U.S. Steel Mining Co., Inc.

Plain-English summary

U.S. Steel Mining operated the Gary No. 50 Mine in West Virginia. MSHA cited the company after an inspector found that an emergency stop cord on a Long-Airdox feeder had been wrapped around the switch box and disconnected. Judge Jerold Feldman found that the Secretary had not shown the feeder was unsafe under 30 C.F.R. § 75.1725(a), especially after acknowledging that feeders with the controls completely removed were not being cited. He vacated Citation No. 3580959 and dismissed the proceeding.

Decision snapshot

• Cited provisions: 30 U.S.C. § 820(a); 30 C.F.R. § 75.1725(a)
• Outcome: Citation No. 3580959 was vacated and the matter was dismissed.
• Key point: The Secretary did not establish that the cited feeder was unsafe under the applicable standard on the theory presented in this case.

Full text (FMSHRC public release)

.
U.S. STEEL MINING CO., INC.
December 2, 1996
WEVA 96-115

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                       December 2, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. WEVA 96-115
Petitioner : A. C. No. 46-01816-03939
v. :
: Gary No. 50 Mine
U.S. STEEL MINING CO., INC., :
Respondent :
:

                                     DECISION

Appearances: Ira L. Lee, Conference and Litigation Representative,
U.S. Department of Labor, Mine Safety and Health
Administration, Mount Hope, West Virginia, for the
Petitioner;
Gary R. Kelly, Esq., United States Steel Corporation,
for the Respondent.

Before: Judge Feldman

 This matter was heard in Beckley, West Virginia, on August 20,

1996. The parties' posthearing proposed findings of fact and
      conclusions of law, and reply briefs have been considered in the
      disposition of this proceeding. This proceeding concerns a petition
      for assessment of civil penalty filed by the Secretary of Labor
      against the respondent corporation pursuant to section 110(a) of
      the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C.
      § 820(a). The petition seeks to impose a civil penalty of $220.00
      for an alleged unsafe condition on the respondent's Long-Airdox
      feeder in violation of the mandatory safety standard in section
      75.1725(a), 30 C.F.R. § 75.1725(a). This mandatory standard
      provides:

      Mobile and stationary equipment shall be maintained in
      safe operating condition and machinery or equipment in
      unsafe condition shall be removed from service
      immediately.

Preliminary Findings of Fact

 The pertinent facts surrounding the alleged violation are

not in dispute. This case concerns a feeder manufactured by the
Long-Airdox Corporation (Long-Airdox). Shuttle cars dump coal on
the feeder conveyor which carries the coal to a crusher where
large lumps of coal are broken into smaller pieces. The coal is
discharged out the other end of the crusher onto a beltline that
transports the coal to the surface. There are three-quarter inch
continuous link chains welded into brackets in front of the
crusher assembly. These chains are designed to prevent large
piles of coal from jamming the receiving section of the crusher.
These chains would not prevent the extremities of an individual
who had stumbled on the energized conveyor from contacting the
crusher.

 A fatal accident occurred in early 1977 involving a

Long-Airdox feeder when a feeder operator was dragged into the
crusher as he attempted to cross over the moving conveyor. As a
result of this accident, beginning in 1982, the Long-Airdox
Corporation modified the design of its feeders to include
emergency stop controls. The Long-Airdox emergency stop control
is a cord, hung at approximately shoulder level across the
conveyor, that is connected to a stop switch located on the side
of the feeder. The purpose of this cord is to enable someone in
the feeder hopper area to de-energize the machine if it became
energized while he was in this crusher area.

 Despite Long-Airdox's safety modification, coal operators

routinely remove the emergency stop controls before placing
feeders in service to eliminate production delays associated with
nuisance tripping of the stop control during the coal loading
process. In this regard, at the time of Sylvestor's February 5,
1996, inspection, seven feeders were in service at the
respondent's No. 50 Mine. Most, if not all, of these feeders
were placed in service after Long-Airdox modified its feeders to
include emergency stop controls. With the exception of the cited
feeder which had the emergency stop control partially removed,
none of the other feeders were equipped with emergency stop
controls.

 The Mine Safety and Health Aministration (MSHA) policy

concerning whether the removal of emergency stop controls on
feeders is a violation of section 75.1725(a) is inconsistent.
MSHA Inspector John B. Sylvestor, Jr., testified that MSHA
inspectors in District Three interpret section 75.1725(a) as
requiring feeders to be equipped with emergency stop controls.[1]
By contrast, District Four inspectors do not require emergency
stop controls under section 75.1725(a).[2] The respondent's No.
50 Mine is located in District Four.

 On February 5, 1996, Sylvestor issued Citation No. 3580959.

The citation alleged the respondent was not maintaining its
Long-Airdox feeder (Serial No. 54-2070), located in the
north section of its No. 50 Mine, in safe operating
condition in violation of section 75.1725(a) because the
emergency stop control cord installed by the manufacturer
had been removed. Sylvestor issued the citation because he
observed the emergency pull cord was wrapped around the
switch box on the right hand side of the feeder and that the
power source leading from the switch box to the electrical
panel had been removed. At the time the citation was
issued, Sylvestor was aware that none of the respondent's
other feeders had emergency stop cords. However, no other
feeders were cited under section 75.1725(a). Sylvestor did
not consider these to be in violation because the emergency
stop cords and switches had been removed entirely. Although
Sylvestor expressed reservations over the wisdom of removing
the emergency stop cords, he testified that, under the
District Four interpretation of section 75.1725(a), on the
date of his inspection, he did not consider these feeders to
be "unsafe". (Tr. 68-69).

Ultimate Findings and Conclusions

 The issue in this case is whether the respondent's removal

of an emergency stop cord on the cited feeder, by wrapping the
cord around a switch on the side of the feeder and disconnecting
the switch, renders the feeder "unsafe" in violation of section
75.1725(a). It is well settled that MSHA is not estopped from
citing a violation simply because the violation was overlooked
during prior inspections. King Knob Coal Company, Inc., 3 FMSHRC
1417, 1421-22 (June 1981). Throughout this proceeding, however,
the Secretary has "admit[ted] that the cited regulation,
30 C.F.R. § 75.1725(a), established no mandatory requirement
that a factory installed safety device be kept on equipment
put in service." See Sec. Reply Br. at p.4. Therefore, the
Secretary concedes MSHA's failure to cite feeders without
emergency stop cords was a conscious decision rather than an
oversight. The Secretary is consequently not entitled to
the anti-estoppel protection expressed in the Commission's
King Knob decision.

FOOTNOTES

 [1]:  MSHA District Three has jurisdiction in northern

West Virginia, Pennsylvania and Maryland.

 [2]:  MSHA District Four has jurisdiction in southern

West Virginia and Virginia.

 Although the Secretary admits, perhaps ill-advisedly, that

the complete removal of the emergency stop control cord and
switch from the feeder is not prohibited, he argues, for reasons
not made clear in this proceeding, that the partial removal of
the emergency cord is unsafe under section 75.1725(a). The
Commission has held that equipment is "unsafe" under section
75.1725(a) when a "reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous condition,
including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview of the
applicable regulation." Alabama By-Products Corp., 4 FMSHRC
2128, 2129 (December 1982).

 Given the position taken by the Secretary, permissible

corrective action in this case under the Alabama By-Products
standard would include complete removal of the emergency
stop cord and switch. Such removal is reasonably prudent if
there is a reasonable concern over ill-fated reliance on a
non-functioning cord. However, in this instance there is no
evidence that anyone would rely on the emergency cord given
its out of service condition and out of reach location at
the side of the feeder.
Absent a reliance related hazard, the Secretary is left in
the unenviable position of citing the respondent for an
"unsafe" dismantled and inoperative safety cord that the
Secretary concedes is not required in the first place.
Somehow, I miss the point.

 Consequently, I am unconvinced, based on the arguments made

by the Secretary in this case, that a reasonably prudent person
would recognize that the cited feeder was unsafe under section
75.1725(a). Accordingly, Citation No. 3580959 must be vacated.

 As a final note, the decision to vacate this citation is

based on the Secretary's troubling position in this case. While
the removal of a safety device installed by the manufacturer
without any equally effective safety alternative may constitute
prima facie evidence of unsafe equipment, as the trier of fact,
I cannot consider arguments that have not been raised. Common
sense, however, suggests that MSHA should rethink its
position.[3]

                            ORDER

 In view of the above, Citation No. 3580959 IS VACATED and

this matter IS DISMISSED.

                          Jerold Feldman
                          Administrative Law Judge

Distribution:

Ira R. Lee, Conference and Litigation Representative, U.S. Dept.
of Labor, Mine Safety and Health Admin., 100 Bluestone Road, Mt.
Hope, WV 25880-1000
(Certified Mail)

Robert Wilson, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)

Douglas White, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)

Gary R. Kelly, Esq., United States
Steel Corporation, 600 Grant
Street, Room 1580, Pittsburgh, PA
15219-4776 (Certified Mail)

/mca

FOOTNOTES

 [3]:   As  a  result of the subject citation issued by

Sylvestor, the Mine Safety Agency of the State of West
Virginia issued citations requiring the respondent to reinstall
emergency stop cords on their Long-Airdox feeders. (Tr. 193).