FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W. , Suite 520 N

Washington, DC 20004-1710

(202) 434-9933

January 14, 2013

DECISION

Appearances: Breyana A. Penn, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, Colorado, for Petitioner.

                        Dave Zumbrunn, General Manager, Beverly Materials L.L.C., pro se, and

                        Robert Cox, Hoffman Estates, Illinois

Before: Judge Moran

            This matter involves six contested citations issued to the Respondent during 2011 . None of the citations were alleged to be significant and substantial and each penalty was proposed at $100.00. A hearing was held in Wheaton, Illinois on October 16, 2012.

Docket No. LAKE 2011 876 M

            Citation No. 6555728. This Citation relates that “[t]he brake lights on the Caterpillar 980 C front end loader, # 6035, did not function when tested.” 30 C.F.R. § 56.14100(b), the provision cited, entitled, “Safety defects; examination, correction and records; safety devices and maintenance requirements,” provides: “ (a) Self-propelled mobile equipment to be used during a shift shall be inspected by the equipment operator before being placed in operation on that shift. ”

            The Secretary notes that, according to the Inspector who issued the citation, Thomas H. Heft, he observed the loader at one location when he first arrived at the mine on May 17, 2011, at about 7 a.m., and that it was later at a different location when he inspected it, about an hour and twenty minutes later. He therefore concluded that the loader was in use. Upon conducting his inspection of the loader, he found the brake lights malfunctioning. Respondent concedes that the brake light switch had corroded and needed replacement.

            The factual dispute here is whether there was an opportunity for a pre-shift examination of the loader prior to the inspection. Respondent relates that it had to move its loader to the location of the steepest grade the machine would travel in order to perform a proper pre-shift exam. The Secretary does not challenge that assertion about the proper testing location. The loader’s location change, Respondent explains, is the explanation for the loader being moved. Further, Respondent contends that both the loader operator and the mine’s supervisor, Mr. Cox, informed the Inspector that they had yet to do the pre-shift exam for the equipment but that, despite their protests, the inspection of the loader proceeded. This was fundamentally unfair, from the Respondent’s perspective because, as noted, in order to do a proper inspection of the loader, first it had to be moved to the steepest grade. This explains, and simultaneously undermines, the Inspector’s observation that, while indeed it had been moved, it was moved for the purpose of conducting the exam.

            The resolution of this dispute is clearly a factual matter, which necessarily involves some credibility determinations. Applying those credibility determinations, the Court finds that the front end loader was not in fact in service. There is no support for the conclusion that the equipment was in its second location to perform work. Rather, the only credible conclusion on this record is that it was moved so that the pre-shift exam could be so performed. The Secretary, for example, did not counter with any testimony that the vehicle’s location was not located in the area of the steepest grade in which it would be used. The Inspector never noted the loader performing its loading function; he only saw it in two locations and made assumptions based on that observation. Further, the very early time of the citation’s issuance, 8:20 in the morning, is indicative that the equipment had not yet been placed in operation.

Accordingly, the citation is vacated.

Docket No. LAKE 2011-957-M

            For Citation No 6555594, alleging a violation of 30 C.F.R. 56.14130(i) on the basis of a seat belt assembly which was not maintained in functional condition, the Court, having first heard the evidence, stated on the record that it would affirm this Citation. However, the Court announced that a penalty of $50.00 (fifty dollars) was appropriate, not the $100.00 proposed by the Secretary. The parties agreed to this resolution.

            Citation No 6555595. In this instance, the Respondent was cited for an alleged violation of 30 C.F.R. § 56.9300(b). That section, entitled, “Berms or guardrails, Safety devices, provisions, and procedures for roadways, Railroads, and loading and dumping sites,” provides that “(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” A berm was present, but the Secretary contended that it was inadequate, citing the requirement under subsection (b) of the standard and its provision that “Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.”

            Inspector Peter Ackley issued the citation because “the ramp going up to the feed hopper, the jaw crusher, they weren’t maintaining berms at mid-axle height for the largest piece of equipment that used that ramp.” Tr. 141. Mid-axle height for that largest equipment, a front-end loader, is 52 inches but the berm, at its highest point, was only 36 inches. Ackley stated that the front-end loader used the ramp to feed the hopper. It would dump a load in the hopper and then back down the ramp. The ramp was about 125 feet long with a 15 foot width. A drop off of about 16 feet was present on both sides of the ramp. Tr. 144., Gov. Ex. 11. In some areas there was a berm, but it was not of sufficient height. In other parts of the ramp, for example at the top, there were areas with no berm. Gov. Ex. 11, Page 2 & 3.

            The Respondent contends that the cited ramp is not a roadway. Instead, it views it as “a loading dock and not a throughway by which traffic passes.” In support of this characterization, it adds that the ramp “has a terminal point just as a loading dock does, [and this feature] not only limits passage but speed of travel as one must achieve a full stop at the terminus point to deliver the payload.” R’s Br. at 5. While the Respondent acknowledges that “some ramps may be roadway . . . not all ramps are a roadways.” Id. (emphasis added). The Respondent urges that its ramp is one of those that is not a roadway but rather is “a part of the production crusher.” It adds that the ramp is essential for the delivery of material to the crusher and that is the ramp’s sole purpose.

            The Court understands the Respondent’s good faith belief in its argument that this ramp should not be deemed a roadway. It is true that the ramp does not fit in the classic concept of a roadway. The average citizen, asked to imagine a “roadway” would tend to think, as Respondent has, of a “thoroughfare.” However, while the ramp may be outside of the common conception of a roadway, it does not logically follow that the public’s general conception is correct. In short, a ramp can be a roadway, albeit perhaps in some instances a short roadway, as here.

            The Court also notes that a roadway and a road are essentially interchangeable terms, with the former defined as a “road, especially the part over which vehicles travel,” and a “road” as “an open way, generally public, for the passage of vehicles, persons, and animals.” American Heritage Dictionary, (New College Edition) 1980. Accordingly, the ramp is found to be a roadway within the meaning of the cited standard.

            Given the above, the Court’s focus is whether a drop-off existed which was of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment and whether the berm, which was present, was inadequate, per the requirement of subsection (b) of the standard and its provision that “Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.”

            The Respondent also contended that the citation didn’t acknowledge that openings for drainage are permitted, nor did it specify exactly which areas such drainage openings would be allowed. Tr. 163. In this regard, the Respondent acknowledged that there was a 9 foot opening for drainage at the top end of the ramp but that the loader, having a width of 16 feet, couldn’t pass through it. Additionally, the loader would be traveling at a very slow speed, at only about 3 mph. Tr. 167.

            When the Court asked additional questions of the Inspector, he stated that there were areas with insufficient berm height on the way up the ramp and that the issue was not limited solely to the top, flat spot. Tr. 177-178. The Inspector also confirmed that he had issues with insufficient berm height on the level approach pad, as shaded in Respondent’s Exhibit, “A-1.” Tr. 179. The Inspector did not see any locations he believed were drainage areas. Tr. 180.

            Based on the entirety of the credible evidence, the Court finds that the standard was violated. In determining an appropriate penalty, the Court takes into account that the Inspector believed an injury would be unlikely because of the low speed of the loader in using the ramp. Tr. 151. He considered the negligence to be moderate because the condition was open and obvious. Apparently the berm deterioration had been recent, attributable to the weekend’s rain. Based upon consideration of each of the statutory penalty criteria, the Court finds that a civil penalty of $75.00 is appropriate to be imposed.

            Citation No 6555596. The parties agreed that the violation and penalty would be upheld as proposed for this citation, involving a labeling issue for a seat belt assembly. Tr. 140. There was no defect found with the seat belt itself. A civil penalty of $100.00 (one hundred dollars) is imposed.

            Citation Nos. 6555597 and 6555600.

            As these two citations share common issues, they are discussed together. MSHA Inspector Ackley issued Citation No. 6555597 and 6555600, asserting violations of 30 C.F.R. § 56.12018. That standard, entitled, “Identification of power switches,” provides: “Principal power switches shall be labeled to show which units they control, unless identification can be made readily by location.”

            At hearing, the Respondent agreed that the cited switches were not labeled but contended that the standard does not apply to those switches. Further, Respondent asserted that the switches could be readily identified by their location. Tr. 183-184. For the first citation, the Inspector cited what he believed to be a 220 volt breaker, which he found to be in the ‘on’ position, and for which that breaker was not labeled to show what circuit it controlled. He added that one “could not make identification readily [by] looking at the box.” Tr. 185. The Inspector stated that he considered the this to be a “principal power switch” because “it shuts the power on and off to a circuit.” Tr. 186 (emphasis added).

            GX 13, page 1, a photograph, shows one of the circuits cited by the Inspector. An arrow on that photo particularly identifies the breaker in issue. GX 13, page 2, another photograph, shows the location of the panel box inside the MCC room for the primary crusher in the trailer. Tr. 189. The MCC room is located “off a roadway” and there would be travel by it. Tr. 189. Last, GX 13, page 3, shows the breaker, post-abatement, after it had been labeled. The words, “auto comp” were written and the inspector believed that referred to a compressor. Tr. 188. That was the only circuit in issue for the Inspector. He stated that another layperson would not be able to figure out what the breaker controlled and that this would be a concern in the event of an emergency. Tr. 190. The Inspector stated that lost workdays could ensue because of “someone working on it or if they could get entangled in a piece of equipment or shut off,” although he conceded that was an “unlikely” occurrence. Tr. 191. This “unlikely” assessment was sound, as the Inspector conceded that the MCC door was locked and only three people had the keys to gain access to the locked building; the crusher operator, Mr. Cox and the electrician. Tr. 191. Inspector Ackley agreed that it is traditional industry practice to label such breakers. Tr. 191. The Inspector noted that the operator told him that the cited breaker had been unlabeled “for a couple of years.” Tr. 193.

            When the Court inquired of Inspector Ackley how he determined that the breaker is a “principal power switch,” he responded “[b]ecause that would be the principal spot where you actually would shut off the power to that circuit.” Tr. 193. However, he admitted that a “principal power switch” is not a defined term, but rather his definition was just an “understood term.” Tr. 193.

            With regard to the second, similar, citation, No. 6555600, GX 14, the Inspector cited the same standard provision as he did for the panel box listed in GX 12, 30 C.F.R. 56.12018, upon finding “four breakers in the on position that weren’t labeled for what they controlled.” Tr. 195. The box is located in the wash plant MCC. Tr. 197. Here too, Inspector Ackley described the breakers as a principal power switch because “they shut the power on and off to a circuit. They disconnect it and connect the power to a circuit.” Tr.195. The condition he observed is shown in a photograph at GX 15, page 1. The Inspector stated that four of the breakers were not labeled, but the exhibit, GX 15, page 1, does not show that any are labeled, whereas all were labeled in the abatement photo of the box, GX 15, page 3. He later learned that the breakers in the panel box controlled lights and outlets and a horn. The gravity was listed as ‘lost work days’ because, at 110 volts, it was not a lot of current. The Inspector acknowledged it was marked as “unlikely” because “the main power disconnect [was] within 3 ½ feet [of the panel box]. Furthermore, the Inspector advised that “miners normally start and stop the plant from the control tower. So I don’t have the exposure of miners being in there daily using that breaker box, and if they had to in an emergency, they could just lock the whole power off to that.” Tr. 198. He listed the alleged violation as of “moderate negligence” because the plant doesn’t run at night and so the panel box would not be used to control lights.” Tr. 200.

            The Court asked the Inspector to compare the relative severity of these two, like, citations. He noted, incorrectly, that the first citation involved a 220 volt circuit. For that reason, he considered it a greater danger. Tr. 201. However, for that same, “first,” citation, the Inspector acknowledged that it was located in the MCC room, which is normally locked. If the operation were running, the crusher operator would have a key to access that room. Tr. 201-202.

            The Respondent called Mr. Cox on these issues. Mr. Cox explained that both instances involved 120 volt circuit breakers. Thus, he stated the Inspector was incorrect in asserting that 220 volt circuits were present. Tr. 204. As noted, the Court finds as fact that both instances involved 120 volts. He further stated that, per GX 13, page 3, “auto comp” refers to the “automation computer” and that there is no compressor anywhere in that area. Instead, there are three 120 volt breaker switches on the top row and the fourth switch is “a blank and the cover plate.” Tr. 204. Then, there are two on the bottom row. All are 120 volts. In fact, Mr. Cox stated there is no 220 volt circuit anywhere at the plant. Instead, the mine’s heavier equipment runs off of 480 volts.

            In both cited instances, the boxes are adjacent to a primary service disconnect. Tr. 205. Mr. Cox considered both of the cited matters do not involve primary power switches, but instead they are “secondary power switches.” Tr. 205. The basis for his view is that a “principal power switch is the disconnect that feeds the power to [the] box.” Tr. 206. What the Inspector cited, Mr. Cox maintained, were “branch circuits that branch out to small 110 items [such as] light bulbs, wall plugs, [and] a computer.” Tr. 206. Cox is not an electrician but he stated that the “National Electric Code describes a principal or primary power switch to be the main disconnect in the control panel.” Tr. 206. At this mine, the main control panel is to the right of the cited panel. Tr. 206. Thus, it was Mr. Cox’s position that neither of the cited matters involved principal power switches. Instead, in both instances, the primary was located next to the cited panels and those had a 120 volt sticker and were marked that they were the shutoff for the boxes. Tr. 207. To be more precise, for GX 13, page 3, the primary was 3 ½ feet away and, for GX 15, at page 2, the panel box is barely in the picture but Cox stated, and the Court accepted, his statement that the power switch was in fact in the left hand corner of that photograph. Tr. 208.

            As mentioned for the first citation, as depicted in the photos for GX 13, at page 2, the principal power switch is on the outside of the room in that photograph. In addition, the room itself is normally locked. Tr. 209. By shutting off the primary feeder on the outside of the building, one kills all the 110 power in that building. Tr. 210-211. Mr. Cox also stated that a blank is installed in the slot of a switch breaker if it isn’t there anymore so that there is not simply an open hole. Tr. 211. Thus, for GX 13, where it says “auto comp,” there’s a blank next to a 110 switch. A compressor could not run off this panel because it needs 480 volts.

Discussion.

            The principal issue for these two citations is whether the cited breakers were “principal power switches” or, as the Respondent contends, they were “secondary power switches.” The Respondent contends that the principal power switch is the disconnect that feeds the power to the panel boxes and therefore not the panel boxes themselves. The panel boxes, Respondent asserts, are “branch circuits that feed out to small 110 items.” The Secretary acknowledges that, per the National Electrical Code (“NEC”), the term “principal power switch” refers to the “main disconnect in the control panel.” Sec. Br. at 19. While the Secretary admits that Mr. Cox testified that there were primary circuits which were located nearby and that those circuits were marked as shut offs, he also stated that, for Citation No. 6555597, the primary for the panel box was not located next to the cited circuit, but rather was outside the building.

            The Secretary’s position is that its definition of a “primary power switch” is entitled to deference. Sec. Br. at 20, citing Chevron, 467 U.S. 837, at 843-45 (1984), Twentymile Coal Co., 411 F.3d at 261-62, Excel Mining, LLC, 334 F.3d at 6. However, in the next breath, the Secretary admits that MSHA has not “expressly defined” the term. It adds that the NEC has not expressly defined the term either. Id. The Secretary, moving from the general principle of deference, cites to specific cases which, it contends, support the argument that 110/120 volt breakers have been found to be principal power switches. Cemex Construction Materials of Florida, 2012 WL 362193 at *4, Judge Zielinski, Jan. 2012 (“Cemex”), Homestake Mining Co., 2 FMSHRC 493, 502 (Judge Fauver, Feb. 1980), Blue Mountain Production Co.,(Judge Miller, Oct. 2010). Pointing particularly to the Blue Mountain decision, the Secretary notes that the judge there held that because the switch de-energized portions of an area and because the issuing inspector was a certified electrician, weight was given to that view. The Court, having examined both decisions, notes that as they are not Commission level decisions no deference is required. Beyond that, the cases are not persuasive because there is no discussion within them on the matter in contention here. In Cemex, for example, it was simply an uncontested and unarticulated given that the breaker was a “principal power switch.” In Blue Mountain, although it was challenged that the power switch box was a principal power switch, the judge simply credited the testimony of the inspector, who was a certified electrician, that it was one. However, it seemed that part of the judge’s reasoning was that the switches could de-energize large portions of the area by throwing a switch.

            For its part, the Respondent counters that, if the Secretary’s view is adopted, a simple light switch, as it shuts power on and off to a circuit, could be deemed a “principal power switch.” This would seem to be true under the Secretary’s interpretation.

            In response to the Inspector’s stated concern, in support of the standard’s application in this instance, that the need for prompt recognition of a circuit for the purpose of repairs or to deal with an emergency, make such identification critical, the Respondent counters that its main disconnect, being located a mere 3and ½ feet away from the circuit, addresses those concerns. R’s Br. at 8. That main, it submits, is what anyone would turn off for such issues.

            The crux of the Respondent’s position is that the breakers cited were branch circuits, not principal power switches. R’s Br. at 8. In support of this, Respondent turns to the testimony of Mr. Cox, who stated that the principal power switch is the disconnect that feeds the power to the panel boxes which were cited. The cited panel boxes are only branch circuits that feed power to the 110 volt items. Mr. Cox’s position was supported by the fact that there were primary circuits located nearby and those were marked as shut-offs. As the cited panel is housed within a metal, 20-foot-long, shipping container, it makes sense that the emergency shut-off panel is located outside that building. Respondent also correctly points out that no one who testified at the hearing for the Secretary was a qualified electrician and therefor the case for deference to the Secretary’s interpretation is unsupported. R’s Br. at 9. The Court agrees.

            The Court concludes, while normally the Secretary is entitled to deference, as an evidentiary matter, it did not establish that deference is due here. The Secretary did not point to any policy interpretation, nor any authoritative source, nor to any Commission law establishing what is meant by a “principal power switch.” Instead, it merely claimed that the cited boxes were such switches because the inspector, who is not an electrician, and who did not point to any electrical code definition, simply asserted that they were. Deference certainly requires more than that. This is especially true given that the Inspector was found to be misinformed about critical information relating to his citations and because he either did not know about or misunderstood the close proximity of the main switches nearby the cited switch boxes.

            Accordingly, the Secretary having failed to meet her burden of proof for both these citations, they are VACATED.

Citation No 6555598

            For Citation No 6555598, Inspector Ackley cited the Respondent under 30 C.F.R. 56.14132(a). That section, entitled “Horns and backup alarms,” provides: “ (a) Manually operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.” The Inspector tested the horn on a scraper and it did not sound. There is no dispute that the cited scraper is a piece of “self-propelled mobile equipment” and therefore within the standard’s coverage. Although the mine operator told the Inspector that it had been working, the Inspector never heard it function. There was another scraper in the area but no persons were on foot beyond the Inspector and the person with him for the inspection. This prompted him to list the gravity as “unlikely.” Tr.224. The Inspector also listed the violation as “moderate negligence” because the scraper had just been brought to the mine site that day. He calculated that it had been on site for approximately five hours. Tr. 225- 226. He also acknowledged that a horn could simply stop working overnight, and he had no idea how long the problem had been present. Tr. 226. Having acknowledged that, the Inspector still felt that the operator should have detected the problem, as part of its safety check before putting the equipment in operation.

            While the operator told the Inspector that the horn had been working, it never worked when the Inspector was present for a test. Tr. 228. Still, the Inspector acknowledged that he heard it sound when it was operating. It simply didn’t work when tested. Tr. 229. The Inspector, based on his hearing it working while he was present, albeit not when tested, agreed that it was possible that the horn worked when it was tested during the preshift examination. Tr. 232-233. The Inspector simply could not recall if he examined the preshift reports to see if the horn had been checked that day. Tr. 233. Based on the Inspector’s testimony, it is fair to conclude that the horn worked intermittently but that it never worked when tested and the Court finds this as a fact.

            Mr. Cox then testified about the matter, but his recounting varied from the Inspector’s, as he asserted that in fact the horn did sound at least some of time when it was tested in front of the Inspector. Tr. 234. Mr. Cox corrected the Inspector’s testimony, asserting that it was actually the scraper’s second day at the site. According to his version, the horn was tested pre-shift and found to be working that day. Tr. 235, 236. Thus, Respondent contended that the horn problem developed after the pre-shift, at some point during that day’s operation. Tr. 236. Respondent added, without contradiction, that the scraper had been working in a jarring environment, (i.e. under dusty, dirty and rough conditions) which is harsh on such equipment as horns and lights. Ultimately, the horn was replaced, because it was found to be unreliable. Tr. 237.

            Accordingly, for Citation No 6555598, the Court finds that the horn was working when the equipment was examined during its pre-shift and that it worked, albeit only intermittently, when the Inspector was present. On this record, it is concluded that the horn was working when the shift began and only later started acting up, working intermittently thereafter. The citation is therefor VACATED.

Citation No. 8662001

            The parties briefly addressed the Citation pertaining to a D8T bulldozer with a fire extinguisher missing its identifying tag, Citation No. 8662001. The Respondent maintained that the tag “blew off” the extinguisher. The parties agreed that the Secretary would amend that Citation to reflect “no lost workdays,” but the negligence would remain as “moderate.” This change, they parties acknowledged, would impact the penalty the Court would assess. Tr. 242- 244. Given this change, the Court AFFIRMS the violation and assesses a penalty of $75.00.

Citation No. 6555599

            The last Citation in issue, Citation No. 6555599, alleges a violation of 30 C.F.R. 56.12004. Entitled, “Electrical conductors,” it provides: “Electrical conductors shall be of a sufficient size and current-carrying capacity to ensure that a rise in temperature resulting from normal operations will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected.”

            Inspector Ackley found the outer protected jacket of a cable to be damaged, exposing inner conductors. “The damaged section was hanging on part of the metal frame for the Grade 9 stacker, the tail section.” Tr. 246. The Inspector focused on the last sentence of the cited standard and its provision that “[e]lectrical conductors exposed to mechanical damage shall be protected.” Here, the copper wires inside the power cable were his concern. This was a 480 volt cable and it was damage to the outer protected jacket that the Inspector cited. Tr. 248. As with the other citations, photographs were taken for this matter as well. GX 19, pages 1, 2, & 3. If matters worsened to the point that the inner conductors were exposed, a fault could occur if those inner conductors were to contact the nearby bare metal that was the frame of the conveyor. If that were to occur, electrical injury, shocks and electrocution could occur. Tr. 249. Still, the Inspector marked the violation as “unlikely” because the inner conductors were not yet damaged at the time of the citation. Tr. 251. He also listed the negligence as “moderate.” He believed that the mine should have discovered the condition as part of its daily workplace examination requirement. Based upon its appearance, he did not feel that the condition he observed was a fresh break. Tr. 252. The defective area was approximately 2 inches long and a half-inch wide.

            For the Respondent’s part, it had its Exhibit 2 admitted. It is a cross-section of a typical cord. The Respondent conceded the violation in that it agreed that the outer protective jacket was cut. Tr. 258. However, not only were the inner leads still insulated, but the Inspector agreed that all 3 inner leads would need to be bare for one to receive a full 480 volt shock. Tr. 259. Mr. Cox testified about the Citation for the Respondent. In total, he estimated that the mine would have in the neighborhood of 3 to 4 miles of such cable. Tr. 263. This was plainly offered to make the point that keeping up with the condition of every inch of the cable is no easy task. Mr. Cox also offered, as a mitigating circumstance, that the mine continually certifies that such equipment is grounded “so that if [it were] to short, it would immediately go to ground.” Tr. 264. The mine also has other safety devices to reduce the risk of shock such as ground fault alarms and thermal protection in the overload to kill the circuit. The Respondent’s point was that it is attentive to this matter and takes the issue seriously. Tr. 265. With the routine vibration these belts are exposed to, it is common for the mine to splice a cord once every week or two. Tr. 265. Mr. Cox did agree that it is practice to repair a condition, such as was cited, as soon as [he] found it.” Tr. 267.

            Based on the evidence of record, this Citation is AFFIRMED and the Court imposes the civil penalty of $75.00 (seventy-five dollars).

ORDER

           Beverly Materials LLC is ORDERED to pay a total civil penalty of $375.00 (three hundred seventy-five dollars) within 40 days of this decision.

                                                                                                                     /s/ William B. Moran

                                                                                                                     William B. Moran

                                                                                                                     Administrative Law Judge

Distribution:

Breyana A. Penn, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, Colorado, 80202-5708

Dave Zumbrunn, General Manager, Beverly Materials L.L.C., 1100 Brandt Drive, Hoffman Estates, Illinois 60192