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CONSOL PENNSYLVANIA COAL
January 11, 1999
PENN 98-108


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                           January 11, 1999

SECRETARY OF LABOR              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. PENN 98-108
                Petitioner      :  A. C. No. 36-07416-03743
                                :
            v.                  :  Enlow Fork Mine
                                :
CONSOL PENNSYLVANIA COAL        :
  COMPANY,                      :
                Respondent      :

                               DECISION

Appearances:  Anthony G. O'Malley, Jr., Esq., Office of the Solicitor,
              U.S. Department of Labor, Philadelphia, Pennsylvania,
              on behalf of the Petitioner; Elizabeth S. Chamberlin,
              Esq., CONSOL Inc., Pittsburgh, Pennsylvania, on
              behalf of the Respondent.

Before:  Judge Melick

     This case is before me upon a petition for civil penalty
filed by the Secretary of Labor against Consol Pennsylvania Coal
Company (Consol) pursuant to section 105(d) of the Federal Mine
Safety and Health of 1977, 30 U.S.C.  801, et seq., the "Act,"
alleging two violations of mandatory standards and seeking a
civil penalty of $540 for those violations.  The general issue
before me is whether Consol committed the violations as alleged
and, if so, what is the appropriate civil penalty to be assessed
considering the criteria under section 110(i) of the Act.

     At hearing the parties agreed to settle Citation No. 3674196
by deleting the "significant and substantial" findings and
reducing the civil penalty to $200. The proffered settlement is
acceptable under the criteria set forth in section 110(i) of the
Act and an order directing payment of that amount will be
incorporated in this decision.

     The citation remaining at issue, No. 7066284, alleges a
"significant and substantial" violation of the standard at 30
C.F.R.  75.1725(a) and charges as follows:

          The B-14 belt conveyor at the transfer area is not
     being maintained in a safe operating condition. The
     belt scraper, installed on the underside of the bottom
     belt, was observed positioned  in a manner which
     permitted the belt splice areas of the belt to come
     into contact with one of the right inby side support
     chains, 3/8" chain link, creating undue stress on the
     installation.  One of the support chains on the left
     inby side had already broken creating this hazardous
     condition.  Management removed the belt from service
     immediately upon determining this condition to be
     hazardous.

     The cited standard, 30 C.F.R.  75.1725(a), provides that
"[m]obile and stationary machinery and  equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be removed from service immediately."

     Edward Lewetag, an inspector for the Department of Labor's
Mine Safety and Health Administration (MSHA) with significant
industry experience, was inspecting the Enlow Fork Mine on
February 9, 1998, accompanied by another MSHA inspector and two
Consol employees, Safety Director Robert  Gross and Safety
Inspector Daniel Clark. Near the transfer area of the B-14 belt
Lewetag heard a loud banging noise. While standing in the right
inby travelway Lewetag then observed that the noise came from the
belt scraper. The belt scraper is used to clean debris from the
belt after dumping. The 2-foot-wide and 5-foot-long scraper had
a metal framework with rubberized material drawn up against the
bottom belt.  The belt at this location was 52 inches wide.
Lewetag observed that the 3/8 inch guide chain suspended from the
roof had come loose thereby forcing the right hand portion of the
scraper to fall out of alignment in an inby direction toward the
inby left walkway. The failure of the guide chain also had the
effect of permitting the splices on the conveyor belt to come in
contact with the right inby support chains and come-along cables
of the scraper assembly.  This contact between the belt splices
and the scraper assembly chains and come-along cables caused the
scraper and the scraper assembly to bounce about.

     According to Lewetag, the scraper assembly could thereby
become detached from its "J"-hooks and the scraper could then be
ejected into the left side walkway. He further noted that if a
miner happened to be standing in the left inby walkway and the
belt scraper ejected to that side, body contact would likely be
at waist level or below.  He concluded that it would be "reasonable"
for these events to occur and if the scraper contacted a person
it would cause injury.  According to Lewetag, the pre-shift and
on-shift examiners on each of the 3 shifts, the belt foreman
and miners performing belt cleaning were likely to be exposed
to the hazard.

     As noted, Robert Gross,  the  Enlow Fork Mine Safety
Supervisor, accompanied Lewetag on this inspection.  Gross
acknowledged that the subject scraper had indeed come loose
because of the loose alignment chain and that each time a splice
in the belt caught the mounting bracket the scraper would jerk.
Gross disagreed however with Lewetag's assessment of a hazard.
Gross opined that if the scraper became disconnected it would
likely fall onto the drip plan below and strike the mounting
bracket.  According to Gross, the scraper would therefore be
restrained and could not be projected into the walkway. Gross
observed that other scrapers had come loose before and had always
been found in the drip pan.  Gross also thought that, in any
event, there was no probability of the scraper coming loose.
Consol Safety Inspector Daniel Clark also observed the cited
condition. The scraper was admittedly out of alignment and
splices on the bottom belt were catching and causing the scraper
to jump.  Clark nevertheless concluded that this did not
constitute an unsafe condition.

     In Alabama By-Products Corp., 4 FMSHRC 2128 (December 1982),
the Commission  addressed the standard to be applied when
determining the validity of alleged violations of the mandatory
standard at issue and stated that "in deciding whether equipment
or machinery is in safe or unsafe operating condition we conclude
that the alleged violative condition is appropri-ately measured
against the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation."

     I have absolutely no doubt that Inspector Lewetag acted and
testified  in good faith.  However, based on the credible
testimony of Consol's Safety Supervisor, Robert Gross, and Safety
Inspector Daniel Clark, corroborated by photographs showing the
configuration  of the subject  scraper  assembly  and  its
relationship to the mounting chain for the drip pan and the belt
structure, I do not believe the inspector was adequately informed
of all of the factual circum-stances sufficient to meet the
Alabama  By-Products  standard.  Thus the Secretary's only
proffered theory of a hazard (that the scraper assembly would be
projected into a miner passing along the walkway) cannot be
supported.

     Under all the circumstances I do not find that the Secretary
has met her burden of proving the violation charged in Citation
No. 7066284.

                                ORDER

     Citation No. 7066284 is hereby VACATED.  Citation No.
3674196 is hereby AFFIRMED, but without  "significant  and
substantial" findings and Consol Pennsylvania Coal Company is
hereby directed to pay a civil penalty of $200 for the violation
charged therein within 30 days of the date of this decision.


                                 Gary Melick
                                 Administrative Law Judge


Distribution:  Anthony G. O'Malley, Jr., Esq., Office of the
Solicitor, U. S. Department of Labor, 14480 Gateway Building,
3535 Market Street, Philadelphia, PA  19104 (Certified Mail)

Elizabeth S. Chamberlin, Esq., CONSOL Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA  15241-1421 (Certified Mail)

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