Kaiser Coal Corporation of Sunnyside

Plain-English summary

Kaiser Coal Corporation operated the Sunnyside No. 1 Mine. A service representative died after a section of rib fell while he was inspecting a malfunctioning stage loader, and the Commission considered whether Kaiser had complied with the rib-testing requirement in 30 C.F.R. § 75.205. The Commission held that the standard required both a visual examination and a physical test when miners were exposed to danger from rib falls. It affirmed the violation, while noting that the significant-and-substantial finding and $1,000 penalty were not challenged on review.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.205
• Outcome: The violation was affirmed.
• Key point: A visual examination did not satisfy the standard when the work exposed a person to danger from rib falls; the operator also had to test the ribs.

Full text (FMSHRC public release)

CCASE:
MSHA V. KAISER COAL
DDATE:
19880713
TTEXT:

          FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                         WASHINGTON, D.C.
                             July 13, 1988

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.           Docket No. WEST 86-225-M

KAISER COAL CORPORATION
OF SUNNYSIDE

BEFORE: Ford, Chairman; Backley, Doyle, and Lastowka,
Commissioners

               DECISION

BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal

Mine Safety and Health Act of 1977, 30 U.S:C. $ 801 et seq. (1982)
("Mine Act"), the issue is whether Commission Administrative Law
Judge August F. Cetti erred in finding that Kaiser Coal Corporation
of Sunnyside ("Kaiser") violated 30 C.F.R. $ 75.205, a mandatory
safety standard for underground coal mines that requires "[w]here
miners are exposed to danger from falls of ... ribs the operator
shall examine and test the ... ribs before any work or machine is
started." 1/ 9 FMSHRC 1164 (June 1987) (ALJ). For the reasons that
follow, we affirm the judge's finding that Kaiser violated section
75.205.

The essential facts are not in dispute. On March 7, 1986,

Jerry Dimick an employee of a mine equipment service company,
arrived at Kaiser s Sunnyside No. 1 mine to examine a malfunctioning
stage loader. Dimick was accompanied underground by Kaiser's
General Longwall Foreman, Duane Wood. Dimick and Wood traveled to the
intersection of the 19th Left Longwall Section and Crosscut No. 28,
the area where the stage loader was located. Before Dimick started

Page 2

to inspect the stage loader,

1/ 30 C.F.R. $ 75.205 restates section 302(f) of the Mine Act,
30 U.S.C. $ 862(f), and provides:

          Where miners are exposed to danger from falls
 of roof, face, and ribs the operator shall examine
 and test the roof, face, and ribs before any work or
 machine is started, and as frequently thereafter as
 may be necessary to insure safety. When dangerous
 conditions are found, they shall be corrected immediately.

Page 3

~857
Wood visually examined the ribs at the worksite for signs of
instability or hazardous conditions, but he did not perform any
physical test of the ribs to verify their condition. Wood then
proceeded beyond the stage loader and away from Dimick.

In order to examine the stage loader, Dimick knelt between

the rib and the equipment, with his back to the rib. While Dimick
was looking at the stage loader from this position, two of Kaiser's
section foremen, Gary Kuhns and Darrell Leonard, walked by Dimick.
Kuhns testified that because of the position of the stage loader,
he had to walk between Dimick and the rib to get by Dimick, and
that there was no more than two feet of space between Dimick and the
rib. Tr. 91. Both Kuhns and Leonard visually examined but did not
physically test the rib as they continued down the entry. While
Dimick was kneeling between the rib and the stage loader, a portion
of the rib -- approximately six by four by two feet in size --
detached and fell on him. Dimick died that evening from injuries
received in the accident.

Inspectors from the Department of Labor's Mine Safety and

Health Administration ("MSHA") arrived at the mine at about 6:00 p.m.
on March 7, 1986, to conduct an investigation into the circumstances
surrounding the accident. Upon completion of the investigation on
March 10, 1986, an MSHA inspector issued to Kaiser a citation pursuant
to section 104(a) of the Act. 2/ The citation alleged a significant
and substantial violation of section 75.205 and stated:

           A test of the rib condition was not conducted
 after a visual examination was made for crosscut
 No. 28 and inby to the longwall face of the 19th Left
 longwall section. A service representative was
 performing an examination of a piece of equiptment [sic]
 that was not operating properly. This person was required
 to place himself in close proximity to the lower rib. The
 untested rib fell striking the victim and causing fatal
 injuries.

The citation was abated on March 10, 1986, after all underground
employees at the mine were given hazard training on roof and rib
control.

Before the judge, Kaiser argued that it had complied with the

requirements of the standard by conducting a visual examination of the

2/ Section 104(a), 30 U.S.C. $ 814(a), provides in pertinent part:

Page 4

     If, upon inspection or investigation,

the Secretary or his authorized representative
believes that an operator of a coal or other mine
subject to this [Act] has violated this [Act], or
any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to this
[Act], he shall, with reasonable promptness, issue
a citation to the operator....

Page 5

~858
rib. Kaiser asserted that, because of the particular rib
conditions at the mine, testing of the ribs would be ineffective
in detecting flawed ribs that might fall or could even create or
enhance the possibility of such falls. Kaiser argued that it was
not required under the standard to test the ribs in such
circumstances. The judge rejected these arguments, holding that
the standard unambiguously requires both visual examination and
testing of ribs. He further held that in view of the conditions
under which Dimick had to work, he was exposed to a danger of a
rib fall and that Kaiser was therefore required by the standard to
test the ribs. The judge also found that the violation was of a
significant and substantial nature, and he assessed the civil penalty
amount of $1,000 for the violation. 3/ 9 FMSHRC at 1176-78. We
conclude that substantial evidence supports the judge's finding of
a violation of section 75.205.

 There is no dispute that the Sunnyside No. 1 mine has a

history of unstable ribs. Witnesses for the Secretary and Kaiser
agreed that because of this Kaiser's miners and MSHA's inspectors
have made it a practice to walk in the center of the entries in
order to position themselves as far from the ribs as possible. At
the scene of the fatal accident, the travelway between the stage
loader and the rib was approximately seven and one-half feet wide,
as contrasted with the normal entry width of nineteen and one-half
feet. Exhibit 2. In order to work on the malfunctioning stage
loader, Dimick had to position himself two feet from the rib, on his
knees and with his back to the rib -- a position which left him
vulnerable to rib falls from behind. In addition, the inspector
testified without dispute that approximately fifteen minutes before
the accident, the longwall shearing machine had cut coal in the
vicinity of the stage loader and that the shearing process generally
causes the ribs to loosen. Tr. 36-37, 104. We agree with the judge
that under these circumstances, Dimick was exposed to a danger of a
rib fall and that under the standard it was incumbent upon Kaiser to
test as well as to examine the ribs before work on the stage loader
commenced. In failing to test the ribs, Kaiser violated section
75.205. If Kaiser believes that there may be instances where the
testing of the ribs at the mine will diminish safety, we agree with
the judge that the remedy lies in petitioning the Secretary for
modification of section 75.205 pursuant to section 101(c) of the Act,
30 U.S.C. $ 811(c). 9 FMSHRC at 1176-77. See Penn Allegh Coal Co.,
Inc., 3 FMSHRC 1392, 1398 (June 1981).

Finally, Kaiser asserts that the section 104(a) citation was

issued because there had been a fatality, rather than because the

Page 6

inspector believed that there had been a violation of section 75.205.
Kaiser argues that, as a result, the citation is invalid and should
be vacated. We have reviewed Kaiser's contention and find it to be
without merit. Section 104(a) provides that an inspector shall issue
a citation "[i]f ... [he] ... believes that an operator of a ... mine
... has violated ... any mandatory health or safety standard." See
n.2, supra. Our review of the evidence establishes that the section
104(a) citation

3/ Review of the significant and substantial finding or of the
penalty amount assessed has not been sought.

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~859
was issued because the MSHA inspector believed a violation of a
mandatory safety standard occurred. See Tr. 42-45. We find that
the section 104(a) citation was based on the inspector's belief that,
in failing to test the rib, Kaiser had violated section 75.205. That
this relief had its genesis in the investigation of a fatal accident
at the mine does not undermine the validity of the section 104(a)
citation.

The decision of the administrative law judge is affirmed. 4/
             James A. Lastowka, Commissioner

4/ Commissioner Nelson did not participate in the consideration of
or Decision on the merits of this case.

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~860
Distribution

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

James A. Holtkamp, Esq.
Van Cott, Bagley, Cornwall & McCarthy
Kaiser Coal Corporation
50 South Main Street, Suite 1600
Salt Lake City, Utah 84145