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[DOCID: f:pn2000162.wais]

 
ROSEBUD MINING COMPANY
January 29, 2001
PENN 2000-162

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                        January 29, 2001

SECRETARY OF LABOR,           : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
 ADMINISTRATION (MSHA),       : Docket No. PENN 2000-162
               Petitioner     : A. C. No. 36-08410-03533
                              :
          v.                  : Rosebud No. 2
                              : Mine ID 36-08410
ROSEBUD MINING COMPANY,       :
               Respondent     :
                              :
ROSEBUD MINING COMPANY,       : CONTEST PROCEEDINGS
               Contestant     :
                              : Docket No. PENN 2000-109-R
          v.                  : Citation No. 7058096; 4/5/2000
                              :
SECRETARY OF LABOR,           : Docket No. PENN 2000-110-R
  MINE SAFETY AND HEALTH      : Citation No. 7058097; 4/5/2000
ADMINISTRATION (MSHA),        :
               Respondent.    : Rosebud No. 2
                              : Mine ID 36-08410

                            DECISION

Before:   Judge Weisberger

Appearances:   John M. Strawn, Esq., U. S. Department of Labor,
               Office of the Solicitor, Philadelphia,
               Pennsylvania, for the Petitioner; Joseph A. Yuhas,
               Esq., Hastings, Pennsylvania, for the Respondent.

     Statement of the Cases

     At issue in this consolidated proceeding are (1) a Petition
for Assessment of Penalty alleging two violations by Rosebud
Mining Company ("Rosebud") of 30 C.F.R. Section 75.523-2(c) on
two different pieces of equipment, and a violation by Rosebud of
30 C.F.R. Section 75.1722(b), and (2) Notices of Contest filed by
Rosebud challenging the citations referred to in the Secretary's
Petition.  Pursuant to notice, the matter was scheduled and heard
in Kittanning, PA.   Subsequent to the hearing which was held on
September 21, 2000, the parties each filed proposed findings of
fact and a brief.

     Findings of Fact

           Citation No. 7058098

     Prior to the hearing in this matter the Secretary had filed
a motion seeking approval of a settlement regarding citation No.
7058098 for which it had previously sought a penalty of $184.00.
The motion seeks approval of a settlement to reduce the proposed
penalty to $131.00.  Based on the representations set forth in
the Secretary's motion, the documentation in the file, and
considering Section 110(i) of the Federal Mine Safety and Health
Act of 1977, I find that the proposed settlement is appropriate
under the terms of the Act, and accordingly I approve it and
grant the motion.

          Citation Nos. 7058096 and 7058097 (Violation of 30
C.F.R. 75.523-2)

               Inspector Lorenz's Testimony - The Roofbolter

     Don W. Lorenz, an MSHA supervisory coal mine and health
inspector, was present at Rosebud's Mine No. 2, an underground
coal mine, when it was inspected on April 5, 2000.  As part of
the inspection, a roofbolter was examined.  The bolter, when
being trammed from one working place to another, is operated from
a compartment.  In contrast, when the bolter is engaged in
bolting at the working face, it is operated from the inch-tram
controls located outside a compartment in the center of the
bolter.  The bolter may be stopped by operating brakes or
depressing a start/stop switch.  In addition, the bolter is
equipped with a panic bar.  The bar is three quarters of an inch
in diameter, and extends 18 inches above the floor of the bolter.
It is readily accessible to the miner operating the bolter from
either inside of the compartment, or at the inch-tram controls.
The panic bar is designed to de-energize the bolter should a
miner push against it or lean his body against it, and it is to
be used only in an emergency to quickly de-energize the bolter.
According to Lorenz, pressure applied to the panic bar from a
horizontal or vertical direction would cause it to de-energize
the bolter.

     Lorenz testified that Dan Barron, an MSHA inspector whom he
assisted, tested, with a gauge, the amount of pressure required
to operate the panic bar.  The gauge, which had not been
calibrated by either Lorenz or Barron prior to its use, is
approximately 8 inches long, and one half inch in diameter.  If
the tip of the gauge is placed against an object, and pressure is
applied against the top of the cylinder, the cylinder moves
downward and a reading may be taken of the amount of pressure
applied.[1]  Lorenz indicated that approximately seven readings
were taken at various points along the panic bar in the area of
the inch-tram controls.  Barron held the gauge either vertically,
"straight in", or at a 45 degree angle to the panic bar, and
pushed it with his palm against the bar.  More than 30 pounds was
required each time to de-energize the bolter.  Lorenz indicated
that he had told Barron to stop putting pressure on the gauge as
soon as the bolter stopped.

     On cross-examination Lorenz indicated that the panic bar had
moved less than 2 inches in de-energizing, that the gauge does
not recognize an application of pressure more than 34 pounds, and
that in a situation where only 10 pounds would be required to de-
energize the bolter, 30 pounds of pressure could still be exerted
against the bar.

     A citation was issued to Rosebud alleging a violation of 30
C.F.R. Section 75.523-2(c) which provides as follows :

     Movement of not more than 2 inches of the actuating bar
     or lever resulting from the application of not more
     than 15 pounds of force upon contact with any portion
     of the equipment operator's body at any point along the
     length of the actuating bar or lever shall cause
     deenergization of the tramming motors of the self-
     propelled electric face equipment.

     According to Lorenz, the violation was significant and
substantial.  In this connection he indicated that due to the low
height of the roof in the area where the roofbolter operates,
i.e. 36 to 38 inches, it is necessary to operate the bolter from
a kneeling position at the inch-tram controls.  Further,
according to Lorenz, since the entries at issue are 18 to 20 feet
wide, the bolter operator would be only 4 feet from a rib when
bolting the first row of bolts in a sequence, and he might be
squeezed against the rib by a sudden movement of the bolter.
Lorenz indicated that it is difficult for the bolter operator to
see a person stationed along or in front of the bolter.  Thus,
according to Lorenz, if the roofbolter would not be quickly
deenergized, it might hit this person, causing a crushing injury
to his legs or pelvis.

               Inspector Lorenz's Testimony - The Scoop

     According to Lorenz, the panic bar on the scoop essentially
functioned like one on the bolter, except that it was hinged at a
45 degree angle, and could be activated by being hit from any
direction.  In addition, the scoop also could have been stopped
by applying its brakes, or pushing a start/stop switch.
According to Lorenz, approximately 3 or 4 readings were taken by
putting pressure on the gauge against the panic bar on the scoop,
and that 24 pounds of pressure was required to move the panic bar
sufficiently to de-energize the scoop.  A citation was issued
alleging a violation of Section 75.523-2(c) supra.

     According to Lorenz, the violation was significant and
substantial.  He explained that due to the low height of the
roof, the operator of the scoop would have to stick his head out
from the compartment of the scoop in order to operate it, and
thus he could get his head caught against a rib or a curtain.  He
also noted that the travelway was muddy, and contained a lot of
rocks, and the scoop would slip from side to side in order to get
traction.  Also, he indicated that should the operator of the
scoop lose control the scoop it could knock out supporting cribs
that might be in the area, causing the roof to fall.  In such an
event a crushing injury could result.

               William C. Beasley's Testimony - The Gauge

     William C. Beasley, an MSHA professional engineer, is
employed as the chief of the quality engineering branch.  Rosebud
did not object to the Secretary's proffer of Beasley as an expert
in quality certification.  According to Beasley, in order to test
the accuracy of the gauge at issue, he clamped it and dropped
three different weights on the plunger, at differing speeds.
Each weight was dropped three times.  Beasley indicated that if
the weight was dropped very rapidly the readout on the gauge
varied by up to 2 pounds.  He also indicated that if a weight was
applied not directly above the tip of the gauge, the readout on
the gauge was reduced by 1 pound.  According to Beasley,
applying the weights not directly above the center of the gauge
but rather off to a side, replicates applying the gauge to a
surface at an angle.  He also indicated that if the "o" ring
should slide up the plunger, it could cause a variation of
approximately a pound.  Also, if the gauge is applied too
quickly, the value can be increased up to two pounds.  Beasley
concluded that the gauge was reasonably accurate within a range
of plus or minus 2 pounds.

     Beasley indicated that the tests that he performed were done
in September 2000.  He said that when the gauges were received by
MSHA in January 2000 they came with a certification from the
manufacturer, and there was no reason why the gauge would lose
its effectiveness from January to April.  He indicated that the
gauge spring is stable, that there are only a few things that can
cause it to go out of calibration, and that no field adjustment
is possible.  He opined that this particular gauge was suitable
to provide good information regarding the release point for the
panic bars at issue.

     On cross-examination both Beasley and Lorenz conceded that
the inner portion of the gauge cylinder containing the spring is
not totally sealed, and that it is possible for moisture or dust
to get inside the cylinder.

                Testimony of Rosebud's Mine Superintendent

     Gerald Hefferan, Rosebud's general mine superintendent, was
the only witness proffered by Rosebud.  He indicated that he had
operated the scoop that was cited.  According to Hefferan, a
person engages the panic bar by pushing in an inward and upward
motion.  He indicated that to operate the panic bar on the
bolter, one needs to apply horizontal pressure.  Hefferan opined
that force applied to the panic bar in a downward or upward
direction would "probably" (Tr. 126) bend the bar or the gauge,
but would not de-energize the machine.

     Discussion

          Violation of 30 C.F.R. 75.523-2

     In essence, it is Rosebud's position that the Secretary has
failed to establish that it violated Section 75.523-2 supra.  In
this connection, Rosebud cites the fact that Barron, who applied
pressure to the bar with the gauge, did not receive any training
regarding usage of the gauge, nor was it calibrated prior to its
use.  Further, Rosebud argues inter alia, that "... [Barron]
could have inadvertently applied pressure at an improper angle,
applied pressure too long, applied pressure too rapidly, misread
the position of the "o" ring and got improper readings, or any
combination of those errors could have led to the improper
readings."  (Sic.)  Also, it is argued that since there is no
direct evidence that the gauge was applied at the correct angle
to deenergize the equipment, and since Barron was not called by
the Secretary, a finding on the issue adverse to the Secretary
might be inferred.  For the reasons that follow, I do not find
Rosebud's arguments, based on inferences, to outweigh the
Secretary's evidence.

     Section 75.523-2 supra, requires, as pertinent, regarding
panic bars on the equipment at issue, i.e., a bolter and a
shuttle car, that a "[m]ovement of not more than 2 inches of the
actuating bar ... resulting from the application of not more than
15 pounds of force upon contact with any portion of the equipment
operator's body ... shall cause deenergization of the tramming
motors of the ... equipment."

     Based on the uncontradicted and unimpeached testimony of
Lorenz, I find that, on the date cited, an MSHA inspector tested
the panic bar of the scoop and bolter at issue at several
locations with a handheld pressure gauge, and in each instance
the gauge indicated that an application of more than 15 pounds of
pressure was required to move the panic bar sufficiently to de-
energize the equipment.

     I find most significant Lorenz's testimony that after
Barron's measurements were taken, the gauge was offered to Mike
Green, Rosebud's mine foreman, and Hefferan, and that both "tried
it and got basically the same reading" (Tr. 25).  Since this
testimony was not contradicted by Hefferan, who subsequently
testified, I accept it.  Accordingly, since actual testing by
Rosebud's agents basically confirmed Barron's readings, I reject
Rosebud's argument, based only on inferences, that Barron's
testing was inaccurate.

     Further, I accept the unimpeached and uncontradicted
testimony of Beasley that the gauge at issue was verified to be
accurate.  Also, based on his expertise, I accept his
uncontradicted testimony that in testing of the gauge with
various weights placed off-center on the gauge, the actions of
applying the plunger of the gauge to the surface of a panic bar
at an angle would be replicated, and readings would not vary more
than 2 pounds.  Thus, even if Barron applied the gauge at an
angle, his reading would have been accurate within 2 pounds. More
importantly, I take cognizance of Beasley's opinion, that was not
impeached or contradicted, that the gauge in question was
suitable to provide good information regarding the release point
for the panic bars at issue.  Due to his expertise, I accept this
opinion.

     For all the above reasons, I find that the weight of the
evidence establishes that Respondent did violate Section 75.523-
2(c) regarding the panic bars on the cited bolter and scoop.

           Significant and Substantial

     A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act 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."
30 U.S.C.  814(d)(l).  A violation is properly designated
significant and substantial "if based upon 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 Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

          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.

     In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:

     We have explained further that the third element of the
     Mathies formula "requires that the Secretary establish
     a reasonable likelihood that the hazard contributed to
     will result in an event in which there is an injury."
     U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
     1984).  We have emphasized that, in accordance with the
     language of section 104(d)(1), it is the contribution
     of a violation to the cause and effect of a hazard that
     must be significant and substantial.  U. S. Steel
     Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
     1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).

     Rosebud did not impeach or contradict the opinion of Lorenz
that the violation herein contributed to the hazard of a miner
being injured, and that due to the positioning of the operator of
the bolter, as a consequence of the low height of the roof and
the difficultly of the operator to see a person along the bolter
or in front of it, the hazard of a crushing injury, contributed
to by the violation herein, was reasonably likely to have
occurred.  Further, Respondent did not impeach or contradict
Lorenz' testimony that such an injury would likely have been a
crushed leg or pelvis.  Regarding the scoop, Respondent did not
impeach or contradict Lorenz' testimony that, in addition to the
positioning of the operator which results in limited visibility,
the scoop traveled along a muddy travelway which caused the
machine to slip side to side in order to get traction.

     Within the above context, I find that both violations were
significant and substantial.

     Penalty

     The parties stipulated that Rosebud demonstrated ordinary
good faith in attaining compliance after the issuance of the
citations at issue, and that the assessment of a penalty would
not effect its ability to continue in business.  Taking these
factors into account, along with the Respondent's size of
Rosebud's business as stipulated to by the parties, and it's
history of violations, as stipulated to by the parties, the lack
of any evidence to indicate that Rosebud's negligence was more
than low, and the gravity of the violation as indicated by the
type of injuries that could have resulted, I find that penalties
of $184.00 are appropriate for each of the two violations.

     Order

     It is Ordered that, within 30 days of this Decision, Rosebud
pay a total civil penalty of $499.00.

                              Avram Weisberger
                              Administrative Law Judge

Distribution: (Certified Mail)

John M. Strawn, Esq., U. S. Department of Labor, Office of the
Solicitor, 170 S. Independence Mall West, Suite 630 East,
Philadelphia,  Pennsylvania, 19106-3306

Joseph A. Yuhas, Esq., 1133 Old Miller Road, Hastings,
Pennsylvania, 16646

/sct

**FOOTNOTES**

     [1]:When pressure is applied to the tip of the gauge, it
depresses a spring loaded plunger which slides an "O"ring to a
numbered position on the plunger indicating the pounds of applied
pressure.