<DOC>
[DOCID: f:jwr2.wais]

 
JIM WALTER RESOURCES, INC.
November 14, 1997
SE 95-140

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                  1730 K STREET NW, 6TH FLOOR

                    WASHINGTON, D.C.  20006

                        November 14, 1997

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       :    Docket No. SE 95-140
                                   :
JIM WALTER RESOURCES, INC.         :

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

                            DECISION

BY THE COMMISSION:

     These consolidated civil penalty proceedings arise under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801 et
seq. (1994) ("Mine Act" or "Act").  At issue is Commission
Administrative Law Judge T. Todd Hodgdon's determination that Jim
Walter Resources, Inc. ("JWR" or "Jim Walter"), violated 30
C.F.R.  75.323 and 75.342 and that the violations were the
result of JWR's unwarrantable failure.[1]  18 FMSHRC 21 (January
1996) (ALJ).  The Commission granted JWR's petition for
discretionary review ("PDR") challenging those findings.  For the
reasons that follow, we affirm the judge's decision.

                                I.

                Factual and Procedural Background

     The No. 2 longwall in JWR's No. 7 Mine, an underground coal
mine in Alabama, was inspected by Kirby Smith, an MSHA inspector,
on August 25, 1994.  18 FMSHRC at 23.  While walking the length
of the No. 2 longwall, from headgate to tailgate, at about the
longwall's mid-point Smith began noticing that plastic line
curtains had been rolled out on the mine floor.  Id.; Tr. 40-41,
145.  The width of the curtain covered the area from the longwall
chain line, across the longwall pontoons, to the place where the
longwall shield jacklegs joined the pontoons.  18 FMSHRC at 23.
Because there was loose coal, water and muck on the mine floor,
the inspector was not certain that the curtains were continuously
deployed on the floor.  Tr. 46-47.

     Farther down the longwall, Smith saw that line curtains had
also been hung on the longwall from where the jacklegs joined the
shield down to the pontoons.  18 FMSHRC at 23; Tr. 47-48.  The
curtains were so hung for a length of 20 or 25 shields, past
shield 184, the final shield.  Id.; Gov't Ex. 4.  Thus, the
curtain extended past the tailgate methane monitor, located
between shields 183 and 184.  18 FMSHRC at 23; Tr. 49, 51; Gov't
Ex. 1.[2]  Methane monitors are required to sound an alarm when
detecting 1% or more of methane and trigger an automatic shut
down of power to the longwall when 2% or more methane is
detected.  30 C.F.R.  75.342.

     During his inspection Smith took methane measurements with
his hand-held detector.  18 FMSHRC at 23; Tr. 34-35.  At roughly
the mid-point of the longwall, he detected .4% methane 12 inches
from the mine roof and 1.1% methane 12 inches from the mine
floor.  18 FMSHRC at 23; Tr. 80.  Behind the curtains hanging
from shield 184 he detected 2.2% methane, while at the tailgate
sensor he detected 1.2% methane.  18 FMSHRC at 23; Tr. 38-39, 61.
Those measurements were later confirmed by bottle samples that
Smith took at the time of his inspection.  Id.; Gov't Ex. 3.

     During the course of his inspection, the inspector learned
that JWR had been having problems controlling methane bleeding
from the mine floor at the No. 2 longwall.  Tr. 42-43, 46.  The
effect of JWR's deployment of line curtains was to direct the
methane along the floor and behind the curtains hung from the
shields, diverting the methane away from the tailgate methane
monitor and into the longwall gob and tailgate entry, which was
serving as a return.  Tr. 25, 43, 51-53, 69-70, 149.  The
deployment of the line curtains on the mine floor explained why,
at the mid-point of the longwall, Smith found the level of
methane at the mine floor to be higher than at its roof.  Tr.
144-45.  Methane, being lighter than air, is normally found in
higher concentrations closer to the mine roof.  Tr. 145.

     The inspector consequently issued Order No. 3189434 under
section 104(d)(2), 30 U.S.C.  814(d)(2), alleging that JWR
violated section 75.323.[3]  18 FMSHRC at 23-24; Gov't Ex. 2 at
1.  Section 75.323(b) sets forth the actions that must be taken
when various maximum methane levels are exceeded.  When 1.0% or
more methane is present in a working place, electrical equipment
must be deenergized and ventilation changes made to reduce
methane below 1.0%, with no work permitted until methane is so
reduced.  30 C.F.R.  75.323(b)(1).  At trial, the Secretary
contended that, because the operator failed to take the
prescribed actions until the inspector alerted JWR personnel to
his measurements of impermissibly high levels of methane, JWR
violated the regulation.  S. Post Hearing Br. at 9-10.

     The inspector also issued Order No. 3189435 under section
104(d)(2) charging a violation of section 75.342(b),[4] on the
ground that by deploying line curtain to divert accumulations of
methane outby the tailgate methane sensor, JWR rendered
inaccurate the methane monitor's response to methane along the
longwall face.  18 FMSHRC at 24; Gov't Ex. 5.  At trial, the
Secretary alleged that JWR's use of line curtain in such a manner
violated section 75.342(a)(4)'s requirement that "[m]ethane
monitors shall be maintained in permissible and proper operating
condition"  Tr. 216-17.  JWR contended that, because there was
nothing physically wrong with the tailgate methane monitor, the
regulation had not been violated.  JWR Post Hearing Br. at 4.

     The judge rejected JWR's argument that there was no
violation of section 75.342.  18 FMSHRC at 25-26.  The judge
concluded that, while JWR had met many of the requirements of the
regulation, by deliberately directing the methane away from the
tailgate methane monitor JWR had intentionally precluded the
monitor from performing its function.  Id.  Because the judge
found JWR's actions to be the equivalent of rendering the monitor
inoperable, he determined that JWR had failed to maintain the
monitor in proper operating condition.  Id.

     The judge determined that JWR had also violated section
75.323.  Id. at 26-27.  The judge found, based on the testimony
and the relevant longwall section report, that the equipment at
the longwall was energized when the inspector took his methane
readings and issued the orders.  Id. at 26 n.2.  The judge
concluded that JWR "should have known that methane of 1.0 percent
or more was present in the working area," because either "someone
with a methane detector could have taken a reading, or . . . one
of the monitors on the longwall could have sensed it."  Id. at
26-27.  The judge held that JWR violated the regulation because
"[h]aving taken steps to make the methane monitor not operate
properly, Jim Walter cannot now claim that it did not comply with
Section 75.323 because it did not know that methane was present.
The fact is that it would have but for its actions to avoid
knowing."  Id. at 27.

     In addition, the judge concluded that both violations
resulted from JWR's unwarrantable failure.  Id. at 28-29.  In
determining that the violations were unwarrantable, the judge
found the line curtain to have been intentionally deployed for
the purpose of preventing the detection of methane in order that
longwall operations could continue.  Id.  The judge also found it
significant that none of the non-JWR witnesses had ever heard of
using line curtain in that fashion.  Id. at 29.

**FOOTNOTES**

     [1]:  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."

     [2]:  There was also a methane sensing element on the
longwall shear.  Tr. 26-28; Gov't Ex. 1.

     [3]:  Section 75.323(b) provides:

               (1) When 1.0 percent or more methane is
          present in a working place or an intake air
          course, . . . -
               (i)  Except intrinsically safe
          atmospheric monitoring systems (AMS),
          electrically powered equipment in the
          affected area shall be deenergized, and other
          mechanized equipment shall be shut off;
               (ii)  Changes or adjustments shall be
          made at once to the ventilation system to
          reduce the concentration of methane to less
          than 1.0 percent; and
               (iii)  No other work shall be permitted
          in the affected area until the methane
          concentration is less than 1.0 percent.
               (2)  When 1.5 percent or more methane is
          present in a working place or an intake air
          course, including an air course in which a
          belt conveyor is located, or in an area where
          mechanized mining equipment is being
          installed or removed -
               (i)  Everyone except those persons
          referred to in  104(c) of the Act shall be
          withdrawn from the affected area; and
               (ii)  Except for intrinsically safe AMS,
          electrically powered equipment in the
          affected area shall be disconnected at the
          power source.

     [4]:  Section 75.342 provides:

               (a)(1)  MSHA approved methane monitors
          shall be installed on all face cutting
          machines, continuous miners, longwall face
          equipment, loading machines, and other
          mechanized equipment used to extract or load
          coal within the working place.
               (2)  The sensing device for methane
          monitors on longwall shearing machines shall
          be installed at the return air end of the
          longwall face.  An additional sensing device
          also shall be installed on the longwall
          shearing machine, downwind and as close to
          the cutting head as practicable. . . .
               . . . .
               (4)  Methane monitors shall be
          maintained in permissible and proper
          operating condition . . . .
               . . . .
               (b)(1)  When the methane concentration
          at any methane monitor reaches 1.0 percent
          the monitor shall give a warning signal.
               (2)  The warning signal device of the
          methane monitor shall be visible to a person
          who can deenergize the equipment on which the
          monitor is mounted.
               (c)  The methane monitor shall
          automatically deenergize the machine on which
          it is mounted when -
               (1)  The methane concentration at any
          methane monitor reaches 2.0 percent; or
               (2)  The monitor is not operating
          properly.

                               II.

                           Disposition

     A.   Violations

          1.   Section 75.342

     JWR contends that the judge erred in finding that the
placement of the line curtain along the longwall face constituted
a violation of section 75.342, as nothing in the regulation
prohibits using line curtain to direct methane away from a
methane sensing unit and its tailgate methane monitor met all the
requirements of section 75.342, including the maintenance
requirement of section 75.342(a)(4).  JWR PDR at 2-4.[5]  The
Secretary argues that, because the judge interpreted section
75.342 in a manner which furthers the purpose of that regulation,
his decision should be upheld.  S. Am. Br. at  6-9.

      The issue before us is whether the judge correctly
concluded that an operator violates section 75.342 by
intentionally routing air the operator has reason to believe
contains methane on a path which prevents a monitor from
detecting that methane.  The Commission has recognized that,
where the language of a regulatory provision is clear, the terms
of the provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning.
See, e.g., Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October
1989) (citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984)).  It is only when the
meaning is doubtful or ambiguous that the issue of deference to
the Secretary's interpretation arises.  See Pfizer Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984).  Similarly, if a
statute is clear and unambiguous, effect must be given to its
terms.  Chevron, 467 U.S. at 842-43.  Accord Energy West Mining
Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994).

     Section 75.342(a)(4)'s requirement that "[m]ethane monitors
shall be maintained in permissible and proper operating
condition" is derived from section 303(l) of the Mine Act, 30
U.S.C. 863(l), which provides that methane monitors "shall be
kept operative and properly maintained."  The language of section
75.342(a)(4) and section 303(l) of the Act is sufficiently clear
to establish that JWR violated the standard by using line curtain
to deflect methane away from a methane monitor.  In the absence
of statutory or regulatory definitions or technical usage, we
apply the ordinary meanings of words chosen by the drafters.
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996).  The term
"maintain" is not defined in 30 C.F.R. Part 75, but one of the
dictionary meanings is "to keep in a state of repair, efficiency
or validity."  Webster's Third New International Dictionary
(Unabridged) 1362 (1986).  Similarly, the dictionary meaning of
the term "condition," which is likewise undefined in 30 C.F.R.
Part 75, is not limited to merely physical attributes, but
includes "a mode or state of being."  Id. at 473.  Lastly, the
statutory term "operative" is not defined in the Mine Act, but
its primary dictionary definition is "producing an appropriate or
designed effect."  Id. at 1581.

     Any methane monitor knowingly deployed in a fashion that
renders it unable to accomplish its intended purpose - to detect
and alert miners to the presence of methane - cannot be said,
under the terms of the regulation, to be "ke[pt] in a state of .
. . efficiency" or in a "proper operating state of being."
Likewise, such a monitor is in violation of the standard's
statutory source, as in such an instance the monitor would not be
capable of "producing the appropriate or designed effect" of
alerting miners when methane reaches dangerous levels.  Because
JWR deployed its longwall tailgate methane monitor in a manner
that defeated its intended purpose, we conclude that the monitor
was not being "maintained" in "proper operating condition."  Cf.
Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997) (where
dictionary definitions include functional component indicating
that term means that item will be adequate to achieve intended
purpose, functional interpretation is consistent with plain
meaning of language of standard).

     Interpreting section 75.342 to proscribe deflecting methane
from a monitor is also consistent with the intent of the
standard's drafters.  The language of section 303(l) of the Mine
Act was carried over without change from section 303(l) of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 
863(l) (1976).  Its legislative history reveals the emphasis
Congress placed on the function served by methane monitors:

          Experience has shown that in almost every
          instance when ignitions and explosions occur,
          it was because dangerous concentrations of
          methane accumulate before miners are aware of
          the condition.  Thus, the need for a methane
          monitor on electric face equipment,
          particularly the continuous miner and cutting
          machine, is evident.  Even more important, it
          must be kept operative to be effective.  The
          monitor would include a methane detector or
          sensing device which would continuously
          sample the atmosphere . . .

S. Rep. No. 411, 91st Cong. 1st Sess. 60 (1969), reprinted in
Senate Subcommittee on Labor, Committee on Labor and Public
Welfare, 94th Cong., 1st Sess., Part I, Legislative History of
the Federal Coal Mine Health and Safety Act of 1969, at 186
(1975) (emphasis added).[6]  Accordingly, we affirm the judge's
conclusion that JWR violated section 75.342.

          2.   Section 75.323

     According to JWR, section 75.323 is only violated when
an operator fails to act upon learning methane exceeds the
levels set forth in that standard.  JWR PDR at 6.  JWR
argues that, because it did not know of the excessive
methane at the No. 2 longwall until the inspector
pointed out the condition, it did not violate section
75.323.  Id. at 5-6.  JWR also contends that
substantial evidence does not support the judge's
conclusion that the longwall was energized at the time
the inspector issued the orders.  Id. at 4-5.

     The Secretary takes the position that Smith's detection
of excessive methane established a violation, based on the
judge's finding that JWR would have known that methane
was present but for its actions to avoid knowing.  S.
Am. Br. at 10-11 & n.7.  The Secretary also maintains
that substantial evidence supports the judge's finding
that the longwall was energized when the methane was
found by the inspector.  Id. at 10.

     Section 75.323(b)(1) obligates an operator to take specified
actions "[w]hen 1.0 percent or more methane is present
in a working place or an intake air course."  Taken
literally, the standard would seem to be applicable
upon the mere presence of methane above that level.
However, MSHA has taken the position that the provision
should not be read literally.[7]  In further revising
its ventilation regulations in 1996, but leaving
untouched the language at issue in section 75.323, MSHA
agreed with comments submitted in that rulemaking that

          a methane problem cannot be corrected unless
          it has been detected and that the mere
          presence of methane does not constitute a
          violation [of section 75.323].  Only the
          failure to [take the actions required by
          section 75.323] once being made aware of the
          presence of methane in excess of allowable
          levels is a violation.

61 Fed. Reg. 9,764, 9,778 (1996).  Consequently, JWR can only be
held to have violated section 75.323 if there is substantial
evidence to support the conclusion that it had knowledge of
excessive methane and failed to take any of the required
actions.[8]

               a.   Whether Section 75.323(b) Requires Actual
                    Knowledge of Methane

     The judge never reached the question of whether JWR had
actual knowledge of the presence of methane at actionable levels
prior to the time that Inspector Smith issued the order alleging
a violation of section 75.323.  Rather, the judge concluded that
any lack of such actual knowledge was the result of JWR's own
actions in preventing the tailgate monitor from detecting
methane.  18 FMSHRC at 27.  JWR does not contest that conclusion,
which is supported by substantial evidence.[9]

     We interpret the judge's conclusion as a finding that JWR
had constructive knowledge of the actionable levels of methane.
JWR, however, argues that a section 75.323(b) violation was not
established because it did not have actual knowledge of the
presence of methane.  Section 75.323(b) paraphrases section
303(h)(2) of the Mine Act, 30 U.S.C.  863(h)(2).  While MSHA has
stated that knowledge of methane is a prerequisite to the
obligations imposed by section 75.323(b), neither section
75.323(b) nor its statutory source address whether only actual
knowledge triggers those obligations.

     Because Congress has not directly spoken to the issue, we
examine whether MSHA's interpretation is a reasonable one.  See
Chevron, 467 U.S. at 842-44; Thunder Basin Coal Co., 18 FMSHRC
582, 584 n.2 (April 1996); Keystone Coal Mining Corp., 16 FMSHRC
6, 13 (January 1994).  Deference is accorded to "an agency's
interpretation of the statute it is charged with administering
when that interpretation is reasonable."  Energy West Mining Co.
v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467
U.S. at 844).  The agency's interpretation of the statute is
entitled to affirmance as long as that interpretation is one of
the permissible interpretations the agency could have selected.
Chevron, 467 U.S. at 843; Joy Technologies, Inc. v. Secretary of
Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 117 S.
Ct. 1691 (1997).  See also Thunder Basin Coal Co. v. FMSHRC, 56
F.3d 1275, 1277 (10th Cir. 1995).

     We find the Secretary's interpretation of section 75.323(b)
reasonable.  Looking first at the language of the regulation and
its statutory source, we note that neither explicitly contains a
requirement of operator knowledge at all, much less actual
knowledge.  Thus, the Secretary's interpretation is consistent
with the regulatory language.  We also conclude that the
Secretary's interpretation here is a sensible one that furthers
the safety-promoting purposes of the Mine Act in general and
section 75.323(b) in particular.  That section's thrust is to
require operators to take specified measures once they are aware
that methane has reached certain levels, in order to minimize the
likelihood of explosion.  We agree with the Secretary that to
permit an operator to evade the required measures by taking
intentional steps to keep itself ignorant of methane levels would
permit circumvention of section 75.323 "by [a] cynical
expedient."  See S. Am. Br. at 10-11 n.7.

     Moreover, the Secretary's construction of section 75.323 is
consistent with Commission and court interpretations of the term
"knowingly."  In Kenny Richardson, 3 FMSHRC 8, 16 (January 1981),
aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert.
denied, 461 U.S. 928 (1983), the Commission interpreted
"knowingly" as used in section 110(c) of the Mine Act, 30 U.S.C.
 820(c), to mean "knowing or having reason to know."  The D.C.
Circuit recently deferred to this interpretation in Freeman
United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363-64 (1997).
In affirming the Commission, the court noted that "courts have .
. . found that `knowingly' encompasses more than actual
knowledge."  Id. at 363 (citations omitted).

               b.   Whether JWR Failed to Take any Measure
                    Required by the Standard

     JWR contends that the judge also erred in finding a
violation of section 75.323 because the evidence does not support
his conclusion that the longwall was energized when Smith took
his methane measurements in the tailgate area.  We need not
address that question.  Section 75.323(b) requires that, when
excessive methane levels are encountered, in addition to de-
energizing the longwall, an operator must make ventilation
changes or adjustments to reduce methane below 1%.  30 C.F.R. 
75.323(b)(1)(ii).  Below, the Secretary contended that JWR made
no such changes or adjustments, even though it was aware it had a
methane problem, while JWR argued that it satisfied the standard
by making the required ventilation changes or adjustments after
it learned of the excessive methane levels from the inspector.
S. Post-Hearing Br. 10-14; JWR Post-Hearing Br. at 6.  Because he
found the longwall was energized, the judge did not address the
subject.

     JWR continues to take the position that it complied with
section 75.323(b) by making the required ventilation changes or
adjustments upon learning of the excessive methane levels from
the inspector.  JWR PDR at 5-6.  However, our conclusion that JWR
had knowledge of excessive methane prior to that time means that
JWR should have been making such changes or adjustments earlier.
JWR's failure to do so establishes a violation of the standard,
regardless of whether the longwall was energized during the
inspection.[10]  Accordingly, we affirm in result the judge's
finding of a section 75.323(b) violation.

**FOOTNOTES**

     [5]:  JWR designated its PDR as its brief.

     [6]:  MSHA similarly explained its intent in promulgating
section 75.342 as part of revising its ventilation
regulations in 1992, stating that "[c]onstant monitoring of
methane during mining activities is an important safeguard
against methane ignitions and explosions that could endanger
miners."  57 Fed. Reg. 20,868, 20,890 (1992) (emphasis
added).  Consequently, MSHA based its adoption of some of
the requirements of section 75.342 on its desire to
"maximize the effectiveness of monitoring sensors," and
"ensure that monitors provide accurate monitoring of
methane."  Id.

     [7]:  Section 75.323(b)(1) was promulgated by MSHA in 1992
as part of a revision of its ventilation regulations.  Prior
to that, the required actions were expressly conditioned
upon the presence of methane found by a test.  See 30 C.F.R.
 75.308 (1991) (methane accumulations in face area).

     [8]:  When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the
Mine Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion.'"  Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).

     [9]:  At trial, JWR's foreman, Maynard Thomas, admitted that
JWR's deployment of line curtains was intended to prevent
methane that it knew was seeping from the mine floor from
being detected by a methane monitor.  Tr. 270-71.  Thomas
also stated that JWR had used line curtain in such a fashion
in its No. 7 Mine on many occasions in the past in order to
cover up a methane bleeder in the floor that was "close to a
sniffer[,]", i.e., a methane monitor.  Tr. 286-87, 291-94.

     [10]:  The Secretary having raised this argument below, we
are free to rely on it as a basis for review.  See 19 James
Wm. Moore et al., Moore's Federal Practice  205.05[1] (3d
ed. 1997) (citing United States v. Williams, 504 U.S. 36, 40
(1992)).

     B.   Unwarrantable Failure

     JWR maintains that its conduct in violating section 75.342
was not aggravated, as line curtain has been used in mines to
route air around methane monitors for many years.  JWR PDR at 4.
It also contends that, because it immediately acted to correct
the problem upon learning of the methane buildup, its good faith
precludes a finding of aggravated conduct in connection with the
section 75.323 violation.  Id. at 6.  The Secretary asserts that
the judge's finding of unwarrantable failure is supported by
JWR's intentional actions and his finding that JWR was engaging
in a dangerous practice.  S. Am. Br. at 11-14.

     The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C.  814(d), and refers to more serious
conduct by an operator in connection with a violation.  In Emery
Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence.  Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care."  Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February
1991) ("R&P"); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test).  In addition, the Commission has relied upon the
high degree of danger posed by a violation to support an
unwarrantable failure finding.  See BethEnergy Mines, Inc., 14
FMSHRC 1232, 1243-44 (August 1992) (finding unwarrantable failure
where unsaddled beams "presented a danger" to miners entering the
area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July
1992) (finding violation to be aggravated and unwarrantable based
upon "common knowledge that power lines are hazardous, and . . .
that precautions are required when working near power lines with
heavy equipment"); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June
1988) (finding unwarrantable failure where roof conditions were
"highly dangerous").

     Substantial evidence supports the judge's finding that JWR
acted intentionally in using line curtain to attempt to avoid
application of sections 75.342 and 75.323, and therefore engaged
in aggravated conduct.  See R&P, 13 FMSHRC at 194 (intentional
conduct may be aggravated and constitute unwarrantable failure).
Foreman Thomas acknowledged that JWR intended to avoid detection
of excessive methane.  18 FMSHRC at 28; Tr. 270-71.  Moreover, as
the judge found, JWR took evasive action because, with the amount
of intake air already at the maximum allowable amount of 131,000
cubic feet per minute, it otherwise would have had to shut down
the longwall until the amount of intake air relative to the
amount of methane was sufficient to dilute the methane below 1
percent.  18 FMSHRC at 25, 28-29; Tr. 264.  Thus, in order to
continue production, a conscious decision was made to evade a
device designed to act as an important preventive safeguard.

     We reject JWR's contention that, because it was simply
engaging in "a common practice that has been used in the mines
for many years" (JWR PDR at 4), its violation of section 75.342
was not the result of aggravated conduct.  The only evidence JWR
presented in support of that claim was its foreman's testimony
that he had used line curtain on mine floor methane bleeders 50
to 100 times previously.  Tr. 292.  Although an operator's good-
faith, albeit mistaken, belief that cited conduct complied with
the Mine Act is a defense to an unwarrantable failure allegation,
the Commission has held that such a belief must be reasonable.
Cypress Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (August
1994).  Given the clear commands of section 75.342 and the high
degree of danger posed to miners by JWR's conduct,[11] we do not
think the record supports a conclusion other than that any such
belief of JWR's foreman was unreasonable.  See, e.g., id.
(unreasonable belief that roof plan permitted miners under
unsupported roof no defense to unwarrantable failure).

     We also reject JWR's argument that its immediate abatement
of the section 75.323 violation establishes that it acted in good
faith.  JWR undertook to abate the violative condition only after
Inspector Smith issued the verbal orders.  "Post-citation
[abatement] efforts are not relevant to the determination whether
the operator has engaged in aggravated conduct in allowing the
violative condition to occur."  Enlow Fork Mining Co., 19 FMSHRC
5, 17 (January 1997).

**FOOTNOTES**

     [11]:  Even JWR described it as "a potentially dangerous
situation."  JWR PDR at 6.

                               III.

                            Conclusion

     For the foregoing reasons, we affirm the judge's
determinations that JWR violated sections 75.342 and 75.323 and
that both violations were the result of unwarrantable failure.

                              Mary Lu Jordan, Chairman
                              
                              Marc Lincoln Marks, Commissioner
                              
                              James C. Riley, Commissioner
                               
                              Theodore F. Verheggen, Commissioner