Secretary of Labor v. River View Coal, LLC

Plain-English summary

MSHA cited River View Coal because about one inch of insulation was missing from both sides of a welder's electrode holder on a diesel mantrip. Judge Priscilla M. Rae held that the direct-current welder remained electrical equipment subject to the maintenance standard and that the damaged holder created a shock hazard. She removed the S&S designation after finding that the estimated 28 to 35 milliamperes was well below the direct-current let-go threshold, welding gloves were required, and wet conditions occurred only sometimes. She also reduced negligence from moderate to low because required examinations had been performed, the damage could have happened quickly, and the Secretary did not show management knew how long it existed. The proposed $687 penalty was reduced to $125.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.512
• Outcome: The citation was affirmed but modified to non-S&S, unlikely injury, and low negligence, with a $125 penalty.
• Key point: A damaged electrical component may violate the maintenance standard even when the evidence does not make a serious shock injury reasonably likely.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

July 16, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

RIVER
VIEW COAL, LLC,                          

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2013-82

A.C.
No. 15-19374-300393

Mine:
River View Mine

DECISION

Appearances:               Elizabeth
Friary, Esq., U.S. Department Labor, Nashville, Tennessee, for Petitioner

Gary
McCollum, Esq., River View Coal, LLC, Lexington, Kentucky, for Respondent

Before:                        Judge
Rae

This
case is before me upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Mine
Act”), 30 U.S.C. § 815(d). The Secretary’s petition alleges that River View
Coal, LLC (“River View”) is liable for a total of seven violations of the
Secretary’s mandatory safety standards for underground coal mines.” 30 C.F.R. §

75. It proposes the imposition of penalties totaling $9,748.00. A Decision
    Approving Partial Settlement was issued on October 23, 2013 for six of the
    seven citations. The parties presented testimony and documentary evidence at a
    hearing in Henderson, Kentucky on the one remaining citation with a proposed
    penalty of $687.00. Post-hearing briefs and responses to my intent to take
    judicial notice of certain documents were submitted by both parties.[1]

After consideration of evidence on the
record, the judicial notice documents, and post-hearing briefs submitted by the
parties, I find that the Secretary has proven a violation as alleged. I impose
a civil penalty in the amount of $125.00 for the violation.

The parties submitted the following
stipulations: 1) River View operates the River View Mine; 2) River View is
subject to the Mine Act and the undersigned has authority to hear the case and
issue a decision; 3) River View is a mine as defined in section 3(h) of the
Mine Act; 4) River View produced 7,582,894 tons of coal in 2011; 5) At all
times relevant to this proceeding, River View had an effect upon interstate
commerce within the meaning and scope of section 4 of the Mine Act; 6) Copies
of the citations in contest are authentic and were served on River View by an
inspector employed by MSHA; 7) River View timely contested the violations; 8)
Imposition of a reasonable penalty will not affect the ability of River View to
remain in business. Ex. J-A.

Findings of Fact
and Conclusions of Law

The River View mine is a large
underground coal mine with two seams, the No. 9 and the No. 11. Tr. 17. On
August 3, 2012, MSHA Inspector Sammy Pollard, Jr.[2]
conducted an E01, general inspection, in the No. 11 seam for diesel equipment
and outby equipment. Tr. 16, 17. He was accompanied by the No. 11 seam safety
director, Jerry Hedgepath.[3]
Tr. 17.

Citation
No. 8508352

Citation No. 8508352 was issued by
Pollard on August 3, 2012 at 7:00 a.m., pursuant to section 104(a) of the Act. It
alleges a violation of 30 C.F.R. § 75.512 which states, “[a]ll electric
equipment shall be frequently examined, tested, and properly maintained by a
qualified person to assure safe operating conditions. When a potentially
dangerous condition is found on electric equipment, such equipment shall be
removed from service until such condition is corrected. . . .” The violation
was described in the citation as follows: “[t]he operator failed to maintain
the electrode holder provided for the welder located on the CO#5080 2-man
Diesel Mantrip in safe operating condition in that the insulation provided on
the electrode end is broken and missing for 1 inch on both sides. . . .” Ex.
S-1.

Pollard
determined that the violation was reasonably likely to result in lost workdays
or restricted duty, that it was S&S, that one person was affected, and that
the level of negligence was moderate.

Pollard
testified that he issued the citation because about one inch of insulation on
both tips of an electrode holder on a welder were missing. Tr. 18, 20. Hedgepath
confirmed this condition. Tr. 128. The welder was attached to a two-man diesel
trip, used by belt mechanics, and was powered hydraulically from the engine.
Tr. 19. It was available for use at the time that the citation was issued. Tr.
21.

An electrode holder is an insulated
clamp, located on a welder, and when squeezed, opens up to allow space for a
welding rod. Tr. 20, 98, 99, 125; Ex. R-1. The clamp holds the rod in place
while welding occurs. Tr. 20. Pollard stated that the purpose of the insulation
is to prevent accidental contact which could result in electrocution or a
shock. Tr. 20, 22.

Pollard did not know what the output
voltage of the welder was when he cited the condition and was not familiar with
the specifics of how to determine whether the missing insulation would be
dangerous if a miner unintentionally came in contact with the bare metal. Tr.
36, 40.

However,
Michael Moore[4],
a certified electrician and MSHA electrical inspector, believed that the
missing pieces of insulation posed a danger to miners. Tr. 51, 52. Moore
explained that the amps that the welder puts out are what can injure a person.[5]
Tr. 51. He maintained that if a miner touched the bare spot left by the missing
insulation when up against wet metal[6],
he would have received 2,000 milliamperes (mA). Tr. 55, 57. In reaching this
number, Moore took notice of the fact that the resistance rating of the human
body is between 500 and 1500 ohms, depending on how dry the body is. Tr. 58.

Moore, however, did not contact anyone
at River View Mine to obtain the voltage output of the welder during normal
mining operations, a number that Respondent’s counsel asserted was needed to
perform accurate calculations. Tr. 66. In addition, when Respondent’s counsel
did the math with Moore[7]
at the hearing, they reached a number of 28 mA, which Moore agreed was correct.
Tr. 66. Moore contended that any amount over 20 mA would create a shock that
affects the heart. Tr. 73. He determined this from internet research. Tr. 76.

Respondent
called Daryl Halcom[8],
Alliance Coal Company’s electrical safety inspector, to rebut Moore’s
testimony. Halcom confirmed that the welder had direct current (DC), which is
current that moves in a straight line and does not vary or change. Tr. 83. He
spoke with the chief electrician at the River View Mine and asked the chief to
check the voltage output of the welder while welding. Tr. 85. Halcom testified
that the chief reported that the output voltage was 22 to 35 volts.[9]
Tr. 85.

In
making his calculations, Halcom stated that the resistance of a human body is
1,000 ohms fingertip to fingertip and that it takes one volt to push one amp through
one ohm. Tr. 92. He calculated that the welder would create an exposure of 35 mA
and that if accidentally touched by a miner, would only tingle. Tr. 93.

Arguments
and Analysis

Respondent argues that no violation of
section 75.512 exists because the Secretary failed to prove that the welder
attached to the mantrip was electrical. Resp. Br. at 10. It states that the
welder and its components were attached to a diesel personnel carrier and
powered by a diesel engine, which does not constitute electrical equipment. Id
(citing Mettiki Coal Co., 11 FMSHRC 2435 (Dec. 1989) (ALJ), where the
judge vacated a citation for failure to record examinations of two
diesel-powered locomotives, stating that the locomotives were not subject to
section 75.512 even though its lights and gauges operated off an electric
generator).

The Secretary argues that the welder is
in fact electrical equipment because it is undisputed that the welder ran on DC
current, and a large portion of the testimony at hearing involved assessing the
electrical shock potential and whether it was a hazard. Sec’y Resp. at 2. He
also distinguished Mettiki Coal from the current situation, pointing out
that the citation was issued for failure to record an examination of two diesel
locomotives that contained lights and gauges that were an integral part of
their operation as opposed to this case where the welder was not an electrical
component of the mantrip. Sec’y Resp. at 5-6.

I
find the Secretary’s arguments to be persuasive and give deference to his interpretation.
It is undisputed by the testimony at hearing that the welder ran on DC current
and had the potential to cause an electrical shock. Here, the welder was
added on to the mantrip and was not an integral component or part of the
mantrip’s operation as in Mettiki Coal. While the welder ran on a diesel
engine, it was still a piece of electrical equipment and subject to section 75.512.

Respondent also asserts that the
Secretary must prove an inadequate examination by a qualified person, as
defined in the regulations, at the time of the examination, not at the time of
the inspection, in order to prove a violation, Resp. Br. at 15 (citing Excel
Mining, 35 FMSHRC 2511, 2522-2525 (Aug. 2013) (ALJ) and Twenty Mile Coal
Co., 34 FMSHRC 2138, 2171 (Aug. 2012).

The cases cited by Respondent are quite
distinguishable from this case as they involve citations for an inadequate
preshift examination and an inadequate on-shift examination. Here, the
inspector did not write the citation for an inadequate examination during the
previous week, he wrote the citation for failure to maintain the electrode
holder. The standard requires that electrical equipment be maintained by a
qualified person. While Respondent argues that a qualified person meets the
requirements of section 75.512-2 by performing an exam and maintenance on a
weekly basis, this does not excuse or require vacating a citation for failure
to address hazardous conditions in the interim. Adopting Respondent’s
interpretation of this standard would frustrate the protective purposes of the
Act by allowing any hazard on any electrical piece of equipment to go
unaddressed for up to a week. The Commission has consistently interpreted “maintain”
to mean continuing functioning condition and stated that ‘“the inclusion of the
word ‘maintain’ in the standard … incorporates an ongoing responsibility on the
part of the operator.”’ Nally & Hamilton Enterprises, Inc., 33
FMSHRC 1759, 1763 (Aug. 2011). Company policy required the performance of a
preoperational exam before every new operator, even if one had already been
done, in order to correct conditions or hazards that arise between required
weekly exams. Tr. 132. If the belt mechanic found a problem, it would be his
duty to report that to the qualified person who would then be responsible for
addressing the issue. Tr. 140. These actions were not taken in this case.

As the most contentious issue at hearing
seemed to be the level of danger that the condition posed, determining that
level is not necessary to find a violation of the standard. On this front, the
standard only requires that the welder have been safe to use and did not pose a
potential danger. It is undisputed that touching the bare metal where the
electrode holder had broken off would have caused a shock. Even if the shock
was not a significant one, I agree with the testimony from Pollard and Moore
that a miner’s initial reaction would be to jump back, which could cause a head
injury if in a confined space or cause a miner to fall or slip. Tr. 24, 53.

As a result of these determinations, I
find that the welder was not maintained in safe operating condition and that
Respondent violated section 75.512.

S&S

An S&S violation is a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A
violation is properly designated S&S, “if, based upon 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 reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As
is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: (1) the underlying violation; (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 that the injury will be of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord
Buck Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin
Power Co., Inc. v. Sec’y of Labor, 861 F. 2d 99,103 (5th Cir. 1988)
(approving Mathies criteria).

It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. The element is established only if
the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co., Inc.,
7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the
particular facts surrounding the violation and must be made in the context of
continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125
(Aug. 1985); U.S. Steel, 7 FMSHRC at 1130. The Commission has emphasized
that it is the contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. U.S. Steel Mining Co., 6
FMSHRC 1824, 1836 (Aug. 1984).

I have found that the violation has been
established. The failure to
maintain the electrode holder contributed to a discrete safety hazard, a miner
receiving an electrical shock. The validity of the S&S finding turns on
whether the hazard was reasonably likely to cause an injury or injuries of a
reasonably serious nature.

Pollard explained that the belt
mechanics may use the welder on metal belt headers which are damp areas because
of the sprays used to prevent dust, and can also be in a confined space. Tr.
23, 25. He determined that injury was reasonably likely to result because if a
belt mechanic was allowed to continue working, he would use the welder in damp,
wet areas, or his hands could be wet, and without insulation, he would make
accidental contact with the bare metal and be shocked. Tr. 24. Pollard
contended that if a miner was shocked, he might jump, and if in a confined
area, could hit his head, fall down, or possibly break a leg, resulting in lost
workdays or restricted duty. Tr. 24.

Moore also believed that the conditions
posed a hazard to a miner that was reasonably likely to result in a serious injury
because the belt mechanics had to use the welder in order to weld the belts.
Tr. 49-50. He stated that a shock over 20 mA, 28 to 35 in this case, would
affect the heart, and that it was highly likely that if shocked, the miner
would jump, resulting in slip and fall injuries. Tr. 53. In addition, Moore
maintained that underground welders normally used regular leather gloves, which
could get wet, but did concede that a miner could “get by” if the gloves were
dry. Tr. 50, 56.

Hedgepath did not agree with Pollard’s
statements about the dampness of the No. 11 seam, stating that there were many
days when he walks around and his feet do not get wet. Tr. 115. He also
testified that it is company policy to wear welding gloves, and that miners are
disciplined for breaking safety rules. Tr. 127, 133.

Halcom confirmed that it was company
policy to wear welding gloves. Tr. 100. He also disagreed with both Pollard and
Moore, stating that even 35 mA would only tingle if the bare metal of the electrode
holder was accidentally touched and that it was not reasonably likely to kill a
miner or even cause lost workdays or restricted duty. Tr. 92, 93.

Analysis

Company
policy required miners to wear welding gloves and there were disciplinary
measures in place for failing to do so. Moore and Pollard testified to the fact
that if regular leather gloves got wet, the protection they provide could be
compromised. However, neither made any such statement about that situation
being the same with welding gloves and Moore confirmed that welding gloves are
of a higher grade than regular leather gloves. Tr. 51.

Based
on the documents that I took judicial notice of, Moore’s assumption that a
shock of over 20 mA affects the heart would have been close to correct if the
welder ran on alternating current (AC). However, the welder ran on DC current
which has a very different effect at 28 to 35 mA. According to The MERCK
Manual, “the threshold for perceiving DC current entering the hand is 5 to 10
milliamperes (mA). . . . The maximum amperage that can cause flexors of the arm
to contract but that allows release of the hand” is called the let-go current. The
MERCK Manual of Diagnosis and Therapy 3248 (Robert S. Porter & Justin
L. Kaplan eds., 19th ed. 2011). The let-go current varies with weight and
muscle mass, but for an average 154 pound male, the current is 75 mA. In order
for the heart to be affected, 300-500 mA are required. Id. The estimated
current of 28-35 mA is above the perception threshold but significantly below
the let-go current.

Moore’s testimony regarding the
likelihood and injury revolved around the use of wet leather gloves and AC
current. The current level being significantly below the “let-go” threshold,
the use of welder gloves, and the fact that the areas in which the welder was
used were only wet on occasion, makes the likelihood of injury too speculative
to find that it was reasonably likely a miner would be exposed to the danger of
a shock from the broken electrode holder. I, therefore, find that the hazard
was unlikely to cause an injury or injuries of a reasonably serious nature. The
violation was not S&S.

Negligence

Pollard determined that Respondent’s
level of negligence was moderate because the operator should have known through
visual observation and a proper examination that the welder was not being
maintained. Tr. 27, 31; Ex. S-2 at 21. Pollard, however, was unable to
determine how long the condition existed for but noted that the last exam was
on July 31, 2012. Tr. 31; Ex. S-2 at 22. He did not speak to the examiner or
any of the belt mechanics to determine the approximate time that the condition
occurred and agreed that it could have developed after the last weekly
examination. Tr. 32.

Moore testified that the condition must
have existed for several days because welders are generally used in rough
conditions and someone would have to mistreat them for the insulators to break
off. Tr. 142. He provided no further explanation.

Hedgepath
confirmed that there were no hazards found during the weekly examination on
July 31. Tr. 130. He testified that the belt mechanics are required to do
preoperational exams before using the mantrip, even if it has already been done
by a previous mechanic. Tr. 132. They are to report any issues to management,
and tag out the equipment. Tr. 140. In regards to the length of time that the
condition existed, Hedgepath contended that damage to the welder can happen in
an instant and that he has seen the tips of electrode holders break off because
they become brittle from extreme heat exposure. Tr. 131, 146.

Respondent
performed the required weekly examination on the mantrip and made no comments
about hazardous conditions. Company policy required the belt mechanics to do
preoperational exams on the mantrip before operating it, providing for the
opportunity to observe and report issues sometimes multiple times per day. There
was no evidence, other than Moore’s general statement, presented by the
Secretary as to whether Respondent mistreated the equipment and caused the
electrode holders to break. In addition, there was no evidence that management
was aware of the condition and the Pollard was uncertain how long the condition
had existed for. Based on these facts, I find the level of negligence to be
low.

Civil Penalties

The
Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC
1760, 1763-64 (Aug. 2012):

Section 110(i)
of the Mine Act grants the Commission the authority to assess all civil penalties
provided under the Act. 30 U.S.C. §820(i). It further directs that the
Commission, in determining penalty amounts, shall consider:

The operator’s
history of previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was negligent,
the effect on the operator’s ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.

30
U.S.C. § 820(i).

The
Commission and its ALJs are not bound by the penalties proposed by the
Secretary nor are they governed by MSHA’s Part 100 regulations, although
substantial deviations from the proposed penalties must be explained using the
section 110(i) criteria. See Sellersburg Stone Co., 5 FMSHRC 287,
293 (Mar. 1983). In addition to considering the 110(i) criteria, the judge must
provide a sufficient factual basis upon which the Commission can perform its
review function. See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006).

Ability
to Continue in Business, Good Faith, and Size of the Operator

The
parties have stipulated that the proposed penalty will not affect the
Respondent’s ability to continue in business. Ex. J-A. I find that Respondent
made a good faith effort to abate the citation. The parties stipulated
that the mine produced 7,582,894 tons of coal in 2011. Ex. J-A. Based on 30
C.F.R. § 100.3, I find that the size of the operator is large and therefore,
that the penalty assessed herein is appropriate to the size of the business.

History
of Previous Violations and Negligence

The history of violations provided
reflects that 472 violations became final between May 2011 and August 2012. Ex.
S-3. I accept the
figures reflected in the report as accurate. However, the overall violation
history set forth in the exhibit is deficient in that it provides no
qualitative assessment, i.e., whether the number of violations is high,
moderate or low. See Cantera Green, 22 FMSHRC at 623-24. The Secretary’s
form reflecting the originally assessed penalty amount for the litigated
violation (Secretary’s Exhibit A), does, however, give some qualitative
information by assigning points for the number of violations. 30 C.F.R. §
100.3(c). For total violation history, points used in the penalty calculation
are assigned on the basis of the number of violations per inspection day,
ranging from 0 points for 0 to 0.3 violations per day to 25 points for in
excess of 2.1 violations per day. The assessment form for the litigated
violation reflects that 2 points were assigned for overall violation history. I
find that Respondent’s violation history is low. The negligence and gravity of
each violation is discussed at length above.

Citation No. 8508352 is affirmed. However,
I find that the violation was unlikely to result in an injury of a reasonably
serious nature, requiring the removal of the S&S designation, and that
Respondent’s level of negligence was low. I assess a penalty of $125.00.

ORDER

It is ORDERED that Citation No.
8508352 be MODIFIED to reduce the likelihood of injury from “reasonably
likely” to “unlikely,” to delete the significant and substantial designation,
and to reduce the level of negligence from “moderate” to “low.”

It is further ORDERED that the
operator pay a total penalty of $125.00 within 30 days of the date of this
order.[10]

/s/Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Elizabeth
Friary, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th
Avenue North, Suite 420, Nashville, TN 37219

Gary
D. McCollum, Esq., River View Coal, LLC, 771 Corporate Drive, Suite 500,
Lexington, KY 40503

[1] The parties
filed responses to my intent to take judicial notice of documents that
explained the effects of electrical current on the human body. These documents
were from the Occupational Safety and Health Administration (OSHA) and the
Department of Health and Human Services (DHHS). The Secretary did not object. The
Respondent argued that the court should decline to take judicial notice of the
documents or, alternatively, take judicial notice of additional documents that
reflect the effect of direct current (DC) on the human body. Ultimately, I took
judicial notice of the OSHA and DHHS documents as well as the additional
documents that Respondent proposed.

[2] Pollard joined
MSHA in 2009 as a coal mine inspector. Tr. 15-16. He worked for several underground
coal mines from 1994-2009, 2 years of which were as a section foreman. Tr.
14-15. He is certified as a Kentucky foreman, instructor, and Southern Illinois
mine examiner. Tr. 16. Pollard is not a certified electrician. Tr. 38.

[3] Hedgepath has
been an employee at River View since 2009. Tr. 112. He started as an assistant
safety director and was the safety director of the No. 11 seam at the time that
the citation was issued. Tr. 113. Before starting at River View, he spent 23
years in the underground coal mining industry as a mechanic. Tr. 114. Hedgepath
is a certified underground and surface foreman, and a certified electrician.
Tr. 116.

[4] Moore has been
an electrical inspector with MSHA since 1986. Tr. 47. He received his
Bachelor’s degree in electrical engineering technology and completed an
apprenticeship in hydraulic, electrical, and mechanical areas. Tr. 46. Moore is
a certified electrician and foreman and has performed welding tasks in the
past. Tr. 47-48.

[5] Moore further
explained that amps are needed for the actual operation of the equipment and
milliamperes are used for the calculation of human exposure. Tr. 74.

[6] Pollard posited
that the belt mechanics may use the welder on metal belt headers which are damp
areas because of the sprays used to prevent dust. Tr. 23.

[7] During this
analysis, Moore used 140 amps in the calculation as an estimate. Tr. 65. The
welder could run up to 240 amps. Tr. 65.

[8] Halcom is
presently employed by Alliance Coal Company as a safety class instructor on
electrical safety. Tr. 78-79. He graduated from Eastern Kentucky University
with a degree in industrial technology, specializing in electronics. Tr. 78. He
also worked for Peabody Coal for 26 years as maintenance foreman and chief
electrician. Tr. 79. Afterwards, Halcom joined MSHA for 7 years as electrical
inspector. Tr. 79. He is a certified underground and surface mine foreman, instructor,
and a master electrician. Tr. 81, 82.

[9] The test was
done on a new welder, not the welder for which the citation was issued. Tr.

107. Halcom stated that the voltage output would have been the same as the
     cited welder. Tr. 111.

[10] Payment should
be sent to: Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.