Utah Power and Light Company, Mining Division
Utah Power and Light Company, Mining Division (FMSHRC WEST 90-285-R): Imminent-danger withdrawal order affirmed
Apply this to your situation
This order from 1990 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
MSHA issued an imminent-danger withdrawal order removing Utah Power and Light's two EIMCO 915 diesel scoops from service at the Cottonwood Mine. The order was based on severe blind spots and restricted visibility that could prevent operators from seeing vehicles or miners in the scoops' travel paths. Judge Michael A. Lasher, Jr. found that the conditions could reasonably be expected to cause death or serious physical harm before abatement and rejected arguments based on prior inspections, the inspector's short delay, and economic hardship. The withdrawal order was affirmed.
Decision snapshot
- Governing provisions: 30 U.S.C. §§ 802(j), 813(g), and 817(a)
- Outcome: Withdrawal Order No. 3583332 was affirmed.
- Key point: An imminent danger does not require an emergency or an instant enforcement decision when severe equipment blind spots could cause serious injury during normal operations.
Full text (FMSHRC public release)
CCASE:
UTAH POWER AND LIGHT V. SOL (MSHA)
DDATE:
19900827
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
UTAH POWER AND LIGHT COMPANY, CONTEST PROCEEDING
MINING DIVISION,
CONTESTANT Docket No. WEST 90-285-R
Order No. 3583332; 7/12/90
v.
Cottonwood Mine
SECRETARY OF LABOR, Mine ID 42-01944
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT
DECISION
Appearances: Susan E. Chetlin, Esq., Crowell & Moring,
Washington, D.C.,
for Contestant;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;
Robert Jennings, International Representative,
UMWA, District 22, Price, Utah,
for Intervenor.
Before: Judge Lasher
This matter came on for expedited hearing on July 19 and 20,
1990, to review a so-called "Imminent Danger" Withdrawal Order
issued pursuant to Section 107(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801 et seq., (herein Mine Act).
The Applicant (Contestant) Utah Power & Light Company, Mining
Division (herein UPL) and the Secretary of Labor, MSHA (herein
MSHA) were represented by Counsel. United Mine Workers of America
(herein UMWA), the representative of miners, was represented by
its International Representative, Mr. Robert Jennings. The
parties submitted closing arguments (and precedent references) in
lieu of post-hearing briefs.
The subject Withdrawal Order, No. 3583332, was issued on
July 12, 1990, at Contestant's Cottonwood Mine by MSHA Inspector
Jerry O.D. Lemon. It had the effect of removing from service
UPL's only two EIMCO (Diesel) #915 scoops (herein 915). The
Order, consisting of four pages with diagrams, and two subsequent
one-page modifications, alleges that the dangerous condition
results from "blind spots" and the restricted field of vision
available to the 915 operator. The basis for the issuance of the
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order was more fully developed in the exhibits and testimony of
six witnesses presented by MSHA. UPL also called six witnesses
and introduced exhibits in support of its positions.
Issues
The withdrawal order does not contain any charge of
violation of safety or health standards. MSHA's allegation that
an imminent danger existed is based on its investigation of the
circumstances, including measurements of visibility problems and
"blind spots," interviews, and findings as to prior accidents
involving the subject equipment (See T.19-21).
UPL contends that the enforcement action taken by MSHA was
inconsistent with the existence of an imminent danger, including
arguments that (1) the mine was subject to some 20 prior
inspections while the 915s were in use (since about 1985) without
their being cited, (2) that a prior 103(g) inspection conducted
by Inspector Fred R. Marietti on May 21 and 22, 1990, did not
result in any enforcement action or in a finding of imminent
danger, (3) that Inspector Lemon delayed for approximately two
hours his issuance of the withdrawal order (citing the decision
of ALJ James Laurenson in Sharp Mountain Coal Company, et al., 3
FMSHRC 115 (January 1981), and (4) that the 915s are still
permitted use in other mines.
UPL also contends that the 915s have been in use over five
years in its Cottonwood Coal Mine without the occurrence of any
"lost-time" injuries (T. 23), that there was no emergency, and
that use of the 915s was not "likely to lead to death or serious
injury." (T. 23-26).
The Order
Withdrawal Order No. 3583332 was issued on July 12, 1990, at
approximately 2 p.m. by Inspector Lemon. It provides, inter alia:
Safe operation of the EIMCO 915 diesel scoop, Serial
No. 01147 could not be done in that an inspection was
done by the writer on 7/12/90 and it was determined
that serious visability [sic] problems existed on the
model 915-1147 in that; the view opening from the top
of the operators cab over the steering wheel was 2"
to 2 3/4" wide and with a miner--that was 5þ 9"
tall was placed 4þ outby or from the side of the
machine and moved inby and outby, it was determined
that an approximate blind spot of 23þ 10" existed
on opposite the operators side of the
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machine. This blind spot imposes a serious blind spot to any coal
miner walking on this side of the machine. See the below diagram
which is not to scale:
[Refer to diagram on Ex. G-1]
There is no termination time set as this is an order.
It is important to note that the EIMCO 915, SIN-04117
was also taken underground to the 1st South Main Intake
haulage road and the following results were found; with
a Isuzu pickup parked in the center of the entry, lined
up with this EIMCO-915--with the bucket on the EIMCO in
the half-roll position (up)--, the operator can see
only the top of the cab of the truck. Front of the
truck right at the bucket--of the EIMCO. To see the
headlights of this truck other truck had to be moved
164 feet outby the EIMCO on a fairly flat roadway.
These headlights are at about 31" height.
Results of in mine Rear View:
[Refer to diagram on Ex. G-1]
Results of turning EIMCO (away from operators sight):
The operator in this case could not see the Isuzu
pick-up at a 269-foot distance. He could only see the
glare of the lights on the mine roof. There was a 5%
grade approximately drop from the corner turn point to
the Isuzu pick-up.
[Refer to diagram on Ex. G-1]
At 6" from the bucket of scoop, operator of the scoop
can barly [sic] see the top of the Isuzu for a
considerable distance. The entry at this location was
about 19 feet wide by 8 feet height. This diesel scoop
is approximately 76" height from the ground to the
top of the canopy. From the entry floor to the tope of
the highest point on a surge tank cover plate it was
65" . This machine is 8þ 1" . The operators
compartment on the machine is flush with the right-hand
side of this machine. In the writers view--the
visability [sic] on this machine is terrible from the
operators compartment. There has been one reported
serious accident--with this scoop and an Isuzu pick-up
truck driving into each other. Neither operator seen
each other until it was too late.
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[Refer to diagram on Ex. G-1]
To summarize these two diagrams, diagram A which is to
the radiator and end of the machine. [A] 5þ 9" man
was placed 4þ from the side of the machine and he
could not be seen from the belt up, until a point 72
1/2þ distance. The boot level of the miner could not
be seen for a distance of 92 1/4 feet (This would be
90% to 100% of the miner view.
In Diagram B, looking over the bucket of this
machine--the same man was placed 4þ from the
right-hand side of this machine and this man--from the
belt up could not be seen for a distance of 130 feet
(50% observation of this man) and from his boots up to
his head could be seen at about 199þ from the
operators eye area. These tests were run on the
surface.
There is no part and section of 30 C.F.R. that relates
to this visability [sic] problem observed here, so this
is a 107-a order with no violation of Part 30 CFR.
A regular operator was placed in the operators cab
prior to making these tests and all distances were
based on his sight (Terral Hardy).
The first modification of the Order was issued by Inspector
Lemon on July 16, 1990, stating: "107(a) Order dated July 12,
1990, is hereby modified to also show that following the
interviews of five Diesel EIMCO 915's operators, it was found
that far more than one accident had occurred over a five-year
period. At least 15 accidents were substantiated through the
interviews. Ed Taylor, operator, five accidents; Scott Oliver,
operator, two accidents; Robert Phelps, operator, one accident;
Steve Miner, operator, three accidents; James Ledger, operator,
three accidents. All these operators talked to, stated that a
real visibility problem exists opposite the operator's side of
these two EIMCO 915s on this property. Also, that serious blind
spots exist when making a turn away from the operator's sight,
into crosscuts or around entries. These interviews were conducted
on July 13, 1990."
The second modification was issued by Inspector Lemon on
July 18, 1990, indicating: "107-a Order No. 3583332 dated July
12, 1990, is hereby modified to show continuations sheet No. 2
modified on the lower diagram, under Results of Turning EIMCO
(away from operator sight). This diagram of the EIMCO scoop is
modified to show the bucket on the other end of the
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EIMCO 915. Also in the body of the condition under this diagram,
the first sentence is modified to read; at 6" from the Radiator
end of this scoop, the operator of the EIMCO can barely see the
top of the Isuzu pick-up truck."
Inspector Lemon was sent to the mine by his superiors on
July 12, 1990, to take a "second look" or make a "follow-up"
following an earlier MSHA investigation into a complaint filed
under section 103(g) of the Mine Act with special emphasis on the
visibility problems of the 915s (T. 29, 62, 74).
The Section 103(g) Complaint1
In a letter to Randy Tatton, UPL's Safety Director, Steven
L. Thornton, President, UMWA, Local 2176, District 22, complaints
by 915 (927) diesel haulage operators in a May 10, 1990, union
meeting relating to "Isuzu trucks" and visibility problems were
reported (Ex. A-6).
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By letter of May 16, Mr. Tatton and Earl Snow, General Mine
Foreman, responded to the Thornton letter and listed some 12
measures being taken to resolve the problems. (Ex. A-5).
Based on an unsigned complaint dated May 21, 1990 (Ex. A-7,
p. 1), MSHA Inspector Fred R. Marietti, (on the same date)
conducted an investigation of the complaint and on May 22, 1990,
issued a two-page report based thereon (also Ex. A-7, pp. 2 and
3). This report states.
"This is the result of a 103(g) inspection conducted on
05/21-22/90. The EIMCO 915 scoop was looked at and the
operators of the scoops interviewed. Changes in
lighting, moving of lights, removal of metal or
lowering has been conducted on the machine to increase
the operators visibility. The operators feel they are
in control of their machine. Because the machine is so
large and the mine environment restricts the machine's
mobility, it is apparent that they have to be operated
with some precautions. This also includes precautions
of other equipment being operated by its operator.
Traffic rules have to be established and followed to
avoid accidents. In regard to the 300
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feet mentioned in the 103(g) complaint,2 there are many areas
where that would be impossible due to dips, bends, and other
conditions common to the mine environment. Depending on the size
of the equipment, lower as an Isuzu pick-up, it may not be able
to be seen immediately alongside or within 25 to 50 feet in front
or behind on the side opposite the operator's compartment. A
person standing is more easily seen with his light and reflective
tape and this mine requires reflective vests also. Operators of
Isuzus and other equipment were interviewed also. It appears that
the general consensus of the persons interviewed was that traffic
rules and consideration with safe driving methods need to be
followed. On May 16, a meeting was held between management and
representatives of the miners. A copy of the outcome with
problems needing to be addressed is enclosed as a part of this
investigation. At the time of this investigation, the problems
addressed have been implemented or are being worked on. There
were no violations, safeguards, or orders issued."
According to Inspector Lemon, he had no knowledge why
Inspector Marietti did not issue a withdrawal order, but he
assumed that "he didn't go through the tests and examinations we
went through." (T. 60). This impression was borne out in the
record (T. 168-172, 176-179, 201).
General Findings
At the times material herein, UPL utilized two 915s at its
Cottonwood underground coal mine and has done so since
approximately 1985 (T.152).
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The 915 is 30 feet long by 8 feet wide by 5 feet high (T.55,
149).3 It weighs approximately 20 tons (T. 85, 149) and runs
between five and seven mph (T. 67, 242). The 915 is more suitable
for metal/non metal mines since they generally have a higher seam
than coal mines (T. 144-146).
Eighty to 90 percent of the time, the two 915s are engaged
in taking supplies from outside the mine to the sections and the
rest of the time they are engaged in "gobbing" - a process of
cleaning up loose coal on an active section, or "even outby in
crosscuts or roadways." The 915s travel "the most traveled
roadways into the mine" and "travel all the main intakes in."
Inspector Lemon testified the 915s would meet all traffic "coming
in the opposite direction" and would meet "occasional miners
walking along intakes, miners coming from other entries, belt
entries, what have you, through the doors through these intakes."
(T. 54-55, 120, 149, 150). The two 915s are operated on all three
eight-hour shifts at the mine (T. 96).
One miner, Jeffery A. Ricchetti, a mechanic, described the
operational effect of the 915s as follows:
"Well, one, I've seen these operators visually, because
they can't see out of the machine, they've hooked onto
pieces of equipment in my sections, drug 'em down the
entries, they've run into our material cars, tore the
supplies off the material cars, they've ran into 7200
cables with these machines, live 7200 cables with these
machines, basically because they can't see out of these
machines. And they are big and large, and they take up
the entry, and they kind of scare you when you go
around them." (T. 84).
Ricchetti also described the mine as being full of
intersections, turns, dips and rolls (T. 91, 94) and indicated
that it was difficult from an Isuzu pick-up to see another pickup
at 100 or 200 yards (T. 91).
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The adverse effect on visibility of the vagaries, "ups and downs"
and bends in the mine was conceded or confirmed by numerous other
witnesses (T. 100-104, 113-114, 116, 187-188, 190, 197-198,
203-206, 265, 288, 290, 293, 301-305). The existence of "blind
spots" due to dips was also confirmed (T. 265, 297). Relying on
the reflections from the lights of other vehicles does not always
prevent the 915 operator from striking the other vehicle (T.
295-296, 312-313). It would be "possible" not to see a miner on
foot due to "blind spots" (T. 297-299).
Upon his arrival at the mine on July 12, Inspector Lemon had
one of the two 915s brought to the surface (this was the "better"
of the two machines, T. 61) where he conducted visibility tests.
A "four-foot blind spot" was found by placing a 5þ 9" man four
feet from the machine (T. 30, 31, 32, Ex. G-3). For a distance of
14 feet 8 inches parallel to the machine, the 915 operator could
see no portion of the man's head (T. 33, T. 140-144). Then for a
space of six inches, the man could be seen; then, however,
another blind spot occurred from the end of the six-inch point,
described by the Inspector as follows:
A. Then at roughly an approximate point six inches inby
this 14 foot 8 inch point this man again went into
another blind spot and we advanced him out to nine foot
two inches.
Q. Is that indicated here in Exhibit 3?
A. Yes, it is.
Q. And in that area this man who was walking parallel
four feet from the piece of equipment could not be
seen?
A. Yes, sir. So from this examination we surmised that
we had a serious blind spot off the operator's side of
this machine, and being very concerned with this,
because this type of machine in a coal mine, there are
people walking alongside of these machines." (T. 34).
The record reveals numerous situations where the 915 has
very limited or partial visibility (Ex. G-3, G-5, G-6; T. 34, 47,
49, 77, 97, 142, 193, 197-198, 277, 278, 281, 295, 300).
On July 12 after the surface tests, the 915 was taken
underground into the First South intake roadway where the
approximate mine height was 8 feet and the width was 20 feet
(T. 35).
Page 11
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From first talking to two operators (Terral Hardy and Edmond
Taylor), Inspector Lemon determined there was a visibility
problem on the side opposite the operator, and in making turns
into crosscuts and entries (T. 36, 45, 47). With respect to the
915's visibility problem relating to the modified Isuzu pick-ups
used in the mine, Inspector Lemon testified:
"That means that I was standing right next to the
operator myself, although he was in--his visibility was
was probably just a little less than mine. I could see
roughly that much of the cab, and that's what he could
see, about an inch of the cab, about an inch and a half
of the cab. And after the six-inch outby, the six
inches the truck faded out of view, and up to a
distance of 269 feet you couldn't see any part of the
truck, nor could you see any part of the headlights.
All you could see is the light off the truck, the glare
off the mine roof." (T. 39). (Emphasis added).
XXX XXX XXX
THE WITNESS: No, you cannot see the headlights. You can
see the light glare a gainst the mine roof.
THE COURT: Okay, you can see the top of the truck?
THE WITNESS: No, you can't.
THE COURT: Okay. Are you saying at 269 feet away, you can't
see any part of t he truck?
THE WITNESS: Yes, that's what I'm saying.
THE COURT: Oh, okay. So on EXHIBIT 5 you indicated
269 feet the Eimco operator cannot see the
headlights of the truck?
THE WITNESS: That's right, sir.
THE COURT: Okay, you're saying now he couldn't
see the top of the truck eithe r?
THE WITNESS: No, all he could see was the light reflect-
ions off of the line r oof from a blue
strobe light." (T. 41). (Emphasis added).
Inspector Lemon gave this description of the view an
operator has through the cab of the 915:
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A. This gives a true indication of the view, it gives a true
indication of the real problem we have, a basic problem of tunnel
vision. When you're setting in this cab, your head is against
this cab, and you're looking at a space of two to two and
three-quarter inches over to five and three-quarter on the far
left side of that and this machine, if you keep in mind, is
approximately eight feet one inches wide. It's just like looking
down a tube." (T. 52). See also Exhibit G-4.
The Inspector explained his decision to issue an imminent
danger Order in this manner:
"I concluded it was very dangerous with the blind spots
that we have. I feel it's a very serious blind spot
opposite the operator's side of the machine, and I feel
also that it's a very dangerous situation exists with
visibility on turns, and that's why I issued the order.
That's my feeling, that we have a serious situation
here." (T. 77).
Respondent MSHA established that there has been a
significant number of accidents involving the 915 over the 5-5
1/2 year period it had been in use at the Cottonwood Mine. Thus,
Inspector Lemon's investigation revealed there had been
approximately 15 accidents over the period (T. 50, 58, 73).
Several of these accidents had the potential of causing
serious injuries (T. 50, 73, 100-102, 158, 195, 281, 301).
In one of the accidents, involving an Isuzu pickup driven by
Larry Hunsaker, an electrician mechanic, and Robert Phelps, who
was operating a 915, the Isuzu pickup was "totaled" (T. 102,
111). Hunsaker narrowly escaped serious injury (T. 100, 101-102,
111, 112). Although the two vehicles were approaching each other
"head on," neither driver saw the other (T. 107-108, 113-114,
116). While Hunsaker received "corrective action" from UPL for
"going too fast," the record nevertheless indicates the essential
cause of this and other accidents as the visibility problem of
the 915 driver (T. 47-49, 65, 89-90, 91, 113, 114, 116, 118, 134,
159-160, 193, 194, 197, 203-206, 277, 278, 291).
Another 915 accident resulted in the filing of a safety
grievance in April 1990 (T. 158), following which special
meetings were held between UPL, UMWA, and the 915 operators.
Page 13
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After these meetings UPL installed work changes and equipment
changes prior to the July 12, 1990 Withdrawal Order (Exs. A-1,
A-5, A-6; T. 160). Some of these changes announced by UPL in a
May 16, 1990 memo (Ex. A-5) were to encourage Isuzu travel in
certain areas, counseling an apparently aberrant Isuzu operator,
training in traffic policies, upgrading lighting (high intensity
blue strobe light) for parked Isuzus, training Isuzu operators to
get into a safe location at least 300 feet away from oncoming
large equipment, eliminating a severe dip, upgrading lighting
systems on the 915s, and lowering the 915s fenders to improve
visibility (T. 160-168, 172, 191, 216, 229). Nevertheless, these
changes, presumably in effect on July 12, 1990, did not change
the testing and measuring results (Exs. G-2, 3, 4 and 5) obtained
by Inspector Lemon, nor the opinions of various credible
witnesses adduced at the hearing as to the visibility problem.
Further the upgraded lighting was not placed on other equipment
(T. 163, 216-217), nor were the strobe lights installed on all
Isuzu pickups (T. 288, 378-379).
MSHA also established that there was considerable exposure
to miners traveling on foot in the mine by the blind spots and
visibility limitations of the 915 (T. 94-95, 110, 142-143, 256,
266-273, 290, 292, 297-299, 389).
Contestant's Positions
Contestant established through its Chief Safety Engineer,
Randy B. Tatton, that the most serious disabling injuries at the
mine were back injuries and that use of the 915, which has the
capability of delivering material in close proximity to the work
site, would decrease such injuries by decreasing the amount of
material actually handled by miners (T. 150).
915 operators are task-trained on the machines and on
several occasions special training sessions have been held to
discuss new work rules, and such things as use of lights and
rights-of-way rules (T. 152-154, 155).
No "occupational injuries," i.e. lost-time injuries, have
occurred at the Cottonwood mine as a result of the operation of
the 915s (T. 156). While the accident involving Phelps-Hunsaker
involved an injury to Hunsaker, such required only first-aid and
was not classified as an occupational injury calling for
reporting to MSHA (T. 157).
Mr. Tatton testified that following the installation of new
work rules on or about May 23, 1990, there have been no
collisions involving the 915 (T. 171, 174-175).
Page 14
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Mr. Tatton described in some detail what he considered Inspector
Lemon's indecision after conducting his measurements and before
the withdrawal order was issued (T. 180-184). Among other things,
Mr. Tatton indicated that on July 12 the inspection party
returned to the surface and arrived at his office about 12:15
p.m.; that he asked Inspector Lemon what he was "going to do with
the machine," and that the Inspector said he had to look at his
information before making a decision. Mr. Tatton said it was not
until 1:30 p.m. to 1:45 p.m. before the company was asked to take
the machines out of service (T. 180-182).
Mr. Tatton gave the opinion that the use of the 915 at the
Cottonwood mine did not constitute an imminent danger and
explained:
"To me an imminent danger means that if that machine
turned around and went back in that mine, it would
probably kill somebody; and I knew for a fact we'd
operated two machines for five years and never even had
an occupational injury." (T. 184).
The 915 operator Edmond Taylor indicated that at 2 p.m. on
July 12, 1990, he was asked by one Dixon Peacock to tag his 915
out of service (T. 228). Mr. Taylor's opinion was that the 915's
visibility problem did not create an imminent danger (T. 228,
248).
Dale Fillmore, area manager for Eimco/Jarvis/Clark, the
maker of the 915, testified that he is in charge of sales and
service of his company's products for his area; that the 915 has
been produced for 15 years; that some 20-25 other "mines" use the
915; that "several" of such mines have similar seam heights to
the Cottonwood mine; that it was his opinion that use of the 915
at the Cottonwood was not reasonably likely to lead to death or
serious injury; that the safety of the 915 has to be related to
the professionalism of the operator and such things as work
rules.
Dave D. Lauriski, director of health, safety and training
for UPL testified that at 12:30 p.m. on July 12, 1990, he called
the mine and spoke with Mr. Tatton (T. 345-346) who told him that
"there was a concern that there was going to be some enforcement
Page 15
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action taken against the equipment."4 Mr. Lauriski then went
to the mine and discussed the matter with Inspector Lemon, who
was undecided whether to cite a violation or issue an imminent
danger order (T. 346, 349). Lauriski suggested that a meeting
with Inspector Lemon's supervisors in Price, Utah might be in
order in lieu of enforcement action being taken (T. 349).
According to Mr. Lauriski, it was at this point that Inspector
Lemon suggested that UPL voluntarily take the 915s out of
service. Inspector Lemon's supervisor was called and reportedly
he, in effect, said that the enforcement decision was Inspector
Lemon's to make and that such a meeting as that suggested by
Lauriski would be "meaningless." (T. 349-350). Inspector Lemon
then issued the withdrawal order.
Mr. Lauriski did not believe that the "visibility
restrictions" on the 915 created "a reasonable likelihood of
serious injury or death." (T. 351). He also said that taking the
915s out of service increases the "manhandling" of materials by
individual miners, would slow down supplying the mine with needed
materials for retreat mining, etc., and would increase the risk
of injury to miners because of the types of manual labor that
might have to be performed. He also was concerned that mine
housekeeping and trash removal would deteriorate (T. 352-353,
356). He also indicated that on July 12, 1990, only approximately
three-fourths of the 26-27 Isuzu pickups were equipped with
strobe lights for use when parked (T. 359, 378-379).
As noted above, contestant UPL introduced evidence that, to
make the 915's operation safer, it installed work changes and
equipment changes prior to the July 12, 1990 Withdrawal Order
(Exs. A-1, A-5, A-6; T. 160-167, 172).
Nevertheless, these changes presumably in effect on July 12,
1990, did not change the testing and measuring results obtained
by Inspector Lemon, nor the opinions of various credible
witnesses adduced at the hearing as to the visibility problem.
Further, the upgraded lighting was not placed on other equipment
(T. 163, 216-217), nor were the strobe lights installed on all
Isuzu pickups (T. 288, 378-379).
Page 16
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UPL also established that it had certain "Rules of the Road" in
effect on July 12, 1990, one of which, pertaining to
right-of-way, provided that smaller vehicles must give way to
larger vehicles (T. 70-71). The record indicates that the 915 is
the largest such equipment in the mine (T. 89). Here again,
though, there is the evidence that, while the Isuzu pickups were
required by this rule to get out of the way of the oncoming 915s,
there are occasions, such as when going around a turn, when this
is impossible (T. 90-91, 190, 193, 197-198, 276-279).
Other significant (and preponderant) evidence shows (1)
because of dips and turns, the 915 operator's visibility is
further limited (T. 127, 131, 159, 191, 197-198, 235, 238, 265);
(2) the rules are not always followed (T. 127, 131, 159, 191,
197-198, 203, 206, 238-240, 244-246, 276, 277, 278, 281-284); and
(3) conditions are not always "normal" (T. 97, 193, 197, 238-240,
244-246, 276, 277, 278, 281-284). Individual miners do not wear
their reflective tape in the same place (T. 284).
UPL makes the argument that there were 5 to 5 1/2 years of
inspections at the Cottonwood mine while the 915 loader was in
service without a withdrawal order being issued on the 915. To
the extent that such contention goes beyond the raising of a
possible basis for inferring that the 915 has no dangerous
visibility problem and raises the defense of estoppel, such is
rejected. See Secretary of Labor v. King Knob Coal Company, Inc.,
3 FMSHRC 1417 (1981). Further, there is no showing that the
specific limits of visibility were ever previously determined as
they were in the tests and measurements of Inspector Lemon, and
as I have noted elsewhere herein the determination of Inspector
Marietti apparently was not anywhere as thorough as that of
Inspector Lemon.
Contestant UPL was also concerned with and presented
evidence with respect to its economic hardship and cost factors
which would attend the loss of use of the 915s. Such evidence,
however, is not found to be directly or indirectly relevant to
the decisive issue in this case: whether an imminent danger
existed.
Discussion and Conclusions
The question in this matter is whether or not the blind
spots and visibility limitations on the operators of the 915s
constitute an imminent danger.
Page 17
~1721
The meaning of "imminent danger" has undergone transformation
since the general concept of it first appeared in mine safety law
in 1952.5 See Freeman Coal Mine Company v IBMA, (7th Cir.
1974). In that case the Court, speaking in reference to the 1969
Federal Coal Mine and Safety Act, quoted from the legislative
history, to wit:
The definition of an "imminent danger" is broadened
from that in the 1952 act in recognition of the need to
be concerned with any condition or practice, naturally
or otherwise caused, which may lead to sudden death or
injury before the danger can be abated. It is not
limited to just disastrous type accidents, as in the
past, but all accidents which could be fatal or
nonfatal to one or more persons before abatement of the
condition or practice can be achieved. 115 Cong. Rec.
39985 (1969). (Emphasis added.)
The Federal Mine Safety and Health Review Commission in the
last year retained the view of the U.S. Appellate Courts in its
decision in Rochester & Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159 (November 1989), wherein it set forth the
following useful formula for analysis of "imminent danger"
questions:
In analyzing this definition, the U.S. Courts of
Appeals have eschewed a narrow construction and have
refused to limit the concept of imminent danger to
hazards that pose an immediate danger. See e.g.,
Freeman Coal Mining Co. v. Interior Bd. of Mine Op.
App., 504 F.2d 741 (7th Cir. 1974). Also, the Fourth
Circuit has rejected the notion that a danger is
imminent only if there is a reasonable likelihood that
it will result in an injury before it can be abated.
Eastern Associated Coal Corp. v. Interior Bd. of Mine
Op. App., 491 F.2d 277, 278 (4th Cir. 1974). The
Page 18
~1722
court adopted the position of the Secretary that "an imminent
danger exists when the condition or practice observed could
reasonably be expected to cause death or serious physical harm to
a miner if normal mining operations were permitted to proceed in
the area before the dangerous condition is eliminated. 491 F.2d
at 278 (emphasis in original). The Seventh Circuit adopted this
reasoning in Old Ben Coal Corp. v. Interior Bd. of Mine Op. App.,
523 F.2d 25, 33 (7th Cir. 1975.)"
These principles seem to put to rest any argument--if such
is indeed actually made--by UPL that an "emergency" extant in the
mine is a prerequisite to the existence of an imminent danger
determination. In Rochester & Pittsburgh, supra, the Commission
also seemed to emphasize that the analytical focus is on the
"Potential of the risk to cause serious physical harm at any
time" (emphasis added). Inspector Lemon testified in this
connection that:
"In my mind, I feel that reasonably, at any time,
someone could be seriously hurt or killed, if I let
this condition go before it could have been abated."
(T. 56).
The Inspector 6 elaborated on this judgment as follows:
A. Okay, I'm very concerned with off the operator's
side, if they're hitting these pickups and they don't
actually know where the pickup is, I'm very concerned
with where the person that got out of the pickup is,
whether he's walking around. If they couldn't see the
pickup, they're not going to see the operator that's
between the line of pickup.
Q. What kind of hazard would there be?
A. This would be an imminent danger, if he was pinned
between that and the machine, you'd kill him outright
or crush him to where he'd be seriously hurt.
Page 19
~1723
Q. What if he was inside the truck, how would you compare?
A. If he was inside the truck, he could also be killed,
if the machine hit that pickup in the door side of the
operator, it could be fatal. That's all in relation to
the speed that the machine is traveling, but that's a
very, very possible likelihood. (T. 56-57)
UPL's claim that the 915 was really no different in
visibility limitation to other pieces of equipment (T. 133-136,
184-185, 188-189, 203-206) was in the form of generally stated
opinion evidence, unsupported by measurements taken on such other
equipment or accident statistics (T. 198). Nor was such other
equipment shown to be similar to the 915 (T. 136-137). Such is
not considered to overcome the more detailed and convincing proof
submitted by MSHA in support of its conclusion that the 915's
blind spots visibility problem created an imminent danger (T.
190, 193, 197, 203-206, 297, 299).
Although UPL in one of its major arguments takes the
position that the Inspector's "delay" in issuing the Withdrawal
Order demonstrates an inconsistency with the "emergency" or
urgency it alleges is necessary to justify an imminent danger
order, Inspector Lemon satisfactorily explained his actions as
follows:
A. Well, at this time I asked the safety man, Randy
Tatton, and a few other management people around there,
I needed some time to go outside to look at all the
data we had got together, and compiled all this stuff,
and I told him I felt we had a serious problem here
with visibility. And I asked him at this time if he
would pull his machines out of service until I could
get all this stuff together. And so Randy said yes,
this would be possible.
He took his machines out of service. They took them
outside and they put company tags on them and they put
them in the--it's a little house where they store rock
dust, right adjacent to their surface shop area.
Q. So you did that immediately after you made your
observations of the situation?
A. Yes.
Q. You didn't wait two hours?
Page 20
~1724
A. No, and we did that immediately. Randy took them out of
service immediately, and then we got outside and we talked about
the problems. I was having a real problem finding a section in 30
CFR to attach to the imminent danger order, and I couldn't find
one because there is not one. So I, in fact, issued the order,
and then we went down and put the tags on the machine. And some
of the safety department, maybe one of the mine managers, went on
down to the Price office to meet with one of the supervisors, and
they asked me to go down with them, and I said I'd be down
shortly, as soon as I finished looking at the Eimco and took some
measurements. And I took some measurements and looked at it.
(T. 45, 46).
Inspector Lemon, when called as a rebuttal witness,
reiterated his testimony that while the inspection party was
still underground he asked Mr. Tatton (in the presence of the
union representative and an MSHA "technical support man") to
voluntarily remove the 915s from service (T. 381).
Based on the Inspector's explanation for the short delay in
issuing the withdrawal order, and the fact that for at least part
of this period UPL actually, albeit voluntarily, removed the 915s
from active service, I attribute no misunderstanding or doubt on
the Inspector's part as to the necessity of or justification for
issuing the Order.7
UPL's "delay in issuance" argument can be equated to an
"Instant Recognition" test, that is, if the situation is not so
patent or obviously an "emergency," that it immediately dawns on
the "reasonable man" inspector observing such and causes him to
act instantaneously, then the condition or practice cannot be an
Page 21
~1725
imminent danger. Such a test undoubtedly would cover some
imminent danger situations, but not necessarily all. Applying
such a test might frequently shift the litigation from a trial of
the true issue to a trial of such things as the Inspector's I.Q.,
his fatigue, or his high-level expertise on a specific safety
subject. Again, the effect would be that if the inspector cannot
literally "hip-shoot" a particular decision, the withdrawal order
should not stand. Such a squeezing of the decision time-frame
would infringe on the principle that mine inspectors must have
"the necessary authority for the taking of action to remove
miners from risk." Rochester & Pittsburgh Coal Co., supra. In the
instant matter, the inspector had measurements, tests,
information, a number of laws, enforcement options and fairness
to the mine operator as factors to weigh. Any one of such factors
in a given set of circumstances might justify a longer period of
deliberation than that involved here. Forcing a hasty decision
may not always be consistent with either sound mine safety
enforcement or justice.
I find no basis for concluding that Inspector Lemon abused
his discretion or authority in the issuance of an imminent danger
withdrawal order in this matter.
It is concluded that the conditions observed by the
Inspector and described in the record could reasonably have been
expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed, and that the
use of the 915s with the severe visibility limitations described
herein above created a significant potential of causing serious
physical harm at any time.
ORDER
Based on the foregoing findings and conclusions, UPL's
application for review seeking vacation of Withdrawal Order No.
3583332 is DENIED and the Order is AFFIRMED.
Michael A. Lasher, Jr.
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
1. Section 103(g) of the Mine Act provides:
"(g)(1) Whenever a representative of the miners or a
miner in the case of a coal or other mine where there is no such
representative has reasonable grounds to believe that a violation
of this Act or a mandatory health or safety standard exists, or
an imminent danger exists, such miner or representative shall
have a right to obtain an immediate inspection by giving notice
to the Secretary or his authorized representative of such
violation or danger. Any such notice shall be reduced to writing,
signed by the representative of the miners or by the miner, and a
copy shall be provided the operator or his agent no later than at
the time of inspection, except that the operator or his agent
shall be notified forthwith if the complaint indicates that an
Page 22
imminent danger exists. The name of the person giving such notice
and the names of individual miners referred to therein shall not
appear in such copy or notification. Upon receipt of such
notification, a special inspection shall be made as soon as
possible to determine of such violation or danger exists in
accordance with the provision of this title. If the Secretary
determines that a violation of danger does not exist, he shall
notify the miner or representative of the miners in writing of
such determination.
(2) Prior to or during any inspection of a coal or
other mine, any representative of miners or a miner in the case
of a coal or other mine where there is no such representative,
may notify the Secretary or any representative of the Secretary
responsible for conducting the inspection, in writing, of any
violation of this Act or of any imminent danger which he has
reason to believe exists in such mine. The Secretary shall, by
regulation, establish procedures for informal review of any
refusal by a representative of the Secretary to issue a citation
with respect to any such alleged violation or order with respect
to such danger and shall furnish the representative of miners or
miner requesting such review a written statement of the reasons
for the Secretary's final disposition of the case."
2. The complaint alleges: "The EIMCO 915 loaders at our mine
have a visibility problem of which the operators cannot see the
travelway or incoming traffic 300þ out. (This was brought up by
an operator at a meeting with management.) We feel this to be an
imminent danger to personnel traveling the roadways. Also, we
have experienced several accidents involving this equipment."
(Ex. A-7).
3. By comparison, an Isuzu pick-up weighs 3000 pounds (T.
85). There were approximately 25-27 Isuzus operating at the mine
(T. 286-287, 359, 378). At the time of the Order's issuance, not
all of the Isuzu pick-ups had been equipped with strobe lights.
(See Ex. A-5; T. 288, 359).
4. 12:30 p.m. would have been shortly after the inspection
party returned to the surface. This particular testimony also
supports Inspector Lemon's position that he was going to do
something about the 915s. (See also T. 363).
5. The Mine Act defines an imminent danger as "the existence
of any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated." Section 3(j) of
the Mine Act; 30 U.S.C. 802(j). This definition was not changed
from the definition contained in the Coal Mine Health and Safety
Act of 1969, 30 U.S.C. 801 et seq. (1976) (amended 1977) (the
"Coal Act").
6. Inspector Lemon was a particularly persuasive witness,
his testimony reflecting the thoroughness of his testing and
investigation, his candid responses on cross-examination, and
sincerity of conviction.
Page 23
7. One member of UPL's management, Garth Neilsen, Longwall
Superintendent, verified that the Inspector was concerned about
getting the 915s out of service and that his "indecision" was
about how to do it:
To me he seemed undecided. I do feel he felt there was
a definite safety problem there, as far as visibility, but he
felt--I felt that he felt he was undecided on how to handle that,
as far as which way to get the machine out of service. (T. 211)
(Emphasis added).
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