Secretary of Labor v. New Mexico Potash Corporation

Read the official release (fmshrc.gov)

Plain-English summary

New Mexico Potash operated an underground potash mine in New Mexico. After a miner died while handling an energized power cable with a damaged outer jacket, the judge found violations for failing to protect electrical conductors from mechanical damage and for manually moving an energized cable without suitable insulated protection. The judge affirmed both citations, found the first violation negligent and the second violation non-negligent because the miner's conduct was not foreseeable, and reduced the proposed penalties to $9,000 and $1,500. The company was ordered to pay $10,500 total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.12004 and 57.12014
• Outcome: Both citations were affirmed. The penalties were set at $9,000 and $1,500, for a total of $10,500.
• Key point: The operator remained liable for the violations, while the judge treated the miner's unexpected conduct as a penalty-mitigation factor for the cable-handling citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF A D M INISTRA TIV E LA W JUDGES
                        2 SK YLINE, 10 th FLOOR
                         5203 LEESBURG PIK E
                   FA LLS CHURCH, V IRGINIA 22041

                         March 6, 1997

SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. CENT 96-91-M
Petitioner : A. C. No. 39-00170-05559
v. :
: Hobbs Potash Facility
NEW MEXICO POTASH CORPORATION, :
Respondent :

                            DECISION

Appearances: Daniel Curran, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas, for
the Secretary;
W. T. Martin, Jr., Esq., Carlsbad, New Mexico,
for the Respondent.

Before: Judge Barbour

 This is a civil penalty proceeding brought by the Secretary

of Labor (Secretary) against New Mexico Potash Corporation (New
Mexico Potash or the company) pursuant to sections 105 and 110
(30 U.S.C. ' 815, 820) of the Federal Mine Safety and Health Act
of 1977 (Mine Act or Act) (30 U.S.C. ' 801 et seq. (1994)). The
Secretary seeks the assessment of aggregate civil penalties of
$19,000 for two alleged violations of mandatory safety standards
found in Part 57 of the Secretary=s safety and health standards
for underground metal and nonmetal mines (30 U.S.C. Part 57).

 The case arises out of a fatal accident that occurred on

September 7, 1995, at the company=s Hobbs Potash Facility, an
underground potash mine, located in Lea County, New Mexico. The
accident involved the electrocution of a miner who was trying to
remove an energized power cable from an auxiliary fan. After the
accident, the Secretary=s Mine Safety and Health Administration
(MSHA) issued to the company citations for the violations. The
citations included findings that the violations were significant
and substantial (S&S) contributions to mine safety hazards.

 The company denied liability. It argued that the victim=s

death was caused by his own negligence, that no action by the
company contributed to the accident, and that the company should

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not be penalized for the victim=s actions. In the company=s
view, the imposition of civil penalties would violate the
company=s constitutional due process rights (Tr. 10-11).

 A hearing was conducted in Lovington, New Mexico, at which

the parties presented oral testimony and documentary evidence.

           THE ACCIDENT AND THE INVESTIGATIONS

 On September 7, Michael Buffington, a 28 year old miner, was

working underground at the mine. A shift change was in progress.
The old crew had left the area where Buffington was located. A
new crew was on its way to the area. Buffington and others were
preparing the area for the new crew (Tr. 29).

 Eugene Galvan, an underground maintenance mechanic at the

mine, went to the area. Galvan needed to weld some equipment
prior to the arrival of the new crew. Buffington was about to
take a break for lunch. As Buffington started to walk toward the
dinner hole, Galvan asked him to Aget ... some power to the
welder@ (Tr. 27). Buffington indicated that he would, and Galvan
turned to go the welder. In order to energize the welder
Buffington had to disconnect a power cable supplying electricity
to the section=s auxiliary fan and connect that cable to the
welder.

  The cable was approximately 175 feet long. It was energized

and was carrying 480 volts of electricity (Tr. 58, 68). The
cable was covered by a rubber outer jacket. Inside the jacket
were four insulated conductors and one insulated ground wire
(Tr. 50). The cable was attached to the fan at the nip. (A
Anip@ is defined as a Acontact end of [a] cable@ (U.S. Department
of the Interior, A Dictionary of Mining, Mineral, and Related
Terms (1968) at 750)).

 Galvan was on his way to the welder when he heard Buffington

yell. Galvin turned, and he saw that Buffington, who was wearing
cotton gloves, was holding the cable with both hands (Tr. 28,
112). Buffington continued to yell, and Galvan realized that
something was terribly wrong.

 Galvan ran about 150 feet to the circuit breaker panel where

he was joined by the section foreman, Lupe Rodriquez (Tr. 27).
The men shut off the electricity to the cable and Buffington fell
to the mine floor. Galvan and Rodriquez rushed to his side and
administered cardiopulmonary resuscitation. A short time later,
the rescue squad arrived and Buffington was taken to the
hospital, where he was pronounced dead.

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Page 3

 The Eddy County Sheriff=s Office and MSHA were advised of

the accident. Jim Estrada, a deputy sheriff, went to the mine to
investigate, as did MSHA Inspector Henry Mall and MSHA Special
Investigator Ronald Mesa.

 Estrada arrived first. When he got to the accident site,

Buffington=s body had been removed. That aside, the site was as
it had been at the time of the accident. Estrada viewed the
area. He noted especially that the ground where the accident
occurred as Amuddy@ (Tr. 21). Estrada then left the mine and
went to examine Buffington=s body. While viewing the body,
Estrada noted that there were burn marks on Buffington=s left
palm. (Tr. 24; Exh. P-7).

 Mall and Mesa reached the mine shortly after Estrada left.

First, they discussed the situation with company officials.
Then, they proceeded underground. They were accompanied by
Curtis Davidson, the company=s safety director (Tr. 47). The
accident scene had been cordoned off.

 Mall and Mesa inspected the area (Tr. 48, 87-88; Exh. P-9).

They agreed with Estrada that the floor in the area was muddy
(Tr. 81). In addition to the mud, Mall observed puddles of
standing water (Tr. 81).

 During the course of the inspection, Mall picked up and

examined the cable. It was not scraped or worn. This indicated
to Mall that the cable had not been in use for very long, perhaps
2 or 3 days at the most. Davidson agreed with this assessment
(Tr. 70, 79-80, 144; Exh. R-2).

 While looking closely at the cable, Mall found a small tear

in the cable=s outer jacket. The tear was located approximately
2 1/2 feet from the fan (Tr. 79, 88). The tear was about
1 1/2 inch long (Tr. 79). The tear exposed one of the cable=s
insulated power conductors for approximately 3/4 to 7/8 of an
inch (Id.; see also Exh=s P-10, P-11). Five or six strands of
the conductor=s internal cooper wires had broken through the
insulation and also were exposed. (Tr. 48, 69).

 Mandatory safety standard 30 C.F.R. ' 56.18002 requires a

person designed by the operator to examine each working place at
least once each shift for conditions that may adversely affect
safety and to record the results of the examinations. Mall
checked the report of the onshift examiner who inspected the area
prior to the accident. Mall wanted to find out if the tear in
the cable had been reported. It had not. Rather, the examiner
reported that everything on the section was Aokay@ (Tr. 49).

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 Mall and Mesa took photographs of the accident site and the

equipment that was involved in the accident. They also spoke
with miners about what had happened (Tr. 49). Based upon their
investigation, they concluded that when Buffington was asked to
get power to the welder, he took a fatal procedural short cut.
Instead of first disconnecting and locking out the power to the
cable, Buffington picked up the energized cable and tried to pull
or yank it out of the nip (Tr. 62-63). In the process,
Buffington touched the exposed wires of the conductor (Tr. 63).

 Mall also concluded the wet floor played a part in

Buffington=s death. In Mall=s opinion, had the floor been dry,
Buffington probably would have been severely shocked, but might
not have been electrocuted (Tr. 81-82).

 Mall and Mesa discovered they were not the only MSHA

personnel to visit the area where the accident occurred. On
September 7, shortly before the accident, another MSHA inspector,
who was conducting a regular inspection at the mine, traveled
through the area. The inspector was accompanied by Duane Morris,
the company=s underground safety supervisor (Tr. 143). Both men
saw the cable, but the inspector issued no citations involving
it.

 Morris visited the area again after the accident. He

believed that between the time he first saw the cable and the
time Buffington picked it up, someone -- he did not know who --
moved the cable a short distance, perhaps 5 to 15 feet (Tr. 170-
171).

 Morris also testified that during the inspection, he and the

MSHA inspector met Buffington. The inspector asked Buffington to
tape a defective cable. (The defective cable was not the one
that later was involved in the accident.) Morris and the
inspector watched as Buffington followed all of the proper
procedures. First, he deenergized the power to the cable. Next,
he locked out the cable=s circuit. Then, he applied the tape.
There was no indication that just a short time later Buffington
would fail to follow analogous procedures when he tried to
disconnect the auxiliary fan=s cable (Tr. 168).

 Another person who investigated the accident and who visited

the area where it occurred was Jerry Cline, a professional
accident investigator hired by the company. When he came to the
mine a few days after September 7, the area was still wet; or, as
Cline put it, was still covered with Aa thick coating of mud@
(Tr. 215). Cline=s view was that the wet floor Aprobably@
enhanced contact between Buffington and the electrical current
(Tr. 205).

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Page 5

 Cline did not believe that wet conditions were hazardous in

and of themselves, provided all Aequipment [was] up to snuff@
(Tr. 209-210). However, there were times when wet conditions
required greater vigilance on an operator=s part. Cline
explained that a Alot of water@ (Tr. 213) can cause the
Adegradation of . . . cables,@ and therefore that an operator
must be more attentive to the maintenance of equipment when
working in such areas (Tr. 213-214). Nonetheless, in Cline=s
opinion, the moisture where Buffington was electrocuted was not
extensive enough to warrant intensified precautions by the
company (Tr. 215).

 Cline agreed that when cables are moved in an underground

mine, they are subject to a Afairly abusive environment@
(Tr. 206). He also stated that in general a cable should be
inspected during the course of a shift if it is going to be
moved, or if work is going to be done on the equipment it
services (Tr. 205-206). However, if the cable is moved 25 feet
or less, as the auxiliary fan cable apparently was, Cline did not
believe it needed to be examined Aunless there=s something that
happens during the move that gives . . . cause for concern@
(Tr. 207).

 Finally, in addition to inspecting the accident site, Mall

and Mesa reviewed the company=s training procedures and work
rules to determine if they contributed to the accident. The men
concluded they did not. Mall and Mesa agreed that New Mexico
Potash properly trained its employees, including Buffington.
They also agreed that had Buffington followed the company=s
rules, the accident would not have happened because the rules
required power to be deenergized at the terminal and the cable=s
circuits to be locked out (Tr. 59-60, 104).

                      THE CITATIONS

 As a result of their investigation, Mall and Mesa each

issued a citation to the company. Mall issued Citation
No. 4330836, which charges a violation of 30 C.F.R. '57.12004.
Among other things, the standard requires an operator to protect
electrical conductors that are exposed to mechanical damage.
Mall believed the tear in the cable jacket, the exposed
conductor, and the bare conductor wires evidenced a lack of the
protection required.

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Page 6

 Mesa issued Citation No. 4447563, which charges a violation

30 C.F.R. ' 57.12014. Among other things, the standard requires
a person moving an energized power cable to use insulated
devices, unless other suitable means for moving the cable are
provided. Mesa believed the company violated the standard when
Buffington manually picked up the energized cable while wearing
only cotton gloves (Tr. 97).

                RESOLUTION OF THE ISSUES

             30 C.F.R.                        Proposed

Citation No. section Date Penalty

4330836 57.12004 9/18/95 $9,500

 The citation states in part:

      The 4/conductor type . . . 480 volt[,] 3 phase
 power cable was damaged exposing a bare copper
 conductor through the outer rubber covered jacket. A
 miner was electrocuted when he came in contact with the
 exposed bare copper conductor. The power cable was
 energized and was providing power to the face intake
 fan in area 289.

 Section 57.12004 states in part:

      Electrical conductors exposed to mechanical damage
 shall be protected.

                         THE VIOLATION

 There is no doubt that the conditions alleged in the cita-

tion existed. The company does not dispute that the cable=s
jacket was torn, that an insulated conductor was exposed, and
that strands of the conductor=s copper wire extruded through the
insulation (Tr. 48, 69). The cable was subject to mechanical
damage in that it had to be moved from time to time and miners
worked and operated equipment in its vicinity. Given the
existence of the tear, the exposed conductor, and the bare copper
wires, the cable and its conductors were not protected as
required, and the cited standard was violated.

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Page 7

 Although counsel for the company asserts the company is not

culpable because the circumstances of the accident represent a
Aclear . . . case . . . of unforeseen employee misconduct@
(Tr. 216), I find the argument inapposite to the issue of whether
a violation of the cited standard occurred. The violation lies
in the failure of the company, to protect adequately the cable=s
electrical conductors from damage. There is nothing in the
record to indicate that Buffington=s duties included protection
of the cable=s conductors or that Buffington was responsible for
the failure to protect them. Rather, those duties lay with
New Mexico Potash. Its failure to meet them establishes the
violation.

                     S&S AND GRAVITY

 A violation is properly designated S&S, Aif, 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 reasonable serious nature@ (Cement
Division, National Gypsum Co., 3 FMSHRC 825 (April 1981)). There
are four things the Secretary must prove to sustain an S&S
finding:

           (1) the underlying violation of a
      mandatory safety standard; (2) a discrete
      safety hazard -- that is, a measure of danger
      to safety contributed to be 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 reasonable serious
      nature (Mathies Coal Co., 6 FMSHRC 1,3-4
      (January 1984); see also Austin Power Co. v.
      Secretary, 861, F.2d 99, 104-105 (5th Cir.
      1988) (approving Mathies criteria).

Here, the Secretary has proven all four.

 There was a violation of section 57.12007. The violation

resulted in a discrete safety hazard. Failure to protect the
conductors, meant that when the cable=s outer jacket was torn and
the conductor wires were exposed, miners working in the vicinity
of the energized cable were subjected to the possibility of
coming in contact with the Alive@ wires. Given the fact that the
tear in the jacket was small, it was reasonably likely that
miners would step on or near the cable and not realize that the
conductor and conductor=s wires were exposed. Further, if, like
Buffington, they manually picked up the energized cable without

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Page 8

using a protective device it was reasonably likely they would
come in contact with the conductor and its wires. In either
situation, the miner involved was likely to be seriously injured
or killed. In making this latter finding, I not only note that
the cable was carrying 480 volts of electricity, but also that
the area surrounding the cable was wet, a condition that Mall and
Cline agreed enhanced the possibility of an electrocuted (Tr. 81-
82, 205).

 In addition to being S&S, the violation was very serious.

It long has been held that the gravity of a violation is
determined by analyzing the potential hazard to the safety of
miners and the probability of the hazard occurring (Robert G.
Lawson Coal Co., 1 IBMA 115, 120 (May 1972)). The potential
hazard was serious injury or death due to electrical shock.
Because the failure to protect the conductors in the cable
resulted in the exposure of an insulated conductor and of several
bare wires, in a wet area, and in the presence of miners who
worked in the area, it was likely that as mining continued a
miner would come in contact with the exposed conductor and wires
and suffer a severe shock injury or worse.

 I am mindful the record established New Mexico Potash

trained its miners, including Buffington, in the proper
procedures for handling and moving electrical cables, and that if
such procedures always were followed, the hazard, although not
totally eliminated, would have been greatly obviated. However --
and as the history of enforcement of the Act consistently has
shown -- miners do not always act as instructed. They do the
unexpected. They manually pick up cables without first locking
out and disconnecting their circuits, or they move energized
cables without using approved protective devices or without
wearing safety gloves. While the company=s training and work
rules certainly diminished the likelihood that an accident would
occur, they did not eliminate it, and the hazard caused by the
inadequately protected conductors was so great that even if
Buffington had acted as trained, I would still find this a very
serious violation.

                       NEGLIGENCE

 Negligence is the failure to exercise the care required by

the circumstances. Here, several factors called for heightened
caution on the company=s part. Witnesses for the Secretary and
the company agreed that because the cable was used in a muddy and
wet area, there was an increased hazard to miners from an
electrical defect (Tr. 81-82). While it is true that the cable
looked to be in good condition and had been in use underground

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Page 9

for only a short period of time -- 2 or 3 days, at most (Tr. 58,
70, 144, 155) -- this did not mean management could relax its
vigilance against possible cable defects, especially when the wet
conditions under which the cable was used increased the likeli-
hood that such defects could be lethal.

 Mall testified that when miners are assigned to work around

a cable, management Aneed[s] to check the work area@ (Tr. 75).
There was agreement among the witnesses that, as a general rule,
cables experience a great deal of stress when used underground.
As Cline observed, when cables are moved, they are subject to Aa
fairly abusive environment@ (Tr. 206).

 Morris saw the cable both before and after the accident and

believed that the cable had been moved by as much as 15 feet
prior to Buffington picking it up (Tr. 170-171). I credit this
testimony. Although Cline did not think it necessary to examine
a cable after such a short move, Aunless . . . something . . .
happens during the move that gives you cause for concern@
(Tr. 207), and while there is no evidence that Asomething@
happened when the cable was moved before the accident, given the
wet conditions, the generally Aabusive environment@ to which the
cable was subjected, and the extreme danger presented under such
conditions when cable conductors are not adequately protected, I
conclude that management should have checked for defects in the
cable after it was moved and prior to assigning Buffington the
task of connecting the cable to the welder. Failure to check the
cable and to reinsulate adequately the conductor and wires
represented a negligent failure to meet the standard of care
required under the circumstances.

             30 C.F.R.                        Proposed

Citation No. section Date Penalty

4447563 57.12014 9/8/95 $9,500

 The citation states in part:

      A miner was fatally electrocuted when he . . .
 attempted to remove an energized 480 volt power cable
 from the face intake fan. The insulation had a break
 in it exposing the conductors. The miner made contact
 with the exposed conductors causing his electrocution.
  The miner was not using any suitable protective
 devices when he handled the power cable.




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Page 10

 Section 57.12014 states in part:

      When . . . [power cables energized to potentials
 in excess of 150 volts] are moved manually, insulated
 hooks, tongs, ropes, or slings shall be used unless
 suitable protection for persons is provided by other
 means.

                      THE VIOLATION

 The regulation is straight forward. It requires miners who

move by hand energized power cables to use the devices specified,
or to wear or otherwise to use suitable protection. The standard
recognizes that handling a cable energized to a potential of more
than 150 volts can be so dangerous that a miner must be protected
from direct contact with the cable by placing an insulated
barrier between the miner and the cable. This is in addition to
the barrier that already is provided by the cable=s interior
insulation and its rubber jacket. The goal is to prevent the
miner from being shocked, or at least to lessen the degree of any
shock.

 Buffington violated the standard. The record establishes

that the cable Buffington manually moved was energized to
450 volts, and that he moved it without using the devices
specified in the standard or without using other suitable
protection.

  In finding the violation, I recognize Mall testified that he

did not believe Buffington was trying to Amove@ the cable when he
picked it up (Tr. 60-64). However, Mall was using the word
Amove@ in the sense of transporting the cable from one location
to another and the regulation is not as restrictive in its use of
the verb. While Amove@ means Ato go . . . from one point or place
to another,@ it also means a change of position or posture
(Webster=s Third New International Dictionary 1479 (1986)). Even
though Buffington was not trying to carry the cable to another
location, he brought himself within the regulation=s scope when
he picked up the cable and manually moved it from the floor into
his hands; in other words, when he changed the cable=s position.

      As Mesa persuasively testified, to comply with the

standard Buffington either should have used Aa small rope@ to
pull the cable or should have worn Aa pair of hot gloves@
(Tr. 111). Buffington did neither. The only barrier between

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Page 11

Buffington and the cable was his cotton gloves. The company does
not assert that the gloves were Asuitable protection@ within the
meaning of the standard, and clearly, they were not.

 Buffington=s actions were due solely to his own conduct.

Had he acted in accordance with his training and with the
company=s work rules, the violation and the accident would not
have occurred (see Tr. 59-60, 104, 163, 201-202). There is no
evidence that Buffington=s prior actions placed the company on
notice that he might pick up the cable without first complying
with company safety procedures or with the regulation. Indeed, I
accept Morris= testimony that shortly before his electrocution,
Buffington=s actions in taping a cable were in complete accord
with company safety procedures. Nor is there evidence Buffington
was disciplined previously for failing to obey work rules.
Therefore, here, unlike the previous violation, the question of
the company=s liability for a violation caused by its employee=s
unforeseen and unforeseeable misconduct is presented squarely.

 The Commission long has held that under the Mine Act an

operator is liable for the violations of its employees without
regard to fault. It has based this conclusion on the wording of
the Act and the act=s legislative history (see Asarco, Inc.,
Northwestern Mining Dept., 8 FMSHRC 1632, 1634-35 (November
1986), aff=d 868 F.2d 1195 (10th Cir. 1989) (and cases cited
therein)). The Commission has stated that the employee=s
misconduct and the operator=s lack of fault are factors to
consider in assessing a civil penalty rather than factors having
an impact on liability (Asarco, 8 FMSHRC at 1636).

 New Mexico Potash is fully cognizant of this holding, but

asserts that the Commission and the courts have yet to address
whether implementation of liability without fault under the Mine
Act deprives a company of its Fifth Amendment right to due
process. Because New Mexico Potash believes it does, it suggests
that I take a Avery bold step . . . and give exactly that
opinion@ (Tr. 222-223). (See Kenny Richardson, 3 FMSHRC 8, 21
(January 1981), aff=d 689 F.2d (6th Cir. 1982), cert. denied 461
U.S. 928 (1983) (Commission may resolve constitutional challenges
raised against enforcement of the Act)).

 I am respectful of the company=s argument, but I decline the

suggestion. The company=s position is grounded in the general
principle of law that there should be no individual liability for
an act which ordinary human care and foresight can not guard
against and that a consequent loss should rest where it chances
to fall. However, above and beyond this principle lies the power
of the legislature to enact laws for the general public welfare

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Page 12

and to impose obligations and responsibilities that would not
otherwise exist. In such instances, the concept of constitu-
tional due process requires that the means chosen be reasonably
related to a legitimate end (United States v. Jones, 735 F.2d 785
(4th Cir. 1984), cert. denied 496 U.S. 918 (1984)).

 Under the Mine Act, that Ameans@ is imposition of a civil

penalty on the operator whenever there is a violation of the Act
or its regulations. The Aend@ is Athe health and safety of the
[the mining industry=s] most precious resource -- the miner@ (30
U.S.C. ' 801(2)), through lessening Adisruption[s] of production
and the loss of income . . . as a result of . . . mine accidents@
(30 U.S.C. ' 801(d)). The end is accomplished by placing primary
responsibility upon Aoperators . . . with the assistance of the
miners@ to Aprevent the existence of . . . [unsafe and unhealthy]
conditions and practices@ (30 U.S.C. ' 801(f)).

  The drafters chose to retain in the Mine Act, the liability

without fault structure of Mine Act=s immediate predecessor, the
Coal Mine Health and Safety Act of 1969 (30 U.S.C. ' 801 et seq.
(1976)) (Western Fuels-Utah, Inc., 10 FMSHRC 256-260 (March
1988)). In requiring the operator to pay a civil penalty for
each violation, the legislators expressed their belief that such
penalties were necessary Ato effectively induce compliance@
(S. Rep. 181, 95th Cong. 1st Sess. at 16 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 604 (1978)).

 While this assumption is perhaps debatable, it certainly is

not unreasonable. A logical argument can be made that when an
operator knows it will be liable for unanticipated employee
negligence, it will go to additional lengths to try to reduce
violations due to such negligence. For example, it will heighten
scrutiny of its employees; or, it will intensify their training.

 Therefore, arguments concerning the efficacy of liability

without fault are for the legislature, not the Commission or the
courts, to resolve. Hence, I conclude the Secretary is not
barred constitutionally from seeking to impose a civil penalty on
the company for Buffington=s violation of section 57.12014 and
that the company is liable as charged.

                     S&S AND GRAVITY

 All of the criteria set forth in Mathies (6 FMSHRC at 3-4)

have been met. There was a violation of the cited standard. By

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Page 13

picking up and moving the cable without using the devices
specified in the standard, or without using other suitable
protection, Buffington subjected himself to the danger that a
defect in the energized cable could injure or kill him.
Moreover, there was a reasonable likelihood that an injury would
result, given the fact that the cable was indeed damaged to the
point that an insulated conductor and some if its bare wires were
exposed. Finally, the likelihood that the injury would be
reasonably serious was attested to by the fate that befell
Buffington.

 In addition to being S&S, the violation was very serious.

Picking up a power cable without using the devices specified in
the standard or without using other suitable protection was
folly. The standard, which is designed to prevent exactly what
happened, recognizes this, as do the company=s safety procedures.
Given the conditions under which the violation occurred -- the
wet floor and the exposed conductor and wires -- the tragedy that
resulted was likely.

                       NEGLIGENCE

 Mesa testified that he considered the fact that New Mexico

Potash had a supervisor in the area as indicative that the
company was negligent (Tr. 96). He amplified this testimony by
stating that he believed the supervisor had the cable dragged
into the area, that the supervisor knew there was going to be
welding done and that the cable was going to be removed from the
fan. Therefore, Mesa asked, AWhy didn=t the [supervisor] go back
and kick the breaker?@ (Tr. 109).

 The issue, however, is whether the company was negligent in

causing the alleged violation, and Mesa=s testimony does not
address how the failure of the company or its agents caused
Buffington to manually move the cable without an approved device
or other suitable protection.

 As noted previously, there is no suggestion that the

company=s training program was defective or that New Mexico
Potash should have known Buffington might act as he did.
Supervisors can not reasonable be expected to monitor a miner=s
every move when there is no prior hint or suggestion his or her
conduct may be in violation. For these reasons, I conclude that
New Mexico Potash was not negligent.

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Page 14

              OTHER CIVIL PENALTY CRITERIA
             HISTORY OF PREVIOUS VIOLATIONS

 In the 24 months prior to September 8, 1995, 39 violations

cited at the mine were assess by the Secretary and paid by the
company. The Secretary did not take a position on whether the
number of previous violations was small, medium, or large, given
the size of the company (Tr. 17).

 I find that the overall number is small. However, I note

that of the 39 violations, 11 violations, or approximately
28 percent, were violations of mandatory electrical standards
(Exh. P-1), and I conclude that although the number of previous
violations is small, the percentage of electrical infractions
warrants somewhat larger penalties than I might otherwise have
assessed for the electrical violations here at issue.

                      BUSINESS SIZE

 There was disagreement over the number of miners employed at

the Hobbs facility. Mall testified that 330 miners were employed
(Tr. 119, 56), and Davidson testified that the number was 307
(Tr 119). While the exact number of employees obviously
fluctuated, I find that more than 300 miners worked at the mine
and that the company was large.

             ABILITY TO CONTINUE IN BUSINESS

 The company did not introduce evidence to show that the

penalties assessed would adversely affect its ability to continue
in business, and I find that they will not.

                  GOOD FAITH ABATEMENT

 The company abated the violation of section 57.12004 by

removing the defective cable from service within the time set,
and it abated the violation of section 57.12104 by timely
instructing its workers on the proper procedures for handling
cables. The company=s actions constituted good faith abatement.

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                CIVIL PEANTLY ASSESSMENTS

             30 C.F.R.

Citation No. section Date

4330836 57.12004 9/18/95

 The violation was very serious and was caused by the

company=s negligence. Moreover, when combined with Buffington=s
violation of section 75.12014, the violation proved fatal to
Buffington. In view of these factors, and given the company=s
large size, and its previous history of violations, a substantial
penalty is warranted. I find that a civil penalty of $9,000 is
appropriate. I have mitigated the assessment to some extent to
reflect the company=s good faith abatement.

             30 C.F.R

Citation No. section Date

4447563 57.12014 9/8/95

 The violation was extremely serious. When combined with the

violation of section 57.12004, the violation proved fatal to
Buffington. In view of these factors, and given the company=s
large size, and its previous history of violations, a penalty
like that assessed for the violation of section 57.12004 would
have been appropriate. However, the company=s total lack of
culpability and its good faith abatement call for a significant
mitigation of the penalty. I find that a civil penalty of $1,500
is appropriate.

                          ORDER

 New Mexico Potash IS ORDERED to pay a civil penalty of

$9,000 for the violation of section 57.12004 (Citation
No. 4330836) and to pay a civil penalty of $1,500 for the
violation of section 57.12014 (Citation No. 447533). The
payments are to be made to the Secretary within 30 days of the
date of this decision, and upon their receipt, this proceeding IS
DISMISSED.

                            David F. Barbour
                            Administrative Law Judge

Distribution:

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Page 16

Daniel Curran, Esq., Office of the Solicitor, U. S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified
Mail)

W. T. Martin, Jr., Esq., 509 West Pierce Street, P. O. Box 2168,
Carlsbad, NM 88221 (Certified Mail)

dcp

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