Perry County Coal Corp.

Plain-English summary

MSHA cited Perry County Coal after an electrician received electrical burns while attempting to energize a pump at the HZ4-1 mine. Judge Avram Weisberger dismissed two citations because the Secretary did not prove that the breaker settings failed the applicable short-circuit protection requirement or that the operator needed examinations more frequent than the required weekly examinations. He affirmed a third citation as significant and substantial because a worker plugged a cable into an energized receptacle, creating hazards of fire, electrical burns, and shock. The Judge assessed a $1,000 penalty, finding high gravity but significant mitigating circumstances on negligence.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.512, 75.512-2, 75.518, and 75.607
• Outcome: Citation Nos. 7517685 and 7517686 were dismissed. Citation No. 7517687 was affirmed as significant and substantial with a $1,000 penalty.
• Key point: A mine operator was not liable for two unproven electrical maintenance conditions, but plugging a cable into an energized receptacle supported an S&S violation and a $1,000 penalty.

Full text (FMSHRC public release)

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


           OFFICE OF ADMINISTRATIVE LAW JUDGES

          601 New Jersey Avenue, NW, Suite 9500

                  Washington, DC   20001


                      May 16, 2005

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2004-190
Petitioner : A.C. No. 15-02085-24601
v. :
:
PERRY COUNTY COAL CORP., :
Respondent. : HZ4-1

DECISION

Appearances:
MaryBeth Zamer Bernui, Esq., U.S. Department of Labor, Nashville, TN, for the Secretary;
LaToi Mayo, Esq., Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington, KY, for the Respondent.

Before:
Judge Weisberger

Statement of the Case


This case is before me based on a Petition for Assessment of Civil Penalty filed by the

Secretary of Labor alleging violations of various mandatory safety standards by Perry County Coal
Company (Perry County), and seeking the imposition of civil penalties for these violations. The case
was heard in Johnson City, Tennessee, on February 1, 2005. Subsequent to the hearing, the parties
each filed Proposed Findings of Fact and a Brief.

    Citation No. 7517685


          Findings of Fact


MSHA Inspector Patrick Stanfield, who is an electrical specialist, was at Perry County's

HZ4-1 mine on June 24, 2003. While on the surface of the mine, Inspector Stanfield was informed
that the day shift electrician, Don Moore, had received electrical burns while attempting to energize
a pump.1 Inspector Stanfield went underground to the 017 Section to investigate the accident.

Stanfield examined the power center in the 017 Section which contained 14 circuit breakers.

In normal operations, the cathead (plug) of the cable connected to a piece of equipment would be
inserted into a receptacle located below a breaker. Each breaker had a dial with a limited range of
amperage settings, which controlled the amperage level at which the breaker would trip, shutting off
power to the equipment it serviced. The amperage range setting on the dial was not uniform for all
the breakers.

Stanfield observed that the amperage dial on the No. 2 bolter breaker had been set at 300

amps, its lowest setting.

Stanfield noted that the 10/5 cable at issue was required to have short circuit protection of

no more than 150 amps. Since the amperage setting on the No. 2 breaker has been set at 300 amps,
its lowest setting, he concluded that there was not adequate short circuit protection for the 10/5 cable,
and cited Perry County for violating 30 C.F.R. � 518.

Further Findings and Discussion


Section 518, supra,  provides, as pertinent, that "[a]utomatic circuit breaking devices or fuses

of the correct type and capacity shall be installed so as to protect all electrical equipment and circuits
against short circuit and overloads."

The plain clear wording of Section 75.518, supra, requires: (1) the installation of automatic

circuit breakers; (2) of the correct type and capacity to protect all electrical equipment against short
circuits and overloads.

It appears to be the Secretary's position that Perry County was in violation of Section 518,

supra, because one the breakers did not have the proper setting to provide short circuit protection for
the 10/5 cable and pump. This interpretation of the requirements of Section 518, supra, imposes
an obligation that goes beyond the plain wording of Section 518, supra, which requires only that
circuit-breaking devices (breakers) be installed to protect all equipment. The requirement that every
breaker be capable of protecting all equipment would result in amending Section 518, supra, by
adding words not found in the regulation. I thus reject the Secretary's argument.

The Secretary has not adduced any evidence that the breakers installed on the power center

could not protect all electrical equipment against short circuits and overloads. At least one of the
breakers on the center was of the correct type and capacity to protect the 10/5 cable at issue, i.e., its
dial had a law setting of 150 amps. (Tr. 40, 85). I thus conclude that the Secretary failed to prove
that circuit breakers of the correct type and capacity were not installed to protect all electrical
equipment against short circuits and overloads. Thus, I find that it has not been established that
Respondent violated the requirements of Section 518, supra. Accordingly, Respondent's Motion to
Dismiss the citation at issue, made at the hearing, is presently granted.

     Citation No. 7517686


          The Inspector's Testimony


According to Stanfield, during the course of his investigation of the accident relating to the

No. 2 breaker, Bob Shell, Perry County's Chief Electrician, told him that the breaker to the left, the
No. 8 breaker, was "burnt in" (Tr. 110, 115). Stanfield indicated that on June 24 he observed that
this breaker had been locked out. According to Stanfield, once Perry County became aware that the
No. 8 circuit breaker had malfunctioned, the other breakers, including the No. 2 breaker, at issue,
should have been tested with a voltage meter. This test would have revealed that contacts inside this
breaker had melted together resulting in the receptacle becoming energized, which could have led
to arcing, and a resultant electrical burn injury. In addition, there was the possibility of the
occurrence of a mine fire or ignition of combustible airborne accumulations.

Stanfield issued a citation alleging a violation of 30 C.F.R. Section 75.512, which, as

pertinent, provides that "[A]ll electric equipment shall be frequently examined, tested, and properly
maintained by a qualified person to assure safe operating conditions."

          Discussion


Section 75.512, supra, requires the "frequent" examination of electrical equipment to assure

safe operating conditions, but does not specify the frequency of the examinations. Section 75.512-2
provides that the examinations and tests required by Section 75.512, supra, "... shall be made at least
weekly."

The parties agreed that Respondent did conduct its weekly examinations as required by

Section 75.512-2, supra. The Secretary argues that Perry County was in violation of Section 75.512,
supra, because it should have made a more frequent examination of the power center after the No.
8 circuit breaker malfunctioned, to ensure that all circuit breakers were being maintained in a safe
operating condition. In this connection, I note the Inspector's testimony that Shell had told him that
this breaker "was burnt in". (Tr. 110) However, Shell testified that when he made the statement he
was not referring to the No. 8 breaker, but to the No. 2 breaker. I observed the demeanor of both
witnesses testifying on this point and find Shell to have been the more credible witness.

The Secretary further argues that because the No. 8 circuit breaker had been locked out prior

to the accident at issue, Perry County had been put on notice that further examination of the power
center was required to ensure that all other circuit breakers were functioning safely.

Moreover, the record does not clearly establish when Respondent was given notice that the

No. 8 circuit breaker had been locked out. According to Stanfield, Shell did not know who had
placed the lock on the breaker, nor when it was done. There was not any evidence adduced by the
Secretary as to when and why a padlock was placed on the No. 8 circuit breaker. Further, there was
not any evidence adduced as to the specific nature of the condition of the breaker that led to it being
padlocked.

Further, the regulations do not clearly specify under what conditions, if any, an operator is

required to conduct an examination more frequently than weekly. Thus, to impose such a
requirement herein would go beyond the terms of Section 75.512-2, supra, as it would require an
examination of all breakers in a situation where one breaker had been locked out. In this connection,
I note that on cross examination, Stanfield agreed that there was not any requirement to check all
circuits when one is found to be operating properly. Also, on cross-examination, he agreed that the
fact that one breaker may not have been operating properly does not indicate that other breakers were
not functioning properly.

Further, for all the above reasons, I find that it has not been established that Respondent

violated Section 75.512, supra.

     Citation No. 7517687


          Violation of 30 C.F.R. �75.607


According to Stanfield's testimony, during the investigation of the accident at issue it was

determined that the victim had attempted to plug a cathead into the receptacle on the No. 2 breaker
that had been energized. Perry County did not rebut or impeach this testimony.

Stanfield issued a citation alleging a violation of 30 C.F.R. � 75.607, which provides that

trailing cable and power cable connections to junction boxes "... shall not be made or broken under
load."

Based on the inspector's uncontradicted and unimpeached testimony, I find that Perry County

did violate Section 75.607, supra.

     Significant and Substantial


According to the inspector, placing a plug in a receptacle that was energized creates a hazard

of a mine fire, electrical burn, or electrical shock. The uncontradicted evidence in the record
indicates that the victim did receive burns and electric shock. Within this framework I conclude that
all the elements set forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) have been met,
and that it has been established that the violation was significant and substantial.

          Penalty


Based on the parties' stipulations, I find that Perry County Coal is a large operator and a

penalty will not affect its ability to remain in business. I have reviewed Perry County's history of
violations and find that it is not a significant factor to cause either a significant increase or decrease
in the amount of penalty to be assessed. There is no evidence that the operator did not exhibit good
faith in abating this violation. Since the violative condition herein, as discussed above, contributed
to the hazards associated with the injuries received by the victim, I find that the gravity of the
violation was high.

The inspector conceded that in his opinion the operator's negligence was only "moderate"

because there were "mitigating circumstances leading up to the accident." (Tr. 198). In this
connection, I note that the violative condition was created when the victim attempted to insert a plug
into a receptacle that was energized. However, it had become energized as a result of the fusion of
cables within the breaker, a condition that could not have been observed. Thus, although the victim
was negligent to some degree in inserting the plug into an energized receptacle, and this negligence
is imputed to the operator, the level of the operator's negligence is to be mitigated considerably
because it did not know of this condition. Further, for essentially the same reasons discussed above,
I find that it has not been established that Perry County had notice of the conditions within the No.
2 breaker.

Taking into account all the above factors, and putting considerable weight on mitigating

factors relating to the company's negligence, I find that a penalty of $1,000 is appropriate for this
violation.

                          Order


It is Ordered that Citation Numbers 7517685 and 7517686 be Dismissed.  It is further

Ordered that Respondent pay a civil penalty of $1,000.00 within 30 days of this decision.

Footnote:

1 There were not any witnesses to the accident, and no one had observed Moore�s actions. Stanfield subsequently determined, based on his investigation, that Moore was burned while attempting to energize a return pump by plugging the cathead of a 10/5 cable attached to the pump into the receptacle located below the No. 2 breaker. Stanfield explained that an arc was created when Moore plugged the cable into the receptacle because the contacts inside the breaker had become fused together which energized the breaker.

Avram Weisberger

Administrative Law Judge

Distribution: (Certified Mail)

MaryBeth Zamer Bernui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

LaToi Mayo, Esq., Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, LLP, 250 West Main St., Suite 1600, Lexington, KY 40507

/sb