<DOC>
[DOCID: f:se96112.wais]

 
JIM WALTER RESOURCES, INC.
September 27, 1996
SE 96-112-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                          September 27, 1996

JIM WALTER RESOURCES, INC.,     : CONTEST PROCEEDING
                Contestant      :
                                :  Docket No. SE 96-112-R
          v.                    :  Citation No. 4476618; 1/3/96
                                :
                                :  No. 4 Mine
SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :  Mine ID 01-01247
  ADMINISTRATION (MSHA),        :
               Respondent       :

                               DECISION

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

Before:  Judge Fauver

     This is a contest proceeding under  105 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C.  801 et seq.  The
parties have filed cross motions for summary decision.

     Having considered the stipulations, exhibits, and the record
as a whole, I find that the record establishes the following Findings
of Fact and further findings in the Discussion below:

                           FINDINGS OF FACT

     1. Jim Walter Resources, Inc., operates an underground coal mine,
     known as Mine No. 4, which produces coal for sale or use in or
     affecting interstate commerce.

     2.  On January 3, 1996, it was operating nonpermissible
     diesel-powered buses and locomotives within 150 feet of pillar
     workings in the No. 4 Mine.  The diesel-powered vehicles
     contained electrical components including an alternator, battery,
     starter, circuit breakers, diodes, fuses, relays, resistors, and
     solenoids.

     3.  Based upon the above facts, the Secretary issued a citation
     charging a violation of 30 C.F.R.  75.1002.1-(a).

            DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

General Principles

     "Where the language of a statutory or regulatory provision is
clear, the terms of that provision must be enforced as they are
written ...."  Utah Power & Light Co., 11 FMSHRC 1926, 1930
(1989); see also Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc. 467 U.S. 837, 842-43 (1984).  The "ordinary
meaning of its words prevails, and it cannot be expanded beyond
its plain meaning" (Western Fuels-Utah, Inc., 11 FMSHRC 278,283
(1989) (citing Old Colony R.R. v. Commissioner, 284 U.S. 552, 560
(1932)).

     Under the Mine Act, if a statutory provision is ambiguous or
silent on a point in question, an inquiry is required into the
reasonableness of the Secretary's interpretation.  If the
Secretary's interpretation is found to be reasonable, it is given
deference by the Commission and the courts.  Special weight is
given to an agency's interpretation of its own regulation.  The
Supreme Court has stated that the agency's interpretation is "of
controlling weight unless it is plainly erroneous or inconsistent
with the regulation."  Bowles v. Seminole Rock & Sand Company,
325 U.S. 410, 414 (1945); and see Ford Motor Credit Co. v.
Milhollin, 444 U.S. 555, 566 (1980); and Secretary of Labor ex
rel. Bushnell v. Connelton Industries, Inc, 867 F.2d 1432, 1433,
1435 (D.C. Cir. 1989).  To warrant deference the agency's
interpretation must be consistent with due process.  That is, an
agency's interpretation of its regulation cannot be said to be
reasonable if the regulation as interpreted fails to give fair
warning of the conduct required or prohibited.

Disposition

     Section 75.1002-1(a) provides in part:

          (a) Electric equipment other than trolley wires, trolley
     feeder wires, high-voltage cables, and transformers shall be
     permissible, and maintained in a permissible condition when
     such equipment is located with 150 feet from pillar workings ....

     The controlling issue is whether  75.1002-1(a) applies to
Contestant's diesel-powered buses and locomotives.

     Section 75.1002 is a verbatim adoption of  310(c) of the 1969
Coal Mine Health and Safety Act, which was not changed by the
1977 Amendments to the 1969 Act.  Section 310(c) was enacted to
prevent certain nonpermissible electric equipment (specifically,
"trolley wires and trolley feeder wires, high-voltage cables and
transformers") from being located with 150 feet of pillar
workings.  The standard is intended to "prevent such equipment
from being located in the ventilating current which might contain
[explosive] mixtures of gas and [float coal] dust." 13 F.R.
11777, 11778 (June 14, 1972).  Section 310(c) does not specify
other electric equipment, such as electric-powered vehicles.
Because of this omission, in 1972 the Secretary proposed an
amendment to  75.1002 by adding  75.1002-1, stating it was
needed because "electric equipment other than trolley wires
trolley feeder wires, high-voltage cables, and transformers may
be located with 150 feet form pillar workings ... and are subject
to the [same] hazards." 37 F.R. 11777, 11778 (June 14, 1972).
The amendment became effective February 23, 1973.  38 F.R.
4974-76.

     The Secretary contends that diesel-powered vehicles are "electric
equipment" within the meaning of  75.1002-1(a) because they
contain electric components, e.g. alternators, batteries,
starters, solenoids, and circuit breakers, and the vehicles and
components present the same hazards as other nonpermissible
equipment.

     This is a case of first impression.  However, several decisions
give some guidance.

     In U.S. Steel Mining Company, Inc., 15 FMSHRC 1541 (1993), the
Commission held that "electrical circuits that perform electrical
functions exclusively" and components of such circuits, such as
circuit breakers, are "electric equipment" within the meaning of
 75.512 (which requires examination and testing of "electric
equipment").  The Commission gave deference to the Secretary's
interpretation, which it found to be reasonable and supported by
the definition of "equipment" in the Institute of Electrical and
Electronic Engineers Standard Dictionary of Electrical and
Electronic Terms.[1]

     In Amax Coal Company, 16 FMSHRC 1837 (1994), the trial judge
held that "electric equipment" as used in  75.400 (which prohibits
combustible accumulations "in active workings, or on electric
equipment therein") includes diesel-powered equipment.  The
judge's rationale was that "the Congressional concern about
electric equipment as a potential ignition source is equally
applicable to diesel equipment."  On appeal the Commission
declined to adopt this rationale.  Instead, the Commission
deferred to the Secretary's interpretation, holding that the
phrase "in active workings" includes both a physical area of a
mine and all equipment located within it whether electric or
nonelectric.  It thus declined to hold that diesel equipment is
"electric equipment" under the regulation.

     In Mettiki Coal Company, 11 FMSHRC 2435 (1989), I held that
 75.512's requirement to inspect "electric equipment" does not
apply to diesel-powered locomotives.  I observed that after the
citation was issued, the Secretary proposed a regulation to
require that "all diesel-powered equipment [in underground coal
mines] be examined and tested weekly ...", with a preamble
indicating that  75.512 does not apply to diesel-powered
equipment.  I also observed that the Secretary's position in
Mettiki was inconsistent with various existing and proposed
regulations, in that wherever the Secretary intended to apply a
standard to "mobile diesel-powered transportation equipment,"
"diesel-powered equipment," "electrical components on mobile
diesel-powered transportation equipment," or "All electrical and
diesel-powered equipment," those words were stated in the
regulation or proposed regulation.[2]

     A striking example is the Secretary's proposed standard for 
 57.36302 ("Permissible Equipment") which provides in part: "All
electrical and diesel-powered equipment used in or beyond the
last open crosscut shall be permissible. * * * Nonpermissible
electrical and diesel-powered equipment shall be kept at least
150 feet from pillar recovery workings...."  50 F.R. 23612, 23639
(June 4, 1985).  This proposed regulation is inconsistent with
the Secretary's contention that the term "electric equipment" in
 75.1002-1(a) includes diesel-powered equipment.

     Another example is the Secretary's proposed  75.1907(a)(1),
which would require that diesel-powered equipment be permissible
if used in locations where permissible electric equipment is
required.  The Secretary's position is that "the proposed
standard removes any confusion which may exist as to whether
nonpermissible diesel-powered equipment can operate within 150
feet of the longwall face" (Secretary's counsel's letter,
August 28, 1996).

     In light of the confusion in the regulations, I find that the
Secretary's interpretation that diesel vehicles are "electric
equipment" under  75.1002-1 (a) is not entitled to special
weight.  However, based upon an independent analysis, I conclude
that the prohibition of  75.1002-1(a) reasonably applies to
nonpermissible diesel-powered equipment.

     Section 75.1002-1(a) supplements  75.1002 by providing that
"Electric equipment other than trolley wires, trolley feeder
wires, high-voltage cables, and transformers shall be permissible
... when located within 150 feet from pillar workings ..."
(emphasis added).  Because of the focus upon all electric
equipment, the term "electric equipment" in  75.1002-1(a)
reasonably includes electric components of diesel-powered
vehicles.  This conclusion is supported by the Commission's
decision in U.S. Steel Mining Company, supra.  Since  75.1002-
1(a) applies to the electric components of diesel-powered
vehicles, it  would be contrary to the logic and safety intent of
the standard to hold that nonpermissible diesel-powered vehicles
may be operated within the restricted area although their
electric components must be kept in permissible condition.  It is
axiomatic that an interpretation of a regulation should be
rejected if it produces an absurd result or frustrates the
purpose of the underlying statute.  Natural Resources Defense
Council, Inc. v. EPA, 907 F.2d 1146, 1156 (D.C. Cir. 1990).
Accordingly, I hold that the prohibition of  75.1002-1(a)
applies to Contestant's diesel-powered vehicles.

                          CONCLUSIONS OF LAW

     1.  Contestant's No. 4 Mine is subject to the Act.

     2.  Contestant violated  75.1002-1(a) as alleged in Citation 
No. 4476618.

                                ORDER

     WHEREFORE IT IS ORDERED that Citation No. 4476618 is AFFIRMED 
and this proceeding is DISMISSED.


                              William Fauver
                              Administrative Law Judge


Distribution:

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

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


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     [1]  The IEEE Dictionary defines "equipment" as: "A general term
including material, fittings, devices, appliances, fixtures,
apparatus, and the like used as a part of or in connection with, an
electrical installation."

     [2] See, for example, 30 C.F.R. __36.2(a), 36.3-36.6, 36.9,
36.28-36.31, 36.41 and proposed rules published at 54 F.R. 40950
(October 4, 1989), and 50 F.R. 23612 (June 4, 1985).