Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources contested a safeguard citation concerning underground rail traffic at its Bessie Mine. The Judge found that the mine's radio-only system did not adequately control collision risk because vehicles used a single track with steep grades, blind spots, and conditions that could interfere with radio reception. He held that the inspector properly required either positive clearance from a designated person or a maintained block-signal system under the transportation safeguard provision. The Judge found that the safeguard had not been followed and dismissed the contest of the citation. The order did not set a civil penalty amount.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1403 and 30 U.S.C. § 874(b)
• Outcome: The safeguard citation contest was dismissed, leaving the citation in place. No penalty amount was set in the order.
• Key point: A mine's traffic-control system must minimize collision hazards where single-track travel, blind spots, steep grades, and unreliable radio reception create a risk of head-on collisions.

Full text (FMSHRC public release)

CCASE:
JIM RESOURCES V. SOL (MSHA)
DDATE:
19870115
TTEXT:

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

JIM WALTER RESOURCES, INC., CONTEST PROCEEDING
CONTESTANT
v. Docket No. SE 87-29-R
Citation No. 2810754; 12/9/86
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Bessie Mine
ADMINISTRATION (MSHA),
RESPONDENT

                           DECISION

Appearances: R. Stanley Morrow, Esq. and Harold D. Rice, Esq.,
Birmingham, Alabama, for Contestant;
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama
for Respondent.

Before: Judge Weisberger

                    Statement of the Case

 Docket Number SE 87-29-R is a notice of contest filed by Jim

Walter Resources, Incorporated on December 12, 1986 to review a
Citation, issued December 9, 1986, and a underlying safeguard
notice issued December 5, 1986 by an inspector of the Mine Safety
and Health Administration under Section 104(a) of the Act.

 In this citation December 19, 1986 was provided as the date

that termination was due. Subsequently, this date was extended
until January 19, 1987.

 On December 12, 1986 Contestant filed a Motion For Expedited

Proceedings. On December 12, 1986, this case was assigned to me
by Chief Judge Paul Merlin. On December 12, 1986 in a conference
call between Contestant, Respondent, and the undersigned it was
agreed that trial for this matter be scheduled for January 5,
1987. By Notice of Hearing dated December 19, 1986 Contestant's
Motion For Expedited Proceedings was granted and the matter was
set for hearing in Birmingham, Alabama on January 5, 1987. The
hearing was held as scheduled. Bill Pitts, Gerald Tuggle, James
A. Jones, Stephen W. Vaughn, and Edward Scott testified for
Respondent. Bobby Taylor testified for Contestant.

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Applicable Statute and Regulations

 Section 314(b) of the Act which also appears in 30 C.F.R.

75.1403 provides as follows:

       Other safeguards adequate, in the judgment of an
       authorized representative of the Secretary, to minimize
       hazards with respect to transportation of men and
       materials shall be provided.

            Notice to Provide Safeguards and Citation

 The subject notice to provide safeguards dated December 5,

1986 provides as follows:

       Present means of controlling the underground rail
       traffic is inadequate in that a person designated by the
       operator to give clearance was not provided nor
       blocked signals being used.
       This is a notice to provide safeguard requiring all
       underground rail traffic to require clearance from a
       person so designated by the operator or block signals
       to be installed and maintained in an operative
       condition to provide clearance.

 The subject citation, dated December 9, 1986, provides as

follows:

       The mine operator failed to comply with a notice to
       provide safeguard number 2810752 issued December 5,
       1986 that required all underground rail traffic to
       require clearance from a person so designated by the
       operator or block signals to be installed and
       maintained in an operative condition to provide
       clearance. No plan nor work was presented to comply
       with the safeguard on the termination date due December
       9, 1986 at 8 o'clock a.m.

            Stipulations with Reguard to Jurisdiction

   The parties stipulated as follows:

 1. The operator is the owner and operator of the subject

mine.

 2. The operator and the mine are subject to jurisdiction of

the Federal Mine Safety and Health Act of 1977.

 3. The Administrative Law Judge has jurisdiction over this

case.

 4. The MSHA Inspector who issued the subject citation was a

duly authorized representative of the Secretary.

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5. A true and correct copy of the subject citation was properly
served upon the operator.

               Findings of Fact and Discussion

 In Contestant's Bessie Mine, aside from walking, the only

way of transporting men and material from the entry to the
various work area is by way of tranportation vehicles such as
jeeps, locomotives, or trip motors, all of which must travel
along a single track. This track is used for transportation of
vehicles going into and out of the mine. These transportation
vehicles use the track during every shift. In order to prevent
head-on collisions Contestant has furnished each transportation
vehicle with a two-way telephone-radio which gets its power from
a trolley line which is also used to power the vehicle. In
general, according to the uncontradicted testimony of Inspector
Gerald Tuggle, and Contestant's motorman James A. Jones who
testified for Respondent, an operator when leaving a certain
area, such as Header Number 3, would call to say that he is
leaving Header Number 3 and going to Header Number 4. These calls
are done in transit and the operator does not wait for any
response.

 According to the uncontradicted testimony of Inspector

Tuggle and motorman Jones, the track in the Bessie Mine contains
steep upgrades followed by steep downgrades especially throughout
the Palos Shaft between Header Number 3 and Header Number 7.
Indeed, the uncontradicted testimony of Tuggle and Jones
establishes that the slope of the upgrades and downgrades are so
steep, as to create numerous blind spots where vision is so
limited that an operator of a vehicle at that point is unable to
see a vehicle coming at him from the opposite direction and that
in essence these conditions are "unique" to Bessie Mine (Tr.
106). Blind spots are also present in areas where the track
leaves the belt and enters a S curve. Mr. Tuggle's uncontradicted
testimony established that other mines may have upgrades and
downgrades, but they are not as bad as in the Bessie Mine. Also,
there are areas of the track that have rock dust, debris or sand
which prevent a vehicle's wheels from fully touching the rail,
thus eliminating a ground for the telephone-radio and causing
static or interference. According to the uncontradicted testimony
of Tuggle, sand is used "a lot" due to the hills and hollows of
the track at Bessie Mine.

 Contestant's only witness, Safety Inspector Bobby Taylor,

stated that in his opinion the present telephone-radio system of
preventing head-on collisions or collisions in blind spots is
"not inadequate." In essence he said that in general in
approaching blind spots one should slow down and operate at a
speed which is consistent with track conditions. Although
excessive speed might be a contributing factor to collisions, the

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issue here is whether Contestant's telephone-radio system, when
used while traveling at proper speed, resulted in any increased
risk of collision.

 Taylor testified that when approaching a blind spot it is

possible to be warned by the lights of an oncoming vehicle. He
testified that when the vehicle lights are not functioning one
can see cap lights of the miners riding in the vehicle. On
cross-examination Jones admitted that it is possible to see the
light of a oncoming jeep before a collision. However, it can not
be found that the risk inherent in approaching a blind spot,
i.e., not knowing for certainty that there is not any vehicle
beyond the blind spot, is minimized to any great degree by being
able to see the light on the oncoming vehicle especialy
approaching the end of a blind area or going around an S curve at
normal speed. There is no clear convincing evidence as to the
distance which one can see and be warned by a light of the oncoming
vehicle especialy approaching the end of a blind area or going
around an S curve at normal speed.

 The balance of the evidence indicates that the present

system of controlling traffic creates a risk of injury due to the
specific conditions of the contour of the track of the Bessie
Mine. Indeed, even Taylor indicated that the present system could
work "with certain improvements" (Tr. 229). Considerable weight
was accorded the testimony of Jones and Scott due to the
extensive nature of their experience operating and riding
vehicles along the track of Bessie Mine. In this connection it is
noted that Jones has been a motorman for 6 years, and Scott
worked as a motorman for 20 years and as a fire boss for 12 years.
In essence, their testimony corroborates the opinion of Tuggle
that under the present system whenever transportation enters a
blind spot there is uncertainty in not knowing whether another
vehicle is coming in the opposite direction or is stuck beyond the
blind spot. Due to the fact that the responsibility of the
operator of a vehicle along the track is only to indicate on the
telephone-radio that he is leaving a point to go to another
point, he can only be warned of a oncoming vehicle or a vehicle
disabled in a blind spot if the second vehicle has communicated it
is leaving a certain area and the first vehicle heard the
transmission. The oncoming vehicle, similarly, will avoid risk of
collision only if its telephone-radio received communication from
the first vehicle as to its destination. However, the
uncontradicted testimony of Tuggle was that material on the
track, a condition peculiar to Bessie Mine, prevents a good
ground for the telephone-radio and thus prevents adequate
reception and transmission. Further, due to the numerous blind
spots, caused by steep upgrades and downgrades of the track, and
the fact that there is only a single track that carries traffic
every shift, the risk of collision is quite high. Indeed,
Contestant's witness Taylor testified that about once a week
while traveling in a vehicle underground he has unexpectantly met
a vehicle coming in the opposite direction and that the vehicle
operator did not hear communications from Taylor's vehicle.
Tuggle, Scott and Jones also testified to similar occurrences.

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It is thus found that the present system, which allows a vehicle
operator to proceed into a blind area without receiving positive
clearance, increased the risk of collision. Section 304(b) of the
Act which also appears at 30 C.F.R. 75.1403, in essence
authorizes a Federal Mine Inspector to issue safeguards which in
his judgment will "minimize hazards" with respect to
transportation of men and materials. It is clear that the
safeguard issued by Tuggle on December 5, 1986 falls within the
purview of the above section. This safeguard requires underground
rail traffic to require clearance from a person designated by the
operator or in the alternative block signals are required.
According to the uncontradicted testimony of Tuggle, under a
dispatch system a vehicle operator must call the dispatcher
before proceeding into a certain area. The operator can proceed
into the area only after the dispatcher tells him the area is
clear. In a Block System, according to the uncontradicted
testimony of Scott and Tuggle, an operator of a vehicle upon
entering an area turns on a traffic light. This light remains on
until the operator clears the area and turns the light off.

 Taylor testified that the present system is better than a

dispatcher and as good or better than a Block System. He
testified that in the 9 months that he worked at Bessie Mine,
which has neither a Block System nor a dispatcher, there were no
wrecks. In contrast, he said that at the Number 3 Mine which has
a Block System and a dispatcher, in any 9 month period since 1973
there have been more wrecks. However, there were no records
produced to provide evidence that the accidents at Number 3 Mine
were caused solely by a malfunction of a dispatcher or Block
System. They could have resulted from negligence or other causes.
What is clear is that the present system creates a risk of injury
and that the safeguard in the judgment of Tuggle will minimize the
risk. This opinion in essence was corroborated by the testimony of
Scott and Taylor. Considerable weight was placed on their
testimony due to their extensive experience operating and riding
on underground transportation vehicles especially at the
Bessie Mine.

 The traffic control systems required in the safeguard are

clearly not fool proof. On cross-examination Tuggle indicated that
there could be people who would not call a dispatcher as required,
and Taylor indicated that a dispatcher might erroneously give
clearance to two vehicles to enter the same area at the same time.
It is clear that any system will not decrease the risk of injury
if there is human error. There is no way to insure 100 per cent
against human error. However, a dispatcher system used properly,
will insure that a vehicle will not enter a blind spot unless it
has positive clearance from a dispatcher. This will minimize the
hazard of collision inherent in the present system.

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Taylor indicated that with the Block System there is a continuous
problem of lights going out. More weight was placed on the
testimony of Scott due to his 20 years experience operating and
traveling underground vehicles in mines with a Block System in his
job as fire boss. It was his testimony that although block lights
could go out, these are one of the first items a fire boss inspects.
It is concluded that a Block System, which is maintained, will thus
minimize risk of collision in blind spots, as under that system a
vehicle would not enter an area containing a blind spot if the light
is lit. Accordingly, the hazards of the present system will be
minimized.

 At the hearing no evidence was presented to rebut statements

in the December 9, 1986 Citation and testimony of Tuggle that
safeguard 2810752 has not been complied with.

 Based on all of the above, it is concluded that the

safeguard of December 5, 1986 was properly issued. The Contestant
has failed to comply with the safeguard issued on December 5,
1986. As such, the citation (2810054) of December 9, 1986 was
properly issued.

 At the hearing counsel for both parties presented opening

arguments. At the conclusion of the hearing counsel for both
parties presented proposed findings of facts and posthearing
arguments. In reaching my decision I have considered all these.

 At the hearing the parties additional stipulations were

offered as follows:

 1. The history of the company with reguard to violations is

average.

 2. Imposition of a penalty will have no effect on the

ability of the operator to continue in business.

   3. The size of the operator is medium.

 4. The negligence of the operator, in the violation referred

to in citation 2810054 is low.

 5. The gravity of the violation contain in citation 2810054

with reguard to the likelihood of an accident or injury was as
testified to by Tuggle.

 6. The violation referred to in citation 2810054 was not

abated on the respresentation of counsel. This is not considered
to be a lack of good faith.

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ORDER

 It is ORDERED that the Contest, filed on December 12, 1986,

contesting citation 2810054, be DISMISSED.

          Avram Weisberger
          Administrative Law Judge