Secretary of Labor v. Mach Mining, LLC

Plain-English summary

MSHA found two inoperative visual and audible chirp alerts on high-voltage longwall equipment and cited Mach Mining under the weekly testing and examination standard. The inspector nevertheless testified that Mach had performed the required tests, and the Secretary offered no examination records or other evidence showing a missed test. The Commission majority held that section 75.821(a) requires periodic testing but does not itself impose an ongoing maintenance duty, which is expressly found in section 75.512. Because the Secretary never cited section 75.512 or sought to amend before resting, the majority affirmed the directed verdict vacating both citations. Commissioner Mary Lu Jordan dissented, reasoning that section 75.821(a) includes a maintenance obligation and that, at minimum, the case should have been remanded under the correct standard.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.821(a)
• Outcome: The ALJ's directed verdict vacating both chirp-alert citations was affirmed.
• Key point: The Secretary must prove the elements of the cited standard or timely amend the charge; evidence of defective equipment did not prove that required weekly tests were omitted.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR ,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA)

v.

MACH MINING, LLC

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Docket Nos.
 LAKE 2014-77

LAKE 2014-132

BEFORE:  Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY:   Althen, Acting Chairman; Young
and Cohen, Commissioners

This proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”), and involves two citations issued by the Department of Labor’s
Mine Safety and Health Administration (“MSHA”) to Mach Mining, LLC (“Mach”). 
The citations allege that Mach violated 30 C.F.R. § 75.821(a) by failing to
maintain chirp alerts on a disconnect box and power center. [1]

Mach contested the citations and the associated
civil penalties.  The case proceeded to a hearing before a Commission Administrative
Law Judge.  After counsel for the Secretary of Labor presented his case, Mach’s
attorney moved for a directed verdict.  The Judge granted Mach’s motion and vacated
both citations.  38 FMSHRC 1379 (June 2016) (ALJ).  Thereafter, the Secretary
filed a petition for discretionary review challenging the Judge’s grant of
directed verdict in favor of Respondent.

We find that substantial evidence supports the
Judge’s conclusion:  The Secretary did not present evidence demonstrating that Mach
failed to perform the testing and examination required by section 75.821(a).  Id.
at 1381-82 n.2.  Accordingly, we affirm the Judge’s decision.   

I.

Factual
and Procedural Background

Mach operates an underground bituminous coal
mine in Williamson County, Illinois.  On June 18, 2013, MSHA Inspectors Britt
Belford and John Butcher conducted a quarterly longwall inspection at the mine,
accompanied by Parker Phipps, the Mach longwall coordinator. 

When the inspectors reached the headgate in the
No. 2 entry outby the longwall face, they began to examine the mule train. [2]   Inspector
Butcher observed that two of the mule train’s chirp alerts [3]
were inoperative.  According to Inspector Butcher, the chirp alerts should have
been both flashing and producing a high-pitched noise every two to three
seconds.  However, Butcher observed that the chip alerts on the disconnect box
and 4000 KVA power center were silent and did not flash. 

Butcher then issued two citations alleging
violations of section 75.821(a).  Both citations were designated as
“significant and substantial” (“S&S”), [4]
and the result of a moderate degree of negligence. 

A hearing was held before a Commission Administrative
Law Judge.  At the conclusion of the Secretary’s case, Mach made a motion for
directed verdict as to the two citations in question.  Mach argued that section
75.821(a) requires that a qualified person must test and examine each unit of
high-voltage longwall equipment and circuits at least once every seven days.  Mach
noted that Inspector Butcher testified that the examinations had in fact been performed. 
In addition, Mach noted that the Secretary had failed to offer any evidence
about the required seven-day examination of electrical equipment at the
longwall. 

The Secretary contended that it was reasonable
to infer from Butcher’s testimony that the chirp alerts had not been tested,
since two were inoperative at the time of the inspection.  Moreover, the
Secretary argued that the standard required an ongoing duty of maintenance that
required Mach to maintain the chirp alerts in working condition. 

The Judge orally granted Mach’s motion at the hearing. 
In his written decision, the Judge explained that he had granted the motion
because Inspector Butcher’s allegation rested solely on the fact that he
believed the chirp alerts were not properly maintained.  The Judge noted that
the inspector had answered in the affirmative when asked if there was “no
dispute in your mind that the tests that are required by [Section] 75.821(a)
were actually performed at the times required, correct?”  38 FMSHRC at 1382 n.2
(quoting Tr. 109).  Because the Secretary had failed to establish that a
qualified person had not tested and examined the chirp alerts within the last
seven days to ensure that the equipment was being properly maintained, the
Judge granted the motion for directed verdict and vacated the citations.

II.

Disposition

On appeal, the Secretary argues that the
Judge erred in finding that section 75.821(a) does not require operators to
maintain electrical protection devices on high-voltage longwall equipment. 
According to the Secretary, such a reading would allow operators to ignore
nonfunctional electrical equipment for up to an entire seven days, until the
operator is required to perform the next examination.  Instead, the Secretary
claims that the standard’s regulatory history and placement strongly supports a
plain reading of the standard requiring an ongoing duty to maintain the chirp
alerts.  

We find the Secretary’s arguments unconvincing. 
The Secretary’s characterization of the regulatory history presupposes that
section 75.821(a) was intended to replace the multiple requirements contained
in other regulations that impose a duty to maintain electrical equipment. 
However, the standard’s history and context make clear that section 75.821(a)
was intended to supplement, not supplant, existing examination and maintenance
requirements. 

Prior to the promulgation of section 75.821,
mine operators were required to petition for a modification of 30 C.F.R. §
75.1002 before high-voltage cables could be used to supply power to their
longwall operations.  57 Fed. Reg. 39,041, 39,041-42, 39,047-48 (proposed Aug.
27, 1992).  In 1989, MSHA proposed significant revisions to the existing
electrical standards in 30 C.F.R. Part 75.  The proposed revisions would have
allowed the use of high-voltage cables without petitioning for a modification,
in exchange for more stringent rules governing electrical longwall equipment.  See
54 Fed. Reg. 50,062-01, 50,122 (proposed Dec. 4, 1989).  The proposal, which
did not contain an analog to section 75.821, did not become a final rule.  MSHA
later said that its withdrawal of the proposed rule was due, in part, to the
fact that the 1989 proposed rule “specifically focuse[d] on the safety issues
related to use of high-voltage with longwall mining systems and [was] not
incorporated within the context of an overall revision to the electrical safety
standards.”  57 Fed. Reg. at 39,042.

In 1992, MSHA proposed a new rule to address
these deficiencies.  The 1992 proposed rule included a new section 75.821to
address testing and examination requirements of high voltage longwall
electrical equipment.  Id. at 39,047-48.  MSHA stated that section
75.821 was to be “used in conjunction” with other regulations requiring
maintenance, specifically section 75.1002. [5]  
Id . at 39,047.  Moreover, the 1992 proposed rule created section 75.813, [6] which
requires that all other existing electrical standards apply to longwall
circuits and equipment where appropriate.  Id. at 39,043.  The final
rule, which included section 75.821, was issued on March 11, 2002, after an
extended notice-and-comment period.  67 Fed. Reg. 10,972, 10,992-95.

Consistent with its history and placement, the plain
language of section 75.821(a) specifically requires periodic examinations of
longwall electrical equipment.  Section 75.821(a) does not require maintenance
of electrical equipment.  By its clear and unambiguous terms, it requires only
that:

At
least once every 7 days, a person qualified in accordance with

§
75.153 to perform electrical work on all circuits and equipment must test and
examine each unit of high-voltage longwall equipment and circuits. . . .

30 C.F.R. § 75.821(a).

In light of the clear and unambiguous regulatory
language, we decline the Secretary’s invitation to read a requirement for maintenance
into the standard where one simply does not exist. [7]
 Had the Secretary intended the standard to contain an ongoing maintenance
requirement, he surely would have done so, as is evident in the numerous
regulations that expressly require maintenance.   See, e.g., 30 C.F.R. §§
75.503, 75.506(a), 75.506-1(a), 75.1002(a), 75.512, 75.1725(a).   Indeed,
section 75.512 provides, in pertinent part: “All electric equipment shall be
frequently examined, tested, and properly maintained by a qualified
person to assure safe operating conditions .”  30 C.F.R. § 75.512 (emphasis
added).

In the context of high-voltage longwall equipment,
however, the Secretary elected to promulgate a standard that complemented
existing regulations by imposing stricter requirements for examinations of longwall
electrical equipment but did not create an additional maintenance requirement. 

The standards governing high-voltage electrical equipment
are part of a total set of regulations to protect miners’ safety.  As 30 C.F.R.
§ 75.813 clearly states, “[a]ll other existing standards . . . must also apply
to these longwall circuits and equipment where appropriate.”  Thus, the
Secretary could have looked beyond section 75.821 for a standard more
appropriately suited to the facts of the case, such as section 75.512.  He did
not do so. 

Instead, the Secretary proceeded to present his
case at hearing on a theory not supported by the evidence.  The Secretary
alleged a violation of section 75.821(a), which requires a weekly examination
of electrical longwall equipment, but failed to provide any evidence that adequate
examinations were not performed.  The Secretary did not submit Mach’s
examination records as evidence nor did he attempt to elicit testimony from
adverse witnesses.  The only evidence that the Secretary presented was the
testimony of Inspector Butcher, and he testified that Mach had unquestionably
performed the tests required by section 75.821(a). 

Because an operator has an ongoing duty under
Section 75.512 to maintain its equipment to protect miner health and safety, it
appears that the inspector could have issued citations under that section.  The
Commission’s procedural rules provide that petitions for assessment of
penalties by the Secretary shall identify the section of the Mine Act or
regulations alleged to have been violated.  29 C.F.R. § 2700.28(b)(1).  These
rules reflect the fundamental requirements of due process that an operator
charged with a violation of the Act be given fair notice of the standard that
it has allegedly violated.  Neither the citation nor the penalty petition in
this case refers to, let alone asserts, a violation of section 75.512. 

Here, after filing the penalty petition, the
Secretary could have moved to amend the citations.  In the interest of justice,
Judges freely grant such motions absent a showing of prejudice.  See, e.g.,
Cyprus Empire Corp. , 12 FMSHRC 911, 916 (May 1990); El Paso Rock
Quarries, Inc. , 3 FMSHRC 35, 38 (Jan. 1981).  However, the Secretary never
made such a motion prior to resting his case.  Quite reasonably, Mach mounted its
defense against the Secretary’s allegations that the operator violated section
75.821.  The Secretary’s citation of a violation of section 75.821(a) went to a
directed verdict without any mention of section 75.512. [8]
 Thus, we are left to adjudge only the Secretary’s allegations under section
75.821(a).  Given the lack of evidence of a violation of that section, the
Judge correctly vacated the citations upon Mach’s motion for a directed
verdict. [9]

III.

Conclusion

For
the reasons set forth herein, we affirm the Judge’s decision.

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Commissioner Jordan, dissenting:

This case
arose when an MSHA inspector determined that two “chirp alerts” on the high
voltage longwall equipment failed to emit any audible sound.  Without proper notification from a functioning chirp
alert that certain equipment is energized, miners are at risk of fatal injuries
from electrocution.  38 FMSHRC 1379, 1381 n.2 (June 2016) (ALJ); Tr. 74-75. 

The
inspector issued two citations, each referencing a violation of 30 C.F.R.

§ 75.821(a). [10]  
The judge below dismissed the challenged citations.  He determined that the
standard relied upon by the inspector required tests and examinations of the
equipment, but did not require that the equipment be properly maintained.  According
to the Judge, unless MSHA could show that the operator had failed to conduct
the mandatory tests and examinations, the agency could not sustain a violation
of this standard.  Since the inspector’s testimony did not contain such proof,
the Judge granted the operator’s motion for a directed verdict and dismissed
the two challenged citations.  My colleagues have agreed with this narrow construction
of section 75.821(a). 

I. 
Section 75.821(a) requires operators to properly maintain high
voltage equipment.

As
the Judge and my colleagues correctly note, the standard in question explicitly
mandates periodic testing and examination of the longwall equipment and
circuits.  Contrary to my colleagues’ contention, this instruction does not
equate to “clear and unambiguous regulatory language” restricting the scope of
the standard to those specified activities.  Slip op. at 4.  My colleagues have
chosen to ignore the language explaining that the reason for these exams and
tests is “to determine that electrical protection, equipment grounding,
permissibility, cable insulation, and control devices are being properly
maintained to prevent fire, electrical shock, ignition, or operational
hazards from existing on the equipment.”  30 C.F.R. § 75.821(a) (emphasis
added).

A standard
that mandates certain steps be carried out on equipment for the purpose of
determining that such equipment is being properly maintained necessarily
imposes an obligation on the operator to maintain that equipment.  This is made
evident when one considers the entire standard.  The purpose of section
75.821(a) is not simply to perform tests and examinations.  The purpose, as the
standard states, is “to prevent fire, electrical shock, ignition, or
operational hazards from existing on the equipment.”  30 C.F.R. § 75.821(a).  In
order to prevent these operational hazards, the equipment must be “properly
maintained.”  Id.

The
standard the inspector referenced in citing Mach is one of a group of
regulations promulgated in 2002 directed at high voltage longwalls.  In
proposing these standards the Secretary explained that “[p]roper testing,
examination, and maintenance of high voltage longwall systems would
assure that they would not pose increased hazards to miners.”  57 Fed. Reg. 39,041,
39,047 (proposed Aug. 27, 1992) (emphasis added).  By promulgating standards
“related specifically to the safe use of high-voltage longwall equipment,” 67
Fed. Reg. 10,972 (Mar. 11, 2002), MSHA envisioned “increased protection from
electrical hazards” ( id. at 10,973). 

Despite the efforts of the
Secretary to create a comprehensive and focused regulatory scheme relevant to
high-voltage longwall equipment, our colleagues insist that only the more
generic standard at 30 C.F.R. § 75.512 may be used to enforce a maintenance
requirement in this case. [11]  
The majority relies on 30 C.F.R. § 75.813 for this holding. [12]  
However, that standard simply clarifies that, in addition to the specific
safety standards that apply to high-voltage longwall circuits and equipment,
other existing MSHA safety standards continue to apply.  MSHA did not want the
mining community to conclude that the new standards were the exclusive means of
regulating high-voltage longwall equipment—section 75.813 means no more than
that.  Unfortunately, however, the measure that was included so as to avoid any
gaps in the miners’ protection is being used instead to restrict the
Secretary’s prosecutorial discretion and provide a rationale for vacating
citations. [13]  

II.  Even if section 75.821(a) were
limited to an examination and testing requirement, the Secretary’s evidence was
adequate to sustain a violation.

Section 75.821(a)
requires that a qualified person test and examine each unit of high-voltage
longwall equipment and circuits “ [a]t least once every 7 days.”  30
C.F.R. § 75.821(a) (emphasis added).  The referenced language implies an
obligation to examine the equipment more frequently under certain
circumstances.  Surely one such circumstance occurs when the equipment develops
a visible defect.  In this case the inspector arrived at the site and observed
that two separate warning devices were not functioning. 

The inspector testified
that miners frequented the area where this equipment was located and would have
noticed the fact the chirpers did not work.

[A]nybody that is around that longwall train should notice
that chirp alert is not working, because, you know, they’re on all the time
there’s power.  They’re on—every day when a crew goes—goes in and gets out of
the truck and walks by the disconnect and the power centers, they’re walking by
it and those are chirping and also the light is flashing. . . . There’s people
come there at the beginning of every shift and there’s electricians walk by,
the foreman walks by, the maintenance foremens walk by, and it’s noticeable
when those chirp alerts are working that they’re working, and in this case, you
know, both boxes, they weren’t working.

Tr. 76, 91-2.

The
existence of the hazardous condition, of which the operator was aware or should
have been aware, would trigger the requirement to test and examine the chirp
alerts.  Since failing to take steps to address the defective warning devices
could constitute a violation of section 75.821(a), even under the narrow
construction adopted by the Judge and my colleagues, the Judge erred in issuing
a directed verdict at the close of the Secretary’s case. 

III. 
Even if the majority ruling that the operator should have been cited under
section 75.512 were correct, the Commission should remand the case instead of
vacating the citation.

My
colleagues in the majority vote to vacate these citations because they conclude
the inspector listed the wrong safety standard on the citation.  They believe
he should have written 30 C.F.R. § 75.512 on the citation form, instead of
section 30 C.F.R. § 75.821(a).  Slip op. at 5.

Even if the
majority’s determination that section 75.512 is the relevant standard is
correct, the appropriate response would be to remand this matter in order for
the Judge to consider whether the operator violated that section.  This approach would be consistent with our
decision in Faith Coal Co ., 19 FMSHRC
1357 (Aug. 1997).  In that case, the citation alleged a violation of the wrong
standard (the cited standard had previously applied to methane monitors but had
been amended and renumbered).  The Judge vacated the citation on the ground
that it alleged a violation of the wrong standard and was never modified to
assert a violation of the correct standard.  The Commission reversed the
Judge’s decision to vacate the citation, holding that the Judge erred by
vacating the citation on the basis of the Secretary’s pleading error.  We
remanded for a determination of whether Faith’s conduct violated the correct
standard.  Id . at 1361-62.  Given that the majority’s central complaint
here appears to be that the inspector should have written section 75.512 on the
citation instead of section 75.821(a), we should follow our case precedent and
remand to the Judge.

My
colleagues’ concern that such an approach would violate the requirements of due
process is unfounded.  Of course, due process requires that an operator receive
adequate notice of charges made against it.  Here, Mach was on notice
from the time it was first cited that the inspector considered the violative
conduct to be a failure to maintain electrical equipment as evidenced by the
defective chirpers.  The citations allege that the volt disconnect box and
power center are “not being properly maintained to prevent electrical shock
hazards” and that the “chirp alerts fail[ ] to emit any audible sound to signal
that the [equipment] is energized.”  S. Exs. 111, 112.  Both citations were
abated when new chip alerts were installed.  Id.

The
Judge recognized that MSHA was charging the operator with failing to properly
maintain the electrical equipment.  He emphasized that the inspector stated “it
wasn’t his contention it was a test and examination requirement.  He was saying
the chirp alerts didn’t work.  It was a maintenance requirement. . . . It’s the
inspector’s theory of the case . . . .” Tr. 258. [14]  
Although I believe it to be entirely reasonable and appropriate for the
inspector to have referenced the high voltage longwall standard at 30 C.F.R. § 75.821(a),
it would hardly be prejudicial to amend the citation to refer instead to the
requirement at section 75.512.

Mine
operators have long been aware of their obligation to maintain electrical
equipment.  Section 305(g) of the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976), used language identical to that of
section 75.512 to mandate that “[a]ll electric equipment shall be frequently
examined, tested, and properly maintained by a qualified person to assure safe
operating conditions.”  Pub. L. No. 91-173, § 305(g), 83 Stat. 742, 778 (1969).
 This language requirement was retained in section 305(g) of the Mine Act, 30 U.S.C.
§ 865(g).

The
Commission long ago made clear that an operator’s requirement to maintain mine
equipment is an ongoing responsibility.  As we observed in Nally v. Hamilton
Enterprises, Inc. , 33 FMSHRC 1759, 1763 (Aug. 2011), a case involving a
back-up alarm on a truck, we have “consistently construed ‘maintain’ . . . to
require a continuing functioning condition.”  See also Lopke Quarries, Inc. ,
23 FMSHRC 705, 707-08 (July 2001) (“[t]he inclusion of the word ‘maintain’ in
the standard . . . incorporates an on-going responsibility on the part of the
operator”).  In sum, Mach was well aware of its legal duty to properly maintain
the chirpers.  

IV.
 Conclusion

I would vacate the
Judge’s decision and remand this case for further proceedings.

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

[1]
Section 75.821 is entitled “Testing, examination and maintenance.”  Subsection
(a) requires that:

At least once every 7 days, a
person qualified in accordance with

§ 75.153 to perform electrical
work on all circuits and equipment must test and examine each unit of
high-voltage longwall equipment and circuits to determine that electrical
protection, equipment grounding, permissibility, cable insulation, and control
devices are being properly maintained to prevent fire, electrical shock,
ignition, or operational hazards from existing on the equipment. Tests must
include activating the ground-fault test circuit as required by § 75.814(c).

[2]
A “mule train” is a colloquial name for the collection of equipment, including
disconnect boxes, pumps, and power centers, that are used to distribute
electric and hydraulic power to the longwall.  A “disconnect box” is an
electrical box where high voltage cables bring power into the mule train.  The
box has a switch that allows miners to cut all power to the entire mule train. 
From the disconnect box, power is transferred to power centers and ultimately
onto the electrical equipment used on the longwall.

[3]   A “chirp alert”
is a safety feature on an electrical box that provides an auditory and visual
warning when equipment is energized, thereby reducing the risk of electric
shock or electrocution. 

[4]
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. §
814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[5]
30 C.F.R. § 75.821(a) states that “Electric equipment must be permissible and
maintained in a permissible condition when such equipment is located within 150
feet of pillar workings or longwall faces.”

[6] 30 C.F.R. § 75.813 states that: “Sections 75.814 through
75.822 of this part are electrical safety standards that apply to high-voltage
longwall circuits and equipment.  All other existing standards in 30 CFR must
also apply to these longwall circuits and equipment where appropriate.”

[7]
The Secretary cites the Commission’s decision in Nally & Hamilton
Enterprises, Inc. , 33 FMSHRC 1759, 1763 (Aug. 2011), as supporting his
reading that section 75.821(a) establishes a duty to maintain.  However, the
Secretary’s reliance on Nally & Hamilton is inapposite.  In that
case, the Commission found that the inclusion of the term “maintain” in 30
C.F.R. § 77.410(c) imposed a continuing responsibility on the operator to
ensure that warning devices were maintained in working condition at all times.   Id.
at 1763.  By contrast, section 75.821(a) contains no such explicit maintenance
requirement.  

[8] Our colleague points to Faith Coal Co. , 19
FMSHRC 1357 (Aug. 1997), to suggest this matter should be remanded for the
judge to consider whether Mach violated section 75.512.  Slip op. at 10.  In Faith
Coal , the inspector mistakenly entered an outdated number for the cited regulation
in the citation paperwork.  Neither party noticed the error and proceeded to
try the case at hearing under the correct safety standard, which still existed
under a different number in the Secretary’s safety regulations.  The Commission
therefore determined that the operator had suffered no prejudice from the
Secretary’s pleading deficiencies and that the Secretary’s request to amend the
citation should be allowed.  17 FMSHRC at 1362.  Here, in contrast, Mach
directed its defense against a citation under section 75.821(a) and the
Secretary’s novel, expansive reading of that standard.  Mach has not had the opportunity
to defend against allegations that it violated section 75.512.  Thus, the procedural
history of Faith Coal renders it inapposite to the case at hand.  We
decline to send this case back to the judge to consider whether the operator
has violated a standard the Secretary has never sought to allege.

[9]
This decision is not criticism of
Inspector Butcher.  We recognize that MSHA inspectors have difficult jobs and
must make quick determinations in the field when issuing citations.  Inspector
Butcher identified defects in the chirp alerts and issued citations to remedy
what he saw as a danger to miner safety.  Inspectors may not have the legal
expertise required to always select the appropriate standard when issuing a
citation.  However, after a citation has been initially issued, it will be
reviewed again by MSHA staff in the process of preparing the petition for
assessment of penalties.  Then, if the operator contests the penalty, it is
reviewed again by the Secretary’s trial counsel in preparation for the hearing.
 Trial counsel must determine that the facts alleged in the citation constitute
a violation of the section of the regulations cited and, if not, should seek to
amend the citation as appropriate.  It is incumbent on the Secretary to make
corrections to his pleadings before hearing to ensure the correct violation is
charged and to provide due process.

[10]
The standard states:

Testing, examination and maintenance.

( a) At least once every 7 days, a person
qualified in accordance with § 75.153 to perform electrical work on all
circuits and equipment must test and examine each unit of high-voltage longwall
equipment and circuits to determine that electrical protection, equipment
grounding, permissibility, cable insulation, and control devices are being
properly maintained to prevent fire, electrical shock, ignition, or
operational hazards from existing on the equipment. Tests must include
activating the ground-fault test circuit as required by § 75.814(c).

30 C.F.R. § 75.821(a) (emphasis added).

[11]
Section 75.512 states in relevant part that “[a]ll electric equipment shall be
frequently examined, tested, and properly maintained by a qualified person to
assure safe operating conditions.”

[12]
30 C.F.R. § 75.813 states:  “Sections 75.814 through 75.822 of this part are
electrical safety standards that apply to high-voltage longwall circuits and
equipment.  All other existing standards in 30 CFR must also apply to these
longwall circuits and equipment where appropriate.”

[13]
According to my colleagues, because operators had an ongoing duty to maintain
equipment under section 75.512, and because section75.821(a) should be read to
supplement rather than supplant this obligation, the “standard more
appropriately suited to the facts of the case” is 75.512.  Slip op. at 5.  The
mental acrobatics that will be required of inspectors as a result of this
decision seems daunting. 

Indeed, the
majority acknowledges that “[i]nspectors may not have the legal expertise
required to always select the appropriate standard when issuing a citation.”   Id .
at 6 n.9.

With respect, I suggest
that the miners’ safety may suffer to the extent enforcement of mandatory
standards is dependent on inspectors needing sufficient “legal expertise.”

[14]
The Judge also told counsel for the Secretary:  “You proved that there was a
defect.”  Tr. 251.