Jim Walter Resources

Plain-English summary

MSHA alleged that Jim Walter Resources allowed extensive coal dust to accumulate along the East B belt and in a starter box, and operated an improperly aligned belt with missing or damaged rollers and belt stands. The judge found both litigated violations, under 30 C.F.R. §§ 75.400 and 75.1725(a), significant and substantial and the result of unwarrantable failure. The judge assessed $6,500 for each litigated order. The parties also settled four other orders for $8,600 and settled the remaining consolidated cases for $14,621. The final order required a total penalty of $36,221.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.400; 30 C.F.R. § 75.1725(a); 30 U.S.C. § 814(d)(1)
• Outcome: Two litigated violations were affirmed with $6,500 penalties each, and settlements were approved for the other orders. Total penalty: $36,221.
• Key point: Extensive coal dust and unsafe belt conditions supported significant-and-substantial findings and unwarrantable-failure findings.

Full text (FMSHRC public release)

[DOCID: f:se95-339.wais]

JIM WALTER RESOURCES
May 22, 1996
SE 95-339

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         May 22, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 95-339
Petitioner : A.C. No. 01-01401-04078
v. :
: Docket No. SE 95-344
JIM WALTER RESOURCES, : A.C. No. 01-01401-04080
Respondent :
: Docket No. SE 95-367
: A.C. No. 01-01401-04086
:
: Docket No. SE 95-369
: A.C. No. 01-01401-04089
:
: Docket No. SE 95-476
: A.C. No. 01-01401-04103
:
: No. 7 Mine
:
: Docket No. SE 95-358
: A.C. No. 01-01322-04013
:
: No. 5 Mine

                         DECISION

Appearances: William Lawson, Esq., U.S. Department of Labor,
Office of the Solicitor, Birmingham, Alabama,
for the Petitioner;
R. Stanley Morrow, Esq., Jim Walters Resources,
Inc., Brookwood, Alabama, for the Respondent.

Before: Judge Weisberger

                  Statement of the Case

 These cases are before me based upon  several  Petitions for

Assessment of Civil Penalty filed by the Secretary (Petitioner)
alleging violations by Jim Walter Resources (Respondent) of
various mandatory safety standards set forth in Title 30 of
the Code of Federal Regulations. Pursuant to Notice, Docket
No. SE 95-369 was heard in Hoover, Alabama on January 17 and 18,
1996, and February 27, 1996. The parties settled four of the six
orders at issue,[1] and the two remaining orders were litigated.

 The  parties  each  waived  the  opportunity  to file a post

hearing brief, and in lieu thereof, presented a closing oral
argument.

             Findings of Fact and Discussion

I. Order No. 3192511

           A.   Petitioner's Case

 On April 10, 1995, at approximately 11:00  p.m.,  Keith

Plylar, Chairman of the UMWA safety committee, performed a
bimonthly examination of the East A and B belts. At
approxi- mately 12:30 a.m., he observed float coal dust in
the air, several "bad" top and bottom rollers (Tr. 24), and
several bottom rollers turning in coal on the floor[2]. He
indicated that the belt was not aligned, the tail roller was
running in an accumulation of coal that was twenty four to
thirty six inches deep, and coal dust was being blown in the
air. Plylar also noted that the belt was cutting into the
belt frames[3] which were hot to the touch. He also noted
accumulations under the rollers, and on the roof and ribs of
the entry.

 Plylar indicated that the conditions that  he  observed

presented a hazard in that friction could be created, and
additional coal dust could be thrown into the air.

 Plylar opined, based upon fifteen years experience working

underground in coal mines, that the amount of the
accumulations of coal that he observed, and its black color
indicated a "continuing buildup" over a "[m]atter of days"
(Tr. 33). In
this connection, he noted that the coal accumulations varied
between three inches and twenty-four inches deep, and
extended for the entire length of the belt from the header
inby to the tailpiece. He opined that due to the extensive
amount of float dust on the roof, ribs, and floor, the
material had not accumulated "within a matter of hours" of
his examination
(Tr. 79).

 At 1:45 a.m., Plylar pointed out the above conditions to

Bobby Taylor, Jim Walter's Safetyman, and asked him to shut
down the belt in order to clean it, as there was a "severe
hazard" to miners working near the belt line (Tr. 24).
According to Plylar, Taylor told him that he agreed that the
condition was bad enough to shut down the belt, but that he
did not have any authority to do so. Plylar suggested that
Taylor get in touch with someone who did have this
authority. Taylor called Trent Thrasher the shift foreman.
Plylar indicated that after Taylor talked to Thrasher, he
(Taylor) informed him (Plylar) that ". . . they didn't have
anyone to put on this belt line at this time"
(Tr. 26).

 Plylar indicated that on "several occasions," (Tr. 45) he

had observed "smoldering" or "glowing spots" (Tr. 43, 44),
and smoke on the belt line. He opined that these conditions
were caused by the belt not being aligned properly, and the
belt "cutting into the belt stands" (Tr. 45). Also he indicated
that, "pretty frequently", (Tr. 45) miners had reported
fires to him that they had seen in the mine.

 Plylar came out of the mine at approximately 4:30 a.m. At

that time, no one was cleaning the belt line. Plylar called
the MSHA office at approximately 7:00 a.m., to report the
conditions that he had observed, and to request a section
103(g) inspection.

 John  Thomas Terbo, an MSHA  inspector,  testified  for

Petitioner. On April 11, 1995, at approximately 9:45 a.m.,
Terbo inspected the East B-belt in the presence of Larry
Morgan, the day shift mine foreman and Larry Spencer, the
union representative. He indicated that he commenced his
examination of the outby and of the B-belt, and continued
inby down to the tail roller, a distance of approximately
5,000 feet. Terbo indicated that to the best of his
recollection the belt was running when he arrived at the
site.[4] According to Terbo, he observed coal dust in the
atmosphere. Also, he noted that the floor, ribs, and roof,
including the cross cuts, were black for the entire length
of the belt. He indicated that since normally these areas
are white due to the presence of rock dust, the black color
was "very obvious" (Tr. 94). He also observed an
accumulation of coal dust on the starter box. Terbo
testified that there was float dust, black in color, on top
of all components inside the starter box.[5] He noted that
opening and closing of electrical contacts in the box, which
occurs when power to the belt is turned on and off, can
cause arcing. He opined that the coal dust "[a]bsolutely"
did not result from spillage (Tr. 100).

 According to Terbo, the tail roller and "numerous" (Tr. 101)

metal belt rollers were turning in coal dust on the floor.
He indicated that the eventual grinding of the coal dust
caused by these conditions can result in the production of
fine dust which could become airborne, and provide fuel for
a fire. Terbo noted that some rollers were hot, and the
belt stands were "extremely hot" (Tr. 106). Also, the belt
was cutting into the stands, and there were accumulations on
the stands. Terbo indicated that with continued normal
operations, it was "highly likely" that these conditions
would contribute to a fire hazard (Tr. 105). Terbo opined that,
in the event of a fire, injuries to miners at the face
as a result of smoke inhalation would have occurred, inasmuch
as the belt entry was ventilated by intake air which flowed
inby to the face.

 Access to the face was by way of vehicles that traveled on

a track located next to, and parallel to the belt.
According to Terbo, "[i]t was very obvious if you traveled
this track entry, and supervisors travel this track entry on
a shift by shift basis, that you could see these conditions
were there" (Tr. 111). He also noted that the accumulations
extended 5,000 feet, and that "these conditions" (Tr. 111),
were noted in the fire boss book "dating back to April 4th
of `95" (Tr. 109). He opined that the accumulations he
observed did not occur in one day, and that they had existed
"[f]or days" (Tr. 115). He based this opinion upon the
extent of the totally black accumulations that extended for
5,000 feet, and covered the roof, ribs, and floor.

 Terbo issued an order alleging a violation of 30 C.F.R.

� 75.400 which provides that "coal dust, . . . shall be
cleaned up and not be permitted to accumulate in active
workings, . . ."

 B.  Respondent's Case

 David Gable,  the  assistant mine foreman at the No. 7 Mine,

has sixteen years experience as a miner. He did not observe
the belt in question on April 11, prior to its inspection by
Terbo. Gable first observed the belt on April 11, around
noon. He indicated that there was not an "inordinate amount
of spillage" on the belt line (Tr. 156).

 Gable testified that Morgan, who was present when the area

was inspected by Terbo, told him that he (Morgan) did not
feel that the spillage was enough to warrant an order, and
"[t]hat we had people working in the area trying to take
care of this problem . . ." (Tr. 198).

 Gable indicated that, in general, coal normally slips off

from the ribs, and that spillage from belts is an everyday
occurrence. According to Gable, when he observed the entry
at issue it was "[b]lack to gray" (Tr. 188). He also
indicated that he did not see the tail roller, or other
rollers turning in coal dust.

 C.  Analysis

     1.  Violation of 30 C.F.R. � 75.400

 Respondent did not proffer the testimony of Morgan or other

eyewitness to the conditions observed by Terbo on April 11.
Hence, there is no eyewitness testimony to contradict
Terbo's testimony regarding his observations on April 11.
In this regard, I note that Gable testified that the entry
was black to gray when he observed it a few hours after
Terbo's inspection, and that he did not see the tail roller
or other rollers turning in coal dust. I find this
testimony insufficient to rebut Terbo's testimony as to what
he observed during his inspection. I thus accept Terbo's
testimony. I find that there was an accumulation of coal
dust in the B-belt entry to the extent and degree testified
to by Terbo. (See, Old Ben Coal Company,
1 FMSHRC 1954 (December 1979)).

 Plylar testified that, as observed by him at approximately

12:30 a.m., on April 11, there was an accumulation of coal,
black in color, between three inches and twenty-four inches
deep, for the entire length of the belt at question. There
is no evidence that the material observed by Plylar had been
cleaned prior to Terbo's inspection, and that the coal dust
observed by Terbo had just accumulated. There is no
evidence to establish specifically when the coal dust
observed by Terbo had been deposited in the areas noted by
him. I discount entirely Morgan's hearsay opinion that the
spillage was an everyday occurrence, and was not enough to
warrant a section 104(d) order. I find that hearsay opinion
is inherently unreliable, and hence this testimony is
disregarded.

 Gable indicated that spillage from belts  is  a "common

occurrence" (Tr. 154), and that what he observed midday on
April 11, was not "an inordinate amount of spillage" (Tr.
156). However, taking into account the black color, depth,
and extent of the coal dust accummulations,[6] I find that
the coal dust had been "permitted to accumulate" in the
entry at issue, and in the starter box. I thus find that it
has been established that Respondent did violate section
75.400 supra.

      2.  Significant and Substantial

 A "significant and substantial" violation is described

in section 104(d)(1) of the Mine Act as a violation "of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or other
mine safety or health hazard." 30 C.F.R. � 814(d)(1).
A violation is properly designated significant and
substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable
likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (April 1981).

 In  Mathies  Coal  Co.,  6 FMSHRC 1, 3-4 (January 1984),

the Commission explained its interpretation of the term
"significant and substantial" as follows:

      In  order  to  establish  that  a  violation  of a
 mandatory    safety   standard   is   significant   and
 substantial under  National  Gypsum,  the  Secretary of
 Labor  must prove:  (1) the underlying violation  of  a
 mandatory   safety  standard;  (2)  a  discrete  safety
 hazard--that   is,  a  measure  of  danger  to  safety-
 contributed  to by  the  violation;  (3)  a  reasonable
 likelihood that  the  hazard contributed to will result
 in an injury; and (4) a  reasonable likelihood that the
 injury  in question will be  of  a  reasonably  serious
 nature.


 In United  States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have  explained  further that the third element
 of  the Mathies formula "requires  that  the  Secretary
 establish  a  reasonable  likelihood  that  the  hazard
 contributed  to  will result in an event in which there
 is an injury."  U.S.  Steel  Mining Co., 6 FMSHRC 1834,
 1836  (August  1984).   We  have  emphasized  that,  in
 accordance with the language of section  104(d)(1),  it
 is  the  contribution  of  a violation to the cause and
 effect  of  a  hazard  that  must  be  significant  and
 substantial.  U.S. Steel Mining Company, Inc., 6 FMSHRC
 1866, 1868 (August 1984); U.S.  Steel  Mining  Company,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 As  set  forth above, (I)(C)(1) infra, the evidence  clearly

establishes a violation of section 75.400 supra. Based upon the
testimony of Terbo, as corroborated by Plylar, I find that due to
the extensive presence of coal dust, fine coal dust in the air,
and rollers turning in dust, the violation contributed to the
hazard of a fire or explosion. The belt may not have been
running when initially observed by Terbo. However, taking
cognizance of the extent of the violative conditions herein, I find
that the hazard of a fire or explosion would have been contributed
to given the continuation of normal mining operations, i.e.,
the mining of coal and the running of the belt.

 In analyzing the third element  set forth in Mathies, supra,

i.e., the likelihood of an injury producing event, I note that
carbon monoxide sensors were placed at intervals along the entry,
the belt was flame retardant and resistant, and no injuries had
been reported at Respondent's mines due to the type of conditions
observed by Terbo. However, I place more weight on the existence
of the following: the extent and depth of the coal dust
accumulations, the presence of float coal dust in suspension, the
presence of coal in a starter box where arcing is possible, the
presence of hot rollers and stands, the fact that the belt was
cutting into some stands, the accumulation of coal on and around
the stands, and the presence of rollers turning in dust.
I conclude, based on all these circumstances, that given
continued mining operations, the hazard of a fire or explosion
was reasonably likely to have occurred. Further, based upon the
uncontradicted testimony of Terbo, I conclude that should this
event have occurred, it was reasonably likely to have resulted in
an injury of a reasonably serious nature. For these reasons, I
conclude that the violation was significant and substantial.

      3.  Unwarrantable Failure

 In essence, it appears to be Respondent's position,

as articulated by Gable, that spillages are common, and
that the conditions observed by Terbo were not out of
the ordinary and did not have to be cleaned up. Also,
it appears to be Respondent's position that, in
general, extensive accumulations can occur in a short
time.[7] However, the record clearly establishes that
accumulations had existed as early as midnight April
11, and had been reported to management at
approximately 1:45 a.m., on April 11. Terbo indicated
that two persons were observed cleaning at the tail of
the B-belt. However, there is no evidence of any other
efforts made to clean the extensive accumulations that
extended for 5,000 feet. I thus find that the record fails
to establish that significant efforts were made to
clean the accumulations until Terbo's inspection. In
addition, taking into account the depth of the accumulations,
their extent, and their obvious black color, I conclude
that the violation herein was the result of more than
ordinary negligence and constituted aggravated conduct.
I thus find that the violation resulted from
Respondent's unwarrantable failure (see, Emery Mining
Corp., 9 FMSHRC 1997 (1987)).

      4.  Penalty

 I find, consistent with the discussion above, (I)(C)(3)

infra,) that Respondent's negligence was more than
ordinary. I also find that the violation herein was
reasonably likely to have resulted in a fire or
explosion causing a serious injury. I thus find that
the level of gravity was high. Further, taking into
account the history of section 75.400 violations at
this mine, I find that a penalty of $6,500 is
appropriate.

      II.Order No. 3194841.

 A.  Violation of 30 C.F.R. � 75.1725

     1. Petitioner's Case

 Plylar inspected the A-belt on April 10, at approximately

11:30 p.m. At that time, he observed that the belt was out
of alignment, and was cutting into the belt stands. He
testified, in essence, that the belt was running on top of
some rollers that were partially lying on the floor, as both
ends of these rollers were no longer attached to the stand.
Plylar noted that several rollers were missing, and several
top rollers were "jammed up together" (Tr. 238). He
indicated that the belt frame was hot to the touch.
According to Plylar, there was an accumulation of coal under
the belt drive and the take-up rollers, which extended the
entire length of the belt line.

 Plylar indicated that the accumulations had  been covered

by rock dust, and extended for the entire belt length which was
more than 4,000 feet. According to Plylar, he had seen the
conditions that he had testified to in the past, and that
"several of these conditions" had been written up in the
fire boss book "for the last several days." (Exh. G-1, Par.
10). Plylar noted that he had never seen a belt line " . . .
with this extent of damage to it or this extent of belt
cutting into the frames . . ."
(Tr. 246).

 At approximately 12:35 a.m., Plylar recommended to Taylor

to turn off the belt. Taylor responded that he did not have
the authority to shut it down. According to Plylar, he
requested of Taylor to shut the belt down because of the
hazard resulting from the belt cutting into the frames which
could cause the belt to smolder.

 On April 11,  Keith  Wayne  Ely,  an  MSHA  supervisory

ventilation specialist, inspected the East A-belt, and walked
the entire length of the belt inby to the B-belt. According
to Ely's contemporaneous notes, (Exh. G-6), at the first
crosscut inby the take-up roller, a roller was lying on the
floor, but was not rubbing against any material on the
floor, as the belt was not in operation. At a half crosscut
outby brattice No. 13[8] , one end of a roller had come
loose from where it was suspended by a hanger, and was lying
on the floor. At brattice No. 14, a bottom roller was
missing which allowed the belt to rub against the belt
stand. At brattice No. 16, two stands were being rubbed by
the belt. At brattices Nos. 21 and 22, there were rollers
on the bottom. At brattice No. 24, there was a roller with
one end on the floor. At brattices Nos. 29, 31, 32, and 38,
the belt was rubbing against the belt stand. A roller was
missing at brattice No. 38. At brattice No. 42, there was
an accumulation of coal that was eight inches deep, ten
inches wide, and extended for twenty-four inches. At
brattice No. 44, the stands were too hot to touch.

 Ely noted that the belt was rubbing against the belt stand

causing grooves up to one inch deep.[9] According to Ely, at
one location the belt structure had worn to the point where
it was no longer solid, but had been cut into two pieces.
Ely indicated that he had touched the belt structure with
the back of his hand, and it was so hot that he had to
remove his hand.

 Ely indicated that if one end of a  roller  had  become

detached, and was lying on the floor, the end that was still
attached and not rotating could become heated by the belt
rubbing against it. Also, the movement of the belt could
cause the roller end that was on the floor to rub against
the floor, and create friction and heat. According to Ely,
if the belt is not aligned properly, and travels from side
to side, it can rub against the metal belt stands, and cause
the belt to become frayed. Should this occur, the frayed
ends can get wrapped up around the bearings resulting in an
"embers" type condition
(Tr. 347).

 Ely indicated, in general, that the conditions that  he

observed would lead directly to a fire. He explained that
this conclusion was based upon the presence of coal which
was a fuel for the fire, along with an ignition source i.e.,
friction along the belt caused by the rubbing of the belt
against the stands, and some rollers rolling in coal dust.
According to Ely, since the cited entry was in intake air,
and the working section was located inby, it was highly
likely that the resulting fire would cause injuries due to
smoke inhalation.

 Ely opined that the violation resulted from Respondent's

unwarrantable failure. In this connection, he indicated
that the belt was examined each shift, and that the cited
conditions could be seen from the track which ran alongside
ninety percent of the belt line. He noted that the black
discoloration of the stands was "very evident" (Tr. 310).
He termed the condition of the rollers as "obvious" (Tr.
310). He stated that the ignition sources, i.e., the coal
accumulations, were "obvious" (Tr. 310). Further, because
the belt traveled from one side to another and was not
aligned properly, he concluded that it had not been well
maintained.[10] Ely concluded that the cited conditions had
not been created within one shift, and that it took several
days for the conditions to have developed. His conclusion
was based on the large number of missing rollers, the
existence of grooves in the metal stands, and the
observation that a number of rollers were connected to the
stand on only one end, leaving the other end lying on the
floor.

 Ely issued a section 104(d)(2) order alleging a violation

of 30 C.F.R. � 75.1725(a) which provides as follows: "Mobile
and stationary machinery and equipment shall be maintained
in safe operating condition and machinery or equipment in
unsafe condition shall be removed from service immediately."

      2.  Respondent's Evidence

 On April 11, Gable accompanied Ely was during the entire

inspection of the East A-belt, which was approximately
one mile long, and contained 4,000 to 5,000 rollers.
Gable indicated, in response to a leading question,
that it is "not uncommon" for eleven rollers to be missing
(Tr. 387-388). Gable opined, in essence, that the conditions
cited by Ely did not present any safety hazard to miners.

 Gable indicated that the belt, and cords contained in

it, are rubber, and fire resistant. Gable indicated that,
in normal operations, spillages are cleaned by twenty-
five miners whose sole task is to clean the belt line.

 Bill Woodward, a self employed consultant, who has

designed and helped install belt lines in underground
mines, testified for Respondent. Woodward indicated that
as a consultant, he visits an underground mine five or six
times a month, and inspects belt lines. Woodward
opined that if bottom rollers are making contact with
the belt stands, the belt would not be unsafe to
people. He opined that the main problem with missing
rollers is damage to the belt. He indicated that if
eleven rollers were bad or missing along a one mile
long belt line, the belt would become unsafe if the
problems with the rollers existed for "[p]robably four
or five days a week" (Tr. 40) (February 27, 1996).[11]
He opined that should this occur, " . . . that would be
more damage to the belt than anything else" (Tr. 40)
(February 27, 1996).

 According to Woodward, if a belt is rubbing against a

stand, it can take two to three days, or "weeks," "months,"
or "a few days," for the belt to cut into the stand (Tr.
42) (February 27, 1996). He explained that it depends
upon how hard the belt is rubbing against the stand,
and the type of belt involved. Woodward stated that,
in essence, stuck rollers, and belts not being aligned
properly are "very common" conditions (Tr. 47)
(February 27, 1996). He said that it is "[v]ery, very
common" for belts to be frayed at their edges, and it
is "common" for belts to come in contact with the
stands (Tr. 47) (February 27, 1996). Woodward opined
that the conditions listed in the order at issue were
not unsafe for miners.

      3.  Analysis

 In essence, it appears to be Respondent's position that

the belt was not unsafe to miners, since less than two
tenths of a percent of the rollers on the belt were
bad, and only nine stands, i.e., less than nine tenths
of a percent of the stands, were damaged. I reject
this argument for reasons that follow.

 I accept Ely's opinion that the belt in question was

not maintained in a safe condition. Respondent did not
rebut or impeach Ely's testimony regarding the
following conditions: the belt was not in alignment
and was contacting some belt stands, ten rollers were
missing, and at three locations one end of a roller was
lying on the floor. These condition can cause heat and
friction which can lead to smoke or a fire.[12] I
reject Gable's opinion that the belt was safe, as the
record does not set forth in sufficient detail the
facts that he took into account which formed the basis
for this opinion. I also reject Woodward's opinion
that the cited conditions were not unsafe to miners.
On cross-examination, Woodward was asked to explain why
the following conditions do not present any hazards to
miners: the belt being out of alignment, the belt
running into the stands, and the presence of stuck
rollers. His response is as follows: "[i]t just
don't" (Tr. 67) (February 27, 1996). The only other
expressed basis for his opinion was his reliance on the
assumption that the belt in question satisfied MSHA
requirements, and would not burn. There is
insufficient evidence in the record to predicate a
finding regarding the composition of the belt, and the
degree to which it was flamable. Further, as set forth
in Ely's credible testimony, other conditions were
present which could have caused a fire. I thus find
that there is an insufficient basis to put any reliance
upon Woodard's opinion.

 For the above reasons, I find that the belt was in

"unsafe condition", and no unsafe components had been
removed when cited. I thus find that it has been
established that Respondent did violate section 75.1725(a)
supra.

      4.  Significant and Substantial

 There is no evidence in the record that there have ever

been any injuries to miners at the subject mine, resulting
form the cited conditions. Also, carbon monoxide
monitors were in place along the belt line. Further,
there is no evidence that there was any violative coal
accumulation along the belt line. Nor is there any
evidence that the belt material did not meet MSHA
specifications.

 However, I note the following: The combination  of

the violative conditions, the presence of coal, the
presence of friction as testified to by Ely and not
contradicted or impeached, the uncontradicted testimony
of Ely that the stands were hot to the touch, and the
fact that the entry was ventilated by intake air which
would have carried any smoke generated by the friction
resulting from the violative conditions down to the
working section. Based on these factors, I conclude
that the violation was significant and substantial
(See, Mathies, supra).

      5.  Unwarrantable Failure

 Respondent did not impeach or contradict  Ely's testimony

that the violative conditions observed by him were
obvious, and would have been noted by a person
traveling alongside the beltway performing an
inspection. There is no evidence as to how long in
fact the violative conditions noted by Ely had existed.
However, I take cognizance of the following: the
extent of the conditions observed by Ely, the fact that
grooves had been cut into a stand to a depth of one
inch, the fact that the belt was out of alignment and
not corrected, the fact that conditions had been
observed by Plylar the shift before, the lack of
evidence that these conditions were corrected between
the time observed by Plylar and reported by him to
Taylor, and subsequently observed by Ely the following
shift, and the lack of evidence that Respondent
made any significant attempt to correct these
conditions. Based on all these factors, I conclude
that the violation herein resulted from more than
ordinary negligence, and reached the level of
aggravated conduct. I thus find that the violations
resulted from Respondent's unwarrantable failure (See,
Emery, supra).

      6.  Penalty

 Considering the factors set forth  in  section 110(i) of the

Act, I find that a penalty of $6,500 is appropriate.

      III.  Order Nos. 3016179, 3192505, 3021493, and 3192465

 At the hearing, Respondent, with the concurrence of

Petitioner, made a motion to approve the settlement the
parties arrived at regarding these orders. It is
proposed to reduce the total penalty from $13,000 to
$8,600. I have considered the representations and
documentation submitted, and I conclude that the
proffered settlement is appropriate under the criteria
set forth in section 110(i) of the Act.

      IV.  Docket Nos. SE 95-358,  SE  95-339,  SE 95-367, SE
      95-344 and SE 95-476

 At the hearing, Respondent, with the concurrence of

Petitioner, made a motion to approve the settlement the
parties arrived at regarding these cases. It is
proposed to reduce the total penalty from $41,289 to
$14,621. I have considered the representations and
documentation submitted, and I conclude that the
proffered settlement is appropriate under the criteria
set forth in section 110(i) of the Act.

                          ORDER

 It  is  ORDERED  that,  within 30  days  of  this  decision,

Respondent shall pay a total penalty of $36,221.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

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

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

/ml

FOOTNOTES

 [1]: On  February  27, 1996, Respondent, with the concurrence

of Petitioner, presented motions to approve settlements regarding
these four orders, and the remaining docket numbers (infra, III
and IV).

 [2]: The  rollers are metal and are approximately  four  feet

long. Sets of three top rollers were located about five feet
apart along the length of the belt. A single bottom roller was
located about every ten feet.

 [3]: The  terms  "belt  frames,"  "belt  stands,"  and  "belt

structures," are all synonymous.

 [4]: Keith   Wayne  Ely,  an  MSHA  supervisory   ventilation

specialist, indicated that at 10:07 a.m., the A-belt was not
running. He indicated that, in general, if the A-belt is not in
operation, then the B-belt is not in operation. It is not
necessary to make a finding as to whether the belt was operating,
when the order at bar was issued. The issues presented by the
order will be resolved based on a consideration of continued
normal operations which includes activation of the belt line.

 [5]: On cross examination, it was  elicited  that dust in the

starter box can only be seen when the cover is removed.

 [6]: I  find that the accumulations covered the  roof,  floor

and ribs of the entry at issue for the entire length of the
entry.

 [7]: In this connection, I note the testimony  of Plylar, on

cross examination, wherein he indicated that if a belt is out of
alignment, large accumulations, black in color, can result in a
"short amount of time" (Tr. 63). He also indicated that this can
occur if the header becomes "jammed up with rocks" (Tr. 62).

 [8]: Ely had identified the various brattices as brattice 13,

etc. In the test of this decision, the brattices are identified
as brattice No. 13, etc.

 [9]: On  cross  examination  it  was  elicited that only nine

stands were damaged.

 [10]: Ely also indicated that entries  in the fire boss book

confirmed that the cited conditions existed for some time. I do
not place any weight on this testimony. The fire boss book is
the best evidence of its contents. However, the fire boss book
was not offered in evidence.

 [11]: The  transcript  of  the continued hearing on Februray

27, 1996, is cited by reference to the page of the transcript and
the date i.e., February 27, 1996.

 [12]: See, Exs. G-13, G-14 (Par 2.13), and G-15.