<DOC>
[DOCID: f:se98184.wais]

 
JIM WALTER RESOURCES INCORPORATED
May 6, 1999
SE 98-184-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                           May 6, 1999

SECRETARY OF LABOR,               :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA),          :  Docket No. SE 98-184-D
   on behalf of BENNARD SMITH,    :  BIRM CD 98-02
               Complainant        :
          v.                      :
                                  :  No. 3 Mine
JIM WALTER RESOURCES INCORPORATED,:  Mine ID No. 01-00758
               Respondent         :

                             DECISION

Appearances: William Lawson, Esq., Office of the Solicitor,
             U. S. Department of Labor, Birmingham, Alabama, on
             behalf of Complainant;
             David  M.  Smith,  Esq.,  and  James  P.  Naftel,
             Esq., Maynard, Cooper & Gale, P.C., Birmingham,
             Alabama, and Guy W. Hensley, Esq., Jim Walter
             Resources, Inc., on behalf of Respondent.

Before:Judge Melick

     This case is before  me  upon  a complaint of discrimination
and  petition  for  assessment of civil  penalty  under  Sections
105(c) and 105(d) of  the  Federal  Mine Safety and Health Act of
1977 (the Act).  Following hearings a  decision on the merits was
issued on March 23, 1999, granting the Secretary's  Complaint  in
part.   The  parties  have  now  filed  a  motion  to  approve  a
settlement  agreement  providing  a reduction in civil penalty to
$1,500.00  and  damages  to the individual  Complainant,  Bennard
Smith.  Mr. Smith has agreed  to  the proposed amount of damages.
I have considered the representations and documentation submitted
in this case including the entire trial  record  and  I  conclude
that  the  proffered  settlement is acceptable 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  Respondent  pay  damages  of $2,789.00 to
Bennard  Smith and a civil penalty of $1,500.00 to the  Secretary
within 40 days of this order.


                              Gary Melick
                              Administrative Law Judge

Distribution:

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

Bennard  Smith,   612  North  13th  Street,  Bessemer,  AL  35023
(Certified Mail)

David M. Smith, Esq.,  Michael E. Turner, Esq., Maynard, Cooper &
Gale, P.C., 1901 Sixth Avenue  North, 2400 AmSouth/Harbert Plaza,
Birmingham, AL 35203-2602
(Certified Mail)

\mca