<DOC>
[DOCID: f:pn99307.wais]
ROSEBUD MINING COMPANY
April 14, 2000
PENN 99-307
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030
April 14, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 99-307
Petitioner : A. C. No. 36-08719-03511
:
v. :
ROSEBUD MINING COMPANY, : Josephine # 3 Mine
Respondent :
DECISION
Appearances: John M. Strawn, Esq., Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Joseph A. Yuhas, Esq., Northern Cambria, Pennsylvania,
for Respondent.
Before: Judge Barbour
This civil penalty proceeding arises under section 105(d)
of the Federal Mine Safety and Health Act of 1977 (30 U.S.C.
� 815(d)) (Mine Act or Act). The Secretary of Labor (Secretary),
on behalf of her Mine Safety and Health Administration (MSHA),
seeks the assessment of a civil penalty against Rosebud Mining
Company (Rosebud) for an alleged violation of 30 C.F.R.
� 75.523-2(c), a mandatory safety standard for underground coal
mines that pertains to deenergizing devices (frequently referred
to as "panic bars") on self-propelled electric face equipment.
The standard is a subpart of 30 C.F.R. � 75.523. Section 75.523
states that the Secretary "may require . . . that electric face
equipment be provided with devices that will permit the equipment
to be deenergized quickly in the event of an emergency." The
first subpart of section 75.523, 30 C.F.R. � 75.523-1, requires
the time-sequenced installation of the devices on self-propelled
electric face equipment. Section 75.523-2 specifies how the
devices must perform and requires, among other things, that if
panic bars are used, the "movement of not more than 2 inches of
the . . . bar . . . resulting from the application of not more
than 15 pounds of force upon contact with any portion of the
equipment operator's body at any point along the length of
the . . . bar shall cause deenergization of the tramming motors
of the . . . equipment."
The Secretary alleges that on July 21, 1999, at Rosebud's
Josephine No. 3 Mine, a MSHA inspector needed more than 15 pounds
of force to cause a panic bar on a mobile bridge carrier (MBC)
to deenergize a continuous mining machine. In addition, the
Secretary charges that the condition was a significant and
substantial contribution to a mine safety hazard (S&S), and she
proposes the assessment of a civil penalty of $184 for the
alleged violation. In response, the company argues that section
75.523-2(c) does not apply to the MBC or, in the alternative,
that the proposed penalty is not based upon proper legal and
factual findings.
The case was tried in Indiana, Pennsylvania. Following the
trial the parties submitted helpful briefs.
THE STIPULATIONS
The parties stipulated as follows:
1. [T]he Josephine Number Three [M]ine is
owned and operated by . . . Rosebud.
2. [T]he mine is subject to the jurisdiction
of the . . . Act . . . .
3. [T]he Administrative Law Judge has
jurisdiction over [the] proceedings.
4. [C]itation [No. 3698571] [and its
modification were] . . . properly assessed
and served by a representative of the
Secretary . . .
upon an agent of . . . [Rosebud]. . . [on and
at] the dates and times and places stated
therein, and may be admitted into evidence
for the [purpose] of establishing their
issuance and not for the truthfulness or
relevancy of any statement asserted therein.
5. [T]he assessment of a [c]ivil [p]enalty
in this proceeding will not affect
[Rosebud's] ability to continue in business.
6. [T]he appropriateness of the penalty, if
any, to the size
of . . . [Rosebud's] business should be based
on the fact that [Rosebud's] annual
production tonnage [of coal] in 1998 was
1,424,142 tons. The month[ly] annual
production tonnage [of coal] in the last two
quarters of 1998 was 56,148 and [was] 61,462
in the first quarter of 1999. The mine
employs 200 employees.
7. [Rosebud] demonstrated ordinary good
faith in obtaining [compliance] after the
issuance of the citation.
8. [T]he mine was assessed a total of 16
citations based on 28 inspection days in the
24 months immediately proceeding the issuance
of the citation.
9. The parties stipulate to the authenticity
of their exhibits . . . . (Tr. 13-14; see
also Joint Exh. 1)
In addition, and based upon Stipulations 6 and 8, counsel
for the Secretary characterized the size of Rosebud as "medium"
and the company's history of previous violations as "moderate"
(Tr. 16).
THE CONTINUOUS MINING AND HAULAGE SYSTEM AND
THE INVESTIGATION
An MBC is a component of a continuous mining and haulage
system that extracts and moves coal from a face to a main
conveyor belt line. A continuous miner is the component in the
system that is closest to the face. The continuous miner cuts
the coal. The coal is then conveyed to a bridge or to a series
of bridges and ultimately to a main conveyor belt. The coal is
dumped onto the belt and is carried out of the mine (Tr. 37).
An MBC is a bridge conveyor that carries the coal. However,
unlike a regular bridge conveyor, an MBC can articulate so as to
bend around corners. An MBC can be connected to the other bridge
conveyors and to the continuous miner by a sliding dolly (Tr.
38-39). Also, an MBC can be trammed (moved) forward and backward
(Tr. 38). The continuous miner and the MBC each have motors for
tramming. No other parts of the system have tramming motors
(Tr. 131). Because the continuous miner and the MBC can move
independently of one another, both require the presence of miners
at their controls (Id.). Therefore, when the system is
operating, one miner is at the controls of the continuous miner
and another is at the controls of the MBC.
At the Josephine No. 3 Mine, two deenergizing devices were
installed on the subject MBC, one deenergized the MBC and one
deenergized the continuous miner. Both devices were activated
by depressing a single panic bar on the MBC (Tr. 30, 32-34). In
addition, one deenergizing device was installed on the continuous
miner. The device on the miner also was activated by depressing
a single panic bar on the miner. When the bar on the miner was
depressed, only the continuous miner was deenergized.
David Sherry was employed by Rosebud as an underground
laborer. One of his duties was to operate the MBC. On July 21,
1999, he was at the controls of the MBC when it became necessary
for him to leave the operator's compartment in order to change
a cable to the continuous mining machine (Tr. 26-29). Prior to
leaving, Sherry depressed the panic bar on the MBC. The MBC
deenergized. Sherry believed the continuous miner also
deenergized (Tr. 30-31).
Sherry got out of the MBC, took a step or two, and knelt
down within an arms length of the MBC. Sherry testified that he
would not have left the MBC but for the fact that he believed the
continuous miner was deenergized (Tr. 30, see also, Tr. 91).
As Sherry knelt, the continuous miner, which, in fact, was
not deenergized, began to back up. The movement of the heavier
continuous miner pushed the MBC backwards and sideways toward the
rib. Sherry was caught between the MBC and the rib. He was
crushed, suffering severe, traumatic injuries to his trunk and
his abdomen (Tr. 29, 31). As a result, Sherry was out of work
for three and one half months (Tr. 32).
The accident occurred around 10:30 a.m. MSHA was notified
and MSHA Inspector Joseph O'Donnell was assigned to investigate
the accident. O'Donnell went to the mine that afternoon.
O'Donnell was accompanied by electrical inspector Bill
Collinsworth. Once at the mine, O'Donnell spoke both with
management personnel and with miners. The miners had been
withdrawn from the mine following the accident, so the interviews
took place on the surface (Tr. 53-54). After the interviews,
O'Donnell and Collinsworth went underground where they inspected
the continuous mining and haulage system (Tr. 54-55). They payed
special attention to the MBC and its panic bar.
O'Donnell described the panic bar as "a long lever" - about
four feet in length - "that the operator [of the MBC] can
contact anywhere . . . and deenergize the tramming motors of the
[MBC and the continuous miner]" (Tr. 57). The bar was designed
to activate two different "on and off" devices, one in the form
of a button and one in the form of a "flipper switch" (Tr. 57-
58). O'Donnell stated that "when the prong of the bar strikes
the button and the . . . switch . . . [the bar is] supposed to
deenergize the tramming motors of the system" (Tr. 58).
O'Donnell and Collinsworth depressed the MBC's panic bar to
determine if the "on and off" devices were working. When they
did this the MBC was deenergized, but the continuous miner was
not (Tr. 55-56). They applied more pressure to the bar, and the
continuous miner then was deenergized (Tr. 61).
The inspectors checked the pounds of force necessary to
apply to the bar to deenergize both pieces of equipment. The
inspectors used a gauge-type device that they had calibrated
according to its manufacturer's specifications shortly before
going underground (Tr. 81). O'Donnell described how the gauge
was used. "[Y]ou place it on the panic bar, force it in, when it
shuts off [the equipment], [you] read how many pounds of pressure
it took to deactivate the tramming motors of the unit" (Tr. 60).
The inspectors found that to deenergize the MBC they had to
apply eight pounds of force and move the bar no more than two
inches. However, to deenergize the continuous miner they had to
apply more than 20 pounds of force (Tr. 61-63).
The inspectors also checked the panic bar on the continuous
miner. They found that it operated properly (Tr. 82).
The inspectors further determined that although they could
not move the continuous miner by tramming the MBC, the opposite
was not true. The continuous miner was heavier and more powerful
than the MBC, and the movement of the continuous miner could
cause the MBC also to move (Tr. 61-63).
The inspectors credited Sherry's belief that when he
deenergized the MBC, he also deenergized the continuous miner.
O'Donnell explained that Sherry was an experienced MBC operator
and that he "had to believe that the tramming motors of the miner
were also deenergized or he would have never ex[ited the MBC]"
(Tr. 63).
Sherry told O'Donnell that after he depressed the panic
bar he looked inby and saw no lights on the continuous miner,
something that confirmed to him that he had deenergized the
continuous miner (Tr. 64). As it turned out, however, the
operator of the continuous miner was preparing to back out of
the working face and to move the continuous miner to another
area. Therefore, the operator shut off the continuous miner's
lights so that he would not be "blinded." He wanted to see the
areas surrounding and in back of the continuous miner and any
miners who might be in the areas (Tr. 64).
The continuous miner operator stated that when he looked in
back of the miner he saw lights that he believed to be the lights
of the MBC. Three other miners were working within five feet of
Sherry's location. O'Donnell speculated that the operator of the
continuous miner mistook the lights of the miners' cap lamps for
the lights of the MBC. This lead the continuous miner operator
to believe that the MBC was energized and that Sherry was in the
MBC operator's compartment (Tr. 65-66).
The operator of the continuous miner began to back up the
equipment. The movement of the miner "kicked the MBC against the
rib" (Tr. 75, see also, Tr. 75-78). O'Donnell testified that
had the panic bar on the MBC functioned as required, the
continuous miner would not have been able to move and the
accident would not have occurred (Tr. 67).
O'Donnell cited Rosebud for a violation of section 75.523-2.
He based the violation on the fact that more than 15 pounds of
pressure was required to deenergize the MBC (Tr. 67, see also,
Tr. 81). O'Donnell noted that the standard applied to electric
face equipment. He maintained that because the MBC and the
continuous miner were physically and electrically connected they
constituted one "single moving unit", and that the unit, which
was headed by the continuous miner, was "electric face equipment"
(Tr. 71). In O'Donnell's view, the continuous miner and the MBC
were but "different component[s] of the system" (Tr. 80). He
also noted that when the continuous miner was operated as a part
of the continuous mining and haulage system, the miner could not
act independently of the system (Tr. 80). In the inspector's
mind, the "electric face equipment" referenced in the standard
was "the entire mining system, the continuous haulage system,"
and the "equipment operator" referenced in the standard was both
the operator of the continuous miner and the operator of the MBC
(Tr. 94-95). O'Donnell put it, "there are two equipment
operators in this system" (Tr. 94).
O'Donnell found that the violation resulted in lost work
days and in restricted duty to Sherry. He further found that it
was S&S, and was caused by Rosebud's moderate negligence. (In
fact, Rosebud agreed that if there was a violation, it was
moderately negligent (Tr. 68, 69-70)). To abate the alleged
violation, Rosebud dismantled the switch that deenergized the
continuous miner, corrected a problem with the switch, lubricated
the switch, and put the MBC back into service (Tr. 71).
MSHA's INTERPRETATION OF SECTION 75.523-2
In addition to O'Donnell's testimony regarding his
investigation of the accident, the Secretary presented testimony
concerning MSHA's interpretation of the standard. MSHA's policy
was described by Robert Phillips, the coordinator of MSHA's
electrical program (Tr. 102-103). (Phillips also participated in
MSHA's investigation of the accident by going to the mine, by
observing the conditions that surrounded the accident, and by
meeting with management officials and with miners (Tr. 107-108)).
Phillips explained that the requirements for the
installation of deenergizing devices are contained in section
75.523-1 and the requirements for the performance of the devices
are contained in section 75.523-2. Like O'Donnell, Phillips
emphasized that the subject continuous miner and MBC were parts
of a unitary system. In Phillips view, this brought the system
within the mandate of section 75.523-2 (Tr. 112). As a result,
Phillips agreed with O'Donnell that Rosebud violated section
75.523-2.
Phillips identified a MSHA policy letter, dated July 12,
1989, which warned of the "hazardous condition [that] can occur
when machines are mechanically connected to each other, but
trammed independently and the emergency stop switch of the
attached machine fails to deenergize the physically larger more
powerful machine in the event of an emergency" (Gov. Exh. P-5).
Phillips explained that in 1987, a fatal accident occurred when a
MBC operator was killed. MSHA investigated the accident and
found that it involved a continuous mining and haulage system and
that the continuous miner in the system was sufficient in size,
weight, and power to move the smaller, less powerful MBC (Tr.
114-115). The MBC involved in the accident did not have a device
that could deenergize the continuous miner (Tr. 116). According
to Phillips, the 1989 policy letter was issued to warn operators
of the hazard (Tr. 114). The letter did not specifically state
that the failure to have a device on the MBC that could
deenergize a continuous miner constituted a violation of section
75.523 or of its subsections, rather it stated that if the
smaller MBC did not have a switch, the MBC had to be removed from
service because the MBC was in violation of section 75.1725 (see
Tr. 123-124). (Section 75.1725 requires in part that "machinery
or equipment in unsafe condition shall be removed from service
immediately.") The letter instructed operators that "[a] means
to eliminate the hazard is to mount an emergency stop switch on
the MBC to deenergize the continuous mining machine" (Exh. P-5).
The letter also stated that the "[f]ailure of the mine operator
to install an emergency stop switch on the attached machine
[i.e., the MBC] that will meet the requirements of . . . section
75.523-2, and simultaneously deenergize both . . . [the
continuous miner and the MBC] when activated will result in
enforcement action" (Gov. Exh. 5 at 2). The letter did not
identify which section of the regulations the Secretary would
cite when he or she undertook the "enforcement action". The
letter expired on March 31, 1991 (Gov. Exh. P-5).
MSHA's next policy statement on the problem took effect
immediately after the expiration of the program policy letter
(i.e., on April 1, 1991). Phillips identified this statement
as a part of MSHA's Program Policy Manual (PPM) concerning the
implementation of 30 C.F.R. � 75.1725 (Gov. Exh. P-6). The part
identified by Phillips remains in effect and states:
When machines are mechanically connected
to each other but trammed independently, and
are sufficiently different in size, weight,
and power an emergency stop switch shall be
installed on the smaller machine to
deenergize the larger machine. Without an
emergency stop switch the equipment is not
considered to be in a safe operating
condition and must be removed from service
(Gov. Exh. P-6).
According to Phillips, this part of the PPM pertains to
those situations where a panic bar is not installed on a MBC
(Tr. 125). If the MBC that injured Sherry lacked a device to
deenergize the continuous miner it would have been cited under
section 75.1725 rather than under section 75.523-2 (Tr. 125).
However, because the MBC had a stop switch for the continuous
miner and the switch did not perform as required by the
performance standard for such a switch, the condition was cited
under section 75.523-2(c) (Tr. 117-118).
Finally, although Phillips did not testify regarding the
matter, in 1996 MSHA issued another policy statement on the
hazards attending the operation of continuous mining and haulage
systems (Public Information Bulletin No. P96-18, Operation of
Continuous Haulage Systems (October 18, 1996)). As I will
explain, the statement has a significant bearing on this case,
and I have judicially noticed its contents.
THE VIOLATION
Citation No. 3698571 describes the alleged violation of
section 75.523-2(c) as follows:
More than 15 pounds of force was needed
along the actuating bar or lever of the . . .
MBC . . . to deenergize the . . . [continu-
ous] miner from the MBC operator['s]
compartment. A . . . gauge . . . was used to
measure the force needed to deenergize the
miner. The equipment was involved in a serious
accident that occurred at the mine. The measured
force exceeded 20 pounds of force (Gov. Exh.
P-2).
The principal issue is whether section 75.523-2 applied to
the MBC? If so, there is no question but that a performance
criterion of the standard was violated. Evidence offered by the
Secretary in this regard was clear and went essentially
unrebutted. Sherry testified that on July 21, he activated the
bar prior to leaving the MBC (Tr. 30). He further testified that
although the MBC was deenergized as a result, the continuous
miner was not (Tr. 32-33). The same day, and within a few hours
of the accident, MSHA personnel inspected the MBC. O'Donnell
described how he and Collinsworth tested the effectiveness of the
bar with a recently calibrated, gauge-type device and found that
more than 20 pounds of force was needed for the panic bar on the
MBC to deenergize the continuous miner (Tr. 56, 60-61, 67, 81).
There is nothing in the record to suggest that the panic bar
functioned differently during the MSHA investigation than it did
when Sherry depressed it prior to the investigation. Nor is
there anything to suggest the gauge was improperly calibrated and
unable to obtain an accurate measurement. Therefore, I find that
when Sherry activated the bar, it did not deenergize the tramming
motors on the continuous miner unless more than 20 pounds of
pressure was applied and that the device failed to meet a
performance requirement of section 75.523-2(c).
This leaves the question of the applicability of the
standard. It is clear that the situation in which Sherry found
himself was hazardous. As Sherry recognized, he was lucky he was
not killed (Tr. 32). It is equally clear that MSHA has been
cognizant of the hazard. MSHA publicly warned operators about
such a hazard in its July 1989 policy letter (Gov. Exh. 5), and
when the 1989 warning expired, MSHA renewed the warning in its
PPM by stating that "an emergency stop switch shall be installed
on the smaller" of mechanically connected machines that could be
trammed independently (Gov. Exh. P-6). Further, and as I just
stated, I take judicial notice that in 1996 it again alerted the
mining community of the possible hazard (Public Information
Bulletin No. P96-18 at 2), and in so doing described four fatal
accidents, two of which appear to have been similar to the
accident involving Sherry (Id.).
Given its clear recognition of the hazard, one would think
that MSHA would be equally clear about what it required operators
to do to avoid the danger and about the authority for the
requirement. Unfortunately, such is not the case. Although not
explicitly stated, the 1989 program policy letter could have been
read to imply that compliance with section 75.523-2 was required
("A means to eliminate [the] hazard is to mount an emergency stop
switch on the MBC to deenergize the continuous min[er] . . . [and
f]ailure to install an emergency stop switch . . . that will meet
the requirements of . . . [section] 75.523-2 . . . will result in
enforcement action" (Gov. Exh. P-5 at 1-2)). However, MSHA let
the letter expire and the agency has not since made any explicit,
let alone implied, pronouncements on the applicability of the
subsection.
The PPM, which took effect upon expiration of the letter,
states "[w]ithout an emergency stop switch the equipment is not
considered to be in safe operating condition and must be removed
from service" (Gov. Exh. P-6). The statement is made with
respect to the agency's interpretation of section 75.1725. The
PPM's discussion of section 75.523-2 makes no reference to the
requirements of the section being applicable to MBC's when they
are used as component parts of continuous mining and haulage
system.
The fact is that nowhere in MSHA's extant public statements
is notice given of MSHA's intent to require through section
75.523 and its subparts that MBC's which are mechanically
connected to self-propelled electric face equipment, i.e., to
continuous miners, be equipped with panic bars to deenergize the
continuous miners. On the contrary, although the agency's most
recently published pronouncement on the subject advises that
"MBC's should be equipped with panic bars or switches" and that
"[t]he panic bar and/or emergency stop switch on the MBC should
. . . be able to de-energize the continuous mining machine"
(Public Information Bulletin No. P96-18 at 2), it describes the
statement as a recommendation ("MSHA recommends . . . the
following" (Id.)) rather than as a requirement. Moreover, it
indicates the recommendation is made under the authority of
section 75.1725(a) and the Act. It does not once reference
section 75.523 or the section's subparts (Id. 3).
Given this lack of clarity and guidance by the agency,
should Rosebud nonetheless have realized the MBC came within
the requirements of section 75.523-2? I think not. The standard
does not specifically refer to continuous mining and haulage
systems and/or MBC's. Lacking a specific reference, the
question, as with so many other standards, is whether a
reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized
that the requirements of the standard applied to the MBC (Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990)).
The standard states that it applies to "self-propelled
electric face equipment", and the Secretary argues strenuously
that the MBC and the continuous miner together constituted a
single unit of "electric face equipment". However, while it is
obvious the continuous miner was electric face equipment, in that
it operated in the immediate vicinity of the face, it is not
clear at all that the MBC, which was removed by distance from the
face, also qualified as such equipment. Indeed, the Secretary's
theory, if carried to its logical conclusion, would make every
MBC in a continuous haulage system (and there could be several)
"electric face equipment", no matter how far removed from the
face they might be. The very use of the term "face" in the
standard, gives the standard a specific locational reference, one
that the Secretary's interpretation would blur if not altogether
eliminate (see Tr. 94 (O'Donnell's description of electric face
equipment as "the entire mining system")).
Moreover, in its most recent public pronouncement on the
need for deenergizing devices on MBC's, MSHA appears to take a
position counter to that advocated in this case. The Program
Information Bulletin treats MBC's and chain bridge conveyers as
separate from the continuous miner that cuts the coal. It
states, "Continuous haulage systems, known as mobile bridge
conveyors, commonly consist of alternating series of piggyback
mobile bridge carriers (MBC) and chain bridge conveyers" (Program
Information Bulletin No. P96-18 at 1). There is no mention of
continuous miners as part of the system. Rather, the agency
strongly implies that it views the system and the continuous
miner are separate entities in that the agency recommends "[a]ny
panic bar and/or emergency stop switch in any MBC should de-
energize the entire system" and it recommends that "[t]he panic
bar and/or emergency stop switch on the MBC should also be able
to de-energize the continuous min[er]" (Id., 1, 2).
Given the wording of the standard and the agency's lack of
clear pronouncements, I do not believe that a reasonable operator
familiar with the industry and the protective purposes of the
standard should have known the cited MBC was required to have a
panic bar that deenergized the continuous miner in accordance
with the performance requirements of section 75.523-2.
Accordingly, I conclude Rosebud did not violate the standard.
While it is readily apparent that MSHA has struggled with
the issue of how best to confront the undoubted dangers posed by
the operation of MBCs as parts of continuous mining and haulage
systems, shoehorning situations like the one at issue into
section 75.523-2 without first clearly advising operators of
MSHA's regulatory interpretation does not meet the requirements
of the law. The agency may want to rethink the issue and either
make a straightforward statement of its policy or engage in rule
making.
ORDER
For the foregoing reasons, Citation No. 3698571 is VACATED
and this proceeding is DISMISSED.
David F. Barbour
Chief Administrative Law Judge
Distribution: (Certified Mail)
John Strawn, Esq., Office of the Solicitor, U. S. Department of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
Joseph A. Yuhas, Esq., P. O. Box 1025, Northern Cambria, PA 15714
/gl
I further find that the MBC and the continuous miner together
constituted a single unit of electric face equipment that came
within the standard and, therefore, that the failure of the panic
bar on the MBC to perform as required by section 75.523-2 and to
deenergize the continuous miner violated the standard. First,
the components of the continuous haulage systems were physically
connected by metal couplings and by electrical conductors. While
it is true that two of the parts, the continuous miner and the
MBC could be disconnected and could operate on their own, on July
21 they were functioning as a physically connected unit of
electric face equipment. (While Rosebud objects that the
Secretary has presented no evidence the MBC is "self propelled
electric face equipment" within the meaning of the standard
(Rosebud Br. 5), the continuous miner is such equipment, and its
presence at the face makes the entire unit such equipment for
purposes of the standard.) Treating the components of what is
essentially a unitary piece of equipment separately makes not
sense, especially when doing so defeats the purpose of the
standard.
That purpose is to prevent miners from being endangered by
the unexpected movement and/or electrification of electric face
equipment. The position advocated by Rosebud - that the standard
does not require the deenergizing of the continuous miner from
the MBC - does not effectuate that purpose since it leaves open
the possibility a continuous miner could suddenly and
unexpectedly push the MBC into an unsuspecting MBC operator or
other miner . . . exactly what happened to Sherry. While it is
true that the standard does not specify the types of electric
face equipment it covers but rather regulates through use of the
general term "electric face equipment", I conclude that Since the
lapse of Public Policy Letter No. P89-V-13 (Gov. Exh. 5), the
Secretary has not published another explicit notice of its intent
to apply section 75.523 to MBC's mechanically connected to self
propelled electric face equipment. In fact, MSHA's most recently
published public pronouncement - of which I take judicial notice
- states that, "The panic bar and/or emergency stop switch on the
MBC should . . . be able to de-energize the continuous mining
machine" (Public Information Bulletin No. P96-18, Operation of
Continuous Haulage Systems (October 18, 1996) 2). It describes
the statement as a recommendation rather than as a requirement of
the subject standard and indicates that the recommendation is
made in part under the authority of section 75.1725(a).
Indeed, that fact that Rosebud installed such a device on the MBC
makes reasonable an inference that Rosebud interpreted the
standard in this way. (If in fact Rosebud had another reason for
installing the device, it did not explain why.)
Finding that a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have interpreted the standard as advocated by MSHA does not mean
that the agency's position on the issue has been a model of
clarity. Since the lapse of Public Policy Letter No. P89-V-13
(Gov. Exh. 5), the Secretary has not published another explicit
notice of its intent to apply section 75.523 to MBC's
mechanically connected to self propelled electric face equipment.
In fact, MSHA's most recently published public pronouncement - of
which I take judicial notice - states that, "The panic bar and/or
emergency stop switch on the MBC should . . . be able to de-
energize the continuous mining machine" (Public Information
Bulletin No. P96-18, Operation of Continuous Haulage Systems
(October 18, 1996) 2). It describes the statement as a
recommendation rather than as a requirement of the subject
standard and indicates that the recommendation is made in part
under the authority of section 75.1725(a). Indeed, I recognize
that an argument can be made that when a panic bar on an MBC does
not de-energize the continuous miner and the MBC is not withdrawn
from service immediately, a violation of section 75.1725, not
section 75.523-2 exists (see Rosebud Br. 11), but the essence of
a violation of section 75.1725 is an unsafe condition and a
failure to remove from service immediately, not the failure to
comply with the specific performance requirements of section
75.523-2.
S&S AND GRAVITY
A violation is S&S if based on the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature (Arch of Kentucky, 20
FMSHRC 1321, 1329 (December 1998); Cyprus Emerald Resources,
Inc., 20 FMSHRC 790, 816 (August 1998); Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co.,
6 FMSHRC 1 (January 1984) the Commission held that to establish a
S&S violation of a mandatory standard the Secretary must prove:
(1) the existence of an underlying violation; (2) a discrete
safety hazard - that is a measure of danger to safety contributed
to by the violation; (3) a reasonable likelihood the hazard
contributed to will result in an injury; and (4) a reasonable
likelihood the injury in question will be of a reasonably serious
nature.
In considering the third element, the likelihood of the
injury must be evaluated in terms of continued normal mining
operations (U.S. Steel Mining Co., Inc. 6 FMSHRC 1573, 1574 (July
1984); see also Southern Ohio Coal Co. 13 FMSHRC 912, 916-917
(June 1991) and Halfway, Inc., 8 FMSHRC 8, 12 (January 1986)).
The Secretary has met her burden of proof with regard to all
of the elements. There was a violation of the cited standard.
The failure in the performance of the panic bar meant that there
was a hazard that a miner, especially the operator of the MBC,
would be subject to being hit by the unexpected movement of the
MBC when the continuous miner backed away from the face.
Moreover, because the continuous miner turned out its lights when
it was tramming away from the face and because miners with cap
lamps at times worked in the vicinity of the MBC, the operator of
the MBC who activated the panic bar reasonably could believe the
lack of lights inby meant that the continuous miner was
deenergized and that the operator of the continuous miner who
looked outby and saw lights reasonably could believe the MBC was
energized and the operator of the MBC was in MBC's operator's
compartment. The resulting sudden movement of the MBC
reasonably could have been expected to lead to injury to the MBC
operator or to other miners in the vicinity of the MBC. In other
words, the there was a reasonably likelihood that the violation
would result in exactly what happened.
In addition to being S&S the violation was serious. The
hazard confronting the MBC operator and those others in the
vicinity of the MBC were those that could result from being
struck by the MBC. Sherry suffered sever crushing injuries, and
he was fortunate that he was not killed.
NEGLIGENCE
Rosebud did not exhibit the care required. It failed to
keep the switch mechanism for the continuous miner in a condition
that allowed the mechanism to perform within the requirements of
the standard. Testimony offered by the Secretary unequivocally
established that the mine had experienced a fatal accident in
1987 when an MBC, which did not have a device to deenergize the
continuous miner, was moved by the continuous miner and the MBC
stuck a miner (Tr. 123-124). With this event in its past, the
company should have been mindful of the hazard created when the
continuous miner could not be deenergized from the MBC and should
have ensured the panic bar performed as required. The company's
failure to meet that level of care demonstrates its negligence.
OTHER CIVIL PENALTY CRITERIA
The parties agreed that the company has a moderate history
of pervious violations and that Rosebud is of a medium size (Tr.
16). They further stipulated that the assessment of a civil
penalty will not affect Rosebud's ability to continue in business
(Stip. 5) and that the company exhibited good faith in attempting
rapidly to abate the violation (Stip. 7).
CIVIL PENALTY DETERMINATION
Although the serious nature of the violation and the
negligence of Rosebud in allowing the violation to exist would
warrant the assessment of a penalty in excess of that proposed by
the Secretary, the other penalty criteria act somewhat to
moderate that amount. Therefore, I conclude that a civil penalty
of $250 is appropriate.
ORDER
Within 30 days of the date of this decision Rosebud IS
ORDERED to pay a civil penalty of $250, and upon payment of the
penalty this proceeding is DISMISSED.
THE PARTIES' POSITIONS
The case involves a mobile bridge carrier that was attached
to a continuous mining machine (continuous miner). Both units
were part of a continuous mining and haulage system that
extracted and moved coal from the face to the main conveyor
belt.. Two deenergizing devices were installed on the MBC, one
deenergized the MBC and one deenergized the continuous miner.
Both devices were activated by depressing the panic bar on the
MBC. The Secretary asserts that more than 15 pounds of pressure
had to be applied to the panic bar the button used to deenergize
the continuous miner required more than 15 pounds of force upon
contact to cause the miner to deenergize. The Secretary
maintains that because the MBC and the continuous miner were
connected both physically and electrically, they were for all
effects and purposes a single unit and that the MBC therefore
constituted self-propelled electric face equipment that had to
meet the requirements of section 75.523-2 (Tr. 19-20). As
counsel for the Secretary stated, "For the regulation to make any
sense it must be read to require a . . . [deenergizing device] in
the MBC compartment which would de-energize both the MBC and the
connected [continuous] miner (Tr. 20-21).
On the other hand, Rosebud argues the standard only requires
a deenergizing device on the MBC, that the MBC is not required to
have a device to deenergize the continuous miner (Tr. 23).
Asked whether he saw any lights on the continuous miner to
indicate the continuous miner had not deenergized, Sherry replied
that he "really didn't pay attention" (Tr. 31). Sherry thought
that the hazard of leaving the MBC if the continuous miner wasn't
deenergized was being crushed between the continuous miner and
the MBC; or, as Sherry stated, was "[w]hat happened to me" (Tr.
31).
Sherry explained that there are two buttons that control
electrical switches on the MBC, and that the buttons are engaged
and the switches are opened by depressing a bar (the panic bar)
(Tr. 32-34). One of the buttons deenergized the MBC and one of
the buttons deenergized the continuous mining machine (Tr. 30).
When Sherry pushed the bar, the button for the MBC was engaged
and the MBC was deenergized. However, the button for the
continuous miner was not sufficiently depressed by the bar and
power continued to flow to the continuous miner (Tr. 32-33).
When he got out of the MBC, Sherry believed the continuous miner
had been deenergized (Tr. 31).
If they had been able to move the continuous miner they would
have required the continuous miner to have safety device to
deenergize the MBC in order to protect the operator of the
continuous miner from the unexpected movement of the continuous
miner caused by the movement of the MBC (Tr. 61-62, see also Tr.
96).
FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006-3867
John Strawn, Esq.
Office of the Solicitor,
U. S. Department of Labor,
3535 Market Street, Room 14480
Philadelphia, PA 19104
FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION
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WASHINGTON, D.C. 20006-3867
Joseph A. Yuhas, Esq.
P. O. Box 1025
Northern Cambria, PA 15714