Rochester & Pittsburgh Coal

Plain-English summary

Rochester & Pittsburgh Coal contested citations issued at its Greenwich Collieries No. 2 Mine after an inspector saw miners unloading metal pipes and cylindrical objects from an elevator. On remand from the Commission, Judge Avram Weisberger examined whether the safeguard specifically identified a transportation hazard and whether the operator violated it by transporting a dolly. He found that the safeguard was validly issued, but it did not identify the hazard with enough specificity and the dolly was outside the safeguard's narrow scope. The notices of contest were sustained and the cited violations were dismissed.

Decision snapshot

• Governing provision: 30 U.S.C. § 811
• Outcome: The notices of contest were sustained, and the safeguard violation citations were dismissed.
• Key point: Mine safeguards must identify the particular hazard and the conduct required to remedy it, and they are strictly construed.

Full text (FMSHRC public release)

ROCHESTER & PITTSBURGH COAL : CONTEST PROCEEDINGS
Contestant :
: Docket No. PENN 88-309-R
v. : Citation No. 2889075; 8/24/88
:
SECRETARY OF LABOR, : Docket No. PENN 88-310-R
MINE SAFETY AND HEALTH : Citation No. 2889067; 8/24/88
ADMINISTRATION (MSHA), :
Respondent : Greenwich Collieries No. 2
: Mine
:
: Mine ID 36-02404

                     DECISION ON REMAND

Before: Judge Weisberger

 The Commission remanded this case to me for further

Proceedings consistent with its decision, Rochester and
Pittsburgh Coal Company, 14 FMSHRC 37 (1992)). On February 5,
1992, in a telephone conference call with counsel for both
parties, counsel indicated, that in the event the issues raised
by the Commission's Decision cannot be settled, briefs will be
filed by April 6, 1992. On March 9, 1992, in a follow-up
telephone conference call with counsel with both parties, counsel
indicated their intention to rely on their previously filed post
hearing briefs and that supplemental briefs, if any, will be
filed by March 20, 1992. The Operator filed a brief on
March 19, 1992.

 The factual background of these cases is set forth in the

Commission's decision, Rochester and Pittsburgh, supra, at 38-40,
and need not be repeated here. In its Decision, the Commission,
Rochester and Pittsburgh, supra, at 41, directed as follows:

        The judge should set forth findings and
   conclusions as to whether the Secretary proved that the
   disputed safeguard was based on the judgment of the
   inspector as to the specific conditions at Mine No. 2
   and on a determination by the inspector that a
   transportation hazard existed that was to be remedied
   by the action prescribed in the safeguard. Taking into
   consideration the principles announced in SOCCO I, the
   judge should determine whether the safeguard notice
   "identif[ied] with specificity the nature of the hazard

   at which it [was] directed and the conduct required of
   the operator to remedy such hazard." 7 FMSHRC at 512.
   If the judge finds the safeguard to have been validly
   issued, he should resolve the question of whether R&P
   violated the safeguard. If the judge determines there
   were violations, he should then consider whether the
   violations were of a significant and substantial nature
   and should assess appropriate civil penalties.

                             I.

 Whether the safeguard was based on the judgment of the

inspector as to the specific conditions at Mine No. 2.

 The evidence is not controverted that the safeguard in issue

was issued by Neven Davis, an MSHA inspector, on May 18, 1988, as
a result of having observed 2 miners unloading from an elevator,
4 or 5 metal pipes about 2 inches in diameter, and between 2 to 4
feet in length. He also had observed two cylindrical objects
about an half foot high on the floor of the elevator. Hence, I
conclude that the issued safeguard, which refers to these
objects, and requires that no person shall be transported on
cages or elevators with equipment, supplies, or other materials,
was therefore based on the judgment of the inspector as to the
specific conditions at Mine No. 2.

                             II.

 Whether the safeguard at issue was based on a determination

by the inspector that a transportation hazard existed that was to
be remedied by the action prescribed in the safeguard.

 Davis testified, with regard to the hazard that necessitated

the issuance of the safeguard, as follows: "we have metal
objects there and these elevators have been known to speed up or
slow down at times, thereby creating more or less the hazard of
these pipes moving or flying and then striking anybody riding the
elevator with this equipment on at this time." [sic] (Tr. 23)
Based on this testimony that has not been either rebutted,
impeached, or contradicted, I conclude that the safeguard was
issued based on the determination by Davis that a transportation
hazard existed that was to be remedied by the action prescribed
by the safeguard i.e. prohibiting persons from being transported
on an elevator with equipment supplies or other materials, aside
from the carrying of small hand tools, surveying instruments, or
technical devices.

                            III.

 Whether the safeguard notice identified with specificity the

nature of the hazard at which it was directed and the conduct
required of the operator to remedy such hazard, and whether the
operator violated the safeguard.

 In Southern Ohio Coal Company ("SOCCO I"), 7 FMSHRC 509

(April 1985), a case involving the issue of whether a notice to
provide a safeguard was violated, the Commission, at 512, held as
follows: "... we hold that a safeguard notice must identify with
specificity the nature of the hazard at which it is directed and
the conduct required of the operator to remedy such hazard. We
further hold that in interpreting a safeguard a narrow
construction of the terms of the safeguard and its intended reach
is required." The Commission, in SOCCO I, supra, did not analyze
the wording of the safeguard at issue, but rather focused on
whether the specific conditions referred to in the safeguard
should have put the operator on notice that the specific
conditions cited in citation at issue fell within the safeguard's
prohibitions. In this connection, the Commission concluded that
the citation subsequently issued for an accumulation of water in
a travelway, did not fall within the safeguard's prohibition
which referred to fallen rocks and cement blocks, and required 24
inches of clearance on both sides of a conveyor belt.

  In Green River Coal Co Inc., 14 FMSHRC 43 (January 1992) a

safeguard had been issued by an MSHA inspector requiring 24
inches clearance on each side of the belt, as a result of having
observed roof support timbers that had been installed too close
to the belt. Subsequently, on the basis of this safeguard, the
inspector issued a citation alleging that 24 inches of clearance
had not been provided due to an obstruction caused by a roof
fall.

 The Commission, in Green River, supra in referred to its

decision in SOCCO I, supra, where the safeguard had been issued
to address an obstruction caused by cement blocks and rocks, and
took cognizance of its statement in SOCCO I, supra, "...that
further instances of physical obstructions, whether rocks, cement
blocks, construction materials, mine equipment, or debris, would
fall within the scope of the safeguard" (7 FMSHRC at 513). In
this connection, the Commission explicitly stated that its
disagreement with the following argument of the Secretary:
"...because the safeguard notice and citation in this case cover
`physical obstructions', roof support timbers and fallen rock,
the citation was validly issued... ." (Green River, supra at 46).
Instead, the Commission reiterated its explanation in SOCCO I,
supra, that "...strict construction of safeguards is premised
upon the unique process by which safeguards are issued." (Green
River, supra, at 46).

 In the same fashion, the Commission, in Green River, supra,

at 47, took cognizance of the inspector's belief "...that
whenever a clear travelway was not provided for whatever reason,
he should issue a citation, even though an obstruction caused by
fallen rock was not specifically addressed in the safeguard
notice." However, the Commission concluded, as it did in
SOCCO I, that a safeguard "...must identify with specificity the
nature of the hazard against which it is directed and the conduct
required of the operator to remedy the hazard."
(Green River, supra, at 47).

 In addressing the directives of the Commission on remand,

and following the analysis of the Commission in SOCCO I, supra,
and Green River, supra, I conclude that the Safeguard herein did
not identify with specificity the nature of the hazard against
which it was directed. The safeguard does not explicitly set
forth any hazard.(Footnote 1) Further, even if it be assumed
that the hazards described are the pipes and cylindrical objects
themselves, the safeguard, rather than prohibiting these specific
hazards, instead proscribes a broad category of equipment,
supplies, or other materials. I agree with the position of the
Contestant, that if the Secretary believes that men should not be
transported with equipment supplies and other materials, the
proper procedure is to promulgate a mandatory standard under
section 101 of the Federal Mine Safety and Health Act of 1977. I
also do not find that the exclusion of the carrying of small hand
tools, surveying instruments, or technical devices from the
provisions of the safeguard, renders the prohibition of
equipment, supplies, or other materials sufficiently specific to
validate the safeguard. In addition, given the strict
construction to be accorded the safeguard, I also conclude that a
dolly approximately two feet high, tapered toward its rectangular
base that was approximately one foot by two feet, is not within
the scope of the prohibition of the safeguard which referred to
metal pipes and "large" cylindrical objects.

1The objects mentioned in the safeguard i.e. metal pipes and
cylindrical objects, are not hazards per se, as Davis, in
describing the hazard involved in transporting this equipment in
elevator with persons, described the creation of a hazard of the
pipes moving and hitting the person in the elevator as a
consequence of the elevator speeding up or slowing down. He did
not describe any hazard of the pipes or cylindrical objects per
se. Also, I note that in SOCCO I, supra the Commission did
not indicate that the objects referred to in the safeguard i.e.
the presence of cement blocks and rocks, constituted a hazard per
se. To the contrary, the Commission recognized that the objects
themselves did not constitute the hazard, but the hazard was that
of stumbling. In this connection the Commission stated as
follows: "The presence of these solid objects in the walkway
would present an obvious stumbling hazard and depending on the
amount of material or debris, could prevent passage altogether."
SOCCO I, supra at 513.

 For all the above reasons I conclude that although the

safeguard was validly issued, Contestant herein did not violate
the safeguard. Accordingly I find that the notices of contest
herein shall be sustained, and that Citation Nos. 2899095, and
2889167 be DISMISSED.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Carl Charneski, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

Joseph A. Yuhas, Esq., Tanoma Mining Company, RD #1, Box 40,
Barnesboro, PA 15714 (Certified Mail)

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