Peabody Coal Company

Plain-English summary

Peabody Coal's Camp 11 Mine was cited after Raymond Brown suffered fatal chest injuries when a remotely operated scoop's service brake failed and pinned him against a roof bolter. The case involved a brake-system citation and imminent-danger order, two additional brake citations, and training-related citation and order. At the hearing, the parties agreed to settle all items, and Judge Jerold Feldman accepted the agreement because it met the Mine Act's penalty criteria. The citations and orders were affirmed, Peabody was ordered to pay $28,500 within 30 days, and the matter was to be dismissed upon payment.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1725(a); 30 C.F.R. § 48.7(a)(3)
• Outcome: The citations and orders were affirmed under a settlement requiring a total civil penalty of $28,500.
• Key point: The judge approved a settlement after considering the accident investigation, the parties' evidence, and the Mine Act penalty criteria.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PEABODY COAL
DDATE:
19930331
TTEXT:

      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 92-651
Petitioner : A.C. No. 15-08357-03702
v. :
: Camp No. 11
PEABODY COAL COMPANY, :
Respondent :

                          DECISION

Appearances: William F. Taylor, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the Petitioner;
David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for the Respondent.

Before: Judge Feldman

 The captioned proceeding is before me as a result of a

petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801. et seq., (the Act). This case was
scheduled for hearing in Owensboro, Kentucky on March 3, 1993.
This matter concerns a 104(g)(1) and a 107(a) order and four
104(a) citations that were issued as a result of an investigation
of a fatal accident that occurred in the respondent's Camp 11
Mine on February 26, 1991. The total assessed penalty proposed
by the Secretary was $57,000.

 At the commencement of the hearing, the parties moved to

settle the orders and citations in issue for a total penalty of
$28,500. The motion was supported by the testimony of Mine
Safety and Health Administration (MSHA) Conference Officer Robert
Phillips and Sam Spears, an electrician employed by the
respondent. These individuals described the accident and
provided information concerning the results of MSHA's subsequent
investigation. As noted below, the parties' settlement motion
was granted on the record.

                       BACKGROUND

 This case involves fatal injuries sustained by Raymond Brown

during the course of his remote control operation of a Simmons-
Rand scoop. This scoop is used to remove loose coal that has
fallen between the ribs after continuous miner operations.
(Tr. 42). The scoop can be operated manually from the control
deck. In the alternative, the scoop can be operated remotely by
means of a hand held joystick. (Tr. 16,39). The advantage of
operating in the remote control mode is that it allows the scoop
to operate under unsupported roof before roof bolting occurs,
without exposing the scoop operator to danger. (Tr. 43-44).
Remote control of a scoop is a relatively new technological
development in the mining industry. (Tr. 23).

 The mechanical operation of the scoop's braking system is

dependent upon whether it is being operated in the manual or
remote control mode. If the scoop is operated in the manual
mode, the operator controls the scoop from the operator's deck.
To stop the scoop, the operator uses a foot pedal that is located
on the floor of the deck. Operation of the foot pedal applies
pressure to the service brakes. (Tr. 37-38).

 Remote operation of the scoop is accomplished by the

operator holding a remote station joystick while positioned
behind the scoop. Movement of the scoop is achieved by holding
down the plunger on the joystick. To apply the service brakes in
the remote mode of operation, the operator must release the
joystick. This activates the hydraulic function of the service
brake system by sending oil through a flow control valve. The
oil is then transported through a pressure intensifier which
creates the hydraulic pressure that activates the service brakes
and stops the scoop. (Tr. 37-39).

 On February 26, 1991, Raymond Brown, an individual with

approximately 15 years of mining experience, was operating a
scoop by remote control in the crosscut between the No. 3 and
No. 4 entries to provide a clean working area for the roof
bolting machine operator. At approximately, 1:30 p.m., the
continuous miner had completed a 34 four foot cut in the No. 3
entry and had moved to the No. 2 entry. Roof bolting was
completed in the crosscut between the No. 3 and No. 4 entries.
Brown was in the process of cleaning the No. 3 working face by
remotely controlling the scoop. The roof bolter was parked in a
crosscut adjacent from the area where Brown was cleaning the
face. As the scoop retreated from the face, the service brake
failed to engage pinning Brown between the rear of the scoop and
the front of the roof bolter. A roof bolter operator who
witnessed the accident de-energized the scoop with the panic bar
located in the deck of the scoop. Brown sustained fatal chest
injuries and expired shortly after being brought to the surface.

 An MSHA investigation conducted at the scene cited an

inoperative service brake as a result of a closed hydraulic flow
valve as the proximate cause of this fatal accident. However,
the investigation revealed that it was not until after the
accident that Simmons-Rand, the manufacturer of the scoop,
informed the respondent of the function of the flow valve and the
importance of it being kept in the open position. In this
regard, Sam Sears, the chief electrician at the respondent's Camp
11 Mine, testified that the existence or maintenance of a flow
control valve is not noted in the Simmons-Rand scoop service
manual. (Tr. 40). As a result of this accident, MSHA Conference
Officer Robert Phillips testified that a nationwide alert was
issued to all mine operators warning of the potential flow valve
problem and requiring appropriate training for operators of such
scoops in the remote control mode. (Tr. 30-32, GOV. Ex.7).

 As noted above, as a result of this accident and the

subsequent investigation, three citations and an imminent danger
order were issued for alleged violations concerning the scoop's
braking system. In addition, the respondent received a 104(g)
order and a citation for allegedly failing to provide adequate
task training for remote scoop operators.

 Citation No. 3550636 and imminent danger Order No. 3550634

were issued for violation of the mandatory safety standard
contained in section 75.1725(a)(Footnote 1) as a result of the
closed flow control valve which disabled the remote operation of
the service brake system.(Footnote 2) At the hearing, the
parties moved to settle this citation and order indicating that
the respondent has agreed to pay the $15,000 proposed assessed
penalty.

 Citation Nos. 3550635 and 3550637 were issued for defects in

the scoop's emergency parking brake and for worn disc brake pads
on the scoop's service brakes. The proposed assessment for each
of these citations was $9,000. At the hearing, the parties
agreed to settle each citation for $6,550. The reduction in the
proposed assessments was supported by the fact that the
investigation ultimately determined that the condition of the
scoop's parking brake and service brake did not contribute to Mr.
Brown's death. (Tr.66-67,69).

 Citation No. 3550565 and Order No. 3550566 were issued as a

result of the respondent's failure to provide adequate task
training as required by Section 48.7(a)(3). The citation was
issued with respect to the training provided to Raymond Brown and
the 104(g)(1) order was issued in connection with the training
provided to Gary Woods. (Footnote 3) The penalty initially
proposed for each of these alleged violations was $12,000. At
trial, the parties moved to reduce the proposed assessment to
$200 for each violation. This substantial reduction in penalties
was supported by the testimony of Mr. Phillips indicating that
the operator had no advance knowledge of the existence or
significance of the flow control valve. Therefore, Phillips
opined that even extensive training could not have prevented Mr.
Brown's death. (Tr. 23-24). Although the investigation revealed
that additional emphasis should have been placed on remote
control training, counsel for the Secretary characterized the
training provided as "substantially adequate" quantifying the
training as a 9 on a scale of 1 to 10. (Tr. 16).

 In view of the above, I accepted the parties' settlement

agreement as proffered on the record because it is consistent
with the criteria set forth in section 110(i) of the Act. By way
of summary, the respondent has agreed to pay an assessed penalty
of $15,000 for Citation No. 3550636 and Imminent Danger Order No.
3550634; $6,550 for Citation No. 3550635; $6,550 for Citation No.
3550637; $200 for Citation No. 3550565; and $200 for Order No.
3550566. The settlement incorporates the gravity and negligence
findings charged in these citations and orders.

                          ORDER

 Accordingly, the citations and orders noted above ARE HEREBY

AFFIRMED. Consequently, the respondent IS ORDERED TO PAY a total
civil penalty in the amount of $28,500 in satisfaction of the
violations in issue. Payment is to be made within 30 days of the
date of this decision, and, upon receipt of payment, this matter
IS DISMISSED.

                                  Jerold Feldman
                                  Administrative Law Judge
                                  703-756-5233

1 This mandatory safety standard requires that mobile equipment
must be maintained in a safe operating condition or be removed
from service immediately.

2 The subject scoop was repaired on February 6 and again on the
day prior to the accident on February 25, 1991, for brake
problems associated with manual operation. At those times, the
brakes were checked and determined to be operating properly in
the manual mode. The brakes were not checked in the remote
operational mode. The flow control valve is located under a
panel and is not easily accessible. The investigation failed to
establish when or why the control valve was closed. (Tr. 49-53).
The flow control valve was ultimately removed to prevent a
reoccurrence of brake failure. (Tr. 41).

3 This order also cited Michael Grigg as not receiving adequate
training. However, reference to Grigg was deleted when it was
determined that Grigg was not a scoop operator. (Tr. 16).
Distribution:

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

Mr. David R. Joest, Peabody Coal Company, 1951 Barrett Court,
P.O. Box 1990, Henderson, KY 42420-1990 (Certified Mail)

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