Cambria Coal Company (ALJ decision, April 14, 1982)

Plain-English summary

MSHA cited Cambria Coal because the boom of an unused dragline remained upright. Chief Judge Paul Merlin held that the boom was not a movable part similar to the buckets and blades covered by the cited standard. He also found that the boom's brake, ratchet, and worm gear secured it. He vacated that citation and granted Cambria's contest. For other citations, he approved settlements totaling $280 and allowed the Secretary to withdraw one penalty petition.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1607(p).
• Outcome: Boom citation vacated; $280 due on five settled citations; one penalty petition withdrawn.
• Key point: The rule covering lowered or secured loading equipment parts did not cover the dragline boom on this record.

Full text (FMSHRC public release)

CCASE:
CAMBRIA COAL V. SOL (MSHA)
DDATE:
19820414
TTEXT:
~602

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

CAMBRIA COAL COMPANY,
Contest of Citation
CONTESTANT
v. Docket No. PENN 81-169-R
Citation No. 1043934 5/8/81
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Cambria Strips & Tipple
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR,
Civil Penalty Proceeding
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. PENN 81-231
PETITIONER
A.C. No. 36-02738-03009
v.
Cambria Coal Strips
CAMBRIA COAL COMPANY,
& Tipples
RESPONDENT

DECISION

Appearances: Bruno A. Muscatello, Esq., Brydon, Stepanian & Muscatello, Butler, Pennsylvania, for
Contestant/Respondent, Cambria Coal Company David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent/Petitioner, MSHA

Before: Judge Merlin

This is a consolidated proceeding consisting of a notice of contest and a petition for the assessment of seven civil penalties. A hearing was held on March 23, 1982. At the conclusion of the hearing, counsel waived the filing of written briefs and presented oral argument in support of their positions.

At the outset of the hearing the Solicitor moved to withdraw the penalty petition with respect to Citation No. 1043930. From the bench I granted the withdrawal.
~603
The Solicitor also submitted at the hearing a motion for approval of settlements. With respect to four citations the motion recommended approval of the originally assessed amounts totalling $216. The proposed settlement for a fifth citation was $64, $20 less than the original amount. A lesser degree of gravity was explained for the reduction. I approved the settlements from the bench.

This left for hearing Citation No. 1043934 which is the citation in the notice of contest PENN 81-169-R.

The citation dated May 8, 1981 sets forth the alleged violation of 30 C.F.R. 77.1607(p) as follows:

The movable boom mast of the Bucyrus Erie 88-B Dragline was left in the upright position and at a location where a person or persons could walk under this boom mast at any time. This boom mast was also not either secured or lowered to the ground surface when this piece of equipment was originally parked and has been out of service for an unknown period of time. This piece of equipment is located at this time at the 045 pit area.

The mandatory standard, 30 C.F.R. 77.1607(p) provides as follows:

Loading and haulage equipment; operation. Dippers, buckets, scraper blades, and similar movable parts shall be secured or lowered to the ground when not in use.

There is no dispute about the facts. (FOOTNOTE 1) The dragline was parked about an eighth of a mile from the point where ~604 coal was being mined in the pit. The bucket of the dragline was down on the ground and the boom was up in the air. (Op. Ex. No. 3) The dragline had not been used for about 6 to 8 weeks.

Since the boom was not lowered to the ground and since it plainly was not in use, it must be determined whether the mandatory standard applies requiring it to be lowered or secured. If the mandatory standard applies, inquiry must be made whether or not the boom was secured.

The mandatory standard specifically enumerates dippers, buckets and scraper blades. The boom mast is not one of these. The standard also includes "similar movable parts." As the testimony shows, the boom mast moves. MSHA's position is that because the boom moves, it is a movable part similar to dippers, buckets and scraper blades. I cannot accept this argument. If similarity is satisfied only by movability, the word "similar" is superfluous and 1607(p) could accomplish its purpose by referring only to "movable parts." The Solicitor acknowledged this in his closing argument. An interpretation which relegates part of a definition to surplusage is to be avoided.

Dippers, buckets and scraper blades are similar to each other in function because they come in contact with the earth by picking it up or leveling it. All of them are the furthermost part or the extremity of the total operation to which they are attached. The boom mast does not have these characteristics. Rather it moves and directs dippers, buckets and scraper blades and similar movable parts. In addition, the boom is an integral part of the assembly of the heavy-duty crawler machine as evidenced by the fact that it is included and described in the crawler's specifications (MSHA Exh. No. 2). Dippers, buckets and scraper blades are not so included. Accordingly, the boom is not similar either in placement or function to the items enumerated in the standard. Based upon the foregoing, I conclude the boom is not covered by the standard and the citation must be vacated.
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The inspector's selective and uneven enforcement of the standard also demonstrates that it does not apply here. The inspector stated that he would not issue a citation where a lowered and not-in-use boom is in the active pit area. The inspector said that under these circumstances he would not issue a citation because no danger exists in the active pit area since people would not walk under the boom there. The standard however, is not premised upon the boom's location and the inspector has no authority to carve out such an exception. Conversely, if the citation in this case were upheld, citations would have to be issued in situations where the location is the active pit although the inspector himself admits they would not be necessary and does not issue them in such cases.

Finally, even if the boom were within the purview of the mandatory standard as a similar movable part, the citation still would be invalid because the boom was secured. The boom had a braking system. The inspector expressed the view that even with the braking system fully operative the boom was not secured because brakes are subject to mechanical failure. The inspector would require external blocks or cribbing although he admitted this would be difficult. Moreover, the inspector admitted there is no basis in the mandatory standard or any MSHA manual for his position. The testimony demonstrates that the boom in fact had three separate securing devices: (1) a brake on the drum; (2) a ratchet-type mechanism on the gear; and (3) a worm gear. All of these devices were explained in detail at the hearing. I find that any one of them secured the boom. MSHA introduced no evidence to show that they were inoperative. Indeed, the inspector expressly stated that he did not test the brakes. Accordingly, I conclude all three systems were working and that the boom was secured within the meaning of the standard.
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ORDER

It is Ordered that the penalty petition be withdrawn with respect to Citation No. 1043930.

It is Ordered that the operator pay $280 with respect to Citation Nos. 1043927, 1043928, 1043931, 1043932 and 1043933 within 30 days from the date of this decision.

It is Ordered that Citation No. 1043934 be Vacated and that Notice of Contest PENN 81-169-R be Granted.

Paul Merlin
Chief Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

~FOOTNOTE_ONE
1 At the hearing counsel agreed to the admission of all documentary exhibits. However, upon receipt of the administrative transcript I found that the last page of MSHA Exh. No. 2 was missing. This page was a photocopy of a picture of the type of dragline involved. During the hearing, witnesses had identified various parts of the machine by marking them with letters. By letter dated April 9, 1982, the Solicitor has submitted another photocopy which he and operator's attorney have marked and which they have stipulated is a true and correct copy of the missing page. I accept the stipulation and the photocopy offered by counsel is hereby made part of the record as a true and correct copy.