Pontiki Coal Corporation

Plain-English summary

A Pontiki electrician was fatally injured while troubleshooting an energized continuous miner and inadvertently activating its conveyor chain. MSHA later issued a section 107(a) withdrawal order and a citation alleging that the electrician had worked in the conveyor boom of energized machinery in violation of 30 C.F.R. § 75.1725(c). Judge Avram Weisberger found that the cited conduct was not prohibited by the plain language of the standard, so he dismissed the citation. He also found that, two days after the accident, the record did not show an imminent danger requiring immediate withdrawal of miners, so he vacated the withdrawal order. The civil penalty proceeding was dismissed and the notice of contest was sustained.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1725(c) and 75.509
• Outcome: The citation and section 107(a) withdrawal order were dismissed or vacated, and the civil penalty proceeding was dismissed.
• Key point: An imminent-danger order requires a hazardous condition with a reasonable potential to cause death or serious injury within a short period, not merely a possibility that a similar accident could happen later.

Full text (FMSHRC public release)

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                            2 SKYLINE, 10th FLOOR
                             5203 LEESBURG PIKE
                        FALLS CHURCH, VIRGINIA 22041

PONTIKI COAL CORPORATION, : CONTEST PROCEEDING
Contestant :
v. : Docket No. KENT 91-97-R
: Citation No. 3516447;
: 11/14/90
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Pontiki No. 2 Mine
ADMINISTRATION (MSHA), :
Respondent : Mine ID 15-09571
:

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-305
Petitioner : A.C. No. 15-09571-03604
:
v. : Pontiki No. 2 Mine
:
PONTIKI COAL CORPORATION, :
Respondent :
:

                          DECISION

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee;
Timothy M. Biddle, Esq., Crowell & Moring,
Washington, DC;
Susan E. Chetlin, Esq., Pontiki Coal Corporation,
Lexington, Kentucky.

Before: Judge Weisberger

 At issue in this consolidated notice of contest and civil

penalty proceeding are the validity of an Order issued under
Section 107(a) of the Federal Mine Safety and Health Act of 1977,
("the Act,") and a Citation alleging a violation of 30 C.F.R.
75.1725(c). Pursuant to notice, a hearing was held in
Huntington, West Virginia on August 11, 1992. At the hearing,
Harold Yates testified for the Secretary (Petitioner). The
Operator (Respondent) did not call any witness on its behalf.

             Findings of Fact and Discussion

 In the main, the relevant facts have been stipulated to by

the Parties, and I accept these stipulations. These stipulations
are as follows:

  1.   Pontiki is the owner and operator of the Pontiki
  No. 2 Mine, located approximately 15 miles from Inez,
  Kentucky.
  2.   At the relevant times, Pontiki and the Pontiki No.
  2 Mine were subject to the jurisdiction of the Federal
  Mine Safety and Health Act of 1977 (the "Act").
  3.   The Administrative Law Judge has jurisdiction over
  these proceedings pursuant to   105 of the Act.
  4. Inspector Harold L. Yates, who issued     107(a)
  Order No. 3516447 and   104(a) Citation No. 3516448, is
  an authorized representative of the Secretary.
  5. The Order and Citation were properly served upon an
  agent of Pontiki at the Pontiki No. 2 Mine on November
  14, 1990, at 8:00 a.m., and 8:10 a.m., respectively.
  6. The Pontiki No. 2 Mine mines coal in the Pond Creek
  coal seam using Joy continuous mining machines operated
  by remote control. Shuttle cars carry the coal from
  the continuous mining machine to the mine's belt
  conveyor system which carries the coal out of the mine.
  7. On November 12, 1990, Pontiki mined coal on two
  sections underground and employed 81 people.
  8. On November 12, 1990, the day shift crew for the
  002-0 section arrived on the section at approximately
  8:10 a.m., as the third shift maintenance crew was
  leaving.
  9. The third shift maintenance crew informed the
  section foreman of malfunctions on one of the Joy 14-10
  CM continuous mining machines; the machine would only
  tram in slow speed and the water sprays would not
  operate by remote control.
  10. The section foreman assigned two electricians --
  Argel Bowen and Russell Maynard, Jr. -- to repair the
  continuous miner.
  11. The continuous miner was moved into an
  intersection for repairs.
  12. Bowen repaired the tram controls while Maynard went to
  repair a shuttle car cable.
  13. After Maynard repaired the shuttle car cable, he
  informed the section foreman that he would repair the
  solenoid valves controlling the water sprays. These
  valves were located on the off operator side of the
  continuous miner.
  14. Maynard prepared to troubleshoot the problem with
  the solenoid valves by cleaning coal off of the
  solenoid valve covers.
  15. At the same time, two miners and the section

  foreman walked to the front of the continuous miner to
  inspect the cutting drum for worn bits.
  16. As the section foreman walked by the continuous
  miner, he observed Maynard sitting on top of the
  continuous miner in front of the operator's deck.
  Maynard asked the section foreman to hand him the
  remote control box and then move the switch in the
  operator's deck to the remote position.
  17. Section 75.509 requires that electric equipment be
  deenergized when repairs are being made, "except when
  necessary for trouble shooting or testing." 30 C.F.R.
    75.509. See also 30 C.F.R.    75.1725(c). Maynard
  had to first troubleshoot the solenoid valves before he
  could repair them.
  18. When troubleshooting malfunctions on continuous
  mining machines, it is standard practice for mechanics
  and electricians at Pontiki to switch the miner
  controls to remote and to keep the remote control box
  with them at all times. This precaution is necessary
  to prevent another person from accidentally operating
  the machine with the remote control or from the
  operator's deck while troubleshooting is taking place.
  19. Since Maynard had the remote box with him, the
  section foreman asked Maynard if he could bump (rotate
  slightly) the cutting head, so the head could be
  inspected for worn bits. The cutting head on the Joy
  14-10 CM continuous miner must be bumped with the power
  on, because the ripper/veyor chain connected to the
  ripper head makes it impossible to bump the head
  manually.
  20. Maynard told the section foreman that he would
  rotate the cutting head using the remote control box,
  but he inadvertently activated the conveyor chain
  instead of rotating the cutting head.
  21. The activated conveyor chain pulled Maynard from
  his work position and trapped him beneath the conveyor
  chain guard, resulting in fatal injuries.
  22. MSHA conducted an investigation, which was
  concluded on November 13, 1990.
  23. Two days after the accident occurred, MSHA issued
  imminent danger Order No. 3516447 which is at issue in
  this proceeding. Copies of the Order and subsequent
  modifications are attached to Pontiki's Application for
  Review.
  24. MSHA also issued    104(a) Citation Nos. 3516448
  and 3516449.
  25. Citation No. 3516448, at issue here, alleged a
  violation of   75.1725(c), as follows:
       Evidence obtained during a fatal accident
       investigation revealed that Russell Maynard
       Jr. placed himself in the conveyor boom of an
       energized JOY 14-10 continuous miner on the

        002-0 working section while working on the
        water spray system. The electrician had with
        him the operative remote control unit for the
        miner. This citation is a contributing
        factor to imminent danger order #32516447
        dated 11-14-90. Therefore no abatement time
        is set.
   26. Citation No. 3516449 also alleged a violation of
   75.1725(c) as follows:
        Evidence obtained during a fatal accident
        investigation revealed that three men were
        setting bits on the cutting head of an
        energized JOY 14-10 continuous miner on the
        002-0 working section. The electrician
        victim was in the conveyor boom area of the
        miner and had the operative remote control
        unit with him. This condition is a
        contributing factor to the issuance of the
        imminent danger order #3516447 dated 11-14-
        90. Therefore no abatement time is set.
   27. On December 11, 1990, Citation No. 3516449 was
   vacated for the following reasons:
        This violation is being vacated for the
        following reason(s).
        Evidence obtained during a safety and health
        conference reveals bits were not being set in
        the 14-10 continuous miner head on the 002
        working section. At the time of the fatal
        accident three men were observing the cutting
        head of the continuous miner to determine if
        bits were needed while the victim was
        rotating (bumping) the cutting head.

I. Violation of 30 C.F.R. 75.1725(c)

 The parties stipulated that on November 12, 1990, an

electrician Russell Maynard, Jr., was sitting on top of a
continuous miner, and had in his possession a remote control box
switched to the remote position. Maynard was to trouble shoot
the solenoid valves controlling the water sprays before he could
repair them. At the same time, two miners and the section
foreman walked to the front of the miner to inspect the cutting
drum for worn bits. The foreman asked Maynard to bump the
cutting head so it could be inspected for worn bits. Maynard
inadvertently activated the conveyor chain instead of rotating
the cutting head, and was caught by the conveyor chain and
trapped beneath the chain guard. He received a fatal injury.

 MSHA Inspector Harold Yates issued a citation alleging a

violation of 30 C.F.R. 75.1725(c) in that Maynard "...placed
himself in the conveyor boom of an energized joy 14-10 continuous
miner on the 002-0 working section while working on the water

spray system. The electrician had with him the operative remote
control unit for the miner."

 In essence, as pertinent, Section 75.1725(c), supra,

provides as follows: "Repairs or maintenance shall 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."

 Petitioner apparently concedes that there was no violation

for Maynard to be located on top of the mining machine with the
power on trouble shooting the solenoid valves. However,
Petitioner argues that when Maynard activated the controls "as
part of the Act of changing bits on the cutting head" (emphasis
added), a violation of Section 75.1725(c) supra occurred.

 Considering the record as a whole, I do not find support for

Petitioner's position that there was herein a violation of
Section 1725(c) supra. In essence, the Citation at issue sets
forth two assertions as the bases for a violation herein of
Section 1725(c) supra. The Citation alleges that (1) Maynard was
placed in the boom of the energized miner while working on the
water spray system and (2) that he had with him the remote
control unit for the miner. Neither of these activities are
prohibited by the clear language of Section 75.1725(c) supra.
Indeed, as pointed out by Respondent, Yates conceded on cross-
examination that, in essence, neither of these activities
violates a regulatory standard.

 In his direct testimony, Yates asserted that the basis for

the violation was the fact that Maynard was on the miner when he
attempted to bump the miner head by remote control. In essence,
Section 75.1725(c), provides that, in making repairs or
maintenance, power must be off, and the machinery is to be
blocked against motion. As correctly pointed out by Respondent,
Section 75.1725, supra, contains no requirement concerning a
person's position while repairs are being made.

 The Commission has noted that the purpose of Section

75.1725(c) is to prevent "to the greatest extent possible",
accidents in the use of equipment and that "the manifest intent
of the regulation is to restrict repair of machinery while the
power is on." (Arch of Kentucky, Inc., 13 FMSHRC 753, 756
(1991)). However, in evaluating the scope to be accorded the
language of a regulatory standard, the Commission, in Southern
Ohio Coal Co., 14 FMSHRC 978 (June 1992), reiterated its test of
whether the regulation gives a reasonably prudent person notice
that it prohibits the cited conduct. Section 75.1725(c) supra,
does not give any notice that it prohibits persons from being on
energized miners with remote control equipment. Its plain
language expressly sets forth requirements for blocking and
turning off power to machinery, but does not contain any words

that could reasonably be interpreted as governing a person's
position vis a vis a piece of equipment that is being repaired or
maintained.

 Therefore for the all the above reasons I conclude that it

has not been established that there was a violation herein of
Section 75.1725(c) as alleged in the citation at issue.
Therefore, the citation must be dismissed.

II. The Validity of the Section 107(a) Withdrawal Order.

 As a consequence of the fatal accident which had occurred on

November 12, 1990, MSHA Inspector Harold L. Yates issued a
Section 107(a) withdrawal order two days later on November 14,
1990. It appears to be the position of Petitioner, that the
Section 107(a) order was properly issued because the underlying
hazard remained. In this connection, Petitioner refers to the
parties' stipulation that it was standard practice for mechanics
and electricians at Pontiki to switch the miner controls to
remote, and to keep the remote control box with them at all
times. Hence, it is Petitioner's argument that the underlying
hazard remained in that "there was clearly a very definite chance
for this tragic occurrence to be duplicated." In support
thereof, Petitioner also refers to the fact that the abatement of
the Section 107(a) order at issue indicates that Pontiki's
employees were "retrained on the use of a remote control unit and
work while trouble shooting, and that this retraining eliminated
the hazard which had remained present." I find Petitioner's
arguments to be without merit for the reasons that follow.

 The Order at issue alleges the existence of an "imminent

danger", as per section 107(a) of the Act. Section(3)(j) of the
Act defines an imminent danger as "...the existence of any
condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated."

 In Utah Power and Light Co., 13 FMSRHC 1617 (1991) the

Commission reviewed the Legislative History of this definition,
and concluded as follows: "Thus the hazard to be protected
against by the withdrawal order must be impending so as to
require the immediate withdrawal of miners." (13 FMSHRC supra at
1621). (Emphasis added)

 The Commission rejected an interpretation of the imminent

danger provision of the Act which includes "...any hazard that
has the potential to cause a serious accident at some future
time... ." (Utah Power and Light, supra. at 1622). The
Commission future explained its holding as follows:

       To support a finding of imminent danger, the
  inspector must find that the hazardous condition has a

  reasonable potential to cause death or serious injury
  within a short period of time. An inspector, albeit
  acting in good faith, abuses his discretion in the
  sense of making a decision that is not in accordance
  with law when he orders the immediate withdrawal of
  miners under section 107(a) in circumstances where
  there is not an imminent threat to miners". (Utah
  Power and Light supra, at 1622.)

 In the instant case, when the Section 107(a) Order was

issued two days after the accident no one was working on the
miner in question, and, according to Yates, it was "sitting by
itself" (Tr. 52). Yates testified that the reason that he issued
the order was that "the same accident could happen again if they
[the miners] were not retrained in performing this type of work"
(Tr. 36). However, there is no indication in the record that the
lack of retraining had a reasonable potential to cause a serious
injury "within a short period of time" (c.f., Utah Power and
Light, supra at 1622). To the contrary, when Yates was asked on
cross-examination, "But you will agree with me, we don't have any
issue over the fact that there was nothing happening at that time
[when the Order was issued] which caused you to issue the order,"
Tr.52 (emphasis added), the inspector replied, "There was no
action being done, the mine[r] was sitting by itself."

 In addition, on direct examination, the inspector testified

that the reason he issued the Order was that "the same accident
could happen again if [the miners] were not retrained in
performing this type work." Tr.36 (emphasis added). Absent from
the inspector's description, however, is any reference to the
immediacy of the potential harm. Rather the inspector issued the
Order because he "thought it might occur sometime in the future
that somebody would have that same set of circumstances and do
the same thing." Tr. 51-52 (emphasis added).

 Although there was a chance for the fatal occurrence to be

duplicated, as argued by Petitioner, I find this not sufficient
to sustain an imminent danger order, under the rationale of Utah
Power and Light, supra.

 I conclude that it has not been established that when Yates

issued the Section 107(a) order there was any condition
constituting an imminent danger. Accordingly, the order at issue
is to be vacated.

                          ORDER

 It is hereby ORDERED that Docket No. KENT 92-305 be

DISMISSED. It is further ordered that the Notice of Contest,
Docket No. KENT 91-97-R, be sustained. It is further ordered
that Order No. 3516447 and Citation No. 3516448 be DISMISSED.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, NW, Washington, DC 20004-2595 (Certified Mail)

Susan E. Chetlin, Esq., Pontiki Coal Corporation, 2525
Harrodsburg Road, Suite 300, Lexington, KY 40504 (Certified
Mail)

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