Secretary of Labor v. Vulcan Construction Materials, LLC

Read the official release (fmshrc.gov)

Plain-English summary

An MSHA inspector found a metal-cased portable space heater with a two-prong plug in a quarry control room. Vulcan argued that the heater's UL listing, polarized plug, dry office-like setting, and extensive product testing provided protection equivalent to grounding. Judge William B. Moran held that the heater encased an electrical circuit and lacked either grounding or protection equivalent to grounding under section 56.12025. He acknowledged that the heater was undamaged and that electrical shock was extremely unlikely in the control room, but treated those facts as penalty considerations rather than a defense to the violation. The judge affirmed the citation and reduced the proposed $118 penalty to $59 based on the low gravity and minimal negligence.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12025
• Outcome: The grounding violation was affirmed, and the penalty was reduced from $118 to $59.
• Key point: A UL listing and safe office-like use do not by themselves establish protection equivalent to grounding for a metal enclosure under section 56.12025.

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:
202-434-9933 / FAX: 202-434-9949

July 19, 2019

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA),

Petitioner

v.

VULCAN
CONSTRUCTION MATERIALS, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2018-0239

A.C.
No. 01-00028-471366

Mine:
Fort Payne Quarry  

DECISION AND
ORDER

Appearances:   Thomas
J. O’Donnell, CLR, U.S. Department of Labor, MSHA, Birmingham, Alabama, for
Petitioner

Leslie
P. Brody, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia,
for Petitioner

Misty
Hillis, Vulcan Construction Materials LLC, Birmingham, Alabama, for Respondent

Before:
           Judge Moran

This matter, brought under the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d), is before
the Court upon a petition for assessment of a civil penalty. It involves
whether the safety and health standard at 30 C.F.R. § 56.12025, titled, “ Grounding
circuit enclosures ,” which states in relevant part that “ All metal
enclosing or encasing electrical circuits shall be grounded or provided with
equivalent protection ….” [1]
applies to a portable space heater located in an enclosed, elevated, surface
mine operation’s control room where that heater was equipped only with a
two-prong plug. The Secretary of Labor (“Secretary”) contends that the heater
was neither grounded nor provided with equivalent protection. A hearing was
held on March 21, 2019 in Birmingham, Alabama. For the reasons which follow,
albeit with some misgivings, the Court concludes that the standard does apply
in this instance.

Findings
of Fact

Vulcan Construction Materials
(“Respondent”) is a large mining operation, with about 300 quarries nationwide.
Tr. 7. The single citation involved was assessed a proposed civil penalty of
$118.00 but the dispute is decidedly not about the proposed penalty. Rather, it
is about the standard’s applicability in this situation.

Secretary’s Testimony

Testimony began with Inspector Robert
Lance White, the inspector who issued the citation. He has been an MSHA
inspector for about 11 years. Over his years of employment he has had safety
responsibilities but regarding electrical, his experience has been limited. Tr.

19. With MSHA, he had limited training involving electricity, and that was 11
    years ago. White is not an electrician, nor does he possess any degrees
    involving electrical work. Tr. 21. Apart from his MSHA training, his knowledge
    about electricity has been acquired through self-training.

Tr.

22. The citation issued by White, Ex. C-1, was issued on July 16, 2018, and his
    notes related to that are reflected in Ex. C-2. Tr. 24, 29. The citation, under
    condition or practice states, “[m]etal encasing electrical circuit was not
    grounded on a personal heater in the secondary control room.” Tr. 31. The
    inspector added that he “observed that the heater had a metallic casing, and
    there was no ground wire or ground prong, which is required by the standard [at
    least] as [he has] been trained and experienced it.” Tr. 31.

The
Court sought clarification of the condition observed by the inspector. The
inspector agreed that he came upon a personal heater which was plugged into a
wall socket. Tr. 31.

The
inspector found that the plug had two prongs, and no ground prong. Tr. 32. Photographs
of the heater were introduced. Gov. Ex. C-3 and C-4. Tr. 33. White described
the secondary control room where he observed the heater as a metallic structure
that's raised up for viewing reasons so that one can view the operation of the
plant. A set of stairs provides access to the elevated structure.  There are
multiple windows in the structure so that they can observe their process and
control and most things can be turned on and off from that structure. Therefore,
the Court concludes that it is in effect a control room tower.  It is a
relatively small structure, being somewhere around eight foot by eight foot or
perhaps only eight foot by six feet. The structure is enclosed. Tr. 34. Inside
the control room are chairs, a small refrigerator, control panels, switches and
the heater, which is the subject of this matter. Id.

In
his citation, the inspector wrote, “miners work in the control room daily when
the plant is in operation. Contacting the metal surface when the metal is
energized would likely result in strains, sprains, or broken bones when falling
due to recoiling from the shock.” Tr. 35. Electrical shock is the hazard White
identified, and he expressed that multiple injuries could result from receiving
a shock, including most probably “[b]urns probably from electrical shock and tissue
damage, depending on the route taken of the electrical current through the
body.”

Tr.
36.

The
Court asked the inspector to explain what he meant by “metal encasing
electrical circuits.” The inspector responded that “[i]n this case it was the
metallic outside of the

heater.
So all the parts you would touch normally if you were moving the heater or

just
incidental contact would be metallic, which is an electrical conductor.” Tr. 37.

Seeking
clarification, the inspector agreed that the heater itself is the metal
encasing electrical circuit. Tr. 37. The inspector stated that the heater had
not been modified in any way.

Thus,
except for a little dirt, it was in its original condition. Tr. 38. Although it
was plugged in when he observed it, it was not running. Id. The heater has
an on/off switch but the inspector did not test it to see if it was
operational. Tr. 39. He had no basis to conclude that there was anything wrong,
anything malfunctioning, anything defective with that heater at all. Tr. 40.

His
only issue was the device not being grounded. Tr. 40-41.

Explaining
his concern further, the inspector opined that his belief was that if one were
to touch the metal casing he would receive a shock. The hazard would arise
“[i]f there is damage on the inside where that metal casing can become
energized because of damage wear and tear, anything like that, then the metal
casing would be energized and you would receive a shock from touching it.” Tr.

39. When a device is grounded, “if there's some damage internally in the heater
    to where maybe the electrical circuits or even the heating element has broken
    and is touching the metallic part or the internal electrical connections.” Tr.
40. In such a situation, the metallic part would still be energized but if
    there is grounding, the current would be drawn through the ground wire and kick
    a breaker so that it would not remain energized. Id. Without a ground
    wire, if the metal casing became electrified, the “only path to ground would be
    through the body of the miner when they contacted it.” [2]
    Tr. 42.   

The
inspector marked the injury or illness for this alleged violation as “unlikely;”
he stated this was based on the warm temperatures that day – 87 degrees – and therefore
a room heater would be unnecessary. Tr. 46-47. Typically, there would be just
one person in the control room. Tr. 47. Photo Ex. C-3 depicts the heater as the
inspector observed it. It was located in front of a small refrigerator but the
inspector did not determine if it was operating. Tr. 48.

The
inspector believed that the heater would need to be moved to open the
refrigerator door.

Tr.

49. Responding to his marking “lost workdays or restricted duty” for the
    alleged violation, the inspector described the hazard as electrical shock. A
    number of injuries can result from a shock. [3]
    The citation was terminated the same day as its issuance by removing the heater
    from the premises. Tr. 51.

Ex. C-5 is a picture of the side of the
heater, which reflects the model number, the voltage, amperage, watts, 60
hertz, which is typical AC, alternating current, electricity provided in the
U.S., and the heater’s serial number, L209017547. Tr. 53-54. UL 1278 also
appears in the photo exhibit. White stated that he believed the UL number
refers to heaters and its presence means that the heater was tested against the
Underwriters Laboratories safety standards.

Tr.
54-55. “Intertek ETL Listed” also appears in the photo, but White was not
familiar with that reference. Tr. 55. White was then asked about the National
Electrical Code or “NEC.”      He informed that NEC is a “code for manufacturing
and constructing and building different electrical devices and meeting the
code.” Tr. 55-56. White did not consider either the NEC or the UL standard in
deciding that there was a violation, since his training and experience was that
equivalent protection, would be a ground fault circuit interrupter, better
known as a “GFCI,” or with double insulation. White saw no indication of
either. He did ask Vulcan foreman Jeff Dean, who was the employee who
accompanied him during the inspection, to see the breakers, but they saw no
indication of any GFCI, nor any “square inside a square” symbol indicating
there was double insulation. Tr. 56. Dean agreed with White that the heater
casing was metallic. Tr. 57-58. White reiterated that GFCI is considered
equivalent protection in lieu of a ground system or a ground wire. Tr. 58. As
he indicated earlier in his testimony, he went down from the control room to
the MCC, or motor control center, below that room but, while they found a
breaker, they did not see a GFCI. Tr. 59. During his inspection, White found a
second heater in the primary control room with the same issue. [4]
While he noted it, he did not write a separate citation for that heater. Tr.

60. Both heaters were removed from the mine property. Tr. 61.

The Secretary introduced documents which
had been provided by the Respondent during discovery. The government’s purpose
behind their introduction was to show the conditions in the control room in
order to demonstrate the hazards and gravity associated with the condition. Tr.
64-65. Respondent pointed out that the photos were taken after the citation was
issued and involve a different heater. Tr.65-66. See also Gov. Exs. C-6,
C-7, and C-8. White, referring to the photos, identified them as from the same
control room as the one where he found the allegedly defective heater. Tr. 67. White
believed they were useful for the Court to consider, as the photos show the
general layout of the control room and consequently may show the likelihood of
incidental contact. Tr. 68. White also commented that the photo shows “the
metallic floor plate, which is a conductor, and a metallic desk […] and the controls
themselves being metallic.” Tr. 69.

The inspector explained that the term
“double insulation” means “an extra layer of nonconductive material, frequently
plastic, around the electrical contacts of the circuit so that if something
becomes loose or damaged, it is more likely to hit a nonconductive surface
rather than a conductive metallic surface.” Tr. 70. If present, he stated that
such double insulation can be considered to be equivalent protection. Tr.
70-71. Its presence is indicated on the device itself, either by simply stating
that it is double insulated or with the square within a square symbol, which
looks like a “D” within a square. [5]

Apart from MSHA’s requirements under the
standard, the inspector agreed that the manufacturer indicated that the heater
was in compliance with the standards listed on the heater’s label, such as UL
Standard 1278. This included the inspector’s admission that the heater was
originally made as a two-prong outlet device. Tr. 78-79. He also agreed that
there was nothing inherently unsafe about the heater. Tr. 79. The inspector
offered that the MSHA requirements were more strenuous because

the mining
environment's tougher [than] […] the heater in your grandma's house on a nice
wooden floor. The heater in a control room where people with wet, muddy boots
may knock it around, where you have a metallic floor, and just even the
atmosphere, the mining environment, that floor plate that you see there, I
believe that's that particular color because of dirt. What I'm saying is you
drag stuff in. You expose the heater to more stringent situations. And I
believe that's why the mine standard is a requirement above and beyond any UL
standard or anything like that.

Tr.
79-80.

On
cross-examination, the inspector again agreed that he did not see any obvious
visual damage. However, he raised the possibility of internal damage, though he
admitted that, as he did not open it, that was pure speculation by him. Tr. 81.
He also agreed that he had no basis to believe that the heater case would be
energized if it were switched on. Tr. 84. The inspector did not know if the
inner workings of the heater were constructed so that there would be no way for
the case to become energized. Tr. 84-85. He could not state that the entire
case was metallic, but maintained that some parts of it were metal. Tr. 86. Similarly,
he could not recall if the heater’s handles were plastic, but added that, even
if that were so, incidental contact with the metal parts of the heater could
occur. [6]
Id. The inspector did not know if the operating controls were metal or
plastic. Tr. 87. Shown Ex. C-6, the inspector stated that there appeared to be
a mat, possibly a rubber mat, beneath the control room chair. Tr. 91. However,
he added that he did not see that the mat extended to the heater area. Tr. 92.

Shown
Ex. C-4, the inspector identified the plug as a two-prong type. He agreed that
one of the two prongs was wider than the other. Tr. 96. The inspector stated
that the difference in the prong sizes involved polarity but he was unable to
elaborate about that, other than remarking that polarity is positive and
negative, but he did not believe that came into play for alternating current. He
admitted that he did not know what polarity meant. Tr. 97. His view was that
such two prong plugs were a hazard only where a device is metal-encased. Id.
He reiterated his view that the only “equivalent protection” acceptable under
the standard would be the GFCI, or double insulation.” Tr. 97. The inspector
was also unaware of any MSHA policy manual guidance on the subject but he would
not use Underwriter Laboratories for guidance on this issue, as it was his
understanding that such “UL” standards do not go above or beyond MSHA
standards.

Tr.
101.

Respondent’s Testimony

The
Respondent’s defense began with the testimony of Misty Hillis, Vulcan’s Safety and
Health Manager for their Southern and Gulf Coast division. Tr.111-112. She has
been in Vulcan’s employ for 19 years, all of it in connection with safety and
health matters. Tr. 113. Vulcan provides training regarding electrical hazards
and hazard awareness for its miners and its electricians have in-depth
training. Tr. 114. Their miners are trained to be alert to things such as
damaged electrical cords, missing junction boxes, and missing knockouts. Tr.
115.

With
regard to the control room where the cited heater was located, Hillis described
it as “an office kind of room” as it has an office-type desk and chair, from
which location they monitor the plant, having a bird’s eye view to watch the
conveyors and screens. Tr. 116.

Those
in the control room wear safety boots with rubber soles. The control room,
which is indoors, has no sink, toilet or other water source sufficient to even
partially immerse the heater. Tr. 117. Generally, there is only one person in
the room. Id. In terms of the items in Vulcan’s control rooms Hillis
stated that generally one would find heaters, fans, small dorm-style
refrigerators, a radio and a clock, “things that you would find in a normal
office.” Tr. 118.

These
typical arrangements motivated Vulcan to challenge this citation because it has
“all those different type of two-prong appliance, office-type things in those
rooms, in most of our control rooms throughout the division.” Tr. 118. In her
years with Vulcan, there has never been a control room accident involving those
devices. Tr. 119. Regarding the heater, she informed that the handles are
plastic as are the control knobs including the on/off switch. Id. As for
the mini-fridge, with the exception of a metallic hinge, the mini-fridge is not
metal either. Tr. 119-120. Although Vulcan has received citations for this
standard, those were quite different in nature, such as for a broken ground
pin. Vulcan believes that, in this instance, the standard was misapplied. In
that regard, it believes that an ALJ decision involving the same issue, a
heater in a shop, but for a coal case, is applicable to this situation. There,
a mine was cited for the two-prong plug issue. Tr. 120-121. Ex. V-2, [7]
San Juan Coal Co ., 13 FMSHRC 1688 (Oct. 1991)(ALJ)(“ San Juan ”).

Both
sides agreed that there is no program policy manual or other instruction from
MSHA offering guidance or further explanation for this standard. Tr. 128. Vulcan
has never interpreted the standard and its reference to “metal encasing
circuits” to apply to an appliance in a control room. Tr. 129. At least for Ms.
Hillis, she associated breaker boxes and junction boxes and equipment out in
the plant with the grounding requirement, not appliances in an office kind of
room. Tr. 129.

Respondent then called Mr. Andy Hill,
Vulcan’s electrical maintenance manager for its Southern Gulf Coast division. He
has been employed with Vulcan for 39 years and he has 42 years of experience as
an electrician. Tr. 133. Hill described the control room as an office-type
environment area with usually a desk with a set of controls, noting that Vulcan
calls it the operator house. It is from that location that the plant is
operated as the control room operator watches and controls the plant to produce
the plant’s product, limestone. Except for incidental track-in wetness from
outside, the control room is not wet. Tr. 136.  

Referring to Ex.
C-5, Hill identified it as the tag which was affixed to the heater. The UL
listing on the tag reflects that it conforms to UL 1278. Tr. 138. The UL
listing informs that the product is deemed as to “mechanical strength or
electrical strength, to be a safe product to be used in the area where it was
designed for.” Tr. 138. Hill informed that UL 1278 recommends “not using it in
a wet location, bathroom area, laundry rooms, stuff of that nature.” Tr. 139. There
is a risk in those situations of electrical shock but from “[b]eing knocked
over into water or something of that type of incident … [a] tub or something.” Id.
Hill made the point that the control room presents no such risks. Tr. 140. Respondent’s
Ex. V-3, representing portions from UL 1278, dated March 21, 2014 was admitted.

Hill’s interpretation of UL 1278 is
that no three prong plug is required in the control room, because the control
room is not located in a wet area. Tr. 142. Hill noted that another heater
owned by Respondent does have a three prong plug, because it is located in a
bathroom where the floor can become wet. Tr. 141-42. Hill read into the record
that Section 36.3 of

Ex.
V-3 provides “[i]f a heater intended for operation on a circuit involving a
potential of 150 volts or less to ground has provision, although not required,
for grounding noncurrent-carrying metal parts by means of a conductor of the
cord, a directly attached flexible cord or cord set provided with the heater
shall comply with the requirement in 36.2.” Tr. 142-143.

The Court asked Hill to explain the
significance of the provision he just read and he responded

Section 36 of UL
standard 1278, is grounding. And under that section [if] you have … [a] heater
intended for operation on a circuit involving potential of more than 150 volts
to ground … [then one] shall have provision for grounding in accordance with
36.2, of all exposed noncurrent-carrying parts, and all noncurrent-carrying
metal parts exposed during any servicing operation, including maintenance and
repair, that are likely to be energized.

Tr. 144. Hill
added that the provision would not apply to “the heater in question because
it’s working at a voltage of 120 volts to ground.” Id.  

After providing a more lengthy
explanation of his interpretation, [8]
Hill summed up that the provision in his view provides that if one is dealing
with a heater of 150 volts or less , “then whatever cord comes with it is
acceptable under UL 1278.” Therefore, the cited heater falls under 36.3 as it
had a directly attached flexible cord or a cord set. Tr. 146-147. The voltage in
the control room is 120 volts, applying to appliance items and therefore less
than 150 volts.

Tr.
147.

Respondent’s
Ex. V-4, pertaining to certain pages from the 2017 National Electric Code, was
admitted. Hill, referring to that exhibit, and within that, to Section 110 in
the National Electric Code which sets forth the chapter definitions. He
explained that section 110.3 states that UL is used in listings of product
certifications of equipment. NEC he stated is akin to his Bible. NEC, he noted,
recognizes UL listing. And “NEC requires equipment that's installed safely to
operate safely in people's protection to be a listed product.” Tr. 150. Further,
regarding the plug for the heater, section 420.4 [9]
allows that:

[i]f the appliance
is provided with a manually operated inline single pole switch for appliance on/off
operation, an Edison-base lampholder, or a 15- or 20-amp receptacle, the attachment
plug shall be of polarized or grounding type. Two-wire nonpolarized attachment
plug shall be permitted to be used on a listed double-insulated shaver.

Tr.

151. Hill admitted the provision was vague and therefore required
     interpretation. However, in his view, the heater in issue was “a recognized ,”
     that is to say, “a listed device” and as such it is factory installed with a two
     polar plug. Tr. 151-152.  The heater in issue was equipped with such a
     polarized plug. Tr. 152.

Therein
is the critical distinction applicable to this heater’s polarized plug, in
Hill’s view. He explained that:

[t]he purpose of
the polarized plug[ ] is to identify the grounded conductor. In this case,
[involving] a 120-volt circuitry, [there is] […] a current-carrying leg. And in
a grounded circuit, even though [it’s] grounded at the power source, it's still
considered a current-carrying conductor, but it is a grounded conductor .

Tr.
152 (emphasis added). The Court inquired further about this assertion asking,
whether, because the heater had a polarized plug, it was a grounded conductor. Hill
responded, “[i]t’s not equipment ground conductor. It is a grounded conductor
by NEC.” Id. (emphasis added). He added, “[g]rounded and grounding are
two different things. Grounded means at the system potential voltage, that
there's an intentional ground to that system to the earth. […] [and as such]
that is a safety factor. Among other things, it actually stabilizes the
voltage.” Tr. 153.

The
system in this case is a “grounded system.” Id. The polarized plug does
not make it a “grounded system.” Rather, it is the 120 voltage rating that
makes it a grounded system. Id.

That being the
case, the Court then asked what, if anything, was the value of having a
polarized plug. Hill responded that with the polarized plug, with one prong
being larger than the other, one “cannot reverse the internal wiring of that.
You've got it always plugged into the

grounding
conductor.” Tr. 154. The Court, perplexed by some of Hill’s responses, pressed him
on whether a polarized plug has any effect on shock hazards. Hill responded
that, under his interpretation of UL 1278, and the testing required for that,
it would take something catastrophic before a hazard would occur. Tr. 156. Pressing
him further, Hill expressed that there is an increased chance of a shock hazard
for a non-polarized plug. Tr. 156-157. He added that, without being polarized,
it would fall out of the UL design and testing. Tr. 157.

The
Court then inquired about the inspector’s concern that if there were an
internal defect in the heater, there could be a hazard where the plug is only
two-pronged. From that, the Court inquired whether there was less of a chance
that you could get hurt because the plug is polarized, if there was something
internally wrong with it. Hill responded that the hazard would be reduced but
only in comparison to a non-polarized two-pronged plug. He explained further,

[b]ecause of the
design of the heater itself and the amount of testing and how they test it, it's
designed that if there was a fault to the case or enclosure, that with it being
a grounded conductor, basically it's going to do the same thing. That's the
reason why if you go back in the UL standards, that's why they say 150 volts or
less.  

Tr.

158. Thus, Hill’s major reasoning stemmed from the 120 volts involved with the
     heater.

Hill
reaffirmed that “the heater in question [was] compliant for use in the
environment it was [being used] in … consistent with its UL listing and with
the National Electric Code requirements.” Tr. 162. Turning back to Exhibit V-3,
Respondent revisited the inspector’s concern for the “potential for an
energized conductor inside the box to somehow contact the metal case thereby
energizing the metal case but not having a direct path to ground and thereby
tripping the breaker and isolating hazard.” Tr. 162-163. Hill’s answer was that
the testing standards are rigorous and this includes that such devices have to
withstand 50,000 ohm, potential test to the housing, meaning that there has to
be a minimum of 50,000 ohms of resistance between the intended conductors and
the housing. Tr. 163. The testing associated with meeting the standard to be so
listed includes “drop tests, crush tests, dielectric testing. … they even do
abuse testing. They spray it with water. They do multiple testing. … They first
operate the heater, and while it's still at operating temperature, they test it
at the 50,000 ohm value.” Tr. 164. After all that abuse testing, based on UL
1278, the device must still measure a minimum of 50,000 ohms of resistance. Tr.
164.

Referencing
the abnormal operation tests, which are part of UL 1278, Hill referred to the
overvoltage, tip-over, and drop tests that a device must satisfy to achieve the
UL 1278 listing.  Tr. 166-167. Ex. V-3. Hill expressed his view that the UL
listing should be considered “equivalent protection” because the standard is
basically almost word for word out of the NEC.” Tr. 170.

Upon
cross-examination, Hill agreed that the heater has metal parts on the outer
casing and that the two-pronged plug for the heater had no ground wire. Tr.

172. Asked what would happen if the metal part of that heater were to become
     electrified with 120 volts, Hill responded that “[i]t would probably trip the overcurrent
     device.” Tr. 173. He acknowledged that if the circuit had a ground wire
     connected to the case it would definitely trip. Tr. 174. Thus, he agreed that “when
     [the heater] has a ground attached to the metal cabinet, it is really an
     insurance that no one will be shocked with an energized cabinet.” Tr. 174.  

The
Court then asked additional questions of Hill. Asked if considered the heater
to be a metal enclosing electrical circuit and a metal encasing
electrical circuit, he affirmed that it was. Tr. 180. He was then asked if he
considered the heater’s polarized plug arrangement to constitute grounding,
Hill answered, “it's not grounded with an equipment ground, no. But by UL
standard, it was safe enough to use on a grounded system of 120 volts that
wouldn't pose electrical shock… [based on] the UL standards.” Id. Hill
reiterated that the heater was not grounded “with a[n] equipment-grounding
conductor.” Tr. 181. However, he did reaffirm his view that the heater had
equivalent protection. Id. The Court then asked him to identify the
equivalent protection to which he answered, “[t]he equivalent protection, in my
professional opinion, based on standards or the listing, that there has been
vigorous steps in the design of this piece of equipment that UL standard put --
they went through these tests they put their stamp on, and NEC, which is a safety
electrical code that protects people, approves, said it's okay to use as it's designed.
So yes, I do think it's equivalent.” Tr. 182.

The
Court inquired further, as to whether Hill was addressing “equivalent
protection” to grounding, not just equivalent protection.  Hill answered, “in
my professional opinion, based on my training of the code, they recognize it as
being equivalent.” Tr. 182-183. Pressed further, the Court asked, if that meant
“being equivalent protection to grounding,” Hill responded, “Yes.”

After
Hill testified, the Respondent rested its case. As the Secretary did not elect
to recall any witnesses, the hearing was concluded.

The
Parties’ Post-hearing Briefs

The Secretary of Labor’s Initial Brief

The
Secretary contends that by the “plain and unambiguous language, section 56.12025
applies to the personnel heater at issue,” adding that “when the language of a
regulation is clear, the Commission has recognized that the terms of that
regulation “must be enforced as they are written’ …” Secretary’s Post Hearing Brief
(“Sec. Br.”) at 12-13.

The Court does not believe that the
words and application of the standard are so clear.

As
the Secretary acknowledges, “the plainness or ambiguity of statutory language
is determined [not only] by reference to the language itself, [but as well by]
the specific context in which that language is used, and the broader context of
the statute as a whole.” Id. This is the approach the Court has taken, analyzing
the specific context in which that language was applied here.

As the Secretary concedes, “[n]either
the Mine Act nor the regulation define the phrase ‘metal used to enclose or
encase electrical circuits’ ; however, the NEC defines the term ‘enclosed’ as ‘surrounded
by a case, housing, fence or wall(s) that prevents persons from accidentally
contacting energized parts.’” Id. at 13, citing NFPA 70-2017, Article
100 Definitions, p. 70-36.

The Secretary asserts that the heater
was neither grounded nor provided with equivalent protection.  The focus is
upon whether the heater was provided with equivalent protection.  

He
notes that the Inspector stated that equivalent protection would only be through
a Ground Fault Circuit Interrupter (“GFCI”) or through double insulation. Id.
at 16. The Secretary takes issue with Respondent’s contention that reliance
upon UL 1278, which the Secretary concedes “appears to exempt electric heaters
of 150 volts or less from being grounded.” Id. The Secretary counters
that the standard requires all metal enclosing or encasing electrical circuits
to be either grounded or provided with equivalent protection; and consequently
it does not provide for exemptions. Id.

The
Secretary then asserts that, even if the meaning of the regulation is
ambiguous, the Secretary’s interpretation of the regulation is entitled to
deference.   Id. at 17.  Among other cases cited in support of such
deference, the Secretary cites to American Coal Co. v. Fed. Mine Safety
& Health Rev. Com’n , 796 F.3d 18, 24 (D.C. Cir. 2015) and Hecla
Limited , 38 FMSHRC 2117, 2122 (Aug. 2016). The Secretary asserts that his “interpretation
of section 56.12025 is entitled to deference because it is consistent with the
plain words and purpose of the regulation, as well as the broader purpose of
the Mine Act to protect the safety and health of miners.” Id. at 18,
citing Emery Mining Co., v. Sec’y of Labor , 744 F.2d 1411, 1414 (10th
Cir. 1984). [10]

The Secretary’s Reply Brief  

In
its Reply Brief (“Sec Reply”), the Secretary urges that the Court should not
adopt Vulcan’s interpretation of what constitutes “equivalent protection”
because it does not comport with the plain meaning of the standard, does not
promote safety, and would lead to the absurd result of defeating the purpose of
the standard. Sec. Reply at 2. The Secretary distinguishes the cited standard
from 30 C.F.R. § 56.12045 and 30 C.F.R. § 56.12048, as both those standards
specifically reference the NEC, whereas 30 C.F.R. § 56.12025 does not. He reasserts
that the plain language of the standard requires the heater to be grounded or
provided with protection that is equivalent to grounding. He maintains that the
intent of the standard is to protect miners against electric shock and
electrocution but that the UL tests identified by Vulcan do not protect miners
against those hazards. Id.

As
for Vulcan’s claim that the standard does not apply to the control room, the
Secretary responds that “no matter the dimensions of the control room, or terms
Vulcan uses to describe the control room, it is part of the mine and
consequently, under MSHA’s jurisdiction; therefore, the standard applies.” Id.
at 3.

Addressing
Vulcan’s vagueness claim, that the meaning of the terms “equivalent protection”
and “metal enclosing or encasing electrical circuits” are not specified, the
Secretary responds that a standard’s use of general terms does not mean that it
suffers from vagueness. Standards may be drafted in general terms “in order to
be adaptable to the myriad of circumstances in a mine” as long as “a reasonably
prudent person, familiar with the mining industry and the protective purpose of
the standard, would recognize the hazardous condition that the standard seeks
to prevent.” Id. The hazard addressed by the standard is electric shock.
 Further, both Inspector White and Mr. Hill stated that that the cited heater
had metal enclosing or encasing electrical circuits.  The inspector stated that
for equivalent protection, there would need to be either a Ground Fault Circuit
Interrupter (“GFCI”) or double insulation. Id. at 4.

Last,
the Secretary contends that the administrative law judge’s decision in San
Juan is distinguishable from this matter. After correctly noting that administrative
law judge decisions have no precedential effect, the Secretary distinguishes 30
C.F.R. § 77.701 from the standard in this matter. It notes that section 77.701
requires metallic frames, casings, and other enclosures of electric equipment
that can become alive through failure of insulation or by contact with
energized parts are to be grounded by methods approved by an authorized representative
of the Secretary. Id. at 4-5. Although the judge in San Juan
concluded that the two toasters and a portable heater were not “electric
equipment”, and therefore section 77.701 did not apply, and that the UL listing
amounted to a certificate that the heater had an equivalent means of shock
protection, the Secretary contends that the standard in this litigation, 56.12025,
is broader, as it is not limited to electric equipment. Id. at 5. Instead,
it applies to all metal enclosing or encasing electrical circuits. A further
distinction, the cited standard “requires shock protection equivalent to being
grounded, not to double insulation.”   Id . An additional distinction,
Further, § 77.701 requires electric equipment enclosures be grounded by methods
approved by an MSHA inspector. [11]
Id.

Vulcan’s Initial Brief            

Vulcan
summarizes its factual position in its initial post-hearing brief (“R’s Br.”) as
follows:

The heater at
Fort Payne was used only in the control room. The control room is a low-traffic
area that is dry and orderly. The heater has been used for years in this room
and has never been cited by MSHA for not having a ground prong. The heater was
not damaged and was not in use at the time of the inspection. In order for the
heater to case a shock, it would have to develop an electrical fault. This is
extremely unlikely due to the extensive tests that are required for the heater
to be UL listed. In addition, the heater was used in a clean, low-traffic, dry
room and was very unlikely to suffer any damage that would result in an
electrical fault.

R’s
Br. at 5.

Though
elaborated below, Vulcan’s legal argument is that,

[t]he standard
cited allows for grounding or ‘equivalent protection’.  The only guidance for
‘equivalent protection’ provided by MSHA is double insulation. The actual
definition of ‘equivalent protection’ is not available to the general public. Based
on the evidence provided, the UL listing on the heater should be considered
‘equivalent protection’ and appliances used in office-type environments should
not be considered ‘electrical circuits’ thus rendering this citation invalid.

Id.

Vulcan notes that:

[t]he heater is
UL1278 listed. UL1278 details standards for moveable and wall or ceiling-hung
electrical room heaters. In order for an appliance to have the UL listing, it
must comply with the National Electric Code. Section 68.2 of the UL1278
standards states that ‘This heater is not intended for use in bathrooms,
laundry areas and similar indoor locations. Never locate the heater where it
may fall into a bathtub or other water container.’ In order to achieve an U1278
listing the heater must be subjected to many abusive tests and still maintain
at least 50,000 ohms of resistance.

Id. at 1.

Vulcan
also remarks that “[t]he control room where the heater was located is an indoor
location where the plant can be controlled and observed.” Id . at 2. It observes
that while “MSHA

emphasized
that the heater was used in a mining environment” and suggested “that the
control room was more likely to cause a condition that would damage the heater
and lead to an electrical fault,” Id . Vulcan submits that is
unsupported, as “the control room is less likely than a home environment to
cause damage since the control room generally has one qualified, trained miner
inside.” Id . In fact, Vulcan submits that “the control room is
much less likely to cause damage to the heater than a residence.” Beyond those
contentions, Vulcan adds that since “the circuit breaker the heater was plugged
into had a 20 amp overcurrent protection […] the breaker would most likely have
tripped if the heater had encountered a fault.” Id.

Beyond the
particular facts attendant to the citation, Vulcan contends that the standard
30 C.F.R § 56.12025, does not define “metal enclosing or encasing electrical
circuits,” nor does  MSHA’s metal/non-metal program policy manual offer
guidance on that phrase. The National Electric Code does not define it either. Vulcan
submits that “[i]n the absence of a definition, a reasonable assumption of the
term could be that the term refers to electrical installations such as: breaker
boxes, junction boxes, starters or electrical disconnects.” Id. at 3.

Vulcan believes that the parallel MSHA
coal standard, 30 C.F.R. § 77.701 [12]
supports its view. Vulcan contends that the MSHA program policy manual [13]
associated with that standard, also offers support for its view.

The
significance of the absence of any definition comes to the fore, because Vulcan
asserts that the standard itself is fatally vague. It points to the need for a
standard to “give a person of ordinary intelligence a reasonable opportunity to
know what is prohibited and it cannot be so incomplete, vague, indefinite, or
uncertain that men of common intelligence must necessarily guess at its meaning
and differ as to its application” R’s Br. at 3, citing San Juan.

Vulcan contends that “[s]ince MSHA does
not define either “metal enclosing or encasing electrical circuits” or
“equivalent protection”, the industry is left to guess at its meaning.   Id. at

4. It asserts that:

[a] reasonable
person would likely not guess that a portable heater would be considered a ‘metal
enclosing or encasing electrical circuit.’ Also, a reasonable person could
infer that a UL listed heater used in a UL approved location would be considered
‘equivalent protection.’ In fact, because the heater has been in the control
room for many years, it is reasonable to assume that past MSHA inspectors have
also not considered the heater an electrical circuit and considered that it had
equivalent protection.

Id.

Vulcan also takes note that,

MSHA relies on
the NEC and UL to determine if a device is double-insulated and thereby meeting
the test for ‘equivalent protection’ per Inspector White’s testimony. The
heater in question is also UL listed and certified as safe for the application
in which it was being used. In this citation, MSHA chose to rely on one UL
listing but not the other. The list of MSHA-accepted UL listed devices is not
available to the industry or general public. In addition, this heater would be
acceptable in an equivalent OSHA location due to its UL listing. Without a
written interpretation from MSHA, the mine operator is left to guess at what is
acceptable.

Id.

Vulcan’s
Reply Brief

Vulcan points in
its reply brief (“R’s Reply Br.”) to the National Electric Code, Underwriters
Laboratories, and OSHA regulations that support its position. It notes that
Inspector White acknowledged that UL standards provide assurance that such
approved products, if correctly used, would be safe. R’s Reply Br. at 1. It
points to Inspector White’s acknowledgement that the NEC is a code for
manufacturing and constructing and building different electrical devices and
meeting the code. Vulcan adds that OSHA drew heavily from the NEC in revising
its electrical hazards standards and it asserts that “OSHA incorporates the
National Electric Code and recognizes that the UL listing complies with the
product safety test standards. Therefore, the UL and NEC codes are much more
than simply ‘codes to limit a company’s liability.’” Id. at 2.

Challenging
the inspector’s claim that the cited heater was subject to more stringent
conditions, Vulcan notes that the applicable UL standard, 1278, makes plain
that the heater is not intended for use in bathrooms, laundry areas and similar
indoor locations nor where it may fall into a bathtub or other water container.
The cited heater is not used in, nor subject to, such conditions and the UL
standard does not limit it to residential use. Id.  Vulcan adds that the
control room at Ft. Payne has much less traffic and more stringent conditions
than a normal household and that a typical household is subject to children,
pets and more visitors than the control room. Id.

Vulcan
response to Inspector White’s concern that electrical shock could result if
there was some internal damage to the heater and its electrical circuits or if the
heating element were to touch the metallic parts of the heater, is that such an
event would be extremely unlikely.

In
fact, Vulcan contends that for that to happen the heater would have to be
crushed. Id. at 3.

In
that regard, Vulcan points out that the Inspector acknowledged that the heater
was not damaged in any way. Id. Vulcan adds that for the heater to
qualify for UL 1278 approval, rigorous testing is required. This includes tests
on the heater involving overvoltage, tip-over, stalled fan, dropping the heater
three times from a height of three feet and a strain relief test on the cord. Id.
at 3-4.

As
for the Secretary’s reference to past citations, Vulcan remarks that none of
them involved “heaters located in a dry, office-type control room.” [14]
Id. at 4. Vulcan notes that Citation 6127272 was written for a two-prong
heater in use inside a water pump building, with the inspector’s notes
remarking that the room was very wet. Id. at 5.

Vulcan
sums up that it is extremely unlikely that the cited control room heater would
develop an electrical fault to cause a shock. It characterizes such an event as
extremely unlikely due to the extensive tests that are required for the heater
to be UL listed.  Further, it notes that OSHA incorporates the National
Electric Code and recognizes that the UL listing complies with the product
safety test standards. From that it contends that since the heater has the UL
listing and was in compliance with the NEC, it should be considered as having “equivalent
protection” under the cited standard. This is especially true, it argues, since
the definition of “equivalent protection” is not available to the general
public. Vulcan maintains that appliances used in office-type environments
should not be considered “electrical circuits.” Id . at 6.

Discussion

For the reasons explained
below, the Court must affirm this citation. As noted, the standard cited, 30
C.F.R. § 56.12025, titled, “Grounding circuit enclosures,” provides: “[a]ll metal
enclosing or encasing electrical circuits shall be grounded or provided with
equivalent protection.” Although the terms “metal enclosing or encasing”
electrical circuits and “equivalent protection” are not defined, Mr. Hill
affirmed that the heater was a metal enclosing electrical circuit and a metal
encasing electrical circuit. Hill’s concession fits with the common
understanding of an electrical circuit, that is defined as “an electrical
device that provides a path for electrical current to flow.” [15] .
Certainly the heater in question fits the definition. As noted, Hill also
conceded that the heater is a metal encasing/enclosing appliance . There
is no serious dispute about these two issues.

There
is next the issue whether the heater was grounded or provided with equivalent
protection. Respondent’s Hill, who must be complimented for his frank and
credible testimony, stated that the heater was not grounded. He did, however,
express his honest view that equivalent protection was provided. As described
above, his view relied upon the rather strenuous requirements provided through
the UL approval process.

It
is at that juncture that matters become more complicated, because the Secretary
has some deference afforded to its interpretation of safety standards. As
described above, the Secretary has set forth the basis for this claim of
deference in his post-hearing briefs.

Challenging the Secretary’s claim that
the standard applies to the cited portable heater, Vulcan has pointed to an administrative
law judge’s decision in San Juan . Exhibit V-2. In San Juan the
judge was dealing with 30 C.F.R. § 77.701, a coal mining standard pertaining to
grounding. Titled “Grounding metallic frames, casings, and other enclosures of
electric equipment,” it provides that “[m]etallic frames, casings, and other
enclosures of electric equipment that can become ‘alive’ through failure of
insulation or by contact with energized parts shall be grounded by methods
approved by an authorized representative of the Secretary.” Two toasters, that
is, simply appliances to toast bread, and a portable heater were involved in
that case. [16]
The inspector noted that the appliance “was located on a formica-topped metal
table sitting in an eating area in a warehouse with a concrete floor. … it had
no external ground, had a metal housing, and was equipped with a size 16 cord
(four feet long) with two conductors.”

Id. at 1693.

As in this matter, the inspector in San
Juan was concerned that “people could become the ‘ground’ themselves, if ‘ something
happened to the internal wiring ’ and the insulation failed and a person
walked up and touched it. Id. (emphasis added). The judge referred to
the toaster’s UL approval and a National Electric Code (NEC) provision stating
that such a toaster can be used in areas which are not damp or wet. The
evidence included information from Underwriters Laboratories, Inc., (“UL”) which
informed that “Underwriters Laboratories Listed electrical equipment for
ordinary locations has been evaluated for use in accordance with the National
Electrical Code and to determine that the design of such equipment provides for
the reduction of the risk of injury to life and property.” Id . at 1695. UL
also stated that:

[e]lectric
toasters are not among the appliances in residential occupancies required to be
grounded by Section 250-45(c). Additionally, in other than residential
occupancies, cord-and-plug connected appliances not used in damp or wet
locations or by persons standing on the ground or on metal floors or working
inside metal tanks are not required to be grounded. … UL considers Listed
electric toasters, although not grounded, to comply with the NEC whether used
in residential occupancy or the type of premises you described which I
understand is a dry location.

Id . Interestingly,
UL advised that “[m]odifications to toasters to replace the power cord with a
grounding type cord, which you indicate is required by the inspector, can
introduce risks of electric shock or fire.” Id.

Judge
Lasher observed that “[a] safety standard must give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited and it ‘cannot
be so incomplete, vague, indefinite, or uncertain that men of common
intelligence must necessarily guess at its meaning and differ as to its
application .’” Id. at1699 (emphasis in original). That being the
case, the judge concluded that the standard, 30 C.F.R. § 77.701, was
“sufficiently indefinite and unclear in its application here as to cause
disagreement among Petitioner’s own hierarchy […] as well as failing to
communicate that it could be intended to apply to small toaster-ovens and a
small portable heater manufactured for use without a grounding conductor in the
cord and plug.” Id.

Judge
Lasher also noted that “MSHA’s own Program Policy Manual, (hereafter, “Manual”)
[…] appears to exempt U.L. approved cord-and-plug appliances such as the
toaster ovens and heater involved here [as it provides that] [p]ortable tools
and appliances that are protected by approved systems of double insulation, or
its equivalent, need not be grounded.”

Id
(emphasis
in original). The judge concluded that “the U.L. listing is in effect a
certificate that the three listed appliances have means of shock protection
equivalent to double insulation.”

Id. at 1700.

The judge looked to the Manual for
additional guidance, as it:

appears to give
some idea of the type of ‘electric equipment’ 30 C.F.R. § 77.701 is intended to
encompass, i.e., ‘Certain movable electrical equipment, e.g., rail-mounted and
pivoting coal stackers, traveling shop cranes on track rails, small traveling
hoists on I beams, etc.’ The types of clear-cut mining equipment mentioned as
examples by MSHA as a minimum delivers considerable weight to Respondent’s
contention that the subject standard is unenforceably vague when applied to the
three appliances in question.

Id.
Thus
the judge concluded that a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would not have recognized
the specific prohibition or requirement of the standard [and that] [a]pplying
the ‘reasonably prudent person’ test to the subject standard, such a person
would not consider the term ‘electric equipment’ used in 30 C.F.R. § 77.701 to
apply to the three UL approved appliances in question and have recognized a
requirement to modify each appliance by grounding it externally [and thus that]
[t]he three appliances involved--the two toasters and the portable heater-- are
not “electric equipment” as that term is used in 30 C.F.R. § 77.701.” [17]
Id.

Although the Court agrees that there are
some similarities between this matter and the San Juan decision, the
Court finds that they are distinguishable for several reasons. First, it is
true that the decision of another administrative law judge has no precedential
effect. Further, the language of the two standards is not identical. In
addition, at least for the coal standard, MSHA issued a program policy
statement, which the judge in San Juan construed to support his position.
Beyond those observations, the Court does not agree that the term “equivalent
protection” is unenforceably vague. The phrase must be measured against the
object of the standard – to achieve grounding.  Therefore the equivalent
protection must afford equivalent grounding protection.  

When the Court asked Mr. Hill if he
considered the heater’s polarized plug arrangement to constitute grounding, he
admitted it wasn’t grounded with an equipment ground, but he believed that, due
to the UL standard, it was safe enough to use on a grounded system of 120 volts.
It can’t be that each mine operator gets to opine about what constitutes
equivalency.     If reasonable, it is within the Secretary’s purview to make
those calls and deference is due in these circumstances. Kisor v. Willkie ,
588 U.S. ___, ___ (2019)(slip. op. at 14)(“[i]f genuine ambiguity remains,
moreover, the agency’s reading must still be reasonable.”)(internal quotations
omitted).

This does not mean that deference to the
Secretary’s position is unbounded. Deference is not automatically, nor blindly,
given. A regulation must actually be ambiguous before the Secretary’s
interpretation is entitled to deference. Kisor , 588 U.S. at ___ (slip.
op. at 13-14)(“[b]efore concluding that a rule is genuinely ambiguous, a court
must first exhaust all the traditional tools – the text, structure, history,
and purpose – of construction.”) [18]
In Drilling and Blasting Systems, Inc . 38 FMSHRC 190, (Feb. 2016), the
Commission addressed an Administrative Law Judge’s determination that deference
was not due, as it was “plainly erroneous.” Id. at 193. The Commission,
noting that the term “attended” as it appears in section 56.7012 and section
56.2 is ambiguous vis-à-vis the issue presented, acknowledged that “[o]rdinarily,
[it] must defer to the agency’s interpretation of its own ambiguous regulation.
… However, deference is inappropriate if the agency’s interpretation is not
reasonable or when it is ‘plainly erroneous or inconsistent with the
regulation’ … or ‘when there is reason to suspect that the interpretation does
not reflect the agency’s fair and considered judgment on the matter.’”

Id . at 194. As in
this case, the decision rested upon the particular facts involved.

Examining
those particular facts, the Commission concluded that the Secretary’s
interpretation was not the most natural reading of the safety standard, and
accordingly concluded that there plainly was no basis for deference. Id.
at 197.

The text of the standard at issue in
this case does not define “metal enclosing or encasing electrical circuits,”
nor does it define protection equivalent to grounding, nor are those terms
otherwise defined Part 56. In such instances however, as long as the
Secretary’s interpretation is not plainly erroneous or inconsistent with the
standard, it is the Secretary’s call to set forth the basis for determining
that the appliance in issue is captured by those terms and whether protection
equivalent to grounding was present. In this instance, the Court cannot
conclude that the Secretary’s interpretation of “metal enclosing or encasing
electrical circuits” is unreasonable, separate and apart from the Respondent’s
noteworthy concession that the heater fits those terms.   Nor can the
Court conclude that it is plainly erroneous or inconsistent with the standard
at issue for the Secretary to set out what constitutes “equivalent protection”
for purposes of meeting the regulation’s requirement that the protection be
equivalent to grounding, which the Secretary’s authorized representative
determined the electric heater lacked. In this instance, the Secretary
established that such equivalent protection was not provided. [19]

In light of the above considerations,
the Court concludes that the Secretary established by a preponderance of the
evidence all of the elements necessary to sustain a violation of 30 C.F.R. §
56.12025.

Penalty
Determination

In assessing
civil monetary penalties, Section 110(i) of the Act requires that the
Commission consider the six statutory penalty criteria:

[1] the
operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] 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).

As the
Commission has noted, “Administrative Law Judges are accorded broad discretion
in assessing civil penalties under the Mine Act.” Westmoreland Coal Co .,
8 FMSHRC 491, 492 (Apr. 1986). A Commission Judge’s penalty assessment is
reviewed under an abuse of discretion standard. Douglas R. Rushford Trucking ,
22 FMSHRC 598, 601(May 2000); see also Knight Hawk Coal, LLC , 38
FMSHRC 2361, 2373 (Sept. 2016).

That said, the
Court recognizes that there are two important considerations that must be
evaluated; the Secretary’s burden to provide sufficient evidence to support the
proposed assessment; and the Court’s obligation to explain the basis for any
substantial divergence from the proposed amount. The Commission has noted that:

[The] Secretary
[ ] does bear the ‘burden’ before the Commission of providing evidence
sufficient in the Judge’s discretionary opinion to support the proposed
assessment under the penalty criteria [and that] [w]hen a violation is
specially assessed that obligation may be considerable. [On the other hand] the
Secretary’s proposed penalty cannot be glided over, as the Commission also
stated, ‘Judges must explain any substantial divergence between the penalty
proposed by MSHA and the penalty assessed by the Judge. … If a sufficient
explanation for the divergence is not provided, the credibility of the
administrative scheme providing for the increase or lowering of penalties after
contest may be jeopardized by an appearance of arbitrariness.

The American
Coal Co .,
38 FMSHRC 1987, 1993-1994 (Aug. 2016), citing Sellersburg Stone Co ., 5
FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).

Section 110(i)
Penalty Factors As Applied to This Case

History of Previous
Violations

Respondent’s
Violation History was admitted without objection. Tr.72, Gov. Ex. C-9.   It
reflects that Vulcan had been cited for this standard, but not at its Fort
Payne Quarry. Id.

See also Tr. 106. The Secretary
acknowledged that Vulcan’s “violations of the standard at issue were on the low
end.” Sec. Br. at 20. The Court concludes that the history of previous
violations of this sort at this mine is minimal.

Good Faith
Abatement

The parties
stipulated that Vulcan demonstrated good faith in attempting to achieve rapid
compliance after notification of a violation. Sec. Br. at 20.

Operator’s
Ability to Remain in Business

There has not
been any assertion by Vulcan that the Secretary’s proposed assessment of a
civil penalty of $118.00 will affect its ability to remain in business. The
Respondent did not raise this assertion in its post-hearing briefs and the
Court concludes that a penalty of the amount proposed would not affect the Respondent’s
ability to remain in business.

Size of the
Business

Vulcan is a
large mine operator, with approximately 300 quarries nationwide. Tr. 6-7.

Negligence

Without
endorsing his view, the Secretary declares that “[l]ow negligence is appropriate
when ‘[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.’” […] Inspector
White testified that he evaluated the negligence as low because “no one had
reported a safety hazard and [told the managers], [w]e’ve got a heater that’s
not in compliance [and] the management [Jeff Dean, Vulcan’s foreman and George
Grguric, Vulcan’s plant manager] was not aware of either […] the requirement
[that the heater be grounded or provided with equivalent protection] or the
violation [of the cited standard].” Sec. Br. at 21, citing Tr. 30, 63; Ex. C-2.

Gravity of the
Violation

As the Secretary
has noted, “[u]nder section 110(i) of the Mine Act, 30 U.S.C. §820(i), the
gravity penalty criterion ‘is often viewed in terms of the seriousness of the
violation.’ [citing] Consolidation Coal Co ., 18 FMSHRC 1541, 1549 (Sept.
1996) […]The gravity analysis focuses on factors such as the likelihood of
injury, the severity of an injury if it occurs, and the number of miners
potentially affected. Here, Inspector White evaluated the likelihood of injury
as “unlikely” because at the time of the inspection, no one was in the control
room; the heater   was not turned on; and it was 87 degrees outside. Tr. 46-47;
Ex. C-2. He assessed the injury expected  as lost workdays or restricted duty
due to a miner receiving electrical burns or falling while recoiling from
shock. Tr. 49; Ex. C-2. He noted that the exact injury would depend on a
variety of factors and circumstances. Tr. 49. He assessed the number of persons
affected as one because “[i]t’s a likely thing that only person would be hurt.
Even if it’s crowded in [the control room].” Tr. 50, Sec. Br. at 20-21.  

Conclusion

Of the six
penalty factors set forth in Section 110(i), the negligence and gravity are the
most significant considerations, and they point to a reduced penalty from that
proposed by the Secretary.   Taking into account all of the preceding
findings and observations, the Court concludes that while the violation
occurred, it presented a very “unlikely” risk of an expected injury of lost
workdays or restricted duty. The Court also finds that one person would be
affected by the violation, the violation was not significant and substantial,
and that the negligence of the operator was less than moderate, approaching low
negligence.  In light of the inherent power of Commission Judges to
independently assess penalties based on their reasoned judgment of all the
facts, the Court finds that given the Secretary’s admission that this was a non
S&S violation, unlikely to occur, of low negligence, and the Court’s
independent determination that the negligence was less than low, approaching no
negligence, in this particular near-office environment, and that it was
unlikely in the extreme to occur in that environment, particularly considering
the rigorous UL requirements for the heater, independently support the Court’s
imposition of a civil penalty of $59.00 for this violation.

ORDER

It
is hereby ORDERED that Respondent is ORDERED to pay a civil
penalty in the total amount of $59.00 (“fifty-nine” dollars) within 30
days of this decision. [20]

/s/
William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Thomas
J. O’Donnell Jr., Conference & Litigation Representative, MSHA, 1030 London
Drive, Suite 400, Birmingham, AL 35211

Leslie
Paul Brody, Esq., Office of Solicitor, U.S. Department of Labor, 61 Forsyth
Street, SW, Room 7T10, Atlanta, GA 30303

Misty
Hillis, Vulcan Construction Materials, LLC, 1200 Urban Center Drive,
Birmingham, AL 35242

[1] The standard
also provides that “[t]his requirement does not apply to battery-operated
equipment.” Battery-operated equipment is not involved in this matter.

[2] An attendant
risk is called “hand-to-hand pathway,” which the inspector described as where
the current

passes through
the chest cavity, the heart, lungs. It can result in heart stoppage or thoracic
[…] lung function stoppage. […] hand-to-hand is […] dangerous [as] […] it’s
doing tissue damage as it goes, including electrical tissue damage to the
heart. The heart has its own electrical system, and this current messes that
up.

Tr.
42-43. However, more than one action would apparently have to occur, as the
inspector offered the example of “[t]ouching this heater and having the other
hand on this metallic refrigerator which is sitting on the metal floor and all
that could be a path for hand-to-hand.

It
depends on circumstances, how the miner would touch it.” Tr. 43. Another risk
was described as “let-go current.” The inspector advised that

[l]et-go current
is a common term for a particular amount of current that keeps a person from
turning loose if they grab the heater. It's a muscle contraction, and they
could not turn loose. So this increases the total amount of current because
current is dependent upon time. So you're exposed to more current if you can't
let go.

Tr.
43-44. For this 120 volt heater, let-go current would not be a certain event as
it would depend “upon the conductivity of the person's skin, which can be
affected differently by different individuals. The amount of perspiration,
anything wet in the area, water spilled on the refrigerator or the outside of
the heater itself, a variety of factors.” Tr. 44-45. Thus, the inspector could
not say for certain if the “let-go” phenomena would apply in this instance.

Tr.
45-46. In fact, he conceded that while it could occur for a 120 volt device,
it’s more common with higher voltage devices. Tr. 46. 120 volts is considered
lesser voltage. Id.

[3] The inspector
elaborated that the “response to the shock in the human body depends upon, […]
a variety of circumstances. Moisture in the skin. It can be electrical burns.
It can be tissue damage throughout the body along the path. It can be muscle
contractions to where people do fall down or whatever [and in this situation
there was] [...] limited space.” Tr. 49. Inspectors are trained to focus on the
more likely results.

[4] The next day,
he found a third heater, in the bathroom of the maintenance shop, but that
heater did have a ground wire or ground system.

[5] Gov. Ex. C-9,
Respondent’s violation history was admitted. Tr. 73.

[6] The inspector
could not state how many amps represent the threshold for release current. Asked
if it is a current at any voltage, or whether it is a combination of voltage
and current, or whether it is only that voltage and resistance work together to
create a certain current, the inspector responded that his understanding was
that it’s only about current, which would be affected by the amount of voltage,
analogizing the voltage as the push or pressure involved, such as in a water
system and the current being the amount of flow, such as gallons per minute, to
continue the water analogy. Tr. 87. The particular conductivity can be affected
by perspiration or if one were in contact with water, such as with a wet floor,
or with wet, muddy boots, for example. Tr. 88.

[7] There is no
Exhibit V-1 in the record, because it is duplicative of an exhibit already
entered by the Secretary.

[8] In attempting
to clarify his view, Hill then added,

[s]o it's saying
in that you have to have provision for grounding. 36.2 says, on a heater where
grounding is required … or provided, the power supply cord or cord set shall
include a grounding conductor which shall be -- and it's telling you green
coated, which is a recognized identification of a ground conductor or with a
yellow stripe -- green with a yellow stripe and connected to the grounding
pla[t]e of an attachment plug of a grounding type, which would be a
three-pronged plug, and connected to the enclosure of the appliance.

Tr.

145. Hill interpreted that to mean that,

right there under definition, enclosure,
they're implying that an appliance is an enclosure. So by connected to the
enclosure of the appliance, that means it was not likely to be removed during
the ordinary servicing or equivalent means. Solder alone is not acceptable for
making this connection. […] [t]hen Section 3 comes up […] [and informs] [i]f a
heater intended for operations on a circuit involving a potential of 150 volts
or less to ground [ ] 36.1 says a potential of 150, more than 150 to ground, so
now they're at 150 volts to ground, which is what the circuit – [the] voltage
the heater was operating on -- in question was operating. […] Involving
potential 150 volts or less to ground has provisions although not required for
grounding noncurrent-carrying metal parts by means of a conductor of the cord.
A directly attached flexible cord or cord set provided with the heater shall
comply with the requirements in 36.2, which said you had to have -- if you had
a carrying conductor, it had to be green with a yellow stripe.

Tr.
145-146.

[9] Ex. V-4, at the
first page of that exhibit, page 468, NEC recognizes polarity in cord and
plug-connected appliances.

[10] The Secretary
also cites to Contractors Sand and Gravel, Inc. , 20 FMSHRC 960, 970
(Sept. 1998) for the proposition that the Commission recognized that “[t]he
protective purpose of [56.12025] is to prevent injury from electrocution caused
by a malfunctioning or improper grounding system.” However, the Secretary neglects
to mention that the Court of Appeals for the District of Columbia Circuit reversed
the Commission’s decision in Contractors Sand and Gravel ,
specifically because it determined that, as a matter of law under the Equal
Access to Justice Act, the Secretary’s litigating position “lacked substantial
justification.” Sec’y of Labor v. Contractors Sand and Gravel, Inc. , 199
F.3d 1335, 1340-41 (D.C. Cir. 2000). To be sure, the D.C. Circuit specifically
rejected a contention that the standard proscribes a specific method for
grounding electrical equipment, which is not at issue in this matter. But the
principle that the commitment to protecting the health and safety of miners
entitles the Secretary to deference is not borne out by Contractors Sand and
Gravel in light of the D.C. Circuit’s reversal.

[11] Alternatively,
the Secretary urges that if this Court were to conclude that the coal standard
is useful in construing the cited standard, it should look to the rationale in Pittsburg
& Midway Coal Mining Co ., 9 FMSHRC 1908 (November 1987) (ALJ)(“ Pittsburg ”).
In Pittsburg , the ALJ concluded that section 77.701 applied to a
110-volt space heater located in the electrical supervisor’s office.  That
heater was metal-cased, lacked a three-prong plug or any other type of
grounding, and had a “UL” stamp of approval on it. Id. at 1911-1912.  The
judge recognized, “[f]ailure to ground this type of heater could cause shock,
serious burns or a fatality. If this condition [of the heater not being
grounded] continued and a fault occurred you could reasonably expect a shock or
serious burn.” Id . The judge also noted that the inspector did not know
whether MSHA had a policy concerning the grounding of appliances. The inspector
opined about the different ways the heater in Pittsburg could have been
grounded. Respondent, Pittsburg argued that as MSHA had not issued a
policy or interpretation requiring the replacement of two-prong plugs, the
inspector’s requirement that the operator abate the hazard with a three-prong
plug was just the inspector’s personal preference. However, the judge disagreed
and affirmed the citation against P&M holding that “several methods of
grounding were available but . . . a three way plug was required.” Id. at
1914. The judge also found that Pittsburg “was negligent as to the
ungrounded space heater inasmuch as this condition was open and obvious” and
that the gravity of the violation was high because “[a] miner could have been
burned or electrocuted by the electrical space heater.” Id . at
1919-1920. The judge then assessed a penalty of $150 for P&M’s violation of
section 77.701. The facts of the Pittsburgh case are very similar to those of
the instant case; therefore, Pittsburg , and not San Juan , should
have persuasive weight with this Court.  

The
Court did review Pittsburg. However, it does not find the decision to be
helpful in that the judge there simply upheld the Secretary’s authority to
enact general regulations relating to equipment and to impose stricter
limitations than the NEC. No one disputes that the Secretary may do that, but
the question is whether the language employed in the standard is unenforceably
vague such that a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have recognized
the specific requirement of the standard and that, applying the reasonably
prudent person test to the subject standard, such a person would have considered
the heater to be a metal enclosing or encasing electrical circuit .

[12] § 77.701,
titled, “Grounding metallic frames, casings, and other enclosures of electric
equipment,” states “[m]etallic frames, casings, and other enclosures of
electric equipment that can become “alive” through failure of insulation or by
contact with energized parts shall be grounded by methods approved by an
authorized representative of the Secretary.”

[13] MSHA’s coal program
policy manual addressing standard 77.701, Grounding Metallic Frames, Casings,
and Other Enclosures of Electric Equipment, provides:

Certain moveable
electric equipment, e.g., rail-mounted and pivoting coal stackers, traveling
shop cranes on track rails, small traveling hoists on I beams, etc., cannot be
strictly classified as portable, mobile or stationary equipment. For the
purposes of frame grounding, such equipment shall be considered stationary.
Consequently, the grounding requirements of Subpart H apply to such equipment.

This Section
requires that metallic frames of electric equipment be grounded by methods
approved by an authorized representative of the Secretary. Therefore,
rail-mounted and pivoting coal stackers, traveling shop cranes on track rails,
small traveling hoists on I beams, and similar equipment shall be grounded in
accordance with the following: All tracks shall be bonded or welded at each
joint, and each individual track rail or I beam shall be solidly grounded
through a grounding conductor which meets the requirements of Section 77.701-3
to an acceptable grounding medium. In instances where the conveyor, hoisting
and/or tramming motors receive power through a trailing cable, the moving frame
shall be grounded to an acceptable grounding medium through a proper size
grounding conductor inside the cable. In instances where the conveyor, hoisting
and/or tramming motors receive power through a trolley system, the moving frame
shall be grounded to an acceptable grounding medium through an additional
grounding trolley contact.

Program
Policy Manual, Volume V – Coal Mines , U.S.
Dep’t of Labor, Mine Safety & Health Admin. , https://arlweb.msha.gov/REGS/COMPLIAN/PPM/PMVOL5R.HTM
(last visited July 16, 2019).

[14] Vulcan adds
that for one of the citations mentioned by the Secretary in his post hearing
brief as written for an ungrounded heater, and identified by the Secretary as Citation
No. 6523834, there is no information on the citation to indicate if the heater
was manufactured as a two-prong or three-prong heater, nor information about
where the heater was located. Vulcan remarks that it is possible that the
heater was located in a wet area. The Court notes that the citation number was
actually No. 8631815. The number given by the Secretary as the citation,
6523834, is actually the “Event No.”

[15] Electrical Circuit , https://www.vocabulary.com/dictionary/electrical%20circuit (last
visited July 18, 2019).

[16] The parties
stipulated that the judge’s determination for one of the toasters would control
the outcome for the other toaster and the portable heater. Id . at 1692.

[17] The Court did
review Pittsburg & Midway Coal Mining Co ., 9 FMSHRC 1908 (November
1987) (ALJ), cited by the Secretary as offering a rationale worthy of adopting.
Sec. Reply at 5. The decision affirmed the Secretary’s authority to enact
general regulations relating to equipment and may impose stricter limitations
than the NEC. No one disputes that the Secretary may do that, but the question
at hand is whether the language employed in the cited standard, 30 C.F.R. §
56.12025, is unenforceably vague such that a reasonably prudent person familiar
with the mining industry and the protective purposes of the standard would not
have recognized the specific requirement of the standard and that, applying the
reasonably prudent person test to the subject standard, such a person would
have considered the heater to be a metal enclosing or encasing electrical
circuit. As explained, the Court finds that the standard is not unenforceably
vague and that equivalent grounding protection was not provided.

[18] In Brown
Bros. Sand Co ., 17 FMSHRC 578, 584 (Apr. 1995), cited by the Secretary, the
administrative law judge was dealing with the same standard involved in this
matter but there were significant factual differences involved as it pertained
to metal frames on disconnect boxes for a conveyor and two shaker screens and
light switch boxes, none of which were grounded. These items were outdoors and
the inspector stated that the absence of grounding exposed miners to potential
electrocution. The judge simply stated that the cited standard requires the
grounding of all metal enclosures encasing electrical circuits. The case is of
negligible value, as the applicability of the standard was not challenged;
issues of negligence and whether the violation was significant and substantial
were the focus of the decision.  Similarly, Contractors Sand & Gravel
Supply, Inc ., 18 FMSHRC 384 (Mar. 1996) (ALJ), cited by the Secretary is of
minimal value. While the judge did hold that the cited standard, 30 C.F.R. §
56.12025, is specific and not broadly worded and is a performance standard, the
citation was vacated as an attempt to expand the standard beyond its plain
meaning, by trying to proscribe the method of grounding employed by the
operator, constituting an impermissible expansion of the plain meaning of the
standard.

[19] Even when
considering Vulcan’s view that the control room is akin to a residence, the
room’s metallic floor makes it unlike any office or residence. While the Court
agrees that the UL approval makes it extremely unlikely that a miner
would be shocked by the portable heater, that consideration is taken into
account in assessing an appropriate penalty, not in determining whether the
standard was violated.  

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