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

 
JIM WALTER RESOURCES, INC.
August 11, 1997
SE 94-244-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                         August 11, 1997


SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       :  Docket No.  SE 94-244-R
                                   :
JIM WALTER RESOURCES, INC.         :


BEFORE:  Jordan, Chairman; Marks, Riley, and Verheggen,
         Commissioners


                             DECISION

BY THE COMMISSION:

     This contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"), involves a citation and withdrawal order
issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA") alleging a violation of 30 C.F.R. �
75.400 for accumulation of trash detected in an entry of Jim
Walter Resources, Inc.'s ("JWR") No. 7 Mine located in
Birmingham, Alabama.[1]  After an evidentiary hearing,
Administrative Law Judge Gary Melick affirmed the violation but
concluded that the Secretary had not proved either that the
violation was significant and substantial ("S&S")[2] or that it
had resulted from JWR's unwarrantable failure to comply with the
standard.[3]  16 FMSHRC 1511 (July 1994) (ALJ).  Accordingly, the
judge modified the order issued under section 104(d)(2) of the
Act to a citation under section 104(a).  Id. at 1514.  In
reaching his negative S&S and unwarrantable determinations, the
judge declined to consider nearby trash materials located in the
inactive workings of the mine because they did not violate the
terms of section 75.400.  Id. at 1512-14.  The Secretary
petitioned the Commission to review the S&S and unwarrantable
determinations.  A divided Commission affirmed the judge's
decision.  18 FMSHRC 508 (April 1996).

     Subsequently, the Secretary filed a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit.
On May 2, 1997, the court issued its decision, affirming in part
and reversing and remanding in part the decision of the
Commission.  Secretary of Labor v. FMSHRC, 111 F.3d 913 (D.C.
Cir. 1997).  The court affirmed the Commission's determination
that the section 77.400 violation was not S&S and rejected the
Secretary's argument that, in considering whether the violation
was S&S, the Commission should take account of the seriousness of
the nearby non-violative accumulation.  Id. at 917-18.  Relying
on the language of section 104(d)(1), the court determined that
"Congress has plainly excluded consideration of surrounding
conditions that do not violate health and safety standards" from
the S&S determination.  Id. at 917.

     However, the court determined that section 104(d)(1) was
ambiguous on the question whether the non-violative accumulation
could be considered for the unwarrantable determination.  Id. at
919-20.  The court noted that, when the Mine Act is ambiguous on
a point in question, a court is required to apply the analysis
set forth in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-45 (1984), and defer to a
reasonable interpretation of the Secretary.  111 F.3d at 914-15,
919-20.  The court found the Secretary's interpretation, allowing
consideration of conditions that do not violate health and safety
standards in the determination of unwarrantable failure, to be a
reasonable construction of the Mine Act.  Id. at 919-20.
Accordingly, the court remanded the case to the Commission to
consider the non-violative trash accumulations when addressing
whether "the record contains sufficient evidence of causation and
culpability to support an `unwarrantable failure' finding."  Id.
at 920.  On
July 22, 1997, the court issued its mandate.

     Pursuant to the court's order, we vacate the judge's
unwarrantable determination and remand to the judge to consider
the non-violative accumulations in the inactive area of the mine.
The judge is to consider these accumulations, which his decision
refers to as "massive"
(16 FMSHRC at 1513), in light of the other factors that the
Commission may examine in determining whether a violation is
unwarrantable, including the extent of a violative condition, the
length of time that it has existed, whether the violation is
obvious or poses a high degree of danger, whether the operator
has been placed on notice that greater efforts are necessary for
compliance and the operator's efforts in abating the violative
condition made prior to the issuance of the citation or order.
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6
FMSHRC 1596, 1603 (July 1984); Midwest Material Co., 19 FMSHRC
30, 34 (January 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 11-12,
17 (January 1997).  If the judge determines that the violation is
unwarrantable, he shall modify the citation accordingly and
reassess the civil penalty.


                              Mary Lu Jordan, Chairman

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner


**FOOTNOTES**

     [1]:  Section 75.400 states:

               Coal  dust,  including  float  coal dust
          deposited   on  rock-dusted  surfaces,  loose
          coal, and other  combustible materials, shall
          be  cleaned  up  and   not  be  permitted  to
          accumulate in active workings, or on electric
          equipment therein.

(Emphasis added.) "Active workings"  is  defined  in  30 C.F.R. �
75.2  as  "[a]ny  place  in a coal mine where miners are normally
required to work or travel."

     [2]:  The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C. � 814(d)(1), which distinguishes as more serious
in nature any violation that "could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health
hazard . . . ."

     [3]:   The  unwarrantable failure terminology is taken  from
section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), which establishes 
more severe sanctions for any violation that is caused by "an
unwarrantable  failure of [an]  operator  to  comply  with . . . 
mandatory health or safety standards . . . ."