United States Steel Mining Company, Incorporated

Plain-English summary

United States Steel Mining Company operated an underground coal mine where trolley poles repeatedly came off the trolley wire because of excessive distance from the track and kinks, bends, and twists in the wire. Judge William Fauver upheld the safeguard requiring the trolley wire to be installed so anti-swing devices could be used and the wire would not de-energize track equipment during reasonable travel. He also found that a later citation proved a violation of the safeguard and that the resulting hazards, including loss of lights, communication, and brakes, created a reasonable likelihood of serious injury. The decision assessed a $690 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1403
• Outcome: Safeguard No. 3238838 and Citation No. 3579261 were upheld, with a $690 penalty.
• Key point: Mine-specific safeguards are interpreted narrowly, but a safeguard is enforceable when it identifies the hazard and gives fair notice of the required corrective conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-783
Petitioner : A.C. No. 46-01816-03805
:
v. : Gary No. 50 Mine
:
UNITED STATES STEEL MINING :
COMPANY, INCORPORATED, :
Respondent :

                              DECISION

Appearances: Javier I. Romanach, Esq., Arlington, Virginia, for
Petitioner;
Billy M. Tennant, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before: Judge Fauver

 This is a civil penalty case under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq.

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, reliable
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

                        FINDINGS OF FACT

                      Safeguard No. 3238838

 1. MSHA Inspector James Bowman conducted a regular

inspection at Respondent's Gary No. 50 Mine on May 23, 1989.
The mine produces coal for sale or use in or substantially
affecting interstate commerce.

 2. The inspector observed two vehicles whose trolley poles

frequently came off the trolley wire as they traveled along the
track, thereby de-energizing the equipment.

 3. He found that the problem was caused, at different

locations, by kinks, bends and twists in the wire and by an
excessive distance between the track and the trolley wire.

 4. He found that the loss of power created a number of

transportation hazards, including loss of illumination,
communication and brakes, and the fact that as the pole swung
loose it could propel or loosen rock, strike persons, and create
arcs and sparks.

 5. Based upon his evaluation of the hazards, Inspector

Bowman issued Safeguard No. 3238838, which requires that trolley
wire "be installed within a gauge where anti-swing devices can be
used on all equipment and installed without excessive kinks,
bends, and twists that de-energize track equipment while
traveling along the track within reason."

  6. The conditions found by Inspector Bowman were abated by

repairing the wire trolley and by moving the track closer to the
wire.

                    Citation No. 3579261

 7. MSHA Inspector Earl Cook conducted a regular inspection

at Gary No. 50 Mine on February 4, 1992.

 8. As he traveled along the 5K track entry in a jeep, the

trolley pole came off the trolley wire at numerous locations,
thereby de-energizing the equipment.

 9. He found that this condition violated Safeguard

No. 3238838 and therefore issued Citation No. 3579261.

              DISCUSSION WITH FURTHER FINDINGS

                    Safeguard No. 3238838

 Under the Act and regulations, MSHA inspectors have the

authority to issue safeguards based upon hazards involving
transportation of men and materials in underground coal mines.
A safeguard regarding a specific transportation hazard may be
issued at one mine even if that hazard is commonly encountered at
other mines. Southern Ohio Coal Co., 14 FMSHRC 1, 5-8 (1992).

 In Southern Ohio Coal Co., 7 FMSHRC 509 (1985), the

Commission distinguished safeguards from safety standards adopted
through rulemaking procedures. The latter are liberally
construed, but safeguards issued by an inspector are to be
narrowly construed. Thus, recognizing safeguards as an
"unusually broad grant of regulatory power," the Commission
stated:

   ... [A] safeguard notice must identify with specificity the
   nature of the hazard at which it is directed and the conduct
   required of the operator to remedy such hazard. We further
   hold that in interpreting a safeguard a narrow construction
   of the terms of the safeguard and its intended reach is
   required. [Id. at 512.]


 In BethEnergy Mines, Inc., 14 FMSHRC 17 (1992), the

Commission reaffirmed its holding in Southern Ohio Coal Co.,
stating:

   ... [A] safeguard must be interpreted narrowly in order to
   balance the Secretary's unique authority to require a
   safeguard and the operator's right to fair notice of the
   conduct required of it by the safeguard .... The focus of
   judicial inquiry is on whether the safeguard is based on
   specific conditions at a mine and, as to those specific
   conditions, whether it affords the operator fair notice of
   what is required or prohibited by the safeguard. [Id. at
   25.]

See also Rochester and Pittsburgh Coal Co., 14 FMSHRC 37, 41
(1992).

 On May 23, 1989, MSHA Inspector James Bowman inspected 6-B

and 6-C track entries at the subject mine. He testified that:

   When I went to those two sections, there was two vehicles on
   the track. I was following one and I think it was numbers
   33 and 97, and the poles would come off in almost exactly
   the same -- would come off in exactly the same spots
   numerous different times on those two tracks. It was
   probably more than 30 times because I was, you know -- there
   were so many that I just quit counting. So, what I started
   looking for was the causes for the pole to come off the wire
   to de-energize the piece of equipment. And the causes of
   that was the gauge of the wire in relation to the rail and
   kinks, bends and twists in the wire. [Tr. 12.]

 Pursuant to 30 C.F.R.   75.1403, Inspector Bowman issued

Notice to Provide Safeguard No. 3238838, which stated:

   The trolley wire was inadequately installed in 6-B and 6-C
   sections in that the wire gauge was much wider than the
   track. Kinks, bends and twists were present in the trolley
   wire, causing the trolley pole to de-energize on numerous
   occasions. The wire gauge is so wide that anti-pole swing
   devices can not be used at several locations along the 6-B
   and 6-C track entries by Jeep No. 97 and personnel carrier
   No. 33.

   This is Notice to Provide Safeguard. All trolley wire shall
   be installed within a gauge where anti-swing devices can be
   used on all equipment and installed without excessive kinks,
   bends, and twists that de-energize track equipment while
   traveling along the track within reason.

 The safeguard thus noted two conditions that caused a

transportation hazard of the pole coming off the wire. First, at
various places the wire was not installed close enough to the
track so that the trolley pole with an anti-swing device would
stay on the trolley wire. Inspector Bowman testified that "what

I saw was the wire so far outside the gauge that it was
impossible for the wire to -- for the pole to stay on the wire
because the anti-swinging device would not allow it to swing far
enough to reach the distance that they had the wire from the
rail." Tr. 17-18.

 Second, the safeguard stated that "kinks, bends and twists

were present in the trolley wire, causing the trolley pole to de-
energize .... "

 The safeguard required that trolley wire be installed within

a gauge where anti-swing devices can be used on all equipment and
installed without "excessive kinks, bends, and twists that de-
energize track equipment while traveling along the track within
reason."

 The Secretary contends that "excessive" refers to any kink,

bend or twist in the wire that causes the pole to fall from the
trolley wire. The company contends that the word "excessive"
means an excessive number of kinks, bends or twists that cause
the pole to fall from the wire and that, in any event, if there
is ambiguity the safeguard is not enforceable because it fails to
give fair notice of the prohibited conduct.

 I find that the term "excessive" as used in the safeguard

reasonably refers to the degree of distortion in the wire caused
by any kink, bend, or twist and that if any of these causes the
trolley pole to fall from the wire it is "excessive" within the
meaning of the safeguard.

 The phrase "while traveling along the track within reason"

reasonably means "at a reasonable rate of speed given the track
conditions and equipment in the area," as stated by Inspector
Bowman. Tr. 51.

 Inspector Bowman testified that the two prohibited

conditions (excessive distance of wire from track and any
excessive kink, bend, or twist) created a transportation hazard
of the trolley pole becoming disconnected from the trolley wire.
This hazard created further hazards. The swinging pole could hit
a person, it could propel or loosen rocks, it could cause sparks
and arcs, and, by disconnecting the power, it would cause a loss
of communication, lights, and brakes. In addition, when the
distance from the track to the trolley wire was too wide to use
the anti-swinging device, employees or supervisors might be
tempted to block out or tie off the anti-swinging device in order
to keep the pole connected to the wire. This would create a
hazard of operating without this important safety protection.

 I find that the safeguard was "based on an evaluation of the

specific conditions at the mine and the determination that such
conditions created a transportation hazard in need of correction"
and that it "provided the operator with sufficient notice of the
nature of the hazard at which it [was] directed and the conduct
required of the operator to remedy such hazard." Southern Ohio

Coal Company, 14 FMSHRC 1, 13, (1992).

                  Citation No. 3579261

 On February 4, 1992, Inspector Cook issued Citation No.

3579261, charging a violation of Safeguard No. 3238838 and 30
C.F.R. 75.1403, citing five locations where the gauge from the
track to the trolley wire was too wide to keep the trolley pole
(with an anti-swing device) from falling from the trolley wire
and ten locations where kinks in the trolley wire caused the pole
to fall from the wire.

 The cited conditions were abated by sliding the track to

within a gauge that would allow the pole to stay on the wire
while using an anti-swing device and by removing the kinks in the
trolley wire.

 I find that the conditions cited by Inspector Cook were

proved by the evidence and constituted a violation of Safeguard
No. 3238838 and 30 C.F.R. 75.1403.

 The company contends that if a violation existed, it was

not "significant and substantial."

 The Commission has held that a violation is "significant and

substantial" if there is a "reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature." U.S. Steel Mining Co., Inc., 7
FMSHRC 327, 328, (1985); Cement Division, National Gypsum Co., 3
FMSHRC 822, 825, (1981); Mathies Coal Co., 6 FMSHRC 1, 3-4,
(1984). This evaluation is made in terms of "continued normal
mining operations" without abatement of the violation (U.S. Steel
Mining Co., Inc,, 6 FMSHRC 1573, 1574 (1984)), and must be based
on the particular facts surrounding the violation. (Texasgulf,
Inc., 10 FMSHRC 498, (1988); Youghiogheny & Ohio Coal Company, 9
FMSHRC 1007, (1987)).

 Analysis of the statutory language and the Commission's

decisions indicates that the test of an S&S violation is a
practical and realistic question whether the violation presents a
substantial possibility of resulting in injury or disease, not a
requirement that the Secretary of Labor prove that it is more
probable than not that injury or disease will result. See
judges' decisions in Consolidation Coal Company, 14 FMSHRC 748-
752 (1991) and Mountain Coal Co., 14 FMSHRC 748-752 (1991). The
statute, which does not use the phrase "reasonably likely to
occur" or "reasonable likelihood" in defining an S&S violation,
states that an S&S violation exists if "the violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard"
( 104(d) (1) of the Act; emphasis added). Also, the statute
defines an "imminent danger" as "any condition or practice ...
which could reasonably be expected to cause death or serious

physical harm before [it] can be abated," (Footnote 1) and
expressly places S&S violations below an imminent danger.
(Footnote 2) It follows that the Commission's use of the phrase
"reasonably likely to occur" or "reasonable likelihood" does not
preclude an S&S finding where a substantial possibility of injury
or disease is shown by the evidence, even though the proof may
not show that injury or disease was more probable than not.

 As stated above, the violation of Safeguard No. 3238838

presented a number of safety hazards: a disconnected trolley
pole would stop the power immediately causing a loss of lights,
communication, and brakes; (Footnote 3) the disconnected pole
could strike someone, it could propel or loosen rocks and it
could cause sparks. Also, a wide gauge between the track and
trolley wire could tempt employees or supervisors to block out
the anti-swing device in order to keep the pole from falling from
the wire. This would create another hazard of the pole striking
them. Taken as a whole, I find that the hazards caused by the
risk of a disconnected trolley pole presented a reasonable
likelihood of an accident involving serious injury.

 Considering the criteria for a civil penalty in   110(i) of

the Act, I find that a penalty of $690 is appropriate for this
violation.

                    CONCLUSIONS OF LAW

 1.   The judge has jurisdiction.

 2.   Safeguard No. 3238838 was validly issued.

 3. Respondent violated Safeguard No. 3238838 and 30 C.F.R.

75.1403 as alleged in Citation No. 3579261

                           ORDER

 Respondent shall pay a civil penalty of $690 within 30 days

of the date of this decision.

                                   William Fauver
                                   Administrative Law Judge

1 Section 3(j) of the 1969 Mine Act, unchanged by the Federal
Mine Safety and Health Act of 1977.

2 Section 104(d) (1) limits S&S violations to conditions that "do
not cause imminent danger...."

3 With the power off, all vehicle lights would go off, and the
vehicle phone would not transmit, although the driver could hear
incoming messages. Electric brakes would be inoperative. Backup
brakes would be available if they were working properly.

Distribution:

Javier I. Romanach, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 516, Arlington,
Virginia 22203 (Certified Mail)

Billy M. Tennant, Esq., United States Steel Mining Company, Inc.,
600 Grant Street, Pittsburgh, Pennsylvania 15219 (Certified
Mail)

/fcca