Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources, Inc. faced two respirable-dust violations at the Bessie Mine. The original penalties totaled $272, and the parties proposed settlements totaling $40. Judge Paul Merlin approved the settlement after considering the parties' representation that miners in the designated occupation wore respirators. The citations were modified to remove the significant-and-substantial characterization, and the company was ordered to pay $40 within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 70.100(a).
• Outcome: The settlement was approved, the significant-and-substantial characterization was removed, and the total penalty was reduced from $272 to $40.
• Key point: The use of respirators rebutted the presumption that the respirable-dust violations were significant and substantial.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. JIM WALTER
DDATE:
19870929
TTEXT:

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        Federal Mine Safety and Health Review Commission
              Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 87-91
PETITIONER A.C. No. 01-00328-03623

        v.                           Bessie Mine

JIM WALTER RESOURCES, INC.,
RESPONDENT

                   DECISION APPROVING SETTLEMENT
                            ORDER TO PAY

Before: Judge Merlin

 The parties have filed a joint motion to approve settlements

of the two violations involved in this case. The total of the
originally assessed penalties was $272 and the total of the
proposed settlements is $40.

 The motion discusses the violations in light of the six

statutory criteria set forth in section 110(i) of the Federal
Mine Safety and Health Act of 1977. The subject citations were
issued for violations of respirable dust standards. 30 C.F.R.
70.100(a). Both violations were designated as significant and
substantial on the citations. The parties represent that a
reduction from the original assessment is warranted because the
employees who were working in the designated occupation were
wearing personal protective equipment in the form of respirators.
The parties further represent that MSHA will modify the subject
citations to delete the significant and substantial
characterization.

 The rationale of the proposed settlements is justified by

Commission precedent. Under Consolidation Coal Company, 8 FMSHRC
890 (1986), aff'd, 824 F.2d 1071 (D.C.Cir.1987), a rebuttable
presumption exists that all respirable dust violations are
significant and substantial. However this presumption may be
rebutted by establishing that miners in the designated occupation
were not exposed to the hazard posed by the excessive
concentration of respirable dust. The Commission specifically
noted that the use of personal protective equipment would satisfy
this evidentiary requirement. Based upon the representations of
the parties, this appears to be a case where the presumption is
rebutted.

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In light of the fact that the miners in this case were wearing
personal protective equipment, I find the violations were
nonserious and approve the proposed settlements. Accordingly, the
motion to approve settlements is GRANTED and the operator is
ORDERED TO PAY $40 within 30 days from the date of this decision.

                                  Paul Merlin
                                  Chief Administrative Law Judge