Harman Mining Corp.

Plain-English summary

MSHA originally charged Harman Mining with violating 30 C.F.R. § 75.520 after finding bare pump-cable wires inserted into a receptacle. The Secretary later sought to amend the citation and order to charge 30 C.F.R. § 75.514 instead. Judge Gary Melick found that the mine had been permanently abandoned and the cited equipment could no longer be examined, so Harman would suffer legally cognizable prejudice from the change. He denied the amendment and directed the Secretary to state whether she would proceed on the original charges.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.520 and 75.514
• Outcome: The Secretary's motion to amend the citation and order was denied, and the original charges remained available for further proceedings.
• Key point: A citation amendment may be denied when mine abandonment prevents the operator from investigating and defending the newly proposed standard.

Full text (FMSHRC public release)

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 92-132
Petitioner : A.C. No. 44-06259-03565
v. :
: Greenbrier Mine No. 1
HARMAN MINING CORPORATION, :
Respondent :

                            DECISION

Appearances: Patrick L. DePace, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Thomas C. Means, Esq., Crowell and Moring,
Washington, D.C., for Respondent

Before: Judge Melick

 This case is before me upon the petition for civil

penalties filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 801, et seq., the "Act," charging the
Harman Mining Corporation (Harman), in its original form,
with two violations in a citation and order issued pursuant
to Section 104(d)(1) of the Act.1 The mandatory standard

 1    Section 104(d)(1) of the Act provides as follows:

        If, upon any inspection of a coal or
   other mine, an authorized representative of the
   Secretary finds that there has been a violation
   of any mandatory health or safety standard, and
   if he also finds that, while the conditions
   created by such violation do not cause imminent
   danger, such violation is of such nature as could
   significantly and substantially contribute to the
   cause and effect of a coal or other mine safety
   or health hazard, and if he finds such violation
   to be caused by an unwarrantable failure of such
   operator to comply with such mandatory health or
   safety standards, he shall include such finding
   in any citation given to the operator under this
   Act. If, during the same inspection or any
   subsequent inspection of such mine within 90 days
   after the issuance of such citation, an authorized
   representative of the Secretary finds such violation

 originally charged in both the citation and order,

30 C.F.R. 75.520, requires that "all electric equipment
shall be provided with switches or other controls that
are safely designed, constructed, and installed."

 The citation at issue (No. 3783586) charges as follows:

 The 240 volt pump cable supplying power to the
 water pump on the 5th Right Section did not
 have a plug-in installed on the end of the cable.
 The bare wires were stuck into the receptacle
 on the power center.

The order at issue (No. 3783587) charges as follows:

 The 240 volt pump cable supplying power to the
 water pump at the mouth of 5th right did not
 have a plug-in installed on the end of the cable.
 The bare wires were stuck into the receptacle on
 the belt transformer box.

 On July 24, 1992, the Secretary moved to amend her

petition in this case to charge, based on the same alleged
facts, that a different standard, 30 C.F.R. 75.514, had
been violated in the citation and order.2 The standard
at 30 C.F.R. 75.514 provides as follows.

 All electric connections or splices in
 conductors shall be mechanically and
 electronically efficient, and suitable

fn. 1 (continued)

 to be also caused by an unwarrantable failure of
 such operator to so comply, he shall forthwith
 issue an order requiring the operator to cause all
 persons in the area affected by such violation,
 except those persons referred to subsection (c)
 to be withdrawn from, and to be prohibited from
 entering such area until an authorized represen-
 tative of the Secretary determines that such
 violation has been abated.

 2    It appears that the issuing inspector had attempted

to make the same modifications on June 16, 1992, prior to the
filing with the Commission on July 24, 1992, of the instant
petition for civil penalty. The Commission noted in Wyoming
Fuel Company, 14 FMSHRC 1202 (1992), that such attempted
modifications are actually proposed amendments to the initial
citation similar to an amendment of pleadings under the
Federal Rules of Civil Procedure.

   connectors shall be used. All electrical
   connections or splices in insulated wire
   shall be insulated at least to the same degree
   of protection as the remainder of the wire.

Harman opposes the Secretary's motion and, in a motion
to dismiss, argues that it would suffer legal prejudice
by the amendments.

 Regarding the Secretary's authority to modify or amend

charging documents such as citations, the Commission recently
stated in Secretary v. Wyoming Fuel Company, 14 FMSHRC 1282
(1992), as follows:

   Section 104(a) citations are essentially
   'complaints' by the Secretary alleging
   violations of mandatory standards. The
   Secretary's attempted modifications, alleging,
   based on the same facts, that a different standard
   had been violated, are essentially proposed
   "amendments" to the initial complaints, i.e.,
   citations. The Commission has previously analogized
   the modification of a citation to an amendment
   of pleadings under Fed. R. Civ. P. 15(a)
   [Footnote omitted]. Cyprus Empire Corp.,
   12 FMSHRC 911, 916 (May 1990). In Cyprus
   Empire, where the operator conceded that it
   was not prejudiced thereby, the Commission
   affirmed the trial judge's modification of a
   terminated citation to allege violation of a
   different standard. ID.

   In Federal civil proceedings, leave for amend-
   ment "shall be freely given when justice so requires."
   Fed. R. Civ. P. 15(a). The weight of authority under
   Rule 15(a) is that amendments are to be liberally
   granted unless the moving party has been guilty of
   bad faith, has acted for the purpose of delay, or
   where the trial of the issue will be unduly delayed.
   See 3 J. Moore, R. Freer, Moore's Federal Practice,
   Par. 15.08[2], 15-47 to 15 49 (2d ed 1991) ("Moore's").
   And, as explained in Cyprus Empire, legally recognizable
   prejudice to the operator would bar otherwise
   permissible modification.

 It is not argued in this case that the Secretary has

been guilty of bad faith or that she has acted for the
purpose of delay, nor is it alleged that the trial of the
issue would be unduly delayed by the proposed amendments.
Harman maintains, however, that it would suffer legal

prejudice if the proposed amendments (modifications)
were permitted. Under the unique facts of this case I agree.

 It is undisputed that when the citation and order

were issued the mine was no longer in production and
was already in the process of permanent abandonment.
Subsequently, after the termination of the original
citation and order, the cited pump, power center, and
electrical connecting cables were disassembled and the
pumps and power centers sent to an off-sight storage
location in furtherance of the planned abandonment.
On May 9, 1992, the mine fan was turned off, the mine
openings were fenced off, and by May 16, 1992, the
mine was physically sealed. Since then the mine has
been inaccessible with the cited electrical connecting
cables sealed inside.

 It is further undisputed that on or about May 11,

1992, the Mine Safety and Health Administration (MSHA)
was informed that the mine had been closed as of May 9,
1992, and permanently abandoned. The first modification
of the citation and order was not attempted by MSHA
until June 16, 1992, more than one month after the
sealing and permanent abandonment of the mine.

 Harman supports its claims of prejudice in this

case in large part on the testimony of Harman's highly
qualified expert witness, Larry Hambrick. Hambrick,
a graduate electrical engineer, is a former assistant
professor of electrical engineering technology and chief
electrical engineer for the Island Creek Coal Company.
He is presently a senior project engineer for the
Westinghouse Electric Corporation.

 Hambrick opined that the original charges in the

citation and order under 30 C.F.R. 75.520 could readily
be defended without the need for testing or investigation.
According to Hambrick, cable termination plugs are not in
fact switches or controls within the meaning of that
section. Hambrick testified that if faced with charges
under 30 C.F.R. 75.514, however, further investigation
and testing would be necessary. In particular, he opined
that it would be necessary to study the connection that
was made and examine any exposed conductors to determine
how far the conductors were stripped and how far the
conductors were inserted into the connection -- questions
relevant to the efficiency and suitability of the connection
and exposure to a hazard and critical to the "significant
and substantial" and gravity issues.

 Hambrick further noted that to defend against

charges under section 75.514, he would have performed
infra-scanning tests to determine whether any "hot spots"
or inefficient connections existed. He observed that it
was possible that the wires inserted in the receptacle
were indeed efficient and that it would have been possible
to fasten the wires inside the receptacle to make good
contact. Accordingly, he noted that it would also be
essential to have examined the power center and the wire
cable that was actually in use.

 Hambrick further noted that to properly defend

against charges under section 75.514, it would also be
essential to examine the circuit breaker to determine,
among other things, whether the equipment had a ground
fault device and the size of the circuit breaker to
determine what, if any, hazard might have existed under
the circumstances. Hambrick indicated that he would also
have tested and examined the cable, including the stranding,
to determine its flexibility. He opined that it would have
also been important to not only test the circuit breaker
and ground fault capabilities of the power center but also
determine access to the receptacle, i.e., was it in a
location where people could come into contact with it.

 Regarding the issue of mechanical efficiency,

Hambrick opined that it would also have been important
to know what, if any, strain relief was provided on the
cable. Hambrick noted that whether a chained device or
kellem grips were used would be relevant to this question.
Finally, Hambrick opined that "plug-ins" are distribution
devices and not control devices and that, indeed, there
is such a separation in the field of electrical engineering
between power controls and power distribution that they
are separate disciplines of study into which
electrical engineers may specialize.

 Within this framework of evidence, I conclude that

indeed Harman Mining Corporation would suffer legally
cognizable prejudice if the Secretary was granted her
motion to amend the petition for civil penalty in this
case to change the charges in the citation and order
from those under the standard at 30 C.F.R. 75.520
to charges under the standard at 30 C.F.R. 75.514.
From the essentially undisputed evidence it is clear
that Harman could reasonably have believed that charges
under the standard at Section 75.520 could have readily
been defended on the grounds that the plug-in device was
not a control or switch within the meaning of that standard.

Harman would therefore not have found it necessary to
perform any tests, or, for that matter, pay any particular
attention to the specific facts surrounding the alleged
violation. Upon the subsequent sealing and abandonment
of the mine and the undisputed inability to reconstruct
the cited equipment, power center, cables, and other
conditions critical to issues that clearly would become
relevant to new charges under Section 75.514, Harman would
be at extreme disadvantage in attempting to defend itself.
It would indeed suffer legal prejudice by the proposed
amendment.

 Under the circumstances, the Secretary's motion to

amend is DENIED. In light of this determination the
Secretary is directed to notify the undersigned and counsel
for Harman Mining Corporation, in writing, within 15 days
of the date of this Decision, whether she intends to proceed
on the original charges under 30 C.F.R. 520 in Citation
No. 3783586 and Order No. 3783587.

                          Gary Melick
                          Administrative Law Judge
                          703-756-6261

Distribution:

Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

Thomas C. Means, Esq., Crowell and Moring, 1001 Pennsylvania
Ave., N.W., Washington, D.C. 20004-2595 (Certified Mail)

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