<DOC>
[DOCID: f:s94-126r.wais]

 
JIM WALTER RESOURCES, INC.
February 23, 1995
SE 94-126-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          February 23, 1995

JIM WALTER RESOURCES, INC.,        :  CONTEST PROCEEDING
               Contestant          :
                                   :
          v.                       :  Docket No. SE 94-126-R
                                   :  Order No. 3197626; 12/29/93
SECRETARY OF LABOR,                :
  MINE AND SAFETY AND HEALTH       :  No. 4 Mine
  ADMINISTRATION (MSHA),           :  Mine ID 01-01247
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. SE 94-306
               Petitioner          :  A.C. No. 01-01247-04106
                                   :
          v.                       :
                                   :  Docket No. SE 94-407
JIM WALTER RESOURCES, INC.,        :  A.C. No. 01-01247-04118
               Respondent          :  No. 4 Mine
                                   :
                                   :  Docket No. SE 94-384
                                   :  A.C. No. 01-01322-03949
                                   :  No. 5 Mine
                                   :
                                   :  Docket No. SE 94-383
                                   :  A.C. No. 01-01401-04000
                                   :
                                   :  Docket No. SE 94-389
                                   :  A.C. No. 01-01401-03998
                                   :
                                   :  Docket No. SE 94-390
                                   :  A.C. No. 01-01401-03999
                                   :
                                   :  No. 7 Mine
                                   :
SECRETARY OF LABOR, HEALTH         :  CIVIL PENALTY PROCEEDIN
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :
               Petitioner          :  Docket No. SE 94-446
                                   :  A.C. No. 01-01247-04126-A
                                   :
CARL W. HARLESS, employed by       :  No. 4 Mine
  JIM WALTER RESOURCES, INC.,      :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. SE 94-453
               Petitioner          :  A.C. No. 01-01247-04125-A
                                   :  No. 4 Mine
          v.                       :
                                   :
WILLIAM E. WILSON, employed by     :
  JIM WALTER RESOURCES, INC.,      :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. SE 94-454
               Petitioner          :  A.C. No. 01-01247-04127-A
                                   :  No. 4 Mine
         v.                        :
                                   :
HILBURN HULSEY, employed by        :
  JIM WALTER RESOURCES, INC.,      :
               Respondent          :
                                   :
SECRETARY OF LABOR,                :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA),           :  Docket No. SE 94-511
               Petitioner          :  A.C. No. 01-01247-04124-A
                                   :  No. 4 Mine
          v.                       :
                                   :
C. DON SIMS, employed by           :
  JIM WALTER RESOURCES, INC.,      :
               Respondent          :

                               DECISION

Appearances:  William Lawson, Esq., Office of  the  Solicitor,
              U.S. Dept. of Labor, Birmingham, Alabama, for
              Petitioner; J. Alan Truitt, Esq., Maynard,
              Cooper & Gale, Birmingham, Alabama, for
              Individual Respondents; R. Stanley Morrow,
              Esq., Jim Walter Resources, Inc.; Brookwood,
              Alabama, for Contestant and Respondent.

Before:  Judge Barbour

     These cases are brought pursuant to Sections 105 and
110 of the Federal Mine Safety and Health Act of 1977 (Mine
Act or Act), 30 U.S.C. � 815, 820.  In the contest proceeding,
Jim Walter Resources Inc. (Jim Walter) challenges the
validity of an order of withdrawal issued at its No. 4
Mine.  In the civil penalty proceedings, the Secretary
of Labor (Secretary), on behalf of the Mine Safety and
Health Administration (MSHA), seeks the assessment of
penalties against Jim Walter and three individuals for
alleged violations that occurred at the No. 4 Mine,
No. 5 Mine and No. 7 Mine.

     Pursuant to various orders of consolidation and notices
of hearing, the matters were heard in Hoover, Alabama.

     At the commencement of the hearing, counsel for the
Secretary stated that the parties had settled all of
the proceedings, with the exception of Docket No. SE
94-126-R and its associated civil penalty proceeding,
Docket No. SE 94-407 (Tr. 11-12).  Counsels  explained
the details of the settlements and I indicated that I
would approve the settlements when I decided the
contested cases (Tr. 18).

DOCKET NOS. SE 94-126-R and SE 94-407

     In Docket No. SE 94-126-R, Jim Walter challenges the
validity of Order No. 3197626.  The order was issued
pursuant to Section 103(k) of the Act (30 U.S.C. �
813(k)).  Section 103(k) provides that if an accident
occurs, an inspector, when present, may issue such
orders as he or she deems appropriate to insure the
safety of any person in the mine.

     The order was issued by MSHA Inspector Gerald Tuggle on
December 29, 1993.  It states:

     An accident to the hoisting equipment located in the
production shaft has happened and interfered with the use
of the equipment for more than thirty minutes.  This
order is issued until an investigation can be completed
to assure the safety of the miners or persons in the
production shaft (Gov. Exh. 1).

     Tuggle also issued Citation No. 3197627, pursuant to
Section 104(a) of the Act (30 U.S.C. � 814(a)).  The
citation charges Jim Walter with a violation of 30 C.F.R.
� 50.10.  This mandatory standard requires an operator
to "immediately contact" the MSHA district or subdistrict
office having jurisdiction over its mine, "[i]f an accident
occurs."

     The citation states:

          A reportable accident [occurred] to the hoisting
     equipment in the production shaft in which the hoisting
     equipment was out of service for more than thirty minutes
     and MSHA was not notified immediately.  The accident
     happened at 11:08 p.m. on December 28, 1993 and MSHA was
     notified on December 29, 1993 at approximately 8 a.m.
     (Gov. Exh. 2).

     The Secretary proposed a civil penalty of $500 for the
alleged violation.


                             STIPULATIONS

     The parties stipulated that:

     1.  The Commission has jurisdiction over the proceeding.

     2.  The hoisting equipment referenced in the order and
the citation went out of service at 11:08 p.m. on December
23, 1993.

     3.  MSHA was not notified by Jim Walter that the hoisting
equipment had gone out of service until 7:00 a.m. on
December 29, 1993.

     4.  The hoisting equipment was put back into service at
9:30 a.m. on December 29, 1993 (Tr. 20-21).

                THE SECRETARY'S WITNESS GERALD TUGGLE

     Inspector Tuggle was the Secretary's only witness.
Tuggle has been a MSHA inspector for more than 13 years.
During this time he has inspected both underground and
surface coal mines, including the underground mines operated
by Jim Walter.

     Tuggle testified that coal at the No. 4 Mine is transported
by conveyor belts from the production sections to a location
at the bottom of a shaft where a hoisting system is used to
raise the coal to the surface (Tr. 23).  The hoisting system
includes two skips.  Tuggle described the skips as large
containers.  The skips are attached to wire ropes and a
hoisting mechanism on the surface raises the skips from the
production shaft to the surface.  Tuggle explained that the
skips operate alternatively.  While one skip is being loaded
at the bottom of the shaft, the other skip is being emptied on
the surface (Tr. 25).  When a loaded skip has ascended the
shaft and is at the top of the shaft head frame, the skip
trips a switch and a door on the bottom of the skip slides
open.  The coal falls onto a chute.  The chute leads to a
conveyor, which carries away the coal (Tr. 28).

     Skips are the sole means by which coal is removed from the
No. 4 Mine.  Tuggle estimated that a loaded skip holds
approximately 22 tons of coal (Tr. 26).  The skips move up and
down the production shaft at the rate of approximately 900
feet per minute.  The shaft is approximately 2,000 feet deep
(Tr. 27).  The skips are used during every production shift
(Tr. 29).

     The production shaft is used also as an emergency exit, in
that it contains a hoist used for emergencies only.  The
emergency hoist can carry approximately 10 miners to the
surface (Tr. 27).

     Tuggle testified that on December 29, he was sent to the
mine by his supervisor (Tr. 30, 111).  Tuggle was instructed
to investigate an accident that involved the skip hoisting
equipment.

     Upon arriving at the mine, Tuggle discussed the situation
with Frankie Lee, a member of Jim Walter's mine management team.
Lee told Tuggle the hoist had ceased operation around 11:00
p.m. the previous evening, that repairs had been made, and
that the hoist was back in use (Tr. 104, 112).  Following the
discussion, Tuggle issued the contested Section 103(k) order
(Tr. 114).

     As Tuggle remembered, Lee told him that on December 28,
toward the end of the 4:00 p.m. to 11:00 p.m. shift, the skips
were shut down for lack of coal.  The shift changed at 11:00 p.m.,
and at about that time coal was delivered to the bottom of the
production shaft.  Shortly after 11:00 p.m., the control man
at the bottom of the shaft called the telephone operator and
reported that power to the hoist had gone off.  An alarm also
sounded on the surface to indicate that the hoist had stopped.

     Management personnel went to the surface hoist house to
determine what was wrong.  The hoist house, which contains the
hoist motor and the hoist drum, was full of smoke.  The
personnel opened all of the windows and doors.   The hoist
system uses four metal hoist ropes.  There are four grooves on
the hoist drum into which the ropes wind and unwind.  Each
groove has a neoprene wearing strip.  The strips, which are
changed periodically, help to maintain proper tension on the
ropes.  When the smoke cleared, the personnel could see that
the metal hoist ropes had been slipping on the wearing strips.
Friction caused by the slipping ropes had heated the strips to
the point where they had begun to melt and to smoke (Tr. 31-
32).

     The strips have to wear equally in order for the skips to
run smoothly (Tr. 38).  Because of the uneven wear caused by the
slipping ropes, the neoprene strips had to be regrooved (Tr.
35, 38, 40, 44).

     In addition to the problems on the surface, management
personnel found that the loaded skip had become stuck at the
bottom of the shaft.  The skip was wedged into the wooden
frame that cradles the skip.  Using a torch, mine personnel
severed several bolts and cut away part of the skip (Tr. 34,
35).  This freed the skip so that it could be raised to the
surface (Tr. 37).

     Once the skip was raised out of the wooden frame, personnel
found that the skip control line (a wire cable that stretches
across the bottom of the shaft) had been broken (Tr. 34, 39).
When the control line breaks, the hoisting system shuts down
(Tr. 34).  The control line had to be replaced before the
system could be put back into service (Tr. 39-40).

     Tuggle also was informed that before the hoisting system
ceased to function, Jim Walter had removed from the system a
device that shut the system down if the RPMs of the drum were
"out of sync" with the speed of the ropes.  The device was
removed because lubrication on the ropes caused the device to
function erratically and to shut the system down in the middle
of a skip's ascent or descent (Tr. 41).  Tuggle believed Jim
Walter concluded it was hazardous to have a skip traveling at
900 feet per minute come to a sudden and totally unexpected
stop (id.).  In Tuggle's opinion, if the device had been in
place, it would have "picked up the hoist drum turning and the
cables ... not moving and it would [have] shut the system
down, which would have prevented the melting of the wearing
strips" (Tr.42).

     Tuggle was asked about previous incidents involving skips at
the No. 3 Mine.  (The No. 3 Mine, which is not the site of any
of the citations and orders at issue in these cases, is owned
and operated by Jim Walter.)  He stated that in one instance
the failure of a control switch had caused a skip to hit the
head frame, the ropes had broken, and the skip had fallen down
the shaft.  As a result, Tuggle believed the No. 3 Mine was
unable to operate for three to four weeks (Tr. 45).

     Tuggle stated that he issued the Section 103(k) order in
part to make certain the skips and ropes had not been damaged
to the extent that they might fall down the shaft and injure
miners at the bottom (Tr. 45).  Tuggle stated that he was
concerned about the safety of miners who traveled near the
shaft and miners who might have had to use the emergency hoist
(Tr. 46, 116-117).  Tuggle explained that if the skips and
cables had fallen down the shaft, the damage caused could have
extended beyond the shaft bottom and  endangered miners who
might be in adjacent areas (Tr. 117).  Tuggle stated he wanted
"[t]o preserve the site ... [so that MSHA] could investigate
it to see if it was safe or not" (Tr. 53, See also Tr. 105).

     When asked why he issued the order after everything apparently
was back to normal, Tuggle replied, "[to] shut it down to
where I could investigate and make sure that it was safe for
miners that were in the area and underground" (Tr. 68).
Tuggle acknowledged that when he issued the order at 11:05
a.m., Jim Walter had already advised him that the defects in
the hoisting system had been corrected and that the hoist had
been back in service for approximately one hour and a half
(Tr. 68).  As a result of his investigation, Tuggle found that
all necessary repairs in fact had been made and he concluded
that the hoisting system was safe to operate (Tr. 69).

     Tuggle testified that MSHA Inspector William Zimmerman had
gone to the mine around 7:00 a.m. on December 29, 1993.
Zimmerman was told that the hoist had been inoperative all
night.  This was the first time MSHA was informed about the
hoist being inoperative.  Zimmerman then reported the incident
to MSHA and Tuggle was sent to the mine to investigate.
Tuggle did not know why Zimmerman had not issued a Section
103(k) order (Tr. 66).

     Tuggle also issued Citation No. 3197627.  He did so
because he believed that Section 50.10 requires an operator
to "immediately notify" MSHA when an "accident" occurs.  In
Tuggle's opinion, what had happened to the hoisting system
was an "accident." (Tr. 48-49).

     Tuggle stated that the regulations require the reporting
of all hoisting accidents which result in a hoist being out
of service for over thirty minutes, unless the hoist is out
of service for routine maintenance (Tr. 70-71).  He stated,
"[i]f it's mechanical failure, which damages the hoisting
system for more than 30 minutes ... it needs to be
investigated .... [I]f the mechanical damage is due to an
accidental breakdown of the components ... it needs to be
investigated.  But if it's due to normal wear then, no, I
don't think it needs to be investigated" (Tr. 93).

     According to Tuggle:

     The accident that happened to the hoisting system
was, first, the skip was either overloaded or rain on the
lubrication on the hoist ropes caused the drum to slip
which, in turn, created friction between the liners and
the ropes which, in turn, damaged the liners that it had
to be relined which, in turn, something fell in the
bottom and broke the control wires.

     All of these things right here were different
results of the accident which created the hoist being
down more than 30 minutes (Tr. 96).

     Although Tuggle cited Jim Walter for a violation of
Section 50.10, he was unaware of anything in the MSHA Program
Policy Manual interpreting the standard (Tr. 81).

     Originally, Tuggle cited the violation in an order of
withdrawal issued pursuant to Section 104(d)(2) of the Act
(30 U.S.C. � 814(d)(2)).  Subsequently, he modified the order
to a Section 104(a) citation because inspectors "can only
issue unwarrantable violations on health and safety standards
[and] Part 50 is not a health and safety standard.  It's
more of a record type thing." (Tr. 47).

     Tuggle found the company's negligence to be "high"
(Tr. 77).  He explained that Jim Walter had knowledgeable
people in management positions.  They had experience working
with hoists and  should have known to report the accident
immediately (Tr. 56).

     Tuggle did not find the violation to be a significant
and substantial contribution to a mine safety hazard.  He did
not believe the violation presented a likelihood of injury
or illness (Tr. 57; Gov. Exh. 2).  He acknowledged that no
miners were injured by the accident (Tr. 61).

     With respect to the number of miners endangered, Tuggle
stated that normally one person is in the control room at the
bottom of the shaft (Tr. 61, 107).  However, he believed that
the persons most subject to danger were miners, such as
firebosses, supervisors and pumpers, who traveled
occasionally along the outer edge of the shaft to reach other
areas of the mine (Tr. 61, 108).  Tuggle estimated that at
least one miner would travel daily through the area (Tr.
108).  Tuggle did not know if any miners actually were placed
in jeopardy by the accident on December 28, 1993.  He
emphasized that he was not on hand when the damage to the
equipment occurred (Tr. 62).  He also acknowledged that there
were guardrails around the shaft opening to keep miners from
walking into the bottom of the shaft (Tr. 115).

                        JIM WALTER'S WITNESSES

     The company called no witnesses, but relied upon its
cross examination of Tuggle (Tr.119).

                    VALIDITY OF ORDER NO. 3197626

     Section 103(k) authorizes a mine inspector, in the event
of an accident occurring at a coal or other mines, to "issue
such orders as he deems appropriate, to insure the safety of
any  persons" in the mine (30 U.S.C. � 813(k)(emphasis
added)).  MSHA's regulations at 30 C.F.R. Part 50 provide
several definitions of an "accident." The relevant definition
for purposes of this case is the definition found in section
50.2(h)(11).  It defines an accident as "[d]amage to hoisting
equipment in a shaft or slope which endangers an individual
or which interferes with the use of the equipment for more
than thirty minutes."

     Commission Administrative Law Judge George Koutras has
summarized the nature of Section 103(k) orders and the wide
discretion the section affords inspectors:

     Section 103(k) orders are typically issued by MSHA
inspectors to secure the scenes of accidents, to insure the
continued safety of mine personnel, to preserve evidence, and
to facilitate the investigation of accidents....

     Section 103(k) authorizes an inspector to issue
such orders as he deems appropriate to insure the safety
of miners.  Thus, the issuance of such an order by an
inspector is discretionary.  If an inspector believes
that an operator has the situation well in hand, and
that the safety of miners is insured, he need not issue
any orders at all.  On the other hand, if the inspector
is in doubt, or has insufficient information to enable
him to make a judgement as to the severity of the
situation, or the hazard exposure to miners, ... he must
be afforded the latitude to act according to the wisdom
of his discretion and experience ... [I]n order to
successfully respond to such situations, an inspector
must be able to do what he believes is appropriate
according to the facts as they are known to him, or as
they appear to exist, at the time he makes the decision
to act....If the order was routinely issued, without
regard to the safety or health of miners, then ... it
should be vacated.  If, on the other hand, it was issued
in order to insure the safety or health of the miners,
it should be affirmed (Southern Ohio Coal Co., 13 FMSHRC
1783, 1798-99 (November 1991) (citations omitted)
(emphasis in original).

     In analyzing Tuggle's use of his discretionary authority
to invoke section 103(k), it is important to keep in mind what
Tuggle already knew when he arrived at the mine on December
29.  He had inspected Jim Walter's underground coal mines for
a number of years and he was aware that an accident at the
No. 3 Mine had resulted in a skip and hoist ropes falling
down the production shaft (Tr. 45).  He knew that miners at
the No. 4 mine occasionally were required to travel adjacent
to the bottom of the production shaft (Tr. 116-117).  He also
knew that at the No. 4 mine, a hoist used to carry mine
personnel in the event of an emergency, shared the production
shaft with the skip hoist.

     Tuggle testified repeatedly that he issued the Section
103(k) order so that he could "investigate and make sure
that it was safe for miners" (Tr. 68; See also Tr. 53, 97-98,
116-117).  Given what he knew about the prior accident and
the possible exposure of miners to the inherent dangers and
what he learned from Lee regarding the events that occurred
when the skip became stuck at the bottom of the shaft,
especially the slipping hoist rope, the melting of the neoprene
wearing strips and the broken control line, I conclude that
it was entirely reasonable for Tuggle to halt operations.
Tuggle could then investigate and make certain repairs had
been adequate to insure safety of the miners.  The fact that
Tuggle's investigation resulted in a finding that everything
was safe does not invalidate his decision to issue the
order.  The question is the reasonableness of his decision at
the time he made it (See Homesteak Mining Co., 4 FMSHRC 1829,
1840 (October 8, 1982) (ALJ Vail)).  Tuggle was responsible
for determining whether the hoist had been properly repaired
and, if not, for protecting miners from resulting safety
hazards.  This was a considerable responsibility.  Therefore,
it is natural that any question in his mind would have been
resolved on the side of safety (See M.A.E. West, Incorporated,
10 FMSRHC 813, 842 (June 1988) n. 5 (ALJ Koutras)).

     I conclude that Zimmerman's failure to issue a Section
103(k) order does not invalidate Tuggle's enforcement effort.
In some circumstances, the lack of enforcement action by
one inspector might reflect upon the reasonableness of
action initiated by another inspector.  This is not such
a situation.  As I have already found, the evidence
overwhelmingly supports the proposition that given what
he knew when the order was issued, Tuggle's desire "to
make sure that it was safe for miners" was eminently
reasonable (Tr. 68).  Therefore, the order must be
affirmed.

                    THE VIOLATION OF SECTION 50.10

     In deciding whether a violation occurred, I must
look to the words of the pertinent standards.  If the
words are straight forward and apply to specifically
described situations as in this instance, I need not go
beyond the regulations themselves.

     Section 50.10 requires that "[i]f an accident occurs,
an operator shall immediately contact ... MSHA."  As
previously noted, an "accident" is defined as "[d]amage
to hoisting equipment in a shaft ... which endangers an
individual or which interferes with use of the equipment
for more than thirty minutes" (30 C.F.R. � 50.2(11)).  The
regulation does not distinguish between hoisting equipment
used to transport miners and hoisting equipment used to
transport coal and/or materials.  Moreover, the applicable
definition of "accident" is disjunctive -- "which endangers
an individual or which interferes with use of the
equipment" (30 C.F.R. � 50.10(h)(11)).  (I note that
although Tuggle was unaware of an official interpretation of
Section 50.10 (Tr. 81), Program Policy Letter No. 94-III-2
indicates that MSHA regards damage to hoisting equipment used
solely to transport equipment or material, and which
interferes with use of the equipment for more than thirty
minutes, to be reportable.  "Reporting of Damaged Hoisting
Equipment" (10/7/94).)

     Tuggle's undisputed testimony confirms that there was
damage to the hoisting equipment, in particular, damage to
the neoprene wearing strips and to the control line that
caused the hoisting equipment to be out of service for more
than thirty minutes.  This was an "accident" within the
meaning of Section 50.2(h)(11).  Moreover, even if, as Jim
Walter argues, the regulations only pertain to situations
where miners are exposed to hazards, I would still find
there was an accident within the meaning of the definition.
I credit fully Tuggle's opinion that the defective
production hoist could have exposed those who traveled
occasionally at the bottom of the shaft to danger.  This
being the case, the incident was reportable as an "accident."

     Having found there was an "accident," the question is,
did Jim Walter "immediately contact" MSHA?  It is clear that
the condition of the hoist was not reported until many hours
after the damage occurred.  Jim Walter offers no excuse for
the delay.  The fact that management personnel incorrectly
believed the regulation did not apply cannot excuse their
failure to take the "prompt, vigorous" action required by
the standard.  Consolidation  Coal Company, ll FMSHRC at
1938.  I therefore find the violation existed as charged.

                        CIVIL PENALTY CRITERIA

                               GRAVITY

     Tuggle did not believe that injuries to miners were
reasonably likely because of the violation (Tr. 52).  There
was no evidence that miners were placed in danger by the
accident (Tr. 62).  While I suspect an argument could be made
that a violation of the "immediate contact" requirement of
section 50.10 is serious in and of itself, it was not made
here.  I conclude, therefore, that the violation was not
serious.

                              NEGLIGENCE

     Tuggle found mine management to have been highly
negligent in failing to report the accident.  In his view,
management personnel were experienced and should have known
of their obligation to contact MSHA (Tr. 77).  At the hearing,
counsel for the Secretary pointed to the fact that Jim Walter
obviously knew of the reporting requirement because it had
contacted MSHA when the skip fell down the shaft at the No.
3 Mine (Tr. 124).

     Negligence is the failure to exercise the care required
under the circumstances.  The relevant circumstances here
included the fact that not only did Jim Walter failed to act
immediately, but that eight or nine hours passed before
MSHA was contacted.  Moreover, I agree with counsel that the
accident at the No. 3 Mine should have heightened Jim Walter's
awareness of the requirements of the standard.  I conclude
therefore that Tuggle's negligence finding was warranted.

                    HISTORY OF PREVIOUS VIOLATIONS

     The print-out of the mine's prior assessed violations
lists a large number of such violations.  However, the
overall number of applicable previous violations is counter
balanced by the fact that there were no prior violations of
section 50.10 (Gov. Exh. 4).  I conclude that the applicable
history of previous violations is such that could either
increase or decrease the penalty assessed.

                           SIZE OF BUSINESS

     Jim Walter is a large operator and the No. 4 Mine is a
large mine (Proposed Assessment, Docket No. WEVA 94-407).

                   ABILITY TO CONTINUE IN BUSINESS

     No evidence was offered that any penalty assessed will
affect Jim Walter's ability to continue in business and I
conclude it will not.

                         GOOD FAITH ABATEMENT

     Tuggle indicated that at the time the citation was issued,
the company had already abated the violations by notifying MSHA
(Gov. Exh. 2).

                          CIVIL PENALTY

     When I inquired why the violation was subject to a
special assessment under the provisions of 30 C.F.R. Part 100,
counsel for the Secretary stated that the violation was
assessed when it was a Section 104(d)(2) order, prior to the
order's modification to a Section 104(a) citation (Tr. 57-58).

     Section 100.5(b) provides that the Secretary may elect
to specially assess a violation when it is due to the
unwarrantable failure of the operator to comply.  The
unwarrantable finding was eliminated when the order was
modified to a section 104(a) citation.  Counsel stated,
however, that the Secretary continued to believe the
proposed penalty of $500 was justified by Tuggle's "high"
negligence finding (Tr. 57-58).

     Section 100.5(h) provides the Secretary may invoke the
special assessment provisions in cases of "an extraordinarily high
degree of negligence" (emphasis added).  I can not conclude that
the lack of care exhibited by Jim Walter in this instance was
extraordinarily high.

     In view of this and the other civil penalty criteria
findings, I find the proposed penalty to be excessive.
Therefore, I will assess a civil penalty of $300.

                             SETTLEMENTS

                              SE 94-407

Citation/
Order No. ...Date        30 C.F.R. �    Assessment     Settlement

3182293     10/28/93     75.370(a)(1)     $5,200        $3,500

(Tr. 139-140)

                              SE 94-306

Citation/
Order No. ...Date        30 C.F.R. �    Assessment     Settlement

2807227     08/18/93     75.220           $8,500        $5,500
3182263     10/28/93     75.400           $1,610        $  793
3182266*    11/15/93     75.370(a)(1)     $1,298        $  300
3182267     11/15/93     75.400           $1,298        $  793
3183390*    11/15/93     75.503           $1,610        $  200
3183399*    11/16/93     77.410           $  506        $  150
3183400     11/17/93     77.202           $  595        $  595
3183512*    11/18/93     75.400           $  506        $  150
3183515*    11/18/93     75.400           $  793        $  200
2807244*    11/30/93     75.370(a)(1)     $1,298        $  300
2807499*    11/30/93     75.1403          $1,610        $  300
2807245*    12/06/93     75.370(a)(1)     $1,610        $  300

(Tr. 140-147) (*The Secretary agrees to delete the S&S findings.)

                         DOCKET NO. SE 94-383

Order/
Citation     Date        30 C.F.R. �    Assessment     Settlement

3182598     12/08/93     75.203(e)        $  595        $  200
3182235*    12/09/93     75.1106-3(a)(3)  $  288        $
100
3182605     12/10/93     75.370(a)(1)     $  431        $
150

(Tr.147-149) (*The Secretary agrees to delete S&S finding.)

                         DOCKET NO. SE 94-384

Order/
Citation     Date        30 C.F.R. �    Assessment     Settlement

3184808    06/24/93      50.20            $   50        $  50
3195772*   11/09/93      75.380(g)        $1,155        $ 400

(Tr. 149-150) (*The Secretary agrees to delete the S&S
finding.)

                         DOCKET NO SE 94-389

Order/
Citation     Date        30 C.F.R. �    Assessment     Settlement

318273      05/05/93     75.202(b)        $2,300         $1,000
3182533     11/04/93     75.340           $  793        $   309
3182534     11/04/93     75.400           $  793        $   309
3183388*    11/04/93     75.503           $1,019        $   200
3182537     11/08/93     75.203(e)        $  309        $   309

(Tr. 150-152) (*The Secretary agrees to delete the S&S finding.)

                         DOCKET NO. SE 94-390
Order/
Citation     Date        30 C.F.R.�     Assessment     Settlement

3182539     11/09/93     75.220           $  288        $  288
3182543     11/09/93     75.220           $  288        $  288
2182545     11/09/93     75.400           $1,019        $  309
3182549*    11/10/93     75.333(b)(3)     $1,019        $  250
3102551*    11/12/93     75.370(a)(1)     $  431        $  125
2182553*    11/12/93     75.1713-7(a)(3)  $  288        $   50
3182227     11/15/93     75.400           $  309        $  100
3182554     11/16/93     75.400           $  595        $  595
3182555*    11/16/93     75.400           $  595        $  150
3182556     11/16/93     75.1719-1(a)     $  288        $  288

(Tr. 152-156) (The Secretary agrees to delete the S&S finding.)

                         DOCKET NO. SE 94-446

Citation/
Order No.    Date        30 C.F.R. �    Assessment     Settlement

2807227     02/18/93     75.220           $  300        $  200

(Tr. 13-18)

                         DOCKET NO. SE 94-453

Citation/
Order No.    Date        30 C.F.R. �    Assessment     Settlement

2807227     02/18/93     75.220           $3,500        $  200

(Tr. 13-18)

                     APPROVAL OF THE SETTLEMENTS

     After consideration of the information in support of the
settlements provided on the record by counsels, I find that
the proposals are reasonable and in the public interest.
Pursuant to 29 C.F.R. � 2700.31, the settlements are APPROVED.

                   WITHDRAWAL OF PENALTY PETITIONS

            DOCKET NO. SE 94-454 and DOCKET NO. SE 94-511

     Counsel for the Secretary moved to withdraw the
Secretary's petitions for assessment of civil penalty in
two of the individual civil penalty cases on the grounds
that the Secretary could not establish that the Respondents
knowingly violated the standards alleged (Tr. 12-13).  The
Commission's rules provide that a party may withdraw a
pleading at any stage of a proceeding with the approval of
the judge (29 C.F.R. � 2700.11).  The motion is GRANTED.

                                ORDER

     In Docket No. SE 94-126-R, Order No. 3197626 is AFFIRMED
and the proceeding is DISMISSED.

     In Docket No. SE 94-407, Citation No. 3197627 is AFFIRMED
and Respondent, Jim Walter, is ORDERED to pay a civil penalty
of $300 for the violation of section 50.10.

     In Docket Nos. SE 94-407, SE 94-306, SE 94-383, SE 94-384,
SE 94-389 and SE 94-390, Respondent, Jim Walter, is ORDERED
to pay civil penalties as agreed to in the settlements.  The
Secretary is ORDERED to modify the referenced citations and
orders by deleting the S&S findings.

     In Docket No. SE 94-446, Respondent, Carl W. Harless, is
ORDERED to pay a civil penalty of $200 for the violation of
section 75.220.

     In Docket No. SE 94-453, Respondent, William E. Wilson, is
ORDERED to pay a civil penalty of $200 for the violation of
section 75.220.

     Payment shall be made to MSHA within 30 days of the date
of this decision, and upon payment, the referenced proceedings
are DISMISSED.

     Finally, civil penalty proceedings Docket Nos. SE 94-454
and SE 94-511 are DISMISSED.


                                 David F. Barbour
                                 Administrative Law Judge

Distribution:

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O.
Box 133, Brookwood, AL 35444 (Certified Mail)

J. Alan Truitt, Esq., Maynard, Cooper & Gale, P.C., 1901
Sixth Avenue, North, 2400 AmSouth-Harbert Plaza, Birmingham,
AL 35203-2602 (Certified Mail)

William Lawson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Chambers Building, Suite 150, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)

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