Texas Utilities Generating Company

Plain-English summary

Texas Utilities Generating Company faced two orders involving electrical work at the Sandow Mine substation. Judge Avram Weisberger found no violation of the transformer-enclosure rule because the employees had authorized entry and were supervised, so he dismissed Order No. 2838513. He found a separate lockout and tagging violation, but determined it was not significant and substantial or unwarrantable, modified Order No. 2838514 to a section 104(a) citation, and assessed a $20 penalty.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 77.501 and 77.509(c)
• Outcome: One order was dismissed, and the other was modified to a section 104(a) citation with a $20 penalty.
• Key point: A lockout violation may be serious without being significant and substantial when the evidence does not show a reasonable likelihood of injury.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-119
PETITIONER A.C. No. 41-00356-03538

          v.                      Sandow Mine

TEXAS UTILITIES GENERATING
COMPANY,
RESPONDENT

                              DECISION

Appearance: Thomas F. Lillard, Esq., Christopher R.
Miltenberger, Esq., Worsham, Forsythe,
Sampels, and Wooldridge, Dallas, Texas, for
the Respondent; Max A. Wernick, Esq., Jill
D. Klamm, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for the
Secretary.

Before: Judge Weisberger

                       Statement of the Case

 On August 11, 1986, the Secretary (Petitioner) filed a

Petition for Assessment of Civil Penalty for alleged violations
by the Respondent of 30 C.F.R. 77.501 and 30 C.F.R. 77.509.
Respondent filed its Answer on September 2, 1986. Pursuant to
notice, the case was heard in Austin, Texas on December 23, 1986.
William J. Ciesielka testified for the Petitioner, and Garren
Stroud, Thomas Nelson, and Robert Freyensee testified for the
Respondent. After taking testimony from the above persons, the
hearing was adjourned to allow the Parties to brief the issue as
to whether Respondent would be allowed to cross-examine Inspector
Ciesielka with regard to prior inconsistent statements and
actions indicating bias. The Parties submitted Briefs and Reply
Briefs. On February 4, 1987, an Order was issued allowing
Respondent to further cross-examine Inspector Ciesielka. On
February 19, 1987, the Petitioner filed a Motion for Continuance
which was not opposed by the Respondent. The motion was granted,
and the case was scheduled for April 7, 1987, in Austin, Texas.
On March 16, 1987, Petitioner filed a Motion for Indefinite Stay.
This motion was denied in an Order of March 19, 1987. On

April 1, 1987, Petitioner filed with the Commission a Petition
for Interlocutory Review of the Orders dated February 4, 1987 and
March 19, 1987, and also made a Motion to Suspend the hearing
scheduled for April 7, 1987. The Commission, in an Order dated
April 6, 1987, denied the Secretary's Petition for Interrogatory
Review and also denied to stay the hearing scheduled for April 7,
1987. At the hearing, William J. Ciesielka testified for the
Petitioner, and Paul Teinert, III, Garren Stroud, Robert
Freyensee, Gary Lane, Sam Philip Jordan, and Jim Roach testified
for the Respondent.

 Petitioner filed its Brief and proposed Findings of Fact on

June 18, 1987, and Respondent filed its Brief and proposed
Findings of Fact on June 19, 1987. Reply Briefs were filed by
Petitioner and Respondent on June 28 and June 29, 1987,
respectively.

Stipulations

 The Parties have stipulated as follows:

 a. The undersigned has jurisdiction over the Parties and

subject matter in this proceeding.

 b. The Sandow Mine No. 1, Mine I.D. No. 41-00356-03538, had

an annual tonnage in 1985 of 6,252,848. At the time of the
December 23, 1986 hearing, the projected tonnage of 1986 was 5.5
million.

 c. The Respondent had 39 inspection days in 1983; 36 in

1984; 44 in 1985; and 18 in 1986; and 77 over the previous 24
months.

 d. Respondent had 5 assessed violations in 1983; 29 in 1984;

60 in 1985; and 82 assessed violations over the previous 24
months.

 e. The fine proposed by Petitioner will not adversely affect

the Respondent's ability to continue in business.

 f. William Ciesielka, the Mine Safety and Health

Administration ("MSHA") Inspector, who issued the contested
citations, was a duly authorized representative of the Secretary.

 g. On February 26, 1986, an inspection was conducted by an

authorized representative, William Ciesielka, which resulted in
the issuance of the two orders which are in issue.

 h. The orders were issued with regard to two employees who

were involved in the digging of a trench, in a substation area,
that included a transformer that received 33,000 volts of power
coming into the transformer.

 i. The two employees involved, in digging the ditch, were pick

and shovel men, and were not electrically qualified personnel
within the meaning of the Act and the regulations.

 j. The two employees, in the substation area, did not work

on electrical switches. All work on the electrical circuits or
switches had been done prior to the entry of the two employees
into the substation area.

 k. The switch coming out of the transformer had energized

lines going into the top of the switch, and the switch was in the
open position. The switch was not tagged at the time of the
inspection.

 l. The trench, being dug by the two employees, was 10 feet

long, and located approximately 2 to 4 feet from the bottom of
the switch.

 m. The switch or circuit breaker was capable of being

locked.

 n. The abatement of Order No. 2838513 occurred within 3

minutes of notification of the alleged violation. The operator
removed the two employees from the area and undertook efforts to
activate the disconnect which prevented the 33,000 volts from
flowing into the transformer.

 o. The abatement of Order No. 2838513 occurred within 10

minutes of issuance. The operator pulled the power, which
prevented electricity from going into the transformer station,
and the pole used to pull the circuit breaker was tagged.

 p. The electrical work being performed was confined to the

480 volt circuit breaker switch.

                             Issues

 The issues are whether the Respondent violated 30 C.F.R.

77.501 and 30 C.F.R. 77.509(c), and, if so, whether the
violations were of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety
or health hazard, and whether the alleged violations were the
result of the Respondent's unwarrantable failure. If Sections
77.501, supra, and 77.509(c), supra, have been violated, it will
be necessary to determine the appropriate civil penalty to
assessed in accordance with Section 110(i) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. et. seq., (the Act).

                             Regulations

    30 C.F.R.   77.501, as pertinent, provides as follows:

         No electrical work shall be performed on electrical
         distribution circuits or equipment, except by a
         qualified person or by a person trained to perform
         electrical work and to maintain electrical equipment
         under the direct supervision of a qualified person.
         Disconnecting devices shall be locked out and suitably
         tagged by the persons who perform such work, except
         that in cases where locking out is not possible, such
         devices shall be opened and suitably tagged by such
         persons. . . .

 30 C.F.R.      77.509(c) provides as follows:

         "(c) Transformer enclosures shall be kept locked
         against unauthorized entry."

Findings of Fact and Conclusions of Law

Order No. 2838513

 Order No. 2838513 which was issued by MSHA Inspector William

J. Ciesielka on February 26, 1986, provides as follows:

         The 33 KV 2480 Transformer located at the bucket repair
         shed was not kept locked against unauthorized entry in
         that two mechanics (not electrical qualified) were
         inside the enclosure digging a trench. A qualified
         electrician was not at the site to directly supervise
         the work. A maintenance supervisor was in the area
         where he could observe the situation. Therefore this is
         an unwarrantable violation.

 The substation in question, located at Respondent's Sandow

Mine, contained a transformer, disconnecting device, and other
electrical equipment, and was enclosed by a chain-link fence.
According to the uncontradicted testimony of Respondent's
witnesses, on February 26, 1986, Respondent's Electrical Foreman
Garren Stroud instructed Respondent's electrician, Royce Mundine,

to cutoff the power at the main breaker in this substation,
remove the power cable from the bottom of the breaker, and remove
the cable from the substation area so that a trench could be dug
running from underneath the breaker box to the edge of the fence.
After the electrical cables were disconnected, Stroud explained
to Respondent's supervisor, Thomas Nelson, that a trench or ditch
had to be dug in the substation, and Mundine "laid it out" (Tr.
143). According to the testimony of Stroud, Mundine instructed
Robert Yurk and John Bland, the two mechanics who were to dig the
ditch, about the hazards that could exist within the substation
fence. In contrast, it was the testimony of MSHA Inspector
Ciesielka that when he subsequently arrived on the scene, on the
date in question, Yurk told him that "I don't know what I am
doing in here. This is an electrical job, and I know nothing
about electric." (Tr. 23). In resolving the conflict between
these versions, I note that Stroud's testimony was corroborated
to some extent by Nelson who testified that he was present when
Yurk was told, prior to time the ditch was dug, what he was to
avoid making contact with. Also, Stroud was actually with Mundine
on the date in question, and thus is competent to testify as to
what Mundine said. On the other hand, Ciesielka was not privy to
any conversations between Mundine and Yurk. Thus, based on the
credible testimony of Stroud and Nelson, I find that Mundine told
Yurk and Bland, in general, the hazards to avoid in digging the
ditch.

 Further, according to the uncontradicted testimony of

Nelson, Mundine was in the substation enclosure for about 15
minutes while the trench was being dug by Yurk and Bland. Nelson
testified that he had been told by Mundine that, in digging the
trench, "back up at all time so you won't back into the breaker
box" (Tr. 142). Nelson further testified that he was in the
substation while the men dug the ditch and he stood inside
between the gate and the breaker. Specifically, Nelson testified
that he was standing at the gate when Ciesielka and the Union
Representative Paul Tinert arrived at the scene on the date in
question. In this regard, Nelson's testimony was, in essence,
corroborated by Robert Freyensee, Respondent's superintendent,
who arrived at the substation, on the date in question, along
with Ciesielka. On the other hand, Ciesielka testified that when
he and Tinert approached the substation he observed two employees
inside digging a trench, and that there was no other personnel
inside. He also testified that when he arrived at the substation
area, he observed Nelson coming up from the bucket shed area. In
essence, Ciesielka's testimony was corroborated by Tinert. I
carefully observed the demeanor of all the witnesses testifying
on this issue, and find that Nelson and Freyensee were more
credible.

Thus, inasmuch as the credible evidence establishes that Nelson,
Yurk, and Bland were inside the substation, at the request of
Stroud, and had been apprised by Mundine, in essence, to avoid
contact with the electrical equipment, and inasmuch as Yurk and
Bland were being supervised by Nelson who was present in the
substation, I find that the substation was unlocked to provide
authorized entry. As such, I find that there has not been any
violation by Respondent of 30 C.F.R. 77.509(c).

Order 02838514

 Order 02838514 provides as follows:

      Electrical work was being perform on an electrical
      distribution circuit without the disconnecting devices
      being locked out and suitably tagged by the persons
      doing such work. The circuit going from the 7200T0480V
      transformer at the bucket repair shed was being
      relocated and a trench dug in the substation area
      inside the fence. A maintenance supervisor was near by
      in the area during observance of this condition and the
      qualified electrician was away, returning later with
      the mechanical/electrical supervisor. Therefore, this
      is an unwarrantable violation.

 On the date in question, within the substation area in

question, there was located a disconnecting device also referred
to as switch box or circuit breaker. This item was located in a
box that had a cover on it. It was stipulated that the box was
not tagged, but that the door was closed. There was no evidence
that the door was locked, but Ciesielka agreed that to open the
box would necessitate undoing snaps. A lever controlling power
from the box was located outside the box, and was in a down
position which would not allow electricity to flow out of the
box. The lever was not lock or tagged. Cables at the top of the
box were energized, but they were insulated. The box itself was
not energized. Because the power cable had been removed from the
box, there was no power going from the box to buildings and there
was also no power going to a number 6 cable coming out of a
second transformer inside the fenced in area.

 In actuality there is no dispute that a disconnecting

device, on the date in question, was not locked out and tagged.
In essence, it is Respondent's position, that Section 77.501,
supra, was not violated, inasmuch as all electrical work, in the
substation, had already been completed when the disconnecting
device was observed by Ciesielka to be untagged and unlocked.

The second sentence of Section 77.501, supra, unequivocally
prohibits having a disconnecting device that is not tagged or
locked out. Although the first sentence of Section 77.501, supra,
refers to persons performing "electrical work," there is no
language in either of the two remaining sentences of Section
77.501, supra, to limit their application only to instances where
electrical work is actually being performed. The manifest intent
behind the requirement of having disconnecting devices locked out
is to prevent the hazard of a injury being caused by a person
coming in contact with an energized object which has been
energized by a person inadvertently activating the disconnecting
device. Such a hazard is more likely when electrical work is
being performed, but also exists if authorized persons are in the
area performing other work. Accordingly, I find that Section
77.501, supra, has been violated.

 The failure to tag or lock the disconnecting device can only

be considered to be significant and substantial if, as a result
of this violation, there is a measure of danger to safety
contributed to, with a reasonable likelihood that the hazard
contributed to will result in a injury of a reasonably serious
nature (See Mathies Coal Company, 6 FMSHRC 1 (January 1984).
Petitioner's argument that the violation herein of Section
77.501, supra, is to be considered significant and substantial,
appears to be predicated upon the testimony of Ciesielka, that,
in essence, whenever a person is working in an area that has even
low voltages there is a hazard of electrocution upon making
contact with an energized part. However, the testimony of
Ciesielka upon cross examination, and the uncontradicted
testimony of Stroud, Respondent's supervisor of electricians,
establishes that the circuit breaker (also referred to as
disconnect box, switch box or disconnecting device), itself was
not energized. Further, their testimony establishes that the only
way that one could come in contact with a energized part of the
circuit breaker is to open it or shove something up the entry
hole at the bottom of the device where the wire comes out. Also,
although cables or conduits located on top of the breaker box
were energized they were 6 and 1/2 feet off the ground and
wrapped with insulation. Another breaker (Item 8 Respondent's
Exhibit 2), was 8 feet off the ground. Also, although Ciesielka
testified that there was a cable leading out of the breaker box,
I find based upon the credible testimony of Stroud that it was
not energized. Therefore, based upon all of the above, I conclude
that, although the breaker box in question was not locked or
tagged, it has not been established by Petitioner that this
violation would have resulted in the likelihood of an injury. I
thus conclude that the violation of Section 77.501, supra, was
not significant and substantial. (See Secretary v. Mathies Coal
Company, supra.)

 In its brief, Petitioner argues, in essence, that the fact that

there was no lockout or tagging procedure on the disconnecting
device constitutes "a serious lack of reasonable care." In this
connection, Ciesielka testified that he considered the
Respondent's negligence and rated it as "high" (Tr. 32). However,
in discussing the Respondent's negligence, Ciesielka testified
only to Respondent's alleged action in leaving unqualified people
working without the direct supervision of a qualified person in
an energized enclosure. He did not offer any analysis of
Respondent's negligence with regard to the violation of Section
77.501, supra. Thus, I find that the Petitioner has failed to
proffer sufficient evidence to support a finding that the
violation by Respondent of Section 77.501, supra, resulted from
its unwarrantable failure.

 I have considered all of the criteria in Section 110(i) of

the Act. All criteria have been stipulated to except the
Respondent's negligence and the gravity of the violation. I
conclude that the gravity was extremely low due to the lack of
likelihood of an injury as a consequence of the violation herein.
Also, I find that Petitioner has failed to establish any degree
of negligences on the Respondent's part. I therefore conclude
that a fine of $20 is appropriate herein for the violation of
Section 77.501, supra.

                             ORDER

 It is ORDERED that Order No. 2838513 be DISMISSED. It is

further ORDERED that Order No. 2838514 be modified to a Section
104(a) Citation. It is further ORDERED that Respondent pay the
sum of $20, within 30 days of the date of this decision, as a
civil penalty for the violation found herein.

                              Avram Weisberger
                              Administrative Law Judge