Secretary of Labor v. Southern Ohio Coal Company

Plain-English summary

Southern Ohio Coal operated an underground coal mine where an eight-miner crew extended a conveyor belt. The ALJ found a violation of 30 C.F.R. § 75.1725(c) because the belt was restarted without all affected miners being told. The Commission reversed, holding that extending the belt was not maintenance of existing machinery under the standard and that the standard did not require a warning before power was returned to the belt. The Commission vacated the citation.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1725(c)
• Outcome: The ALJ's violation finding was reversed and the citation was vacated.
• Key point: The standard's lockout and blocking requirements could not be expanded to impose a conveyor-start warning requirement that its text did not state.

Full text (FMSHRC public release)

CCASE:
MSHA V. SOUTHERN OHIO COAL
DDATE:
19920625
TTEXT:
June 25, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. WEVA 90-141

SOUTHERN OHIO COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. • 801 et seq. (1988)("Mine Act" or "Act"). The
issue is whether Commission Administrative Law Judge James A. Broderick erred
in finding that Southern Ohio Coal Co. ("SOCCO") violated 30 C.F.R.
 75.1725(c), a mandatory safety standard applicable to underground coa
mines. The standard provides: "[r]epairs or maintenance shall not be
performed on machinery until the power is off and the machinery is blocked
against motion, except where machinery motion is necessary to make
adjustments." Following an evidentiary hearing, Judge Broderick found that
SOCCO had violated the standard because all affected miners working around a
conveyor belt had not been informed that the belt, which previously had been
locked-out, was going to be started. 12 FMSHRC 2503 (November 1990)(ALJ).
For the reasons set forth below, we reverse the judge's decision.
I.
Factual and Procedural Background
SOCCO operates the Martinka No. 1 Mine, an underground coal mine located
in Marion County, West Virginia. On May 5, 1989, an eight miner crew was
extending an underground conveyor belt. The "belt move" in this instance
involved extending the tailpiece of the conveyor belt one block (100 feet)
toward the coal face in the north main section of the mine. The process
involved, in part, tying-off the existing belt, moving the tail piece forward,
adding additional belt, adding belt rails, and adding rollers. Before work
began, Foreman Bill Laird and miner Sam Guido locked-out and tagged the belt
~979
at the main power source. The crew then added and spliced the belt
and installed some of the top structure of the belt. The crew had not
finished installing the bottom structure.
In order to more easily install the bottom rollers, approximately 30
feet of slack needed to be removed from the belt. Laird and one of the

Page 2

miners, Mike Bowman, left the area of the tailpiece to go to the headgate,
approximately 5000 feet away, in order to activate the take-up device, which
is used to tighten or add tension to the belt. Another miner, John Giordano,
travelled to an area 200 or 300 feet outby the tailpiece, to the Jabco, a
switch controlling power to the belt.
Laird pulled the take-up device to remove the slack. When Laird
discovered that the take-up device would not remove enough slack to adequately
tension the belt, he called Foreman John Gowers, who was located at the tail,
told him that the belt was going to be started, and asked him to make sure
that everything was clear. Gowers called him back and stated that everything
was clear. Tr. II 18-19.(Footnote 2) Gowers then told Dempsey McHenry to
have Giordano turn on the Jabco. McHenry walked outby to Giordano and relayed
Gowers' instructions, and Giordano turned on the Jabco. Gowers assumed that
the other miners had overheard his conversation with McHenry. Tr. I 32; GExh.
2, p. 6. However, according to their testimony, crew members Guido,
DeRosa and Renick knew Laird was going to pull the take-up device, but they
did not know that Laird was going to start the belt.(Footnote 3) Renick depo.
at 25-26; Tr. I 92, 97, 127.
Laird testified that before the belt was started, he "bumped" the belt
at least twice. Tr. I 51-53; G-Exh. 2, p. 2.(Footnote 4) On his way back
from the Jabco to the feeder, McHenry observed that the belt was "jumping up
and down," at a location where "come-alongs" were still attached to the
belt.(Footnote 5) The come-alongs were attached to the top of the belt at
locations described as anywhere from 40 to 200 feet from the tailpiece. Tr. I
131; Giordano depo. at 16; Renick depo. at 12; McHenry depo. at 16. McHenry
then walked back to the

1 The remainder of the crew consisted of Foreman John Gowers and miners Lou
DeRosa, Dempsey McHenry, Frank Renick, Mike Bowman, and John Giordano.

2 The transcript of the evidentiary hearing is set forth in two volumes.
Reference to the first volume is depicted as "Tr. I," while reference to the
second is "Tr. II."

3 Laird testified, however, that before he went to the headgate, he told
Guido that he would probably have to run the belt in order to take up the
slack. Tr. II 9.

4 Bumping the belt involves jogging the belt, by turning it on and quickly
turning it off.

5 A "come-along" is a mechanical, hand-operated winch that latches and pulls
wire rope and was used by the crew to hold up the belt so that belt structure
and rollers could be installed.
~980

Page 3

Jabco and turned off the belt so that the come-alongs could be removed. Tr. I
130; McHenry depo. at 20, 26-27; 12 FMSHRC at 2504. After the power to the
belt was turned off, Laird again locked-out and tagged the power box because
he knew that the crew still had to install bottom structure. Tr. II 23-24,
28.
Guido testified at the hearing that he had been sitting on the belt,
unhooking a come-along that was three to five feet away from him. He further
stated that the belt started as he was getting off, causing him to be thrown
from the belt and injuring his knee. Tr. I 106, 108-10.(Footnote 6) He
testified that he did not see the belt bump or feel it move at all. Tr. I 93.
He also stated that there was no lighting except for cap lamps and that no one
saw his injury.
On August 8, 1989, three months after this incident, James Young, an
inspector with the Department of Labor's Mine Safety and Health Administration
("MSHA"), went to the mine for an inspection and received a written request
from union representatives to investigate the incident. Inspector Young
interviewed Dewey Ice, as well as crew members Laird, Gowers, DeRosa,
McHenry,
and Renick. Inspector Young did not interview Guido because he had not yet
returned to work.
Based upon his investigation, Inspector Young concluded that the belt
had been started while still being worked on by miners who had not been
informed that it was going to be started. Tr. I 17. Accordingly, he issued a
section 104(a) citation alleging a significant and substantial ("S&S")
violation of section 75.1725(c) stating:
Based on information obtained during an accident
investigation, the safe work procedure involving
tagging and locking out machinery, when workers are
exposed to moving parts, was not in place.
Communication between the head drive and the tail
piece was neglected to the point that, the drive was
unlocked and the belt started without notifying the
employees working on the belt at the tail that the
belt flight was going to be started. Six to Eight
employees were working in the area, four employees
involved were not informed that the belt was to be
started....
Citation No. 3118169.

6 Crew member Lou DeRosa testified that Guido told him that he was leaning
over to get his gloves from the belt when it started, and this information had
also been reported by Dewey Ice, SOCCO's accident prevention officer, on
SOCCO's accident report form after a conversation between Ice and DeRosa. Tr.
I 142; Tr. II 30-31; G-Exh. 4. In addition, other witnesses testified that
they had not seen the come-along next to Guido, but only saw come-alongs

Page 4

approximately 40 to 200 feet outby the tailpiece. Tr. I 136; Giordano depo.
at 16; Renick depo. at 10-12.
~981
Inspector Young testified that he believed that SOCCO violated section
75.1725(c) because:
when you have people working at one area on this belt
line and you have people working down 5,000 feet away,
[and that] is where the power is disconnected or
tagged out or locked out or whatever, if you don't
tell these people up here that you're going to start
that belt, ... the part about being locked and tagged
out means absolutely nothing.
Tr. I 25. He stated that men working 5,000 feet away from the area of the
"visible disconnect" would know that it is safe to work on equipment only if
they were told so, and that he had no problem with running the belt to take
out the slack as long as there was proper communication and the crew was in a
safe position. Tr. I 59, 69.
The citation was terminated by Inspector Young when SOCCO planned "a
safety talk at their meeting [in which] they were going to go over with the
foremen about starting up procedures and this type of thing." Tr. I 59-60.
In addition, the action to terminate is described on the citation form as,
"[a]ll parties involved in the investigation, agreed upon the importance of
proper communication between work sites, and the review of accidents at this
mine site." Citation No. 3118169.
Following an evidentiary hearing, the judge found that SOCCO had
violated section 75.1725(c) and that the violation was S&S. In reaching his
finding of violation, the judge first determined that the activities involved
in extending a belt constitute "maintenance" within the meaning of section
75.1725(c). 12 FMSHRC at 2505. The judge also stated:
The evidence ... is clear that neither Guido nor
DeRosa were informed that foreman Laird was going to
start the belt. Although motion of the belt is
necessary to make adjustments, it obviously cannot
safely be accomplished while the belt is being worked
on. All the affected miners must be informed if a
belt which has been locked out is going to be started
up. This was not done here. I conclude that a
violation of 30 C.F.R. • 75.1725(c) has been
established.
12 FMSHRC at 2506.
The judge then found that "[m]aking repairs or adjustments on a belt
while the belt is moving is a serious violation," and that the violation was
properly designated as being S&S. Id. The judge assessed a civil penalty of
$300 against SOCCO, rather than the $276 penalty proposed by the Secretary.
12 FMSHRC at 2507. The Commission subsequently granted SOCCO's petition

Page 5

for
discretionary review, in which SOCCO challenged only the judge's finding of
violation, and we heard oral argument. On review, SOCCO notes preliminarily
that there must be repair or maintenance being performed for there to be a
~982
violation; that, in any event, the standard has no notice requirement; and
finally, if a notice requirement can be read into the standard, SOCCO's
practice of "bumping" the belt satisfied the requirement. PDR at 2-3.
II.
Disposition of Issues
Under section 75.1725(c), power to machinery must remain off until
repairs and maintenance are completed, unless power is necessary to make an
adjustment. Not all tasks are covered by the standard; it applies only where
repairs or maintenance are being performed. Here, it is undisputed that the
crew was engaged in a belt move at the time the belt was started, and that the
belt move had not been completed. Tr. I 24, 98; Tr. II 24, 28.
When determining whether SOCCO violated section 75.1725(c), the judge
preliminarily considered whether "maintenance" was being performed while
power
was turned on to the belt.(Footnote 7) The judge concluded that the work
involved in extending the belt constituted maintenance within the meaning of
the standard. 12 FMSHRC at 2505. In his finding of fact IV, the judge
described the progress made in the belt move process and the work still to be
completed.
12 FMSHRC at 2504. The judge found that "the action in extending the belt
described in finding of fact IV constitutes maintenance on machinery as that
term is used in [section] 75.1725(c)." 12 FMSHRC at 2505. The judge also
found that extending the belt system involves "adding and adjusting activities
which constitute maintenance." 12 FMSHRC at 2506.
On review, the Secretary focuses on Guido's and DeRosa's activities when
the belt started and states that, at the time that power to the belt was
turned on, Guido was working on the belt and DeRosa was working in close
proximity to the belt. S. Br. at 7. In response, SOCCO argues that there is
no basis for an allegation that maintenance work was being performed while the
belt was in operation. Soc. Rep. Br. at 7.
We agree with the judge that the preliminary question is whether the
belt move constitutes maintenance within the meaning of the standard. The
judge first noted that the term "maintenance" is defined in the dictionary as
"[t]he act of continuing, carrying on, preserving or retaining something . . .
[t]he work of keeping something in proper condition." 12 FMSHRC at 2506
(citation omitted). He then turned to a thesaurus which listed as synonyms
for maintenance: "l. preservation, upkeep, annual upkeep, keeping up; 2.
continuance, continuity, extension, prolongation; perpetuation, persistence,
perseveration, repetition." Id. (citation omitted). From this, the judge
concluded that the belt move constituted maintenance because extending it

Page 6

involved "adding and adjusting activities." Id.
We find that the judge's literal application of the word "extension" is

7 Neither party contends that "repairs" were involved in this case and the
evidence is undisputed that the crew was not engaged in making repairs when
power was returned to the belt. Tr. I 62-64. The judge's decision involves
only the issue of "maintenance."
~983
out of context with the essence of the term maintenance. That essence, as
the dictionary indicated, is that maintenance means "the labor of keeping
something (as buildings or equipment) in a state of repair or efficiency:
care, upkeep . . . . [p]roper care, repair, and keeping in good order . . . .
[t]he upkeep, or preserving the condition of property to be operated." See
Webster's Third New International Dictionary, Unabridged 1362 (1971); A
Dictionary of Mining, Mineral, and Related Terms 675 (1968); and Black's Law
Dictionary 859 (5th ed. 1979).
The record reveals that the belt move was not designed to prevent the
belt from lapsing from its existing condition or to keep the belt in good
repair but, rather, to increase its usefulness to SOCCO. Inspector Young
acknowledged that no work was performed on May 7, 1989, to keep the belt in
the same condition that it was in the day before, that no "deteriorating
condition" was being "upgrad[ed]," and that the belt would run without adding
additional length to it. Tr. I 64. Inspector Young explained that the belt
haulage system runs coal to the tailpiece and, as the face advances, the tail
piece would be "farther than the haulage would allow," if the belt were not
also advanced.(Footnote 8) Tr. I 20.
By adding new structure to extend the belt, SOCCO's miners were not
engaged in the upkeep, preservation or maintenance of the existing belt. The
evidence reveals that the belt move did not preserve the ability of the
existing belt to convey material. The belt was not in need of upkeep.
Instead, the belt move was an improvement of the belt system, extending it and
shortening the distance between the belt's feeder and the working face.
Accordingly, we reverse the judge's holding that the belt move engaged in by
SOCCO constituted maintenance within the meaning of the standard.
Even if we were to assume for the sake of argument that the belt move
constituted maintenance, we would reverse the judge's decision because his
holding regarding warning requirements for conveyor belt start-ups is
erroneous as a matter of law. While we share the judge's concern that
adequate warning be given before a conveyor belt is started in order to assure
the safety of miners, we find no indication that section 75.1725(c) requires
such warning.
The Commission has consistently recognized that a safety standard must
"give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly." Lanham Coal Co., Inc.,
13 FMSHRC 1341, 1343 (September 1991)(citations omitted). The Commission

Page 7

further explained that:
When faced with a challenge that a safety
standard failed to provide adequate notice of
prohibited or required conduct, the Commission has
applied an objective standard, i.e., the reasonably

8 Typically, a shuttle car or ram car hauls coal from the working face to a
"feeder," which is located at the tail of the belt. The coal is dumped onto
the feeder, which feeds coal onto the tail of the conveyor belt. Tr. I 74.
~984
prudent person test. The Commission recently
summarized this test as "whether a reasonably prudent
person familiar with the mining industry and the
protective purposes of the standard would have
recognized the specific prohibition or requirement of
the standard."
Id. (citations omitted).
Section 75.1725(c) does not give a reasonably prudent person notice that
it prohibits the cited conduct. The plain language of section 75.1725(c)
expressly sets forth requirements for blocking and turning off power to
machinery, but does not set forth any requirements regarding communication to
miners before power is returned. Indeed, Inspector Young testified that the
section "doesn't read that you must tell somebody [that the belt] is going to
start." Tr. I 59. Instead, he explained that "the general law is to make
sure that when people are working on [a belt], it's not going to start." Id.
We conclude that a reasonably prudent person would not have known that the
standard requires that miners be alerted before power is returned to machinery
in underground coal mines.(Footnote 9)
It is significant that the Secretary has set forth in 30 C.F.R. Parts
56, 57 and 77 specific requirements for providing adequate warning before
conveyor belts are started for every type of mine except underground coal
mines. See 30 C.F.R. • 56.14201, 57.14201, 77.1607(bb).(Footnote 10) While
Parts 56, 57 and 77 also provide blocking and locking out requirements for
other types of mines similar or identical to those set forth in section
75.1725(c), the Secretary does not rely upon those standards to provide
warnings applicable to

9 Even if we were to assume that the standard requires such warning, a
reasonably prudent person might not have known that bumping the belt,
apparently a common practice in underground coal mines, is not considered an
adequate warning by the Secretary. In fact, Inspector Young considered
bumping a belt to be a warning, and stated that a belt is normally bumped to
alert miners that it might be started. Tr. I 52.

10 For example, 30 C.F.R. • 56.14201, entitled "Conveyor start-up warnings,"

Page 8

provides:
(a) When the entire length of a conveyor is
visible from the starting switch, the conveyor
operator shall visually check to make certain that all
persons are in the clear before starting the conveyor.
(b) When the entire length of the conveyor is
not visible from the starting switch, a system which
provides visible or audible warning shall be installed
and operated to warn persons that the conveyor will be
started. Within 30 seconds after the warning is
given, the conveyor shall be started or a second
warning shall be given.
~985
starting conveyor belts. See 30 C.F.R. • 56.14105, 57.14105, 77.404(c).
The specific start-up warnings required by the standards for other types of
mines cannot be read into the general language of section 75.1725(c),
applicable to underground coal mines. To do so, as urged by the Secretary,
would not meet the test set forth in Lanham Coal Co., Inc., 13 FMSHRC at 1343,
nor serve the interests of safety. As the court stated in Dravo Corp. v.
OSHRC, 613 F.2d 1227, 1232 (3rd Cir. 1980):
To strain the plain and natural meaning of words
for the purpose of alleviating a perceived safety
hazard is to delay the day when the ... safety and
health regulations will be written in clear and
concise language so that employers will be better able
to understand and observe them.
Id., quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649-50 (5th Cir.
1976).
For the reasons discussed above, we conclude that the judge erred, in
finding that the belt move in which SOCCO was engaged constituted maintenance
within the meaning of section 75.1725(c), and in finding that the standard
requires warning to affected miners before a previously locked-out belt is
started.
~986
III.
Conclusion
For the reasons set forth above, we reverse the judge's decision and
vacate the citation.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner