Consolidation Coal Company
Consolidation Coal Company (FMSHRC WEVA 87-69): Training citation and withdrawal order vacated
Apply this to your situation
This order from 1987 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
Consolidation Coal Company operated the Humphrey No. 7 underground coal mine. MSHA alleged that scoop operator Brad Slaman lacked task training under 30 C.F.R. § 48.7 after a mine accident in which another employee was pinned against a coal rib, and proposed a $900 penalty. Judge George A. Koutras found the testimony credible that Slaman had prior training, had regularly operated the scoop, and had demonstrated safe operating procedures within the relevant 12-month period. The citation and related withdrawal order were vacated, and the penalty proposal was denied and dismissed.
Decision snapshot
- Cited standard(s): 30 C.F.R. § 48.7
- Outcome: The training citation and related withdrawal order were vacated, and the $900 penalty proposal was denied and dismissed.
- Key point: The absence of training records did not establish a training violation where credible testimony showed recent training, repeated operation, and safe operation of the equipment.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. CONSOLIDATION COAL
DDATE:
19871216
TTEXT:
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 87-69
PETITIONER A.C. No. 46-01453-03742
v. Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY,
RESPONDENT
CONSOLIDATION COAL COMPANY, CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. WEVA 86-449-R
Order No. 2713396; 7/21/86
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEVA 86-450-R
ADMINISTRATION (MSHA), Order No. 2713397; 7/21/86
RESPONDENT
Humphrey No. 7 Mine
DECISIONS
Appearances: Therese I. Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner/Respondent;
Michael R. Peelish, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for the Respondent/Contestant.
Before: Judge Koutras
Statement of the Case
These consolidated proceedings concern a civil penalty
proposal filed by MSHA against the Consolidation Coal Company
pursuant to section 110(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty
assessment in the amount of $900 for an alleged violation of
mandatory safety training standard 30 C.F.R. 48.7, as stated in
a section 104(a) "S & S" Citation No. 2713397, issued by an MSHA
inspector on July 21, 1986, (Docket No.
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WEVA 87Ä69). Docket No. WEVA 86Ä450ÄR is the contest filed by the
Consolidation Coal Company challenging the legality of the
citation and the inspector's special "S & S" findings. Docket No.
WEVA 86Ä449ÄR is the contest challenging the legality of a
section 104(g)(1) Withdrawal Order No. 2713396, issued by the
inspector on July 21, 1986, in conjunction with the aforesaid
contested citation. The order was issued to withdraw an alleged
untrained miner from the mine until such time that his training
has been completed.
A consolidated hearing was held in Morgantown, West
Virginia, and the parties were afforded an opportunity to file
posthearing briefs, and they have done so. I have considered all
of the arguments made by the parties in these proceedings in my
adjudication of these matters.
Issues
The issues presented are (1) whether the condition or
practice cited by the inspector constituted a violation of the
cited mandatory safety training standard, and if so, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found in
section 110(i) of the Act. Also at issue is the question of
whether or not the alleged violation was significant and
substantial (S & S), and whether or not the withdrawal of the
alleged untrained miner was justified.
Additional issues raised by the parties are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.
2. Commission Rules, 29 C.F.R. 2700.1 et seq.
3. 30 C.F.R. 48.7.
Procedural Ruling
MSHA's motion to amend Citation No. 2713397 to reflect an
alleged violation of 30 C.F.R. 48.7 the training requirements
applicable to underground mines, rather than section 47.27, the
standards applicable to surface mines, was granted from the bench
(Tr. 10Ä11).
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Stipulations
The parties stipulated to the following:
1. The subject mine is owned and operated by the
respondent/contestant.
2. The subject mine and the respondent/contestant are
subject to the jurisdiction of the Act.
3. The presiding judge has jurisdiction to hear and
decide these cases.
4. The citation and order issued in these proceedings
were properly served on the respondent/contestant by an
agent of the Secretary of Labor, and they may be
admitted as part of the record in these proceedings for
the purpose of establishing that they were properly
issued and not for the purpose of establishing the
truth of the conditions or practices stated therein.
5. The parties agree to the authenticity of their
respective hearing exhibits.
6. The cited conditions or practices were timely abated
by the respondent/contestant.
7. The 1986 annual coal production for the subject mine
was 2,809,067 tons. The annual coal production for the
respondent/contestant for all of its mines was
38,068,032 tons.
8. The assessment of a civil penalty for the violation
in question will not adversely affect the
respondent/contestant's ability to continue in
business.
9. The respondent/contestant's history of prior
violations for the 2Äyear period prior to the issuance
of the citation in question consists of 778 violations
issued during 946 inspection days, or .82 assessed
violations per inspection day.
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The parties also agreed that in the event the citation is
affirmed, the subsequently issued section 104(g)(1) order should
be affirmed.
Discussion
The essential facts in this case are not in dispute. On July
19, 1986, an accident occurred in the mine when an employee was
pinned against a coal rib by an S & S scoop operated by another
employee, Brad Slaman. The accident victim was hospitalized and
lost time from work. MSHA Inspector Leonidas W. Gibson conducted
an accident investigation on July 21, 1986. In addition to
interviewing mine personnel, Mr. Gibson reviewed Mr. Slaman's
training records maintained by Consol pursuant to 30 C.F.R.
48.9. Although those records revealed that Mr. Slaman had been
properly trained in the safe operation of several pieces of
equipment, including a personnel carrier, shuttle car, and
loader, Mr. Gibson could find no training records indicating that
Mr. Slaman was trained in the operation of a scoop, and Consol's
safety department could not produce any such records. Further,
although Mr. Slaman advised the inspector that he had received
scoop training, he too was unable to produce copies of any scoop
training certificates. Consequently, the inspector concluded that
Mr. Slaman had not been trained in the operation of a scoop, and
he issued a citation charging a violation of 30 C.F.R. 48.7.
The citations and order issued in these proceedings are as
follows:
Docket Nos. WEVA 87Ä69 and WEVA 86Ä450ÄR
Section 104(a) Citation No. 2713397, July 21, 1986, states
as follows:
A scoop operator, Brad Slaman, did not receive task
training in the safe procedures of operating a scoop,
in LWG before transporting longwall equipment in the
7ÄButt section. A 104ÄGÄa Order No. 2713396 and a
107(a) Order No. 2711441 have been issued in
conjunction with this 104(a) citation.
Walter D. Hunt, Section Foreman, was in charge of this
section.
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Docket No. WEVA 86Ä448ÄR
Section 104(g)(1) Order No. 2713396, July 21, 1986, states
as follows:
A scoop operator Brad Slaman did not receive task
training in the safe procedures of operating a scoop
before transporting longwall equipment in the 7ÄButt
section, which resulted in a serious accident to
another miner.
This order is to remove Brad Slaman from the mine until
training has been completed in the safe procedures of
operating a scoop.
A 104(a) citation has been issued in conjunction with
this order. Walter D. Hunt, Section Foreman, was in
charge of this section.
MSHA's Testimony and Evidence
Leonidas W. Gibson, testified that he is a retired MSHA
inspector, and he confirmed that he participated in an accident
investigation at the mine on July 21, 1986, and as a result of
that investigation he issued Citation No. 2713397, including the
modifications attached thereto (Tr. 15Ä16, Exhibit GÄ1).
Mr. Gibson stated that mandatory training section 48.7
requires that a miner assigned to a particular piece of equipment
such as a scoop be trained so that he is able to operate it in a
safe manner. Mr. Gibson confirmed that the standards require that
such training be recorded, and he confirmed that he issued the
citation after determining that the operator's records did not
reflect that Mr. Slaman was trained in the operation of the scoop
he was operating at the time of the accident. Mr. Gibson stated
that Mr. Stan Brozik, the mine safety director, produced training
records which reflected that Mr. Slaman had operated several
different pieces of equipment, but not an S & S scoop. Mr. Gibson
produced a copy of his notes made at the time of his inspection,
and he confirmed that the company records produced by Mr. Brozik
indicated the types of equipment for which Mr. Slaman was trained
to operate, and that it did not include a scoop (Tr. 18Ä14,
Exhibit GÄ4).
Mr. Gibson stated that Mr. Slaman was operating an S & S
scoop at the time of the accident. He confirmed that when he
discussed the training records with Mr. Brozik, he stated that
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Mr. Slaman had been trained on the scoop. Mr. Gibson also
confirmed that when he later spoke with Mr. Slaman, Mr. Slaman
informed him that he had been trained on the scoop but could not
find his training record to confirm this. Mr. Gibson subsequently
asked Mr. Brozik again about the training records, and Mr. Brozik
could not produce any record of Mr. Slaman's scoop training (Tr.
26).
Mr. Gibson confirmed that he did not issue a citation for a
violation of 48.9, which requires the mine operator to keep
training records, because Mr. Brozik did produce records
reflecting Mr. Slaman's training. Mr. Gibson stated that his
conclusion that Mr. Slaman was not following normal operating
procedures while operating the scoop was based on Mr. Slaman's
admission during his investigation that he did not know the
location of his scoop helper and did not know that he had moved
back to the corner of the machine when he placed the scoop in
operation to move a piece of equipment (Tr. 31Ä32).
Mr. Gibson stated that the purpose of section 48.7 is to
prevent accidents, and that if a person is properly trained and
knows how to operate a scoop in a safe manner, he can prevent
himself and someone else from being injured (Tr. 33).
Mr. Gibson confirmed that the injury to the helper resulted
from Mr. Slaman's failure to know his location when he started
and moved the scoop. The injured man was hospitalized, but he
subsequently returned to work (Tr. 34).
Mr. Gibson stated that the operator was aware that Mr.
Slaman was not trained in the operation of the scoop because it
had no training record to confirm his training, and that this was
the operator's responsibility. Mr. Gibson confirmed that the
violation was abated after Mr. Slaman was re-trained, and he
returned to work on July 23, 1986, and the citation was
terminated at that time (Tr. 35).
Mr. Gibson confirmed that he issued a section 104(g)(1)
order in conjunction with the citation in order to prevent anyone
else from being injured, to insure that Mr. Slaman was re-trained
so that he could do a better job in the future, and to remove Mr.
Slaman from operating the scoop until he received training in its
operation (Tr. 35Ä38, exhibit GÄ2).
Mr. Gibson believed that the gravity was highly likely to
produce an injury or illness because one person was injured and
others could have been injured if Mr. Slaman were not properly
trained (Tr. 38Ä39).
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On cross-examination, Mr. Gibson confirmed that he based his
citation for a violation of section 48.7 on the fact that the
company had no Form 5023 in Mr. Slaman's file (Tr. 46). Mr.
Gibson stated that in his experience as an MSHA inspector and
investigator, it is not uncommon for a trained employee to be
involved in an accident (Tr. 47). He confirmed that a gravity
finding of "high" or "highly likely to happen" could be modified
to "moderate" if an employee involved in an accident had received
training (Tr. 48).
Mr. Gibson stated that Mr. Brozik did not advise him why he
could not find a record of Mr. Slaman's scoop training, and he
could not recall Mr. Brozik telling him that Mr. Slaman had
previously worked at another Consol operation in the
Mannington/Fairmont area (Tr. 50). He also confirmed that Mr.
Brozik did not tell him that Mr. Slaman had been "grandfathered"
in terms of any training requirements, or that he had worked at
another Consol operation (Tr. 51).
Mr. Gibson confirmed that if a miner is trained at one mine
or another company and there is a record of that training, he
would not necessarily be required to be trained again when he
transferred jobs to another company, but he would have to be
trained on the particular type of machine that he is operating.
He would also have to be re-trained if the machine is different
from the one that he previously operated. If his machine controls
are different or if the seating position is different, he would
have to be re-trained (Tr. 51).
Mr. Gibson described the similar characteristic's and parts
of a hinged scoop which articulates at a hinge point normally
located at the center of the machine (Tr. 52Ä53). He confirmed
that a scoop is a versatile piece of equipment, and that it is
used to carry and move longwall equipment and pan lines (Tr. 53).
Mr. Gibson stated that in his mining experience, he has never
considered a Unitrac to be synonymous with a scoop. He believed
that a Unitrac was a different piece of equipment and "some type
of longwall equipment" (Tr. 54). Mr. Gibson confirmed that he
recently learned that a Unitrac may be a scoop when MSHA's
attorney informed him of this (Tr. 55).
In response to further questions, Mr. Gibson stated that
during his investigation, Mr. Slaman advised him that he observed
his helper in front of him, and that when he put the scoop in
motion, the helper was beside him and was pinned against the rib
when the scoop swiveled as he maneuvered it to move the longwall
pan line. Mr. Gibson believed that there was a lack of
communication between Mr. Slaman and his helper,
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and that Mr. Slaman did not determine the helper's location
before moving the machine. He assumed that this was the case
because the helper was pinned against the rib by the swiveling
action of the scoop when Mr. Slaman put it in motion. Proper
training requires that a scoop operator makes sure that his
helper is in the clear before he operates his machine. Since the
machine is hinged and moves quickly, the scoop operator is not
supposed to have a man standing near him when he is operating the
machine (Tr. 57Ä60).
Respondent's Testimony and Evidence
Brad Slaman, belt motorman, testified that he has worked for
Consol at the Humphrey No. 7 Mine for 8 or 9 years. Prior to
that, he worked at the Consol No. 20 Mine from October, 1977, for
a little over a year. He was laid off from that mine and then
went to work for Republic Steel. Five or 6 months elapsed from
the time he worked at the No. 20 Mine until he went to work at
the Humphrey Mine. He worked at the No. 20 Mine as a general
laborer shoveling belts, and delivering cribs and supplies. In
performing these duties, he had occasion to operate a Unitrac. He
described the Unitrac as a machine basically the same as a scoop,
and he indicated that it steers the same and pivots in the middle
(Tr. 61Ä63).
Mr. Slaman stated that he was trained in the operation of
the Unitrac at the Consol No. 20 Mine by safety supervisor Rudy
Banick sometime in 1978, and that the training consisted of Mr.
Banick explaining to him how the machine operated and reading him
the Safe Work Instructions (SWI) for the operation of the
machine, including safety items such as watching out for his
helper, checking the machine over, checking the oil, and ringing
the bell before putting it in operation (Tr. 64).
Mr. Slaman stated that after his initial training on the
Unitrac scoop, he would operate the machine several times a year
in order to stay trained in its operation, and he believed that
he only had to operate it at least once in 12 months to meet
MSHA's training requirements. It was also his understanding that
he had to be trained if the machine was modified. Mr. Slaman was
not sure that the Unitrac on which he was trained by Mr. Banick
at the No. 20 Mine was a S & S model, but he believed that all of
Consol's scoops were S & S models (Tr. 65).
Mr. Slaman stated that when he went to work at the Humphrey
No. 7 Mine, he operated equipment similar to that which he
operated at the No. 20 Mine, and that from 1978 when he was
initially trained, until 1986 when the accident
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occurred, he estimated that he had operated a scoop "a couple
hundred" times, and that since 1981 and 1982 he has operated a
scoop "pretty continuously" (Tr. 66).
Mr. Slaman stated that while employed at the Humphrey Mine
he was trained in the operation of a scoop by at least 10
individuals, including Norman Cutright, and David Hunt. He
confirmed that Mr. Hunt retrained him on the scoop after the
accident, and that prior to that time he observed him operating
the scoop, and had retrained him several times. He also received
scoop training from one Charlie Johnson. Mr. Hunt's training
included a review of scoop safety topics at least three times,
and instructions in the operation of a scoop while working under
Mr. Hunt's supervision. Prior to assigning him a task, Mr. Hunt
would inquire as to his scoop training, and Mr. Slaman informed
Mr. Hunt that he was trained in the operation of the scoop (Tr.
67Ä69).
Mr. Slaman stated that after being trained by Mr. Hunt, he
would give him a "blue retraining slip," and since they were
dirty, Mr. Slaman would place them in his pocket or dinner
bucket. His wife would either throw them away or launder them
with his shirts and he has not retained them. He has also moved
several times, and he has not been able to find any of the
training slips (Tr. 70).
Mr. Slaman stated that Norman Cutright, the longwall boss at
the Humphrey Mine has trained him in the operation of a scoop,
and that Mr. Hunt had trained him in the operation of a Model 601
S & S scoop, the same type of scoop he was operating at the time
of the accident (Tr. 71).
Mr. Slaman stated that his duties as a longwall shieldman
required him to operate a scoop, and that Mr. Cutright trained
him on the scoop before two longwall moves in 1983 and 1984.
Since longwall moves are dangerous, experienced scoop men are
necessarily assigned to this work. Mr. Slaman also operated
scoops while doing work other than longwall moves, and he
described this work (Tr. 72). During the 2 years that he worked
under Mr. Cutright's supervision from 1983 to 1984, Mr. Slaman
estimated that he operated a scoop at least 60 or 70 times (Tr.
73).
Referring to exhibit GÄ4, the inspector's notes and sketch
of the accident scene, Mr. Slaman explained what happened on the
day of the accident. He stated that he was in the process of
moving a section of the pan line along the left rib and that the
pan line was in front of the scoop. He and his helper were
discussing how the pan line would be moved,
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and the helper was about 15 feet in front of the scoop and in his
view. Mr. Slaman then started the machine and rang the bell and
shoved the pan line against the rib with the scoop. The scoop
pivoted toward the right rib and he heard a grunt and turned
around and observed that he had pinned the helper against the
rib. Mr. Slaman stated that his line-of-sight was toward the
left-hand rib and that when he advanced the scoop to move the pan
line, he could not recall where the helper was located because he
was studying the pan line. He last recalled the helper being in
front of him, and he believed that the helper was watching him
move the pan line and was not paying attention to the scoop. Mr.
Slaman stated that "I didn't watch him, so I really don't know
what he did" (Tr. 73Ä76).
Mr. Slaman stated that the Unitrac 488 scoop on which he was
trained at the No. 20 Mine had the same center pivot point,
steered the same, and had the same bucket and battery as the 601
S & S scoop. The Unitrac was "a hair smaller" than the S & S
scoop (Tr. 76Ä77).
On cross-examination, Mr. Slaman reviewed his prior mining
work and experience, and the scoop training he received at the
No. 20 Mine. He confirmed that he received initial training on
the scoop at the Humphrey Mine sometime in 1980, and that the
training consisted of a review of the safety aspects of the
scoop, reading the SWI, and his boss observing him operating the
machine and discussing specific "do's and dont's" with him. Mr.
Slaman stated that he operated the scoop 20 times in 1980, 30Ä40
times in 1981, 50Ä60 times in 1982, 1983, and 1984, and 20Ä30
times in 1985 and 1986. During these periods he operated the 601
S & S scoop, and on occasion operated an Elkhorn scoop, and a 610
scoop which were larger than the 601 (Tr. 77Ä83).
Mr. Slaman described his various jobs and duties at the mine
requiring him to operate scoops, and he confirmed that there is
no specific job classification of scoop operator at the Humphrey
Mine (Tr. 84Ä86).
Mr. Slaman confirmed that on each occasion when he was
trained, he received a "blue training slip," but that he no
longer has them, and they were either washed in the laundry or
thrown away. He stated that Mr. Hunt trained him on the 601 S & S
scoop sometime between the end of 1985 and the end of 1986, and
that Mr. Hunt observed him operating the machine to make sure
that he was operating it safely. Mr. Slaman confirmed that Mr.
Hunt gave him a "retraining slip" after he observed him operating
the machine (Tr. 88Ä89). Mr. Slaman
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explained that he threw away his training slips because they were
"dirty and grubby you end up sticking it in your pocket or forget
about them." Mr. Slaman stated that the individuals who trained
him retained a copy of the training slip, and they are required
to turn it in to the company, and he assumed that this was done
in his case (Tr. 90).
Mr. Slaman stated that 2 or 3 weeks before the accident
Charlie Johnson trained him on the scoop (Tr. 91), and that he
was also trained by Norman Cutright. Mr. Cutright advised him
that he turned his training slips into the safety department, and
Mr. Slaman indicated that as far as he knew the safety department
only had records of his training at the No. 20 Mine (Tr. 95). Mr.
Slaman stated that the training he received from Mr. Johnson
consisted of Mr. Johnson reading the "SWI Form" to him and
reviewing the safety aspects of the scoop. Mr. Johnson wanted to
insure that everyone had their training up to date in
anticipation of the longwall, and he did not review the machine
controls because "we were all familiar with the scoop anyway"
(Tr. 96Ä97). Mr. Slaman confirmed that he received a scoop
training certificate from Mr. Johnson, and stated that 4 or
5Ädays prior to the hearing, Mr. Johnson informed him that he had
turned a copy in to the safety department as was his usual
practice (Tr. 98).
Mr. Slaman confirmed that copies of all training slips are
usually kept in his file with the safety department, and that
those records do contain copies of training slips for other
equipment for which he was trained (Tr. 98). He confirmed that he
was trained in the operation of a 488 Unitrac at the No. 20 Mine
in 1977 to the end of 1978, and that he has been in the Humphrey
No. 7 Mine for approximately 8 or 9 years (Tr. 99).
Mr. Slaman stated that the 601 and 610 S & S scoops are
basically the same, except that the 610 is bigger and the
operator's compartment is at the rear of the machine, and the
operator sits at the front of the 601 model. The controls,
throttle, braking mechanisms, hydraulics, and steering are the
same for both machines, but the visibility is reduced in a 610,
and he did not consider it to be a good piece of machinery
because of its larger size, and the fact that one needed to have
a helper with him because he cannot see the blade from the
operator's compartment. In his opinion, the two scoops operate
the same way, and he does not have to be trained when going from
one machine to the other (Tr. 104Ä106).
Page 13
~2185
Mr. Slaman described the 488 Unitrac scoop which he operated in
the No. 20 Mine, and confirmed that it is not used at the
Humphrey No. 7 Mine. He stated that S & S scoops are used in this
mine, and that he was operating a standard 601 S & S scoop at the
time of the accident, and that the 610 model is rarely used
except for heavy work. He confirmed that the operator's
compartment on the 601 model is at the front, the same as on the
Unitrac, and that the controls, brakes, and tramming pedals are
also the same as the Unitrac, and that Mr. Hunt, Mr. Johnson, and
Mr. Cutright all trained him on the 601. He also confirmed that
he operated an Elkhorn Scoop, four or five times, but could not
recall when, and that his training on that model was exactly like
the training he received for the 601 (Tr. 109Ä111).
Mr. Slaman explained that the "retraining" he received to
abate the violation consisted of someone re-reading the Safe Work
Instructions (SWI) to him (Tr. 117). He was then required to sign
a safety training form attesting to the fact that the SWI was
read to him, and that the training form is maintained by the
safety department. The SWI's are kept on the section where the
scoops are operated, as well as in the safety department (Tr.
124).
Norman Cutright testified that he has worked at the Humphrey
No. 7 Mine for over 17 years, and has served as a supervisor for
6 years. He has served as a longwall boss and section foreman,
and confirmed that he was Mr. Slaman's supervisor for
approximately a year and a half until a realignment in December,
1984. He also confirmed that during this period, he trained Mr.
Slaman in the operation of a scoop, using the applicable Safe
Work Instructions (SWI) for scoop operators, and he identified a
copy of the SWI used for this training, and explained the
respondent's MSHA approved training procedures he followed (Tr.
130Ä134; Exhibit RÄ1).
Mr. Cutright stated that he trained Mr. Slaman in the
operation of a scoop for the longwall move, and that during such
moves "you need a real good man to run the scoop" (Tr. 136). He
confirmed that he trained Mr. Slaman for one longwall move in
February, 1984, using the SWI, and he explained how he did the
training. He confirmed that at that time, Mr. Slaman was an
experienced scoop operator, and that he observed him operating
the scoop as part of his training. At the completion of this
training, Mr. Cutright stated that he filled out a "5023 Form"
kept in his foreman's book, gave Mr. Slaman his signed copy, and
turned the remaining copies into the safety department. Mr.
Cutright assumed they were placed in the company files (Tr.
136Ä138).
Page 14
~2186
Mr. Cutright stated that subsequent to the aforementioned
training, he trained Mr. Slaman again when he worked for him as a
shieldman for a second longwall move which occurred sometime in
September, 1984, and that he regularly observed Mr. Slaman
operating a scoop during the time he worked under his
supervision. This latter training consisted of the same SWI
review procedures, and Mr. Cutright confirmed that he followed
the same routine in documenting Mr. Slaman's training (Tr. 139).
He further confirmed that on both occasions, Mr. Slaman was
trained in the operation of a 601 S & S Scoop, and he considered
Mr. Slaman to be a very good scoop operator. He confirmed that
Mr. Slaman was selected for the longwall work because of his
experience, and that this is critical due to the hazardous nature
of longwall face work and that "you just don't put anybody on to
run a scoop" (Tr. 141).
On cross-examination, Mr. Cutright stated that the SWI
(exhibit RÄ1) pertaining to a battery-operated scoop, was the
same one he used to train Mr. Slaman in 1984, and he confirmed
that the scoops have not changed in the past 3 or 4 years (Tr.
142). He also confirmed that he has trained Mr. Slaman on other
equipment, and that there have been no changes in the 601 S & S
scoop (Tr. 143). He stated that when he trained Mr. Slaman in
1984, he did not review or verify his prior training, and that
the February training was over a period of 2 days and probably
not longer because Mr. Slaman was an experienced scoop operator,
and the training included supervised personal scoop operational
instructions and sessions, and practice sessions (Tr. 145). Mr.
Slaman was again trained 6 or 7 months later as a matter of
routine to insure that everyone on the longwall knew what was
going on, and this training session included supervised
operational sessions similar to the February training (Tr. 146).
Mr. Cutright confirmed that he has never reviewed Mr. Slaman's
training records (Tr. 147).
Mr. Cutright confirmed that the September, 1984, training
consisted of his observations of Mr. Slaman operating the scoop,
and did not include practice sessions because Mr. Slaman had been
trained in that phase in February and it was "just a retraining
type thing" (Tr. 148). Mr. Cutright confirmed that he was aware
of the fact that there is no record in the safety department of
Mr. Slaman's training, and he agreed that it was unusual not to
have those records (Tr. 149). He could not further explain the
absence of the records, and he confirmed that he has trained
other miners, but has no idea whether or not their records are on
file in the safety department (Tr. 150).
Page 15
~2187
Mr. Cutright stated that a Unitrac is a scoop of a different
size, and confirmed that he had never seen one. He indicated that
the term "Unitrac" is not one used in his mine, and that the term
is sometimes mentioned by miners from different mines. When asked
whether a 601 scoop is a Unitrac, he responded "I suppose it is,
depending on what mine you're working in, I guess," and that
"there are different namesÄdifferent mines use different names
for some things" (Tr. 152). He confirmed that the scoop which Mr.
Slaman was operating at the time of the accident was the same
type of 601 scoop that he trained him on, and that since that
training, he has not trained Mr. Slaman further because he was
assigned to a different shift after the realignment (Tr. 153).
David Hunt testified that he has been employed at the
Humphrey No. 7 Mine for 16 years, serves as an assistant shift
foreman, and that he has been a supervisor for 10 years. He
confirmed that he has supervised Mr. Slaman since the realignment
in 1985, until a few months ago when he bid on a belt job. Mr.
Hunt confirmed that he was Mr. Slaman's supervisor on the evening
of July 19, 1986, when the accident in question occurred. Mr.
Hunt confirmed that he has trained Mr. Slaman in the operation of
a battery operated 601 S & S scoop, as well on other equipment.
He stated that the first time he trained Mr. Slaman on the scoop
was sometime in 1985 during the 6 Butt longwall move, and while
he could not recall the specific dates, it may have been during
the Fall of 1985. He also observed Mr. Slaman operating the scoop
numerous times throughout the year while working under his
supervision, and confirmed that he used the SWI, exhibit RÄ1,
during his training of Mr. Slaman. He confirmed that the SWI is
an MSHA approved means of task training, and that the training
would have included his reviewing the SWI with Mr. Slaman, as
well as his physical operation of the scoop. The review of the
SWI would have taken a half-hour, and his observation of Mr.
Slaman operating the scoop would have been over a period of
separate days, including follow-ups until he was satisfied that
Mr. Slaman could operate the scoop (Tr. 153Ä159).
Mr. Hunt stated that the mine uses 601 and 610 model scoops,
and that they are basically the same, except that the 610 is
larger. He may have also trained Mr. Slaman on the 610, and if he
did, he would follow the same training procedures which he
followed when he trained him on the 601 model. He confirmed that
there are no separate training instructions for the two models.
Since the realignment of late December, 1984, he has observed Mr.
Slaman quite a few times using the scoop while unloading cribs,
and setting up and tearing down
Page 16
~2188
longwalls (Tr. 160). If an employee informs him that he has been
trained on the scoop, Mr. Hunt would allow him to operate it. Mr.
Hunt stated that he would be in violation of company policy if he
permitted an untrained miner to perform a task for which he is
not trained, and that due to day-to-day shift changes and
realignments underground, training records are not readily
available. In the event an employee informs him it has been 6
months or a year since he had initially training, he will fill
out a basic "5023 form" or a retraining slip to be on the "safe
side" (Tr. 161Ä162).
Mr. Hunt confirmed that Mr. Slaman was classified as a
shuttle car operator when he worked under his supervision, but he
was considered to be trained and experienced in operating a
scoop, and the fact that he was a shuttle car operator did not
forbid him from operating a scoop. Mr. Slaman was specifically
assigned to the longwall because he was considered to be an
experienced scoop operator, and at the time of the accident on
July 19, 1986, they were in the process of another longwall move
(Tr. 162).
On cross-examination, Mr. Hunt confirmed that he was on duty
at the time of the accident, but was not present at the immediate
scene (Tr. 164). He did not train Mr. Slaman prior to 1985, other
than the one time on the 601 scoop, and his section foreman would
have taken care of that. Mr. Hunt confirmed that prior to
training Mr. Slaman, he asked him whether he had ever been
trained in the use of the scoop, and he replied that he had.
However, he did not review his training records at any time (Tr.
165). He confirmed that some of his follow-up supervision of Mr.
Slaman in the operation of the scoop during longwall moves may
have been on the 610 model, because it was used to unload cribs
(Tr. 166). Although the 610 may have been on the section at the
time of the accident, they were not being used that day, and he
did not observe Mr. Slaman operating the 610 that day (Tr. 170).
Mr. Hunt stated that Mr. Slaman had the initial training
indicated in the SWI for battery scoops, and it would make no
difference whether he operated the 601 or 610 models, because
they are basically the same machine, except that the 610 is
larger (Tr. 171). He confirmed that his training of Mr. Slaman on
the 601 scoop would have been follow-up training because Mr.
Slaman informed him that he had previously been trained, and he
believed his follow-up training occurred sometime in the Fall of
1985. Mr. Slaman was trained at that time because in all longwall
moves, Mr. Hunt wants to make sure that everyone involved in the
move is trained. Since he had previously observed Mr. Slaman
operating the scoop, there was
Page 17
~2189
no need for initial training, but he did review the SWI with him,
and observed him going over his "check" procedures and operating
the machine (Tr. 174). He did not fill out any training
certificate at that time, because he was under the assumption
that he had been initially trained, and he had observed him, and
there was no need to fill out another certificate (Tr. 175Ä176).
Mr. Hunt explained the procedures he normally follows with
respect to the filing of training certificates with Consol's
safety department at the end of the month after training his
employees. He confirmed that he keeps them in his pocket as they
are accumulated before the end of the month, and that his wife
has on occasion laundered some of them (Tr. 177). He confirmed
that he was aware of the regulations concerning training record
keeping and has followed them. He could not explain why Mr.
Slaman's training records could not be located, and indicated
that once he turns them in, "it's out of my hands" (Tr. 178). Mr.
Hunt reiterated that he did not prepare a training certificate
for Mr. Slaman after he trained him in 1985 because he believed
that he had previously been trained, and he confirmed that after
this training, he observed Mr. Slaman operating the 601 scoop. He
assumed that Mr. Slaman had operated it at least 2 weeks before
the accident occurred, because he knew he was assigned to the
longwall and Mr. Slaman had indicated to him that "he had been up
there for quite a while" (Tr. 178). Mr. Hunt did not observe him
during this time because he was on vacation.
Mr. Hunt could not specify how often he observed Mr. Slaman
operating the scoop between the time he trained him in 1985 and
the time he went on vacation, but that anytime he would observe
him on a scoop in his working area he would always check to see
what work was done during the shift (Tr. 179). He specifically
recalled one occasion when he sought out Mr. Slaman to advise him
of a new state requirement that all scoop operators walk their
roadways to check for debris, but he could not remember when this
was (Tr. 180).
Mr. Hunt confirmed that he was not contacted or interviewed
by any MSHA inspectors during the course of the accident
investigation, and that Mr. Gibson did not talk to him before
issuing the violation, and did not ask him about Mr. Slaman's
training (Tr. 183).
Inspector Gibson was recalled by the Court, and he stated as
follows:
Page 18
~2190
BY JUDGE KOUTRAS:
Q. Mr. Gibson, you've been sitting here listening to
all this testimony brought forward by Consolidation
Coal Company with regard to the training that Mr.
Slaman has received. Okay?
A. Yes.
Q. Now, assuming I can believe all that testimony, from
what you've heard today, do you feel this man has
received adequate task training to comply with the
regulations, based on what you've heard?
A. From what I've heard, if it's true, I think he has
had adequate training. But there was no record of it.
Q. I understand that. And still, that hasn't been
explained yet. Mr. Peelish opted not to call the record
keeper and let me grill him. But from what you've heard
of the testimony, you feel the man was adequately
trained.
A. Yes.
Q. Have you ever had any similar occurrences as this
were a mine operator hasn't been able to produce
training records?
A. Vaguely, I remember one, I think, at Osage Number 3
Mine.
Q. Another ConsolÄ
MR. PEELISH: Another Consol Mine.
Findings and Conclusions
Consol is charged with an alleged violation of mandatory
training standard 30 C.F.R. 48.7, which provides in relevant
part as follows:
48.7 Training of miners assigned to a task in which
they have had no previous experience; minimum courses
of instruction.
Page 19
~2191
(a) Miners assigned to new work tasks as mobile equipment
operators, drilling machine operators, haulage and conveyor
systems operators, roof and ground control machine operators
shall not perform new work tasks in these categories
until training prescribed in this paragraph and paragraph (b) of
this section have been completed The training program
shall include the following:
(1) Health & safety aspects and safe operating
procedures for work tasks, equipment and machinery. The
training shall include instruction in the health and
safety aspects and the safe operating procedures
related to the assigned tasks, and shall be given in an
on-the-job environment, and
(2)(1) Supervised practice during non-production. The
training shall include supervised practice in the
assigned tasks, and the performance of work duties at
times or places where production is not the primary
objective; or
(ii) Supervised operation during production. The
training shall include, while under brief and immediate
supervision and production is in progress, operation of
the machine or equipment and the performance of work
duties.
(3) New or modified machines and equipment. Equipment
and machine operators shall be instructed in safe
operating procedures applicable to new or modified
machines or equipment to be installed or put into
operation in the mine, which require new or different
procedures.
**********
(b) Miners under paragraph (a) of this section shall
not operate the equipment or machine or engage in
blasting operations without direction and immediate
supervision until such miners have demonstrated safe
operating procedures for the equipment or machine or
blasting operation to the operator or the operator's
agent.
Page 20
~2192
(c) Miners assigned a new task not covered in paragraph (a) of
this section shall be instructed in the safety and health aspects
and safe work procedures of the task, prior to performing such
task.
**********
(e) All training and supervised practice and operation
required by this section shall be given by a qualified
trainer, or a supervisor experienced in the assigned
tasks, or other person experienced in the assigned
tasks.
Paragraph (a) of section 48.7, contains two exceptions to
the stated new task training requirements, and they are as
follows:
This training shall not be required for miners who have
been trained and who have demonstrated safe operating
procedures for such new work tasks within 12 months
preceding assignment. This training shall also not be
required for miners who have performed the new work
tasks and who have demonstrated safe operating
procedures for such new work tasks within 12 months
preceding assignment.
The term "task" for purposes of the training requirements of
the cited standard is defined as follows at section
48.2(a)(2)(f): " "Task' means a work assignment that includes
duties of a job that occur on a regular basis and which requires
physical abilities and job knowledge."
MSHA cites two judges decisions in FMC Corporation v.
Secretary of labor, 7 FMSHRC 1553 (October 1985), and Secretary
of Labor v. WRW Corporation, 7 FMSHRC 245 (February 1985), in
support of its conclusions that an untrained mobile equipment
operator poses a hazard to his fellow miners, and that new task
training promotes mine safety by giving miners greater awareness
of work hazards. Although I agree with MSHA's conclusions, upon
review of those decisions, I find that they are distinguishable
from the facts in the instant case.
In the FMC Corporation case, Judge Lasher affirmed a
violation of section 48.27 after finding that a foreman assigned
a bulldozer operator to operate a front-end loader. The miner had
never been required to operate a loader, had not been
Page 21
~2193
trained in its operation, and the foreman had not previously
observed him operate the loader, and did not believe that he had
been trained in its operation. Further, once the miner proceeded
to operate the loader, the foreman was displeased with his
performance, but failed to remove him from the machine. The miner
ultimately requested another miner to finish up his work with the
loader because he was uncomfortable with the machine, and when
the work was finished, the untrained miner drove the machine back
to its original location.
In affirming the citation in the FMC Corporation case, Judge
Lasher relied on the fact that the loader was substantially
different from a bulldozer because of substantial differences in
weight, size, function, controls, brakes, speed, and the moving
and steering mechanisms. Even so, Judge Lasher observed that new
task training is not automatically or necessarily required every
time a miner is assigned to a new piece of equipment, and that
the assignment would not be deemed a new work task if the new
piece of equipment was essentially the same as the one regularly
operated by the miner in the past.
The WRW Corporation case involved a situation in which two
miners with no training and less than a month of experience died
of carbon monoxide poisoning while working in an underground
mine. Judge Melick found that the deaths resulted from grossly
inadequate ventilation resulting from unlawful blasting, and his
affirmance of violations of section 48.5 and 48.7, was based on
the fact that the miners had absolutely no training at all, and
that one of the miners began working in the mine on the night of
his death.
The record in this case reflects that the foreman who
trained Mr. Slaman in the operation of the scoop did not review
his training records to confirm that he had in fact received
prior training. MSHA suggests that the reason Consol maintains
training records is so that they may be reviewed. I would suggest
that Consol keeps training records because it is required to do
so pursuant to MSHA's regulations, and that its failure to do so
will subject it to a citation. Although from a safety standpoint,
one would expect a prudent mine operator and supervisor to
maintain its training records in such a manner as to have them
readily available to insure that its work force is properly
trained, Consol in this case is not charged with sloppy or
non-existent record keeping. It is charged with a failure to
properly train a scoop operator. Further, I find nothing in
MSHA's record-keeping regulation, section
Page 22
~2194
48.9, that requires an operator to review an employee's training
record to assure itself that he has adequate training. If MSHA
deems this critical, then I suggest that it consider amending its
regulation to make this a requirement. Although the facts in this
case suggests that Consol has a serious problem with the
record-keeping procedures of the mine safety department, and its
counsel candidly admitted as much during the course of the
hearing, this is a matter that MSHA may wish to consider in any
future compliance inspections at the mine.
While I agree that Consol's failure to produce copies of Mr.
Slaman's scoop training records raises an inference that he was
not trained, I find no basis for concluding that all of its
witnesses who have testified in this case have lied or perjured
themselves. To the contrary, having viewed the witnesses during
their testimony, they impressed me as credible individuals, and I
find their testimony as to the training received by Mr. Slaman in
the operation of a scoop to be believable and credible. Inspector
Gibson himself candidly conceded that assuming the witnesses are
believable, he would agree that Mr. Slaman received proper scoop
training prior to the accident in compliance with MSHA's
requirements. Inspector Gibson also agreed that if he were a
section foreman, and needed a job done, he would have to rely on
a miner's assurance to him that he was trained on a piece of
equipment needed to do the job (Tr. 49). He also agreed that if
an employee worked for him a number of times and he initially
trained him and then observed him operating a piece of equipment,
he would not necessarily train him again prior to assigning him a
task, provided these observations were recent and within a
12Ämonth period (Tr. 50).
MSHA's assertion that Consol may not avail itself of the
first exception found in paragraph (a) of section 48.7, because
its records do not reflect any task training for Mr. Slaman
within 12Ämonths prior to his being assigned to operate the scoop
in July, 1986, raises an inference that this was the first time
Mr. Slaman was assigned to operate the scoop in a longwall work
environment. This is not the case, and the record shows
otherwise.
While it is true that Consol and Mr. Slaman have not
produced any copies of Mr. Slaman's scoop training certificates,
Mr. Slaman, who has worked at the No. 7 Mine continuously since
1978, testified that since that time and up to the time of the
accident on July 19, 1986, he had operated a scoop at least "a
couple of hundred times," and since 1981 or 1982, he operated it
"pretty continuously." He estimated that he operated the 601 S &
S scoop, the type he was operating at the time
Page 23
~2195
of the accident, at least 20 or 30 times in 1985 and 1986, and
that on occasion he has operated an Elkhorn model and a model
-
Mr. Slaman also testified that during his employment in the
mine he has received training and retraining in the operation of
a scoop from at least 10 individuals, including one Charlie
Johnson, and foremen Norman Cutright and David Hunt, both of whom
testified in this case.Mr. Slaman confirmed that his prior duties as a longwall
shieldman required him to operate a scoop, and that during two
longwall moves in 1983 and 1984, he was given scoop training by
Mr. Cutright. Mr. Slaman also described other non-longwall work
which he has performed, during which he operated a scoop.
Longwall section foreman Cutright confirmed that he trained Mr.
Slaman in the operation of the 601 S & S scoop during two
longwall moves which occurred in February and September 1984. Mr.
Cutright considered Mr. Slaman to be an experienced and competent
scoop operator, and he confirmed that Mr. Slaman was specifically
assigned to the longwall moves because the hazardous nature of
such work requires an experienced and trained scoop operator.Foreman David Hunt testified that he was Mr. Slaman's
supervisor from 1985 until a few months prior to the hearing of
August 27, 1987, when Mr. Slaman bid on another job. Mr. Hunt
testified that he first trained Mr. Slaman in the operation of
the 601 S & S scoop sometime during the fall of 1985 when the 6
Butt Longwall was being moved, and that subsequent to this
training he observed Mr. Slaman operating the scoop on numerous
occasions during the year while working under his supervision,
including other longwall moves. Although Mr. Hunt stated that he
was on vacation during the 2Äweek period immediately prior to the
accident, he confirmed that he knew Mr. Slaman was assigned to
the longwall move that was taking place at the time of the
accident, that he had previously observed Mr. Slaman operating
the scoop during his visits to the section to check on the
progress of the work on the section, and he had previously
observed Mr. Slaman operating a scoop while moving cribs.Mr. Hunt testified that he considered Mr. Slaman to be an
experienced trained scoop operator, and he confirmed that Mr.
Slaman was assigned to do work on the longwall because of his
experience and training. Mr. Hunt considered his training of Mr.
Slaman on the scoop to be retraining or "follow-up" training, and
that this is normally done when a longwall is to be moved in
order to insure that miners involved in such moves are trained to
do the work safely. Mr. Hunt confirmed that at the time he
conducted his follow-up training of Mr. Slaman,
Page 24
~2196
since he had observed Mr. Slaman operating a scoop, and since Mr.
Slaman advised him that he was an experienced scoop operator and
had received prior training, Mr. Hunt saw no need to give him any
initial training.
With regard to MSHA's assertion that Consol may not avail
itself of the section exception found in paragraph (a) of section
48.7, I take note of the fact that this exception contains two
conditions. The first condition requires a showing that the miner
has performed the work task in question within 12Ämonths
preceding the work assignment, and the second condition requires
a showing that the miner has demonstrated safe operating
procedures for the task within this same time frame. With respect
to the first condition, I conclude and find that the respondent's
credible testimony establishes that Mr. Slaman operated a 601 S &
S scoop on a fairly regular basis within the 12Ämonth period
prior to the accident, and that he was an experienced and trained
scoop operator.
Mr. Slaman confirmed that Mr. Hunt retrained him to abate
the violation, and that prior to the accident Mr. Hunt routinely
retrained him, worked with him a lot, and observed him operating
the scoop. Although Mr. Slaman could not recall whether Mr. Hunt
read him the Safe Work Instructions, he nonetheless confirmed
that during Mr. Hunt's training, he would go over safety topics,
"read me the retraining," instructed him in the operation of the
scoop, and prior to assigning him any tasks, would ask about his
scoop training. Mr. Slaman also confirmed that Mr. Hunt would
retrain him from time-to-time, and he recalled one particular
occasion when Mr. Hunt discussed the need to walk the roads
looking for obstructions (Tr. 67Ä69; 88). Mr. Slaman also
confirmed that he was retrained by Charlie Johnson on the scoop 2
or 3 weeks before the accident, and that Mr. Johnson read him the
SWI and reviewed its "safety aspects." Mr. Slaman conceded that
Mr. Johnson did not review the scoop controls with him, and he
explained that this was because he was already familiar with the
controls (Tr. 96).
MSHA asserts that Consol has failed to show that Mr. Slaman
demonstrated safe operating procedures for the scoop within the
12Ämonth period preceding the accident. MSHA suggests that the
statement made by Consol's counsel during the course of the
hearing that no follow-up training is necessary if the miner in
question operates the equipment at least once a year (Tr. 205),
seems to be a loose reading of the "demonstration" required by
the standard. Conceding that the term "demonstration" has not yet
been interpreted by case law,
Page 25
~2197
MSHA submits that the plain meaning of the phrase "demonstrating
safe operating procedures" entails more than the mere operation
of the equipment. MSHA suggests that Mr. Slaman was somehow
required to demonstrate to his supervisors that he could safely
operate the scoop, but does not elaborate on how it expects this
to be done. I find MSHA's argument to be as nebulous as the
phrase it has attempted to explain.
Consol has established that the SWI used as part of Mr.
Slaman's training has MSHA's approval, and that it was used in
conjunction with his foreman's personal observations of his
operation of a scoop on a number of occasions while in an
underground work environment, particularly on the longwall.
Further, there is no evidence in this case that Mr. Slaman has
ever been involved in any prior accidents, or has ever been
disciplined or cited for operating his scoop in an unsafe manner,
and his supervisors considered him to be a competent and
well-trained scoop operator.
MSHA's suggestion that the accident itself is ample evidence
of Mr. Slaman's inability to safely operate a scoop is rejected.
I cannot conclude that the occurrence of the accident per se
establishes that Mr. Slaman was not trained in the technical and
safe operation of the scoop he was operating at the time of that
incident. Accidents involving miners whose training records may
reflect that they are trained may occur at any time in an
underground mine environment given the circumstances of each such
incident. Since MSHA did not introduce its report of
investigation concerning the accident, I have no way of knowing
the extent and scope of Inspector Gibson's investigation of that
incident. I take note of foreman Hunt's unrebutted testimony that
Mr. Gibson did not discuss Mr. Slaman's training with him, and
there is no indication that he discussed it with foreman
Cutright.
Mr. Slaman testified that immediately prior to the accident
he was concentrating on moving the pan line with the scoop, and
that when he last observed the accident victim, he observed him
in front of the scoop watching him move the pan line. He had no
idea how the victim came to position himself next to the rib as
it pivoted and pinned him against the rib. Inspector Gibson's
notes reflect that "a breakdown in communication between the
operator of the scoop and his helper resulted in this accident"
(Exhibit GÄ4). Under the circumstances, it is altogether possible
that the accident victim contributed to the accident though his
inattention and lack of training.
Page 26
~2198
Inspector Gibson's abatement notice reflects that the citation
and order were abated after Mr. Slaman was task trained "in the
safe procedures of operating a scoop," and that all foremen and
personnel "have been instructed that all persons will be in a
safe position before equipment is moved or trammed." Mr. Slaman's
unrebutted testimony is that this "training" simply consisted of
someone reading the SWI to him, and his signing a safety form
attesting to this fact, and that the form is on file with the
company's safety department. Although the abatement action taken
by Consol included cautionary instructions to individuals other
than the equipment operator, Consol's counsel suggested that
while there is no requirements that scoop helpers be included in
the SWI training given equipment operators, all mine personnel
are instructed to stay clear of tramming equipment as a general
safety precaution (Tr. 197). In any event, the issue here is
whether the scoop operator, not the helper, had received adequate
training, and Consol has not been cited for any lack of training
on the part of the helper who was injured. In the final analysis
of this case, I am convinced that Inspector Gibson issued the
violation because a serious accident had occurred and Consol
could produce no records attesting to the fact that Mr. Slaman
was a trained scoop operator. However, I am not convinced that
MSHA has presented any credible evidence to support any such
conclusion, or to support a violation of 30 C.F.R. 48.7.
Accordingly, the contested citation and order ARE VACATED.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT section 104(a) Citation No. 2713397, and section
104(g)(1) Order No. 2713396, issued on July 21, 1986, BE VACATED.
MSHA's proposal for assessment of civil penalty for the alleged
violation in question IS DENIED AND DISMISSED.
George A. Koutras
Administrative Law Judge
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