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[DOCID: f:wv200118.wais]

 
PEN COAL CORPORATION/KIAH CREEK DIVISION
May 31, 2001
WEVA 2001-18


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                          May 31, 2001

SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      : Docket No. WEVA 2001-18
               Petitioner     : A.C. No. 46-07809-03525
          v.                  :
                              : Kiah Creek Preparation Plant
PEN COAL CORPORATION/KIAH     :
   CREEK DIVISION,            :
               Respondent     :

                        SUMMARY DECISION

Before: Judge Bulluck

     This  case  is  before  me upon a Petition for Assessment of
Penalty filed by the Secretary  of Labor, through her Mine Safety
and Health Administration ("MSHA"),  against Pen Coal Corporation
("Pen Coal"), pursuant to section 105(d)  of  the Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(d), for an  alleged violation
of 30 C.F.R. � 77.1109(c)(1).

     The parties filed Joint Stipulations ("JS"),  Joint Findings
of Fact ("JF") and Joint Exhibits ("JEx."), and cross Motions for
Summary Decision and Responses, pursuant to 29 C.F.R.  � 2700.67,
asserting,  among other things, that there are no genuine  issues
as to any material facts in this case.


     I.  Joint Stipulations

     1.  The Administrative Law Judge and the Federal Mine Safety
and Health Review Commission have jurisdiction to hear and decide
this civil penalty  proceeding,  pursuant  to  section 105 of the
Federal Mine Safety and Health Act of 1977.

     2.   Pen Coal Corporation is the owner and operator  of  the
Kiah Creek Preparation Plant.

     3.  Operations  of  the  Kiah  Creek  Preparation  Plant are
subject to the jurisdiction of the Act.

     4.   Pen  Coal  Corporation  may  be considered a large mine
operator for purposes of 30 U.S.C. � 820(i).

     5.  The maximum penalty which could  be  assessed  for  this
violation,  pursuant  to  30 U.S.C. � 820(a), will not affect the
ability of Pen Coal Corporation to remain in business.

     6.  The inspector was  acting in his official capacity as an
authorized representative of  the  Secretary  of  Labor  when  he
issued Citation No. 7192431.

     7.   A  true  copy of the citation listed in Paragraph 6 was
served on Pen Coal Corporation  or  its agent, as required by the
Act.

     8.  The citation listed in Paragraph  6 is authentic and may
be  admitted  into evidence for the purpose of  establishing  its
issuance, and not for the purpose of establishing the accuracy of
any statements asserted therein.

     9.  MSHA's  Proposed  Assessment  Data Sheet accurately sets
forth: (a) the number of assessed penalty  violations  charged to
the Pen Coal Corporation, Kiah Creek Preparation Plant,  for  the
period  from  January 1997 through March 1999, and (b) the number
of inspection days  per  month  for  the period from January 1997
through October 2000.

     10.  MSHA's Assessed Violations History Report, R-17 Report,
may be used in determining appropriate  civil penalty assessments
for the alleged violation.

     II.  Joint Findings of Fact

     1.  On October 29, 1997, Terry Price,  MSHA supervisor, held
a meeting with Bruce Short, general manager for  Pen  Coal;  Bill
Gilkerson,  T&R  Trucking;  and Millard Brewer, truck foreman for
T&R Trucking.  During the meeting,  Price  explained  overlapping
compliance measures to ensure compliance.

     2.   On  April  24,  1998, Pen Coal and T&R Trucking ("T&R")
entered into a Coal Transportation  Agreement,  whereby T&R would
provide services as an independent contractor for  the haulage of
coal to Pen Coal's Kiah Creek Preparation Plant (the "preparation
plant").  A copy of the Coal Transportation Agreement is attached
as Exhibit 1.

     3.   Without  Pen  Coal's knowledge, on or about August  18,
2000, T&R subcontracted with  Bill  Walters  Trucking  to perform
coal haulage services for T&R to the preparation plant.

     4.  On August 24, 2000, Bill Walters, the principal  of Bill
Walters Trucking, was driving the Western Star coal truck, number
SR59-4.

     5.   Bill  Walters  was  hauling  coal from the Copley Trace
surface mine to the Kiah Creek Preparation Plant.

     6.  On August 24, 2000, truck number SR59-4 was not equipped
with a portable fire extinguisher.

     7.  Truck number SR59-4 was owned,  maintained, serviced and
driven exclusively by Bill Walters, a principal/employee  of Bill
Walters Trucking.

     8.   On  August  24,  2000,  MSHA  Inspector Johnny E. Brown
issued  Citation  No.  7192431 to Pen Coal for  violation  of  30
C.F.R. � 77.1109(c)(1).  The citation charged low negligence, but
was modified on October  3,  2000  at  a  conference to charge no
negligence, stating, "In this particular instance, the negligence
is reduced to one level below that of the contractor."  A penalty
of  $55.00  was  assessed.   A  copy  of Citation  No.7192431  is
attached as Exhibit 2.

     9.  On August 24, 2000, Inspector  Brown issued Citation No.
7192430  to  T&R  Trucking  for  a  violation  of   30  C.F.R.
� 77.1109(c)(1).  A copy of Citation 7192430 is attached as
Exhibit 3.

     10.  No citation was issued to Bill Walters Trucking for its
failure  to  equip  truck  number  SR59-4  with  a portable  fire
extinguisher.

     11.   At  the  time  of  the  August  24,  2000  inspection,
Inspector  Brown  told  J.R. Mullins, Pen Coal's safety director,
that he had previously been  instructed  by  his  supervisors  to
write  the  next violation by Pen Coal's contractor as a citation
against Pen Coal.

     12.  T&R  has  its  own  maintenance and service department,
which is responsible for inspecting,  maintaining  and  servicing
trucks used for haulage of coal to the preparation plant.

     13.   Pen  Coal  did  not hire or contract with Bill Walters
Trucking to perform services for Pen Coal.

     14.  Neither Pen Coal's  employees, equipment nor activities
contributed to the absence of a  portable  fire  extinguisher  on
truck number SR59-4.

     15.   The violation was committed by Bill Walters Trucking's
principal/employee.

     16.  The  violation  was abated by the principal/employee of
Bill Walters Trucking.

     17.    Neither  T&R  nor  Bill   Walters   Trucking   submit
inspection, maintenance or service reports to Pen Coal.


     18.   Pen   Coal   does  not  provide  supplies,  materials,
machinery or tools to T&R or Bill Walters Trucking.

     19.  Pen Coal does not  supervise  the  employees  of T&R or
Bill Walters Trucking.

     20.   Pen  Coal employees never drive, ride in, or otherwise
use vehicles owned by T&R or Bill Walters Trucking.

     21.  Pen Coal  had  no  notice or reason to believe that T&R
would subcontract with a subcontractor  that  would fail to equip
its truck with a portable fire extinguisher.

     22.  Bill Walters Trucking had never worked  as a contractor
for  Pen  Coal  or  as a subcontractor for T&R at the preparation
plant prior to approximately August 18, 2000.

     23.  The portable  fire extinguisher in Western Star trucks,
such as SR59-4, is stored  inside the cab of the truck behind the
driver's seat.  It is not possible  to  tell  form the outside of
the truck whether the fire extinguisher is in place or not.

     24.  Pen Coal's employees had not observed that truck number
SR59-4 was not equipped with a portable fire extinguisher.

     25.   Pen Coal's employees were not exposed  to  the  danger
posed by the absence of a portable fire extinguisher.

     26.   The  loader  operator,  who  was  an  employee  of  an
independent  contractor  and who was the only employee working in
the area, was stationed outside  and  was  provided  with and had
access at all times to his own portable fire extinguisher.


     III.  Joint Exhibits

     1.  Coal Transportation Agreement

     2.  Citation No. 7192431

     3.  Citation No. 7192430

     4.   Violation  history  of  T&R Trucking at the Kiah  Creek
Preparation Plant

     5.  Conference Report dated October 2, 2000


     IV.  Factual Background

     As an independent contractor of  Pen  Coal at its Kiah Creek
Preparation  Plant,  T&R  Trucking ("T&R") hauls  coal  from  Pen
Coal's  various mines to the  preparation  plant,  and  from  the
preparation  plant  to  one  of  Pen  Coal's various coal loading
facilities  (JF 2).  On or about August  18,  2000,  without  Pen
Coal's knowledge,  T&R  subcontracted  with Bill Walters Trucking
("Bill Walters") for assistance in its coal  haulage  services to
the preparation plant (JF 3).  Subsequently, on August  24, 2000,
principal/employee Bill Walters, operating a Western Star  truck,
was  hauling  coal  from  the  Copley  Trace  surface mine to the
preparation  plant  (JF  4, 5).  MSHA Inspector Johnny  E.  Brown
inspected Walters' truck at  that time and discovered that it was
not equipped with a portable fire extinguisher, which is normally
stored in the cab behind the driver's  seat  (JF  6,  23).   As a
consequence, Inspector Brown cited T&R and Pen Coal, but not Bill
Walters,  respecting  this condition (JF 8, 9, 10).  Citation No.
7192430, issued to T&R,  alleged  a  violation  of  30  C.F.R.  �
77.1109(c)(1),  for  failure  to  equip  the  coal  truck  with a
portable  fire  extinguisher;  T&R  did not contest the citation.
Citation No. 7192431, at issue in this  proceeding,  charges  Pen
Coal  with  a  "non-significant  and substantial" violation of 30
C.F.R. � 77.1109(c)(1), describing the violation as follows:

          The Western Star Coal Truck  company number SR59-4
     was not equipped with a portable fire extinguisher

(JE  2).   The  citation  was  abated  twenty  minutes  later  by
principal/employee Bill Walters (JF 16).


     V.  Findings of Fact and Conclusions of Law
           A.  Fact of Violation

     30 C.F. R. � 77.1109(c)(1) requires the following:

          Mobile  equipment,  including  trucks,   front-end
     loaders,   bulldozers,   portable  welding  units,  and
     augers, shall be equipped  with  at  least one portable
     fire extinguisher.

     The parties are in agreement that the violation occurred (JF
6, 15).   The dispute arises out of Pen Coal's  position that the
Secretary  abused  her  discretion in citing the operator  for  a
violation which none of its  employees,  equipment  or activities
caused (JF 7, 14).  Pen Coal argues that it does not  inspect the
trucks of its contractors and is under no legal requirement to do
so,  and that it is reasonable for the company to have relied  on
T&R to  maintain  its  vehicles and those of any subcontractor in
good working condition.   Furthermore,  Pen Coal points out, none
of its employees work with or alongside Bill  Walters  employees,
it does not supervise T&R or Bill Walters employees, and the sole
employee  working  in  the  area  when  the  citation  was issued
(contract  loader  operator)  had  been  provided  with  his  own
portable  fire  extinguisher.  Finally, Pen Coal contends, citing
Pen Coal for the violation at issue is based upon the Secretary's
erroneous position that she has unfettered discretion to hold the
operator liable for every violation on its property, irrespective
of the circumstances.

     The Secretary  argues that the production operator bears the
overall responsibility for health and safety at the mine, as well
as compliance with applicable  laws and regulations, and that Pen
Coal,  although  without  fault,  is   strictly  liable  for  all
violations of the Act occurring on mine property, including those
committed by its contractors.  Moreover,  the Secretary points to
several   citations  issued to T&R exclusively,  and  overlapping
compliance discussions MSHA held with Pen Coal and T&R management
as a consequence, to establish  that  Pen  Coal  had  been put on
notice  that it was liable for the violations of its contractors.
Finally,  the  Secretary  asserts that Pen Coal was cited for the
instant violation because the  operator  was  not  providing  any
oversight   of   its   independent  contractors'  inspection  and
maintenance programs, and that the decision to cite both operator
and contractor was consistent  with  the safety promotion purpose
of the Act.

     Commission  and  court  precedent  support  the  Secretary's
authority  to  hold  an  operator,  although  faultless   itself,
strictly  liable  for all violations of the Act occurring on  its
mine site, whether committed by its own employees or those of its
contractors.  Mingo  Logan  Coal  Company,  19  FMSHRC  246,  249
(February  1997),  aff'd,  133  F.3d  916  (4th Cir. 1998)(table)
(citing Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359-
60 (September 1991); Cyprus Indus. Minerals  Co.  v.  FMSHRC, 664
F.2d  1116,  1119  (9th  Cir.  1981)).   In instances of multiple
operators,  the  Commission has also recognized  the  Secretary's
"wide enforcement  discretion" in proceeding against an operator,
its independent contractor,  or both, for violations committed by
a  contractor.  Id. (citing Consolidation  Coal  Co.,  11  FMSHRC
1439,  1443  (August  1989);  Brock v. Cathedral Bluffs Shale Oil
Co., 796 F.2d 533, 534, 538-39  (D.C.  Cir.  1986)  (reversing  6
FMSHRC  1871  (August  1984)).   In  recognizing  the Secretary's
enforcement authority, however, the Commission has noted its role
in  guarding  against  "abuse of discretion".  W-P Coal  Co.,  16
FMSHRC  1407,  1411 (July  1994).   A  litigant  challenging  the
Secretary's  enforcement  discretion  bears  a  heavy  burden  of
establishing that there is no evidence to support the Secretary's
decision or that  the  decision is based on a misunderstanding of
the law.  Extra Energy,  Inc.,  20  FMSHRC  1,  5  (January 1998)
(citing Mingo Logan, 19 FMSHRC at 249-50 n. 5).

     In reaching a conclusion as to whether an enforcement action
constitutes   an   abuse  of  the  Secretary's  discretion,   the
Commission has considered,  among  other  factors, the operator's
day-to-day  involvement  in  the  mine  activities,  whether  the
operator is in the best position to affect  safety,  and  whether
the  enforcement  action  is  consistent  with  the  purpose  and
policies of the Act.  Id.

     Review  of  the  contract  between Pen Coal and T&R for coal
haulage services in no way delegates  to  T&R  operation  of  Pen
Coal's mines, including the Kiah Creek Preparation Plant, and the
contact  also  contemplates subcontracting by T&R.  Therefore, as
production operator  with  the  overall responsibility of running
the plant, Pen Coal was properly  held  strictly  liable for Bill
Walters'  failure  to  equip  his  truck  with  a  portable  fire
extinguisher during its operation at Kiah Creek, despite the fact
that  no  negligence  was attributed to Pen Coal.  Moreover,  Pen
Coal's  reliance on the  fact  that  it  was  ignorant  of  T&R's
contract   with   Bill   Walters   neither  negates  its  overall
responsibility of assuring compliance  with  applicable standards
and regulations nor relieves it of liability. On the contrary, it
emphasizes  the  soundness  of  holding  the production  operator
liable. See, for example, the Commission's  conclusion  in  Mingo
Logan,  19  FMSHRC  at  251,  that  holding a production operator
liable for its independent contractors'  violations  provides  an
incentive  to  use  contractors  with  strong  health  and safety
records, where it quotes the Ninth Circuit's rationale in Cyprus,
664 F.2d at 1119-20:

          The  Court  stated  that  holding  owner-operators
     liable   for   violations   committed   by  independent
     contractors  promotes  safety  because  "the  owner  is
     generally in continuous control of the entire mine" and
     "is more likely to know the federal safety  and  health
     requirements."   Id.  at  1119.  The court also posited
     that "[i]f the Secretary could  not cite the owner, the
     owner could evade responsibility  for safety and health
     requirements by using independent contractors  for most
     of the work."  Id.

In  this  case,  while Pen Coal was under no legal obligation  to
inspect T&R's and Bill Walters' trucks, its failure to inspect or
monitor inspection  of its contractors' trucks contributed to the
violation.  It is reasonable  to conclude, for example,  that Pen
Coal's review of its contract truckers'  daily inspection reports
would  have disclosed T&R's contract with Bill  Walters  and  the
condition  of  all trucks operating on the mine property.  To the
extent that Pen  Coal failed to exercise any compliance oversight
whatsoever, in light  of  repeated  citations  issued  to T&R for
safety  violations  and  after  MSHA  had  explained  overlapping
compliance,  Pen  Coal was negligent and courted being cited  for
the  violations  of  its   trucker   contractors.    Under  these
circumstances,  I  find  that  the  Secretary  did not abuse  her
discretion in citing both T&R and Pen Coal for the  violation  of
Bill Walters.


     B. Penalty

     While  the Secretary has proposed a civil penalty of $55.00,
the judge must independently determine the appropriate assessment
by proper consideration  of the six penalty criteria set forth in
section 110(i) of the Act,  30  U.S.C. � 820(j).  See Sellersburg
Co. 5 FMSHRC 287, 291-92 (March 1993),  aff'd, 763 F.2d 1147 (7th
Cir. 1984).

     In assessing the appropriate penalty  for  this violation, I
have considered the stipulations of the parties that  Pen Coal is
a large operator (JS 4), and that the proposed penalty  will  not
affect  the  company's ability to remain in business (JS 5).  The
parties have provided  T&R's  history  of violations, and while I
note three similar violations within the same year, I do not find
its history to be an aggravating factor in assessing the penalty.
I  also find the violation to be relatively  serious,  given  the
truck's  mobility  from  coal mine to preparation plant on public
roads,  as  well  as  on  mine  properties,  thereby  potentially
exposing  individuals and property  in  close  proximity  to  the
hazards of  a  burning  truck.   Moreover,  considering  that Pen
Coal's  failure  to  insure  inspection  of  the  numerous trucks
operating in its mine facilities contributed to the  violation, I
ascribe   low  negligence  to  the  company.   Therefore,  having
considered  Pen Coal's large size, ability to remain in business,
history of violations,  seriousness  of  violation, low degree of
negligence, good faith abatement and no other mitigating factors,
I  find  that  the $55.00 penalty proposed by  the  Secretary  is
appropriate.


                         ORDER

     Accordingly,  the Secretary's Motion for Summary Decision is
GRANTED, Respondent's  Motion  for  Summary  Decision  is DENIED,
Citation  No.  7192431  is  AFFIRMED, as modified to reflect  low
negligence, and Pen Coal Corporation  is  ORDERED  to pay a civil
penalty  of  $55.00 within 30 days of the date of this  decision.
Upon receipt of payment, this case is DISMISSED.


                              Jacqueline R. Bulluck
                              Administrative Law Judge


Distribution: (Certified Mail)

James  F. Bowman,  CLR,  U.S.  Department  of  Labor,  MSHA,  100
Bluestone Road, Mt. Hope WV  25880-1000

Melanie  J.  Kilpatrick,  Esq.,  Wyatt, Tarrant & Combs LLP, 1700
Lexington Financial Center, 250 West  main  Street, Lexington, KY
40507

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