Pittsburg & Midway Coal Mining Co.

Plain-English summary

Pittsburg & Midway Coal Mining used drill power to remove an adapter, and a wrench flew off and struck a miner who later died. The parties agreed that the evidence did not support the inspector's findings of high negligence and unwarrantable failure because the procedure had been used for years and had been demonstrated by the drill manufacturer. Judge August F. Cetti approved modifying the citation to moderate negligence under section 104(a) and reducing the penalty from $35,000 to $10,000. The case was to be dismissed after payment.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.404(c)
• Outcome: The settlement was approved, the citation was modified to moderate negligence under section 104(a), and the penalty was reduced to $10,000.
• Key point: Settlement approval may modify negligence findings and penalty amounts when the record supports the agreed resolution.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

                           July 29, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-63
Petitioner : A.C. No. 29-00096-03570
:
v. : McKinley Mine
:
PITTSBURG & MIDWAY COAL :
MINING CO., :
Respondent :

               DECISION APPROVING SETTLEMENT

Before: Judge Cetti

 This case is before me upon a petition for assessment of

civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner filed a motion to
approve a settlement agreement and to dismiss this case. A re-
duction in the penalty from $35,000.00 to $10,000.00 is proposed.

 Citation No. 4060756 was issued for a significant and

substantial violation of 30 C.F.R. ' 77.404(c), which requires
that repairs and maintenance not be performed on machinery until
the power is off and the machinery is blocked against motion,
except where machinery motion is necessary to make adjustments.
The inspector assessed the negligence as "high," the probability
of an occurrence of "occurred" and the gravity of injury as
"fatal." A penalty of $35,000.00 was specially assessed for this
violation.

 The inspector's site inspection indicated that the Respon-

dent had attempted to remove an adapter from a chuck on the
Schroeder Brothers drill in the No. 2 pit using the power of the
drill. A wrench that was affixed to the adapter flew off once
machine power was engaged and struck a miner in the head. The
miner later died. The inspector had predicated the unwarrantable
failure on the fact that miners would step back whenever the pro-
cedure for removal of a drill adapter was performed using machine
power and supervisory personnel knew that the miners would re-
treat to safe positions at such times. The inspector concluded
that because the mine operator continued to use the procedure,
the operator was indifferent to the safety of the miners.

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 The parties advise that investigation into this 104(d)(1)

citation revealed that the evidence does not support the inspec-
tor's determination of "high negligence" or "unwarrantable
failure." Interview statements from the miners established that
the procedure had been used for at least two years before the
fatality. During that time, a wrench had never been thrown but
rather would simply rotate against the drill mast and fall to the
ground. None of the mine mechanics who had used the procedure
had thought the procedure unsafe before the fatality.

 Other evidence revealed that a representative of the drill

manufacturer had shown the operator the procedure as an efficient
way to unscrew the adapter and that Schroeder Brothers mechanics
also had used that same procedure when they were at the mine per-
forming maintenance and repairs. The drill's service manual was
silent about how to remove the adapters, leaving the impression
that the demonstration by the manufacturer's representative was
as safe as any other means of removing the adapters.

 The parties, after further investigation, agree that rather

than establishing plain indifference or a reckless disregard of
miner safety and the regulatory requirements, the evidence shows
the operator's actions not to be in conformance with safe and
prudent operating practices. The operator's actions were neither
willful nor unwarrantable. More accurately, the operator acted
with moderate negligence by not employing an alternative, safer
method of accomplishing the task.

 Under the proffered settlement, the citation is modified

from a "high negligence" 104(d)(1) violation to a "moderate
negligence" 104(a) violation and the penalty is reduced from
$35,000.00 to $10,000.00.

 I have considered the representations and documentation sub-

mitted in this case and I conclude that the proffered settlement
is appropriate under the criteria set forth in section 110(i) of
the Act.

 WHEREFORE, the motion for approval of settlement is GRANTED,

and it is ORDERED that Citation No. 4060756 be modified as agreed
and indicated above and that the Respondent, Pittsburg and Midway
Coal Mining Company, PAY a civil penalty of $10,000.00 to the
Secretary of Labor within 30 days of the date of this decision
and order. Upon receipt of payment, this case is dismissed.

 The hearing previously set for July 30, 1996, in Albuquer-

que, New Mexico, is canceled.

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August F. Cetti
Administrative Law Judge

3

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Distribution:

Connie M. Ackermann, Esq., Office of the Solicitor, U.S. Depart-
ment of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202

John W. Paul, Esq., PITTSBURG & MIDWAY COAL MINING CO., 6400
South Fiddler's Green Circle, Englewood, CO 80111-4991

/sh

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CONNIE M ACKERMANN ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
525 GRIFFIN ST #501
DALLAS TX 75202

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JOHN W PAUL ESQ
PITTSBURG & MIDWAY COAL MINING CO
6400 S FIDDLER'S GREEN CIRCLE
ENGLEWOOD CO 80111-4991