Zeigler Coal Company

Plain-English summary

At Zeigler Coal Company's Spartan Mine, a continuous miner's deadman pedal was stuck in the tram position. Judge Avram Weisberger found that the condition could allow unexpected movement and exposed the operator or an assistant working beside the miner to injury, so he affirmed Citation No. 3847632 and assessed a $20 penalty. The judge also approved a settlement under which the operator would pay $20 for Citation No. 3847638. Proceedings on Citation No. 3847637 were stayed because the same issue was pending before another judge.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(a).
• Outcome: Citation No. 3847632 was affirmed with a $20 penalty, Citation No. 3847638 was settled for $20, and proceedings on Citation No. 3847637 were stayed.
• Key point: A machine may be unsafe under the maintenance standard when a stuck control creates a risk of unexpected movement, even when other controls can stop or de-energize some functions.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. ZEIGLER COAL
DDATE:
19920117
TTEXT:

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             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. LAKE 91-683
PETITIONER A. C. No. 11-00612-03556
v.
Spartan Mine
ZEIGLER COAL COMPANY,
RESPONDENT

                             PARTIAL DECISION

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor,
Office of the Solicitor, Chicago, Illinois,
for Petitioner;
Gregory S. Keltner, Esq., Zeigler Coal Company,
Fairview Heights, Illinois, for Respondent.

Before: Judge Weisberger

Statement of the Case

 Pursuant to a request by the parties, this case is severed

from Docket No. LAKE 91-29 et al.

 In this civil penalty proceeding the Secretary (Petitioner)

seeks civil penalties for alleged violations by Ziegler Coal
Company, (Respondent) of various mandatory standards set forth in
volume 30 of the Code of Federal Regulations. Pursuant to notice
the case was heard in St. Louis, Missouri on December 17, 1991.
At the hearing Ronald Sara testified for Petitioner, and Byford
Carl Reidelberger testified for Respondent. The parties waived
the opportunity to submit post-hearing briefs.

Citation No. 3847632

                                    I.

   The parties stipulated as to the following facts:

        On April 15, 1991, Inspector Ronald Zara [sic] of the
        Federal Mine Safety and Health Administration conducted
        an inspection at the 2nd main west off main south (unit
        3). During the course of the inspection the inspector
        found that the tram pedal (deadman pedal)

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of the joy continuous miner (serial no. JM 3729) was
stuck in the tram position. The machine could be moved
without pushing the pedal and would continue to tram
when the deadman pedal was released. The tram levers
were operating properly and would stop the machine when
released and the panic bar was operating properly and
would de-energize the tram motors when activated. This
machine comes from the manufacturer with the deadman
pedal installed and was approved with it. Two persons
were in the area. The inspector issued Citation No.
3847632 for an alleged violation of 30 C.F.R.
75.1725(a). Respondent showed good faith in
terminating the violation by having the switch cleaned
and lubricated and restored in proper operating
condition. (Joint Exhibit No. 1, paragraph 9)

 According to Sara the purpose of the deadman's pedal is to

prevent inadvertent contact by the operator of the continuous
miner ("miner") with the tram levers which could cause the miner
to unexpectedly move left or right. Sara explained that because
the mine floor is muddy, the operator, upon entering the cab with
mud on his shoes, could slip on the metal floor of the cab. Sara
opined that should the operator thus stumble or fall, inadvertant
contact with the levers could occur, especially considering the
"close quarters" of interior of the cab of the continuous miner,
which be also described as being "very tight" (Tr. 41,42).

 On cross-examination Sara conceded that simply touching the

tram levers is not sufficient to move them, as there must be
pressure applied to push or pull the levers to cause the miner to
go forward or backward. Sara further indicated on
cross-examination that when removing pressure on the deadman
pedal, the miner cannot be trammed either forward or reverse, but
it does not become de-energized. Accordingly it is still possible
to rotate the drum, and swing the tail of the miner. Both these
actions have a potential of causing an injury.

 Byford Carl Reidelberger, the superintendent of the subject

mine, testified that the continuous miner in question at times is
operated from a remote position even while the operator is inside
the cab, and as such, the deadman pedal is bypassed. He further
testified that, originally, the purpose of the deadman pedal was
to protect the operator of the miner from being injured as a
consequence of losing consciousness and thus being unable to stop
the movement of the miner. According to Reidelberger, before
self-centering levers were required, if pressure was released
from a tram lever upon the operator losing consciousness, the
lever would not have returned to neutral and the miner would have
continued to tram.

 Reidelberger indicated that, at present, the deadman pedal

is no longer necessary as miners are equipped with panic bars and

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self-centering levers. Activating the panic bar immediately stops
the motion of the miner. In the same fashion, if pressure is
released from a tram lever that was in a forward or reverse
position, the lever automatically immediately returns to neutral
and the motion of the miner immediately stops. Thus, in
Reidelberger's opinion, the miner that was cited was not unsafe,
even though the deadman pedal did not operate as designed.

                                  II.

 Section 75.1725 supra provides, in essence, that machinery

and equipment ". . . shall be maintained in safe operating
condition and the machinery or equipment in unsafe condition
shall be removed from service immediately." Webster's Third New
International Dictionary, (1986 edition) ("Webster's") defines
"safe" as "2. Secure from threat of, danger, harm or loss:",
Webster's defines "Secure" as "2 a: free from danger "Danger" is
defined in Webster's as "3. liability to injury, pain, or loss:
PERIL, RISK. . . . "

 Based on the testimony of Sara, I find that, because the

deadman pedal was stuck, miners were exposed to the risk of
injury from unexpected movement of the miner caused by
inadvertent contact with the tram levers. In this connection,
Sara explained that miner operators are now accustomed to
stepping on the deadman pedal in order to operate the tram
levers, and that accordingly, if the deadman pedal is not
depressed, it is expected that contact with the levers would not
cause the miner to tram. Hence, Sara opined that should the
levers be inadvertently pushed at a time when the deadman pedal
is stuck, the resulting movement of the miner would be
unexpected, thus causing the risk of an injury either to the
operator located in the cab, or to the assistant working
alongside the miner. In this connection, Sara explained that the
assistant works in a close, confined area, inasmuch as there is
usually less than 5-feet clearance on each side of the miner.
Thus, according to Sara, sudden movement by the miner, left or
right, could result in a injury. I accept Sara's testimony in
this regard as it was not rebutted or impeached. Hence, applying
the common usage of the term "safe" as defined in Webster's infra
I conclude that the miner in question was not in safe operating
condition. Since it was in operation, I find that Respondent
herein did violate Section 75.1725 supra.

                                 III.

 Petitioner did not adduce any evidence of negligence on the

part of Respondent in connection with the violation herein. Also,
considering the statutory factors set forth in Section 110(i) of
the Act as stipulated to by the parties, I conclude that a
penalty of $20 is appropriate for this violation.

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Citation No. 3847638

 At the hearing Petitioner moved to approve a settlement

agreement with regard to Citation No. 3847638 and indicated that
Respondent agreed to pay the assessed violation of $20. I have
considered the representations and documentation submitted on
behalf of the motion, and I conclude that the settlement is
appropriate. Hence, the Motion to Approve Settlement is granted.

Citation No. 3847637

 At the hearing the parties moved that further proceedings

concerning Citation No. 3847637 be stayed on the grounds that the
identical issue involved in this citation is pending before
another Commission judge who has already held a hearing on this
issue. Accordingly it is ORDERED that further proceedings on
Citation No. 3847637 be stayed pending a Decision by Judge
Koutras in Docket No. LAKE 91-635.

                                 ORDER

 It is ORDERED that Respondent pay $40 as a civil penalty for

the violations found herein.

                                 Avram Weisberger
                                 Administrative Law Judge