.
ENERGY TRUCKING, INC.
October 23, 1997
WEST 96-184-M


         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                         October 23, 1997

SECRETARY OF LABOR,             :    CIVIL PENALTY PROCEEDING
      MINE SAFETY AND HEALTH    :
      ADMINISTRATION (MSHA),    :    Docket No.  WEST 96-184-M
               Petitioner       :    A. C. No.  42-01429-05501
                                :    A7C
          v.                    :
                                :    White Mesa Mill
ENERGY TRUCKING, INC.,          :
               Respondent       :

                             DECISION

Appearances: Kristi Floyd, Esq., Office of the Solicitor, U. S.
             Department of Labor, Denver, Colorado, for the Secretary;
             Bradley Reber, Vice President, Energy Trucking, Inc.,
             Kanab, Utah, for Respondent.

Before: Judge Fauver

     This is a civil penalty action under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801 et
seq.

     Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below.

                         FINDINGS OF FACT

     1.  Respondent, Energy Trucking, Inc., an independent
contractor, is regularly engaged in hauling uranium ore for
Energy Fuels Nuclear, Inc.  The uranium produced from such ore is
sold and used in or with a substantial effect upon interstate
commerce.

     2.  At all relevant times, Respondent was performing a
contract to haul uranium ore for Energy Fuels Nuclear, Inc. from
a stockpile near Kanab, Utah, to Energy Fuel's White Mesa Mill
processing plant, about 260 miles from Kanab.  Respondent hauled
uranium ore 24 hours a day, 7 seven days a week and employed
about 15 truck drivers to haul uranium ore.  In general, the
employees provided their own trucks, with a lease charge to the
company.

     3.  On October 10, 1995, about 12:10 a.m., Energy Fuel's
White Mesa Mill notified MSHA of a fatal accident that had
occurred about 11:05 p.m., on October 9.  A driver, Ivan F. Dial,
employed by Respondent, was run over by an unattended tractor
that was rolling down a grade.

     4.  Mr. Dial had 5 years, 7 months experience in mining.
All of his mining experience was in the position of a truck
driver.  He had been employed by Respondent for 1 year, 7 months.

     5.  Mr. Dial arrived at the White Mesa Mill around
10:50 p.m., with a load of ore from the stockpile near Kanab.  He
checked in at the scale house and drove a "dumper tractor" owned
by Energy Fuels.  A dumper tractor is a tractor that has been
modified to dump a semi-trailer.

     6.  Mr. Dial disconnected his tractor, hooked up the dumper
tractor, and drove to the stockpile where he dumped the load of
ore.

     7.  He then drove the dumper tractor with the empty trailer
back to his tractor, in order to disconnect the dumper tractor
and hook up his tractor to the empty trailer.

     8.  When Mr. Dial disconnected the dumper tractor from the
trailer, the engine was running, the transmission was in neutral,
the parking brakes were not engaged, and chocks were not placed
under the wheels.  Although the area where the trailer was parked
was fairly level, dumper tractor was parked just over the crest
of a six percent grade.  The tractor started to roll down the
grade.  Mr. Dial apparently ran after it in an attempt to climb
into the cab to stop the vehicle.  He fell and was run over by
the left outrigger wheel.  He died about 45 minutes later.

                DISCUSSION WITH FURTHER FINDINGS,
                           CONCLUSIONS

     The Secretary has charged three violations:

     Citation No. 4665206 charges that Mr. Dial had not received
     the mandatory training required for a newly employed
     experienced miner under 30 C.F.R.  48.26.

     Citation No. 4665207 charges that the dumper tractor was
     improperly parked on a grade without setting the parking
     brakes or chocking the wheels, in violation of 30 C.F.R.
      56.14207.

     Order No. 4665208 charges that six employees (besides Ivan
     Dial) were not given the safety training required for newly
     employed experienced miners under 30 C.F.R.  48.26.

     Although Respondent classified its drivers as "lessor-
operators" rather than employees, its answer to the
Secretary's Petition does not raise a defense that
Respondent was not required to comply with the Act and
safety and health standards promulgated under the Act with
respect to the drivers on the ground that they were not
employees.  I find that the Secretary proved that they were
employed by Respondent as drivers, despite their
classification, that Respondent employed them in work
subject to the jurisdiction of the Act, and that Respondent
was required by the Act to comply with mandatory safety and
health standards with respect to the drivers' performance of
such work.

            Citation No. 4665206 and Order No. 4665208

     The citations and order charge violations for failure to
provide training required by 30 C.F.R  48.26.  Section
48.22 provides that a "miner" for the purpose of
section 48.26 means "any person working in a surface mine .
. . who is engaged in the extraction and production process,
or who is regularly exposed to mine hazards, or who is a
maintenance or service worker employed by the operator or .
. . contracted by the operator to work at the mine for
frequent or extended periods."

     Respondent's drivers made daily trips to Energy Fuels's
White Mesa Mill to transport and unload uranium ore.  This
work was frequent and regularly exposed them to mine
hazards, such as radiation, dust, and vehicle and equipment
accidents.  They were therefore subject to section 48.26,
which provides:

          Training of newly employed experienced miners;
     minimum courses of instruction.

          (a)  A newly employed experienced miner shall
     receive and complete training in the program of
     instruction prescribed in this section before such
     miner is assigned to work duties.

          (b)  The training program for newly employed
     experienced miners shall include the following:

          (1)  Introduction to work environment.  The course
     shall include a visit and tour of the mine.  The
     methods of mining or operations utilized at the mine
     shall be observed and explained.

          (2)  Mandatory health and safety standards.  The
     course shall include the mandatory health and safety
     standards pertinent to the tasks to be assigned.

          (3)  Authority and responsibility of supervisors
     and miners' representatives.  The course shall include
     a review and description of the line of authority of
     supervisors and miners' representatives and the
     responsibilities of such supervisors and miners'
     representatives; and an introduction to the operator's
     rules and the procedures for reporting hazards.

          (4)  Transportation controls and communication
     systems.  The course shall include instruction on the
     procedures in effect for riding on and in mine
     conveyances; the controls for the transportation of
     miners and materials; and the use of the mine
     communication systems, warning signals, and directional
     signs.

          (5)  Escape and emergency evacuation plans; fire
     warning and firefighting.  The course shall include a
     review of the mine escape system; escape and emergency
     evacuation plans in effect at the mine; and instruction
     in the fire warning signals and firefighting
     procedures.

          (6)  Ground controls; working in areas of
     highwalls, water hazards, pits, and spoil banks;
     illumination and night work.  The course shall include,
     where applicable, an introduction to and instruction on
     the highwall and ground control plans in effect at the
     mine; procedures for working safely in areas of
     highwalls, water hazards, pits, and spoil banks, the
     illumination of work areas, and safe work procedures
     for miners during hours of darkness.

          (7)  Hazard recognition.  The course shall include
     the recognition and avoidance of hazards present in the
     mine, particularly any hazards related to explosives
     where explosives are used or stored at the mine.

          (8)  Such other courses as may be required by the
     District Manager based or circumstances and conditions
     at the mine.

                            Violation

     Under 48.23, the training required by section 48.26 must be
approved by MSHA under a training plan submitted by the mine
operator for approval, and must be taught by an instructor who
has been approved by MSHA.

     Energy Fuels had an approved training plan and instructors
who were approved under section 48.26.  However, Respondent did
not have an approved training plan and its drivers had not been
trained under Energy Fuels' plan.  Nor were they trained by an
instructor approved by MSHA.

     The safety training that Respondent's drivers received did
not meet the requirements of section 48.26 and did not approach
the scope, detail, and content of the safety standards training
required by section 48.26.

     The Secretary proved a violation of section 48.26 as alleged
in Citation No. 4665206 and Order No. 4665208.

                             Gravity

     The basic purpose of the safety training required by
section 48.26 is to ensure that the employees understand the
safety standards that apply to their work and have the necessary
knowledge and skills to apply them in order to avoid accidents.
The failure to provide safety training required by section 28.26
created a reasonable likelihood that the Respondent's drivers
would not have sufficient knowledge of the safety standards and
the necessary skills to apply them in order to avoid accidents.
It was therefore reasonably likely that Respondent's violations
of section 48.26 would result in an accident with serious
injuries.  Indeed, the fatality in this case indicates that the
driver had not had sufficient training to understand the
importance of complying with the "safety  standards pertinent to
the tasks assigned," which are required training subjects under
section 48.26(b)(2).  The violations were "significant and
substantial" within the meaning of the Act.

                            Negligence

     The violations of section 48.26 could have been prevented by
the exercise of reasonable care.  Respondent's drivers had
regular and frequent exposure to mine hazards at Energy Fuel's
White Mesa Mill.  Their duties plainly brought them within the
coverage of section 48.26.  I conclude that Respondent's
violations of section 48.26 were due to ordinary negligence.

                       Citation No. 4665207

     This citation charges a violation of section 56.14207, which
provides:

          Parking procedures for unattended equipment.

          Mobile equipment shall not be left unattended
     unless the controls are placed in the park position and
     the parking brake, if provided, is set.  When parked on
     a grade, the wheels or tracks of mobile equipment shall
     be either chocked or turned into a bank.

     When Mr. Dial left the dumper tractor unattended to unhook
it from the trailer, the parking brake was not set and the wheels
were not chocked or turned into a bank.  However, the vehicle was
just over the crest of a six percent grade and was therefore
"parked on a grade."

     The Secretary proved a violation of section 56.14207 as
alleged in Citation No. 4665207.

     The violation could have been prevented by the exercise of
reasonable care.  I find that it was due to ordinary negligence.

     The violation was reasonably likely to result in an accident
involving serious injuries.  It was therefore a "significant and
substantial" violation within the meaning of the Act.

                         CIVIL PENALTIES

                          Civil Penalies

     Under section 110(i) of the Act, the Commission and its
judges assess all civil penalties under the Act.  The Commission
or judge is not bound by the penalty proposed by the Secretary.
Penalties are assessed de novo based upon six criteria provided
in section 110(i): (1) the operator's history of previous
violations, (2) the appropriateness of the penalty to the size of
the business, (3) the operator's negligence, (4) the effect on
the operator's ability to continue in business, (5) the gravity
of the violation, and (6) the operator's good faith in abatement
of the violation.  Secretary of Labor v. Sellersburg Stone Co.,
5 FMSHRC 287 (1983), aff'd Sellersburg Stone Co. v. FMSHRC,
736 f.d 1147 (7th Cir. 1984).

     In evaluating the fourth factor, "in the absence of proof
that the imposition of authorized penalties would adversely
affect [an operator's ability to continue in business], it is
presumed that no such adverse effect would occur."  Spurlock
Mining Company, Inc., 16 FMSHRC 697, 700 (1994), quoting
Sellersburg Stone Co., 5 FMSHRC 287.  The burden of proof is on
the operator.  If an adverse effect is demonstrated, a reduction
in the penalty may be warranted.  However, "the penalties may not
be eliminated . . . , because the Mine Act requires that a
penalty be assessed for each violation."  Spurlock Mining, supra,
16 FMSHRC at 699, citing 30 U.S.C.  820(a); Tazco, Inc.,
3 FMSHRC 1895, 1897, (1981).

     Tax returns and financial statements showing a loss or
negative net worth are, by themselves, not sufficient to reduce
penalties because they are not indicative of the ability to
continue in business.  Spurlock Mining, Inc., 16 FMSHRC at 700,
citing Peggs Run Coal Co., 3 IBMA 404, 413-414 (1974).

     The purpose of civil penalties is to deter the operator and
others similarly situated from violating the Act and safety and
health regulations.  To be successful in the objective of
inducing effective and meaningful compliance, "a penalty should
be of an amount which is sufficient to make it more economical
for an operator to comply with the Act's requirements than it is
to pay the penalties assessed and continue to operate while not
in compliance."  S. Rep. No. 181, 95th Cong., 1st Sess. 40-41
(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong. 2d Sess., Legistative History of the
Federal Mine Safety and Health Act of 1977, at 628-29 (1978).

     The ability to continue in business in only one of six
criteria.  Since the other criteria must also be considered, it
would be inappropriate to rule that penalties should be nominal
or reduced by a set percentage whenever an operator establishes
that the proposed penalties would have an adverse effect on its
ability to continue in business.  Penalties must still be
assessed for each violation, with a deterrent purpose.  For
example, if an operator is financially unsound and cannot pay its
debts and taxes, section 110(i) still does not exempt it from
penalties "sufficient to make it more economical . . . to comply
with the Act's requirements than it is to pay the penalties
assessed and continue to operate while not in compliance."
S. Rep. supra.

Respondent's Size, Financial Condition, and Ability to Continue
in Business

     At the time the two citations and order were issued,
Respondent would be considered a small to medium sized
independent contractor.  Respondent operated 5 days a week, 11 to
13 hours a day and employed 15 drivers.  Over a 52 week period,
this would amount to 50,700 hours of work on its contract
business.

     By the time of the hearing, Respondent had reduced its
drivers to three and was working about 10,140 hours per year.
This activity would be considered a small sized business.

     Around January 1966, Respondent had laid off all of its
drivers, because Energy Fuels went into bankruptcy.  However, in
July 1966, Respondent resumed hauling for Energy Fuels and went
from a 15-truck operation to a 3-truck operation.  The three
trucks are owned by Bradley Reber, Vice President of Respondent,
who leases the trucks to Respondent.

     Despite the bankruptcy proceedings by Energy Fuels,
Respondent received all past amounts due from Energy Fuels, about
$200,000.

     Respondent's tax return for 1995 shows gross receipts of
$1,342,893 and payments  to "lessor-operators"of $1,114,764,
i.e., about $74,318 per truck and driver for the 15 trucks
operating in 1995.  Taxable income was a negative amount, -
$2,309.  Respondent is essentially a "pass through" business
whereby almost all of its income passes through the company to
one or more "lessor-operators."  Since the hearing, almost all of
Respondent's income has been paid to Vice President Bradley Reber
for his lease of three trucks.  Mr. Bradley owns 50 percent of
the corporation's stock.

     A corporation structured like Respondent's would effectively
have an exemption from civil penalties under the Act if its
reported net losses were accepted as proof of an inability to pay
substantial penalties and continue in business.  However, net
operating losses are not proof of an inability to continue in
business.  Also, corporations are reasonably required to maintain
sufficient capital to cover their potential liabilities,
including civil penalties, when they work in an industry that is
regulated to protect the public interest in health and safety.
Respondent has not explained its failure to capitalize.

     Respondent is a small sized business.  I find that
Respondent has failed to meet its burden of proving that the
proposed civil penalties of $12,000 would adversely affect
Respondent's ability to continue in business.  I also find that
the proposed penalties are appropriate to the size of the
business.

             Negligence and Gravity of the Violations

     I have considered and made findings with respect to these
factors.

          Good Faith Abatement and History of Violations

     As to each of the violations, Respondent demonstrated a good
faith effort to achieve rapid compliance after notice of the
violation.  Respondent's history of prior violations does not
indicate a basis for raising or lowering the civil penalties.

     Considering the six criteria for civil penalties in
section 110(i) of the Act, I find that the proposed civil
penalties are reasonable and warranted by the evidence.
Accordingly, Respondent is assessed the following civil
penalties:

     Citation/Order             Civil Penalty

        4665207                    $ 6,000
        4665206                      5,000
        4665208                      1,000


                        CONCLUSIONS OF LAW

     1.  Respondent's business is subject to the Act.

     2.  The Secretary proved the violations alleged in Citation
     Nos. 4665206 and 4665207 and Order No. 4665208.

                              ORDER

     WHEREFORE IT IS ORDERED that:

     1.  Citation Nos. 4665206 and 4665207 and Order No. 4665208
     are AFFIRMED.

     2.  Respondent shall pay civil penalties of $12,000 in three
     consecutive monthly installments of $4,000 each, due on the
     first day of each month, beginning December 1, 1997.
     Provided: If Respondent fails to pay any installment when
     due, the total amount remaining shall be due immediately
     with interest accruing from the default date until the
     remainder of the penalty is paid.  The applicable interest
     rates will be the rates announced by the Commission's
     Executive Director.

                            
                                Willaim Fauver
                                Administrative Law Judge


Distribution:

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

Bradley Reber, Vice President, Energy Trucking, Inc., P. O. Box
51, Kanab, UT 84741 (Certified Mail)

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