Green River Coal Co., Inc.

Plain-English summary

At Green River's No. 9 underground coal mine, a mechanic and a roof bolter worked on a trailing cable while the disconnecting device was not locked out or tagged. Judge James A. Broderick found a violation of 30 C.F.R. § 75.511 and considered the mine's violation history and other penalty factors. He affirmed the order and citation and assessed a $750 civil penalty.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.511
• Outcome: Order No. 3418284 and Citation No. 3418285 were affirmed, with a $750 civil penalty.
• Key point: A disconnecting device for equipment being serviced must be locked out or tagged as required by the electrical safety standard.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GREEN RIVER COAL
DDATE:
19900321
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 89-210
PETITIONER A.C. No. 15-13469-03711

      v.                                No. 9 Mine

GREEN RIVER COAL CO., INC.,
RESPONDENT

                             DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary);
B.R. Paxton, Esq., Central City, Kentucky, for
Green River Coal Co., Inc. (Green River).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks a civil penalty for an alleged violation

of the mandatory safety standard in 30 C.F.R. 75.511
promulgated under the Federal Mine Safety and Health Act of 1977
(the Act). Pursuant to notice, the case was heard in Owensboro,
Kentucky, on January 18, 1990. Allen L. Head testified on behalf
of the Secretary. Michael McGregor testified on behalf of Green
River. The parties were given the opportunity to file post
hearing briefs. Neither party has filed such a brief. I have
considered the entire record and the contentions of the parties
in making the following decision. FINDINGS OF FACT

 1. At all times pertinent hereto, Green River was the owner

and operator of an underground coal mine in Hopkins County,
Kentucky, known as the No. 9 Mine.

 2. Although the corporate identity did not change, the

management of the No. 9 Mine changed as of November 15, 1988.

 3. Green River produces approximately one million tons of

coal per year and has approximately 200 employees. It is a
relatively large operator.

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4. During the period from April 11, 1987 to November 14, 1988,
869 paid violations were assessed at the subject mine, of which
705 were denominated significant and substantial. None of these
violations were of 30 C.F.R. 75.511.

 5. During the period from November 15, 1988 to April 11,

1989, when the mine was under new management, 123 paid violations
were assessed, of which 93 were denominated significant and
substantial. None of these violations were of 30 C.F.R. 75.511.

 6. On April 12, 1989, on the Number 2 Unit of the subject

mine, a mechanic and a roof bolter were working on a trailing
cable for a roof bolter machine. The mechanic had cut open a
permanent splice in the cable and was checking the cable for a
fault or ground by inserting the probes of his volt meter into
the power wires.

 7. The disconnecting device at the unit power center, was

not locked out or tagged. The power center was approximately 200
feet from the trailing cable being worked on, and was not visible
from the cable because two 90 degree corners and a ventilation
check curtain separated them. The disconnecting device was lying
on the mine floor in front of the receptacle from which it was
unplugged.

 8. Other disconnecting devices and receptacles were in the

area. These were attached to two other roof bolting machines.

 9. The power center voltage is 4160 volts; 480 volts goes to

the roof bolter cable. This is considered low voltage.

 10. Federal Mine Inspector Allen Head issued a section

107(a) imminent danger closure order and a section 104(a)
citation because of the condition described in finding of fact
No. 7.

 11. In the event that someone had inadvertently put the

power on the trailing cable involved, the mechanic could have
been electrocuted or severely shocked. Approximately 16 miners
work on the section and others come on the section periodically.

 12. The section foreman was not in the area when the

violation was cited.

 13. The mechanic who, after the order and citation were

issued, locked out and tagged the disconnecting device told Green
River's safety manager, Michael McGregor, "this isn't the first
mine we've worked in." The inspector understood that statement

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to mean that the safety manager "was making a big issue out of
not locking and tagging out, and also that he [the mechanic]
probably had a practice of not locking and tagging out." (R.22)
McGregor was asked how he interpreted the mechanic's statement
and he responded: "Largely, the same way Mr. Head took it." (R.
26)

 14. Since November 1988, Green River has conducted weekly

safety meetings with all employees. Separate weekly meetings with
top management discuss safety matters. Lock out procedures are
discussed in the weekly safety meetings. The mechanic has an
electrical certification, and therefore is required to undergo a
16 hour retraining program annually.

 15. The violation was abated within 3 minutes when the

mechanic locked out and tagged the disconnecting device. Also,
Green River's safety manager informed him of the company policy.
The mechanic admitted that he knew of the lock out and tag
policy. He had a lock and tag on his person. The following day, a
meeting was held with all maintenance personnel, and the company
policy on locking out and tagging was reiterated.

REGULATION

 30 C.F.R.   75.511 provides as follows:

 [STATUTORY PROVISION]

 No electrical work shall be performed on low-, medium-,
 or high-voltage distribution circuits or equipment,
 except by a qualified person or by a person trained to
 perform electrical work and to maintain electrical
 equipment under the direct supervision of a qualified
 person. Disconnecting devices shall be locked out and
 suitably tagged by the persons who perform such work,
 except that in cases where locking out is not possible,
 such devices shall be opened and suitably tagged by
 such persons. Locks or tags shall be removed only by
 the persons who installed them or, if such persons are
 unavailable, by persons authorized by the operator or
 his agent.

ISSUES

 1. Did Respondent violate the mandatory safety standard

contained in 30 C.F.R. 75.511 by performing electrical work on
a trailing cable without locking out and tagging the
disconnecting device to the cable?

 2. If so, what is the proper penalty for the violation?

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CONCLUSIONS OF LAW

                            I

 Respondent was subject to the provisions of the Act in the

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

                            II

 Finding of Fact No. 7 establishes a violation of the

standard in question. Green River does not seriously contest the
occurrence of a violation.

                           III

 The violation was very serious, and could have resulted in

electrocution or serious electrical shock to the mechanic or the
roof bolter, if the power was put on the cable by the section
foreman or another miner. The occurrence of such an event is not
unlikely, when the disconnecting device is not locked out and
suitably tagged.

                            IV

 The violation resulted from Green River's negligence. Even

though the mechanic had been properly trained, he had apparently
been involved in prior violations of the standard and was not
adequately supervised to make certain that he followed the
regulation.

                            V

 Green River's history of prior violations has improved under

its new management (45á violations per month prior to November
15, 1988; 24á violations subsequent to that date). I take that
improvement into account, but nevertheless consider the entire
history shown in Government's Exhibits 4-A and 4-B. Secretary v.
Green River Coal Co., 11 FMSHRC 2036 (1989), Commission Review
denied, November 1989, appeal docketed, No. 89-4133 (6th Cir.
December 27, 1989).

                            VI

 Considering the above findings and conclusions in the light

of the criteria in section 110(i) of the Act, I conclude that an
appropriate penalty for the violation is $750.

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ORDER

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

IT IS ORDERED:

 1. Order No. 3418284 and Citation No. 3418285 issued April

12, 1989, are AFFIRMED.

 2. Respondent Green River shall, within 30 days of the date

of this decision pay the sum of $750 as a civil penalty for the
violation found herein.

                                  James A. Broderick
                                  Administrative Law Judge