<DOC>
[DOCID: f:k94-89.wais]

 
B & A COAL COMPANY
May 2, 1995
KENT 94-89


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                             May 2, 1995

SECRETARY OF LABOR,              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. KENT 94-89
                Petitioner       :  A.C. No. 15-16928-03525
                                 :
          v.                     :  No. 1 Mine
                                 :
B & A COAL COMPANY,              :
  INCORPORATED,                  :
                Respondent       :

                               DECISION

Appearances:  Brian W. Dougherty, Esq., Office of the Solicitor,
              U.S. Department of Labor, Nashville, Tennessee,
              and Gerald W. McMasters, Mine Safety and Health
              Administration, Pikeville, Kentucky, for the
              Petitioner.  Abram Adkins, pro se, for the
              Respondent.

Before:  Judge Weisberger

Statement of the Case

     This case is before me based upon a Petition for
Assessment of Civil Penalty filed by the Secretary of Labor
(Petitioner) alleging a violation by B & A Coal Company
of 30 C.F.R. § 75.523-3.  A hearing on this matter was held in
Paintsville, Kentucky, on March 22, 1995.

Findings of Fact and Discussion

     On August 3, 1992, Douglas Looney an MSHA Inspector,
inspected a drift opening mine, operated by B & A Coal
Company ("Operator").  He inspected three rubber-tired
self-propelled battery operated Mescher tractors.  The
tractors were used to transport coal from the working
section to the surface dump point, a distance of 1,500
feet.  The terrain was relatively level with "some dips"
(Tr. 50).  These vehicles were equipped with parking
brakes that engaged when a panic bar was applied.  Also
they were capable of being operated manually.  Looney
disconnected the batteries on these vehicles and observed
that "the brake pads didn't come out against the brake
disk" (sic) (Tr. 67).

     Looney issued a section 104(a) citation for each of
these vehicles alleging, in each case, a violation of 30
C.F.R. § 75.523-3.  Section 75.523-3, supra provides
that, pertaining to rubber-tire self-propelled electric
haulage equipment used in the active workings of
underground mines that " . . . . (b) automatic emergency-
parking brakes shall . . .  (2) engage automatically
within 5.0 seconds when the equipment is
deenergized . . .  ".

     The Operator did not rebut, contradict, or impeach the
testimony of Looney regarding his observations and actions.
Abram Adkins, an agent of the Operator, agreed that when
the vehicles are deenergized the parking brakes "wouldn't
set up" (Tr. 77).  As a defense, the Operator argues, in
essence, that nothing was available from the manufacturer
to allow the brake to engage upon being deenergized.  Adkins
testified that he put "everything" on the tractors that was
"available", and the Pikeville MSHA office "approve it" (sic)
(Tr. 78. 79), Adkins stated as follows: "I've run a tractor
for 30 year (sic) and I've never had a man hurt" (Tr. 87).

     The terms of Section 75.523-3, supra, are clear,
unequivocal, and unconditional. Based upon the testimony of
Looney, I conclude that the equipment at issue did not engage
automatically within 5.0 seconds when the equipment was
deengerized.  I thus conclude that the Operator did violate
Section 75.523-3, supra.

     Adkins conceded that he was aware that the brakes on the
vehicles in questions would not engage when the equipment was
deenergized.  It was his testimony, however, that in essence,
he put everything available on the tractors, and that the
Pikeville MSHA Office approved it.   Petitioner did not
impeach or contradict this testimony.  I find on the basis of
this testimony that the Operator's negligence has been mitigated
to some degree.  I find that a penalty of $50 is appropriate
for each of the cited conditions.

                                ORDER

     It is ORDERED that, within 30 days of this decision, the
Operator shall pay a civil penalty of $150.


                                 Avram Weisberger
                                 Administrative Law Judge


                         Distribution:

Brian W. Dougherty, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)

Gerald W. McMasters, Mine Safety and Health Administration,
Ballston Tower #3, Room 414, 4015 Wilson Blvd., Arlington,
VA 22203 (Certified Mail)

Mr. Abram Adkins, 1252 Greasy Creek Road, Shelbiana, KY
(Certified Mail)

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