Emery Mining Corporation

Plain-English summary

Emery Mining Corporation contested two orders alleging that trolley cut-out switches at its Deer Creek Mine were not adequately guarded. Judge John J. Morris held that the switches were part of the trolley wires covered by 30 C.F.R. § 75.1003, but found that the Secretary did not prove miners worked or regularly passed under the wires at the cited locations. He rejected the broader argument that every trolley switch must be guarded and concluded that Emery did not violate section 75.1003(a). Both orders were vacated.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.1003(a); 30 C.F.R. § 75.509
• Outcome: Orders 2835373 and 2835374 were vacated.
• Key point: A missing guard is not enough by itself to prove a violation when the regulation requires proof that miners work or regularly pass under the trolley wires at the cited locations.

Full text (FMSHRC public release)

CCASE:
EMERY MINING V. SOL (MSHA)
DDATE:
19870316
TTEXT:

Page 2

~595

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

EMERY MINING CORPORATION, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 86-101-R
v. Order No. 2835373; 3/20/86

SECRETARY OF LABOR, Docket No. WEST 86-102-R
MINE SAFETY AND HEALTH Order No. 2835374; 3/20/86
ADMINISTRATION (MSHA),
RESPONDENT Deer Creek Mine

                               DECISION

Appearances: Timothy Biddle, Esq. and Susan Chetlin, Esq.,
Crowell & Moring, Washington, D.C.,
for Contestant;
Edward J. Fitch, IV, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Before: Judge Morris

 This is a consolidated contest proceeding initiated by

contestant pursuant to Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 et seq., (the Act).

 In WEST 86Ä101-R Emery contested a 104(d)(1) order. The

order, number 2835373, charges respondent with violating 30
C.F.R. 75.1003(a). The order reads as follows:

      The trolley cut-out switches in 3rd West at the
      following locations were not guarded where persons
      normally work or are required to cross under to throw
      the switch handles: 3rd West switch, bottom of 3rd West
      hill, top of 3rd West hill, underground shop switch,
      "B" North, between 30 & 31 crosscut, "C" North, 3rd
      South switch, 3rd West North drive. There are some
      cut-out switches that are guarded in this entry. This
      condition was known by the company.

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~596
In WEST 86Ä102-R Emery similarly contested a Section 104(d)(1)
order, number 2835374, which reads as follows:

      The energized trolley line was not guarded at the
      cut-out switches where men normally work or are
      required to cross under to work or throw the switch
      handles at the following locations in 1st South;
      numbers 53, 63, 69, 74, and 78 crosscuts. This
      condition was known by the company to exist.

 The standard allegedly violated,      75.1003, in its entirety,

provides as follows:

      Trolley wires, trolley feeder wires, and bare signal
      wires shall be insulated adequately where they pass
      through doors and stoppings, and where they cross other
      power wires and cables. Trolley wires and trolley
      feeder wires shall be guarded adequately:

           (a) At all points where men are required to work
           or pass regularly under the wires;

           (b) On both sides of all doors and stoppings; and

           (c) At man-trip stations.

      The Secretary or his authorized representatives shall
      specify other conditions where trolley wires and
      trolley feeder wires shall be adequately protected to
      prevent contact by any person, or shall require the use
      of improved methods to prevent such contact. Temporary
      guards shall be provided where trackmen and other
      persons work in proximity to trolley wires and trolley
      feeder wires.

 After notice to the parties, a hearing on the merits took

place in Denver, Colorado on July 29, 1986.
Stipulation

 The parties stipulated that if the Secretary prevails on the

issue of whether a violation occurred and on the issue of
unwarrantability then the citation as issued is procedurally
correct. Further, it was stipulated that exhibits of each party
were authentic (Tr. 6, 7). It was also agreed that the handles on
all of the switches (FOOTNOTE 1) were insulated (Tr. 57).

Page 4

~597
Issue

 The issue focuses on the applicability of the regulation to

blade switches on trolley wires.

                    Summary of the Evidence

 The evidence is essentially uncontroverted.
 William Ponceroff, a person experienced in mining, has been

the supervisor of the MSHA Orangeville, Utah office since January
1986 (Tr. 12Ä15). His experience has included six months' dealing
with trolley haulages (Tr. 15).

 In February 1986 he accompanied MSHA Inspector Jones to

Emery's Deer Creek Mine. While inspecting with Jones and Gary
Christensen, the company representative, he observed a line
switch that had been thrown but wasn't guarded. The inspector
indicated they are regularly used because the rock dust car moves
in and out of this area (Tr. 15, 16). A miner's hand is close to
the wire when he reaches up to pull the switch. Christensen felt
the switch didn't have to be guarded (Tr. 17). On leaving the
mine into Main West, Ponceroff observed two switches. One was
guarded and one was not (Tr. 17). Track problems included missing
and loose bolts as well as gaps in the track (Tr. 18).

 On February 27 Ponceroff discussed the blade switch guarding

with Dixon Peacock, the company's Deer Creek representative.
Ponceroff indicated that belt shovelers and supply people were
operating along the track without a temporary guard (Tr. 19). At
any time their vehicle could get off the track. If this occurred
miners could only deenergize the trolley wire by throwing the
blade switches. The miners could also contact the wire with a
shovel handle or a scale bar. In some places portions of a
miner's body could come in contact with the wire (Tr. 20). Since
they didn't provide a temporary guard, the switches would be
regularly used because miners could only perform their duties by
pulling a line switch (Tr. 20). Ponceroff also observed miners
unloading timbers under a trolley wire without deenergizing the
wire (Tr. 21).

 Dixon Peacock indicated he didn't know anything about using

an MSHA approved temporary guard (Tr. 21). Emery was not cited
when this condition was first observed in order to give the
company time to install guards. Ponceroff made it clear that MSHA
would enforce the regulation (Tr. 22).

 To some extent Ponceroff's interpretation of the regulations

is stricter than that of his predecessor. The company has
cooperated with MSHA at the Wilberg and Cottonwood mines (Tr. 23
Ä 25).

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~598
Ponceroff agreed that on the February 14 inspection he observed
miners working under the trolley wire where the blade switches
were guarded (Tr. 28). In the inspector's view some of the line
switches were installed in such a fashion that miners would have
to pass under the trolley wire to throw them. This is because the
handle was on the rib side of the switch (Tr. 29). All of the
blade switches had to be guarded because miners were removing
longwall shields and face equipment. In addition, they were
required in areas where work was being done with scale bars and
when timbers were installed on the rib side of the wire (Tr. 29 Ä
31). In the inspector's opinion it would constitute regularly
working or passing under within the meaning of the regulation if
the switch had to be thrown. The regulation does not require
guards for all of the trolley lines (Tr. 30, 31).

 The potential for derailment in this mine was great (Tr.

32). In the event of a derailment the line switch would be
regularly used. Every switch, whether facing the rib or track
side, should be covered along the main line because of the
condition of the track (Tr. 33).

 Between February 27 and March 30, Ponceroff did not receive

any objections to his directive (Tr. 35).

 The inspector believed that every blade switch would be used

in the course of the life of the mine (Tr. 36). Some would be
used more than others (Tr. 36). If a miner leaves an area where
there is no actual mining he would normally use the switch to cut
off the power (Tr. 36).

 Photographs of an unguarded and a guarded line switch were

received in evidence (Tr. 37, 42, 43; Ex. C1, C2, C3). If a miner
reaches for the switch a guard prevents his hand from contacting
the energized trolley wire (Tr. 37 Ä 39). In pulling the switch
handle a miner's forearm would be above and within five or six
inches of the energized trolley wire (Tr. 39, 41). This
constitutes a significant shock or electrocution risk (Tr. 42).

 If the blade switch is in place, normally energy flows in

the energized line (Tr. 40). If the switch is disconnected then
normally there is power to only one side of the switch (Tr. 41).

 Vern Boston is an MSHA inspector at the Orangeville, Utah

office (Tr. 46). At a staff meeting in March 1986, Boston was
advised by his supervisor, Bill Ponceroff, that the blade
switches on the trolley had to be guarded. The supervisor
explained that there was exposure to hazards because they were
regularly used (Tr. 46). Mr. Ponceroff also indicated to Boston
that the company officials were correcting the condition (Tr.
47).

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~599
On entering the mine, Inspector Boston observed that no guards
had been installed on any of the line switches on 1st South or
3rd West. In addition, no guards had been installed along the
trolley lines (Tr. 48). The company indicated they were working
to install the guards but the inspector saw no evidence to
support this view. The inspector decided to issue a closure order
when he counted the 14 unguarded switches. However, some were
guarded (Tr. 49).

 Mr. Peacock, without further explanation, only stated that

the company was working to install the guards (Tr. 50). The
inspector considered the company lacked due diligence because
they were aware of the condition and permitted it to exist (Tr.
52).

 The inspector discussed the situation with Dave Lauriski, a

company safety director (Tr. 52).

 In Boston's opinion blade switches would be used in the

normal course of mining activity. These activities would include
any belt maintenance, as well as greasing, shoveling spills and
installing timbers (Tr. 55). In addition, he considered a
derailment to be a regular occurrence (Tr. 68). In the
inspector's opinion the violative condition constituted a
significant hazard with a potential for shock (Tr. 57).

 Inspector Boston felt that every blade switch should be

guarded (Tr. 57). The very act of throwing the switch requires
men to pass underneath the trolley wire (Tr. 58).

 Inspector Boston issued order number 2835373 (contested in

WEST 86Ä101-R) and order number 2835374 (contested in WEST
86Ä102-R) (Tr. 48; Govt. Ex. 1, 2, 3).

 Dixon Peacock identified himself as the senior safety

engineer for the company (Tr. 69, 70). He assists management in
making the mine more productive as well as safe (Tr. 70).

 On February 27, 1986, Peacock and Ponceroff discussed the

guarding of all switches. Peacock discussed it with his immediate
supervisor who felt no violation existed because the situation
did not constitute "regular passage" (Tr. 71, 72). No further
discussions took place with Mr. Ponceroff.

 Peacock was later advised by Dick Jones and Ken Callihan

that they were going to make a concentrated effort to install the
switches (Tr. 72, 73, 78). The workers corrected 13 to 18
switches. It takes about an hour to install a guard (Tr. 74).
There are about 50 to 65 switches in the mine (Tr. 74).
Approximately 600 employees work in the mine (Tr. 75).

Page 7

~600
The company tries to comply with the MSHA inspectors (Tr. 76).

 Dominic William Oliveto, called as a witness by Emery,

identified himself as the maintenance superintendent for the Deer
Creek Mine (Tr. 81). The 50 blade switches in the mine disconnect
the power inby or outby the switch or isolate the power at the
beginning of each branch circuit (Tr. 82, 83).

 A certified electrician, trained in electrical work and

wearing protective gloves, throws these switches (Tr. 83, 85).
All of the electrical equipment is inspected weekly (Tr. 83, 84).
In most cases the electricity flows in both directions in the
lines (Tr. 84).

 Title 30, Section 75.509 provides that only a qualified

person can work on energized equipment (Tr. 84). Other miners are
instructed not to contact the wire. However, they are instructed
to handle emergency situations; in addition, they are directed to
cross under where ever the trolley is guarded (Tr. 86, 87).

 Prior to March 20, 1986, the switches were guarded at the

man trip and material stations. In addition, guards were used
whenever the switch happened to be in front of a belt crossover
or in a crosscut with a mandoor through it. These are regularly
travelled areas (Tr. 94).

 During the blitz electrical inspection of April 1985 no

mention was made about guarding switches unless they were
travelled under (Tr. 96).

 Mr. Boston stated he wrote the citation because he had to

cross under the switch to throw it on or off. Oliveto objected
because it would prevent you from driving the trolley through it
because the pull has to ride on it from the bottom (Tr. 97).
Oliveto described the hazards involved in connection with some of
the power guarding (Tr. 99).

 One hand is used to throw an unguarded switch (Tr. 100).
 Oliveto wasn't advised about the situation until after the

citations were written on March 20 (Tr. 102).

 No temporary guards have been used at the mine (Tr. 102).

Section 310(d) of the Act requires temporary guards where
trackmen and other persons work in proximity to trolley wires or
trolley feeder wires (Tr. 103). When working on the track, the
trolley wires are isolated by throwing one or two blade switches
(Tr. 103).

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~601
Blade switches are required at various locations and intervals
(Tr. 103, 104).

 There were two methods available to guard the blade switches

(Tr. 106). A various number of electricians are assigned to
tracks and belt lines (Tr. 108).

 The mine normally operates three shifts a day for a five-day

week (Tr. 113).

 Derailing is not uncommon but it is not a daily occurrence

(Tr. 118).

 Between February 27 and March 7 the blade switch problem was

discussed with the mine foreman (Tr. 119, 120).

                           Discussion

 Emery asserts that Section 75.1003(a) does not apply to

blade switches because the regulation does not specifically
mention switches. In the alternative, Emery states that the
Secretary has failed to establish the applicability of the
regulation in this factual setting.

 Emery's threshold contention lacks merit. The relevant

portion of the regulation requires that "trolley wires . . .
shall be guarded" under certain circumstances. The evidence
establishes the trolley wires enter the cut-off switch at each
side. By pulling the switch handle a miner can deenergize the
trolley line (inby or outby depending on the flow of
electricity). The switch is accordingly an integral unit of the
trolley wire. In sum, the switch is merely a conduit through
which the trolley wire passes. Accordingly, the switches are a
part of the trolley wires. They They must be guarded at those
locations mandated in the regulation. Specifically, these are the
locations stated in paragraphs (a), (b) and (c) of Section
75.1003.

 Emery in this case was cited for violating paragraph (a)

which requires guarding "where men are required to work or pass
regularly under the wires."

 The Secretary has failed to offer any evidence to establish

the violation. In WEST 86Ä101-R the Secretary's order encompassed
nine specific locations. In WEST 86Ä102-R the order encompassed
five specific locations.

 There is no persuasive evidence that miners either worked or

were required to pass regularly under the trolley wires at the
locations cited in the orders. Inspector Boston testified there
were no guards on any of the line switches on 1st South or 3rd
West. But a mere lack of guards does not constitute a violation
of the regulation.

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~602
Inspector Boston also described circumstances where the normal
course of mining would require the use of switches. However, the
regulation requires evidence of where miners either worked under
or passed regularly under the trolley wires. The Secretary also
contends that merely throwing the blade switch constitutes
regularly passing under. In addition, the Secretary's
representatives believe each switch would at some time or other
be thrown. The Secretary seeks to stretch the regulation beyond
its plain meaning. To support the Secretary's view would mean
that "pass regularly" includes circumstances where miners merely
occasionally cross under a trolley wire. If this were so the
regulation would require that every trolley wire be insulated its
entire length. There is no such requirement.

 There is no allegation here that Emery left its trolley

wires unguarded at critical locations and there is no evidence
that Emery's miners worked around or regularly passed under the
switches cited in these cases. To like effect see Southern Ohio
Coal Co., 1 FMSHRC 1642 (1979) (Koutras, J.).

 I agree with the case law cited in the Secretary's brief

that the Act and its regulations should be liberally construed to
achieve its purposes. But I cannot rewrite this regulation to
read that "all trolley wires must be guarded adequately at all
cut-out switches".

                             Briefs

 Counsel have filed detailed briefs which have been most

helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to the
extent they are inconsistent with this decision, they are
rejected.

                       Conclusions of Law

 Based on the entire record and the factual findings made in

the narrative portion of this decision, the following conclusions
of law are entered:

 1. The Commission has jurisdiction to decide this case.

 2. Respondent did not violate 30 C.F.R.    75.1003(a).

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~603
Based on the foregoing findings of fact and conclusions of law I
enter the following:

                               ORDER

   1. In WEST 86Ä101-R: Order number 2835373 is vacated.

   2. In WEST 86Ä102-R: Order number 2835374 is vacated.


                                  John J. Morris
                                  Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 The switches are sometimes referred to as blade switches,
line switches or cut-off switches.