<DOC>
[DOCID: f:s9681r.wais]

 
JIM WALTER RESOURCES, INCORPORATED
March 20, 1996
SE 96-81-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            March 20, 1996

JIM WALTER RESOURCES,      :   CONTEST PROCEEDINGS
   INCORPORATED,           :
              Contestant   :   Docket No. SE 96-81-R
                           :   Safeguard No. 4476609; 12/20/95
          v.               :
                           :   Docket No. SE 96-108-R
SECRETARY OF LABOR,        :   Safeguard No. 4476467; 1/19/96
  MINE SAFETY AND HEALTH   :
  ADMINISTRATION  (MSHA),  :   No. 4 Mine
               Respondent  :
                           :   Mine ID 01-01247

                         ORDER OF DISMISSAL

Before: Judge Merlin

     On January 16, 1996, the operator filed a notice of  contest
with  respect  to Safeguard No. 4476609. This matter was assigned
Docket No. SE 96-81-R, captioned  as above. On January 29, 1996, 
the Solicitor  filed a motion to dismiss.

     On  January 23, 1996, the operator filed a notice of contest
with  respect  to Safeguard No. 4476467. This matter was assigned
Docket No. SE 96-108-R,   captioned   as  above. On February 12, 
1996, the Solicitor filed a motion to dismiss identical to the one
previously filed in the first case.

     In  his  motions  to  dismiss, the Solicitor argues that the
Commission does not have jurisdiction to consider a contest of  a
notice to provide safeguard. On March 1, 1996, the operator orally
advised  my  law  clerk that it would not file a response.

     Section  314(b)  of  the  Federal Mine Safety and Health Act
(hereafter referred to as the "Act"), 30 U.S.C. � 864(b), authorizes
the Secretary to issue safeguards to minimize hazards  with  respect
to  the transportation  of men and materials. Safeguards are issued
on a mine to mine basis and have the effect of mandatory standards.
Southern  Ohio Coal Company, 7  FMSHRC  509,  512 (April  1985). No
penalty is assessed for the violation of a safeguard.  When the 
requirements of a safeguard are subsequently violated, a citation 
is  issued for which a penalty is   assessed. Southern Ohio Coal
Company, 14 FMSHRC 1, 13 (January 1992).

     Section  105(d), 30 U.S.C. � 815(d), grants  the  Commission
jurisdiction to review citations, orders, and proposed penalty 
assessments of the Secretary.  There is no statutory provision 
for review of safeguard notices  and the  Commission has never
reviewed one. Commission decisions regarding safeguards deal
only  with situations where a subsequent citation has been
issued.  Southern  Ohio  Coal Company, 14 FMSHRC 1; Beth 
Energy Mines Inc., 14  FMSHRC 17 (January 1992); Mettiki 
Coal   Corp.,   14  FMSHRC  29 (January 1992); Rochester and
Pittsburgh Coal  Co., 14 FMSHRC 37 (January  1992); Green 
River  Coal  Company, 14 FMSHRC 43 (January 1992); Southern 
Ohio Coal Company,  10  FMSHRC  963 (August 1988); Southern 
Ohio  Coal Company,  7  FMSHRC 509;  Jim  Walter  Resources,
Inc., 7 FMSHRC  493 (April 1985); Commission judges  have 
refused to review a safeguard  where  there is no subsequent
citation.  Beckley  Coal  Mining  Co., 9 FMSHRC 1454 (August
1987);  Colorado Westmoreland,   Inc.,   10  FMSHRC  1236
(September 1988). The Commission, as a creature of Congress,
is bound by the limits  created by Congress  and  cannot
expand them.   Lyng  v.  Payne, 476 U.S. 926, 937 (1986);
Killip v.  Office  of Personnel  Management, 991 F.2d 1564,
1569 (Fed Cir. 1993); Kaiser Coal Corp., 10 FMSHRC 1165, 
1169 (September 1988).

     In light of the foregoing, it is ORDERED that these 
cases be DISMISSED.


                              Paul Merlin
                              Chief Administrative Law Judge


Distribution: (Certified Mail)

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

William Lawson, Esq., Office of the Solicitor, U.S. Department
of Labor, 150 Chambers Bldg., Highpoint Office  Center, 100
Centerview  Drive,  Birmingham,  AL 35216

Mr. James  A. Blankenship, President, Local 2245, UMWA, 3500
Culver Rd., Lot  #6, Tuscaloosa, AL 35401

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