Cyprus Emerald Resources Corporation
Cyprus Emerald Resources Corporation (FMSHRC PENN 89-194 and consolidated dockets): Mixed ruling on safety citations, orders, and penalties
Apply this to your situation
This order from 1989 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Cyprus Emerald Resources operated the Emerald No. 1 coal mine, where MSHA cited walkway hazards, equipment conditions, and dozer operations around coal feeders. Judge George A. Koutras found a violation involving obstructions in a travelway, modified the related order to a section 104(a) citation, affirmed the significant-and-substantial finding, and assessed a $400 penalty. He vacated the citation concerning dozers operating near feeders and vacated the related imminent-danger order. The decision also approved settlements for three other violations, resulting in total assessments of $1,575.
Decision snapshot
- Cited standards: 30 C.F.R. § 77.205(b), 30 C.F.R. § 77.209, 30 C.F.R. § 77.400, 30 C.F.R. § 77.404(a), 30 C.F.R. § 77.1607(bb)
- Outcome: The consolidated case had a mixed result, with one order modified and affirmed in part, one citation and one imminent-danger order vacated, and three settlements approved. Total assessments were $1,575.
- Key point: The evidence supported a travelway violation, but it did not establish the alleged dozer practice or an imminent danger around the coal feeders.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. CYPRUS EMERALD RESOURCES
DDATE:
19891226
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 89-194
PETITIONER A.C. No. 36-05466-03687
v. Emerald No. 1 Mine
CYPRUS EMERALD RESOURCES
CORPORATION,
RESPONDENT
CYPRUS EMERALD RESOURCES CONTEST PROCEEDINGS
CORPORATION,
CONTESTANT Docket No. PENN 89-45-R
Citation No. 3087308; 8/30/88
v.
Docket No. PENN 88-318-R
SECRETARY OF LABOR, Order No. 3087446; 8/31/88
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 88-325-R
RESPONDENT Order No. 3087309; 8/30/88
Emerald No. 1 Mine
Mine ID 36-05466
DECISIONS
Appearances: Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner/Respondent;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the
Respondent/Contestant.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern Notices of Contest
filed by the contestant (Cyprus) against MSHA pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 815(d), challenging the legality of the captioned
citation and orders. Docket No. PENN 89-194, concerns proposed
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civil penalty assessments filed by MSHA against Cyprus seeking
civil penalty assessments for five alleged violations of certain
mandatory safety standards found in Part 77, Title 30, Code of
Federal Regulations. Cyprus filed timely answers denying the
alleged violations, and three of the alleged violations were
subsequently settled by the parties (section 104(a) Citation Nos.
3087305 and 3087444, and section 104(d)(2) Order No. 3087600).
Docket No. PENN 88-318-R, concerns a Notice of Contest
challenging the legality of a section 104(d)(2) Order No.
3087446, with special "S&S" findings, issued on August 31, 1988,
and citing an alleged violation of mandatory safety standard 30
C.F.R. 77.205(b).
Docket No. PENN 89-45, concerns a Notice of Contest
challenging the legality of a section 104(a) Citation No.
3087308, with special "S&S" findings, issued on August 30, 1988,
and citing an alleged violation of 30 C.F.R. 77.209. Docket No.
PENN 88-325-R concerns a challenge to a section 107(a) Imminent
Danger Order No. 3087309, issued on August 30, 1988, in
conjunction with the section 104(a) Citation No. 3087308.
Hearings were held in Washington, Pennsylvania, and the
parties filed posthearing briefs. I have considered their
respective arguments in the course of my adjudication of these
matters.
Issues
The issues presented in these proceedings include the
following: (1) whether Cyprus violated the cited mandatory safety
standards; (2) whether the alleged violations were significant
and substantial (S&S); (3) whether the alleged violation cited in
the section 104(d)(2) order resulted from an unwarrantable
failure by Cyprus to comply with the cited standard; and (4)
whether the condition or practice cited in the contested imminent
danger order was in fact an imminent danger. Assuming the
violations are established, the question next presented is the
appropriate civil penalties to be assessed pursuant to the civil
penalty assessment criteria found in section 110(i) of the Act.
Additional issues raised by the parties are identified and
disposed of in the course of the adjudication of these cases.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301, et seq
2. Sections 110(a), 110(i), 104(d), 105(d), and 107(a) of
the Act.
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3. Commission Rules, 29 C.F.R. 2700.1, et seq.
Stipulations
1. The subject mine is owned and operated by Cyprus,
and it is subject to the jurisdiction of the Act.
2. The presiding judge has jurisdiction to hear and
decide these cases.
3. The contested citation and orders were properly
served on Cyprus by a duly authorized representative of
the Secretary of Labor (MSHA).
4. The parties agreed to the authenticity of all
documents received in evidence in these proceedings,
but not to the truth of the matters asserted therein.
5. The history of prior violations for the subject mine
is reflected in an MSHA computer print-out received in
evidence in a prior civil penalty proceeding (Docket
No. PENN 88-287).
6. The annual coal production for Cyprus during the
relevant time period in question in these proceedings
is 1.8 million tons, and Cyprus may be considered a
large operator.
7. The proposed civil penalty assessments for the
contested violations will not adversely affect the
ability of Cyprus to continue in business.
8. All of the contested alleged violations were timely
abated by Cyprus in good faith.
9. There were no intervening clean inspections between
the issuance of the contested section 104(d)(2) order
and a previously issued section 104(d)(2) order.
Settlements - Docket No. PENN 85-194
Section 104(a) "S&S" Citation No. 3087305, was issued on
August 30, 1988, in conjunction with a section 107(a) imminent
danger order, and the inspector cited a violation of 30 C.F.R.
77.400, because a cyclone fence being used to prevent persons
from entering an area under the counterweight for the No. 2
stacker belt conveyor was inadequate. MSHA proposed a civil
penalty assessment of $800 for this alleged violation.
The parties filed a proposal to settle this alleged
violation, and in support of the proposed settlement, MSHA stated that
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the inspector was concerned that persons would walk over the coal
stock pile and go underneath the counterweight and be struck by
the counterweight. However, MSHA asserted that normal movement of
the counterweight would not bring it in contact with persons
below it, the belt and pulley structure were only 2 years old and
in good condition, the counterweight was at least 30 feet above
the level of the coal on the day the order was issued, and there
was a sign posted that indicated that the area was restricted.
Under the circumstances, MSHA vacated the imminent danger order,
and the parties agreed to settle the alleged violation noted in
the citation for a reduced civil penalty assessment of $400.
Section 104(d)(2) "S&S" Order No. 3087600, was issued on
August 30, 1988, and the inspector cited a violation of 30 C.F.R.
77.1607(bb), after finding an inoperable start up alarm for th
No. 1 belt between the No. 1 stacker and the coal transfer
building. MSHA proposed a civil penalty assessment of $850 for
this alleged violation.
The parties filed a proposed settlement for this alleged
violation, and in support of the settlement, MSHA stated that
additional evidence established that the condition cited was
caused by an "isolated output card" that had gone bad, and there
is no evidence as to how long the bad output card had existed
before the inspector found it. MSHA concluded that there was
insufficient evidence of an unwarrantable failure by the
respondent to comply with the cited standard, and the order was
modified to a section 104(a) "S&S" citation. The parties agreed
to settle this alleged violation for a reduced civil penalty
assessment of $450.
Section 104(a) "S&S" Citation No. 3087444, was issued on
August 31, 1988, in conjunction with a section 107(a) imminent
danger order, and the inspector cited a violation of 30 C.F.R.
77.404(a), after finding that an electrical junction box
supplying power to a boiler heater located on the third floor of
the preparation plant was not maintained in a safe operating
condition in that openings in the box had allowed water and
moisture to enter the box. MSHA proposed a civil penalty
assessment of $650 for this violation.
The parties filed a proposed settlement for this alleged
violation, and in support of the settlement MSHA stated that
there was insufficient evidence that an accident would occur if
normal mining operations had continued. MSHA stated further that
although a person could be shocked if they came in contact with
the box, it was mounted on a wall 10 to 12 feet off the ground,
and the cables were protected by an adequate ground fault system.
Under the circumstances, MSHA vacated the imminent danger order,
and the parties agreed to settle the alleged violation noted in
the citation for a reduced civil penalty assessment of $325.
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In further support of the proposed settlement disposition of the
aforementioned citations, MSHA submitted information pertaining
to the six statutory civil penalty criteria found in section
110(i) of the Act. After careful and consideration of the
arguments presented in support of the proposed settlement
disposition of these violations, I conclude and find that the
settlements are reasonable and in the public interest.
Accordingly, pursuant to Commission Rule 30, 29 C.F.R. 2700.30,
the settlements ARE APPROVED.
Docket No. PENN 88-318-R
This case concerns a contested section 104(d)(2) "S&S" Order
No. 3087446, issued by MSHA Inspector Charles Pogue on August 31,
1988. The inspector cited an alleged violation of mandatory
safety standard 30 C.F.R. 77.205(b), and the condition or
practice cited in the order states as follows: "Loose coal, two
wash down hoses, 21 feet and 17 feet in length, 6 supply
structure springs, and coal dust 24 inches in depth was permitted
to accumulate in the walkways of the refuse belt and 300 ton bin
building."
The cited standard, section 77.205(b), provides as follows:
"Travelways and platforms or other means of access to areas where
persons are required to travel or work, shall be kept clear of
all extraneous material and other stumbling or slipping hazards."
The particular mine areas that are the subject of the order
are the preparation plant building, a 300 ton refuse bin
building, which is a separate building, and an inclined refuse
belt conveyor which connected the two buildings (Exhibit G-6).
Although there were actually two belts, one of them had been out
of service for several years, and the cited belt area in question
was used as a refuse belt. The belt was an enclosed structure,
with an adjacent walkway of approximately 24 inches wide, and it
was approximately 232 feet long, and was equipped with a handrail
and lighting.
In support of the cited conditions, MSHA presented the
testimony of Inspector Pogue, and the UMWA walkaround
representative Keith Higginbotham, who accompanied the inspector
during his inspection on August 31, 1988. Mr. Pogue and Mr.
Higginbotham confirmed that they personally observed the
conditions which prompted Mr. Pogue to issue the order.
In defense of the alleged violation, Cyprus presented the
testimony of preparation plant foreman Ronald D. Kerr, and safety
representative Jack B. Monas. Mr. Kerr confirmed that he did not
accompany the inspector during his inspection, and that he did
not observe the cited conditions (Tr. 126). Mr. Monas confirmed
that he was involved in accompanying MSHA inspectors during the
course of an MSHA inspection of the preparation plant which began
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on August 26, 1988, and that he was at the plant when Inspector
Pogue conducted his inspection on August 31, 1988. He further
confirmed that he observed the accumulations of refuse materials
at the lower part of the belt walkway "at the door as the walkway
exited" the building, but he could not recall seeing any
materials from the door back to the tail roller. He confirmed
that he observed these materials after the order was issued,
before any clean up operations were started, and observed a
closure tag on the door. He believed that the conditions he
observed were the same conditions observed by the inspector. Mr.
Monas further confirmed that he could not see the cited hoses
from the location of the accumulated materials, and that he did
not walk up the belt or into the other areas cited by the
inspector (Tr. 173-175).
Inspector Pogue testified that he observed loose coal refuse
materials in the walkway in and around the walkway around the
tail roller of the refuse belt. He stated that the materials were
the size of golf balls and baseballs, and that he and Mr.
Higginbotham had to walk through and over the accumulations as
they walked up the inclined beltline. As he proceeded up the belt
walkway, Mr. Pogue observed a wash down hose approximately one
and one half inches in diameter, and 17 feet long, and it was
connected to a water tap. Upon proceeding further up the walkway,
Mr. Pogue observed another wash down hose approximately 21 feet
long, and it too was connected to a water tap. He confirmed that
both hoses were "scattered back and forth across the walkway"
(Tr. 10-14). He also confirmed that they are usually hung on a
hanger (Tr. 45).
Mr. Higginbotham confirmed that he also observed the
accumulated coal refuse materials and hoses. He described the
accumulations materials as "lump sized coal, probably the size of
your fist down to a golf ball size," and stated that they were
"scattered throughout the walkway going up the ramp," and that
they extended for a distance of approximately 15 feet up the
inclined walkway (Tr. 87). He stated that the hoses were "laid
clear across the walkway in a very unorderly fashion," and "were
snaked through," and that he had to walk on or over the hoses to
pass (Tr. 88).
Mr. Pogue further testified that after observing the hoses,
he proceeded inside the 300 ton refuse bin building to an
"elevated walkway or platform" which was adjacent to the refuse
belt roller. He gained access to this platform area by climbing
up four to five steps similar to "step ladder rungs," and he
described the platform as an area 10 feet by 10 feet, with an
enclosed railing around it. He stated that there was a safety
chain in place across the opening at the top of the platform, and
that he had to unclip it to walk on the platform (Tr. 18, 21).
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Mr. Pogue stated that he observed six spring mechanisms on the
platform which were not stacked or set aside, and he described
the springs as the approximate size of a basketball or volleyball
(Tr. 19). Mr. Higginbotham confirmed that he also observed the
springs, and he indicated that there was "grease and stuff all
over the place" and that the springs were obstructing the walkway
(Tr. 88).
Mr. Pogue stated that after leaving the platform area, he
proceeded to the floor below, and entered through a door on the
side of the building to a walkway next to the counterweight where
he found an accumulation of fine refuse material approximately 24
inches deep and 24 inches in width in the walkway. He stated that
"you had to kind of step over it in order to get on the back side
of the top floor of this bin area" (Tr. 16). Mr. Higginbotham
confirmed that he also observed the accumulations (Tr. 89).
Cyprus' counsel did not dispute the existence of the cited
materials observed by the inspector and Mr. Higginbotham at the
four locations in question (Tr. 118). Mr. Pogue confirmed that he
cited a violation of section 77.205(b) because it requires that
walkways be kept free of stumbling or slipping hazards where men
are required to work or travel (Tr. 20). He believed that the
accumulations of refuse materials adjacent to the belt tail
assembly and the hoses in the walkway constituted a stumbling and
slipping hazards because one had to walk through the
accumulations and step over the hoses while walking along the
walkway (Tr. 21). He further believed that the springs on the
platform could cause a tripping hazard to someone on the elevated
platform, and that if the safety chain were not put back in place
someone could possibly fall through the platform opening (Tr.
21).
Although plant foreman Kerr's unrebutted credible testimony
reflects that the top belt conveyor had been taken out of service
in 1984, he confirmed that the bottom refuse belt is used
continuously when the plant is in operation (Tr. 128). Mr. Kerr
further confirmed that the hoses in question are used to wash
down debris which collects under the belt, and that the belt is
routinely washed down when the plant and belt are in operation
(Tr. 139). Mr. Higginbotham, who testified that he had walked the
belt on prior occasions, testified that the belt walkway is used
by cleanup, maintenance, and inspection personnel, and Mr. Pogue
agreed that this was the case (Tr. 16, 18, 93). Mr. Kerr conceded
that cleaning and maintenance personnel used the belt walkway,
and that he and other employees used it as an accessway to the
bin building.
With regard to the cited walkway area in the bin building,
Mr. Pogue and Mr. Higginbotham believed that the walkway was used
by maintenance and inspection personnel, and Mr. Kerr confirmed
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that the walkway provided an access way for maintenance personnel
servicing the refuse belt, or for cleanup personnel washing down
the area (Tr. 19, 94, 140-141).
Findings and Conclusions
Fact of Violation
I conclude and find that three of the cited areas, namely,
the refuse belt walkway where the inspector found the accumulated
coal refuse materials, the walkway areas where the inspector
found the two hoses strewn across the walkway, and the walkway in
the refuse bin building where the inspector found accumulated
coal refuse, were all travelway areas which provided access to
areas where persons were required to travel and work, and were
therefore areas which fall within the scope of section 77.205(b).
I further conclude and find that MSHA has established by a
preponderance of the evidence that the cited materials which were
found in these travelways constituted extraneous materials which
presented stumbling or slipping hazards, and that the failure by
Cyprus to keep the cited areas clear of these materials
constitutes a violation of section 77.205(b). Accordingly,
insofar as these cited locations are concerned, the inspector's
finding that a violation occurred IS AFFIRMED.
With regard to the cited platform area in the refuse bin
building, Cyprus argues that since the platform had not been in
use since 1984, when the second belt was taken out of service, it
does not fall within the purview of section 77.205(b), since no
one is required to work on, or travel on, the platform (Tr. 124).
With regard to the use of the platform, Mr. Higginbotham believed
that it was probably used on a regular basis for maintenance and
greasing of the belt, and for the servicing of a compressor
located in the building (Tr. 94). Mr. Pogue believed that the
platform would be used for routine examinations of equipment, and
to provide a work platform for maintenance personnel (Tr. 19).
However, Mr. Pogue could not recall the last time anyone may have
been on the platform, and he confirmed that he made no inquiries
of management as to where the springs came from, even though he
knew that the plant foreman was in charge of the area and should
have known where they came from, how long they were on the
platform, and that a maintenance record may have given him such
information (Tr. 65). When asked to explain why he made no
further inquiries, Mr. Pogue stated that he relied on the
presence of fine dust on the springs which he believed was
"something that can give you that indication that it's been left
to lay there" (Tr. 66). Mr. Pogue confirmed that the platform was
equipped with a top railing, a middle railing, and a toe board,
as well as a safety chain blocking off the platform access ladder
(Tr. 55).
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Mr. Kerr, whose testimony I find more credible than that of Mr.
Pogue and Mr. Higginbotham, testified that the platform was once
used for the head drive of the filter cake refuse belt which had
been taken out of service in 1984, and that the springs had been
used for a mechanical belt wiper. Mr. Kerr knew of no reason why
anyone would have a need to be on the platform, and he confirmed
that there is no compressor in the building, as claimed by Mr.
Higginbotham (Tr. 53, 159). Although there was a hydraulic unit
in the building, Mr. Kerr stated that it was located at the lower
level of the bin building, and that it was located in a room at
the bin bottom (Tr. 160). He speculated that someone may have
stored the springs on the platform, and he had no personal
knowledge where the springs came from. He reiterated that the
platform was not used to service or maintain the belt which was
in use (Tr. 164).
After careful review and consideration of all of the
evidence, I conclude and find that MSHA has failed to establish
that the cited platform area constituted a walkway or platform
area where persons were required to work and travel. To the
contrary, Cyprus' evidence, which I find credible and probative,
establishes that the cited area, which had previously been used
as a means of access to equipment associated with one of the
belts, has not been used since the belt was taken out of service
in 1984. Accordingly, I find that the platform in question does
not fall within the purview of section 77.205(b), and that
insofar as that particular location is concerned, a violation has
not been established. That portion of the order which refers to
this platform IS VACATED.
The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector
should find that a violation of any mandatory standard
was caused by an unwarrantable failure to comply with
such standard if he determines that the operator
involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several recent decisions concerning the interpretation
and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
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that it means "aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a
violation of the Act." Energy Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company, 10
FMSHRC 249 (March 1988). Referring to its prior holding in the
Emery Mining case, the Commission stated as follows in
Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is
"inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the phrase
"unwarrantable failure." "Unwarrantable" is defined as
"not justifiable" or "inexcusable." "Failure" is
defined as "neglect of an assigned, expected, or
appropriate action." Webster's Third New International
Dictionary (Unabridged) 2514, 814 (1971) ("Webster's").
Comparatively, negligence is the failure to use such
care as a reasonably prudent and careful person would
use and is characterized by "inadvertence,"
"thoughtlessness," and "inattention." Black's Law
Dictionary 930-31 (5th ed. 1979). Conduct that is not
justifiable and inexcusable is the result of more than
inadvertence, thoughtlessness, or inattention. * * *
The issue here is whether or not Cyprus' failure to address
the cited conditions constituted aggravated conduct exceeding
ordinary negligence. Inspector Pogue testified that he based his
"high negligence" finding on his belief that Cyprus should have
taken some corrective action to prevent at least one of the cited
conditions from existing because the condition was readily
observable from the preparation plant (Tr. 25). When asked to
explain the basis for his unwarrantable failure finding, Mr.
Pogue stated as follows at (Tr. 25):
A. Well, previously, to make an inspection of this
area, I had inspected other areas of the surface
facility and I had found that there was four other
locations throughout the surface facility that had
obstructions in walkways that could result in slipping
or stumbling hazards. When I got to this location in
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the preparation plant and I could observe these
accumulations adjacent to the belt and going up the
belt conveyor system, it was just a condition that I
felt that the operator should have been aware of, and
that it's a highly traveled area and seemed to be that
it was reasonable for a person that would be traveling
through the area to observe the accumulations, at least
in the preparation plant and then just be able to look
up the conveyor and see the wash down hoses laying in
the conveyor walkway.
In support of Inspector Pogue's unwarrantable failure
finding, MSHA argues that the cited accumulations at the bottom
of the belt were readily observable from inside the preparation
plant, and that the cited hoses were visually obvious from the
bottom of the belt in the preparation plant. MSHA further argues
that the cited conditions had existed for some length of time,
that some of the conditions had existed for a protracted period
of time, and that given the amount of accumulated materials, and
the number of locations involved where significant stumbling
hazards existed for some length of time with no apparent attempts
to clean them up, the violation was serious and extensive. MSHA
also relies on the fact that the inspector had previously issued
other violations of section 77.205(b) several days prior to the
issuance of the contested order, and it concludes that these
prior citations indicates indifference to general cleanup
activities in travelways, or a serious lack of reasonable care,
and consequently, aggravated conduct.
One critical factor in support of Inspector Pogue's
unwarrantable failure finding, is his belief that some of the
cited conditions were readily visible from the third floor of the
preparation plant. The fact is that the only cited condition
which may have conceivably been observable from Mr. Pogue's
vantage point in the preparation plant itself was the accumulated
refuse material at the lower end, or tail piece, of the conveyor
belt (Tr. 38). Mr. Pogue conceded that the walkway location in
the bin building where he observed the accumulated refuse were
not observable from the preparation plant (Tr. 26). With regard
to the two hoses which were scattered across the belt walkway,
Mr. Pogue conceded that it was difficult to see the top of the
conveyor belt walkway enclosure (Tr. 26). I find no credible
evidence to support any conclusion that the second hose located
at the upper inclined end of the belt walkway was observable from
the preparation plant. With regard to the first hose located at
the lower end of the walkway, Mr. Pogue believed that it would
have been observable from the "general area of the tail roller"
looking up the belt from the preparation plant floor (Tr. 53,
62).
Mr. Pogue's further conclusion that it was reasonable to
expect anyone to readily observe the refuse accumulations at the
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base of the conveyor belt, and the hoses located on the inclined
portion of the belt walkway, was based on his opinion that these
areas were "highly traveled." I find no credible evidence to
support any such conclusion. Mr. Pogue made no apparent effort to
speak to anyone concerning any work which may have taken place
prior to the inspection, and he observed no one on the belt
walkway, or in any of the other cited locations. Further, no
testimony was forthcoming from the inspector with respect to any
plant activities which may have been taking place during the
inspection, and no testimony was forthcoming from the inspector
to establish the presence of anyone on the third floor of the
plant who may have observed the accumulations which Mr. Pogue
said he saw from this location. Mr. Higginbotham, who was with
Mr. Pogue, testified that while they were on the third floor of
the plant, they stopped to rest, and while leaning on the
handrail which was around the floor, they looked down and saw
what Mr. Higginbotham characterized as "obvious spillage." Mr.
Higginbotham conceded that had they not stopped to rest at that
particular location, they would have had no reason to look over
the rail, and that anyone simply walking by the area would not
have seen the spillage "unless you actually looked down at it"
(Tr. 90).
At page 12 of her posthearing brief, MSHA's counsel asserts
that the plant area where the cited accumulations were found "was
an active area." In support of this conclusion, counsel cites
transcript pages 11, 25, 38, 87-90. I have carefully reviewed
these transcript references, and I find no testimony to support
counsel's conclusions that the preparation plant was "active."
The fact that the inspector was in the plant conducting an
inspection does not necessarily establish that any active plant
processing work was taking place at the time of the inspection. I
assume counsel made this argument to support an inference that
since the plant was active, someone would reasonably be expected
to notice the accumulations. I reject any such notion. One
reasonable method for an inspector to determine whether anyone in
the plant was in a position to observe the accumulations is to
seek out witnesses and ask questions. Relying on a casual
observation made during a rest period while leaning over a hand
rail is hardly credible evidence that management indulged in
aggravated conduct because it should have observe the condition
and failed to do so.
The evidence in this case establishes that the plant and
conveyor belt in question were shutdown at the time of the
inspection, and that they had been shutdown for at least the week
of August 26, 1988. Plant foreman Kerr and walkaround
representative Higginbotham confirmed that this was the case, and
Mr. Kerr testified that no one from his shift was assigned to the
belt during the period of shutdown, and he confirmed that the
only work that he was aware of was clean up work and work to
abate several citations (Tr. 158-159, 165).
Page 14
~2582
Walkaround representative Higginbotham confirmed that he saw no
one on the belt walkway at the time of the inspection, and that
on the three to five prior occasions he has used the walkway, he
could recall seeing no one on the walkway other than an inspector
or management personnel (Tr. 107). He was of the opinion that the
hoses were left on the walkway since the last time it was washed
down, but he had no knowledge as to when they may have been last
used for this purpose (Tr. 107).
Mr. Pogue could not recall whether he had previously
inspected the cited belt conveyor, and he confirmed that he saw
no signs that anyone had been on the belt walkway recently, and
that the belt was not running when he inspected it. Although he
believed that he had checked to determine when the last monthly
electrical inspections were performed, he did not do so
"specifically for this area," and he could not recall when the
last electrical inspection was conducted in the cited area (Tr.
47). Mr. Pogue confirmed that he observed no one using the belt
walkway during his inspection and he saw no footprints in the
accumulated refuse or dust.
Plant foreman Kerr's unrebutted and credible testimony
reflects that when the plant is in operation, the conveyor belt
is not totally unattended, and that someone is required to be
there at some time over a 24-hour period (Tr. 152). Mr. Kerr
conceded that cleanup and maintenance personnel are on the
walkway, and that other employees, including himself, used the
belt walkway occasionally as an access way to the plant or refuse
bin building, and that he might use it once every 2 months. He
denied that the walkway is heavily travelled, and indicated that
it is only slightly used (Tr. 144, 147). Absent any evidence that
Mr. Pogue had ever visited or inspected the belt in the past, and
the fact that on the few occasions that Mr. Higginbotham was
there and saw no one on the belt other than an inspector or
management person, I give credence to Mr. Kerr's testimony and
find little support for the inspector's belief that since the
belt was heavily travelled, the conditions were readily
observable and obvious, and therefore support a finding of
aggravated conduct.
Mr. Pogue confirmed that no management representative was
with him when he conducted his inspection and observed the
conditions. He confirmed that when he issued the order, he found
no "written record" or other evidence to establish that
management had knowledge of the cited conditions prior to the
issuance of the order (Tr. 61). Although I recognize the fact
that such "hard evidence" may not be available, on the facts of
this case, the inspector apparently made no effort to review any
maintenance records, mine inspection reports, or to seek out any
available plant personnel to determine when anyone may have been present
Page 15
~2583
using the hoses, cleaning up around the belt tail piece, etc.
etc.
After careful consideration of all of the testimony on this
issue, I find no credible evidentiary support for MSHA's
assertion that the cited accumulations at the belt tail piece,
and the hoses on the walkway, were located in "heavily traveled"
areas, and were "readily observable" by management. I further
find and conclude that with respect to these factors, the
evidence presented does not establish aggravated conduct by
Cyprus. I take particular note of the following: When asked "what
you're saying about the unwarrantable failure is that management
should have known that it was there," Mr. Pogue responded
"exactly" (Tr. 60). In my view, negligence based on "should have
known" is something less than high negligence, and does not
amount to inexcusable or aggravated conduct.
Mr. Pogue identified copies of four previous citations which
he issued on August 26 and 29, 1988, during his inspection of the
mine, and in each instance he cited violations of section
77.205(b) (exhibits G-2 through G-5; Tr. 29-35). He confirmed
that he issued the citations for tripping hazards, but that the
areas cited where at different locations and in different
buildings from the areas which he cited in the contested order
(Tr. 36).
Mr. Pogue confirmed that the prior citations on the slope
belt occurred "a good distance away" from the preparation plant,
and although he believed that Cyprus was responsible for them, he
stated that Cyprus did not cause them, and that "there was
contractors in there on some of them" performing work at the
plant (Tr. 52).
Mr. Pogue was asked about his prior deposition in January,
1989, and his response to a question concerning the basis for his
unwarrantable failure finding in this case. He confirmed that he
stated that "I felt that because if the conditions on the walkway
in relationship to the plant, that a foreman should have seen the
condition being inside the plant" (Tr. 56). When asked whether he
took into consideration the prior citations at the time he issued
the order in this case, Mr. Pogue responded "to a degree, yes."
However, he conceded that he did not mention these prior
citations at the time he gave his deposition, and could not
recall when he mentioned these citations to MSHA's counsel, but
did not believe he mentioned them in preparation for the instant
case (Tr. 57). Mr. Pogue confirmed that when he gave his
deposition, he stated that the basis for the order was the fact
that the cited condition could be observed by someone from
management, "plus the amount of area that was covered" (Tr. 57).
Page 16
~2584
When asked what role the prior citations played in his
unwarrantable failure finding at the time he issued the order,
Mr. Pogue responded as follows at (Tr. 67):
THE WITNESS: Probably because of the fact that the
management, there should be some effort on management
to make a follow-up examination of the work area after
a job is completed or in progress that gives workmen
and even company officials a safe travel way in and
around the surface area of the plant, and they know
these areas that are under construction or maintenance
is being performed in them.
Mr. Pogue stated that at the time he issued the order, he
recognized that the operator had a problem with the general clean
up of work sites during and after routine maintenance (Tr. 72).
He conceded that some of these problems were caused by
contractors, and although he confirmed that he has cited
contractors in the past, he did not cite them for the prior
violations in question because the contractor was not at the mine
and had left the job, and the obligation for the violations was
on the operator (Tr. 72).
Plant foreman Kerr confirmed that two of the prior citations
were the result of a painting contractor's removal of certain
materials from a building which was being sandblasted and
painted, and that one of the citations concerned some material
which was removed from an area where a counterweight was located
so that access could be gained to the counterweight while
maintenance was being performed (Tr. 142-143).
I take note of the fact that three of the tripping hazard
violations previously issued by Inspector Pogue on August 26,
1988, were all section 104(a) citations. Three days later, on
August 29, 1988, he issued another tripping hazard violation, and
it too was a section 104(a) citation. In each instance, the
inspector made a finding of "moderate" negligence. In the instant
case, MSHA asserts that the fact that four other locations were
cited in such a short period of time indicates a lack of
indifference by Cyprus to general cleanup activities in
travelways, and constitutes aggravated conduct.
In my view, if the basis for the inspector's unwarrantable
finding with respect to the contested order was the fact that he
had previously issued four citations for violations of the same
standard shortly before the order was issued, then logic would
dictate that he would follow the same procedure in connection
with the issuance of the prior citations. The three section
104(a) citations were issued by Mr. Pogue on August 26, 1989, for
violations of section 77.205(b). Three days later, on August 29,
1989, he found another violation of section 77.205(b), but
instead of issuing an unwarrantable failure citation, he issued
Page 17
~2585
another section 104(a) citation, with a finding of moderate
negligence. I find this to be rather contradictory and
inconsistent, and it raises doubts in my mind that the prior
citations weighed heavily on the inspector when he made his
unwarrantable failure finding in this case. In any event, I
cannot conclude that the prior citations which were issued for
different conditions, and at different locations far removed from
the scene of the conditions which prevailed at the time of the
inspection on August 31, 1988, may serve to support a finding of
aggravated conduct. In my view, in order to support an
unwarrantable failure order, which is a severe sanction, an
inspector must make an informed judgment, on a case-by-case
basis, with respect to the prevailing conditions which he
believes justifies such an order. On the facts of the instant
case, I reject MSHA's attempts to justify the order on the basis
of prior violations issued for the same standard.
With regard to the time factor, Mr. Pogue was of the opinion
that the cited conditions had existed for at least 5-work days
prior to his inspection, and he based this on his observation of
fine refuse dust deposited on the accumulated refuse materials
along the belt walkway. The existence of this fine dust led him
to conclude that the conveyor had been running and "this material
had been left deposited in the walkway and on the platform for a
period of time" (Tr. 28).
Mr. Higginbotham was of the opinion that the coal refuse
accumulations at the belt tail had been there for "a lengthy
period of time," "days," "roughly a week," because the area was
dusty (Tr. 99). He conceded that refuse dust does accumulate on
the belt, but indicated that the belt is required to be cleaned
when it gets dirty and that accumulations are not permitted.
Since the hoses were also covered with dust, he believed they
were left in the walkway for "at least" or "probably a week to
two weeks" (Tr. 101). With regard to the accumulations in the bin
building, he stated that the belt is not used every day or
regularly, but "probably weekly," but he did not know for certain
(Tr. 103).
MSHA's assertion that the cited accumulations presented
extensive and significant obstructions must be taken in context.
The accumulations of refuse materials at the tail piece of the
refuse belt extended a distance of approximately 10 to 15 feet
along a belt line which was approximately 232 feet long, and the
accumulations on the walkway in the bin building were described
by Inspector Pogue as 24 inches deep and 24 inches wide. Mr.
Higginbotham stated that they extended for a distance of 2-1/2
feet, 6 inches longer than Mr. Pogue's estimate. Since Mr. Pogue
indicated that "you had to kind of step over it," I can only
conclude that the pile was as described by the inspector, and
that the accumulations did not extend along the entire length of
the walkway.
Page 18
~2586
With regard to the hoses, Mr. Higginbotham stated that he stepped
on top of the hoses to pass through the area, and although he
believed that a fall or slip were unavoidable, neither he or Mr.
Pogue expressed any difficulty in passing through the area where
the hoses were located. With regard to the accumulations at the
belt tail, Mr. Pogue stated that he had to walk through the
materials and over the larger coal and slate and Mr. Higginbotham
indicated that the larger pieces were "scattered throughout the
walkway."
After careful consideration of all of the evidence in this
case, I find no credible evidence to establish that the cited
accumulated materials in question had existed for any inordinate
period of time. Inspector Pogue had never previously visited the
belt area in question, and his reliance on the existence of dust
on the accumulations in support of his conclusion that the
materials had been present for at least a week is speculative at
best. Had he made further inquiry, rather than relying on a
rather cursory inspection of the belt areas, he may have found
more probative evidence to support a conclusion of aggravated
conduct. As for Mr. Higginbotham's testimony, I find it vague and
lacking in probative weight. He believed the accumulations on the
belt walkways were there "probably" or "roughly" for a "lengthy"
period of "days" or "weeks" simply because they were dusty. As
for the accumulations in the bin building, he had no idea as to
how often the belt was used which would have caused these
accumulations, and I find his testimony to be speculative and
unsupported by any facts.
On the basis of the foregoing findings and conclusions, I
conclude and find that the evidence advanced by MSHA in support
of the inspector's unwarrantable failure finding does not
establish that the failure by Cyprus to act was inexcusable or
constituted aggravated conduct within the guidelines established
by the Commission's line of cases with regard to this issue.
Accordingly, the inspector's finding in this regard IS VACATED,
and the contested order is modified to a section 104(a) citation.
Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
Page 19
~2587
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
Inspector Pogue believed that the accumulated coal refuse on
the walkways, and the hoses scattered across the two walkway
locations in question, constituted a significant and substantial
violation because anyone walking through those areas would be
exposed to a tripping or slipping hazard. In the event of such an
incident, he believed that the individual would suffer bumps,
bruises, a broken arm, or twisted back (Tr. 22). He further
believed that it was reasonably likely to expect that mine
personnel, such as a belt examiner or maintenance person, who may
be walking along the walkways would slip or fall over the
accumulated materials, and that the potential for an injury would
increase if the individual were carrying equipment or tools (Tr.
23). He confirmed that at least one person, the examiner or
maintenance person, would be exposed to the hazard (Tr. 38).
Mr. Higginbotham believed that the cited accumulated
materials presented a tripping or falling hazard, particularly
with respect to the belt walkway because it was inclined. He
confirmed that he stepped on top of a portion of the hoses, and
while he did not fall, he nonetheless believed that a fall was
"highly likely" and "almost unavoidable." In the event of a slip
Page 20
~2588
or fall, he believed that someone could "definitely break an
arm," and his principal concern for anyone walking through the
hoses and accumulated coal refuse materials on the inclined belt
was "your feet going out from under you" (Tr. 91-92).
Cyprus argues that the accumulated materials did not present
a significant and substantial hazard because the walkways were
not highly travelled, and that any hazard exposure would be
limited by the fact that the belt was not in operation and there
was little or no likelihood of injury. Cyprus argues further that
there is no testimony that the materials presented stumbling or
slipping hazards, and that the hoses were easily compressed when
stepped on, and that Mr. Monas testified that they presented no
stumbling hazard unless they were in a pile. Cyprus argues
further that there was adequate lighting and visibility along the
refuse belt walkway, and that lacking any credible evidence as to
how long the materials had existed, a significant and substantial
finding is inappropriate.
Cyprus' assertion that there is no testimony of any
stumbling or slipping hazards is not well taken. Inspector Pogue
and Mr. Higginbotham personally observed the accumulated
materials and gave credible testimony as to the existence of
these hazards. The fact that they did not fall or slip while
walking through and over the materials is irrelevant. They
obviously took care while walking through the area, but the same
may not be the case for anyone else casually walking along the
cited travelways in question.
While it is true that the refuse belt and plant were down at
the time of the inspection, plant foreman Kerr admitted that
during the course of normal operations, the belt is never left
unattended, and that someone is always present during any 24-hour
period. Further, the evidence establishes that cleanup or
maintenance personnel have occasion to walk the cited areas, and
the fact that there was another access route to the bin building
is immaterial. Mr. Kerr confirmed that the cited refuse belt
walkway was used as an accessway to and from the plant and bin
building, and that he used this route on occasion. The opinion by
Mr. Monas that the hoses would present a tripping hazard only if
they were piled up, rather than scattered, is rejected. In my
view, if the hoses were piled neatly at one location on the
walkway, they may pose less of a hazard since someone could
simply walk around the pile. However, since they were scattered
and "criss-crossed" on the walkway, I believe the hazard of
slipping or falling over them was increased.
The fact that there was no immediate hazard because the belt
was not in operation at the time of the inspection, and the fact
that Mr. Pogue and Mr. Higginbotham did not slip or fall while
Page 21
~2589
walking through and stepping over the cited material is
irrelevant to any determination of a significant and substantial
violation. See: Consolidation Coal Company, 6 FMSHRC 34, 37
(January 1984); U.S. Steel Mining Company, Inc., 6 FMSHRC 1369,
1376 (May 1984); R B J Coal Company, Inc., 8 FMSHRC 819, 820 (May
1986); Mathies Coal Company, 6 FMSHRC 1 (January 1984). In
Halfway Incorporated, 8 FMSHRC 8, 13 (January 1986), the
Commission upheld a significant and substantial finding
concerning a roof area which had not been supported with
supplemental support, and ruled that a reasonable likelihood of
injury existed despite the fact that miners were not directly
exposed to the hazard at the precise moment of the inspection. In
that case, the Commission stated as follows at 8 FMSHRC 12:
[T]he fact that a miner may not be directly exposed to
a safety hazard at the precise moment that an inspector
issues a citation is not determinative of whether a
reasonable likelihood for injury existed. The operative
time frame for making that determination must take into
account not only the pendency of the violative
condition prior to the citation, but also continued
normal mining operations. National Gypsum, supra, 3
FMSHRC at 825; U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984).
After careful consideration of all of the testimony and
evidence adduced in this case, I agree with the inspector's
significant and substantial finding. I conclude and find that the
cited accumulated materials at all three of the cited locations
in question posed a discrete stumbling or slipping hazard, and
that the hazards contributed to by these conditions would likely
result in an injury of a reasonably serious nature. Accordingly,
the inspector's significant and substantial finding IS AFFIRMED.
After consideration of the six statutory criteria found in
section 110(i) of the Act, I further conclude and find that the
violation was serious, that it resulted from ordinary negligence,
and that the conditions were subsequently abated in good faith by
Cyprus.
Docket Nos. PENN 89-45-R and PENN 88-325-R
These proceedings concern a contested section 104(a)
citation and section 107(a) imminent danger order issued on
August 30, 1988, by MSHA Inspector Joseph Koscho during an
inspection of Cyprus' surface coal preparation plant. The facts
establish that after the coal is cleaned and processed through
the preparation plant, it is transported by overhead belts for
storage at the No. 1 and No. 2 stackers, which are tall
cylindrical buildings surrounded by coal stockpiles. The
transported coal is dropped into the top of the stackers, and
when it reaches
Page 22
~2590
a certain level it is deposited onto a stockpile through openings
located on all sides of the stacker levels. Coal is removed from
the stockpiles by a series of feeders, designated A through F,
located under the stockpiles. In order to remove the coal by
these feeders, coal must be above the feeders or within an area
close enough to the feeders to permit gravity to bring it to the
feeders. The stockpiled coal which is fed through the feeders
drops onto a belt system in an underground tunnel below the
stackers and feeders, and it is transported away to be loaded
onto trains.
Cyprus utilizes bulldozers to push the stockpiled coal
toward the feeders and to compact and arrange the stockpile.
During the course of his inspection, Mr. Koscho, in the company
of UMWA safety representative Greg Shuba, and preparation plant
foreman Ronald Kerr, were walking on an overhead belt catwalk
between the No. 1 and No. 2 stackers. Although there were no
bulldozers operating on the stockpile at the time, the inspector
looked down and observed bulldozer tracks in the coal pile in
close proximity to the points that he believed would be directly
over the B and E feeders. The inspector observed what he believed
to be a depression in the coal where coal had been feeding into
the B feeder, and he estimated that the bulldozer tracks were
within 3 to 4 feet of the hole. The inspector also observed
bulldozer tracks and blade marks in close proximity to the E
feeder, and he concluded that these track and blade marks showed
that a bulldozer had reached across with its blade and run
backwards to smooth over the coal pile in front of the dozer. He
estimated the blade marks of the dozer to be 7 feet on the other
side of a depression over the E feeder, and he concluded that the
dozer had to have been over top of the feeder to be able to reach
this point.
After viewing the aforementioned tracks from the catwalk,
Mr. Koscho and Mr. Shuba came off the catwalk and walked onto the
coal pile to verify their observations. Mr. Kerr did not
accompany them onto the pile, and left the area on another
matter. After viewing the tracks from where he believed was a
safe distance, Mr. Koscho concluded that the tracks were no more
than 3 days old, and he was concerned that bulldozers were
operating in too close proximity to the feeders during the
stockpiling and reclaiming operations, and that the bulldozer
operators were at risk of becoming entrapped in the holes or
voids in the coal pile. Based on his observations of the track
and blade marks in the coal pile, Mr. Koscho issued an "S&S"
citation for an alleged violation of mandatory safety standard 20
C.F.R. 77.209, and in conjunction with that citation, he also
issued an imminent danger order citing Cyprus for operating
bulldozers over feeders, or too close to feeders. The section
104(a) Citation No. 3087308, issued by Mr. Koscho states as
follows:
Page 23
~2591
From evidence of the visual observation in the area of the
feeder, in the area of the No. 2 stacker, showed equipment is
coming in too close of a proximity of the feeder. The evidence at
the B feeder at the No. 2 stacker showed dozer tracks went over
the feeder or too close to the feeder to be a safe distance back
from the angle of repose at the feeder. At the No. 2 stacker E
feeder a dozer reached across the reclaim area above the feeder
for a distance of 7 feet and then set the dozer blade down to
drag back the blade, making a smooth surface. In doing this he
had to reach over the angle of repose at the E feeder.
The section 107(a) imminent danger Order No. 3087309, issued
by Mr. Koscho states as follows:
This is an order to prevent persons from exposing
themselves to the type of dangers evident by visual
observation in the area of the No. 2 stacker feeders.
Equipment is being operated too close or over the
feeders. Tracks over the B feeder shows that either the
equipment runs over the feeder or comes too close to
the feeder in that the tracks go into the angle of
repose. On the E feeder of the No. 2 stacker the
evidence shows that the push blade of a dozer was 7
feet to the opposite side of the feeder, set down on
coal and was dragged back for a smooth surface. The
equipment had to be on top of the feeder to be able to
reach this point. The operator of equipment shall be
instructed by management and a representative of MSHA
to watch the operation before work is to be resumed at
the No. 2 stacker. Cit. No. 3087309 was also issued.
MSHA's Testimony and Evidence
MSHA Inspector Joseph Koscho confirmed that he conducted an
inspection at the mine on August 30, 1988, and that he issued
section 104(a) Citation No. 2087308, and section 107(a) imminent
danger Order No. 3087309, in conjunction with the citation
(exhibits G-1 and G-2). Union Safety Representative Greg Shuba,
and mine management representative Doug Kerr accompanied him
during the inspection. Mr. Koscho stated that he walked up one of
the belts above the coal stockpile, and looking out from a window
which overlooks the west side of the stockpile he observed
bulldozer tracks in close proximity to the feeders, particularly
feeders No. B and E. He came down from the belt and walked up on
the stockpile to look at the tracks which he had observed from
the belt. He observed tracks "too close in the vicinity of the B
feeder." The tracks were located within 3 to 4 feet from a
depression where the coal had been feeding into the feeder, and
the tracks were "right along side of it. Too close for safety"
(Tr. 17-22).
Page 24
~2592
Mr. Koscho stated that he also observed tracks near the E feeder
where there was a depression approximately 3-1/2 to 4 feet in
diameter and 2 feet deep where the dozer had reached across with
its 7 to 8 foot long blade, and then backed up smoothing out the
depression in the pile. He believed that the dozer had reached
across the depression, and the dozer tracks were up to the
depression. Mr. Koscho confirmed that the feeders were not in
operation at the time of his inspection, and that no coal
reclaiming work was taking place at the stockpile area (Tr. 23).
Mr. Koscho stated that he issued the order "because there is
a very strong likelihood" that someone could fall into the
depression and be covered by the coal even though he would be
sitting in a dozer, and "that there could be imminent danger"
(Tr. 24). He was concerned that someone could suffocate if he
fell into a void or hole in the stockpile, and that the fact that
he would be in the equipment cab would make no difference because
the cab glass around the operator could be pushed in and the
operator would be unable to get out of the cab because the coal
would block the doors.
Mr. Koscho stated that a void can be created by the feeders
feeding coal onto the belt, and that the resulting hole under the
surface of the coal pile would not be observable because the
surface of the coal would be intact above the area of the hole
(Tr. 25).
Mr. Koscho stated that he had previously issued a section
104(a) citation on August 23, 1988, citing a violation of section
77.209. He explained that he investigated an incident where a
bulldozer had slid into a void created by a feeder while it was
reclaiming coal. The dozer was evidently operating too close to
the edge of the feeder and it had to be pulled out, and the dozer
operator used a radio which was in the cab to summon help (Tr.
26).
Mr. Koscho stated that there is no way for anyone to
determine whether a void is present over the feeders that are
feeding coal into the reclaim belt, and that a void may occur at
any time. Since the coal on the stockpile is compacted, a crest
could form over the feeders, and one would be unaware of any
voids created between the feeders and the surface of the coal
pile (Tr. 27).
Mr. Koscho estimated the height of the coal stockpile as
approximately 60 feet, and he stated that a chain which is
normally in place to indicate the height of the coal pile was not
in place, and that the coal was half-way up the side of the
stacker. He stated that the height of the coal pile would affect the
Page 25
~2593
likelihood of an accident, and the higher the pile of coal
present, the wider the hole would be (Tr. 29).
Mr. Koscho confirmed that he had no knowledge as to the
number of dozers which may have been previously operating on the
pile, and no one was on the pile at the time of the inspection.
He also confirmed that he had no knowledge whether any dozers
were operating on the pile while the feeders were in operation,
but that this made no difference "because a void could exist at
any time" and "when these bulldozers go up on this pile, that
void could be there without them even knowing about it." He also
believed that voids could be present even if the feeders are not
operating because "they could have been pulled out previously"
(Tr. 29-30).
Mr. Koscho confirmed that he had no knowledge when the
tracks he observed were made, or when the dozers last operated on
the pile, but he was of the opinion that the tracks were made
"within the last two or three days" because they were "more
pronounced and acute" (Tr. 34).
Mr. Koscho stated that dozers would be on the pile to level
out and spread the coal so that more coal can be stocked on the
pile after it feeds out of the stackers. He had no way of knowing
whether the dozers were recovering coal through the feeder or
just spreading it out (Tr. 35). He believed that the pile around
the No. 2 stacker was used every week, but did not know how often
during the week it was in operation (Tr. 36).
Mr. Koscho stated that he cited a violation of section
77.209, because "its the only thing we have to cover this." He
explained that even though section 77.209, addresses people
walking or standing on a reclaim pile, anyone in a piece of
equipment "is just as open to that danger as a man standing on
it" (Tr. 37). He confirmed that the "reclaiming area" includes
the feeders, stockpile, and the area where the coal is being
stocked and reclaimed (Tr. 39).
Mr. Koscho stated that the previous violation he issued was
a section 104(a) citation rather than an imminent danger order
because it was terminated within 5 minutes and he determined that
management had instructed the dozer operator. However, when he
observed the dozer tracks on August 30, he believed that the
dozer operators were not following instructions and that mine
management was responsible for seeing to it that the job was
being done "to save their lives" (Tr. 46).
Mr. Koscho stated that he considered Citation No. 3087308 to
be "S&S" because "its a serious proposition" (Tr. 47). He
believed there was a danger of suffocation if the equipment
operator fell into a void, and "it would be a lost life." He
Page 26
~2594
believed this "could happen at any time, whenever the equipment
would be put back on the stockpile" (Tr. 48).
On cross-examination, Mr. Koscho explained the modifications
which were made with respect to Citation No. 3087308 (Tr. 48-52).
He confirmed that the imminent danger order was terminated after
a meeting was held with all of the equipment operators who were
present and they were instructed to stay a "safe distance" from
the feeders (Tr. 51, 54).
Mr. Koscho stated that while he was on the pile observing
the area around the B feeder, he stayed a "safe distance" away
from the feeder, and that he stood back further than 20 feet, but
could not recall the exact distance. He could not recall how far
away from the E feeder he was standing, but that it was "a safe
distance." He confirmed that he did not measure the 7 or 8 foot
distance over the cited feeder, but was close enough to estimate
that distance (Tr. 53).
Mr. Koscho confirmed that when he walked on the stockpile,
he did not notify anyone that he was there because a management
supervisor was with him. He also confirmed that he did not have a
self-rescuer with him, was not attached to a life line, and he
could not determine whether any voids were present on the pile.
He stated that "I was in an area where I felt there wouldn't be a
void," and conceded that he did nothing to check whether any
voids were present over the feeders because "there's no way for
us to know if there was voids" (Tr. 56).
Mr. Koscho confirmed that the locations of the feeders are
marked, and that if anyone was operating in the area and observed
no changes in the surface of the coal, he would know there was a
problem with a void over the feeder (Tr. 56). He confirmed that
he observed small depressions over the B and E feeders and
therefore knew where the feeders were located. The tracks he
observed were in the vicinity of both feeders, and the tracks at
the B feeder were within 2 feet of the void (Tr. 57). He
confirmed that the prior citation concerned the dozer which was
too close to the C feeder while pushing coal into the A feeder,
and it slipped into the C feeder (Tr. 58). He confirmed that the
prior citation was based on a condition which he did not observe,
and that he based the citation on what someone told him, and a
statement by the dozer operator that he had made a mistake which
caused the problem (Tr. 60).
Mr. Koscho confirmed that when he issued the contested
citation and order in this case he did not know when the feeders
were last operated, or whether mine management had observed
dozers operating on the cited stockpile (Tr. 60). He stated that
he made no effort to determine who had operated on the pile in
question (Tr. 62). He also confirmed that no one was in danger
when he issued the order, that he cited what he perceived to be a
Page 27
~2595
practice of pushing coal too close to the feeder, and that it was
a "practice that seems to exist" (Tr. 62).
Mr. Koscho confirmed that he did not recall the prior
citation at the time he gave his deposition on January 26, 1989,
in this case "but it may have been in my mind at the time that I
issued the order" (Tr. 63). He confirmed that when he gave his
deposition he stated that he did not know whether the cited
conditions in this case was an "isolated occurrence" because he
did not remember his prior citation (Tr. 65). He believed that
two occurrences or violations of section 77.209, "does become a
practice" (Tr. 66). He explained further as follows at (Tr.
67-68):
Q. So apparently, as you were testifying earlier, that
instruction apparently didn't work, that somebody
wasn't paying attention?
A. Well, somebody hadn't paid attention.
Q. You don't know --
A. According to what I saw.
Q. You don't know whether it was somebody in management
or somebody in the hourly workers?
A. There's no way for me to know.
Q. I take it you don't know whether it's one particular
individual who did it, or two or six. You just don't
know?
A. There was nobody working at the time. I wouldn't
know.
Q. So you really don't know whether it's some hourly
employee who took it upon himself to do this and
figured he could get away with it on this one time, or
whether it was actually a practice?
A. To answer you, from experience, it seems to me that
it's management's responsibility to see that it is done
properly, and that's the basis that I was using.
Q. So you were -- regardless of whether or not it was
somebody who was violating management's instructions,
you said management is responsible so I'll issue the
citation and the Imminent Danger Order?
A. Yes.
Page 28
~2596
Q. You didn't know whether it was somebody in manage-
ment who was violating the instructions, someone in the
hourly work force. You just didn't know that when you
issued your order, isn't that correct?
A. I wouldn't know.
Mr. Koscho stated that during a meeting held after the order
was issued and terminated, Cyprus' vice-president and general
manager Lamar Samples told the assembled employees that "if he
caught anyone doing this again he would fire them" (Tr. 71).
Mr. Koscho stated that a void hazard would exist all the
time, regardless of whether the feeders were operating. He
conceded that when the feeders are shut off the depressions can
be filled up with the ongoing movement of the coal out of the
pile and into the feeders and that a firm working coal surface
would be established. However, he stated "that don't mean it
would fill completely up," and that even though one would know
that the coal was going down into the feeder, "it could block
itself off by pushing coal down in there" (Tr. 72).
When asked whether he issued the order to get management's
attention because of the previously cited condition a week
earlier, Mr. Koscho replied "I wouldn't say yes, but it sounds
good" (Tr. 72). He confirmed that when he issued the order the
prior citation "wasn't even in my mind probably. Probably not"
(Tr. 74).
Mr. Koscho stated that when he issued the order he did not
check any dozers to determine whether they were equipped with
self-rescuers or operative radios. Although the dozers are
usually equipped with cabs and safety glass, he did not check
them at the time he issued the order (Tr. 75).
Mr. Koscho stated that an equipment operator who fell into a
void while in a dozer would have time to be rescued while using a
self-rescuer, assuming that the cab is not crushed, but that
anyone falling into the void while walking or standing on the
pile would not have this option (Tr. 75-76).
Mr. Koscho stated that if someone were to be walking in the
stockpile area where he walked, or if a dozer were operating
there, it would be safe. He agreed that there was a "safe area"
on the pile, and if a feeder were operating and the coal above it
were to run down in a conical shape, there would be a need to get
more coal around the feeder, and that this is normally done by
pushing coal to the feeder. He confirmed that this method is not
unique to the Emerald Mine and that other mines have similar coal
feeder systems (Tr. 78).
Page 29
~2597
Mr. Koscho conceded that the only information he had to support
his belief that dozers were operating too close to the feeders is
the tracks in the coal (Tr. 79). He confirmed that he had
inspected the dozers in the past, and he identified them as D-9
caterpillars equipped with safety-glass cabs with no wiremesh in
the glass (Tr. 81). Although he was not aware of other surface
mine facilities in his district that use a stacker feeder system,
he was aware that this system is used at other mines (Tr. 82).
Greg T. Shuba, mobile equipment operator, and member of the
mine safety committee, confirmed that he accompanied Inspector
Koscho during his inspection of August 30, 1988. He confirmed
that he observed the dozer tracks testified to by the inspector.
With regard to the tracks at the B feeder, Mr. Shuba stated that
part of the track impressions on the ground was broken away from
the coal that had gone into the feeder, and that this indicated
to him that someone was either directly over or too close to the
feeder. He also agreed with the inspector's testimony concerning
the dozer blade marks over the E feeder and he believed that the
dozer had been over the feeder and "back-dragged" to smooth over
the ground in front of the dozer (Tr. 89-92).
Mr. Shuba estimated the height of the coal stockpile as 70
feet. He confirmed that he has operated a dozer on the stockpile
"on and off" since February, 1989. He also confirmed that he
operated a dozer on the pile prior to the time of the inspection,
but could not state when. He believed it would have been "months"
before the inspection (Tr. 93).
Mr. Shuba stated that a dozer would be operating on the
stockpile to reclaim coal or to stockpile it. Reclaiming consists
of pushing the coal to the feeders to load the train, and this
would be done when the feeders are operating. Stockpiling the
coal, or pushing it on the pile or spreading out the pile, would
be done while the feeders were not operating (Tr. 93-94).
Mr. Shuba stated that he has never crossed over a feeder
while operating a dozer on the pile, but other operators have
told him that "there were times" when they crossed the feeders,
and that this would have been prior to August 30, 1988 (Tr. 94).
Mr. Shuba stated that the stockpile reclaiming system is designed
poorly, and that an operator can either get over a feeder or
"literally destroy the machine" because of the restricted
equipment turning area while attempting to push coal with the
dozer blade. He stated that some operators may cross over feeders
or operate over them because its easier to get behind the coal
and push it in a straight line. He identified feeders C and D as
the problem areas (Tr. 94-95). He stated that the problem with
the cited B and E feeder areas was "the possibility of a void"
(Tr. 96). He believed that the "probable" reason for operators to
cross over the B and E feeders would be "to get from one side to
Page 30
~2598
the other" (Tr. 96). He believed that the feeder system in
question has been in effect for "a couple of years" (Tr. 97).
Mr. Shuba explained the operation of the feeder system, and
he was of the opinion that "we are creating our own hazards by
expanding the piles the way we are." He stated that there have
been "a couple of close calls" where dozer operators have gone by
areas where it has given in and that the front part of a dozer
would start down in but they were able to get back out before
anything materialized (Tr. 99).
Mr. Shuba confirmed that mine management has instructed
equipment operators not to operate directly over feeders and that
the instructions were also probably given prior to August 30,
1988. Mr. Shuba believed that management had reason to know that
people were working over the feeders because the plant
superintendent's office is directly below the piles, and the
office has two windows where he can see out to the piles, and
that "it doesn't take an expert to drive by in a pick-up truck
and see which way a dozer is pushing" (Tr. 101).
Mr. Shuba confirmed that he has been instructed by
management about the "safety zone" around the top of the feeders
where one could safely operate, and he explained that a 65 degree
angle of repose for the coal was the "safety zone." He also
confirmed that a diagram explaining this safety zone was posted
in each machine that operated on the pile, and he identified the
diagram as exhibit G-4, (Tr. 103). He stated that for a 60 foot
coal pile, the safety zone would be 32 feet away from the center
of the feeder, or a radius of 64 four feet (Tr. 104). He
confirmed that the stockpile at the number 2 stacker covered six
feeders (Tr. 107).
On cross-examination, Mr. Shuba stated that the feeder
operator has a radio to communicate with the equipment operators
but conditions change momentarily and its difficult to maintain
communications (Tr. 109-110). Mr. Shuba did not believe that he
was in an unsafe position while on the pile with the inspector,
and as long as he is not within the angle of repose he would not
be in a hazardous area (Tr. 112).
Mr. Shuba stated that he had discussed the matter concerning
the feeders with management as early as November 16, 1987, and
that management's instructions that dozer operators were not to
operate close to the feeders began at this time (Tr. 113). He
confirmed that the angle of repose could change depending on the
coal compaction, and that it was a guideline established by MSHA
(Tr. 114).
Mr. Shuba confirmed that the biggest problem arises when
coal is being stockpiled because the coal is stacked next to the
stacker, and one has to get directly over the feeders to get
Page 31
~2599
behind the coal to push it (Tr. 120, 122). He stated that while
management has given instructions to equipment operators not to
operate close to or over the feeders, it has been unable to tell
the operators how to push the coal and stay within the law (Tr.
123).
Dr. Kelvin K. Wu, Chief, Mine Waste and Geo-Technical
Division, MSHA, testified as to his background and experience,
and he confirmed that he is a registered professional mining
engineer, holds a PHD degree from the University of Wisconsin,
and is an adjunct professor at the University of Pennsylvania
(Tr. 127). Dr. Wu confirmed that he was familiar with the mine
surface facility in question, and that in November, 1987, he was
requested by MSHA's district office to make site visits and work
with company personnel to try to come up with some safe operating
procedures. He confirmed that he visited the site and observed
the loading process. He identified exhibit G-5, as the field
investigation report and recommendation he prepared. He stated
that he made one site inspection on November 24, 1987, and
believed he made a second visit, but was not sure (Tr. 129).
Dr. Wu explained his recommendations, including the
establishment of a 65 degree angle of repose for the coal
stockpile. The diagram used as a guide for the equipment
operators was prepared by a company engineer, and it was based on
his recommendations (Tr. 129-133).
Dr. Wu stated that he was concerned about voids that are not
visually detectable from the surface (Tr. 134). He confirmed that
his interpretation of the conditions cited in the citation and
order describing the equipment tracks as being "too close" to the
B feeder indicates to him that they were over and "right on top
of the feeders." With regard to the E feeder, he agreed with the
testimony that the dozer reached out over the feeder and then
backing up to level out the coal (Tr. 137-138).
On cross-examination, Dr. Wu confirmed that the angle of
repose was established in consultation with mine management who
agreed that it was reasonable. He also confirmed that the coal
was not tested because everyone observed the operation during his
inspection, and he explained how the angle of repose was
established (Tr. 140-142). He confirmed that the 65 degree angle
of repose was based on a fatality which had occurred at the
Loveridge Mine in 1985 where five individuals were fatally
injured while walking on a coal stockpile. Although this accident
involved people walking on a stockpile, there is no difference in
the hazard simply because it concerns operators who are in a
dozer (Tr. 143).
Dr. Wu confirmed that he was familiar with section 77.209,
and notwithstanding the fact that it only refers to persons
walking or standing on a stockpile, he believed that the intent
Page 32
~2600
of the standard is to address the hazard exposure to a person on
the pile, regardless of whether he is on foot or in a piece of
equipment (Tr. 144-145). He also confirmed that the feeder system
in use at the mine is not unique or unusual. If the feeders are
not operating, one may need to fill any depressions over the
feeders during the stockpiling process, but there is no guarantee
that voids are not present. If there is any blockage while the
feeders are closed, voids could develop (Tr. 145-149).
Dr. Wu agreed that it was necessary for a bulldozer to
operate on top of a coal stockpile in order to push the coal into
the feeders. When there is a 65 degree angle of repose and the
coal is flowing freely into the feeder, any coal beyond the angle
of repose would not feed into the feeder and the bulldozer must
push the coal into the hole (Tr. 150). In this situation, there
would be no need for anyone to be on the pile on foot. There is a
need for bulldozers on the pile in order to spread or push the
coal to the storage area and to maintain the volume of coal (Tr.
152). He confirmed that a standardized angle of repose cannot be
applied "across the board" to all surface stacker feeder systems
because of the variety of differences in the loading process,
materials stockpiles, and the equipment used in the process (Tr.
153-154).
MSHA Supervisory Inspector Robert W. Newhouse, testified to
his experience and training, and he confirmed that he is a
certified mine foreman, and has an associate's degree in mining
from Penn State University (Tr. 157). He confirmed that he is Mr.
Koscho's supervisor and that he discussed the citation and order
with him when they were issued. Mr. Newhouse also confirmed that
in November, 1987, he visited the mine and observed the feeder
operation after receiving information which raised questions
about the feeder operating procedures and practices. He stated
that he learned that dozers had been travelling over the feeders
at some point through conversations with dozer operators, and
plant superintendent Thurman Phillips. Mr. Newhouse confirmed
that he never personally observed any dozers operating over the
feeders (Tr. 158).
Mr. Newhouse was of the opinion that the condition described
in the citation and order constitute violations of section
77.209, because the standard is designed to protect persons on
stockpiles during reclaiming operations, and the standard states
that it is "to protect people from being in an endangered area on
those piles" (Tr. 159). He stated that MSHA made a determination
that section 77.209 covers dozers operating over feeders in
November, 1987, and the determination was made by MSHA's National
office in Arlington, Virginia, and it was communicated verbally
by him to plant superintendent Thurman Phillips. He also
confirmed that this policy is current District 2 policy, which he
confirmed through discussions with the district manager, Donald
Huntley at various times prior to November, 1987 (Tr. 160).
Page 33
~2601
Mr. Newhouse confirmed that he issued a citation regarding the
operation of dozers over or near feeders at the same facility on
June 10, 1988, and that he cited a violation of section 77.209
(Tr. 160, exhibit G-6). He stated that on this occasion, he
observed dozer tracks directly over a feeder, and also observed a
dozer working on an opposite pile, and made a determination that
it was in "close proximity" to the feeder. He confirmed that he
did not observe the dozer crossing over the feeders, but did
observe it operating in "close proximity" to the feeder (Tr.
162). Mr. Newhouse stated that the dozer was working "on the side
of the pile within the 65 degree," but he did not know how far it
was from the center of the feeder, but that it was within the
agreed upon safety zone (Tr. 162).
Mr. Newhouse confirmed that he did not issue an imminent
danger in conjunction with his citation, but that in hindsight,
he probably should have, and was probably mistaken for not doing
so. However, the machine made a "momentary pass" in the feeder
area, and as soon as he mentioned it to management, immediate
corrective action was taken (Tr. 164). He explained that
stockpiling takes place when the coal is spread out in all
directions on the pile, and that reclaiming takes place when the
feeder gates are opened and the coal is drawn into the belts
under the feeders (Tr. 165).
Mr. Newhouse stated that he has received reports of
accidents and fatalities which have occurred at other facilities
by dozers operating on stockpiles, and he identified exhibit G-7
as an MSHA informational bulletin containing a synopsis of
accidents which have occurred from 1979 to 1983 on certain
storage piles (Tr. 167). He identified the fatal accidents which
have occurred (Tr. 168-186, exhibits G-7, G-9).
Mr. Newhouse confirmed that he advised mine management of
the application of section 77.209 to its feeder operation, and
that the 65 degree angle of repose, "plus or minus five degrees,"
was an agreed upon prudent figure for the dozer operator to
follow, and that this communication was made in November, 1987
(Tr. 186-188).
On cross-examination, Mr. Newhouse confirmed that the
district policy in question was stated in a letter from Mr.
Huntley to Safety Supervisor Dennis Dobish (exhibit O-4), and
that prior to this time, the policy was verbally communicated to
mine management (Tr. 189). He further confirmed that the current
MSHA policy manual published in July, 1988, does not address
section 77.209 (Tr. 190).
Mr. Newhouse confirmed that the citation which he issued in
June, 1988, was abated after the equipment operators were
Page 34
~2602
instructed not to operate over or too close to the feeders (Tr.
198). With regard to the alleged "common practice" engaged in by
Cyprus, Mr. Newhouse stated as follows at (Tr. 199-200):
Q. Now, you had the time you were cited and the
equipment operators were instructed and then Mr. Koscho
cited them at the end of August and they were
instructed again. Do two times make it a common
practice? Two times that they were cited?
A. I'll tell you, I would say it's a common practice
based on all the information collected over a year of
fooling with that operation down there and the
different questions and comments from operators.
Q. I take it that during that year, as far back as
November 1987, the company said they would instruct the
employees who operate that equipment not to take dozers
over the feeders or too close to the feeders?
A. Yes. It started out to be a simple safety message to
the operators not to run over feeders, and then it
progressed into the threat of firing anybody that did
take them over the feeders. Possibly if they had those
control measures in the first place, we wouldn't have
got the violations. I don't know.
Q. Now, I take it that in November 1987 that there
weren't any violations or Imminent Danger Orders
issued?
A. No.
Q. And I take it that in January 1988 that when you
were out there again you didn't issue any violations?
A. Not that I recall.
Mr. Newhouse could not recall whether he issued any
violations during his visit to the mine in January, 1988, when a
section 103(g) inspection was conducted (Tr. 200). He identified
exhibit O-5, as a finding made by Inspector Koscho that "no
hazardous conditions existed and unsafe practices were not
observed" (Tr. 201).
Cyprus' Testimony and Evidence
Donald D. Kerr, preparation plant foreman, testified as to
his experience and duties, and he explained the coal loading
process at the coal stockpile in question. He stated that the
feeder loading operation is supervised by a foreman who is in
radio contact with the bulldozer operators, and the foreman will
Page 35
~2603
inform the operators as to which feeders are in operation (Tr.
227-231). He confirmed that he was with Inspector Koscho during
his inspection, but did recall going onto the coal pile with him.
He also confirmed that he observed the dozer tracks at the B and
E feeders as testified to by Mr. Koscho, but could not recall
observing any depressions in the pile (Tr. 232).
Mr. Kerr stated that he could observe the dozer operators
operating on the pile from the catwalk and roadway which passes
by the piles, but that he is rarely on the catwalk. The front of
the pile can be observed from the roadway, but the back of the
pile cannot be observed from the roadway, and one cannot
determine whether the dozers are operating over the feeders from
this vantage point (Tr. 234).
Mr. Kerr estimated that 600 tons of coal was loaded through
the feeders during the period between August 21 and 30, 1988, and
he believed that feeders C or D were in operation during this
time, but that it was unlikely that the coal was loaded from the
B or E feeders. With regard to the dozer tracks which the
inspector observed on August 21, Mr. Kerr explained that after
the completion of the loading and reclaiming operation, the dozer
operators go back and push the coal into the voids created by the
feeders in order to seal them to prevent any rain or inclement
weather from washing the coal down into the reclaim tunnel, and
that this procedure is a normal practice. Mr. Kerr was not
certain if the tracks left at the B feeder were left there by the
incident which occurred on August 21, but he believed they may
have been left over tracks because "we hadn't operated the
stacker system that much in that time" (Tr. 236).
On cross-examination, Mr. Kerr stated that the bulk of the
600 tons of coal in question came from the No. 2 stacker, and he
confirmed that he did not check his loading records for the week
prior to this time. He agreed that the B and E feeders are used
on a regular basis, and he assumed that the August 21, incident
occurred at the B feeder, and possibly the C feeder (Tr. 238). He
believed that the tracks which were observed on August 30, were
tracks which were left over by the dozer operating by the C
feeder (Tr. 239). Since the feeders are close to each other, it
was possible that the dozer operator strayed over near the B
feeder while moving around to smooth out the pile. He confirmed
that his records would not reflect when any particular dozer may
have been operating on the coal pile (Tr. 240).
Mr. Kerr confirmed that he observed the dozer tracks and
blade marks which were observed at the E feeder, and although he
believed that the tracks at the B feeder were "left over" from
the previous citation, he did not dispute the existence of the
tracks at the E feeder (Tr. 243).
Page 36
~2604
James Graznak, outside foreman, stated that part of his
responsibilities include the supervision of dozer operators on
the coal piles, and he confirmed that he was aware of the
meetings held with respect to the issue of dozers operating in
and around the feeders. He confirmed that the issue "came to a
head" in November, 1987, and that MSHA was requested to bring
some of its technical personnel to the site to address the
problem. He identified a copy of an MSHA report, exhibit O-8, and
confirmed that it reflects that he had "advised all operators not
to cross over the feeders" (Tr. 255). He confirmed that these
instructions would have been given 2 or 3-days prior to the
November 19, date of the report, and that he also instructed that
overhead markers and signs be placed over the piles to indicate
the location of the feeders (Tr. 256).
Mr. Graznak confirmed that he was present at one of the
meetings conducted by Dr. Wu, and that Cyprus agreed that "no man
or equipment will be allowed directly over the feeders at any
time, whether the feeders are operating or not" and that this
instruction was communicated to the dozer operators (Tr. 258).
Mr. Graznak had no knowledge of any discussions concerning the 65
degree angle of repose, but he confirmed that when he found out
about this guideline, he found it difficult to follow because the
angle of repose at which the coal was falling was steeper than 65
degrees, and that this was obvious by observation (Tr. 259). He
confirmed that radios were installed in the dozers at the coal
loadout for dependable communications between the dozers and the
person in charge of the loading (Tr. 261).
In response to a question as to whether it is possible to
reclaim coal without going too close to the feeders, Mr. Graznak
stated that this would depend on "what is considered too close."
He explained that although the contestant follows MSHA's
recommended 65 degree angle of repose, it operates within that
zone because it "has no choice" because it cannot get close
enough to get the coal to the feeder otherwise. He confirmed that
he was aware of the potential hazard by operating too close to
the feeders, and he believes the dozer operators exercise
judgment in determining how close they should push the coal (Tr.
263). He identified exhibit O-11, as copies of safety contacts
made with employees as reminders of safe operating procedures
while working on the coal piles (Tr. 263-265).
In response to a question as to whether or not the dozer
operators made it a practice to operate over the feeders while
reclaiming or stockpiling coal, Mr. Graznak responded as follows
(Tr. 266-267):
Q. Now, as far as you know, as of August 30, 1988, was
there a practice of dozer operators running over the
feeders when they were doing reclaiming or stockpiling?
Page 37
~2605
A. There was not a practice of it, no.
Q. Now, was there a practice, as far as you know, of
the dozer operators either doing reclaiming or
stockpiling in August 1988 of going too close to the
feeders?
A. I don't really know of any. You said during
reclaiming?
Q. Reclaiming or stockpiling.
A. I really don't know of any problems with regard to
reclaiming. For stockpiling, it's very difficult. Like
we had some testimony earlier today, there are times
when it is very difficult. Occasionally, but as far as,
you know, was it a practice, no. That's the reason I
kept reminding the people to try and stay on the dozer
and be on the alert.
Q. You say it's very difficult. Is it possible to both
reclaim and to stockpile without going over the feeders
or too close to the feeders? Too close to the feeders
being in a hazardous position.
A. It can be done, but it's tough.
Q. You have to work at it?
A. Well, we probably put up 500 tons per hour at that
stacker, so it keeps the men busy. He has to stay on
his toes.
Mr. Graznak stated that the contestant's stacker system is
not unique and that it is common to other coal mines and power
plants in the area, and that after the imminent danger order was
issued he visited other mines in the area to check out their
systems (Tr. 268). He stated that he was aware of four other
operations where dozers were operating over the feeders during
their stockpiling operations, and that in these instances, the
reclaiming systems were locked out while the dozers travelled
over the feeders while stockpiling coal (Tr. 269).
On cross-examination, Mr. Graznak confirmed that one of the
operations he observed did not have coal stacking "tubes" similar
to the contestant's No. 1 and No. 2 stackers, and that he did not
discuss these other operations with MSHA, did not know whether
these operators had approved MSHA plans, and had no information
concerning the coal stacking capacities of these other operations
(Tr. 271).
Page 38
~2606
Mr. Graznak stated that during reclaiming operations, the dozers
do not have to cross over the feeders, but during stockpiling, it
is difficult to maneuver the equipment. He denied that dozers
were crossing over feeders on a regular basis as of August 30,
1988, but that "occasionally someone would" (Tr. 276). Mr.
Graznak could not recall the specifics concerning his safety
contacts with the employees from November 30, 1987, to January
21, 1988, (exhibit O-11). He confirmed that these contacts may
have been prompted by reports of someone observing dozer tracks,
and that he sometimes makes them as "a blanket for the whole
crew" after an indication that someone had crossed over or
operated too close to a feeder. He also indicated that he issued
these reports to insure that everyone was aware of the "gravity
of the situation" (Tr. 278-280). Mr. Graznak could recall only
one past incident where a bridged over cavity developed over one
of the feeders (Tr. 284).
Mr. Graznak believed that with "certain limitations that we
can live by," the dozers should be permitted to cross over the
feeders during its stockpiling operation. He did not believe
there was any reason for a dozer to cross over a feeder during
the reclaiming operation because "we would move the material up
to the edge of the draw hole and just let it go in by itself"
(Tr. 285). With regard to dozers operating on top of the coal
piles, Mr. Graznak stated that this was common to many coal mine
operations for expanding the holding capacity of the stacking
facilities (Tr. 286).
Dennis Dobish, safety supervisor, confirmed that he is a
certified mine foreman, and that he is familiar with the feeder
issue in this case. He confirmed that after the imminent danger
order was issued, he sent a letter to Inspector Newhouse
outlining the practice to be followed in the future, and to abate
the order (Tr. 291). Since that time, he has worked to develop a
plan which would permit the dozers to operate over the feeders,
and he has met with various company, union, and MSHA officials in
this regard, including a meeting with MSHA's sub-district manager
Roger Uhazie on November 17, 1987 (exhibit O-6, Tr. 292). The
plan was unacceptable to Mr. Uhazie, and a further meeting was
held with former district manager Don Huntley, and a letter and
the proposed plan was submitted to Mr. Huntley on December 1,
1988. The plan would permit the operation of dozers over the
feeders during stockpiling operations after certain safety
precautions were taken (Tr. 294).
Mr. Dobish stated that Mr. Huntley responded to the proposed
plan by letter of January 4, 1989, exhibit O-4, and the letter
does not state that dozers could not at anytime operate over the
feeders. The letter stated in part "when reclaiming operations
have been completed, however, a procedure may be developed to
assure that there are no voids over the feeders. Compliance with
such procedures would allow a dozer operation over the feeders at
Page 39
~2607
that time." Mr. Dobish believed that this procedure would be in
effect during the stockpiling operation (Tr. 295). He identified
the proposed plan as exhibit 0-3, and confirmed that it was a
"consensus" plan developed from the mine experience, and after
discussions with the equipment operators in the presence of the
safety committee. He further confirmed that the operators agreed
unanimously that they could safely operate under these procedures
and they knew that adjustments to the procedure may be needed. He
stated that he gave the proposed plan to Mr. Koscho, who passed
it on to Mr. Newhouse, but that no reply or opinion has been
received from MSHA (Tr. 296).
Mr. Dobish stated that prior to the issuance of the imminent
danger order, he participated in meetings held with the dozer
operators, and they were instructed not to run over feeders at
anytime and to comply with the 65 degree angle of repose. He
confirmed that he has visited other mines, and has observed the
same type of feeder operation which is in use at the Emerald Mine
in one mine outside of district 2, where dozers travel over the
feeders during stockpiling while the feeders are shutdown (Tr.
298-299).
On cross-examination, Mr. Dobish identified the mine which
he visited as the Cyprus Shoshone mine in Hanna, Wyoming, and he
confirmed that it had a stacker system like the one at the
Emerald Mine. He did not know the height of the stockpile at this
other mine, and stated that the stacker was shorter than the one
used at Emerald Mine (Tr. 300).
Findings and Conclusions
Fact of Violation
Cyprus is charged with an alleged violation of regulatory
mandatory safety standard 30 C.F.R. 77.209, which provides as
follows: "No person shall be permitted to walk or stand
immediately above a reclaiming area or in any other area at or
near a surge or storage pile where the reclaiming operation may
expose him to a hazard."
It is undisputed in this case that there is no evidence that
anyone walked or stood on the coal pile in question, or in the
vicinity of the areas affected by the operation of the feeders.
The only persons who walked or stood on the pile, or in the area
of the pile, were the inspector and the UMWA walkaround
representative who accompanied him during the course of the
inspection. They both testified that they walked on the pile to
gain a closer look at the tracks which they had observed from a
catwalk, and they both believed that they were in a "safe
location" on the pile.
Page 40
~2608
Cyprus takes the position that section 77.209, does not address
or cover the operation of equipment on storage piles, and that
the clear language found in section 77.209, with respect to the
ordinary meaning of the terms "walk" or "stand" cannot properly
be construed to mean "operating equipment" such as a bulldozer.
Citing the dictionary definitions of the terms "stand" and
"walk," the inspector's concession that these terms are not
normally defined to include the operation of equipment, and the
applicable case law dealing with statutory construction, Cyprus
argues that the language of the standard simply does not prohibit
the operation of equipment on a storage pile and that the
citation must be vacated. Cyprus observes that while MSHA had the
opportunity when the standard was promulgated to clearly include
the operation of equipment as part of the standard, it did not do
so.
In response to MSHA's argument that MSHA District 2 had
previously interpreted section 77.209 to include the operation of
equipment and that such an interpretation is reasonable and
entitled to deference, Cyprus points out that the District 2
interpretation does not appear to have been accepted by other
MSHA Districts. As an example, Cyprus makes reference to an MSHA
Report of Investigation, issued by MSHA District 3, on April 25,
1983, where a fatality occurred when a bulldozer operating on a
coal stockpile broke through material bridged over a feeder and
fell into the bridge over cavity engulfing the bulldozer
operator's compartment (exhibit G-8). Although MSHA's concluded
that the accident occurred because the bulldozer was allowed to
be operated on bridged material over top of the cavity in the
coal stockpile, MSHA nonetheless made a finding that its
"investigation did not reveal violations of the Coal Mine Safety
and Health Act of 1977 of Title 30 Code of Federal Regulations"
(pg. 7, report). Cyprus points out that no violation of section
77.209, was issued in this instance.
Cyprus also refers to an MSHA Regulatory Information
Bulletin No. 83-4C, issued on August 3, 1983, by MSHA's
Administrator for Coal Mine Safety and Health Joseph A. Lamonica,
concerning "Fatalities Occurring at Surge or Storage Piles"
(exhibit G-7). The bulletin discusses the hazards associated with
equipment operators working on surge or storage piles where they
are often required to maneuver in close proximity to "drawdown
areas of feeders and hoppers," and it includes an attachment
consisting of abstracts of eight fatal accidents mentioned in the
bulletin, four of which involved persons walking over the feeder
area or a void created by the reclaiming operation, and four of
which involved bulldozers. Conceding that the bulletin does
include a reference to section 77.209, in connection with
bulldozers and front-end loaders operating in storage piles,
Cyprus points out that it does not state that such operations are
prohibited by section 77.209, and that Mr. Lamonica's reiteration
of the language of the standard that "No person shall be
permitted
Page 41
~2609
to walk and stand immediately above a reclaiming areas or in any
other area at or near a surge or storage pile where the
reclaiming operation may expose him or her to a hazard," does not
suggest that equipment was subject to the same prohibition found
in the standard. To the contrary, Cyprus concludes that within
the context of the bulletin, the absence of any indication that
equipment was subject to the same prohibition suggests the
absence of such a prohibition.
Citing the Commission's decision in Western Fuels-Utah,
Inc., 11 FMSHRC 278, 284 (March 1989), Cyprus argues that
deference to MSHA's interpretation of a standard is not required
where it is clearly inconsistent with the language of the
standard. In the Western Fuels-Utah, Inc., case, the Commission
states in relevant part as follows at 11 FMSHRC 283-284, 287:
It is a cardinal principle of statutory and regulatory
interpretation that words that are not technical in
nature "are to be given their usual, natural, plain,
ordinary, and commonly understood meaning." Old Colony
R.R. Co. v. Commissioner of Internal Revenue, 284 U.S.
552, 560 (1932). When the meaning of the language of a
statute or regulation is plain, the statute or
regulation must be interpreted according to its terms,
the ordinary meaning of its words prevails, and it
cannot be expanded beyond its plain meaning. Old
Dominion R.R. Co. v. Commissioner of Internal Revenue,
284 U.S. 552, 560 (1932); see Emery Mining Corp. v.
Secretary of Labor, 783 F.2d 155, 159 (10th Cir. 1986).
* * * * * * *
While the Secretary's interpretations of her
regulations are entitled to weight, that deference is
not limitless and the Secretary's interpretations are
not without bounds. Deference is not required when the
Secretary's interpretations are plainly erroneous or
inconsistent with the regulation. See Udall v. Tallman,
380 U.S. 1, 16-17 (1965) (quoting Bowles v. Seminole
Rock Co., 325 U.S. 410, 413-14 (1945)). Nor does it
weigh in the Secretary's favor when the Secretary has
not offered reasonable interpretations of the
standards. See Brock on behalf of Williams v. Peabody
Coal Co., 822 F.2d 1134, 1145 (D.C. Cir. 1987). The
Mine Act does not contemplate that the Commission
merely "rubber-stamp" the Secretary's interpretations
without evaluating the reasonableness of those
interpretations and their fidelity to the words of the
regulations.
* * * * * * *
Page 42
~2610
Finally, a regulation subjecting an operator to
enforcement action under the Mine Act must give fair
notice to the operator of what is required or
prohibited and "cannot be construed to mean what an
agency intended but did not adequately express."
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193
(9th Cir. 1982). * * *
MSHA takes the position that the cited locations where the
dozer tracks were observed are either "immediately above a
reclaiming area" or "in any other area at or near a surge or
storage pile" as stated in section 77.209. MSHA argues that the
coal storage or surge pile in question is part of the reclaiming
operations, and that clean coal is stockpiled to create a reserve
until it is reclaimed or loaded out for shipment to customers.
MSHA asserts that bulldozers are used in the actual reclaiming
operations when the coal is pushed toward the angle of repose
above the feeders when the feeders are running and coal is being
loaded, and that they are also used in stockpiling operations
when coal is being sent through the stackers to be stored in the
area until needed later and the dozers push the coal away from
the stackers and spread it around to cover a larger area so that
more coal can be put on top of the pile as it comes out of the
stackers. MSHA maintains that dozer operators are exposed to
hazards from the reclaiming operations, as well as the
stockpiling operations, because a dozer can fall into the holes
that occur over the feeders when the feeders are operating or
they can fall into voids that may exist under the surface of the
coal pile.
MSHA asserts that it is well recognized that holes or
depressions normally occur over the feeders as coal is drawn down
the angle or repose into the feeder, and that voids may occur in
the pile where cavities occur and are bridged over with coal.
Since voids are not observable from the surface, MSHA concludes
that dozers operating too close to the holes or depressions run
the risk of falling into the holes during reclaiming operations,
and that dozers operating over or too close to the areas over the
feeders are at risk of breaking through any bridged over material
and falling into voids during either reclaiming or stockpiling
operations.
MSHA strongly disagrees with Cyprus' contention that section
77.209 is directed only to persons walking or standing on coal
piles, and not to persons on pieces of equipment which may be
operating on these piles. MSHA argues that the narrow
interpretation advanced by Cyprus is at odds with the purpose of
section 77.209, which is to protect miners from the hazards of
reclaiming operations around coal storage piles. Recognizing the
fact that the standard contains the terms "walk or stand," MSHA
takes the position that it applies to "persons" in general, and
that persons in bulldozers or other pieces of equipment are
Page 43
~2611
exposed to the same hazards as persons walking on foot on a coal
pile. MSHA asserts that the hazard presented is the possibility
of falling into voids or holes in the coal pile. Recognizing the
fact that if a miner on a bulldozer fell into a hole or void, he
may have a better chance of survival than if on foot because the
dozer cabs are enclosed and there are self-contained
self-rescuers in the cab, MSHA nonetheless believes that the
hazard of falling into a void or hole is the same, if not
greater, for a dozer because of its weight, and the pressure on
the coal pile by a dozer would make it more likely to fall into
holes or voids under the surface of the coal, and the chances of
survival are not as good.
In support of its argument that section 77.209, applies to
persons in general, regardless of whether they are walking,
standing, or operating a piece of equipment on a coal pile, MSHA
relies on the testimony of MSHA Supervisory Inspector Robert
Newhouse who testified that the standard is designed to protect
persons on coal piles, and that this interpretation is MSHA
policy and practice, as well as the testimony of MSHA's other
witnesses who agreed with Mr. Newhouse (Mr. Shuba and Dr. Wu).
MSHA asserts that in order to effectuate the broad purposes of
the standard and the Act, it must be concluded that section
77.209, applies to persons in general on a storage pile, and that
limiting the application of the standard to persons on foot and
excluding persons on equipment is too narrow and technical and
would defeat the purpose of the standard to protect persons from
falling into holes and voids. MSHA takes note of the fact that
Cyprus was issued at least two previous violations of section
77.209 involving bulldozers and did not contest either citation
(exhibits G-3, G-6). MSHA concludes that its evidence, consisting
of the dozer tracks and marks, clearly indicates that dozers were
operated over or too close to the feeders, and that a violation
of section 77.209, has been established.
After careful consideration of all of the arguments advanced
by the parties in these proceedings, I agree with the position
taken by Cyprus that section 77.209, only applies to persons
walking or standing on or near a coal surge or storage pile where
the reclaiming operation may expose him to a hazard. I conclude
and find that the plain wording of the standard is limited to
persons on foot and does not apply to equipment being operated on
or near such a pile while reclaiming or stockpiling operations
are actively in progress. Under the circumstances, the contested
citation IS VACATED.
With regard to MSHA's purported policy interpretation, and
its asserted practice of expanding the application of section
77.209 to equipment being operated on coal piles, I find no
credible evidence supporting any conclusion that MSHA has
promulgated any such policy, or that it has been communicated to
all coal mine operators. MSHA's primary support for the existence of
Page 44
~2612
any such policy lies in the testimony of its District No. 2
Supervisory Inspector Robert Newhouse.
Mr. Newhouse conceded that MSHA's most current policy
manual, published in July, 1988, does not address the application
of section 77.209, and I find nothing there to suggest that it
applies to equipment operating on coal piles. Mr. Newhouse's
assertion that MSHA's National Office in Arlington, Virginia,
made a policy determination in November, 1987, that section
77.209, applies to equipment operating on coal piles is
unsupported, and no documentation of any such policy has been
forthcoming from MSHA.
Mr. Newhouse also contended that the purported policy is
current District 2 policy, and that he confirmed this through
discussions which he had with MSHA's former district manager
Donald Huntley at various times prior to November, 1987. Mr.
Newhouse also asserted that this policy was communicated orally
to respondent's safety supervisor Dennis Dobish and plant
superintendent Thurman Phillips, and that the written embodiment
of the policy is stated in an exchange of correspondence between
Mr. Dobish and Mr. Huntley in December, 1988, and January, 1989.
The exchange of correspondence referred to by Mr. Newhouse
is a letter dated December 1, 1988, from Mr. Dobish to Mr.
Huntley, in which Mr. Dobish requested an interpretation of
section 77.209, with regard to the following points (exhibits
O-6):
1. Does the statement "No person shall be permitted to
walk or stand . . . " apply to bulldozer operation?
2. Please clarify the statement "immediately above a
reclaiming area or in any other area at or near a surge
or storage pile where the reclaiming operation may
expose him to a hazard." MSHA has stated their
intention of enforcing a 65 angle of repose adjacent
to each feeder. Due to weather conditions, compaction,
and moisture, this figure is unrealistic and arbitrary.
3. If the feeders are not operating and locked out and
no reclaiming operation is in progress, does 30 C.F.R.
77.209 apply? If precautions have been taken to
assure no void exists in the coal pile following
reclaiming operations, and the feeders are locked out,
the operation is no different from any other stockpile
and 30 C.F.R. 77.209 should not apply.
In his reply of January 4, 1989, to Mr. Dobish's letter, Mr.
Huntley stated in pertinent part as follows (exhibit O-4):
Page 45
~2613
This is in reply to your letter dated December 1,
1988, in reference to 30 C.F.R. 77.209. In reviewing
this provision of law, it would appear to us that this
regulation applies to persons immediately above a
reclaiming area, whether on a bulldozer, walking, or
standing. This provision was written to protect
persons from falling into a void that occurred due to
reclamation operations.
Your plan is designed to allow a bulldozer to operate
over feeders in an area susceptible to collapse. As
stated above, this would not be in compliance with the
regulations, therefore, bulldozers should not be
operated in such areas when coal is being reclaimed
from a stockpile. When reclaiming operations have been
completed, however, a procedure may be developed to
assure that there are no voids over the feeders.
Compliance with such procedure should allow dozer
operation over the feeders at that time.
Since you raised the question about the use of 65
degrees, we will not specify any angle--the inspector
will use his judgement to determine whether a person is
"above" a reclaiming area or exposed to a hazard from
the reclaiming operation. (Emphasis supplied).
I take note of the fact that Mr. Huntley's letter makes no
reference to any National MSHA policy regarding the operation of
equipment over feeders. In addition to his responses, Mr. Huntley
furnished Mr. Dobish with an outdated MSHA Information Bulletin
No. 83-4 C, August 8, 1983, concerning fatalities which have
occurred at coal surge or storage piles (exhibit G-7). The
bulletin includes a reference to section 77.209, as one of
several standards found in Part 77, Code of Federal Regulations,
which have been cited as contributing to one or more of the
accidents discussed in the attachment to the bulletin. The
bulletin also quotes the verbatim text of section 77.209, but I
find nothing in the bulletin alluding to any MSHA policy
prohibitions concerning equipment operating on coal piles. As a
matter of fact, the safety procedures found on page two of the
bulletin suggests that equipment may be permitted to operate on
coal piles as long as the recommended safety procedures are
followed, e.g., adequate communication, training, adequate means
for identifying the location of feeders, the use of substantial
screen guards over all windows of bulldozers and front-end
loaders used around surge or storage piles, and the placement of
self-contained self-rescuers in all dozers and front-end loaders.
I also take note of the fact that Mr. Huntley's letter
suggests that dozers may be operated over the feeders when
reclaiming is completed as long as certain safety precautions are
Page 46
~2614
developed, and it contradicts MSHA's position that equipment
operation on the coal pile is not permitted at any time,
including reclaiming or stockpiling of the coal. This advice by
Mr. Huntley also supports Cyprus' contention that it is permitted
to operate its equipment on the coal pile during stockpiling
operations as long as it follows certain safety precautions
(exhibits O-3 and O-7). It also supports the unrebutted testimony
of Mr. Dobish that other mine operators carrying on similar
operations are permitted to operate equipment on their coal piles
during stockpiling operations while the feeders are shutdown.
Further, I find Mr. Huntley's apparent disregard for the
65-degree angle of repose as a yardstick safety precaution to be
rather contradictory, particularly in light of MSHA's imposition
of this requirement on Cyprus.
The Imminent Danger Order
The definition of an "imminent danger" is found in section
3(j) of the Act, and it is as follows: "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 can be abated."
The validity of the contested imminent danger order in this
case is not dependent on any finding of a violation of section
77.209. MSHA maintains that it has established that it was more
than just an isolated occurrence that dozers crossed over the
feeders during stockpiling operations and operated too close to
the danger zone above the feeders during stockpiling and
reclaiming. MSHA takes the position that there is substantial
evidence supporting a conclusion that Cyprus engaged in a
practice of crossing over and working in too close proximity to
the feeders. The "substantial evidence" alluded by MSHA is (1)
the physical evidence of equipment tracks observed by Inspector
Koscho and Mr. Shuba during the inspection, (2) Mr. Shuba's
testimony that other dozer operators told him that there "were
times" when they crossed feeders, and his knowledge of "close
calls" involving dozers over the feeders; (3) two prior citations
because of dozers operating too close to the feeders; (4) "safety
contacts" made by Cyprus with its dozer operators instructing
them not to cross over feeders; and (5) the ongoing issue between
MSHA, Cyprus, and the union since November 1987.
The thrust of MSHA's case is its contention that the alleged
practice of dozer operators working above and/or in too close
proximity to the feeders during reclaiming and stockpiling
operations presented an imminent danger because of unknown voids
or holes in the coal pile, and that an accident could have
happened at any time if the practice of crossing over or in too
close proximity of the feeders had continued. MSHA's position is
that such a practice constitutes an imminent danger regardless of
whether the feeders are operating.
Page 47
~2615
The evidence establishes that no one was operating a bulldozer on
or near the coal pile in question at the time it was observed by
Inspector Koscho, the feeders were not in operation, no
reclaiming or stockpiling operations were taking place, and no
one was in any danger. I take particular note of the fact that
the narrative description of the cited conditions does not
include any assertion that Cyprus was engaging in any practice,
and Inspector Koscho confirmed that in his pretrial deposition he
admitted that at the time he issued the order he did not know if
there was in fact a practice of operating equipment too close to
the feeders. Further, although the order does not include any
assertion that dozers were operating over or near nay voids or
holes, Inspector Koscho testified that the tracks which he
observed in the vicinity of the B feeder were within 3 to 4 feet
of a "depression where the coal had been feeding into the
feeder," and that the tracks near the E feeder led him to believe
that the dozer blade, which was 7 to 8 feet long, had reached
across a depression, and then backed up smoothing out the
depression in the pile.
In order to prevail in this case, MSHA has the burden of
establishing that in the context of its continued reclaiming and
stockpiling operations, Cyprus was guilty of engaging in an
imminently dangerous practice of operating its bulldozers over or
in close proximity to feeders at all times, even when they were
not operating. As recently noted by the Commission in Garden
Creek Pocahontas Company, Docket Nos. VA 88-09, etc., November
21, 1989, slip op. at pg. 6, "%8BT]he litigation process requires
the parties to obtain the evidence necessary to prove their
allegations." With regard to the imminent danger order, the only
evidence to support Inspector Koscho's belief that dozers were
operating "to close" to the feeders were the equipment tracks
which he observed. Although several inferences may be made with
regard to these tracks in the coal pile, any such inferences must
be reasonable and based on evidentiary facts, Mid-Continent
Resources, 6 FMSHRC 1132 (May 1984).
In my view, in order to establish the existence of hazards
such as operating over voids or holes in the coal pile, which
could materialize at any time, although not necessarily
immediately, MSHA must show the circumstances under which the
tracks were made. In this case, although the inspector believed
that the coal pile in question was in use every week, and
believed that the tracks were no more than 2 or 3 days old
because they were "more pronounced and acute," he conceded that
he made no effort to determine who had operated on the pile,
whether any dozers had actually operated on the pile while the
feeders were in operation, when any dozers may have last worked
on the pile, or when the feeders were last operated. Although the
inspector agreed that dozers normally used by Cyprus are equipped
with operator cabs and safety glass, and the evidence
Page 48
~2616
establishes that self-rescuers and radios are provided for the
dozer operators, the inspector conceded that he did not inspect
any dozers which are used during the reclaiming and stockpiling
operations. Further, the inspector made no effort to identify or
speak with any of the dozer operators, nor did he review any mine
production or work shift records which may have provided him with
some factual information or answers to some of the aforementioned
critical questions. I believe that it is incumbent on the
inspector to at least attempt to develop and establish a factual
basis to support his imminent danger order, particularly in a
case of this kind where there is a contention that Cyprus has
engaged in, and presumably still engages in, an imminently
dangerous practice. On the facts of this case, it seems obvious
to me that the "inspection" made in support of the order was
cursory in nature, and I find nothing to suggest that the
information and evidence which was not developed was not readily
available to the inspector.
Mr. Shuba, the safety committeeman who accompanied the
inspector during his inspection, testified that dozer operators
have told him that there "were times" when they crossed the
feeders, and he alluded to several "close calls" involving dozers
operating over the feeders. However, none of these operators were
identified or called to testify, and no further specific
information was elicited from Mr. Shuba. Mr. Shuba, who confirmed
that he operated a dozer on the pile intermittently since
February, 1989, and for some unspecified "months" prior to the
inspection, denied that he had ever crossed the feeders while
operating a dozer on the pile. However, in its posthearing brief,
MSHA asserts that several "safety contacts" made by mine
management reflect that dozer operators were instructed not to
cross over the feeders, and MSHA "assumes" that these contacts
were made in response to instances of dozers crossing these
feeders. If this assumption is correct, then Mr. Shuba has not
been truthful since three of these "safety contacts" were issued
to him (exhibit O-11). Under the circumstances, I have given no
weight to Mr. Shuba's unreliable and uncorroborated hearsay
testimony concerning what the other unidentified equipment
operators may have told him.
With regard to the "safety contacts" (exhibit O-11), with
the exception of Mr. Shuba, none of the individuals who were
"contacted" testified in these proceedings, and the circumstances
under which they were "contacted" are not known. Some of the
contacts reflect that the foremen reviewed the safe operating
procedures with the employees who presumably worked on the piles,
and others caution employees to be careful while working on or
near the piles. Foreman Graznak, who issued all of the contacts,
prior to the issuance of the imminent danger order on August 30,
1988, could not recall the specifics of each of the contacts, but
conceded that they may have been prompted by someone observing
dozer tracks or other indications that someone had occasionally
Page 49
~2617
crossed over the feeders or operated too close to them. However,
he denied that dozers were crossing over feeders on a regular
basis, and he could recall only one prior incident where a
bridged over cavity developed over one of the feeders.
Mr. Graznak confirmed that the contacts were issued to alert
the individuals of the hazards of working in and around the
stockpiles, and Mr. Shuba, the safety committeeman, confirmed
that mine management has instructed equipment operators not to
work over the feeders, that he was instructed about the proper
"safety zone" for safely working over the feeders, and that a
diagram explaining the safety zone was posted in each machine
that operated on the pile. Further, the evidence presented by
Cyprus establishes that it has a communication system in effect
with respect to the dozers operating in and round the coal pile,
has marked the feeders, has equipped the dozers with cabs, safety
glass, and self-rescuers, has consistently instructed the dozer
operators as to the safety precautions to be taken while working
in and around the pile, and has made it known that it will
discharge any operator found running over feeders.
Mr. Shuba confirmed that due to the confined areas where the
bulldozers must operate during stockpiling, it may be necessary
for a dozer operator to position his dozer over the feeder in
order to get behind the coal and push it towards the pile. Dr. Wu
agreed that it was necessary for a dozer to operate on top of the
pile in order to push the coal into the feeders, and he confirmed
that if the feeders are not operating, there may be a need to
fill any depressions over the feeders during the stockpiling
process. Mr. Graznak confirmed that there is no need for a dozer
to cross over a feeder during the reclaiming operation because
the material which has been moved to the edge of the feeder draw
hole will fall into the hole. Mr. Graznak also confirmed that it
is difficult to maneuver the equipment and avoid crossing the
feeder during stockpiling operations when the feeders are not
operating. He also confirmed that he was aware of other mine
operations where stockpiling activities permitted the travel of
dozers over the feeders while they were locked out and not in
operation. Safety supervisor Dobish corroborated that this was
the case, and the letter of January 4, 1989, from MSHA District 2
Manager Huntley supports Mr. Dobish's belief that under certain
conditions when the feeders are shutdown, dozers are permitted to
operate over the feeders. Under all of these circumstances,
MSHA's contention that a dozer operating over a feeder is at all
times an imminent danger is not well-taken and contradictory.
With regard to the two prior citations issued to Cyprus for
violations of section 77.209, one of them was issued by Inspector
Koscho on August 23, 1988, a week before he issued the imminent
danger order, and it is a section 104(a) citation with special
"S&S" findings (exhibit G-3). Mr. Koscho stated that he issued
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the citation after determining that a bulldozer had slid into a
void created by a feeder while reclaiming coal, and although he
did not personally observe the incident, someone told him about
it, and the dozer operator admitted that he had made a "mistake."
Mr. Koscho further explained that he issued a section 104(a)
citation rather than an imminent danger order because the
violation was abated within 5 minutes and mine management had
previously instructed the dozer operator as to the proper
operating procedure. Mr. Koscho also explained that at the time
he issued the contested imminent danger order, he believed that
the dozer operators were not following management's instructions.
I fail to see the distinction since in both cases the dozer
operators obviously were not following instruction. In addition,
the condition cited in the prior citation was far more serious
than that cited in the subsequently issued imminent danger order
in that the dozer actually slid into a void and had to be
assisted by another dozer to get out, and Mr. Koscho found that a
fatality was highly likely. Even so, he did not believe this was
an imminent danger, nor did he allege that the incident was the
result of any practice.
The second citation for a violation of section 77.209, was
issued by Inspector Newhouse on June 10, 1988, and it too is a
section 104(a) citation with special "S&S" findings. The citation
states that Mr. Newhouse observed a bulldozer operating on a coal
pile at the No. 2 stacker over a reclaim chute that was in
operation, and that he also observed dozer tracks indicating that
bulldozers were working directly over reclaim chutes at the No. 1
stacker, and Mr. Newhouse made a finding that a fatality was
highly likely. When asked why he did not issue an imminent danger
order, particularly since he had personally observed the dozer
over the reclaim chutes while they were in operation, Mr.
Newhouse indicated that "in hindsight" he was "probably mistaken
for not doing so," and he explained that the dozer he observed
did not cross the feeders, and that it was only in "close
proximity" to the feeders. This is contrary to the citation which
specifically states that the dozers were operating directly over
the reclaim chutes or feeders while they were in operation.
I find the explanations offered by Mr. Koscho and Mr.
Newhouse as to why they did not consider the prior incidents to
be imminently dangerous to be rather contradictory and
self-serving. In those instances, the inspectors had reliable and
probative evidence that dozers were in fact operating on the coal
piles over the feeders during reclaiming operations while the
feeders were in operation, and they both found that a fatality
was highly likely. Yet, they concluded that no imminent dangers
were presented. In the instant case, Mr. Koscho had no reliable
and probative evidence that any dozers were operating over any
feeders while they were in operation, and he based his imminent
danger finding on speculative assumptions based on the equipment
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~2619
tracks which he observed on the coal pile. I simply cannot
reconcile these contradictory and inconsistent findings by the
inspectors.
I find no credible or probative evidence in this case to
support any conclusion that the tracks observed by Inspector
Koscho and Mr. Shuba were made while dozers were operating on the
coal pile during reclaiming operations while the feeders were in
operation. Mr. Koscho conceded that he had no way of knowing
whether or not the dozers were reclaiming coal or simply
spreading it out on the pile when the tracks were made. The
tracks at the E feeder were found at a location where the dozer
had apparently reached across a depression with its 7 to 8 foot
blade and then backed up to smooth out the depression in the
pile. If this was done while the feeders were not in operation
during the stockpiling operation, then I can only conclude that
the dozer operator was following a normal practice of addressing
depressions by smoothing them out, and this could not have been
done if the feeder were operating. With regard to the tracks at
the B feeder, there is no credible evidence that the dozer tracks
extended over the feeder, and Inspector Koscho placed the tracks
"in the vicinity" and to the side of the feeder approximately 3
to 4 feet from a depression which he believed resulted from the
coal being fed into the feeder. I do not believe that these
tracks could have been made and left intact if the feeder was
operating.
Given the fact that the evidence and testimony in this case
strongly suggests that the operations of dozers on a coal pile
during stockpiling operations while the feeders are shutdown and
not operating in order to fill the holes and voids left by the
operation of the feeders is not specifically prohibited and seems
to be an acknowledged method of operation, I believe it is just
as reasonable as not for one to conclude that the tracks in
question were made during the stockpiling operation while the
feeders were not in operation, and that the dozer operators were
not exposed to the danger of any voids or holes when the tracks
were made.
In view of the foregoing findings, and conclusions, and
after careful consideration of all of the evidence and testimony
in this case, I cannot conclude that MSHA has established by a
preponderance of the evidence that Cyprus has engaged in any
imminently dangerous practice. Under the circumstances, the
inspector's finding in this regard is rejected and the contested
imminent danger order IS VACATED.
ORDER
On the basis of the foregoing findings and conclusions, IT
IS ORDERED AS FOLLOWS:
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1. Docket No. PENN 89-45. Section 104(a) "S&S"
Citation No. 3087308, August 30, 1988, citing a viola-
tion of 30 C.F.R. 77.209, IS VACATED, and MSHA's
proposed civil penalty assessment IS DENIED AND
DISMISSED.
2. Docket No. PENN 88-325-R. Section 107(a) Imminent
Danger Order No. 3087309, August 30, 1988, IS VACATED.
3. Docket No. PENN 88-318-R. Section 104(d)(2) Order
No. 3087446, August 31, 1988, citing a violation of 30
C.F.R. 77.205(b), IS MODIFIED to a section 104(a)
"S&S" citation, and the violation IS AFFIRMED. Cyprus
is assessed a civil penalty in the amount of $400 for
the violation.
4. Docket No. PENN 89-194. Cyprus IS ORDERED to pay
civil penalty assessments for the following section
104(a) "S&S" citations which have been affirmed and/or
settled in these proceedings:
Citation No. Date 30 C.F.R. Section Assessment
3087305 08/30/88 77.400 $400
3087444 08/31/88 77.404(a) $325
3087600 08/30/88 77.1607(bb) $450
3087446 08/31/88 77.205(b) $400
Payment of the civil penalty assessments shall be made by
Cyprus to MSHA within thirty (30) days of the date of these
decisions and order, and upon receipt by MSHA, the civil penalty
proceeding is dismissed.
George A. Koutras
Administrative Law Judge
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