MMU citations as follows:

     Citation  No. 9898430 - MMU-002 - Smith  Underground  -
     Moderate Negligence
     Citation No.  9898420  -  MMU-009  -  Baker Mine - High
     Negligence
     Citation  No.  9898402 - MMU-007 - Baker  Mine  -  High
     Negligence

     Prior to the issuance  of Citation No. 9898430, the approved
dust control plan required
32 continuous miner sprayers, with a requirement that at least 26
of the 32 sprayers remain operative.   As  noted,  Smith  did not
inspect the subject mine facilities before issuing the citations.
Thus, there is no evidence to attribute the excessive dust sample
to an identifiable dust control plan violation. To abate Citation
No. 9898430, the respondent, pursuant to an amendment of its dust
control  plan, increased the number of sprayers on the continuous
miner from  32  to  33,  and  increased  the   minimum  number of
operative  sprayers  from  26  to 27.  There is no evidence of  a
history  of  excessive respirable  dust  conditions  at  MMU-002.
Accordingly,  the  negligence  attributable to the respondent for
Citation No. 9898430 is low.

     Citation No. 9898420 concerns MMU-009, a new mechanized unit
without a history of excessive dust violations.  There is also no
evidence of any specific equipment malfunction or inadequate dust
control  plan  provision  that  contributed   to   the  violative
condition.  Consequently, the record reflects the excessive  dust
conditions  were  transitory  and  resolved  without  significant
abatement  action.[3]   Accordingly,  the  degree  of  negligence
attributable to the respondent for Citation No. 9898420  is  also
low.

     Citation  No. 9898402 was abated by correcting a malfunction
of the scrubber  blade  and  housing  on  the  MMU-007 continuous
miner.    Given   the  general  history  of  previous  violations
concerning excessive  dust  at the Baker facility, the respondent
was  obligated  to  remain on a  heightened  state  of  awareness
regarding potential dust  control  problems.   The failure of the
respondent to detect this malfunction, on balance,  constitutes a
high degree of negligence with regard to Citation No. 9898402.

           4. Gravity

     The gravity penalty criterion under section 110(i) of the
Mine Act  requires  an  evaluation of the seriousness of the
violation.  Consolidation Coal Company, 18 FMSHRC 1541, 1549
(September 1996).  Here,  the  respondent  concedes  the S&S
nature  of  the  MMU  violations.   The respondent, however,
seeks to mitigate the gravity associated with the violations
by attempting to limit the number of persons affected to the
designated occupation.  Specifically, the respondent asserts
the  excessive  respirable  dust concentrations  taken  from
samples on the person performing  the  designated  high risk
occupation cannot be extrapolated to other personnel  on the
section.   While  it  is  true that other occupations on the
section, by definition, ordinarily have less respirable dust
exposure than the designated occupation, I fail to find this
argument persuasive.

     The purpose of section 70.100(a) is to limit the permissible
concentration of respirable  dust exposure by mine personnel
in active workings.  Section 70.2(b) defines active workings
as  "any  place  in a coal mine where  miners  are  normally
required to work or travel." 30 C.F.R.
 70.2(b).  Thus, the purpose of MSHA's high risk occupation
bimonthly sampling  program  is  to  monitor the atmospheric
conditions  in active workings.  Monitoring  the  high  risk
occupation ensures  that,  if  the  high  risk  miner is not
overly  exposed,  no  one  on  that MMU shift is exposed  to
impermissible levels of respirable  dust.   Put another way,
monitoring the high risk continuous miner occupation  at the
face  provides  the earliest warning of excessive respirable
dust in the active workings atmosphere.

     Virtually  all  MMU shift  members,  e.g., shuttle  car
operators,  scoop  operators,  roof   bolt  operators,   are
exposed  to  the  face  during  the  course of their duties.
Consequently,  the  Secretary's  assertion  that  all  shift
members  are effected by MMU dust violations  is  reasonable
and entitled  to  deference,  particularly  in  view  of the
respiratory  hazards  associated  with  cumulative pulmonary
exposure.  Consequently, the violations cited in the subject
citations  affect  all  shift  members  and are  serious  in
gravity.

     Accordingly, the number of persons effected  - 12 persons in
Citation  Nos. 9898430 and 9898420, and 14 persons  effected
in Citation  No.  9898402  -  is  affirmed.   These  numbers
represent  the  total  number  of MMU members in each of the
cited units multiplied by two daily shifts.

           5. Good Faith Efforts to Achieve Rapid Compliance

     The evidence reflects the respondent  sought  to  modify its
dust  control  plan  where  appropriate  and made good faith
efforts to achieve compliance.

     C.  Penalty Assessment - MMU Violations

     In view of the serious gravity and the strict liability
considerations related  to  the  risk  of  severe  pulmonary
disease posed by the MMU citations, the Secretary's proposed
civil penalty of $595.00 for Citation No. 9898430 in  Docket
No.   KENT  97-169  is  affirmed.   Although  the  Secretary
proposes,    apparently   based   on   allegations  of  high
negligence, a civil penalty of $2,384.00  for  Citation  No.
9898420   in  Docket  No.  KENT  97-132,  the  reduction  in
negligence to low discussed above warrants a similar $595.00
civil penalty,  consistent  with  the  principle  of  strict
liability.[4]

       Finally,  given  the  high  negligence attributable to the
respondent's failure to adequately  maintain  the continuous
miner scrubber in view of its history of coal dust problems,
the  $2,384.00  civil penalty proposed by the Secretary  for
Citation No. 9898402 in Docket No. KENT 97-131 is affirmed.

     D.  Civil Penalty Criteria - Designated Area Violation

     In  addition to section 70.207(a)  that  specifies  the
bimonthly sampling requirements in mechanized  mining units,
Section  70.208,  30 U.S.C.  70.208, governs the  bimonthly
sampling  requirements   in   designated  areas  capable  of
generating high dust concentrations  that  are identified in
the  operator's  MSHA  approved  dust  control  plan.   This
mandatory   standard  requires  one  bimonthly  dust  sample
obtained from  a  sampling  device  placed  at the specified
location.   If  this  single  bimonthly  sample exceeds  2.0
milligrams, the operator must furnish MSHA  with a five dust
sample,  obtained from consecutive shifts, to  determine  if
the 2.0 milligram standard in section 70.100(a) is violated.

     Citation No.  9898431,  issued  by Smith on January 7, 1997,
concerns a violative respirable dust sample of 2.2 mg/m3,  based
on an average of five samples, obtained at designated area  200-1,
inby  the No.  5  belt  transfer point at the respondent's Baker Mine.
Although the fact  of  the  violation  cited in Citation No. 9898431
is   admitted,  the  degree  of  the  respondent's negligence,  and 
whether   the   violation   was  properly  designated as S&S, are
contested.

     Although Smith concluded the degree of the respondent's
negligence associated with this violation was high, there is
no evidence of an identifiable dust control  plan  violation
that contributed to this violation.  Moreover, the violation
resolved  itself  in  a  timely  manner  in  that subsequent
samples  were  compliant  without  any particular  abatement
action   on  the  part  of  the  respondent.    Consequently
consistent  with the discussion above, I conclude the record
does not support more than a finding of low negligence.

     With  respect to  the  S&S   issue,  Alan  Shelton,  the
respondent's Baker Mine belt foremen,  testified  there is a
belt walker on each of the two shifts that travels along the
entire 6,000 to 7,000  feet  of  beltline  to detect hazards
or malfunctions each  day.   There are also belt  mechanics  
that  routinely perform maintenance.  If a problem were 
encountered downwind  of  the  cited designated  area  that 
required  cleanup  or maintenance,  Shelton  opined  that these 
employees could be exposed  to  the excessive respirable  dust
conditions  for approximately 45 minutes.

     It is well settled that  the  operative time period for
considering  whether  a  violation is properly designated as
S&S includes the time that  the  violative condition existed
prior to the citation, as well as  the  time  it  would have
existed   if   normal   mining   operations  had  continued.
Mechanicsville  Concrete, Inc., 18  FMSHRC  877,  884  (June
1996) (Citations  omitted).  Given the fact that "respirable
dust disease is insidious,  furtive and incapable of precise
prediction,"  the  controlling   case   law  concerning  the
presumptive S&S nature of section 70.100(a)  violations that
are  based on excessive designated occupation samples,  must
also be  applied  to violations based on sampling devices at
designated areas, particularly where employees are routinely
exposed to such areas.  Consolidation Coal Company, 8 FMSHRC
at 898, 899.  Accordingly,  the S&S designation for Citation
No.  9898431  is  affirmed.   Consistent  with  the  gravity
discussion for the MMU citations,  the cited designated area
violation is, likewise, serious in gravity.

     E.  Penalty Assessment - Designated Area Violation

     The Secretary has proposed a civil penalty of $1,019.00 for
this  citation.   In  view  of  the statutory civil  penalty
criteria  discussed above, a civil  penalty  of  $595.00  is
appropriate  for  the  cited  condition.   This reduction in
civil  penalty  is  warranted  due  to  a reduction  in  the
respondent's  degree  of  negligence  from  high   to   low.
Although  the  civil  penalty  is  being reduced, it remains
meaningful  and  is  consistent  with the  strict  liability
imposed  on  operators  in the event  of  their  failure  to
maintain safe environmental working conditions.

     F.  Total Civil Penalties

     Docket No. KENT 97-90 - The approved settlement agreement
provides for a reduced civil penalty from $937.00 to $381.00
for  the  two  citations  in  issue.   The  settlement terms
include  deleting  the  S&S  designation  from Citation  No.
4067436.

     Docket No. KENT 97-131 - The parties have settled two of the
three  citations  in  issue.   The settlement terms  include
payment of a civil penalty of $50.00  each for Citation Nos.
4067875  and  4064262  as  well  as  deletion   of  the  S&S
designations in these citations.  A $2,384.00 civil  penalty
for   Citation   No.   9898402   has  been  imposed  herein.
Consequently the total civil penalty for Docket No. KENT 97-
131 is $2,484.00.

     Docket No. KENT 97-132 - The parties  have  agreed to settle
three  of  the  five citations in issue. The respondent  has
agreed  to  pay  a total  civil  penalty  of  $1,430.00  for
Citation Nos. 4063629, 4064265 and 4064268.  Civil penalties
of  $595.00  for  Citation  No.  9898420,  and  $595.00  for
Citation No. 9898431,  have  been  imposed in this decision.
Thus, the total civil penalty imposed  for  the subject five
citations is $2,620.00.

     Docket No. KENT 97-160 - This docket concerns  only Citation
No.  9898430.   The  $595.00 civil penalty proposed  by  the
Secretary for Citation No. 9898430 is affirmed herein.

     Thus, the total civil penalty for the four docketed cases is
$6,080.00.

      ORDER

     In view of the above, IT IS ORDERED that the respondent
SHALL PAY a total civil penalty of $6,080.00 in satisfaction
of  the  citations  in issue in these proceedings.   Payment
shall  be remitted within  30  days  of  the  date  of  this
decision.   Upon timely receipt of payment, Docket Nos. KENT
97-  90, KENT  97-131,  KENT  97-132  and  KENT  97-160  ARE
DISMISSED.

                              Jerold Feldman
                              Administrative Law Judge

Distribution:

Joseph  B.  Luckett, Esq., Mary Sue Taylor, Esq., Office of the
Solicitor,  U.S. Department  of Labor,  2002 Richard Jones  Rd.,
Nashville,   TN   37215  (Certified Mail)

Carl B. Boyd, Jr., Esq., Sheffer and Hoffman, 30  First  Street,
Henderson, KY 42420   (Certified Mail)

Charles E. Lowther, Esq., Mitchell, Joiner, Hardesty & Lowther, 113
East Center Street, P.O.  Drawer 659, Madisonville,  KY 42431-0659
(Certified Mail)

                              \mh

**FOOTNOTES**

     [1]: While AMAX, and the cases cited  therein,  concern  the
parameters  for unwarrantable failure, which has not been charged
in these matters,  the guidelines discussed in AMAX are essential
for determining the degree of an operator's negligence.

     [2]: To attribute  high  negligence  to  an  operator  for a
section  70.100(a)  violation  in  the  absence  of  a  pertinent
identifiable  dust  control  plan  violation,  or an MMU specific
history of violative dust samples providing notice  that  greater
dust control measures at that MMU were required, is tantamount to
the  presumption  of  high  negligence  approach  rejected by the
Commission in Peabody Coal, 18 FMSHRC at 498.

     [3]: Respirable dust conditions are not static.   They  vary
from  shift to shift.  In fact, it is not uncommon for individual
shift dust  samples  within  a  bimonthly five shift sample to be
above 2.0 milligrams although the five  shift  average  is  below 
the 2.0 milligram maximum permissible concentration.   See,  eg.,
Gov. Ex. 7,  p.2.   Thus,  excessive  dust conditions  may  exist 
during  a particular  shift,  although  the   condition   resolves 
without remedial action by the operator.

     [4]:   Although   I   have  exercised  restraint  in   these
proceedings in the civil penalties imposed on the basis of strict
liability, a continuing general pattern of  additional respirable
dust  violations  may subject  the  respondent  to  significantly
higher civil penalties under strict liability in the future.