Consolidation Coal Company

Plain-English summary

Consolidation Coal challenged several enforcement actions involving trolley-wire guarding at its Humphrey No. 7 Mine. Judge Avram Weisberger found that personnel carriers transporting miners were man-trips and that the regular loading area was a man-trip station requiring guarded trolley wire under 30 C.F.R. § 75.1003. He found a violation but not significant and substantial because the Secretary did not establish a reasonable likelihood of contact with the wire, and he assessed a $300 penalty. The order also approved a $930 settlement, vacated one order, withdrew one citation, and amended the trolley-wire citation to a non-S&S violation.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1003(c)
• Outcome: The trolley-wire citation was affirmed as a non-S&S violation with a $300 penalty, while related matters were settled, vacated, withdrawn, or amended.
• Key point: A regular stopping and loading area can qualify as a man-trip station even without formal designation, but an S&S finding requires proof of a reasonable likelihood of the resulting injury event.

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

CONSOLIDATION COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket WEVA 92-657-R
: Order No. 3108710;1/13/92
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEVA 92-658-R
ADMINISTRATION (MSHA), : Citation No. 3108711;1/13/92
Respondent :
: Humphrey No. 7 Mine
:
: Mine ID 46-01453
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 92-838
Petitioner : A. C. No. 40-01453-04005
v. :
: Humphrey No. 7 Mine
CONSOLIDATION COAL COMPANY, :
Respondent :

                           DECISION

Appearances: Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
the Secretary of Labor;
Daniel Rogers, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Consolidation Coal
Company.

Before: Judge Weisberger

                    Statement of the Case

 These consolidated proceedings involve the issue of the

validity of various citations and orders issued by the Secretary
(Petitioner), to the Operator (Respondent), alleging violations
of various mandatory safety standards. Pursuant to notice, a
hearing was held in Washington, Pennsylvania, on December 1,
1992. At the hearing, Petitioner moved to vacate Order
No. 3108710 (Docket WEVA 92-657-R), and this motion was granted
based on the representations and documentation submitted by

Petitioner. Petitioner also moved to approve a settlement that
the parties had reached with regard to Citation Nos. 3108711,
3108762, 3108920, and 3108604. These motions were granted based
upon the representations of counsel. In addition, Petitioner
moved to withdraw Citation No. 3108711, and this motion was
granted based upon the representations of counsel.

 At the hearing, Charles J. Thomas testified for Petitioner,

and Mike Jackson, and Stanley Brozick, testified for Respondent.
Petitioner filed a post-hearing brief on January 21, 1993.
Respondent filed a post-hearing brief on January 29, 1993.

             Findings of Fact and Discussion

I. Violation of 30 C.F.R. 75.1003(c)

 On January 16, 1992, MSHA Inspector Charles J. Thomas, while

inspecting the 6 SW Longwall at Respondent's Humphrey No. 7 Mine,
approached the working section in a covered personnel carrier.
Two other personnel carriers were located inby on this same
track, one in front of the other. The trolley wire, which
supplies power to the personnel carrier, and which was suspended
from the roof of the entry, was not guarded above the outby
personnel carrier. Thomas issued Citation No. 3108919 alleging
that "... the trolley wire is not guarded over the extra
personnel carrier at the man-trip station", in violation of
30 C.F.R. 75.1003. At the hearing, the parties agreed that
the issue to be determined is whether the cited condition
constitutes a violation of 30 C.F.R. 75.1003 which, as
pertinent, provides that "trolley wires shall be guarded
adequately ... (c) at man-trip stations". The initial issue
to be determined is whether the personnel carriers are "man-
trips", and whether the area where the outby carrier was located
on January 16, 1992, was a "man-trip station".

 A.   Man-Trips

 The personnel carriers at issue are covered, have a capacity

of transporting 12 men, and are used to transport a longwall
crew, consisting of 7 men, to and from the section. The
personnel carrier has two trolley poles, one located at the inby
end of the carrier, and the other at the outby end of the
carrier. These poles are utilized to make the connection with
the overhead trolley wire and thus provide power to move the
personnel carrier. When the personnel carrier is traveling inby
it uses only the inby trolley pole. To prepare the personnel
carrier for the outby trip, the operator of the carrier has to
remove the inby trolley pole from the trolley wire and connect it
to the pole "dog." The operator must then "undog" the outby
pole, and connect it to the trolley wire.

 The term "man-trip" is not defined in either the regulations

or in Section 310(d) of the Federal Mine Safety and Health Act of
1977, "the 1977 Act", or Section 310(d) of the Federal Coal Mine
Health and Safety Act of 1969 ("the 1969 Act"), both of which
contain the same language as Section 75.1003, supra.

 According to Stanley Brozick, Respondent's Safety Supervisor

at the mine in question, he does not know of any definition of
the term "man trip." He opined that a covered carrier is not a
"man-trip". He explained that prior to 1971 or 1972, Respondent,
and other operators, utilized uncovered "man-trips" pulled by
locomotives to transport miners to and from the section. He
indicated that these man-trips did not remain on the section, but
instead dropped persons off as they travelled inby. He indicated
that the places where persons entered and exited the man-trip
were termed mantrip stations. However, Brozick indicated that,
now, a "man-trip" is considered synonymous with the term "portal
bus." Mike Jackson, a safety escort employed by Respondent at
the Humphrey No. 7 Mine, concurred. In contrast, Thomas opined
that a "man-trip" is the same as a personnel carrier as the
latter carries miners. Hence, the record fails to convincingly
establish a recognized definition in the mining industry of the
term "man-trip". (Footnote 1)

 Respondent refers to 30 C.F.R.   75.1403-6 and 30 C.F.R.

75.1403-7 as support for its proposition that personne
carriers powered by electricity from a trolley wire are not to be
considered man-trips, which are pushed or pulled by locomotives.
Sections 75.1403-6, supra, and Section 75.1403-7 supra, contain
criteria by which an inspector is to be guided in issuing
safeguards to minimize hazards with respect to the transportation
of men. Separate criteria are provided for "self-propelled
personnel carriers" and for "man-trips". The terms "self-
propelled personnel carrier" and "man-trip" are not defined in
Section 75.1403-6, supra, and Section 75.1403-7, supra. There is
no indication that a personnel carrier powered by electricity
from a trolley wire, to which it is connected by way of a pole
attached to the personnel carrier, is not within the scope of the
term "man-trip."

  In U.S. Steel Company, Inc., 7 FMSHRC 865 at 868 (1988) the

Commission set forth its analysis of Section 75.1003 supra as

1Petitioner, at the hearing, made reference to the following
definition of the "man-trip" as set forth in A Dictionary of
Mining, Mineral, and Related Terms (United States Department of
the Interior, (1967)): "a. A trip made by mine cars and
locomotives to take men rather than coal, to and from the working
places." Inasmuch as this defines the term "mantrip" when used
as an adverb, it is not of much probative value with regard to a
definition of that term when used as a noun, as in the instant
case.

follows:

 As the language of section 75.1003 specifies, in order to

effectuate the purpose of the standard, guarding is especially
necessary at mantrip stations. Miners are discharged at such
stations and pass under trolley wire in the process. Further, a
common hazard presented by unguarded trolley wire at a mantrip
station is the possible shock hazard to the mantrip operator when
he stands to remove the trolley pole from the overhead wire.

 Clearly the hazards intended to be protected against by

Section 75.1003, supra, apply to all vehicles transporting miners
that are powered by trolley wires. Since the carriers at issue
are used to transport miners to and from the working section, I
find that they are man-trips within the purview of Section
75.1003, supra.

 B.    Man-trip Station

 During normal mining operations, one personnel carrier is

left in place to be used, in the event of an emergency, by those
personnel working on the section between shifts. The other
carrier transports men to the section at the beginning of the
shift, and then transports them from the section at the end of
the shift.

 During normal mining operations, a specific area, such as

the one in question, is used by miners to get off the personnel
carrier at the beginning of the shift, and to enter the personnel
carrier at the end of the shift. However, as the longwall mining
advances outby, the area in which the miners get on and off the
personnel carrier is also moved outby. According to Thomas, the
locations where miners enter and exit the personnel carrier are
moved outby approximately once a week, depending upon the speed
at which the longwall face advances outby. Respondent's
witnesses have not contradicted or impeached this testimony.

 In U.S. Steel Company, Inc., supra, at 868, the Commission,

in evaluating whether the location where the man-trip therein
stopped was a "man-trip station" at which the trolley wire must
be guarded, held that "... a mantrip station can be established
through routine or regular stopping practice, as well as by
explicit designation. Such a construction of the standard is
founded in the practicalities of daily mining operation and
furthers the protective concerns of Congress cited above." In
this connection, the Commission, in U.S. Steel, supra, at 867,
analyzed the legislative intent regarding the enactment of the
language in the 1969 Act that is repeated in Section 75.1003(c),
supra, as follows:

        The primary purpose of the guarding requirement in


   section 75.1003 is to prevent miners from contacting
   bare trolley wires. As noted above, this standard
   repeats section 210(d) of the Mine Act, 30 U.S.C.
     870(d), which, in turn, was carried over unchanged
   from section 310(d) of the 1969 Coal Act, 30 U.S.C.
     801, et seq., (1976) (amended 1977). The legislative
   history of the 1969 Coal Act relevant to section
   75.1003 reveals a strong Congressional concern with the
   hazards associated with bare trolley wires:

            This section requires that trolley wires
       and trolley feeder wires be insulated and
       guarded adequately at doors, stoppings, at
       mantrip stations, and at all points where men
       are required to work or pass regularly ... .
       Also, this section would require temporary
       guards where trackmen or other persons work
       in proximity to trolley wires and trolley
       feeder wires. The Secretary or the inspector
       may designate other lengths of trolley wires
       or trolley feeder wires that shall be
       protected.
            ... The guarding of trolley wires and
       feeder wires at doors, stoppings, and where
       men work or pass regularly is to prevent
       shock hazards.
            Because of the extreme hazards created
       by bare trolley wires and trolley feeder
       wires, the committee intends that the
       Secretary will make broad use of the
       authority to designate additional lengths of
       trolley wires and trolley feeder wires that
       shall be protected.

 S. Rep. No. 411, 91st Cong., 1st Sess. 77 (1969), reprinted

in Senate Subcommittee on Labor, Committee on Labor and Public
Welfare, 94th Cong., 1st Sess., Part 1 Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 203 (1975):

 In U.S. Steel, supra, at 868, the Commission, in analyzing

Section 75.1003, supra, indicated that to effectuate the purpose
of Section 75.1003, supra, guarding is necessary at man trip
stations where miners are discharged and walk under trolley
wires. Also recognized was the hazard at a man-trip station of a
possible shock to the man-trip operator when he stands to remove
the trolley pole from the overhead wire.

 According to Thomas, in essence, due to the requirement of

only a 12 inch minimum clearance between the rib and the carrier
on the tight side of the entry, the operator of the carrier
normally slides back an access door in the roof of the carrier to
allow him to reach up and "undog" the trolley pole and attach it

to the trolley wire. Since the pole must be "undogged" from a
spring, and placed on the trolley wire, which according to Mike
Jackson, Respondent's expert, is located a minimum of 16 inches
from the roof of the carrier, I conclude that there was a
possible shock hazard to the man-trip operator when engaging in
this activity under unguarded wire at the area in question at the
beginning and end of a shift.

 Further, since the use of the area in question by miners

to exit and enter personnel carriers was not random or a one-
time-only stop, but instead was used regularly, although for a
limited time, I conclude within the framework of U.S. Steel,
supra, that the particular location in question was a man-trip
station. Since the trolley wire above the area in question was
not guarded, I conclude that Respondent violated Section 75.1003
supra.

II. Significant and Substantial

 According to Thomas, in order to "undog" the trolley pole

and place it on the trolley wire, operators of the carrier in
question have their arms, head and shoulders outside the access
door, and on top of the carrier. He indicated that he has driven
a portal bus, and he positioned his head outside on top of the
carrier while "undogging" the trolley wire. He also said that
most of the operators he observed performing this procedure,
positioned their head outside, on top of the carrier. He
indicated that if a person 6-foot tall was required to do this
procedure, his head would be a foot from the wire.

 Thomas indicated that he has always seen operators

performing the "undogging" procedure using two hands. Thomas
indicated that it takes two hands to "undog" the pole, as it is
spring loaded. According to Thomas, in the procedure of moving
the pole from the "dog" to the trolley wire, the operator's hand
would be between an inch and a foot away from the wire. He
indicated that generally, the operator would be exposed to the
hazard of shock or burn, if he were to come in contact with the
trolley wire when he reached in to "undog" the trolley pole and
put it on the wire.

 Thomas opined that a reasonably serious injury was

reasonably likely to occur as a result of the lack of guarding
herein. He explained that contact with the wire would have been
reasonably likely to occur, as the procedure of undogging the
pole and placing it on the wire had to be performed twice a
shift, on each of three daily shifts. He indicated that
generally the working conditions are cramped, and that if the
operator should get mud on his shoes and slip, he then "could"
come in contact with the wire (Tr.82). On-cross-examination he
indicated that such contact "may occur someday" (Tr.83).

 Jackson indicated that he has operated a carrier and, in

general, he used one hand to put the pole on the wire. He also
indicated that there is no reason for the operator to place his
head out of the vehicle. In this connection, he indicated that
an operator would be less likely to put his head out if the wire
is unguarded, as the visibility is better, and it is thus easier
to see where to place the pole on the wire. Brozick indicated
that the base of the pole is practically at eye level. Hence,
according to Brozick, to release the "dog", it is not necessary
for the operator's head to be above the carrier except, on
occasion, if the roof is low.

 A "significant and substantial" violation is described, in

section 104(d)(1) of the Mine Act, as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

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

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

        We have explained further that the third
   element of the Mathies formula "requires that the
   Secretary establish a reasonable likelihood that
   the hazard contributed to will result in an event
   in which there is an injury." U.S. Steel Mining Co.,
   6 FMSHRC 1834, 1836 (August 1984). We have emphasized
   that, in accordance with the language of section
   104(d)(1), it is the contribution of a violation to
   the cause and effect of a hazard that must be
   significant and substantial. U.S. Steel Mining


   Company, Inc., 6 FMSHRC 1866, 1868 (August 1984);
   U.S. Steel Mining Company, Inc., 6 FMSHRC 1573,
   1574-75 (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the
mine involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC
498 (April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 The first two elements of the Mathies test have been met,

inasmuch as I have found that there was a violation of 75.1003
supra. The evidence also clearly establishes that, due to the
violation herein, the hazard of contact with a 120 volt trolley
wire resulting in injuries was contributed to. The issue herein
is whether the third element of Mathies has been met, i.e.,
whether there was a reasonable likelihood of an injury producing
event, i.e. contact with the unguarded trolley wire. Certainly,
given the proximity of the wire to the roof of the carrier, there
was a possibility of the operator making inadvertent contact with
the unguarded wire in the procedure of "undogging" the pole, and
placing it on the wire. Petitioner has not described with
specificity the exact manner in which the undogging of the
trolley pole is performed, aside from Thomas' testimony that the
"dog" is spring loaded and two hands are required to perform this
procedure. Also, the distances between the operators hands and
the trolley wire that Thomas testified to are, at best,
estimates, and vary with the height of the roof and the height of
the operator. Petitioner has not proffered documentation of any
incidents where inadvertent contact with an unguarded wire has
resulted from "undogging" a pole from a carrier of the type in
issue, and placing it on a trolley wire. For all these reasons,
I conclude that it has not been established that there was a
reasonable likelihood of contact with the wire. Accordingly, it
has not been established that the violation herein was
significant and substantial.

III. Penalty

 According to Thomas, the cited condition would have been

obvious to a trained foreman, as it was obvious to him.
Also, on July 30, 1990, October 11, 1990, November 12, 1991,
and November 25, 1991, Respondent had been previously cited for
not having a guarded trolley wire at a man-trip station, and
Respondent paid the penalties assessed for these violations.
Further, Thomas indicated that, prior to the date of the
citation, at issue, he had a discussion with the mine foreman,
and John Haizer, the superintendent, with regard to how much
guarding was necessary. I conclude that Respondent's negligence
herein was moderate. Further, considering the gravity of the
violation, as evidenced by Thomas' testimony that should one come

in contact with the electric trolley wire, burns or electric
shock could result, and considering the remaining factors set
forth in section 110(i) of the Act, I conclude that a penalty of
$300 is appropriate for this violation.

                          ORDER

 It is hereby ordered that (1) Respondent shall, within

30 days of this decision, pay a civil penalty of $300 for the
violation cited in Citation No. 3108919, and a civil penalty of
$930, based on the granting of the parties' Motion to approve a
settlement regarding Citation Nos. 3108711, 3108762, 3108920, and
3108604; (2) Order No. 3108710 (Docket No. WEVA 92-657-R) is
VACATED; (3) Citation No. 3108711 be withdrawn; and (4) Citation
No. 3108919 be amended to a violation that is not significant and
substantial.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

Charles M. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)

Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington
Road, Legal Department, Pittsburgh, PA 15241 (Certified Mail)

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