Utah Power & Light Company

Plain-English summary

MSHA cited Utah Power & Light after three miners did not answer two questions about the location and duration of self-contained self-rescuers during an inspector's interview. Judge John J. Morris found that the company had provided repeated hands-on and refresher training, maps, and instruction about the devices. He held that 30 C.F.R. § 75.1714 requires an operator to instruct and train miners but does not require miners to later demonstrate their knowledge in an interview. He vacated the citation and all related penalties.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1714(b)
• Outcome: Citation No. 3044971 and all penalties were vacated.
• Key point: The self-rescue regulation requires instruction and training, but the judge found no requirement that miners later demonstrate their knowledge through an MSHA interview.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. UTAH POWER & LIGHT
DDATE:
19890109
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-92
PETITIONER A.C. No. 42-00121-03659

       v.                            Deer Creek Mine

UTAH POWER & LIGHT COMPANY,
RESPONDENT

                          DECISION

Appearances: Susan J. Bissegger, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Thomas C. Means, Esq., Crowell & Moring,
Washington, D.C.,
for Respondent.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges respondent with violating a
safety regulation promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. 801 et seq., (the "Act").

 After notice to the parties a hearing on the merits was held

in Denver, Colorado on June 8, 1988.

 The parties filed post-trial briefs.

                    Summary of the Case

 Citation No. 3044971 charges respondent with violating 30

C.F.R. 75.1714. The cited regulation provides as follows:

        75.1714 Availability of approved self rescue devices;
      instruction in use and location

      (a) Each operator shall make available to each miner
      employed by the operator who goes underground and to
      visitors authorized to enter the mine by the operator a
      self-rescue device or devices approved by the Secretary
      which is adequate to protect such person for one hour
      or longer.

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(b) Before any miner employed by the operator or visitor
authorized by the operator goes underground the operator shall
instruct and train such person in the use and location of the
self-rescue device or devices made available at the mine.
Instruction and training of miners and visitors shall be in
accordance with provisions set forth in 30 CFR Part 48.

                      Stipulation

 At the commencement of the hearing the parties stipulated as

to the admissibility of certain documents and factors relating to
the assessment of a civil penalty (Tr. 4-7).

                   Findings of Fact

 The Secretary's evidence shows that on October 8, 1987 MSHA

Inspector Robert L. Huggins tested 15 miners at the Deer Creek
Mine to determine if they were properly trained in the use of
self contained self rescue devices (SCSR's) (Tr. 18-23). The
miners, selected at random, were quizzed by the inspector from a
list of structured questions prepared by MSHA's administrator
(Tr. 21-24; Ex. P2).

 Before he interviewed the miners the inspector reviewed the

MSHA memorandum which contains instructions for scoring the
results (Tr. 23, 26).

 When the inspector found that three of the fifteen miners

did not pass the test he issued a citation to UP&L. He believed
the three miners were not properly trained on the SCSR storage
plan and did not know how long the SCSR would last before
exhausting its supply of oxygen (Tr. 45, 49, 54).

 The inspector agreed that MSHA's ETS (emergency temporary

standard), adopted June 30, 1987, does not refer to the storage
plan or the amount of time available when the SCSR is used (Tr.
70).

 As a result of his quiz the inspector failed Eddie Wall

(shear operator), Eddie Johnson (laborer) and Gordon Ungerman
(head gateman on the longwall) because they had two questions
wrong. (Tr. 56, 84; Ex. P2, P4, P5, P6).

 The three miners could not answer the two following

questions: (1) How far from an SCSR can you work while
underground? and (2) An SCSR provides protection from bad air for
at least how long?

 If one question is incorrect a miner could score a 40. If

two questions were wrong a miner could score 30. However, the

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scoring instructions provide that if a miner misses more than two
interview questions he fails the test (Tr. 85, 86). The inspector
had some difficulty with inconsistent instructions as to the
manner of grading the miners' answers Tr. 85, 90; Ex. P2).

 If three people failed out of fifteen this would be an 80

percent passing rate (Tr. 94).

 When he interviewed the miners the inspector felt that Eddie

Johnson was 'really nervous; further, Eddie Wall may have gotten
a little nervous (Tr. 40, 41). Miner Ungerman indicated he should
have known the answers or retained the knowledge (Tr. 40). A lot
of the miners (of those tested) did not know the SCSR storage
plan at the mine (Tr. 44).

 UP&L's witnesses consisted of Terry L. Jordan, John Pressett

and Dave Lauriski.

 JORDAN, UP&L's chief safety engineer and a person

experienced in mining and safety, has been involved with SCSR
devices since they were required in the early 1980's (Tr.
99-102).

 Since 1986 there have been five or six "hands on" training

sessions. Every aspect of the SCSR requirements, including the
storage plan of the devices and their duration, was covered
(Tr.105). When the miners received their annual refresher
training each of them was also given a map showing the location
of the SCSRs (Tr. 105).

 The annual refresher training is different from the special

"hands on" training given twice a year on the SCSRs. During the
annual refresher training the instructor demonstrates how to don
the SCSR. He also covers the storage plan location and the
duration of the SCSR. Training of this type took place in 1987
before the citation was issued. The class consisted of 15 to 20
miners (Tr. 105-107).

 Previously several people, including an MSHA training

instructor, commended favorably on the quality of the training
(Tr. 108, 122).

 Records reviewed by the witness contain summaries of the

training received by Johnson, Wall and Ungerman from 1987 before
the instant citation was issued (Tr. 120; Ex R10). The summary
and the task training forms indicates the following training:

 NAME          DATE       INSTRUCTOR          TYPE OF TRAINING

 Eddie Wall     3/13/87    Gary Christensen      Hands on Storage
                                                 plan & duration of
                                                 use, donning of
                                                 SCSR
                4/3/87     Herman Nava           Annual Refresher -
                           Jon Pressett          Storage plan &
                                                 duration of use,

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                                           demonstration of
                                           donning
            7/21/87    Jon Pressett        Hands on storage
                                           plan & duration
                                           of use, donning of
                                           SCSR.

Eddie Johnson 7/27/87 Jon Pressett Newly employed ex-
perienced miner,
hands on-storage
plan & duration of
use, donning of
SCSR
9/25/87 Jon Pressett Annual refresher
storage plan,
duration of use,
demonstration of
donning.
Gordon Ungerman 3/6/87 Gary Christensen Hands on-storage
plan & duration of
use, donning of
SCSR.
4/3/87 Herman Nava Annual refresher
storage plan,
duration of use,
demonstration of
donning
7/21/87 Jon Pressett Hands on-storage
plan & duration of
use, donning of
SCSR.

                 (Exhibit R10)

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Prior to receiving the instant citation the witness didn't have
any knowledge indicating the miners did not know the location of
the SCSRs (Tr. 123). They received maps showing the location of
the SCSRs throughout the mine (Tr. 123).

 The witness admitted that Pressett, Christensen and Nava

were not included on the current valid training list but they
were qualified and their names had been submitted to MSHA (Tr.
147). MSHA had indicated if the names of the individuals doing
the teaching had been previously submitted they are approved with
retroactive effect. Exhibit R7 lists Pressett and Christensen as
approved instructors by a letter dated February 4, 1987 (Tr.
148-149; Ex. R7).

 Witness JON PRESSETT, a UP&L safety engineer has been an

MSHA approved instructor since October 1979 (Tr. 152, 153).

 The witness has done "hands-on" training with miners

throughout the mine (Tr. 155-159). Among other facets the
training also locates the storage plan on a mine-specific basis
(Tr. 160-163). Initially maps were given out and later updated
when the belt lines were extended (Tr. 164).

 The miners are instructed in the duration of the unit during

the "hands-on" training session (Tr. 164). In addition to "hands
on" training the company also gave annual refresher training
classes. At the annual sessions the storage plan was reviewed in
detail and maps were distributed. Team competition and multiple
choice tests were used to determine whether the miners had
absorbed the information (Tr. 166-168).

 Pressett trained Eddie Wall and Gordon Ungerman in annual

retraining (Tr. 169, 170; Ex. R13). Seven and one-half hours of
Ungerman's training was completed April 3, 1987 (Tr. 175). At the
time of the annual refresher training given to Wall and Ungerman
in April 1987 the storage plan with an exact map was given the
miners, also they discussed the donning of the unit (Tr. 177-178;
Ex. R11). In a test given by UP&L miner Wall indicated the SCSR
could be used for 60 minutes. In addition, he correctly answered
questions relating to the storage plan and the location of the
SCSRs underground (Tr. 181, 182).

 Ungerman and Wall were in the same training class. Ungerman

in a test (by UP&L) correctly indicated the unit would last 60
minutes (Tr. 183, 184).

 When Ungerman and Wall completed their SCSR training on

April 3, 1987 they were both knowledgeable in the location of the
equipment and the duration of its use. The UP&L tests also
establish these facts (Tr. 186).

 The witness also trained Eddie Johnson who received newly

employed miner training as well as an annual retraining class

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(Tr. 193-195). The training of experienced newly rehired miners
includes instructions in the storage plan and locations of the
units (Tr. 195). Eddie Johnson was also given a map showing where
the units are stored underground (Tr. 196). Johnson didn't have
any particular problems at the end of the training session (Tr.
198; Ex. R16).

 He was knowledgeable in the location, storage, duration and

care of the SCSRs (Tr. 202). Miners returning to work received
double training if they have been off a year or more (Tr. 200;
Ex. R18).

 DAVE LAURISKI, UP&L's director of safety and training, is

responsible for compliance with all provisions of Title 30 C.F.R.
(Tr. 226, 227).

 The company conducted "hands-on" training for the emergency

SCSR regulation. In 1987 the employees were trained three
separate times (Tr. 230).

 It is common that the company's list of MSHA approved

instructors is not up to date on a daily basis. When MSHA orally
approves an instructor his name is not entered on the training
plan until the next update (Tr. 233, 234).

                      Discussion

 The rule of law is clear: in interpreting a regulation it is

necessary to give effect to the plain meaning of its words.
Diamond Roofing Co., Inc., v. OSHRC, 528, F.2d 645, 649 (5th Cir.
1976); Usery v. Kennecott Copper Corp., 577, F.2d 1113, 1119
(10th Cir. 1977); KCMC, Inc., v. FCC, 600 F. 2d 546, 549 (5th
Cir. 1979).

 In the instant case 30 C.F.R. 75.1714(b) requires an

operator to "instruct(FOOTNOTE 1) and train(FOOTNOTE 2) in the use of SCSRs.
The evidence shows that UP&L did "instruct and train" its miners
and particularly miners Wall, Johnson and Ungerman. In fact, the
evidence is uncontroverted that UP&L's instructions and training
exceeded MSHA's requirements(FOOTNOTE 3) (Tr. R9-R14, R16-R18).

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It is the Secretary's position that UP&L failed to adequately
train miners Wall, Johnson and Ungerman in the use and location
of the SCSRs and therefore violated 30 C.F.R. 75.1714(b)

 The Secretary's approach of interviewing miners to test

their knowledge certainly probes the extent to which the operator
has instructed its miners. But the Secretary's argument cannot
prevail. On the record presented here the failure of Wall,
Johnson and Ungerman to demonstrate their knowledge in a more
persuasive fashion does not establish that UP&L violated the
regulation.

 Specifically, the regulation does not require that miners

demonstrate their knowledge of information relating to the use
and location of SCSRs, either at the time of the training or at
some later time.

 In other situations the Secretary has mandated that

knowledge requirements be demonstrated. For example: 30 C.F.R.
48.7(b) requires that "miners . . . shall not operate the
equipment . . . until such miners have demonstrated safe
operating procedures . . . "; further, 30 C.F.R. 75.153(a)(3)
[in electrica work] requires ". . . he attains a satisfactory
grade on each of the series of five written tests . . . ";
further, in 30 C.F.R. 77.102 [tests for methane, etc] ". . . no
person shall be a qualified person for testing for methane . . .
unless he has demonstrated . . . "; further, 30 C.F.R. 57.19096
[familiarity with signal code] requires ". . . person responsible
. . . shall be familiar with the posted signaling code".

 When   75.1714 is read in conjunction with 30 C.F.R. Part 48

it is apparent that the regulations contain a comprehensive
framework for miner training programs covering the range from new
miner training to hazard training. However, the regulations are
conspicuously silent as to what constitutes "adequate" training.
This qualitative judgment is apparently left to the discretion of
the operator who would be more familiar with specific conditions
in its mines and the training needs of its work force.

 However, for the reasons stated above, I conclude that UP&L

did "instruct and train" its miners within the meaning of
75.1714. Accordingly, it follows that the citation should be
vacated.

 UP&L raises additional issues concerning the Secretary's

guidelines for scoring the answers to the interview questions,
and concerning an appropriate remedy for the violation of a
training plan. However, inasmuch as UP&L has prevailed on the
merits, it is not necessary to review these secondary issues.

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For the foregoing reasons I enter the following:

                          ORDER

  Citation No. 3044971 and all penalties therefor are VACATED.

                             John J. Morris
                             Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE START HERE
~FOOTNOTE_ONE
1. Instruct, to give knowledge or information to; Webster's
New Collegiate Dictionary, 1979 at 594.

~FOOTNOTE_TWO
2. Train: to form by instruction discipline or drill;
Webster's New Collegiate Dictionary, 1979 at 1229.

~FOOTNOTE_THREE
3. UP&L instituted "hands-on" training for all of its miners
over one year before such training was mandated by law (Tr. 130,
131, 229). UP&L emphasizes to all of its miners that any miner
may seek individual instruction on proper donning procedures at
any time from the safety department or he may simply practice
donning an SCSR at any time at the safety department (Tr. 193).