Ezel / Agency Decisions / va-2013-0404-alj
FMSHRC ALJ decision Docket VA 2013-0404 Decided April 24, 2015 Modified Judge Thomas P. McCarthy

Secretary of Labor v. Regent Allied Carbon Energy, Incorporated

Secretary of Labor v. Regent Allied Carbon Energy, Incorporated (FMSHRC VA 2013-0404): Unlocked cable-work citation affirmed at $11,500

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This order from 2015 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current MSHA standards and Commission precedent, with citations.

Currency note: this decision dates from 2015
The MSHA standards may have been amended, penalty amounts have been adjusted, and later Commission or court decisions may have changed the analysis since then. Treat this page as historical context, not current compliance advice. Verify the current standard before relying on any specific rule, threshold, or penalty mentioned here.
Final order, not Commission precedent
This decision by a FMSHRC Administrative Law Judge became the final decision of the Commission 40 days after issuance because the Commission did not direct review (30 U.S.C. § 823(d)(1)). It binds the parties but is not binding on the Commission in other cases. The full text below is from the official FMSHRC release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.
Read the official release (fmshrc.gov)

Plain-English summary

During a mine-wide power outage, a Regent Allied foreman directed unqualified miners to handle, inspect, and re-tape splices along a shuttle-car trailing cable without locking and tagging out the cable's disconnect. Power was restored while the work area was not visible from the power center, although the miners had stopped after the inspector intervened. Judge Thomas P. McCarthy held that inspecting and re-taping the electrical cable was electrical maintenance under 30 C.F.R. § 75.511, not merely routine handling. He affirmed the violation as S&S, reckless disregard, and an unwarrantable failure because the foreman created an obvious shock and burn risk while prioritizing avoidance of another cable citation. The judge reduced the proposed specially assessed penalty from $20,900 to $11,500 because the Secretary did not introduce the special-assessment narrative or supporting testimony.

Decision snapshot

  • Cited standard: 30 C.F.R. § 75.511
  • Outcome: Citation 8201921 was affirmed as S&S, reckless disregard, and an unwarrantable failure, but the proposed $20,900 penalty was reduced to $11,500.
  • Key point: Inspecting and re-taping a trailing cable is electrical maintenance that requires qualified personnel and lockout even during an outage, because unannounced restoration can energize the cable.

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:
202-434-9958 / FAX: 202-434-9949

SECRETARY OF LABOR

MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),

Petitioner

v.

REGENT ALLIED CARBON ENERGY, INCORPORATED,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. VA 2013-0404

A.C. No. 44-07081-323471

Mine: No. 2

DECISION AND
ORDER

Appearances:               Billy
Shelton, Esq., Jones, Walter, Turner, & Shelton, Lexington, Kentucky for
Petitioner

Paige
Bernick, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee for Respondent

Before:           
Judge McCarthy

I.
Statement of the Case

This case is before me upon a petition for
assessment of a civil penalty under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(d). The Petitioner, Secretary of Labor,
on behalf of the Mine Safety and Health Administration (MSHA), charges
Respondent, Regent Allied Carbon Energy, Inc. (Regent) with an unwarrantable
failure to comply with 30 C.F.R. §75.511, which sets forth requirements to be
met when miners perform electrical work on low-, medium-, or high-voltage
distribution circuits and equipment in an underground coal mine.[1]

A hearing was held in Blountville,
Tennessee. The parties presented testimony and documentary evidence.  Witnesses
were sequestered.  Thereafter, the parties submitted post-hearing briefs.

The single 104(d)(1) citation at
issue was given to Regent on January 28, 2013 at its No. 2 mine during a regular
inspection by MSHA Inspector Marty Robinson.[2]
Citation No. 8201921 alleges a violation of 30 C.F.R. §75.511 for performance
of electrical maintenance on a shuttle car trailing cable that had not been
properly locked and tagged out. The citation also alleges that the maintenance
was performed without proper supervision by a qualified person. The violation
was designated significant and substantial. Initially, Citation No. 8201921 was
issued under Section 104(a), but was modified to a 104(d)(1) unwarrantable
failure citation after Robinson conducted additional investigation on January

  1. The modified citation also reduced the injury or illness that could
    reasonably be expected to occur as a result of the violation from “fatal” to
    “lost workdays or restricted duty” and increased the level of negligence from
    “moderate” to “reckless disregard.”

MSHA specially assessed the
proposed penalty at $20,900, but testimony elicited from the inspector by the
Secretary was limited to the fact that the penalty was recommended for special
assessment. Tr. 130-32.  The Narrative Findings for Special Assessment
contained in the Commission case file were not offered into evidence.

The threshold issue presented is
whether the work that inspector Marty Robinson observed Regent miners Jonathon
Browning and Bradley Martin performing on January 28 was “electrical work”
under Section 75.511. Other issues concern the appropriateness of the gravity,
negligence, significant and substantial (S&S) and unwarrantable failure
designations and the appropriateness of the proposed, specially-assessed civil
penalty of $20,900.  

Section 75.511 imposes three duties
on the operator. First, electrical work may only be performed by a qualified
person or by a person trained to perform electrical work and to maintain
electrical equipment under the direct supervision of a qualified person. Second,
the disconnecting device of an electrical component being repaired must be
locked out and tagged by the person performing such work. Third, the locks or
tags may only to be removed by the person who installed them, or by an
authorized individual if this person is not available. See 30 C.F.R.
Sec. 75.511.  

Since section 75.511 only applies
to electrical work, the dispositive issue is whether the work done by Browning
and Martin in handling and taping the shuttle car trailing cable constitutes
electrical work. Neither party contends that Browning and Martin were qualified
to conduct electrical work or that the work they performed was supervised by a
qualified person. Both Respondent and the Secretary have recognized that if the
work done by Browning and Martin does not constitute electrical work, then no
violation of section 75.511 occurred. Tr. 73, 98; R. Br. 14.  

Neither the Mine Act nor MSHA
regulations specifically define “electrical work.” The MSHA Program Policy
Manual (PPM), however, provides guidance that electrical work is “work required
to install or maintain electric equipment or conductors.”  P. Ex. 3, at
54 (emphasis added). To clarify this definition, the PPM lists 11 examples of
electrical work within the scope of the standard.

1.      Locating
faults in cables;

2.      Replacing
blown fuses, except blown fuses on trolley poles may be replaced by miners
other than persons qualified to do electrical work [in certain circumstances];

3.      Making
splices, connections, and terminations in electric conductors and cables;

4.      Installation
of couplers on the end of cables.

5.      Repair
of electric components of electrically-powered portable, mobile or stationary
equipment;

6.      Installation
of electrical wiring;

7.      Electrical
maintenance of permissible equipment;

8.      Any
type of work performed inside rooms, vaults, substations and other similar
enclosures where energized parts of conductors are exposed;

9.      Any
type of work performed inside transformers, power centers, rectifiers, switch
boxes, switch houses, panels, and other enclosures of electric equipment or
conductors;

10.  Electrical troubleshooting
and testing; [and]

11.  Handling energized high
voltage power cables.

P. Ex. 3, at 55–56.

The PPM also includes 12 examples
of non-electrical work that does not require the supervision of a qualified
person:

1.      Operation
of electrical equipment;

2.      Normal
operation of control switches, switch boxes, or circuit breakers, provided no
energized parts or conductors are exposed;

3.      Operation
of cutout switches in trolley circuits;

4.      Hanging
or removing fuse nips from trolley wires;

5.      Changing
bits;

6.      Lubrication;

7.      Handling
energized trailing cables;

8.      Inserting
low- and medium-voltage cable couplers into receptacles or withdrawing low- and
medium-voltage cable couplers from receptacles;

9.      Transportation
of electric equipment and cables;

10.  Mechanical repairs on
electrically-powered equipment, provided no energized parts or conductors are
exposed;

11.  Installation and repair of
equipment and circuits in which shock hazards do not exist (having a nominal
rating of 40 volts or less), provided such equipment is not required to be
permissible; and

12.  Installation, repair, and
guarding of trolley wires and trolley feeder wires.

P. Ex. 3, at 56-57.

For the reasons set forth below, I
find that the miners were handling and re-taping splices on a shuttle-car
trailing cable during a power outage and the cable was not locked and tagged
out. I find that this was electrical work and the standard was violated.  I
affirm the citation, as written, but assess a penalty of $11,500 because the basis
for special assessment was not substantiated at trial.

II.        Stipulated Facts

At hearing, the parties agreed to
the following stipulations:

1.      Regent
Allied Carbon Energy (Regent) was the operator of Mine #2.

2.      Regent
Mine #2 is a mine as defined by Section 3(h) of the Act. 30 U.S.C. § 802(h).

3.      At
all material times involved in this matter, the product of the subject mine
entered commerce, or the operations thereof affected commerce, within the
meaning and scope of Section 4 of the Mine Act. 30 U.S.C. § 803.

4.      This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission pursuant to Section 105 and 113 of the Mine Act.

5.      MSHA
Inspector Marty Robinson, whose signature appears in block number 22 of the
Citation, was acting in his official capacity and as an authorized
representative of the Secretary of Labor when the Citation was issued.

6.      True
copies of the Citation were served on Regent as required by the Mine Act.

7.      The
total proposed penalty assessed for the Citation will not affect Regent’s
ability to remain in business.

8.      The
alleged violation was abated in good faith.

Jt. Ex. 1.

III.       Apercu of Regent’s Underground Power System

The #2 Mine runs three shifts. The
first two are production shifts. The third is a maintenance shift. Tr. 200.

Underground power is supplied to
Regent’s Mine #2 by a 7,200-volt cable, which extends from a surface power
substation to an underground power center. Tr. 217.[3]  On the back of the power
center is a visible disconnect device so one can see the blades in the back of
the power center. When the blades are closed, the circuit can be energized.  Tr.
152-53.

A distribution circuit distributes
power to various areas on the mine, like the power center. Tr. 150. An
equipment circuit powers a particular piece of machinery. The miners in this
case were working on an equipment circuit. Tr. 150.

Once power reaches the power center, a transformer reduces
the voltage and supplies it to various receptacles at the power center. Tr.

  1. These receptacles provide necessary electrical power in various voltages
    to the equipment via cables. Tr. 38.[4]

A cable extends from an individual
machine or piece of equipment and is connected to a receptacle and disconnected
via a plug, or cathead, at the end of the cable. Tr. 38, 151. For example, a
shuttle car has a trailing cable that provides 480 volts of electrical power
necessary for operation.  Tr. 34. A trailing cable is usually two to three
inches wide and has an insulated jacket that protects copper cable conductors
inside. Tr. 230-31.

Each receptacle within the power
center can be disengaged by a circuit breaker. Tr. 38. A receptacle can also be
locked and tagged out, preventing a plug from being inserted into a receptacle
and power from being supplied to a cable or piece of equipment. Tr. 39.  To
lock out a receptacle, a lock is placed though a pre-drilled hole or tab on the
receptacle, which would house the cathead if it were plugged in. Tr. 62. The
tab is used to hold a plug in place. A lock or bar inserted into the tab,
prevents the plug from lining up with the tab and making contact with the receptacle.
Tr. 62.  A lock also prevents a circuit breaker on the receptacle from being
plugged in or reset. Tr. 38. A tag or warning sign is placed on the device to
alert others to refrain from energizing the circuit. Tr. 38.  

IV.       Summary of Testimony

A.    Inspector
Robinson’s Testimony

On January 28, MSHA inspector Marty
Robinson conducted a regular inspection at Regent’s No. 2 Mine. Tr. 31. When
Robinson arrived on the property that morning, he was met by mine
superintendent Robert McClanahan. Tr. 32.  McClanahan called John Senter, the
belt foreman, to accompany inspector Robinson into the mine. Tr. 32. There was
no power extending underground at the time Robinson arrived at the mine. Tr.

  1. Robinson first inspected Senter’s personnel carrier, and then Robinson and
    Senter went underground through the primary escapeway. Tr. 33.

Inspector Robinson performed an
imminent danger inspection immediately after arriving at the MMU. Robinson and
Senter then went down the number two entry to check the power center. Tr. 33. As
they did so, Robinson observed two miners, Jonathan Browning and Bradley
Martin, near a shuttle car pulling the 480-volt cable through their hands and
“feeling every inch of the cable” as if they were doing an exam. Tr. 33-34.  According
to Robinson, the miners were holding the cable, sliding it through their hands,
pulling it off a reel, and taping spots and splices on the cable. Tr. 34-35,
116, 136.[5]
Robinson credibly testified that the miners were looking for damage to the
inner conductors, which required require bending the cable to check for
ruptures on the outer jacket. Tr. 35, 134.  Bending the cable can open the
jacket to show if there is damage and the insulating material is compromised. Tr.

  1. Robinson further credibly testified that the miners may have been
    refreshing electrical tape that had been previously applied to cover splices in
    the cable, but they were definitely looking for damage based on the way they
    were handling and pulling the cable from hand to hand. Tr. 35.

Robinson considered this task to be
maintenance on an electrical component of the shuttle car, which was electrical
work. Tr. 35. Essentially, Robinson determined that the re-taping was repair of
electric components of electrically-powered mobile equipment and not mechanical
repair on electrically-powered equipment.  Robinson explained, “A mechanical
repair would not involve electricity. It wouldn’t involve the electrical
conductors.  The trailing cable is the conductor[s] for the machine. Without
that trailing cable the machine will not function.”  Tr. 37.  Robinson did not
examine the cable himself to see if it was damaged. Tr. 69.

After observing the miners working
with the cable, Robinson and Senter went to the power center in the number three
entry. Tr. 37. Robinson inspected the power center. Tr. 39.  Robinson observed
that all the cathead receptacles were plugged in. Tr. 37. Robinson also observed
that there were no locks anywhere on the power center, the circuits were
tripped, and the blades on the back were in the closed position, which would
allow the section transformer to automatically energize upon restoration of
power. Tr. 39–40, 63, 153. Robinson credibly testified that with the blades in
the closed position, the power center would automatically reenergize when power
was restored, allowing the high voltage to feed directly into the power center
and energize the branch circuits. Tr. 64.

Robinson also noticed that the
circuit breakers were tripped, as expected after a loss of power. Tr. 63. Thus,
if the circuits were reset, they would be re-energized. Tr. 63.  Robinson
testified that without locking and tagging out the circuit, anyone could come
by and pull a breaker, energizing the circuit. Tr. 38.

Based on his experience as a
certified electrician and MSHA inspector, Robinson concluded that the way the
miners were handling the cable suggested that they were examining it to check
for damage, and not just generally re-taping previously taped areas of the
cable, although the only places that Robinson observed the miners apply
additional tape were to previously taped areas on the cable. Tr. 51, 87.  Robinson
opined that only a qualified electrician would be able to determine whether
damage to a cable’s outer jacket was superficial or extended into the inner
conductors, and to determine the type and extensiveness of repair necessary. Tr.
51, 60. Robinson also testified that the only way a miner can guarantee that
the circuit he is working on cannot be energized is to lock and tag the circuit
out, thereby making other miners aware that someone is working on the circuit. Tr.

  1. Robinson had no direct knowledge about whether Browning and Martin had
    participated in an MSHA-approved training plan that covered electrical hazard
    recognition practices. Tr. 91.

Robinson informed Senter that he
intended to issue a section 104(a) citation for violation of 30 C.F.R. § 75.511
because the shuttle car was not locked and tagged out to prevent the cable from
becoming energized while the miners were working on it. Tr. 37–38. Robinson
testified that the miners pulling the cable from hand to hand could encounter a
damaged spot with exposed energized conductors. Tr. 38-39. If the cable was
energized, an exposed conductor or a fault created from bending the cable would
cause electrocution, shock, or burns. Tr. 39, 40, 57. Robinson testified that
there was a risk of bending an energized cable with a damaged outer layer
because exposed inner conductors in contact could create a fault condition and
blow up.  Tr. 39. If there was a fault, an energized cable could have an arc
flash, causing an explosion, which would burn miners. Tr. 56.

After Robinson told Senter that he
was going to issue a citation, Senter yelled out to Browning and Martin to stop
working on the cables. Tr. 41. Senter then called Leon Kelly, the section
foreman, and asked him to come to the power center. Tr. 41.

Once section foreman Kelly arrived,
Kelly and Robinson discussed the citation he would issue. Kelly informed
Robinson that the power was locked and tagged at the surface. Tr. 41. Richard
Ventro, a certified electrician, had informed Kelly via telephone that he had
locked and tagged out the surface substation that provided power to the mine. Tr.

  1. Robinson replied that the locking and tagging out on the surface power
    source was irrelevant because the cables themselves needed to be locked and
    tagged out.  Tr. 41.

Kelly called to the surface to
inform superintendent McClanahan of the citation.  Robinson, who was about five
feet away from the mine phone, heard McClanahan tell Kelly, “you know better
than that, that’s stupid.” Kelly then began to unplug some of the receptacles. Tr.
41.

Shortly thereafter, Kelly received
another call, and a few seconds later the power center began humming and was
energized. Tr. 41–42.  Robinson testified that no one went to the back of the
power center to turn it on, confirming, contrary to Clark’s testimony infra,
that the blades were in closed position. Tr. 106.  At this point, Kelly immediately
plugged the receptacles back in and energized the circuits. Tr. 42.

Robinson did not observe Kelly
inform anyone that the power was coming back on. Tr. 43. Kelly and Robinson
were the only people present at the power center when the power came back on,
although Don Clark, the certified electrician, arrived at the power center about
20 minutes later. Tr. 42, 50. According to Robinson, Clark had been outby
trying to troubleshoot the problem with the high-voltage circuit. Tr. 154.

Robinson testified that if the
miners had not been pulled from their work on the trailing cable, they would
have been working on live cable. Tr. 42. Further, Robinson testified that from
the power center, it impossible to see the location where the two miners had
been handling the trailing cable. Tr. 43, 148.

After power was restored, Robinson
continued with the E01 inspection. Tr. 43. Robinson was unsuccessful in
obtaining any information from the miners about why they had been patching the
trailing cable. Tr. 44. Once above ground, Robinson reviewed the Program Policy
Manual (PPM), typed up Citation No. 8201921, and served it upon Senter.  Tr.
36, 44. The condition or practice section of the January 28, 2013 citation
alleges:

TWO MINERS ARE PERFORMING MAINTENANCE
ON THE TRAILING CABLE FOR THE COMPANY #2 SHUTTLE CAR AND THE MACHINE IS NOT
LOCKED OUT OR TAGGED. THE MINERS ARE PULLING THE CABLE BY HAND AND CHECKING
SPLICES AND DAMAGED PLACES IN THE TRAILING CABLE. THE MACHINE CATHEAD IS
PLUGGED INTO THE SECTION POWER CENTER. THE CIRCUIT BREAKER IS OPEN AT THE TIME.
MINERS REPAIRING THE CABLE WOULD RECEIVE FATAL INJURIES IF THE CABLE WERE TO
BECOME ENERGIZED. THIS CABLE PROVIDES 480 VAC TO THE SHUTTLE CAR.

The citation further alleged a
Section 104(a) significant and substantial (S&S) violation of 30 CFR §
75.511, which was reasonably likely to result in a fatal injury, with two
persons affected, as a result of Respondent’s moderate negligence. P. Ex. 1.  Robinson
determined that the violation was “reasonably likely” to result in a fatal
injury or illness because if power had been restored to the unlocked circuit
during continued normal mining operations, the miners would be handling the
trailing cable when the circuit became energized. Tr. 55. Robinson testified
that an acquaintance had died as a result of working on a continuous miner
cable that was not locked and tagged out when an unannounced restoration of
power occurred after mine-wide power outage.  Tr. 59.  

Robinson returned the next day (January
29) to continue the inspection and interview miner informants and management.
Tr. 44-46. Robinson was informed by miners that section foreman Kelly had
instructed them to check splices and re-tape the trailing cable because
Robinson had not yet checked the cable cars and equipment during his quarterly
E01 inspection. Tr. 45-46. At hearing or during pre-hearing depositions, Martin
and Browning testified that they had been instructed to perform this work by
section foreman Kelly. Tr. 232 (Martin testimony; R. Ex. 6, at 4 (Browning
deposition).[6]
 Robinson also learned that the two miners working on the live shuttle car
cable the previous day were not on the mine’s list of qualified electricians. Tr.
47.[7]  In
addition, Robinson found out that while Browning and Martin were performing
work on the trailing cables the day before, Don Clark, the qualified
electrician, had been in a different part of the mine troubleshooting the power
failure, and therefore Clark had not supervised the work that was performed by
Browning and Martin on the trailing cable. Tr. 48, 53.

During the investigation,
superintendent McClanahan informed Robinson that miners were asked to check
trailing cables a few times a week when power was out, or a machine was down.  Tr.

  1. Respondent had received previous citations because trailing cables were not
    maintained properly, and McClanahan told Robinson that Respondent was trying to
    stay ahead of the game and prevent reoccurrences.  Tr. 49-50.

Based on the information obtained
from Robinson’s January 29 investigation, MSHA modified S&S Citation No.
8201921 under 104(a) to a S&S 104(d)(1) Citation.  Tr. 53. In the condition
or practice section, the unwarrantable failure citation alleged:

TWO MINERS ARE PERFORMING ELECTRICAL
MAINTENANCE ON THE COMPANY #2 SHUTTLE CAR TRAILING CABLE AND THE MACHINE IS NOT
LOCKED AND TAGGED. THE MINERS ARE PULLING THE CABLE BY HAND AND CHECKING
SPLICES AND DAMAGED PLACES. THE MACHINE CATHEAD IS PLUGGED INTO THE SECTION
POWER CENTER. THE CIRCUIT BREAKER IS OPEN AT THE TIME. THE MINERS PERFORMING
THE WORK ARE NOT CERTIFIED ELECTRICIANS NOR UNDER THE SUPERVISION OF A
CERTIFIED ELECTRICIAN. THE OPERATOR HAS ENGAGED IN AGGRAVATED CONDUCT
CONSTITUTING MORE THAN ORDINARY NEGLIGENCE IN THAT THE MINERS WERE INSTRUCTED
TO PERFORM THE WORK WITHOUT BEING UNDER THE DIRECT SUPERVISION OF A CERTIFIED
ELECTRICIAN AND WITHOUT THE MACHINE BEING LOCKED AND TAGGED. MINERS EXPOSED TO
THIS CONDITION WOULD RECEIVE SHOCK AND BURN RELATED INJURIES.

The modified citation reduced the
gravity of the injury expected from fatal to lost workdays based on the fact
that the cable provided 480 VAC to the machine in relatively dry conditions,
which would likely cause a burn or shock resulting in lost workdays, rather
than a fatal electrocution.  P. Ex. 1, Citation No. 8201921-01; Tr. 55. Robinson
opined that gloves, if worn by miners, did not decrease the risk of being
burned because a miner could still have exposed skin, and that the gloves were
likely wet and dirty, decreasing their effectiveness. Tr. 56. The modified
citation increased negligence from moderate to reckless disregard involving
aggravated conduct because the miners were instructed to perform work on the
circuit without being under the supervision of a certified electrician and
without the machine being locked and tagged out.  P. Ex. 1, Citation No.
8201921-01; Tr. 54, 58.  

Robinson testified that “Mr. Kelly
knew that the circuit was not locked and tagged because when he came to the
power center he told me it’s locked on the surface. So by him knowing that it
was locked on the surface, he had to know that it was not locked there. And it
was obvious. Anyone could walk by the power center and tell that there’s no
locks or tags installed on any of the plugs.”  Tr. 65.  Further, Robinson
opined that Kelly knew or should have known that Clark, but not the roof
bolters and shuttle car operators, were certified to perform the work. Id.

Robinson defended the unwarrantable
failure modification because Kelly had instructed miners to perform work on an
energized cable, knowing that the circuit was not locked and tagged. Further,
it was obvious that the miners designated to do this task were not on the list
of qualified individuals to perform electrical work.  Tr. 61-62.

MSHA specially assessed the
proposed penalty at $20,900.  Robinson’s testimony was limited to the fact that
the penalty was recommended for special assessment.  Tr. 130-32.  The Narrative
Findings for Special Assessment contained in the Commission case file were not
offered into evidence.

B.     The
Testimony from Respondent’s Witnesses

1.      Richard
Ventro’s Testimony

Richard Ventro, an MSHA-qualified
electrician, testified that he was the outside mechanic working at Mine No. 2
on January 28. After Ventro arrived at the mine, he received a call from the
mine to inform him that the power was out in the mine. He does not remember who
called him. Tr. 181. Ventro and Dean Addington, a mine mechanic, traveled to
the above-ground substation and visually confirmed that the underground power
was out. Tr. 182. Ventro then locked and tagged out the pump that operates the
power at the surface substation so that no one could turn the power back on in
the mine. Tr. 183. Ventro testified that there was no way the power could be on
within the mine if the power at the substation was locked and tagged out.  Tr.

  1. Ventro and Addington traveled back to the main shop and called underground
    to Kelly and Clark to inform them that Ventro had locked and tagged out the
    substation power source. Ventro and Addington then returned to the substation
    and identified the power problem. Tr. 184-85. 

Ventro and Addington turned the
power back on at the substation, but the power source to the mine remained
locked and tagged out. Tr. 185–87. Ventro remained in communication with Kelly
and Clark inside the mine while they were troubleshooting the power at the
substation. Tr. 187. Ventro informed Clark that they were going to turn the
power back on in the mine, but waited until receiving confirmation from Clark that
“everybody was in the clear.” Tr. 188. After receiving that confirmation from
Clark, Ventro unlocked and untagged the pump and turned the mine power source
back on. Tr. 189. By Ventro’s estimate, the power outage lasted between one and
one-half hours and two hours. Tr. 194.

2.      Dean
Addington’s Testimony

Dean Addington was working as a mechanic with
certified electrician Ventro at the mine on January 28. Addington became aware
of the power problem when he and Ventro received a call from underground. Tr.
199, 206. Addington and Ventro went to the substation and Addington witnessed
Ventro lock and tag out the underground power source. Tr. 201. Then they
returned to the shop and informed Clark and Kelly that Ventro had locked and
tagged out the power. Tr. 201.

Addington knew that Clark had been
troubleshooting the problem underground. Tr. 206, 211-14. Addington communicated
with Clark, who was on the phone at the life shelter, to try to pinpoint the
problem. Tr. 214. Clark informed Addington that he had been unable to diagnose
any problem underground. Tr. 206.

Addington and Ventro then returned
to the substation, where Addington diagnosed and fixed a problem with the
potentiometer in the monitoring package above ground. Tr. 202. They returned to
the shop a second time and informed Clark and Kelly that they had fixed the
problem and were ready to turn the power back on. Tr. 202. After receiving the
all-clear, Ventro and Addington went back to the substation, where Addington
witnessed Ventro unlock and untag the power supply before turning it back on. Tr.
202, 216.  Addington and Ventro then went back to the main shop and called Clark
and Kelly underground to inform them they had turned the power back on from the
substation. Tr. 207.

On the third shift (maintenance
shift), Addington has had mechanics work under him, who have experience
maintaining trailing cables. Tr. 218-19. In Addison’s opinion, taping a cable
without exposed wires does not constitute an electrical repair. Tr. 219-20. He
testified that when he examines cables to check for pinholes and nicks, he
locks and tags out the cable, and then bends the cable to identify any
nicks or cracks, and to make sure that no red or white electrical leads can be
seen.  If there are no exposed wires, then he just tapes over the nick. Tr.
220-21.

In Addington’s opinion, working on
a cable after the power had gone out would not normally pose any risk of shock
because the power outage would have tripped the breakers in the underground
power station and the cable would not re-energize even if the power was turned
back on. Tr. 223. Addison also opined, however, that a cable could
automatically re-energize and pose an electrocution risk when the power comes back
on at an underground power center if someone had already re-engaged the
breakers. Tr. 223. Addington further testified that it was possible for someone
to energize or put the breaker in after the high-voltage power was restored if
there was no lock on the cathead of the cable being maintained. Tr. 225.  When
asked by the undersigned how that would happen, Addington testified, “Well, the
guy putting the high voltage in is not going to holler underground.”  Tr. 225.  Addington
further explained that somebody could put the breaker in after the high-voltage
power was restored, but volunteered that Kelly was at the power center and
would know if somebody was going to put the breaker in. Tr. 226.  

3.         Bradley Martin’s
Testimony

Bradley Martin is a shuttle car operator
at Respondent’s Mine #2. Tr. 228, 231. Martin testified that the power was out
when he arrived at the mine on January 28. Tr. 231-32. Martin, two other
shuttle car operators, and two roof bolters were instructed by Kelly, the
foreman, to “Pull our shuttle car cables off and just tape over our splices.” Tr.
232-33; 236, 246. Martin opined that he was not asked to do anything that he
felt was unsafe. Tr. 239.

Martin testified that “we never
pulled the cable off [shuttle car] two because it had new cable on it the day
before. It had no splices in it. It was solid cable.” Tr. 234; see also Tr.

  1. The number two shuttle car, which Martin drove all the time, was the car
    cited by inspector Robinson. P. Ex. 1. The cars are not labelled with numbers. Rather,
    they are identified based on distance from the power center. Martin testified that
    the closest shuttle car that is plugged into the power center is the number one
    car “and then the next one is two and the next is three.”  Tr. 238. 

Martin testified that he never
worked with Jonathan Browning on the morning of January 28. Tr. 235, 244.  Browning
was never asked in his deposition whether he was working with Martin.  See R.
Ex. 6. Martin testified that Browning was at the number one car and that Martin
was not with him and could not see him from where he was working.  Tr. 244.

Martin further testified that he and
shuttle car operator Greg Hall were pulling the cable off the number three
shuttle car when they were instructed to stop by someone whom Martin could not
remember. Tr. 235.  Hall did not testify.  Martin further testified, “They
just come, you know, towards where we was at and just hollered over there and
got our attention and told us that we needed to quit pulling our cable; you
know, quit pulling the cables off.” Tr. 235; see also Tr. 246. Martin testified
that power was still out when they were told to stop working.  Tr. 248

Martin wore fairly new, insulated,
rubber-palmed gloves when performing the work. Tr. 236, 248. Martin testified
that they did not bend the cable and that they had not pulled much cable off
and had just started on the car when they were told to quit. Tr. 237, 249. Martin
testified that he did not find any gashes or damaged places with exposed wires,
but if he had, he would have notified Clark, the electrician. Tr. 237. Martin testified
that he did not bend the cable or place tape where there was not already a
taped splice. Tr. 237.

Clark was not nearby while Martin
was working on the cable. Tr. 246. Martin remembers Clark yelling to the miners
that day that he was going to put the breakers back in.  Tr. 250.

Martin is not a qualified
electrician, but he has received training from Regent on handling cables and
electrical hazard recognition. Tr. 229. Martin testified that, based on his
training, handling a cable is “no big deal,” but that a cable needs to be
locked and tagged out if the work involves cutting into the cable. Tr. 229-30. 

I discredit Martin’s testimony that
he never worked with Browning on January 28.  I credit Robinson’s testimony, as
supported by his January 29 investigation, and corroborated by Senter’s
testimony discussed infra, that Martin was pulling cable with Browning
that day.  I also discredit Martin’s testimony that he heard Clark holler that
he was going to put the breakers back in. I have discredited Clark’s testimony infra
that he did so. I also discredit Martin that he never pulled cable from the
number two shuttle car because new cable was placed on it the day before. No
documentation was proffered to support this testimony and it was not
corroborated by any other witness.  Browning, the other miner doing re-taping
on the cable, did not indicate which trailing cable was repaired. When asked, Clark
was not sure which shuttle car trailing cable was being worked on, but he thought
that it was probably the number two car. Tr. 299.  Further, I find it unlikely
that inspector Robinson would specifically cite work on the wrong shuttle car.  In
any event, I further credit Robinson’s testimony about the manner in which Martin
and Browning were pulling cable even if Robinson was somehow mistaken about
which shuttle car cable was being worked on by them. See Tr. 238-39.  Martin
testified that he was working on the number three car, which was also plugged
into the power center and not locked or tagged out. Tr. 244.

4.         John Senter’s
Testimony

John Senter works as a belt boss at
Respondent’s #2 Mine. Senter accompanied inspector Robinson into the mine on
January 28. Tr. 253-54. Senter does not recall seeing Clark underground that
day. Tr. 266.

Senter testified that he and
Robinson saw two miners, Brad Martin and Jonathan, taping cables shortly after
they arrived on the section in the power center entry or number three entry. Tr.
255-58. Senter saw the miners, Browning and Martin, holding the cable and
visually checking it for cracks, but did not see them bend or twist the cable. Tr.

  1. Senter did not observe the miners using any tools to examine the cables. Tr.
    269.

After observing the miners working
on the cable, Senter accompanied Robinson to the power center, where Robinson checked
the catheads for the cables and saw that they were not locked and tagged out. Tr.

  1. Senter testified that he did not check to see whether the blades on the
    back of the power center were in or out, nor did he see Robinson check the
    blades. Tr. 260. In fact, on questioning from the undersigned, Senter testified
    that he knows that Robinson did not check the blades because he was right there
    looking at the catheads.  Tr. 260.  According to Senter’s testimony, Senter and
    Robinson remained at the side of the power center, and at no time did Robinson
    move to the back of the power center to check the blades. Tr. 264.  I find it
    noteworthy, however, that Senter never went behind the power center to see if
    the blades had been locked out. Tr. 275.

I discredit Senter’s testimony that
Robinson never checked the blades on the back of the power center. Rather I
credit Robinson, after specific questioning from the undersigned, that he
walked to the back of the power center while the power was still off and
observed no lock on the back of the power center and the blades in the closed
position.  Tr. 63-64.  Robinson testified that this occurred shortly after he
told Senter he was issuing a citation.  Tr. 64.  I note that Senter had to
leave to holler out to Martin and Browning and to call foreman Kelly.  Moreover,
Robinson persuasively testified that part of the normal examination of the
power center is to make sure there is a means to lock and tag out the power
center. Tr. 64

5.         Don Clark’s Testimony

On January 28, Clark was the
qualified underground electrician at Mine #2. Clark

testified that after he discovered the underground power
outage, he called the surface to inform Ventro. Tr. 285. After Ventro informed Clark
that there was no problem with the surface power, Clark reset the underground
power center, and asked Addington and Ventro to check the power again. Tr. 286.
When the underground power was still out, Ventro locked and tagged out the
underground power at the above-ground substation. Tr. 288.

Clark testified that he then locked
and tagged out the blades on the back of the power center. Tr. 287, 296. The
process involves locking a chain through a hole in the handle of the breaker so
that it physically cannot be re-engaged. Tr. 297. Clark testified that he specifically
remembers locking and tagging out the breakers because it allowed him to
eliminate the section power center as the problem while troubleshooting. Tr. 290-92.
Clark had the only lock, so he was the only person who would be able to lock the
blades. Tr. 298. At that point in time, Clark remembers that the trailing cable
catheads were plugged into the power center. Tr. 297. Clark testified that
he did not lock and tag them out because he was not going to be working with
them. Tr. 297-98.  

I do not credit Clark’s testimony
that he locked and tagged out the blades at the back of the power center.  Rather,
I have previously credited Robinson’s testimony on specific questioning from
the undersigned that he checked the power center and there were no locks
anywhere on the power center, and the blades on the back of the power center
were in the closed position. Tr. 39, 63-64. Moreover, Clark never told foreman
Kelly that he locked the blades in the back of the power center, and Kelly, who
assigned the work, did not know whether the blades were locked.  Tr. 344-45. Clark
did not show or tell Robinson that the blades were locked and tagged and
Robinson did not see Clark until 20 minutes after power had been restored. Tr.
311, 154. Robinson also testified that the power center became energized
immediately after power was restored, without the blades being flipped. Tr.
105-06.

Clark testified that he then
proceeded down twelve or fifteen breaks from the power center to perform a
visual check on the underground circuit. Tr. 287. Clark had already checked the
first junction box when Ventro and Addington called him from the surface and informed
him that the surface monitor had tripped and caused the underground power
outage. Tr. 289-90, 293. Clark testified that he returned to the power center,
where Kelly informed him that Robinson was going to issue a citation for the
cables. Tr. 294-95.

Clark instructed Ventro and
Addington to attempt to turn on the power to the section power center. They did
so and were successful. Tr. 295. After checking to be sure that everyone was
clear of electrical equipment, Clark testified that he unlocked and untagged
the breakers and turned the section power back on. Tr. 295. I discredit this
testimony and specifically credit Robinson that only he and Kelly were at the
power center when it began humming and was reenergized.  Tr. 41-42, 106. Moreover,
Clark could not specifically remember, when asked, whether Kelly or Robinson
were in the area. Tr. 294.

After Kelly told Clark about the
citation, Clark testified that he went and looked at the cable. Tr. 299. Clark
testified that it looked like Browning and Martin had put new tape over two or
three existing taped places. Tr. 299-300. In Clark’s opinion, the miners were
not exposed to any kind of danger by placing tape on the cable. Further, Clark had
never seen nor heard of an instance in which mine management asked an
unqualified miner to perform electrical work. Tr. 301-02.

Clark also recalled occasions where
Martin and Browning have asked for his assistance when they have encountered
electrical problems. Tr. 301-02. Clark did not consider taping cables to be
electrical work because no conductors were exposed. Tr. 303.

6.         Leon Kelly’s
Testimony

Leon Kelly was the section foreman working on
January 28. Since the power was out underground, Kelly told miners to re-tape
the splices on their shuttle car cables. Tr. 319. He testified that he did not
instruct them to bend, cut into, or go into the cables. Tr. 334. Rather, he
specifically instructed them to put tape on existing splices. Tr. 322.

Kelly’s section had previously
received a citation and a $5,900 penalty assessment for a cut in a cable that
was not sufficiently taped over.  Kelly wanted to avoid receiving another
citation for the same kind of violation. Tr. 320-21. Kelly testified that he
knew that only qualified persons could cut into cable. He testified that he did
not think that the miners were in any danger because the power was locked and
tagged out at the surface. Tr. 322.

Kelly explained that three things
had to happen for the cables to become energized: the power would have to put
back in from outside; the blades would have to be put back in on the power
center; and the cathead breakers would have to be put back in. Tr. 339. Kelly
testified that the cathead breakers at the front of the power center were out.  Tr.
345.

Kelly was at the face when someone told him (presumably
Senter) that he was needed at the power center because Robinson was looking at
the catheads. Tr. 323. When Kelly arrived at the power center, Robinson
informed him that he was going to issue a citation because miners were working
on a cable that had not been locked and tagged out. Tr. 323. Kelly told
Robinson that the power was locked and tagged out at the surface. Tr. 323. Kelly
did not go to the back of the power center to check whether the power center itself
had been locked and tagged out, and was unaware of whether or not Clark had
done so. Tr. 324-25. Kelly also did not check to make sure that the miners were
clear of the cable immediately before the power came back on because he had
previously told them to stop working on the cable after Robinson had informed
him that he was going to issue a citation. Tr. 343.

Kelly learned that Ventro and Addington were
going to try to turn the power back on when they called the power center. Tr.

  1. Kelly told everyone to stay clear of the power center, since he was
    unaware that the center itself was locked out. Tr. 325. Kelly did not see Clark
    unlock and untag the blades at the back of the power center because he stayed
    at the telephone 40 feet away from the front of the power center. Tr. 325–326. Kelly’s
    view might also have been blocked because the blades could have been behind the
    curtain at the back of the power center. Tr. 338. Kelly testified that from
    where Robinson was standing, he would not have been able to see whether the
    blades on the back of the power center were locked out, and he did not see
    Robinson go to the back of the power center to check. Tr. 328.

Kelly trains new hires at Mine #2. Tr. 329. Part
of that training includes instructing the miners that if there is problem with
their cables, the electrician has to work on it. Tr. 329. Kelly has instructed
miners to tape cables before, although not often, and sometimes he instructs
the miners to mark nicks in the cable with paint so that the electrician can
fix them. Tr. 335. On those previous occasions, Kelly admitted that the cables
were locked and tagged out, but he did not lock out and tag the cables on
January 28 because the power was out in the mine. Tr. 336.

7.         Jonathan Browning’s Deposition
Testimony

Jonathan Browning is a roof bolter at the No. 2
mine. Browning Dep. 4. Browning has been told to tape cables before, and did as
instructed by Kelly on January 28. Browning testified that he does not do any
electrical work on cables and only wraps tape over splices. Browning Dep. 5.

Browning tapes cables after the
cables have been locked and tagged out, but Browning testified that on January
28, the power was locked and tagged out above ground. Browning Dep. 5–6. Browning
testified that he does not tape over nicks or look inside the outer jacket, and
that if he encounters a nick, he calls for the electrician to perform the work.
Browning Dep. 6.

Browning wore gloves while he was
taping the shuttle car cable at issue. Browning testified that he was never in
contact with any exposed leads, and he did not believe that there was any
potential for such contact. Browning Dep. 6–7.

V. The Position of the Parties

A.   
Brief Summary of Arguments

The Secretary argues that section
75.511 contains three distinct requirements: 1) electrical work shall only be
completed by a qualified electrician or under the supervision of a qualified
electrician; 2) the disconnecting device shall be locked and tagged by the
person completing or supervising the work; and 3) only the person who installed
the lock and tag shall remove the lock and tag, unless that person authorizes
another individual to remove the lock and tag. P. Br. 9. The Secretary argues that
the work performed by Browning and Martin on the #2 shuttle car cable
constitutes a violation of section 75.511 because Browning and Martin were
performing electrical work, they were not qualified to do so, nor working under
the supervision of a qualified electrician, and the shuttle car trailing cable
was not locked and tagged out.

The Secretary admits that section
75.511 does not provide a definition of electrical work, but points out that
the MSHA Program Policy Manual’s (PPM’s) definition of electrical work includes
any “work required to install or maintain electric equipment or conductors.” P.
Br. 10; P. Ex. 3, at 54. The MSHA PPM also lists examples of work that must be
performed by certified persons, which include locating faults in cables; repairing
electric components of electrically-powered portable, mobile, or stationary
equipment; and electrical maintenance of permissible equipment. P. Br. 9–10; P.
Ex. 3, at 55. The Secretary argues that the #2 shuttle car trailing cable
should be considered an electrical component because it provides power to the
shuttle car, and the work the miners were doing should be considered
“electrical maintenance.” P. Br. 11; Tr. 303.

There is no dispute that Browning
and Martin were not persons qualified to conduct electrical work and there is
no dispute that the shuttle car trailing cable cathead was not locked and
tagged out.  P. Br. 12, 14; Tr. 276, 336, 297. Although Clark’s and Robinson’s
testimony conflicts regarding whether the blades on the power center were
locked out (compare Tr. 39 with Tr. 287), the Secretary argues that the failure
to lock and tag out the cathead itself still poses an electric shock hazard to
Browning and Martin. P. Br. 13.

The Secretary argues that under Chevron,
courts must defer to reasonable agency interpretations when Congress’
intent is not clear. Chevron U.S.A. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843-44 (1983).  Further, the Secretary’s litigation position, “is
as much an exercise of delegated lawmaking powers as is the Secretary’s
promulgation of a . . . health and safety standard,” and is
therefore due the same deference as an any other agency interpretation. See
Sec’y of Labor v. Excel Mining, LLC 334 F.3rd 1, 6 (D.C. Cir. 2003). Since inspector
Robinson reasonably believed that the miners were conducting electrical work on
the cable, the Secretary argues that his litigation position is entitled to
deference under the Excel Mining standard. Sec’y Post-Hr.’g. Br. 9–12.

Respondent argues that the work
performed by Browning and Martin in handling and re-taping the shuttle car cable
did not constitute electrical work. Based on the examples in the MSHA PPM, see
P. Ex. 3, at 56, Respondent argues that what distinguishes
electrical from non-electrical work is the potential for exposure to energized
parts. Under the Respondent’s interpretation of the MSHA PPM, locating faults
in cables, making splices, making repairs of electrical components, and
electrical maintenance all qualify as electrical work which requires electrical
training because the person performing those kinds of tasks could come into
contact with energized parts. By contrast, handling energized trailing cables, operating
electrical switches, and performing mechanical repairs on electrical components
do not constitute electrical work because those tasks lack the potential to
expose a person to energized parts. R. Br. 15.

Although inspector Robinson
characterized the miners’ work on the cable as an examination, Respondent argues
that whether or not an examination occurred has no bearing on whether the work
was electrical. R. Br. 16. Moreover, Respondent argues that since the
cable was not damaged, the miners’ work cannot be considered electrical
maintenance. Instead, it should be characterized as “upkeep” designed to
increase the cable’s usefulness as distinguished from actual maintenance. Sec’y
of Labor v. Walker Stone Co., 19 FMSHRC 48, 51 (Jan 1997), aff’d 156
F.3d 1076 (10th Cir. 1998); R. Br. 16. Specifically, Respondent argues
that “the work of re-taping previously taped splices was not maintenance,
because it was not designed to maintain the cable in a state of repair or
efficiency.” R. Br. 16. Respondent relies on Walker Stone, 19
FMSHRC 48 (Jan. 1997), aff’d, 156 F.3d 1076 (10th Cir. 1998), and Southern
Ohio Coal Co., 14 FMSHRC 978 (June 1992), to distinguish the work that
Browning and Martin were doing from repairs or maintenance. The Respondent
argues that the “miners were simply applying more tape to previously taped
areas on cable to prevent future violations for inadequate taping of splices,”
and this did not constitute maintenance, as anticipated by the standard.  R.
Br. 16, citing Tr. 49.  The Respondent uses the definition of maintenance
supplied by the Commission in Walker Stone to support its contention
that the work performed by the miners on the trailing cable was not
“maintenance.”

VI.            
Discussion and Legal Analysis

A.    The Violation
of 30 C.F.R. § 75.511 -- The Work That Browning and Martin Were
Performing on the Shuttle Car Trailing Cable was Electrical Work and the Secretary’s
Interpretation of Electrical Work is Entitled to Deference

Where the language of a regulatory
provision is clear, the terms of that provision must be enforced as written
unless the regulator clearly intended the words to have a different meaning or
they lead to absurd results.  Dyer v. United States, 832 F.2d 1062, 1066
(9th Cir. 1987); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug.
1993). In the absence of a regulatory definition or technical usage of a word,
the Commission looks to the ordinary meaning of the word. Peabody Coal Co.,
18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997).  

Where a standard is ambiguous,
however, courts defer to the Secretary's reasonable interpretation of the
regulation. See Udall v. Tallman, 380 U.S. 1, 16-17 (1965); La Farge
Construction, 20 FMSHRC 1140, 1143 (1998); Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec'y of Labor v.
Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990). An agency’s
interpretation of a regulation may prevail, even if it is not the only or best
interpretation, as long as it is not inconsistent with the regulation or
plainly erroneous.  Decker v. Northwest Environmental Defense Center,
133 S. Ct. 1326, 1337 (2013); Auer v. Robbins, 519 U.S. 452, 461 (1997);
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Emery
Mining Corp., 744 F.2d 1411, 1414 (10th Cir. 1984)(holding that where there
is an interpretation of ambiguous regulation that is reasonable and consistent
when viewed in light of the statute it implements, that interpretation is
preferred); Island Creek Coal Co., 22 FMSHRC 823, 827 (2000)(holding
that a safety standard should be interpreted in a way that furthers the
objectives of the Mine Act).  

I find that the meaning of the
phrase “electrical work” under Section 75.511 is ambiguous. As noted, neither
the Mine Act nor MSHA regulations specifically define “electrical work.” The
MSHA Program Policy Manual (PPM), however, provides guidance that electrical
work is “work required to install or maintain electric equipment or
conductors.”  P. Ex. 3, at 54 (emphasis added). To clarify this definition, the
PPM lists 11 examples of electrical work within the scope of the standard and 12
examples of non-electrical work that does not require the supervision of a
qualified person:

The Secretary reasonably relied on
MSHA’s Program Policy Manual to offer guidance as to what is “electrical work”
under Section 75.511.  In issuing Citation No. 8201921, Robinson specifically
relied on the PPM example No. 5 (repair of electric components of
electrically-powered mobile equipment) and example No. 7 (electrical
maintenance of permissible equipment) to find that the work that Browning and
Martin were performing on the shuttle car cable was electrical work. Tr. 36; P.
Ex. 3, at 55, paras. 5 and 7.  Further, Robinson did not consider the
work to fall under PPM exception para. 10 for non-electrical work, (i.e., mechanical
repairs on electrically-powered equipment, provided no energized parts or
conductors are exposed), because the trailing cable is an electrical component
that provides power to the machine, and a mechanical repair would not involve
electricity. Tr. 37; see P. Ex. 3, at 56, para. 10.

The Respondent argues that
re-taping is not electrical work and that the potential to come into contact
with energized components is the deciding factor for whether a task is
electrical work. R. Br. 15. Specifically, the Respondent argues that, “the more
common sense approach is to determine the potential for coming into contact
with energized components and to determine the level of electrical training
required to complete the work in defining whether or not work being performed
is ‘electrical work.’” R. Br. 17. Respondent relies on the PPM to support its
contention and notes that while the PPM characterizes “repair of electrical
components of electrically powered . . . equipment” and “electrical maintenance
of permissible equipment” as electrical work, see P. Ex. 3, at 55,
paras. 5 and 7, non-qualified persons are allowed to conduct
non-electrical work such as “handling energized trailing cables” and
“mechanical repairs on electrically powered equipment, provided that no
energized parts or conducts are exposed.” Id. at 56, para. 10.

I reject Respondent’s argument that
the litmus test for determining whether a task is “electrical work” is whether
there is potential to come into contact with “energized components.” The
trailing cable is an electrical component that can be energized if the cathead
receptacle is not locked and tagged. Moreover, the repair or maintenance was
performed on the trailing cable, not the electrically powered shuttle car
itself.

Even if I accepted Respondent’s
proposed approach to defining “electrical work,” I would still find that the
work performed by Browning and Martin was “electrical work,” within the meaning
of Section 75.511. The risk of exposure to an inner conductor is not apparent
upon first glance, but the risk increases the longer a miner inspects and holds
a trailing cable.  Concededly, there was no evidence that the trailing cable
was damaged.  R. Br. 16; Tr. 49, 68, 69, 88, 138, 299. But this fact is more
appropriately assessed under the third Mathies factor in the S&S
analysis, i.e., whether the shock hazard contributed to by the failure to lock
and tag out the cable when performing electric maintenance on it was reasonably
likely to result in an injury.  Indeed, the very fact that splices were on the
trailing cable in the first place means that the cable was damaged at some
point, although the damage was mitigated by tape over the jacket. Tr. 108.

Concededly, the PPM permits the
“handling of energized trailing cables” without requiring lock and tag protocol
or particular qualifications. P. Ex. 3, at 56, para. 7. Robinson persuasively
testified that such work meant picking up and moving a particular portion of
cable, rather than handling an entire cable as Browning and Martin were doling.
Tr. 78, 80, 111, 136; P. Ex. 3, at 55, para. 7.  Robinson further opined that this
exception was to allow a miner to pick up a cable in one spot and move it to another
spot in order to allow a machine or person to pass by. Tr. 111-12. By contrast,
Robinson testified that if a miner felt and examined the cable by hand, as Browning
and Martin were doing, the task became an inspection and fell under the
classification of electrical work. Tr. 92.

I credit Robinson’s specific and
detailed testimony that he saw Browning and Martin, near the shuttle car pulling
the 480-volt cable through their hands and “feeling every inch of the cable” as
if they were doing an exam. Tr. 33-34.  According to Robinson, the miners were
holding the cable, sliding it through their hands, pulling it off a reel, and
taping spots and splices on the cable. Tr. 34-35, 116, 136. Robinson credibly
testified that the miners were looking for damage to the inner conductors,
which required bending the cable to check for ruptures on the outer jacket. Tr.
35, 134.[8]
 Bending the cable can open the jacket to whether there is damage and whether the
insulating material is compromised. Tr. 135.  Robinson further credibly
testified that the miners may have been refreshing electrical tape that had
been previously applied to cover splices in the cable, but they were definitely
looking for damage based on the way they were handling and pulling the cable
from hand to hand. Tr. 35. He convincingly testified:

The
manner they were examining the cable, I believe they were looking for damage to
the cable, not just, you know, general re-tape of a splice or spot that had
already been taped. If you were doing that, you would just pull the cable off
until you seen a spot and then you would freshen that spot up.

But
to feel the cable by hand, you’re examining the cable for further damage.  And
only a qualified person can recognize if that damage to that outer jacket is
truly just to the outer jacket and would require only tape or if the cable
needs to be gone further into because there’s damage to the inner conductors. And
a person who’s trained and qualified along those lines in electrical
certifications and qualifications, he’s trained to make that determination and
know what type of repair and how extensive it needs to be.

Tr. 51.  

Robinson considered the work to be
maintenance on an electrical component of the shuttle car, which was electrical
work. Tr. 35. Essentially, Robinson determined that the examination and re-taping
was repair of electric components of electrically-powered mobile equipment and
not mechanical repair on electrically-powered equipment.  Robinson explained,
“A mechanical repair would not involve electricity. It wouldn’t involve the
electrical conductors.  The trailing cable is the conductor[s] for the machine.
Without that trailing cable the machine will not function.”  Tr. 37.  

Respondent calls Robinson’s
interpretation of the work as electrical rather than mechanical repair of
electrically powered equipment “nonsensical.” R. Br. 17. I disagree. Merriam Webster
defines electrical as “[o]f or related to electricity, operated by electricity,
providing electricity.”[9]
On the other hand, “mechanical” is defined as “of or relating to machinery or
tools; or produced or operated by a machine or tool.”[10] There is no doubt that
the cable is the electrical component sourcing power to the shuttle car and
thus is “electrical” equipment.

In my view, Robinson reasonably characterized
the miners’ work as electrical maintenance because the miners were examining
and maintaining the taped spots in the cable by applying new tape, and because
the taping was done to the cable, i.e., the part of the machine that supplies
electric power to the shuttle car. Tr. 133, 37; 75; see also P. Ex. 3,
at 55, para. 7. Robinson noted that the shuttle car needs the trailing cable
and plug in order to operate. Tr. 133.  Robinson further testified that even
reapplying or refreshing tape would be considered maintenance of a weak spot on
the cable, and work necessary to keep the cable in a state of repair.  Tr. 138,

  1. Although Clark testified that he did not believe that the work was electrical
    work because the miners were not exposed to the conductors, Clark conceded that
    the work was electrical maintenance. Tr. 303.  Under the circumstances, I find
    that the Secretary’s interpretation of electrical work was reasonable and
    entitled to deference.

The Secretary’s interpretation is
also consistent with Commission precedent. The Commission has held that “‘repair’
means ‘to restore by replacing a part or putting together what is torn or
broken: fix, mend ... to restore to a sound or healthy state: renew, revivify
....’” Walker Stone Company, Inc., CENT 94-97-M (Jan. 1997) (quoting Webster's
Third New International Dictionary, Unabridged 1923 (1986)).  I find
that the trailing cable is an electrical component of the shuttle car and that
re-taping was repair of an electric component of electrically-powered mobile
equipment.

Alternatively, the work being
performed was electrical maintenance of permissible equipment.  Generally,
electric face equipment, such as shuttle cars, must be maintained in
permissible condition under 30 C.F.R. §75.506.  Further, several MSHA
regulations, including 30 C.F.R. §§ 56.12016, 56.12017, 57.12016, 57.12017,
75.511, and 77.501, require that lock and tag out procedures be followed when
work on electrical equipment poses a danger of electric shock.  See Island
Creek Coal Co., 22 FMSHRC 823, 827 (2000). That same hazard was present
here when power was restored and the cable was not locked and tagged out.

The Commission held in Walker
Stone that “maintenance is defined as ‘the labor of keeping something in a
state of repair or efficiency: care, upkeep. . . proper care, repair, and
keeping in good order.” Walker Stone Co., 19 FMSHRC 48, 51 (Jan. 1997) aff’d
156 F.3d 1076 (10th Cir. 1998). I find that re-taping a splice is upkeep
meant to keep the trailing cable in a state of repair. The taping or re-taping
was clearly intended to “keep [the cable and the tape] in a state of repair or
efficiency,” see Walker Stone, 19 FMSHRC at 51, especially in
light of section foreman Kelly’s testimony that he was concerned about
receiving citations for damaged or worn tape over existing repairs. Tr. 320-21.

Respondent argues that the re-taping
was not “maintenance,” but rather activity designed to “increase usefulness” of
equipment. S. Ohio Coal Co., 14 FMSHRC 978, 982-983 (June 1992). In Southern
Ohio Coal, the Commission held that an extension of a conveyor belt was not
designed to keep the belt in good repair, but rather to increase its
usefulness. S. Ohio Coal Co., at 983. The Commission explained that the
improvement “did not preserve the ability of the existing belt to convey
material.” Id.

I reject Respondent’s arguments
that the taping the cable in this case was similar to the extension of the
conveyor belt for the purpose of increasing its usefulness in Southern Ohio
Coal. I further reject Respondent’s arguments that the taping should not be
characterized as maintenance or repair because there was nothing wrong with the
cable, the taping was done merely to prevent future citations for inadequate
taping of splices, and the re-taping was “performed to increase the
functionality of the previously taped cable splice by increasing the level of
safety.” R. Br. 16-17; Tr. 49.  I find to the contrary.  Taping over a splice,
or taping over previous tape that was applied to a splice, does not increase
the usefulness of a trailing cable, rather it preserves the cable’s
ability to convey power to the shuttle car for operation.

I also reject Respondent’s reliance
on the judge’s decision in U.S. Steel Mining Co., 13 FMSHRC 1451
(Sept. 1991) (ALJ) to support its argument that taping cables does not
constitute electrical work.  U.S. Steel Mining involved a section 75.511
citation issued after a section foreman instructed a shuttle car operator to
lock and tag out a shuttle car cable before applying tape to a nick on the
training cable.  The judge found that simply because a miner performs work involving
a piece of electrical equipment or component, such as a trailing cable, does
not ipso facto make such work electrical work required to be performed
only by a qualified person.”  The judge found the work more akin to mechanical
work. 13 FMSHRC at 1463-64. The judge noted that the miner “simply taped over a
nick or split in the boot of the permanent splice, and other than a roll of
electrical tape, he used no tools or other equipment.” Id. at 1462–63.

I am not persuaded by the reasoning
in U.S. Steel Mining for several reasons. Electrical tape is used as a
tool to insulate a splice and prevent electric shock.  In any event, the use of
tools should not be a controlling factor in categorizing a task as electrical
work. In fact, another Commission judge has rejected an argument that the
absence of tools used in work which resulted in electrocution, somehow excepted
the task from the category of “electrical work.” Day Mining Inc., WEVA
2001-0066, 2002 WL 31236050, at *4 (Sept. 2002) (ALJ) (“Respondent's argument
that no work was contemplated by [miners] because they did not bring tools with
them is overly simplistic. That [miner] died without a tool in his hand is very
hard evidence of the hazard involved even without tools.”).

Furthermore, the facts in U.S.
Steel Mining are markedly different from those at issue here.  U.S.
Steel Mining involved one discrete spot on a cable, and although no bare
wires were exposed, the trailing car cable had been locked and tagged. Regent’s

2 shuttle car cable was not locked and tagged out when work was being performed

on it. When power was restored at the surface and at the power center, the
cable would become energized and expose any miners working on it to electric
shock and burn hazards.  Fortuitously, the miners in this case were no longer
working on the cable when power was re-energized because Robinson intervened
and wrote the citation. It is mere speculation to ponder what would have
occurred had Robinson not been present. The standard was written to preclude
the possibility of injury when electrical work is performed on distribution
circuits and equipment that are not locked and tagged out.  That standard was
applicable here.

Finally, I find additional support
for my conclusion in legislative history. The House Report from the Federal
Coal Mine Health and Safety Act of 1969,[11]
is instructive on lock and tag out procedures and the training required for
work performed on electrical wiring or equipment. The Report states that the standard:

“requires an operator
to disconnect electric power from all electric wiring and equipment before
repairs are made . . . Only persons supervised by competent electricians may
work on medium and high voltage distribution equipment and circuits. Switches
must be locked in an open position where the power is disconnected to prevent
accidental reclosing. The persons performing the work must retain possession to
the key to guard against such reclosing.”

House of Representatives Report No. 91-563, 1969 Coal Act. Instead
of using the term “electrical work,” the report states that power must be
disconnected from all electrical wiring and equipment before repairs are made. The
purpose of this safeguard was to “prevent accidental reclosing” of a switch. House
Report No. 91-563, 1969 Coal Act.[12]

In sum, I find that the Secretary’s
interpretation that Browning and Martin were performing electrical repair or maintenance
on the shuttle car cable under section 75.511 was reasonable and entitled to
deference.  The standard was violated because Browning and Martin were not
certified electricians or working under the direct supervision of a certified
electrician, and the shuttle car trailing cable on which they were working was
not locked or tagged out to prevent it from being energized.

B.     The
Violation of Section 75.511 was Significant and Substantial

The Mine Act describes an S&S
violation as one “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 U.S.C. § 814(d)(1). The Commission has held that a violation is
S&S “if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).

To establish an S&S violation
under National Gypsum, the Secretary must prove the four elements of the
Commission’s subsequent Mathies test: (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. See
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord
Buck Creek Coal, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide
acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor,
861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An
evaluation of the reasonable likelihood of injury is made assuming continued
normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7
FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I),
6 FMSHRC 1573, 1574 (July 1984). Accordingly, when evaluating an S&S
designation, the Commission looks to the particular facts surrounding the
violation, in the context of continued mining operations. Texasgulf, Inc.,
10 FMSHRC 498, 500 (Apr. 1988).  

For the reasons explained above, I
have found the underlying violation of mandatory safety standard 75.511
as Browning and Martin were performing electrical work without the proper
qualifications and the circuit was not locked and tagged out.

With regard to the second Mathies
factor, the violation created a discrete safety hazard or measure of danger
to safety.  The Secretary need only identify a safety hazard associated with
the putative S&S violation.  Highland Mining Co., 34 FMSHRC 3434, n.
5 (Dec. 2012). This prong of the test does not require a “reasonable
likelihood” analysis. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280 (Oct.
2010). Respondent’s failure to lock and tag the shuttle car cable being
repaired leaves open the possibility that anyone could reset the circuit when
power is restored and miners still working on the cable would be exposed to
energized inner conductors.  Accordingly, I find that the second Mathies
factor is satisfied.

The third Mathies factor is
typically the most disputed aspect of an S&S analysis, and often the most
difficult to apply. The Secretary must prove a reasonable likelihood that the
hazard contributed to by the violation will result in an event in which there
is an injury.  U. S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985).  

The Secretary demonstrated a
reasonable likelihood that the hazard contributed to by the violation, i.e., exposure
to energized inner conductors because of the failure to lock and tag out, was reasonably
likely to result in a shock or burn injury to two miners when power was
restored during continued mining operations.  Robinson credibly testified as
follows:

Q.        How was it reasonably likely?

A.        Because
the circuit was energized right there while I was at the power center. There
was no lock and tag on the circuit. Unannounced to those miners. Nobody called
to the miners to let them know that the power was coming on.  The power was
restored to the section transformer and the branch circuits to all the
equipment began to be energized.

Q.        And what was the danger?

A.        The danger
is electric shock, burns, a cable blowing up in somebody’s face or hands.  

Q.        How many
persons did you say were affected?

A.        I
affected two people, because both of those miners that were pulling the cable
were in contact with the cable. And depending on the type of fault condition,
or an exposed conductor, current can actually travel down the outer jacket of
those cables depending on where it finds its ground. So both miners were
handling the cable, so it was likely both miners would be injured.  

Tr. 56-57.

Consistent with the standard,
Robinson testified that any time one works on an electrical circuit, they
should lock and tag it themselves “[b]ecause that is the only way that you can
guarantee one hundred percent that that circuit you’re working on cannot be
energized.” Tr. 59.  Robinson testified that an acquaintance had died as a
result of working on a continuous miner cable that was not locked and tagged
out when an unannounced restoration of power occurred after mine-wide power
outage.  Tr. 59.  

Even though Robinson failed to
examine the cable for damage, the record establishes that areas of the cable
had already been spliced and the damaged areas were being re-taped.  Given the
failure to lock and tag out the circuit, miners who continued to pull the
trailing cable from hand-to-hand, looking for nicks to tape and re-taping
already damaged splices, were reasonably likely to encounter the hazard of exposed
inner conductors when power was restored, which would result in a lost-workdays
or restricted-duty injury from electric shock or burn. Evaluating the specific
facts as inspector Robinson found them before the citation was written, had the
miners continued their task with the circuit unlocked when power was restored,
a shock and burn injury was reasonably likely to have occurred.  In these
circumstances, I conclude that an injury was reasonably likely to occur from
the failure to lock and tag out the shuttle car cable once power was restored during
continued mining operations.  

Concerning the fourth Mathies
factor, I find a reasonable likelihood that any such injury would be of a
reasonably serious nature and result in lost work days or restricted duty. During
continued normal mining operations, once power was restored, the likely exposure
to energized inner conductors because of the failure to log and tag out during
electrical repair or maintenance of the cable was reasonably likely to result
in a shock or burn injury, which the Commission has found to be a reasonably
serious injury.  See e.g., Karst Robbins Coal Company, Inc., 10
FMSHRC 1708, 1713 (Dec. 1988) (ALJ) (operator showed gross negligence and
reckless disregard for cited safety standards by directing an unqualified and
unsupervised miner to do electrical work on a trailing cable, and by failing to
de-energize and lock out or tag the electrical circuit while the miner
attempted to work on the cable. The miner received an electrical shock with
serious burns, and probably would have been killed had a fellow employee not
pulled the cable from his hands); Spartan Mining Co., 29 FMSHRC 465, 466
(June 2007) (ALJ) (electrician electrocuted while repairing a continuous miner
trailing cable that was not locked and tagged out when mine power was restored
and circuit breaker for miner was closed by another miner).  

Robinson credibly testified that
once the cable was energized there was a danger that an exposed conductor would
cause electrocution, shock or burns. Tr. 39, 40, 57. Robinson also testified
that once an energized cable with a damaged outer layer was bent, exposed inner
conductors could touch, creating a fault condition and “blowing up.” Tr. 39. This
would result in an arc flash causing an explosion, which could burn or blind
miners. Tr. 56. Kelly, who instructed the miners to perform the electrical
work, admitted that the miners could be shocked or electrocuted from handling
an energized cable. Tr. 342. These injuries are all reasonably likely to occur
from exposure to energized conductors on a trailing cable, and they are all of
a reasonably serious nature. Accordingly, the Secretary has established a
reasonable likelihood that an injury resulting from the hazard contributed to
by the violation was reasonably likely to be serious.  

Based on the factors above, I find
that the violation of Section 75.511 was properly designated as significant and
substantial.

C.    Respondent’s
Negligence was Appropriately Designated as Reckless Disregard

The Secretary defines conduct that constitutes
negligence under the Mine Act as follows:

Negligence is conduct,
either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm. Under
the Mine Act, an operator is held to a high standard of care. A mine operator
is required to be on the alert for conditions and practices in the mine that
affect the safety or health of miners and to take steps necessary to correct or
prevent hazardous conditions or practices. The failure to exercise a high
standard of care constitutes negligence.

30 C.F.R. § 100.3(d).

The Respondent challenges Robinson’s designation
of its negligence as reckless disregard. The level of negligence is properly
designated as “reckless disregard” when “the operator displayed conduct which
exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3 Table
X. 

Robinson credibly testified that after further
investigation the day after writing the citation, Robinson modified negligence
from moderate to reckless disregard because

foreman, Mr. Kelly, instructed these
miners to perform this electrical work.  He knew the circuit wasn’t locked and
tagged that these miners were working on. He knew that those miners weren’t
qualified or certified, and he showed the slightest degree of care for the
safety of these miners.

Tr. 58.  

I affirm the reckless disregard
designation.  As further explained below under unwarrantable failure factor
C.4., section foreman Kelly created a substantial and unjustifiable risk of
harm to unqualified miners by assigning them to perform electrical work without
taking the minimal step of ensuring that the electrical circuit was locked and
tagged out, thereby demonstrating indifference to the risk and exalting
production over safety.  There were no safeguards in place to ensure that these
miners would not be handling a live cable if power were to be restored. No
mitigating factors were presented. In these circumstances, I find that the Secretary
properly designated the level of negligence as reckless disregard.  See e.g.,
Karst Robbins Coal Company, Inc., 10 FMSHRC 1708, 1713 (Dec. 1988) (ALJ)
(respondent displayed gross negligence and reckless disregard for cited safety
standards by directing an unqualified and unsupervised miner to do electrical
work on a trailing cable, and by failing to de-energize and lock out or tag the
electrical circuit while the miner attempted to work on the cable).

D.    The
Unwarrantable Failure Designation Was Appropriate

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d).  The Commission
has defined an unwarrantable failure as aggravated conduct constituting more
than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987). Unwarrantable failure is defined by such conduct as “reckless
disregard,” “intentional misconduct,” “indifference” or a “serious lack of
reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d at 136.

Whether conduct is “aggravated” in
the context of an unwarrantable failure analysis is determined by looking at
all the facts and circumstances of each case to see if any aggravating factors
exist, such as the length of time that the violation has existed, the extent of
the violative condition, whether the operator has been placed on notice that
greater efforts are necessary for compliance with the standard, the operator’s
efforts in abating the violative condition, whether the violation is obvious or
poses a high degree of danger, and the operator’s knowledge of the existence of
the violation. See, e.g., Manalapan Mining Co., 35 FMSHRC 289, 293
(Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1350–51 (2009); Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). The Commission and its judges must take into account all of the factors, but may determine, when exercising
discretion, that some factors are not relevant, or are much more or less
important than other factors under the circumstances. IO Coal Co., 31
FMSHRC 1346, 1351 (Dec. 2009); Excel Mining, LLC 497 F. App'x 78, 79
(D.C. Cir. 2013); Consolidation Coal Co., 23 FMSHRC 588, 593 (2001).  

I discuss below, the applicability,
vel non, of all of the relevant factors.

1.      The
Extent of the Violative Condition

The Commission has viewed the extent of a violative condition as an important element in the unwarrantable failure
analysis. IO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009).  This factor
considers the scope or magnitude of the violation. See Eastern
Associated Coal, 32 FMSHRC at 1195, citing Peabody Coal Co., 14
FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 708
(June 1988). Extensiveness involves the degree of the violation and is a
question of fact regarding the material increase in the degree of risk posed to
miners as a result of the violation. Eastern Associated Coal Corp., 32
FMSHRC 1189, 1195 (Oct. 2010).  In some situations, extensiveness depends on
the number of people affected by the violation. See Watkins Eng'rs &
Constructors, 24 FMSHRC 669, 681 (July 2002).

Here, the violation is the performance
of electrical work (maintenance) on the shuttle car trailing cable by
non-qualified persons without locking and tagging out the machine.  Several
miners in addition to Browning and Martin were performing the same type of
electrical work on the trailing cable. Martin, two other shuttle car operators,
and two roof bolters were instructed by foreman Kelly to pull the shuttle car
cables off and re-tape over splices. Tr. 232-33. Thus, five miners were placed
at risk of electric shock injury as a result of the violation, although
Robinson wrote the citation as only affecting two persons.  Further, this was
not the first time miners were instructed to do such a task and they may have
been asked to do it again, but for the issuance of Citation No. 8201921-01.  I
find that the violation was fairly extensive and would have continued during
normal mining operations, absent intervention by MSHA. Accordingly, this factor
weighs in favor of an unwarrantable failure finding.  

2.         The
Duration of the Violation

The Commission has emphasized that the duration of the violative condition is a necessary element of the
unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21 FMSHRC
997, 1001-04 (Sept. 1999) (remanding for consideration of duration evidence of
cited conditions).  The duration or length of time that the violation existed is
particularly critical, as the longer a violative condition or practice exists, the
more likely miners would be injured. Coal River Mining, LLC, 32 FMSHRC
82, 92 (Feb. 2010). It must be noted, however, that a violation can be found
unwarrantable even when the duration is a relatively short period of time,
where the violation poses a high degree of danger, involves a foreman, and would
have continued, but for the occurrence of an accident. Midwest Material Co.,
19 FMSHRC 30, 34-36 (Jan. 1997); Lafarge Constr. Materials, 20 FMSHRC
1140, 1145-48 (Oct. 1998).

There is marginal evidence of
exactly how long the miners were re-taping the trailing cable. Martin testified
that he only performed the task for a few minutes, but the electrician and
troubleshooter indicated that the power was off for one to two hours. Tr. 146, 194.
During this time, no lock out or tag out of the cable occurred.  The trailing
cable on shuttle cars is at least a few hundred feet long, which meant greater
exposure to nicks, splices, and damaged areas as the task continued, but for
Robinson’s issuance of the citation and Respondent’s subsequent instruction to
the miners to stop working. Tr. 147.  Furthermore, as noted above, the violative
practice occurred as a direct result of direction from foreman Kelly and the
violation posed a high degree of danger of electric shock injury should power
be restored during continued normal mining operations. In these circumstances,
I conclude that the duration factor weighs in favor of an unwarrantable failure
finding.  

3.        
Whether the Operator Was on Notice that Greater Efforts Were Necessary for
Compliance with Section 75.511

The Commission has stated that repeated similar violations are relevant to an unwarrantable failure determination to
the extent that they serve to put an operator on notice that greater efforts
are necessary for compliance with a standard. IO Coal, 31 FMSHRC at
1353-55; Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also Consolidation
Coal Co., 23FMSHRC 588, 595 (June 2001). The purpose of evaluating the
number of past violations is to determine the degree to which those violations
have “engendered in the operator a heightened awareness of a serious . . .
problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007), citing
Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994). The
Commission has also recognized that “past discussions with MSHA” about a
problem “serve to put an operator on heightened scrutiny that it must increase
its efforts to comply with the standard.” Id., citing Consolidation
Coal, 23 FMSHRC at 595.

Regent had no previous citations
for a section 75.511 violation. P. Ex. 4. Furthermore, the Secretary failed to
establish any prior discussions with Regent about any problem failing to comply
with section 75.511. In these circumstances, I find that the Secretary has
failed to establish that Respondent was placed on notice that greater
compliance efforts with 30 C.F.R. § 75.511 were necessary.  Accordingly, this
factor militates against a finding of unwarrantable failure.

4.         Section
Foreman Kelly’s Knowledge and Reckless Disregard for the Existence of the
Violation

The Commission has held that
knowledge is established by showing “the failure of an operator to abate a
violation [that] he knew or should have known existed.” Emery Mining
Corp., 9 FMSHRC 1997, 2002-03 (Dec. 1987); see also, Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st
Sess., Part I Legislative History of the Federal Coal Mine Health and Safety
Act of 1969, at 1602 (1975) (“Coal Act Legis. Hist.”). In the absence of past
violations, an operator’s knowledge may be established “where an operator
reasonably should have known of a violative condition.” IO Coal Company,
Inc. 31 FMSHRC 136, 1356-57 (2009); Drummond Co., Inc., 13 FMSHRC
1362, 1367-68 (Sept. 1991), quoting Eastern Assoc. Coal Corp., 13 FMSHRC
178, 187 (Feb. 1991).  Further, the Commission has held that the extent of the involvement
of supervisory personnel in a violation should be taken into account in
determining whether an unwarrantable failure occurred, because supervisors are
held to a higher standard of care. Lopke Quarries, Inc., 23 FMSHRC 705,
711 (July 2001); REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).  A
section foreman is held to a “demanding standard of care in safety matters.” Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987)(quoting Wilmot
Mining Co., 9 FMSHRC 684, 688 (April 1987)). A mine superintendent is also
held to a heightened standard of care. S&H Mining, Inc., 17 FMSHRC
1918, 1923 (November 1995) (heightened standard of care required of section
foreman and mine superintendent).

Regent miners Martin and Browning,
who were not qualified to perform electrical work, performed electrical
maintenance on a trailing cable that had not been locked or tagged out under
the direction of section foreman Kelly. With power down and an inspector on his
way underground, section foreman Kelly instructed the five miners to begin
taping the splices on the trailing car cable, aware that the cable was not
locked out and that the miners were not certified electricians.  Tr. 333,
334-36.[13]

Kelly also knew that Regent had
received a citation for a poorly maintained trailing cable less than a year
before. Tr. 319-20. He remembered it well because the fine was $5,900, enough
to buy two new cables. Tr. 321.  Kelly testified that he wanted to prevent
another citation like that. Tr. 320-21, 334. “Why sure. That’s my job, to take
care of the mine, see that that mine makes money.” Tr. 334. So when
power went down, Kelly told the miners “. . . to get some tape -- because there
wasn’t no power on the catheads, I told them to get some tape, pull the cable
off the cars, go over their splices and tape them back up. That’s not the first
time we done that.” Tr. 335.

Q: Did you put a lock and tag on the cathead on this occasion?

A: No, I did not, because there wasn’t no power underground.

Q: Did you watch them work on the cable?

A: No, I did not.

Q:  Is Mr. Martin a certified electrician.

THE COURT: We know neither one of them is.

. . . .

Q: You weren’t aware
that the blades were logged and tagged out at the time you were issued the
citation.  

A: No, I was not,
because, see that, that don’t fall in my category of running the section.  That’s
an electrician’s category.         

Tr. 336-37.  

Kelly’s prioritization of section production
over safety is the type of indifference and reckless disregard for safety that
justifies designating this particular violation an unwarrantable failure to
comply with a safety standard.  “Reckless” is commonly understood as “without
thinking or caring about the consequences of an action.” The New Oxford
American Dictionary 1414 (Erin McKean ed., 2d ed. 2005). The term
“disregard” is commonly understood as “to treat without fitting respect or
attention: to treat as unworthy of regard or notice: to give no thought to: pay
no attention to. Webster’s Third New International Dictionary (Unabridged) 665
(1993). For civil penalty purposes, 30 C.F.R. §100.3, Table X, defines
“reckless disregard” as “conduct which exhibits the absence of the slightest
degree of care.”

As a legal term, “reckless” has
been described as conduct—

[c]haracterized by the creation of a
substantial and unjustifiable risk of harm to others and by a conscious (and
sometimes deliberate) disregard for or indifference to that risk; heedless;
rash…. Reckless conduct is much more than mere negligence: it is a gross
deviation from what a reasonable person would do.

Black's Law Dictionary 1298 (8th ed. 2004). For
comparative purposes, in tort law—

a person acts recklessly in engaging in
conduct if: (a) the person knows of the risk of harm created by the conduct or
knows facts that make the risk obvious to another in the person's situation,
and (b) the precaution that would eliminate or reduce the risk involves burdens
that are so slight relative to the magnitude of the risk as to render the
person's failure to adopt the precaution a demonstration of the person's
indifference to the risk.

Restatement (Third) of Torts: Phys. & Emot. Harm § 2
(2010).

Superintendent McClanahan aptly
captured Kelly’s indifference when Kelly informed McClanahan of the violation
because the circuit was not logged and tagged out. Robinson overheard
McClanahan admonish Kelly, “You know better than that; that’s stupid.” Tr. 41.  I
find McClanahan’s statement to be an admission that foreman Kelly grossly
deviated from what a reasonable person would have done, i.e., take the minimal
precaution of ensuring that the cable was logged and tagged out.  

In short, section foreman Kelly
knew or should have known of the violation. This knowledge, rises to the level
of reckless disregard, and strongly supports an unwarrantable failure finding. Kelly
created a substantial and unjustifiable risk of harm to unqualified miners by
assigning them to perform electrical work without taking the minimal step of
ensuring that the trailing cable was locked and tagged out, thereby
demonstrating indifference to the risk and exalting production over safety.  

5.        
Whether the Violation was Obvious

The failure to lock and tag out the
circuit, including the catheads, was obvious

upon inspection.  Robinson testified that “Mr. Kelly knew
that the circuit was not locked and tagged because when he came to the power
center he told me it’s locked on the surface. So by him knowing that it was
locked on the surface, he had to know that it was not locked there. And it was
obvious. Anyone could walk by the power center and tell that there’s no locks
or tags installed on any of the plugs.”  Tr. 65.  McClanahan’s admission that
Kelly knew better and his failure to lock out was stupid supports the
obviousness of the violation. Tr. 41.

Further, Robinson testified that it
was obvious that the miners designated by Kelly to do the work were not on the
list of qualified individuals to perform electrical work.  Tr. 61-62. Further,
Robinson opined that Kelly knew or should have known that Clark, but not the
roof bolters and shuttle car operators, were certified to perform the work. Tr.

  1. Accordingly, the factor of the obviousness of the violation supports an
    unwarrantable failure finding.

6.        
Whether the Violation Posed a High Degree of Danger

The Commission has relied upon the
high degree of danger posed by a violation to support an unwarrantable failure
finding. See e.g., BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992); Quinland Coals, 10 FMSHRC 705, 709 (June 1988). For purposes of
evaluating whether violative conditions pose a high degree of danger, it is
often necessary to consider the same facts already considered as part of the
gravity evaluation in an S&S analysis. See San Juan Coal, supra,
29 FMSHRC at 125, 132-33 (remand for failure to apply S&S findings to
danger factor in unwarrantable failure analysis).

The degree of danger is a relevant
factor, but not a threshold requirement for determining whether a violation is
unwarrantable. It is but one factor to be considered in evaluating whether a
violation is unwarrantable. Manalapan Mining Company, Inc., 35 FMSHRC
289, 294 (2013), citing Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept.
1999) (Commission recognizes a number of factors relevant to determining whether
a violation is the result of an operator's unwarrantable failure). The factor
of dangerousness may be so severe that, by itself, it warrants a finding of
unwarrantable failure, but the converse is not true, i.e., that the absence of
danger precludes a finding of unwarrantable failure. Manalapan, supra,
35 FMSHRC at 294. Further, the Commission has held that a violation may be
aggravated and unwarrantable based on “common knowledge that certain equipment,
such as power lines, are hazardous and that precautions are required  Warren
Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). A serious hazard
warrants heightened precautions by an operator. LaFarge Construction
Materials, 20 FMSHRC 1140, 1146 (1998); Midwest Material Co., 19
FMSHRC 30, 35 (Jan. 1997).

Inspector Robinson testified that the violation
was dangerous because the unlocked circuit can become energized and the miners
would be working with a live circuit in their hands and would be unqualified to
determine whether they were taping single damaged conductors or damaged
multiple phase conductors creating other fault conditions. Tr. 64-65. The
danger was electric shock, burns, or a cable blowing up in a miner’s face or
hands.  Tr. 57.  Robinson testified that an acquaintance of his had died as a
result of working on a continuous miner cable that was not locked and tagged
out when an unannounced restoration of power occurred after mine-wide power
outage.  Tr. 59.  

Section foreman Kelly, who
instructed the unqualified miners to perform the electrical work without
ensuring that the circuit was lacked and tagged out, acknowledged the danger of
shock or electrocution when handling a trailing cable that could become
energized.  Kelly testified that it was possible for the miners to contact an
energized conductor if they touched a nick in the outer jacket of the cable. Tr.

  1. Mechanic Addington acknowledged that bending and examining cable with
    power not locked and tagged out could cause injury if the insulation was not
    adequate. Tr. 223.  This testimony of Regent personnel supports a finding that
    unqualified miners working on a circuit that was not locked or tagged out was
    an obvious danger in violation of a safety standard.

In short, the degree of danger supports
an unwarrantable failure finding. See Karst Robbins Coal Company, Inc., 10
FMSHRC 1708, 1713 (Dec. 1988) (ALJ) (electric shock with serious burns resulted
from operator’s gross negligence and reckless disregard by directing an
unqualified and unsupervised miner to do electrical work on a trailing cable,
and by failing to de-energize and lock out or tag the electrical circuit while the
work was done on the cable; Spartan Mining Co., 29 FMSHRC 465, 466 (June
2007) (ALJ) (electrician electrocuted while repairing a continuous miner
trailing cable that was not locked and tagged out when mine power was restored
and circuit breaker for miner was closed by another miner).  

  1. The Operator’s
    Efforts in Abating the Violative Condition

An operator’s efforts to abate a
violation are relevant to an unwarrantable failure determination. Thus, where
an operator has been placed on notice of a problem, the level of priority that
the operator places on abatement of the problem is relevant. IO Coal, supra,
31 FMSHRC at 1356, citing Enlow Fork Mining, supra, 19
FMSHRC at 17. The focus is on abatement efforts made prior to issuance of the
citation or order. Id. An operator’s efforts to abate a violation before
a citation or order issues, even during an inspection, may be a mitigating
factor in an unwarrantable failure analysis. Utah Power & Light Co.,
11 FMSHRC 1926, 1934 (Oct. 1989). Here, Respondent was never placed on notice
of a problem under section 75.511.  Respondent made no efforts to abate the violation
before the Citation was issued.  IO Coal Company, Inc., 31 FMSHRC 1346,
1356 (2009); Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997).  I find
that this factor is neutral in the unwarrantable failure analysis.

E.     Conclusion on Unwarrantable Failure Issue

In sum, after considering the
relevant Commission factors, I find that the factors of extensiveness of the
violation, duration of the violation, obviousness of the violation, high degree
of danger posed by the violation, and section foreman Kelly’s knowledge and reckless
disregard for the existence of the violation all support an unwarrantable
failure finding.  Regent was not placed on notice that greater efforts were
necessary for compliance with section 75.511 and this factor militates against
a finding of unwarrantable failure. Regent’s efforts in abating the violative
condition is a neutral factor.  On balance, however, the five aggravating
factors and Kelly’s reckless disregard suffice to establish aggravated conduct
and an unwarrantable failure beyond ordinary negligence.

F.         Civil Penalty Assessment Principles

The Commission outlined the parameters of its
responsibility for assessing civil penalties in Douglas R. Rushford Trucking,
22 FMSHRC 598 (May 2000). The Commission stated:

The principles
governing the Commission’s authority to assess civil penalties de novo for
violations of the Mine Act are well established. Section 110(i) of the Mine Act
delegates to the Commission “authority to assess all civil penalties provided
in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28
and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties,
the Commission [ALJ] shall consider” 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 of the operator’s ability to continue in
business, [5] the gravity of the violations, and [6] the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)).

In keeping with this statutory requirement, the
Commission has held that “findings of fact on the statutory penalty criteria
must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292
(Mar. 1983). Once findings on the statutory criteria have been made, a judge’s
penalty assessment for a particular violation is an exercise of discretion,
which is bounded by proper consideration for the statutory criteria and the
deterrent purposes of the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000).

In exercising this discretion, the Commission
has reiterated that a judge is not bound by the penalty recommended by the
Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). In
addition, the de novo assessment of civil penalties does not require “that
equal weight must be assigned to each of the penalty assessment criteria.” Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty
determination “substantially diverge[s] from those originally proposed, it
behooves the . . . judge[] to provide a sufficient explanation of the bases
underlying the penalties assessed.” Spartan Mining, 30 FMSHRC at 699. Otherwise,
without an explanation for such a divergence, the “credibility of the
administrative scheme providing for the increase or lowering of penalties after
contest may be jeopardized by an appearance of arbitrariness.” Sellersburg, 5
FMSHRC at 293.

As Senior Judge Zielinski explained in American
Coal Co.:

The purpose
of explaining significant deviations from proposed penalties is to avoid the
appearance of arbitrariness. See Sellersburg Stone Co., 5 FMSHRC 287,
293 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Similarly
situated operators, determined to be liable for violations with similar
gravity, negligence and other penalty criteria, ideally should be assessed
similar penalties. Absent some guideline, however, a judge has no quantitative
reference point to aid in specifying a penalty within the current
statutory/regulatory range of $100 to $70,000. The Secretary’s regulations for
determination of a penalty amount by a regular or special assessment, 30 C.F.R.
§§ 100.3, 100.5, take into consideration the statutory factors that the
Commission is obligated to consider under section 110(i) of the Act. The
product of these assessment formulae provide a useful reference point, which
promotes consistency in the imposition of penalties by Commission judges.[14]

Accordingly,
in determining a penalty for the litigated violations, the penalty produced by
application of the Secretary’s assessment formula will be used as a reference
point, and adjusted depending on the particular findings with respect to the
statutory penalty criteria in section 110(i). The tables and charts in the
regulations provide a limited number of categories for some factors. For example,
the table for operator’s negligence consists of five gradations, ranging from
“No negligence” to “Reckless disregard.” 30 C.F.R. § 100.3(d). In reality,
however, the degree of an operator’s negligence will fall on a continuum,
dictating that adjustments will generally be required. Other unique
circumstances may dictate lower or higher penalties. Violations involving
extreme gravity and/or gross negligence, or other unique aggravating
circumstances may dictate substantially higher penalty assessments. A party
seeking a reduced or an enhanced penalty must assume the burden of producing
evidence sufficient to justify any requested adjustment. Where the Secretary
urges a penalty higher than that derived by reference to the assessment process
set forth in 30 C.F.R. § 100.3, he will have the burden of establishing the
appropriateness of the higher penalty, based upon the statutory penalty
criteria.

35 FMSHRC 1774, 1823-24 (May 2014) (ALJ).

Under the regulations, penalty points are
assigned based on the size of the operator and the operator’s controlling
entity; the operator’s history of previous violations; the operator’s history
of repeat violations of the same standard; the degree of the operator’s
negligence; and, the gravity of the violation, including the likelihood of an
occurrence of an event against which a standard is directed, the severity of
injury or illness if the event were to occur, and the number of persons
potentially affected if the event were to occur. A proposed penalty is
determined by applying the total of the points assigned to a “Penalty
Conversion Table,” which specifies proposed penalties ranging from $112 for 60
or fewer points, up to the statutory/regulatory maximum of $70,000 for 144 or
more points for non-flagrant citations and orders. That figure may then be
adjusted by reducing it by 10% if the operator demonstrated good faith in
abating the violation. 30 C.F.R. § 100.3(f). A further reduction may occur if
the operator can demonstrate to MSHA’s District Manager that the penalty will
adversely affect its ability to continue in business. 30 C.F.R. § 100.3(h).

The undersigned recognizes that the
Secretary has developed, pursuant to his authority under 30 C.F.R. § 100.5, a
process for the special assessment of proposed penalties. MSHA, Office of
Assessments, Accountability, Special Enforcement & Investigations, Special
Assessment General Procedures (Sep. 7, 2011), http://www.msha.gov/PROGRAMS/assess/SpecialAssess/SpecialAssessments2011.pdf.
These procedures, however, have not been codified as binding regulations, and
thus, have not been subject to notice and comment rule making, unlike the
normal assessment procedures in section 100.3. Where the Secretary has provided
adequate documentation of how he determined the specially assessed penalty and
is able to demonstrate the appropriateness of proposing a specially assessed
penalty, the guidance in the Special Assessment General Procedures may also
provide a helpful guide for assessing an appropriate penalty.

The Secretary has not done so here.
MSHA specially assessed the proposed penalty at $20,900, but testimony elicited
by the Secretary from the inspector was limited to the fact that the penalty
was recommended for special assessment.  Tr. 130-32.  The Narrative Findings
for Special Assessment contained in the Commission case file were not offered
into evidence. No testimonial support for special assessment was given.

I have evaluated the Secretary's proposed
penalty in light of the principles announced in my recent Big Ridge
decision. Big Ridge Inc., 36 FMSHRC 1677,
1681-82 (June 19, 2014) (ALJ). Accordingly, consistent with my findings
above, section 110(i) criteria, and regular assessment criteria, I normally would
find a penalty of $6,997 to be appropriate.  However, because MSHA established
a factual, although not an evidentiary basis for a special assessment, I
conclude that a greater penalty is warranted here. Applying section 110(i)
criteria with particular emphasis on the serous gravity of the violation and
the reckless disregard level of negligence of the operator, I assess a penalty
of $11,500 for the S&S, unwarrantable failure violation, with reckless
disregard. 

VII.     ORDER

For the reasons set forth above,
I AFFIRM Citation No. 8201921, as written and modified. It is ORDERED
that the operator pay a civil penalty of $11,500 within 30 days of this
decision.[15]

/s/ Thomas P.
McCarthy

Thomas P. McCarthy

Administrative
Law Judge

Distribution:

Paige Bernick, Attorney, U.S. Department of Labor, Office of
the Solicitor, 211 Seventh Avenue North, Suite 420, Nashville, TN 37219

Billy Shelton, Esq., Jones, Walters, Turner & Shelton,
151 N. Eagle Creek Drive, Suite 310, Lexington, KY

[1]
30 C.F.R. § 75.11 (2013) states:

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

[2]
All subsequent dates are in 2013, unless otherwise indicated.

[3]
The power center in the No. 2 mine is located on the floor in the number 3
entry. Tr. 22, 143. The power center is about five feet wide, twenty to thirty
feet long, and three feet high. Tr. 261, 327. A curtain is located behind the
power center, extending from one rib to another. Tr. 262.

[4]
The side power center at Regent’s No. 2 mine has a dozen receptacles, located
in a row. Tr. 104, 264. 

[5]
A splice is a mechanical joining of the inner conductors or copper wires of a
cable that have been severed. Tr. 268-69.

[6]
Absent objection from the Secretary, Browning’s December 12, 2013 deposition
was received into evidence as sworn testimony. Tr. 350; R. Ex. 6.

[7]
Don Clark and Chester Hubbard were listed as the only qualified electricians
working underground on day shift at the time of the January 28 inspection. Tr.

  1. Clark was working about 30 crosscuts away from where the miners were examining
    the trailing cable. Tr. 48, 52. Hubbard was working outby. Tr. 53.

[8]
Respondent argues that Robinson’s testimony that he saw the miners bending the
cable and sliding it through their hands should not be credited because he
admitted on cross examination that he did not record that observation in his
notes. R. Br. 6; Tr. 34, 56, 81, 83, 111; P Ex. 2; R. Ex. 4. I note, however,
that Robinson did say that the miners were bending the cable in his
affidavit/statement during the related section 110(c) investigation. P. Ex. 5.

Martin testified that he
pulled the cable off and placed new tape over splices, but did not bend the
cable. Tr. 233, 236. Senter testified that he saw the miners “just sort of
looking at it [the cable]; just lay it out in front of them and sort of looking
to see if there were any cracks or anything, just any damage on them and things
like that. And they had a little tape in their hand. But as far as seeing them
going into the cable, bending it, no.”  Tr. 259-60.  Kelly initially testified on
cross examination that the miners were not bending the cable, but on further
questioning from the undersigned, he recanted and said that he did not know
whether they were bending the cable because he was not present during the task
and had simply instructed them to tape over old existing splices.  Tr. 341.  Based
on demeanor and the specificity and detailed nature of Robinson’s testimony, I
credit Robinson over Respondent’s witnesses and Martin’s general denial.  

[9]
Merriam-Webster, “Electric,” http://www.merriam-webster.com/dictionary/electric
(last visited Jan. 16, 2015).

[10]
Merriam-Webster, “Mechanical,” http://www.merriam-webster.com/dictionary/mechanical
(last visited Jan. 16, 2015).

[11]
Public Law 91-173, 83 Stat. 742, amended by the Federal Mine Safety and Health
Act of 1977, Public Law 95-164,
Federal Mine Safety and Health Act of 1977, Public Law 95-164, 91 Stat. 1290,
amending 30 U.S.C. ch. 22 Sec. 801 et. seq.

[12]
The 1969 Coal Act was the precursor to the underground coal safety standards in
30 C.F.R. §75.1 et seq. The relevant portion of the House Report was a
summarization and clarification of the interim standards applicable to
underground coal mines. Electrical equipment standards are described in the
record and were discussed infra to illustrate legislative intent. The
analog standards are found in Section 305 of the Federal Coal Mine Health and
Safety Act of 1969. Section 305 addressed the requirements for electrical
equipment, while the present standard governing electrical equipment begins in
Subpart F of 30 C.F.R. Ch. I.  Section 305(f) of the 1969 Coal Act uses
language nearly verbatim to that used in standards codified in 30 C.F.R. §§75.509,
510, and 511.

[13]
As noted, Clark and Hubbard were listed as the only qualified electricians
working underground on day shift at the time of the January 28 inspection. Tr.

  1. Clark was working about 30 crosscuts away from where the miners were
    examining the trailing cable. Tr. 48, 52. Hubbard was working outby. Tr. 53. 

[14]
See Magruder Limestone Co., 35 FMSHRC 1385, 1411 (May 2013) (ALJ)
(regular assessment regulations provide a helpful guide for assessing an
appropriate penalty that can be applied consistently).

[15]
Payment should be sent to: Mine Safety & Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

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