relating to air conditioning and ventilation until October 1, 1964. The specifications provided that work pertaining to air conditioning equipment would be performed during the months of March, April and May. The contract did not contain a suspension of work clause. The Government moved to dismiss the contractor's appeal from the denial of its claim for increased costs resulting from the directive upon the ground the claim was for delay damages and thus beyond the jurisdiction of the Board. The Board denied the Government's motion holding that the deferral of the air conditioning work was not, in the true sense, a delay or suspension of the work, but a change in the order of contract performance directed by the contracting officer which entitled the contractor to an equitable adjustment for the resulting increased costs.

We have no doubt that where the specifications establish an order or sequence for performance of various items of work, a directive from the contracting officer or his authorized representative to change that sequence may properly be regarded as a change in specifications within the meaning of the "Changes" clause. We think it evident, however, that Modification No. 1 postponed the delivery (installation) date, but did not affect the order or

See Farnsworth & Chambers Co., Inc., ASBCA No. 5408 (August 31, 1959), 59-2 BCA par. 2329 (order of Contracting Officer requiring mobilization of contractor's personnel for the purpose of performing incidental items of work out of normal sequence held to be a change).

sequence of performance as was the case in Mech-Con (note 8, supra), or in Farnsworth & Chambers Co., Inc. (note 9, supra).10 Accordingly, the cited decisions do not control this case.

It is clear that the "Changes" clause does not provide for changes in the delivery schedule except insofar as necessary to provide for an equitable adjustment to the contractor for other changes effected under the clause. The acceleration cases are, perhaps, a conspicuous exception.11 Be that as it may, no acceleration claim has been asserted; nor is it apparent from the record that such a claim could properly be asserted.

This brings us to the question of under what authority Modification No. 1 was issued. We think it clear

that the modification could have been issued under paragraph 11 of the General Provisions entitled "Default" in order to recognize the extension of the delivery date to which the contractor was entitled due to causes beyond its control and without its fault or negligence. It is,

10 It is, of course, obvious that the system could not be installed until the site became available.

11 These normally involve a request for excusable delay which is improperly denied and directives to perform the work in a lesser time than would be available had the exten sion been granted. See Montgomery-Macri Co. & Western Line Construction Co., Inc., IBCA59 & IBCA-72 (June 28, 1963), 70 I.D. 242, 1963 BCA par. 3819 at 19,056, affirmed on reconsideration (June 30, 1964), 71 I.D. 253, 1964 BCA par. 4292; M. S. 1. Corporation. GSBCA No. 2429 (November 19, 1968), 68-2 BCA par. 7377 and L. O. Brayton, IBCA-641– 5-67 (October 16, 1970), 77 I.D. 187, 70-2 BCA par. 8510.

251]

of course, well settled that the mere fact that an excusable cause of delay has been encountered does not entitle the contractor to compensation for increased costs resulting from such delays.12 Even if Modification No. 1 was not issued pursuant to the "Default" clause, we note that it has been held that generally an officer authorized to make a contract for the Government has implied authority to modify it.13 However, for the purpose of deciding the Government's motion, it is unnecessary to decide what contract clause, if any, authorized the issuance of Modification No. 1. It is enough that the modification is not within the terms of the "Changes" clause.14

We conclude that the claim herein is for "pure delay" and that appellant must seek relief, if any, in another forum.15

12 Montgomery-Macri Co. and Western Line Construction Co., Inc. (note 11, supra) at 19,025; Marden Corp., ASBCA No. 8934 (November 8, 1963), 1963 BCA par. 3938; John H. Moon & Sons (note 4, supra), on reconsideration (March 23, 1973), 80 I.D. 235, 73-1 BCA par. 235.

13 Whitman v. United States, 124 Ct. Cl. 464 (1953), and authority cited.

14 See Meva Corporation, IBCA-648-6-67 (August 18, 1969), 76 I.D. 205, 69-2 BCA par. 7838, in particular footnotes 100 and 101 and accompanying text. Cf. Guy F. Atkinson Company, IBCA-795-8-69 (January 6, 1970), 69-2 BCA par. 8041 at 37,339, footnote 7: This Board has never viewed delivery dates for Government furnished material as a kind of specification' subject to the doctrine of constructive change."

460

15 James Knox d/b/a Jak Enterprises, IBCA No. 684-11-67 (February 13, 1968), 68-1 BCA par. 6854 (contractor's claim for rental on equipment made idle because of failure of the Government to de-energize a transmission line so work could proceed as scheduled dismissed since it was a claim for which no relief was available under the contract).

Conclusion

The appeal is dismissed.

SPENCER T. NISSEN, Member.

I CONCUR:

WILLIAM F. McGRAW, Chairman.

SEWELL COAL COMPANY

2 IBMA 80

Decided March 30, 1973

Appeal by Sewell Coal Company from a decision dated November 8, 1972, by Administrative Law Judge Steffey, denying Applications for Review of two Notices of Violation pursuant to section 105 of the Federal Coal Mine Health and Safety Act of 1969.1

Affirmed.

Federal Coal Mine Health and Safety Act of 1969: Mandatory Safety Standards: Generally

The requirement of 30 CFR 77.215 (c) is applicable to refuse piles constructed prior to July 1, 1971, as well as to any constructed after that date.

Federal Coal Mine Health and Safety Act of 1969: Notices of Violation: Elements of Proof

To sustain its burden of proving that spontaneous ignition (or combustion) occurred in refuse piles, the Bureau of Mines must show (1) that certain combustible material was present in each pile; (2) that the piles were compacted in such a way as to permit air to flow through the piles, allowing oxidation to occur; and (3) that the inference of spontaneous ignition was more probable than any other inference which could be drawn from the facts proved.

1 Hereinafter the Act; P.L. 91-173, 83 Stat. 742-804, 30 U.S.C. §§ 801-960 (1970).

Federal Coal Mine Health and Safety Act of 1969: Penalties: Existence of Violation: Evidence

A fact may be inferred from circumstantial evidence, and such fact may be the basis of further inference leading to the ultimate or sought for fact.

Glenn Munsey, Earnest Scott and Arnold Scott v. Smitty Baker Coal Company, Inc., 1 IBMA 144, 162 (Aug. 8, 1972); 79 I.D. 501, 509, Distinguished.

APPEARANCES: Raymond E. Davis, Esquire, and Wesley C. Marsh, Esquire, attorneys for appellant, Sewell Coal Company; Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, I. Avrum Fingeret, Trial Attorney for appellee, U.S. Bureau of Mines.

OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS

The procedural and factual background of this case is adequately set forth in the Judge's decision.2 Notice of Appeal to that decision was filed by Sewell Coal Company (hereinafter Sewell) on November 17, 1972. Motions were filed by

Sewell and the Bureau of Mines (hereinafter Bureau) for extensions of time within which to file their briefs. Sewell's brief was timely filed, but the Bureau filed its brief in response too late to be considered by the Board. The contentions by

2 The Judge's decision follows at 2 IBMA 87, 80 I.D. 254.

Sewell are substantially the same as set forth in the Judge's decision.3

In reviewing the entire record in this matter, the Board finds that the Judge committed no error in his interpretation of the construction of 30 CFR 77.214-77.215. However, we believe that some further explanation is necessary of the Judge's determination that spontaneous ignition was the source of the refuse pile fires.

By the very nature of spontaneous ignition (or combustion), proof of its occurrence must necessarily be based on inferences. One explanation of the phenomenon as it relates to coal refuse piles was presented in the record:

*** This phenomenon results from the flow of air through combustible refuse material and consequent oxidation. When sufficient oxidation occurs, heat is generated, and the combustible components in the pile ignite. (Gov. Ex. 17 at 5.)*

It was necessary in sustaining its burden that the Bureau prove (1) that certain combustible refuse material was present in each pile; (2) that the piles were compacted in such a way as to permit air to flow tion to occur; and (3) that the inthrough the piles, allowing oxidaference of spontaneous ignition was "more probable than any other inference which could be drawn from the facts thus proven." 5

3 Id. at 2 IBMA 88-89.

4 Abbreviated references in the text are to Government Exhibit (Gov. Ex.) and Transcript of Hearing (Tr.).

5 New York Life Ins. Co. v. McNeely, 79 P.2d 948 (1938), at 954.

Based on his observation and experience with refuse piles in general, the engineer unequivocally concluded that Sewell's No. 1 and No. 4 plants' refuse piles had conditions which would lead to spontaneous combustion. He observed, "If a pile is burned, this certainly has material in it that will catch on fire." (Tr. 79) It was his ultimate opinion that the source of both of the subject fires was spontaneous combustion. (Tr. 74)

From the foregoing testimony, the Board can properly infer and hereby finds that combustible material was present in both of the subject refuse piles.

Were the Refuse Piles Compacted in such a way as to permit Air to Flow through them Allowing Oxidation to Occur?

The unrefuted testimony of the engineer, who was familiar with the construction of both refuse piles (Tr. 73), requires an affirmative answer to the question.

Is the Inference that Spontaneous Ignition caused the Fires more probable than any other Inference which could be drawn from the Facts Proved?

6

The answer to this question must also be in the affirmative. No evidence of the existence of other sources of possible ignition was offered by either party. For example, there was no evidence of lightning in the area, hunter's carelessness, smoker's negligence, or intentional ignition. In fact, Sewell's safety director testified (Tr. 57) as follows:

Inference upon an Inference

It may be said that the Board and the Judge arrived at their decisions by way of an inference upon an inference. We believe that good authority exists which justifies the process used to arrive at finding the ultimate fact in this case, i.e., that the fires burning in the subject ref

See the general discussion of causes other than spontaneous combustion in the Transcript of Hearing at 27, 38, 39, 70 and in Government Exhibit 17 at 5.

7 See 1 Wigmore on Evidence par. 41 and Trice v. Commercial Union Assurance Co., 397 F.2d 889 (1968), at 891: "A fact may be inferred from circumstantial evidence and such fact may be the basis of further inference to the ultimate or sought for fact."

A hearing on the merits was held November 2, 1972, regarding the Applications for Review filed October 24, 1972, by Sewell Coal Company pursuant to section 105 of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 815 (1970), in the above-captioned proceeding. The Applicant seeks review of two notices of violation both bearing the identification of Notice No. 1 J.M.J. and both dated September 25, 1972. The Applicant filed simultaneously with its Applications for Review a motion for expedition

which was granted on October 27, 1972, in the notice providing for hearing. The ground for expedition is the Applicant's contention that the time allowed for abatement is unreasonable because the fact of a violation has not been established under section 77.215 (c) of the Mandatory Safety Standards cited in the notices of violation. Applicant avers that it would be manifestly unfair to require it to perform acts to eliminate a condition to which the Safety Standards do not apply.

Since the Applicant and the Bureau of Mines have both indicated that they will appeal any decision of the Administrative Law Judge which might be unfavorable to their positions in this case, and inasmuch as the time for abatement of the violations, as extended, expires on November 15, 1972, counsel agreed that it would be appropriate in the circumstances for this decision to be issued prior to the time the written transcript of the hearing becomes available. Such expedition is necessary in order that either or both parties will be able to appeal the decision to the Board of Mine Operations Appeals prior to the expiration of the time allowed for abatement. The evidence shows that any withdrawal order which might be issued would require the closing of the Applicant's Preparation Plant Nos. 1 and 4 which have a combined daily output of 4,000 tons of coal. Closing of the preparation plants would also require discontinuance of operations in the underground mines which supply raw coal to the preparation plants.