.
AMAX COAL WEST, INC.
July 18, 1997
WEST 97-47


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            July 18, 1997

SECRETARY OF LABOR,              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. WEST 97-47
               Petitioner        :  A.C. No. 48-01078-03537
          v.                     :
                                 :  Eagle Butte Mine
AMAX COAL WEST, INC.,            :
               Respondent        :

                             DECISION

Appearances:   Patrick  M.  Zohn,  Esq., Office of the Solicitor,
               U.S. Department of Labor,  Cleveland, Ohio; Edward
               Falkowski,  Esq.,  Office of the  Solicitor,  U.S.
               Department of Labor,  Denver, Colorado (on brief);
               Ronald  F.  Paletta,  Conference   and  Litigation
               Representative,    Mine    Safety    and    Health
               Administration,  U.S.  Department of Labor, Price,
               Utah, for Petitioner;
               R. Henry Moore, Esq., Buchanan Ingersoll. Pittsburgh,
               Pennsylvania, for Respondent.

Before:  Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through  her Mine
Safety and Health Administration (MSHA), against AMAX Coal  West,
Inc.,  pursuant  to  section  105  of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. �  815.   The  petition  alleges  a
violation   of   the  Secretary's  mandatory  health  and  safety
standards and seeks  a  penalty  of $506.00.  For the reasons set
forth below, I vacate the citation.

     A hearing was held on April 9,  1997,  in Gillette, Wyoming.
The parties also submitted post-hearing briefs in this case.

                            Background

     AMAX  operates the Eagle Butte surface coal  mine  which  is
situated in  Campbell  County, Wyoming, near Gillette.  During an
August 20, 1996, inspection  of  the mine, MSHA Inspector Herbert
Skeens  observed what he believed to  be  an  unsafe  tire  while
inspecting  a  240 ton Caterpillar off-road haul truck.  The tire
was the inside tire of the two tires on the right rear.

     Based on his observations, the inspector issued Citation No.
4366124.  The citation  alleges  a violation of section 77.404(a)
of  the  Secretary's regulations, 30  C.F.R.  �   77.404(a),  [1]
because:

          The right rear inside tire on the 793B Caterpillar
     end dump haul truck # 386 is in an unsafe condition.  A
     chunk of the rubber tread approximately 6" x 6" in size
     has been cut away leaving the steel belt cords exposed.
     The 3  outer  steel  cord  layers  are  completely worn
     through in the 6" x  6" area.  The 4th steel cord layer
     is worn through in 2/3 of the 6" x 6" area.  At least 7
     steel cords are broken in the 5th layer.  The tire is a
     40.00R57  tubeless  v-steel  E-lug  radial  Bridgestone
     (serial # 55R002896).  The truck has been removed  from
     service until the tire can be replaced.

(Govt. Ex. P-2.)

             Findings of Fact and Conclusions of Law

     The  Commission  has long recognized that "section 77.404(a)
imposes two duties:  (1)  to maintain equipment in safe operating
condition;  and  (2)  to remove  unsafe  equipment  from  service
immediately.  Peabody Coal  Co.,  1  FMSHRC  1494,  1495 (October
1979).    The   `[d]erogation   of   either   duty  violates  the
regulation.'  Id."  Ambrosia Coal & Construction  Co.,  18 FMSHRC
1552,   1556   (September   1996).   It  has  further  held  that
"[e]quipment  is  in  unsafe operating  condition  under  section
77.404(a) when a reasonably  prudent  person  familiar  with  the
factual   circumstances   surrounding   the  allegedly  hazardous
condition, including any facts peculiar to  the  mining industry,
would  recognize  a  hazard  warranting  corrective action.   See
Alabama By-Products Corp., 4 FMSHRC 2128,  2129  (December  1982)
(involving  identical  standard  applicable  to  underground coal
mines)."  Id. at 1557.

     In  this  case,  I  find  that  a reasonably prudent  person
familiar with the factual circumstances  surrounding  the damaged
tire  would  not  have  recognized a hazard warranting corrective
action.  In doing so, I find  that  the  company's witnesses were
more knowledgeable concerning the tire in  question  than was the
inspector,  who,  furthermore, was not aware of all of the  facts
pertaining  to the tire.

     Inspector Skeens described the tire as follows:

          What I found  was  an  area  that  was  six-by-six
     inches,  approximately.   And in that six-by-six  area,
     the entire tread, rubber layer  was  missing,  was gone
     away.  Whether it had been skived [2] out or torn  out,
     I'm  not sure.  That exposed the steel belts underneath
     the tread layers.

          Okay.   This  six-by-six area left the steel belts
     exposed underneath the  rubber.   And  in  that area, I
     counted  the  outer  three layers of those steel  belts
     were completely worn through.   The fourth layer, which
     is underneath those, there was approximately two-thirds
     of  that steel belt in that six-by-six  area  that  was
     worn  completely  through.  And then the fifth layer, I
     counted a minimum of  seven  steel cords broken in that
     fifth layer on that tire.

(Tr.  24.)   He further stated that his  "concern  was  that  the
damage to the  tire  compromised the structural integrity of that
tire greatly and that  tire  would  fail  at any time, blow out."
(Tr. 26.)

     On the other hand, Steve Laird, an AMAX  safety  manager who
accompanied  the  inspector  on the inspection, Jeff Carter,  the
General Coordinator of Maintenance at the mine, and T. J. Wesley,
the store manager for Fletcher's  Cobre  Tire  in  Gillette,  all
testified  that  the  tire was not in an unsafe condition.  While
they agreed with the inspector  that  there was a six-by-six hole
in the tire and that three steel belts  had  been  skived  out of
that area, they did not agree that there was any danger of a blow
out.  I find their testimony more persuasive.

     Inspector Skeens related that he had gained his knowledge of
tires  from  having  acted  as  a  maintenance foreman and safety
director  for small mines in Virginia  and  Kentucky,  where  the
largest haul  truck  was  40  to  50  tons,  from  his  entry and
intermediate  level  training  for  coal  mine  inspectors at the
National  Mine  Academy, and from a one day training  session  in
Gillette put on by  Cobre  Tire.  Concerning his actual knowledge
of tires and tire maintenance,  I  find  the  following  exchange
illuminating:

     Q.  Now, you said that the three outer steel cords were
     worn through in your citation.  That's what you said?

     A.  Yes.

     Q.   Could  they  have  been  -- rather than being worn
     through, could they have been skived  out  in repairing
     that tire previously?

     A.  That's possible.

     Q.   That's  fairly standard practice when you  have  a
     damaged area of a tire, to skive it out?

     A.  In some cases.

     Q.  And the purpose  of skiving it out, I guess you use
     -- what is it?  A skiving  knife  is  the first step to
     cut away the damaged portion?

     A.  They have some kind of tool to cut or skive it out.

     Q.  You're not sure what type?

     A.  No.

     Q.  And do they use power tools like grinders  and that
     to skive out a tire?

     A.  I'm not sure what they use.

     Q.   I  take  it  you  have  never  been  part  of  any
     maintenance  group that's been in charge of maintenance
     of tires.

     A.  No.

     (Tr. 45-46.)

     The company witnesses had far more experience with, and
knowledge  of,  haul  truck  tires.   Laird has a degree  in
Mining  Engineering, has been in the mining  industry  since
1977,  has   operated   large  haul  trucks  and  supervised
operators of large haul trucks  and  has  examined  numerous
tires.  Carter is in charge of maintenance at the mine.   He
has  worked in maintenance for 20 years and been responsible
for tire  repairs since 1988.  He works closely with the two
Cobre employees who are continuously at the mine and perform
tire inspections,  changes  and  repairs.   He  demonstrated
considerable knowledge of tire components, tire requirements
for  haul trucks and tire repairs.  Wesley has been  in  the
tire business  for  more  than  20  years.   He  was  a tire
repairman for over 15 years, more than 13 of which were as a
repairman at mines.  For the last 7 years he has worked  for
tire dealers supplying tires and tire maintenance to mines.

     That the inspector had less expertise  than the company
witnesses about tires is further evidenced by  his  lack  of
general  familiarity with tires.  For instance, he testified
that the tire's  steel  belts were part of the casing.  (Tr.
60.)  In fact, according  to  the 1990 Bridgestone Technical
Data manual for off-the-road tires,  they  are  not.  (Resp.
Ex.  1, at 6.)  He testified that the term carcass  referred
to the  tread,  belts  and  casing of a tire.  (Tr. 50.)  In
fact, according to the Bridgestone  manual,  a  radial  tire
does  not  have  a  carcass as a bias ply tire does, but its
equivalent would be the casing.  (Resp. Ex. 1, at 6.)

     Furthermore, the citation was issued without an awareness
of all the facts concerning  this  specific tire.  For example,
the inspector testified that the  tire  had  six steel belts
including the casing belt.  (Tr. 31, 45.)  In fact, the tire
had six steel belts plus a casing belt.  (Tr. 148, Resp. Ex.
5.)   In addition, he was not aware that the tire  had  been
repaired  at  an  earlier  date.   Nor was he aware that the
reinforcement patch had been placed  inside that tire during
the repair.  (Tr. 111, Resp. Ex. 3)

     Since the inspector was not aware that the tire had been
repaired,  he did not know that the top three belts had been
skived out, rather than worn out.  Moreover, he demonstrated
a limited knowledge  of MSHA's Tire and Rim Safety Awareness
Program (Rev. 1996).  (Govt. Ex. 3.)  Thus, while he used it
to  point  out  that excessive  speeds  and  rocky  terrain,
neither of which  were  shown  to  be  present in this case,
could have a detrimental affect on tires,  he did not appear
to   be   aware  of  section  G(3)(b)  which  states   that:
"Reinforcement  Repairs  -- are for cuts that penetrate more
than 1/4 but less than 3/4  of  the  tire  plies.   In  such
cases,  strength must be reinforced.  Fabric repair material
is used to reinforce the tire . . . ."  (Govt. Ex. 3 at 19.)
That was  done  to  the tire in this case.  Indeed, although
more than 3/4 of the  plies  were  not  penetrated,  nor the
casing  ruptured,  a  reinforcing  patch  was  placed on the
inside of the tire as recommended for such severe  damage in
section  G(3)(c)  "Section Repairs."  Instead, the inspector
operated under a "rule  of  thumb," not found in the manual,
that if two belts of a tire are  penetrated it must be taken
out of service.  (Tr. 56-58.)

     Wesley, Carter and Laird testified that the tire was safe
for  use on the truck.  All examined the tire at,  or  near,
the same  time  as  the  inspector.  They concluded that the
tire was safe because the  tire  was  not  hot, meaning that
there  was  no  belt  movement or separation; the  remaining
belts did not appear to  be  moving because their protective
rubber covering was still intact;  the  remaining belts were
not  separated;  the  tire  had no other cuts  or  anomalous
conditions and was otherwise  in  good condition; the casing
of the tire was not damaged; the tire had been reinforced on
the inside; and the tire was the inside  tire  of dual tires
on  the  rear,  so that even if it did blow out, which  they
considered extremely  unlikely, operation of the truck would
not be adversely affected  enough  that the driver could not
safely bring it to a halt.

     As Wesley testified, the tire was not unsafe because:

          The damage that was done to that  tire was nothing
     to hurt the structural integrity of it.   You  know, we
     have  talked about the tire, and what you need to  know
     is . .  .  there  is a steel cord that wraps around the
     bead and that is the  casing.  And that is the strength
     of the tire.

          You in fact could have that tire with no tread, no
     belts and run that tire.   The  strength  is not there.
     Carry  the  same load.  Then you have them belts  there
     for -- they are  put in there to protect.  All they are
     there for is to protect the casing.  And then the tread
     is on there to protect the belts.

(Tr. 141.)

     It is evident that  when  this tire was repaired it had been
plugged and the plug had subsequently  fallen  out.   However, as
Wesley stated, "the only reason the plug is there for is  to keep
dirt, water away from the steel.  It's not there to make the tire
strength  [sic] or anything."  (Tr. 165.)  The difference between
dirt and water  getting  into  tire  that  has  been cut, but not
skived out, and a tire that has been skived out is  that dirt and
rocks  can  get trapped inside the cut and cause belt separation,
but cannot be  caught  inside  a skived out area because there is
nothing to contain them.[3]  Consequently, the plug having fallen
out did not make it any less safe,  it  only  meant that the tire
might not wear as long.

     In sum, because of their greater knowledge  and expertise, I
accept the testimony of the company's witnesses over  that of the
inspector.  I find that the damage to the tire was not  as severe
as  the  inspector  believed.   I further find that the company's
witnesses are reasonably prudent  men  with more familiarity with
the factual circumstances surrounding the  hole  in the tire than
the inspector, particularly as the tire was being  used  at  this
mine,  and  that  they  properly  did  not  recognize  any hazard
warranting  corrective action.  Accordingly, I conclude that  the
tire was not  in  an  unsafe  condition  and  that  AMAX did not,
therefore, violate section 77.404(a).

                              ORDER

     It is ORDERED that Citation No. 4366124 is VACATED  and this
case is DISMISSED.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Patrick  M.  Zohn, Esq., Office  of the Solicitor,  U.S.  Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street,  Cleveland,
OH 44199 (Certified Mail)

Edward  Falkowski, Esq., Office  of the Solicitor,  U.S.  Department of
Labor  1999  Broadway, Suite  1600, Denver,  CO  80202-5716  (Certified
Mail)

Mr. Ronald Paletta,  Conference and Litigation   Representative,   U.S.
Department of  Labor,  Mine  Safety  and   Health   Administration,  Wix
Plaza, 215 East Main Street, Price, UT 84501 (Certified Mail)

R.  Henry  Moore,   Esq.,  Buchanan Ingersoll, 301 Grant  Street,  20th
Floor,  Pittsburgh,  PA  15219-1410 (Certified Mail)

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**FOOTNOTES**

     [1]:   Section   77.404(a)   provides   that:   "Mobile  and
stationary  machinery and equipment shall be maintained  in  safe
operating  condition   and   machinery  or  equipment  in  unsafe
condition shall be removed from service immediately."

     [2]:  "Skiving" is the "[r]emoval  of  a  material  in  thin
layers or chips  .  .  .  ."  Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining, Mineral, and Related Terms 1022
(1968).

     [3]: "If you cut a tire,  what's going to damage the tire is
not skiving it out.  If you get  dirt  or  rocks  in  there, then
that's  what's  going  to  start  the  separation."   (Tr.  102.)
Skiving  it  out  "prevents  the  dirt  from getting in there and
starting the separation process."  (Id.)