Utah Power & Light Company

Plain-English summary

Utah Power & Light operated large diesel scoops in the haulageways of its Cottonwood Mine. MSHA issued a section 107(a) withdrawal order after tests showed that scoop operators had serious blind spots, but the mine had also adopted lighting, vehicle, traffic, and operating procedures to reduce the risk. The Commission held that an imminent-danger order requires a danger of death or serious injury that is impending and requires immediate withdrawal, not merely a hazard that could cause a serious accident sometime in the future. Because the Secretary did not prove that the visibility problem created that kind of imminent threat, the Commission reversed the ALJ and vacated the withdrawal order.

Decision snapshot

• Cited authority: 30 U.S.C. § 802(j), § 817(a), and § 874(b); 30 C.F.R. §§ 50.2(e) and 50.2(g)
• Outcome: The Commission reversed the ALJ and vacated the section 107(a) withdrawal order.
• Key point: An imminent-danger order requires an impending threat that warrants immediate withdrawal, not a serious hazard that may cause harm at some future time.

Full text (FMSHRC public release)

CCASE:
MSHA V. UTA POWER & LIGHT
DDATE:
19911031
TTEXT:
October 31, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. WEST 90-285-R

UTAH POWER & LIGHT COMPANY,
MINING DIVISION

BEFORE: Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This review proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. • 801 et seq. (1988) (the "Mine Act" or "Act"). It
involves the validity of a withdrawal order issued by the Secretary of Labor
to Utah Power & Light Company, Mining Division ("UP&L"), alleging that the
limited visibility of operators of EIMCO 915 diesel scoops ("scoops") created
an imminent danger. The imminent danger withdrawal order was issued by an
inspector of the Department of Labor's Mine Safety and Health Administration
("MSHA") under section 107(a) of the Mine Act, 30 U.S.C. • 817(a), at UP&L's
Cottonwood Mine. 1 The withdrawal order did not charge UP&L with violation
of any of the safety standards promulgated by the Secretary and no citations
or orders were issued under section 104 of the Act, 30 U.S.C. • 814, in
conjunction with the section 107(a) withdrawal order.

1 Section 107(a) of the Mine Act provides, in pertinent part:
If, upon any inspection or investigation of a
coal or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine
throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all
persons, except those referred to in section [104(c)],
to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative
of the Secretary determines that such imminent danger
and the conditions or practices which caused such
imminent danger no longer exist.

Page 2

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Following an expedited evidentiary hearing, Commission Administrative
Law Judge Michael A. Lasher affirmed the section 107(a) withdrawal order.
Utah Power and Light Co., 12 FMSHRC 1706 (August 1990)(ALJ). The
Commission
granted UP&L's Petition for Discretionary Review challenging the judge's
determination that an imminent danger existed. For the reasons that follow,
we reverse the judge's decision.
I.
Factual and Procedural Background
UP&L operates the Cottonwood Mine in Emery County, Utah. UP&L uses the
scoops at issue in the main haulageways to haul material into and out of the
mine and to move equipment around in the mine. The scoops(Footnote 2) weigh
about 20 tons each and are about 30 feet long, eight feet wide and six feet
high. They travel at an average speed of five miles per hour with a top speed
of seven miles per hour. When loaded with heavy material, such as gravel,
they travel as slowly as one to two miles per hour. Tr. 251. The two scoops
were purchased in 1985 and have been in almost continuous use, three shifts a
day, since that time. Tr. 152-53. The operator's cab on each scoop is
located on one side of the scoop rather than in the center, and the operator
sits sideways facing the opposite side of the scoop. Since their introduction
into the mine, the scoops have been involved in about 15 accidents, none of
which resulted in a lost time injury to a miner or required a report to be
filed with MSHA under 30 C.F.R. Part 50 (reporting of accidents, injuries and
illnesses). As discussed further below, UP&L does not dispute that scoop
operators cannot directly see all areas around the scoop due to blind spots on
the side of the scoop opposite the operators cab (the "offside").
A. Events preceding the issuance of the order
On April 9, 1990, a parked Isuzu pickup truck ("pickup") used by Nick
Manning was struck by a scoop. The pickup was parked in a haulage entry and
was unoccupied at the time of the collision. On May 13, 1990, Steven
Thornton, President of the UMWA local, wrote to Randy Tatton, UP&L's safety
director for the mine, concerning safety problems in the haulageways. The
letter summarized the safety concerns of heavy equipment operators and
suggested several improvements. Exh. A-6. UP&L responded with a letter dated
May 16, 1990, that set forth changes being made to resolve the union's safety
concerns. Exh. A-5. These changes included, for example, installing quartz
halogen lights on the scoops, realigning the fenders on the scoops to improve

visibility, and improving haulage operating procedures. On May 20, 1990, MSHA
received a request for an inspection under section 103(g) of the Act. 3 The 30 U.
S.C. • 817(a).
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
2 Although UP&L uses two scoops at the mine, which are essentially the
same, the MSHA inspector issued the order of withdrawal based on his

Page 3

examination of one of the scoops.
3 Section 103(g) of the Mine Act provides, in pertinent part:
Whenever a representative of the miners has
reasonable grounds to believe that a violation of a
~1619
section 103(g) complaint alleged that visibility limitations on the
scoops created an imminent danger.
On May 22, 1990, MSHA Inspector Fred Marietti was sent to investigate
the complaint. Inspector Marietti determined that safe operation of the
scoops depended upon the adoption of safe working procedures in the
haulageways. He noted that traffic rules needed to be followed and other
precautions needed to be taken to operate the scoops safety. He concluded by
stating that "[a]t the time of this investigation, the problems addressed have
been implemented or are being worked on." Exh. A-7. He issued no citations,
withdrawal orders or safeguards.
B. Order of withdrawal
Subsequently, MSHA Inspector Jerry Lemon was instructed by the MSHA
District Manager to take a "second look" into the complaint. Tr. 29.
Inspector Lemon inspected the mine on July 12, 1990, and issued the section
107(a) order of withdrawal that is the subject of this proceeding, requiring
UP&L to withdraw both scoops from the mine. The order states that "[s]afe
operation of the EIMCO 915 diesel scoop ... could not be done in that ...
serious vis[i]bility problems existed..." Exh. G-1.
Inspector Lemon performed his inspection in two parts. First, he asked
UP&L for permission to examine a scoop on the surface, where he performed a
number of visibility tests. In one test a miner was placed four feet from the
side of the scoop opposite the operator's cab and was asked to walk parallel
to the scoop towards the radiator end of the scoop. Exh. G-1; 12 FMSHRC at
1714. During this test, the scoop operator could not see this miner for a
distance of approximately 24 feet as he walked parallel to the scoop. Id.
The inspector also performed a number of tests underground. In one
test, the scoop was parked in an offside turning position (as if making a left
turn into a crosscut) and a pickup located in the crosscut was backed away
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
mandatory health or safety standard exists, or an
imminent danger exists, such 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, and a copy shall be
provided the operator or his agent no later than at
the time of inspection, except that, upon the request
of the person giving such notice, his name and the
names of individual miners referred to therein shall

Page 4

not appear in such copy. Upon receipt of such
notification, a special inspection shall be made as
soon as possible to determine if such violation or
danger exists in accordance with the provisions of
this title.
30 U.S.C. • 813(g).
~1620
from the scoop. Exh. G-1; 12 FMSHRC at 1715. The operator could not see the
pickup during this test but could see the glare of the pickup's lights on the
mine roof. Id. After performing these tests, Inspector Lemon issued the
order of withdrawal later that day. The following day the inspector modified
the order to describe accidents that the inspector believed were caused by the
visibility limitations of the scoops and to correct a portion of the original
order. Exh. G-1.
UP&L contested the order and an expedited hearing was held on July 19,
1990. On September 7, 1990, after the judge's decision was issued, the order
was terminated when certain modifications were made to the scoops.
In concluding that the visibility limitations associated with the scoops
presented an imminent danger, the judge relied on the Commission's decision in
Rochester & Pittsburgh Coal Company, 11 FMSHRC 2159 (November 1989).
The
judge first concluded that an "emergency" situation is not a prerequisite to
the existence of an imminent danger. 12 FMSHRC at 1722. Based on his reading
of Rochester & Pittsburgh, the judge then evaluated the potential risk of the
scoops causing serious physical harm at any time. Id. The judge credited
Inspector Lemon's testimony that a miner could be killed or seriously injured
if the condition was allowed to continue. 12 FMSHRC 1722-23. After rejecting
the arguments made by UP&L, the judge held that he could "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." 12 FMSHRC at
1725. The judge then stated:
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 [scoops] with the severe visibility limitations
described herein above created a significant potential of causing
serious physical harm at any time.
Id.
II.
Disposition of Issues
The issue in this case is whether the visibility limitations of the
scoops created an imminent danger requiring their immediate removal from
service. UP&L disputes that the danger presented by the visibility
limitations of the scoops was imminent at the time the order of withdrawal was

Page 5

issued and argues that the alleged hazard was not so serious or imminent that
immediate withdrawal of miners was required. (Footnote 4) We hold that the
secretary

4 UP&L also argues that Inspector Lemon's alleged hesitation and delay in
issuing the imminent danger order supports its view that the order is not
valid. The judge rejected UP&L's argument. 12 FMSHRC at 1723-25. We agree
with the judge that "[f]orcing a hasty decision may not always be consistent
with either
~1621
failed to prove that the visibility limitation presented a danger
that was imminent.
A. Requirement of imminence
The word "imminent" is defined as "ready to take place: near at hand:
impending...: hanging threateningly over one's head: menacingly near."
Webster's Third New International Dictionary (Unabridged) at 1130 (1986). The
language of the Act and its legislative history make clear that Congress
intended that there must be some degree of imminence to support a section
107(a) order.
The term "imminent danger" is defined in section 3(j) of the Act to mean
"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." 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
sound mine safety enforcement or justice." 12 FMSHRC at 1725. In
any event, Inspector Lemon reasonably believed that the scoops were out of
service during the time he was deciding what action to take. "Coal Act").
The Senate Report for the Coal Act states that an imminent
danger is present when "the situation is so serious that the miners must be
removed from the danger forthwith when the danger is discovered without
waiting for any formal proceeding or notice." S. Rep. No. 411, 91st Cong.,
1st Sess 89 (1969) reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., 1st Sess. Part 1 Legislative History of
the Federal Coal Mine Health and Safety Act of 1969 at 215 (1975)("Coal Act
Legis. Hist.") It further states that the "seriousness of the situation
demands such immediate action" because "[d]elays, even of a few minutes, may
be critical or disastrous." The Conference Report for the Coal Act states
that imminent danger orders are concerned with "any condition or
practice...which may lead to sudden death or injury before the danger can be
abated." Coal Act Legis. Hist. at 1599 (emphasis added). Finally, the Senate
Report for the Mine Act states that imminent danger orders deal with
"situations where there is an immediate danger of death or serious physical
harm." (Footnote 5) S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977)
reprinted in Senate Subcommittee on Labor, Committee on Human Resources,

Page 6

95th
Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977 at 626 (1978)("Mine Act Legis. Hist.")(emphasis added). Thus, the
hazard to be protected against by the withdrawal order must be impending so as
to require the immediate withdrawal of miners.
The role of section 107(a) orders in the statutory scheme of enforcement
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
sound mine safety enforcement of justice. "12 FMSHRC at 1725. In any event,
Inspector Lemon reasonably believed that the scoops were out of service during
the time he was deciding what action to take.

5 Several courts have rejected the arguments of mine operators that imminent
dangers orders can be issued only for conditions that create an immediate
danger of death or serious injury. See, e.g. Old Ben Coal Corp. v. IBMA, 523
F. 2d 25 at 32-33 (7th Cir. 1975). Nevertheless, the Senate Report makes
clear that imminence is required.
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is based on a requirement of imminence. Imminent danger orders permit an
inspector to remove miners immediately from a dangerous situation, without
affording the operator the right of prior review, even where the mine operator
did not create the danger and where the danger does not violate the Mine Act
or the Secretary's regulations. This is an extraordinary power that is
available only when the "seriousness of the situation demands such immediate
action." Coal Act Legis. Hist. at 215. As a consequence, an inspector does
not have the authority to issue a section 107(a) order in situations where the
danger does not necessitate the immediate removal of miners. Thus, the
inspector must determine whether the hazardous condition presents a danger of
death or serious injury that is imminent. Without considering the "percentage
of probability that an accident will happen," the inspector must determine
whether the condition presents an impending threat to life and limb. Mine Act
Legis. Hist. at 626. Only by limiting section (a) withdrawal orders to
such impending threats does the imminent danger provision assume its proper
function under the Mine Act.
If the imminent danger provisions of the Act are interpreted to include
any hazard that has the potential to cause a serious accident at some future
time, the distinction is lost between a hazard that creates an imminent danger
and a violative condition that "is of such nature as could significantly and
substantially contribute to the cause and effect" of a mine safety hazard.
Section 104(d)(1); 30 U.S.C. • 814(d)(1). A violation is of a significant and
substantial ("S&S") nature if "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 Gypsum Company, 3 FMSHRC 822,
825
(April 1981). In that case, the Commission held that to be of an S&S nature,
a cited condition "need not be so grave as to constitute an imminent danger."

Page 7

3 FMSHRC at 828.
In Rochester & Pittsburgh, the Commission referenced Congress's
intention that the focus should be on an examination of the "potential of the
risk to cause serious physical harm at any time." 11 FMSHRC at 2164. The
judge appeared to base his decision on his interpretation of the phrase "at
any time." The Commission used the phrase "potential of the risk to cause
injury" to make clear that the percentage of probability of an injury is not
the focus of the inquiry. It appears that Judge Lasher interpreted the phrase
"at any time" to mean "at any time in the future," thereby eliminating any
requirement that the danger be imminent or impending. The Commission used the
phrase "at any time" in the sense of "at any moment." Where an injury is
likely to occur at any moment, and an abatement period, even of a brief
duration, would expose miners to risk of death or serious injury, the
immediate withdrawal of miners is required.
To support a finding of imminent danger, the inspector must find that
the hazardous condition has a reasonable potential to cause death or serious
injury within a short period of time. An inspector, albeit acting in good
faith, abuses his discretion in the sense of making a decision that is not in
accordance with law when he orders the immediate withdrawal of miners under
section 107(a) in circumstances where there is not an imminent threat to
~1623
miners. 6
B. Analysis of the record
A review of the record as a whole demonstrates that the Secretary failed
to prove that the visibility limitation of the scoops presented a danger that
was imminent.

1. Visibility measurements
   UP&L does not dispute the results of the visibility tests, but contends
   that the tests do not demonstrate the presence of an imminent danger.
   Substantial evidence supports the judge's finding that, during the surface
   test, the scoop operator could not see a miner who was walking parallel to and
   four feet from the side of the scoop opposite the operator's cab, for a
   distance of approximately 24 feet. 12 FMSHRC at 1714. Substantial evidence
   also supports the judge's finding that, during an underground test, while the
   scoop was parked in an off-side turning position, the operator of the scoop
   could not see a pickup as it backed away from the scoop. 12 FMSHRC at 1715.
   The judge relied on these tests, along with the history of prior
   accidents, in concluding that an imminent danger existed. While he noted that
   UP&L's operating practices and procedures were designed to address the hazard
   associated with the scoop's visibility limitations, he concluded that they
   "did not change the testing and measuring results." 12 FMSHRC at 1719. UP&L
   argues that because these tests did not take actual mining conditions or
   practices into account, the tests were incapable of proving that the scoops
   presented an imminent danger. UP&L contends that no imminent danger existed
   because scoop operators could identify the presence of miners and other

Page 8

vehicles during actual mining operations and could mitigate the danger through
the use of safe operating procedures.
The tests performed by the inspector do not, by themselves, establish
the existence of an imminent danger because they did not take into account
actual working conditions. For example, the underground test described above
did not duplicate actual operating conditions. The scoop was stationary
during the entire test and was parked so that the blind spot was in the

6 Abuse of discretion may be broadly defined to include errors of law.
See generally, Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185-86
(1973); NL Industries, Inc. v. Department of Transportation, 901 F.2d 141, 144
(D.C. Cir. 1990); U.S. v. U.S. Currency, in the Amount of $103,387.27, 863
F.2d 555, 561 (7th Cir. 1988); Bothyo v. Moyer, 772 F.2d 353, 355 (7th Cir.
1985)("abuse of discretion may be found only if there is no evidence to
support the direction decision or if the decision is based on an improper
understanding of the law"); Bosma v. United States Dept. of Agriculture,
754 F.2d 804, 810 (9th Cir. 1984)(the choice of sanction is largely within
an agency's discretion; the reviewing court may overturn it only if it is
unwarranted in law or unjustified in fact); Taylor v. United States Parole
Commission, 734 F.2d 1152, 1155 (6th Cir. 1984)("'Abuse of discretion' is
a phrase which sounds worse than it really is."); Beck v. Wings Field,
122 F.2d 114 (3rd Cir. 1941).
~1624
direction of the crosscut. Exh. G-5. As a result, the pickup was not visible
for a considerable distance. In an operating situation, however, the
scoop would complete the turn and the crosscut would become visible because it
would no longer be in the operator's blind spot. Tr. 189. An analysis of the
operating procedures used by scoop operators is therefore required.

2. Haulage operating procedures
   UP&L's argument is that at the time the order was issued, no imminent
   danger existed because physical conditions and operating procedures in the
   haulageways greatly reduced any visibility problems presented by the scoops.
   In particular, UP&L relies on the fact that it strengthened its haulage safety
   procedures in response to the UMWA's letter of May 13, 1990 and Inspector
   Marietti's investigation of May 22. See Exhs. A-5, A-6, A-7 & A-8. It is
   undisputed that UP&L made a number of improvements in the operating
   procedures
   prior to Inspector Lemon's July 12, 1990 inspection. In May and June 1990,
   UP&L: (1) installed brighter lighting systems on scoops (quartz halogen
   lights), (2) modified the fenders, cab and engine cowling on scoops to improve
   visibility, (3) required pickups and other small vehicles to use other
   roadways where feasible, (4) installed strobe lights on pickups to be used
   when parked,(Footnote 7) (5) required all pickups and other small vehicles to
   yield right-of-way to scoops by pulling into crosscuts whenever a scoop
   approaches, (6) required all vehicles, especially pickups, to maintain a safe

Page 9

rate of speed, (7) required the flashing of lights and the sounding of horns
at all corners and intersections, (8) required that pickups be parked in
crosscuts and prohibited the parking of vehicles in the haulage entries, and
(9) eliminated the visibility limitations at one of the most severe dips in
the mine by cutting back the roof. Exh. A-8. These procedures were
communicated to all affected miners. Tr. 172-73.
Scoop operators, aware of the scoop's visibility limitations, testified
about the operating procedures they use to reduce the risk of collisions and
accidents. Tr. 235-36. They stated that the improved haulage procedures
introduced in May and June 1990 reduced the risk of accidents and collisions.
For example, pickups had frequently been parked in the haulage entries or at
the intersections of crosscuts and entries where they could not be seen. As a
result, several collisions had occurred. Under the procedures in effect at
the time of the withdrawal order, parking in such locations was prohibited
and, more importantly, strobe lights or flashers were used on the pickups.
Tr. 125-26. The operators testified that, as a result of the strobe light
policy, they are now aware of the presence of such vehicles and can stop the
scoop, get out and move the pickup if it is in the way. Tr. 126; 131-33; 232-
33; 243; 279. They may not always be able to see the parked pickup from the

7 At the time of Lemon's inspection, strobe lights had been
installed on about 75% of pickups. Pickup drivers were required to use yellow
flashers until strobe lights were installed. The strobe lights, similar to
the blue lights on the top of police cars, are permanently mounted on top of
the pickups' cabs. The yellow flashers, similar to yellow flashers used on
road construction barricades, are placed on top of the cab by the driver using
the attached suction cup.
~1625
cab of the scoop, but the flashing light alerts them to its presence so that
they can take preventive action. Id. They stated that they can detect a
moving pickup from the glare of its lights. Tr. 231-32; 272.
Scoop operators testified further that the new halogen lights made it
easier to see and be seen. Tr. 230-32, 285-87. Scoop operators flash their
lights and blow their air horns when making turns and at dips in the entry.
Tr. 236-37. They also testified that pedestrians are rarely in the
haulageways where scoops travel and that such pedestrians are easily spotted
because of the cap light and reflective tape on their hard hat, and the
reflective tape on their clothing. Tr. 252-56; 273; 280; 285-86; 296; 309.
The scoop operators acknowledged that visibility from a scoop is limited, but
testified that that visibility is often restricted when operating mining
equipment. They are of the opinion that the scoops can be operated without
incident as long as safe operating procedures are followed. Tr. 135-36; 228-
29; 231; 243-44; 274-75; 279-80.
Inspector Lemon was aware of UP&L's work rules but he did not believe
that those work rules solved the visibility problems. Tr. 385. He went on to

Page 10

state that "[t]hey were adding safety precautions to take, but they were not
solving this [visibility] problem." Tr. 386. Judge Lasher also recognized
that these changes had been made, but concluded that these changes "did not
change the testing and measuring results ... nor the opinions of various
credible witnesses ... as to the visibility problem." 12 FMSHRC at 1719. In
essence, both the inspector and the judge determined that no matter what work
rules were adopted or how strictly they were enforced, the visibility problems
of the scoops created an imminent danger.
The inspector testified that he was concerned with three situations in
which there might be an injury-producing accident: (1) when the scoop is
making an offside turn, (2) when a dip in the haulageway limits the scoop
operator's line of vision, and (3) when pedestrians are present. The issue in
this case is not whether the visibility limitations of the scoops presented
some degree of hazard in these situations but whether the scoops created an
imminent danger.
As noted above, when a scoop operator makes an offside turn, his
visibility is reduced during that turn. The scoop operators
testified that they were aware of this limitation and regularly take steps to
reduce the hazard. Tr. 230-31. Some of these steps were included in the new
operating procedures. Operators regularly slow down, sound their air horns
and flash their lights when turning. Tr. 188; 236-37. They look for light
reflections on the roof and ribs to detect the presence of vehicles. Tr. 231-

32. Finally, if they are uncertain as to what may be in the area, they stop,
    get out of the scoop and look around before turning. Tr. 121-22; 231.
    When scoop operators and operators of pickups and other small vehicles
    approach a dip in the mine, their visibility is reduced because they cannot
    see as far down the entry. UP&L instituted a number of changes to reduce this
    hazard. First, it eliminated the line of sight problem at one of the biggest
    dips by cutting back the roof in the dip. Second, operators of vehicles sound
    their horns and flash their lights before entering a dip. Tr. 236. Third,
    ~1626
    pickups and other small vehicles use alternate roadways rather than the main
    haulageway when traveling in the mine. Tr. 161-62. Finally, scoops are given
    the right of way and pickups are to pull into a crosscut whenever they see an
    approaching scoop. Tr. 163; 230; 253. The brighter halogen lights, which are
    unique to scoops, alert pickup drivers that a scoop is approaching. While
    these practices do not eliminate the hazard, they reduce significantly the
    danger associated with dips.
    There has never been a scoop accident in this mine involving
    pedestrians. There are very few pedestrians in the main haulageways in which
    the scoops travel. Tr. 253; 280. Pedestrians are most likely to be
    encountered when repairs are being made along the haulageway and at the places
    where the scoops are delivering supplies. Tr. 253; 280. Flashing lights are
    set up in areas where repair work is being done. Tr. 280. Miners also wear
    cap lights and reflective tape on their hard hats and on their clothing.

Page 11

Tr. 252, 284; 286. At locations where supplies are to be delivered, a miner
on the ground often directs the scoop operator or, if no one is available, the
scoop operator gets out and looks around before proceeding into the area.
Tr. 122; 245-46. The scoop operators testified that they have no difficulty
detecting the presence of pedestrians because of the reflective tape and cap
lights. Tr. 124; 252; 255; 273; 288-90. A scoop operator testified that
miners on foot generally make their presence known to machine operators by
flashing their cap lights at the operators. Tr. 308-09.

3. Accident history
   It is not disputed that there have been approximately 15 accidents
   involving the scoops in the five years that they have been used. None of
   these accidents resulted in an occupational injury as that term is defined in
   30 C.F.R. • 50.2(e); 8 one accident required the application of first aid,
   30 C.F.R. • 50.2(g). All of these accidents occurred before UP&L changed its
   haulage operating procedures. Eight of the 14 accidents discussed in the
   record involved scoops hitting unoccupied pickups that were parked in a
   haulageway, a crosscut, or in an intersection. The scoop operators testified
   that they cannot always see a pickup when it is parked offside the scoop but
   that they can determine its location when it is equipped with a strobe light
   and can move it if necessary. Tr. 126; 131-33; 232-33; 243; 279.
   Judge Lasher emphasized in his decision an accident involving Robert
   Phelps and Larry Hunsaker. 12 FMSHRC at 1716. Scoop operator Phelps was
   traveling along the main haulageway with a load of gravel in his bucket.
   Tr. 100. He had the bucket in a raised position in front of him. Hunsaker
   was driving a pickup in the opposite direction. Tr. 100-01; 111. They
   collided head on at a dip in the haulageway. Id. Phelps said he could not
   see very well over the raised, fully loaded bucket. Tr. 101. The bucket hit
   the cab of the pickup. Tr. 102; 111. Hunsaker did not see the scoop because

8 30 C.F.R. • 50.2(e) defines "occupational injury" as "any injury to a
miner which occurs at a mine for which medical treatment is administered, or
which results in death or loss of consciousness, inability to perform all job
duties on any day after an injury...."
~1627
he was reaching down for his radio. Tr. 103. He testified that he could not
see the lights of the scoop because they were behind the bucket. Tr. 113;
116. Phelps stated that he saw the pickup before he entered the dip. Tr.
104. Hunsaker testified that if Phelps had been driving the scoop so that the
bucket was at the back and the radiator was at the front, Hunsaker would "have
had a lot better chance of seeing the [scoop's] headlights." Tr. 118.
The record discloses that at least four factors contributed to this
accident: the dip in the roadway; the fact that Phelps was driving the scoop
with a loaded bucket in a raised position in front of him, blocking his vision
and obscuring the scoop's lights; the fact that Hunsaker reached down for his
radio; and the speed of the pickup. Phelps was unable to see the pickup

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because the position of his bucket restricted his vision. Two scoop operators
testified that they drive the scoop with the radiator in the front and the
bucket in the back when the bucket is loaded with bulky materials.
Tr. 235; 298. The measures UP&L has taken since this accident, as discussed
above, are aimed at eliminating the risk of similar accidents.
The evidence demonstrates that haulage operating procedures used at the
time the imminent danger order was issued significantly reduced the risk of
accidents. Scoop operators testified that most of these accidents would not
have occurred if these procedures had been in place. See, e.g., Tr. 237-238.
The history of accidents provides little support for the imminent danger
finding.
III.
Conclusions
The evidence of record fails to establish that the scoops presented a
danger to miners that posed an imminent or impending threat to their safety.
The withdrawal of miners under section 107(a) is authorized only where the
danger is imminent. Thus, we conclude that MSHA issued a withdrawal order
under section 107(a) under circumstances where an imminent threat to the
safety and health of miners was not present. 9
We reaffirm our holding in Rochester & Pittsburgh that an inspector must
have considerable discretion in determining whether an imminent danger exists.
This is because an inspector must act immediately to eliminate conditions that
create an imminent danger. We also reiterate here that the hazardous
condition or practice creating an imminent danger need not be restricted to a
threat that is in the nature of an emergency, and that section 107(a)
withdrawal orders are "not limited to just disastrous type accidents." Coal

9 We note that the inspector in this case was not limited to the
provisions of section 107(a) in addressing hazards presented by the scoops.
For example, he might have utilized the safeguard provision of section 314(b)
of the Act, 30 U.S.C. • 874(b), which was designed to address mine-specific
transportation hazards, to tailor a notice to provide safeguard. If the
operator failed to comply with the safeguard, he could have issued a citation
or order under section 104 with an appropriate abatement time.
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Act Legis. Hist. at 1599.
For the foregoing reasons, we reverse the judge's decision holding that
the two EIMCO scoops presented an imminent danger to miners and we vacate
the
section 107(a) order of withdrawal. 10
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner

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10 Chairman Ford did not participate in the consideration or disposition of
this case.