.
HARLAN CUMBERLAND COAL CO.
January 12, 1999
KENT 96-254
           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041
                           January 12, 1999
SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION, (MSHA),       :  Docket No. KENT 96-254
                 Petitioner     :  A.C. No. 15-07201-03681
                                :
            v.                  :  Docket No. KENT 96-320
                                :  A.C. No. 15-07201-03683
                                :
HARLAN  CUMBERLAND COAL CO.,    :  Docket No. KENT 96-321
                 Respondent     :  A.C. No. 15-07201-03684
                                :
                                :  Docket No. KENT 96-322
                                :  A.C. No. 15-07201-03685
                                :
                                :  Docket No. KENT 96-333
                                :  A.C. No. 15-07201-03686
                                :
                                :  C-2 Mine
                          DECISION ON REMAND
Before:  Judge Barbour
     The Commission has remanded this matter  (Harland Cumberland
Coal Co., 20 FMSHRC ___, Docket No. KENT 96-254,  etc.  (December
10,  1998))  and  directed  me to reassess a civil penalty for  a
violation of section 30 C.F.R.  75.1106-3(a)  (2), a mandatory
safety standard for underground coal mines requiring in part that
"[l]iquified and non liquified compressed gas cylinders stored in
an  underground  coal  mine  . . . be . . . [p]laced securely  in
storage areas designated by the  operator  for  such purpose, and
where the height of the coal bed permits in an upright  position,
preferably  in  specially  designated racks, or otherwise secured
against being accidently tipped over."
     The violation was one of  several  that  I found occurred at
Harlan Cumberland's C-2 Mine, an underground coal mine located in
Harlan  County,  Kentucky  (19  FMSHRC  911  (May  1997)).    The
violation  was  cited  by  MSHA  Inspector  Robert  Clay  when he
observed  two  compressed  gas  tanks, one for oxygen and one for
acetylene, leaning against the rib of a coal pillar, in an active
roadway.  The roadway was used by large equipment, such as scoops
and personnel carriers.  The inspector  explained that the scoops
and personnel carriers provided their operators with very limited
visibility (Tr. 103), and that tracks on the mine floor indicated
the equipment had come within 12 inches of  the  tanks  (Tr 105).
Because  the  tanks  were  not  stored  securely  in  an  upright
position,  the  inspector cited Harlan Cumberland for a violation
of the standard.    In  addition,  he  found  the condition was a
significant and substantial contribution to a mine  safety hazard
(S&S).
     The inspector testified that if either tank had been hit and
punctured, either could have exploded violently (Tr. 101, 102),
and that if both tanks had been hit and the oxygen and acetylene
had mixed, the resulting explosion could have been even more
violent (Tr. 103). Clay believed the violation subjected miners
in the active roadway, including those operating or riding on the
equipment, to the danger of severe burns or death.  Clay
described an incident in which a tank similar to those cited had
been punctured and "[A] miner was literally blown to bits"
(Tr. 103). Clay candidly admitted, however, that he did not know
if the tanks contained gas (Tr. 104).
     In ruling on the merits of the violation I found that
section 75.1106-3(a)(2) makes no distinction between full or
empty cylinders, and I concluded the standard had been violated.
I also found, based upon Clay's testimony  - including the fact
that mining equipment driven by operators whose vision was
restricted, passed within one foot of the tanks  - that it was
reasonably likely as mining continued that the tanks would have
been hit and punctured and that a resulting explosion and fire
would have injured seriously one or more miners. Therefore, I
concluded the violation was S&S (19 FMSHRC at 925-926).
     Further, I found the violation was serious.  I noted what
could have happened if the tanks were ruptured. I stated, "The
inspector compellingly testified ... [that] if the unsecured
tanks were knocked over and punctured[,] [t]he explosion and fire
... could have been catastrophic to those in the immediate
vicinity of the tanks" (19 FMSHRC at 926 (transcript citation
omitted)). In addition, I found the violation was the result of
Harlan Cumberland's negligence (19 FMSHRC at 926). The Secretary
and Harlan Cumberland stipulated to all other applicable civil
penalty criteria (Tr. 912), and based upon my findings regarding
gravity and negligence and upon the stipulations, I assessed a
civil penalty of $288 for the violation.
     Harlan Cumberland sought and was granted review. It argued
the violation was not S&S since the Secretary produced no proof
that the tanks contained gas.  The Commission agreed that the
presence of fuel in the tanks was a prerequisite for a S&S
finding and that the burden was on the Secretary to prove the
tanks contained oxygen and/or acetylene. Because the inspector
did not know what the tanks contained, because the Secretary
produced no evidence regarding the contents of the tanks, and
because a reasonable inference could not be drawn regarding their
contents, the Commission held that "the Secretary failed to carry
her burden of proof as to the critical element of a fuel source,
[and that] substantial evidence [did] not support the . . . S&S
determination" (Harlan Cumberland, slip op. 10). Accordingly,
the Commission reversed the S&S finding and remanded the matter
for reassessment of the civil penalty.
     The essential question on remand is how the Commission's
reversal of the S&S finding affects the gravity of the violation.
The focus of the civil penalty gravity  criterion is not
necessarily on the reasonable likelihood of serious injury, but
rather on the effect of the hazard if it occurs (Consolidation
Coal Company, 18 FMSHRC 1541, 1550 (September 1996); citing to
Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (September 1987)
("gravity" penalty criterion and special finding of S&S not
identical although frequently based on same or similar factual
circumstances)).  Nevertheless, I read the Commission's decision
as implying that the lack of any evidence regarding fuel in the
tanks (or regarding the likelihood of residual explosive fuel
vapors) makes it impossible to assess the presence of a hazard.
Therefore, I find the violation was not serious, and considering
all of the other civil penalty criteria set forth previously,
reassess a civil penalty of $50.
     Accordingly, within 30 days of this remand decision Harlan
Cumberland is ORDERED to pay the reassessed penalty of $50 for
the violation of section 75.1106-3(a)(2) as alleged in Citation
No. 4243726 (Docket No. KENT 96-254).
     In addition, the company is ORDERED to pay all penalties
previously assessed or modified by the Commission (see 19 FMSHRC
at 956; Harland Cumberland, slip op.17).  Finally, within the
same 30 days the Secretary is ORDERED modify and vacate all
relevant citations as previously instructed (see 19 FMSHRC at
956).
     Upon payment of the penalties and modification and vacation
of the citations, these proceedings are DISMISSED.
                            David Barbour
                            Administrative Law Judge
Distribution:
H. Kent Hendrickson, Esq., Rice and Hendrickson, P.O. Drawer 980,
Harlan,  KY  40831 (Certified Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite  400, Arlington, VA  22203
(Certified Mail)
/nt