Monterey Coal Company

Plain-English summary

Monterey Coal Company contested a citation alleging that a trailing cable at its No. 1 Mine was not protected from mobile equipment. Judge Avram Weisberger found that the cable's placement exposed it to possible repeated vehicle contact and therefore violated 30 C.F.R. § 75.606. He concluded that the evidence did not establish a reasonable likelihood of an injury-producing event because the cable was not energized, had passed visual and megger testing, and was partly cushioned in loose material. The judge amended the citation to remove its significant-and-substantial designation and assessed a $125 civil penalty. The decision covers both the contest proceeding and the related civil penalty proceeding.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.606
• Outcome: The trailing-cable violation was affirmed, its S&S designation was removed, and a $125 penalty was assessed.
• Key point: A cable can be inadequately protected even when no damage is found, but the violation is not S&S without evidence establishing a reasonable likelihood of a serious injury-producing event.

Full text (FMSHRC public release)

CCASE:
MONTEREY COAL V. SOL (MSHA)
DDATE:
19930324
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

MONTEREY COAL COMPANY, : CONTEST PROCEEDING
Contestant :
v. : Docket No. LAKE 92-216-R
: Citation No. 3842177; 1/24/92
:
SECRETARY OF LABOR, : No. 1 Mine
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Mine ID 11-00726
Respondent :

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 92-252
Petitioner : A.C. No. 11-00726-03701
v. :
: No. 1 Mine
MONTEREY COAL COMPANY, :
Respondent :

                           DECISION

Appearances: Miguel J. Carmona, Esq., U.S. Department of Labor,
Office of the Solicitor, Chicago, Illinois, for
the Secretary of Labor;
Thomas C. Means, Esq., Crowell & Moring,
Washington, D.C., for Monterey Coal Company.

Before: Judge Weisberger

                     Statement of the Case

 At issue in these consolidated cases is the validity of a

citation issued on January 24, 1992, by MSHA inspector Jimmy Ray
Lee alleging a violation of 30 C.F.R. 75.606 as follows: "The
trailing cable supplying power to the number 1332 ratio feeder
was not protected to prevent damage from mobile equipment. The
cable had tire tracks on it for a distance of eight feet and was
pushed into the mine floor 2 inches." Section 75.606 supra
provides as follows: "Trailing cables shall be adequately
protected to prevent damage by mobile equipment."

 Pursuant to notice, the cases were scheduled for hearing,

and were heard in St. Louis, Missouri, on December 15, and 16,
1992. At the hearing, Jimmy Ray Lee, Jerry Collier, and Lonnie
Conner, testified for Petitioner. Raymond Houlihan, Floyd W.

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Johnson, Paul Mihalek, Robert Whitmore, Allan Silkwood, and
Richard Mottershaw, testified for Respondent. Subsequent to the
hearing, Respondent filed a post-hearing brief on January 27,
1993. On January 29, 1993, the Secretary filed a post-trial
brief. On February 5, 1993, Respondent filed a reply brief.

                  I.   Findings of Fact

1. The floor of the entry in question is 18 feet wide. A
   roadway in the entry is 10 feet wide with loose material on
   either side. The widest vehicle that travels the roadway in this
   area is nine feet wide.

2. On January 24, 1992, a cable, which was attached to a feeder
   and was not energized, was lying not in the floor of the entry
   but was approximately three feet from the rib in loose material
   that had accumulated from sloughage off the rib. The cable was
   close to the demarcation between this material and the roadway,
   but it was not in the roadway. The cable was not in the normal
   path of the vehicles that travel the entry in question.(Footnote
   1)

3. An eight foot long section of the cable had rubber tire
   track marks on it indicating that it was run over, for
   approximately an eight foot distance, by either a rubber-tired
   battery or diesel mobile vehicle. MSHA inspector Jimmy Ray Lee
   issued a citation alleging a violation of Section 75.606 supra.

4. The cable had been pushed approximately two inches into the
   material by the vehicle that had run over it.

5. There is no evidence in the record as to why and exactly
   when the cable was run over.

6. The composition of the material into which the cable had
   been pushed when it was run over was clay mixed with rock dust.
   There were also pieces of crushed stone in the material. There
   is no specific measurement of the depth of the loose material, or
   the fire clay which was underneath it. However, underneath the
   clay was limestone, a hard material.

1According to Allan Silkwood, the safety superintendent of the
subject mine, employees are instructed to drive toward the right
side inby, in order to avoid the cables and other equipment that
are placed along the left side inby. Thus, there appears to be
corroboration for the opinion of Floyd W. Johnson, the
construction coordinator at the mine, that a vehicle travelling
the normal path would not have hit the cable in issue and run
over it. However, it appears not to be controverted that, in
fact, a vehicle did run over the cable in question for a distance
of eight feet.

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7. Lee examined the cable visually and by touch. No damage to
   the outer insulation was noted. Nor was any abnormality detected
   upon this examination which would indicate the existence of
   internal damage. Also, a megger test was performed which
   indicated a reading of infinity. This reading exceeded the
   requirements for a determination that the inner insulation around
   the three power conductor and two ground wires was not broken.
   After these examinations, Lee moved the cable to within a few
   inches of the rib, and abated the citation.

8. Jerry Collier, a supervisory electrical engineer employed by
   MSHA, opined that had the cable not been moved in abatement, it
   could have been run over again, and its insulation could have
   been punctured by a sharp object laying on the floor. He also
   indicated that in the process of being run over, the cable could
   be crushed, which could cause a conductor to act as a knife, and
   cut another conductor or ground cable, causing an electrical
   short and possible arcing. He indicated that if the cable were
   to be repeatedly being run over and crushed, the inner conductors
   would be bared.

   Floyd W. Johnson, Respondent's construction coordinator,
   testified, in essence, that he never encountered a megger test
   indicating a fault with insulation as a consequence of a cable
   being run over by a vehicle with rubber tires. He opined that,
   accordingly, even if vehicles would continue to run over the
   cable, it would not be further damaged, as it was "smashed into
   the ground. No longer was anything coming in contact with it"
   (Tr. 172). In contrast, Collier indicated that there can be
   internal damage to the conductors even if there is no such
   indication in the megger test. In this connection, Robert
   Whitmore, a staff electrical engineer for Respondent, agreed that
   it is possible that internal damage would not show up in a megger
   test. Thus, I accept Collier's opinion and find that it is
   possible that there was internal damage to the conductors. Since
   there is no evidence why and exactly when the cable was run over,
   I cannot find that had the cable not been repositioned in
   abatement, it would not have been run over again given continued
   mining operations.

                     II.   Discussion
   

A. Violation of Section 75.606 supra

 As correctly argued by Respondent, Section 75.606, supra

imposes a standard regarding the adequacy of protection against
damage. It is essentially Respondent's position that because the
cable was not in fact damaged, as established by visual
inspection, inspection by touch, and megger testing, it must be
concluded that the standard was not violated, as the cable was
adequately protected. Respondent also refers to the protective
aspects of the construction of the cable, the placement of the

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cable outside the roadway on loose gob where it was cushioned,
the lack of evidence that it was run over more than once, and the
agreement of the witnesses that it was run over by a vehicle with
rubber tires. Respondent also argues that had Congress intended
to require the placement of the cable to afford protection
against damage it would have done so, as it so specified in other
sections of the Act.(Footnote 2) I do not accept Respondent's
arguments for the reason that follow.

 In analyzing the scope to be accorded the wording of Section

75.606, supra(Footnote 3), reference is made to the Legislative
History of Section 207(f) of the Federal Coal Mine, Health and
Safety Act of 1969 ("The 1969 Act") (Public Law 91-173). The
Senate Report indicates as follows regarding its analysis of
Section 306(f) of the Senate Bill (S.2917), whose language was
continued in Section 206(f) supra of the 1969 Act as follows:
"Trailing cables must also be protected against damage from other
mobile equipment. As the wheels or tread links of mining
machines pass over trailing cables, the insulation is torn from
the cables causing shock hazards and short circuits which can
easily result in a mine fire. In 1968 two mine fires were caused
by not protecting cables from damage by mobile equipment." (S.
Rept. 91-411, 91st Congress, 1st Sess., September 1969, at 71,
(Reprinted, in Legislative History of Federal Coal Mine Health
and Safety Act of 1969 (Public Law 91-173), ("Legislative
History"), at 197. Hence, in enacting section 306(f) supra,
Congress was concerned with the recognized hazard of insulation
being torn from cables as a result of being run over by wheels of
mining machines. Clearly, exposure to this hazard can result
from the cable's location, as well as from inadequate insulation.
In other words, the cable can be protected from damage by its
construction, as well as by its location. Conversely, improper
placement of the cable, as well as inadequate insulation, can
expose the cable to the hazard of insulation being torn from it
as a result of being run over. Congressional concern would be
thwarted if the protection mandated by Section 306(f) supra of
the 1969 Act would be interpreted narrowly not to include the
location of a cable.

 The evidence in the record tends to establish that the

cable, when cited, was not damaged. However, an analysis must be
made not only of the condition of the cable at the time
Respondent was cited, but also the continuation of mining

2Respondent cites, in this regard, 30 U.S.C. 868(h), and 30
U.S.C. 870.

3The wording of Section 306 (f) supra, was incorporated by
reference in the Federal Coal Mine Health and Safety and Health
Act of 1977, ("the 1977 Act") set forth as a regulatory safety
standard in Section 75.606 supra.

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operations must be taken into account. In this connection, I
take into account the following factors: the presence of pieces
of crushed stone in the material where the cable was lying, the
presence of a hard limestone floor underneath the loose material
and clay, the location of the cable in the material close to the
demarcation between the loose material and the roadway, the
relative narrow tolerance between the 9-foot wide vehicles that
travel the roadway and the 10-foot wide roadway, the fact that
the cable was indeed run over at least once(Footnote 4), the lack
of an explanation to indicate that the incident in question in
which a vehicle ran over the cable was a one-time-only event, and
the possibility that there may have been internal damage to the
conductors in the cable in spite of the megger test. Within this
framework I conclude that had the cable not been moved, there was
a possibility of additional incidents of it being run over,
leading possibly to damage to the insulation of the cable, or to
the interior conductors. Hence, I conclude it has been
established that the cable was not adequately protected to
prevent damage by mobile equipment. I find that Respondent did
violate Section 75.606 supra as alleged.

      B.   Significant and Substantial

 The law is well established with regard to the requisites in

establishing that a violation is significant and substantial as
alleged herein by Lee.

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "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 Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

4See, U.S. Steel Mining Co., 6 FMSHRC 155 (January 1984) Judge
Melick) (violation of Section 15.606 supra upheld where a cable
was found under a tire); See also, National King Coal 13 FMSHRC
33,38 (January 1991) (Judge Cetti) (violation of 75.306 supra
established where a cable was damaged by mobile equipment. As
dictum, it was noted that MSHA does not have to prove that a
cable was damaged in order to sustain a finding of a violation of
Section 75.606). For the reasons set forth above, I choose not
to follow U.S. Steel Mining Co., 6 FMSHRC 1664 (Sept 1984) (Judge
Koutras) (citation alleging a violation of Section 75.606 supra,
was ordered vacated, where the cable that had been run over was
not damaged).

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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 that the
   injury in question will be of a reasonably serious
   nature.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, 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 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).

 I have already found a violation herein of a safety

standard. Also, I found that the violation herein contributed to
the hazard of damage to the insulation of the cable and inner
wires. Should this occur, an electrical shock could result to a
person handling the cable. Arcing or an electrical short could
also result, triggering a fire. Hence, I find that the first two
elements of Mathies, supra, have been met. Thus, the issue for
resolution is whether there was a reasonable likelihood of the
occurrence of an injury producing event i.e. electric shock to a
miner, or a short or arcing causing a fire or an explosion.

 At the time the condition was cited, the cable was not

energized. However, Lee testified that immediately prior to the
issuance of the citation he observed two miners walking from the
coal feeder(Footnote 5) to which the cable was attached, toward
the power

5The feeder is used solely in connection with coal production.
When cited, the area in question was devoted to construction and
not coal production.

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center. These employees told him that they were going to
energize the cable.(Footnote 6)

 In essence, according to Lee, once power would have been

restored to the cable, injuries would likely have resulted. In
this connection, he said that miners handle the cable when the
feeder is moved to another location, and hence could come in
contact with a damaged cable, leading to electrical shock, burns,
or even a fatality. Collier cited statistics indicating 21
electrocutions between 1970 and 1987 as a result of mishandling
cables, 132 non-fatal injuries between 1983 and 1987 due to
damaged cables resulting in a loss of 1,675 workdays, 40
accidents involving persons handling cables and contacting bare
cables, and seven fatalities resulting when persons handled
cables and touched bare conductors.

 Collier opined that there was a reasonable likelihood that

the cable in question was damaged. He indicated that there can
be internal damage to the cable that does not show up in a megger
test. In this connection, he testified that even a little damage
can set up a hazardous condition. He cited a fatal accident that
occurred in 1981 where only a pinhole in a cable (as a result of
carbon tracking) led to a loss of insulation on the interior bare
wires which resulted in a fatality. He also opined that should
the violative condition have continued, there was a reasonable
likelihood that a serious accident would have resulted. He
indicated, in essence, that when mobile equipment runs over a
cable, it has "a crushing effect" (Tr. 79). He also indicated
that contact with a sharp object on the floor when the cable is
run over, could lead to a puncture which could result in a real
hazard. He also indicated that when the cable is run over, the
conductors eventually will be damaged even is there if no
immediate failure.

 It is undisputed that in order for an injury, fire, or

explosion to occur, there first must be some damage to the cable.
Although the cable was run over, an examination by visually
inspecting it and touching it, did not reveal any damage to the
cable's outer jacket. While the cable might have been subject to
additional incidents of being run over, it would appear that the
likelihood of damage was mitigated by the fact that the one-and-
three-quarter inch diameter cable had been pushed approximately
two inches into the material upon which it was resting. This

6Raymond Houlihan, the construction foreman, was asked whether
men were assigned to work on the feeder the day the citation was
issued, and he indicated that he could not recall. I find this
testimony is not sufficient to rebut Lee's specific testimony
that men told him that they were going to energize the cable.

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material was described as soft, and on top of a layer of fire
clay that also was described as soft. Further, mobile equipment
in the area that could possibly run over the cable all had rubber
tires. In addition, the cable was not in the roadway itself
where vehicles travel, but on soft material adjacent thereto.
Although Collier testified regarding the numbers of injuries
occasioned by contact with exposed cables, these figures do not
indicate how many incidents occurred as a result of a cable
having been run over. Nor do these statistics indicate whether
the exposed cables had been previously visually inspected or
subject to a megger test. In this connection, according to
Johnson, over a 13 year period he had inspected "a lot" of cables
that had been run over by rubber-tired equipment, and never saw
or found a damaged cable. He also said "I have never megged one
that's showed bad" (Tr. 165) [sic]. Richard Mottershaw,
Respondent's Safety Regulatory Compliance Specialist, testified
in the same fashion. (Footnote 7) Respondent's statistics
indicate that from 1970 through 1992 there have not been any
incidents of reportable electrical shock accidents from trailing
cables. Also, the cable at issue is described by its manufacture
as having rope-lay-stranded conductors which "...insure excellent
flexibility and resistance to wire breakage", and, "An extra-
heavy-duty jacket is reinforced with webbing to provide maximum
protection from mechanical damage, the cause of most portable
cable failures." (Exhibit C-1)

 It is possible that internal damage could have existed and

yet not have been revealed in the megger test. However, Robert
Whitmore, Respondent's staff electrical engineer, testified that
in the absence of damage to the outer jacket of the cable, any
internal damage not revealed by the megger test, would not result
in any danger to miners, especially if the conductors are tested
one phase at a time. He indicated that this was the manner in
which the cable in question was tested. His testimony in this
regard has not been rebutted or impeached by Petitioner.

 Therefore, for all the above reasons, I conclude that it has

not been established that there was a reasonable likelihood of an
injury producing event as a consequence of the violation herein.
Hence it is concluded that the violation was not significant and
substantial.

7Robert Whitmore, employed by Respondent in a staff electrical
engineering position, testified that the No. 1 Mine's electrical
supervisor told him that in the eleven months subsequent to the
issuance of the citation in issue, the cable has remained in
service, and there have not been any accidents, injuries, or
maintenance trouble with this cable.

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C. Penalty

                 1.     Negligence

 Lee indicated that he had issued 3 or 4 citations covering

the same violation. However, there is no specific evidence as to
how long the cable in issue had been lying near the edge of the
demarcation between the loose material and the roadway before it
was cited on January 24. Whitmore indicated that the cable was
not in that position when he left the area the previous day.
According to Houlihan, the cable had been in the area for about
two months and had not been run over before the accident at issue
occurred. According to Mottershaw, the cable had been used for
several months without injury.

 It is Respondent's policy, as set forth in the testimony of

Houlihan, that a cable must be inspected visually by walking
around it before it is energized. Also, once it has been
ascertained that a cable has been run over, it is Respondent's
policy to visually check it, and perform a megger test before it
is energized. Based on all the above, I conclude that Respondent
was negligent herein only to a slight degree.

                2.     Gravity

 Should the violative condition have resulted in a breach of

the cable's insulation, it could have led to either an electrical
shock, electrocution, fire, or explosion. However, as discussed
above, infra, the possibilities of this occurring are somewhat
remote. Considering these factors, as well as the remaining
statutory criteria, set forth in Section 110(i) of the Act, as
stipulated to by the parties at the hearing, I find that a
penalty of $125 is appropriate for this violation.

                                 ORDER

 It is ORDERED that the citation herein be amended to reflect

the fact that it is not significant and substantial. It is
further ORDERED that the Respondent pay a civil penalty of $125
within 30 days of this decision.

                     Avram Weisberger
                     Administrative Law Judge

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Distribution:

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)

Thomas C. Means, Esq., Glenn D. Grant, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505
(Certified Mail)
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