Bennett Trucking Company

Plain-English summary

MSHA cited Bennett Trucking Company and B & S Trucking Company after finding that coal-hauling trucks lacked required seat belts. The Secretary argued that the trucks were subject to 30 C.F.R. § 77.1710(i), while the companies argued that their cab shields supplied roll protection and that the regulation did not apply without a demonstrated danger of overturning. Judge Avram Weisberger found that the Secretary had not shown a danger of overturning and that the cab shields were not equivalent to a framework or safety canopy. He dismissed all nine citations and denied the Secretary's motion for summary judgment.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1710(i); 30 C.F.R. § 77.403a; 30 C.F.R. § 77.2(w)
• Outcome: All nine seat-belt citations were dismissed.
• Key point: The Secretary had to establish a danger of overturning before requiring seat belts under the cited provision, and the evidence did not do so.

Full text (FMSHRC public release)

1038
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 90-29
PETITIONER A. C. No. 15-12602-03505 VIA

      v.                              Preparation Plant

BENNETT TRUCKING COMPANY, CIVIL PENALTY PROCEEDING
RESPONDENT
Docket No. KENT 90-34
SECRETARY OF LABOR, A. C. No. 15-12602-03503 Q7G
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Preparation Plant
PETITIONER

      v.

B & S TRUCKING COMPANY,
RESPONDENT

                                 DECISION

Appearance: G. Elaine Smith, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
Susan C. Lawson, Esq., Forester, Buttermore, Turner,
& Lawson, P.S.C., Harlan, Kentucky, for
the Respondent.

Before: Judge Weisberger

Statement of the Case

 In these Civil Penalty Proceedings, the Secretary

(Petitioner) seeks civil penalties for alleged violation by the
Operator (Respondent) of 30 C.F.R. 77.1710(i). Pursuant to
notice, a Hearing was held in Johnson City, Tennessee, on March
28, 1990. At the commencement of the Hearing, Petitioner made a
Motion for Summary Judgment, but indicated that she would proceed
with the Hearing. A decision was reserved on the Motion. Jim
Allen Tankersly testified for Petitioner. At the conclusion of
the Petitioner's case, Respondent made a Motion for Judgment.
After hearing arguments from both Parties on the Motion, a
decision granting Respondent's Motion, was announced orally from
the Bench. In light of this decision, Petitioner's Motion for
Summary Judgment is denied.

Stipulations

                      Kent 90-29

 1. Bennett Trucking Company is a Kentucky corporation which

contracts with companies producing coal for resale in Interstate
Commerce, and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its administrative
law judges pursuant to 3(d) of the Act.

 2. Bennett Trucking Company contracts with Manalapan Mining

Company, Inc., which operates a processing plant in Harlan
County, Kentucky, to perform coal hauling to, from, and within
said processing plant. As of August 1989, the processing plant
produced approximately 1.1 million tons of coal annually.

 3. James Bennett is, and was in August 1989, a partner in

Bennett Trucking Company.

 4. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163935 at the preparation plant, pursuant to
104(a) of the Federal Mine Safety and Health Act of 1977
citing Bennett Trucking Company for a violation of 30 C.F.R.
77.1710(i) because the Mack Coal Truck, vehicle number DM811SX,
owned by Bennett Trucking Company and used to haul coal at the
preparation plant, was not equipped with seat belts.

 5. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163936 at the preparation plant, pursuant to
104(a) of the Act, citing Bennett Trucking Company for
violation of 30 C.F.R. 77.1710(i) because the Mack Coal Truck,
vehicle number DM 5855X306607, owned by Bennett Trucking Company
and used to haul coal at the preparation plant, was not equipped
with seat belts.

 6. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163937 at the preparation plant, pursuant to
104(a) of the Act, citing Bennett Trucking Company for
violation of 30 C.F.R. 77.1710(i) because the seat belt buckle
on one side of the Mack Coal Truck, vehicle number DM6115zx5621,
owned by Bennett Trucking Company and used to haul coal at the
preparation plant, had been broken off.

 7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163938 at the preparation plant, pursuant to
104(a) of the Act, citing Bennett Trucking Company for a
violation of 30 C.F.R. 77.1710(i) because the Mack Coal Truck,
company number 2, owned by Bennett Trucking Company and used to
haul coal at the preparation plant, was not equipped with seat
belts.

 8. On August 29, 1989, MSHA Inspector Johnnie Smith issued

Citation No. 3168465 at the preparation plant, pursuant to
104(a) of the Act, citing Bennett Trucking Company for a
violation of 30 C.F.R. 77.1710(i) because the Mack Haul Truck,
serial number DM115X6641, owned by Bennett Trucking Company and
used to haul coal at the preparation plant, was not equipped with
seat belts on the operator's side.

 9. None of the trucks in question are vehicles required to

have "rollover protective structures" (ROPS) pursuant to 30
C.F.R. 77.403a, and none of the trucks in question are
equipped, or were equipped in August 1989, with ROPS.

 10. The determining factor in deciding whether the trucks in

question are vehicles required to be equipped with seat belts
pursuant to 30 C.F.R. 77.1710(i) is whether or not "roll
protection," as that term is defined at 30 C.F.R. 77.2(w), is
provided, and was provided in August 1989, for said trucks.

 11. Each of the trucks in question is equipped, and was

equipped in August 1989, with a cantilevered "cab-shield," or
apron which is attached to the truck bed and extends over the cab
from the truck bed, except when the bed is being unloaded.

 12. Each of the five citations listed above were terminated

on September 8, 1989, after seat belts were provided for each of
the trucks in question.

 13. The penalty assessment of $50 for each of the citations

listed above (Nos. 3163935, 3163936, 3163937, 3163938, and
3168465), for a total assessment of $250, would have negligible
effect on the ability of Bennett Trucking Company to continue in
business.

                      KENT 90-34

 1. B & S Trucking Company is a Kentucky corporation which

contracts with companies producing coal for resale in Interstate
Commerce, and thus is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its Administrative
Law Judges pursuant to 3(d) of the Act.

 2. B & S Trucking Company contracts with Manalapan Mining

Company, Inc., which operates a processing plant in Harlan
County, Kentucky, to perform coal hauling to, from, and within
said processing plant. As of August 1989, the processing plant
produced approximately 1.1 million tons of coal annually.

 3. Ray Ellis is, and was in August 1989, a surface foreman

for Manalapan Mining.

 4. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly issued

Citation No. 3163931 at the preparation plant, pursuant to
104(a) of the Act, citing B & S Trucking Company for a violation
of 30 C.F.R. 77.1710(i) because the Mack Coal Truck, vehicle
number IM2B128C4CA008967, owned by B & S Trucking Company and
used for hauling and dumping at the preparation plant, was not
equipped with seat belts.

 5. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163932 at the preparation plant, pursuant to
104(a) of the Act, citing B & S Trucking Company for
violation of 30 C.F.R. 77.1710(i) because the Mack Coal Truck,
vehicle number IM2B238C4DA009196, owned by B & S Trucking Company
and used to haul coal at the preparation plant, was not equipped
with seat belts.

 6. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163933 at the preparation plant, pursuant to
104(a) of the Act, citing B & S Trucking Company for
violation of 30 C.F.R. 77.1710(i) because the Mack Coal Truck,
vehicle number 424DM611SX, owned by B & S Trucking Company and
used to haul coal at the preparation plant, was not equipped with
seat belts.

 7. On August 9, 1989, MSHA Inspector Jimmy A. Tankersly

issued Citation No. 3163934 at the preparation plant, pursuant to
104(a) of the Act, citing B & S Trucking Company for
violation of 30 C.F.R. 77.1710(i) because the Mack Coal Truck,
vehicle number IM2B128C5DA009191, owned by B & S Trucking Company
and used to haul coal to the preparation plant, was not equipped
with seat belts.

 8. None of the trucks in question are vehicles required to

have "rollover protection structures" (ROPS) pursuant to 30
C.F.R. 77.403a, and none of the trucks in question are
equipped, or were equipped in August 1989, with ROPS.

 9. The determining factor in deciding whether the trucks in

question are vehicles required to be equipped with seat belts,
pursuant to 30 C.F.R. 77.1710(i), is whether or not "roll
protection," as that term is defined at 30 C.F.R. 77.2(w), is
provided, and was provided in August 1989, for said trucks.

 10. Each of the trucks in question is equipped, and was

equipped in August 1989, with a cantilevered "cab-shield," or
apron which is attached to the truck bed and extends over the cab
from the truck bed, except when the bed is being unloaded.

 11. Each of the four citations listed above were terminated

on August 29, 1989, after seat belts were provided for each of
the trucks in question.

 12. The penalty assessment of $42 for each of the citations

listed above (Nos. 3163931, 3163932, 3163933, and 3163934), for a
total assessment of $168, would have negligible effect on the
ability of B & S Trucking Company to continue in business.

Testimony

 Jimmy Allen Tankersly, an MSHA Inspector, testified that he

issued Citation 3163935 to Respondent, alleging a violation of 30
C.F.R. 77.1710(i), in that its coal trucks did not have seat
belts. He indicated that the violation was significant and
substantial in that if the trucks would overturn, it was
reasonably likely the drivers would be injured, possibly fatally.
He indicated that the Respondent was negligent in that it should
have known that the pertinent regulation requires seat belts in
the trucks in question. He opined that the cab shields on the
trucks do provide protection and can possibly keep the cab from
being crushed in the event of the truck turning over. He
indicated that the cab shield is on the truck except when it
dumps coal. According to Tankersly, when the trucks are dumping
coal, they are moving at about 5 miles an hour or less. In
essence, Counsel for Petitioner indicated that Tankersly's
testimony with regard to Citation 3163935 is applicable to all
the Citations issued in these cases.

Discussion and Conclusion of Law

 At the conclusion of Petitioner's case, Respondent made a

Motion for Judgment in its favor. After hearing argument from
both Counsel, the following Bench Decision was rendered (with
minor corrections of a non substantive nature):

 I have heard argument and have evaluated the evidence and

the testimony, and I have read the pertinent regulations. I find
that the Motion was well made and the Secretary has not
established her case.

 The reasons are as follows: the regulation that is at issue,

30 C.F.R. 77.1710(i), requires two elements; first of all it
requires a danger of overturning and it also requires that roll
protection be provided.

 With regard to the first element the Secretary must

establish that there is a danger of overturning. I find
specifically that the Secretary did not establish a danger of
overturning. The evidence from the inspector, Mr. Tankersly,
indicated that should a vehicle overturn, there would likely be
an injury to a person in the vehicle. This statement falls short
of establishing that there was any danger of the vehicle
overturning. On that basis alone, I grant the Motion.1

 I also note that with regard to the second element of section

77.1710(i), it also must be established that roll protection was
provided. That term is defined in 30 C.F.R. 77.2(w) as
meaning a "framework, safety canopy, or similar protection for
the operator when equipment overturns."

 The term "similar protection" modifies the terms immediately

preceding it, namely "framework" or "safety canopy." The item
referred to as a cab shield, as depicted in Respondent's Exhibits
1 to 8, (specifically in Respondent's Exhibits 1, 7, and 4), is
clearly not a portion of the cab. It is a portion of another
element of the truck, which is raised when dumping coal.
Certainly, when it is raised, there is a gap between this item
referred to as a cab shield, and the truck itself. Thus I can not
see that it's been established that the item referred to as a
shield is protection similar to a framework or a safety canopy.

 For these reasons, and primarily for the reason that I

previously stated, i.e., that it has not been established that
there has been any danger of the subject trucks overturning, I
grant the Motion. Accordingly, the citations that have been
issued herein, shall be dismissed.

                          ORDER

 It is ORDERED that Citation Numbers 3163935, 3163931,

3163932, 3163936, 3163937, 3163938, 3168465, 3163933, and 3163934
be DISMISSED.

                                Avram Weisberger
                                Administrative Law Judge

FOOTNOTES START HERE

 1. See, Turner Brothers, Inc., 6 FMSHRC 1219 (May 1984) (Not

cited in the Bench Decision). In Turner Brothers, supra, Judge
Koutras held that section 77.1710(i) does not require seat belts
for all vehicles, and that an inspector citing a violation
thereunder must first make a finding that there is a danger of
overturning before requiring the seat belts be installed on ROPS
equipment vehicles.