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relating to air conditioning and sequence of performance as was the ventilation until October 1, 1964. case in Mech-Con (note 8, supra), The specifications provided that or in Farnsworth & Chambers Co., work pertaining to air conditioning Inc. (note 9, supra).10 Accordingly, equipment would be performed dur- the cited decisions do not control ing the months of March, April and

this case. May. The contract did not contain It is clear that the “Changes" a suspension of work clause. The

clause does not provide for changes Government moved to dismiss the

in the delivery schedule except incontractor's appeal from the denial sofar as necessary to provide for an of its claim for increased costs re- equitable adjustment to the consulting from the directive upon the tractor for other changes effected ground the claim was for delay dam- under the clause. The acceleration ages and thus beyond the jurisdic

cases are, perhaps, a conspicuous tion of the Board. The Board de- exception.'1 Be that as it may, no acnied the Government's motion celeration claim has been asserted; holding that the deferral of the air

nor is it apparent from the record conditioning work was not, in the

that such a claim could properly be true sense, a delay or suspension of

asserted. the work, but a change in the order of contract performance directed by

This brings us to the question of the contracting officer which en

under what authority Modification titled the contractor to an equitable

No. 1 was issued. We think it clear adjustment for the resulting in

that the modification could have creased costs.

been issued under paragraph 11 of We have no doubt that where the

the General Provisions entitled specifications establish an order or

“Default” in order to recognize the sequence for performance of vari- extension of the delivery date to ous items of work, a directive from which the contractor was entitled the contracting officer or his author- due to causes beyond its control and ized representative to change that without its fault or negligence. It is, sequence may properly be regarded as a change in specifications within 10 It is, of course, obvious that the system

could not be installed until the site became the meaning of the “Changes"

avallable. clause. We think it evident, how

11 These normally involve a request for ex

cusable delay which is improperly denied ever, that Modification No. 1 post- and directives to perform the work in a lesser poned the delivery (installation)

time than would be available had the exten

sion been granted. See Montgomery-Macri Co. date, but did not affect the order or

& Western Line Construction Co., Inc., IBCA

59 & IBCA-72 (June 28, 1963), 70 I.D. 242, See Farnsworth & Chambers Co., Inc., 1963 BCA par. 3819 at 19.056, affirmed on ASBCA No. 5408 (August 31, 1959). 59-2 reconsid ration (June 30, 196+), 71 I.D. 253, BCA par. 2329 (order of Contracting Officer 1964 BCA par. 4292; M. s. I. Corporation, requiring mobilization of contractor's person- GSBCA No. 2429 (November 19, 1968), 68–2 nel for the purpose of performing incidental BCA par. 7377 and L. 0. Brayton, IBCA-641items of work out of normal sequence held to 5-67 (October 16, 1970), 77 I.D. 187, 70-2 be a change).

BCA par. 8510.

9

251)

March 30, 1973

of course,
well settled that the mere

Conclusion fact that an excusable cause of delay

The appeal is dismissed. has been encountered does not entitle the contractor to compensation SPENCER T. NISSEN, Member. for increased costs resulting from I CONCUR: such delays.12 Even if Modification No. 1 was not issued pursuant to the

WILLIAM F. McGRAW, Chairman. “Default" clause, we note that it has

SEWELL COAL COMPANY been held that generally an officer authorized to make a contract for 2 IBMA 80 the Government has implied author

Decided March 30, 1973 ity to modify it.13 However, for the

Appeal by Sewell Coal Company from purpose of deciding the Govern

a decision dated November 8, 1972, by ment's motion, it is unnecessary to

Administrative Law Judge Steffey, decide what contract clause, if any,

denying Applications for Review of authorized the issuance of Modifica

two Notices of Violation pursuant to tion No. 1. It is enough that the

section 105 of the Federal Coal Mine modification is not within the terms

Health and Safety Act of 1969.1 of the “Changes" clause. 14

We conclude that the claim herein Affirmed. is for "pure delay" and that appel- Federal Coal Mine Health and Safety lant must seek relief, if any, in an

Act of 1969: Mandatory Safety Standother forum.15

ards: Generally 12 Montgomery-Macri Co. and Western Line

The requirement of 30 CFR 77.215(c) is Construction Co., Inc. (note 11, supra) at applicable to refuse piles constructed 19,025; Marden Corp., ASBCA No. 8934 (No- prior to July 1, 1971, as well as to any vember 8, 1963), 1963 BCA

3938;

constructed after that date. John H. Moon & Sons (note 4, supra), on reconsideration (March 23, 1973), 80 I.D. 235, Federal Coal Mine Health and Safety 73–1 BCA par. 235. 13 Whitman v. United States, 124 Ct. Cl. 464

Act 1969: Notices of Violation: Ele. (1953), and authority cited.

ments of Proof 14 See Meva Corporation, IBCA-648–6–67 (August 18, 1969), 76 I.D. 205, 69-2 BCA To sustain its burden of proving that par. 7838, in particular footnotes 100 and 101

spontaneous ignition (or combustion) ocand accompanying text. Cf. Guy F. Atkinson Company, IBCA-795-8-69 (January 6, 1970),

curred in refuse piles, the Bureau of 69-2 BCA par. 8041 at 37,339, footnote 7:

Mines must show (1) that certain com"*•• This Board has never viewed delivery bustible material was present in each dates for Government furnished material as a

pile; (2) that the piles were compacted kind of 'specification' subject to the doctrine of constructive change."

in such a way as to permit air to flow 15 James Knor

d/b/a Jak Enterprises, through the piles, allowing oxidation to IBCA No. 684-11-67 (February 13, 1968), occur; and (3) that the inference of 68-1 BCA par. 6854 (contractor's claim for

spontaneous ignition was more probable rental on equipment made idle because of fallure of the Government to de-energize a

than any other inference which could be transmission line so work could proceed as drawn from the facts proved. scheduled dismissed since it was a claim for which relief

available under the 1 Hereinafter the Act ; P.L. 91-173, 83 Stat. contract).

742-804, 30 U.S.C. $$ 801-960 (1970).

par.

no

was

Federal Coal Mine Health and Safety Sewell are substantially the same Act of 1969: Penalties: Existence of as set forth in the Judge's decision. Violation: Evidence

In reviewing the entire record in A fact may be inferred from circumstan- this matter, the Board finds that the tial evidence, and such fact may be the Judge committed no error in his inbasis of further inference leading to the

terpretation of the construction of ultimate or sought for fact.

30 CFR 77.214–77.215. However, we Glenn Munsey, Earnest Scott and believe that some further explanaArnold Scott v. Smitty Baker Coal

ţion is necessary of the Judge's Company, Inc., 1 IBMA 144, 162 determination that

that spontaneous (Aug. 8, 1972); 79 I.D. 501, 509, ignition was the source of the refuse Distinguished.

pile fires.

By the very nature of spontaneAPPEARANCES: Raymond E.

ous ignition (or combustion), proof Davis, Esquire, and Wesley C.

of its occurrence must necessarily Marsh, Esquire, attorneys for ap

be based on inferences. One explanapellant, Sewell Coal Company;

tion of the phenomenon as it relates Robert W. Long, Associate Solici

to coal refuse piles was presented tor, J. Philip Smith, Assistant So

in the record : licitor, I. Avrum Fingeret, Trial Attorney for appellee, U.S. Bureau *** This phenomenon results from of Mines.

the flow of air through combustible refuse material and consequent oxida

tion. When sufficient oxidation occurs, OPINION BY THE BOARD

heat is generated, and the combustible INTERIOR BOARD OF MINE

components in the pile ignite. (Gov. Ex. OPERATIONS APPEALS 17 at 5.)

It was necessary in sustaining its The procedural and factual back

burden that the Bureau prove (1) ground of this case is adequately set

that certain combustible refuse maforth in the Judge's decision.2 No

terial was present in each pile; (2) tice of Appeal to that decision was filed by Sewell Coal Company such a way as to permit air to flow

that the piles were compacted in (hereinafter Sewell) on Novem

through the piles, allowing oxidaber 17, 1972. Motions were filed by

tion to occur; and (3) that the inSewell and the Bureau of Mines

ference of spontaneous ignition was (hereinafter Bureau) for extensions

"more probable than any other inof time within which to file their

ference which could be drawn from briefs. Sewell's brief was timely the facts thus proven.” 6 filed, but the Bureau filed its brief in response too late to be considered by the Board. The contentions by

4 Abbreviated references in the text are to Government Exhibit (Gov. Ex.) and Tran

script of Hearing (Tr.). The Judge's decision follows at 2 IBMA 87, 5 New York Life Ins. Co. v. McNeely. 79

P.2d 948 (1938), at 954.

3 Id. at 2 IBMA 88-89.

80 ID. 234.

March 30, 1973

6

Was Combustible Material Present Is the Inference that Spontaneous in Sewell's Refuse Pile?

Ignition caused the Fires more

probable than any other InferThe Bureau did not offer the re

ence which could be drawn from sults of any tests of the combusti

the Facts Proved? ble content of the refuse piles. However, the Bureau's mining engineer The answer to this question must gave expert opinion testimony, also be in the affirmative. No eviwhich was unrefuted by Sewell:

dence of the existence of other "I'd say in the area that I'm talking

sources of possible ignition 6 was about in Summersville, Nicholas offered by either party. For examCounty, there's other refuse piles ple, there was no evidence of lightthat would substantiate that these ning in the area, hunter's carelesspiles are very susceptible to spon

ness, smoker's negligence, or intentaneous combustion.” (Tr. (3)

73

tional ignition. In fact, Sewell's Based on his observation and ex

safety director testified (Tr. 57) as perience with refuse piles in gen

follows: eral, the engineer unequivocally Q. Mr. Givens, do you know of any. concluded that Sewell's No. 1 and

one * * * connected with your coal comNo. 4 plants' refuse piles had condi

pany, Sewell Coal Company, who would tions which would lead to spontane

intentionally set fire to the refuse * * *

dumps and piles? ous combustion. He observed, "If a

A. No, sir. pile is burned, this certainly has Q. Do you know how the fires in the material in it that will catch on

refuse piles at Sewell Preparation Plant

No. 1 and 4 were started ? fire.” (Tr. 79) It was his ultimate

A. No * * * not direct knowledge, no. opinion that the source of both of the subject fires was spontaneous Inference upon an Inference combustion. (Tr. 74)

From the foregoing testimony, It may be said that the Board and the Board can properly infer and the Judge arrived at their decisions hereby finds that combustible ma- by way of an inference upon an terial was present in both of the

inference. We believe that good allsubject refuse piles.

thority exists' which justifies the

process used to arrive at finding the Were the Refuse Piles Compacted ultimate fact in this case, i.e., that in such a way as to permit Air to

the fires burning in the subject refFlow through them Allowing Oxidation to occur..!

& See the general discussion of causes other

than spontaneous combustion in the TranThe unrefuted testimony of the

script of Hearing at 27, 38, 39, 70 and in

Government Exhibit 17 at 5. engineer, who was familiar with the 7 See 1 Wigmore on Evidence par. 41 and

Trice v. Commercial Union Assurance Co., 397 construction of both refuse piles

F.2d 889 (1968), at 891 : “A faet may be (Tr. 73), requires an affirmative an

from circumstantial

such fact may be the basis of further inferswer to the question.

ence to the ultimate or sought for fact."

inferred

evidence

and

use piles were ignited spontane- which was granted on October 27, ously. The Judge, therefore, arrived 1972, in the notice providing for at the proper conclusion of law that hearing. The ground for expedition Sewell had committed the two vio- is the Applicant's contention that lations alleged by the Bureau. Thus, the time allowed for abatement is the Bureau presented a prima facie unreasonable because the fact of a case and successfully carried its bur- violation has not been established den of proof, whereas, Sewell failed under section 77.215(c) of the Manto rebut the Bureau's case.

datory Safety Standards cited in

the notices of violation. Applicant ORDER

avers that it would be manifestly

unfair to require it to perform acts WHEREFORE, pursuant to the

to eliminate a condition to which authority delegated to the Board by

the Safety Standards do not apply. the Secretary of the Interior (43

Since the Applicant and the BuCFR 4.1(4)), IT IS HEREBY

reau of Mines have both indicated ORDERED that the decision of the Administrative Law Judge af

that they will appeal any decision of

the Administrative Law Judge firming the Notices of Violation and

which might be unfavorable to their denying the Application for Review

positions in this case, and inasmuch IS AFFIRMED.

as the time for abatement of the vi. C. E. ROGERS, Jr., Chairman.

olations, as extended, expires on DAVID DOANE, Member.

November 15, 1972, counsel agreed

that it would be appropriate in the 2 IBMA 87 November 8, 1972

circumstances for this decision to be

issued prior to the time the written DECISION

transcript of the hearing becomes

available. Such expedition is necesIntroduction

sary in order that either or both A hearing on the merits was held parties will be able to appeal the November 2, 1972, regarding the decision to the Board of Mine OperApplications for Review filed Oc- ations Appeals prior to the expiratober 24, 1972, by Sewell Coal Com- tion of the time allowed for abatepany pursuant to section 105 of the

ment. The evidence shows that any Federal Coal Mine Health and withdrawal order which might be Safety Act of 1969, 30 U.S.C. $ 815 issued would require the closing of (1970), in the above-captioned pro- the Applicant's Preparation Plant ceeding. The Applicant seeks review Nos. 1 and 4 which have a combined of two notices of violation both daily output of 4,000 tons of coal. bearing the identification of Notice Closing of the preparation plants No.1 J.M.J. and both dated Septem- would also require discontinuance ber 25, 1972. The Applicant filed si- of operations in the underground multaneously with its Applications mines which supply raw coal to the for Review a motion for expedition preparation plants.

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