<DOC>
[DOCID: f:peabody.wais]
PEABODY COAL COMPANY
August 18, 1997
KENT 93-369
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 18, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 93-369
:
PEABODY COAL COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen,
Commissioners
DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners
This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et
seq. (1994) ("Mine Act"), involves a dispute between
the Secretary of Labor and Peabody Coal Company
("Peabody") regarding whether Peabody's violation of 30
C.F.R. � 75.601[1] was significant and substantial
("S&S").[2] In an earlier decision, Administrative
Law Judge Arthur Amchan determined that the violation
was S&S. 15 FMSHRC 2578, 2584-86 (December 1993)
(ALJ). The Commission subsequently vacated that
decision and remanded for further analysis, concluding
that the judge failed to apply the Commission's S&S
test in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984) consistent with Commission precedent. 17 FMSHRC
508, 510-12 (April 1995) ("Peabody I"). On remand, the
judge determined that the violation was not S&S.[3] 17
FMSHRC 811, 813-15 (May 1995) (ALJ). For the reasons
that follow, we reverse and remand.
I.
Factual and Procedural Background
The background facts in this proceeding are fully set
forth in Peabody I, 17 FMSHRC at 509, and are summarized
here. On December 14, 1992, Darold Gamblin, an
inspector from the Department of Labor's Mine Safety
and Health Administration ("MSHA"), inspected Peabody's
Martwick Mine, an underground coal mine in Muhlenberg,
Kentucky. 17 FMSHRC at 811. At the 3 South Panel
entries, the inspector observed two disconnecting
devices, or "catheads," which were plugged into a
transformer. Id. at 813. Both catheads were attached
to trailing cables leading to continuous miners located
at the face, a distance of approximately 250 to 300
feet. Tr. 38. One of the continuous miners, which had
been rebuilt and returned to service, was being
exchanged for the other miner. Tr. 89. Only one of
the catheads was labeled to indicate the equipment to
which its cable was attached. Tr. 42. The inspector
believed that, if the wrong cathead were plugged into
the transformer, a miner could get electrocuted or
crushed if he were working on or near the mistakenly
energized continuous miner. Tr. 40-41. Accordingly,
Inspector Gamblin issued a citation to Peabody alleging
an S&S violation of section 75.601.
Peabody conceded the violation but disputed the inspector's
characterization of the violation as S&S. Tr. 7. The matter
proceeded to hearing before Judge Amchan.
In his initial decision, the judge found that the
violation was S&S. 15 FMSHRC at 2584-86. In reaching his
determination, the judge attempted to harmonize the
test for a "serious" violation under the Occupational
Safety and Health Act, 29 U.S.C. � 651 et seq. (1994)
("OSHAct") with the Commission's S&S test under
Mathies, 6 FMSHRC at 3-4. Id. at 2581-84. In
addition, the judge found Peabody's violation to be
indistinguishable in any significant respect from the
operator's S&S violation of section 75.601 in U.S.
Steel Mining Co., 6 FMSHRC 1834 (August 1984) ("U.S.
Steel II"). Id. at 2586.
The Commission granted Peabody's petition for discretionary
review of the judge's determination. A majority of the
Commission concluded that the judge departed from
applicable Commission precedent in attempting to
harmonize the Commission's S&S test with the test for a
serious violation under the OSHAct. 17 FMSHRC at 510-
11. The Commission also determined that the judge
erred in concluding that the violation was S&S because
he could not distinguish the facts of this case from
those in U.S. Steel II. Id. at 511. It explained that
S&S determinations have been based upon the particular
facts surrounding the violation in issue. Id.
Accordingly, the Commission vacated the judge's
decision and remanded for further analysis. Id. at
512. Chairman Jordan, dissenting in part, voted to
affirm the judge's S&S determination. Id. at 514-15.
She concluded that the judge's decision was supported
by substantial evidence. Id. at 514. In addition, the
Chairman found the judge's conclusion consistent with
the Commission's resolution of the S&S question in U.S.
Steel II. Id. at 514-15.
In his decision on remand, the judge determined that
Peabody's violation of section 75.601 was not S&S. 17
FMSHRC at 813-15. He reasoned that there was not a
reasonable likelihood of injury resulting from the
violation because the older continuous miner would only
be in the same location as the rebuilt miner for 2 or 3
days, and a person could tell by process of elimination
which cathead belonged to the rebuilt miner. Id. at
814-15. The judge also relied upon evidence that it
was company practice for employees, prior to
disconnecting a cathead, to trace its trailing cable to
the transformer and for an employee performing work on
a miner to lock out power to the machine himself. Id.
Accordingly, the judge assessed a penalty of $50 rather
than the proposed penalty of $189 that he had assessed
in his initial decision. Id. at 815.
The Commission granted the Secretary's subsequent petition
for discretionary review, challenging the judge's determination.
II.
Disposition
The Secretary argues that the judge's determination
that Peabody's violation of section 75.601 was not S&S is
inconsistent with the purpose of the standard and is
not supported by substantial evidence. PDR at 4-5.[4]
She maintains that the purpose of section 75.601 is to
prevent miners from being forced to use a process of
elimination to identify the correct cathead to connect
or disconnect. Id. at 6. The Secretary contends that,
without proper labeling, the wrong cathead could be
plugged into the transformer, resulting in a reasonable
likelihood of injury to miners working on or near
mistakenly energized equipment. Id. at 7-8. Finally,
she argues that the Commission found a similar
violation to be S&S in U.S. Steel II. Id. at 9-10.
Accordingly, the Secretary requests that the Commission
reverse the judge's determination and remand for the
reassessment of a civil penalty. Id. at 10-11.
Peabody responds that the judge correctly determined
that the violation was not S&S. P. Br. at 7. It argues
that injury was not reasonably likely to result from
its failure to label one of the catheads because the
continuous miners would be in the same site for a brief
period of time, the catheads were distinguishable in
that one was cleaner and one was labeled, and
activation of the lights on the continuous miners would
reveal whether the correct cathead had been connected.
Id. at 3-5. Peabody also asserts that the likelihood
of injury was eliminated by its lock-out policy and the
practice at the mine to trace trailing cables to the
transformer before connecting or disconnecting
catheads. Id. at 5-6.
A violation is S&S if, based on 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 Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (April
1981). In Mathies, the Commission further explained:
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.
Id. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).
At issue is the third Mathies element. We conclude that
substantial evidence does not support the judge's determination
that injury was not reasonably like to result from Peabody's
violation.[5]
First, contrary to the judge's finding, evidence that both
continuous miners would be in the same site for 2 to 3 days
increased, rather than decreased, the likelihood that injury
would result from Peabody's failure to label one of the miners'
catheads. Under normal conditions, only one continuous miner is
usually used in a section of the mine. Tr. 89. At the time of
the inspection, circumstances were unusual in that there were two
continuous miners in one section. Tr. 42. The catheads of the
trailing cables of both continuous miners were plugged into the
same transformer and energized.[6] Tr. 42, 46-47. Inspector
Gamblin testified that, under such circumstances, a miner
instructed to turn the power off of the equipment would not know
which cathead to disconnect. Tr. 61. He stated that a person
working on the equipment might assume that the correct miner had
been turned off when it had not. Tr. 62. The inspector
explained that a person working on the mistakenly energized
equipment's electrical components or cable could be electrocuted,
and a miner working on the cutting head could be crushed. Tr.
40-41.
In addition, the return to service of a rebuilt continuous
miner is the type of work that would likely require miners to
connect or disconnect the equipment's cathead. Inspector Gamblin
testified that miners would handle catheads if they had problems
with the equipment or if they needed to disconnect power in order
to do mechanical or electrical work. Tr. 45. He stated that
installation of a continuous miner involves primarily electrical
work and that "they w[ere] having trouble with the miners
electrically and they had been back and forth to the power
station." Tr. 34, 45. Bob Epley, the chief engineer at the
mine, testified that when a rebuilt miner is exchanged for an
older miner, the older miner is not removed until it is
determined that "all [of] the bugs" have been worked out of the
rebuilt miner. Tr. 103.
Furthermore, although Peabody had a policy requiring a
person performing work on equipment to lock out power to the
equipment himself, that policy did not apply to trouble-shooting.
Tr. 110-11. Even if a lock were placed in the receptacle,
however, the cathead connected to the equipment requiring work
could still be plugged into the other receptacle at the
transformer. Tr. 62-63, 75-77. Both catheads for the continuous
miners were interchangeable and could be plugged into either
receptacle. Tr. 46. Thus, even if the lock-out policy were
followed, a continuous miner could still be mistakenly energized.
Moreover, the judge erred in finding that there was not a
reasonable likelihood of injury because miners could use a
process of elimination to distinguish between the catheads. In
U.S. Steel II, the Commission, concluding that injury was
reasonably likely to result from an operator's violation of
section 75.601, rejected the operator's argument that because
only one of two catheads was unmarked, a person would know the
identity of the cables through a process of elimination. 6
FMSHRC at 1838. The Commission explained that "relying on [the]
skill and attentiveness of miners to prevent injury `ignores the
inherent vagaries of human behavior.'" 6 FMSHRC at 1838 n.4
(quoting Great W. Elec. Co., 5 FMSHRC 840, 842 (May 1983)). See
also Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (a
miner's exercise of caution is not a factor in considering
whether violation is S&S). Here, although the cathead for the
rebuilt miner was cleaner than the other cathead, the area around
the transformer was "pitch dark" and the only light provided was
by cap lamps. Tr. 43. In addition, although one cathead was
marked, there is no evidence as to what the label actually read
and whether it distinguished between the two continuous miners.
Epley testified that the practice at the mine was to use
reflective tape with the "name of the piece of machinery on it.
Like a miner, it would be marked with a white reflector tape and
[`]miner['] wrote on it." Tr. 111-12. Thus, a person at the
transformer might not know that the labeled cathead was connected
to the older miner rather than the rebuilt miner.
Similarly, injury was not sufficiently reduced by Peabody's
practice requiring miners to trace a trailing cable from the
equipment to the transformer before disconnecting it. As the
inspector testified, miners handle catheads when there are
problems with the equipment. Tr. 44-45; PDR at 6. Here, if such
problems arose, a miner would have to trace approximately 250 to
300 feet of trailing cable to the transformer before he could
verify that he was disconnecting the correct continuous miner.
Tr. 38.
Finally, we find unpersuasive Peabody's argument that injury
was not reasonably likely because the continuous miners were
equipped with lights that are activated only when the miner was
plugged into the transformer, making it apparent whether the
correct machine had been energized. P. Br. at 4-5. As the
Commission has previously recognized, the purpose of the
standard's labeling requirement is to "prevent accidental
energization of equipment in the first instance." U.S. Steel
Mining Co., 10 FMSHRC 1138, 1143 (September 1988). In any event,
Inspector Gamblin testified that the lights on the continuous
miner would not burn, even though the miner was energized at the
transformer, if a breaker on the continuous miner had been turned
off or if the equipment's methane monitor had deactivated the
lights. Tr. 63-64.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination that Peabody's violation of section 75.601 was not
S&S. We remand to the Chief Administrative Law Judge for
reassignment and the reassessment of a civil penalty consistent
with this opinion.[7]
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: Section 75.601 provides in part:
Disconnecting devices used to disconnect
power from trailing cables shall be plainly
marked and identified and such devices shall
be equipped or designed in such a manner that
it can be determined by visual observation
that the power is disconnected.
[2]: The S&S terminology is taken from section
104(d)(1) of the Mine 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]: The judge also found that a violation of 30
C.F.R. � 75.701 by Peabody was not S&S. 17 FMSHRC at 813.
The Secretary did not seek review of that determination.
PDR at 2 n.1.
[4]: Pursuant to Commission Procedural Rule
75(a), 29 C.F.R. � 2700.75(a), the Secretary designated
his petition for discretionary review as his brief.
[5]: When reviewing an administrative law 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)).
[6]: In order to energize equipment, the cathead
must be plugged into the receptacle at the transformer,
and the breaker for that receptacle must be turned on. Tr. 66.
[7]: Judge Amchan has transferred to another agency.
Commissioner Marks, concurring:
For the same reasons expressed in my concurring opinion
in U.S. Steel Mining Co., 18 FMSHRC 862, 868-75 (June 1996),
wherein I suggested that the Mathies test be eliminated, I
concur, in result, with my colleagues' conclusion that the
violation is S&S. I further note that, since the issuance of
U.S. Steel, I have repeatedly extended, to operators and the
government, the opportunity to challenge the flawed Mathies
test (particularly the third element) in cases pending before
the Commission. However, to date, there has been no response.
Marc Lincoln Marks, Commissioner