Ramar Coal Company, Incorporated

Plain-English summary

Ramar Coal agreed to pay the proposed $500 penalties for two respirable dust sampling citations. The remaining citation concerned a refuse hauler that nearly collided with an MSHA inspector on a wet, steep haul road. Judge George A. Koutras affirmed that citation and assessed a $125 penalty, while declining to decide the validity of a related imminent-danger order because it was not timely contested. The total penalties were $1,125.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 71.208(a), 30 C.F.R. § 77.1607(c), 30 U.S.C. § 820(a)
• Outcome: Two citations were settled at $500 each, and one citation was affirmed with a $125 penalty.
• Key point: The ALJ treated the untimely imminent-danger-order challenge as outside this civil penalty proceeding and separately decided the haul-road-speed citation.

Full text (FMSHRC public release)

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges
                        2 SKYLINE, 10TH FLOOR
                          5203 LEESBURG PIKE
                     FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 91-69
PETITIONER A.C. No. 44-03441-03520
v.
Ramar Tipple No. 1
RAMAR COAL COMPANY,
INCORPORATED,
RESPONDENT

                               DECISION

Appearances: Caryl L. Casden, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
James Ashby, President, Ramar Coal Company, Inc.,
Oakwood, Virginia, pro se, for the Respondent.

Before: Judge Koutras

                        STATEMENT OF THE CASE

 This proceeding concerns civil penalty proposals filed by

the petitioner against the respondent pursuant to section 110(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking civil penalty assessments for three alleged
violations of certain mandatory safety standards found in Parts
71 and 77, Title 30, Code of Federal Regulations. The respondent
filed a timely answer and contest, and a hearing was held in
Grundy, Virginia. The parties waived the filing of posthearing
briefs, but I have considered their oral arguments made in the
course of the hearing in my adjudication of this matter.

                                ISSUES

 The parties settled two of the violations (Citation Nos.

9975365 and 9975366), and the settlement was approved from the
bench. With regard to the remaining contested violation, the
issues presented include the fact of violation, the appropriate
civil penalty assessment for the violation taking into account
the civil penalty criteria found in section 110(i) of the Act,
and whether or not the inspector's S&S finding is supportable.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.

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Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C.   801 et seq.

2. 30 C.F.R.   77.1607(c).

3. Commission Rules, 29 C.F.R.     2700.1 et seq.

                             Discussion

 Section 104(a) non-"S&S" Citation No. 9975365, issued on

October 11, 1990, cites an alleged violation of 30 C.F.R.
71.208(a), and the cited condition or practice states as follows:

      The operator did not take one valid respirable dust
      sample from designated work position 004-0 347 for the
      bimonthly sampling period of August-September 1990.
      Required sample is to be collected and submitted to the
      Richlands MSHA Lab.

 Section 104(a) non-"S&S" Citation No. 9975366, issued on

October 11, 1990, cites an alleged violation of 30 C.F.R.
71.208(a), and the cited condition or practice states as follows:

      The operator did not take one valid respirable dust
      sample from designated work position 005-0 374 for the
      bimonthly sampling period of August-September 1990.
      Required sample is to be collected and submitted to the
      Richlands MSHA Lab.

 The respondent confirmed that it did not wish to contest the

two respirable dust citations and agreed to pay the full amount
of the proposed civil penalty assessments (Tr. 3).

 The remaining alleged violation, section 104(a) "S&S"

Citation No. 3352852, issued by MSHA Inspector Clifford F.
Lindsay on October 4, 1990, cites an alleged violation of 30
C.F.R. 77.1607(c), and the condition or practice cited is
described as follows:

      The operating speed of a large hauler was not prudent
      and consistent with conditions of the roadway. The
      large refuse hauler almost collided with my vehicle as
      he was descending a rain-slick steep section of the
      haul road returning from the refuse area. The hauler
      operator could not bring the vehicle to a stop even
      after locking the rear wheels until he was well past my
      vehicle. He avoided colliding with my vehicle by only

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the smallest of margins and largest of luck. Imminent
danger Order No. 3352853 is issued in conjunction with
this citation, therefore no termination date is set.

Stipulations

    The parties agreed to the following (Tr. 5-9):

         1. The respondent (James Ashby) is the owner and
         operator of the Ramar Tipple No. 1, which is a small
         mine operation.

         2. The respondent is subject to the Act and agrees that
         the presiding judge has jurisdiction to hear and decide
         this case.

         3. The contested citations were duly served on the
         respondent by MSHA Inspector Clifford F. Lindsay, an
         authorized representative of the Secretary of Labor,
         while acting in his official capacity.

Bench Ruling

 The record reflects that Inspector Lindsay issued a section

107(a) Imminent Danger Order No. 3352853, in conjunction with the
contested Citation No. 3352852. A copy of the order was included
as part of the pleadings filed by the petitioner and it states
that it was issued "to close all of the refuse haul road until
such time as all refuse hauler operators can be instructed to
maintain safe speeds under all conditions of the roadway".

 The parties were under the impression that the respondent

had contested the validity of the imminent danger order and that
it was in issue in this civil penalty proceeding (Tr. 17).
However, I take note of the fact that the petition for assessment
of civil penalty seeks a civil penalty assessment only for the
contested section 104(a) citation, and the respondent conceded
that it did not timely contest the validity of the imminent
danger order (Tr. 16).

 Commission Rule 21, 29 C.F.R.   2700.21(a), requires a mine

operator to file an application for review of a section 107(a)
imminent danger order within thirty (30) days of its receipt. In
this case, there is no evidence that the respondent sought timely
review of the validity of the order. Under the circumstances, I
issued a bench ruling that the validity of the order was not an
issue in this case and that I would not decide the validity of
the order (Tr. 16-19). My bench ruling is herein REAFFIRMED.

                 Petitioner's Testimony and Evidence

 Clifford F. Lindsay testified that he is employed by MSHA as

an impoundment pile specialist. He is a mining engineer and an

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authorized representative of the Secretary of Labor and he has
regularly inspected the respondent's waste impoundment and refuse
area to insure compliance with MSHA's regulations. He holds a BS
degree in chemistry from William and Mary College, and an MS
degree in mining engineering from Virginia Tech.

 Mr. Lindsay confirmed that he was at the mine on October 4,

1990, to inspect the waste pile and the entry gate off the county
road was open. The gate was routinely opened when the facility
was in operation but it would otherwise be locked. There were
three signs posted around the gate area, and one of the signs
stated "keep right-do not pass".

 Mr. Lindsay stated that he stopped at the plant office as

required to contact a representative of the respondent and to
review the plant inspection records. There was no one in the
office, which was not unusual, and he left to drive to the
impoundment area. It was an overcast rainy day and he was driving
a standard government Cherokee jeep. The haulage road conditions
were "wet and messy" and refuse spillage from the trucks was on
the roadway, and it was similar to "black mud". The roadway
surface consisted of a combination of dirt, gravel, and refuse.

 Mr. Lindsay stated that as he proceeded along the haulage

road up to the impoundment site he observed no other traffic on
the road. The roadway was not as wide as a standard 2-lane road,
and he was driving "slightly to the right". As he proceeded to
enter the "sharp hairpin" turn on the right inside curve he heard
the truck air horn sounding steadily and he turned his jeep as
close as he could to the right inside portion of the roadway next
to the berm. He saw the truck coming down the roadway in a
partial slide with its wheels locked. The truck was approximately
two-feet away from his jeep when it passed him and he was looking
half-way up the truck tires as the truck passed him.

 Mr. Lindsay was of the opinion that the truck driver was not

in full control of his vehicle. Although the driver was able to
steer the truck, he could not slow it enough to bring it to a
stop in a timely manner. If he had not seen the truck or heard
the driver sound his horn, which prompted him to move his jeep
out of the way and to the right side of the road, there was no
doubt that an accident would have occurred and the truck would
have struck the jeep and run over it.

 Mr. Lindsay stated that after the truck passed by he

immediately turned the jeep around to block and control access to
the roadway because he did not at that time know who else may
have been using the roadway and he was afraid that an accident
would occur.

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Mr. Lindsay identified five photographs of the haulage road
which he took on May 4, 1992, (Exhibits P-1-a through P-1-e). He
confirmed that exhibits P-1-d and P-1-e show the location of the
incident of October 4, 1990. He also identified exhibit P-3, as a
copy of the notes which he made on that day.

 Mr. Lindsay confirmed that he issued the contested citation

in question (Exhibit P-2), and cited a violation of mandatory
safety standard 30 C.F.R. 77.1607(c). He stated that the fact
that the truck nearly collided with his vehicle led him to
conclude that it was being operated at an unreasonable speed
given the wet conditions of the roadway. He confirmed that the
roadway was well-bermed, and he assumed that the truck brakes
were in good working condition since they locked when the driver
applied them and he eventually stopped the truck after it passed
by him.

 Mr. Lindsay stated that he based his "S&S" finding on the

fact that he had a near collision with the truck. He also
considered prior MSHA accident reports which he has reviewed
concerning vehicle collisions under similar conditions, vehicles
colliding with trees, boulders, and other objects in the roadway,
and accidents resulting from truck drivers driving too fast.
Although such prior incidents have not occurred at the
respondent's mine, he considered the fact that he could have been
run over by the truck in question, and that in the course of
normal mining operations, a driver operating his truck too fast
could collide with another truck, with resulting serious
injuries. He confirmed that the roadway was normally traveled by
other inspectors, contractor vehicles, other company service
vehicles, and refuse hauling trucks.

 Mr. Lindsay stated that during a subsequent mine inspection

visit on November 28, 1990, Mr. Ashby discussed the citation with
him and informed him that the only solution to the problem was to
post signs restricting access to the haulage road. Mr. Ashby also
mentioned the fact that he had a recent "problem" with a tanker
truck which was on the roadway without the knowledge of the
haulage truck drivers, but he did elaborate further as to what
the "problem" was all about. Mr. Lindsay identified Exhibit P-4,
as a copy of his notes documenting his conversation with Mr.
Ashby.

 Mr. Lindsay confirmed that he based his "moderate"

negligence finding on the fact that the respondent may not have
been aware that the truck driver was driving too fast for the
existing road conditions. He also considered the fact that the
drivers need to maintain and complete their haulage cycle in a
timely manner in order to keep up with the refuse haulage trip
from the storage bins to the waste impoundment pile.

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Mr. Lindsay believed that the haulage truck operating
procedures at the time of his inspection were typical of the
procedures followed under dry roadway conditions. However, he
believed that the drivers needed to adjust their travel speed
when the road conditions are wet and slippery. He confirmed
that on subsequent mine visits he has observed that the drivers
are operating at slower speeds than the speed of the cited truck
on the day of his inspection.

 Mr. Lindsay stated that he issued a section 107(a) imminent

danger order to temporarily block access to the roadway until he
could contact the respondent's representative to instruct the
drivers to slow down. He also considered the fact that he did not
know who else might be using the roadway and he was concerned
that an accident would occur if normal mining operations were
allowed to continue before he could speak to the respondent and
take further corrective action (Tr. 24-68).

 On cross-examination, Mr. Lindsay confirmed that he has

inspected the respondent's operation since 1985, and although he
has "dodged" and "backed up" away from trucks from time-to-time,
he was never involved in any prior "near collisions" and was not
aware of any prior haulage road accidents. He also confirmed that
he was aware of the steep grade over which the cited truck in
question was travelling on the day in question, and he agreed
that people should be careful on slick roadways.

 Mr. Lindsay confirmed that he was not familiar with the

"mechanics" of haulage trucks and that he did not know the speed
at which the truck was travelling on the day of the incident in
question. He has since "clocked" the trucks at 20-25 miles per
hour under dry road conditions. He believed that it was the
respondent's responsibility to establish safe truck operation
speeds for the haulage roads on its property. He confirmed that a
25 m.p.h. speed limit sign is posted on the level roadway portion
(Exhibit R-1-C), but did not see one posted on the "high road".
He also stated that he has never had to pull over to the left
side of the road to allow a truck to pass him.

 Mr. Lindsay stated that he had no knowledge as to whether or

not the respondent had ever instructed the truck drivers about
safe travel speeds prior to his inspection on October 4, 1990,
and although he saw a bulletin board in the mine office he saw no
roadway safety rules or procedures posted. He confirmed that he
did not initially see the truck in question because of the angle
of the road, but that he did hear the air horn (Tr. 68-91).
Respondent's Testimony and Evidence

 Bobby Joe Austin testified that he is employed by the

respondent but is currently laid off and receiving unemployment
compensation. He stated that he served in the army as a heavy

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equipment operator and has worked in strip mining operating heavy
equipment and 10-ton trucks since 1968. He confirmed that he was
driving the empty truck in question on October 4, 1990, and that
Inspector Lindsay was driving in the center of the road and then
moved to the right after he sounded the truck air horn. Mr.
Austin stated further that all of the other MSHA inspectors who
travel the roadway usually drive to the left at the curve in
question so they can look up the incline to see any traffic
coming down the road.

 Mr. Austin confirmed that he applied his truck brakes when

he saw Mr. Lindsay and that the transmission retarders
automatically lock the wheels. He stated that large trucks and
other vehicles have passed each other at the location where he
encountered Mr. Lindsay's vehicle. Mr. Austin denied that he was
operating the truck in a reckless manner. He stated that he was
aware of the fact that he should drive slower under wet road
conditions, and he believed that he had the truck under control
on the day in question.

 Mr. Austin stated that the respondent has conducted regular

safety talks with all truck drivers and has instructed them to
drive carefully, particularly under wet road conditions. He
stated that he and Mr. Ashby cautioned Mr. Ashby's son about
driving to fast on the roadways, and Mr. Ashby confirmed that he
fired his son for driving too fast. Mr. Austin believed that the
respondent's safety record and procedures, as compared to other
mine operators, was "pretty high". He stated that no one has ever
instructed him to drive fast or to hurry so that he could keep up
with the refuse cycle (Tr. 92-104).

 On cross-examination, Mr. Austin explained that his job was

to drive the haulage trucks back and forth from the plant refuse
bins to the refuse impoundment pile. He has also trained new
drivers pursuant to the respondent's 8-hour training program. He
stated that the refuse tipple has a daily 5 or 6 truck capacity
and that the haulage cycle consists of a continuous loading,
haulage, and dumping cycle. He confirmed that he has never been
disciplined for allowing too much refuse material to accumulate
in the bins or for violating any company driving safety rules.

 Mr. Austin stated that he was operating the truck in third

gear while descending the roadway in question, and that the truck
can go 20 miles per hour in third gear. However, he never "hits
the curve wide open", and he could not have driven any slower on
the day in question (Tr. 104-118).

 Inspector Lindsay was recalled and he testified that he was

not aware of any company rule or policy stating that he was to
stay on the left side of the road when approaching a curve or an
incline. He confirmed that he has never driven on the left side
of the road in any of his visits to the mine site and he believed

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that the company practice and rule was "right side traffic all of
the time". He confirmed that he drives at a slow rate of speed
and listens for any haulage trucks on the roadway.

 Mr. Lindsay stated that based on his observations of the

truck at the time of the incident in question he believed that
the driver could have driven much slower given the conditions of
the roadway so that he could bring the truck to a stop within a
reasonable distance to avoid a collision. Mr. Lindsay stated that
he instinctively drives inside the curve because of his belief
that a large vehicle coming at him around the curve would have an
easier time going to the outside broad radius of the curve. He
stated that "I still can't picture a large hauler with its rear
wheels locked and sliding being able to negotiate a tighter turn
as opposed to a broader turn" (Tr. 121).

 Mr. Lindsay stated that from his subsequent observations of

haulage trucks using the haul road in question, the trucks
traveled at a slower rate of speed on dry days than the speed the
truck was travelling on the wet day when he issued the citation
(Tr. 122). In his opinion, in order for a driver to be driving
prudently and consistently with the road conditions "the vehicle
should be driven slowly enough so that in negotiating this curvy,
steep road, the operator could bring the vehicle to a stop in a
resonable length to avoid colliding with any object in the road"
(Tr. 123).
Findings and Conclusions

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 77.1607(c), which states as follows:

      Equipment operating speeds shall be prudent and
      consistent with conditions of roadway, grades,
      clearance, visibility, traffic, and the type of
      equipment used.

 Truck driver Austin testified that he had the truck under

control, and he denied that he was operating it in a "reckless
manner" on the day in question. He further testified that he had
the truck in "normal" third gear while coming down the inclined
roadway in question approaching the curve where Mr. Linday's
vehicle was located. Although Mr. Austin initially stated that in
third gear "no matter how much fuel you give it, it will go a
certain speed" (Tr. 108), he later confirmed that the speed of
the truck can reach 20 miles an hour in third gear, and that if
he wanted to "slide the truck" around the curve in question he
could "hit it at twenty". However, he denied that he would ever
do this because "you show that curve respect" (Tr. 115).

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Inspector Lindsay did not allege that Mr. Austin was
operating the truck in question in a reckless manner. The
inspector's credible testimony reflects that he issued the
citation after observing the truck coming down the haulage
road in a partial slide with its wheels locked. The day in
question was rainy and overcast, and the roadway surface was
wet and consisted of a combination of dirt, gravel, and refuse,
and the inspector described this material as "black mud". He
also indicated that it was raining hard enough so that "I
wouldn't want to stand out in it very long", and "the water
on the road would make it slippery" (Tr. 31, 34).

 Mr. Lindsay testified that he had no doubt that Mr. Austin

did not have full control of the truck even through he was able
to steer it some. Mr. Lindsay stated that he observed the truck
in a partial slide with its rear wheels locked up coming down the
road towards the curve where he was located. He concluded that
Mr. Austin had apparently applied the brakes after seeing his
vehicle in the curve, but instead of the truck slowing down or
coming to a stop, the rear wheels were simply locked up and
sliding (Tr. 36). Mr. Lindsay stated further that the driver's
side left rear very large wheel, which was locked up and sliding,
missed the front of his vehicle by approximately two feet, and he
was looking up at it as the truck passed by "very close". If the
truck had slid slightly sideways towards him it would have
collided with his vehicle (Tr. 37).

 Mr. Lindsay testified that Mr. Austin could not have stopped

the truck even if he had wanted to because the wheels were locked
and sliding, and as the truck passed by, it was sliding and not
stopping at any significant rate. Mr. Lindsay believed that if he
had driven a little further around the curve in the roadway he
would have been in the direct path of the truck, and it would
have been difficult for Mr. Austin to avoid colliding with his
vehicle. Mr. Lindsay stated that if a collision had occurred, "he
very likely could have absolutely run over me" (Tr. 39). Under
all of these circumstances, and given the prevailing wet and
slippery road conditions, Mr. Lindsay concluded that the truck
was being operated at an unreasonable speed. He issued the
citation and charged the respondent with a violation of section
77.1607(c), because of his belief that the truck was being
operated at a speed which was not prudent or consistent with the
existing wet and slippery conditions of the roadway.

 There is no direct evidence as to precisely how fast Mr.

Austin was driving on the day in question. Inspector Lindsay
testified that he has "clocked" the trucks traveling at 20 to 25
miles an hour coming down the grade in question under normal dry
road conditions, but that after the incident in this case, the
drivers drive slower (Tr. 74, 82). Mr. Ashby agreed that there is
a potential for an accident or a fatality when the trucks are on
the road in question and that he has cautioned drivers to go

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slower on wet days (Tr. 141). Mr. Austin confirmed that after the
incident in question, he was cautioned to drive slower, but that
he continued "in a manner" to drive "at a normal speed" (Tr.
108). He believed that his speed on the day in question was
typical of his speed on any other "normal rainy day" (Tr.
111-112).

 Mr. Austin conceded that there was a need to drive slower

under wet road conditions, and he confirmed that when driving at
a "normal rate of speed" he can "judge the rock trucks", but he
acknowledged the need to be aware of the presence of other
vehicles that are normally not on the roadway (Tr. 97). Mr.
Austin asserted that he was operating the truck "in a normal safe
capacity", and he stated that the truck cannot travel slower than
five (5) miles an hour and that it would have been impossible for
him to go any slower "without plumb stopping the truck and just
barely letting the wheels turn at a degree that would take me all
day to move" (Tr. 111).

 Mr. Austin's suggestion that he was travelling at a slow

rate of speed and that if he travelled any slower, the truck
would probably have come to a stop if it reached five miles an
hour is rejected as less than credible. Based on the credible
testimony of the inspector, I conclude and find that Mr. Austin
was probably travelling in excess of 20 to 25 miles and hour down
the slippery and wet inclined roadway in question and that when
he initially observed the inspector's vehicle heading uphill
approaching the curve in the road, he applied his brakes. This
sudden braking action, which caused the wheels to lock, coupled
with the automatic stopping action of the transmission retarder,
resulted in the truck going into a slide, and it was sliding as
it passed dangerously close to the inspector's vehicle, nearly
colliding with it before slowing down or stopping after it was
well past the inspector's vehicle.

 Mr. Austin testified that he sounded his air horn when he

initially observed the inspector's vehicle in the middle of the
roadway coming up the hill before the inspector moved completely
to the right hand side of the road as far as he could (Tr.
93-94). If Mr. Austin were travelling as slow as he suggested, I
believe that one can reasonably conclude that he should have been
able to at least slow down his empty truck, or at least control
it from sliding and nearly colliding with the inspector's vehicle
which was "tucked in" on the right inside of the roadway curve
next to the berm. However, this was not the case. Under all of
these circumstances, I conclude and find that the preponderance
of the credible evidence presented by the petitioner establishes
that the cited truck in question was being operated at a speed
which was not prudent or consistent with the existing grade,
traffic, and roadway conditions. Accordingly, I

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further conclude an find that the petitioner has established a
violation of 30 C.F.R. 77.1607(c), and the contested citation
IS AFFIRMED.

Significant and Substantial Violation

 A "significant and substantial" violation is described in

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

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

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

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

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

1129, (August 1985) the Commission stated further as follows:

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

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine

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involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 Inspector Lindsay based his "S&S" finding on the fact that

he had a near collision with the truck being operated by Mr.
Austin. He testified that Mr. Ashby told him that he "was lucky"
that he was not run over by the truck, and Mr. Ashby alluded to a
prior incident involving another truck on the same haulage road
under circumstances similar to the instant case (Tr. 51-55). Mr.
Lindsay also took into consideration prior MSHA accident reports,
the fact that other vehicles, such as contractor and service
vehicles, and inspectors vehicles, used the roadway, and he was
concerned that in the normal cause of mining operations, a truck
driver operating a truck too fast for the prevailing road
conditions would be involved in an accident. Under the
circumstances, Mr. Lindsay concluded that "there was a pretty
good probability that at some point an accident of this kind
could happen", and that if it did, it could result in serious and
fatal injuries (Tr. 47).

 After careful review and consideration of all of the

evidence in this case, I conclude and find that a measure of
danger to safety was contributed to by the violation, and that it
is reasonably likely that the operation of a truck on an inclined
roadway which is wet an slippery at a speed which not prudent or
consistent with the prevailing road conditions, and with the
presence of other vehicles on the roadway, would reasonably
likely result in an accident or collision. If this were to occur,
I further conclude that it is reasonably likely that it would
result in injuries of a serious or fatal nature. Under all of
these circumstances, I conclude and find that the inspector's
"S&S" finding was reasonable and justified, and IT IS AFFIRMED.

History of Prior Violations

 An MSHA computer print-out reflects that for the period

beginning on October 3, 1990, the respondent paid civil penalty
assessments totally $2,036, for 49 violations, all of which were
issued as section 104(a) citations. Thirty-seven (37) of the
citations were assessed under MSHA's "regular formula" assessment
procedures, and twelve (12) were assessed under MSHA's "single
penalty" procedures. None of the violations were "specially
assessed".

 I take note of the fact that the respondent's compliance

record does not include any prior violations of 30 C.F.R.
77.1607(c). I cannot conclude that the respondent's history of
prior violations is such as to warrant any additional increase in
the civil penalty assessment which I have made for the contested
violation in this case.

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Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business

 The parties have agreed that the respondent is a small coal

tipple operator (Tr. 5). The pleadings filed in this case include
an MSHA proposed assessment Form 1000-179, which reflects "2,161
production tons or hours worked per year" and the size of the
mine as "o production tons or hours worked per year". A copy of a
"Proposed Assessment Data Sheet" (Exhibit P-7), reflects that for
the calendar year 1989, the respondent's total "Hrs/tonnage" was
2,161, and no hours or production for calendar year 1990.

 Respondent's owner and operator James Ashby stated that any

civil penalty assessments in this case would have to be paid from
his personal funds and that the company has no money to pay. He
stated that he currently employs fourteen people and operates
one-to-three days a week processing 7,500 to 23,000 tons of coal
through the preparation plant and tipple. However, the coal has
been stockpiled awaiting shipment to the Pittston Coal Company
which is his only customer at this time. Although the haulage
trucks drivers are employed by his company, the Pittston Company
permits him to use their trucks. He confirmed that he does not
own or operate any other mining operations, and that when he is
in full production he processes approximately 45,000 to 50,000
tons a month (Tr. 12-13; 134-137).

 Mr. Ashby further indicated that he had previously agreed to

pay the two $500 civil penalties for the respirable dust
violations and that he advised an MSHA official that "I've got no
problem with that. I'll pay it" (Tr. 11). In response to a
question as to whether or not the payment of the full amount of
civil penalties assessed for the three citations in question
would put him out of business, Mr. Ashby replied "It would be
tough. It would hurt a lot" (Tr. 9).

 After careful review and consideration of all of the

evidence in this case, I cannot conclude that the payment of the
civil penalty assessments in this case will put the respondent
out of business. However, I have considered the respondent's
unrebutted assertions with respect to his current mining
operation and have adjusted the initial proposed civil penalty
assessment for Citation No. 3352852.

Negligence

 The evidence establishes that Mr. Ashby had posted some

speed limit and other signs on his property and that he had
cautioned Mr. Austin to be careful and to keep his truck under
control while driving the haulage roads (Tr. 114). Mr. Ashby
confirmed that he fired his own son for driving too fast on the
property, and Mr. Austin confirmed that Mr. Ashby conducted

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regular safety meetings with drivers and instructed them to drive
carefully. Inspector Lindsay confirmed that he based his
"moderate" negligence finding on the fact that the respondent may
not have been aware of the fact that Mr. Austin was driving too
fast for the existing road conditions. Under all of these
circumstances, I conclude and find that the cited violative
condition was the result of a moderate-to-low degree of
negligence on the part of the respondent and I have taken this
into consideration in the civil penalty assessment which I have
made for the violation.

Gravity

 Based on all of the testimony and evidence adduced in this

case, including my "S&S" findings, I believe that the inspector
was most fortunate in avoiding a collision with the truck in
question. Accordingly, I conclude and find that the violation was
very serious.

Good Faith Compliance

  The evidence establishes that the respondent timely abated

the violation in good faith, and the inspector confirmed that the
respondent responded in a positive and cooperative manner by
instructing all truck drivers to maintain safe speeds under all
roadway conditions. I have taken this into consideration in this
case.

                    Civil Penalty Assessments

 As noted earlier, the respondent agreed to settle the two

respirable dust violations by paying the full amount of the
proposed civil penalty assessments. With respect to the remaining
citation, which I have affirmed, and on the basis of the
foregoing findings and conclusions concerning the civil penalty
criteria found in section 110(1) of the Act, I conclude and find
that a civil penalty assessment of $125 is reasonable and
appropriate.

                              ORDER

 The respondent IS ORDERED to pay the following civil penalty

assessments within thirty (30) days of this decision and order.
Payment is to be made to MSHA, and upon receipt thereof, this
matter is dismissed.

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Citation No. Date 30 C.F.R. Section Assessment

      9975365      10/11/90       71.208(a)               $500
      9975366      10/11/90       71.208(a)               $500
      3352852      10/4/90        77.1607(c)              $125


                                         George A. Koutras
                                         Administrative Law Judge