Pittsburg & Midway Coal Mining Company

Plain-English summary

Pittsburg & Midway Coal Mining Company operated the Kemmerer Mine and faced three safety citations. Judge August F. Cetti found combustible material and hydraulic oil accumulated on a car-pusher hydraulic unit, and found that a haul-road caution sign was required, but deleted the significant-and-substantial designations for both violations. The judge vacated a citation involving unguarded conveyor return rollers because the standard did not clearly cover those rollers. The company was ordered to pay $200 for the two affirmed citations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1104, 77.1600(c), and 77.400(a)
• Outcome: Citation Nos. 3243029 and 3243027 were affirmed as modified. Citation No. 3243026 was vacated. The total civil penalty was $200.
• Key point: The decision applied fair-notice principles to conclude that the cited conveyor return rollers were not sufficiently similar to the machine parts listed in the guarding standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (303) 844-5268

                        March 14, 1995

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEST 93-182
Petitioner : A.C. No. 48-00086-03526
:
v. :
:
PITTSBURG & MIDWAY COAL MINING :
COMPANY, : Kemmerer
Respondent :

                            DECISION

Appearances: Kristi Floyd, Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for Petitioner;
Ray D. Gardner, Esq., Englewood, Colorado,
for Respondent.

Before: Judge Cetti

 This case is before me upon a petition for assessment of

civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. ' 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health Ad-
ministration, (MSHA), charges the Respondent, the operator of
Kemmerer Mine, with three violations of mine safety standards.

 The operator filed a timely answer contesting each of the

alleged violations and the amount of the proposed penalties. The
issues raised at the hearing were whether the operator violated
the safety standard as alleged in the citations and, if so, whe-
ther or not each of the violations was significant and substan-
tial and the appropriate penalty for each violation.

                         STIPULATIONS

 The Secretary of Labor and the Respondent at the hearing

entered into the record the following stipulations:

Page 2

 1. Respondent is engaged in mining and selling of coal in

the United States and its mining operations affect interstate
commerce.

 2. Respondent is the owner and operator of the Kemmerer

Mine, MSHA I.D. No. 48-00086.

 3. Respondent is subject to the jurisdiction of the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. '' 801 et seq.
("the Act").

 4.   The Administrative Law Judge has jurisdiction in this

matter.

 5. The subject citations were properly served by a duly

authorized representative of the Secretary upon an agent of
Respondent on the date and places stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

 6. The exhibits to be offered by Respondent and the

Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.

 7. The proposed penalties will not affect Respondent's

ability to continue in business.

 8. The operator demonstrated good faith in abating the

violations.

 9. Respondent is a large mine operator with 17,520,572 tons

of production in 1992.

10. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the
two years prior to the date of the citations.

Citation No. 3243029

 This citation charges the operator with the violation of 30

C.F.R. ' 77.1104 which provides as follows:

       Combustible materials, grease, lubricants,
       paints, or flammable liquids shall not be
       allowed to accumulate where they can create a
       fire hazard.

                             2

Page 3

 The citation reads as follows:

      Combustible material[,] hydraulic oil and
      coal dust was allowed to accumulate on the
      hydraulic unit of the car pusher located at
      the Elkol tipple. The material created a
      fire hazard.
 It is undisputed that combustible materials including coal

dust and hydraulic oil were allowed to accumulate on the hydrau-
lic pump which drives the pump of the rail car mover located at
the Elkol tipple. The inspector testified that the depth or
thickness of the accumulated combustible material varied from
1/16 of an inch to 1/2 inch and covered the entire hydraulic
unit. Evidence was presented that miners had been observed
smoking in the tipple area and that there were electric lights
and conduits in the area.

 On the basis of the evidence presented I concluded that

combustible materials were allowed to accumulate where they "can"
create a fire hazard. The violation of the safety standard in
question was established.

 The citation designates the violation S&S. A violation is

S&S if, based on the particular facts surrounding the violation,
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 Co. 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission explained:

        In order to establish that a violation of a
      mandatory safety standard is significant and
      substantial ... , the Secretary of Labor must
      prove: (1) the underlying violation of a
      mandatory safety standard; ... (2) a discrete
      safety hazard -- that is, a measure of danger
      to safety -- contributed to by the violation;
      (3) a reasonable likelihood that the hazard
      contributed to will result in an injury; and
      (4) a reasonable likelihood that the injury
      in question will be of a reasonably serious
      nature.

6 FMSHRC at 3-4. See also Austin Power, Inc. v. Secretary, 861
F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The Commission has
held that the third element of the Mathies formula "requires that

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Page 4

the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an in-
jury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)
(emphasis in original).

 The Secretary has the burden of proof. On evaluating the

evidence presented by each party, I find the preponderance of the
evidence does not establish the third element of the Mathies for-
mula. Accordingly, I delete the S&S designation. The citation
as modified is affirmed.

 The operator was negligent in allowing the combustible

material to accumulate on the hydraulic pump. On consideration
of this and all other factors set forth in ' 110(i) of the Act,
including Respondent's prompt good faith abatement of the viola-
tion, I find a penalty of $100 is appropriate.

Citation No. 3243027

 This citation alleges a 104(a) S&S violation of 30 C.F.R.

' 77.1600(c) which provides as follows:

        (c) Where side or overhead clearances on
      any haulage road or at any loading or dumping
      location at the mine are hazardous to mine
      workers, such areas shall be conspicuously
      marked and warning devices shall be installed
      when necessary to insure the safety of the
      workers.

 The subject haul road is used to haul material from the

gravel pit and to haul gravel from the storage area to other
parts of the mine where gravel was used to repair roads and as a
cover to help prevent slippage of vehicles on ice. Scrapers used
the road in question to haul gravel to various locations. All
mine equipment on occasion used the road, including garbage
trucks and gravel trucks. The vehicles using the road varied in
width from 11 to approximately 24 feet. It is undisputed the
road in question was 35 feet wide, was "C" shaped, and had a
gradual grade.

 The inspector was concerned that since there were no warning

signs, two vehicles entering the "C" shaped curve in the road
from opposite directions might collide upon entering the curve at
the same time. There could be inadequate side clearance depend-
ing, of course, on the width of the vehicles involved. Under
these facts I find that a caution sign was needed to insure the
safety of the workers.

                            4

Page 5

 It was Respondent's position that except for haul trucks and

coal shovels, all the equipment could safely pass in opposite
directions. Respondent presented evidence that coal shovels are
such large machines that during the few instances they use the
road, Respondent excludes all other equipment. Evidence was also
presented that when haul trucks are using the road, Respondent
restricted travel to a unilateral traffic pattern.

 Everything considered, I agree with Respondent's assertion

that the likelihood of an accident is too remote to support a
"significant and substantial finding". The preponderance of the
evidence does not establish the third factor of the Mathies
formula. The citation is modified to delete the S&S designation
and as so modified is affirmed.
The violation was timely abated by posting a caution sign.
On consideration of the statutory criteria in ' 110(i) of the
Act, I find a civil penalty of $100 is appropriate for this
violation.

Citation No. 3243026

 This citation charges Respondent with the violation of 30

C.F.R. ' 77.400 subsection (a) which provides as follows:

        (a) Gears; sprockets; chains; drive, head,
      tail, and takeup pulleys; flywheels; coup-
      lings; shafts; sawblades; fan inlets; and
      similar exposed moving machine parts which
      may be contacted by persons, and which may
      cause injury to persons shall be guarded.

 It is well settled that in order to establish a prima facie

case of a violation of ' 77.400(a), Secretary must prove: (1)
that cited machine part is one specifically listed in the stand-
ard or is "similar" to those listed; (2) that the part was not
guarded; and (3) that unguarded part "may be contacted by per-
sons" and "may cause injury to persons."

 With respect to item (1) that the cited machine part must be

one specifically listed in the standard or similar to those spe-
cifically listed, I find on review and evaluation of the evidence
presented in this case that the preponderance of the credible
probative evidence presented fails to establish that the return
belt rollers (idlers) in question are "similar" to the machine
parts that are specifically listed in subsection (a) of the
safety standard.

                            5

Page 6

 I credit the testimony of Mr. Dovey, Respondent's safety and

training manager, who testified that the bottom rollers in ques-
tion are not similar to head pulleys, takeup pulleys or tail
pulleys because the bottom rollers in question are not driving
mechanisms for the belt line. Mr. Dovey testified that all the
bottom rollers in question do is let the belt roll across the top
of these rollers. They do not apply power or pressure to the
belt line. For this reason I believe they are significantly
dissimilar from the machine parts listed in the safety standard.

 The drawing entered into evidence by Petitioner as Exhibit

G-3 depicts a "bend pulley" which unlike a bottom roller, is
designed to "apply pressure to the belt line" and "to keep ten-
sion on [the] belt." (Tr. 164). Although bend pulleys are not
expressly listed in 30 C.F.R. ' 77.400(a) they are similar to
"take-up" pulleys which are listed since they both apply pressure
to the belt line. It is undisputed that both the take-up
pulleys, the bend pulleys in this case were well guarded.
(Ex. 4-A).
Subsection (c) of 30 C.F.R. ' 77.400 specifically spells out
the requirements for guarding components of conveyor systems.
That subsection specifically covers guards at conveyor-drive,
conveyor head, and conveyor tail-pulley and makes no reference or
mention of "similar" machine parts of the conveyor system. In
the present case it is undisputed that the tail pulley, head pul-
ley, takeup pulley and the bend pulleys of the conveyor system in
question were all properly and adequately guarded.

 In Rochester & Pittsburgh Coal Company 10 FMSHRC 1576 (No-

ovember 1988) the inspector issued a citation alleging a viola-
tion of an identically worded standard, 30 C.F.R. ' 75.1722(a).
The inspector issued the citation because of his concern the
miner might be caught between an unguarded bottom roller and the
moving conveyor belt. Judge Melick vacated the citation stating
the moving belt was not a "similar" exposed moving machine part
of the safety standard. The Secretary appealed the decision on
other grounds. The Commission in its decision on reconsideration
noted and left undisturbed the Administrative Law Judge's finding
and decision vacating the citation because the machine part was
not similar. Rochester & Pittsburgh Coal Company 11 FMSHRC 2159
at 2161 (November 1989).

 In Secretary of Labor v. Mathies Coal Co., 5 FMSHRC 300

(1983), the Commission observed that this regulatory standard
applies to the specific machine parts listed and to other exposed
moving machine parts similar to those listed. The Commission
quoted the definition of the word "similar" as "1) having char-
acteristics in common; very much alike... 2) alike in substance

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Page 7

or essentials... ." citing Webster's Third New International
Dictionary at p. 2120 (unabridged 1971).

 Although the return rollers in question have the common

characteristic of motion it is not "very much alike", or "alike
in substance or essentials" nor is it similar in function.

 In the Mathies supra the Commission reversed the judge and

at page 301 stated:

      On review, the Secretary argues that the
      purpose of section 75.1722(a) is to "pro-
      tect miners from injury caused by moving
      machinery," and that the elevator cage is
      subject to the standard "because it is an
      'exposed, moving machine part which may be
      contacted by persons and which may cause
      injury.'" Sec. br. at 5. He (Solicitor)
      like the judge, interprets the standard to
      cover not only the listed machine parts but
      all machine parts that are exposed and mov-
      ing. Sec. br. at 5-6. We disagree. We find
      that such an interpretation ignores the gram-
      mar of the standard and makes the list of
      items covered surplusage.

 A standard must give an operator fair warning of the conduct

it prohibits or requires and should provide "a reasonably clear
standard of culpability to circumscribe the discretion of the
enforcing authority and its agents." The Commission in Mathies
supra quoted the observation of the Fifth Circuit in a case
arising under the Occupational Safety and Health Act of 1970, 29
U.S.C. ' 651 et seq. (1976) as follows:

      The [Secretary] contend[s] that the regula-
      lation should be liberally construed to give
      broad coverage because of the intent of Con-
      gress to provide safe and healthful working
      conditions for employees. An employer, how-
      ever, is entitled to fair notice in dealing
      with his government. Like other statutes and
      regulations which allow monetary penalties
      against those who violate them, an occupa-
      tional safety and health standard must give
      an employer fair warning of the conduct it
      prohibits or requires, and it must provide a

The wording of Section 75.1722(a) and 77.400(a) are identical.

                            7

Page 8

      reasonably clear standard of culpability to
      circumscribe the discretion of the enforcing
      authority and its agents ... .

      If a violation of a regulation subjects
      private parties to criminal or civil sanc-
      tions, a regulation cannot be construed to
      mean what an agency intended but did not
      adequately express.... We recognize that
      OSHA was enacted by Congress for the purpose
      stated by [the Secretary]. Nonetheless, the
      Secretary as enforcer of the Act has the
      responsibility to state with ascertainable
      certainty what is meant by the standards he
      has promulgated.

      Diamond Roofing Co. v. OSHRC & Secretary of
      Labor, 528 F.2d 645, 649 (1976)(citations
      omitted). Accord, Phelps Dodge Corp. v.
      FMSHRC & Secretary of Labor, 681 F2d 1189,
      1193 (9th Cir. 1982).

 The FMSHRC then stated:

      As we have previously acknowledged, "Many
      standards must be 'simple and brief in order
      to be broadly adaptable to myriad circum-
      stances'". Alabama By-Products Corp., 4
      FMSHRC 2128, 2130 (December 1982), quoting
      Kerr-McGee Corp. 3 FMSHRC 2496, 2497 (Novem-
      ber 1981). However, even a broad standard
      cannot be applied in a manner that fails to
      inform a reasonably prudent person that the
      condition or conduct at issue was prohibited
      by the standard. Alabama By-Products Corp.,
      supra; U.S. Steel Corp., FMSHRC Docket No.
      KENT 81-136 (January 27, 1983).

 I find that the standard in question under facts in this

case does not give the operator fair warning that guarding of the
bottom rollers in question is required and for this reason the
citation is vacated.

                           ORDER


 Citation Nos. 3243029 and 3243027 are AFFIRMED as modified,

Citation No. 3243026 is VACATED. Pittsburg & Midway Coal Mining

                             8

Page 9

Company shall pay a civil penalty of $200 for the violations
alleged in Citation Nos. 3243029 and 3243027 within 30 days of
the date of this decision.

                            August F. Cetti
                            Administrative Law Judge

Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Ray D. Gardner, Esq., John W. Paul, Esq., PITTSBURG & MIDWAY COAL
MINING CO., 6400 South Fiddler's Green Circle, Englewood, CO
80111-4991 (Certified Mail)

/sh

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