<DOC>
[DOCID: f:cyprus.wais]
CYPRUS CUMBERLAND RESOURCES CORPORATION
November 24, 1997
PENN 95-75
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 24, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 95-75
:
CYPRUS CUMBERLAND RESOURCES :
CORPORATION :
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen,
Commissioners
DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977 ("Mine Act" or "Act"), 30
U.S.C. � 801 et seq. (1994). At issue is the validity
of a safeguard issued by the Mine Safety and Health
Administration ("MSHA") at the Cumberland Mine, owned
and operated by Cyprus Cumberland Resources Corporation
("Cyprus Cumberland"), and whether Cyprus Cumberland
violated the safeguard. Commission Administrative Law
Judge Jerold Feldman concluded that the safeguard was
valid and that Cyprus Cumberland violated it, and
assessed a $100 penalty. 18 FMSHRC 718, 725-26, 730-31
(May 1996) (ALJ). The Commission granted Cyprus
Cumberland's petition for discretionary review
challenging the judge's determinations regarding the
validity and violation of the safeguard. For the
reasons that follow, we affirm the judge's conclusion
that the safeguard is valid, and reverse his
determination that Cyprus Cumberland violated it.
I.
Factual and Procedural Background
Cyprus Cumberland operates the Cumberland Mine, an
underground coal mine in Greene County, Pennsylvania.
The mine uses a track haulage system to transport
miners and equipment. 18 FMSHRC at 719; Tr. 63. Four
types of vehicles are used on the track system:
mantrips that carry personnel (Tr. 95, 269-70);
modified mantrips called "duckbills" that have a
modified open compartment at one end for carrying
supplies (Tr. 95, 97, 177, 270); small locomotive-type
vehicles called "motors" that are used to haul
equipment such as rockdust cars through the mine (Tr.
96, 244); and small, slow-moving personnel carriers
called "crickets" (Tr. 95, 270).
In 1980, Cyprus Cumberland installed a system of signal
lights to control traffic on the track system at the
Cumberland Mine. 18 FMSHRC at 719. Red lights at each
end of track sections designated as "blocks" can be
turned on or off at either end of the blocks. Id.
Operators of track vehicles are supposed to turn a
block's lights on upon entering a block, then turn the
lights off upon exiting the block. Id. An activated
block light signals track vehicle operators that
another vehicle is in a block they are approaching.
Under company policy, more than one vehicle can occupy
a block at the same time. Id. at 721. An operator
approaching a block with its signal light on must "wait
for a reasonable length of time, then proceed with
caution." Id. at 719. Cyprus Cumberland warns its
equipment operators to [s]top before pulling onto the
main line from any switch. Make sure nothing is coming
before pulling out. Remember there may be more than one
piece of equipment in a block light.
Id.
On October 25, 1993, MSHA Inspector Robert Santee
encountered a block light that apparently had been left on by a
track vehicle operator after exiting a block. Id. at 720. In
response, Santee issued a safeguard requiring, in relevant part,
. . . track haulage equip[ment] operators to
use the block lights installed along supply
track haulage at the mine, to clear such
lights (turn off after each use) in order to
assure approaching haulage equipment a clear
road exists and also only 1 piece of haulage
equipment shall be operated in the same block
light except [motors]. . . .
18 FMSHRC at 720 (quoting Safeguard No. 3655478). This safeguard
was modified on November 1, 1993 to delete the requirement that
only one piece of equipment at a time be operated in a block, and
to further require that vehicles operating in the same block
maintain a minimum distance of 300 feet and communicate "by some
means, to be assured the signal block light will be turned off
after the last haulage equipment exits the light block."
Subsequent Action No. 3655478-01 (modifying Safeguard No.
3655478).[1]
On July 14, 1994, as Inspector Santee was conducting an
inspection of the mine, the mine's maintenance foreman, Doug
Conklin, entered the mine in a duckbill operated by mechanic Mark
Zuspan and traveled down the 57 Mains track to where it
intersected the 1A block of the 55 North track. Id. at 722.
After curving off to the left of the 57 Mains, the 55 North track
runs in a straight line for 1,200 feet. Id. As Conklin and
Zuspan approached the intersection, they saw a motor hauling two
rock dust cars and a trailing motor stopped just inby the
intersection. Tr. 177. Conklin testified that the motors and
rock dust cars (the "haulage train") were waiting for the
duckbill "to switch out of their way, so they could continue out
of the mine." Id.
As the haulage train moved past the duckbill, the operator
of the first motor signaled to Conklin and Zuspan that he would
leave the 1A block light on for them. 18 FMSHRC at 722. The
operator of the second motor, however, apparently turned off the
light, unbeknownst to Conklin or Zuspan. Id. Before Conklin and
Zuspan passed the light, a cricket entered the far end of the
block and its operator turned on the block light that had just
been turned off by the operator of the second motor. Id. In the
cricket was Inspector Santee, accompanied by representatives of
the company and the miners. Id. Conklin and Zuspan then passed
the block light under the mistaken belief that it had been left
on for them by the operator of the first motor. Id. At first,
Conklin and Zuspan could not see down the full length of the 1A
block due to the short curve at the intersection of the two
tracks. Id. at 723. As soon as they entered the 55 North
straightaway, however, they saw the cricket approaching them;
Santee also saw the duckbill pulling into the block. Id.
Although the two vehicles were approaching each other, "Zuspan
had plenty of time and pulled into the 55 North switch [to wait]
for the cricket to pass." Id.; see also Ex. J-1. Thereafter,
Santee issued Order No. 3672055, charging an unwarrantable and
significant and substantial ("S&S") violation of Safeguard No.
3655478.[2] 18 FMSHRC at 723. The Secretary subsequently
proposed a $2800 penalty, which Cyprus Cumberland contested.
The judge found that the safeguard on which the contested
order was based was valid. Id. at 724-25. He reasoned that,
although Cyprus Cumberland had no obligation to install a block
light system, once it did so, the company became "responsible for
maintaining the system and ensuring that its personnel comply
with its block light safety procedures." Id. at 724. The judge
found that because the light that had been left on "manifested a
failure to adhere to Cumberland's block light procedures,"
Inspector Santee acted within his discretion when he concluded
that this failure posed a transportation hazard and that a
safeguard was needed to ensure compliance with the mine's block
light procedures. Id. Finally, the judge concluded that "the
safeguard, as amended, adequately set forth the corrective
measures required." Id. at 724-25.
The judge also found that a violation occurred as alleged in
Order No. 3672055. Id. at 725-26. The judge determined that the
safeguard set forth four requirements: (1) that equipment
operators use the block signal lights; (2) that they turn the
lights off after exiting a block; (3) that equipment operating in
the same block maintain a safe distance to allow them to stop
within the limits of visibility, but never closer than 300 feet;
and (4) that operators in the same block communicate by some
means to assure that the lights will be turned off after the last
equipment exits the block. Id. at 725. He found that Conklin
and Zuspan complied with all but the last of these requirements.
Id. at 725-26. The judge concluded that because "there was a
failure of communication between them and the dustcar motormen to
assure that there was no misunderstanding concerning the status
of the [1A] block lights," the Secretary had proven a violation
of the safeguard. Id. at 726. Concluding that the violation was
not S&S or the result of the operator's unwarrantable failure,
the judge assessed a $100 penalty. Id. at 727-31.
II.
Disposition
On review, Cyprus Cumberland argues that the judge erred in
affirming Safeguard No. 3655478 because it was not validly
issued. C.C. Br. at 10-22. The company contends that the judge
failed to scrutinize Inspector Santee's assessment of whether a
hazard existed under an objective standard, as the company argues
he should have. Id. at 12-16. Purporting to apply such a
standard, Cyprus Cumberland argues that leaving a block signal
light on did not create a hazard. Id. at 16-18. The company
also argues that Santee failed to justify either his issuance of
the safeguard or the terms of the safeguard itself. Id. at
18-22. As to the violation, Cyprus Cumberland argues that the
judge impermissibly broadened the scope of the safeguard to apply
to vehicles outside a particular block, and that because the
safeguard did not apply to the duckbill operated by Conklin and
Zuspan, the judge erred in finding a violation. Id. at 23-26.
In response, the Secretary argues that Santee was justified
in issuing the safeguard because of his concern that "the miners
were routinely leaving block lights illuminated regardless of
whether the block was cleared of equipment, [and that] a miner
would eventually `take it for granted' that a block that had its
light illuminated was cleared of equipment and enter it when it
was in fact not cleared of equipment." S. Br. at 11. As to
whether Cyprus Cumberland violated the safeguard, the Secretary
contends that "[t]he failure to communicate in this case . . .
occurred within the 1A block," and therefore the judge was
correct in finding a violation. Id. at 16 (emphasis in
original).
A. Validity of the Underlying Safeguard
Under section 314(b) of the Mine Act, the Secretary may
issue "[o]ther safeguards, adequate in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and
materials." 30 U.S.C. � 874(b). In order to issue such a
safeguard, an inspector must determine that there exists an
actual transportation hazard not covered by a mandatory
standard and that a safeguard is necessary to correct the
hazardous condition. Southern Ohio Coal Co., 14 FMSHRC 1, 8
(January 1992) ("SOCCO II"). He must also specify the
corrective measures an operator must take. Id. The
Commission reviews the Secretary's issuance of a safeguard
under an abuse of discretion standard. Id. at 9.
Inspector Santee considered that a transportation hazard was
created when a block light was left on after an equipment
operator had departed that block. 18 FMSHRC at 724; Tr.
57-58. The judge's conclusion that Santee's determination
was within the inspector's discretion is both legally sound
and supported by substantial evidence.[3] Santee's concern
that if the lights were not used, equipment operators could
have been lulled into habitually disregarding them (Tr. 57),
appears well grounded and not overly speculative.
Regardless of Cyprus Cumberland's policies, Santee did not
abuse his broad discretion to issue the safeguard based on
his concern. See SOCCO II, 14 FMSHRC at 8 ("An MSHA
inspector possesses authority to decide whether a safeguard
should be issued at a mine without consulting with
representatives of the operator."). Accordingly, we affirm
the judge's conclusion that Safeguard No. 3655478 was
validly issued.
B. Violation of the Safeguard
We have held that, because safeguards are issued by MSHA
inspectors without the procedural protections of notice and
comment rulemaking, they must be strictly construed in
determining whether a violation has occurred. Southern Ohio
Coal Co., 7 FMSHRC 509, 512 (April 1985) ("SOCCO I"). Here,
the judge interpreted the safeguard as requiring, among
other things, track haulage equipment operators to
"communicate, by some means," with haulage equipment
operating in the same block "to be assured the signal block
light will be turned off after the last haulage equipment
exits the light block." 18 FMSHRC at 725. The judge
concluded that Cyprus Cumberland violated this requirement
because "there was a failure of communication between
[Conklin and Zuspan] and the dustcar motormen to assure that
there was no misunderstanding concerning the status of the
block lights as [the] duckbill entered the 1A block." Id.
at 726.
Strictly construed, the safeguard refers to "equipment
operating in the same block light" and the signal lights for
that block. Subsequent Action No. 3655478-01 (modifying
Safeguard No. 3655478). The safeguard addresses
communications that must occur between operators of track
haulage equipment operating in the same block regarding the
signal lights for the block within which they are operating.
Counsel for the Secretary conceded at oral argument before
the Commission that, to make out a violation, the Secretary
had the burden of establishing that both the haulage train
and duckbill were in the same block at the time of the
failure to communicate, and that they failed to communicate
about the lights for the block they shared. Oral Arg. Tr.
at 21-22. Whether a violation has occurred thus depends on
the exact locations of the duckbill and haulage train when
the alleged failure to communicate occurred.
The parties disagree on this dispositive factual issue. The
Secretary argues that "[t]he failure to communicate in this
case . . . occurred within the 1A block." S. Br. at 16
(emphasis in original). Cyprus Cumberland responds that
"[w]hen the front motorman waved at Mr. Zuspan as he pulled
past, they were both outside the 1A block." C.C. Reply Br.
at 5. The judge made no explicit finding on this issue, but
impliedly found that the pieces of equipment were outside
the 1A block when the failure to communicate occurred. See
18 FMSHRC at 722.[4]
Substantial evidence supports the judge's conclusion. When
they entered the mine, Conklin and Zuspan traveled down the
57 Mains to its intersection with the 1A block of the 55
North haulage track, where they met the haulage train. Id.
The leading motor of the train was stopped on the 55 North
haulage track just inby the intersection. Tr. 177. The
trailing motor, behind two rock dust cars, was inby the
block light for the 1A block, which was illuminated. Id. at
180. Conklin and Zuspan maneuvered their duckbill further
up the 57 Mains inby the intersection to allow the haulage
train to pass. 18 FMSHRC at 722. In fact, since the
haulage train was traveling outby, the only place the
duckbill could have been moved was further along the 57
Mains inby its intersection with 55 North. Ex. J-1. In
testimony not rebutted by the Secretary, Conklin explained:
I got out of the motor, I threw the
switch. Mark [Zuspan] proceeded inby the
switch up the straight [of 57 Mains]. I
threw the switch back for the turn. The rock
dust crew pulled out of the switch, proceeded
outby on the 57 [Mains] Haulage, I threw the
switch back for the straight. Mark brought
the duckbill back up the straight, passed the
switch, I threw it for the turn, went to the
duckbill and we proceeded around the turn.
Tr. 180-81; see also Ex. J-1. By the time Conklin and Zuspan
entered the 1A block, believing that the block light had been
left on for them by the operator of the first motor, the cricket
carrying Inspector Santee had turned on the light. 18 FMSHRC at
722. Thus, contrary to the Secretary's assertion that when the
alleged violation occurred, both the duckbill and motors were
within the 1A block, it would have been physically impossible for
the duckbill to have been in the 1A block as the haulage train
was exiting that block. The only block in which the two vehicles
could have been operating simultaneously was the 57 Mains.
Although the judge found this to be the case, he
nevertheless found a violation. Under the terms of the
safeguard, however, and as the Secretary has conceded (Oral Arg.
Tr. at 21-22), the duckbill operators and the motormen were not
obligated to communicate regarding the status of the 1A block
lights because they were not operating in that block
simultaneously. Accordingly, we reverse the judge's finding of a
violation of the safeguard.
III.
Conclusion
For the foregoing reasons, we affirm the judge's conclusion
that Safeguard No. 3655478 was validly issued, and we reverse his
conclusion that Cyprus Cumberland violated the safeguard.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: The judge misquoted the modification as stating, in
relevant part: "Haulage equipment operating in the same block
light shall communicate, by some means, to be assured the signal
block light will be turned off after the last haulage equipment
exits the last block." 18 FMSHRC at 721 (emphasis added to
misquoted word).
[2]: The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), which
establishes more severe sanctions for any violation that is
caused by "an unwarrantable failure of [an] operator to comply
with . . . mandatory health or safety standards." The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
� 814(d)(1), which distinguishes as more serious any violation
that "could significantly and substantially contribute to the
cause and effect of a . . . mine safety or health hazard."
[3]: When reviewing a judge's factual determinations, the
Commission is bound by the terms of the Mine Act to apply the
substantial evidence test. 30 U.S.C. � 823(d)(2)(A)(ii)(I).
"Substantial evidence" means "`such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's]
conclusion.'" Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,
2163 (November 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
[4]: The judge found that as the duckbill approached the
intersection of the 57 Mains and 55 North, the haulage train was
"about to enter the 57 Mains." 18 FMSHRC at 722. The judge
found that "Conklin [then] exited the duckbill to throw the track
switch so Zuspan could pull the duckbill past the 55 North
haulage." Id. Thus, the judge found that, before the duckbill
entered 55 North, it moved to a location beyond the intersection.
The only such location to which the duckbill could have moved was
the 57 Mains just inby the intersection since the haulage train
was blocking access to the 55 North haulage.
Commissioner Marks, concurring in part and dissenting in part:
For the reasons expressed in the majority opinion, I concur
in the conclusion that Safeguard No. 3655478 was validly issued and
join in affirming the judge's decision on that ground.
However, I part company with my colleagues because I would
also affirm the judge's decision that the Safeguard was violated by
the facts of this case. As the majority acknowledges, when the
failure to communicate over the block light occurred, the two
vehicles were operating simultaneously in the same block of
the 57 Mains. Slip op. at 6; 18 FMSHRC at 722. The Safeguard
requires that "haulage equipment operating in the same block light
shall communicate . . . to be assured the signal block light will
be turned off after the last haulage equipment exits the light
block." 18 FMSHRC at 721; Subsequent Action No. 3655478-01
(modifying Safeguard No. 3655478). The Safeguard directly applies
here; both vehicles were operating in the same block and there was a
miscommunication that resulted in having the adjacent block light 1A
turned off when a vehicle was entering that block rather than
when exiting the block. Therefore, the judge's finding of a violation
of the Safeguard is supported by substantial evidence in the record
and is a sensible interpretation of the Safeguard.
Under the auspices of strict construction, the majority
would only apply the Safeguard's protection when equipment and
lights are located in the same block. Slip op. at 6. Such a
narrow reading defies common sense because it overlooks that vehicles
traveling in the same block will often need to communicate about
lights on adjacent and intersecting blocks so as to prevent potentially
fatal crashes. Strict construction should not be
slavishly adhered to at the expense of safety. In fact, the majority
has taken a stricter view than even the language of the Safeguard
warrants. The Safeguard does not specify that the "same" signal
block light be extinguished after the last vehicle exits the block
light. Subsequent Action 3655478-01. The more reasonable
view is that of the judge - that the Safeguard is violated when two
haulage equipment operators operating in the same block fail to
communicate such that a light in an adjoining block, which one of the
vehicles has just exited and one is about to enter, gives the wrong
signal, thus permitting a third vehicle to enter and potentially
cause a serious collision. See 18 FMSHRC at 726. The Safeguard does
not expressly preclude the judge's reading and I believe it is the
only reasonable construction of the Safeguard that would further the
safety and remedial goals of the Mine Act.
Accordingly, I dissent and would affirm the ruling of the
judge.
Marc Lincoln Marks, Commissioner
Distribution:
R. Henry Moore, Esq.
Buchanan Ingersoll
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Cheryl Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041