FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001
December 31, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 2002-61
Petitioner : A.C. No. 33-01159-04192
:
v. :
:
THE OHIO VALLEY COAL COMPANY, :
Respondent : Powhatan No. 6 Mine
DECISION
Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
Michael O. McKown, Esq., General Counsel, The Ohio Valley Coal Company,
Pepper Pike, Ohio, for Respondent.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of Civil Penalty brought by the Secretary of
Labor, acting through her Mine Safety and Health Administration (MSHA), against The Ohio Valley
Coal Company, pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 815. The petition alleges two violations of the Secretary's mandatory health and safety
standards and seeks a penalty of $50,000.00. A hearing was held in Wheeling, West Virginia. For the
reasons set forth below, I vacate one citation, affirm the other as modified and assess a penalty of
$5,000.00.
Background
The parties stipulated to the facts in this case. (Jt. Ex. 1.) They are set out below in narrative
fashion.
The Ohio Valley Coal Co. owns and operates the Powhatan No. 6 underground coal mine in
Belmont County, Ohio. The Ohio Valley Resources, Inc., a subsidiary of Murray Energy Corporation,
is the parent company of The Ohio Valley Coal Co.
At about 5:15 p.m. on April 19, 2001, the pre-shift examiners examining the 2nd Main North
belt heard a flapping noise somewhere around the stationary take-up roller at break 62. The plastic
mesh guarding the belt drive and take-up unit was in place and they were unable to determine the cause
of the flapping noise. The examiners did not report the noise in the pre-shift examiners book.
Later that evening, at about 8:30 p.m., Randy Brunner and Dennis Miller, two belt repairmen,
parked their jeep at break 61 so that they could repair the 1st Main North belt wings, located near
break 60. During the repairs, Brunner returned to the jeep to get some parts. While there he observed
a jeep park at break 62. He could tell by the cap light that there was only one person, but was unable
to identify who it was. As they were finishing the job, the repairmen could see a cap light at the 2nd
Main North belt drive take-up unit, about 180 to 200 feet away. The 1st Main North belt was not shut
down during the 15 minutes while the repairs were performed.
Approximately one minute after completing the job and returning to their jeep, the repairmen
heard a voice calling for help. Looking toward the spur switch, they saw the unidentified miner running
and staggering along the track and then falling to the mine floor. They ran to the miner and discovered
that it was Thomas Ciszewski, the belt foreman. Ciszewski was missing his left arm and had facial cuts.
While Ciszewski was being tended to underground, Miller went to the accident site to try to
find the arm. It was lying outside of the guarding in the walkway on the return side of the 2nd Main
North belt conveyor, adjacent to the take-up cart. Miller took the arm back to where Ciszewski was.
Ciszewski was carried to the surface where he was pronounced dead at 9:00 p.m.
MSHA was notified of the accident at 9:20 p.m. An initial response team arrived at the mine at
10:15 p.m. A 103(k) order, 30 U.S.C. � 813(k), was issued, preliminary information was collected,
an investigation was begun and photographs, measurements and drawings of the accident scene were
collected. The team found that the two guard panels adjacent to the take-up unit on the return side had
been removed from their top hangers at one end and were hanging down on the mine floor, creating a
two inch gap at the top and a six inch gap at the bottom between the panels. In this condition, the
panels could be swung inward or outward. There was approximately 26 inches of space between the
guarding and the moving belt, which normally operates at 700 feet per minute (about 8 mph). A steel
jack handle, measuring 1 x 24 inches, was found partially inside the guarded area and partially in the
walkway.
An MSHA Accident Investigation team, as well as investigators from Ohio, arrived at the mine
on April 20, to continue the investigation and conduct interviews. The investigators determined that a
grease hose, which had gotten wrapped around the shaft of the stationary take-up roller on the track
side of the belt, was making the flapping noise heard by the pre-shift examiners. They concluded that
the accident had occurred when Ciszewski's left arm contacted and was caught in the pinch point
between the moving belt and the stationary roller of the belt take-up unit.
As a result of the investigation, two citations were issued to the company. Citation No.
7088894 alleges a violation of section 75.1722(a) of the Secretary's mandatory health and safety
standards, 30 C.F.R. � 75.1722(a), because the guarding on the belt drive had been removed from the
hangers, allowing access to the belt and roller. (Jt. Ex. B.) Citation No. 7089484 charges a violation
of section 75.1725(c), 30 C.F.R. � 75.1725(c), in that:
Based on evidence revealed during the accident investigation,
Thomas M. Ciszewski failed to comply with the cited regulation, when
he attempted to repair or perform maintenance on the belt take-up unit,
while the belt and take-up unit were still in operation and not blocked
against motion. Thomas M. Ciszewski, foreman, was fatally injured on
April 19, 2001, while conducting assigned duties on the 2nd Main
North belt conveyor. While attempting to assess or repair a noise
problem on the return walkway side of the belt take-up roller, Mr.
Ciszewski had displaced two guarding panels installed on hangers
around the belt take-up unit so that he could position himself within the
confines of the guarding. Evidence indicates that his left arm was
detached from his body at the shoulder, when he became caught in the
pinch point between the moving belt and the take-up stationary roller
causing his death shortly thereafter.
(Jt. Ex. C.)
Findings of Fact and Conclusions of Law
The company concedes that the guarding violation occurred. (Tr. 194.) With regard to the
second citation, however, Ohio Valley claims that the Secretary has failed to prove that it violated the
regulation. The Secretary maintains that the Respondent violated both regulations. However, the
Secretary's position, with regard to the second citation, is not supported by a preponderance of the
evidence.
Citation No. 7088894
This citation alleges a violation of section 75.1722(a), which requires that: "Gears; sprockets;
chains; drive, head, tail, and takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and
similar exposed moving machine parts which may be contacted by persons, and which may cause injury
to persons shall be guarded." The evidence that the guards, which were in place during the pre-shift
examination, were found, immediately subsequent to Ciszewski's accident, to have been removed from
their hangers so they could be swung open, clearly supports the operator's concession that this
regulation was violated.
Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), 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." A violation is properly designated S&S "if, based upon the
particular facts surrounding that 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 (January 1984), the Commission set out four criteria that
have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).
Evaluation of the criteria is made in terms of "continued normal mining operations." U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(December 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious nature. Mathies, 6 FMSHRC at
3-4.
Turning to these criteria, I make the following findings: (1) there was a violation of a safety
standard, section 75.1722(a); (2) removing the guarding from the pinch points of an operating belt
contributed to the danger of being caught in a pinch point; (3) there was a reasonable likelihood that a
miner would be caught in a pinch point which was not guarded, while the belt was running, and suffer an
injury; and (4) there was a reasonable likelihood that such an injury would be reasonably serious in
nature. Manifestly, the removal of the guarding was a significant contributing cause to the fatal accident,
making it "significant and substantial." Walker Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997).
Accordingly, I so conclude.
Citation No. 7089484
This citation charges a violation of section 75.1725(c), which provides that: "Repairs 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." The company
argues that Ciszewski was performing neither repair nor maintenance, rather he was performing an
inspection, and that, therefore, section 75.1725(c) is not applicable to what happened. (Tr. 192-93.)
It is the Secretary's position that assessing what repair or maintenance is required is included within the
scope of the regulation. (Jt. Ex. C, Tr. 99-105.)
No one knows exactly what Ciszewski did or why he did it. It appears unlikely, however, that
he was trying to repair the flapping noise by reaching in to remove the grease hose. Corporate Safety
Director Jerry Taylor testified that:
I don't believe there's no way that Mr. Ciszewski was reaching in to
pull out that grease hose. He couldn't even see it vibrate or going
around. I was there when we started the belt back up after the fatality,
before the grease hose was removed. You could hear the noise, but
you couldn't see the grease hose. That belt is running at 700 feet a
minute and knowing Tom and the size of that belt, it's 54 inches wide
with like one-inch thick rubber.
There's no way that Tom Ciszewski would reach in there to try
to pull that hose out. How he got entangled in the belt, sir, I have no
idea, but I cannot for the life of me believe that he is with all the
common sense and the experience that that individual has that he would
reach in there to try to grab a hold of something that he couldn't see
that was making noise. It just there's no logic to that at all to me.
(Tr. 155-56.) MSHA Inspector Charles Thomas, who was in charge of the investigation of the
accident, agreed Ciszewski was probably not trying to grab the grease hose because: "I think with a
man with that much experience and worked around belts, and there's probably been some near misses
in his career, that it would be a foolish thing to do to grab that grease hose." (Tr. 106.)
Since the evidence does not indicate that Ciszewski was trying to repair the belt, then he must
have been assessing the situation to determine what repairs were needed. Consequently, whether his
failure to turn off the power and block the belt against motion, when performing that function, was a
violation, depends on whether merely assessing the problem is included in "repairs or maintenance."
The Commission has held that when "the language of a regulatory provision is clear, the terms of the
provision must be enforced as they are written unless the regulator clearly intended the words to have a
different meaning. See, e.g. Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October 1989)
(citing Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-43
(1984))." Walker Stone, 19 FMSHRC at 51.
The Commission has defined the words "repair" and "maintenance," in a similarly worded
regulation, as follows:
The term "repair" means "to restore by replacing a part or putting
together what is torn or broken: fix, mend . . . to restore to a sound or
healthy state: renew, revivify . . . ." Webster's Third New
International Dictionary, Unabridged 1923 (1986). The term
"maintenance" has been defined as "the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency: care, upkeep .
. ." and "[p]roper care, repair and keeping in good order." Id. at
1362; A Dictionary of Mining, Mineral, and Related Terms 675
(1968).
Id. In addition to these definitions, "perform" is defined as "to carry out or bring about: accomplish,
execute . . . ." Webster's Third New International Dictionary 1678 (1993).
Reading these definitions together, it is evident that the regulation means that fixing, mending or
keeping machinery in a state of repair shall not be carried out until the power is off and the machinery
blocked against motion. Plainly, it connotes action and deals with the physical acts of fixing, mending or
keeping in a state of repair. It follows that it does not include assessing what repair or maintenance is
needed. Accordingly, I find that the regulation is plain and unambiguous on its face and that it does not
apply to this situation.
This is not to say that Inspector Thomas was incorrect in saying that the proper way for
Ciszewski to have investigated the flapping noise was to first shut down the belt line, only that
Ciszewski's failure to do so was not a violation of this regulation. Therefore, the citation will be
vacated.
Civil Penalty Assessment
The Secretary has proposed a penalty of $15,000.00 for the violation in Citation No.
7088894. However, it is the judge's independent responsibility to determine the appropriate
amount of penalty in accordance with the six penalty criteria set out in section 110(i) of the Act,
30 U.S.C. � 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984);
Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).
In connection with these criteria, the parties have stipulated that the Powhatan No. 6 mine
extracted 4,619,247 tons of coal from February 1, 2001, to February 1, 2002, which makes it a large
mine, and that Murray Energy extracted 17,647, 608 tons of coal during the same period, which makes
it a large operator. They have also stipulated that payment of the proposed penalty will not affect the
Respondent's ability to remain in business. In addition, I find that the company demonstrated good faith
in abating the violation in a timely manner.
The parties have also stipulated that the company had 848 violations in the two years preceding
the violation. Inspector Thomas testified that the operator had a higher than average history of
violations. (Tr. 84.) Based on his testimony and the Assessed Violation History Report, (Govt. Ex.1),
I find that Ohio Valley has a worse than average history of violations.
I find the gravity of this violation to be very serious. No more need be said than that a death
occurred.
Inspector Thomas determined that this violation was a result of "moderate" negligence on the
part of the company. The company argues that Ciszewski's negligence should not be imputed to it
based on the so-called Nacco defense. The Commission has summarized the imputation of negligence
and the Nacco defense as follows:
It is well established that the negligent actions of an operator's
foremen, supervisors, and managers may be imputed to the operator in
determining the amount of a civil penalty. See, e.g., Southern Ohio
Coal Co., 4 FMSHRC 1459, 1463-64 (August 1982). In Nacco
Mining Co., 3 FMSHRC 848 (April 1981), the Commission
recognized a narrow and limited exception to this principle. The
Commission held that the negligent misconduct of a supervisor will not
be imputed to an operator if: (1) the operator has taken reasonable
steps to avoid the particular class of accident involved in the violation;
and (2) the supervisor's erring conduct was unforeseeable and exposed
only himself to risk. 3 FMSHRC at 850. The Commission
emphasized, however, that even a supervisory agent's unexpected,
unpredictable misconduct may result in a negligence finding where his
lack of care exposed others to risk or harm or the operator was
otherwise blameworthy in hire, training, general safety procedures, or
the accident or dangerous condition in question. 3 FMSHRC at 851.
Wilmot Mining Co., 9 FMSHRC 684, 687 (April 1987).
Here the second part of the test is clearly met. Ciszewski's conduct was unforeseeable and he
exposed only himself to risk.
Attempting to show that the operator had not taken reasonable steps to avoid this particular
class of accident, the Secretary offered the testimony of Randy Brunner, a rank-and-file miner. He
claimed that other than his fellow belt repairman, Dennis Miller, no one trained him to do belt repair.
(Tr. 27-28.) When asked if he had ever done belt repair work without shutting the belt down, he
replied: "Yeah, we've dropped hot rollers out. I have. And other minor stuff on it. We just shut the
switches off to cut flappers off and drop rollers to the remote switches. We never tagged them out and
locked them out, I never have." (Tr. 29.) He also testified that he had removed a guard from a belt to
"look at splices" while the belt was running. (Tr. 30.)
When asked if there were safety procedures the belt repairmen were supposed to follow,
Brunner said: "If it was splices and stuff like that, they're supposed to lock them out. You're supposed
to have your own lock. They always had one boss or somebody go lock them out, you know." (Tr.
32-33.) He later stated that he guessed there were safety procedures, but he was not aware of them.
(Tr. 39) When asked if anyone had ever discussed safety procedures with him, he stated: "No, not to
me. Not that I know of. I mean, I'm not saying they didn't because I'm not 100 percent sure." (Tr.
39.) Finally, he admitted that he had received new miner training and annual refresher training. (Tr.
40.)
To rebut this evidence, the company offered the testimony of Jerry Taylor and Roy Heidelbach,
mine superintendent. Taylor described the training offered at the mine as follows:
In their initial training when they're brought on board, they're
explained all the hazards of working around conveyor belts, around the
drives and so on, and about maintaining the guards in place and that the
guards have to be the belt has to be de-energized before the guards
can be removed. They're explained all the things, the remote switches,
how they can turn the belts off and on temporarily. And that they're
not to rely on remote switches as a means, excuse me, to de-energize
the belt. We want them to go to the breaker and de-energize it.
They're explained the procedures for removing structures on
the longwall, if they work on the lo[n]gwall tailpiece. It has a different
set of guidelines than the other ones do. And also not only on belts,
they're also given the procedures on de-energizing any type of
equipment before they work on it doing repairs and maintenance to the
equipment.
(Tr. 134-35.) He also testified that safety meetings were held "biweekly, sometimes more often"
y the mine safety director or a foreman. (Tr. 136.) Finally, he testified that "awareness meetings" were
periodically held for the entire workforce on a shift and that safety was covered at those meetings. (Tr.
137.)
Heidelbach testified concerning training that:
Well, there's a wide variety of subjects that are covered.
There are several different types of training. There's annual retraining,
which all employees have eight hours annually. There's also task
training, which involves any time an employee is working on a new task,
the supervisor or an experienced employee in that task may train him as
to the hazards and the things to look for on the job. And we also have
regular safety meetings that also discuss hazards and the proper work
procedures.
(Tr. 165.) He also testified that miners had been disciplined for failing to follow safety procedures. (Tr.
166-67.)
I find that the operator was neither blameworthy in its hiring, training, and general safety
procedures, nor was it answerable with regards to the accident or dangerous condition in question.
Ciszewski had close to 20 years experience in underground coal mines and was a very experienced
belt foreman. (Tr. 161.) There was no reason for the company to expect him to remove the guarding
while the belt was running and place himself in a position where he could fall into the pinch point.
Further, the testimony of Taylor and Heidelbach is entitled to more weight concerning the general safety
procedures at the mine, than the inconsistent testimony of a single rank-and-file miner, who was not
"100 percent sure." Finally, while the company has a worse than average history of violations, it does
not appear that they had an inordinate amount of guarding violations.
Consequently, I find that Ciszeski's conduct in removing the guarding was unforeseeable and
only he was exposed to risk and that the operator had taken reasonable steps to avoid the type of
accident involved in the violation. The citation will be modified to show that the operator was not
negligent in the commission of this violation.
Taking all of the penalty criteria into consideration, I conclude that a $5,000.00 penalty is
appropriate for Citation No. 7088894.
Order
Accordingly, Citation No. 7089484 is VACATED and Citation No.7088894 is MODIFIED
by reducing the level of negligence from "moderate" to "none" and is AFFIRMED as modified. The
Ohio Valley Coal Company is ORDERED TO PAY a civil penalty of $5,000.00 within 30 days of
the date of this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution: (Certified Mail)
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th
Floor, Chicago, IL 60604
Michael O. McKown, Esq., General Counsel, The Ohio Valley Coal Company, 29325 Chagrin Blvd.,
Suite 300, Pepper Pike, OH 44122
/hs