<DOC>
[DOCID: f:c-95-063.wais]

 
PITTSBURG & MIDWAY COAL MINING CO.
July 29, 1996
CENT 95-63

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3993/FAX 303-844-5268

                          July 29, 1996

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :    Docket No. CENT 95-63
               Petitioner       :    A.C. No. 29-00096-03570
                                :
          v.                    :    McKinley Mine
                                :
PITTSBURG & MIDWAY COAL         :
  MINING CO.,                   :
               Respondent       :

                  DECISION APPROVING SETTLEMENT

Before:  Judge Cetti

     This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act).  Petitioner filed a motion to
approve a settlement agreement and to dismiss this case.  A re-
duction in the penalty from $35,000.00 to $10,000.00 is proposed.

     Citation No. 4060756 was issued for a significant and
substantial violation of 30 C.F.R.  77.404(c), which requires
that repairs and maintenance not be performed on machinery until
the power is off and the machinery is blocked against motion,
except where machinery motion is necessary to make adjustments.
The inspector assessed the negligence as "high," the probability
of an occurrence of "occurred" and the gravity of injury as
"fatal."  A penalty of $35,000.00 was specially assessed for this
violation.

     The inspector's site inspection indicated that the Respon-
dent had attempted to remove an adapter from a chuck on the
Schroeder Brothers drill in the No. 2 pit using the power of the
drill.  A wrench that was affixed to the adapter flew off once
machine power was engaged and struck a miner in the head.  The
miner later died.  The inspector had predicated the unwarrantable
failure on the fact that miners would step back whenever the pro-
cedure for removal of a drill adapter was performed using machine
power and supervisory personnel knew that the miners would re-
treat to safe positions at such times.  The inspector concluded
that because the mine operator continued to use the procedure,
the operator was indifferent to the safety of the miners.

     The parties advise that investigation into this 104(d)(1)
citation revealed that the evidence does not support the inspec-
tor's determination of "high negligence" or "unwarrantable
failure."  Interview statements from the miners established that
the procedure had been used for at least two years before the
fatality.  During that time, a wrench had never been thrown but
rather would simply rotate against the drill mast and fall to the
ground.  None of the mine mechanics who had used the procedure
had thought the procedure unsafe before the fatality.

     Other evidence revealed that a representative of the drill
manufacturer had shown the operator the procedure as an efficient
way to unscrew the adapter and that Schroeder Brothers mechanics
also had used that same procedure when they were at the mine per-
forming maintenance and repairs.  The drill's service manual was
silent about how to remove the adapters, leaving the impression
that the demonstration by the manufacturer's representative was
as safe as any other means of removing the adapters.

     The parties, after further investigation, agree that rather
than establishing plain indifference or a reckless disregard of
miner safety and the regulatory requirements, the evidence shows
the operator's actions not to be in conformance with safe and
prudent operating practices.  The operator's actions were neither
willful nor unwarrantable.  More accurately, the operator acted
with moderate negligence by not employing an alternative, safer
method of accomplishing the task.

     Under the proffered settlement, the citation is modified
from a "high negligence" 104(d)(1) violation to a "moderate
negligence" 104(a) violation and the penalty is reduced from
$35,000.00 to $10,000.00.

     I have considered the representations and documentation sub-
     mitted in this case and I conclude that the proffered
     settlement is appropriate under the criteria set forth in
     section 110(i) of the Act.

     WHEREFORE, the motion for approval of settlement is GRANTED,
     and it is ORDERED that Citation No. 4060756 be modified as
     agreed and indicated above and that the Respondent,
     Pittsburg and Midway Coal Mining Company, PAY a civil
     penalty of $10,000.00 to the Secretary of Labor within 30
     days of the date of this decision and order.  Upon receipt
     of payment, this case is dismissed.

     The hearing previously set for July 30, 1996, in Albuquer-
     que, New Mexico, is canceled.

                              August F. Cetti
                              Administrative Law Judge
                              Distribution:

                              Connie M. Ackermann, Esq., Office
                              of the Solicitor, U.S. Depart-
                              ment of Labor, 525 Griffin Street,
                              Suite 501, Dallas, TX 75202

                              John W. Paul, Esq., PITTSBURG &
                              MIDWAY COAL MINING CO., 6400 South
                              Fiddler's Green Circle, Englewood,
                              CO 80111-4991

/sh

CONNIE M ACKERMANN ESQ OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR 525 GRIFFIN ST #501
DALLAS TX 75202

JOHN W PAUL ESQ PITTSBURG & MIDWAY COAL
MINING CO 6400 S FIDDLER'S GREEN CIRCLE
ENGLEWOOD CO 80111-4991