Gatliff Coal Company, Inc.

Plain-English summary

Gatliff Coal operated a surface strip coal mine where an employee died after a truck accident and workers had to leave the mine property to find a telephone because no company two-way radio was present. The Commission held that employee-owned CB radios did not satisfy the requirement for an operator-established and maintained emergency communication system under 30 C.F.R. § 77.1701. It reversed the judge's conclusion that the standard was not violated and remanded for findings on unwarrantable failure, significant and substantial status, and the appropriate civil penalty.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1701
• Outcome: The ALJ's no-violation conclusion was reversed, and the case was remanded for further findings and penalty assessment.
• Key point: An emergency communication system must be established and maintained by the operator; a voluntary employee-owned CB system did not meet that requirement.

Full text (FMSHRC public release)

CCASE:
GATLIFF COAL V. MSHA
DDATE:
19910925
TTEXT:
September 25, 1991
GATLIFF COAL COMPANY, INC.

v. Docket Nos. KENT 89-242-R, etc.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. • 801 et seq. (1988)
(the "Mine Act"), we are called upon to determine whether a means of emergency
communication that existed at the time of an accident constituted an
established and maintained emergency communication system under 30 C.F.R.
 77.1701. Commission Administrative Law Judge Gary Melick vacated th
section 104(d)(1) order issued in connection with the alleged violation.
13 FMSHRC 368 (March 1991)(ALJ). For the reasons set forth below, we reverse
the judge's conclusion that the standard was not violated and remand the case
to the judge for further proceedings.
I.
Factual and Procedural Background
The facts of this case are largely undisputed. Gatliff Coal Company,
Inc. ("Gatliff") owns and operates a surface strip coal mine located in
Whitley County, Kentucky known as Gatliff No. 1, Job 75. At about 3:20 a.m.
on August 1, 1989 a truck driven by Gatliff employee Boyd Fuson went off an
elevated roadway on the mine property and tumbled down a 120 foot
embankment.
In response to the accident, two Gatliff employees, Donald Hopkins and Richard
Gibbs, drove from the mine property to the nearest telephone, which was about
two miles away, in order to summon help. There was no telephone at Job 75.
Fuson died as a consequence of the accident.
In the investigation that followed, MSHA inspector James
Payne issued a 104(d)(1) order charging a violation of 30 C.F.R.
 77.1701, because there was no company radio at Job 75 at th
time of the accident. 1 Tr. 49. According
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
1 The standard provides:
 77.1701 Emergency communications; requirements.

Page 2

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to James Medors, Gatliff's day shift foreman at the time of the accident,
each mine site typically has three company radios. The company radios
two-way 40 watt radios with sufficient range to reach the Gatliff mine office
and are located in the foreman's truck, the mechanic's truck and the lube
truck. Tr. 151. On the night of the accident, however, there was no company
radio on site at Job 75. Tr. 156. Meadors testified that he had taken the
foreman's truck off the Job 75 site, that the lube truck was at another
Gatliff mine site "roughly three miles away, maybe a little
more, " and that the mechanic's truck had been taken home. Tr.
150, 154, 156. At the time of the accident, there was, however,
a citizen band radio ("CB radio" or "CB") belonging to the day
shift operator of the bulldozer being operated by Mark Hopkins.
John Blankenship, Gatliff's safety director, testified about the
operator's emergency notification procedures. He acknowledged that under
normal circumstances those procedures consisted of communication via one of
the two-way radios back to the mine office, where there was a telephone.
Tr. 216. Blankenship's signed statement of Gatliff's company policy regarding
emergency communications was read into the record:
... Gatliff Coal Company, Inc. has a standard operating procedures
(sic) of the company's radio communication to be provided on the
job in case of emergency. This provides for the job to contact
base and base then calls for assistance, base being the guard
shack. And this has always been our standard operating
procedure. (Footnote 2)
Tr, 222.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(a) Each operator of a surface coal mine shall
establish and maintain a communication system from the
mine to the nearest point of medical assistance for
use in an emergency.
(b) The emergency communication system required to be
maintained under paragraph (a) of this section may be
established by telephone or radio transmission or by
any other means of prompt communication to any
facility (for example, the local sheriff, the State
highway patrol, or local hospital) which has available
the means of communication with the person or persons
providing emergency medical assistance or
transportation in accordance with the provisions of
paragraph (a) of this section.

2 We note that, although Blankenship signed the statement under protest, his
protest was not because of any claim that the statement was inaccurate, but
because he felt that signing it was tantamount to stating that Gatliff did not

Page 3

have the procedure in place. Tr. 221-223.
~1372
Thus, Gatliff conceded that its standard emergency communication
procedure involved using 40 watt two-way radios and that there were no such
two-way radios at Job 75 on the night of the accident. However, before the
administrative law judge Gatliff took the position that, although no 40 watt
two-way radio was present at Job 75 at the time of the accident, CB radios
were present, which would have enabled the miners to link up with a different,
but nearby, Gatliff mine site (Job 74) that did have such a two-way radio on
the lube truck. Foreman Meadors testified that miners routinely communicated
by CB radios between the two sites.
Tr. 150, 154.
Safety Director Blankenship stated that the miners at Job 75 could have
reached the lube truck at Job 74 by using the CB, but he acknowledged that the
miners were never told to use the CBs. Tr. 217. In response to questions
from the court, Blankenship testified as follows:
Q. Well, how do you get in touch with the lube
truck if you're 3 miles away?
A. With the CB.
Q. Do you understand why these people did not use
it?
A. No, I don't.
Q. Were they told to use the CBs?
A. They were never per se told to use the CBs
except, you know, they would have radio
communication there and someone would get on the
company radio and call. Now, how they got ahold
of one another to use the company radio to call
the guard that was pretty much left to their own
discretion.
Tr. 217.
Blankenship testified that, since the accident, miners have been told to
communicate for help the "fastest possible way" and that they have been told
to use CBs. Prior to the accident, however, the miners had not been
specifically told to use a CB radio or to walk to the mechanic's truck.
Blankenship assumed that in an emergency the miners would find the quickest
way to get help. Tr. 220.
Mark Hopkins testified that, although there was a CB radio on the
bulldozer he was operating the night of the accident, it never entered his
mind to use it to summon help. Tr. 158, 162. ALJ decision at 13 FMSHRC 373.
The CBs were used by the miners to give directions, to keep each other
company, to communicate with other job sites, and to use if there was
something wrong. Tr. 163-165. When asked why he did not use the CB to reach
another Gatliff job site the night of the accident, Hopkins stated he was
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Page 4

"just scared." Tr. 165. He further stated that he was trained, in the event
of an emergency, to use either the foreman's truck or the lube truck to make a
call for help. Tr. 164.
Inspector Payne testified that a CB radio could be used for emergency
communication under the standard if there were someone monitoring it on the
other end. Tr. 53. He noted that the CBs were owned by the employees and
that during his investigation no one told him that there was an alternate
emergency communication system. Tr. 54, 55, 61.
In his decision the judge noted the undisputed testimony of Inspector
Payne that the only radio at Job 75 at the time of the accident was the CB in
Hopkins' bulldozer and that this radio had insufficient range to reach either
the mine office or medical or police assistance. 13 FMSHRC at 373. The judge
further found that the CB at Job 75 could have reached the lube truck at Job
74 and that the lube truck had a radio sufficiently powerful to reach the mine
office. On this basis, the judge concluded that the Secretary had failed to
prove a violation because the CB radio on the bulldozer at Job 75 was capable
of reaching the lube truck radio, which in turn could communicate with the
mine office, where a telephone was located. 13 FMSHRC at 374.
The Secretary filed a petition for discretionary review challenging the
judge's determination that the emergency communication system existing at the
time of the accident satisfied the requirements of the standard.
II.
Disposition of Issues
The Secretary contends that 30 C.F.R. • 77.1701 is violated when a
mine's established means of emergency communication is removed from a mine
site. The Secretary argues that the established means of communication at Job
75 was the two-way radio in the foreman's truck and not the CB system. The
miners knew only of the two-way radio as the emergency communication system;
CB radios were personal, not company, equipment and were brought to work by
some miners so that they could talk with other equipment operators. To
underscore her contention that the CBs were not part of an "established"
system the Secretary observes that, when the emergency in this instance arose,
the miners did not use their CBs, but instead went in search of a
telephone.(Footnote 3)

3
The Secretary asserts as a separate basis for error that a CB radio could
not be a substitute for the two-way radio system because it entailed
unnecessary multiple-step emergency communication procedures, which were
more
time consuming and less reliable than the two-way radio. The Secretary did
not assert before the administrative law judge that unnecessary multiple-step
emergency communication systems were prohibited by the standard. The issue
first appears in the Secretary's Petition for Discretionary Review and again,
in amplified fashion, in her brief before the Commission. Gatliff responded

Page 5

to the issue in opposing the Secretary's Petition for Discretionary Review and
noted that "[t]he judge made his determination based on the regulations, not
on some obscure implication now Gatliff argues that the
communication system did not fail on the date of
~1374
Gatliff argues that the communication system did not fail on the date of
the accident, it simply was not used. Gatliff contends that the CB system
constituted an established alternate method of emergency communication, which
it originally established and installed. At one time Gatliff supplied its
miners with CB radios at the site but discontinued the practice due to thefts.
It continued to provide cable and antennae to those miners who brought their
r own CBs. The fact that the miners did not use the CB system in the emergency
should not be confused or equated with the separate concept of whether the
system was established and maintained. It notes that the miners knew that CBs
were available and that Gatliff knew they were being used. Gatliff argues
that the CBs constituted an alternate system satisfying • 77.1701
There is substantial evidence in the record to support the judge's
findings that CB communication from Job 75 to the lube truck at Job 74 was
technically possible on the date of the accident, and that the lube truck's
two-way radio could have reached the mine office, which was equipped with a
telephone. The issue in this case, however, is whether this alternate syst
satisfies 30 C.F.R. • 77.1701. On its face the standard makes clear that t
onus is upon the operator, not its employees, to establish and maintain the
emergency communication system.
"Establish" means "to make secure or firm ... to cause
to be recognized or accepted ... to introduce and
enforce.
"Maintain" means "to preserve or keep in a given
existing condition, as of efficiency or good repair."
Webster's II New Riverside University Dictionary (1984).
Gatliff has acknowledged that its standard procedure was to have a
company two-way radio on the job as its emergency communication system and
that this system worked by having the job site make contact with the base,
which in turn called for assistance. Tr. 216. Gatliff also acknowledges t
their standard (two-way radio) procedure was not in place at Job 75 on the
night of the accident. Tr. 156. Gatliff Br. at 8, 9. It agrees that its
standard operating procedure involved having at least one vehicle with such
two-way radio at each mine site and admits that this procedure was not
followed when the foreman's truck left the Job 75 site at the start of the
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
suggested by the Secretary." Statement in Opposition to the Secretary's
Petition for Discretionary Review at 4.
section 113(d)(2)(A)(iii) of the Mine Act provides: "Except for good
cause shown, no assignment of error by any party shall rely on any question of
fact or law upon which the administrative law judge had not been afforded an

Page 6

opportunity to pass." Not having been presented before the judge, this issue
of law is not properly before the Commission and we decline to entertain it.
See Union Oil Company of California, 11 FMSHRC 289, 301 (March 1989),
Climax
Molybdenum Co., 1 FMSHRC 1499, 1500 (October 1979).
~1375
shift on July 31. Id. at 8. Thus the two-way radio system was clearly not
maintained as required by section 77.1701. However, Gatliff asserts that the
alternate "CB system" was also its established and maintained system.
The CB system was undeniably a voluntary system adopted by the miners
utilizing their personal CB radios. Tr. 54, 154, 162, 219. The operator
initially introduced CBs but effectively abandoned their use in favor of twoway
radios. Tr. 219. The operator did not enforce the use of CBs and there
is no evidence that the operator told employees that the CB system was an
alternate emergency system. During Inspector Payne's investigation no one
suggested that there was an alternate emergency communication system. Tr. 61.
Blankenship admitted that the miners had never been told "per se" to use the
CBs, but after the accident they were instructed to use them. Tr. 217, 220.
This failure to instruct miners in the use of the CB radios as an emergency
communication system weighs against a conclusion that the alternate system was
established and maintained.
The fact that the CBs were the miners' personally owned equipment, not
Gatliff's, and that miners were free to decide whether to bring CBs to work,
is also inconsistent with the standard's requirement that the emergency
communication system be operator established and maintained. That the
operator knew that its employees were routinely using CBs, did not disapprove
of their use, and aided this practice to the extent of providing cable and
antennae for them does not amount to sufficient involvement to constitute
operator establishment and maintenance of the system.
In conclusion, we hold that because the CB system was neither operator
established, nor operator maintained, it did not satisfy the requirements of
section 77.1701. Accordingly, we reverse the administrative law judge's
determination that no violation occurred. We remand the case to him for
resolution of any remaining issues, including whether the violation
~1376
resulted from the operator's unwarrantable failure, whether it was significant
and substantial, and for the assessment of an appropriate civil penalty. 4
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner

5 Chairman Ford did not participate in the consideration or disposition of
this matter.