Cougar Coal Company, Inc

Plain-English summary

At a coal mine being dismantled, a worker climbed a utility pole near energized high-voltage equipment, was shocked by 7,200 volts, and fell. Judge Avram Weisberger found that Cougar violated standards governing electrical work, work near energized lines, fall protection, and accident reporting, but found that the violations were not the result of unwarrantable failure. The judge found the accident-site and notification citations were not established because the worker's injuries were not shown to have a reasonable potential to cause death under the regulatory definition. The judge modified four citations and orders, dismissed two citations and the KENT 2000-277 docket, and assessed a total civil penalty of $106,350.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.807-2, 77.1710(g), 77.501, 77.704-1(b), 50.12, 50.10
• Outcome: Four citations and orders were modified, two citations were dismissed, the KENT 2000-277 docket was dismissed, and Cougar was ordered to pay $106,350.
• Key point: The judge found serious electrical and fall-protection violations but rejected unwarrantable-failure findings and dismissed the reporting citations because the evidence did not establish a regulatory accident.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                            OFFICE OF ADMINISTRATIVE LAW JUDGES
                                    2 S K YL IN E , 10 th F LO O R
                                     5203 LEESBURG PIKE
                                FALLS CHU RCH, VIRGINIA 22041


                                    February 14, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2000-133
Petitioner : A.C. No. 15-18030-03507
:
v. :
:
COUGAR COAL COMPANY, INC., : Mine No. 8
Respo ndent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2000-277
Petitioner : A.C. No. 15-18030-03508A
:
v. :
:
LESLIE B. COMBS, employed by :
COUGAR COAL COMPANY, INC., : Mine No. 8
Respo ndent :

                                        DECISION

Appearances: Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary;
Michael J. Schmidt, Esq., Wells, Porter, Schmidt & Jones, Paintsville, Kentucky,
for the Respondents.

Before: Judge Weisberger

                                    INTRODUCTION

    In June 1999, the Cougar Mine No. 8 site at issue was no longer producing coal, as it’s

coal had been depleted, and the site was in the process of having it’s equipment dismantled and
moved to another location. Among the pieces of equipment to be moved was a power center. A
high line cable that extended from a utility pole (“A-1 pole”) provided the source of electricity to
the power center, which in turn supplied electricity to various underground equipment. Each of

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the three phases located inside the high line cable that ran from the A-1 pole to the power center
was connected, respectively, to one of the three disconnect switches located 22 feet above the
ground on the middle cross-arm of the A-1 pole. The top of each of these three disconnects was
connected to a phase that extended 1.2 miles to the main line located at the mouth of Butcher
Hollow. When the disconnect switches were closed, electric current was then allowed to flow
from the main line to the power center. When the disconnects at the A-1 pole were open,
electric current could not flow from the main-line to the high line cable located at the bottom of
the disconnect and then to the power center.

     On June 16, 1999, Paul Preece, who was not a qualified electrician, was at the site to

assist in the removal of equipment owned by the Cougar Coal Company (“Cougar”). He opened
a series of disconnect switches, and disconnected a series of capacitors that were mounted on the
B-1 utility pole located midway between the A-1 pole and the main line at Butcher Hollow.
Preece then used the boom of a boom truck to ascend the A-1 pole. Preece, who was not
wearing a hat or any kind of restraining device that would have kept him from falling, climbed
onto one of the cross-arms of the pole, and began to undo the terminals connecting the phases
from the high line cable to the bottom of the disconnect switches. He inadvertently came in
connect with one of phases, and was subjected to 7,200 volts of electricity. Preece then fell 22
feet from the cross-arm. Before he landed on the ground, his head had struck the edge of the
power center. He was found unconscious and without any pulse. Preece was revived, but as a
result of the shock and fall, suffered lacerations to his head, serious burns, a fractured vertebra in
his neck, and had to be hospitalized for several weeks. As of July 17, 2001, he had not returned
to work.

   After the accident, Cougar moved the boom truck from the accident site without first

obtaining permission from MSHA, and failed to notify MSHA of the accident.

    Subsequent to an investigation, MSHA Inspector Mark V. Bartley, issued, to Cougar,

three Section 104(d) orders alleging violations of 30 C.F.R. §§ 77.807-2, (Order No. 7352787),
77.1710(g), (Order No. 7352788), and 77.501, (Order No. 7352789), respectively. He also
issued a Section 104(d) citation alleging a violation of 30 C.F.R. § 77.704-1(b), (Citation No.
7352786), and two Section 104(a) citations alleging violations of 30 C.F.R. §§ 50.12, (Citation
No. 7352790) and 50.10, (Citation No. 7352791), respectively. The Secretary in the proceeding
seeks civil penalties to be imposed as a result of these violations. Additionally, the Secretary
seeks the imposition of a civil penalty under Section 110(c) of the Act against Leslie B. Combs1
in connection with the alleged violation by Cougar of Section 77.501, supra.

   A hearing was held regarding these proceedings in Louisa, Kentucky.




   1
    Combs was the general manager of Eagle Rock, and was authorized to be responsible for the

removal of the mine equipment at the site at issue.

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                                        DISCUSSION

I. Citation No. 7352786, and Order Nos. 7352787, 7352788, 7352789 and Combs’
Liability Under Section 110(c) of the Act.

    A.      Violation of Section 77.501, supra (Order No. 7352789)

     Order No. 7352789 alleges a violation of 30 C.F.R. Section 77.501 which, as pertinent,

provides as follows: “[n]o electrical work shall be performed on electric 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.” Cougar, in its
brief, indicates that it does not dispute that the actions of Preece were a violation of Section
77.501, supra. Since Cougar does not dispute the Secretary’s assertion and proof in this regard, I
find that Cougar did violate Section 77.501, supra.

          1.    Combs’ Liability Under Section 110(c) of the Act Regarding the

Violation of Section 77.501, supra, and Cougar’s Unwarrantable Failure in Connection
With This Violation

                    a.    Combs’ Actions and His Liability Under Section 110(c) of the

Act

   In order for the Secretary to establish Combs’ liability under Section 110(c) of the Act in

connection with the violation of Section 77.501, supra, it must be proven by the Secretary that
Combs “knowingly authorized, ordered or carried out such violation” (Section 110(c) supra).
There is no evidence that Combs ordered or carried out the violation. Thus, to prevail, the
Secretary must establish that Combs “knowing authorized” the violation. In Freeman United
Coal Mining Co. v. FMSHRC 108 F. 3rd 358, 363 (D.C. Cir 1997), the D.C. Civil Court of
Appeals found reasonable the Commission’s definition of “knowingly” set forth in Secretary of
Labor v. Richardson 3 FMSHRC 8, 16 (1981), aff’d 689 F. 2nd 632 (6th Cir. 1981) as follows:

    “Knowingly,” as used in the Act, does not have any meaning of bad faith or evil
    purpose or criminal intent. Its meaning is rather that used in contract law, where
    it means knowing or having reason to know. A person has reason to know when
    he has such information as would lead a person exercising reasonable case to
    acquire knowledge of the fact in question or to infer its existence. (Internal
    quotations omitted.)



    The only evidence2 relied on by the Secretary in support of her position that Combs

    2
     The Secretary argues that her finding of unwarrantable failure regarding Cougar’s violation of

Section 77.501, supra, (Order No. 7352789), and the 110(c) action against Combs, is based “at least [in]

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authorized Preece to climb the A-1 pole and remove the high line from the disconnects, consists
of two hearsay statements made by Preece.

    On July 15, 1999, in his hospital room, Preece told MSHA Inspector Mark Bartley, and

Kentucky Department of Mines and Minerals, Inspector Wes Gerhard, that when he suggested to
Combs that the high line could be saved by taking it down from the utility pole, Combs
instructed Preece to take a hot stick and pull the fused disconnects located at the mouth of the
hollow. (Gx. 6).

    MSHA Special Investigator, Douglas Fleming, testified that on October 17, 1999, he

interviewed Preece at his home. According to Fleming, Preece told him that when Combs told
him (Preece) to cut the high line at the power center, he (Preece) told Combs that the high line
could be saved by disconnecting it from the utility pole, and that Combs responded by telling
him (Preece), that, in essence, if he (Preece) took this action, to make sure that the disconnects
were pulled. Although Preece’s hearsay statements to the inspectors were recorded, I find them
unreliable, inasmuch as they were not corroborated by any other witness. Also, significantly,
they were essentially recanted by Preece in his sworn testimony at the hearing.

    In contrast to Preece’s hearsay statements relied on by the Secretary, Combs, who was

Preece’s supervisor, testified that on June 15, 1999, in the evening, he told Preece that the power
center on the subject site was to be removed, and that all electric power to the power center had
been disconnected. Combs told Preece to disconnect the high line from the power center by
cutting it with a hacksaw at a point about six to eight inches from the place where the high line
entered the power center, or to loosen a wire from inside the power center. According to
Combs, Preece said, in response, that he would probably take the wire down from the A-1 pole
disconnect, as that was an easier task to perform. Combs testified that he then told Preece that
should McCoy Contractors be present at the site, to let them disconnect the wire from the pole.
According to Combs he told Preece that should McCoy Contractors not be at the site, then
Preece should disconnect the high line at the power center. Combs denied telling Preece that if
Preece were to disconnect the high line at the pole, he was to make sure that the disconnects
were pulled at the main line located in the hollow. Combs stated that the following day, in the
shop, he again informed Preece, to cut the high line at the entrance to the power center. Since
Preece, in his testimony did not contradict Combs’ version of the conversations at issue, I accept
Combs’ version.

part”, on the instructions that Combs, who was the general mine manager and was responsible for the
removal of the equipment at the subject site, gave to Preece, to cut the high line cable near the power
station even though he knew that Preece was not a qualified electrician. This argument is without merit,
inasmuch as Preece never did cut the high line cable near the power station, and the 77.501 supra
violation was based only on Preece’s action, not on action not taken by him. Hence, Combs’ instructions
can not form the basis of a 110(c) violation in connection with the violation of Section 77.501 supra at
issue.

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   For the reasons set forth above, and placing most weight upon the testimony of Combs,

whom I found credible, I find that the Secretary has not established that Combs authorized
Preece’s actions that constituted violations of Section 77.501, supra. Further, I find that there is
no evidence that Combs had actual knowledge of these actions.

    The Secretary further asserts, in essence, that an additional basis for a finding of Section

110(c) liability on Combs’ part is his failure to have been on the site on June 16 to carefully
supervise Preece . In this connection, the Secretary argues that since Preece had expressed to
Combs, on June 15, and again on June 16, his interest in ascending the A-1 pole to remove the
high line at the disconnect in order to save the line, it should be inferred that Preece might
disregard his (Combs’) order not to take this action. The Secretary argues that, accordingly,
Combs should have been on the site on June 16 to carefully observe Preece. There is no
evidence to suggest that Preece had on any occasion, disregarded an order of a supervisor or had
proceeded to act contrary to such an order. Thus, I find the Secretary’s argument too speculative
to support a finding that Combs demonstrated “aggravated conduct” as opposed to “ordinary
negligence”.

   For all the above reasons I conclude that it has not been established that Combs violated

Section 110(c), supra, See, Beth Energy Mines, 14 FMSHRC 1232, at 1245 (1992)).

           2.      Cougar’s Unwarrantable Failure

                   a.      Jarvis’ Actions

    In essence, the Secretary argues that a finding of unwarrantable failure may be based on

the following assertions regarding Rick Jarvis, the mine foreman supervising the dismantling of
the equipment at the site: (1) that Jarvis gave Preece a hot stick for the purpose of de-energizing
the main circuit; (2) that Jarvis instructed Preece what to do with the hot stick; (3) that
accordingly, Jarvis knew that Preece was intending to climb the A-1 pole to disconnect the high
line from the disconnect terminals and; (4) that Jarvis knew that Preece was not a qualified
electrician.

    The Secretary adduced a statement signed by Rick Jarvis, that on June 16, “Paul said he

would pull the disconnects.” (Gx. 17, p. 2) In addition, Preece, in his testimony as part of the
Secretary’s case, and in a recorded statement, indicated that prior to his ascending the A-1 pole,
he had obtained a hot stick from Jarvis, and the latter told him “[t]o make sure I push the button
to ground the capacitors.” (Tr. Vol III, 37) Further, the Secretary’s witnesses testified that the
only use for a hot stick is to open or close fuse disconnects. Since none of these facts were
impeached, contradicted or rebutted by Cougar, an inference may be drawn that Jarvis, being the
supervisor on the site, should reasonably have taken steps to ensure that the hot stick would be
used only by a qualified electrician. The Secretary argues that Jarvis’ conduct, in this regard,
rose to the level of aggravated conduct inasmuch as he knew that Preece was not a qualified
electrician. However, Jarvis was not called to testify by the Secretary or by Cougar, to establish
that he had personal knowledge of this fact. Nor did any person testify that Jarvis was either
informed that Preece was not a qualified electrician, or was provided with written documentation

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of that fact. Hence, there is insufficient evidence in the record to predicate a finding that Jarvis
knew or reasonably should have known that Preece was not a qualified electrician.

    The Secretary argues, in essence, that since, according to Preece, Jarvis told the latter to

make sure to push the buttons on the capacitors when he gave him the hot stick, it is to be
inferred that Jarvis opined that Preece did not have expertise in de-energizing electrical lines,
and had to be instructed how to perform such a procedure. Hence, according to the Secretary, it
is to be concluded that Jarvis did not believe the Preece was a qualified electrician. I find that
this inference, going to Jarvis’ state of mind, to be too speculative to predicate a finding that
Jarvis knew or should have known that Preece was not a qualified electrician. I thus conclude
the Secretary has failed to establish that a finding of unwarrantable failure can be based on
Jarvis’ actions.

                   b.    Combs’ Actions

    For the same reasons set forth above, regarding the analysis of the analysis of the level of

Combs conduct pertaining to Section 110(c) liability, I(A)(1)(a), infra, I conclude that the
Secretary failed to establish that Combs’ actions rose to the level of aggravated conduct relating
to the violation of Section 501, supra.

   Accordingly, after evaluating the actions of Jarvis and Combs, I find that the Secretary

has not established that Cougar’s violation of Section 77.501, supra, was as the result of its
unwarrantable failure.

           3.      Significant and Substantial

    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 t hat 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

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   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).

     The evidence clearly establishes that the violation herein, Pierce’s pulling disconnects,

contributed to the risk of the hazard of contact with high voltage electric lines or equipment.
Also, inasmuch as this resulted in an injury of a reasonably serious nature to Preece, I conclude
that all the elements set forth in Mathies, supra, have been met and therefore it has been
established that the violation was significant and substantial.

           4.      Penalty

     I find that the level of gravity of the violation to have been extremely high inasmuch as it

did in fact result in contact with equipment energized at 7,200 volts, which could have caused a
fatal injury. I find this a significant element in analyzing the matrix of the factors set forth in
Section 110(c) of the Act. I have considered Cougar’s violation history, the fact that there is not
any evidence that the imposition of the penalty would adversely affect its ability to continue in
business, the lack of any evidence of non-good faith abatement, and the fact that Cougar is a
small mine. I note, however, that the Secretary has asserted that Cougar’s negligence rose to the
level of unwarrantable failure, which, in essence, is equated with aggravated conduct. For
reasons discussed above, (I)(A)(1), infra, I find that Cougar’s negligence did not reach this level
and was not more than moderate. Accordingly, the high penalty sought by the Secretary is to be
reduced significantly, as the record establishes that the level of Cougar’s negligence to be
considerably less than that asserted by the Secretary, which had formed one of the bases for the
penalty it was seeking. I conclude that a penalty of $30,000 is appropriate for the violation of
Section 77.501, supra, (Order No. 7352789).

   B.      Citation No. 7352786

           1.      Violation of Section 77.704-1(b), supra

     The parties stipulated that the Cougar did violate Section 77.704-1(b), supra, and I accept

this stipulation and so find.

           2.      Unwarrantable Failure

    The specific violative acts of Preece, attributed to Cougar that have been stipulated to as

constituting the violation of Section 77.704-1(b), are as follows: (1) attempting the de-energize
the three phase power line supplying power to the mine, and (2) ascending the A-1 utility pole
and trying to undo the terminals connecting the high line to the disconnect switches. The record
is devoid of any evidence tending to establish that on June 16 Jarvis could reasonably have
anticipated that any of Cougar’s employees were going to disconnect a high line from the fused

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disconnect on the A-1 pole.3 Accordingly, there is no basis to predicate a finding that Jarvis, in
his capacity as supervisor on the site, could reasonably have anticipated Preece’s unauthorized
action removing the high line at the disconnect on the A-1 pole. Further, as discussed above, the
record does not support a finding that Combs either authorized or approved Preece’s action in
this regard and had, indeed, indicated his opposition to it. I find that the Secretary has not
established that Cougar’s violation of Section 77.704-1(b) was the result of its aggravated
conduct, and thus can not be determined to be an unwarrantable failure (see Emery, supra,).

            2.      Significant and Substantial

    For the reasons set forth above regarding the violation of Section 77.501, supra,

((I)(A)(2), infra), inasmuch as the underlying act and location of both these violations were the
same, I find that the violation of Section 77.704-1(b), supra, was significant and substantial (see
Mathies, supra.).

            3.      Penalty

    I note that the Secretary seeks a penalty of $55,000 for the violation of Section 77.704-

1(b), supra. Since the acts and conditions surrounding the violation were the same, essentially as
that which gave rise to the violation of Section 77.501, supra, I find that for the reasons
discussed therein that the violation herein, which could have led to a fatality was of a very high
level of gravity. I note, however, that the Secretary has asserted that Cougar’s negligence rose to
the level of unwarrantable failure, which, in essence, is equated with aggravated conduct. For
reasons discussed above, (I)(B)(2), infra, I find that Cougar’s negligence did not reach this level
and was not more than moderate. Accordingly, the high penalty sought by the Secretary is to be
reduced significantly, as the record establishes that the level of Cougar’s negligence to be
considerably less than that asserted by the Secretary, which had formed one of the bases for the
penalty it was seeking. The additional factors set forth in 110(i) of the Act were discussed
regarding the violation of Section 501, supra, (I)(A)(4), infra, and are common to all the matters
at issue herein, and I reiterate those findings. Thus, taking into account all the above factors,
placing considerable weight on the act that Cougar’s negligence was significantly less than that
asserted by the Secretary, I find that a penalty of $30,000 is appropriate for this violation.

    C.      Order Nos. 7352787 and 7352788

            1.      Violation of Sections 77.807-2, supra, and 77.1710(g), supra.


    3
      Indeed, the unimpeached and uncontradicted testimony of Dennis Jewel, one of Cougar’s

electricians, Johnny McCoy, one of the principals of McCoy Contractors, Inc., and Billy R. Cantrell, the
president of Azar Coal Corporation, who oversees the installation and removal of electric lines at various
companies including Cougar, established that it is standard procedure for McCoy Contractors to
dismantle and remove Cougar’s high line wires, and this activity is not done by any of Cougar’s
electricians.

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    Cougar was cited with violations of 30 C.F.R. Section 77.807-2 and 77.1710(g), supra.

It was stipulated by the parties that in using the boom of a truck to ascend the A-1 pole, Preece
was operating the boom of the truck within 10 feet of energized power lines in violation of
Section 77.807-a, supra. It was further stipulated that while ascending the A-1 pole, and
climbing onto the cross-arm, Preece was not using any kind of safety or harness device which
would have prevented him from falling, which was a violation of Section 77.1710(g), supra. In
light of these stipulations, I find that Cougar did violate Section 77.807-2, supra, and Section
77.1710(g), supra

           2.     Significant and Substantial

     Since Preece’s actions in violating Section 77.807-2 and Section 77.1710(g), supra, were

all, essentially, a part of the same action and activity as the actions constituting violations of
Sections 501 and 1704-1(b), supra, and since the former two violations were found to be
significant and substantial, for the same reasons set forth above, I find that the violations of
Section 77.807-2, supra, and Section 77.1710(g), supra, similarly to be significant and
substantial.

           3.     Unwarrantable failure

   The Secretary argues that a finding of unwarrantable failure should be predicated on

Combs’ action in authorizing Preece to climb the pole at issue, which led to the violations cited,
and which evidenced Combs’ inadequate supervision. This argument had been advanced by the
Secretary and rejected above in the analysis of Combs’ liability under Section 110(c) of the Act.
(I)(A)(1)(a), infra.

     The Secretary also argues that since Jarvis gave Preece a hot stick and told him what to

do with it, he therefore knew Preece intended to climb the pole. The Secretary asserts that Jarvis
was within clear sight of Preece during the entire time that Preece moved the boom within 10
feet of the energized lines, raised himself up to the cross-arms at the A-1 pole without a harness
or restraining device, and began to loosen the high line from the A-1 disconnects.

     In addition, the Secretary argues that these violations were the direct result of Jarvis’

inadequate supervision. In this connection, Combs, in a signed statement, indicated that he had
told Jarvis, on June 16, that “we would be moving that day”, and that Preece and another worker
would be bringing the boom truck. This hearsay statement was not impeached when Combs
testified, nor was Jarvis called to testify to contradict this statement. Accordingly, I find that
Jarvis, was aware that a boom truck was going to be brought on the site, and should reasonably
have assumed some responsibility in supervising that the boom truck would be used properly.

    According to the uncontradicted testimony of Preece, Jarvis gave him a hot stick. Thus,

Jarvis should have ensured that it would be used by a qualified electrician to open the
disconnects. However, there is no evidence that Preece used the hot stick in any actions that led

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to the two specific violations at issue herein. There is not any evidence that Jarvis knew or
reasonably should have been expected to know that Preece would initiate the action of climbing
the A-1 pole to work on the middle arm, which directly led to these violations. In this
connection, the Secretary relied upon inspector Bartley’s testimony that Jarvis, on June 16, most
certainly would have to have seen the boom extended from the surface of the property, and thus
was, in essence, guilty of aggravated conduct in not making sure that the boom truck was not
within 10 feet of the high line. Bartley’s testimony is at best speculative since he was not on the
site at the time, and did not have personal knowledge of Jarvis’ location, vis a vis the A-1 pole
during the events at issue. Nor is there any testimony by any other witness placing Jarvis, during
the time of the events at issue, in a location which would have given him a direct unobstructed
line of sight to the portion of the pole at issue. The only evidence relating to Jarvis’ location at
that time, consists of a written statement signed by him to the effect that at the time of the
accident he was loading the belts structure on the scoop. There is no evidence in the record,
relating the location of the belt structure on the scoop to the A-1 pole, either in terms of
horizontal or vertical distance. Nor is there any evidence relating to the contour of the site, or
the presence or absence of obstructions between these two locations.

   Accordingly, for all the above reasons, I find that although Jarvis was negligent in his

supervision it has not been established that the level of this negligence reached aggravated
conduct. Accordingly, I find that it has not been established that these violations resulted from
Cougar’s unwarrantable failure. (See Emery, supra)

           4.      Penalty

                   a.     Violation of Section 77.1710(g), supra.

    The evidence clearly establishes that the violation herein of not using a safety belt or a

harness device while climbing onto the cross-arm of the A-1 pole, in close proximity to a
energized high voltage electrical equipment, was a violation of a very high level gravity, as it
could have resulted in a serious injury. However, the penalty sought by the Secretary, appears to
be predicated upon a level of negligence equal to aggravated conduct. For the reasons set forth
above, (I (C)(3)), infra, I find that although Cougar was negligent, the level of its negligence was
not as high as aggravated conduct. Hence, the penalty sought by the Secretary is to be mitigated
to a significant degree. Taking into account the additional factors set forth in Section 110(i) of
the Act, as discussed above, (I(A)(3)), infra, which are the same for this violation, I find that a
penalty of $30,000 is appropriate for the violation of Section 77.1710(g), supra.

                   b.     Violation of Section 77.807-2, supra

    I find that the level of gravity of this violation was high, inasmuch as it provided access

to the pole for Preece, and thus facilitated contact with high voltage energized equipment which
could have led to a fatality. However, I find that the penalty sought by the Secretary, is
predicated to some degree upon the level of Cougar’s negligence, which is asserted to have been
high enough to have constituted aggravated conduct. For the reasons set forth above, (I(C)(3)),

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infra, I find that although Cougar was negligent, the degree of its negligence did not reach
aggravated conduct. Accordingly, the penalty sought by the Secretary is to be reduced to a
significant amount. Taking into account the additional factors set forth in Section 110(i) of the
Act which are the same as discussed above, (I(A)(3)), infra, I find that a penalty of $16,350 is
appropriate for this violation.

II Citation Nos. 7352790 (Violation of 30 C.F.R. § 50.12) and 7352791 (Violation of 30
C.F.R. § 50.10)

   A.      The Violation of 30 C.F.R. §§ 50.12 and 50.10

     30 C.F.R.§ 50.10 provides, as pertinent, that “[i]f an accident occurs, an operator shall

immediately contact ... MSHA. ... .” (Emphasis added.) 30 C.F.R.§ 50.12 provides, in essence,
as pertinent, that “[u]nless granted permission by ... MSHA ..., no operator may alter an accident
site or an accident related area until completion of all investigations”. (Emphasis added.)

    The facts relating to both these Citations are not at issue. Relating to Section 50.10,

supra, the parties stipulated that after the accident, Cougar failed to notify MSHA of the
accident. Relating to Section 50.12, supra, the parties stipulated that after the accident, Cougar
moved a boom truck and high voltage power center from the accident site without first obtaining
permission from MSHA.

    In order for the Secretary to establish that these acts of the operator violated Sections

50.10, supra, and 50.12, supra, respectively, it must be established that there was an “accident”
as that term is defined in the regulations. 30 C.F.R. § 50.2 sets forth definitions of terms used in
part 50 of the Code of Federal Regulations. 30 C.F.R. § 50.2(h)(2) provides, as pertinent, that
an accident means “an injury to an individual at a mine which has a reasonable potential to cause
death;”. (Emphasis added.) The common meaning of the word injury means either an act that
harms, or the damages suffered as a result of an act. However, inasmuch as in the regulatory
scheme at issue an accident is defined, inter alia, as pertinent, as an injury having a reasonable
potential to cause death, it is clear that the word injury as used in Section 50.(h)(2), supra,
defining an accident, means not the act itself, but rather the harm resulting from the act. In this
context, an operator’s responsibilities under Sections 50.10 and 50.12, supra, must be evaluated
not in terms of an analysis of the act at issue i.e., coming in contact with 7,200 volts of
electricity and falling at least 18 feet. Rather, the nature and extent of Preece’s injuries must be
evaluated as to whether they had a reasonable potential to cause death.

    The parties stipulated that Preece received an electric shock of exposure to 7,200 volts

and as a result fell 18 feet to the ground, and hit his head on the edge of the power center before
hitting the ground; that he was found on the ground with no pulse; that C.P.R. was administered
to him and he revived; and that as a result of the electric shock and fall, he suffered lacerations
to his head, serious burns, and a fractured vertebrae in his neck, and he had to be hospitalized for
several weeks. In the Secretary’s brief, the Secretary asserts that “it is within the realm of
common knowledge that these injuries entail a reasonable potential to cause death. “ However,

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the Secretary did not adduce any medical evidence or cite any recognized medical authorities to
support this conclusion. In support of her conclusion, the Secretary refers to the testimony of
Inspector Bartley, who was trained as an accident investigator. However, there is no evidence
that Inspector Bartley has any medical degree or received any medical education.

    Further, Bartley’s testimony related soley to the nature of the accident. He testified that

based upon his investigations, most people die after coming in contact with 7,200 volts of
electricity. He also testified that persons fall from heights lower than18 feet, and suffer fatal
injuries. This testimony, which relates to analysis of the act of the accident, is not relevant to an
analysis of whether Preece’s injuries had a reasonable potential to cause death.

    The Secretary also asserts, referring to Preece’s having broken his neck, that it is

common knowledge that a broken neck can cause death. The Secretary, additionally, refers to
Preece’s testimony that his treating physicians told him that he was lucky that he didn’t die as a
result of having broken his neck. There is not any medical evidence cited by the Secretary, nor
is any found in the record that supports the Secretary’s assertion that it is common knowledge
that a broken neck “can” cause death. Preece’s hearsay testimony that his physician told him
that he was lucky that he didn’t die as a result of breaking his neck, is not accorded much weight
as there is no medical evidence in the record to support a conclusion that Preece’s injuries had a
reasonable potential to cause death.

    The record does not contain any evidence from any of the ambulance medical personnel

who observed Preece at the site of the accident, regarding their observations and opinions
relating to Preece’s prognosis. Preece was taken from the accident site to the Emergency
Department at the Paul B. Hall Regional Medical Center in Paintsville, Kentucky. The records
from this department list the various signs of injury noted upon examination of Preece, as well as
interpretation of tests taken, and diagnoses. However, no opinion was set forth regarding
whether these injuries had a reasonable potential to cause death. Later on that day, Preece was
transferred, by helicopter, to Cabell Huntington Hospital in Huntington, West Virginia. It is
significant to note that when transferred Preece’s condition was described in the emergency
record as “serious”. Thus, this medical evidence fails to establish that Preece’s injuries were
deemed either critical, or very serious by the emergency department.

    The hospital records from Cabell Huntington Hospital indicate that the admitting

physician noted various signs on examination, also, laboratory and x-ray findings were
described. The assessment, upon admission was electrical injury, third degree burns, trauma
patient, and multiple contusions. However, the physician did not set forth any opinion that the
injuries were such that there was reasonable potential to cause death. It is significant that the
admitting physician noted that he had monitored Preece “constantly” during his emergency room
stay, and Preece did not have any arrhythmia.

   A consultation prepared on the same date noted that the extent of burns and findings

were suggestive that an electric current may have followed a neurovascular tract down the right
leg. However, the consulting physician set forth in his ASSESSMENT AND PLAN, a plan to

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treat Preece’s burns. There is no indication that the assessment found there was any potential of
these injuries to cause death.

    Accordingly, I find that the Secretary has not adduced sufficient evidence to establish

that Preece’s injuries sustained on June 16 were such as to have had a reasonable potential to
cause death. Nor does the record establish that Cougar’s agents should reasonably have
concluded that Preece’s injuries had such a potential. Cougar’s witnesses testified that when
they observed Preece they were unable to observe the extent of his injuries, but that he was
conscious, alert, responsive and coherent. Their testimony was not impeached or contradicted.

   For these reasons, I find that it has not been established that on June 16 there was an

“accident” at the site, as defined in Section 50.2(g)(2), supra. Thus, Cougar was not under any
responsibility to fulfill the requirements of Sections 50.10 and 50.12, supra, which must be
followed only in the event of any “accident”. Accordingly, I find that Cougar did not violate
Sections 50.10, supra, and did not violate Section 50.12, supra.

                                         ORDER

    It is ORDERED that (1) the following Citation and Orders be modified to indicate that

they are not the result of Cougar’s unwarrantable failure: Citation No. 7352786, and Order Nos.
7352787, 7352788 and 7352789; (2) Citation Nos. 7352790 and 7352791 be dismissed; (3)
Docket No. KENT 2000-277 be dismissed; and (4) within 30 days of this Decision, Cougar shall
pay a total civil penalty of $106,350.

                                         Avram Weisberger
                                         Administrative Law Judge

Distribution (Certified Mail)

J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Depart ment of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215

Michael J. Schmidt, Esq., Wells, Porter, Schmidt & Jones, 327 Main Street, P. O. Drawer 1767,
Paintsville, KY, 41240-1767

/sc

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