OK & WV Coal Company

Plain-English summary

OK & WV Coal operated an underground coal mine where an electrician worked on a continuous miner's energized electrical panel. The electrician received a 450-volt shock and was pronounced dead at the hospital. Judge James A. Broderick found that the equipment should have been deenergized and that the electrician was not wearing required protective gloves, but found the glove violation was not related to the fatal accident. He affirmed both enforcement actions and assessed penalties of $2,500 for the deenergization violation and $100 for the glove violation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.509 and 75.1720(c)
• Outcome: Both enforcement actions were affirmed, with $2,600 in total civil penalties.
• Key point: The deenergization violation caused the fatal electrical accident, while the separate glove violation was found unrelated to it.

Full text (FMSHRC public release)

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 91-13
PETITIONER A. C. No. 34-01633-03520

      v.                             No. 1 Mine

OK & WV COAL COMPANY,
RESPONDENT

                          DECISION

Appearances: Robert A. Fitz, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas, for the
Secretary of Labor (Secretary);
A. F. Robinson and R. V. Bell, Madison,
West Virginia, for OK & WV Coal Company (OK & WV).

Before: Judge Broderick

STATEMENT OF THE CASE

 In this proceeding, the Secretary seeks civil penalties for

two alleged violations of mandatory health and safety standards
cited following an investigation of a fatal electrical accident
at the subject mine on January 12, 1990. Pursuant to notice, the
case was called for hearing in Tulsa, Oklahoma, on May 21, 1991.
Ronnie Wilburn, Paul Cash, James Vince Smedley and Harold Shaffer
testified on behalf of the Secretary. OK & WV did not call any
witnesses. At the close of the hearing, both parties waived their
right to file post hearing briefs, and each made a closing
argument on the record. I have considered the entire record and
the contentions of the parties, and make the following decision.

FINDINGS OF FACT

 1. OK & WV was the operator of an underground coal mine in

Okmulgee County, Oklahoma, from August 1989 to August 1990, known
as the No. 1 Mine. The mine is currently operated by another
company.

 2. The mine produced 31,834 tons of coal in 1989 and 32,098

tons in the first quarter of 1990. The operator decided "it was
impossible to make money there and we decided to sever our
contract and try to dissolve our business in Oklahoma" (Tr. 103).
I find that OK & WV was a small mine operator.

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3. From the time the mine opened and until January 12, 1990, OK &
WV was cited for 36 violations, none of which involved 30 C.F.R.
75.509 or 75.511. In view of the fact that the mine operated
for such a short period of time, I find that this history is not
such that penalties otherwise appropriate should be increased
because of it.

 4. Dover Varney was employed at the subject mine in January

1990, as an electrician. He was an experienced and certified
electrician, one of four employed at the mine. He had 13 years
mining experience, and had worked 4 months at the subject mine.
Mr. Ronnie Wilburn, the chief electrician and Mr. Varney's
supervisor, believed that Varney was the ablest electrician at
the mine including Wilburn.

 5. The crew on the day shift at OK & WV on January 12, 1990,

was having trouble with the continuous mining machine beginning
about 12:30 p.m. When they attempted to operate the machine, the
circuit breaker knocked out the power. The first shift
electrician Paul Cash was working on it.

 6. The chief electrician Wilburn and second shift

electrician Dover Varney went underground at about 2:00 p.m., on
January 12, prior to the beginning of the second shift. Cash and
Varney deenergized the miner and took off the control panel. They
disconnected the pump motor and planned to tram the miner from
the area. However, when they energized the miner and replaced the
panel, they were unable to start the miner.

 7. Leaving the miner energized, they again removed the

control panel. Varney looked in the compartment and saw that the
circuit breaker was "kicked." He checked the No. 1 circuit with
his voltmeter which showed no voltage. Wilburn, who stated that
he "wasn't that familiar with the machine," told Varney that he
thought there was still power on the machine (Tr. 40). Cash, who
was crawling away toward his tool box, and whose cap lamp had
dimmed, said "Dover, one breaker doesn't kill all the power in
that box" (Tr. 50).

 8. Varney replied, as he reached in the panel, "if it has

power on it, it's the first one I've ever. . . " At that moment
he received the electric shock from the 450 volt circuit. This
occurred about 5:00 p.m.

 9. The trailing cable was deenergized. CPR was administered

and Varney was taken to the surface and transported to the
hospital by ambulance. He was pronounced dead on arrival at 5:22
p.m.

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10. Varney was not wearing gloves at the time of the fatal
accident. The electricity apparently entered his body through his
forearm just below the elbow. He was kneeling on the wet floor at
the time.

 11. Chief electrician Wilburn was standing about 5 feet from

Varney when the accident occurred. He was facing Varney and
talking to him as found in 7. and 8. above. Cash, as I found
above, was crawling away from the machine.

 12. The cover to the control panel on the miner contained a

printed instruction that the trailing cable must be deenergized
before working in the compartment. Wilburn, however, was not
aware of this instruction prior to the fatal accident.

 13. On January 15, 1990, Federal Coal Mine Inspector Harold

Shaffer investigated the accident. He issued a 103(k) Order, a
104(d)(2) Order charging a violation of 30 C.F.R. 75.512, and a
104(a) Citation charging a violation of 30 C.F.R. 75.1720(c).

 14. On January 16, 1990, Inspector Shaffer issued a

modification of the 104(d)(2) Order to show the correct section
of 30 C.F.R. as 75.511.

 15. The order was terminated on January 16, 1990, after a

training course on locking out and tagging procedures was
presented to the mine's electricians by the mine manager and an
MSHA-qualified instructor.

 16. When the case was called for hearing, the Secretary

moved to amend the Proposal for Penalties and the 104(d)(2) Order
to charge a violation of 30 C.F.R. 75.509 rather than 30 C.F.R.
75.511. OK & WV did not object and the motion was granted

REGULATIONS

      30 C.F.R.   75.511 provides:

      No electrical work shall be performed on low-, medium-,
      or high-voltage 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. Locks or tags shall be removed only by
      the persons who installed them or, if such persons are
      unavailable, by persons authorized by the operator or
      his agent.

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30 C.F.R. 75.509 provides:

         All power circuits and electric equipment shall be
         deenergized before work is done or such circuits and
         equipment, except when necessary for trouble shooting
         or testing.

    30 C.F.R.       75.1720 provides in part:

         . . . each miner regularly employed in the active
         workings of an underground coal mine shall be required
         to wear the following protective clothing and devices:

                *                      *            *

         (c) Protective gloves when handling materials or
         performing work which might cause injury to the hands;
         however, gloves shall not be worn where they would
         create a greater hazard by becoming entangled in the
         moving parts of equipment.

ISSUES

 1. Whether the evidence establishes that OK & WV failed to

deenergize electric equipment before working on such equipment?

 2. If so, was it necessary to have the equipment energized

for trouble shooting or testing?

 3. Whether the requirement that protective gloves be worn

applies to the facts shown in this proceeding?

 4. If the two violations charged occurred, what are the

proper penalties therefor?

CONCLUSIONS OF LAW

 1. OK & WV was subject to the provisions of the Mine Act in

the operation of the subject mine, and I have jurisdiction over
the parties and subject matter of this proceeding.

 2. On January 12, 1990, OK & WV in the person of electrician

Dover Varney performed work on electric equipment, namely the
electric panel of a continuous mining machine without
deenergizing the machine.

 3. It was not necessary to have the machine energized while

performing the work for trouble shooting or testing.

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4. Therefore, a violation of 30 C.F.R. 75.509 is established by
the evidence in this proceeding.

 5. The protective clothing standard requires gloves to be

worn when performing work which might course injury to the hands.
The Secretary's Program Policy Manual July 1, 1988, interpreting
Section 75.1720(c) requires that "miners wear gloves whenever
they troubleshoot or test energized electric power circuits or
electric equipment." (Gx 11).

 6. Therefore the failure of Varney to wear gloves when

testing the energized electric circuit of the continuous miner
was a violation of 30 C.F.R. 75.1720(c).

 7. The fatal electrical accident resulted from the violation

of 30 C.F.R. 75.509 referred to in conclusion 4. Therefore, the
violation was extremely serious.

 8. OK & WV in the person of its chief electrician was aware

of the violation and observed its occurrence. On the other hand,
the chief electrician warned the victim of the danger. Further,
the victim was a highly qualified and certified electrician who
should have known not to reach in an energized circuit
compartment. These factor mitigate OK & WV's negligence.

 9. Considering the facts established on this record in the

light of the criteria in Section 110(i) of the Act, I conclude
that a civil penalty of $2500 is appropriate for the violation of
75.509.

 10. The evidence does not establish that the violation of 30

C.F.R. 75.1720(c) was related to the fatal accident. The
electric current entered the victim's body on his forearm below
the elbow which would not have been covered by a glove. He was
kneeling on the wet floor. OK & WV made gloves available, but
apparently did not require the miners to wear them. The violation
was of moderate gravity and resulted from ordinary negligence.

 11. Considering the facts established on this record in the

light of the criteria in Section 110(i) of the Act, I conclude
that a civil penalty of $100 is appropriate for the violation of
Section 75.1720(c).

                          ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Order No. 2929848 issued January 15, 1990, as amended is

AFFIRMED.

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2. Citation No. 2929857 issued January 16, 1990, is AFFIRMED.

 3. OK & WV shall within 30 days of the date of this order

pay to the Secretary of Labor the following civil penalties:

CITATION/ORDER 30 C.F.R. AMOUNT

2929848 75.509 $2500
2929857 75.1720(c) $ 100

                                      TOTAL   $2600

                            James A. Broderick
                            Administrative Law Judge