.
TRITON COAL COMPANY
October 14, 1997
west 97-77

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                         October 14, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
    MINE SAFETY AND HEALTH      :
    ADMINISTRATION (MSHA),      :    Docket No.  WEST 97-77
               Petitioner       :    A. C. No.  48-01200-03540
          v                     :
                                :    Buckskin Mine
TRITON COAL COMPANY,            :
               Respondent       :

                             DECISION

Appearances: Ned Zamarripa, Esq., Conference and Litigation
             Representative, U. S. Department of Labor, Mine
             Safety and Health Administration, Denver, Colorado,
             for the Secretary;
             Michael O. McKown, Esq., LaTourette, Schlueter & Byrne,
             P.C., St. Louis, Missouri, for Respondent

Before: Judge Barbour

     This civil penalty case arises under section 105(d) of
the Federal Mine Safety and Health Act of 1977 (30 U.S.C.
 815(d)) (Mine Act or Act).  The Secretary of Labor
(Secretary), on behalf of her Mine Safety and Health
Administration (MSHA), seeks the assessment of a civil
penalty against Triton Coal Company (Triton or the
company) for an alleged violation of 30 C.F.R.
 77.1606(c), a mandatory safety standard for surface
coal mines requiring defects affecting the safety of
loading and haulage equipment to be corrected before
the equipment is used.  The Secretary alleges the
violation occurred at the company's Buckskin Mine, a
surface coal mine located in Campbell County, Wyoming,
and that the violation was a significant and
substantial (S&S) contribution to a mine safety hazard.
The Secretary proposes a penalty of $362 for the
alleged violation.  Triton denies it violated the
standard, and contests the Secretary's S&S allegation.
The case was heard in Gillette, Wyoming.

                           STIPULATIONS

     At the commencement of the hearing, the parties 
stipulated  as follows:

          1.  The Buckskin Mine is engaged in mining and
               selling coal in the United States, and its .
               . . operations affect interstate commerce.

          2.  Triton . . . is the owner and operator of the
               . . . [m]ine.  The . . . [m]ine is subject to
               [the] jurisdiction of the . . . Act.

          3. The . . . [j]udge has jurisdiction.

          4.  The . . . [c]itation was properly served by .
               . . [an inspector] upon an agent of . . .
               [Triton] on the date and place stated
               therein, and may be admitted into evidence
               for the purpose of establishing its issuance
               and not for the truthfulness or relevance of
               any statements asserted therein.

          5.  The exhibits offered by . . . [Triton] and the
          Secretary . . . [are] authentic, but no
          stipulation is made as to their relevance or [the]
          truth of matters asserted therein.

          6.  The proposed penalty will not affect . . .
          [Triton's] ability to continue in business.

          7.  [Triton] demonstrated good faith in abating
          the violation.

          8.  Triton . . . is the coal mine operator, with
          34,139,068 tons [of coal produced] and 11,616,418
          hours of production in 1996.

          9.  The certified copy of the MSHA Assessed
          Violation History accurately reflects the history
          of the mine for the two years prior to the date of
          the [c]itation (Tr. 9-10; Joint Exh. 1).

     The parties further agreed that the company should be
characterized as a large operator (Tr. 11).

                    THE NATURE OF THE DISPUTE

     The parties disagree whether a tire on a 190 ton haulage
truck affected safety.  The company's tire contractor
altered the tire by cutting funnel shaped holes into it (a
process known as "skiving").  The company moved the tire
from the front to the rear of the truck and used the truck
to haul refuse.  The Secretary maintains the tire was
defective, adversely affected safety, and should not have
been used (Tr. 12).  The company maintains the tire did not
adversely affect safety and was properly used without
violating section 77.1606(c) (Tr. 89-90).

                           THE CITATION

     Citation      Date       77 C.F.R.    Proposed Penalty

     4366121      8/8/96        1606(c)           $362

The citation states in part:

          The right rear outside tire on the 190 ton . . .
     dump haul truck . . . is in an unacceptable condition.
     The outer rubber layer (tread) of the tire is separated
     from the tire core around the outer circumference for a
     distance of about 4 [feet]. Three holes about 4
     [inches] in diameter and 3 [inches] in depth have been
     cut through the tread layer to relieve pressure and
     prevent heat buildup.  The holes leave the tire core
     and outer steel belts visible.  The two outer
     protective steel belt layers are worn and frayed away
     in the 4 [feet] area.  One of the cords is broken in
     the third steel belt layer and the third layer is
     showing wear.  The tire should have been removed from
     service before deteriorating to this condition
     (Gov. Exh. P-2).

                          THE TESTIMONY

     Herbert J. Skeens is the MSHA inspector who issued the
citation.  He has been an inspector for 4 years.  Prior to that
he has had 18 years of experience in the coal mining industry,
first in the eastern coal fields and later in the west (Tr. 14-
15).  He has operated heavy equipment associated with surface
coal mining (bulldozers, backhoes, drills, etc.) including coal
haulage trucks similar to the truck at issue (Tr. 15).  Skeens
has had some experience in the maintenance of tires, and he
believes he has more knowledge of tires than the average MSHA
inspector (Tr. 43).  As part of his MSHA training, Skeens
received instruction in tire safety in a one day course.  Prior
to the course he estimated he received one other day of  training
in tire maintenance and repair (Tr. 45).

     Skeen testified that in the late 1980s, steel belted radial
tires for heavy equipment came into common use (Tr. 44).  In a
steel belted radial tire the air is contained within the tire's
casing.  The casing is the foundation of the tire.  Layers of
steel belts cover the casing and help give the tire its strength
(Tr. 57, 59-60).  The tread layer is the outer surface of the
tire (Tr. 57).  The tread layer protects the steel belts and
gives the tire traction (Tr. 61).

     On the morning of August 8, 1996, Skeens went to Triton's
Buckskin Mine to conduct an inspection.  (Throughout the
inspection Skeens was accompanied by Triton mining technician,
Paul Norfolk (Tr. 18).)  After inspecting the pit, high-walls,
and roadways, Skeens selected three or four pieces of equipment
to inspect, including the subject haulage truck (Tr. 20).

     The truck was  loaded to capacity hauling refuse
(overburden) (Tr. 22).  As Skeens and Norfolk approached the
truck, Skeens requested the driver stop so he and Norfolk could
look at the tires. There were two front tires and four rear
tires, two rear tires on each side (Tr. 20, see also Tr. 122).
As the truck came to a halt, Skeens could see part of the tread
layer on the outside right rear tire "jiggle like Jell-O"
(Tr. 23). This indicated to Skeens "something wasn't right"
(Tr. 83).

     When Skeens inspected the tire, he found:

          [T]he outer rubber-layer tread of the tire . . .
     [was] separated from the tire core around the outer
     circumference for a distance of four and a half
     feet . . . holes about four inches in diameter and
     three and a-half inches in depth . . . [were] cut
     through the tread layer to relieve pressure and prevent
     heat buildup.

          The holes [left] the [tire] core and outer steel
     belts visible.  The two outer protective steel-belt
     areas . . . were worn and frayed away in a four-and-a-
     half-foot area.  One of the cords . . . [was] broken in
     the third steel belt layer, and the third layer . . .
     [was] showing wear (Tr. 20-21).[1]

     Skeens described the holes as "skived out."[2]  The purpose
of skiving was to relieve pressure and heat inside the tire
(Tr. 47, 50).  The holes allowed air that was heated and expanded
when the tire rotated, to escape the tire, which, in turn,
relieved heightened air pressure inside the tire (Tr. 62).
Skeens did not have the capacity to measure the tire's pressure
and heat so he did not know what the air pressure was when he
cited the alleged violation, nor did he know what the pressure
was supposed to be, or what pressure should cause concern about
the tire's condition (Tr. 62, 69).  However, after Skeens
insisted the tire be taken out of service, the pit mechanic read
the temperature and pressure with a gauge.  The temperature
inside the holes measured between 127 to 132 degrees Fahrenheit
(Tr. 128-131).  The pressure was 122 pounds per square inch
(Tr. 130).

     Skeens believed the holes should have been fill with rubber
to protect the exposed steel belts (Tr. 47-48).  The rubber would
have "act[ed] as a guard to keep a rock from going through the
. . . hole[s] and puncturing the steel belts" (Tr. 30).  Also, it
would have prevented debris from getting between the tread layer
and the steel belts (Tr. 30, 48).

     In addition to noticing the loose tread and skived holes,
Skeens saw the word "runout" painted on the sidewall of the tire.
To Skeens, the word meant the company had decided "to
run . . . [the tire] until it destroy[ed] itself" (Tr. 39, see
also Tr. 67-68, 84).

     Given the condition of the tire, Skeens feared a rock could
penetrate to the tire's core and cause a blowout.  Or, heat
produced by the tire's operation could cause a blowout (Tr. 25).
In either event, the driver could loose control of the truck,
veer into the path of another vehicle, or plunge through a berm
and over the edge of the roadway.  Injuries resulting from the
blowout could be fatal (Tr. 25-26).

     The company's witnesses challenged Skeens' opinion the tire
posed a hazard.
After the citation was issued, Richard K. Burns, the safety
coordinator, went to the mine and examined the tire (Tr. 97).  He
saw that some of the tread had separated from the tire's steel
belt layers (Tr. 115).  Also, he saw the holes  (Tr. 97).  When
he looked into the holes, he saw "some insignificant wire
breakage" (Tr. 97).  He could not see the tire's casing
(Tr. 100).

     Burns testified that tires for 190 ton haulage trucks are
"very expensive" and that skiving is a way to mitigate damage to
a tire and to keep damage from worsening (Tr. 99).  (The cited
tire cost between $16,500 and $17,000 (Tr. 145-146)).  Burns also
explained the company used a contractor, Cobre Tire, for tire
maintenance and repair.  Representatives of Cobre visited the
mine each week.  They inspected all of the tires in use
(Tr. 100).  Employees of Triton also inspected the tires during
each of mine's two shifts (Tr. 101-102).

     Burns did not believe the company violated
section 77.1606(c) because the defect in the tire "had been
mitigated . . . or corrected.  Not reversed, but stopped so that
it did not become a defect that affected safety" (Tr. 102).
Burns explained:

          [I]f a tire . . . has a rock cut and is left
     uncorrected . . . it can build up heat and it can
     separate the tread from the steel.  But if . . .
     skiving is done correctly . . . it prevents or . . .
     stops that heat from building up . . .  .  When a cut
     is made, the rocks get in it and the . . . dirt gets in
     it and it keeps making that separation larger . . .  .
     [I]f you can skive those cuts . . . then the dirt isn't
     allowed to stay in there.  It falls out.  It also cools
     it so it prevents . . . [the tire] from overheating . .
     . and skiving mitigates that . . . or prevents that
     from happening.  And . . . the separation is stopped at
     that point (Tr. 103).

     Equally important to Burns was the fact the tire's casing
was free from damage.  He described the casing as the "load-
bearing part of the tire" (Tr. 104).  Since the casing was not
compromised, neither was safety.  Burns explained that although
tire cuts can lead to the tread layer separating from the tire,
if the casing is unimpaired the tire still supports the load
(Tr. 112-116).

     Burns believed Skeens misunderstood what was meant by
"runout."  As used by the company and the contractor, the word
signaled a tire had been moved from the front of the equipment to
the rear.  He stated:

          We normally put . . . new tires on the front, and
     then if . . . there's a cut . . . we move those front
     tires to the rear to be run out.  And we put new ones
     on the front.  It does not mean that we're running it
     until it blows . . .  .   It . . . means we've changed
     the location from the front of the truck to the back of
     the truck (Tr. 116).

     Norfolk, who also noticed the holes, three damaged belts,
and loose tread, agreed with Burns that part of the purpose of
skiving is "to extend the life of the tire by preventing further
tread separation from the steel cords underlying the tread"
(Tr. 132).  The skived holes "blow out debris that may get in
between the tire tread and the . . . belt below " (Id.).
According to Norfolk, skiving is common at the mine and in the
industry (Tr. 131).  Indeed, with "rocks and everything," Norfolk
felt it would be "highly unusual" for a tire not to be skived
(Tr. 134).

     He believed the tire was safe because if one of the four
rear tires failed, "the extra tire . . . [would] carry that load
until you can get [the truck] safely stopped" (Tr. 136).  (This
is not true in the front of the truck, where there is only one
tire on each side.)  He also believed the tire was safe because
there was no indication of heat build up or dangerously high air
pressure.

     Wesley, the Cobre store manager, stated that when a tire is
cut the area around the cut is removed to reach the top of the
steel belts.  If the resulting hole is small, it is filled with
rubber.  If the hole is filled, the tire may continue to be used
on the front of the truck (Tr. 156-157).  If the cut out area is
large and has not reached the casing, the hole is left unfilled.
Leaving the hole unfilled allows air to ventilate and cool the
tire when the truck is operating.  The unfiled hole also allows
dirt to fall out of the tire and prevents the tread from
separating.  If the tread has started to separate, skiving helps
to keep the separation form growing (Tr. 147-148, 158).

     Wesley went to the mine to look at the tire.  He believed
the holes were skived for these purposes (Tr. 161-162).  He noted
the tire's casing was unaffected (Tr. 153), and the tire showed
no evidence of heat and air pressure buildup (Tr. 155).  In
Wesley's view, air pressure above 138 pounds per square inch was
something about which to be concerned because it indicated heat
was being generated in the tire (Tr. 146).  Conversely, pressure
below 138 pounds per square inch was acceptable (Tr. 147).

     To Wesley the word "runout" indicated the tire should be put
on "the rear and watch[ed] . . . until it becomes unsafe to run"
(Tr. 151, see Tr. 151-152).

     The company's final witness was Glen Whitear, an engineer
who works for Cobre.  He has spent approximately 45 years in the
tire industry (Tr. 167-168).  He described steel belted radial
tires in detail.  A single band of steel runs radially round the
inner circumference of the tire and forms the casing of the tire
(Tr. 175-176).  The casing is "the strength" of the tire
(Tr. 176).  Whitear agreed with all of the other witnesses that
inside the casing is a "cushion of air" that carries the weight
of the truck and its load.  Steel belts over the casing protect
it and "stabilize the tread so it doesn't squirm" (Tr. 177).  The
tread provides traction (Id.).  Here, where three of the steel
stabilizing belts were damaged, but the casing remained in tact,
Whitear believed the tire was capable of safely supporting its
load (Tr. 177-178, 182-183).

     Whitear agreed with the other company witnesses that
"skiving" was a method of "significantly" prolonging the life of
a tire while still providing safety (Tr. 179-180).  Skiving is
recommended by all rubber companies (Tr. 182, 186).  It does not
weaken the tire in any way.  Rather, it stops the tire's
deterioration (Tr. 188).

     If a front tire is skived and moved to the rear, continued
safe operation of the truck is unaffected (Tr. 180).  If one of
the two front tires fails, the truck can swerve and go off the
road.  If one of the four rear tires fails, the other three bear
the load (Tr. 187), and unlike the front tires, those on the rear
do not turn from side to side (Tr. 190).

     Finally, Whitear agreed with Burns and Wesley that the term
"runout" means a tire "has to be removed to the rear and it
remains there while it is safe" (Tr. 189).

                          THE VIOLATION

     Section 77.1606 is headed "Loading and haulage equipment;
inspection and mainte-nance."  Section 77.1606(c) states
"[e]quipment defects affecting safety shall be corrected before
the equipment is used."  The standard's requirement is clear, if
loading and haulage equipment has a defect that makes the
equipment unsafe, the equipment cannot be used until the defect
is corrected.  The standard is "simple and brief in order to be
broadly adaptable to myriad circumstances" (Kerr-McGee Corp.,
3 FMSHRC 2496, 2497 (November 1981)).  Compliance is evaluated by
an objective test of those actions taken by a reasonable prudent
person familiar with the mining industry, the relevant facts, and
the protective purpose of the standard (see, e.g. Austin Power,
Inc., 9 FMSHRC 2015, 2018 (December 1987); Alabama By-Products,
Corp., 4 FMSHRC 2128, 2129 (December 1992)).

     The evidence establishes:  the haulage truck was in
operation when the alleged violation was observed; the right rear
outside tire on the truck had a 4 to 5 feet area where the tread
layer was loose and separated; five holes were skived in the
tire; the holes exposed three of the tire's six steel belts; the
two belts closest to the tread were cut; the third exposed belt
was worn and frayed; and the casing of the tire was
unaffected.[3]
     The first question is whether these conditions constituted
"equipment defects?"  "Defect" is defined in part as, "Wanting or
absence of something necessary for completeness, perfection, or
adequacy in form or function" (Webster's Third New International
Dictionary (1986) at 591).  Clearly, the loose tread, the skived
holes, and the damaged steel belts detracted from the tire's form
and diminished its completeness.  In other words, they were
equipment defects.

     The next question is whether the defects adversely affected
safety?  Or, to put the question in the context of the
Commission's test, whether a reasonably prudent person familiar
with the mining industry and the Buckskin Mine would have believe
the tire was unsafe and have corrected the condition before using
the truck?  I conclude the answer is "no," that whether the loose
tread, the holes, and the damaged belts are viewed separately or
in combination, the record does not support finding they made the
tire unsafe.

     Skeens testified the purpose of the tread layer was to give
the tire traction (Tr. 57).  He also testified the tread layer
protected the steel belts (Id.).  Wesley agreed with Skeens that
the purpose of the tread layer was to provide traction, and he
described the relationship of the tread and the belts as one in
which the belts stabilized the tread (Tr. 177).  This testimony
bespeaks the obvious.  What is not obvious is how the loose tread
adversely affected safety.  There is no testimony linking the
partially separated tread layer to a specific hazard, and even if
I assumed the loose layer caused the loss of some traction, there
is no evidence that the loss of traction on one of the four rear
tires posed a hazard.

     One of the reasons the holes were skived in the tire, as
Norfolk, Wesley, and Whitear testified, was to prevent the tread
layer from separating further (Tr. 132, 145,147-148, 158, 161,
163, 188).  While I might infer from this that tread separation
needed to be stopped for safety reasons, I might as easily find
it needed to be stopped for fiscal reasons.  (The tire cost
$16,500 to $17,000 (Tr. 145-146).)  The point is, the Secretary
did not establish a nexus between a hazard and the loose tread.

     The parties also agreed, as Skeens, Burns, and Wesley
testified, that in addition to preventing further tread
separation, the reason the holes were skived in the tire was to
relieve heat and pressure build up (Tr. 47, 50, 62, 103, 147-148,
158 ).  These palliative purposes enhance, rather than diminish
safety, and the testimony establishes the holes were meeting
these objectives.

     Although Skeens did not know what the tire's temperature and
pressure were, or what the pressure was supposed to be (Tr. 62,
69), the pit mechanic measured both and Norfolk testified without
dispute the pressure was acceptable and the tire showed no signs
of "overheating" (Tr. 130-131).  In addition, Wesley testified
air pressure below 138 pounds per square inch was safe (Tr. 147).
(Clearly, the 122 pounds of pressure found by the pit mechanic
was well below this amount.)  The Secretary did not challenge any
of this testimony.  I therefore conclude the Secretary failed to
prove the heat, air pressure, or the holes themselves affected
the safe operation of the tire.

     The Secretary also failed to prove the damaged steel belts
affected safety.  Below the three damaged belts were three
undamaged steel belts that protected the tire's casing.  The
company presented compelling testimony that because the casing
was functional, it was safe to use the tire.

     Burns explained the casing was the "load-bearing part of the
tire" (Tr. 103), and as long as the casing remained in tact,
safety was unaffected (Tr. 112-116).  His testimony was
corroborated by Wesley (Tr. 148, 153), and was further bolstered
by Whitear, an engineer with nearly an half century of experience
in the tire industry (Tr. 177-178 , 182-183).  I recognize Skeens
believed "[t]he strength of the tire had been compromised," and I
do not doubt his sincerity (Tr. 64).  However, the company's
witnesses offered detailed accounts of the structural makeup of
the tire and their testimony, based on their thorough
understanding of the tire's structure and capacity, is more
persuasive.

     In addition, the Secretary did not overcome the company's
contention that even if the tire somehow suffered a blowout, the
driver would not loose control.  The tire was one of four rear
tires.  Norfolk's testimony that in the event of a blowout, the
three remaining tires were sufficient to carry the weight of the
truck until it could be safety stopped was not rebutted
(Tr. 136).  Also, Whitear persuasively pointed out that because
the tire was on the truck's rear axel, the tire could not be
turned to the right or left like a front tire.  Therefore, if the
rear tire failed, the truck would not be pulled suddenly to one
side or the other (Tr. 187, see also Tr. 190).

     Finally, I conclude Skeens' citation of the company was
triggered by his incomplete  understanding of the purpose of
skiving and tire usage at the mine.  Skeens believed rubber
should have been poured into the holes (Tr. 47-48).  However,
Norfolk and Wesley explained the holes were purposefully left
unfilled so dirt and debris fell out of the holes rather than
worked between the tread and belt layers, causing further tread
separation and belt damage (Tr. 132, 147-148, 158).  In addition,
Skeens clearly misunderstood the meaning of the word "runout."
He thought it meant the tire could not be repaired and the
company would "run it until it destroy[ed] itself" (Tr. 39, see
also Tr. 67-68, 84).  He acted to prevent this from happening.

     However, the testimony of Burns, Wesley, and Whitear leads
to the conclusion the word was put on the tire to further safety
not to detract from it.  They agreed "runout" was painted on  the
tire to keep the tire from being mistakenly placed on the front
of the truck (Tr. 116, 151-152, 189).  The word alerted company
employees to watch the tire to make sure it was safely
used - that is, to make sure it was used as a rear tire and that
it remained in safe condition (Tr. 151-152).  Had Skeens
understood the holes were preventing not contributing to further
deterioration of the tire, and had he understood company
employees were on notice not to use the tire on the front of the
truck and to keep watch over its condition, I doubt he would have
issued the citation.

**FOOTNOTES**

     [1]:/Although Skeens initially testified there were three
holes in the tire and although the citation mentions three holes,
he later testified there were five holes (Tr. 83).  All other
witnesses who referenced the number of holes, agreed there were
five (Tr. 97, 126, 161-162), and I find there were five holes in
the tire.

     [2]:/"Skiving" is defined as the "[r]emoval of a material in
thin layers or chips with a high degree of shear or clippage, or
both, of the cutting tool" (U.S. Department of the Interior A
Dictionary of Mining, Mineral, and Related Terms (1968) at 1022).

     [3]:/I recognize Skeens stated in the citation the core was
visible (Gov. Exh. P-2).  (Skeens used the terms "core" and
"casing" interchangeably.)  However, because the holes affected
the outer three and not the inner three belts, I believe he
confused the casing with the inner belts, and I credit the
testimony of the company's witnesses the casing was fully
functional.
     Commission Administrative Law Judge T. Todd Hodgdon,
recently vacated a citation issued under similar circumstances
(although alleging a violation of a different standard) because
the Secretary had not proven a violation.  He found, "the
company's witnesses were more knowledgeable concerning the tire
in question than was the inspector, who . . . was not aware of
all the facts pertaining to the tire" (Amax Coal West, Inc.,
19 FMSHRC 1311, 1312 (July 18, 1997)).  Judge Hodgdon's
observation is equally applicable here.  Like Judge Hodgdon, I
believe that a reasonably prudent person familiar with the
Buckskin Mine and the condition of the tire would have concluded
the tire was not in an unsafe condition.  I find the company did
not violate section 77.1606(c).

                              ORDER

     Citation No. 4366121 is VACATED and this proceeding is
DISMISSED.

                                David F. Barbour
                                Administrative Law Judge

Distribution:

Ned Zamarripa, Conference and Litigation Representative, U. S.
Department of Labor, Mine Safety and Health Administration, P. O.
Box 25367, Denver, CO 80225 (Certified Mail)

William A. Miller, Esq., Zeigler Coal Holding Company, 50 Jerome
Lane, Fairview Heights, IL 62208 (Certified Mail)

Michael O. McKown, Esq.,  LaTourette, Schlueter & Byrne,
P.C., 11 South Meramec, Suite 1400, St. Louis, MO 63105
(Certified Mail)

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