<DOC>
[DOCID: f:v9911.wais]
ISLAND CREEK COAL COMPANY
December 22, 1998
VA 99-11-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 22, 1998
ISLAND CREEK COAL COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. VA 99-11-R
: Order No. 7297950; 10/14/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : VP 8 Mine
ADMINISTRATION (MSHA), : Mine ID 44-03795
Respondent :
DECISION
Appearances: Elizabeth S. Chamberlin, Esq., Consol Inc.,
Pittsburgh, Pennsylvania, for the Contestant;
Robert S. Wilson, Esq., Howard N. Berliner, Esq.,
Office of the Solicitor, U. S. Department of Labor,
Arlington, Virginia, and Larry Coeburn, Conference
and Litigation Representative, Mine Safety and
Health Administration, Norton, Virginia, for the
Respondent.
Before: Judge Weisberger
I. Statement of the Case
This case is before me based upon a Notice of Contest filed
by Island Creek Coal Company ("Island Creek") challenging the
issuance by the Secretary of Labor ("the Secretary") of an order
issued under section 104(d)(1) of the Federal Mine Safety and
Health Act of 1977 ("the Act") alleging a violation of 30 C.F.R.
� 75.1725(c). On October 21, 1998, Island Creek filed a Motion
for Expedited Hearing. A conference call was convened on October
22, 1998, with counsel for both parties and it was agreed that
the matter be scheduled for hearing on November 12, 1998. On
that date a hearing was held in Abingdon, Virginia.
II. Findings of Fact and Discussion
On September 20, 1998, Elmer L. Deel, Jr., Island Creek's
general maintenance foreman, was responsible for supervising all
maintenance work being performed at the VP 8 Mine. In this
capacity he was supervising the installation of a new roller on
the 5A belt which was deengerized, but was not locked and
tagged.[1] Deel noted that the speed reducer which was a part of
the drive mechanism of the 5A belt, and attached to that belt,
needed oil. Deel told Ronnie Maggard, a maintenance foreman,
that he should add oil to the speed reducer. Deel did not tell
Maggard to make sure that the 5A belt was tagged and locked,
although Deel was aware that it was company policy to have the
belt tagged and locked prior to the performance of maintenance.
Maggard in turn told Charles David Miller, a rock dust motorman,
to add oil to the speed reducer, but did not tell him to lock and
tag out the belt. Miller climbed on a I beam located within arms
length of the speed reducer, and at a point 4 to 5 feet above the
5B belt which is located above the 5A belt and dumps material on
the 5A belt. Thomas K. Ray, an electrician, was asked by Miller
to assist in the task. Ray stood on the 5B belt, which had been
deenergized, in order to pump oil into a hose that Miller had
placed in the speed reducer to fill it with oil. The 5B belt was
unexpectedly energized and it traveled 400 feet carrying Ray with
it before it was stopped. Ray injured his hand, and as of the
date of the hearing had been off from work since September 20,
1998.
The order at issue, issued subsequent to an investigation,
alleges a violation of 30 C.F.R. � 75.1725(c)[2] in that
maintenance was being performed on the 5A conveyor belt drive ".
. . while the injured employee was positioned on top of the 5B
conveyor tail piece. The 5B conveyor belt drive was not locked
against motion. The 5B conveyor drive was started from a remote
location, . . . ." (Emphasis added). At the hearing, counsel for
the Secretary in his opening argument alleged as a basis for the
violation, that maintenance was being performed on the 5B belt as
an employee was on it, and that the 5B belt was not locked and
tagged. He also argued that the 5A belt was not locked and
tagged while it was being worked on.
III. Discussion
A. Maintenance on the 5B Belt
It is the Secretary's position, in essence, that maintenance
was being performed on the 5B belt, which was not locked and
tagged. The assertion that maintenance was being performed on
this belt is predicated upon the fact that, in adding oil to the
speed reducer, Ray was standing on 5B belt. I take cognizance of
the holding by the Commission that the purpose of section
75.1725(c), supra, is to prevent "to the greatest extent
possible," accidents in the use of equipment, and that "the
manifest intent of the regulation is to restrict repair of
machinery while the power is on." (Arch of Kentucky, Inc.,
13 FMSHRC 753, 756 (1991)). Nontheless, in order for section
75.1725(c), supra, to apply to the situations presented at the
5B belt herein, it must be established by the Secretary that
"repairs or maintenance" were being performed on that belt.
There is no evidence that any repairs were being performed on
that belt. The Secretary must thus establish that the action of
Ray in standing on the 5B belt in order to assist in the addition
of oil to the speed reducer located on the 5A belt, constituted
"maintenance" of the 5B belt.
In Southern Ohio Coal Company, 14 FMSHRC 978, 983 (June 25,
1992), the Commission set forth the essence of the term
maintenance as follows:
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).
Since no action was being taken by any miner to care for the
condition of the 5B belt, I find that it has not been established
that any maintenance was being performed on that belt.
The plain language of section 75.1725(c), supra, does not
contain any words that could reasonably be interpreted as
prohibiting a person from standing on one piece of equipment in
order to assist in the maintenance of another piece of equipment.
I thus find that no maintenance was being performed on the 5B
belt. Since neither repair nor maintenance was being performed
on the 5B belt, any conditions or circumstances relied upon by
the Secretary relating to that belt can not be the basis of any
violation under section 75.1725(c), supra.
B. The 5A Belt
The record establishes that on September 20, repairs were
being made to the 5A belt in the nature of replacement of a
roller. Also, maintenance was being performed in the addition of
oil to the speed reducer, a part of this belt. According to
section 75.1725(c), supra, if these activities are performed it
is mandated that: 1. The power be off, and 2. the machinery be
blocked against motion.[3] Hence, a violation is established
where maintenance is performed either with the power on, or where
the machinery is not "blocked against motion." The parties have
agreed that during the time in question the power was off at the
5A belt. It appears to be the Secretary's position that the
latter requirement in section 75.1725(c), supra, for "machinery"
to be "blocked against motion," was not being complied with
because the 5A belt was not "locked and tagged." It is true that
imposing such a requirement would fulfill the broad intent of
section 75.1725(c), supra, as described by the Commission in
Arch of Kentucky, supra. However, in evaluating the scope to be
accorded the language of a regulatory standard, the test to be
applied is whether the regulation gives a reasonably prudent
person notice that it prohibits the cited conduct. (Southern
Ohio Coal Co., 14 FMSHRC 978 (June 1992). Section 75.1725(c),
supra, does not give notice that it prohibits the cited conduct.
The plain language of section 75.1725(c), supra, requires that
"machinery" being repaired or maintained shall be "blocked
against motion." There is no requirement that the equipment or
circuits energizing the equipment be tagged and locked out. The
mere fact that it is the policy of Island Creek to require that
the power source to the belt be tagged and locked prior to
performing nonelectrical work on the belt does not, per se
establish that Island Creek was on notice that section
75.1725(c), supra, requires tagging and locking the power source.
There is nothing in the record regarding Island Creek's intent in
establishing such a policy. It is entirely possible that such a
policy was adopted by Island Creek in order to require a higher
standard of conduct than that set forth in section 75.1725(c),
supra.
I note the testimony of Thomas K. Ray, an electrician,
Charles David Miller, a motor man, and Tommy Lee Proffit, an
electrician, all employed by Island Creek that, in essence, they
were told by "management" that the "law" required locking and
tagging prior to working on belts. However, in reaching a
decision regarding the scope of section 75.1725(c), supra, I
place more weight upon the Commission's interpretation of the
requirement of this standard. I am guided by the Commission's
decision in Mettiki Coal Corp. 13 FMSHRC 760 (1991) interpreting
30 C.F.R. � 77.404(c), which pertains to surface coal mines, and
contains the exact same language as section 75.1725(c), supra.
In Mettiki, the operator was cited for an improperly functioning
electrical breaker in that the lock out device on the switch did
not function as it was designed. The Commission found that at
the time of MSHA's inspection that led to the issuance of the
citations at issue therein, there was no electrical work in
progress, but rather miners were making nonelectrical repairs to
the speed reducer for the belt that was powered by the breaker in
question. The Commission emphasized the distinction between
electrical work requiring devices to be locked out and tagged
pursuant to 30 C.F.R. � 77.501,[4] and mechanical repairs which
require, under section 77.404(c), supra, which parallels
section 75.1725(c), supra, that the power be off and the
machinery blocked against motion. The Commission, in setting
forth that locking and tagging out is not required, stated as
follows: "A lock out of the equipment or circuit is not
required. Thus, when mechanical repairs are being made to
mechanical equipment and there is no danger of contacting exposed
energized electrical parts, MSHA requires only that the power be
turned off and the machinery be blocked against motion."
(Mettiki, supra, at 766). Although the Commission's above
analysis may be construed to constitute dictum, nontheless it
constitutes a clear sound pronouncement of regulatory
interpretation, and accordingly should be followed.
Therefore, for the all above reasons, I conclude that there
is no requirement set forth in section 75.1725(c), supra, that
locking or tagging of a circuit is required prior to mechanical
work on a belt.[5] Accordingly, Island Creek did not violate
section 75.1725(c), supra, when its employees added oil to the 5A
belt and repaired it while the power was off, but when it was not
locked and tagged. Hence, the Contest is SUSTAINED.
ORDER
It is ORDERED that Island Creek's Notice of Contest is
SUSTAINED, and Order No. 7297950 shall be DISMISSED.
Avram Weisberger
Administrative Law Judge
Distribution:
Elizabeth S. Chamberlin, Esq., CONSOL Inc., Consol Plaza, 1800
Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
Robert S. Wilson , Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
dcp
**FOOTNOTES**
[1]:/ According to Deel, he had told Tommy Lee Proffit, the
section mechanic on the day shift, to lock and tag out the 5A
belt and the latter nodded his head. Proffit, in contrast,
testified that he had asked Deel if everything was tagged and
locked and the latter said "lets go" (Tr. 96). Later in his
testimony, he testified that Deel said that "[E]verything is
locked out. Lets go" (Tr. 103). In light of my finding (III,
infra) sustaining Island Creek's contest of the order at issue,
it is not necessary to resolve this conflict in testimony
relating to Island Creek's negligence.
[2]:/ 30 C.F.R. � 75.1725(c) provides, as follows:
"[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."
[3]:/ Section 75.1725(c), supra, provides for an exception
"where machinery motion is necessary to make adjustments." Both
parties agree that this exception does not apply to the instant
case.
[4]:/ The parallel requirement regarding underground coal
mines is forth in 30 C.F.R. � 75.511.
[5]:/ I find that the contrary interpretation argued the
Secretary is not reasonable, and it not entitled to difference
especially since it has not been embodied in any policy
statement.