<DOC>
[DOCID: f:kt99193.wais]

 
DOTSON TRUCKING COMPANY, INCORPORATED
March 30, 2000
KENT 99-193


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         March 30, 2000

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. KENT 99-193
               Petitioner       : A. C. No. 15-16958-03510 HD2
          v.                    :
                                :
DOTSON TRUCKING COMPANY         :
  INCORPORATED,                 :
               Respondent       : Long Fork Preparation Plant
                                :
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. KENT 99-201
               Petitioner       : A. C. No. 15-16958-03517
          v                     :
                                :
MCCOY ELKHORN COAL CORP.,       :
               Respondent       : Long Fork Preparation Plant

                             DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
             U.S. Dept. of Labor, Nashville, Tennessee, on 
             behalf of the Secretary of Labor;
             Billy R. Shelton, Esq., Baird, Baird, Baird &
             Jones, P.S.C., Lexington, Kentucky, on behalf of
             Dotson Trucking Incorporated;
             Melanie J. Kilpatrick, Esq., and Marco M. Rajkovich, 
             Jr., Esq., Wyatt, Tarrant & Combs, Lexington, 
             Kentucky, on behalf of McCoy Elkhorn Coal 
             Corporation.

Before: Judge Melick

     These consolidated cases are before  me  upon  petitions for
Civil  Penalty  filed  by  the Secretary of Labor against  Dotson
Trucking  Company,  Inc.,  (Dotson)   and   McCoy   Elkhorn  Coal
Corporation  (McCoy)  pursuant  to Section 105(d) of the  Federal
Mine and Safety and Health Act of  1977, 30 U.S.C. � 801 et seq.,
the "Act," alleging violations of mandatory standards and seeking
civil penalties of $60,000.00 and $25,000.00,  respectively,  for
those  violations.   The  general  issue before me is whether the
violations were committed as alleged  and,  if  so,  what  is the
appropriate civil penalty to be assessed considering the criteria
under Section 110(i) of the Act.  Additional specific issues  are
addressed as noted.
Background

     On  Tuesday,  September 1, 1998, at approximately 2:45 p.m.,
truck driver Charlie Hall was injured when he failed to negotiate
a curve while descending  the  refuse  haul  road  at the subject
mine.   Hall  died of his injuries on September 13, 1998.   McCoy
operates the cited  coal  preparation  plant  and Dotson provides
trucking services hauling refuse from the plant by road up a hill
to the refuse dumping area.  At the top of the  hill  an employee
of  Sky  Hawk  Construction  operated  a bulldozer to spread  the
refuse  material.   After Dotson's haulage  trucks  dumped  their
refuse they traveled  unloaded  down  the hill to the preparation
plant to be reloaded.

     On September 1, 1998, Dotson was using  four  trucks to haul
refuse.   One  of  these  trucks, the Cline Number 77, was  being
driven by Charlie Hall.  Hall  was  traveling  unloaded  down the
refuse  haul road on a 15% grade, apparently lost control of  his
truck, failed  to  make the turn at the Number 1 curve and passed
through the berm into  the  side  of  a  hill.  When Hall's truck
struck the hillside, he was projected through  the windshield and
landed in a ditch.

     On  September  1, 1998, Buster Stewart, an experienced  coal
mine inspector and accident  investigator for the Mine Safety and
Health  Administration (MSHA) and  Robert  H.  Bellamy,  an  MSHA
mining engineer,  proceeded  to  the  mine  to  investigate.  The
investigation continued on September 2, 1998, and on September 3,
1998, when Dennis Ferlich and Terry Marshall from MSHA's Approval
and  Certification  Center  arrived.   Ferlich  is  a  mechanical
engineer who focused his investigation on the braking system  and
related components of the cited truck.

The Alleged Violations

     Citation   Number  3816166,  issued  to  Dotson,  alleges  a
"significant and  substantial"  violation  of  the standard at 30
C.F.R. � 77.1605(b) and charges as follows:

          The  Cline refuse truck #77 was not provided  with
     adequate  brakes.   The  truck  was  examined  by  MSHA
     Technical Support  personnel and defects to the braking
     system were documented  which  include  that  the front
     brakes were not operational.

     The  cited  standard  30  C.F.R.  �  77.1605(b) provides  as
relevant hereto that "[m]obile equipment shall  be  equipped with
adequate brakes."

     Citation Number 7350320 was issued to McCoy and also alleges
a  "significant  and  substantial"  violation of the standard  at
77.1605(b).  It charges as follows:

     The 50-Ton Cline Refuse Truck, Co.,  No.  77,  was  not
     provided  with  adequate service brakes that would stop
     the truck in an emergency  situation  on the roadway it
     was  traveling.   On September 1, 1998, the  truck  was
     returning empty to  the  refuse  bin  when it failed to
     negotiate the No. 1 curve.  The truck traveled  through
     the berm and impacted the hillside.  The evaluation  of
     the  testing performed by MSHA Technical Support during
     the fatal  accident  investigation concluded the brakes
     were inadequate at the time of the accident.  The truck
     has been out of service since the accident.

     Citation  Number  7351484,   issued   to   Dotson   and   as
subsequently  modified,  alleges  a "significant and substantial"
violation of the standard at 30 C.F.R.  �  77.1607(c) and charges
as follows:

     Equipment operating speeds are not consistent  with the
     conditions of the roadway, grade, and type of equipment
     being  used.   On  September 1, 1998, a powered haulage
     accident  occurred  resulting   in  fatal  injuries  to
     Charlie R. Hall, truck driver.  The  accident  occurred
     when the #77 Cline refuse truck failed to negotiate the
     #1 curve.  The truck traveled through the berm and over
     the out slope of the road and in to  the hillside.  The
     gravel on the road was firmly embedded and worn  slick.
     The  grade  of  the  road in the area was approximately
     15%.  Extra water had  been  added  to  the  refuse and
     allowed  to  leak  from the truck beds for dust control
     purposes which added  to  the  condition.   The road is
     maintained by Dotson Trucking, Inc.

     The  cited  standard,  30  C.F.R. � 77.1607(c), provides  as
follows:

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

     Citation Number 7351483, issued to McCoy and as subsequently
modified, also alleges a "significant and substantial"  violation
of 30 C.F.R. � 77.1607(c) and charges as follows:

     Equipment  operating speeds are not consistent with the
     conditions of the roadway, grade, and type of equipment
     being used.   On  September  1, 1998, a powered haulage
     accident  occurred  resulting  in   fatal  injuries  to
     Charlie  R. Hall, truck driver.  The accident  occurred
     when the #77 Cline refuse truck failed to negotiate the
     #1 curve.  The truck traveled through the berm and over
     the out slope  of the road and in to the hillside.  The
     gravel on the road  was firmly embedded and worn slick.
     The grade of the road  in  the  area  was approximately
     15%.   Extra  water  had been added to the  refuse  and
     allowed to leak from the  truck  beds  for dust control
     purposes  which added to the condition.   The  on-shift
     examinations are conducted by McCoy Elkhorn personnel.

Evaluation of the Evidence

     Both  MSHA  investigators,  Stewart and Bellamy, opined that
truck driver Charlie Hall had been traveling  at  excessive speed
in the presence of adverse road conditions.  They concluded  that
the  haul  road  where  the  accident occurred was slick from the
deposition of water and from gravel  worn  to  a  smooth surface.
They  also considered the skid marks at the Number 1  curve;  the
fact that the same truck had been driving this haul road for four
hours before the accident on September 1, 1998, without incident;
and reports  from  interviews  that the victim, Charlie Hall, was
known to drive fast down the haul road.

     Mechanical  engineer  Dennis   Ferlich's  opinions  are  not
disputed.  Ferlich found that three of  the  six  brakes  on  the
cited  truck  were  completely inoperative and that the remaining
three brakes had a reduced  functional  capacity.  He opined that
the cited Cline Number 77 truck had only  about 50% of its normal
braking  capacity  and  therefore the brakes were  not  adequate.
Ferlich further opined that  it  was  much  more  likely that the
accident  would  not  have  happened  if  the truck had had  full
braking capacity.  Ferlich also opined that,  based  upon his own
examination  of  the  brakes  and  the testimony of William  New,
Dotson's chief mechanic, Dotson did not in fact have a preventive
maintenance program.  In this regard  he  noted  the  failure  of
Dotson to have replaced the worn brake drums.

     William  New was the chief mechanic at Dotson and had worked
for Dotson his  entire  mining  career of 16 years.  New was also
supervisor  for  Dotson's  two  other  mechanics  and  its  truck
drivers.  According to New, Hall  had worked for Dotson for three
to four years before the accident on  September 1, 1998.  New was
aware even before the accident that Hall  had  a reputation among
the truck drivers for driving "too fast" down the  haul road.  He
defined "too fast" as "coming off the hill" in fourth  gear.  New
had himself seen Hall driving too fast on two occasions,  one  of
which  was only two to three weeks before the accident.  He asked
Hall to  slow down "because it was too dangerous to come off that
fast."

     New  also   testified   that   there   were  no  established
disciplinary  procedures at Dotson for violating  company  rules.
When asked if he  had ever disciplined Hall for driving too fast,
he responded only that  "I  had  spoke [sic] to him about driving
too fast."  New agreed with the Secretary's  experts that "by all
of  the  signs  at the accident scene" Hall had been  "definitely
going fast."

     Tommy Bevins, vice-president, secretary of Dotson and one of
Dotson's owners,  testified  about  Dotson's lack of disciplinary
procedures in the following colloquy:

     Q.  The 15 or 22 employees that  you  had in 1998, what were
     your disciplinary procedures or operation there, for example
     for driving too fast?

     A.  Well, if it was a constant thing I  would  probably have
     fired  them.   But  as  far as-I'm just a small operator,  I
     don't have a lot of extra  people,  and I couldn't afford to
     furnish . . . . So I couldn't have six  or  eight drivers to
     fill  in if I disciplined one or laid him off.   So  what  I
     tried to  do  was  really  stay  on them, caution them about
     safety factors of it.

(Tr. 12/14/99 at 61, 76-77).

     Bevins also testified that Dotson  did not examine the drums
or brake shoes on its equipment unless there  was  a problem.  He
later  testified,  regarding  Dotson's  method of inspecting  the
brakes on its equipment, as follows:

     We do it the same way MSHA does, you know, if they stop
     then we assume they are all right.   You  know,  like I
     say, if we see a problem we fix it, but if they stop we
     assume they are all right.

(Tr. 11/16/99 at 281-282).  (Tr. 12/14/99 at 109).

     Todd Lowe was employed on September 1, 1998, as a  bulldozer
operator for Sky Hawk Construction, a company also owned by Tommy
Bevins.  In order to get to and from his work site on the  top of
the  hill  he  would  ride with one of the truck drivers.  He had
been a passenger with Charlie  Hall  on  two  or  three  of these
occasions  and  would not ride with him again.  He was afraid  to
ride with Hall because "he came off the hill too fast."

     Based on the  undisputed evidence alone it is clear that all
of the violations have  been  proven  as  charged.   Citation No.
7351484  against  Dotson  and Citation No. 7351483 against  McCoy
both allege violations of the  standard at 30 C.F.R. � 77.1607(c)
and charge that the haulage truck  driven by Charlie Hall was not
operated at a speed prudent and consistent with conditions of the
roadway,  grades and related conditions  and  with  the  type  of
equipment being  used.  There is no dispute that the haulage road
at the No. 1 curve was slick from water and with gravel which had
been worn smooth.   The area descended steeply at a grade of 15%.
Skid marks also indicated that the truck was proceeding at a high
rate of speed when it  entered  the  No.  1  curve.  There is, in
addition,  undisputed  evidence  that  this truck  driver  had  a
practice of driving with excessive speed down the haul road.

     The  violations  were  clearly  also  of  high  gravity  and
"significant   and   substantial."   A  violation   is   properly
designated as "significant  and  substantial"  if,  based  on the
particular  facts  surrounding  that  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:

          In  order  to  establish  that  a violation  of  a
     mandatory   safety   standard   is   significant    and
     substantial  under  National  Gypsum the Secretary 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.

     See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th  Cir.  1988),  aff'g  9 FMSHRC 2015,  2021  (December  1987)
(approving Mathies criteria).

     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)).  The likelihood of such injury must be evaluated in terms
of continued normal mining  operations without any assumptions as
to abatement.  U.S. Steel Mining Co.,  Inc.,  6 FMSHRC 1573, 1574
(July  1984);  See  also Halfway, Inc., 8 FMSHRC 8,  12  (January
1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).

     There is no dispute that haul truck driver Charlie Hall died
as a result of the injuries he sustained when his truck proceeded
through the berm, struck a hillside and he was thrown through the
window of his truck.   There  likewise can be no dispute that the
accident was caused by imprudent  driving  considering  the  road
conditions  including the grade and slickness of the road.  Under
these circumstances  the violations were clearly "significant and
substantial."

     McCoy nevertheless  claims  that  it  is  not liable for the
violation  charged in Citation No. 7351483, because  neither  its
employees, its equipment nor its activities caused or contributed
to the violation.   The  Commission  and various courts have long
recognized,  however,  that,  under the Act's  scheme  of  strict
liability, an operator, although without fault itself may be held
liable for the acts of its independent  contractor.  Bulk Transp.
Services, Inc., 13 FMSHRC 1354, 1359-60 (September  1991); Cyprus
Indus. Minerals Company v. FMSHRC, 664 F.2d 1116, 1119  (9th Cir.
1981).   In  instances  of multiple operators, the Secretary  has
"wide  enforcement  discretion"   and  may  proceed  against  the
operator, independent contractor, or both.  Mingo Logan Coal Co.,
19 FMSHRC 246, 249 (February 1997), Aff'd per curiam, No. 97-1392
(4th Cir. January 8, 1998); Consolidation Coal Company, 11 FMSHRC
1439,  1443 (August 1989).  The Commission  has  determined  that
"its review  of  the  Secretary's action in citing an operator is
appropriate to guard against  abuse  of  discretion."   W-P  Coal
Company, 16 FMSHRC 1407, 1411 (July 1994).  A litigant seeking to
establish  an  abuse  of  discretion  bears  the  heavy burden of
establishing that there is no evidence to support the Secretary's
decision   or   that   the  decision  is  based  on  an  improper
understanding of the law.  Mingo Logan, 19 FMSHRC at 249-50 n.5.

     The Commission has considered various factors in determining
whether  an  enforcement  action  constitutes  an  abuse  of  the
Secretary's  discretion,  including   the  operator's  day-to-day
involvement in the mine's operations, whether  the operator is in
the  best  position to effect safety and whether the  enforcement
action is consistent  with  the  purpose and policies of the Act.
Secretary v. Extra Energy Inc., 20 FMSHRC 1 (January 1998).

     In this case I find that McCoy  had  substantial involvement
in the day-to-day operations at the mine in  that it operated the
preparation plant at which the waste material  hauled by Dotson's
trucks originated, it directed Dotson's trucks to  the  place  to
dump  the  waste  material  and  it  retained overall directorial
authority  over  the  haul trucks.  In addition,  McCoy  took  no
measures to ensure that  the  Dotson's  haul  truck  drivers were
driving  at  a  reasonable  and  prudent  speed  considering  the
conditions of the haul road.

     As  the  Secretary  observes in her brief it is  clear  that
McCoy's employees were also  exposed  to the hazards presented by
the reckless driving of Charlie Hall.   Indeed, Gary Thacker, who
was  at  the  time of the accident McCoy's plant  superintendent,
testified that  he  and  other  employees of McCoy's traveled the
haulage  road  in  order  to  carry  out  the  required  on-shift
examination  for  McCoy as well as for other  purposes.   Thacker
also testified that  on  occasion  William Spears, McCoy's safety
director  traveled  this  road to perform  his  own  inspections.
Thacker  testified that while  traveling  on  the  haul  road  he
remained in  contact with the Dotson truck drivers by radio since
they were traveling  the  same  road  at  the same time.  Clearly
Dotson's  trucks therefore posed a hazard to  McCoy's  employees.
It is consistent  with  the purposes of the Act that McCoy should
therefore have an active  role in assuming that its employees are
protected by ensuring that  its contractor had competent and safe
drivers on its mine property.

     Based  on the credible and  unchallenged  testimony  of  the
Secretary's expert mechanical engineer Dennis Ferlich, it is also
clear that the violations charged in Citation No. 7350320 against
McCoy and Citation  No.  3816166  against  Dotson  have also been
proven as charged.  30 C.F.R. � 77.1605(b) requires  that  mobile
equipment  be  equipped with adequate brakes.  Ferlich's credible
and undisputed testimony  that the subject Cline No. 77 truck had
only three operative brakes  out  of  six  and  that  its braking
capacity had been reduced by 50% is clearly sufficient to sustain
the  violations.   The  violations were also of high gravity  and
"significant and substantial."   In  this  regard  Ferlich opined
that  if the subject 50-ton haul truck had been equipped  with  a
fully functioning  brake  system  then  the  deceased  could have
stopped  the  truck  before  he  struck  the  hillside.   It  may
reasonably be inferred in this case therefore that the inadequate
brakes were a causative factor in the death of Charlie Hall.

     McCoy  nevertheless  argues again that it should not be held
liable because the Secretary abused her discretion in issuing the
citation.  McCoy maintains  that  its employees did not work with
or alongside Dotson Trucking employees and the alleged violations
were abated by the employees by Dotson.   Applying the principles
of  law  previously  stated  it  is  noted  that Dotson's  trucks
represented a hazard to McCoy's employees who  were  required  to
travel  the  same  haul  road  on which Dotson's haul trucks were
operating.  As previously noted  McCoy  was  also responsible for
the  overall day-to-day mining activities at this  operation  and
provided  overall  direction  to Dotson's employees including the
location to dump and designated  the  haul  roads to be utilized.
In addition, McCoy took no measures to ensure  that the brakes on
the haulage trucks were safe either by inspecting  them itself or
by  requiring Dotson to do so.  As a result, the obvious  defects
in the   braking system were not discovered.  Through its failure
to inspect  or  ensure that the haul trucks were inspected, McCoy
contributed  to  the  braking  violation  and  to  the  continued
existence of the violation.   See  Extra  Energy, 20 FMSHRC at 6.
Under the circumstances I cannot find that  the  Secretary abused
her discretion in citing McCoy for the violation herein.

Negligence Regarding Violations of 30 C.F.R. � 1607(c)

(a) Dotson's Negligence.

     It  is established that haul truck driver Charlie  Hall  was
traveling  at  excessive  speed for the conditions present at the
time  of his accident and that  it  may  reasonably  be  inferred
therefrom  that  Hall was highly negligent.  The issue is whether
the negligence of  a rank and file truck driver may be imputed to
Dotson for purposes of assessing a civil penalty. In Southern Ohio 
Coal Co, 4 FMSHRC 1459 (August 1982)  the Commission  stated that,  
in the context of evaluating operator conduct for the purposes of
penalty  assessment "where a rank-and-file employee has  violated
the Act, the  operator's  supervision,  training and disciplining
must  be  examined  to  determine  if  the  operator   has  taken
reasonable  steps  to prevent the rank-and-file miners' violative
conduct."  The Commission  also stated in that case that the fact
that a violation was committed by a non-supervisory employee does
not necessarily shield an operator  from  being  negligent.   "In
this  type  of  case,  we  look  to  such  considerations  as the
foreseeability  of  the  miners' conduct, the risks involved, and
the operator's supervising,  training  and  disciplining  of  its
employees to prevent violations of the standard in issue."  A. H.
Smith Stone Co., 5 FMSHRC 13, 15 (January 1983).

     In  the instant case it is undisputed that haul truck driver
Charlie Hall  was traveling at excessive speed for the conditions
present on the  date of his accident.  It is also undisputed that
Hall's  supervisor,   William   New,   had  knowledge  of  Hall's
propensity for driving at excessive speed  down  the  haul  road.
New  was  aware not only of Hall's reputation for excessive speed
but also had  personally observed this behavior only two or three
weeks before the accident at issue.   Hall was "talked to" but no
disciplinary action  was  taken.   Tommy  Bevins,  one of the co-
owners  of  Dotson  confirmed  that  he could not, or would  not,
institute  any  disciplinary  procedures   because   of  a  labor
shortage.  Under the circumstances, it may reasonably be inferred
that  because of Hall's continued unpunished behavior in  driving
down the  haulage  road  at  excessive speed that the accident on
September  1,  1998,  was  a foreseeable  result  of  a  lack  of
discipline and/or training.   Dotson  is  accordingly responsible
for Hall's negligence in driving at an excessive  speed  down the
haul road on September 1, 1998.

(b) McCoy's Negligence.

     While the Secretary has alleged in the citation at bar  that
McCoy was chargeable with "moderate" negligence she fails to cite
in her post-hearing brief any evidence to support such a finding.
Indeed,  McCoy  notes  in  its  post-hearing  brief  that  Dotson
performed  all  maintenance  on  the  road,  that  McCoy  did not
directly   supervise   Dotson's   truckers,  that  McCoy  had  no
information that Hall had a reputation  for  driving at excessive
speed or that he in fact had been observed driving  the  road  at
excessive  speed.   These  facts are indeed undisputed and, under
the circumstances, I cannot find McCoy chargeable with negligence
for this violation.

Negligence Regarding Violations of 30 C.F.R. 77.1605(b)

(a) Dotson's Negligence

     The Secretary's expert,  mechanical engineer Dennis Ferlich,
credibly testified without contradiction  that  the brakes on the
cited truck were seriously defective.  The truck  had  only three
of its six brakes operative and its braking capacity was  reduced
by  50%.   Dotson  mechanic-in-charge  William New testified that
they perform their own service and maintenance  such as adjusting
brakes and installing brake drums and brake shoes  on the trucks.
According to Tommy Bevins, one of Dotson's owners, the brakes are
not routinely inspected and if the trucks "stop" they are assumed
to be all right.  Dotson therefore by its own admission failed to
comply  with  the  standard  at 30 C.F.R. � 77.1606.[1]   By  its
failure to have conducted legally  mandated  inspections  on  its
haulage  truck  brakes,  Dotson  was  clearly negligent.  See Jim
Walter Resources Inc., 19 FMSHRC 1646, 1649 (October 1997).

(b) McCoy's Negligence

     The Secretary argues in this regard that McCoy had a duty to
inspect  the maintenance records of Dotson  to  ensure  that  the
subject Cline  #77  Truck as well as other Dotson equipment being
used  on  its  mine property  was  being  maintained  in  a  safe
operating condition.   See  Secretary  v.  Extra  Energy Inc., 20
FMSHRC  1  (January  1998).   There  is  no  evidence that  McCoy
inspected or ensured that the Dotson trucks were  inspected  and,
accordingly,  within  the framework of the Extra Energy decision,
McCoy was negligent in this regard.

Civil Penalty

     In assessing civil  penalties  in  these  cases  I have also
considered that Dotson is a small operator with a modest  history
of  violations  and  that  McCoy  is  a  large  operator  with  a
significant  history  of violations.  The instant violations were
abated appropriately and  there  is no evidence that the assessed
penalties  would affect the ability  of  either  to  continue  in
business.  The  negligence and gravity criteria have already been
discussed with respect to each violation.

                              ORDER

     Citations  No.   3816166   and   7351484   are  affirmed  as
"significant  and  substantial"  citations  and  Dotson  Trucking
Company, Inc., is directed to pay civil penalties  of  $35,000.00
and  $25,000.00  respectively  for the violations charged therein
within  40  days  of the date of this  decision.   Citations  No.
7361483 and 7350320 are affirmed as "significant and substantial"
citations and McCoy  Elkhorn  Coal Corporation is directed to pay
civil penalties of $200.00 and  $2,000.00  respectively  for  the
violations  charged  therein  within  40 days of the date of this
decision.


                               Gary Melick
                               Administrative Law Judge


Distribution: (Certified Mail)

Thomas A. Grooms, Esq., Office of the Solicitor,  U.S.  Dept. of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

Billy  R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841
Corporate Drive, Suite 101, Lexington, KY 40503

Marco M.  Rajkovich,  Jr.,  Esq.,  & Melanie J. Kilpatrick, Esq.,
Wyatt, Tarrant & Combs, Lexington Financial  Center,  Suite 1700,
250 West Main Street, Lexington, KY 40507

/mca


**FOOTNOTES**

     [1] The  standard  at  30  C.F.R.  � 77.1606 provides  that
"mobile loading and haulage equipment shall  be  inspected by a
competent person before such equipment is placed in operation."