Jim Walter Resources Incorporated

Plain-English summary

Jim Walter Resources contested a safeguard notice requiring additional protection in a man cage at its No. 4 Mine and a later citation alleging that the safeguard had not been followed. Judge Albert E. Koutras found that the inspector had identified a specific transportation hazard because the cage could stop suddenly while carrying miners at high speed, and that the safeguard gave the operator fair notice of the required protection. He affirmed the safeguard notice, the citation, and the significant-and-substantial finding. The record states that the cage had been abated with additional safety chains, and the contests were denied.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1403-1(b) and 30 C.F.R. § 75.1403-3(b)
• Outcome: The safeguard notice and section 104(a) citation were affirmed, and both contests were denied.
• Key point: A safeguard may be enforced when it addresses a specific mine transportation hazard and gives the operator fair notice of the required protection.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ,
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                          tlAY i 3 1992
j JIM WALTER RESOURCES                  ..   CONTEST PROCEEDINGS
    INCORPORATED,                       :
i                 Contestant            :    Docket No. SE 91-750-R
            v.                          :    Safeguard No. 2805189: 0/a/91
                                        1

  SECRETARY OF LABOR,                   :    Docket No. SE 91-751-R
    MINE SAFETY AND HEALTH              :    Citation No. 2805196: 8/12/91
1   ADMINISTRATION (MSHA),              G

I                Respondent             : No. 4 Mine
                                        :
                                        : Mine ID 01-01247
                                  PECISIOHS
 Appearances:    R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim
                 Walter Resources, Inc., Brookwood, Alabama, for
                 the Contestant:
                 George D. Palmer, Associate Regional Solicitor,

I
U.S. Department of Labor, Office of the Solicitor,
Birmingham, Alabama, for the Respondent
Before: Judge Koutras
Statement of the Proceedinas
These proceedings concern Notices of Contests filed by the
contestant (JWR) against the respondent (MSHA) pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977,
challenging safeguard notice No. 2805189, issued on August 8,
1991, pursuant to 30 C.F.R. 5 75.1403-1(b). JWR also challenges
a section 104(a) "StS1' citation No. 2805196, issued on August 12,
1991, charging JWR with an alleged violation of 30 C.F.R.
§ 75.1403-1(b), for allegedly failing to comply with the
requirements of the August 8, 1991, safeguard notice. A hearing
was held in Birmingham, Alabama, and the parties waived the
filing of posthearing briefs. iiowever, I-have considered their
arguments made on the record during the course of the hearing in
my adjudication of these matters.
rssues
The issues presented in these proceedings are as follows:
(1) Whether the initial safeguard notice was properly
issued based on a specific mine hazard involving

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Page 2

       the transportation of men and materials at
       JWR's No. 4 Mine.
 (2)   Whether the contested citation which followed the
       issuance of the safeguard notice was properly issued
       for a violation of the safeguard notice and 30 C.F.R.
       I 75.1403-3(b).
 (3)   Whether the alleged violation was "significant and
       substantial". Additional issues raised by the parties
       are identified and disposed of in the course of these
       decisions.
       Auolicable Statutorv and Resulatorv Provisions
 1. The Federal Mine Safety and Health Act of 1977,
 Pub. L. 95-164, 30 U.S.C. § 801, et sea.
 2.    30 C.F.R. h 75.1403; 75.1403-1, 75.1403-3(b).
 3.    Commission Rules, 29 C.F.R. fi 2700.1 & sea.
                        Stimulations
 The parties stipulated to jurisdiction, and that the

contestant (JWR) is a large mine operator. They also agreed that
the payment of the proposed civil penalty assessment, which has
not formally been processed, will not adversely affect the
respondent's ability to continue in business (Tr. 5).

Docket No. SE 91-750-R
Safeguard Notice No. 2805189, was issued on August 8, 1991,
by MSHA Inspector Claude A. Lutz, pursuant to 30 C.F.R.
5 75.1403(b). The notice states as follows:
The man-cage being operated with 65 personnel into the
2,000 foot shaft, and out, with no means of prevent
(sic) the employees from be (sic) pushed off the east
and west side man cage; except a single chain extended
across the east and west side of man cage. The man
cage is approximately 10 x 14 feet used to transport 65
employees each man trip three shifts a day. This
safeguard is to prevent employees from being pushed or
thrown against the shaft walls. The east and west side
of the 14 x 10 man cage shall be (sic) provide a gate
or some other means that will provided (sic) the same
safety for the employees.
1. The other means shall provided (sic) protection for the
employees so that they cannot be throw (sic) against the
shaft walls, if man cage should come to a sudden stop in the
shaft.

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Page 3

         2. Gate, safety chains that will provided (sic) employees
         from being throw (sic) out or against the shaft walls.

\ 3. Bars may also be used if they provide the same
protection. Any of the above means can be used, the height
3 of the above means should be approximately 5 feet high, and
t
i so designed so employees cannot be throw (sic) through or
I under the protection (sic) through or under the protection
1 (sic) chains, bars, or gate.
I
Docket No. SE 91-751-R
4a
On August 12, 1991, Inspector Lutz issued section 104(a)
: “S&S M Citation No. 2805196, citing JWJ? with a violation of
;30 C.F.R. § 75.1403-3(b), and he made reference to the previously
'issued safeguard notice of August 8, 1991, to support the
:citation. The cited condition or practice is described as
~follows:
Added safety chains was not provided on the west and
east side of the man cage to protect employees from
being thrown out of the cage when the hoist cause (sic)
man cage to come to a sudden stop in the shaft. The
man cage has only one safety chain across the east and
west side of cage when transporting 65 employees in and
out of the 2000 foot shaft. The safety chain across
the east and west end of the man cage only extended,
west side 32 l/2 inches above the cage floor, and
33 l/2 inches on the east side of man cage. The one
(1) chain is not adequate protection.
Inspector Lutz made a finding that the alleged violation was
"significant and substantial" and he fixed the abatement time as
8:00 a.m., August 16, 1991. Subsequently, on August 16, 1991, he
extended the abatement,time to 8:00 a.m., August 19, 1991, and
the justification for this extension states as follows:
The operator added a safety chain approximately 5 feet
on the east and west side of the man cage. However,
there was not a safety chain between the safety (sic)
33 l/2 inches above man cage floor. The safety chain
should be added to make sure that employees legs cannot
place legs in a danger area outside of the man cage :
when the 65 employees are being transported into and ..
out of the 2000 feet shaft. The operator requested
more time to consider other means, or to complie (sic)
with the criteria of the safeguard.

                                    849
                                                                              i

Page 4

 Inspector Lutz terminated the citation on August 19, 1991,

and the termination notice states as follows:
Added safety chains were provided for the East and West
side of the service hoist man cage that transports
approximately 300 employees into and out of the 2,000
ft. service shaft (5) days a week when the mine is
operating.
MSHA's Testimony and Evidence
James Blankenshin, testified that he has worked at the No. 4
Mine since 1980 and that he is an alternate member of the safety
committee and serves as vice-president of his union. He has
ridden the cited man cage hundreds of times, and he stated that
it operates with four large ropes and guide rails similar to a
"track" and can accommodate 65 people. The cage has a mesh
floor, and mats are placed down during the winter to keep out the
cold air. He confirmed that he has ridden the cage when it has
stopped suddenly both up and down, and he stated that llItlll put
you on your knees if your not careful. .you're dropping at
900 feet a minute, and . . . . as far as the safety device that
takes it out, it stops instantly. And I've seen people on the
ground on the floor." (Tr. 10). He confirmed that "grab chains"
are provided, but that "people will grab you by the shoulder to
keep from fallingI (Tr. 10).
On cross-examination, Mr. Blankenship confirmed that there
are two or three "grab chains I( hanging against the cage wall, but
not enough for everyone to use when there are 65 people on the
cage. He has never been injured while riding the cage (Tr. 11).
However, he believed that someone was injured getting off the
cage, but he knew of no one else being injured while riding the
cage (Tr. 11-12). JWR's counsel introduced an accident report
which reflects that someone was injured on January 27, 1992,
while exiting the man cage and becoming entangled in some excess
chain guards (Exhibits CX-1, Tr. 13).
In response to further questions, Mr. Blankenship confirmed
that 65 people typically ride the man cage. He stated that he
was present when Inspector Lutz returned to abate the citation.
At that time, there were two chains installed on the cage, but
Mr. Lutz did not believe they were sufficient "to keep people
from going over, through, or under the chains", and he extended
the citation. Maintenance Superintendent Frankie Lee was
concerned that with the addition of a third chain, if it came
loose and fell down the shaft it could damage the cage. Mr. Lutz
informed him that it was management's responsibility to keep the
chains secured (Tr. 16).
Billv Joe Martin, confirmed that he was the individual who
was injured on January 27, 1992, while exiting the man cage at

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Page 5

the end of his shift. He explained that the chains were unhooked
'and thrown down on the floor, and while everyone was exiting at
lthe same time, his foot became entangled in the chains and he
istarted to fall. He caught himself with one foot, but the chain
icaught his other foot and he was injured. He confirmed that he
missed two weeks of work as a result of this injury (Tr. 17-19).
i p13sHA Insnector Claude Lutz testified that he issued the
'gontested safeguard notice and citation and he identified exhibit
;~-l as two photographs of the chain and man cage. He confirmed
&hat one chain was installed at the front and rear of the cage at
the time he issued his initial safeguard notice, and that after
abatement of the citation three chains were installed at each end
f(Tr. 20). He stated that the cage travels at 13.3 feet per
pecond, or 900 feet per minute, and that the shaft is 2,000 feet
deep. The cage was installed in 1977 or early 1978, and a single
chain was installed on each man cage at all of JWR*s mines at
that time (Tr. 22-23).
I Mr. Lutz stated that a complaint was received from the No. 4
bine on July 31, 1991, because the cage was @tkicking off", and he
jinvestigated the matter. He stated that in the event the cage
tripped off while travelling at 900 feet per second one may not
be able to react and hit the stop button and it was impossible to
say that serious injuries would not occur. He described the
resulting hazards as follows at (Tr. 23-25):
The hazards would be if a man got tripped or thrown or
if several men did in the shaft wall, traveling at
those speeds and even if it stopped, whenever it
stopped it threw him into -- such a sudden stop and if
it threw him in there, and his arms or leg or head
became entangled when the cage does this, it bounces
upward, it could tear off an arm or a leg, even kill
him.
* * * * * * *

:    We're talking, if this occurred, if those men came out,
i
     we're talking torn-off arms and legs, skin -- torn up
     bodies or perhaps even a head because there is some
il   distance between there. Now I taken measurements.
f    There was seven to thirteen inches difference between
     the wall and the flange on that cage floor.

I     Mr. Lutz confirmed that he based his "significant and
substantial" finding on "the amount of injury if the accident
bccurred, the amount of injury that it could do to him. And of
course, I expected it to occur by this hoist continuously
tripping off. We didn't know whether it was completely fixed or
irot" (Tr. 26).
I



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Page 6

 Mr. Lutz stated that at the time he issued the safeguard on

August 8, 1991, requiring a chain, he spoke with the mine manager
and discussed the alternative use of nylon gates or other means
of protecting the men in the event the cage tripped out.
Management refused to do anything unless he put it in writing,
and the safeguard notice followed (Tr. 28). He explained that he
spoke with his supervisor and that "1 didn't have any other
choice but to issue a safeguard to get it done before we did have
an accident occurW (Tr. 30).
Mr. Lutz stated that it was possible for an accident to
happen even if the emergency stop did not trip. A rail could
loosen and anything can occur at the speed the cage travels, and
even though the cage is inspected daily, anything can occur
because of its daily use (Tr. 30). He also confirmed that in the
event of a shift in the weight of the people on the cage, one
chain would only provide a workload support of 1,250 pounds,
while three chains would provide additional support and would
equalize the weight and spread out the impact (Tr. 30-31). He
confirmed that he is not aware of any man cage injuries at the
No. 4 Mine caused by the hoist "kicking out'@ while it was in
operation (Tr. 33).
Mr. Lutz confirmed that the specific condition at the No. 4
Mine which prompted the issuance of the safeguard was the
reported "tripping out" of the man cage and the men riding the
cage while this was occurring (Tr: 39). He believed that someone
could stick their foot out of the cage or be pushed out into the
shaft wall without any problem with just a single protective
chain (Tr. 40-21). He confirmed that the cage was repaired and
that it was put back into service, and by the next day, it
started "kicking out" again, but he was not sure whether this was
before or after he issued the safeguard. He insisted that the
safeguard was issued llbecause there was a hazard there" (Tr. 43).
He confirmed that the safety committee had requested a
section 103(g) inspection because of the tripping problem on the
same cage and that he issued an imminent danger order and a
*l(d) Order", which was subsequently modified to a section 104(a)
citation (Tr. 44-45).
JwR1s Testimonv and Evidence
Frankie Lee, maintenance superintendent, testified that he
is responsible for the hoist in question and he confirmed that it
was installed with a single chain and that it was inspected and
approved by MSHA. He stated that the hoist began tripping in
June, 1991, and that the safety devices are redundant safety
features that are intended to trip when there is a problem. The
hoist could trip for different reasons, and the one in question
did have a problem that was causing it to trip out, and it would
have to be shut down for-repairs. Engineers were called in an

                            852

Page 7

attempt to find the problem, and the union filed a safety
grievance. The grievance could not be resolved, and a
section 103(g) complaint was filed in June, 1991, because of the
continued tripping. Repairs were made in mid-July, and the
safeguard was issued after that time (Tr. 62).
Mr. Lee was of the opinion that the use of a single safety
chain does not present a safety hazard, but that the use of more
than one chain presents a problem with people walking over them
and keeping them out of the way, and the combined weight of the
chains may present a problem to a small person attempting to lift
and hook them up. The single chain has been used since the
operation began without any problem (Tr. 62).
On cross-examination, Mr. Lee stated that he could not
recall any specific MSHA approval of the hoist with one chain,
but he confirmed that it had previously been inspected and
travelled by MSHA inspectors, including Mr. Lutz, for years and
it was never cited (Tr. 63-64). He agreed that the cage will
bounce if it stops immediately, and he. indicated that the
distance from the edge of the cage to the cement shaft wall is
three to four inches once the cage is out of the collar level.
He confirmed that the problem which caused the tripping in June,
1991, has not re-occurred, but that "nuisance tripping" has
occurred since that time when a gate is not properly closed or is
accidentally opened or there is a derail or loss of air pressure
(Tr. 64-65). He stated that if the cage does not trip there is a
problem, and that it could trip Ita couple of times in a twenty-
four hour period" (Tr. 65).
In response to further questions, Mr. Lee stated that the
cage does not presently trip out any more than it did in the past
and that it has been upgraded frequently over the past nine years
and it will be upgraded further (Tr. 67). He confirmed that
since the injury occurred, a mesh gate has replaced the three
chains and it is attached permanently to one side of the cage and
unclipped on the other side to allow the men to exit and to I :
.
?
unload material (Tr. 69). ..:
-.+
Mr. Lee disagreed with Inspector Lutz's belief that the cage
posed a hazard, and he stated that there was never a problem with
people being thrown against the wall when the cage had one chain
and there were no injuries. He confirmed that the cage bounces
up and down for a distance of six inches to one-foot when it
stops, but that there is no slowdown when it trips and the brake
1s activated by air pressure when the safety circuit causes it to
trip and stop immediately (Tr. 70). He confirmed that he has
ridden the cage when it has tripped, and he agreed that "it will
make you buckle your knees" and that "any sudden stop is going to
cause you a little bit of an alarm. It would alarm anybody
before it would stop" (Tr. 71).

                             853

Page 8

v_i ___. , ^. ,., _ ., -. ,_- . ..j*

              Mr. Lee stated that JWR objected to adding two more chains
         and tying them together because it believed that it was abiding
         by the law, which requires "chains, bars or gates". He confirmed
         that costs were not a problem, but that three chains tied
         together presented an additional maintenance problem and a
         tripping hazard which could result in back injuries to someone
         picking up the chains. He stated that Ilit had been satisfactory
         for so long with no injuries due to picking it up, no tripping
         hazard which could result in ever been written and I didn't see
         anything wrong with it and that was my feeling" (Tr. 72-73). He
         confirmed that the three chains are "quarter inch chains", and he
         believed that the total weight of the chains exceeds 15 pounds
         (Tr. 73-74).
              Mr. Lee confirmed that he has received no safety complaints
         from the safety committee since the three chains were installed
         other than the one tripping injury. As a result of that
         incident, a mesh gate was installed to replace the three chains.
         However, Mr. Lutz issued a citation for a tripping hazard when he
         observed men walking over the mesh while leaving the cage, and
         the citation reflects that 'Ithe men were not proceeding in an
         orderly manner" while exiting the cage (Tr. 77, Exhibit CX-2).
         Another inspector issued a citation for failure to provide a
         clear travelway when he observed that the mesh gate was dropped
         on the cage floor (Tr. 79, Exhibit CX-3).
              Mr. Blankenshin was recalled by MSHA, and he stated that it
         was his opinion that the combined weight of the three chains tied
         together was approximately 20 pounds, and that there was no one
         on the man cage who could not have picked them up (Tr. 93).
                                              DISCUSSION
              The evidence in these proceedings establishes that the cited
         man cage was installed and placed in operation sometime in 1977
         or early 1978, and that a single chain was installed across both
         ends of the cage at that time. The chain was intended to provide
         protection for persons riding the cage when it was hoisted or
         lowered into and out of the mine shaft. The cage was subse-
         quently operated with no reported incidents or injuries as a
         result of the use of the single chain, and there is no evidence
         that MSHA had ever considered the single chain to be inadequate
         util Mr. Lutz issued the safeguard notice on August 8, 1991. No
         citations had previously been issued because of the use of the
         single chain until Mr. Lutz issued the contested citation on
         August 12, 1991, because of JWR's noncompliance with the
         safeguard.
              In June 1991, problems developed with the cage and it
         "tripped out" periodically, causing it to be shut down for
         repairs. Engineers were called in to find the problem and the
         union filed a safety grievance which could not be resolved. A



                                                  854

Page 9

                                   c

{section 103(g) complaint was filed because of the continued
itripping, and Inspector Lutz investigated the matter and issued I
'an imminent danger order. Repairs were made, but the cage began
Ittripping out" again and the men continued to ride it while it
was in this condition. As a result, Inspector Lutz issued a.
section 104(d)(2) order, which was modified to a section 104(a)
citation, and the safeguard notice followed.
The August 8, 1991, safeguard notice states that the only
means of preventing employees from being pushed off the man cage
was a single chain extending across each end of the cage. The
citation of August 12, 1991, states that the cage still had
single chains across each end, that the single chains provided
inadequate protection, and that additional chains had not been
provided. The inspector fixed the abatement time of August 16,
1991, and when he returned that day he found that a second chain
had been installed. However, he determined that two chains still
provided inadequate protection, and that a third chain was
necessary. He extended the abatement time to Feberuary 19, 1991.
The citation was terminated on that day after a third chain was
installed and tied together with the other two chains as shown in
photographic exhibit R-l.
The 3-chain system was subsequently replaced by JWR by the
installation of a mesh gate which is permanently attached to one
side of the cage and unclipped on the other side to allow the
gate to drop down so the men can exit the cage. MSHA has
apparently found this to be an acceptable protective device in
compliance with the safeguard notice (Tr. 76). However, JWR was
served with additional citations for hazards which subsequently
developed after the mesh gate was installed. In one instance,
Inspector Lutz issued a citation when he observed that the mesh
gate had been dropped on the floor as the men were exiting the
cage at the end of a shift and they were walking over the gate.
He found that the men were not proceeding "in an orderly manneP
and he concluded that a trippping hazard existed as they exited
the cage and walked over the gate. In a second instance, another
inspector issued a citation after observing that the mesh gate
had dropped to the floor and six miners had walked over it while
exiting the cage. He issued the citation because of his belief
that 'Ia clear travelway for exiting the service cage was not
provided.n (Tr. 77-80).
JWR's Arguments.
JWR asserted that the safeguard notice issued by Inspector
Lutz was not based on any specific hazardous condition at the
No. 4 Mine, and that the inspector believed that the requirement
for chains, bars, or chains should have equally applied to all of
JwR's mines (Tr. 96-97). JWR further asserted that the safeguard
notice on its face, does not spec.ify the exact conduct required
for compliance, and merely refers to **chains.“ JWR suggested

                             855

Page 10

that since there was one chain installed at one end of the cage,
and another chain installed at the other end, llchains" were in
fact in place and that this amounted to compliance with the
safeguard. JWR also expressed concern that "the next inspector
might come back and say, no, three chains tied together is not
good enough, we want four chains with two tied together"
(Tr. 99).
JWH further asserted that its principal and basic complaint
in this case is that a single chain was installed at both ends of
the cage in question for 15 years with no resulting problems or
injuries, even with the single chain being dropped to the floor
with men walking over it. However, since the safeguard was
issued requiring the installation of additional chains, and with
the installation of the mesh gate, one miner has been injured,
and JWR has received two additional citations, all because of the
safeguard and the inspector's insistence that additional
protective chains be installed (Tr. 85-88; 99). JWR also
suggested that the combined weight of more than one chain exposed
an individual who had to lift them to possible back injuries.
MSHA's Arguments.
MSHA argued that the phrase mchains" means chains "that are
safe to accomplish the safety of the people on the man cage" and
that a chain hung 6 feet high would not be adequate to meet the
safeguard or the criteria (Tr. 37). MSHA assserted that there
was a hazard requiring a safeguard, and that JWR's managment
understood what Inspector Lutz was requiring, but simply
disagreed with his conclusion that the use of only one chain
presented a hazard (Tr. 49, 51).
MSHA's position is that the inspector established that there
was a specific condition at the No. 4 Mine that required a
safeguard, that he correctly issued the safeguard, and that it
was based solely on the hazard that he perceived would have
occurred had the safeguard not been enforced (Tr. 94). With
regard to JWH's contention that compliance with the safeguard has
resulted in an injury and-additional citations for tripping and
stumbling hazards, MSHA's counsel stated that "management can
abate any hazard in a sloppy way" and that the hanging up of the
chain or .insuring that the mesh gate is against the wall of the
cage before people leave it is not onerous (Tr. 85-86).
FINDINGS AND CONCLUSIONS
Section 314(b) of the Act 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.

                            856


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Page 11

 30 C.F.R. 5 75.1403 repeats section 314(b) of the Act and

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."
Section 75.1403-l provides:
(a) Sections 75.1403-2 through 75.1403-11 set out
the criteria by which an authorized representative of
the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under section
75.1403. Other safeguards may be required.
(b) The authorized representative of the
Secretary shall in writing advise the operator of a
specific safeguard which is required pursuant to
section 75.1403 and shall fix a time in which the
operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the
time fixed and if it is not maintained thereafter, a
notice shall be issued to the operator pursuant to
section 104 of the Act.
(c) Nothing in the sections in the section 75.1403
series in this Subpart 0 precludes the issuance of a
withdrawal order because of imminent danger.
Section 75.1403-3 provides the criteria for cage construction,
and subsection (b) of that section states as follow:
(b) Cages used for hoisting persons should be
constructed with the sides enclosed to a height of at
least six feet and should have gates, safety chains, or
bars across the ends of the cage when persons are being
hoisted or lowered.
In Southern Ohio Coal Comnanv, (SOCCO), 7 FMSHRC 509 (April
1985), the Commission noted that the safeguard provisions of the
Act confer upon the Secretary Wnigue authority" to promulgate the
equivalent of a mandatory safety standard without resort to the
otherwise formal rulemaking requirements of the Act. The
Commission held that safeguards, unlike ordinary standards, must be
strictly construed, and a safeguard notice "must identify with
specificity the nature of the hazard at which it is directed and
the conduct required of the operator to remedy such hazard." In
short, the operator must have clear notice of the conduct required
of him.

                              857

Page 12

 In Jim Walter Resources, Inc., 7 FMSHRC 493,496 (April

1985), the Commission took particular note of the broad language
found in section 314(b) of the Act, and it concluded that this
section @'manifests a legislative purpose to guard against all
hazards attendant upon haulage and transportation in coal
mining."
In southern Ohio Coal Comnanv, 14 FMSHRC 1 (January 1992),
the Commission reaffirmed its SOCCO and Jim Walter Resources,
Inc., holdings and stressed that a safeguard must identify with
specificity the hazard at which it is directed and the remedial
conduct required of the operator. The Commission rejected the
operator's contention that a safeguard is invalid if it addresses
conditions that exist in a significant number of mines, and it
stated in relevant part in this regard as follows at
14 FMSHRC 12:
.a safeguard may properly be issued for a commonly
&ountered hazard, so long as such safeguard addresses
a specific transportation hazard actually determined by
an inspector to be present and in need of correction at
the mine in question . . the fact that the safeguard
was based on a common hazard encountered in a number of
other mines does not, by itself, invalidate the
safeguard.
In Beth Enersv Mines, Inc., 14 FMSHRC 17 (January 1992), the
commission reaffirmed its SOCCO holding that a safeguard must be
interpreted narrowly in order to balance the Secretary's unique
authority to require a safeguard and the operator's right to fair
notice of the conduct required of it by the safeguard. The
Commission also held that the validity of a safeguard is not
affected by the fact that it is based on the published safeguard
criteria, 14 FMSHRC at.22-25, and it stated as follows at
14 FMSHRC 25:
. A criterion does not provide clear notice until
it-is embodied in a safeguard issued to the operator.
The focus of judicial inquiry is on whether the
safeguard is based on specific conditions, whether it
affords the.operator fair notice of what is required or
prohibited by the safeguard.
the fact that a notice to provide safeguard is
baLei upon a promulgated safeguard criterion is not of
itself, determinative of the validity of the safeguArd.
As explained in SOCCO, the validity of a safeguard
depends on whether it was based on the inspector's
evaluation of specific conditions at the mine in
question and a determination that those conditions
created a specific transportation hazard in need of the
remedy prescribed.

                            858

Page 13

   i
         Insofar as the validity of the safeguard itself is
   ; concerned, the critical issue is whether or not the evidence
   i establishes that the safeguard was based on the judgment of the
    i inspector that a specific condition existed at the mine in
   ’ question, that the condition concerned an existing transportation
        hazard, and that the hazardous condition was to be remedied by
        the action prescribed in the safeguard. Assuming that I find
     : that the safeguard was validly issued, the next question
        presented is whether or not the evidence establishes that the
    ’ respondent violated the safeguard, and if so, whether the
   ; violation was of a significant and substantial nature as claimed
   5 by the inspector.
   .;
     pocket No. SE 91-750-R. Safeauard Notice Ro. 2805189
   [         It seems clear to me that an adequately written safeguard
   f notice is a mandatory safety requirement that is enforceable at
   1 the mine where it is issued.      In this case, although the notice
    : issued by Inspector Lutz is not a model of clarity, I conclude
   f and find that it adequately informed JWR      of the hazard, and put
   [ it on notice as to what was required to achieve compliance.      The
   j notice itself states in relevant part that it was issued "to
   ; prevent employees from being pushed or thrown against the shaft
        walls" and to provide protection for the miners riding the cage
        if it "should come,to a sudden stop in the shaft". Further, the
        credible testimony,of the inspector reflects that the notice was
        issued to address the hazard presented in the event the man cage
        came to an abrupt and unannounced stop when it "tripped out", and
        the inspector confirmed that he discussed the safeguard with mine
        management, including alternative methods of achieving compliance
          It is undisputed that the cited man cage in question was
     tripping out and causing problems, and the record reflects that
     the union filed a safety grievancd over the matter. JWR's
     maintenance superintendent Lee confirmed that even after the
   ) problem which caused the tripping was taken care of, "nuisance
     tripping" has continued when the cage gate is improperly closed
     or accidentally opened, or there is a derail or loss of air
     pressure. Mr. Lee further confirmed that due to the fact the
   i cage is designed to 'trip" when a problem develops, it could do
   I so "a couple of times" over a 240hour period.

   I      Alternate safety committeeman Blankenship, who has ridden
   f the cage hundreds of times, testified credibly that when the
   . safety device trips out, the cage stops instantly and suddenly,
   i and that "it'll put you on your knees if your not careful".
   i Although he confirmed that "grab chains" are provided, he stated
   ; there are not enough for use when the cage is full.  Be also
   i stated that he has observed people on the cage floor when it
   1 stopped and that "people will grab you by the shoulders to keep
   I from falling".
   I




                                      859

%’ ---

Page 14

 Superintendent Lee confirmed that when the cage safety

circuit trips, the cage stops automatically and immediately and
that it will bounce up and down for a distance of six-inches to
one-foot after it stops. He further confirmed that he has been
on the cage when it has tripped and that "it will make you buckle
your knees and causes some alarm when it comes to a sudden stop.
Inspector Lutz believed that given the speed of the cage up
and down the shaft, any sudden stop could posssibly propel
someone against the shaft wall exposing them to serious arm or
leg injuries, or injuries to other bodily parts. Although
Mr. Lutz agreed that there have been no reported injuries of this
kind caused by the cage in question tripping out, he nonetheless
believed that the single protective chain which was installed at
each end of the cage was insufficient to restrain people when the
cage was filled to capacity, and that it would not prevent anyone
from sticking their arm or foot out beyond the cage or being
pushed into the shaft wall and contacting it while the cage was
moving.
JWR's suggestion that the safeguard notice was improperly
issued because Inspector Lutz believed that protective chains,
bars, or gates should equally apply to all of JWR's mines is
rejected. There is no evidence that the contested safeguard
notice in question applied to mines other than the No. 4 Mine,
and even if it did, the Commission recently held that a safeguard
covering a specific mine is valid notwithstanding the fact that
similar safeguards may have been issued at other mines. Southern
Ohio Coal Comnanv, 14 FMSHRC 1, 14 (January 1992).
I agree with the inspector's findings with respect to the
existence of a hazard to miners riding the man cage in question
when it "tripped out @I and came to a sudden and unexpected stop.
Based on all of the evidence and testimony adduced in this case,
I conclude and find that the safeguard notice issued by Inspector
Lutz addressed a specific mine transportation hazard with respect
to the cited man cage in question, and that the safeguard was a
reasonable and proper way of achieving compliance and correcting
the condition which created the hazard. Under the circumstances,
the safeguard notice IS AFFIRMED.
Docket No. SE 91-751-R. Citation No. 2805196
The inspector issued the citation after finding that JWR had
failed to add any additional chains or other alternative
protective devices to protect the miners riding the man cage. He
cited a violation of safeguard standard section 75.1403(b), which
requires safety chains or bars across the ends of the cage when
persons are being hoisted or lowered, and he also included a
reference to the prior safeguard notice on the face of the
citation which he issued.

                            860

Page 15

  J'WR's assertion that it complied with the requirements of

section 75.1403(b), in that the two single chains which were
installed at each end of the cage, when considered together,
constituted f'chainsql within the meaning of that section, and
constituted compliance with the safeguard is rejected. The
record reflects that when the inspector issued the initial
safeguard notice he believed that a single chain at each end of
the cage constituted inadequate protection for the miners riding
the cage. For this reason, he issued the safeguard notice
enumerating the use of protective chains, bars, or a gate to
protect the miners from being thrown out of the cage or against
the shaft walls in the event the cage came to a sudden stop. It
seems clear to me that the inspector required JWR to install more
than one chain at either end of the cage, and Mr. Lutz' credible
testimony, which is corroborated by Mr. Blankenship, as well as
the citation extension which he issued, establishes that Mr. Lutz
informed mine management as to what was required to achieve
compliance and abate the citation.
JWR's assertion that the cage with single chains had not
previously been cited by MSHA is rejected as a defense to the
citation. See: Kins Knob Coal Comnanv. Inc., 3 FMSHRC 1417,
1422 (June 1980); Midwest Minerals Coal Companv, Inc., 3 FMSHRC
1417 (January 1981); Missouri Gravel Co., 3 FMSHRC 1465 (June
1981); Servtex Materials Comnanv v. 5 FMSHRC 1359 (July 1983);
Emerv Minincr Corporation v. Secretary of Labor, 3 MSHC 1585, the
Tenth Circuit's Affirmance of the Commission's decision at
5 FMSHRC 1400 (August 1983).
JWR's contention that compliance with the safeguard
requirements imposed by the inspector through the use of more
than one safety chain at each end of the cage has resulted in
safety risks which were non-existent during the approximate 15
years that single chains were used, and that compliance with the
safeguard has not only resulted in an injury, but has also
exposed JWR to additional citations for tripping or stumbling
hazards resulting from the use of multiple chains and a mesh
guard, raises the issue of the so-called "greater hazard" or
"diminution of safety" defense. This defense had been narrowly
construed by the Commission, and it has held that when this
defense is raised in an enforcement proceeding it must be closely
scrutinized to insure that each of the elements of the three-
prong test enunciated in Penn Allegh Coal Co. Inc., 3 FMSHRC 1392
(June 1981), and Sewell Coal Co., 5 FMSHRC 2026 (December 1983),
are supported with clear proof. See: Westmoreland Coal Company
7 FMSHRC 1338 (September 1985). The three-prong test consists 0;
the following elements: (1) the hazards of compliance are
greater than non-compliance: (2) alternative means of protecting
miners are unavailable; and (3) a modification proceeding under
section 101(c) of the Act would not have been appropriate.

                                861


    --.   .___   _._.,..   ._

Page 16

  I cannot conclude that JWR has established any reasonable

#diminution of safety I defense in this case. The tripping and
stumbling hazards which resulted in the issuance of additional
citations are conditions which may be present when the cage comes
to a stop and the men are exiting. These are not conditions
which prompted the issuance of the safeguard notice. Although I
can understand JWR1s frustration at being cited for stumbling and
tripping hazards after it had corrected the conditions which
prompted the issuance of the safeguard and abatement of the
citation, the fact remains that the burden of continued
compliance with the safeguard rests with JWR. Any tripping or
stumbling hazards subsequently caused by the installation of the
mesh gate or chains are within the control of JWR and it must
find a way to insure that these protective devices that are
required by the safeguard notice in question are hung and stored
in a such a manner as to preclude additional safety hazards. I
cannot conclude that MSHA's expectation that this is done is
unreasonable. JWRls defense is rejected. In view of the
foregoing, and after careful review and consideration of all of
the testimony and evidence adduced in this proceeding, I conclude
and find that MSHA has established a violation by a preponderance
of the credible evidence and the citation IS AFFIRMED.
Sianificant and Substantial Violation
A Wsignificant and substantial" violation is described in
section 104(d)(l) 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)(l). 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 Gvnsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
commission explainedkits interpretation of the term "significant
and substantialI as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National G~nsum 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.

                            862

Page 17

                                                          1




 In United States Steel Minins Comnanv, Inc., 7 FMSHRC 1125,

1129, (August 1985), 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 n an event in which there is
an injury." U.S. Steel Minina Co., 6 FMSHRC 1834, 1836
(August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is the
contribution of a violation to the cause and effect of
a hazard that must be significant and substantial.
U.S. Steel Minina Comoanv, Inc., 6 FMSHRC 1866, 1868
(August 1984): U.S. Steel Minina Comoanv, Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
In Halfway. Incornorated, 8 FMSHRC 8 (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 desDite 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 GYDSUm,
sunra, 3 FMSHRC at 825; U.S. Steel Minincr Co.. Inc.,
6 FMSHRC 1573, 1574 (July 1984).
Inspector Lutz confirmed that he based his significant and
substantial (S&S) finding on his expectation that an accident
would occur with the cage continuously tripping off. He also
considered the lack of knowledge as to whether or not the
condition which caused the tripping problem had been repaired,
the daily use of the cage, and the extent of injury that one
would sustain if an accident occurred. Mr. Lutz believed that
in the event someone were thrown against the shaft wall after the
cage came to a sudden stop while travelling at 900 feet per
minute, he would sustain serious injuries. JWR's maintenance
superintendent Lee confirmed that any sudden stop of the cage
will cause it to bounce and that such a bouncing action will
cause ones knees to buckle. Mr. Lee confirmed that the distance
from the edge of the cage to the cement shaft wall once the cage
is out of the collar level is three to four inches. Mr.
Blankenship confirmed that a sudden stop of the cage traveling
900 feet per minute would likely drop someone to their knees, and

                            863

Page 18

he confirmed that he used the cage numerous times and has
observed people on the floor of the cage after it came to a
sudden and unexpected stop.
Based on the testimony of the inspector with respect to the
hazards presented, and the injuries which would likely result in
the event of an accident caused by the sudden stopping of the
cage travelling at a relatively high rate of speed, and the
corroborating testimony of Mr. Lee and Mr. Blankenship concerning
the bouncing action of the cage if it were to come to a sudden
stop, I cannot conclude that the. inspector's "S&S1@ finding was
unreasonable. I conclude and find that in the normal course of
operating the man cage in question, with a full load of miners,
and with only one protective chain, the miners were exposed to a
hazard in that the bouncing action of the cage could cause them
to fall or be pushed against the side of the shaft or outside of
the chain. If this occurred, I find that it was reasonably
likely that they would sustain injuries of a reasonably serious
nature. Under the circumstances, the inspector's llS&SV1 finding
IS AFFIRMED.
ORDER
In view of the foregoing findings and conclusions, IT Is
ORDERED AS FOLLOWS:
1. Safeguard Notice No. 2805189, August 8 1991, IS
AFFIRMED, and JWR's contest IS DENIED.
2. Section 104(a) leStS'* Citation NO. 2805196, August 12,
1991, IS AFFIRMED, and JWR's contest IS DENIED.

                             Administrative Law Judge

Distribution:
R. Stanley Morrow, Esq., Harold _ D. Rice, Esq., Jim Walter
Resources, Inc., P.O. Box 133, Brookwood, AL 35444 (Certified
Mail)
George D. Palmer, Esq., Associate Regional Solicitor, Office of
the Solicitor, U.S. Department of Labor, Suite 201, 2015 Second
Avenue North, Birmingham, AL 35203 (Certified Mail)
/ml

                               864


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