Wheeling-Pittsburgh Steel Corporation
Willful locomotive-brake citation vacated
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Plain-English summary
A Wheeling-Pittsburgh Steel locomotive collided with a disabled train while pulling loaded hopper cars, fatally injuring the conductor and injuring the trainee engineer. OSHA alleged a willful general-duty violation because the company continued operating the locomotive after reports of braking-system problems and worn brake shoes. The Commission did not determine the cause of the collision and focused instead on whether the company recognized a serious hazard before the accident. It found that the reported air-line problems caused unintended stops, not a known inability to stop, and that the evidence did not establish that the brake linings were excessively worn or hazardous. The Commission reversed the ALJ and vacated the willful citation and $10,000 penalty.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: The willful general-duty citation and $10,000 penalty were vacated.
- Key point: A general-duty citation requires proof that the employer recognized the specific serious hazard alleged; knowledge that equipment sometimes stopped unintentionally did not establish recognition that it might fail to stop.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET N.W.
4TH FLOOR
WASHINGTON D.C. 20006-l 246
FAX,
COM (202) 634-4008
FfS 634-4008
SECRETARY OF LABOR, .
Complainant,
..
v. ..
..
WHEELING-PITTSBURGH STEEL ..
CORPORATION,
Respondent, OSHRC Docket No. 89-3389
.
and ..
.
UNITED STEELWORKERS
. OF AMERICA, ;
DISTRICT 23, LOCAL UNION NO. 1190, :
..
Authorized Employee :
Representative. ..
.
DECISION
BEFORE: FOULKE, Chairman, WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
On June 27, 1989, at Wheeling-Pittsburgh Steel Corporation’s (“WPS” or “the
company”) Steubenville (Ohio) Works, locomotive 1258 (“1258” or “the locomotive”) struck
a disabled train while pulling t‘iw l~dtx! hopper cars, killing the conductor. Following an
investigation, the Occupational S~cttv* md Health Administration (“09-W’) issued a citation
alleging that the company had wllfullv I violated section 5(a)(l) , of the Occupational Safety
2
and Heath Act (“the Act”), 29 U.K. 8 654,’ when it “knowingly allowed/or required em-
ployees to operate locomotive number 1258 with a defective braking system and did not
remove it from service until proper inspection, evaluation and adequate repairs were
completed . l . .” A $10,000 penalty was proposed by the Secretary. WPS contested the
citation, and a hearing was held before a Review Commission Administrative Law Judge,
who affirmed the violation as willful and assessed a $10,000 penalty. The company contested
the judge’s decision and review was granted by the Commission. On March 4, 1993, the
Commission heard oral argument in the case from the Secretary of Labor (“the Secretary”),
WPS and the Authorized Employee Representative, Local Union No. 1190 of the United
Steelworkers of America. For the reasons set forth below, we reverse the judge and vacate
the citation.
Facts
The following facts are essentially undisputed. Locomotive 1258 was capable of being
operated manually or by remote control. When operated manually, an engineer controls the
movement and stopping of the train mechanically with controls inside the locomotive’s cab.
When operated in remote, the train operator normally controls the starting and stopping of
a train electronically from outside the locomotive by manipulating a radio transmitter, or
“black box.”
Locomotive 1258 had a compressed air braking system. A series of air hoses,
referred to as the “train line air,” connected the brakes of each hopper car to the
locomotive. Ninety pounds of air had to be pumped into the train line prior to train move-
ment. Brake pressure was applied by releasing air from the train line. Air was released
from the train line by manipulating the automatic brake. As air is drawn off, a piston pushes
out against the train’s brake shoes to slow the train. Normally, the release of 10 pounds of
’ Section 5(a)(l) provides:
Sec. 5. (a) Each employer-
(1) shall furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees[.]
3
air is adequate to engage the brakes for a locomotive and train (“drag”) of connected
hopper cars. The release of 20 pounds of air will normally stop a locomotive and drag of
hopper cars.
In the week prior to the June 27, 1989 accident, three operators -- Kirk Jarrett,
Dennis Westfall, and Don Finley -- experienced sporadic problems with respect to 1258’s
train line air while operating in the remote mode. On June 25, 1989, while operating 1258
on the 3:00 p.m.-1190 p.m. shift, operator Jarrett attempted to make a lo-pound release of
air to slow the train while it was going down hill. Instead of a N-pound release of air,
however, the air pressure was drawn off completely to zero, and the tram stopped. Jarrett
reported this condition (“turned it in”) to yardmaster Ken Zomoida. Jarrett also noticed
that the brakes shoes on 1258 were worn down to about an inch in thickness; he turned
them in on June 25, 1989. Westfall, who operated 1258 in the remote mode on the 1l:OO
p.m. to 7:00 a.m. shift which ended about 12 hours before the accident occurred, testified
that he turned in the brakes for 1258 because the train line air sometimes overcharged to
130 pounds instead of just staying at the required 90 pounds. Westfall also turned in the
brake shoes on 1258 because they were worn down to a thickness of 1% to 2 inches and
were cracked. Finley, who operated 1258 in the remote mode during the shift prior to the
accident, also turned in the brakes for 1258, because the train line air would continue to
bleed off after a brake application and cause the train to stop unintentionally. All three
operators also experienced the problems in the remote mode at other times during the week
prior to the accident.
At about 1l:OO a.m. on the day of the accident, after operator Finley had reported
train line problems with 1258 on the shift prior to the accident, Bob Harper, an electronics
shop repairman with 25 years of experience, examined the remote control mechanism for
1258 and determined that it was functioning properly. Harper concluded that there was a
mechanical air brake problem with 1258, not an electronic (remote control) problem, and
that it would need to be repaired by the locomotive shop, which dealt with mechanical
problems. He testified, “Trhe thing that we saw was a train line air problem. We had
supercharged train line air, and it was causing that locomotive to go into the hole [release
all the air and stop the train I.” Harper reported his findings to yardmaster Terry Hosenfield
4
and wrote into a log maintained by the electronics shop as follows: “Had Terry H. call Loco
Shop to explain that train line air would go to 130#, same as main air, & then go in hole.”
In response to Harper’s report, Richard Penn, WPS’ locomotive shop supervisor,
assigned mechanics Christ Vergitz and Jim Roberts to repair 1258’s train line. Since neither
mechanic knew for certain whether the problems with 1258’s train line were in manual or
remote, they brought equipment for both when they went to service it. When they arrived
in the area where they expected the engine to be, however, Vergitz and Roberts learned that
1258 had already been put into service. Consequently, they did repair work on other
locomotives and did not have an opportunity to look at 1258 before their shifts ended at
4:00 p.m. that day. Hosenfield told Vergitz that 1258 would not be back from its run until
after Vergitz’s shift was to end at 4:00 p.m., so Hosenfield knew that 1258 continued in
operation under the remote control mode without repairs. Hosenfield also knew, because
a notice had been posted a week beforehand, that 1258 was to be operated in the manual
mode on the next shift by an engineer/trainee who was then only qualified to operate in
manual.
The Accident
That evening, 1258 was servicing what was referred to as the No. 1 Coke Plant job,
which extended from WPS’ coke works in Follansbee, W.Va. across the Ohio River to its
No. 1 blast furnace in Steubenville. Another locomotive, 1551, which was servicing what was
known as the No. 1 Mingo job, had become disabled at the bottom of No. 1 hill while
pushing about 30 hopper cars of raw materials on tracks also used by 1258 for its job. The
conductor of 1551 radioed 1258 for a push through a switch onto an adjacent track about
three car lengths away in order to clear the tracks.
Although, as mentioned above, 1258 was typically operated in the remote mode, it
was being operated in manual on the night of the accident because it was being used to train
an employee, Richard Pompa, who was only qualified to operate manually. Besides Pompa,
the crew consisted of engineer/trainer Michael Yuricic, brakeman John Carducci, and
conductor Michael Mallas. Yardmaster Zomoida was also on the train.
At about 8:00 p.m., after receiving the call from 1551, 1258 proceeded through a
trestle bridge curve and down the No. 1 Hill toward 1551. It had been raining and the
5
tracks were wet. As the second hopper car came through the curve, engineer/trainee Pompa
made a 10 to 12 pound brake application. No ascertainable brake response was felt by any
of the train’s crew. 2 When the train did not stop, Pompa made another application. Again,
the brakes did not stop the train.
Pompa subsequently applied the emergency brake and then the independent brake,
but neither adequately slowed the train. Zomoida, Carducci, and Yuricic had all jumped off
the train before the train collided with 1551, but Pompa was still at its controls and Mallas
was on a platform outside the cab at the head end of 1258. Number 1258 was completely
demolished, Pompa was injured, and Mallas was killed.
Judge’s Decision
The judge found that the Secretary established that 1258’s braking system, consisting
of its train line air and brake shoes, was defective and created a hazardous condition. He
found that the company had knowledge of the hazards from the reports of train operators
Jarrett, Westfall and Finley, but that yardmaster Hosenfield put the locomotive in service
on June 27 before the brakes were repaired. The judge also found that employee testimony
established the excessively worn condition of the brake shoes. He based his finding primarily
on the “unequivocal” testimony of employee Westfall that the brakes shoes were “worn
down further than they should have been . . . [w]ith cracks in them,” rather than on the
conflicting testimony of WPS’ locomotive shop general foreman, Richard Penn. ’
Arguments of the Parries
The Secretary argues that the cause of the accident is not an issue in this proceeding.
He states that the citation is based entirely on the fact that WPS’ management was “aware
of unresolved problems with the brakes on 1258 that constituted a hazard and were not fixed
before 1258 was returned to service.” Whether those problems caused, contributed to, or
were a factor in the accident is “simply besides the point.”
The Secretary contends that the information available to management about the
problems with 1258’s brakes did not rule out the possibility that brake problems would be
2 We make no attempt to ascertain the cause of the accident here. We note that it is unclear from the record
whether the failure of the brakes to function may have been caused by environmental factors, such as weight,
distance, rainy conditions and down slope, as WPS asserts.
encountered in the manual mode of operation as well as in the remote mode. He argues
that electronics shop repairman Harper, who had 25 years of experience, had determined
that 1258 had a mechanical, non-remote/non-electronic air brake problem. Given the persis-
tent and very recent complaints of the previous train crews regarding air line malfunctions,
the Secretary maintains that “it was clearly a hazard to allow 1258 to continue to operate
without a definitive resolution of the reported problems.” By continuing to operate 1258
without first resolving whether Harper’s report of a mechanical air line problem was
accurate is a violation of cited section 5(a)(l), the Secretary adds, under the dictates of Con
Agra, Inc., McMU~rt Co. Div., 11 BNA OSHC 1141, 1983-84 CCH OSHD ll26,420 (No. 79,
1146, 1983). He notes that in Con Agra, the Commission held that section 5(a)(l) was
violated when employees of a grain elevator company tested the air in railroad cars deliver-
ing grain to the facility by sniffing the grain -- some of which had been fumigated with
pesticides -- for staleness. The Secretary points out that even though OSHA did not find
that chemical levels in the cars were above permissible exposure limits, the Commission
upheld the citation because “the failure to test [by the use of instruments] in a confined
atmosphere before possible exposure of employees to toxic substances” violates section
5(a)( 1). Id., 11 BNA OSHC at 1145, 1983-84 CCH OSHD at p. 33,527.
The Secretary argues that the company’s knowledge that 1258 had been making
unintentional stops should have informed it that 1258 would not stop at all. He contends
that mechanic Harper’s diagnosis of 1258’s brake problem as a train line air problem
“opened the ambit” of what could be wrong with the train and left open the possibility that
brake problems could occur when 1258 was operated manually. The Secretary argues that
WPS recognized the hazard of operating a train with reported brake problems because it
had a procedure for dispatching technicians from its repair shops to check and repair
defective equipment in the field or to bring it in to the shop for repair.
In a brief filed by the United Steelworkers of America, the union advances arguments
that are essentially similar to those advanced by the Secretary. The union also directs us to
(1) a June 22, 1989 entry in the Locomotive Inspection Reports for locomotive 1258 noting
that the left front dump line angle cock was leaking at the valve joint3 and (2) a June 19,
1989 entry in the locomotive shop log book for 1258 noting that the yardmaster had wanted
the brakes checked because they were slow in coming on and might need adjusting.
VVPS argues that although 1258 occasionally had a problem with train line air
overcharging, which unintentionally stopped the train, this problem did not adversely affect
braking. Furthermore, WPS contends, this problem does not demonstrate the existence of
any recognized hazard or a reason to remove 1258 from sentice. WPS also claims that this
problem only manifested itself in remote operation, and yardmaster Hosenfield knew -that
1258 was to be operated in the manual mode on the shift that followed repairmen Vergitz’s
and Roberts’ shift. WPS contends that although electronics shop repairman Harper .believed
that the problems with 1258 were mechanical, he did not check the engine in manual
operation to verify his theory and he admitted that he was not qualified to diagnose
mechanical problems. Finally, MIPS contends that the accident was caused by unpreventable
employee misconduct and that it had a comprehensive and effective safety training program
for its employees.
Proof of General Duty Clause Violation
To establish a violation of section 5(a)(l), the Secretary must prove that: (1) a
condition or activity in the employer’s workplace presented a hazard to its employees, (2)
either the cited employer or its industry recognized that the condition or activity was
hazardous, (3) the hazard was causing or likely to cause death or serious physical harm, and
(4) feasible means existed to eliminate or materially reduce the hazard. Coleco Indus., hc.,
14 BNA OSHC 1961, 1991 CCH OSHD ll 27,748 (No. 84-546, 1991).
Initially, we agree with the Secretary and the union that the causes that contributed
to this accident, which we do not attempt to resolve here, are not at issue. The issue before
us is that framed by the Secretary’s citation, which alleges that WPS violated section 5(a)(l)
by knowingly allowing 1258 to remain in operation with problems in its braking system.
3 Each train car has an angle cock. They are used to close off the lines on the air hose that is used to supply
the air for the brakes. The angle cock is closed on the last car to complete the air hose line, while the angle
cock on the engine is opened to add air.
8
In both his brief and at oral argument, the Secretary identified yardmaster Hosenfield
as the WPS management employee who in essence “recognized” the existence of the hazard
and allowed it to continue. The problem repairman Harper described to Hosenfield was
going into the hole. When that occurred, the train stopped. Harper proposed that the
locomotive shop attempt to rectify the problem because he believed that the problem was
a mechanical, train line air problem, not an electronic one. The Secretary argues that WPS’
knowledge that 1258 had been making unintentional stops should have informed it that 1258
would not stop at all. The Secretary also argues that Harper’s diagnosis of the problem as
a train line air problem “opened the ambit” of what could be wrong with 1258 and that
brake problI ems could occur when 1258 was operated manually. The seriousness of the
possibilities raised by the Secretary is obvious. _ However, we have carefully examined the
. record, and we have concluded that the Secretary has failed to show by a preponderance of
the evidence that Hosenfield or anyone else at WPS recognized that the problem identified
by Harper was causing or was likely to cause death or serious physical harm. Hosenfield’s
knowledge at the time he allowed 1258 to continue to operate instead of having it stopped
for repairs was of 1258’s unintentional
stopping problems, not of problems that .should have
.
suggested to him that 1258 might fail to stop.
The Secretary contends that Harper’s diagnosis of the problem “opened the ambit”
of what could be wrong with 1258. The evidence does not establish any mechanical basis
to suggest 1258 would not stop when necessary. While we agree with the Secretary that
Harper’s determination left unidentified what caused 1258 to go into the hole, the Secretary
has provided us with no basis to draw the inference that Hosenfield’s knowledge of 1258’s
unintentional stopping problems amounted to knowledge that 1258 would not or might not
be able to stop. Nor do we find that WPS’ efforts to repair 1258 establish that it recognized
a hazard within the meaning of section 5(a)( 1). The Commission and the courts have held
that, absent other evidence, an cmplover’
d s own safety precautions do not establish that the
employer believed that such precautions were necessary to comply with the Act. See
Diebold, Inc. v. Marshall, 585 F.LJ 1327, 1338 (6th Cir. 1978). United States Steel Corp., 10
BNA OSHC 2123, 2131, 1982 CCH OSHD li 26,297, p. 33,235 (No. 77-3378, 1982).
9
Moreover, the problem that the repair crew was dispatched to address here was that of
unintentional stopping, which the Secretary has not shown to be hazardous on this record.
Furthermore, although Hosenfield learned from Harper that Harper believed the
problems with 1258 were mechanical and not electronic, this does not satisfy the Secretary’s
burden of showing that a hazard existed as a result. Harper was working out of the
electronics shop, not the locomotive shop, as he was not a mechanic. The record contains
evidence that problems had been misdiagnosed in the past, that is, that problems diagnosed
as mechanical problems were electronic problems and vice versa. Operator Finley testified
that there were occasions when he reported a problem that an electronics shop repairman
later determined to be mechanical rather than electronic. When the mechanical person
came out to attempt repairs, however, he would say that it was not a mechanical problem
but an electronics problem instead. Further, even if Harper’s diagnosis of a mechanical
problem was a correct one, his testimony is not sufficient to establish the existence of a
hazard. Although having the train stop when it was not intended could be inconvenient, we
cannot say that this is proof of a hazard that this locomotive would fail to stop.
Our conclusion here is consistent with the holding of the Con Agra case cited by the
Secretary. In Con Agra, the Commission found that employees were putting themselves at
risk of inhaling impermissibly high levels of toxic substances when they sniffed grain that
might have been fumigated with pesticides. Here, the Secretary has not proven that any
hazard is present.
Furthermore, the Secretary did not establish that the condition of the brake linings
presented a hazard. Operator Jarrett testified that the brake linings were supposed to be
about 3 inches thick, but were only about an inch thick. Operator Westfall testified in
general terms that the brake hngs “were worn down further than they should have been.
With cracks,” and the judge a ~~cpttxi his testimony. However, Westfall also testified more
specifically that the brake linm~s
CI were supposed to be 4 to 4% inches thick, but were only
1% to 2 inches thick.4 Union representative Pastors testified, however, that “[wlhenever the
4 Westfall also testified that he did nor wxuider those brake shoes to be unsafe and that he did not have
trobble stopping the locomotive.
10
engineer and the operators were telling you three to four inches. [of brake lining thickness],
they’re talking about the whole brake shoe, the line, the backing and everything. Very few
of them know there’s lining and then a backing like on a regular shoe on a car.”
Locomotive shop general foreman Penn testified that new brake linings have only a 1% inch
facing and that it only becomes necessary to start watching the linings closely with an eye
toward their eventual replacement when the linings are worn to a thickness of about X-inch.
Penn testified that if a brake shoe is allowed to wear excessively it could weld itself into the
brake head because of the heat. Then, “you have gone from a field repair to a shop repair.
You have to bring it into the shop and burn the lug out of the brake head l l . You don’t
want to run it down to a point where you’re going to spend a lot of time changing the thing
hot .” Furthermore, engineer Richard Pompa checked the brake shoes on the afternoon of
the a&dent and did not notice anything wrong with them.
The evidence above is not sufficient to establish that the brake shoes were excessively
worn and that they therefore presented stopping problems. The primary testimony given
to that effect was that of operators Jarrett and Westfall. That testimony, however, was
influenced by how thick they thought the brake linings should have been, that is, 3 to 4%
inches thick. It is understandable to us that an employee with a belief that brake linings
should be 3 to 4% inches thick might testify that linings “only” 1 to 2 inches thick could be
characterized as worn down further than they should have been and therefore required
replacement. However, as mentioned above, locomotive shop foreman Penn testified that
“new” brake linings are only 1% inches thick. Penn’s testimony was essentially corroborated
by the testimony of union representative Pastors to the effect that some employees are
under a misapprehension about how thick brake linings are, and believe brake shoes to be
thicker than they actually are, bcc;lusc thev. confuse the thickness of an entire brake shoe
with the thickness of just that portm of the shoe that constitutes the lining. In light of this
apparent misapprehension bvw opt:r;itors Jarrett and Westfall, we conclude that the judge
erred in deciding this issue on the basis of their testimony? Consequently, we find that the
’ The Secretaryhas also argued in his tv~f that operators Westfali and Yuricic testified that they sometimes
had difficulty stopping the train. The testmonv cited by the Secretary, however, does not establish that either
employee reported those difficulties to 3 sup&iso~ official.
-
11
Secretary clearly failed to establish that the brake linings were excessively worn and required
replacement.
We also find that neither the Locomotive Inspection Reports entry about a leaky
angle cock nor the locomotive shop log book entry about having brakes checked that were
slow coming on -- as raised in the union’s review brief -- provide us with enough information
to establish that the problems described with locomotive 1258 presented hazardous stopping
difficulties.
Accordingly, we reverse the judge and vacate the Secretary’s citation alleging that
WPS violated the general duty clause at section 5(a)( 1) of the Act.
Chairman
%onald G. Wiseman
Commissioner
Velma Montoya
Commissioner
Dated: _BPril 27. 1993
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON, DC 20006- 1246
FAX
COM (202) 6344008
FTS (202) 6344008
SECRETARY OF LABOR,
Complainant,
.
v. .. Docket No. 89-3389
..
WHEELING-PITTSBURGH ..
STEEL CORPORATION, ..
Respondent, ..
and
.
UNITED STEELWORKERS OF :
AMERICA, DISTRICT 23, LOCAL :
UNION NO. 1190, ..
Authorized Employee :
Representative. ..
NOTICE OF COMMISSION DECISION
The attached decision by the Occupational Safetv and Health Review Commission was issued on
April 27,1993. ANY PERSON ADVERSELY AlfFECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COURT OF APPEALS WITHIN 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety and Health Act of 1970, 29 U.K. 5 660.
FOR THE COMMISSION
April 27, 1993
Date Ray H. Darling, Jr.
Executive Secretary
Docket No. 89-3389
-
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Leonard A. Costa, Jr.
Two PPG Place, Suite 400
Pittsburgh, PA 15222
Mary-Win O’Brien, Esq.
Assistant General Counsel
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222
Santo Santora, President
USWA - District 23
Local Union No. 1190
227 South Third Street
Steubenville, OH 43952
Edwin G. Salyers
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3 119
UNITED STATES OF AMENCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825K STREET N iY
4TH FLOOR
WASHINGTON DC. 20006-l 246
FAX:
. COM (202) 634-4003
Secretary of Labor, I% 634 4008
Complainant, I
v. .. Docket No. 89-3389
Wheeling-Pittsburgh Steel Corp., :
Respondent, :
and ..
United Steelworkers of America, :
District 23, Local Union No. 1190, :
Authorized Employee :
Representative. :
..
NOTICE OF DOCKETING
The Administrative Law Judge’s Report in the above referenced case was docketed with the
Commission on April 3, 1991. The decision of the Judge will become a final order of the
Commission on May 3, 1991 unless a Commission member directs review of the decision on or
before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCF?ETIONARY REVIEW. Any such petition
should be received by the Executive Secretary on or before April 24, 1991 in order to permit
sufficient time for its review. See Commission Rule 91, 29 C.F.R. § 2200.91.
All further pleadings or communications regarding this case shall be addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1825 K St., N.W., Room 401
Washington, D. C. 20006-l 246
Petitioning parties shall also mail a copy to:
Daniel 3. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial
Litigation will represent the Department of Labor. Any party having questions about review rights
may contact the Commission’s Executive Secretary or call (202) 634-7950.
FOR THE COMMISSION
April 3, 1991
Date Ray’H. Darling, Jti w ’
Executive Secretary
‘Docket No. 89-3389
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel 3. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, DC. 20210
William S. Kloepfer, Esq.
Associate Regional Solicitor
Office of the Solicitor, U.S. DOL
Federal Office Building, Room 881
1240 East Ninth Street
Cleveland, OH 44199
Leonard A. Costa, Jr., Esquire
Dickie, McCamey & Chilcote
Suite 400
Two PPG Place
Pittsburgh, PA 15222
Santo Santoro, President
USWA - Distrit 23’
Local Union No. 1190
227 South Third Street
Steubenville, OH 43952
Edwin G. Salyers
Administrative Law Judge
Occupational Safety and Health
Review Commission
Room 240
1365 Peachtree Street, N.E.
Atlanta, GA 30309-3119
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1365 PEACHTREE STREET, N.E SUITE 240
ATLANTA, GEORGIA 30309-3 1’ 9
PHONE: FAX
COM (404) 3474197 COM 1404) 347-c: 13
l=E 257-4086 RS 257-0113
SECRETARY OF LABOR, 1
Complainant,
)
v. 1 OSHRC Docket No. 89-3389
1
WHEELING-PITTSBURGH STEEL 1
CORPORATION, 1
1
Respondent, 1
)
and 1 -
)
UNITED STEELWORKERS OF )
AMERICA, DISTRICT 23, 1
LOCAL UNION NO. 1190, )
1
Authorized Employee )
Representative. )
APPEARANCES:
Christopher J. Carney and Mary Anne Garvey, Esquires,
Office of the Solicitor, U. S. Department of Labor,
Cleveland, Ohio, on behalf of complainant
Leonard A. Costa, Esquire, Pittsburgh, Pennsylvania,
and Richard K. Montgomery, Esquire, Wheeling, West
Virginia, on behalf of respondent
Mr John Pastors, Steubenville, Ohio, on behalf of
authorized employee representative
DECISION AND ORDER
SALYERS, Judge: Wheeling-Pittsburgh Steel Corporation
(ltWheelinglV)is a steel manufacturer located in Steubenville,
Ohio. On June 27, 1989, a fatal train accident occurred on
Wheeling's in-plant railroad. The deceased, Mike Mallas, was a
conductor employed by Wheeling.
As a result of the fatal accident, OSHA conducted an
inspection of the site. On October 13, 1989, OSHA issued a
citation to Wheeling alleging two willful violations of section
~(a) (1)I 29 U.S.C. 5 654(a) (1)I of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 55 651-678 ("the Act"). Item 2
of the citation was withdrawn at the beginning of the hearing
by the Secretary (Tr. 8). That leaves for consideration item 1
of the citation, which alleges a violation of the general duty
clause for knowingly allowing employees to operate locomotive
1258 with a defective braking system. Wheeling contends that
the locomotive in question did not have a defective braking
system and that the locomotive was safe for operation in the
manual mode in which it was being used.
Wheeling's Motions to Dismiss
At the close of the Secretary% case-in-chief, Wheeling
moved for dismissal under Federal Rule of Civil Procedure
41(b). At the close of all the evidence, Wheeling moved for
dismissal under Federal Rules of Civil Procedure 41(b) and
50(a). Both motions were held in abeyance and are hereby
denied.
FACTS
The Secretary and Wheeling each submitted findings of fact
and conclusions of law, along with posthearing briefs. Both
the Secretary% findings of fact and her recitation of the
facts in her posthearing brief are considered by the court to
be accurate and in accordance with the facts disclosed by the
record. Accordingly, the Secretary% recitation of the facts
is adopted with only minor changes.
On Tuesday, June 27, 1989, locomotive 1258 (hereinafter
referred to as V258t4), which was pulling five Conrail hopper
cars of dolomite, collided with locomotive 1551 (hereinafter
referred to as V115511t).At the time of the accident, 1258 was
servicing the No. 1 Coke Plant job, commonly referred to as the
No l 1 Hill job, and 1551 was servicing the No. 1 Mingo job.
The No. 1 Coke .Plant job stretches from the coke works on the
West Virginia side of the Ohio River to the blast furnace on
the Ohio side of the river (Tr. 74, 547). The No. 1 Coke Plant
job and the No. 1 Mingo job use the same tracks for a portion
of their respective runs (EL R-5).
Prior to the accident, 1551 became disabled at the bottom
of the No. 1 Hill on tracks used by 1258 to service the No. 1
Coke Plant job (Ex. R-5: Tr. 547). Number 1551 was pushing
approximately 30 hopper cars at the time it became disabled
(EC R-5; Tr. 547). By two-way radio, 1551's conductor, James
Raha, requested the assistance of 1258 (Tr. 551). Raha wanted
3
1258 to push 1551 through a railroad switch onto an adjacent
track (approximately three car lengths) so as to clear the
tracks (Tr. 551-553). Number 1258 was at the north blast
furnace trestle when Raha made the request. Since 1258 was in
the process of transporting dolomite to the blast furnace on
the Ohio side of the river, Raha told 1258% conductor, Mike
Mallas, to bring the five cars of dolomite when 1258 came to
help (Tr. 552).
Like a number of Wheeling's locomotives, 1258 was capable
of being operated in manual or remote control (Tr. 75-76, 303).
When operated in manual on the No. 1 Hill job, the 1258 crew
consists of an engineer, conductor and brakeman. The engineer
controls the moving and stopping of the train, the conductor
directs the overall movement of the locomotive and train, and
the brakeman throws any switches that have to be made. When
operated in remote on the No. 1 Hill job, the 1258 crew
consists of a remote operator and conductor (Tr. 76). The
operator controls train movement by manipulating a radio
transmitter, commonly referred to as a "black box,** and the
conductor orchestrates the operator% movements.
Though typically operated in remote, 1258 was operated in
manual on the night of the accident. This was so because 1258
was being used to train a new Transportation Department
employee, Rich Pompa. Pompa was at a point in his training
where he was only qualified to operate a locomotive in the
manual mode (Tr. 301-303). At the time of the accident, 1258%
4
crew consisted of engineer/trainee Pompa, engineer/trainer Mike
Yuricic, brakeman John Carducci, and conductor Mike Mallas (Tr.
304). This schedule had been posted approximately one week in
advance of the shift (Tr. 302). Carducci, Mallas and Yuricic
had almost fifty years of combined experience as railroad
employees and all three were qualified operators, engineers and
conductors WX l R-5; Tr. 369, 595) l Respondent's railroad
training instructor, Ralph Brady, described Pompa's level of
competence as very good prior to the accident (Tr: 584, 591).
The brake system for 1258 is a compressed air system (Tr.
76) l A series of air hoses connects the brakes of each hopper
car to the locomotive (Tr0 76-77). This system of hoses is
referred to as the train line air (Ex. R-5: Tr. 76-77). Ninety
pounds of air is required to be pumped into the train line
prior to train movement (Ex. R-5; Tr. 76). Brake pressure is
applied by releasing air from the train line (Ex. R-5; Tr. 77).
Air is released from the train line by manipulating the
automatic brake. Assuming the brake system is functioning
properly, the release of 10 pounds of air will stop a
locomotive and drag of cars on a flat surface (Tr. 437-438).
After receiving the call from 1551, 1258 proceeded through
the trestle bridge cume and down the No. 1 Hill. As the
second hopper car came through the curve, Pompa made a lo- to
120pound brake application (Tr l 308, 610-611). Since the
brakes failed to respond to the first application, Pompa
immediately made another application (Tr. 309-310, 611). The
5
second brake application was made when the fifth car had passed
through the curve (Tr. 309-310, 611). Again, the brakes did
not respond to the application (Tr. 310, 611).
At about the time of the first brake application,
yardmaster Ken Zomoida, who had hitched a ride on 1258, jumped
from the train (Tr. 387-388). John Carducci, who had been in
the cab with Pompa and Yuricic and who had observed Pompa make
the first application, became concerned and left the cab (Tr.
388). Before jumping from the locomotive, Carducci
unsuccessfully attempted to convince Mike Mallas to jump (Tr.
386-387). Yuricic, the engineer/trainer, jumped from the
locomotive shortly before impact with 1551.
After the brakes failed to respond to the . second
application, Pompa manipulated the automatic brake
to the
*
emergency stop position. Pompa also applied the independent
brake (Trl 311-313). Neither the emergency stop nor the
.
independent brake slowed the train (Tr. 313). When the train
collided with 1551, Pompa was still at the controls and Mallas
was situated on a platform outside of the cab at the head end
of 1258 (Tr. 314). Number 1258 was completely demolished,
Pompa was injured, and Malias was killed (Tr. 890).
In the week prior to the June 27, 1989, accident, three
operators, Kirk Jarrett, Dennis Westfall and Don Finley, worked
with 1258 on the No. 1 Hill job. All three reported brake
problems with respect to 1258% train line air while operating
in remote. Each employee indicated the problems occurred
6
sporadically (Tr. 83-87, 136, 171-172). In the same time
frame, the three employees turned in the brake shoes for 1258
since they were visibly worn and cracked (Tr. 83-87, 128429,
171-172). One operator, Kirk Jarrett, was informed by his
yardmaster on the Sunday prior to the Tuesday accident that no
replacement shoes were available (Tr l 87-88). Respondent's
daily records reflect that on June 25, 1989, 1258 did need new
brake shoes (Ex. R-9).
Dick Penn, Wheeling's locomotive shop supervisor, assigned
Christ Vergitz and Jim Roberts, locomotive shop mechanics, to
repair 1258% train line on the morning of the accident at the
start of the 7:OO a.m. shift (Tr. 289-290). Since neither
mechanic knew if the problems with 1258's train line were in
manual or remote, they brought equipment for both when they
went to service it (Tr. 291). Vergitz and Roberts w&e unable
to repair 1258 because the yardmaster, Terry Hosenfeld, put
1258 -into service even though he was aware of its train line
problems (Tr. 294-295).
After Don Finley reported train line problems with 1258 on
the shift prior to the accident, an electronics department
employee, Bob Harper, was sent out to repair 1258. Harper
inspected 1258 at approximately 11:OO a.m. on the date of the
accident. Harper concluded that 1258's problems were not a
remote problem but a problem with the mechanical braking system
(Tr. 262-265). Harper reported this condition to Hosenfeld and
informed him that the locomotive shop would have to repair the
7
problem (Ex. C-2; Tr. 266-267). The locomotive shop failed to
inspect or repair 1258 prior to the 8:00 p.m. accident (Tr.
816).
LAW
The General Dutv Clause
Section 5(a)(l) provides:
(1) Each employer shall furnish to each of his
employees employment and a place of employment which
are free from recognized hazards that are causing or
are likely to cause death or serious physical harm to
his employees.
. The Secretary charges Wheeling with the willful violation
of this standard, claiming that Wheeling knowingly allowed its
employees to operate locomotive 1258 with a defective braking
system which Wheeling failed to remove from service for proper
inspection and repair.
Toprove that an employer violated section
s(a) (1)I the Secretary must show: (1) that a
condition or activity in the employer% workplace
presented a hazard to employees, (2) that the cited
employer or the employer's industry recognized the
hazard, (3) that the hazard was likely to cause death
or serious physical harm, and (4) that feasible means
existed to eliminate or materially reduce the hazard.
United States Steel Corp., 12 BNA OSHC 1692, 1697-98,
1986-87 CCH OSHD 1 27,517, p. 35,669 (No. 79-1998,
1986) l
Coleco Industries. Inc., OSAHRC / 14 BNA OSHC 1961,
1963, 1991 CCH OSHD 1 27,748 (No. 84-546, 1991).
1 l Hazardous Condition
The Secretary must prove that a condition or activity in
the employer% workplace presented a hazard to employees. In
the present case, the Secretary claims that 1258% braking
system was defective, thus endangering the safety of employees.
The record establishes that at least three of Wheeling's
employees experienced problems with the train line in the week
prior to the accident. The employees, Jarrett, Westfall and
Finley, each reported these problems to the locomotive shop.
The. employees also reported that the brake shoes were worn and
needed replacing. Terry Hosenfeld, Wheeling's yardmaster, knew
that 1258 had been experiencing train line problems, but he put
the locomotive into service on June 27 rather than waiting
until the.locomotive shop repaired it.
The worn brake shoes and the train line problem presented
the hazard of the train failing to stop when the brakes were
applied. Wheeling disputed that the brake shoes were worn,
based on the testimony of Richard Penn, the general foreman of
the locomotive shop. Penn testified that the thickness of a
new brake shoe is 1 l/4 inches (Tr. 762). Dennis Westfall
stated that brake shoes were supposed to be 4 l/2 inches and
that he observed them to be 1 l/2 to 2 inches (Tr. 129). John
Pastors explained that most operators are not aware that there
is a backing plate, as well as the brake lining on a shoe.
When operators estimate the thickness of the brake shoe, they
9
are apt to include the backing plate in their estimate (Tr.
'0
764). Nevertheless, Jarrett and Westfall are both experienced
operators who actually observed 1258% brake shoes in the days
before the accident. They are cons.idered competent to testify
as to whether the brake shoes were worn or not. Westfall*s
testimony regarding the shoes was unequivocal: "There wasn't
much of them left. They were worn down further than they
should have been. With cracks in them" (Tr. 129).
The Secretary has established that 1258's braking system,
consisting of its train line air and its brake shoes, were
defective, creating a hazardous condition.
2 l Recognition of the Hazard
The Secretary must prove that Wheeling or Wheeling9
industry recognized the hazard. Actual knowledge of the hazard
by the employer satisfies the recognition requirement of the
general duty clause. Brennan v. Vv Lactos Laboratories, Inc.,
494 F.2d 460 (8th Cir, 1974).
Wheeling had actual knowledge of the defective braking
system. iLocomotive 1258 was turned in several times by three
LA
different employees in the week prior to the accident (Tr. 830
87 I 128-129, 136, 174-175). A week to ten days before the
accident, Albert Chappano, a conductor for Wheeling, told Rich
Carter, Wheeling% general superintendent of its transportation
department, that if something was not done about the defective
equipment, somebody was going to get killed (Tr. 458). Still,
10
no action was taken to ensure that 1258 was taken out of
*
service until the brake system could be repaired. On the day
of the accident, Wheeling's yardmaster put 1258 into service
knowing that the repair crew dispatched by Penn earlier that
day had not gotten to it (Tr. 291, 295).
The record demonstrates that numerous supervisory
personnel of Wheeling were aware of the repeated problems with
1258's braking system. The Secretary has satisfied the second
element of her burden of proof for a section 5(a)(l) violation.
30 Hazard Likely-to Cause Death
or Serious Physical Iniurv
The Secretarv* must show that the defective brake svstem
*
was likely to cause death or serious physical injury. It is
self-evident that a locomot ive, attached to other cars carrying
freight and operating on a railroad which has a steep incline
and where other locomotives also operate, can present a threat
of death or serious physical injury to the employees on and
around the locomotives. The fatal accident, which gave rise to
this case, is a grim example of what can happen when a
locomotive's brakes fail. The Secretary has established that
1258% defective braking system could result in death or
serious physical injury.
4. Fetgsible Means of Abatement
Finally, the Secretary must establish that feasible means
existed
23 to eliminate or materially reduce the hazard. Wheeling
11
had a locomotive shop and a procedure in place for reporting
any problems with the locomotives. Had the reports been
followed up on, and had 1258 not been continued in service
until it was fully repaired, no violation would have occurred.
Wheeling had a feasible means of eliminating or reducing the
hazard.
The Secretary has established that Wheeling was in
violation of § 5 (a) (1) for allowing employees to operate 1258,
knowing that 1258 had a defective braking system.
Willful Classification
The Secretary charges Wheeling with a willful violation of
§ 5(a ) Cl) l "Under Commission precedent, a violation is willful
if 'it was committed voluntarily with either an intentional
disregard for the requirements of the Act or plain indifference
to .employee safety.' U. S. Steel Corp., 12 BNA OSHC at 1703,
1986-87 CCH OSHD at p. 35,675." Coleco Industries, Inc., 14
BNA OSHC at 1967.
Wheeling% employees repeatedly informed Wheeling of the
problems with 1258% braking system. Wheeling repeatedly
permitted its employees to operate 1258 without first
requiring that the locomotive be repaired. Hosenfeld,
Wheeling's yardmaster, failed to take 1258 out of service.
Penn did not warn the LOO p.m. to 11:00 p.m. shift that 1258%
braking problems had not been fixed.
12
Seven to ten days before the accident, Chappano went to
Wheeling's general superintendent of transportation and warned
him that if something was not done about the disrepair of the
equipment, somebody would end up getting killed. Rich took no
action after hearing Chappano's prophetic statement.
The record more than substantiates the Secretary's willful
charge. Wheeling intentionally disregarded its duty to
furnish a place of employment free from recognized hazards,
and Wheeling demonstrated plain indifference to the safety of
its employees by knowingly permitting them to operate 1258, a
locomotive known to have a defective braking system. Wheeling
was in willful violation of 5 5(a)(l).
After due consideration, it is determined that the
Secretary% proposed penalty of $10,000 is appropriate.
FINDINGS OF FACT
10 The accident occurred on Tuesday, June 27, 1989, at
approximately 8:00 p.m. and respondent's employee, Mike Mallas,
was killed.
20 Two locomotives, engine 1258 and engine 1551, were
involved in the accident.
3 l At the time of the accident, 1258 was being used to
service the No. 1 Coke Plant job (Tr. 74). The No. 1 Coke
Plant job extends from the respondent's coke works in
Follansbee, West Virginia, to the Steubenville, Ohio, No. 1
blast furnace (Tr. 74).
13
4 l The No. 1 Coke Plant job extends across the Ohio River
and is commonly referred to as the No. 1 Hill job (Tr. 74).
50 No. 1551, which was servicing the No. 1 Mingo job, was
disabled on the tracks used for the No. 1 Coke Plant job. No.
1551 had been pushing approximately 30 hopper cars of raw
materials at the time it became disabled (Tr. 551).
6 l No 0 1258, which was pulling five hopper cars of
dolomite, collided with No. 1551 at the bottom of the No. 1
Hill (Tr. 547).
70 No. 1258 was capable of being operated in remote or in
manual. When run in remote, 1258 was serviced by a two-person
crew consisting of an operator and a conductor. When run in
manual, 1258 was serviced by a three-person crew consisting of
an operator, conductor, and brakeman (Tr. 76, 167).
8 l At the time of the accident, 1258 was operated
manually. This was so because 1258 was used to train a new
engineer/operator, Rich Pompa (Tr. 301-303).
9 l Since 1258 was being used to train a new employee at
the time of the accident, it had a four-person crew. The crew
consisted of brakeman John Carducci, conductor Mike Mallas,
engineer Mike Yuricic, and trainee Rich Pompa. This schedule
had been posted approximately one week prior to the accident
(Tr. 302, 304).
14
10 l The brake system for 1258 is a compressed air system.
A series of air hoses connect the brakes of each hopper car to
the locomotive; This system of hoses is commonly referred to
as the train line air (Tr. 76-77).
11 l It is necessary to pump 90 pounds of air into the
brake system prior to train movement. Brake pressure is
applied by the release of air pressure from the train line (Tr.
76-77).
12 0 Normally, the release of 10 pounds of air is adequate
to set the brakes for a locomotive and drag of hopper cars.
The release of 20 pounds of air will stop a locomotive and drag
of hopper cars if the brakes are working properly (Tr. 437~
438).
13 0 On June 25, 1989, the operator of 1258 on the 3:00
p.m. to 1l:OO p.m. shift, Kirk Jarrett, experienced brake
problems while operating in remote. Specifically, 1258 would
not stop until all air was drawn from the system. Jarrett
reported this condition ("turned it irP) to the yardmaster, Ken
Zomoida. Jarrett further noted that this condition occurred
periodically in the week prior to the accident and that he or
his conductor reported the condition to their yardmaster each
time it occurred (Tr. 83-87).
14 l Jarrett also turned in the worn brake shoes for 1258
on June 25, 1989. He was informed by the yardmaster that no
replacement shoes were available (Tr. 87).
15
15 l Dennis Westfall, who operated 1258 on the 11:00 p.m.
to 7:00 a.m. shift which ended approximately 12 hours prior to
the accident, turned in the brakes for 1258 because 1258 would
not stop in response to his controls and the train line
overcharged to 130 pounds. Both conditions occurred off and on
during the week prior to the accident (Tr. 136).
16 l Westfall also turned in the brake shoes since they
were visibly worn and cracked (Tr. 128-129).
17 0 Don Finley, who operated 1258 during the shift prior
to the accident, turned in the brakes for 1258 since they would
not respond to his controls (Tr. 174). In the week prior to
the accident, Finley periodically experienced train line brake
problems (Tr. 171-172).
18 l At approximately 11:00 a.m. on the day of the
accident, Bob Harper, an electronics department empl.oyeewith
25 years' experience, examined the remote control mechanism for
1258 and determined it to be functioning properly (Tr."2620
265).
19 l Harper concluded that there was a mechanical air
brake problem with 1258, and he reported his findings to Terry
Hosenfeld, the yardmaster, at the time (Tr. 289-290).
20 l Christ Vergitz, a mechanic in respondent's locomotive
shop, was assigned by his supervisor, Dick Penn, to service
1258% train line air at the beginning of his 7:OO a.m. to 3:00
p.m. shift on the date of the accident (Tr. 289-290).
16
21 l Since Vergitz was unaware whether the problem was in
remote or manual, he brought parts for both systems when he
went to repair 1258 (Tr. 291).
22 l By the time Vergitz reached the coke works in West
Virginia, 1258 had been put into service by the yardmaster,
Terry Hosenfeld (Tr. 291).
23 0 Hosenfeld indicated to Vergitz that he knew of
12583 train line problem (Tr. 295).
24 l Because of repair work that had to be performed on
other locomotives, Vergitz never repaired 1258% train line
brakes. Vergitz explained this fact to supervisor Penn (Tr.
294) l
25 0 Nobody from the locomotive shop repaired 1258% train
line brake problem prior to the June 27, 1989, accident (Tr.
.
816). .
26 a At the time of the accident, the engineer trainee,
Rich Pompa, was at the controls (Tr. 300-302). 0
27 0 On the run in which the accident occurred, the
yardmaster, Ken Zomoida, was on the outside of 1258's cab,
travelling with the train's crew (Tr. 302).
28 l No l 1258 started from the blast furnace trestle,
through the trestle curve, and down the No. 1 Hill. As the
second hopper car came through the curve, Pompa made a lo- to
120pound brake application (Tr. 308). No brake response was
felt by any of the train crew (Tr. 308).
17
29 l Almost immediately after the first application, Pompa
made another lo-pound brake application (Tr. 309-310). Again,
no brake response was felt (Tr. 310).
30 l Pompa put 1258 into emergency stop by manipulating
the automatic brake 10 to 12 car lengths from 1551 (Tr. 3110
312). Pompa also applied the locomotive's independent brake
(Tr0 313). No brake pressure was felt prior to the collision
(Tr. 311-313).
31 0 All employees, except Pompa and Mallas, exited the
train prior to the collision (Tr. 314).
a
CONCLUSIONS OF LAW
1 l Wheeling, at all times material to this proceeding,
was engaged in a business affecting commerce within the meaning
of section 3(5) of the Occupational Safety and Health Act of
1970 ("At")).
2 l Wheeling, at all times material to this proceeding,
was subject to the requirements of the Act and the standards
promulgated thereunder. The Commission has jurisdiction of the
parties and of the subject matter.
3 . Wheeling was in willful violation of section 5(a)(l)
for knowingly allowing employees to operate locomotive 1258
with a defective braking system.
18
ORDER
Based upon the foregoing findings of fact and conclusions
of law, it is hereby ORDERED:
10 That item one of the citation is affirmed and a
penalty of $10,000 is assessed.
20 That item two of the citation is vacated and no
penalty is assessed.
-.A/
EDWIN G. SALYEiS
Judge
Date: March 28, 1991
19
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