Conesville Coal Preparation Company
Conesville Coal Preparation Company (FMSHRC LAKE 89-29-R, et al.): Imminent-danger order affirmed and training findings vacated
Apply this to your situation
This order from 1990 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Conesville Coal Preparation operated a coal preparation plant where a truck trailer overturned during coal dumping and fatally crushed another truck driver. Judge George A. Koutras affirmed the imminent-danger order based on inadequate side clearance at the raw coal dumping area. He vacated the citation and orders alleging inadequate side clearance and failure to provide hazard training, and dismissed the related civil penalty assessment. The judge found that the independent truck drivers were subject to Mine Act training requirements in general, but the cited training standard was not proven on the record because the drivers were not within the category MSHA relied on and the operator's checklist did not adequately address the hazards.
Decision snapshot
- Cited standards: 30 C.F.R. § 77.1600(c) and 30 C.F.R. § 48.31(a).
- Outcome: The imminent-danger order was affirmed. The side-clearance citation and the hazard-training citation and order were vacated, and the related penalty assessment was dismissed.
- Key point: An operator may be responsible for a hazardous dumping layout, but the Secretary must prove the cited training requirement applies to the workers and conduct at issue.
Full text (FMSHRC public release)
CCASE:
CONESVILLE COAL PREPARATION V. SOL (MSHA)
DDATE:
19900406
TTEXT:
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~639
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
CONESVILLE COAL PREPARATION CONTEST PROCEEDINGS
COMPANY,
CONTESTANT Docket No. LAKE 89-29-R
Order No. 2950067; 12/5/88
v.
Docket No. LAKE 89-30-R
SECRETARY OF LABOR, Citation No. 2950068; 12/5/88
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 89-31-R
RESPONDENT Citation No. 2950069; 12/5/89
Docket No. LAKE 89-32-R
Order No. 2950070; 12/5/88
Conesville Coal Preparation
Company
Mine ID 33-03907
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 89-75
PETITIONER A.C. No. 33-03907-03516
v. Conesville Coal Preparation
Company
CONESVILLE COAL PREPARATION
COMPANY,
RESPONDENT
DECISIONS
Appearances: David A. Laing, Esq., Porter, Wright, Morris &
Arthur, Columbus, Ohio, for the
Contestant/Respondent;
Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for the
Respondent/Petitioner.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern Notices of Contest
filed by the contestant (Conesville) pursuant to section 105(d)
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of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
815(d), challenging the legality of the captioned orders and
citations issued by MSHA mine inspectors. The civil penalty
proceeding concerns proposals for assessment of civil penalties
filed by MSHA seeking civil penalty assessments against
Conesville for three alleged violations noted in two of the
contested citations and one of the orders. Hearings were held in
Zanesville, Ohio, and the parties filed posthearing briefs which
I have reviewed and considered.
Issues
The issues presented in these proceedings include the
following: (1) whether Conesville violated the cited mandatory
safety standards; (2) whether the alleged violations were
significant and substantial (S&S); (3) whether the alleged
violation cited in the contested section 104(d)(1) citation and
section 104(d)(2) order resulted from an unwarrantable failure by
Conesville to comply with the cited standard; and (4) whether the
condition or practice cited in the contested imminent danger
order was in fact an imminent danger.
Assuming the violations are established, the question next
presented is the appropriate civil penalties to be assessed
pursuant to the civil penalty assessment criteria found in
section 110(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of my
adjudication of these cases.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301, et seq
2. Sections 110(a), 110(i), 104(d), 105(d), and 107(a) of
the Act.
3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Stipulations
The parties stipulated to the following (Tr. 9-13):
1. The Federal Mine Safety and Health Review
Commission has jurisdiction over these proceedings.
2. The Conesville Coal Preparation Company Mine
I.D. 33-03907 is owned and operated by the Conesville
Coal Preparation Company.
3. The Conesville Preparation Company is an
operator as defined by 3(d) of the Act.
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4. The Conesville Coal Preparation Company, Mine
I.D. 33-03907 is a mine as defined by 3(h) of the Act.
5. The Conesville Coal Preparation Company and
Mine I.D. 33-03907 are subject to the jurisdiction of
this Court and the 1977 Mine Act.
6. The size of the proposed penalties, if any are
assessed, will not affect the operator's abillity to
continue in business.
7. The Accident Report, (Exhibit M.X. - 30),
fairly and accurately reflects the findings and con-
clusions of MSHA Inspectors Franklin Homko and Joseph
Yudasz.
8. The reference made to an alleged violation of
30 C.F.R. 48.13(a), in the last sentence of page 5 of
the aforementioned accident report is modified to
allege a violation of 30 C.F.R. 48.31(a).
9. The first name of Mr. Lent referred to in the
condition or practice stated in the section 104(d)(1)
Order No. 2950070, is Richard, rather than Robert.
Further, as a result of discovery, the parties agree
that Norman Hicks and David Summers did in fact receive
hazard training, and their names are deleted from the
cited condition or practice.
10. The respective exhibits offered by the par-
ties (C-1 through C-3, and MX-1 through MX-39) may be
admitted as part of the record in these proceedings.
Exhibits MX-35 and MX-38 are withdrawn by MSHA.
11. In view of the unavailability of Truck Driver
Orville Parks, the testimony of Mr. Parks, transcribed
from a tape made during the course of MSHA's accident
investigation, is admitted as evidence in these pro-
ceedings (Joint Exhibit -1).
Discussion
The facts in these proceedings establish that at
approximately 8:07 a.m., on Friday, December 2, 1988, a fatal
haulage accident occurred at Conesville's preparation plant,
resulting in the death of truck driver Dale A. Hina, a driver
with 5 years 8 months experience, including 4 months experience
transporting coal to the preparation plant from other mines. Mr.
Hina, and another truck driver, Norman M. Fortney, had
transported their loads of coal from a loading facility operated
by the Crooksville
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Coal Company, to the Conesville plant, an over-the-road distance
of 60 miles. Mr. Hina and Mr. Fortney were operating trucks which
were in tandem with 25-ton end-dump trailers. The trucks and coal
contents were weighed at the Conesville preparation plant
scalehouse and then driven to the raw coal pile unloading site.
Mr. Fortney backed his truck near the toe of the raw coal pile
and began dumping his load of coal onto the ground. Mr. Hina
backed his truck next to Mr. Fortney's and began to dump his coal
load from his trailer. As Mr. Fortney was dumping coal from the
raised trailer of his truck, he moved the truck forward to allow
the coal to flow freely from the trailer bed. A "sizable amount"
of frozen coal which had remained adhered to the inside of the
trailer bed at the right front part of the trailer apparently
affected the stability of the raised trailer causing the truck
and trailer to roll over onto its right side. The trailer landed
directly on the cab of the truck that Mr. Hina was operating
causing fatal crushing injuries to Mr. Hina. Mr. Fortney was not
injured. According to MSHA's accident investigation report, prior
to the accident, Mr. Fortney's truck was positioned approximately
10 feet to the left and 10 feet forward of Mr. Hina's truck.
The facts further show that the truck operated by Mr. Hina
at the time of the accident was owned by Cox Farms Company, and
that Mr. Hina was one of its employees. Mr. Fortney owned and
operated the truck that he was driving at the time of the
accident. Both trucks were leased or contracted to Ross Brothers,
Inc., an independent contractor with MSHA I.D. No. V71. Ross
Brothers Inc., had a contract with the Crooksville Coal Company
to transport the coal loaded at the Crooksville facility to
Conesville's preparation plant. Ross Brothers Inc., owned five
trucks, and leased two trucks and drivers from Cox Farms,
including the one operated by Mr. Hina, and leased or contracted
the truck owned and operated by Mr. Fortney.
As a result of its accident investigation of December 2,
1988, MSHA concluded that the accident occurred because the
frozen coal which remained in the raised trailer bed of Mr.
Fortney's truck affected the stability of the trailer causing the
truck and trailer to roll over on its right side. MSHA further
concluded that the "practice" of dumping coal from a tandem truck
and trailer without providing adequate side clearance between
trucks contributed to the severity of the accident. MSHA also
concluded that because of the failure by Conesville to insure
that adequate clearance was provided for the trucks dumping coal
at its preparation plant raw coal dumping location, Conesville
violated mandatory safety standard 30 C.F.R. 77.1600(c), and on
December 5, 1988, MSHA Inspector Robert L. Grissett issued to
Conesville contested Imminent Danger Order No. 2950067, citing a
violation of section 77.1600(c), and in conjunction with that
order he also issued contested section 104(a) Citation No.
2950068, with "S&S" findings citing the same
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standard. He also issued contested section 104(d)(1) Citation No.
2950069, with "S&S" findings citing Conesville with an alleged
violation of mandatory training standard 30 C.F.R. 48.31(a),
for failing to provide hazard training to Mr. Hina and Mr.
Fortney, and section 104(d)(1) "S&S" Order No. 2950070 for
failing to hazard train four other drivers. The orders and
citations issued by Mr. Grissett state as follows:
Docket No. LAKE 89-29-R. Imminent Danger Order No. 2950067
(exhibit MX-2):
The mine operator did not insure that adequate
side clearance was provided at the raw coal pile,
dumping location. A coal truck leased under Ross Bros.
Inc., contractor No. V71, overturned while dumping coal
and the bed of the truck fell on the cab of another
truck, leased under Ross Bros. Inc. contractor number
V71, which caused fatal injuries to the driver of the
parked truck. A bulldozer operator works in conjunc-
tion with the truck during the dumping process.
This is a violation of 30 C.F.R. 77.1600(c) and
a separate citation will be issued. The investigation
revealed that another trailer had overturned at this
dumping location on 2-26-88.
Docket No. LAKE 89-30-R. Section 104(a) "S&S" Citation No.
2950068 (exhibit MX-3):
The mine operator did not insure that adequate
side clearance was provided at the raw coal pile dump-
ing location. A coal truck leased under Ross Bros.
Inc. contractor No. V71, overturned while dumping coal
and the bed of the truck fell on the cab of another
truck, leased under Ross Bros. Inc., which caused fatal
injuries to the driver of the parked truck. A bull-
dozer operator works in conjunction with the trucks
during the dumping process.
This is the main factor in the imminent danger
Order No. 2950067, dated 12-5-88, therefore no abate-
ment time is given.
Docket No. LAKE 89-31-R. Section 104(d)(1) "S&S" Citation
No. 2950069 (exhibit MX-4):
Dale A. Hina and Norman H. Fortney, truck drivers
contracted by Ross Bros. Inc., contractor I.D. No. V71,
had not received hazard training prior to hauling coal
onto this mine property. Fortney's truck, when dump-
ing, overturned on Hinas' truck, causing fatal injuries
to Hina. The operator's hazard training under item 6
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states to stay clear of all raised equipment. There
were no entries in the hazard training log book to
indicate that these truck drivers did receive hazard
training.
Docket No. LAKE 89-32-R. Section 104(d)(1) "S&S" Order No.
2950070 (exhibit MX-5):
Hazard training was not provided to the following
truck drivers who haul coal onto this coal mining
property: Orville Parks, Richard Lent, Robert
St. Clair, Jr., . . . and Harold Jacobs. These truck
drivers either work for or are contracted by Ross Bros.
Inc., contractor I.D. No. V71. There were no entries
in the hazard training log book to indicate that these
truck drivers did receive hazard training.
MSHA's Testimony and Evidence
Norman Fortney testified that he is currently employed by
Landis Trucking, and that most of his adult occupation has been
the driving of trucks (Tr. 19). He stated that he began
delivering coal at the Conesville preparation plant in August,
1988, and that during the period from August to December 2, 1988,
he made approximately 200 deliveries at that site, and he
explained the procedures that he followed in delivering and
dumping his coal loads (Tr. 21-23). He confirmed that prior to
December 2, 1988, the scalemaster never told him how he wanted
the coal dumped, and that there were no controls over how the
trucks should be backed into the pile for dumping. He stated that
the drivers themselves would keep their trucks apart and would
dump where they thought it was safe to dump. There were no
Conesville employees at the dumping location to tell the drivers
where to dump (Tr. 24).
Mr. Fortney confirmed that he regularly observed other
trucks dumping at the pile during his deliveries, and he
explained what he observed as follows at (Tr. 25-26):
Q. All right. Generally, what sort of distances were
kept between the trucks when they were dumping?
A. Really there wasn't any set pattern. If you could
get backed in, and you thought it was safe to dump, you
backed in. There was no -- as I say today, maybe
backing in there, if they're busy, 10 or 12 feet apart.
If they're -- if it would happen that you took a little
extra time at the sampler, or something, and maybe one
of the trucks got unloaded quicker, he'd be gone. So,
there'd be more room then.
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There really wasn't any set pattern of how far
apart the trucks stayed other than the drivers tried to
operate in a safe manner and dump their trucks.
Q. All right. During the 200 -- approximately 200
deliveries that you were involved in, was it -- was it
usual to see trucks within 10 or 12 feet of each other
when they were dumping?
A. Yes.
Mr. Fortney confirmed that he was familiar with hazard
training, and he explained that "It's a program instituted by the
operation---the wash plant operation that explains to us, the
drivers that come in there, certain rules and regulations,"
including driving on the right side of the road and giving the
right of way to heavy equipment (Tr. 26). He stated that during
the time he was delivering coal to the Conesville property from
August to December 2, 1988, no employee of Conesville ever gave
him any hazard training. After examining Conesville's hazard
training check lists, Mr. Fortney stated that he recognized them
as the "verbal" hazard training which was explained to him "by
the gentlemen that explained" it to him. He further stated that
he had never seen these check lists during the prior occasions
when he was delivering coal to the Conesville property (Tr.
28-30).
Mr. Fortney stated that during the period August through
December 2, 1988, he had "heard" of more than one coal truck
upsetting at the Conesville raw coal pile (Tr. 31). He explained
the circumstances of the accident that he was involved in on
December 2, 1988 (Tr. 31-35).
On cross-examination, Mr. Fortney stated that at the time of
the accident he was leasing the truck and trailer which he owned
to Ross Brothers Inc., and was paid by the ton for the coal which
he delivered from the Crooksville Coal Company to the Conesville
preparation plant. He confirmed that prior to the accident he
received no training of any kind from Ross Brothers Inc. or the
Crooksville Coal Company (Tr. 37). He confirmed that he has
papers as a certified surface mine foreman from the State of
Ohio, and was so certified at the time of the accident (Tr. 38).
Mr. Fortney confirmed that he delivered coal to the
Conesville facility on an average of three loads a day, 3 days a
week, and that Mr. Hina's delivery schedule was approximately the
same as his (Tr. 39-40). Although he believed that there was
"room for improvement" at the Conesville facility, he agreed with
a prior statement that he made during the taking of his
deposition that the Conesville coal facility "runs as smooth as
any I've ever worked at" (Tr. 44).
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Mr. Fortney stated that as of December 2, 1988, he was allowed to
dump anywhere at Conesville's coal pile, and was never directed
where to unload. He stated that dumping was left to the driver's
discretion and that he dumped at a spot where he felt
comfortable, and was not required to be within so many feet of
another truck while dumping (Tr. 45). He confirmed that the
drivers could communicate among themselves and with the
scalehouse by means of CB radios, and that if he did not feel
comfortable at any dumping location he was free to move to
another location, and that Conesville never told him that he
could not do this (Tr. 45).
Mr. Fortney confirmed that he was aware of the hazard of a
truck trailer tipping over, and was aware of the fact that frozen
coal could cause a tipping hazard and that this was the reason
why a truck driver may choose to line his trailer bed with
anti-freeze or diesel fuel on cold days (Tr. 47). He stated that
the actual backing up and raising of the coal load is the most
crucial part of his delivery process, and that he is selective in
where to dump his load. He confirmed that the dumping area at the
time of the accident appeared to be normal, and he believed that
he was safe and on firm and level ground at the location where he
was dumping. He confirmed that he had not lined his trailer with
any anti-freeze or diesel fuel at the time of the accident. He
stated that since the accident, he no longer hauls coal (Tr. 48).
Mr. Fortney stated that at the time of the accident, he
backed into the dumping location first, and Mr. Hina backed up
after him. He stated that there was another truck to his left,
approximately 40 to 50 feet away, and that the drivers try to
leave that kind of distance between trucks "when the room was
there." There were times when drivers were 40 to 50 feet from
each other, and other times when they were not, and he tried to
"find a level spot, and a safe spot to dump" (Tr. 49). He stated
further that if there are four trucks dumping at the same time,
there is no room to maintain a 40 to 50 foot distance between
trucks at the pile in question (Tr. 50). He stated that he was
not surprised when Mr. Hina backed in as close as he did to him
because he could not see him across his truck, but that after the
accident occurred he was surprised that Mr. Hina was so close, or
10 feet from his truck (Tr. 51).
Mr. Fortney confirmed that he received hazard training after
the accident, but that it taught him nothing that he did not
already know about hazards associated with dumping coal loads at
the Conesville facility (Tr. 54). He confirmed that prior to
December 2, 1988, he never asked anyone at the Conesville site to
train him, and that he never told anyone there that he had not
received hazard training (Tr. 54). No Conesville employee ever
asked about or tested his knowledge of safe dumping procedures
(Tr. 61).
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Mr. Fortney stated that during all of his trips to the Conesville
plant, he never knowingly dumped a load of coal when he felt it
was not safe, and he believed that he was following safe dumping
practices regardless of whether he was 15 or 50 feet from another
truck. He confirmed that he never complained to MSHA about any
unsafe dumping practices, but that he and other drivers would
complain to the scalemaster if it rained, and the dumping area
became muddy and not level. When this occurred, the scalemaster
would instruct the dozer operators to correct the conditions (Tr.
64).
Mr. Fortney confirmed that he and other drivers have been as
close as 10 feet to other trucks while dumping their coal loads,
and had Mr. Hina arrived first to dump, he would have pulled in
as close as Mr. Hina did to him. However, at the present time,
drivers must stay 50 feet from other trucks because there are
lanes marked off by traffic cones (Tr. 68). He believed that the
Conesville hazard training check list concerns staying away from
loaders with buckets in the air, or staying away from a moving
dozer, rather than the trucks backing up and dumping (Tr. 77).
Robert St. Clair, Jr., truck driver, Ross Brothers Trucking
Company, testified that he has worked for this company for 5
years and has delivered coal to the Conesville preparation plant
on and off since it began operating 4 years ago. He stated that
he hauled coal to the plant on December 2, 1988, but in view of
the accident, he was directed to take his load to the power plant
and did not dump it at the preparation plant raw coal pile.
Mr. St. Clair stated that he has made approximately 2,000
coal deliveries to the Conesville plant since he began driving
for Ross Brothers and he described the procedure he followed in
dumping his coal load. He confirmed that depending on the type of
trailer he was driving, he would be required to leave his truck
cab in order to activate the necessary controls to dump his load.
He stated that prior to December 2, 1988, he had occasion to be
out of his cab and on the ground while dumping his load.
Mr. St. Clair stated that when he started dumping coal at
the Conesville raw coal pile no one from Conesville ever showed
him how the coal was to be dumped at the pile. He confirmed that
he knew the scalemaster at the preparation plant by his first
name "Rick." He confirmed that he was aware of "hazard training"
and explained that "It's where somebody tells me how to do my job
on their property and then I sign a paper stating that I
understand their training" (Tr. 87). He stated that no employee
of Conesville ever gave him any hazard training prior to December
2, 1988, and in the 4 years that he has delivered coal to the
property he never received any training. After examining copies
of Conesville's hazard training check lists, (exhibits MX-33 and
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MX-37), Mr. St. Clair stated that he had never seen them prior to
December 2, 1988 (Tr. 88).
On cross-examination, Mr. St. Clair stated that his father
formerly worked for Ross Brothers and trained him while he was
growing up, and that "it comes natural" to him as part of his
making a living as a truck driver. He stated that he never
received any truck driver training from Ross Brothers, and
received no hazard training with respect to delivering coal at
any facility (Tr. 89). He stated that he hauled coal to the
Conesville plant 3 times a day, 3 days a week since December 2,
1988, and that Ross Brothers has a 2-1/2 year contract to haul
coal from the Crooksville Coal Company to the plant. He confirmed
that he did not receive any training at the Crooksville Mine.
Mr. St. Clair stated that he can control the trailer
tailgate from the cab of the truck which he is presently driving.
He confirmed that in December, 1988, while in the employ of Ross
Brothers he was aware of coal trailers tipping over and that he
has been warned about this hazard. He stated that "its something
you have to always be aware of." He believed that he always takes
precautions while operating his truck and that he is "safety
conscious." He stated that one needs to watch every load which is
dumped, and that if he does not believe it is safe to dump a load
he will not dump it.
Mr. St. Clair stated that he has never requested Conesville
to train him, and he believed that many of the items on the
company's hazard training checklist do not pertain to his work as
a truck driver. He confirmed that MSHA has never inspected his
truck, but that both he and Ross Brothers inspect the truck on a
daily basis.
Mr. St. Clair stated that he never heard of any other trucks
overturning at the Conesville coal pile during the years that he
has delivered coal to the property. He confirmed that he never
told anyone at Conesville that he had not been trained, and that
no one at Conesville ever asked or tested him as to his knowledge
concerning the safe operation of his truck or the dumping of his
coal loads. He stated that "they leave me alone, just told me to
go dump my load" (Tr. 99).
Richard Lent, truck driver, Ross Brothers Trucking Company,
testified that he has 22 years of experience as a truck driver,
and that he has delivered coal to the Conesville plant for
approximately a year. He was scheduled to deliver coal to the
plant on December 2, 1988, but was diverted to the power plant
after the accident occurred.
Mr. Lent explained the procedure he followed in dumping his
coal loads. He confirmed that depending on the type of trailer
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he was operating on any given day, he would have to get out of
his truck cab to activate the tailgate lever in order to
facilitate the dumping of his load.
Mr. Lent stated that prior to December 2, 1988, no one from
Conesville ever instructed him how to dump his coal load. He
stated that "I just watched the other drivers, where they dumped
theirs and that was it" (Tr. 106). He identified Conesville's
scalemaster as "Rick" and confirmed that he has heard the term
"hazard training." He explained that "it means what the company
wants us to do inside their plant . . . dumping and stuff" (Tr.
106). He confirmed that prior to December 2, 1988, no employee of
Conesville ever gave him any hazard training or ever asked or
tested his knowledge as to how to safely operate his truck (Tr.
107). After identifying Conesville's hazard training check lists,
Mr. Lent stated that he never saw them prior to December 2, 1988
(Tr. 106-107).
On cross-examination, Mr. Lent confirmed that he received no
hazard training from Ross Brothers or the Crooksville Coal
Company. He stated that he does inspect his truck and had to pass
a test to work for Ross Brothers. He confirmed that he delivers
coal to the Conesville plant 3 days a week, making 3 trips a day,
and that he knows what to do while dumping his load by observing
the other truck drivers.
Mr. Lent stated that he has always been alert and aware of
the hazard concerning the overturning of a truck while dumping,
and that if possible, he tries to dump his load after the other
trucks have completed their dumping. He confirmed that he always
puts fuel oil in his truck bed to prevent coal freezing and takes
precautions while dumping.
Mr. Lent stated that prior to December 2, 1988, he had to
get out of his truck cab to operate the tailgate levers and to
observe the dumping of his load. He stated that he would also
stand on the fuel tank between the truck cab and trailer bed, and
that some of the new trucks used by Ross Brothers have all of the
trailer controls inside of the truck cab. He stated further that
during the period October, 1988, to December, 1988, he sometimes
had to get out of his cab and walk to the rear of the truck to
see if the tailgate was down (Tr. 108-119).
James R. Stull, truck driver, Bellaire Trucking Company,
testified that he has 32 years of driving experience and has
worked for Bellaire for 2 years. He stated that he has hauled
coal for 18 years, and started hauling coal to the Conesville
plant in October, 1987. He confirmed that he overturned a truck
at the Conesville plant coal pile in February, 1988. The ground
was not level, and as he backed up his truck to dump the load of
coal, the right rear wheel sunk into the mud, and the truck
overturned but no one was hurt. Mr. Stull stated that Conesville
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never instructed him how to dump his coal on the pile, and there
were no traffic lanes at the dump site for the trucks to follow
while dumping their loads (Tr. 120-124).
On cross-examination, Mr. Stull confirmed that he received
no training at the Bellaire Company, but did receive hazard
training at the Conesville plant. He stated that when his truck
overturned, it fell for a distance of 30 feet but did not strike
anything. He stated that the truck trailer telescope broke off
after the truck tipped over (Tr. 125-127). In response to further
questions, Mr. Stull stated that the training he received at the
Conesville plant came after the fatal accident, and he explained
the training that he received (Tr. 128-129).
Clyde O. Parks, electrician, Conesville Coal Preparation
Company, stated that he has worked at the plant for 5 years and
has 37 years of mining experience. He confirmed that he is a
member of the UMWA, and except for a 13-month period, he has
served as a member of the mine safety committee. He stated that
the coal haulage truck drivers are not members of his union.
Mr. Parks stated that when another truck overturned at the
plant coal pile on February 26, 1988, he participated in the
union walkaround inspection at the site as a member of the safety
committee. He stated the truck overturned after the right rear
wheel dual tires hit a soft spot while dumping a load and caused
the yoke to break at the point where the truck telescope fastens
to the trailer.
Mr. Parks stated that Mr. Bill Lyons, Safety Director of
Conesville Coal Company, accompanied him during the walkaround.
As a result of the incident of February 26, 1988, measurements
were taken of the distance covered by the truck which overturned
and the safety committee expressed their concern about
maintaining a safe distance between the trucks. The union held a
communications meeting with Conesville's management and
recommended that only three trucks be permitted to dump coal at
any one time, no less than 30 feet apart. Mr. Parks stated that
the company accepted the recommendations and limited the dumping
to three trucks at a time, but it only did this for a period of 2
weeks (Tr. 129-140).
On cross-examination, Mr. Parks confirmed that he also
served on the safety committee while previously employed by
Peabody Coal Company. He stated that after a truck tipped over at
the coal hopper at Peabody, MSHA took no further action.
Mr. Parks confirmed that the union has the authority to
declare an imminent danger at the plant coal dumping piles, but
that it has never exercised this right and has never advised MSHA
of any imminent danger. He confirmed that he first spoke to
Inspector Grissett about the instant case 2-weeks prior to the
Page 14
~651
hearing. He also confirmed that the Conesville Company has
received safety awards, was cited by MSHA for having 600 days
without a lost time accident, and that MSHA inspectors have
advised him that the company runs a safe operation (Tr. 140-158).
MSHA Inspector Robert L. Grissett, confirmed that he and
several other inspectors conducted an investigation of the
accident in question on December 2, 1988, and that he issued a
section 103(k) order that day (Tr. 164). He identified several
photographs of the trucks which were involved in the accident,
and explained what the investigating team found (Tr. 165-175).
Mr. Grissett and the other inspectors returned to the mine on
December 5, 1988, to continue their inquiry, including interviews
with witnesses (Tr. 176). He reviewed the company training plan
and records, and explained the coal dumping procedures. He
confirmed that there were no designated lanes marked off for the
trucks to use at the coal pile, and that once the load was
weighed and sampled, the trucks were free to go to the dumping
area.
Mr. Grissett stated that he learned about Conesville's
training plan for contract truck drivers during an interview with
scalemaster Rick Shuck. Mr. Shuck informed him that each truck
had an identification number on a card on the windshield of the
passenger side, and as each truck passed over the scales Mr.
Shuck would log the number and then hazard train the driver.
During subsequent truck trips, Mr. Shuck would refer to his log
to insure that the number on the truck corresponded with the
number in his log. However, if there were a change in drivers, he
would have no way of knowing whether that particular individual
was trained because the log would only reflect a truck number.
Mr. Grissett stated that Mr. Shuck and superintendent Leppla
acknowledged that this system presented a problem because "too
many trucks were coming in" (Tr. 182). Mr. Grissett stated that
he was particularly interested in items 5 and 6 of Conesville's
training plan which advises persons to stay clear of all raised
equipment and to watch for moving equipment (Tr. 183, exhibit
MX-37).
Mr. Grissett confirmed that after the completion of the
accident investigation he issued a section 107(a) imminent danger
order and a section 104(d)(1) citation and order (Tr. 182). The
imminent danger order was issued in conjunction with a section
104(a) citation which was issued for a violation of section
77.1600(c), for failure to maintain adequate and safe side
clearance on raised equipment. He explained that Mr. Hina's truck
was within 10 feet of Mr. Fortney's truck and there were no
established guidelines as to the procedures for dumping, and
there were no designated areas provided at the dump location for
safe side clearances for the trucks. Based on his investigation,
record review, and interviews, he concluded that these failures
had been a "practice at the mine" (Tr. 185). He explained his
Page 15
~652
reason for issuing the imminent danger order as follows at (Tr.
184):
* * * * * * *
A. Well, you have to have a condition or practice that
is so serious that you feel that an abatement time
couldn't be given before a serious injury or accident
could happen.
* * * * * * *
A. The practice--we had established that they had not
provided adequate side clearance. And I know I had the
area closed on a 103(K) order, but that was soon to be
lifted as soon as the investigation was over, and there
would be nothing to prevent them from continuing to
operate the way they had prior to that.
Q. So why did you issue the imminent danger order?
A. To keep the area closed until management could
devise a method to ensure adequate side clearance.
Mr. Grissett stated that he based his "high negligence"
finding on the fact that there had been a prior truck tipping
incident at the mine on February 26, 1988, as confirmed by the
photographs produced by Conesville's Safety Director Bill Lyons
(Tr. 186). He based his "S&S" finding on the fact that an
accident resulting in a fatality had occurred (Tr. 187). He
confirmed that he issued a citation for a violation of the
training requirements of section 48.31(a), and that he reviewed
the mine hazard training log and plan before doing so (Tr. 187).
He also consulted MSHA's Part 48 training policy manual (exhibit
MX-31), and discussed the citations and orders with his
supervisor and the other MSHA inspectors who were with him on
December 5, and that they all agreed with his enforcement actions
(Tr. 189).
Mr. Grissett stated that he based his "high negligence"
finding with respect to the training violation on Mr. Leppla's
statement that he recognized that there was a problem with
training the truck drivers, and the fact that Conesville had
knowledge of the prior truck tipping incident and failed to do
anything about its training. He stated that "I put all that
together, and felt that it met the criteria for a (d)(1)
citation" (Tr. 190). He also confirmed that he found the
violation to be "S&S" because "we had an accident that resulted
in a fatality" and "that's part of the criteria on S and S" (Tr.
190). With regard to his unwarrantable failure findings, Mr.
Grissett stated as follows at (Tr. 190-192; 195-196):
Page 16
~653
A. Well, it has to be a violation of mandatory stan-
dard. It has to be S and S, or significant and sub-
stantial. It can't be imminent danger. And the
operator has had to show aggravated conduct, which
would constitute more than ordinary negligence.
Q. Okay. What do you understand aggravated conduct
constituting more than ordinary negligence to mean?
A. That would mean that they had prior knowledge of a
serious condition or act or area of the mine that could
cause injury to someone, and failed to take appropriate
steps to eliminate it or prevent a reoccurrence.
Q. Okay. And in your investigation, interviews,
observations and record reviews, what findings did you
make that led you to conclude that Conesville had, in
fact, exhibited aggravated conduct constituting more
than ordinary negligence with respect to their
training?
A. That they recognized they had a breakdown in their
system, or their system was just not -- not adequate to
assure that everybody was getting hazard trained.
* * * * * * *
Q. All right. What findings did you make that led you
to conclude that Conesville Coal had exhibited aggra-
vated conduct constituting more than ordinary negli-
gence with respect to their hazard training and their
prior knowledge of the hazard training?
A. In the fact that they had -- that we had the acci-
dent in February 26th of '88 that was brought to their
attention, that they had the breakdown in their hazard
training system and was aware of that.
* * * * * * *
Q. With respect to Line 11 on your (D)(1) order, you
marked high for negligence on this training violation.
Why did you find that Conesville was highly negligent
with respect to their training program?
A. Because they admitted that they had problems and
were not sure how many truck drivers had received
hazard training, and seemed to feel that it was just
practically an impossible situation to -- to get every-
body hazard trained because of the amount of trucks
that come in.
Page 17
~654
Q. All right.
A. And it was actually the -- it was more the method
they were using than anything else.
With regard to his "S&S" finding concerning the section
104(d)(2) order, Mr. Grissett stated as follows (Tr. 196-197):
Q. And how did it -- what findings did you make that
it met the S and S criteria?
A. That hazard training in this case where you have
truck drivers that's coming into an area, and can dump
at will wherever they want to, I think the hazard
training that addresses -- that they address in their
hazard training program that they have addresses that
area.
So, I feel the hazard training and the dumping of
coal at the raw coal pile go together because that's
all these gentlemen that come in there with those
trucks do. They just come in, and dump coal and leave.
So, they're only exposed to very few hazards. And one
of the main ones is in the dumping of it.
Q. All right. And what hazards in the dumping area?
A. That they will upset, and that you have to keep it
level, and you have to keep them apart to allow for
these trucks to upset.
On cross-examination, Mr. Grissett confirmed that he had
inspected the preparation plant in question at least 2 times a
year for the past 3 years, including the raw coal dumping area,
and that other inspectors have also inspected the facility. He
confirmed that he has observed the dumping in progress during
prior inspections before December 2, 1988, and that it was very
likely that he inspected the facility during a regular inspection
from September 20 to 28, 1988. He confirmed that prior to
December 2, 1988, he never issued any imminent danger orders at
the dumping location, and had never previously cited Conesville
with a violation of section 77.1600(c) (Tr. 202-206).
Mr. Grissett confirmed that the accident investigation
revealed that frozen coal which remained in the upper right-hand
corner of Mr. Fortney's truck trailer bed caused his truck to tip
over (Tr. 207). He confirmed that he based his imminent danger
order on his belief that Conesville had a continuing violation of
section 77.1600(c), that was creating an imminent danger because
it did not insure that there was an adequate side clearance
between trucks to ensure that a truck which tipped over would not
come in contact with another truck (Tr. 209-211). He confirmed
Page 18
~655
that when he issued the order, he did not have in mind any
specific adequate minimum distance between trucks, but that he
did not believe that 10 feet was adequate. He now believes that
an adequate distance would be "in the neighborhood of 40 or 50
feet" (Tr. 212). He defined the term "adequate" to mean "if it
was raised it would not cause an injury to somebody if it fell
over" (Tr. 213). He believed that the cited standard required
Conesville to keep enough distance between the coal trucks
dumping at the coal pile so that if one toppled over it could not
hit another truck (Tr. 214).
Mr. Grissett confirmed that in order to abate Citation No.
2950068, Conesville was required to establish a system to ensure
that trucks would not come in contact with each other in the
event of another accident similar to the one which occurred in
these proceedings, and that simply posting a sign would not be
sufficient (Tr. 214). He confirmed that the use of the cones for
truck spacing was suggested by Conesville, and that this was
acceptable to MSHA. Another alternative would be to enlarge the
dumping area to provide ample room between trucks while they are
dumping (Tr. 218). He confirmed that a hazard always exists at
the dumping areas where hoppers are located, but that Conesville
always flagged those areas to alert the truckers of the hopper
hazards (Tr. 221).
Mr. Grissett confirmed that prior to December 2, 1988, he
issued a citation for a violation of section 77.1600(c), at
another tipple raw coal pile because of an overhead high voltage
line which could have been contacted by a truck raising its bed,
but that he never issued any violation for trucks dumping too
close together, and the Conesville case was his first experience
of this kind (Tr. 223-224).
Mr. Grissett confirmed that although he did not investigate
the prior tipping incident of February, 1988, it was his
understanding that it was caused by a broken hydraulic hoist
scope which caused the truck to tip, and it did not hit anything
when it fell over (Tr. 225). He confirmed that during his
investigation of the December 2, 1988, accident, he determined
that the truck drivers with whom he had spoken were aware of the
tipping hazards created by frozen coal, and that Mr. Fortney had
not used any kind of anti-freeze on his truck that day (Tr. 227).
He also confirmed that the drivers listed in Order No. 2950070,
who either worked for or leased their trucks to Ross Brothers,
had not been hazard trained (Tr. 228). He explained his
understanding of the contractual arrangements between Conesville,
Crooksville Coal Company, and Ross Brothers, and independent
trucker Fortney, and Mr. Hina, an employee of Cox Farms (Tr.
225-229).
Mr. Grissett confirmed that although Ross Brothers has an
MSHA I.D. Number V7-1, and is considered to be an independent
Page 19
~656
contractor subject to MSHA's jurisdiction, no citations or orders
were issued to Ross Brothers or to Mr. Fortney (Tr. 230-231). He
also confirmed that there are no MSHA requirements for a trucker
to apply anti-freeze or diesel oil to their trucks to prevent
coal freezing (Tr. 231).
Mr. Grissett stated that his investigation did not reveal
whether or not Ross Brothers was providing hazard training to its
drivers. He stated further that Ross Brothers was not required to
give this training because "it would have to be to the people
entering upon the mine property." Conceding that the drivers in
question did enter mine property, Mr. Grissett stated that the
training would have to be provided "by the operator that's
invited the man in there" and that Ross Brothers "wouldn't know
of the existing or potential hazards of that raw coal dump" (Tr.
233). He agreed that a trucking company such as Ross Brothers
should be concerned about hazards to its drivers and possible
damage to its equipment, but that "the way the law is," it is the
mine operator's responsibility to train the drivers "once that
truck enters the gate" (Tr. 233). He confirmed that the
Crooksville Coal Company had not trained some of its drivers, and
while he did not know whether any citations were issued to
Crooksville, he believed that another MSHA inspector visited that
site and that "the situation has been taken care of" (Tr. 234).
Mr. Grissett stated that the cited training standard section
48.31(a), requires hazard training for all individuals who come
within the definition of "miner" pursuant to section 48.22(a)(2).
He believed that Mr. Fortney, Mr. Hina, and the other cited
truckers came within the definition of "delivery personnel"
included in the definition of "miner" (Tr. 236). He determined
from Mr. Fortney that he had been delivering coal to the
preparation facility 3 times a day, 3 days a week, but did not
determine how long Mr. Hina had been coming to the facility (Tr.
237). However, he did not disagree with the information in the
accident investigation report that Mr. Hina had delivered coal to
the facility for 4 months during the same daily intervals as Mr.
Fortney (Tr. 238).
Mr. Grissett stated that Mr. Fortney and Mr. Hina would be
exposed to the potential of a truck upsetting while dumping coal.
They were also exposed to hazards from the hoppers, and while on
foot they may be exposed to other truck and dozer traffic
hazards. He confirmed that they were exposed to these hazards on
a daily basis during each trip that they made to the raw coal
pile. He explained that these individuals would not be classified
as miners pursuant to the definition found in section
48.22(a)(1), because they were not employed at the mine, or
contracted to work there for a period of 5 days, and "were just
contracted to deliver a product to the mine" (Tr. 250). He
confirmed that he followed MSHA's training policy guidelines when
Page 20
~657
he issued the citations, and consulted with MSHA's training and
education specialist Jim Myers in this regard (Tr. 251).
Mr. Grissett confirmed that MSHA's policy manual provides an
exception for truck drivers who remain in their vehicles while on
mine property, and that they are not required to be hazard
trained pursuant to section 48.31(a) (Tr. 253). After responding
to further questions concerning the exception for persons who
come to the mine property to pick up or deliver materials and
supplies, Mr. Grissett disagreed that coal truck drivers that
stayed in their vehicles need not be hazard trained (Tr. 255). He
conceded that when he gave his prior deposition he stated that
individuals who came to the mine property in a pickup or delivery
truck and who did not leave their vehicles were not required to
be hazard trained. He confirmed his belief that coal haulers who
do not leave their vehicles are not required to be hazard trained
by the mine operator, but if they do leave their vehicle, they
are required to be trained with respect to the hazards that they
are exposed to while out of their vehicles (Tr. 257).
Mr. Grissett explained his reasons for citing Mr. Fortney
and Mr. Hina for lack of hazard training as follows at (Tr.
258-260):
Q. Okay. Now, you indicated that the reason you
issued the citation with respect to Mr. Fortney and
Mr. Hina as far as hazard training goes is because it
was determined they were out of their vehicle; is that
right?
A. Yes.
Q. Okay. So, if -- if you had determined they had
stayed in their vehicles, that citation would not have
been issued with respect to those two individuals; am I
correct?
A. I'm not sure whether -- there was more thinking
into that than that before I issued that citation. I
know what I said in the deposition. I don't know. I
recognize it there, and I must have said it, and I've
reread it, and possibly -- apparently I did say it that
way. And so, I'll have to go with it.
Q. So, to make sure I am not mischaracterizing your
testimony, you do agree that your prior testimony on
this issue is that coal haulers who remain in their
vehicles need not be given hazard training, correct?
A. That's the way that it reads, yes.
Page 21
~658
Q. And that's the way you were interpreting 48.31(a), at
least as of December 2nd, 1988?
A. Yes.
Q. And because Mr. Fortney and Mr. Hina, you ascer-
tained were out of their vehicles, you deemed they
needed hazard training?
A. Fall into that area, yeah.
Q. Fall into the area of?
A. Requiring hazard training.
Q. Okay. Specifically, did you know where Mr. Hina
was when he was out of his vehicle on December 2nd?
Did you determine where ---
A. I don't---
Q. ---where he was in particular that day?
A. No.
Q. Okay. How did you determine he was out of his
vehicle?
A. I don't know whether we determined that or not. We
determined he hadn't been hazard trained.
And, at (Tr. pgs. 263-264; 266, 267-268; 273-274):
THE WITNESS: I have gotten totally confused as to
actually what I did that day like entering this policy
into it, and I'm not too sure -- I know what the
deposition says. I don't know -- I don't recall
whether we was talking policy at that time or not when
we was in Cleveland.
But I know that we enforce if a man comes to the
mine on a regular basis and delivering a product such
as this was -- this was a delivery of a product -- and
is exposed to hazards while performing that, he has to
be hazard trained.
Now, the policy -- and I know it gets -- it gets
very confusing -- but we try to get to the meat of it
and sometimes we have to stay away from that policy
because its confusing.
Page 22
~659
All I did to refer to that policy is to make sure
I was in the right area of addressing hazard training.
I briefed through that, and I talked to Jim Myers; am I
in the right direction here. And he said, yes.
But as far as enforcement, when we're talking
delivery, when a man from Penn Ohio delivers towels to
the mine, we don't require him to have hazard training.
He generally pulls in the parking lot, and walks into
the shop area or office area. * * *
* * * * * * *
A. The way I enforce it is that if they come there on a
regular basis and are exposed to hazards, they have
to be hazard trained with the exception of personnel
who comes around the mine office or mine shop just in a
delivery capacity such as a mailman.
* * * * * * *
THE WITNESS: Right, the policy. But I don't enforce
the policy. That was my interpretation of the policy
in the deposition.
BY MR. LAING:
Q. And you rely on the policy in making a decision
whether to issue a citation or order?
A. No.
Q. You don't rely on the policy?
A. No, sir.
Q. Didn't you testify to Mr. Zohn that you do refer to
the policy?
A. We refer to the policy because it's a guideline. I
carry the policy in my vehicle. I've gotten in
problems with the policy. It -- you cannot enforce it.
* * * * * * *
Q. Okay. Mr. Grissett, with respect to the order that
you issued on the other Ross trucking drivers who
didn't receive hazard training, did you make a deter-
mination that they were out of their truck, also, while
at Conesville?
Page 23
~660
A. We made a determination they had not received hazard training.
Q. Okay. Was there any determination made as to
whether they were out of their truck?
A. No.
Q. Okay.
A. There might have been on Orville Parks. That
question may have been asked.
Mr. Grissett stated that item #6 of the Conesville hazard
training plan applies to the possibility of a truck tipping over
and that such an occurrence is not unique to the Conesville
preparation plant. He confirmed that the truck drivers were aware
of this hazard and that they are most concerned when they are
dumping (Tr. 278). He confirmed that at the time of the accident
Conesville had an approved hazard training plan in effect for
truck drivers, that hazard training was part of the plan, and
that many drivers had been trained (Tr. 278, 282). He confirmed
that he issued the citation because he could find no evidence
that the drivers identified in the citation were hazard trained
(Tr. 281). He also confirmed that he had no problem with the
hazard training "checklist" used to train the drivers, but that
Conesville missed some drivers when it came to hazard training
(Tr. 282). He stated that Mr. Leppla's statement concerning a
"problem" with training concerned "knowing which ones are and
which ones are not trained" (Tr. 284).
In response to further questions, Mr. Grissett confirmed
that Conesville never raised any policy distinctions concerning
training for truck drivers who did not leave their trucks, and
that this issue was never raised by Conesville. He stated that
"they were trying to get their truck drivers trained" (Tr. 290).
He confirmed that he issued the two training violations because
Conesville had a "flaw" in its hazard training program and had
not in fact hazard trained some of the truck drivers (Tr. 290).
He stated that when he referred to the MSHA policy discussed with
Mr. Myers, he decided not to follow it because it did not address
the situation and that he was enforcing the law and not the
policy and it made no difference to him whether or not the
drivers got out of their trucks while they were dumping coal (Tr.
291). When asked whether the policy contradicts section 48.31(a),
Mr. Grissett responded as follows at (Tr. 292):
A. It didn't apply there where you have truck drivers
whether they got out or not, even though we did estab-
lish that some of them got out. So, it really didn't
apply to that because you -- they were exposed to --
they were exposed to hazards while in their vehicle.
Page 24
~661
So, we couldn't -- we just couldn't use that there. We
had to -- we had to just go with what the law stated,
that if they're on a regular delivery there, a regular
basis, and are exposed to the hazards, then they have
to be hazard trained.
Mr. Grissett stated that since the "cone and lane" system
has been in effect at the coal dumping location there have been
two incidents of trucks upsetting without any injuries, and he
believed they were caused by a wheel or a broken scope or pin
(Tr. 303). He stated that the mine operator has the
responsibility to foresee the possibility that at any given time
a truck will upset at a coal dumping location and that it must
insure that proper separation is maintained between the trucks
that are dumping (Tr. 311). Conesville's Testimony and Evidence
Randy B. Miller, testified that he is the administrative
manager of the preparation plant, and that part of his duties
include recordkeeping. He was aware of the prior truck tipping
incident, and confirmed that the safety director showed him a
picture of the truck and informed him that it turned over because
of a mechanical problem involving a broken pin. He further
confirmed that he attended meetings with the mine safety
committee, but he could not recall the committee ever proposing
that a three truck dumping cycle be used at the raw coal dumping
pile (Tr. 325-327).
On cross-examination, Mr. Miller confirmed that he was also
aware of a truck upsetting at the coal pile subsequent to the
accident of December 2, 1988, and while there may have been other
such incidents, he was not personally aware of them since these
are matters which would be investigated by the safety director.
He stated that he was at the meeting with the safety committee
held on March 1, 1988, following the truck tipping incident in
February, 1988, but he could find no "union safety write-up" or
record of any discussion concerning the trucks. He also checked
the minutes of similar meetings held from January through
December, 1988, and found nothing in this regard (Tr. 331). He
denied that Mr. Clyde Parks ever suggested to him that Conesville
should implement a three truck dumping cycle at the coal pile,
and he agreed that Mr. Parks would not necessarily discuss this
with him and that it would more appropriately be brought up with
the safety director (Tr. 333).
William Lyon, testified that he retired as the plant safety
director, training instructor, and staff electrical engineer on
June 1, 1989, and that he served in these capacities for
Conesville from February, 1985, until his retirement. He
confirmed that the plant opened in January, 1985, and he
explained what is done there (Tr. 339-342). He stated that as of the
Page 25
~662
December 2, 1988, accident the plant had 50 employees. He
confirmed that there were four signs posted at the raw coal
dumping area at the time of the accident stating "Danger Open
Hopper," and he identified exhibit MX-33, as the approved
training plan for the plant as of the time of the accident. He
stated that MSHA inspector and training specialist Jim Myer spoke
with him in November, 1986, and informed him that he had to have
an approved training plan, and that Mr. Myer volunteered to put a
plan together for him. Mr. Myer prepared the plan, including the
last page, which is the hazard training plan, presented it to
him, and it was subsequently adopted by Conesville and approved
by MSHA (Tr. 342-345).
Mr. Lyon identified exhibit G-3, as a copy of the plant
hazard training logbook used for the coal haulers as of the time
of the accident. The book contains a copy of the hazard training
checklist, the names of the drivers, their truck numbers, the
identification of the vendors, and the person who conducted the
training (Tr. 326). He stated that Conesville began hazard
training coal haulers in January, 1988, when MSHA informed him
that he had to maintain a log of all hazard training, but that
prior to this time MSHA inspectors advised him that coal truck
drivers did not have to be hazard trained if they were not
outside of their trucks (Tr. 346-347). Mr. Lyon confirmed that he
made the notation "when outside of trucks & driving haul road"
which appears at the top of the checklist, and that he
underscored the critical checklist items that truck drivers
should be aware of while outside of their trucks, and he believed
that these items applied to truck drivers. He did not believe
that item #6, which cautions persons to "stay clear of all raised
equipment (dozer blades, front-end loader buckets, etc)" applied
to truck drivers because they would not be next to that equipment
(Tr. 348-349). He explained that he made the notation in question
because truck drivers normally did not get out of their trucks,
and if they did, they had to be aware of the underscored items on
the checklist (Tr. 349).
Mr. Lyon stated that it was his understanding in 1988 from
MSHA that hazard training was only required for coal haulers when
they were outside of their cabs. He confirmed that no
determinations were made as to which drivers got out of their
trucks because "most" of them did not do so. However, since there
were periodical truck breakdowns and a driver would have to make
a phone call, all truck drivers were trained because they would
have to get out of their trucks. Although it was his
understanding that this training was not required, he made the
decision to hazard train all coal haulers (Tr. 350).
Mr. Lyon stated that prior to the accident he reprimanded
"quite a few" coal haulers for not following the hazard training
checklist items, particularly with respect to the use of hard
hats, and that MSHA inspectors, including Mr. Grissett, were
Page 26
~663
present when this was done. He confirmed that he organized the
log book procedures, and that the drivers logged in the book were
trained by the scale master Rick Shuck, under his direction. He
stated that he also trained quite a few of the drivers, was
present when Mr. Shuck trained them, and he explained how the
training was given and the names entered into the log (Tr.
352-356).
Mr. Lyon stated that prior to the accident he was not aware
of any problems with the system that he implemented for hazard
training coal haulers, and he was not aware of any drivers coming
to the mine property that were not being hazard trained (Tr.
356). He denied making any statements that Conesville was not
able to keep up with the training (Tr. 357).
Mr. Lyon stated that Conesville had no involvement in
determining who delivered coal to the preparation plant. He
explained that Cravat Coal Company had a contract with the
Conesville Power Plant, through Columbus Southern Power Company,
to furnish coal which was washed at the Conesville plant, and
that Cravat Coal contracted with the Crooksville Coal Company to
ship some of its coal to the plant, and that Crooksville
contracted with Ross Brothers, who in turn contracted with Cox
Farms, to haul the coal to the plant (Tr. 358).
Mr. Lyon stated that at the time of the accident the raw
coal dumping area was approximately 250 feet long, and he was not
aware of any time when it was significantly less than that (Tr.
358). The only other prior tipping incident that he was aware of
occurred on February 26, 1988, because of a broken pin on the
jack used to raise the truck bed, and the truck did not hit
anything and no one was injured. He denied making any statements
that there were more truck tipping incidents prior to the
December 2, 1988, accident (Tr. 359). He perceived no hazard from
the incident which occurred in February, 1988, because "it was a
mechanical problem with the truck." He recalled no
recommendations from the mine safety committee as a result of
that incident, and denied that Mr. Parks or anyone else from the
safety committee ever approached him about implementing a
three-truck dumping cycle (Tr. 360).
Mr. Lyon stated that Conesville did not file an MSHA
accident report Form 7001, regarding the accident in question,
and that the form was filed by Ross Brothers. He stated that the
imminent danger order and citation for a violation of section
77.1600(c), were abated by providing three dumping lanes spaced
60 feet apart, and that this distance was determined by the State
of Ohio Division of Mines who also investigated the accident, and
that MSHA agreed with it (Tr. 361). He confirmed that in
February, 1989, Conesville received a certificate from MSHA for
600 days without a lost time accident, and that it was signed by
Inspector Myer and Inspector Grissett's supervisor Jack Cologie.
Page 27
~664
He also stated that other mine inspectors, including Mr. Grissett
and Mr. Myer, have commented to him that "they enjoyed coming up
to inspect our plant because we had such a safe operation" (Tr.
362). He confirmed that prior to the accident, other inspectors,
including Mr. Grissett, inspected the coal dumping area, and that
no citations or orders were ever issued for not providing
adequate side clearance at the dumping pile (Tr. 362).
On cross-examination, Mr. Lyon confirmed that Conesville's
hazard training plan, (exhibit MX-33), is representative of a
plan that he was familiar with when he was trained at the Central
Ohio Coal Company, and that MSHA adopted the plan. He stated that
he made no independent research in putting the plan together, and
relied on Mr. Myer (Tr. 366). He confirmed that when he decided
to train all coal haulers, he made no distinctions between
whether a driver got out of his truck or not and decided to
hazard train all truck haulers delivering coal to the plant (Tr.
366). He confirmed that he did not call any of the coal haulage
vendors listed in the hazard training log book to determine
whether they had trained their drivers "because they had to be
trained at each individual site" because "each mine is different
than any other mine" and he felt some obligation to train the
drivers at the mine site because "a truck could have an accident
or a mechanical problem and the driver would have to be out on
the ground" (Tr. 367-368). He confirmed that at the time of the
accident, he had no specific knowledge that Ross Brothers was
delivering coal to the plant, and he would have no reason to call
them about any hazard training for their drivers (Tr. 368).
Mr. Lyon did not believe that the prior truck tipping
incident presented any hazard or safety problems other than to
the driver in the truck, and he stated that neither he or the
safety committee saw a need to discuss it further, and even
though the committee was aware of the incident, it was not
discussed with him (Tr. 371). He confirmed that prior to the
accident, there were no truck spacing controls in effect and it
was left to each driver to determine the safe distance for
backing up and dumping loads at the coal pile. He also confirmed
that there were no physical barriers in place, or flagmen to
direct traffic, but that signs were posted to keep personnel out
of the coal pile because of the hoppers under the pile (Tr. 374).
He confirmed that it was Mr. Shuck's responsibility to train the
coal haulers, maintain the log, and to determine if there were
new drivers who had not been hazard trained (Tr. 375).
Mr. Lyon stated that subsequent to the February, 1988, truck
tipping incident, he did not find it necessary to emphasize item
6 of the hazard checklist, but that he and Mr. Shuck were told
about it. He stated that when a new truck showed up at the site
with a new driver, he would be trained. The contractor controlled
the numbers on the truck, and he had no direct contact with the
contractors to advise them of any responsibility to
Page 28
~665
inform him of any changes in drivers, and he believed that it was
reasonable to assume that if there were any driver changes, he
would be informed. He agreed that at least six drivers "got
through the system and were not hazard trained," and that it was
obvious that he was not told that some drivers were not hazard
trained. He confirmed that the truck numbers were used to
determine whether a driver had been trained, and that in the
event a different driver were used on a truck which had a number
indicating that another driver had been trained, he had no way of
knowing that the new driver had in fact received training (Tr.
377). He conceded that while he had no control over which truck
drivers the contractors were using, he was responsible for
training the drivers that came to the site to dump at the coal
pile (Tr. 378). He also confirmed that he had no reason to
believe that Mr. Parks would be less than honest when he
testified about a prior meeting when the trucks were discussed,
but reiterated that he had no recollection of any such meeting
(Tr. 378).
Mr. Lyon stated that it was his understanding of MSHA's
training regulations that truck drivers delivering coal to the
plant would not have to receive annual or task training under the
definition of "miner" found in section 48.22(a)(1), but would
have to be hazard trained under the definition found in section
48.22(a)(2). He confirmed that Mr. Leppla was not involved in any
hazard training prior to the time of the accident. He also
confirmed his understanding that each contractor truck driver had
a different truck number and he was not aware that there could be
more than two drivers with the same number (Tr. 392).
Mr. Lyon confirmed that for almost 2 years after the plant
started in operation, until he was first informed by MSHA that he
needed a training program, coal haulers were delivering coal to
the plant but nothing was done to train them (Tr. 395). He
confirmed that at the time of the tipping incident in February,
1988, it did not occur to him to address the matter of truck
clearance, but that after the accident of December 2, 1988,
"everyone then said we had better separate the trucks" (Tr. 397).
He confirmed that he abated the unwarrantable failure violations
concerning the untrained drivers by reviewing the checklist with
them, and discussing each of the items listed, so that they were
aware of any problems they could encounter while at the site (Tr.
398).
Richard T. Shuck, scalehouse operator, testified as to his
duties, including controlling truck traffic at the dump site and
conducting the hazard training of the drivers. He confirmed that
coal is delivered to the plant 3 days a week and that this has
been the normal practice during the 4 years that he has worked as
the scalehouse operator. He estimated that there are 200 trucks a
day delivering coal to the plant, and that there are 50 to 60
drivers engaged in this work. He described the procedures for the
delivery and dumping of the coal, and stated that four trucks
Page 29
~666
are permitted to dump at the pile during each dumping cycle which
he controls. He confirmed that these procedures were in effect at
the time of the accident, and that he never received any
complaints from the drivers about these procedures (Tr. 399-403).
He stated that there are "peak hours" for dumping, and that there
are many times when there are less than four trucks in the
dumping area (Tr. 404).
Mr. Shuck confirmed that he was involved in the training of
the coal haulers, and that beginning in 1988 Mr. Lyon instructed
him to hazard train all drivers coming to the dump site, and that
he trained them by reviewing the hazard checklist items with the
drivers. Mr. Lyon also provided him with a spiral notebook which
contained the list, and the drivers signed their names in the
book after they were trained indicating that they understood the
items on the list (Tr. 409, exhibit C-3). He confirmed that the
names in the log book reflect the drivers who were trained during
1988 up until December 2, 1988. He did not believe that checklist
item #6 pertained to coal haulers or to the possibility of a
truck tipping over at the dump site (Tr. 410). He confirmed that
he reviewed every listed item with the drivers, emphasizing those
which were underscored. He confirmed that Mr. Lyon instructed him
to train all drivers without exception (Tr. 411).
Mr. Shuck explained that each driver who was trained signed
the log book and wrote in his truck number, and he determined who
had been trained and not trained by the truck number that is
placed on their "scale ticket." It was his understanding that the
truck number stayed with the driver, and that prior to the
accident he was not aware that different truckers were using the
same number (Tr. 413). He was not aware that he had missed some
of the drivers and never told anyone that he could not keep up
with the training of the drivers. He stated that he first learned
that some of the drivers had not been trained after the accident
occurred, and that prior to that time he had trained
approximately 80 drivers (Tr. 414). He believed that Mr. Hina had
been hazard trained "because when I went through the list the
truck number was next to what I thought was his name. I didn't
know any different until after the accident. I thought that was
the man's name" (Tr. 414). He learned after the accident that
Ross Brothers was switching drivers on a given truck number (Tr.
415). He confirmed that he was aware of only one truck tipping
over prior to the accident, and that it was his understanding
that a broken scope pin caused it to tip over. He was not aware
of any three truck dumping cycle which was implemented after this
prior incident, and was aware of no recommendations in this
regard by the safety committee (Tr. 416).
Mr. Shuck stated that approximately half of the drivers who
haul coal to the plant stay in their trucks because they can
raise and lower the truck bed from their cabs, and that prior to
Page 30
~667
the accident he saw no MSHA inspectors inspecting the haulage
trucks, but has seen them do so after the accident (Tr. 416).
On cross-examination, Mr. Shuck confirmed that he never
asked the truck drivers about their knowledge of the safe
operation of their vehicles, and that since he stayed in the
scalehouse the trucks may have been inspected by MSHA prior to
the accident without his knowledge (Tr. 418). He conceded that
his job does not require him to attend union and company safety
meetings, and that he would not have necessarily been present if
any meetings were held to discuss limiting the number of trucks
at the coal dumping site (Tr. 419). He explained his procedures
for controlling the truck traffic at the dumping site. He
confirmed that the hazard training program was controlled by the
number on the truck which was displayed on the passenger side
front window where he could see it. He also indicated that the
majority of the drivers would inform him of their numbers over
their C.B. radios, but they were still required to have a number
in their window (Tr. 420-423). He would rely on his memory,
visual recognition of the driver, or the log to determine which
drivers were hazard trained. The drivers would call him on the
C.B. radio if they did not have the training, and he would train
them (Tr. 424). He conceded that if he saw the truck number and
the contractor had used another driver without removing the
number, he would have no way of knowing that there was a new
driver, and that it was possible for a driver to use a number
even though he had not been trained (Tr. 424-425). Other than
making inquiries of the drivers as to whether they had been
trained, he had no method for safeguarding against new drivers
using other numbers (Tr. 425).
Mr. Shuck stated that there may be 30 or 40 trucks in line
on any given day waiting to dump their loads, and while they are
waiting he makes inquiries over the C.B. radio as to whether or
not the drivers have received training. He confirmed that he
still follows this same procedure, and that some drivers have
lied to him about their training (Tr. 437). He identified a
photograph of Mr. Fortney's truck with a placard on the
windshield with the number 555, and although he could not recall
seeing the number on the day of the accident, he stated that Mr.
Fortney would have given him the number over the C.B. radio (Tr.
435). In response to a statement that Mr. Fortney obviously got
by without being hazard trained, Mr. Shuck responded "more than
one, but I honestly believed that I had every one of them" (Tr.
435). Mr. Shuck stated that driver Tom Clark, who had number 576
listed in the log, left it in his truck, and Mr. Hina drove the
truck with Mr. Clark's number (Tr. 450).
Inspector Grissett was recalled and he confirmed that he had
previously observed the dumping operations at the coal pile with
Mr. Lyon but saw nothing wrong or hazardous. He also stated that
he never observed Mr. Lyon reprimand any driver or employee while
Page 31
~668
he was present (Tr. 453). Mr. Grissett further confirmed that the
first time he discussed the December 2, 1988, accident with Mr.
Parks was within the past month, and he did not speak with him
during his investigation or prior to issuing the citations and
orders. He stated that he went to the mine within the past month
to speak with Mr. Parks and some of the safety committee members
in preparation for the hearing in these proceedings (Tr.
453-458). He confirmed that he is aware of no other citations
ever being issued in his district citing an operator because coal
trucks were too close together while dumping coal (Tr. 463).
James F. Myer was called in rebuttal by MSHA, and he
confirmed that he is an education and training specialist and not
an inspector, and that he is not authorized to issue citations or
orders. He identified exhibit MX-33 as part of Conesville's
training program but denied that he drafted it (Tr. 468). He
explained that MSHA drafted a generic training plan for operators
to use, and that Conesville's plan is the same as the MSHA
generic plan. He confirmed that the last two pages of the plan
deal with hazard training, and that Conesville had the option of
developing its own plan or using the one developed by MSHA (Tr.
470). He believed that item #6 on the hazard checklist which
states "stay clear of all raised equipment (dozer blades,
front-end loader buckets, etc)," applies to trucks dumping coal
and that drivers are required to stay at a clear enough distance
so that if a truck tips over it will not strike another truck or
driver. In his view "the statement is broad and it has an et.
cetera in there which you can include a lot of things" (Tr. 478).
When reminded that item #6 on the hazard checklist is not
underscored or emphasized by Conesville because it does not
believe that it applies to coal haulage drivers, Mr. Myers agreed
that this may "possibly" be a difference of opinion (Tr. 479).
On cross-examination, Mr. Myer confirmed that he provided
Mr. Lyon with an MSHA generic training program which is the same
as the one which was approved for Conesville. He also confirmed
that the hazard training checklist, with the 20 listed items, was
part of the plan which he provided to Mr. Lyon, and when asked
whether he suggested any modifications to the checklist, Mr. Myer
stated "I told most people that this is what you have to do to
comply with the regulations" (Tr. 480). He stated that Conesville
had an approved hazard training program in effect at the time of
the accident, and that the training citations were based on its
failure to train certain drivers rather than any inadequate
content of the training program (Tr. 489). He confirmed that
Conesville was recently commended by MSHA for 600 work days
without a lost time accident and that he signed the certificate
and also indicated to Conesville at a recent training program
that its preparation plant was one of the safest facilities in
Ohio (Tr. 490).
Page 32
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Findings and Conclusions
Docket No. LAKE 89-30-R
Section 104(a) "S&S" Citation No. 2950068, December 5, 1988,
30 C.F.R. 77.1600(c)
In this case, the inspector cited Conesville with an alleged
violation of mandatory safety standard 30 C.F.R. 77.1600(c),
for failing to insure that adequate side clearances were provided
between the trucks dumping coal at the cited raw coal dumping
location. Section 77.1600(c), provides as follows:
(c) where side or overhead clearances on any
haulage road or at any loading or dumping location at
the mine are hazardous to mine workers, such areas
shall be conspicuously marked and warning devices shall
be installed when necessary to insure the safety of the
workers.
The inspector's interpretation of section 77.1600(c), is
that it required Conesville to "provide adequate and safe side
clearance on raised equipment" (Tr. 185). He believed that
Conesville was required to insure that adequate clearances are
maintained between the trucks when they are dumping so that in
the event one should tip over, it would not strike another truck
(Tr. 218). He would require Conesville to increase the spacing
between the trucks or to enlarge its dumping area so as to
provide ample spacing between trucks (Tr. 218). He confirmed that
he issued the violation because Conesville had no established
dumping guidelines or procedures, and had no clearly defined
designated dumping areas which would provide safe side clearances
between the trucks (Tr. 185). MSHA has suggested that Conesville
should have used designated dumping lanes marked off with traffic
cones, or used a flagman or other employee to direct and control
truck traffic at the dumping location.
It seems clear to me from the inspector's testimony that he
believed a dumping hazard would exist only when trucks dumping
coal were close enough that one truck could possibly tip over and
come in contact with another truck. In the inspector's view an
"adequate" spacing distance between trucks to prevent such an
occurrence would be "in the neighborhood of 40 to 50 feet" (Tr.
212). Although the standard, on its face, only requires the
posting of warnings where side or overhead clearances pose
hazards to miners, the inspector indicated that the posting of a
warning sign stating "warning, possible side clearance hazard if
truck topples" would "not be adequate at all" to satisfy the
requirements of the standard (Tr. 214).
With respect to the physical aspects of the cited dumping
location, the inspector confirmed that in the absence of trucks,
Page 33
~670
there were no inherent side or overhead clearance hazards
presented at the dumping facility (Tr. 221). Although he
indicated that exposed coal hoppers would always present a
hazard, he confirmed that the citation was not based on the
existence of hoppers. He confirmed that Conesville had hopper
warning signs posted at the dumping pile, and that in the event
any of the hoppers are exposed, Conesville takes appropriate
action by flagging the area so that the truck drivers can see
them (Tr. 221).
The inspector stated that compared to the other mines which
he inspects, which have much smaller dumping areas, Conesville's
operation is unique in that large volumes of coal are dumped at
the site, resulting in a high volume of truck traffic as compared
to the other smaller dumping operations (Tr. 464-465). When asked
what he would have done if he had observed a truck parked 15 feet
from another truck which was dumping, the inspector indicated
that he would talk to the drivers, and then decide what action to
take (Tr. 463).
Although MSHA's standards for dumping facilities found in
section 77.1608, contain several requirements to insure adequate
protection at such locations, they do not include any information
or requirements for maintaining any kind of spacing between
trucks while they are dumping. The inspector confirmed that he
discussed the citation with his supervisor, and after reviewing
the standards applicable to dumping facilities, they found they
did not apply and decided to cite section 77.1600, the general
loading and haulage standards (Tr. 464-465). In this regard, when
referring to the absence of any guidance in section 77.1600, the
inspector commented "I do wish there were more regulations in
that" (Tr. 466).
Conesville argues that the incongruity of MSHA's
interpretation of the standard is underscored by the fact that
the alleged hazard and violation is entirely dependent upon the
location of the coal trucks utilizing the coal dumping area, and
in essence presents a situation where there is a "moving"
violation which occurs only when two coal trucks happen to be in
such proximity (less than 40 or 50 feet apart according to the
inspector) that one could come in contact with the other should
it tip and fall during the dumping process. Under these
circumstances, Conesville asserts that whether or not there is a
violation of section 77.1600(c) could, and will, vary from day to
day, hour to hour, or even minute to minute without any physical
change in the dumping area.
Conesville argues that the plain language of section
77.1600(c), only requires that the purportedly hazardous
clearance be "conspicuously marked" and that warning devices be
installed "when necessary," and does not require Conesville to
provide adequate and safe side clearance on raised equipment.
Page 34
~671
Further, in light of the fact that the inspector confirmed that a
warning sign or device at the dumping area would not be enough to
comply with section 77.1600(c), Conesville maintains that the
inspector not only extended this standard to a factual scenario
never envisioned by its drafters, but has also imposed on
Conesville an affirmative duty that is clearly beyond any
obligation imposed by the standard.
Conesville argues that the inspector's interpretation and
application of section 77.1600(c), is an impermissible expansion
of the plain meaning of the standard, and that the application of
the standard to the facts presented fails to give fair warning
that the allegedly violative conduct was prohibited. In support
of its argument, Conesville cites Phelps Dodge Corp v. FMSHRC,
681 F.2d 1189, 1192 (9th Cir. 1982); Ideal Cement Co., 11 FMSHRC
1776, 1783-1784 (September 1989). Further, citing Diamond Roofing
Co., Inc. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976); Ideal
Cement Co., supra, 11 FMSHRC at 1783; and American Fed. of Govt.
Employees v. FLRA, 593 F. Supp. 1203 n. 15 (D.D.C. 1984),
Conesville further argues that a regulation which subjects a
party to civil sanctions cannot be construed to mean what an
agency intended but did not adequately express, and that a safety
regulation must provide a reasonably clear standard of
culpability to circumscribe the discretion of the enforcing
authority and its agents.
With regard to the deference to be accorded an agency's
interpretation of a mandatory safety standard, Conesville asserts
that the court is required to give effect to the actual words and
objective meaning of the regulations and is not bound by the
agency's "hidden intentions and idiosyncratic interpretations,"
and cites the Commission's decision in Western Fuels-Utah, Inc.,
11 FMSHRC 278, 284 (March 1989), where the Commission stated as
follows:
While the Secretary's interpretation of her regulations
are entitled to weight, that deference is not limitless
and the Secretary's interpretations are not without
bounds. Deference is not required when the Secretary's
interpretations are plainly erroneous or inconsistent
with the regulations. See Udall v. Tallman,
380 U.S. 1, 16-17 (1965) (quoting Bowles v. Seminole
Rock Co., 325 U.S. 410, 413-414 (1945)). . . . The Mine
Act does not contemplate that the Commission merely
"rubber-stamp" the Secretary's interpretations without
evaluating the reasonableness of those interpretations
and their fidelity to the words of the regulations.
MSHA takes the position that it has established that
Conesville's failure to maintain adequate truck side clearances
at the raw coal pile created a hazardous condition and
constitutes a violation of section 77.1600(c). In support of this
Page 35
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conclusion, MSHA argues that the evidence clearly establishes
that despite the fact that a truck had tipped over at the dumping
location 10 months earlier, Conesville did not use designated
dumping lanes, did not mark off the lanes with traffic cones, did
not use a flagman or other employee to direct or control traffic,
and did nothing to assure that trucks dumped with safe distances
between them.
The record reflects that the citation issued by Inspector
Grissett was the first of its kind that he or any other inspector
in his district had ever issued for a violation of section
77.1600(c), for failure to insure adequate side clearance between
trucks. The failure by an inspector to issue any citation during
prior inspections does not estop him from issuing a citation
during any subsequent inspections. See: Midwest Minerals Coal
Company, Inc., 3 FMSHRC 1417 (January 1981); Missouri Gravel Co.,
3 FMSHRC 1465 (June 1981); Servtex Materials Company, 5 FMSHRC
1359 (July 1983); Emery Mining Corporation, 5 FMSHRC 1400 (August
1983), aff'd by the 10th Circuit Court of Appeals, 3 MSHC 1585.
However, an inspector's issuance of a citation, such as the one
in this case, is subject to scrutiny to determine whether or not,
as argued by Conesville, the inspector's interpretation and
application of the standard was unreasonable and beyond the scope
and intent of the standard, and whether or not it imposed an
affirmative duty on Conesville beyond that required by the plain
meaning of the standard.
During a colloquy with counsel in the course of the hearing
with respect to the regulatory or legislative intent of section
77.1600(c), MSHA's counsel stated that he could find nothing in
the legislative history to shed any light on the meaning and
intent of the standard, and he confirmed that he was unaware of
any relevant MSHA policy guidelines concerning the interpretation
and application of the standard (Tr. 216). In response to my
inquiry as to whether or not truck tipping incidents of the kind
which occurred in this case have been the subject of any MSHA
"accident fatal-grams," the inspector indicated that accidents
have been reported in situations where a truck driver has
traveled over a hill while dumping his load (Tr. 217).
The inspector confirmed that he had previously issued a
citation for a violation of section 77.1600(c), in a situation
where he believed that there was a possibility that a dump truck
would come in contact with a high voltage line when it raised its
bed to dump its load (Tr. 222-223). In Valley Camp Coal Co., 7
FMSHRC 1197 (August 1985), I affirmed a violation of section
77.1600(c) after finding that the operator failed to
conspicuously mark or install a warning device at a haulage
roadway location where the roadway was reduced from 25 feet to 14
feet. I concluded that the narrowing of the roadway by nearly 11
feet presented a clearance hazard and that a warning sign or
device should have posted to alert a driver of the clearance
hazard. In
Page 36
~673
situations of this kind where there is a clearly definable side
or overhead clearance hazard, such as a narrowed roadway, an
overhead high voltage line in close proximity to a truck when its
bed is raised, or an inherent truck over-travel hazard, such as
an unprotected embankment or hill at a dumping location, I do not
find it unreasonable to require an operator to post a sign or
warning device warning truck drivers of the hazard. Indeed, the
standard on its face requires no less, but I take note of the
fact that it only requires the posting of such warning devices.
On the facts of this case, it seems clear to me that
Conesville is not charged with a failure to post a warning sign
or other device. As a matter of fact, the inspector clearly
indicated that he would not accept a warning sign as compliance,
even if it warned of the specific hazard of two trucks possibly
colliding if one were to tip over while dumping. The inspector
believed that the standard required Conesville to physically
separate the trucks for a distance of 40 to 50 feet, to insure
against any contact should one truck tip over, or to provide
designated dumping lanes to insure that the trucks are far enough
apart in the event of a tipping incident of the kind which
occurred in this case. The inspector also suggested that the
enlargement of the dumping area would have provided ample room
between the trucks while they were dumping, and in its
posthearing brief, MSHA suggested that Conesville should have
provided a flagman or another employee to direct and control
traffic when the trucks were dumping. Although I cannot conclude
that all of these "suggestions" for compliance are unreasonable,
the fact is that the plain wording of the standard does not
require them. In my view, if MSHA believes that something more
than the posting of warning signs is required in situations where
side or overhead clearances at any dumping location present a
hazard, it should promulgate a standard to clearly and directly
address not only the perceived hazard, but also the duty imposed
on the mine operator for compliance.
The record in this case reflects that Mr. Fortney's truck
tipped over because of an imbalance caused by frozen coal which
remained in the raised truck bed after the coal was dumped from
the truck. Unlike other drivers who were aware of such a hazard
and used anti-freeze or diesel fuel to line their truck beds, Mr.
Fortney did not take such measures to guard against frozen coal
in the truck bed of his truck. The record also reflects that the
prior truck tipping incident occurred when the rear wheel sank
into the mud and the truck tipped over. The incident was not
reported because no one was injured. Some of the drivers who
testified in this case alluded to the fact that they always seek
out a level spot while dumping, particularly where the ground is
wet and muddy, to avoid possible tipping accidents due to adverse
ground conditions.
Page 37
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Although I find some merit in Conesville's argument that the
standard is intended to apply in situations where the inherent
physical characteristics of a dumping location present a
reasonable likelihood of side clearance hazards, and that in the
absence of any trucks, the inspector found no inherent hazards
with the dumping location, the fact remains that potential
tipping hazards do exist in the event a truck should experience a
mechanical breakdown, or a driver fails to insure against frozen
coal in his raised truck bed, or happens to back over uneven or
soft or wet ground while dumping his load. Under these
circumstances, I believe the standard is broad enough to cover
trucks which may be dumping coal at a dumping location, and which
are close enough to place them in jeopardy of being struck by a
tipping truck if adequate side clearances are not maintained.
However, I do not believe that the standard, as promulgated,
requires, or imposes a duty on a mine operator, to do anything
other than post a warning sign or other warning device. On the
facts of this case, I agree with Conesville's position that the
inspector's interpretation and application of section 77.1600(c),
which he believed required it to do more than what was required
by the clear wording of the standard, was clearly beyond any
reasonable interpretation and application of the standard and was
erroneous and arbitrary. Under the circumstances, I conclude and
find that MSHA has failed to establish a violation, and the
contested citation IS VACATED.
Docket No. LAKE 89-29-R
Imminent Danger Order No. 2950067, December 5, 1988
Inspector Grissett issued the imminent danger order after
finding that Conesville "did not insure that adequate side
clearance was provided at the raw coal pile dumping location."
The order reflects that a coal truck leased to independent
contractor Ross Brothers, Inc., overturned while dumping coal,
and that the bed of the truck fell on the cab of another truck,
also leased to Ross Brothers, Inc., and which was parked, causing
fatal injuries to the driver in the parked truck. The inspector
also noted that another truck had overturned at the same dumping
location on February 26, 1988.
Conesville argues that since it did not violate section
77.1600(c), the imminent danger order based on the alleged
violation is improper. In addition, Conesville asserts that prior
to December 5, 1988, MSHA had never issued an imminent danger at
the coal dumping area in question even though Inspector Grissett
had previously inspected the facility, two times a year,
including a regular inspection from September 20, 1988 to
September 28, 1988, and confirmed that he never saw anything
wrong or hazardous with the way the trucks were dumping.
Page 38
~675
Conesville concludes that any objective assessment of the alleged
"condition" or "practice" precludes a determination that it could
reasonably be expected to cause death or serious physical harm
before it could be abated. Conesville maintains that the
inspector believed an imminent danger existed not because of any
physical hazard with respect to the dumping area, but only
because Conesville did not require that trucks maintain a
specific minimum side clearance between their respective
vehicles. Conesville points out that the dumping area was an area
250 feet in width, that no more than four trucks were permitted
to dump in that area at one time, and that on many occasions
there were less than four trucks in the dumping area. In
addition, one of the truck drivers, Norman Fortney, testified
that the coal haulers typically tried to leave 40 to 50 feet
between their trucks when dumping. Conesville also points out
that although the mine safety committee had the right to declare
the dumping area an "imminent danger," and to withdraw miners, it
has never done so.
Conesville further points out that prior to December 2,
1988, there had been one incident in 4 years in which a truck
tipped at the dumping area in question. This incident was due to
an unforeseen mechanical malfunction of the vehicle, and it did
not strike any other vehicle or result in any injuries. Further,
the December 2, 1988, incident was due to frozen coal remaining
in the bed of Mr. Fortney's trailer. However, this hazard was
well known by coal haulers and precautions were generally taken
to guard against such a hazard. Under the circumstances,
Conesville asserts that the incident of December 2, 1988, was a
freak accident precipitated by the fact that Mr. Fortney, unlike
the other truck drivers who testified in these proceedings, did
not use diesel fuel or anti-freeze for his trailer.
Conesville argues that the inspector's perception of an
imminent danger was not based on any inherently dangerous
condition or practice at the dumping pile, but only on a
perceived hazard ultimately relating to two most unlikely
events-mechanical malfunction and/or frozen coal-which would
cause a coal truck to tip. Given the freak nature of the
accident, the physical characteristics of the dumping area, and
the precautions taken by the coal haulers to prevent tipping,
Conesville concludes that the inspector's opinion should not be
taken at face value and it does not indicate a condition or
practice which could reasonably be expected to cause death or
serious physical harm before it could be abated.
Citing Judge Morris' decision in Ideal Cement Co., 11 FMSHRC
1783 (September 1989), Conesville maintains that contrary to the
inspector's interpretation of an imminent danger, the occurrence
of a fatality is not synonymous with an imminent danger, and that
Page 39
~676
such an occurrence does not prove a violation of the cited
standard. In the Ideal Cement Co. case, Judge Morris stated as
follows:
A fatality in a case, in and of itself, does not
by its mere occurrence prove a violation of the regula-
ion, Lone Star Industries, Inc., 3 FMSHRC 2526, 2529,
2530 (1981); Texas Industries, Incorporated, 4 FMSHRC
352 (1982).
The law is clear that a safety regulation that
imposes civil penalties for its violation must give an
employer fair warning of the conduct it prohibits or
requires and must further provide a reasonably clear
standard of culpability to circumscribe the discretion
of the enforcing authority and its agents.
MSHA takes the position that during his accident
investigation, the inspector determined that Conesville "had a
very haphazard system for the delivery and dumping of coal." MSHA
asserts that after a truck had its coal load weighed at the
scalehouse, the driver would then try to find an open spot at the
coal pile to dump his load, and Conesville never controlled how
the drivers spaced their trucks while dumping coal. MSHA points
out that Conesville had no designated traffic lanes or traffic
cones marking out lanes, and had no flagman or any employee
directing traffic to control the spacing of trucks prior to the
accident.
MSHA further points out that a prior tipping incident had
occurred 10 months earlier on February 26, 1988, and that the
pile was closed by a section 103(k) order issued by the inspector
on December 2, 1988. In view of the fact that this order
terminated when the accident investigation was completed on
December 5, 1988, and Conesville could continue the condition or
practice of dumping without any traffic controls in place, MSHA
concludes that the inspector had no choice other than to issue an
imminent danger order.
MSHA asserts that Conesville had permitted a dangerous
practice to exist by allowing coal trucks to dump without taking
any measures to assure adequate side clearance. The trucks were
within 10 feet of each other, "a common practice," even though
the extended trailer of one cab was 17 feet. Since Conesville
showed no effort to correct the condition after the prior tipping
incident, MSHA concludes that the inspector could not be
reasonably assured that the condition would be abated before
another serious accident occurred. Under the circumstances, MSHA
further concludes that the inspector provided a cogent and
compelling rationale for issuing the order, and the facts
presented support and meet the legal standard for the issuance of
the order.
Page 40
~677
Section 3(j) of the Mine Act, 30 U.S.C. 802(j), defines an
"imminent danger" as "the existence of any condition or practice
in a coal or other mine which could reasonable be expected to
cause death or serious physical harm before such condition or
practice can be abated."
In Rochester & Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159, 2163 (November 1989), the Commission
adopted the position of the Fourth and Seventh Circuits in
Eastern Associated Coal Corporation v. Interior Board of Mine
Operation Appeals, 491 F.2d 277, 278 (4th Cir. 1974), and Old Ben
Coal Corp. v. Interior Board of Mine Operation Appeals, 523 F.2d
25, 33 (7th Cir. 1975), holding that "an imminent danger exists
when the condition or practice observed could reasonably be
expected to cause death or serious physical harm if normal mining
operations were permitted to proceed in the area before the
dangerous condition is eliminated." In the Old Ben Corp. case,
the court stated as follows at 523 F.2d at 31:
Clearly, the inspector is in a precarious posi-
tion. He is entrusted with the safety of miners'
lives, and he must ensure that the statute is enforced
for the protection of these lives. His total concern
is the safety of life and limb . . . . We must support
the findings and the decisions of the inspector unless
there is evidence that he has abused his discretion or
authority. (Emphasis added).
The Commission stated as follows at 11 FMSHRC 2164:
In addition, R&P's focus on the relative likeli-
hood of Coy being injured while under the moving belt
ignores the admonition in the Senate Committee Report
for the Mine Act that an imminent danger is not to be
defined "in terms of a percentage of probability that
an accident will happen." S. Rep. No. 181, 95th Cong.,
1st Sess. 38 (1977), reprinted in Senate Subcommittee
on Labor of the Committee on Human Resources,
95th Cong., 2nd Sess, Legislative History of the
Federal Mine Safety and Health Act of 1977 at 626
(1978). Instead, the focus is on the "potential of the
risk to cause serious physical harm at any time." Id.
The Committee stated its intention to give inspectors
"the necessary authority for the taking of action to
remove miners from risk." Id.
The fact that a section 103(k) order affectively closes the
scene of an accident, or miners are withdrawn from the work site,
does not affect the validity of an imminent danger order issued
pursuant to section 107(a) of the Act. See: Itmann Coal Company,
1 FMSHRC 1573, 1577 (October 1979). Further, the validity of an
imminent danger order is not dependent on whether or
Page 41
~678
not a violation of any mandatory safety standard has occurred.
Conesville's arguments to the contrary are rejected. While it is
true that the inspector believed that Conesville's "ongoing and
continuing" violation of section 77.1600(c), created the imminent
danger (Tr. 209), the thrust of MSHA's case is its contention
that the absence of any established procedures instituted by
Conesville to insure that truck drivers maintained safe distances
between their trucks, coupled with the practice of drivers being
permitted to dump their coal loads without any spacing controls
to preclude one truck striking another truck if it were to
overturn or tip over, presented an imminently dangerous situation
at Conesville's dumping location.
MSHA's accident report in this case reflects that the trucks
involved in the accident were 10 feet apart when Mr. Fortney's
truck tipped over on top of the cab of Mr. Hina's truck. Mr.
Fortney's truck was 30 feet long, and the truck bed was raised
for a vertical distance of 17 feet at the location of the bed
hoist at the time it tipped over. Inspector Grissett testified
that during his prior inspection visits to the dumping location
he never observed any trucks as close as 10 to 15 feet to each
other and that they were always spaced further apart. He also
confirmed that he never previously observed anything wrong or
hazardous in the manner in which the trucks were dumping, and
that if he did, he would have issued a violation (Tr. 453, 462).
In my view, given the great number of trips made by truckers on
any given day over a protracted period of time to the dumping
location in question, the fact that the inspector found no
hazardous conditions present during two prior inspection visits
does not preclude a finding of imminent danger based on an
otherwise established practice of drivers dumping their coal
loads precariously close to each other.
Conesville's former safety director testified that prior to
the accident there were no truck spacing controls in effect at
the dumping location and each driver used his own discretion in
determining the "safe" distances for backing up and dumping their
loads. Truck drivers St. Clair and Lent testified that they
received no hazard training from Conesville, and were never
instructed as to the methods and procedures to follow while
dumping their loads at the dumping location in question. The
driver of the truck which tipped over and struck Mr. Hina's truck
(Norman Fortney), testified that while there were occasions when
he observed trucks spaced 40 to 50 feet apart while dumping,
during a period of approximately 200 deliveries to the Conesville
facility, the trucks were usually spaced 10 to 12 feet apart. Mr.
Fortney confirmed that prior to the accident, there was no fixed
truck spacing requirements while coal was being dumped, that he
never received any dumping instructions from the scalemaster, and
that the drivers used their own discretion in determining a safe
location to dump.
Page 42
~679
Conesville's scalemaster Shuck, who had never operated a coal
truck or backed one up to a dumping location, testified that
during peak dumping hours, 50 to 60 trucks a day come to the site
to dump coal, and although only four trucks are allowed in the
dumping area at any given time, and 30 or 40 were waiting in
line, he did not continually monitor or visually observe the
dumping process. He confirmed that once the drivers left the
scalehouse, they were "basically on their own" while backing up
and finding a place to dump their loads (Tr. 422, 436).
Although Conesville's witnesses believed that the prior
truck tipping incident of February, 1988, was caused by a broken
truck telescope pin, the driver of the truck, James Stull,
testified that the truck tipped over when the right rear wheel
sunk into the mud. He confirmed that the telescope broke after
the truck tipped over, and that the truck fell for a distance of
30 feet. Mr. Stull testified that while he was hazard trained
after the accident occurred, he had not previously been
instructed by Conesville as to how he should dump his coal loads.
Although Conesville's assertions that mechanical truck
malfunctions and frozen coal are "unlikely events" which would
cause a truck to tip over may be true, the fact is that these are
the types of hazards which are readily recognizable and known,
and which have in fact occurred at Conesville's dumping location.
Indeed, Inspector Grissett confirmed that even after abatement
and the institution of the dumping lane system, there were two
additional incidents of truck upsetting because of mechanical
failures. Conesville's plant manager Miller testified that he was
aware of another truck tipping incident after the accident in
question. Given the fact that truck tipping incidents per se are
not required to be reported to MSHA unless there is an injury, it
is altogether possible that other such incidents have occurred
and were not reported. As noted earlier, driver Stull confirmed
that his truck tipped over because of adverse ground conditions
and that he was "lucky" that another truck was not positioned to
his right side when he tipped, and if it had "somebody would have
got it" (Tr. 123). Mr. Stull testified that he had observed
trucks closer than 10 to 12 feet of each other while dumping at
the site, and that when his truck tipped over, it covered a
distance of approximately 30 feet (Tr. 123, 126).
After careful review and consideration of all of the
testimony and evidence adduced in this case, I conclude and find
that MSHA has established by a preponderance of the evidence that
Conesville had no effective means or controls in place to insure
that safe and adequate truck spacing distances were maintained
while the trucks were permitted to dump their loads at its
dumping location. I also conclude and find that Conesville's lack
of truck spacing controls, and permitting the drivers to dump at
their own discretion, without regard to the potential hazards
presented in the event a truck tipped over, constituted an unsafe
Page 43
~680
and hazardous practice which exposed the drivers to the potential
risk or serious injury at any time in the normal course of their
work of dumping coal. I further conclude and find that in the
absence of the imminent danger order, this practice would have
continued and could reasonably have resulted in further serious
or fatal injuries. Under the circumstances, I believe that the
inspector acted reasonably in issuing the order and that his
decision in this regard was justified. Accordingly, the contested
imminent danger order IS AFFIRMED.
Docket No. LAKE 89-31-R. Section 104(d)(1) "S&S" Citation
No. 2950069, December 5, 1988. 30 C.F.R. 48.31(a).
Docket No. LAKE 89-32-R. Section 104(d)(1) "S&S" Order No.
2950070, December 5, 1988. 30 C.F.R. 48.31(a).
In these cases, Conesville is charged with a failure to
provide hazard training for the two contract coal truck drivers
who were involved in the accident of December 2, 1988, as well as
four additional contract drivers. The inspector issued the
violations after determining that there were no entries in the
hazard training log book maintained by Conesville at the mine to
confirm that the cited drivers had received hazard training as
required by section 48.31(a). The record reflects that the
accident victim (Dale Hina) was an employee of Cox Farms, and had
been contracted to Ross Brothers, Inc., to haul coal to the
Conesville preparation plant, and that the other driver involved
in the accident (Norman Fortney), was the owner of the truck
which tipped over and that he had contracted his truck to Ross
Brothers, Inc. to haul coal to the plant. The other four cited
drivers were employees of Ross Brothers, Inc., and they too
hauled coal to the plant.
The cited training standard section 48.31(a), provides as
follows:
Operators shall provide to those miners, as
defined in 48.22(a)(2) (Definition of miner) of this
subpart B, a training program before such miners
commence their work duties. This training program
shall include the following instruction, which is
applicable to the duties of such miners:
(1) Hazard recognition and avoidance;
(2) Emergency and evacuation procedures;
(3) Health and safety standards, safety rules and
safe working procedures;
(4) Self-rescue and respiratory devices; and,
Page 44
~681
(5) Such other instruction as may be required by
the District Manager based on circumstances
and conditions at the mine.
MSHA's section 48.31, policy statements are found in its
Administrative Manual 30 C.F.R. Part 48-Training and Retraining
of Miners, July 1, 1985 (Exhibit M.X.-31), and they state as
follows:
The exposure to mining hazards varies according to
task. The greater the hazard exposure, the greater the
need for training.
Hazard training should be:
1. Mine specific, so that persons are advised of the
hazards they may encounter at a particular mine; and
2. Conducted each time a person enters a different
mine.
Section 48.31 requires operators to give hazard
training to persons who are exposed to mine hazards.
For example, a person driving a vehicle onto mine
property to pick up a load of material who remains in
the vehicle at all times would ordinarily not be
exposed to hazards peculiar to the mine, and conse-
quently would not be required to receive training under
Part 48.
* * * * * * *
Although the amount of required hazard training
will vary, the following are examples of appropriate
hazard training:
Pickup and Delivery Drivers
1. Persons coming onto mine sites to pick up
mined materials or to deliver supplies and who remain
inside their vehicles need not be given training. If
they leave their vehicles they must be given hazard
training.
The definition for miners who are required to be trained
under 30 C.F.R. 48.31(a) is set forth in 30 C.F.R.
48.22(a)(2) which states as follows:
Miner means, for purposes of 48.31 (Hazard
training) of this Subpart B, any person working in a
surface mine or surface areas of an underground mine
Page 45
~682
excluding persons covered under paragraph (a)(1) of
this section and Subpart C of this part and supervisory
personnel subject to MSHA approved state certification
requirements. This definition includes any delivery,
office, or scientific worker, or occasional, short-term
maintenance or service worker contracted by the oper-
ator, and any student engaged in academic projects
involving his or her extended presence at the mine.
(Emphasis Added).
MSHA's section 48.22(a)(2), policy statements as found in
the manual provides as follows:
For purposes of hazard training (Section 48.31) a
"miner" is a person who is exposed to mine hazards for
a short time (five or less consecutive working days)
and who will not be exposed to these hazards on a
regular basis. Regular exposure is a recognizable
pattern of exposure on a recurring basis.
The required training should be commensurate with
the expected exposure to hazards.
Conesville argues that it is not disputed that at the time
of the accident of December 2, 1988, it had an MSHA approved
training program in effect and that the citation and order were
premised solely on its failure to hazard train the cited drivers,
and not on any deficiencies in its hazard training program. In
support of this conclusion, Conesville cites the testimony of
Inspector Grissett who confirmed that Conesville had an approved
hazard training program, that he found no problem with the
training checklist that was used to hazard train the truck
drivers, and that Conesville simply "missed some of the drivers
when it came to hazard training" (Tr. 281-282).
Conesville asserts that in compliance with MSHA's
instructions, it commenced the hazard training of all coal
haulers in January, 1988, and as of December 2, 1988, had hazard
trained more than 80 drivers.
Conesville admits that the names of the cited drivers were
not in the log book which reflected the drivers who had been
hazard trained in 1988. However, it contends that the citation
and order for an alleged violation of section 48.31(a) were
improper because (1) the cited individuals are not "miners"
within the definition found in section 48.22(a)(2), (2)
responsibility for the hazard training lies with Ross Brothers,
Inc., and (3) Conesville was "providing" hazard training as
required by section 48.31(a).
Conesville argues that the testimony of the inspector
establishes that the cited coal haulers in question were
regularly
Page 46
~683
exposed to mine hazards and accordingly fall within the
definition of "miner" found in section 48.22(a)(1). Since they
were exposed to mine hazards on a regular or recurring basis over
an extended period of time, Conesville concludes that this
distinguishes them from those individuals who are within the
definition of "miner" as referenced in section 48.22(a)(2).
Conesville suggests that MSHA's attempts to categorize these
individuals with "office, scientific worker or occasional,
short-term maintenance or service workers" pursuant to section
48.22(a)(2) is incongruous and inconsistent with its own policy
statements which provides that for purposes of hazard training
pursuant to section 48.31, a "miner" is a person "who is exposed
to mine hazards for a short time (five or less consecutive
working days) and who will not be exposed to these hazards on a
regular basis."
Assuming that the cited individuals are found to be "miners"
within the definition found in section 48.22(a)(2), Conesville
argues that Ross Brothers, Inc., should be held accountable and
should be sanctioned for any violation of section 48.31(a).
Conesville points out that despite the fact that Conesville had
no involvement in determining who delivers coal to its facility
and had no contractual relationship with Ross Brothers, Inc.,
that coal is delivered to Conesville's preparation plant by a
half dozen different vendors at the rate of approximately 200
trucks a day, and that approximately 50 to 60 different drivers
deliver coal each day, the inspector placed the onus on
Conesville, rather than the trucking companies, to hazard train
each and every trucker entering the mine premises.
Conesville asserts that even though the inspector confirmed
that Ross Brothers, Inc., is subject to MSHA jurisdiction while
on mine property as an "independent contractor," he issued no
citations or orders to Ross Brothers, Inc., despite their
undisputed failure to provide hazard training to any of the cited
coal haulers. Citing my decision in Harman Mining Corp., 3 FMSHRC
45 (January 1981), review denied (February 1981), Conesville
asserts that rather than issuing withdrawal orders to mine
operators for failure to hazard train trucking company employees,
the more effective sanction, and one which should enhance safety
and further support the underlying purpose of section 48.31(a),
is to cite the trucking company itself that fails to provide
hazard training to its employees or fails to take any affirmative
steps to insure that its employees are in fact hazard trained.
Conesville argues that the more appropriate sanction would
be to cite Ross Brothers, Inc., for failure to hazard train its
employees or insure that they received the hazard training being
provided by Conesville. Conesville suggests that such a result is
necessitated by the fact that it provided hazard training to coal
haulers and had in fact hazard trained more than 80 coal haulers
in 1988. Requiring the trucking company to hazard train
Page 47
~684
or insure the training of its employees would enhance and promote
safety at Conesville, particularly since 50 to 60 coal haulers
deliver coal to that facility each day. Rather than holding
Conesville strictly liable for any coal hauler that happens to
avoid detection by Conesville (and thus avoids hazard training)
an enforcement scheme directed at Ross Brothers, Inc., and other
trucking companies delivering coal to Conesville more fairly
addresses the issue from the standpoint of culpability and
enhances the hazard training of all "miners."
Conesville further argues that assuming the cited coal
haulers are "miners" and that it is responsible for satisfying
the hazard training obligations set forth in section 48.31(a), it
nonetheless provided the training required by section 48.31(a).
Conesville points out that it had an MSHA-approved training
program in place, including a hazard training program, and that
MSHA's concern was not with the content of its training program,
but, rather, that several individuals had not been hazard
trained. Conesville further points out that even though MSHA had
advised it that only those coal haulers exiting their vehicles
need to be hazard trained, (Tr. 349-250), it undertook a program
to train all coal haulers who entered its premises.
Conesville asserts that the fact that several employees
employed or contracted by Ross Brothers, Inc., eluded hazard
training that was made available by Conesville, does not
establish a violation of section 48.31(a), and that MSHA has
failed to prove that it failed to provide such training.
Finally, Conesville takes issue with the inspector's
contention that the failure to hazard train the accident victim
and to advise him to "stay clear of all raised equipment (dozer,
blades, front-end loaders, etc.)" contributed to the accident.
Conesville points out that the particular item from the hazard
training checklist does not advise, and was likely never intended
to advise, coal haulers to "stay clear" --i.e., a 40 to 50 foot
clearance--of other coal trucks unloading coal. Conesville points
out that scalemaster Shuck, the individual providing the training
to most of the coal haulers, testified that this "checklist"
which was provided by MSHA, does not apply to coal haulers, and
that each coal hauler who testified unequivocally indicated their
prior awareness of a tipping hazard associated with coal trucks.
Conesville also emphasizes the fact that the inspector
testified at his deposition and at the hearing that coal haulers
need only be trained as to hazards encountered while out of their
trucks, and that there is no dispute that the accident victim was
in the cab of his truck when it was struck by Mr. Fortney's
trailer. Thus, Conesville concludes that there was no obligation
to hazard train Mr. Hina with respect to this "hazard," and that
any allegation of a causal nexus between the accident and an
Page 48
~685
alleged failure to hazard train Mr. Hina defies reality and is
nothing more than an after-the-fact attempt to find blame and
justify a clearly improper citation and order.
MSHA asserts that there is no dispute that the names of the
cited six truck drivers were not listed in Conesville's training
log book and that they were not hazard trained. MSHA argues that
the controlling definitional regulation for those "miners"
required to be hazard trained is found in section 48.22(a)(2),
which sets forth a listing of workers to be hazard trained,
including "delivery" workers. Since the six cited drivers were
working at Conesville's surface facility by delivering coal to
the raw coal pile, MSHA concludes that they met both the situs
and the occupation requirements set forth in section 48.22(a)(2),
and had to be hazard trained.
MSHA argues that Conesville's reliance on MSHA's policy is
specious. With regard to Conesville's reliance on the policy
distinction of whether drivers get out of their trucks while on
mine property, MSHA points out that Conesville itself drew no
such distinction and that its safety director confirmed that when
Conesville started to hazard train in January 1988, it decided to
train all truck drivers, regardless of whether they got out of
their truck.
MSHA argues that the policy guideline itself does not
relieve Conesville of the duty to hazard train drivers regardless
of whether they got out of their trucks, and that three drivers
testified that they had to get out of their trucks while dumping
at the raw coal pile. MSHA points out that the policy states that
"a person driving a vehicle onto mine property to pick up a load
of material who remains in the vehicle at all times would
ordinarily not be exposed to hazards peculiar to the mine, and
consequently would not be required to receive training under Part
48." However, in the instant case, MSHA asserts that the truck
drivers were exposed to the peculiar hazards at the coal pile
even if they remained in their vehicle, and that the peculiar
hazard was that of Conesville failing to maintain safe and
adequate side clearance for the trucks dumping at the pile. Since
Mr. Hina was fatally injured because of the failure to maintain
an adequate side clearance between his truck and Mr. Fortney's
truck, MSHA concludes that it did not matter whether Mr. Hina got
out of his truck since he was subjected to the peculiar hazard of
raised equipment, to wit, the trailer of Mr. Fortney's truck.
Finally, MSHA argues that MSHA's policy is not law and is
not binding, and that the inspector's duty is to enforce the law,
and not a guideline which is a general policy statement used for
guidance, Brock v. Cathedral Bluffs Shale Oil Co., 4 MSHC 1033 at
1035, 1036 (D.C. Cir. 1986).
Page 49
~686
The definition of "miner" found in section 48.22(a)(1), for
purposes of the comprehensive training requirements of sections
48.23 through 48.30, includes any person working in a surface
mine who is regularly exposed to mine hazards. MSHA's policy
manual guidelines with respect to persons who are regularly
exposed to mine hazards adds the term "frequently" so that the
definition reads "regularly or frequently exposed to mine
hazards" (Policy Manual, pg. 13). The policy further states that
"Regular exposure is a recognizable pattern of exposure on a
recurring basis. Exposure to hazards for more than five
consecutive days is frequent exposure" (Policy Manual, pg. 14).
The policy further states that "If the individual . . . is
infrequently or irregularly exposed to mine hazards, or is
inconsequently exposed to mining hazards, then appropriate
48.11/48.31 hazard training is required."
Inspector Grissett testified that Mr. Hina and Mr. Fortney,
the truckers who were involved in the accident, were exposed to
mine hazards on a daily basis during each of their trips to the
Conesville dumping location. He believed they were exposed to
hazards from the coal hoppers at the dumping pile, and to hazards
from other truck or bulldozer traffic at this location. He also
believed that they were exposed to hazards regardless of whether
they remained in their trucks while dumping coal. He confirmed
that the other cited drivers who came to the facility to deliver
their coal loads did so on a regular basis and were also
regularly exposed to mine hazards.
The record in this case, including MSHA's posthearing
proposed findings of fact, reflects that Mr. Fortney began
delivering coal to the Conesville dumping site in August 1988,
and that between August of 1988 to December 2, 1988, Mr. Fortney
had made approximately 200 coal deliveries, and that during this
time frame it was necessary for him to get out of his truck to
trip his tailgate release. Mr. Fortney testified that he
delivered coal to Conesville on an average of three loads a day,
3 days a week, and that Mr. Hina's delivery schedule was
approximately the same as his (Tr. 39-40).
The record also reflects that truck driver St. Clair had
delivered coal to Conesville for 4-1/2-years prior to December 2,
1988, made approximately 2,000 deliveries, and found it necessary
on occasion to get out of his truck to facilitate the dumping of
coal. Truck driver Lent had delivered coal to the dumping
location for approximately 2-months prior to December 2, 1988,
and he too found it necessary to get out of his truck to
facilitate the dumping of coal. A statement taken from truck
driver Orville Parks during the accident investigation (joint
exhibit-1), reflects that he began delivering coal to Conesville
in April, 1988, and that he made three trips a day, 3 days a
week.
Page 50
~687
Conesville's scalehouse operator Shuck testified that coal is
delivered to the dumping location in question 3 days a week, and
that this has been a normal practice during the 4 years of his
employment at Conesville. Mr. Shuck estimated that 200 trucks a
day deliver coal to the site, and that approximately 50 to 60
contractor drivers are engaged in this work. MSHA's accident
investigation report (exhibit M.X.-30), reflects that the
preparation plant operated 3 days a week on Wednesday, Thursday,
and Friday, and that each day approximately 7,000 tons of coal
from other mines are transported to the facility for processing
at the preparation plant.
In support of the imminent danger order issued by Inspector
Grissett, MSHA argued that by allowing coal trucks to dump coal
without taking any measures to assure adequate side clearances
between the trucks, Conesville permitted a dangerous practice to
exist, exposed all of the drivers who were at the dumping
location to hazards, and that the practice would have continued
unabated had the inspector not issued the order. The inspector
confirmed his belief that Conesville's "ongoing and continuing
violation of section 77.1600(c), created the imminent danger"
(Tr. 209).
Notwithstanding all of this evidence, which I conclude and
find clearly establishes regular and frequent exposure to
potential mine hazards to the contract truck drivers who
regularly, frequently, and routinely delivered coal to the
Conesville facility approximately 3 times a day, 3 days a week,
over a relatively long period of time, Inspector Grissett
nonetheless concluded that these drivers were not "miners"
pursuant to section 48.22(a)(1), because (1) they performed no
contract work for a period of 5 days, (2) were not employed at
the mine, and (3) "they were just contracted to deliver a product
to the mine."
The fact that the drivers in question were contract
employees and were not employed by Conesville is in my view of no
consequence. They were in fact persons working in a surface mine
while on mine property with coal trucks. Although it is true that
the drivers may not have been present at the mine site more than
5 consecutive days, they were certainly there frequently and
regularly, and were frequently and regularly exposed to mine
hazards. In Kelly Trucking Company, 11 FMSHRC 2441 (December
1989), Judge Maurer affirmed a violation of training Section
48.25(a), where an untrained employee of a trucking company had
performed work at a mine site for 3 or 4 days.
Inspector Grissett believed that independent trucking
companies, such as Ross Brothers, Inc., who employed or
contracted
Page 51
~688
the drivers working at the Conesville site, were not obliged to
hazard train the drivers and that Conesville was responsible for
this training since it is responsible for the safety of any
person entering its mine. Inspector Grissett's reliance on the
definition of a "miner" required to be hazard trained pursuant to
section 48.31, is based on his belief that the contract truck
drivers in question were "delivery" workers, a category included
within the definition of section 48.22(a)(2), for miners who are
required to be hazard trained. That section defines such a
"miner" as "any person working in a surface mine," but it
excludes persons covered under section 48.22(a)(1), and says
nothing about any regular exposure to mine hazards. Thus, any
person working in a surface mine who is regularly exposed to mine
hazards would be required to receive the types of comprehensive
training found in sections 48.25 through 48.28, rather than
hazard training. MSHA takes the position that since the truck
drivers in question were delivering coal to the Conesville site,
they met the situs and occupation requirements for "delivery
workers" found in section 48.22(a)(2), and therefore had to be
hazard trained.
With regard to MSHA's reliance on the "delivery worker"
included in the definition of a miner required to be hazard
trained, I take note of the fact that MSHA's own explanatory
policy guideline with respect to "pickup and delivery drivers" is
directed at persons who come to the mine to pick up mined
materials or deliver supplies. The evidence in this case does not
reflect that any of the truckers in question were picking up any
mined materials, nor were they delivering "supplies," as that
word is commonly understood. In my view, if MSHA had intended
coal haulers to be included in such a category it would have
included the delivery of mined materials, as well as the pick up
of mined materials, as part of its policy.
I also take note of MSHA's policy manual guidelines found in
Volume III, Part 45, July 1, 1988, concerning independent
contractors. Pages 9 and 10 of that policy includes a listing of
the types of services or work performed by independent
contractors at mine sites which would require them to have MSHA
independent contractor ID numbers. One of the specific work
activities (item #8, at page 10 of the policy), which is relevant
to the work performed by the independent coal haulers who
delivered coal to the Conesville plant, describes the work as
follows: "Material handling within mine property; including
haulage of coal, ore, refuse, etc., unless for the sole purpose
of direct removal from or delivery to mine property." Although
the evidence in these proceedings clearly establishes that the
sole purpose of the work performed by the Ross Brothers, Inc.,
truckers in question while on Conesville's property was the
delivery of coal to its property, Ross Brothers, Inc., had an
MSHA ID number, even though this policy would seemingly not
require it to obtain one. Although the parties do not address
Page 52
~689
this particular policy, I believe it illustrates the
contradictions found in MSHA's policy statements which are
intended to provide guidance to its inspectors, as well as to
mine operators.
In a recent case concerning a violation of MSHA training
standard 30 C.F.R. 48.28, by an independent contractor where
the definition of "miner" was in issue, MSHA relied on its policy
manual and urged the judge to accept the policy definition of
"maintenance" or "construction" work in support of its case. See:
Secretary of Labor v. Frank Irey Jr., Inc., 11 FMSHRC 990, 993
(June 1989). In Dacko Corporation, 10 FMSHRC 1259 (September
1988), a case involving an independent contractor charged with a
violation of training section 48.25(a), for failing to train one
of its employees performing work at a surface preparation plant,
the inspector relied on MSHA's manual policy guidelines with
respect to the distinction between construction maintenance and
repair work, and the "miner" definitions found in section
48.22(a)(1).
In Lancashire Coal Company v. Secretary of Labor, Docket
Nos. PENN 89-147-R, etc., decided by me on February 27, 1990,
MSHA relied on its Part 45 Independent Contractor Program Policy
Manual in support of its interpretation of the language found in
the cited mandatory standard in issue in those proceedings, and
indeed relied on, and cited its policy in rendering certain
advisory opinions with respect to the application and
interpretation of the standard. In the instant proceedings, MSHA
argues that its policy manual is simply a guideline which is not
binding on the inspector. MSHA cannot have it both ways. I find
it basically unfair to allow MSHA to rely on a policy guideline
and urge the judge to accept it as binding on the parties, when
it supports its position, and in another case where the policy
may contradict MSHA's position, to take the position that it is
not controlling and is simply extraneous and non-binding.
The "policy question" case cited by MSHA, Secretary of Labor
v. Cathedral Bluffs Shale Oil Company, 6 FMSHRC 1871 (August
1984), reversed and remanded by the Court of Appeals for the
District of Columbia Circuit, July 29, 1986, 4 MSHC 1033 (D.C.
Cir. 1986), concerned MSHA's general policy statements concerning
its discretionary enforcement authority with respect to whether
it should cite a production operator or an independent contractor
for violations of its mandatory health and standards. The court
found that the Commission improperly regarded MSHA's general
enforcement policy as a binding regulation which it was required
to strictly observe.
In the instant case, MSHA's policy statements with respect
to the classes of people required to be hazard trained pursuant
to section 48.31, do not concern the discretionary enforcement
duties of an inspector. An inspector is obliged to issue a
Page 53
~690
citation or order if he finds a violation of any mandatory
standard. However, when an inspector interprets or applies any
standard, particularly when it results in the issuance of a
citation or an order, I believe he should be bound by the policy
interpretation with respect to the meaning and application of the
standard. MSHA's policy statements are clearly intended to
provide notice to a mine operator with respect to what is
required for compliance, as well as guidance for an inspector to
follow with regard to MSHA's intended meaning and application of
the law. In King Knob Coal Company, 3 FMSHRC 1417 (June 1981),
although the Commission rejected a mine operator's reliance on an
explanation of the cited standard contained in an MSHA Interim
Mine Inspection Manual, and held such manual commentary to be
without legal effect, it noted as follows at 3 FMSHRC 1422-1423:
We emphasize that our decision prospectively
obviates future confusion surrounding the meaning and
scope of 77.410. The decision will also alert the
public to the need for using the Manual, and similar
materials, with caution. We also express the hope that
this opinion will encourage MSHA to use its Manual in a
responsible manner. In our view, such materials should
contain, at the least, a precautionary statement warn-
ing users of their informality and non-binding nature.
As this case unfortunately demonstrates, less than
careful dissemination of such materials can cause
enforcement and compliance confusion and, at worst, can
diminish the protection of the Act and implementing
regulations.
Despite the Commission's admonition, MSHA's current policy
manual contains no disclaimers or cautionary instructions, and
simply states that it "is a compilation of the Agency's policies
on the implementation and enforcement of the Federal Mine Safety
and Health Act of 1977 and Title 30 Code of Federal Regulations
and supporting programs." In any event, notwithstanding MSHA's
policy statements, on the facts and evidence adduced in these
proceedings, and after careful consideration of the arguments
advanced by the parties, I conclude and find that the cited
independent contractor truck drivers were not "delivery workers"
within the definition of "miner" found in section 48.22(a)(2),
and that they were excluded from the class of persons required to
be hazard trained pursuant to section 48.31(a).
I further conclude and find that the inclusion of "delivery
workers" and the other occasional and short-term classes of
workers found in section 48.22(a)(2), is intended to reach and
cover persons who may visit a mine site on an irregular or casual
basis to deliver parts, supplies, or other mine-related or
unrelated goods. These individuals would have a limited and
rather short-term exposure to mine hazards, and there would be a
need to hazard train them so that they are aware of potential
Page 54
~691
hazard exposure while on mine property. The cited drivers were
performing work at the mine site on a routine, regular, and
frequently scheduled basis, 3 times a day, 3 days a week, week
after week, over a rather protracted period of time. During this
period of time, they were regularly and frequently exposed to
mine hazards while in and out of their trucks at the Conesville
dumping location which they visited during each of their trips.
Accordingly, I conclude and find that they fall within the
definition of "miner" found in section 48.22(a)(1), and would be
subject to the comprehensive training requirement found in
sections 48.25 through 48.28. Under the circumstances, I further
conclude and find that MSHA has failed to establish that
Conesville violated the hazard training requirements found in
section 48.31(a), and the contested citation and order ARE
VACATED.
I take note of the fact that all of the cited truck drivers
were either self-employed independent truckers, or directly
employed by, or contracted to, the independent contractor Ross
Brothers, Inc., who had an MSHA assigned I.D. No. V71.
Independent contractors are "operators" subject to the Mine Act,
as well as to MSHA's training requirements found in Part 48,
Title 30, Code of Federal Regulations. Section 104(g) of the Act
provides withdrawal sanctions directly against an independent
contractor whose employees are not properly trained. In the
instant proceedings, Inspector Grissett confirmed that no
citations or orders were issued to any of the independent
trucking concerns or mine operators who employed the drivers. The
inspector made no determination as to whether or not Ross
Brothers, Inc., had trained its employee or contractor drivers,
and he confirmed that the contractor who employed the accident
victim (Cox Farms), had not trained all of its drivers.
In Harman Mining Corporation, 3 FMSHRC 45 (January 1981),
review denied, 3 FMSHRC (February 1981), I vacated a citation
charging the mine operator with a violation of the training
requirements of section 48.31, for failing to hazard train an
employee of a railroad company who was performing work on mine
property. In the course of that decision, I noted as follows at 3
FMSHRC 61, 62:
As I observed during the course of the hearing in this
case, MSHA apparently has made no effort to enforce the
training requirements provided for in the Act or in its
mandatory regulatory training requirements directly
against a railroad until the unfortunate accident which
occurred in this case. Once the accident occurred,
immediate focus was placed on the lack of training and
the fact that there was no confirmation of the fact
Page 55
~692
that the railroad employee who met his demise was not
trained to stay clear of an oncoming trip of loaded
coal cars.
* * * * * * *
Since an independent contractor is in fact a mine
operator under the Act, and since MSHA has indicated it
will treat railroads such as the Norfolk & Western on
an equal basis with other operators, then it seems to
me that MSHA should hold all such railroads accountable
on an equal footing with other mine operators and the
railroad should be required to train its own employees
or suffer the consequences of having its untrained
personnel barred from mine property through the sanc-
tion of a withdrawal order served directly on the
railroad company.
In Old Dominion Power Company, 6 FMSHRC 1886 (August 1984),
the Commission affirmed a judge's decision finding an independent
contractor liable for a violation which was issued following a
fatal accident which occurred on the mine operator's property.
The Commission stated as follows at 6 FMSHRC 1892:
We emphasize that by citing Old Dominion for the
violation committed by its employees, the Secretary has
acted in accordance with the Commission's longstanding
view that the purpose of the Act is best effectuated by
citing the party with immediate control over the work-
ing conditions and the workers involved when an unsafe
condition arising from those work activities is
observed. Old Ben, supra; Phillips Uranium, supra. By
citing the operator with direct control over the work-
ing conditions at issue, effective abatement often can
be achieved most expeditiously. Id. Citation of Old
Dominion is also consistent with the Secretary's con-
clusion, after rulemaking, that "the interest of miner
safety and health will best be served by placing
responsibility for compliance . . . upon each
independent contractor." 45 Fed. Reg. 44494, 44495
(July 1, 1980).
In the instant case, the proximate cause of the truck
tipping over was the failure by the truck driver to insure that
his raised truck bed was free of frozen coal. Yet, Conesville's
MSHA approved hazard training "checklist" makes absolutely no
mention of this potential hazard, and contains no warnings to
drivers alerting them to this potential hazard. Even though one
driver previously tipped a truck over after backing into a muddy
ground area, the approved checklist contains no warnings
concerning such adverse ground conditions at dumping locations.
Page 56
~693
Although there are nine items in the checklist which are
underscored and intended to be emphasized to coal haulers on mine
property, item #6 which states "stay clear of all raised
equipment (Dozer Blades, Front-end Loaderbuckets, etc.)" is not
underscored. Indeed, scalemaster Shuck, the person responsible
for training the drivers, and former safety director Lyon did not
believe that this item even applied to truck drivers. MSHA's
training specialist James Myer, the individual who provides
Conesville with a generic checklist identical to the one adopted
as its checklist, believed that item #6 was broad enough to
include truck drivers under the reference to "etc" found in item
6. When reminded that item #6 is not even underscored, and that
Conesville did not believe it applied to truck drivers, Mr. Myer
commented that "may be a difference of opinion." In short, rather
than requiring and approving a hazard training checklist that is
clear, concise, and directed to potential hazards faced by truck
drivers while dumping coal, the parties have mutually adopted a
checklist which makes little practical sense for the drivers
which it is intended to cover.
Truck driver Fortney, the individual involved in the
accident, believed that checklist item #6 was limited to loaders
and dozers and not to a truck backing up and dumping coal at the
dumping location in question. Driver St. Clair believed that many
of the items on the checklist did not apply to truckers who
dumped at the site. Driver Stull, the individual who overturned a
truck during a prior incident when he backed into soft ground
confirmed that he may have signed and received a copy of the
checklist after the accident of December 2, 1988, and although he
indicated that he keeps the checklist in his truck, he did not
know what it covered and stated that he forgot or could not
recall what the checklist covered.
In addition to the lack of mutual understanding of the
hazard training checklist, there was also confusion and
misunderstanding as to whether or not drivers who stayed inside
their trucks were required to be hazard trained. Relying on
MSHA's policy statements, Conesville believed that drivers who
stay in their vehicles are not required to be hazard trained. In
his prehearing deposition, as well as his testimony during the
hearing, Inspector Grissett initially conceded that drivers who
do not leave their trucks need not be hazard trained. He later
recanted and stated that he was confused by MSHA's policy
statements. Although he confirmed that he made no determination
as to whether or not any of the cited untrained drivers were out
of their trucks while at the Conesville site, he nonetheless
concluded that they had to be hazard trained.
In my view, requiring independent trucking companies who are
in the business of regularly and frequently hauling coal for
production operators to train their own drivers, and holding them
accountable when they do not, would provide a more effective
Page 57
~694
means of avoiding the kinds of truck tipping incidents which are
reflected by the record in these proceedings. The use of rather
obscure hazard training checklists of the kind approved for and
adopted for Conesville's dumping operations, rather than
comprehensive training which would train drivers in such areas as
hazard recognition and avoidance, safe operating procedures while
hauling and dumping coal, review of accidents and causes of
accidents, and accident prevention, does little to foster safety.
Although I enjoy the benefit of hindsight, I nonetheless
believe that if truck driver Fortney had been trained and
required to use anti-freeze or some other substance to prevent
coal from freezing in his truck, and were trained to keep a safe
distance from other trucks while dumping his coal load or raising
his truck bed, the accident would not have occurred. While it is
true that Conesville had control of the dumping location, it is
also true that there are no mandatory safety standards requiring
it to insure safe and adequate truck spacing. As noted earlier,
section 77.1600(c), only requires the posting of a sign or
warning at dumping locations where "side or overhead" clearances
are hazardous.
ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED AS FOLLOWS:
1. Docket No. LAKE 89-29-R. Section 107(a) Imminent
danger Order No. 2950067, December 5, 1988, IS AFFIRMED, and
Conesville's contest IS DENIED.
2. Docket No. LAKE 89-30-R. Section 104(a) "S&S"
Citation No. 2950086, December 5, 1988, citing an alleged
violation of 30 C.F.R. 77.1600(c), IS VACATED, and MSHA's
proposed civil penalty assessment (Docket No. LAKE 89-75) IS
DENIED AND DISMISSED.
3. Docket No. LAKE 89-31-R. Section 104(a) "S&S"
Citation No. 2950069, December 5, 1988, citing an alleged
violation of 30 C.F.R. 48.31(a), IS VACATED, and MSHA's
proposed civil penalty assessment (Docket No. LAKE 89-75) IS
DENIED AND DISMISSED.
4. Docket No. LAKE 89-32-R. Section 104(d)(1) "S&S"
Order No. 2950070, December 5, 1988, citing an
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~695
alleged violation of 30 C.F.R. 48.31(a), IS VACATED, and MSHA's
proposed civil penalty assessment (Docket No. LAKE 89-75) IS
DENIED AND DISMISSED.
George A. Koutras
Administrative Law Judge
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