<DOC>
[DOCID: f:wv200055.wais]
ARCH OF WEST VIRGINIA
WEVA 2000-55
April 16, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
April 16, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-55
Petitioner : A. C. No. 46-06751-03611
and :
: Ruffner Mine
UNITED MINE WORKERS OF :
AMERICA (UMWA), :
Intervenor :
v. :
:
ARCH OF WEST VIRGINIA, :
Respondent :
DECISION
Appearances: James F. Bowman, Conference and Litigation
Representative, Mine Safety and Health
Administration, U.S. Department of Labor,
Mt. Hope, West Virginia, for Petitioner;
Robert Horton, United Mine Workers of America,
Miner's Representative, Whitman, West Virginia,
for Intervenor;
Anne Wathen O'Donnell, Esq., Arch Coal, Inc.,
St. Louis, Missouri, for Respondent.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of Civil
Penalty brought by the Secretary of Labor, acting through her
Mine Safety and Health Administration (MSHA), against Arch of
West Virginia, pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 815. The petition alleges
three violations of the Secretary's mandatory health and safety
standards and seeks a penalty of $585.00. A hearing was held in
Charleston, West Virginia. For the reasons set forth below, I
affirm one citation, vacate the other two and assess a penalty of
$55.00.
Settled Citation
At the beginning of the hearing, the parties advised that
they had reached a settlement agreement with regard to Citation
No. 4624967. The Secretary's representative stated that although
the citation had been modified to non-S&S on December 20, 1999,
that fact had not been considered by the assessment office when
assessing a penalty of $475.00. (Tr. 13-14.) The parties agreed
to settle the citation for $55.00. (Tr. 14.) The motion to
approve the settlement was granted, (Id.), and the penalty will
be ordered at the conclusion of this decision. The two remaining
citations were contested at the hearing.
Background
The Ruffner Mine consists of a surface coal mine,
underground coal mine and a preparation plant operated by Arch of
West Virginia in Logan County, West Virginia. Sometime in the
second half of 1998, John Metzger, the maintenance manager at the
mine, concluded that damage to the company's fuel and lube trucks
was being caused by their traveling at excessive speeds. Some of
this damage resulted in citations being issued for violations
involving the trucks during MSHA inspections. He decided to slow
down the trucks in attempt to alleviate these problems.
Fuel truck No. 61462 (truck No.62) was purchased from
Robinson Services. It was a rebuilt Mack truck with a Road
Ranger transmission. The transmission has five low range gears
and five high range gears. The gear shift lever has a button on
it which is used to select the low or high range gears. Metzger
requested that the air supply to the air valve enabling the high
range gears be disconnected so that the high range gears could
not be engaged. A short time later, fuel truck No. 61461 (truck
No. 61) was sent to Robinson Services so that its Mack
transmission could be replaced with a new Road Ranger
transmission. Access to the high range gears was blocked in the
same manner as truck No. 62. Operating with only the low range
gears, the two trucks could travel at a top speed of between 13
and 20 miles per hour.
The fuel trucks are used to carry fuel to all areas of the
three mile long surface mine. This requires them to travel over
twenty-five to thirty miles of haulage roads, which they share
with other mining vehicles.
Almost immediately, the fuel truck drivers began complaining
about the slow speed of the trucks and noting in their pre-shift
examination reports that the high range gears were disabled.
Roger Horton, a fuel truck driver and miners' representative,
discussed the matter with both an MSHA inspector and a West
Virginia mine inspector. When he did not receive any
satisfaction from them, he filed a grievance with the company.
After the company declined to act on the grievance, Horton and
two United Mine Workers of America (UMWA) international
representatives obtained a meeting with the supervisor of the
MSHA District Office in Logan and Inspector Sherman Slaughter
to complain about the situation.
Shortly after the meeting, Inspector Slaughter went to the
mine to investigate the complaint. He met with mine management
and discussed the situation with the truck drivers. He then
spent about three hours riding in truck No. 62. After his
investigation, Inspector Slaughter offered the company an
opportunity to "fix" the trucks by restoring the high range
gears. When they declined to do so, he issued Citation Nos.
7185723 and 7185724 alleging violations of section 77.1606(c),
30 C.F.R. � 77.1606(c), because:
The high range gears of the transmission
of the Mack fuel truck . . . being used at
the mine was [sic] disabled so as to limit
the maximum speed the truck could travel at
the governed engine Rpm [sic] to
approximately 13 mph. This was a defect
affecting safety in that the slow speed of
the truck impeded other traffic using the
same roadways at the mine causing unsafe
passing situations to develop, prevented the
driver from moving out of the way of larger
trucks on some steep grades where the ability
of the larger truck to slow to the speed of
the slower fuel truck was compromised, and
would not permit the driver to maintain full
control on slippery road surfaces when the
truck reached maximum Rpm [sic] and began to
break into a slide. Workers at the mine
indicated the truck was manufactured to
travel at speeds up to 45 mph.[1]
(Jt. Exs. 1 and 2.) Section 77.1606(c) provides that:
"Equipment defects affecting safety shall be corrected before
the equipment is used."
Findings of Fact and Conclusions of Law
To prevail in this matter, the Secretary must prove three
things: (1) that disconnecting the air supply to the air valve
which enabled the high range gears constituted an "equipment
defect;" (2) that this defect was one "affecting safety;" and
(3) that the operator failed to correct the defect before the
equipment was used. Allied Chemical Corp., 6 FMSHRC 1854, 1857
(August 1984).[2] I find that the Secretary has not proved
either that lack of access to the high range gears was a defect
or that the lack of access affected safety.
Was there a defect in the transmission?
The Commission has held that:
In both ordinary and mining industry usage, a
"defect" is a fault, a deficiency, or a
condition impairing the usefulness of an
object or
part. Webster's Third New International
Dictionary (Unabridged) 591 (1971); U.S.
Department of Interior, Bureau of Mines, A
Dictionary of Mining, Mineral, and Related
Terms 307 (1968).
Id. In this case, the inability to access the high range gears
did not result from a fault or a deficiency in the equipment and
it did not impair the usefulness of the transmission or the fuel
trucks.
Both parties agree that the high range gears were not
damaged or removed from the transmission; they just could not be
engaged because the air valve was disconnected. However, the
Secretary argues that the fact that the high range gears did not
function was a defect in the equipment. In fact, the high range
gears could function if the air valve were connected, so it was
not that they did not function, rather that they could not be
used. Since there was nothing "wrong" with the high range gears,
there was not a fault in the gears. Since the gears were
present, there was no deficiency in the them. Finally, since
the low range gears allowed the trucks to move and to travel any
where they needed to go on the mine property, the lack of high
range gears did not impair the transmissions' usefulness.
Clearly, blocking the high range gears, by itself, does not
create a defect in the transmission or the vehicle to which it is
attached. In this connection, the company introduced into
evidence several petitions for modification which were granted by
MSHA. (Resp. Ex. 1.) All of them had to do with the operation
of graders in underground coal mines and sought modifications of
section 75.1909(b)(6), 30 C.F.R. � 75.1909(b)(6), of the rules,
which have to do with the service brakes on the graders. In
permitting the modification requested, most of the decisions
stated that: "The maximum speed on the . . . grader must be
limited to ten miles per hour or less by physically blocking
higher gear ratios." (Id.) (emphasis added.)
While it can be argued that there is an obvious difference
between fuel trucks operating at a surface mine and graders
operating underground, the fact remains that if MSHA thought that
blocking the high range gear ratios created a defect in the
equipment, it would not have required it to be done as a
condition of granting the petitions for modification. That MSHA
does not, in fact, consider the blocking of high range gears to
be a defect is further substantiated by the testimony of
Inspector Slaughter, who candidly admitted that he is one of the
few people in MSHA who believed that there were violations in
this case. (Tr. 370.)[3]
Consequently, I conclude that the inability to use the high
range gears was not a defect.
Did the slow speed of the trucks affect safety?
The Secretary argues that: "The defective transmissions
affected the safety of all haulage equipment operators using the
haul roads." (Sec. Br. at 10.) The Secretary asserts that the
slow speed of the fuel trucks impedes traffic, causes unsafe
passing situations, limits the maneuverability of the trucks,
compromises the safety of larger rock trucks and makes the
drivers unable to control the fuel trucks on slippery roads.
However, as the Respondent has correctly pointed out, none of
these hazards is the result of the alleged defect in the
transmission.
First, it should be noted that the fuel trucks are not the
only vehicles traveling on the mines' roads which are slow.
Front-end loaders, bull dozers and drills all travel as slowly
as, or slower than, the fuel trucks.[4] In addition, Mr. Metzger
testified that the Dresser 685 and 830 haulage trucks have a
maximum speed of 16 miles per hour, when loaded. Thus, if slow
speed is a safety hazard, then one would expect citations for
these other vehicles. The fact that there are no citations, and
that no reasonable person, including the Secretary, argues that
there should be, reveals the weakness in the Secretary's case.
The Petitioner avers that the fuel trucks impeded traffic
because they did not have the ability to travel at a prudent
speed, consistent with the other traffic using the road. This
proposition is based on rule 77.1607(c), 30 C.F.R. � 77.1607(c),
which states that: "Equipment operating speeds shall be prudent
and consistent with conditions of roadway, grades, clearance,
visibility, traffic, and the type of equipment used." The
Secretary's interpretation turns the rule on its head, however.
The rule does not mean that if the speed limit is 35 MPH, as it
is at the mine, that all vehicles have to travel 35 MPH.
Instead, it means that even if the speed limit is 35 MPH, vehicle
operators have to take the above factors, which includes slower
vehicles, into consideration and may have to drive at a speed
lower than 35 MPH.
Additional alleged hazards are that the fuel trucks create
unsafe passing situations and contribute to "tailgating." Again,
this argument focuses on the wrong party. Rule 77.1607(a),
30 C.F.R. � 77.1607(a), and common sense, require that:
"Vehicles shall follow at a safe distance; passing shall be
limited to areas of adequate clearance and visibility."
Obviously, it is the overtaking vehicle which has to insure that
it is safe to pass, not the fuel truck. Unsafe passing
situations are created by a driver not complying with rules
77.1607(a) and (c), not the fact that the fuel trucks can only
use the low range gears. Similarly, "tailgating" is the fault of
the driver of the vehicle not following at a safe distance, not
the driver of the vehicle being followed.
The compromised safety of the haulage trucks is another
claimed hazard. This is based on the premise that a rock truck
driver selects a speed when he begins descending a grade and if
he comes around a "blind curve" and sees a fuel truck in front of
him he will not be able to stop in time. (Sec. Br. at 15-16.)
Once again, this assertion blames the wrong participant. All the
haulage truck driver need do is select a speed which permits him
to stop if he is surprised rounding a blind curve. This would
seem particularly prudent in view of the fact that what he may be
confronted with on a blind curve, in addition to a slower truck
preceding him, is a faster vehicle coming toward him.
Finally, the Secretary maintains that the fuel truck drivers
will not be able to pull out of a skid when going down steep
grades. The theory behind this contention is that the fuel
trucks descend the grade at their top speed and if they start
skidding, they cannot speed up to get out of the skid. While
there was evidence from the Secretary's witnesses that speeding
up is a method for correcting a skid, there was also evidence
from the Respondent that the way to correct a skid is to take
one's foot off of the brake and to steer in the direction of the
skid. None of the witnesses were experts in controlling a
skidding vehicle. However, I find the Respondent's witnesses
more persuasive.[5] Moreover, even if speeding up is an
appropriate way to correct a skid, all the fuel truck drivers
have to do is not go down the hill at top speed.
In sum, all of the hazards alluded to by the Secretary are
either within the control of someone other than the fuel truck
driver, or, in connection with skidding, are within the control
of the fuel truck driver. All of the hazards, including the last
one, can be avoided by compliance with rules 77.1607(a) and (c).
In conclusion, the inability to use the high range gears
does not make the transmission or the truck defective. Slow
speed is not a defect. And neither the transmissions nor the
slow speeds adversely affect safety. Accordingly, I conclude
that the Respondent did not violate section 77.1606(c) by
blocking access to the top five gears on the fuel trucks and will
vacate the citations.
Civil Penalty Assessment
The only penalty to be assessed is for Citation No. 4624967,
which the parties settled. In connection with that citation, I
have considered the representations and documentation submitted
and conclude that the settlement is appropriate under the
criteria set forth in section 110(i) of the Act, 30 U.S.C. �
820(i).
Order
Accordingly, it is ORDERED that Citation Nos. 7185723 and
7185724 are VACATED, and that Citation No. 4624967 is AFFIRMED.
It is FURTHER ORDERED that Arch of West Virginia PAY a civil
penalty of $55.00 within 30 days of the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
James F. Bowman, Conference and Litigation Representative, U.S.
Department of Labor, MSHA, 100 Bluestone Road, Mt. Hope, WV
25880
Roger Horton, UMWA Miner's Representative, P.O. Box 158, Whitman,
WV 25652
Anne Wathen O'Donnell, Esq., Arch Coal, Inc., CityPlace One,
Suite 300, St. Louis, MO 63141
/fb
**FOOTNOTES**
[1]: The two citations are identical except that one is for
truck No. 61 and the other is for truck No. 62. The violations
were alleged to be non-S&S.
[2]: In the Allied Chemical case, the Commission was
construing 30 C.F.R. � 57.9-2 which was worded identically to
section 77.1606(c).
[3]: The transcript of the hearing contains numerous errors,
many of which were noted in a Motion to Correct Transcript filed
by the Respondent. One error which was not included in the
motion, was Inspector Slaughter's statement that he was one of
the few people in MSHA who believed the blocking of the high
range gears was a violation. The transcript actually states:
"Im [sic] one of the few people to believe MSHA by the way."
However, it is clear from the follow-up question, and from my
recollection, that what he really said was: "I'm one of the few
people in MSHA who believe it is a violation, by the way." Most,
if not all, of the mistakes noted by the Respondent are well
taken, however, a correction will be made, as here, only if the
statement is used in this decision.
[4]: The drills actually travel so slowly, less than 2 MPH,
that special precautions are taken when they are moved.
[5]: Perhaps this is because the method Messrs. Metzger and
Dale Lucha, Manager of Safety and Labor Relations at the mine,
detailed for recovering from a skid is the same method that is
taught in driver training.