Tanoma Mining Company, aka Tanoma Mining Company, Inc.

Plain-English summary

Tanoma Mining Company operated an underground coal mine where MSHA cited inadequate guarding around a belt drive and a tail pulley. Judge William Fauver found that both conditions violated 30 C.F.R. § 75.1722(b) and were significant and substantial because a miner could contact a roller pinchpoint and suffer a serious injury. He found ordinary negligence rather than unwarrantable failure for the belt-drive order, converted that order to a section 104(a) citation, and affirmed it as modified. He affirmed the tail-pulley citation and assessed total civil penalties of $2,088.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1722(b)
• Outcome: The belt-drive order was converted to a section 104(a) citation and affirmed as modified. The tail-pulley citation was affirmed. Total penalties were $2,088.
• Key point: A board-and-posts arrangement that leaves belt-drive pinchpoints reachable does not satisfy the guarding standard.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. TANOMA MINING
DDATE:
19940131
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 93-111
Petitioner : A. C. No. 36-06967-03775
v. :
: Docket No. PENN 93-112
TANOMA MINING COMPANY, aka : A. C. No. 36-06967-03773
TANOMA MINING COMPANY, INC., :
Respondent : Tanoma

                            DECISION

Appearances: Maureen A. Russo, Esquire, Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
PA for Petitioner;
Joseph A. Yuhas, Esquire, Barnesboro, PA for
Respondent.

Before: Judge Fauver

 This is an action for civil penalties under   110(a) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the Findings of Fact and
Further Findings in the Discussion below:

                      FINDINGS OF FACT

 1.   Respondent operates an underground coal mine known as

the Tanoma Mine, which produces coal in or substantially
affecting interstate commerce.

  2.  On September 23, 1992, Federal Mine Inspector Gene T.

Ray issued Order No. 3486015 at the Tanoma Mine, alleging in
part:
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1 To conform to the evidence, the caption is hereby AMENDED to
add the following to the name of Respondent: "aka Tanoma Mining
Company, Inc."

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No guards of any kind were installed on the
discharge roller and drive rollers of the C-1 No. 2
belt drive. This belt drive had been installed on September
22, 1992 and coal was loaded with this drive on September
23, 1992 on the 12:00 a.m. to 8:00 a.m., shift. This
condition is easily observed and the area had been pre-
shifted. This drive is also in a location were responsible
persons travel on a frequent basis during the shift and
should have been observed. This area was a wet slippery
location and persons could fall and come in contact with
these rollers.

    After an MSHA-operator conference, the order was modified to

read:

         Due to the results of a Health and Safety
    Conference. This order is hereby modified to show
    Section I No. 8 as deleting the first sentence and
    including the following.

         Adequate guarding was not provided for the
    discharge roller and drive rollers of the C-1 No. 2
    belt drive in that a wooden plank was attached to posts
    on each side of the belt drive that persons could reach
    over, under and around and become caught in the
    inadequately guarded rollers. This order is also
    modified to show Section I No. 9(c) as 75.1722(b)
    instead of 75.1722(a).

    The regulation cited, 30 C.F.R.   75.1722(b), states:

    75.1722 Mechanical equipment guards.

         (b) Guards at conveyor-drive, conveyor-head, and
    conveyor-tail pulleys shall extend a distance
    sufficient to prevent a person from reaching behind the
    guard and becoming caught between the belt and the
    pulley.

 3.   The operator had installed a board on each side of the

low belt drive. Each board, nailed to 2 posts, was about 14 feet
long, 4 to 6 inches wide, and about 1 to 1-1/4 inches thick.

 4.   On the "clearance side" of the belt drive, the

discharge roller extended about 20 inches beyond the edge of the
belt. The board was about 36 inches from the mine floor, and
about 4 feet from the pinchpoint of the drive roller. Each end
of the board extended about 6 inches from the post, leaving an
exposed area of the belt drive of 2 or 3 feet. The discharge
roller was not reasonably accessible to accidental contact
because the discharge roller was above the center of the main
belt, 56 to 57 inches above the mine floor. The nearest

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pinchpoint on the drive rollers was about 45 or 46 inches from
the board. A person falling under the board might reach out to
break the fall and come in contact with a pinchpoint on a belt
drive roller. Also, a person might fall beyond the end of the
board and accidentally come in contact with a belt drive roller
pinchpoint.

 5.   On the "tight side" of the belt drive, the nearest

pinchpoint of the drive rollers was about 2 feet from the board
and the travelway was about 2 feet wide. The nearest pinchpoint
of the discharge roller was also close to the board. Persons on
the tight side might fall and accidentally come in contact with a
pinchpoint of a drive or discharge roller.

 6.   The mine floor around the belt drive was wet and

slippery.

 7.   A low belt drive discharges coal onto a main belt. The

low belt is mobile, and usually moves in a month or two, whereas
the main belt is immobile and kept in one place for a long
period.

 8.   Low belts are stopped for maintenance work

(lubrication, adjustments, repairs, etc). Also, cleanup work
around a low belt is usually done when the belt is stopped.
However, at times miners may shovel or clean up around a moving
belt. Miners travel on the clearance side of the belt and on
less frequent occasions may have duties on the tight side of the
belt drive.

 9.   The operator used the board-and-posts method of

guarding low belt drives for years, and continued to use this
method after the citation was terminated. To abate the condition
cited by Inspector Gay, the operator installed belting material
to prevent contact with the belt drive and discharge rollers.
However, when the low belt conveyor was moved after the citation,
the belting material was not used and the operator resumed the
same practice of using a board nailed to two posts as the only
guard of the low belt drive.

 10. Before and after the citation issued by Inspector Gay,

low belts drives were frequently inspected by MSHA but no other
MSHA inspector cited a violation for the board-and-posts method
of guarding a low belt drive.

                  Citation No. 3708614

 11. On October 13, 1992, Federal Mine Inspector Joseph E.

Colton issued Citation No. 3708614, alleging in part:

      Guards were not provided to prevent a person from
 contacting the rotating tail pulley of the Low belt

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located in the 016 active section. This tail pulley was
approximately 9" in diameter and centered 10" above the mine
floor. Both sides of this conveyor system tail pulley area
contained a 13" x 7 1/2" opening on each end of this pulley and
bearing block assembly. And a 7 1/2" x 22" opening directly in
front of this pulley. The tail piece is located 48" from the
coal rib and the height of this entry is approximately 52".

 12. On the sides of the tail pulley, there were openings

about 13 inches by 7-1/2 inches on each end of the tail pulley
and bearing block assembly. There also was an opening about a
7-1/2 inches by 22 inches directly in front of the pulley.

 13. Guarding for the tail pulley did not extend down the

sides to prevent contact or to prevent a person from reaching in
and coming in contact with pinchpoints.

      DISCUSSION, FURTHER FINDINGS AND CONCLUSIONS

                    Order No. 3486015

 30 C.F.R.   75.1722(b) provides: "Guards at conveyor-drive,

conveyor head, and conveyor tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind and becoming
caught between the belt and the pulley."

 The only guarding for the C-1, Number 2 belt drive was a

four to six inch wide board on each side of the pulley, nailed on
two posts and positioned about 36 inches from the ground.

 Each board ended about 6 inches beyond the posts, and left

the discharge rollers exposed on both sides of the belt. The
boards served more as a warning, rather than a guard, and plainly
did not "extend a distance sufficient to prevent a person from
reaching behind and becoming caught between the belt and the
pulley." Also, as stated in the Findings, above, in places the
boards would not prevent accidental contact with the pinchpoints.

 I therefore find a violation of   75.1722(b).

 The Secretary alleges that the violation was "significant

and substantial." A "significant and substantial" violation is
defined in 104(d)(1) of the 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." The
Commission has developed the following tests (in Mathies Coal
Co., 6 FMSHRC 1, 3-4 (1984):

      In order to establish that a violation of a
 mandatory safety standard is significant and
 substantial . . . the Secretary of Labor must prove:

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(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:

      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).

 The question of whether a violation is significant and

substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny &
Ohio Coal Company, 9 FMSHRC 1007 (1987).

 I find there was a reasonable likelihood that, if the

condition remained unabated, a miner would come in contact with a
roller pinchpoint and suffer a serious injury. Contact could
result from reaching out to break a fall and becoming caught
between the belt and roller.

 I therefore find that the violation was significant and

substantial.

 The Secretary also alleges that the violation was

"unwarrantable" within the meaning of the Act. In Emery Mining
Corp., 9 FMSHRC 1997, 2004 (1987), the Commission held that
"unwarrantable" means aggravated conduct constituting more than
ordinary negligence. Applying this test, I find that the
Secretary has not proved an "unwarrantable" violation. The
operator regarded the board-and-posts method as an adequate guard
and a number of MSHA inspectors apparently had seen this type
guard and not cited a violation. I find there was ordinary
negligence.

 Considering all the criteria for a civil penalty in   110(i)

of the Act, I find that a civil penalty of $1,800 is appropriate
for this violation.

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Citation No. 3708614

 On each side of the tail pulley there was an opening of

about 7-1/2 inches by 13 inches. There also was an opening in
front of the tail pulley. I find there was a reasonable
likelihood that, if the condition remained unabated, a miner
would come in contact with a roller pinchpoint and suffer a
serious injury. I therefore find that this was a "significant
and substantial" violation.

 Considering all the criteria for a civil penalty in   110(i)

of the Act, I find that a civil penalty of $288 is appropriate
for this violation.

                      CONCLUSIONS OF LAW

   1.   The judge has jurisdiction.

 2. Respondent violated 30 C.F.R.    75.1722(b) as alleged in

Order No. 3486015 with the exception of the allegation of an
"unwarrantable" violation.

 3. Respondent violated 30 C.F.R.          75.1722(b) as alleged in

Citation No. 3708614.
ORDER

 1. Order No. 3486015 is converted to a    104(a) citation

without an allegation of an "unwarrantable" violation and as such
is AFFIRMED.

   2.   Citation No. 3708614 is AFFIRMED.

 3. Respondent shall pay civil penalties of $2,088 within

30 days of the date of this Decision.

                             William Fauver
                             Administrative Law Judge

Distribution:

Maureen A. Russo, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

Joseph A. Yuhas, Esq., Tanoma Mining Company, 1809 Chestnut
Avenue, Ebensburg, PA 15714 (Certified Mail)

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